BAIJ NATH PRASAD TRIPATHI v. THE STATE OF BHOPAL

in Petition No. 115 of 1956, was a Sub-Inspector of Police in the then State of Bhopal. He was prosecuted in the Court Judge, Bhopal, and of Shri B. K. Puranik, Special convicted of offences under s. 161, Indian Penal Code, and s. 5 of the Prevention of Corruption Act, 1947. He imprisonment was sentenced to nine months' on each count. He preferred an appeal against conviction and sentences to the Judicial Commissioner of Bhopal. The Judicial Commissioner held by his judgment dated March 7, 1956, that no sanction accord ing to law had been given for the prosecution of the petitioner and the Special Judge had no jurisdiction to take cognizance of the case ;, the trial was accordingly ab initia invalid and liable to be quashed. He accord ingly set aside the conviction and quashed the entire proceedings before the Special Judge. He then observed: "The parties would thus be relegatecf to the position as if no legal charge-sheet had been submitted against the appellant." On April 4, 1956, the Chief Commissioner of Bhopal passed an order under s. 7(2) of the Criminal Law Amendment Act, 1952, (No. XL VI of 1952) that the petitioner shall be tried by Shri S. N. Shri for certain offences vastava, Special the Prevention of Corruption Act read with s. 161, Indian Penal Code. The case of the petitioner is that he cannot be prosecuted and tried again for the same offences under the aforesaid order of April 1, 1956. Judge, Bhopal, Sudhakar Dube, petitioner in Petition No. 132 of 1956, was also a Sub-Inspector of Police in the then State of Bhopal. He was also prosecuted in the Court Judge, Bhopal, on a of Shri B. K. Puranik, Special l95i Baij N atA Prasad Tripalbi v. Tiii Slat• of Bhop.i S. K.D.,]. 652 SUPREME COURT REPORTS [1957] the whole law; he trial was null and void charge of having accepted illegal gratification for show ing official favour to one Panna Lal. The learned Special Judge by an order dated January 10, 1956, came to the conclusion tbat no legal sanction for the prosecu tion of the petitioner had been given by the competent authority and the sanctiop given by Inspector General of Police was not valid in therefore held that and he could not take cognizance of the offene<s in question. Accordingly he quashed the proceedings. On February 7. 1956, the Government of Bhopal accorded fresh sanction for the prosecution of the petitioner for offences under s. 161, Indian Penal Code,, and s. 5 of the Prevention of Corruption Act. The petitioner then moved this Court for appropriate writs restraining the respondents from prosecuting and trying him for the offences stated in the fresh sanction aforesaid. the Chief Secretary On behalf of both the petitioners the contention is that by reason of cl. (2) of Art. 20 of the Constitution and s. 403 of the Code of Criminal Procedure, petitioners cannot now be tried for the offences question. some of the relevant sections bearing on the point at issue. Sec tion 6 of the Criminal Law Amendment Act, 1952 (prior to the amendment made in 1955), so far as is relevant for our· purpose, is in these terms : It is necessary "6. (1) The State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas as may be specified in the notification to try the following offences, namely:- (a) an offence 161, punishable section 165, or section 165-A of the Indian Penal Code (Act XLV of 1860), or sub-section (2) of section 5 of the Pre,·ention of Corruption Act, 1947 (II of 1947) ; section (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a)". Sub-section ( 1) of s. 7 of the same Act lays down : "7. (I) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) or in S.C.R. SUPREME COURT REPORTS 653 any other law the offences specified of section 6 shall be triable by special Judges only". in sub-section ( 1) The same section also states that when trying any try any offence other case, a special Judge may also than an offence specified in s. 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial. It is not necessary for our purpose to read the other sections of the Criminal Law Amendment Act, 1952. We then go to the Preven tion of Corruption Act, 1947, relevant in these terms: for our purpose. That section section 6 whereof 1957 Bisij Nath Priullli TriJiatlti v. Tiii Stat. of BllOpiil S. K.Das]. cognizance Indian Penal Code or under "6. (1) No Court shall take of an offence punishable under section 161 or section 165 of sub-section (2) of section 5 of this Act, alleged to have been committed by a public servant exce; it with the previous sanction,- the case of a person who is employed connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government ........ , [of the] Central Government ; ( a) in (b) in the case of a person who is employed is not connection with the removable from his office save by or with the sanction of the · State Government. ............. , [of the] State Government ; affairs of [a State] and ( c) in the person, of authority competent to remove him from his office. any other case of (2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (I) should be given the Centra: or State Government or any other authority, such sanc that Government or authority tion shall be given by which would have been competent remove public servant from his office at the time when offence was alleged to have been committed." It is under this section that sanction was necessary (2) of the petitioners for the prosecution of the petitioners. Clause Art. 20 of the Constitution, on which rel v, states : 654 SUPREME COURT REPORTS 119571 1957 "No person shall be prosecuted and punished Baij Nat.~ Prasad Tripa1hi v. The Stale af B!wpal S. K. Das]. the same offence more than once." Section 403 (I) of the Code of Criminal Procedure, on which learned counsel for the petitioners has placed the greatest reliance, is in these terms : "A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be triecl again for the same offence, nor on the same facts fc,, any other offence for which a different the one macle against him might have been made under section 236, or for which he might have been convicted under section 237." charge Now, it is necessary to state that the point taken by learned counsel for the petitioners is really conclud ed by three decisions-(a) one of the Privy Council, (b) another of the Federal Court and ( c) the third of this Court itself. The Privy Council decision is in Yusofalli Mulla v. The King('); the Federal Court decision in Basdeo Agarwal/a v. King-Emperor( ) ; and the decision of this Court (not yet reported) was given in Bud ha Mal v. State of Del.~i ( ') on October 3, 1952. The Privy Council decision is directly in point, and it there held that the whole basis of s. 403 ( 1) was trial should have been before a Court that the first the case and to competent record a verdict of conviction or acquittal ; if the Court was not so competent, as required sanction for the prosecution was not obtained, it was irrelevant that it was competent to try other cases of the same class or indeed the case against the circumstances, in different particular example if a sanction had been obtained. So is decision of this Court where the following observations were made with regard to the point in question : to hear and determine for example where accused "Section 403, Criminal Procedure Code, applies to cases where the acquittal order has been made by a Court of competent jurisdiction but it does not bar (1) A.!.R. 1949 P.C. 264. (2)- [1945] F.C.R. 93. (3) Criminal Appeal No. 17 of 1952 decided on October 3, 1952. S.C.R. SUPREME COURT REPORTS 655 a retrial of the accused in cases where such an order has been made by a court which had no jurisdiction to take cognizance of apparent that in the absence of a valid sanction on this record the trial of the ;ippellant in the first instance was by a magistrate who had no jurisdiction to try him." It is quite the case. 1957 Baij Nath Prasad Tri, athi v. The Stal• of Bhopal S. K. Das] .. is really to state than once, unnecessary After the pronouncements made in the decisions referred to above, it to embark the point raised, on a further or fuller discussion of learned except merely that we have heard counsel for the petitioners who made a vain attempt with a crusading pertinacity worthy of a better cause, to show that the Privy Council decision was wrong and the decision of this Court required reconsideration, and having heard in full, we are of learned counsel the view that the decisions referred to above state legal position correctly. It is clear beyond any doubt that cl. (2) of Art. 20 of the Constitution has no appli cation in these two cases. The petitioners the same offence being prosecuted and punished for the earlier proceedings having been held to be null and void. With regard to s. 403, Code of Criminal Procedure, it is enough to state that the tried, in the earlier proceedings, petitioners were not by a Court of competent jurisdiction, nor is there any conviction or acquittal in force within the meaning of s. 403 (1) of the Code, to stand as a bar against for the trial for the same offences. Learned petitioners invited our attention to ss. 190, 192, 529 and 530 of the Code of Criminal Procedure and . submitted that in certain circumstances the Code drew 'taking a 'jurisdiction' argument of cognizance'. The whole fabric of the learned counsel was distinction. Assuming, however, that in certain cases one Magis trate may and another Magistrate may try an accused person, it is difficult to appreciate how any Court can try the petitioners of these case~ in the absence of a sanction in view of the mandatory provisions of s; 6 of the Prevention of Corruption Act, If no Court can take cognizance of the offence~ 1947. is obvious in question without a legal sanction, take C<?gnizance distinction between founded counsel 191, 1957 B1aij }( alh Pr a rod Tri; tJthi v. T lw St•ll of Bhopal S. Ir. D111 ]. 656 SUPREME COURT REPORTS [19571 ?1a.t ~o . Court can be said to be a Court of competent 1unsd1ct:Jon try those offences and that any trial in the absence of such sanction must be null and void, and the sections of the Code on which learned counsel bearing on for the petitioners relied have really no really against the matter. Section 530 of the Code is the contention of states, inter alia, that if any Magistrate not being empowered by law to try an offender, tries him, then the proceedings shall be void. Section 529 ( e) is merely an exception in the matter of taking cognizance of an offence under s. 190, sub-s. (I), els. (a) and (b) ; it has no bearing in a case where sanction is necessary and no sanction m accordance with law has been obtained. learned counsel, for referred As part of his arguments, learned counsel for · to certain observations made by petitioners Braund J. in a decision of the Allahabad High Courr, Basdeo v. Emperor ( 1 ), where the learned Judge drew a distinction between 'juris 'taking cognizance' diction'. The distinction was drawn in a case where to commit cases to the a Magistrate duly empowered Sessions Court committed to the accused person Court of Session in disregard of the provisions of s. 254 of the Code of Criminal Procedure, and the question irregularity so committed rendered was whether the case. The the Sessions Courr incompetent to try facts there were entirely different from the facts of the present cases and there was no occasion nor necessity ,for considering contained in s. 6 of the Prevention of Corruption Act. the observations made in that We do not think that the argu case can be pressed in service in support of ment of cases, down any abstract propositions of law not dependent on the context of the facts in connection with which they were made. those observations as though such mandatory prov1s1ons learned counsel for petitioners in treating Out of deference to learned counsel for the petitioners, considered very briefly the have said advanced before us. As we indicated and we have arguments {1) A.I.R. 1945 All. 340. S.C.R. SUPREME COURT REPORTS 657 before, the point is the highest down the law. The result therefore tions are devoitl of all merit and must be dismissed. really concluded by decisions of tribunal, · decisions which correctly lay is that these peti Petitions dismissed. 1957 Baij Nath Prasad Tripalhi v. Tht State of Bhopal S. ti. Dass J. NISAR ALI v. THE ST ATE OF JJTT AR PRADESH (BHAGWATI, B. P. SINHA and J. L. KAPUR First information repo1·t-Repon made by accused-Use of Burden of proof in criminal ,·ases-Witness disbelieved as to part of his testimony...:... Whether should be 1·ejected in tote>. 1957 F1bruary 14. report A first information is not a substantive piece of evidence and can onlv be used to corroborate the statement of the maker under s. 157 ~£ the Evidence ·Act or ID contradict it under s. 145 of that Act. maker at the trial if he himself becomes an accused, nor to corro borate or contradict other witnesses. It ·cannot be used as evidence against It is a cardinal principle of criminal jurisprudence that the till otherwise proved. to prove the guilt of the accused innocence of an accused person is presumed It is the duty of the prosecution subject to any statutory exception. · The ma~im falsus in uno, falms in omnibus has not received general acceptance in different · jurisdictions in India, nor has It is merely a rule come to occupy the status of a rule of law. of caution. All that it amounts to is tha~ in such cases the testi it must be disregarded. mony may be disregarded and not the question of weight of evidence The doctrine merely invoh-es which a court may apply in a given set of circumstances but ·it is not a mandatory rule of e,·idencc. CtttMINAL APPELLATE JultlsDICTION : Criminal Appeal No. 150 of 1956. Appeal by special leave from the Judgment and order dated October 18, 1955, of the Allahabad High Court in Government Appeal No. 60•of 1953 arising judgment and order dated July 8, 1952, of out of the the Court of Sessions Judge at Bareilly in Criminal. Sessions Trial No. 27 of 1952. Daul•t Ram Prem and P. C. Agarwa/a, for the appellant. 5-79 S. C. India/59