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PETITIONER:

RAMESHWAR BHARTIA

Vs.

RESPONDENT:

THE STATE OF ASSAM

DATE OF JUDGMENT:

23/10/1952

BENCH:

AIYAR, N. CHANDRASEKHARA

BENCH:

AIYAR, N. CHANDRASEKHARA

BHAGWATI, NATWARLAL H.

CITATION:

1952 AIR 405

CITATOR INFO :

F 1976 SC 680 (3)

ACT:

Criminal Procedure Code (V of 1898), s. 556-" Personally

interested", meaning of-Officer giving sanction to

prosecute, whether disqualified from trying the

case--Difference between sanction to prosecute and direction

to prosecute.

HEADNOTE:

The question whether a Magistrate is "personally interested"

in a ease within the meaning of s. 556, Criminal Procedure

Code, has essentially to be decided the facts of each

case.

Where an officer as a District Magistrate exercising his

powers under s. 7(1) of the Essential Supplies (Temporary

Powers) Act, 1946, sanctioned the prosecution of a person

for violation of ss. 3 and 7 of the Assam Food Grains

Control Order, 1947, and the same officer as Additional

District Magistrate tried and convicted the accused, and it

was contended that as the officer had given sanction for

prosecution he was "personally interested" in the case

within the meaning of s. 656, Criminal Procedure Code, and

the trial and conviction were therefore illegal: Held, that

bymerely giving sanction for prosecution he did not become

personally interested" in the case and the trial and

conviction were not illegal.

In both cases of sanction -and direction to prosecute, an

application of the mind is necessary, but there is this

essential difference that in the one case there is a legal

impediment to the prosecution if there is no sanction and in

the other case there is a positive order that the

prosecution should be launched. For a sanction, all that is

necessary for one to be satisfied about is the existence of

a prima facie case. In the case of a direction, a further

element that the accused deserves to be prosecuted is

involved. Whether sanction should be granted or not may

conceivably depend considerations extraneous to the merits

of the case. But where a prosecution is directed, it means

that the authority who gives the sanction is satisfied in

his own mind that the case must be initiated. Sanction is

in the nature of a permission, while direction is in the

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nature of a command.

Gokulchand Dwarka Das v. The King (1948) 52 C.W.N. 325,

Government of Bengal v. Heera Lall Dass and Others (1872) 17

W. R. Cr. 39, Queen Empress v. Chenchi Reddi (1901) I.L.R.

24 Mad. 238, Girish Chunder v. Queen Empress (1893) I.L.R.

20 Cal. 857, and Emperor v. Ravji (1903) 5 Bom. L.R. 542,

referred to.

JUDGMENT:

CRIMINAL APPELLATE, JURISDICTION: Criminal

Appeal No. 40 of 1951,

127

Appeal from the Judgment and Order dated the 1st June, 1951,

of the High Court of Judicature in Assam (Thadani C.J. and

Ram Labhaya J.,) in Criminal Reference No. I of 1951,

arising out of Judgment and Order dated the 15th November,

1950, of the Court of the Additional District Magistrate,

Lakhimpur, in Case No. 1126C of 1950.

Jindra Lal for the appellant.

Nuruddin Ahmed for the respondent.

1952. October 23. The Judgment of the Court was delivered

by

CHANDRASEKHARA AIYAR J.-Rameshwar Bhartia, the appellant, is

a shopkeeper in Assam. He was prosecuted for storing paddy

without a licence in excess of the quantity permitted by the

Assam Food Grains Control Order, 1947. He admitted storage

and possession of 550 maunds of paddy, but pleaded that he

did not know that any licence was necessary. The

'Additional District Magistrate recorded a plea of guilty,

but imposed him a fine of Rs. 50 only, as he -considered

his ignorance of the provisions of the Food Grains Control

Order to be genuine. The stock of paddy was left in the

possession of the appellant by the Procurement Inspector

under a Jimmanama or security bond executed in his favour.

He was subsequently unable to produce it before the court,

as the whole of it was taken away by a Congress M.L.A. for

affording relief to those who suffered in the earthquake,

and so, the appellant was ordered to procure a similar

quantity of paddy after taking an appropriate licence, and

to make over the same to the procurement department

payment of the price.

The District Magistrate, being moved to do so by the

procurement department, referred the case to the High Court

under section 438, Criminal Procedure Code, for enhancement

of the sentence, as in his opinion the sentence was unduly

lenient and the Jimmanama, which was admittedly broken,

should have been forfeited.

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The reference was accepted by the High Court, and the sent

ence was enhanced to rigorous' imprisonment for six months

and a fine of Rs. 1,000. As regards the Jimmanama, the case

was sent back to the trial court for taking action according

to law under section 514, Criminal Procedure Code, for its

forfeiture.

The appellant applied to the High. Court for a certificate

under article 134 (1) (c) of the Constitution that the case

was a fit one for appeal to this Court. This application

was granted. Out of the three points urged for the

appellant, two were rejected, but the third one was accepted

as a good ground, namely, that there was a contravention of

the provisions of section 556, Criminal Procedure Code and

that consequently the, trial before the Additional District

Magistrate was void.

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One of the contentions urged before us was that Shri C.K.

Bhuyan was not a "Director" at all and therefore there was

no valid sanction under section 38 of the Order. A

notifications dated 16th May) 1950, and published in the

Assam Gazette of the 24th May, 1950, was produced before us

to show that Sri C.K. Bhuyan was an Additional Deputy

Commissioner and it was conceded by the appellant's counsel

before the High Court that if he was a Deputy Commissioner,

he would be a Director under the Order, as all Deputy

Commissioners in Assam were notified as Directors for the

purposes of the Order. Mr. Jindra Lal sought to draw a

distinction between a Deputy Commissioner and an Additional

Deputy Commissioner in this respect, but there is no warrant

for the same,, apart from the circumstance that it is a

question of fact which has to be investigated afresh, and

which we cannot allow to be raised now for the first time.

The primary question to consider in this appeal is whether

there has been any infringement of Section 556, Criminal

Procedure -Code, and a consequent want of jurisdiction in

the court which tried the offence. The facts relevant to

this question lie

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within a narrow compass. The Procurement Inspector sent a

report , Ist July,1950 about the nature of the offence ; he

wrote out a short note the, subject, and requested that

the accused might be prosecuted and the Assistant Director

of Procurement, Dibru garh, might be authorised to dispose

of the paddy immediately to avoid loss due to deterioration,

Sri 0. K. Bhuyan,who was the then District Magistrate

Lakhimpur, made the following order:-

"Prosecution sanctioned under section 7 (1) of ,the

Essential Supplies (Temporary Powers) Act, 1946, for

violation of sections 3 and 7 of the Assam Food Grains

Oontrol Order, 1947."

The case happened to be tried by the same gentleman in his

capacity as Addtional District Magistrate, and the- accused

was convicted as aforesaid.

The argument for the appellant was that having sanctioned

the prosecution, Sri C.K. Bhuyan became "personally

interested" in the case within the meaning of section 556,

and was therefore incompetent to try the same. It was

contended that the trial was not only irregular but illegal.

There is no question that "personal interest" within the

meaning of the section is not limited to private interest,

and that it may well include official interest also. But

what is the extent of the interest which will attract the

disability is a subject which different views are possible

and have been taken. Section 556 itself indicates the

difficulty. The Explanation to the section runs in these

terms:-

"A Judge or Magistrate shall not be deemed a party, or

personally interested, within the , meaning of this section,

to or in any case by reason only that be is a Municipal

Commissioner or otherwise concerned therein in a public

capacity, or by reason only that he has viewed the place in

which an offence, is alleged to have been committed, or any

other place .in which any other transaction material to the

case 'is alleged to have occurred, and made an inquiry III

connection with the case."

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This shows that to be connected with a case in a public

capacity is not by itself enough to render the person

incompetent to try it. Even if he had made an enquiry in

connection with this case, it would not matter. But look at

the illustration:

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"A, as collector, upon consideration of information

furnished to him, directs the prosecution of B for a breach

of the excise laws. A is disqualified from trying this case

as a Magistrate."

It is evident from the words of the illustration that if a

prosecution is directed by a person in one capacity, he

shall not try the case acting in another capacity as a

Magistrate.

The explanation and illustration lend some support to the

view that there is a distinction between a passive interest

and an active interest, and that it is only in the latter

case that the disqualification arises or intervenes.

Under sub-section (3) (a) of section 2 of the Assam Food

Grains Control Order "Director" means "the Director of

Supply, Assam, and includes, for the purpose of any

specific. provision of this Order, any other officer duly

authorised in that behalf by him or by the Provincial

Government by notification in the Official Gazette." Section

38 provides:

No prosecution in respect of an alleged contravention of any

provision of this Order shall be instituted without the

sanction of the Director."

A little confusion is likely to arise from the employment of

the word " Director" in the Control Order and the word

"directs" in the illustration to section 556 of the Code'.

It has to be borne in mind that a sanction by the Director

within the meaning of the Code does not necessarily mean "a

direction given by him that the accused should be

prosecuted."

In both cases of sanction and direction, an application of

the mind is necessary, but there is this essential

difference that in the one case there is a legal impediment

to the prosecution if there be no sanction, and in the other

case, there is a positive order that

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the prosecution should be launched. For a sanction, all

that is necessary for one to be satisfied about is the

existence of a prima facie case. In the case of a,

direction, a further element that the accused deserves to be

prosecuted is involved. The question whether a Magistrate

is personally interested or not has essentially to be

decided the facts in each case. Pecuniary interest,

however small, will be a disqualification but as regards

other kinds of interest, there is no measure or standard

except that it should be a substantial one, giving rise to a

real bias,-or a reasonable apprehension the part of the

accused of such bias., The maxim " Nemo debet esse judex in

propria sua causa" applies only when the interest attributed

is such as to render the case his own cause. The fulfllment

of a technical requirement imposed by a statute may not, in

many cases, amount to a mental satisfaction of the truth of

the facts placed before the officer. Whether sanction

should be granted or not may conceivably depend upon

consideration extraneous to the merits of the case. But

where a prosecution is directed, it means that the authority

who gives the direction is satisfied in his own mind that

the case must be initiated. Sanction is in the nature of a

permission while a direction is in the nature of a command.

Let us now examine some of the decisions the subject. For

the appellant, strong reliance was placed the judgment of

the Privy Council in Gokulchand Dwarkadas v. King(1), and it

was argued the basis of some of the observations of the

Judicial Committee that a sanction was an important and

substantial matter and not a mere formality. The facts in

that case were that while there was a sanction of the

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Government for a prosecution under the Cotton Cloth and Yarn

Control, Order, there was nothing in the sanction itself, or

in the shape of extraneous evidence, to show that the

sanction was accorded after the relevant facts were placed

before the sanctioning authority. To quote their Lordships'

own words;

(1) (1948) 52 C.W.N.325.

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"There is no evidence to show that the report of the Sub-

Inspector to the District Superintendent of Police, which

was not put in evidence, was forwarded to the District

Magistrate, nor is there any evidence is to the contents of

the endorsement of the District Magistrate, referred to in

the sanction, which endorsement also was not put in

evidence. The prosecution was in a position either to

produce or to account for the absence of the'report made to

the District Superintendent of Police and the endorsement of

the District Magistrate referred to in the sanction, and to

call any necessary oral evidence to supplement the documents

and show what were the facts which the sanction was

given."

It is in this connection that their Lordships em phasise

that the sanction to prosecute is an important step

constituting a condition precedent, and observe:

"Looked at as a matter of substance it is plain that the

Government cannot adequately discharge the obligation of

deciding whether to give or withhold a sanction without a

knowledge of the facts of the case. Nor, in their

Lordships' view, is a sanction given without reference to

the facts constituting the offence a compliance with the

actual terms of clause 23."

This, however, is no authority for the position that a

sanction stands the same footing as a direction. It is

true that the facts should be known to the sanctioning

authority ; but it is not at all necessary that the

authority should embark also an investigation of the

facts, deep or perfunctory, before according the sanction.

The decision lends no support to the view that wherever

there is a sanction, the sanctioning authority is disabled

under section 556 of the Code from trying the case initiated

as a result of the sanction. the other hand, there is

plenty of support for the opposite) view.

In the very early case of The Government of Bengal

v. HeeraLall Dass and Others(1), at a time when there

(1) (1872) 17 Weekly Reporter, Criminal Rulings, 39.

133

was no such statutory provision as section 556 of the Code

but, only the general rule of law that a man could not be

judge in a case in which he had an interest, the facts were

that a Sub-Registrar, who was also an Assistant Magistrate,

having come to know in his official capacity as a

registering officer that an offence under the Registration

Act had been committed, sanctioned a prosecution, and

subsequently tried the case himself. A Full Bench

consisting of Sir Richard Couch C.' J. and five other

learned Judges came to the conclusion, after an examination

of some of the English cases, that the trial was not

vitiated. The learned Chief Justice said:-

"In this case, I think, the Sub-Registrar has not such an

interest in the matter as disqualifies him from trying the

case; and I may observe with reference to some -of the

arguments that have been used as to the Sub-Registrar having

made up his mind, and that the accused would have no chance

of a fair trial, that the sanction of the superior officer,

the Registrar, is required before the prosecution can be

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instituted, and certainly I do not consider that the

prosecution will not be instituted unless the Sub-Registrar

has made up his mind as to the guilt of the party. It is

his duty, when he comes to know that an offence has been

committed, to cause a prosecution to be instituted, by which

I understand that there is prima facie evidence of an

offence having been committed, that there is that which

renders it proper that there should be ail enquiry, and the

Registrar accordingly gives his sanction to it ; and

certainly, I cannot suppose that, because an officer in his

position sanctions the institution of a prosecution, his

mind is made up as to the guilt of the party and . that he

is not willing to consider the evidence which may be

produced before him when he comes to try the case. In this

case, there appears to 'be no such interest as would prevent

the case from going" before the Magistrate as the trying

authority ......

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In Queen-Empress v. Chenchi Reddi(1) it was pointed out that

when there was only an authorisation and not a direction,

there was no supervening disability ; and the case of Girish

Chunder Ghose v. The QueenEmpress(2) was distinguished,

the ground that there the Magistrate had taken a very active

part in connection with the case as an executive officer.

The Bombay High Court went even a step further in the case

reported in Emperor v. Bavji(3), where the Magistrate who

tried the case had earlier held a departmental enquiry and

forwarded the papers to the Collector with his opinion that

there was sufficient evidence to justify a criminal

prosecution. As he did no more than express an opinion that

there was evidence, which he, had neither taken nor sifted,

which made a criminal prosecution desirable, it was held

that the Magistrate was not disqualified from holding the

trial, though, no doubt it would have been more expedient

had the Collector sent the case for disposal to another of

his subordinates.

As stated already, the question whether the bar under

section 556 comes into play depends upon the facts and

circumstances of each particular case, the dividing line

being a thin one somewhat but still sufficiently definite

and tangible, namely, the removal of a legal impediment by

the grant 'of sanction and the initiation of criminal

proceedings as the result of a direction. In the present

case before us, we have nothing more than a sanction, and

consequently we are unable to hold that the trial has become

vitiated by reason of the provisions of section 556,

Criminal Procedure Code.

The other point taken behalf of the appellant is a more

substantial one. The security bond was taken from him not

by the court but by the Procurement Inspector. It is true

that it contained the undertaking that, the seized paddy

would be produced before the court, but still it was a

promise made to the particular official and not to the

court. The High

(1) (1901) I.L.R. 24 Mad. 238. (3) (19O3) 5 Bom. L.R. 542.

(2) (1893) I.L.R. 20 Cal. 857.

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Court was in error in thinking that section 514, Criminal

Procedure Code, applied. Action could be taken only when

the bond is taken by the court under the provisions of the

Code such as section 91 for appearance, the several security

sections or those relating to bail. Clause (1) of section

514 runs:

"Whenever it is proved to the satisfaction of the, Court by

which a bond under this Code has been taken, or of the Court

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of a Presidency Magistrate or Magistrate of the first class,

or when the bond is for appearance before a Court, to the

satisfaction of such -Court, that such bond has been

forfeited, the Court shall record the grounds of such proof,

and may call upon any person bound by such bond to pay the

penalty thereof, or to show cause why it should not be

paid."

The language is perfectly clear; the power to forfeit and

the imposition of the penalty provided for in the later

parts of the section arise only if the preliminary

conditions are satisfied.

There was no argument addressed to us that the High Court in

suggesting that action should be taken under section 514 for

forfeiture of the bond acted in the exercise of its inherent

powers under section 561-A. It did not purport to exercise

any such power; and, moreover, there will then arise the

question whether when the Code contains an express provision

a particular subject, there could be any resort to inherent

jurisdiction, under a general provision.

We have got an additional circumstance in the appellant's

favour in this case that the seized paddy was taken away by

a member of the Legislative Assembly for giving relief to

those affected by the earthquake, and if that is true, as it

seems to be from the letter written by the' M.L.A. to the

Additional District Magistrate the 1st November, 1950, it

appears to us harsh, if not unjust, to ask him to produce

the same paddy or a similar quantity of paddy. The order-of

the High Court sending back the case to the

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Magistrate for taking action according to law under section

514 will, therefore, stand set aside.

We generally do not interfere in the matter of sentence, but

in this case we find that the Magistrate has held that the

appellant's plea that he was ignorant of the provisions of

the Assam Food Grains Control Order, 1947, was a genuine

one. Having regard to this circumstance and the fact that

from a fine of Rs. 50 to 6 months' rigorous imprisonment and

a fine of Rs. 1,000 is a big jump, we think it is

appropriate that the sentence of imprisonment imposed by the

High Court should be set aside and we order accordingly.

The fine of Rs. 1,000 will stand.

Sentence reduced. Agent for the appellant: Rajinder Narain.

Agent for the respondent: Naunit Lal.