EMPEROR Vs. LUMBHARDHAR ZUTSHI

JUDGEMENT

(1.) THIS is an appeal by accused No.1, Lumbhardhar Zutshi, from a conviction by the Chief Presidency Magistrate under Section 161 of the Indian Penal Code, 1860, that is to say, the receipt of illegal gratification by a Government servant, and the sentence of two years' rigorous imprisonment passed on him on June 19, 1946. Accused No.2, Chimanlal Mohanlal, who was charged with abetment of the offence of accepting illegal gratification, was also convicted, but was sentenced to one day's simple imprisonment and a fine of Rs. 1,000 by the Chief Presidency Magistrate. He has not preferred any appeal; no doubt, that is because of the lightness of his sentence, in itself difficult to understand as the Chief Presidency Magistrate has described the offence committed by him as being, "no less heinous than accused No.1". We intend to give certain directions with regard to accused No.2 at the conclusion of this judgment.

(2.) MR. M. C. Setalvad, who appears in this Court for the appellant, submits, two main grounds of appeal, first, that the whole proceedings before the Chief Presidency Magistrate were invalid and ineffectual because no sanction to the prosecution was ever given by the Governor General in Council under Section 197 of the Criminal Procedure Code, and that accordingly the whole proceedings must be quashed and the conviction and sentence of accused No.1 set aside; secondly, if this first point fails, then there is an appeal on the facts and the merits of the case. The only point, which has so far been argued before us, and which is dealt with by this judgment, is the first ground of appeal, which is primarily a question of law. If the appellant succeeds on this first submission, then the second ground of appeal would not arise at all.

(3.) THE whole of this Notification is concerned with the regulation and control of non-ferrous metals, and the facts, briefly stated, with reference to the charge against the appellants are these. Having discovered that one Balwantram was in breach of the Notification, the appellant, through the intermediary of the second accused, accepted a bribe in order to hush up the prosecution of Balwantram. THE actual form of the charge being that on March 8, 1948, at Bombay, being a public servant; You directly accepted from Chimanlal Mohanlal (accused No.2) for Balwantram the sum of Rs. 15,000 as a gratification, other than legal remuneration as a motive for forbearing to do an official act, viz. the prosecution of Balwantram Gangaram Vakharia, and thereby committed an offence punishable under Section 161 of the Indian Penal Code and within my cognizance.