LUMBHARDAR ZUTSHI Vs. KING

JUDGEMENT

(1.) ON June 19, 1946, the appellants were convicted and sentenced by the Chief Presidency Magistrate, Bombay. The charge against appellant No.1 was that he, being a public servant, accepted a sum of Rs. 15,000 for forbearing to prosecute a metal merchant named Vakharia and thereby committed an offence punishable under Section 161 of the Indian Penal Code. Appellant No.2 was charged with abetting that offence. An appeal by appellant No.1 to the High Court at Bombay was dismissed on March 20, 1947. It appears from the judgment of Stone C. JK that there were two grounds of appeal: first, that the whole proceedings were invalid because" no sanction had been given under Section 197 of the Criminal Procedure Code, and, secondly, an appeal on the facts. Appellant No.2 did not appeal to the High Court, but notice of enhancement of sentence was given to him and his sentence was increased on March 20, 1947.

(2.) ON April 21, 1947, a petition for special leave to appeal was lodged by appellant No.1. In this petition no reference was made to anything which had occurred before March 15, 1944, when the charge against the appellant was framed by the Chief Presidency Magistrate : it was narrated that the two main grounds of appeal to the High Court had been the invalidity of the whole proceedings because no sanction to the prosecution had been given and that on the merits of the case the appellant had been wrongly convicted. It was then stated - The grounds upon which your petitioner seeks leave to appeal are : (i) that the Chief Justice and Mr. Justice Lokur erred in holding that sanction was not required to empower the Court to take cognizance of the charge against your petitioner, that the Court which tried him was in these circumstances without jurisdiction and that his conviction is therefore a nullity and (ii) that there is a conflict of judicial opinion in India as to the true construction of Section 197, in particular as to whether sanction is required where a charge of taking a gratification is brought against a public servant and that it is fitting that this conflict should he settled by the judgment of the Judicial Committee.

(3.) WHEN leave to appeal was granted to the appellants it was still an open question whether sanction under Section 197 of the Criminal Procedure Code was necessary before a public servant could be prosecuted for an offence under Section 161 of the Indian Penal Code. It has now been settled by their Lordships' judgment in Gill v. The King (1948) L. R. 75 I. A. 41 : s. c. 50 Bom. L. R. 487 that sanction is not necessary and accordingly the appellants cannot succeed on the grounds of appeal set out in their petitions for leave to appeal. Their counsel argued this appeal on an entirely different ground which is not even referred to in the judgments of the High Court, although a preliminary objection raising a somewhat similar point was taken unsuccessfully before the Chief Presidency Magistrate. Their Lordships would only be prepared to allow such an argument in an exceptional case. In the present case it was argued that the new ground of appeal raised a question of jurisdiction, and their Lordships permitted the argument to proceed. The argument was that the trial and conviction of the appellants were void because the police investigation which led up to the trial was conducted illegally. This was a non-cognizable case and Section 58 (2) of the Bombay City Police Act, 1902, provides that no police-officer shall investigate a non-cognizable case without the order of a Presidency Magistrate. There was an order by the Chief Presidency Magistrate in this case, but it was submitted that this order was invalid because the Magistrate was bound before making such an order to comply with the requirements of Section 202 (1) of the Criminal Procedure Code and he had not done so.