NISHAN SINGH HARNAM SINGH Vs. STATE

JUDGEMENT

(1.) Nishan Singh, a clerk in the office of the Deputy Commissioner, Gurdaspur, was charged under Section 161, Penal Code and Section 5(1)(d) of the Prevention of Corruption Act for having on 21-5-1952, accepted from Darshan Singh a sum of Rs. 12/- as gratification other than legal remuneration as a motive for rendering service to him by helping him to obtain certain copies and also to have been guilty of criminal misconduct in the discharge of his duties. He was found guilty by the Special Judge trying the case under the pro visions of the Prevention of Corruption Act, 1947, as amended, of both charges and was sentenced to six months' rigorous imprisonment under each charge, the sentences to run concurrently. He has appealed.

(2.) There is one point of considerable importance in this case for which I consider that this case should be referred to a Division Bench. The facts are that this case was originally sent up for trial before the Additional District Magistrate, Gurdaspur. 'The challan was put before him on 2-6-1952'. He examined the first witness on 47- 1952. On 8-8-1952 prosecution evidence was closed. During this interval the criminal Law Amendment Act XLVI of 1952. came into force on 28-7-1952. Under the provisions of this Act offences 'punishable under Section 161, Indian Penal Code, and punishable under Sub-section (2) of Section 5, Prevention of Corruption Act could' only be tried by Special Judges. The Additional District Magistrate therefore on 7-10-1952 sent the case to the Special Judge. I suppose the case was not sent earlier because there was no notification appointing a Special Judge till 5-9-1952. 'By Notification No. 7782-JJ52/ 3980, dated 5-9-1952, published in the Punjab Gazette on the 12-9-1952 all Sessions Judges in the State were appointed Special Judges for the trial of cases under the Prevention of Corruption, Act. This notification was issued' under Clause (2) of Section 6, Criminal Law Amendment Act, XLVI of 1952. When the case came before the Sessions Judge as Special Judge he went on adjourning it without recording any evidence. Eventually on the 29th of May 1953 there is an order by the Judge sending the case to the Additional Sessions Judge who during this interval had also, been appointed as a Special Judge. There is a notification No. 10576-JJ-52/17944, dated 6-11-1952, published in the Punjab Gazette of 14-111952, by which all Additional Sessions Judges were appointed Special Judges to try cases under the Prevention of Corruption Act. This having been done the Addl. Sessions Judge as a Special Judge began to try this case. He began examining witnesses on the 4-6-1953. On 13-7-1953 all defence witnesses were examined except one. That one was examined on 21-7-1953. Thereafter judgment was delivered by the Special Judge on 30-7-1953. During the interval that the Additional Sessions Judge was trying the case as a Special Judge it seems to have, been brought to somebody's notice that cases cannot be transferred by the Sessions Judge to the Additional Sessions Judge. Under Section 7, Clause (2), Criminal Law Amendment' Act, it is provided that every offence specified in Sub-section (1) of Section 6 shall be tried by the Special Judge for the area within which it was committed, or where there are more Special Judges than one for such area, by 'such one of them as may be specified in this behalf by the State Government'. Attention of the State Government was drawn by the Registrar of this Court by a letter of 10-6-1953 that Government should take steps to make the allocation of cases to the Additional Sessions Judges. Thereafter lists were prepared of the various Additional Sessions Judges who had been made Special Judges and of the various cases that were pending in various districts. On '20-7-1953 by letter No. 9891-JJ-53/49958' the Home Secretary to the Punjab Government wrote to the Registrar of this Court allocating various cases to various Judges specifying them as 1st and IInd Additional Sessions Judges as the case may be. The present case is allocated to Mr. Tirath Das Sahgal, the Addl. Judge. The point that has been argued in this case is that at the time when the present Special Judge Mr. Tirath Das Sehgal began the proceedings in the present case which was on 4-6-1953 there had been no allocation of the present case to him by the State Government and as there was no allocation to him by the State Government it is argued that the 'proceedings before him were void.' The letter of the Home Secretary dated 20-7-1953 appears on the scene towards the end of the proceedings before the Special Judge. A copy of the Home Secretary's letter Is sent to the Sessions Judge on 24-7-1953. It is argued that it cannot possibly 'cure the initial' defect that had existed when the Special Judge Mr. Tirath Das Sehgal began to take cognizance and to record evidence in this case.

(3.) On behalf of the appellant attention is drawn to a ruling of their Lordships of the Privy Council in -- 'Nusserwanjee Pestonjee v. Meer Mynoodeen Khan', 6 Moo Ind App 134 (PC) (A). At p. 155 their Lordships say- "The present question turns upon this principle, that wherever Jurisdiction is given to a Court by an Act of Parliament, or by a Regulation in India (which has the same effect as an Act of Parliament), and such jurisdiction is only given upon certain specified terms contained in the Regulation itself, it is a universal principle that these terms must be complied with, in order to create and raise the Jurisdiction, for if they be not complied with, the jurisdiction does not arise." Their Lordships then went into the facts of the ease with which they were dealing which was the matter of an award. The arbitrators could have taken cognizance of the award only on certain conditions and their Lordships found that those conditions not having been fulfilled as specified by the Regulation under which they were acting the whole proceedings were bad. It is argued that this case decided by their Lordships of the Privy Council coincides with the present case.