SHIVKALI GOSWAMI Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision by Sheokali Goswami against his conviction under Section 161, Indian Penal Code, by a Special Tribunal constituted under Ordinance 29 of 1943. The tribunal sentenced the applicant to 2 1/2 years rigorous imprisonment and a fine of ns. 500. In default of the. payment of fine, the applicant was ordered to undergo rigorous imprisonment for a further term of six months.

(2.) The applicant was posted as chief goods clerk at Shahjahanpur railway station and the charge against him was that he on 15 July 1943, when posted as chief goods clerk and thus directly concerned in that capacity with transport of goods, in his capacity as a public servant as such, obtained Rs. 100 as illegal gratification from one Abdul Hakim in respect of five wagons, booked for Abdul Hakim, in June a July, 1943, for transport of bones, and thereby committed an offence punishable under Section 161, Indian Penal Code. Even though the offence was alleged to have been committed in the province of Agra, the applicant was, in view of the provisions of Ordinance 29, tried by a Special Tribunal at Lahore. The tribunal, in conformity with the provisions of Section i of the Ordinance, consisted of three members, one of whom was an officer of His Majesty's forces and was a barrister of not less than five years standing and one at least of the remaining two members was qualified for appointment as a Judge of the High Court. The tribunal delivered a remarkably good judgment in the course of which it subjected the evidence both for the prosecution and for the defence to a critical examination and marshalled the facts with conspicuous ability. It arrived at the conclusion that the charge was brought home to the applicant and accordingly convicted him.

(3.) Sir Tej Bahadur Sapru who appeared for the applicant assailed the conviction of the applicant, firstly, on the ground that the Ordinance was ultra vires the ordinance, making authority of the Governor-General, and, secondly, he urged that the conviction was bad in law as it was based on inadmissible evidence. The validity of the Ordinance was challenged on two alternative grounds. It was contended that the Ordinance was ultra vires because it contravened the provisions of the Letters Patent which constituted this High Court as a Court of criminal appeal and criminal revision and, in this connexion, it was urged that the power vested in the Governor-General by Section 72 of Schedule 9, Constitution Act, is not wide enough to justify interference with the criminal jurisdiction exercised by this Court under the Letters Patent. In the alternative he impugned the validity of Section 8 of the Ordinance which gives revisional jurisdiction to this Court on the ground that the jurisdiction thus conferred was in excess of the revisional jurisdiction conferred by the Letters Patent, and maintained that the provisions enacted by Section 8 being inseparable from the other provisions contained in the Ordinance, the whole Ordinance was ultra vires. In my judgment there is no force in these contentions.