LUMBHARDAR ZUTSHI Vs. KING

JUDGEMENT

(1.) On 19 June 1946, the appellants were convicted and sentenced by the Chief Presidency Magistrate, Bombay. The charge against appellant 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 S. 161, Indian Penal Code. Appellant 2 was charged with abetting that offence. An appeal by appellant 1 to the High Court at Bombay was dismissed on 20 March 1947. It appears from the judgment of Stone, C. J., that there were two grounds of appeal: first that the whole proceedings were invalid because no sanction had been given under S. 197, Criminal P. C., and secondly an appeal on the facts. Appellant 2 did not appeal to the High Court, but notice of enhancement of sentence was given to him and his sentence was increased on 20 March 1947.

(2.) On 21 April 1947, a petition for special leave to appeal was lodged by appellant 1. In this petition no reference was made to anything which had occurred before 15 March 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 Lokur, J. 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 S. 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 be settled by the judgment of the Judicial Committee."

(3.) On this petition leave to appeal was granted by Order in Council of 21 May 1947. On 27 May 1947, a petition for special leave to appeal was lodged by appellant 2. The grounds of appeal stated in this petition were : "that your petitioner submits that the trial of the said Lambhardar Zutshi without previous sanction of the Governor-General in Council under S. 197, Criminal PC, was without jurisdiction, that, therefore, the trial of your petitioner jointly with him for abetment of the offence alleged to have been committed by the said Zutshi was also illegal, and that the conviction and sentence passed upon your petitioner should be set aside."