Bombay High Court
H.H.B. Gill And Anil Lahiri vs Emperor on 1 January, 1800
Equivalent citations: (1947)49BOMLR266
JUDGMENT Zafrulla Khan, J.
1. This case has had a chequered history.
2. The facts, so far as they are material at this stage, are these. The appellant Gill is an Army Officer and was between March 1941 and July 1942 Deputy Assistant Director of Contracts and Deputy Controller of Purchase at Calcutta, and in that capacity was responsible for the issue and acceptance of tenders for purchase of materials on behalf of certain Departments of Government. The appellant Lahiri was a contractor for the supply of such materials.
3. On February 25, 1943, a complaint was filed by a Deputy Superintendent of Police in the Court of the Chief Presidency Magistrate, Calcutta, alleging that between March 1941 and July 1942, Gill and Lahiri were parties to a criminal conspiracy to cheat the Government of 'India by dishonestly or fraudulently inducing its officers to pay larger sums of money than would otherwise have become due to Lahiri in respect of contracts for the supply of materials placed with Lahiri's firm by Gill on behalf of Government, and that in pursuance of this conspiracy Lahiri had on various occasions made payments to Gill. The complaint was accompanied by the consent of the Governor-General acting in his discretion under Section 270 (1) of the Constitution Act to the institution of criminal proceedings against Gill for offences punishable under Section 161 and Section 120B read with Section 420 of the Indian Penal Code. There was also exhibited the sanetion of the Governor-General in Council under Section 197 of the Code of Criminal Procedure to the prosecution of Gill for the same offences. The consent of the Chief Presidency Magistrate under Section 196A(2) of the Code of Criminal Procedure to the initiation of the proceedings was also filed.
4. On May 4, 1943, the Chief Presidency Magistrate framed a charge against Gill and Lahiri under Section 120.B read with Section 420 of the Indian Penal Code and a charge against Gill under Section 161 of the Indian Penal Code in respect of one particular payment of Rs. 500 and a charge against Lahiri under Section 109 read with Section 16.1 of the Indian Penal Code in respect of the same amount of Rs. 500.
5. The object of the criminal conspiracy which was the subject-matter of the first charge was "to cheat the Govrnment of India in the Department of Supply by dishonestly or fraudulently inducing its Financial Officers to pay larger sums of money than due (in respect of specified contracts) by means of false representation regarding...the rates quoted (by Lahiri's firm) and character and capacity of supply made by them in preference to those of other firms,"
6. On the conclusion of the trial the learned Magistrate found that a conspiracy to cheat Government was not established. With reference to the charges under ss. 161 and 161/109 he found that though the payment of the amount set out in the charge was admitted by Gill, there was something to be said for the explanation that he had offered as to the consideration for which the payment had been made to him. On these findings he acquitted both, accused on. all the charges.
7. Against the acquittals the Crown carried an appeal to the High Court at Calcutta which was decided on December 8, 1944. The learned Judges of the High Court agreed with the learned Magistrate that the evidence led in support of the conspiracy charge did not establish that charge, but held that the proper charge should have been one of conspiracy to give and receive bribes. They, therefore, set aside the order of acquittal and remanded the case to the Chief Presidency Magistrate for trial "on an amended charge of conspiracy to give and receive bribes and also on the charges under Sections 161 and 161/109 of the Indian Penal Code as previously framed."
8. The case then went back to the Chief Presidency Magistrate who on June 22, 1945, charged Gill and Lahiri under Section 120B read with Section 161 of the Indian Penal Code with being parties to a criminal conspiracy between March 1941 and July 1942 with the object of Lahiri giving and Gill accepting gratifications other than legal remuneration in the matter of Lahiri's contracts as specified, and also framed separate charges against Gill and Lahiri under Sections 161 and 161/109 of the Indian Penal Code respectively with respect to the payment of Rs, 500. The trial proceeded on these charges. In the end the learned Magistrate found that all the payments alleged to have been made by Lahiri to Gill were proved. He disbelieved Gill's explanation with regard to the payment of Rs. 500. He did not think, however, that the evidence warranted the, definite conclusion "that there was anything improper done in the sense that Government incurred any loss or that Lahiri obtained any contract which he ought not to have obtained." He felt that in that view he would not be justified in convicting the accused under Sections 161 and 120B/161 and considered it "safer" to convict Gill of an offence under Section 165 and Lahiri of one under Sections 165, 109 of the Indian Penal Code (presumably in respect of the payment of Rs. 500 though this is left in some doubt in his judgment) and both Gill and Lahiri of the offence of criminal conspiracy under Section 120B read with Section 165 of the Code. He sentenced each of them to simple imprisonment for three months and a fine of Rs. 210 under Sections 165 and 165/109 and passed no separate sentence under Sections 120B/165. His order is dated August 13, 1945.
9. On appeal to the Calcutta High Court the learned Judges gave the appellants the benefit of doubt with regard to the consideration for the payment of Rs. 500 and set aside the convictions under Sections 165 and 165/109. They also gave them the benefit of doubt with regard to one particular item out of the remaining payment, but held that the rest of the payments were established and that they were without consideration. They consequently upheld the convictions under Section 120B read with Section 165 and maintained the sentence of imprisonment passed upon each of the appellants but remitted the fines. Their judgment was pronounced on April 12, 1946.
10. Before the High Court objection was taken on behalf of Gill that his trial was bad for the reason that the consent of the Governor-General under Section 270(1) of the Constitution Act to the institution of proceedings against him under Section 120B read with Section 161 had not been given. The High Court repelled the contention holding that the matter was concluded by the judgment of this Court in Lieutenant Hector Thomas Huntley v. King Emperor [1944] F.C.R. 202.
11. Section 205(1) of the Constitution Act enjoins upon every High Court the duty to consider in every case whether or not any substantial question of law as to the interpretation of the Constitution Act or any Order in Council made thereunder is involved and of its own motion to give or to withhold a certificate accordingly. The judgment of the High Court in this case is silent as to any such question being involved. It was stated before us that Gill's legal advisers construed the absence of any such reference in the judgment of the High Court as a withholding of the certificate. If the learned Judges of the High Court were of the opinion that the constitutional question argued before them was clearly covered by a judgment of this Court, they might well have taken the view that the question was no longer a substantial one within the meaning of Section 205(1) and that consequently no certificate should be given. Gill was, therefore, advised to move His Majesty in Council for special leave to appeal against the order of the High Court. This motion was made on July 18; but the Judicial Committee declined to entertain the motion on the ground that the High Court should have been asked to consider the question whether a substantial question of law as to the interpretation of the Constitution Act was or was not involved in the case. As a consequence, an application was made to the High Court on August 12 for the grant of a certificate under Section 205. On August 22 the learned Judges of the High Court made the following order:-
A certificate under Section 205 (1) of the Government of India Act, 1935, is applied for and granted.
An application for a copy of this order was made on August 26 and the copy was supplied on September 4.
12. Armed with the certificate Gill and Lahiri lodged their appeals in this Court; the former on October 1, and the latter on October 7, (October 2 to 6 being Court holidays).
13. On the face of them the appeals when lodged were barred by time under the relevant Rules of this Court and the appellants, therefore, filed an application praying that the period of limitation may be extended under Section 5 of the Indian Limitation Act. At the hearing counsel for the Crown intimated that he did not desire to press the question of limitation. Having regard to the course of events set out above we were satisfied that the appellants had sufficient cause for not preferring their appeals within the prescribed time. We accordingly admitted the appeals.
14. The only constitutional question raised before us was that Gill's trial on the charge framed against him under Sections 120B/161 on June 22, 1945, was bad for want of the consent of the Governor-General under Section 270(1) of the Constitution Act. We are unable to accede to this contention. In our judgment the consent of the Governor-General, dated January 28, 1943, to the institution of criminal proceedings against Gill "for having committed during the years 1941 and 1942 offences punishable under Section 161 and Section 120B read with Section 420 of the Indian Penal Code" was a sufficient compliance with the requirements of Section 270 (1) of the Constitution Act for the purposes of this case and no further or fresh consent was necessitated by the order of the High Court of December 8, 1944, whereby the case was remanded for retrial on fresh charges. It makes no difference that the Magistrate framed a fresh charge in pursuance of the direction of the High Court. The institution of the proceedings having been consented to by the Governor-General under Section 270(1) of the Constitution Act, the subsequent course of the proceedings would be governed by the relevant provisions of the Code of Criminal Procedure. The objection in respect of the amended charge is also effectively met by the reason relied upon by the High Court for overruling it, namely, that no consent under Section 270(1) is required for the institution of proceedings in respect of an offence under Section 120B read with Section 161 inasmuch as an agreement by a public servant to receive illegal gratification and the receipt of such gratification by him cannot be said to be acts done or purporting to be done in the execution of duty. [See Huntley's case.]
15. Two other questions were argued before us with our leave. It was urged that Gill's trial was vitiated by want of sanction under Section 197 of the Code of Criminal Procedure in respect of an offence under Sections 120B/161 of the Indian Penal Code. Here too, the contention was that inasmuch as the sanction of the Governor-General under that section was confined to the prosecution of Gill "for having committed during the years. 1941 and 1942 offences punishable under Section 161 and Section 120B read with Section 420 of the Indian Penal Code", it was not adequate to cover a charge under Section 120B read with Section 161.
16. Section 197 lays down that "when any public servant... .is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of" the prescribed authority.
17. It was urged on behalf of the Crown that no sanction under this section was required as the offence charged against Gill under Sections 120B/161 was not committed by him while acting or purporting to act in the discharge of his official duty. We consider it unnecessary to enter upon a discussion and determination of that question, as in our judgment the sanction of the Governor-General in Council, dated February 3, 1943, enabled the learned Chief Presidency Magistrate to take cognizance of the offences set out in the sanction, and cognizance having properly been taken, the subsequent course of the proceedings would be regulated by the relevant provisions of the Code of Criminal Procedure. The mere fact that at the stage of framing charges against the accused the Magistrate came to the conclusion that on the basis of the evidence recorded, charges ought to be framed under Section 161 and Section 120B read with Section 161 instead of under Section 161 and Section 120B read with Section 420, would not render the sanction already granted nugatory and invalidate the Magistrate's action in taking cognizance of the offences set out in the sanction. It is again immaterial that fresh charges were framed in pursuance of the, direction of the High Court. We consider therefore that the trial of Gill on the charge under Sections 12013/161 was not rendered illegal for want of sanction under Section 197 of the Code of Criminal Procedure.
18. Next it was argued that the learned Magistrate was not legally competent to record a conviction under Sections 120B/165 when the charge was in respect of an offence under Section 120B read with Section 16.1. We do not think this contention has any force. The charge under Sections 120B/161 was one of conspiracy to give and receive illgal gratifications with the motive that favour shall be shown to the person giving the illegal gratifications in respect of business in which he was concerned and which was about to be transacted by the person receiving the illegal gratifications in his capacity as a public servant. To establish this charge it was necessary to prove (1) that Laliiri and Gill had entered into an agreement in pursuance of which payments were to be made and were in fact made by Lahiri to Gill, (2) that these payments were without lawful consideration, (3) that Gill received the payments knowing that Lahiri was concerned in business which Gill was transacting or was about to transact in his capacity as a public servant, and (4) that the motive for the payments was that Gill should show favour to Lahiri in transacting the business. If the first three elements were proved but the motive was not proved, an offence under ss. 120B/16.1 would not be brought home to the accused, but they would nevertheless be guilty of an offence under Sections 120B/165. The evidence did not satisfy the learned Magistrate that favour was actually shown. This did not mean that the illegal gratification was not given and received with the motive that favour should be shown; but the learned Magistrate thought that it would not be safe on his finding to convict the appellants of an offence under Sections 120B/161. As, however, it was proved to his satisfaction that in pursuance of an agreement entered into between them payments were to be made and had been made by Lahiri to Gill and that Gill had received the amounts without lawful consideration knowing that Lahiri was concerned in business which Gill was transacting or was about to transact in his capacity as a public servant, he proceeded to convict them of offences under Sections 120B/165. In our judgment he was justified by the provisions of Section 238 of the Code of Criminal Procedure in adopting this course.
19. No other question was raised before us.
20. The appeals are dismissed. The appellants will now surrender to their bails and serve out their sentences.