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PETITIONER: BAKHSHISH SINGH DHALIWAL

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 31/08/1966

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA RAMASWAMI, V. DAYAL, RAGHUBAR

CITATION:  1967 AIR  752            1967 SCR  (1) 211  CITATOR INFO :  R          1983 SC 610  (8)

ACT: Criminal  Procedure Code, ss. 233, 234, 197, 342-Joinder  of trials and charges-Joint trial with Government official  for whose  prosecution sanction not obtained-Validity of  trial- Examination  of accuseed-Each item of evidence whether  need be put to accused. Indian   Penal  Code,  ss.  417,  420--Bills  submitted   to Government-Dishonestly passed by Government officers-Payment whether  results  from  Submission  of  false   bill-Offence whether under s. 417 or s. 420 ? Ordinance  29  of  1943-Section  72  of  Tenth  Schedule  to Government  of  India Act, 1935-India and  Burma  (Emergency Provisions Act) 1940 (3 & 4 Geo. 6, Ch. 33), s.  1(3)-Punjab Ordinance   III   of  1946  S.  3,  (3)Punjab   Act   X   of 1950--Constitution,   continuance  and   reconstitution   of Special Tribunal. Indian  Evidence Act, 1872, s. 35-War Diaries maintained  by army officer--Whether admissible under section.

HEADNOTE: The appellant, a contractor was tried for offenses under  s. 420 Indian Penal Code in respect of false bills submitted by him to the Evacuee Government of Burma located at Simla  for work  done  during  World War 11, Ten  charges  were  framed against  the appellant and four trials were held in  respect of  these  charges.   The appellant  was  convicted  by  the Special  Tribunal of all the ten charges but the High  Court convicted him only in respect of three.  In appeals to  this Court on certificate,  HELD: (i) It could not be said that by sending twenty bills under  one covering letter the appellant had made  only  one representation.  The claims related to a number of works  or supplies  of raw materials.  A representation in respect  of each  different work or each different supply  of  materials would be a separate and distinct representation from the one relating  to another work carried out or supply  made.   The holding   of  four  trials  in  respect  of  the   different representations was therefore in order. [215 H; 216 D] (ii) When  one claim was made in respect of supplies to  two

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places  there could be only one charge, in respect  of  that claim, and the trial of such a charge with two other charges was therefore proper. [216 G] (iii)     ’Me   officers  who  verified  the   bogus   bills submitted by the appellant could certainly be held guilty of abetting  the appellant.  But it could not be said that  the payments that were made to the appellant were not  connected with or induced by the representations made by the appellant himself   or  in  his  bills.   In  fact,  it   were   those representations by the appellant which ultimately culminated in the Government of Burma parting with the money to satisfy those claims put forward by the appellant.  The finding that the appellant was guilty of cheating in these  circumstances was fully justified. [217 D-G] Mita Prasad v. Emperor, (1920) 18 A.L.J. 371, distinguished. 212 (iv) In  every case where property is delivered by a  person cheated. there must always be a stage when the person  maker up  his  mind to give the property on  accepting  the  false representations made to him, It cannot be said that in  such cases  the person committing the offence can only be  tried, for  the simple offence of cheating under s. 417 I.P.C.  and cannot  be  tried under s. 420 because  the  person  cheated parted with his property subsequent to making up his mind to do so. [218 B] (v)  The  joint  trial  of the appellant  with  one  of  the officers  who sanctioned his bills was not vitiated by  lack of  sanction  under  s.  197 Cr.  P.C.  because  an  officer abetting  the offence of cheating by another cannot be  said to  be  acting  within the scope of  his  duties  as  public servant. [219 D] K.   Satwant  Singh V. State of Punjab [1960] 2  S.C.R.  89, relied oil. Sunil  Kumar Paul v. State of West Bengal, A.I.R. 1965  S.C. 706, distinguished. No, de novo trial was necessary after the separation of  the appellant’s trial from that of the said officer.  So, far as the  appellant  was concerned the entire  trial  took  place while  he  was  present and the fact that  the  officer  was jointly  tried  with him for some time did not  in  any  way affect the appellant. [219 G] (vi) Ordinance  29 of 1943 under which the Special  Tribunal was  constituted did not expire within six months  of  being issued.  It was not affected by the provision to that effect contained  in s. 72 of the Ninth Schedule to the  Government of  India  Act,  1935 because the operation  of  s.  72  was suspended  by  s.  1(3) of the India  and  Burma  (Emergency Provisions)  Act, 1940.  The Ordinance expired, as  held  in J.K.  Gas Plant Manufacturing Co. (Rampur) Ltd. and Ors.  v. The  King  Emperor, on 30-9-1946.  Thereafter  the  Tribunal functioned  competently  under the Punjab Ordinance  III  of 1946 and Punjab Act X of 1950., [220 D, E] (vii)     Under  sub-s. (3) of s. 3 of punjab Ordinance  III all notifications issued, and all rules made, by the Central Government  under s. 3 sub-s. (3) of s. 4 and s. 11  of  the Ordinance of 1943, so far as they applied to Tribunals, were to  continue  in force until superseded or modified  by  the Punjab Government under the Punjab Ordinance.  Consequently, notifications issued by the Central Government under s. 3 of the  Ordinance  of 1943 constituting- the  Special  Tribunal could  be superseded or modified by the  Punjab  Government. When the Punjab Government appointed two members in place of the   two   original  members  appointed  by   the   Central Government,   the  former  only  exercised  the  powers   of modifying the notification issued by the Central  Government

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as  the order of appointment amounted to  reconstitution  of the Tribunal already constituted by the Central  Government. During  the  period when there was only one member  and  the requirement  of law was that the Tribunal should consist  of three members, no proceedings were taken by the Tribunal for continuing  the trial of the appellant.  It was  only  after the   appointment  of  two  other  members,  including   the President,  that  the Tribunal took up the  trial.   Further when  the  Tribunal  later on  functioned  with  one  single member, the law had already been altered by Punjab Act X  of 1950 which laid down that the Tribunal was to consist of one member  only.  The Tribunal thus at each stage was  properly constituted and functional competently. [221G-222C] (viii)    The  War Diaries which had been used  in  evidence were records of official acts and in fact there was specific evidence of witnesses that 21 3 these  were  required  to  be  maintained  under  the  rules applicable  to the units of the army which maintained  these diaries.  The diaries were therefore admissible under s.  35 of  the Evidence Act as records of official acts  and  there was no error in admitting them in evidence. It was not necessary to put the War Diaries specially to the accused  in his examination under s. 342 Cr.   P.C.  because that  section requires circumstances appearing  in  evidence against the accused and not every piece of evidence in proof of those circumstances to be put to the accused. [224 F; 225 C-E]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal Nos.  150 and 151, 196 to 199 of 1962. Appeals from the judgment and order dated March 21, 1962  of the Punjab High Court in Criminal Appeals Nos. 478 and  479, and 41, 176, 478 and 479 of 1949 respectively. Hira  Lal  Sibal,  J. C. Talwar and R.  L.  Kohli,  for  the appellant  (in  Cr.  As No,,. 150 and 151 of 1962)  and  the respondent (in Cr.  As. Nos. 196 to 199 of 1962). Purshottam Tricumdas, K. C. Chawla, and R. N. Sachthey,  for the  respondent (in Cr.  As.  Nos. 150 and 151 of 1962)  and the appellant (in Cr.  As.  Nos. 196 to 199 of 1962). The Judgment of the Court was delivered by Bhargava,  J.  These  six appeals, filed  on  the  basis  of certificates granted by the High Court of Punjab, arise  out of  a single judgment of that Court, and consequently,  they have been heard together.  Two of the appeals Nos. 150 & 151 of  1962  have been brought up by Bakhshish  Singh  Dhaliwal (hereinafter  referred  to as "the appellant")  against  his convictions on three different charges of cheating under  s. 420  of the Indian Penal Code which were upheld by the  High Court.  The remaining four appeals Nos. 196-199 of 1962 have been  filed by the State of Punjab against the acquittal  of the  appellant  in respect of offenses of cheating  on  some other counts recorded by the High Court. There  were  all  together  four  trials  before  a  Special Tribunal originally constituted under Ordinance 29 of  1943. In  these four trials, the appellant was charged for  having committed  ten  different  offences of  cheating  by  making representations  to  the Government of Burma  and  obtaining payments  of money to the extent of over Rs. 6  lakhs  which included  payments  in respect of works which had  not  been carried  out by him as a contractor, though he claimed  that the  work  had been done and he was entitled to  payment  in

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respect of those works. The  facts  which  are relevant for the  decision  of  these appeals fall under a very short compass.  In the year  1942, the  Government  of Burma and the  Allied  Forces  operating there  were  compelled  to leave Burma as a  result  of  the Japanese invasion.  For purposes 214 of  evacuation from Burma and the defence of  that  country, the Government of Burma and the army had to execute  certain works  of the nature of construction of roads,  repairs  and construction of bridges, strengthening and repairing of  old tracks and converting railway lines into motor roads.   Some of  these  works  were executed by the  army  itself,  while others were entrusted to contractors. After the evacuation, the Government of Burma was located at Simla.   Due to the disturbed conditions, no  exact  records were ,available of the works done by the various contractors and  consequently, in August 1942, the Government  of  Burma issued  ail advertisement inviting claims  from  contractors who  had executed works or had supplied materials  in  Burma during this period and had not yet been paid. The  appellant  submitted a number of claims in  respect  of various  works which he claimed had been executed by him  as well  as for supply of materials.  These claims were in  the form of bills and were in respect of works which he  claimed had been carried out under the instructions of various units of  the  army.  These bills were sent  for  verification  to three different Officers, Henderson, Nasse and Karam ’Singh; and  after  -their verification, payments were made  to  the appellant  in respect of those bills.  In one or two  cases, the  payments  were only partial; while in other  cases  the entire  claims  as recommended by those officers  were  paid off. In  the case of the appellant, it was found that he had  put in 20 claims for various works alleged to have been done  or materials  supplied.  Sixteen of these claims aggregated  to an  amount  of  Rs. 16,31,808/ out of which  a  sum  of  Rs. 6,87,173/ was paid by means of cheques issued by the  office of  the  Controller of Military Accounts  working  with  the Burma Government situated at Kohlapore.    Subsequently, suspicions of the Government of Burma  were aroused  concerning  many  of the  claims  made  by  various contractors including the claims made by the appellant,  and it  was  discovered that some of the claims were  false  and bogus.   Consequently, further investigations were made  and thereafter  the appellant was prosecuted in respect  of  ten different charges.  Since there were a number of such  cases to  be tried, Special Tribunals were constituted by  issuing Ordinance  No. 29 of 1943; and two of these  Tribunals  were located  at  Lahore.  The cases against the  appellant  were entrusted to one of these Tribunals. Before  the Tribunal, the ten charges aganist the  appellant were given Cases Nos. 21 to 26 and 31 to 34.  Some of  these cases  were,  however, tried together with the  result  that ultimately,  there were four trials in which  the  appellant was  tried  in respect of these ten ,charges.   The  Special Tribunal  convicted  the appellant in respect  of  -all  the charges; but on appeal, the High Court upheld the conviction                             215 in  respect of three charges only.  These charges were  part of  charge  No.  21, charge No. 22 and charge  No.  26.   In respect  of  the other charges, the High  Court  recorded  a finding that the prosecution had failed to prove beyond  all reasonable  doubt  that  the  claims  put  forward  by   the appellant were bogus and in respect of works not done by him

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or materials not supplied by him, so that the appellant  was given the benefit of doubt and acquitted. The  appellant was tried for charges Nos. 21, 22 and  23  in the  one single trial by the Special Tribunal, while  charge No.  26  was the subject-matter of a different  trial.   His conviction  in respect of part of charge No. 21, charge  No. 22  and charge No. 26 having been upheld by the High  Court, the appellant has thus filed two appeals Nos. 150 & 151/1962 in  this Court.  He was acquitted of part of charge  No.  21 and charge No. 23 which were tried together with charge  No. 22  in  one trial; and similarly, he has been  acquitted  of other  charges  also in the other three  trials.   The  four State  appeals  before  us  are  against  these  orders   of acquittal  recorded  by  the High Court in  respect  of  the charges  which  were the subject-matter  of  four  different trials. A  number  of points of law have been argued  before  us  on behalf  of  the appellant in the two appeals filed  by  him. The first point which was very strenuously pressed was  that the  appellant had been very seriously prejudiced by  having been  tried  in  four  different cases  in  respect  of  ten different  charges  when, in fact, all that he  did  was  to submit  a  set of bills together and had not  made  any  ten different false representations which might have induced the Burma Government to make payments to him.  Our attention was invited  to  letter Ext.  DR dated 3rd  November,  1942,  to support  the contention that all the claims put  forward  by the  appellant were submitted with this letter together  and consequently,   should   be   held  to   form   one   single representation. On behalf of the State, our attention was, however, drawn to the fact that this letter was found to contain  obliteration of the figure before the word "claims", so that this  letter really  referred to only out of the 20 claims  submitted  by the appellant; and this submission is further supported by a reference  to  letter  Ext.   DS  in  which  the  Government acknowledged  receipt  of only 2 claims  when  referring  to letter  Ext.   DR sent by the appellant.  The  case  of  the State  was that the various bills containing the  20  claims put  forward  by the appellant could not be treated  as  one single representation. It  appears to us that even if it had been a fact  that  all these  claims were submitted by the appellant with only  one single  covering  letter,  it could not be  held  that  they amounted  to  one single false representation.   The  claims related to a number of works or supplies of materials  which the appellant claimed he had carried out.  A  representation in respect of each different work or each 216 different  supply  of  materials would  be  a  separate  and distinct  representation  from the one relating  to  another work  carried out or supply made.  Thus, in one trial  which covered charges 21, 22 and 23, three different charges  were framed  by  the  Tribunal.   The  first  charge  related  to conversion   of  railway  track  between  Taungdwingyi   and Kyaukpadaung as well as supply of materials at those places. The  second  charge which related to charge No.  22  was  in respect of work claimed to have been done in connection with the  improvement of a country track from Moth it  northwards to   its   junction  with  the  main  trunk   road   between Kyaukapadaung and Meiktila, while the third charge  relating to charge No. 23 was in respect of materials claimed to have been  supplied at Allegheny.  The three charges thus  framed related  to works or supplies at three different places  and were  in respect of three claims each of which  was  totally

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independent  of  the  other.  In respect of  each  of  these charges,  claims  had been submitted by  the  appellant  and those claims amounted to representations made by him that he had  carried  out those works or had  made  those  supplies. There  was consequently no error at all in holding  that  in this trial the appellant was being tried for three different offences  of  the same kind, so that the  splitting  of  the cases into ten different charges was fully justified. Mr. R. L. Anand on behalf of the appellant, in these circum- stances,  challenged before us the validity of the  case  in which the appellant was tried for charges 21, 22 and 23,  on a different ground which had not been put forward before the High  Court.  He urged that an examination of the claim  put forward  by the appellant on the basis of which  charges  21 and  23  were taken up, would show that there were  in  fact three  different  claims by the appellant; and  since  these were tried together with charge No. 22 which had a  separate claim,  the trial was vitiated as being in respect  of  four charges  of the same kind which is not permissible  in  law. The  submission  fails, because it is clear from  the  claim itself  that charge No. 21 was really one single charge  and not  two  charges.   It was based on a  claim  made  by  the appellant  for work done and materials supplied at the  same places,  viz.,  Taungdwingyi and Kyaukpadaung.   The  courts below in holding that the representation made by the  appel- lant  in  his claim in respect of work  done  and  materials supplied   at  the  same  places  amounted  to  one   single representation,  were  quite correct, so that, in  fact,  in this trial the appellant was tried in respect of only  three charges on the basis of three false representations relating to  three  items of bogus works or supplies.   None  of  the trials against the appellant was, therefore, vitiated by any error  relating to misjoinder of charges or splitting up  of charges. The  next question of law raised was that even on the  facts found by the High Court, the appellant was wrongly convicted as  no  offence of cheating had been made out  against  him. This submission was based on the circumstance that after the claims, 21 7 which  had  been  found  bogus,  were  put  forward  by  the appellant,  they  were  sent  for  verification  to  various officers  and  payments  were sanctioned  and  made  to  the appellant  on the basis of the reports which were  submitted by  those  officers verifying the claims of  the  appellant. The submission was that the payments were the result not  of any representations made by the appellant, but of the  wrong representations contained in the reports of those  officers, so that if any offence of cheating at all was committed,  it was by those officers and not by the appellant. The fallacy in this argument is quite clear.  It is  correct that  payments were sanctioned by the Burma  Government  and were  made only after reports had been obtained  from  their own officers on the claims which had been put forward by the appellant; but the payments were after all made only because the  appellant  had  submitted those  claims  in  the  first instance.  The representations made by the appellant in  the written claims contained in the bills were the basis of  all subsequent proceedings which resulted in payments being made to  him.  These representations contained bogus  claims  and orders  for  payment were based on those very  claims.   The officers who verified the claims wrongly could certainly  be held  guilty  of abetting the appellant  by  supporting  his false  representations, It cannot be said that the  payments that  were made to the appellant were not connected with  or

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induced by the representations made by the appellant himself in   his   bills.   In  fact,  primarily,  it   were   those representations by the appellant which ultimately culminated in the Government of Burma parting with the money to satisfy those claims put forward by the appellant.  The  correctness of the decision in Mata Prasad v. Emperor(1) relied upon  by learned  counsel  for  the appellant  need  not  detain  us, because  the  facts  in that case were  different  and  Mata Prasad  was found not guilty because he himself had made  no representation at all which induced the payment of money  by the  complainant,  and the finding was that the  advance  of money  was  induced entirely by the representation  made  by Hira  La].   The finding that the appellant  was  guilty  of cheating in these circumstances was fully justified. In  this connection, another point put forward was that  the appellant  should have been convicted for the offence  under s.  417,  Indian  Penal Code, instead  of  s.  420,  I.P.C., because,  as  soon as written orders were  made  sanctioning payments  in respect of the bogus claims, offences under  s. 417  were complete, and the subsequent payments made  should not have been taken into account.  The submission has to  be rejected,  because the subsequent paymentsafter  the  orders sanctioning  the bills, were a part of the same  transaction which  started with the false representations being made  by the (1) (1920) 18 . L. J. 371. M14 Sup.  C1/66-15 218 appellant   in  putting  forward  bogus  claims  and   which transaction only concluded after the payments were made  and did  not come to an end merely on orders of  sanction  being passed  in those proceedings.  In fact, in every case  where property is delivered by a person cheated, there must always be  a  stage when the person makes up his mind to  give  the property on accepting the false representations made to him. It  cannot be said that in such cases the person  committing the  offence  can only be tried for the  simple  offence  of cheating under section 417, I.P.C.,and cannot be tried under s.  420 because the person cheated parts with  his  property subsequent  to making up his mind to do so.  The  conviction of  the appellant for the offence under s. 420,  1.p.C.,  in these circumstances Is in no way vitiated. The  liability  of  the appellant  for  conviction  for  the offence of cheating was challenged on one other ground.   It was urged that the appellant left Burma on 5th April,  1942, while  the claims which had been found to be bogus  related, at least to a considerable extent, to works alleged to  have been  done or materials alleged to have been supplied  after that  date,  so that the appellant could  have  no  personal knowledge  that  the claims put forward by him  were  bogus. The finding of fact recorded by the High Court in respect of the  charges for which the appellant has been  convicted  is that the works to which the claims related were not  carried out at all, or that the supplies concerned were never  made. Once  the finding is categorically recorded in this  manner, we  do  not  think  there  was  any  burden  placed  on  the prosecution  to  establish that the appellant  had  personal knowledge  of  the bogus nature of  his  claims.   Knowledge involves  the state of mind of the appellant and  no  direct evidence  of that knowledge could possibly be given  by  the prosecution.   The very fact that the claims were bogus  and did  not accord with the true facts, leads to the  inference that  the appellant knew that the representations  which  he was  making in these claims were false.  It  is  significant that the appellant has not come forward with any explanation

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that he made these claims on the basis of information  given to him by any particular person whose word he had no  reason to doubt.  In fact, the claims purported to be based on  the facts  that the appellant knew that he was entitled  to  the amounts  included in the claims because he had  carried  out the  works  or had supplied the materials  relating  to  the claims. The next point urged was that in this case the trial of  the appellant      was     vitiated,     because      up      to a certain stage he was tried together with Henderson who was charged  with the offence of abetment of ,cheating under  s. 420  read with s. 109, Indian Penal Code, and Henderson  was put to trial without any sanction of the Central  Government under s. 197 of the Code of Criminal Procedure. There  are two reasons why this ground has no force.   First it  has  already been held by this Court in a  very  similar case of K.                             219 Satwant Singh v. The State of Punjab(1) that sanction  under s.  197 of the Code of Criminal Procedure was  not  required for  a valid trial of Henderson for the offence of  abetment of cheating, because it cannot be held that a public servant committing such an offence is acting in the discharge of his duties  as  such.   In  this  connection,  learned   counsel referred us to a subsequent decision of this Court in  Sunil Kumar  Paul v. The State of West Bengal(2) where this  Court held, in the case of a government servant who had  submitted a  false  bill, that the act of false  representation  which resulted  in  the offence of cheating being  completed,  was done in the course of his official duties by that government servant.   The facts of that case, however, were  different, because in that case it was held that the submission of  the bill by the government servant was itself the act for  which he was to be prosecuted, and that act was held to have  been done  by  him in the discharge of his duties.  In  the  case before  us,  as  well  as in the  earlier  case  of  Satwant Singh(1),  Henderson was not being prosecuted for the act  of certification  of  the correctness of the bills  which  were sent  to him for verification, but was to be prosecuted  for abetment  of  the  offence of cheating  committed  by  those persons  who had submitted the bills by  falsely  certifying the  correctness of those bills.  The act of  thus  abetting the principal offenders could not possibly be, held to  have been  done in the discharge of official duties as  a  public servant. The  second  reason  is that after the  trials  against  the appellant  had  proceeded to some extent, the  case  against Henderson was separated and the appellant was tried alone in ill  the  four cases.  The appellant was  not  a  government servant,  but  only an independent contractor,  and  in  his case,  therefore, there was no question of any  sanction  of the  Central Government being obtained under s. 197  of  the Code of Criminal Procedure.  His trials would, therefore  be unaffected by the want of sanction of the Central Government for the prosecution of Henderson. In this connection, it was also urged that after Henderson’s case was separated from that of the appellant, there  should have  been a de novo trial.  No reasons could,  however,  be advanced   by  the  learned  counsel  in  support  of   this proposition.   So  far as the appellant  is  concerned,  the entire  trial took place while he was present and  the  case against him remained unaffected by the fact that during part of  the trial, Henderson was also being tried with  him  for abetting the offence alleged to have been committed by  him, whereas during the remaining part of the trial, he was being

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tried  alone  for  the offence with which  he  was  charged. There is further the circumstances that no request was  made for a de novo trial at any stage by the appellant, and  even in  the appeals before the High Court, no grievance was  put forward in this behalf. (1) [1960] 2 S. C. R. 89. (2) A. 1. R. 1965 S. C. 706. 220 The validity of the trials was also challenged before us  on the  ground  that the Special Tribunal  which  recorded  the convictions   of  the  appellant  was  not  constituted   in accordance with law and was incompetent to hold the  trials. The main submission before us, which was different from  the aspect  in  which it was argued before the High  Court,  was based on the fact that the Special Tribunal was  constituted under Ordinance No. 29 of 1943 which was issued not under S. 102  of the Government of India, Act, 1935, but under s.  72 of the Ninth Schedule of that Act.  It was urged that s.  72 of  the  Government of India Act itself laid  down  that  an Ordinance issued under that provision was to remain in force for  the  space  of  not  more  than  six  months  from  its promulgation.  Learned counsel on this basis urged that  the subsequent Ordinances issued in 1944 and 1945 amending  this Ordinance as well as the Punjab Ordinance III of 1946  which continued  the  fife  of  the  Special  Tribunal  were   all ineffective,   because  they  purported  to   continue   the existence of a Tribunal which had already become defunct  on the expiry of six months from 9th September, 1943, the  date on  which  Ordinance  No.  29/1943  was  promulgated.    The submission  was  obviously  made  under  a   misapprehension ignoring  the  effect  of s. 1(3) of  the  India  and  Burma (Emergency  Provisions)  Act, 1940 (3 & 4 Geo.  6,  ch.  33) which suspended the operation of the clause in s. 72 of  the Ninth  Schedule of the Government of India Act,  1935  under which  the life of the Ordinance was limited to  six  months from  its promulgation.  In fact, this point came up  before the  Federal  Court  in J. K. Gas  Plant  Manufacturing  Co. (Rampur)  Ltd.  &  Ors. v. The  King  Emperor(1)  where  the Federal Court held that this very Ordinance 29/1943  expired on 30th September, 1946 in view of the provisions of S. 1(3) of  the  India  & Burma (Emergency  Provisions)  Act,  1940. Until 30-9-1946, therefore, the Tribunal constituted by  the Central  Government  under that  Ordinance  was  functioning competently. The  Punjab Ordinance III of 1946 continuing the  powers  of that  Tribunal for the purpose of trying the  cases  pending before it, came into force on the 1st October, 1946, so that there  was no interval and the Tribunal already  functioning under the earlier Ordinance 29 of 1943 continued to function validly  in  accordance with the provisions  of  the  Punjab Ordinance  III  of 1946.  This  Ordinance  was  subsequently replaced  by Punjab Act X of 1950, whereby the life  of  the Tribunal  and  its powers were continued,  though  the  mem- bership of the Tribunal was reduced from three to one.   The Special   Tribunal  which  tried  the  cases   against   the appellant,  therefore, functioned throughout  in  accordance with  the various Ordinances and the Punjab Act without  any interruption In  the alternative, the constitution of the Tribunal  which recorded the convictions of the appellant was challenged  on one other ground, viz., that at one stage, the membership of the Tribunal, which (1)  [1947] P. R. 141. 221 under the law was required to consist of three members,  was

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reduced to only one member and the subsequent appointment of the  other  two members was made by  the  Punjab  Government which  had no authority or power vested in it to  make  such appointment.   Under Ordinance No. 29 of 1943, the power  of constituting the Special Tribunal was vested in the  Central Government, and the Central Government actually appointed  a Tribunal   consisting  of  three  members.   That   Tribunal continued  until  30th  September 1946  and  thereafter,  it functioned  by virtue of the provisions of Punjab  Ordinance III of 1946.  It appears that subsequently some time in  the year 1947, one of the members died and the President of  the Tribunal  ceased  to function on his departure  from  India. Thereafter,  two fresh members were appointed by the  Punjab Government to the Tribunal and one of them was appointed  to function as the President of the Tribunal.  The point  urged on  behalf of the appellant was that under Punjab  Ordinance III of 1946, the Government of Punjab did acquire the  power of  appointing  the President, but that  Ordinance  did  not confer  on the Punjab Government the power  to  reconstitute the  Tribunal or to appoint members of the  Tribunal.   This submission  was  based on the provisions of s. 3(2)  of  the Punjab Ordinance which laid down that the provisions of  the Ordinance of 1943 were to continue in force and to apply  in relation  to the Tribunals, except sub s. (2) of  section  1 and  sub-s.  (1) of section 5, subject to  the  modification that  the powers of the Central Government under clause  (b) of  section 3, sub-s. (3) of section 4 and section II  were, as  from  the commencement of the Punjab  Ordinance,  to  be powers   of  the  Provincial  Government.   The   power   of constituting  the  Tribunal was contained in  the  principal clause  of s. 3 of the Ordinance of 1943, and there  was  no mention of this principal clause where, by modification, the powers of the Central Government were to be exercised by the Punjab Government under s. 3(2) of the Punjab Ordinance. This  submission, however, ignores the effect of sub-s.  (3) of   s.  3  of  the  Punjab  Ordinance,  under   which   all notifications  issued,  and all rules made, by  the  Central Government  under s. 3, sub-s. (3) of s. 4 and s. 11 of  the Ordinance of 1943, so far as they applied to the  Tribunals, were  to continue in force until superseded or  modified  by the  Punjab  Government under the  Punjab  Ordinance.   This provision,   thus,  clearly  laid  down  that   the   Punjab Government   had   the   power  to   supersede   or   modify notifications   issued  and  rules  made  by   the   Central Government  under  s.  3,  sub-s. (3) of s.  4  and  s.  11. Consequently, notifications issued by the Central Government under s. 3 of the Ordinance of 1943 constituting the Special Tribunal  could  be  superseded or modified  by  the  Punjab Government.   When  the  Punjab  Government  appointed   two members  in place of the two original members  appointed  by the Central Government, the former only exercised the powers of modifying the notifica- 222 tion  issued  by  the Central Government  as  the  order  of appointment  amounted  to  reconstitution  of  the  Tribunal already constituted by the Central Government.  The order of the  Punjab  Government was, therefore,  passed  within  the scope of the powers conferred on it by sub-s. (3) of s. 3 of the Punjab Ordinance.  During the period when there was only one  member and the requirement under the law was  that  the Tribunal  should  consist of three members,  no  proceedings were  taken by the Tribunal for continuing the trial of  the appellant.   It was only after the appointment of two  other members, including the President, that the Tribunal took  up the  trial.  Further when the Tribunal later  on  functioned

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with  only  one  single member, the  law  had  already  been altered by Punjab Act X of 1950 which provided for change of composition  of  the  Special Tribunal and  laid  down  that instead of three members, the Tribunal was to be composed of one  member  only.  The tribunal, thus, at each  stage,  was properly constituted and functioned competently. The next point urged on behalf of the appellant was that  in these  trials,  the  appellant was  not  given  an  adequate opportunity  to  produce  his  defence  evidence,  and  this happened  for no fault of the appellant.  Reference in  this connection was made to witnesses who were in three different countries.   Some  witnesses  were  in  Pakistan,  some   in England, and some in Burma.  So far as witnesses in Pakistan are  concerned, the Tribunal recorded an order on 6th  April 1949,  refusing  to  examine those  witnesses,  because  the Pakistan Government was not prepared to even effect  service of  summons on persons residing there when the summons  were issued   by  courts  in  India.   It  is  significant   that subsequent  to  this order by the Tribunal,  the  case  came before a Bench of the Punjab High Court and at that stage no grievance was made about non-examination of these  witnesses from  Pakistan, even though a grievance was put  forward  in respect  of  witnesses in England and in Burma.   The  Bench dealt with the case on 25th September, 1951 and granted  the prayer  of  the appellant for examination  of  witnesses  in England  and Burma. It is now too late for the appellant  to make  a fresh grievance in this Court that the witnesses  in Pakistan were not examined. With regard to witnesses in England and Burma, an order  was actually  made by the Bench of the High Court directing  the Tribunal  to take steps for their examination.   Steps  were taken  and  three  witnesses in  England  were  examined  on commission  at  the instance of the appellant.   The  others were  given  up  as they were  not  available.   There  has, therefore, been no failure to examine witnesses in England. Learned counsel for the appellant strenuously pressed before us  that  the  real prejudice to the  appellant  took  place because of want of examination of the witnesses who were  in Burma.  Their examination was refused by the Tribunal at one stage and against 2 2 3 that  refusal,  the appellant moved the High Court.   As  we have  said  earlier, a Bench of the High Court on  the  25th September, 1951, directed steps to be taken by the  Tribunal for their examination.  Subsequently, difficulties arose and from  time to time the appellant approached the  High  Court and  various orders were made up to the year 1954.   In  the year 1954, commissions were actually issued for  examination of witnesses in Burma to District Magistrates of two  places who  were,  by  common consent of  parties,  chosen  as  the persons  before whom those witnesses could  be  conveniently examined.   The appellant was given a sum of Rs. 3,0001-  in order to proceed to Burma and have the commissions  executed in  his own presence.  The grievance is that this  sum  ",as never  actually paid and further that in any case,  adequate funds  were Dot provided for the appellant to enable him  to proceed to Burma in time by air and be present on the  dates fixed for execution of the commissions. This point came up for a scrutiny before the High Court  and a Bench of the High Court on 23rd August, 1954, held that  a sum  of Rs. 3,0001- had already been paid to  the  appellant for  this  purpose,  and that there were  no  further  funds available  from which additional payments could be  made  to the  appellant  as desired by him.  Certain  properties  and funds  belonging  to  the  appellant  were  attached   under

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Ordinance  38  of  1944  which laid down  ins.  9  that  the District Judge was to provide, from the attached property in which the applicant claimed an interest, such sums as may be reasonably  necessary for the maintenance of  the  applicant and his family, and for expenses connected with the  defence of  the applicant where criminal proceedings may  have  been instituted against him in any Court for a scheduled offence. Our  attention has been drawn to the order of  the  District Judge  by  which  he directed payment  of  Rs.  3,000/-  for expenses in connection with the examination of witnesses  in Burma and by which he further directed payments ill  respect of  maintenance, etc. the result of which was that  all  the funds  attached  under  Ordinance  38/1944  were  completely exhausted.   The  High Court also in its  order  dated  23rd August,  1954,  found  that  the  funds  had  already   been exhausted  and no further money was available to be paid  to the  appellant as desired by him.  It cannot, therefore,  be held  that  there  was  any  refusal  on  the  part  of  the authorities  to  provide funds to which  the  appellant  was entitled.   In  any  case, it appears to us  that  all  this grievance about non-provision of funds is immaterial in view of tile fact that the appellant himself ultimately  withdrew his request for the examination of those witnesses in Burma. It  appears that in order to enable the appellant to  go  to Burma, a passport was obtained for him; but the validity  of the passport expired some time before the date for execution of the commission was fixed.  Consequently, the passport was sent  to the appropriate authorities for  further  extending its validity.  The High Court was specifically mentioned  in its judgment under appeal that, before 224 this  passport could be renewed, the appellant withdrew  his request  to  the  High Court to  have  the  Burma  witnesses examined  on  commission.   It will  thus  appear  that  all necessary steps for examination of the Burma witnesses  were being  taken when the appellant of his own  accord  withdrew his request for their examination, so that there has been no denial  of the right of the accused to produce  the  defence which he desired. The  Judgment of the High Court upholding the conviction  of the  appellant was also challenged on the ground that  Court based  its  findings  on  certain  War  Diaries  which  were inadmissible  in evidence.  The War Diaries which have  been referred  to  in connection with the charges for  which  the appellant has been convicted are those of 6, Bombay Pioneers and  Chief  Engineer,  Burcorps,  the  latter  having   been referred  to  as C.E.s diaries and with  these  diaries,  it appears,  were  incorporated  the  C.R.E.  War  Diaries   of Burcorps  also.  The submission before us was that  all  the ingredients  necessary  for showing that these  War  Diaries were  admissible  in  evidence under S.  35  of  the  Indian Evidence Act were not established by the prosecution. The first aspect put forward was that these War Diaries were not  public documents; they were confidential and  were  not open to public; and in this connection, reliance was  placed on  some  remarks  of the House of Lords  in  Maria  Mangini Sturla and Others V. Filippo Tomasso Matta Freccia, Augustus Keppel Stavenson &. Others(1) It appears to us that for  the interpretation  of S. 35 of the Evidence Act, this  decision on  common  law in England cannot be of much  help,  because under  S. 35 of the said Act, the documents  admissible  are not only public documents, but also record of official acts. There  can  be no doubt that these War Diaries,  which  have been  used as evidence were records of official acts and  in fact there is specific evidence of witnesses that these were

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required to be maintained under the rules applicable to  the units of the army which maintained these diaries. It  was  also  urged  that the  prosecution  had  not  given specific  evidence  to  show  that  the  persons  who   were maintaining  these  diaries  were  public  servants.    This objection, sought to be raised for the first time before us, involves a mixed question of fact and law.  The diaries were maintained  by officers of the army and at no earlier  stage was any objection put forward that they were not servants of the  Indian Government as they belonged to units which  were not  parts  of the Indian Army.  The case proceeded  in  the lower  courts on the basis that these units in  which  these diaries were maintained were parts of the Indian Army and in fact,  it was on this very basis that an  earlier  objection dealt with by us was raised on behalf of (1)  (1879-80) 5 I. A. 623. 225 the  appellant that sanction of the Central  Government  was required  for  the  prosecution of  Henderson.   We  cannot, therefore,  at  this  stage go into  the  question  of  fact whether  the  prosecution  led evidence  to  show  that  the officers  maintaining these diaries were in service  of  the Government of India.  The diaries were further proved by the evidence  of the persons who wrote them and of  the  persons who  dictated  the  entries recorded in  them.   There  was, therefore, no error in admitting these diaries in evidence. It was also submitted that these War Diaries were not put to the accused when he was examined under s. 342 of the Code of Criminal  Procedure  and  consequently,  their  use  to  the prejudice  of the appellant to record findings  against  him was  not justified.  This submission is clearly based  on  a misapprehension of the scope of s. 342, Cr.  P.C. Under that provisions, question are put to an accused to enable him  to explain any circumstances appearing in the evidence  against him,  and  for  that  purpose, the accused  is  also  to  be questioned  generally on the case, after the  witnesses  for the  prosecution have been examined and before he is  called on   for   his  defence.   These  War   Diaries   were   not circumstances  appearing in evidence against the  appellant. They were, in fact, evidence of circumstances which were put to the accused when he was examined under s. 342, Cr.   P.C. It  was  not at all necessary that each  separate  piece  of evidence  in support of a circumstance should be put to  the accused  and he should be questioned in respect of it  under that section; and consequently, the High Court committed  no irregularity at all in treating these War Diaries as part of the evidence against the appellant. The  last  point  urged by the  learned  counsel  before  us related  to  the  question  of  sentence,  The  sentence  of substantive imprisonment awarded by the Tribunal has already been very substantially reduced by the High Court and we are unable  to find any justification for interference with  it. However,  our attention was drawn to the fact that the  High Court, while fixing the amount of compulsory fine in respect of  charge No. 21, committed an obvious error.  The  finding recorded  by the High Court was that under this charge,  the claim  was  bogus  in respect of  four  amounts,  viz.,  Rs. 38,000/-,  Rs.  44,000/-,  Rs.  8,800/-  and  Rs.   17,600/- relating  to four different items in respect of  this  work. The fictitious claims thus totaled Rs. 1,08,400/-.  The High Court  proceeded on the basis that this was the amount  paid to  the  appellant  in  respect  of  this  bogus  claim  and overlooked  the fact that in respect of the claim which  was the  subject-matter of charge No. 21, payment  had  actually been  made  only to the extent of 50 per cent of  the  claim

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verified.  Thus, in respect of this work which was found  to be bogus, the payment was to the extent of Rs. 54,200/- only and  not  to the extent of Rs. 1,08,400/-.   The  compulsory fine  imposed in respect of this charge must, therefore,  be reduced from Rs. 1,08,400/- to Rs. 54,200/-. 226 So  far  as the four State appeals  are  concerned,  learned counsel  appearing on behalf of the State of Punjab has  not been  able  to show’ to us that any error of  law  has  been committed by the High Court when recording findings of  fact holding that the prosecution had failed to prove beyond  all reasonable doubt that the claims paid to the appellant  were bogus.   The findings of fact recorded by the High Court  do not, therefore, call for any interference by this Court. In the result, all the appeals are dismissed, subject to the modification  that  the  compulsory  fine  imposed  on   the appellant in respect of charge No. 21 which was the subject- matter of Criminal Appeal No. 478 of 1949 in the High  Court is reduced from Rs. 1,08,400/to Rs. 54,200/-. G. C.                                                Appeals dismissed. M14 Sup C1/66-2.500-13-3-67-GIPP. 227