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PETITIONER: M.   K. GOPALAN AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH.

DATE OF JUDGMENT: 05/04/1954

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. MUKHERJEA, B.K. DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA

CITATION:  1954 AIR  362            1954 SCR  168  CITATOR INFO :  RF         1957 SC 397  (24)  F          1963 SC 728  (4)  R          1974 SC 532  (11)

ACT:    Constitution of India-Article 14-Criminal Procedure  Code (Act V of 1898), sections 14 and 197(1) and (2) -Section  14 whether ultra vires article 14 of the Constitution-Scope  of power under section 197(2) and section 14- Whether the  word "Court"  in section 197 (2) means the same thing as  word  " person-in section 14.

HEADNOTE:    The petitioner, an officer of the Madras Government,  was employed in Central Provinces and Berar for the purchase  of grains  on behalf of the Madras Government.  He  along  with many   others,  was  under  prosecution  before  a   Special Magistrate,  Nagpur  (Mad  by a  Pradesh),  on  charges  for offences under section 420 of the Indian Penal Code etc. for causing   loss  to  the  Madras  Government.   The   Special Magistrate  trying  the  case was appointed  by  the  Madhya Pradesh Government under section 14 of the Code of  Criminal Procedure  and  as  the  petitioner was  a  servant  of  the Government  of  Madras,  the  prosecution  against  him  was initiated  with  the  sanction given by  the  Government  of Madras under section 197 of the Code of Criminal Procedure. Held, (i) that section 14 of the Criminal Procedure Code  in so far as it authorises the Provincial Government to  confer upon  any  person  all or any of  the  powers  conferred  or conferrable  by  or  under the Code on  Magistrates  of  the first, second or third class in 169 respect  of  particular oases and thereby  to  constitute  a Special Magistrate for the trial of an individual case, does not   violate  the  guarantee  under  article  14   of   the Constitution  as the Special Magistrate in the present  case had to try the case entirely under the normal procedure  and no  discrimination of the-kind contemplated by the  decision in Anwar Ali Sarkar’s Case ([1952] S.C.R. 284) arose in  the

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present  case.   A law vesting discretion  in  an  authority under  such circumstances cannot be discriminatory  and  is, therefore, not hit by article 14 of the Constitution. (ii) It  is  not  for  the  very  Government  which  accords sanction  under  section 197(1) to specify  also  the  Court before  which the trial is to be held under  section  197(2) and therefore in a case to which section 197(1) applies, the exercise of any power under section 14 is not excluded.  The word  "Court" in sub-section (2) of section 197 is  not  the same thing as a "person" in sub-section (1) of section 14. The  practice of direct approach to the Supreme Court  under article  32 (except for good reasons) in matters which  have been  taken  to the High Court and  found  against,  without obtaining leave to appeal therefrom, is not be encouraged. Gokulchand Dwarkadas Morarka v. The King (A.I.R. 1948 P.   C. 82) referred to; and Anwar Ali Sarkar’s case ([1952]  S.C.R. 284) distinguished.

JUDGMENT:    ORIGINAL  JURISDICTION: Petition No. 55 of  1954. Under article 32 of the Constitution for the enforcement  of fundamental rights. N.   C. Chatterjee, (J.  B. Dadachanji and Rajinder  Narain, with him) for the petitioners. K.   V. Tambe and I. N. Shroff for the respondent. 1954.  April 5. The Judgment of the Court was delivered by JAGANNADHADAS J.-This is a petition under article 32 of  the Constitution  and  is  presented to  this  Court  under  the following circumstances.  Petitioner No. I before us was  an Agricultural  Demonstrator of the Government of  Madras  and was  employed as an Assistant Marketing Officer  in  Central Provinces  and  Berar  for  the  purchase  and  movement  of blackgram   and  other  grains  on  behalf  of  the   Madras Government.   He,  as well as the second petitioner  and  44 others,  are under prosecution before Shri K. E.  Pandey,  a Special Magistrate of Nagpur, Madhya Pradesh, in Case No.  I of  1949 pending before him on charges of cheating,  attempt to commit cheating, criminal breach of trust 22 170 and  criminal  conspiracy, (i.e.,  for  offences  punishable under  section  420 read with section 120-B or  109  of  the Indian  Penal  Code, section 409 and section 409  read  with section  120-B of the Indian Penal Code) and the  allegation is that by reason of the acts committed by the accused,  the Government  of  Madras had to incur an  expenditure  of  Rs. 3,57,147-10-0  in  excess of the amount  due.   The  Special Magistrate before whom the case is now pending was appointed by  the  Madhya Pradesh Government under section 14  of  the Criminal  Procedure Code, and as the first petitioner was  a servant of the Government of Madras, the prosecution against him  has been initiated by sanction given by the  Government of  Madras  under section 197(1) of the  Criminal  Procedure Code. The  validity  of the prosecution is challenged  on  various grounds,  and  the  present petition  is  for  quashing  the proceedings  on the ground of their invalidity.   The  three main  points  taken  before us are: (1) Section  14  of  the Criminal  Procedure  Code, in so far as  it  authorises  the Provincial  Government to confer upon any person all or  any of the powers conferred or conferrable by or under the  Code on  a  Magistrate  of the first, second or  third  class  in respect  of  particular cases and thereby  to  constitute  a

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Special  Magistrate  for the trial of  an  individual  case, violates the guarantee under article 14 of the Constitution; (2) The sanction given under section 197(1) of the  Criminal Procedure  Code  for the prosecution as  against  the  first petitioner  is invalid, inasmuch as the order of the  Madras Government granting the sanction does not disclose that  all the  facts  constituting  the offences to  be  charged  were placed  before  the  sanctioning authority ;  nor  does  the sanction  state the time or place of the occurrence  or  the transactions  involved in it, or the persons with  whom  the offences were committed.  This contention is raised  relying on the Privy Council case in Gokulchand Dwarkadas Morarka v. The King(1); (3) Even if the sanction under section 197  (1) of the Criminal Procedure Code is valid, it is for the  very Government  which accords the sanction to specify  also  the Court before (1)  A.I.R. 1948 P.C. 82. 171 which  the trial is to be held under section 197(2)  and  in the   absence  -of  any  such  specification  by  the   said Government,  the  power  under section 14  of  the  Criminal Procedure  Code of appointing a Special Magistrate  for  the trial of the case cannot be exercised by the Madhya  Pradesh Government. These points may now be dealt with seriatim.  In support  of the  objection raised under article 14 of the  Constitution, reliance  is placed on the decision of this Court  in  Anwar Ali Sarkar’s case (1).  That decision, however, applies only to a case where on the allotment of an. individual case to a special Court authorised to conduct the trial by a procedure substantially   different   from   the   normal   procedure, discrimination arises as between persons who have  committed similar offences, by one or more out of them being subjected to  a  procedure,  which is materially  different  from  the normal procedure and prejudicing them thereby.  In the  pre- sent  case, the Special Magistrate under section 14  of  the Criminal  Procedure Code has to try the case entirely  under the  normal  procedure, and no discrimination  of  the  kind contemplated by the decision in Anwar Ali Sarkar’s case  (1) and the other cases following it arises here.  A law vesting discretion  in an authority under such circumstances  cannot be  said to be discriminatory as such, and is therefore  not hit by article 14 of the Constitution.  There is, therefore, no substance in this contention. As  regards  the second ground which is put forward  on  the authority of the Privy Council case of Gokulchand  Dwarkadas Morarka  v. The King(2), it is admitted that the  trial  has not  yet  commenced.  The Privy Council itself in  the  case mentioned above has recognised that the lacunas, if any,  in the  sanction of the kind contemplated by that decision  can be  remedied  in  the course of the trial  by  the  specific evidence  in  that behalf.  Learned counsel for  the  State, without conceding the objection raised, has mentioned to  us that evidence in that behalf will be given at the trial.  It is,  therefore, unnecessary to decide the point  whether  or not  the  sanction, as it is, and without such  evidence  is invalid. (1)  [1952] S.C.R. 284. (2) A.I.R. 1948 P.C. 82. 172 It  is  the  third point that has  been  somewhat  seriously pressed  before us.  The contention of learned  counsel  for the  petitioners is based on sub-section (2) of section  197 of the Criminal Procedure Code, which runs as follows :- "  The  Governor-General or Governor, as the  case  may  be,

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exercising his individual judgment may determine the  person by  whom, the manner in which, the offence or  offences  for which, the prosecution of such Judge, Magistrate, or  public servant is to be conducted, and may specify the Court before which the trial is to be held." The  argument  is that it is for the very  Government  which sanctioned  the prosecution under section 197(1) to  specify the Court before which the trial is to be held and no other, and  that  consequently, in a case to which  section  197(1) applies,  the  exercise  of any power under  section  14  is excluded.  It is said that though the exercise of the  power under   section   197(2)  in  so  far  as  it   relates   to specification of the Court is concerned is discretionary and optional,  but if in an individual case, that power  is  not exercised, it must be taken that the appropriate  Government did  not feel called upon to allot the case ’to any  special Court,  and  that,  therefore,  such  allotment  by  another Government  under  section 14 would affect  or  nullify  the power  of the appropriate Government under  section  197(2). It is also suggested that such dual exercise of the power by two  Governments would be contrary to the policy  underlying section  197 which is for the protection of the public  ser- vant   concerned,  by  interposing  the  sanction   of   the Government  between,  the accuser and its  servants  of  the categories specified therein.  This argument is  farfetched. In  the  first instance, there is no reason  to  think  that section  197(2) is inspired by any policy of  protection  of the  concerned public servant, as section 197(1) is.   There can  be  no question of protection involved  by  an  accused being  tried  by  one Court rather than by  another  at  the choice  of the Government.  The power under  section  197(2) appears to be vested in the appropriate Government for being exercised,  on grounds of convenience, or the complexity  or gravity  of the case or other relevant considerations.   The argument as to 173 the  implication  of  non-exercise  of  the  power  by   the appropriate   Government  under  section  197(2)   is   also untenable.   The power to specify a Court for trial in  such cases  is  a  permissive power, and there  can  be  no  such implication,  as  is contended for, arising  from  the  non- exercise of the power. This  entire argument, however, is based on a  misconception of the respective scopes of the powers under, section 197(2) and  section  14.  The one relates to the  "Court"  and  the other  to  the "Person".  Under sub-section (2)  of  section 197, the sanctioning Government may specify a. Court for the trial of the’ case but is not bound to do so.  When it  does not choose to specify the Court, the trial is subject to the operation  of  the other provisions of the Code.   But  even when  it  chooses to exercise the power  of  specifying  the Court   before  which  the  trial  is  to  be   held,   such specification of the Court does not touch the question as to who is the person to function in such Court before which the trial  is to take place.  That is a matter still left to  be exercised by the Provincial Government of the area where the trial  is to take place.  ’The argument of  learned  counsel proceeds on treating the word "Court" in sub-section (2)  of section  197 as being the same as a "person" in  sub-section (1) of section 14, for which there is no warrant.  There  is accordingly no substance in this contention. In  addition to the above three points, learned counsel  for the petitioners has also raised a further point that in  the present case Shri K. L. Pandey who was first appointed as  a Special  Magistrate for the trial of the case, and to  whose

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file  on  such appointment this case  was  transferred,  was later  on appointed as acting Sessions Judge for  some  time and  ceased to have this case before him.  He reverted  back from  his position as acting Sessions Judge to his  original post.  The point taken is that without a fresh  notification appointing  him as Special Magistrate and  transferring  the case to him as such, he cannot be said to be seized of  this case as Special Magistrate.  Here again, learned counsel for the State informs us, without conceding the point so  taken, that he is prepared to advise the Government 174 to  issue  the  necessary notification  and  have  the  case transferred.   In view of that statement, it is  unnecessary to pronounce on the objection so raised. In  the  result,  all the points raised  on  behalf  of  the petitioners fail, and this petition must be dismissed. It  is desirable to observe that the questions  above  dealt with  appear  to have been raised before the High  Court  at previous  stages by means of applications under article  226 and  decided  against.  No appeals to this Court  have  been taken against the orders therein.  Nothing that we have said is  intended to be a pronouncement as to the correctness  or otherwise of those orders, nor to encourage the practice  of direct  approach to this Court (except for good reasons)  in matters  which have been taken to the High Court  and  found against, without obtaining leave to appeal therefrom.                         Petition dismissed.