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PETITIONER: RAMESHWAR BHARTIA

       Vs.

RESPONDENT: THE STATE OF ASSAM

DATE OF JUDGMENT: 23/10/1952

BENCH: AIYAR, N. CHANDRASEKHARA BENCH: AIYAR, N. CHANDRASEKHARA BHAGWATI, NATWARLAL H.

CITATION:  1952 AIR  405  CITATOR INFO :  F          1976 SC 680  (3)

ACT: Criminal  Procedure  Code (V of 1898), s.  556-"  Personally interested",   meaning   of-Officer   giving   sanction   to prosecute,    whether   disqualified   from    trying    the case--Difference between sanction to prosecute and direction to prosecute.

HEADNOTE: The question whether a Magistrate is "personally interested" in  a ease within the meaning of s. 556, Criminal  Procedure Code,  has  essentially to be decided   the  facts  of  each case. Where  an  officer as a District Magistrate  exercising  his powers  under s. 7(1) of the Essential  Supplies  (Temporary Powers)  Act, 1946, sanctioned the prosecution of  a  person for  violation  of  ss. 3 and 7 of  the  Assam  Food  Grains Control  Order,  1947, and the same  officer  as  Additional District Magistrate tried and convicted the accused, and  it was  contended  that as the officer had given  sanction  for prosecution  he  was  "personally interested"  in  the  case within  the meaning of s. 656, Criminal Procedure Code,  and the trial and conviction were therefore illegal: Held,  that bymerely  giving sanction for prosecution he did not  become personally  interested"  in  the  case  and  the  trial  and conviction were not illegal. In  both cases of sanction -and direction to  prosecute,  an application  of  the mind is necessary, but  there  is  this essential  difference that in the one case there is a  legal impediment to the prosecution if there is no sanction and in the   other  case  there  is  a  positive  order  that   the prosecution should be launched.  For a sanction, all that is necessary for one to be satisfied about is the existence  of a  prima facie case.  In the case of a direction, a  further element  that  the  accused deserves  to  be  prosecuted  is involved.   Whether  sanction should be granted or  not  may conceivably depend   considerations extraneous to the merits of the case.  But where a prosecution is directed, it  means that  the authority who gives the sanction is  satisfied  in his  own mind that the case must be initiated.  Sanction  is in  the  nature of a permission, while direction is  in  the

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nature of a command. Gokulchand  Dwarka  Das v. The King (1948)  52  C.W.N.  325, Government of Bengal v. Heera Lall Dass and Others (1872) 17 W.  R. Cr. 39, Queen Empress v. Chenchi Reddi (1901)  I.L.R. 24  Mad. 238, Girish Chunder v. Queen Empress (1893)  I.L.R. 20  Cal. 857, and Emperor v. Ravji (1903) 5 Bom.  L.R.  542, referred to.

JUDGMENT: CRIMINAL APPELLATE, JURISDICTION: Criminal Appeal No. 40 of 1951, 127 Appeal from the Judgment and Order dated the 1st June, 1951, of  the High Court of Judicature in Assam (Thadani C.J.  and Ram  Labhaya  J.,)  in Criminal Reference  No.  I  of  1951, arising  out of Judgment and Order dated the 15th  November, 1950,  of the Court of the Additional  District  Magistrate, Lakhimpur, in Case No. 1126C of 1950. Jindra Lal for the appellant. Nuruddin Ahmed for the respondent. 1952.  October 23.  The Judgment of the Court was  delivered by CHANDRASEKHARA AIYAR J.-Rameshwar Bhartia, the appellant, is a shopkeeper in Assam.  He was prosecuted for storing  paddy without a licence in excess of the quantity permitted by the Assam Food Grains Control Order, 1947.  He admitted  storage and  possession of 550 maunds of paddy, but pleaded that  he did   not  know  that  any  licence  was   necessary.    The ’Additional  District Magistrate recorded a plea of  guilty, but  imposed   him a fine of Rs. 50 only, as he  -considered his  ignorance of the provisions of the Food Grains  Control Order  to  be genuine.  The stock of paddy was left  in  the possession  of  the appellant by the  Procurement  Inspector under  a Jimmanama or security bond executed in his  favour. He  was subsequently unable to produce it before the  court, as  the whole of it was taken away by a Congress M.L.A.  for affording  relief to those who suffered in  the  earthquake, and  so,  the  appellant was ordered to  procure  a  similar quantity  of paddy after taking an appropriate licence,  and to  make  over  the  same  to  the  procurement   department payment of the price. The  District  Magistrate,    being moved to do  so  by  the procurement department, referred the case to the High  Court under section 438, Criminal Procedure Code, for  enhancement of  the sentence, as in his opinion the sentence was  unduly lenient  and  the Jimmanama, which  was  admittedly  broken, should have been forfeited. 128 The  reference was accepted by the High Court, and the  sent ence  was enhanced to rigorous’ imprisonment for six  months and a fine of Rs. 1,000.  As regards the Jimmanama, the case was sent back to the trial court for taking action according to  law under section 514, Criminal Procedure Code, for  its forfeiture. The appellant applied to the High.  Court for a  certificate under article 134 (1) (c) of the Constitution that the  case was  a fit one for appeal to this Court.   This  application was  granted.   Out  of  the  three  points  urged  for  the appellant, two were rejected, but the third one was accepted as a good ground, namely, that there was a contravention  of the  provisions of section 556, Criminal Procedure Code  and that consequently the, trial before the Additional  District Magistrate was void.

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One  of the contentions urged before us was that  Shri  C.K. Bhuyan  was not a "Director" at all and therefore there  was no  valid  sanction  under  section  38  of  the  Order.   A notifications  dated  16th May) 1950, and published  in  the Assam Gazette of the 24th May, 1950, was produced before  us to  show  that  Sri C.K. Bhuyan  was  an  Additional  Deputy Commissioner and it was conceded by the appellant’s  counsel before the High Court that if he was a Deputy  Commissioner, he  would  be  a Director under the  Order,  as  all  Deputy Commissioners  in Assam were notified as Directors  for  the purposes  of  the Order.  Mr. Jindra Lal sought  to  draw  a distinction between a Deputy Commissioner and an  Additional Deputy Commissioner in this respect, but there is no warrant for  the  same,, apart from the circumstance that  it  is  a question  of fact which has to be investigated  afresh,  and which we cannot allow to be raised now for the first time. The  primary question to consider in this appeal is  whether there  has  been any infringement of Section  556,  Criminal Procedure  -Code, and a consequent want of  jurisdiction  in the  court which tried the offence.  The facts  relevant  to this question lie                            129 within  a narrow compass.  The Procurement Inspector sent  a report  , Ist July,1950 about the nature of the offence ; he wrote  out a short note   the, subject, and  requested  that the  accused might be prosecuted and the Assistant  Director of  Procurement, Dibru garh, might be authorised to  dispose of the paddy immediately to avoid loss due to deterioration, Sri  0.  K.  Bhuyan,who was  the  then  District  Magistrate Lakhimpur, made the following order:- "Prosecution   sanctioned  under  section  7  (1)  of   ,the Essential   Supplies  (Temporary  Powers)  Act,  1946,   for violation  of  sections  3 and 7 of the  Assam  Food  Grains Oontrol Order, 1947." The  case happened to be tried by the same gentleman in  his capacity as Addtional District Magistrate, and the-  accused was convicted as aforesaid. The  argument for the appellant was that  having  sanctioned the   prosecution,  Sri  C.K.  Bhuyan   became   "personally interested"  in the case within the meaning of section  556, and  was  therefore  incompetent to try the  same.   It  was contended that the trial was not only irregular but illegal. There  is  no question that "personal interest"  within  the meaning  of the section is not limited to private  interest, and  that it may well include official interest  also.   But what  is the extent of the interest which will  attract  the disability is a subject   which different views are possible and  have  been  taken.  Section 556  itself  indicates  the difficulty.   The Explanation to the section runs  in  these terms:- "A  Judge  or  Magistrate shall not be deemed  a  party,  or personally interested, within the , meaning of this section, to  or  in any case by reason only that be  is  a  Municipal Commissioner  or  otherwise concerned therein  in  a  public capacity, or by reason only that he has viewed the place  in which an offence, is alleged to have been committed, or  any other place .in which any other transaction material to  the case  ’is alleged to have occurred, and made an inquiry  III connection with the case." 130 This  shows  that to be connected with a case  in  a  public capacity  is  not  by itself enough  to  render  the  person incompetent  to try it.  Even if he had made an  enquiry  in connection with this case, it would not matter.  But look at the illustration:

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"A,   as  collector,  upon  consideration   of   information furnished to him, directs the prosecution of B for a  breach of the excise laws.  A is disqualified from trying this case as a Magistrate." It  is evident from the words of the illustration that if  a prosecution  is  directed by a person in  one  capacity,  he shall  not  try  the case acting in another  capacity  as  a Magistrate. The  explanation and illustration lend some support  to  the view that there is a distinction between a passive  interest and  an active interest, and that it is only in  the  latter case that the disqualification arises or intervenes. Under  sub-section  (3) (a) of section 2 of the  Assam  Food Grains  Control  Order  "Director" means  "the  Director  of Supply,  Assam,  and  includes,  for  the  purpose  of   any specific.  provision of this Order, any other  officer  duly authorised  in  that  behalf by him  or  by  the  Provincial Government by notification in the Official Gazette." Section 38 provides: No prosecution in respect of an alleged contravention of any provision  of  this Order shall be  instituted  without  the sanction of the Director." A little confusion is likely to arise from the employment of the  word  "  Director" in the Control Order  and  the  word "directs" in the illustration to section  556 of the  Code’. It  has to be borne in mind that a sanction by the  Director within the meaning of the Code does not necessarily mean  "a direction   given  by  him  that  the  accused   should   be prosecuted." In  both cases of sanction and direction, an application  of the   mind  is  necessary,  but  there  is  this   essential difference that in the one case there is a legal  impediment to the prosecution if there be no sanction, and in the other case, there is a positive order that                            131 the  prosecution  should be launched.  For a  sanction,  all that  is  necessary  for one to be satisfied  about  is  the existence  of  a  prima  facie case.   In  the  case  of  a, direction, a further element that the accused deserves to be prosecuted  is involved.  The question whether a  Magistrate is  personally  interested  or not  has  essentially  to  be decided    the  facts  in each  case.   Pecuniary  interest, however  small,  will be a disqualification but  as  regards other  kinds  of interest, there is no measure  or  standard except that it should be a substantial one, giving rise to a real  bias,-or a reasonable apprehension   the part  of  the accused of such bias., The maxim " Nemo debet esse judex  in propria sua causa" applies only when the interest attributed is such as to render the case his own cause.  The fulfllment of a technical requirement imposed by a statute may not,  in many cases, amount to a mental satisfaction of the truth  of the  facts  placed  before the  officer.   Whether  sanction should  be  granted  or  not  may  conceivably  depend  upon consideration  extraneous  to the merits of the  case.   But where a prosecution is directed, it means that the authority who  gives the direction is satisfied in his own  mind  that the case must be initiated.  Sanction is in the nature of  a permission while a direction is in the nature of a command. Let us now examine some of the decisions   the subject.  For the appellant, strong reliance was placed   the judgment  of the Privy Council in Gokulchand Dwarkadas v. King(1), and it was  argued   the basis of some of the observations  of  the Judicial  Committee  that a sanction was  an  important  and substantial  matter and not a mere formality.  The facts  in that  case  were  that while there was  a  sanction  of  the

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Government for a prosecution under the Cotton Cloth and Yarn Control, Order, there was nothing in the sanction itself, or in  the  shape  of extraneous evidence,  to  show  that  the sanction  was accorded after the relevant facts were  placed before the sanctioning authority.  To quote their Lordships’ own words; (1)  (1948) 52 C.W.N.325. 132 "There  is no evidence to show that the report of  the  Sub- Inspector  to the District Superintendent of  Police,  which was  not  put  in evidence, was forwarded  to  the  District Magistrate, nor is there any evidence is to the contents  of the  endorsement of the District Magistrate, referred to  in the  sanction,  which  endorsement  also  was  not  put   in evidence.   The  prosecution  was in a  position  either  to produce or to account for the absence of the’report made  to the District Superintendent of Police and the endorsement of the District Magistrate referred to in the sanction, and  to call any necessary oral evidence to supplement the documents and  show  what  were the facts    which  the  sanction  was given." It  is  in this connection that their Lordships  em  phasise that  the  sanction  to  prosecute  is  an  important   step constituting a condition precedent, and observe: "Looked  at  as a matter of substance it is plain  that  the Government  cannot  adequately discharge the  obligation  of deciding  whether to give or withhold a sanction  without  a knowledge  of  the  facts  of  the  case.   Nor,  in   their Lordships’  view, is a sanction given without  reference  to the  facts  constituting the offence a compliance  with  the actual terms of clause 23." This,  however,  is no authority for the  position  that  a sanction  stands   the same footing as a direction.   It  is true  that  the  facts should be known  to  the  sanctioning authority  ;  but  it  is not  at  all  necessary  that  the authority  should  embark  also   an  investigation  of  the facts,  deep or perfunctory, before according the  sanction. The  decision  lends no support to the  view  that  wherever there  is a sanction, the sanctioning authority is  disabled under section 556 of the Code from trying the case initiated as  a  result of the sanction.    the other hand,  there  is plenty of support for the opposite) view. In the very early case of The Government of Bengal v.   HeeraLall Dass and Others(1), at a time when there (1) (1872) 17 Weekly Reporter, Criminal Rulings, 39.                            133 was  no such statutory provision as section 556 of the  Code but,  only the general rule of law that a man could  not  be judge in a case in which he had an interest, the facts  were that a Sub-Registrar, who was also an Assistant  Magistrate, having   come  to  know  in  his  official  capacity  as   a registering  officer that an offence under the  Registration Act  had  been  committed,  sanctioned  a  prosecution,  and subsequently   tried  the  case  himself.   A   Full   Bench consisting  of  Sir  Richard Couch C.’  J.  and  five  other learned Judges came to the conclusion, after an  examination of  some  of  the  English cases, that  the  trial  was  not vitiated.  The learned Chief Justice said:- "In  this case, I think, the Sub-Registrar has not  such  an interest  in the matter as disqualifies him from trying  the case;  and  I  may observe with reference to  some  -of  the arguments that have been used as to the Sub-Registrar having made up his mind, and that the accused would have no  chance of a fair trial, that the sanction of the superior  officer, the  Registrar,  is required before the prosecution  can  be

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instituted,  and  certainly  I  do  not  consider  that  the prosecution will not be instituted unless the  Sub-Registrar has  made up his mind as to the guilt of the party.   It  is his  duty,  when he comes to know that an offence  has  been committed, to cause a prosecution to be instituted, by which I  understand  that  there is prima  facie  evidence  of  an offence  having  been committed, that there  is  that  which renders it proper that there should be ail enquiry, and  the Registrar  accordingly  gives  his  sanction  to  it  ;  and certainly, I cannot suppose that, because an officer in  his position  sanctions  the institution of a  prosecution,  his mind  is made up as to the guilt of the party and . that  he is  not  willing  to  consider the  evidence  which  may  be produced before him when he comes to try the case.  In  this case, there appears to ’be no such interest as would prevent the  case  from going" before the Magistrate as  the  trying authority ...... 134 In Queen-Empress v. Chenchi Reddi(1) it was pointed out that when  there was only an authorisation and not  a  direction, there was no supervening disability ; and the case of Girish Chunder  Ghose  v. The  QueenEmpress(2)  was  distinguished, the ground that there the Magistrate had taken a very active part  in connection with the case as an  executive  officer. The  Bombay High Court went even a step further in the  case reported  in Emperor v. Bavji(3), where the  Magistrate  who tried  the case had earlier held a departmental enquiry  and forwarded the papers to the Collector with his opinion  that there   was  sufficient  evidence  to  justify  a   criminal prosecution.  As he did no more than express an opinion that there was evidence, which he, had neither taken nor  sifted, which  made  a criminal prosecution desirable, it  was  held that  the Magistrate was not disqualified from  holding  the trial,  though, no doubt it would have been  more  expedient had  the Collector sent the case for disposal to another  of his subordinates. As  stated  already,  the question  whether  the  bar  under section  556  comes  into play depends upon  the  facts  and circumstances  of  each particular case, the  dividing  line being  a thin one somewhat but still  sufficiently  definite and  tangible, namely, the removal of a legal impediment  by the  grant  ’of  sanction and  the  initiation  of  criminal proceedings  as the result of a direction.  In  the  present case  before us, we have nothing more than a  sanction,  and consequently we are unable to hold that the trial has become vitiated  by  reason  of  the  provisions  of  section  556, Criminal Procedure Code. The  other point taken   behalf of the appellant is  a  more substantial  one.  The security bond was taken from him  not by  the court but by the Procurement Inspector.  It is  true that  it  contained the undertaking that, the  seized  paddy would  be  produced  before the court, but still  it  was  a promise  made  to  the particular official and  not  to  the court.  The High (1) (1901) I.L.R. 24 Mad. 238.  (3) (19O3) 5 Bom.  L.R. 542. (2)  (1893) I.L.R. 20 Cal. 857.                            135 Court  was in error in thinking that section  514,  Criminal Procedure  Code, applied.  Action could be taken  only  when the  bond is taken by the court under the provisions of  the Code such as section 91 for appearance, the several security sections  or those relating to bail. Clause (1)  of  section 514 runs: "Whenever it is proved to the satisfaction of the, Court  by which a bond under this Code has been taken, or of the Court

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of a Presidency Magistrate or Magistrate of the first class, or  when the bond is for appearance before a Court,  to  the satisfaction  of  such  -Court,  that  such  bond  has  been forfeited, the Court shall record the grounds of such proof, and  may call upon any person bound by such bond to pay  the penalty  thereof,  or  to show cause why it  should  not  be paid." The  language is perfectly clear; the power to  forfeit  and the  imposition  of the penalty provided for  in  the  later parts   of  the  section  arise  only  if  the   preliminary conditions are satisfied. There was no argument addressed to us that the High Court in suggesting that action should be taken under section 514 for forfeiture of the bond acted in the exercise of its inherent powers under section 561-A.  It did not purport to  exercise any  such  power; and, moreover, there will then  arise  the question whether when the Code contains an express provision a particular subject, there could be any resort to  inherent jurisdiction, under a general provision. We  have got an additional circumstance in  the  appellant’s favour in this case that the seized paddy was taken away  by a  member of the Legislative Assembly for giving  relief  to those affected by the earthquake, and if that is true, as it seems  to be from the letter written by the’ M.L.A.  to  the Additional District Magistrate   the 1st November, 1950,  it appears  to us harsh, if not unjust, to ask him  to  produce the same paddy or a similar quantity of paddy.  The order-of the High Court sending back the case to the                            136 Magistrate for taking action according to law under  section 514 will, therefore, stand set aside. We generally do not interfere in the matter of sentence, but in  this case we find that the Magistrate has held that  the appellant’s  plea that he was ignorant of the provisions  of the  Assam  Food Grains Control Order, 1947, was  a  genuine one.   Having regard to this circumstance and the fact  that from a fine of Rs. 50 to 6 months’ rigorous imprisonment and a  fine  of  Rs.  1,000  is a  big  jump,  we  think  it  is appropriate that the sentence of imprisonment imposed by the High  Court  should be set aside and we  order  accordingly. The fine of Rs. 1,000 will stand. Sentence reduced.  Agent for the appellant: Rajinder Narain. Agent for the respondent: Naunit Lal.