22 December 1954
Supreme Court


Case number: Appeal (crl.) 89 of 1954






DATE OF JUDGMENT: 22/12/1954


CITATION:  1955 AIR  287            1955 SCR  (1)1177

ACT: Criminal Procedure Code, (Act V of 1898), s.  197-Prevention of  Corruption  Act,  1947  (II  of  1947),  s.  5(2)-Charge thereunder and charge under s. 409 of the Indian Penal  Code (Act XLV of 1860)Separated from each other-Sanction  granted under  s. 5(2) of the Prevention of  Corruption  Act-Whether could  be extended as to cover prosecution under s.  409  of the  Indian  Penal  Code-S.  197 of  the  Code  of  Criminal Procedure-Scope  and construction of-Indian Penal  Code,  s. 34-Essence of-Whether the person must be physically  present at the actual commission of the crime.

HEADNOTE: The  three accused-Government servants-were jointly  charged with  an offence punishable under s. 5(2) of the  Prevention of  Corruption Act, 1947 and all three were further  jointly charged with having committed breach of trust in furtherance of  the common intention of all under s. 409 of  the  Indian Penal  Code  read  with s. 34.  Then followed  a  number  of alternative  charges  in which each was  separately  charged with  having committed criminal breach of  trust  personally under s. 409.  As a further alternative,  all three were 1178 jointly  charged  under s. 409 read with s. 109  for  having abetted each other in the commission of a criminal breach of trust  under s. 409.  On objection taken to  these  charges, the trial for the offence under s. 5(2) of the Prevention of Corruption Act was separated from the trial under s. 409  of the  Indian  Penal Code.  The charges  were  reframed.   One under s. 5(2) was dropped while others remained.  On  27-10- 1949 the Governor-General acting under s. 197 of the Code of Criminal  Procedure sanctioned the prosecution of the  first accused (appellant No. 1) for offences under ss. 120-B, 409, 109  for  having  conspired with the  other  two  to  commit criminal breach of trust in respect of properties  belonging to Government and for having thus abetted the commission  of that  offence  and also for having  committed  it.   Similar sanction was not given against the other two accused and was limited  only  to  the  first accused.   On  the  same  date sanction was given for the prosecution of the first  accused under s. 5(2) of the Prevention of Corruption Act, 1947  and



a  similar  sanction was given against the  second  accused. The  question was whether this sanction against  the  second accused could be extended to cover his prosecution under  s. 409 and whether his trial was valid. Held, (answering the question in the negative) that under s. 197  of  the  Code of  Criminal  Procedure  the  sanctioning authority was the Governor-General.  Under the Prevention of Corruption  Act,  1947  the sanctioning  authority  was  the Central   Government.   Either  one,  or   two,   Government authorities were given the right and invested with the  duty of  making an election.  If two Government  authorities  are given the right to choose and neither can encroach upon  the preserve  of  the other, then the Governor-General  has  not sanctioned  the  present  prosecution  against  the   second accused  (appellant  No. 2) and no other authority  has  the power  to do so.  Therefore the sanction given to  prosecute under s. 5(2) of Act II of 1947, could not be used to  cover the present trial, because it was given by an authority  not competent to give it. If,  on the other hand, the two authorities are really  one, then the election has been made clearly.  The sanction under s. 5(2) of the Prevention of Corruption Act, 1947 as amended by  Act  LIX of 1952 and Act XLVI of 1952 is to  proceed  in special courts with a special procedure so the present trial against the second accused was incompetent. It is well-settled that a defect of this nature is fatal and cannot be cured when s. 197 applies and, as it did, sanction was necessary so the trial was vitiated from the start.  The proceeding,,; were accordingly quashed. If s. 197 of the Code of Criminal Procedure is construed too narrowly  it  can never be applied for it is no part  of  an official’s duty to commit an offence and never can be.   But it  is not the duty of an official which has to be  examined so much as his act, because an official act can be performed in the discharge of official duty as well as in  dereliction of  it.   The section has content and its language  must  be given meaning.                             1179 In  the case of the first accused there was misdirection  in the  charge  to the Jury under s. 34.  The  essence  of  the misdirection consisted in the Sessions Judge’s direction  to the  jury that even though a person may not be present  when the  offence  is actually committed and even if  he  remains "behind the screen" he can be convicted under s. 34 provided it  is proved that the offence was committed in  furtherance of the common intention.  This is wrong because the  essence of the section is that the person must be physically present at the actual commission of the crime. The  misdirection is plain and goes to the root of the  case because  the jury returned a verdict of guilty under s.  409 read with s.   34  alone and not under s. 409 read  with  s. 109, I.P.C. Held,  that in cases which raise questions of substance  and importance the High Courts should not pass summary orders of rejection  without giving some indication of their views  on the points raised before them. Mushtak Hussein v. The State of Bombay ([1953] S.C.R.  809), The  State  v. Gurucharan Singh (A.I.R. [1952]  Punjab  89), Gokulchand  Dwarkadas v. The King (A.I.R. [1948]  P.C.  82), Hori Ram Singh v. The Crown ([1939] F.C.R. 159), Madan Mohan v.  The  State of Uttar Pradesh (A.I.R.  [1954]  S.C.  637), Lieutenant Hector Thomas Huntley v. The King-Emperor ([1944] F.C.R.  262), and Barendra Kumar Ghosh v.  The  King-Emperor ([1924] L.R. 52 I-A. 40), referred to.



JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals  Nos.  89 and 90 of. 1954. Appeals  by Special Leave from the Judgment and Order  dated the  23rd November 1953 of the High Court of Judicature  ’at Bombay  in  Criminal Appeal No. 1213 of 1953, and  from  the Judgment  and Order dated the 25th August 1953 of  the  High Court of Judicature at Bombay in Criminal Appeal No. 1121 of 1953  arising out of the judgment and decree dated  the  6th August 1953 of the Court of Sessions Case No. 36 of 1952. S.   Narayanaiah and Dr. C. V.L. Narayan, for the  appellant in Criminal Appeal No. 89 of 1954. C.   Sanjeevarow  Nayadu  and R. Ganapathy  Ayyar,  for  the appellant in Criminal Appeal No. 90 of 1954. M.C.  Setalvad, Attorney-General of India (G.  N. Joshi  and Porus A. Mehta, with him) for the respondent. 151 1180 1954.  December 22.  The Judgment of the Court was delivered by BOSE, J.-These two appeals arise out of the same trial.  The two appellants, Shreekantiah (the first accused in the trial Court  and  the  appellant in Appeal No.  89  of  1954)  and Parasuram  (the second accused and the appellant  in  Appeal No. 90 of 1954) were tried with a third accused Dawson on  a number  of different charges centering round section 409  of the Indian Penal Code: criminal breach of trust by a  public servant.   The  trial was by jury and all three  were  found guilty of an offence under section 409 read with section 34. They were convicted and sentenced as under: Accused  No. 1. Shreekantiah to one year and a fine  of  Rs. 500 with four months in default; Accused No. 2. Parasuram to two years and a fine of Rs.  500 with six months in default; and Accused  No. 3. Dawson to six months and a fine of  Rs.  200 with two months in default. The  appeal  of  the second accused to the  High  Court  was dismissed   summarily  on  25-8-1953  with  the   one   word "dismissed".    The   first  and  third   accused   appealed separately.  Their appeal was heard by another Bench and was admitted,  and a reasoned judgment followed  on  23-11-1953. This,  to. say the least, was, in the circumstances of  this case,  anomalous.  The ap.peals arise out of the same  trial and  are from one judgment and relate to the same charge  to the jury, and what is more they raise substantially the same points.    This  Court  was  constrained  to   express   its disapproval of the summary rejections of appeals which raise issues  of substance and importance.  We draw  attention  to the  remarks in Mushtak Hussein v. The State  of  Bombay(1). Those  observations  apply with even greater  force  in  the present case. The three accused are Government servants.  At all  material times,  the first was the Officer Commanding,  the  Military Engineering Stores Depot at Dehu Road near Poona.  He was in over-all charge.  The (1)  [1953] S.C.R. 809, 820. 1181 second  was  under  him  as the officer  in  charge  of  the Receipts  and  Issue  control  section.   The  third  worked directly under the second as the Assistant Stores Officer. The depot is maintained by the Central Government and covers an area of some 150 acres.  Government stores worth  several lacs  of  rupees are kept there.  On 11-9-1948  iron  stores



worth about Rs. 4,000 were illegally passed out of the depot and  were handed over to one Ibrahim Fida Hussain, an  agent of  the  approver  Mohsinbhai (P.W. 1).  The  case  for  the prosecution is that the three accused, who were in charge of these stores and to whom they had been entrusted in  various capacities, entered into a conspiracy to defraud  Government of these properties and that in pursuance of this conspiracy they  arranged to sell them to the approver (P.W. 1)  for  a sum  of Rs. 4,000.  The money is said to have been paid  and then the stores were passed out of the depot.  The money  is said  to  have been pocketed by the three  accused  and  not credited to Government. On  these facts a number of charges were framed.  The  first set  was  drawn  up on 9-7-1953.   All  three  accused  were jointly  charged  with an offence punishable  under  section 5(2) of the Prevention of Corruption Act, 1947 and all three were further jointly charged with having committed  criminal breach  of trust in furtherance of the common  intention  of all  under  section 409 of the Indian Penal Code  read  with section 34. Then followed a number of alternative charges in which  each was separately charged with having committed criminal breach of trust personally under section 409. As  a further alternative., all three were  jointly  charged under  section 409, Indian Penal Code read with section  109 for  having  abetted  each  other in  the  commission  of  a criminal breach of trust under section 409. Objection  was  at once taken to these charges and  the  one which concerns us now was couched in the following terms; 1182 "It is further submitted that the trial under section  5(2), Corruption  Act, 1947 with Indian Penal Code section 409  is likely to embarrass the accused in their defence as it would be difficult to efface the evidence (if any) of the  accused persons  given  on oath from the minds of  the  Jurors  when considering the charge under section 409, Indian Penal Code. It is therefore prayed that the charges under sec409, Indian Penal Code and section 5(2) of the Corruption Act may not be tried together in one trial". The Assistant Public Prosecutor said he had no objection  to separating  the  charges and leaving the one  under  section 5(2)  for another trial.  The Court then made the  following order on 10-7-1953: "Thus,  though a joint trial for offence under section  5(2) of  the Prevention of Corruption Act and the offences  under the Indian Penal Code is legal and valid,, I think, in  view of  the  circumstances mentioned above, it would be  in  the interest of justice and also in the interests of the accused themselves  if the trial for the offence under section  5(2) of  the  Prevention  of  Corruption  Act  is  separated.   I therefore  grant  the application to this extent  and  order that the charge should be amended accordingly". In  view  of this the charges were re-framed  on  11-7-1953. The  only difference of substance is that the  charge  under section 5(2) was dropped.  The others remained. Now  it  will be observed that the accused  are  all  public servants  and  they  contend  that  as,  according  to   the prosecution, they purported to act in the discharge of their official duties, sanction was necessary under section 197 of the  Criminal Procedure Code.  There is sanction so  far  as the  first  accused  is concerned but  the  -second  accused contends  that  there  is none in his case  to  justify  the present  trial, so his trial,, conviction and  sentence  are bad. The  position  about this is as follows: On  27-10-1949  the



Governor-General,  acting under section 197 of the  Code  of Criminal Procedure, sanctioned the prosecution of the  first accused for offences tinder sections                             1183 120-B, 409, 109 and so forth, for having conspired with  the other  two to commit criminal breach of trust in respect  of the  properties with which this case is concerned  and  thus for having abetted the commission of that offence, and  also for having committed it.  Similar sanction could easily have been  given  against the other two accused but it  was  not. The  sanction  for these offences was limited to  the  first accused. On the same date sanction was also given for the prosecution of the first accused under section 5(2) of the Prevention of Corruption Act and a similar sanction was given against  the second  accused.   The  question is  whether  this  sanction against  the  second accused can be extended  to  cover  his prosecution under section 409 of the Indian Penal Code.   In our opinion, it cannot. At  the  date of the sanction the  unamended  Prevention  of Corruption  Act (II of 1947) was in force.  Criminal  breach of  trust  under section 409 of the Indian  Penal  Code  was included  in the definition of "criminal  misconduct"  under section  5(1)(c) of the Act of 1947.  Therefore, an  offence under  section 409 could be tried under the Act of 1947  and the  question arose whether it would have to be tried  under that Act, or whether it could also be tried in the  ordinary way  by the ordinary Courts.  The Punjab High Court held  in The State v. Gurucharan Sinah(1) that it could not.  Because of  this the Act of 1947 was amended in 1952 by Act  LIX  of 1952  and section 4 of the amending Act makes it clear  that the trial can be under either law.  But in the same year the Criminal  Law  Amendment Act, 1952 (Act XLVI  of  1952)  was passed and because of this Act trials under section 5(2)  of the  Prevention of Corruption Act must be before  a  Special Court and a special procedure must be followed.   Therefore, the  position  which these various Acts  created  was  this. First,  a choice was conferred on some authority  to  choose whether any given accused should be tried in a special Court with  a  special  procedure  and  be  subject  to  a  lesser punishment under section 5(2) or whether he should be  tried in the ordi- (1)  A.I.R. 1952 Punjab 89, 1184 nary way under section 409 of the Indian Penal Code with the risk of a higher punishment. The  question  then  is who is to do  the  choosing.   Under section 197 of the Code of Criminal Procedure the  Governor- General  was at that date the sanctioning  authority  though the  words "exercising his individual judgment" had by  that time  been deleted.  Under the Prevention of Corruption  Act the sanctioning authority was the "Central Government".  Now it  may well be that the two mean the same thing because  of section  8(a) of the General Clauses Act but that  makes  no difference at the moment.  The fact remains that either one, or  two,  Government authorities were given the  right,  and invested with the duty, of making an election.  They had the right  to say whether a certain class of public servant  who had  committed criminal breach of trust should be tried  for that  offence under section 409 of the Indian Penal Code  in the  ordinary  courts of the land according  to  the  normal procedure  obtaining  there  and be  subject  to  a  maximum penalty of ten years plus an unlimited fine or be tried  for the same offence under another name in a special court by  a special procedure and be subject to no more than seven years



plus a fine which is also unlimited. At this stage of the arguments we asked the learned  counsel for  the appellants whether they intended to  challenge  the vires  of  this  law under article 14  of  the  Constitution because,  if  they  did, the matter would have to  go  to  a Constitution  Bench  as we, being only three  Judges,  would have no power to decide it.  The learned Attorney-General at once  objected because the point had not been raised at  any stage and was not to be found even in the grounds of  appeal to  this  Court.   The learned counsel  for  the  appellants replied   that  they  did  not  wish  to  take  the   point. Accordingly,  we  have  to  proceed  in  this  case  on  the assumption  that the amending Act of 1952 (Act LIX of  1952) is  valid.   That results in the position we  have  outlined above.   There is a choice, not only of forum, but  also  of procedure  and  the extent of the maximum penalty.   If  two separate authorities are given the right to                             1185 choose  and  neither can encroach upon the preserve  of  the other,  then  the Governor-General has  not  sanctioned  the present prosecution against the second accused and no  other authority has the power to do so. Therefore, in that  event, the sanction given to prosecute under section 5(2) cannot be used  to  cover  the present trial because it  is  given  by another authority not competent to give it. On  the other hand , if the two authorities are really  one, then  the election has been made clearly and  unequivocally. The  sanction is to proceed in the special courts  with  the special  procedure  and  the second accused  is  not  to  be exposed  to the risk of the higher penalty.  In that  event, the present trial against the second accused is incompetent. That  a defect of this kind is fatal and cannot be cured  is well settled.  See the Privy Council in Gokulchand Dwarkadas v.  The  King(1), the observations of Varadachariar,  J.  in Hori  Ram  Singh v. The Crown(1) and the  decision  of  this Court in Madan Mohan v. The State of Uttar Pradesh(1).   But the  learned  Attorney General argued that no  sanction  was necessary because, according to him, despite what the second accused says, by no stretch of imagination can he be said to have  been  acting,  or  even  purporting  to  act,  in  the discharge  of  his  official  duty.   The  argument  ran  as follows:-The  act complained of here is the breach of  trust and the prior abetment of it: the breach occurred as soon as the  goods  were loaded on Mohsinbhai’s lorries: it  was  no part  of  this  accused’s  official  duties  to  permit   an unauthorised  removal  of  the goods:  therefore.,  when  he allowed that he neither acted. nor purported to act, in  the discharge of his official duties.  Reference was made to the decision  of the Federal Court in Lieutenant  Hector  Thomas Huntley v. The King-Emperor(1) where Zafrullah Khan, J. held that "it must be established that the act complained of  was an official act", and to the observations of  Varadachariar, J. in Hori Ram Singh v. The Crown(1) (1)  A.I.R. 1948 P.C. 82. (3)  A.I.R. 1954 S.C. 637, 641. (2)  [1939] F.C.R. 159, 184. (4)  [1944] F.C.R. 262, 269. (5) [1939] F.C.R. 159, 186. 1186 where, dealing with section 409 of the Indian Penal Code, he says- "Though  a  reference to the capacity of the  accused  as  a -public servant is involved both in the charge under section 409  and  in  the charge under section 477-A,  there  is  an important  difference between the two cases, when one  comes



to  deal  with  the act complained of.  In  the  first,  the official  capacity is material only in connection  with  the ’entrustment’ and does not necessarily enter into the  later act of misappropriation or conversion, which is the act com- plained of". What  this  argument  overlooks is that the  stress  in  the passage  quoted is on the word "necessarily" which  we  have underlined.  A later passage at page 187 explains this: "I  would  observe  at  the  outset  that  the  question  is substantially  one of fact, to be determined with  reference to the act complained of and the attendant circumstances; it seems  neither  useful  nor  desirable  to  paraphrase   the language  of the section in attempting to lay down hard  and fast tests". With that we respectfully agree.  There are cases and  cases and each must be decided on its own facts. Now  it  is  obvious  that if section 197  of  the  Code  of Criminal Procedure is construed too narrowly it can never be applied,  for of course it is no part of an official’s  duty to  commit an offence and never can be.  But it is  not  the duty  we  have  to examine so much as the  act,  because  an official  act can be performed in the discharge of  official duty  as  well  as in dereliction of it.   The  section  has content  and  its language must be given meaning.   What  it says is- " 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...... We   have  therefore  first  to  concentrate  on  the   word "offence". Now  an  offence  seldom consists of a single  act.   It  is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be                             1187 established.   In  the present case,  the  elements  alleged against  the  second accused are, first, that there  was  an "entrustment"   and/or   "dominion";   second,   that    the entrustment and/or dominion was "in his capacity as a public servant";  third, that there was a "disposal";  and  fourth, that  the disposal was "dishonest".  Now it is evident  that the  entrustment and/ or dominion here were in  an  official capacity, and it is equally evident that there could in this case  be  no disposal, lawful or otherwise, save by  an  act done  or  purporting  to be done in  an  official  capacity. Therefore, the act complained of, namely the disposal, could not have been done in any other way.  If it was innocent, it was  an  official act; if dishonest, it  was  the  dishonest doing  of an official act, but in either event the  act  was official because the second accused could not dispose of the goods  save  by  the  doing  of  an  official  act,   namely officially  permitting their disposal; and that he did.   He actually  permitted their release and purported to do it  in an  official capacity, and apart from the fact that  he  did not  pretend  to act privately, there was no  other  way  in which  he  could  have done  it.   Therefore,  whatever  the intention  or  motive  behind the act  may  have  been,  the physical  part  of  it  remained unaltered,  so  if  it  was official  in  the one case it was equally  official  in  the other,  and the only difference would lie in  the  intention with  which it was done: in the one event, it would be  done in  the discharge of an official duty and in the  other,  in the purported discharge of it. The  act of abetment alleged against him stands on the  same footing,  for  his part in the abetment was  to  permit  the



disposal  of the goods by the doing of an official  act  and thus   "wilfully   suffer"  another  person  to   use   them dishonestly: section 405 of the Indian Penal Code.  In  both cases,  the  -’offence"  in his  case  would  be  incomplete without proving the official act. We  therefore hold that section 197 of the Code of  Criminal Procedure  applies and that sanction was necessary,  and  as there  was  none the trial is vitiated from the  start.   We therefore quash the proceedings 152 1188 against  the  second  accused as  also  his  conviction  and sentence. We now turn to the appeal of the first accused.  He has been convicted  under section 409 of the Indian Penal  Code  read with  section  34.   The main point here  concerns  a  vital misdirection  in  the charge to the jury about  section  34. The  learned  Additional Sessions  Judge  misunderstood  the scope  and  content of this section and so  misdirected  the jury about the law. The section was expounded at length in paragraphs 15 and  16 of the charge and though some of the illustrations given are on  the right lines, there is much there that is  wrong  and which,  if acted on, would cause a miscarriage  of  justice. The essence of the misdirection consists in his direction to the jury that even though a person "may not be present  when the  offence is actually committed" and even if  he  remains "behind  the  screen" he can be convicted under  section  34 provided  it  is proved that the offence  was  committed  in furtherance of the common intention.  This is wrong, for  it is  the  essence  of the section that  the  person  must  be physically  present at the actual commission of  the  crime. He  need  not  be present in the actual room;  he  can,  for instance,  stand guard by a gate outside ready to  warn  his companions about any approach of danger or wait in a car  on a nearby road ready to facilitate their escape, but he  must be  physically  present at the scene of the  occurrence  and must  actually participate in the commission of the  offence in some way or other at the time the crime is actually being committed.   The  antithesis  is  between  the   preliminary stages, the agreement, the preparation, the planning,  which is covered by section 109, and the stage of commission  when the  plans are put into effect and carried out.  Section  34 is concerned with the latter.  It is true there must be some sort of preliminary planning which may or may not be at  the scene  of  the  crime and which may have  taken  place  long beforehand,  but  there must be added to it the  element  of physical  presence at the scene of occurrence  coupled  with actual participation which, of                             1189 course, can be of a passive character such as standing by  a door, provided that is done with the intention of  assisting in furtherance of the common intention of them all and there is  a  readiness to play his part in the  pre-arranged  plan when the time comes for him to act. The  emphasis in section 34 is on the word "done":  "When  a criminal  act  is done by several  persons..........  It  is essential that they join in the actual doing of the act  and not  merely in planning its perpetration.  The  section  has been elaborately explained by Lord Sumner in Barendra  Kumar Ghosh v. The King-Emperor(1).  At page 52, he explains  that "participation in action" is the leading feature of  section 34.  And at page 53 in explaining section 114 of the  Indian Penal Code, he says- "Because  participation  de facto (as this case  shows)  may



sometimes  be  obscure in detail, it is established  by  the presumption juris et de jure that actual presence plus prior abetment  can  mean nothing else,  but  participation.   The presumption raised by section 114 brings the case within the ambit of section 34". At page 55 he says about section 34 that- "participation and joint action in the actual commission  of crime  are, in substance, matters which stand in  antithesis to abetments or attempts". The  misdirection  is plain and it goes to the root  of  the matter  because the jury returned a verdict of guilty  under section  409 of the Indian Penal Code read with  section  34 alone and not under section 409 read with section 109. It  is part of the defence of the first accused that he  was not  present when the goods were loaded nor was  be  present when they were allowed to pass out of the gates, that is  to say, that he was not present when the offence was committed. It is true there is evidence to show that he was there  when the  lorries  left but apart from the fact that there  is  a small discrepancy on the point, there is nothing to indicate that this evidence was believed.  If he was not present he (1)  [1924) L.R. 52 I.A. 40. 1190 cannot  be convicted with the aid of section 34.   He  could have been convicted of the abetment had the jury returned  a verdict to that effect because there is evidence of abetment and the charge about abetment is right in law.  But the jury ignored the abetment part of the charge and we have no means of  knowing whether they believed this part of the  evidence or not. There is also non-direction on an important point which  may have  caused  a miscarriage of justice.  The  case  for  the prosecution  is  that the accused disposed of the  goods  to Mohsinbhai for a sum of Rs. 4,000 which was duly paid to the second  accused on the 10th.  The learned trial  Judge  told the jury that- "the  evidence led by the prosecution about the  payment  of the Rs. 4,000 is proved to be utterly useless", and  in telling them why he gave them a number  of  reasons. But  he  omitted to follow this up by telling them  that  if they  rejected  this  part of the prosecution  case,  as  he invited  them  to do, then the strongest part  of  the  case against  the  accused  collapsed because  officers.  in  the position of the accused do not commit illegal acts like this and expose themselves to a prosecution and possible disgrace unless they are prompted by some strong motive, usually self interest;  and though a conviction can be based on  evidence which does not disclose a motive if the facts proved justify such a course, yet it would ordinarily be unsafe to  convict in  a  case  like  the  present  in  the  absence  of  proof indicating  an adequate reason for criminal behavior on  the part  of the accused.  Had the jury been told this, as  they should  have  been,  it  is possible  they  would  not  have returned a verdict of guilty. In  the circumstances, we have no alternative but  to  quash this conviction also. We  have now to consider whether there should be a  retrial. As  the  present  trial cannot proceed  against  the  second accused,  and as all the accused are said to have  acted  in concert each playing an appointed part in a common plan,  we do not think it would be right                             1191 to direct a retrial though this is the normal course when  a jury  trial is set aside on the grounds of misdirection  and non-direction.  We therefore discharge (not acquit) both the



appellants  leaving  it  to Government either  to  drop  the entire  matter  or to proceed in such manner as  it  may  be advised.   We  do this because the accused  expressly  asked that  the  charge  under the Prevention  of  Corruption  Act should  be  left  over  for  a  separate  trial.   The   two convictions  are therefore quashed and also  the  sentences. We  are told that the first accused has already  served  out his sentence.  The fine if paid, will be refunded.  The bail bond of the second accused will be cancelled.