C. l:,, SUBRAMANIAM .

COLLECTOR OF CUSTOMS, COCHIN

February 15, 1972

(K. S. HEGDE AND K. K. MATHEW, JJ.]

Art. 311 of the Constitution read with Central Civil Services (Conduct) Rules, 1955-Rule 12(1)'-Preventive ojJicer, Customs, purchased taxis in the name of his wife after informing higher authorities-Whether

vilation of rule 12(1) Central Civil Services .(Conduct) Rules 1955- Whether denial of the assistance of a lawyer i• violation' of the Rule of th• Central Civil Services (Classification, Control and Appeal) Rules, 1951.

The appellant, a preventive officer, applied for permission to allow his wife to run a taxi service. He was informed that no permission was necessary. Thereafter, appellant acting on behalf of his wife, purchased a few cars which wero used 'as tax.is. Later several complaints were made against him to the effect that he was canva.Ssing business for his wife. Enquiry was made and the appellant was served with a memorandum stating that while functioning as Preventive Officer he had contravened the prov:isions Of Rule .

12(1) of the Central Civil Services (Conduct) Rules 1955. The factual allegation made against. him was that, he canvassed business for his wife . . An Enquiry Officer was appointed.

On enquiry the appellant was found guilty of contravening rule 12(1) of the Central Civil Service (Conduct) Rules 1955, and. his removal from service was recommended.

On the basis of that: recommendation, the Disciplinary Authority served on the appellanj: a notice to show cause why he should not be removed from service.

The appellant submitted his explanation; but the Disciplinary Authority was not satisfied and consequently, the appellant was removed from service.

The appellant challenged the order by a writ petition which was dis missed both by a single judge as well as by a Division Bench of the High Court.

On appeal to this Court, it was contended by' the appellant that he was not given .a reasonable opportunity of being heard in respect of the charge levelled against him and there was a violation of rule 15 of the Central Civil Services (Classification, Control & Appeal) Rules 1957 and Art. 311 df the Constitution. 'Hence the order of ,..emoval was bad in law One trained police prosecutor. was appointed as the officer tn present the case before the Enquiry Officer in support of the allegations made against the appellant. Therefore, the appellant wrote to the Dis ciplinary Authority for permission to engage a counsel to defend his case, but even after a number of written requests, he was not given the permission to engage a legal practitioner to defend himself.

Further, the appellant was denied . the assistance of a government servant.- Allowing the appeal,

HELD : ( i) In the facts and circumstances of the case, it was clear that the appellant bad not been afforded a reasonable opportunity to defend himself, 1be grievance of the appellant that he was pitted against a trained prosecutor w .. not considered by the Disciplinary authority.

The fact that the case against the appellant was being bandied by a trained prosecutor w.. a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales should be weighted against 3-L!031SupCJl72

him.

The disqiplinary authority completely ipored that circumstance.

A Therefore, that authority clearly failed to exercise the power con'ferred on it _under the rule. [490 GJ

(ii) There had been a clear violation of rule 15(5) of the Central Civil Service (Classification, Control & Appeal) Rul01 1<)57 which provides for the engi, igement of a legal practitioner in certain circumstances.

The present case -required that the appellant be given a chance to defend B himself by a legal practitioner. Since he was denied such an opportunity, the order was bad and therefore, it should be struct down. J,4<)5 HJ

Pet, v. Greyhound Racing Assn. Ltd., [1%8] 2 All E.R. 545; Kalindi & Ors. v. Tata Locomotive &, Engineering Co. Ltd, [1%0] 3 S.C.R. 407; Brooke Bond India Private Ltd. v. S11bba Ramman (S) & another, [1961] 2 L.L.J. 417, discussed and distinguished. c CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11 of 1971.

Appeal by Special Leave from the judgment and order dated March 26, 1970 of the Kerala High Court in Writ Appeal No. 197 of 1968.

Appe/larlti appeared in person.

Gobind Dass and S. P. Nayar, for the Respondent.

The Judg1llent of the Court 'was delivered by

Hedge, J, This is an appeal by special leave. The appellant E was a Preventive Officer, Grade II, Customs Office, Cochin from June 16, 1962 lo January 31, 1963. In April 1962, he applied to the Assistant Collector of Customs, seeking permission to allow his wifo to run a taxi service. ' He was informed that no permission was necessary for his wife to operate a taxi service but he should no.I canvass any business for his wife.

Thereafter, it is said that the appellant acting on behalf of his wife purchased some

'I! cars which were used as taxis. It appears that there were several complaints against the appellant to the effect that he was canvassing business for his wife. 1 Those complaints were enquired into.

Thereafter on March 25, 1963 the appellant was seri'ed with'. a memorandum stating that while functioning as Preventive Officer, Grade II, Cochin Customs House, during the period June 1962 to G January 31, 1963 he had contravened the provisions of rule 12(1) of the Central Civil Services (Conduct) Rules, 1955. The factual allegation made against the appellant was that he canvassed business for his wife. He was to!<! that an enquiry will be held against him on the basis of that charge.

Sri H. T. Soares, Assistant Collector, Customs House, Cochin 8

was appointed as the Enquiry Officer.

During the pendency of the enquiry an additional grou11d in support of the charge was

served on the appellant to the effect that he himself was running the taxi service. After enquiry the Enquiry Officer came to the conclusion that the allegations made against the appellant were established and consequently he was guilty of contravening rule 12{1) of the Central Civil Service (Conduot) Rules, 1955. The Enquiry Officer recommended appellant's removal from service.

B On the basis of that recommendaiion the Disciplinary Authority served on the appellant a notice to show cause why he should not

be removed from service. The appellant submitted his explanation. But the same was not accepted by the Disciplinary Authori'ty. In the .result the appellant was ordered to be removed from service.

The appellant challenged that order by !lleans of a petition under Art. 226 of the Constitution before the High Court of Kerala.

His writ pettion was first heard by a single judge who dismissed the same and. the order. of the single judge was affirmed by a Division Bench 6f that High Court. Hence this appeal.

The appellant personally argued his appeal.

He challenged the validity of the order J.>emoving him from service on various

grounds. As _we are of the opinion ll:hat the appellant had not been afforded reasonable opportunity to present his case and con

sequeptly the impugned order has to be struck down, we do nat think it necessary to examine other contentions advanced by the E appellant.

The appellant who was a member of the civil service of the Union of India was holding his office during the pleasure of the President; but in view of Art. 311 of the Constitution, he could not have been removed from service except after enquiry in which he had been i:iven a reasonable opportunity of being heard in respect of the charge levelled against him.

This procedural guarantee is undoubtedly a valuable one.

Breach of that guarantee vitiates the enquiry.

Removal from service is a major penalty.

Procedure for imposing major penalties is prescribed in rule 15 of the Central . Civil Services (Classification, Control and Appeal) Rules, 1957, G a rule framed under Art. 309 of the Constitution. Sub-rule (5) of that rule provides :

"The Disciplinary Authority may nominate any person to present the case in support of the charges before tll'~ authority inquiring into the charges (hereinafter referred to as the Inquiring Authority). The Government servant may present his case with the assistance of any Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for othe purpose unless the person nominated by

the Disciplinary Authority as aforesaid is a legal praotitioner or unless the Disciplinary. Authority, having re gard to the circumstances of the case, so permits."

This rule bears upon the reasonable opportunity contemplated by Art. 311. The validity of this rule was not challenged. Hence all that we have to see is whether the rule had been complied with.

For deciding this quesiioit rt is necessary to refer, to the relevant facts.

In September 1963, one A. M. Shivaraman was appointed as the officer to present the c•se before the Enquiry Officer in sup ' port of the allega'tions made aainst the appellant. The said Shivaraman was a trained police prosecutor.

After he was ap pointed to present the case in support of the allegations made against the appellant, the appellant wrote to the Collecor of Customs, Cochin, the Disciplinary Authority on October 4, 1963 as follows :

Sir,

"From : C. L. Subramaniam, Preventive Officer,· Customs House, Cochin-3.

The Collector of Customs, Customs House, Cochin-3.

Sub : Sec. 1/63 Estt-Cus d!l'ted 30th September 1963.

In the above memorandum it is stated in paragraph 4, that Shri A. M. Sivaraman as the officer to present the case in support of, tho~ allegll'tions against me before the Enquiry Officer.

I understand that Shri A. M. Sivaraman is legally trained to conduct such prosecutions. Under such circumstances I will be prejudiced in my defenoe unless I am permitted to engage a counsel to appear and defend

me during the enquiry. Hence I request that permission G be accorded to engage a lawyer of my choice to represent and defend the charges before the Enquiry Officer.

Cochin-3, 4-10-1963

Yours faithfully,

Sd/· C. L. Subramaniam".

He aitain reiterat>ed his request for permission to engage a Counsel to liefend him in his Jetter to the Assistant Collector on

October 9, 1963. Thereafter he again wrote to the Collector of Customs on October 14, 1963 as follows ;

" .... It may' help me very much too, if you can grant the permission I have sought for engaging a Counsel of my choice at an early date so ithat I could get the Counsel's assistance for the inspection of documents too."

On October 17, 1963, Sri Soares, Assistant Collector of Customs wrote to foe appellant thus ;

"Secret 1/1/63 Est. Cus

Custom House, Cochin-3 17th September 1963

From:

The Assistant Collector of Customs, Appraising Department, Cu&toms House, Cochin-3

Shri C. L. Subramaniam, Preventive Officer, CuS'tol)l House, Cochin-3.

Sub ; Establishment-Inquiry into the work and conduct of Shri C. L. Subramaniam, Preventive Officer, Custom House, Cochin.

With reference to your letter Sc. 1/63/Estt Cus dated 14th October 1963, requesting permission for engaging a counsel to appear and defend you, during the enquiry, I am directed by the F Collector to inform you that although Shri A. M. Siyaraman is legally trained, he is not a legal practitioner and hence there is no necessity for engaging a lawyer to defend you at the enquiry.

Sd/- H. T. Soares, Assistant Collector of Customs".

G It is clear from that letter that the Disciplinary Authority had overlooked the fact that the appellant sought permission to engage :a counsel not because Sivaraman was a legal practitioner but because he was trained prosecutor.

On January 6, 1964, the appellant again wrote to the Collector of Customs explaining his difficulties in def.ending himself. In H paragraph 4 of that letter, the appellant stated :

"In the nature of accusations made against me and the naoture of their widespread source the nnportance •

of the informants and their intentions, the varying •types of witnesses supporting the charge, the complicated nature of the evidence, the inexperience I have in assessing the impact of such evidence and in sifting the evidence for preparing an effective cross-examination and above all the lurking conspiracy of a series of persons whom I have to deal with firmly in discharging my duties as a Preventive Officer, all these when considered can lead you to the only conclusion that if I am denied the assistance of an experienced counsel at the enquiry it would be tantamount to denial of an opportunity to defend myself and prove my innocence. This

woul!I be particularly so in the context of •the present enquiry where evidence have sought to be brought in by different stages and alleged incidents subsequent to the charges are sought to be proved in support of the allegations made before such incidents."

Despite these communications, the appellant was not given permission to engage a legal practitioner to defend .himself.

D Therefore the question arises whether the appellant was given reasonable opportunity to defend himself in accordance with subrule ( 5) of rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. The portion of that rule that is relevant for out present purpose is the last clause which says that the Government servant may nat engage a legal practitioner for the purpose mentioned in that clause "unlss the Dis- E ciplinary Authority having regard to the circumstances of the case so permits".

The grievance of the appellant was that he was pitted against a trained prosecutor and not that Sivaraman was a legal practitioner.

The Disciplinary Authority did not consider that grievance. It brushed aside the request of the appellant on the l!fOund that Sivaraman was not a legal practitioner, a consideration which was not relied on by the appellant.

The grounds urged by the appellant in support of his request for permission to engage a legal practitioner were by no means irrelevant.

The

fact that th!! case against the appellant was being handled by a trained prosecutor was a good ground for allowing •the appellant G to engage a legal practitioner to defend him lest the scales should be weighted against him. The Disciplinary Authority completely ignored that circumstance. Therefore that authority clearly failed to exercise the power conferred on it under the rule. It is not unlikely that the Disciplinary Authority's refusal to permit the appellant to engage a legal practitioner in the circumstances mentioned H earlier had caused serious prejudice to the appellant and had amounted to a denial of reasonable opportunity to defend himself.

' ''.ii.

c. L. SUBRAMAN!AM v. COLLECTOR CUSTOMS (Hegde, /.) 491

The appellant contended that he had a right to engage a legal practitioner to defend him. He sought to spell out that right on the basis that "'.hat he could himself do, he could get it done by an agent of his and a legal practitioner acting for him would only have been his agent. In support of his contention he placed reliance on the decision in Pet v. Greyhound Racing Association B Ltd. (1). The facts of that case were as follows :

Track stewards of a greyhound racing stadium owned by the defendants proposed to hold an inquiry into he withdrawal of a

triner's dog from a race at a stadium licensed by the National Greyhound Racing Club. The inquiry involved the question whether drugs had been administered to the dog.

The trainer held a licence from the National Greyhound Racing Club entitling him to race dogs on tracks lirensed by the club, and thus the result of the inquiry might involve the trainer's reputation and livelihood. The rules of the club, to which the trainer had agreed when he obtained his licence, did not prescribe the procedure to be followed by track stewards at their inquiries, and did not exclµde legal representation.

The procedure in fact followed at such an inquiry allowed the trainer to be present, to hear the evidence and 10 have an opportilnity to question witnesses. The trainer sought o be represented by counsel and solicitor at the enquiry hut the track stewards decided ultimately not to allow legal representation. On appeal from the grant of an interlocutory injunction restraining the inquiry from being held unless the trainer were allowed to be represenred, the Court of Appeal held that prima facie the trainer was entitled to an oral hearing and, the inquiry being one of serious importance to him, to be represented as it by counsel and solicitor, for he was entitled not only to appear himself but also to appoint an agent on his behalf, and so was entitled to appoint lawyers to represent him.

Lord Denning, M. R. who delivered the main judgment of the court in the course of his judgment dealing with the decision of stewards that they will not hear lawyers observed :

"I cannot accept this contention. The plaintiff is here facing a serious charge. He is charged either with

giving the dog drugs or with not exercising proper control over the dog so that someone else drugged it. If "he is found guilty, he may be suspended or his licence may nQ! be renewed. The charge concerns his reputation_ and his livelihood.

On such an inquiry I think that he i$ entitled not only to appear by himself but also to appoint an agent to act for him. Even a prisoner can have bis friend." ·

(l) [1968] 2 All E.R, S4S.

Proceeding further the Master of Rolls observed :

"I should have thought, therefore, that when a man's reputation 'or livelihood is at stake, he not only has a right to spak by his own mouth. He has also a right to speak by counsel or solidtor."

B This decision, in our opinion, does not bear on the point under consideration. Herein we are dealing with a statutory rule, which prohibits the appointment of a legal pra<ltitioner excepting under certain circumstances. Hence the agency theory has no relevance no]'_ ar>! we required to consider the principles of natural justice as those principles are only relevall't when the concerned procedure is not regulated by any statute or statutory rule. The C rule laid down in Pet's case('') has not commended itself 'to this Court. In Kalindi and ors. v. Tata Locomotive and Engineering Co. Ltd. (2), a question arose whether in an enquiry by management into misconduct of a workman, the workman was entitled to be represented by a representative of the Union.

Answering this question this Court observed that a workman against whom an enquizy is being held by the management has no right to be represented at such an enquiry by. a representative of the Union though the employer in his discretion can and may allow him to oo so represened. In such enquiries fairly simple questions of fact as to whether certain acts of misconduct were committed by a workman or, not fall to be considered and the workman is best suited to conduct the case. Ordinarily, in enquiries before domestic tribunals a person accused of any misconduct conducts his own case and so it cannot be said that in any enquiry against a workman natqral justice demands that he should be repre9!nted by a representative of his Union. The same view was taken by this Court in Brooke Bond India (Private) Ltd. v. Subba Raman

(S) and anr.( 8 ). That view was reiterated again in Dunlop Rubber Co; v. Workmen('). ·

The learned counsel for the State relied on the decisions mentioned above in support of his contention that the appellant was

not entitled to have the assistano! of a legal practitioner. . This con, tention is without force.

In those cases this Court considered G whether a person proceeded against in an enquiry before a domestic tribunal had a right to be represenled by someone else on the basis of the principles of natural justice. 1bereln this Court was not called upon to consider either the limits of the reasonable opportunity to defend oneself, guaranteed under Art. 311 or the scope of a statutory rule. The question th, at falls for decision in this case did not arise for decision in those cases.

(1) [1968] 2 All E.R. 545.

(2) [1960] 3 S.C.R. 407,

(3) [1961] 2 L.L.J. 417.

(4) ]1965] 2 S.C.R.139.

A The appellant supported his complaint of breach of rule 1 S ( S) on yet another ground. After the appellant's request for engaging a counsel was rejected, he requested the Disciplinary Authority to let him have the assistance of Abraham Kurian, clerk, Cochin Head Post Office, Cochin-1. This request be appears to have made long before the date of enquiry i.e. December 5, 1963. 8 He bad also requested the Disciplinary Authority 1to move the superiors of Abraham Kurian to grant permission to Abraham Kurian to assist him. But it appears the Disciplinary Authority wrote to the Superintendent of Post Offices who is stationed at Tricbur only on the 28th of November, 1963 requesting him to permit Abraham Kurian to assist the appellant. . That communica- C tion wa~ not received by the Superintendent of Post Offices in time. Hence Abraham Kurian did not get the permission sought l?efore the date of enquiry.

After learning that fact from Abraham Kurian, the appellant wrote the following letter to the Collector of Customs on December 4, 1963.

D "Sec. 1/1/63 IEstt-Cus.

; ii: From:

To:

C. L. Subramaniam,

No. 16 Customs Quarters Willingdon Island, .P.O.

Cochin-3. 4th December, 1963.

:e_reventive Officer Gr. II, Customs House, Cochin-3. ·

F The Collector of Customs & Central EJ!:cise, Custom House, Cochin-3.

Sir,

Sub-Enquiry into the work and conduct of Shri C. L.

G Subramaniam, Prevemive Offioor, Custom House, Cochin-3.

With reference to your letter dated 3rd December, 1963 I wi$h to submit as follows :

H Shri Abraham Kurian, Cbrk, Cochin Head Post Office who js to assist me in the enquiry from 5-12-1963 in connection with certain allegations pending against me has urgently applied to bis . superior :v.esterday i(Self and is awaiting permission.

As I cannot appear for the enquiry without assistance I request you Sir, to adjourn the hearing by 10 days.

Thanking you,

I remain Sir,

Yours faithfully, Sd/·, C. L. Subramaniam."

On the qa1e of the enquiry, the Enquiry Officer adjourned 'the case sine die after obtaining an undertaking from the appellant that on the next da:te of the enquiry he would go on with the case even if he was unable to get the assistance of Abraham Kurian on that date.

O:n Deceml>r 9, 1963, the appellant wrate to the Enquiry Officer as follows :

"Sec. No. 1/1/63 Estt. Cus.

9th December 1963

From

To:

Sir,

C. L. Subramaniam.

Preventive Officer, Custom House, Cochin-3.

The Asst!. Collector of Cutoms (Apprg.), Enquiry Officer, Custom House, Cochin-3.

Sub : Enquiry into the work and conduct of Shri C. L. Subramaniam, Preventive Officer, Custom House, Cochin.

I understand from a communication from the Senior Super intendent of Post Offices, Trichur addressed to the Assistant Col lector of Customs ( Apprg.), Custom House, Cochin with copy endorsed to Shri Abraham Kurian, that your communication in forming that the enquiry was to have been held from 5-12-1963 was received by the Senior Superintendent of Post Offices only on 5th December, 1963, and therefore the relief arrangement could not be made by him.

Now that the enquiry is adjourned it is requested that you may be good enough to inform ithe Senior Superintendent of Post Offices, Trichur (Superior Officer of the Government who. assists

me) sufficiently arly as to the date of the enquiry, so that he may relieve the Government servant in time.

It is humbly pointed out that unless your goodself take necessary action in iime in this regard it may not be possible •to get me the assistance I have requested for.

Yours faithfully, Sd/- 9-12-63 (C. L. Subramaniam)"

Even after getting this letter, the Enquiry Officer did not fix the date of the enquiry. It appears that on December 30, 1963 the Enquiry Officer fixed January 8, 1964 as the date of enquiry.

It is only thereafter he wrote to the Superintendent of Post Offices requesting him to permit Abraham Kurian to assist the appel!ant.

It is not known when tha!t letter was received by the Superintendnt of Post Offices but Abraham Kurian did not get the permission sought, before 'the date of enquiry. Therefore he was unable to assist the appellant in the enquiry. Hence the enquiry went on without t]]e appellant having anybody's assistance.

From •th!' facts set out above, it is clear that the Enquiry Officer di.ct not afford the appellant necessary facility to have the assistance of another Government servant in defending him which assistance he was entitled 'to under the rule.

He W!U deprived of that assistance solely because of the indifferent aititude adopted by the Enquiry Officer. Therefore we have no hesi'tation in comin.g to the conclusion that the Enquiry Officer bad clearly breached rule 15(5).

It is needless to say that rule 15 is a mandatory rule. That rule regulates the guarantee given to Government servant$ under Art. 311. Government servants by and large have no legal training. At any rate, it is nobody's case that the appellant had legal training, Moreover when a man is charged with the breach of a rule entailing serious consequences, he is not likely to be in a position to present his case as best as it should be. The accusation against the ppellant •threatened his vry livelihood. Any adverse verdict against him was. bound to be disastrous to him; as it has proved to ~- In such ; a situation he cannot be expected to act calmly and with deliberation.

That is why rule 15(5) has provided for representation of a Government servant charged with dereliction of duty or with contravention of the rule by iinother

overnment servant or in appropriate cases by a legal practitioner.

For the reasons mentioned above, we think that there had been a contravention of rule 15(5). We are also of the opinion

1hat the appellant had not been afforded a reasonable opportunity A to defend himself.

Hence the impugned order is liable to be struck down and it is hereby struck down. The facts of 1his case are not such as to justify any fresh enquiry against the appellant.

Hence we direct that no fresh enquiry shall be held against the

appellant and he be restored to the position to which he would have been entitled to but for 1he impugned order. The appeal is B accordingly allowed. The appellant is entitled to his costs from the respondents both in this Court as well as in the High Court. s.c.

Appeal allowed.

l:,, SUBRAMANIAM

COLLECTOR OF CUSTOMS, COCHIN

K. S. HEGDE

K. K. MATHEW, JJ.

Art. 311

Art. 311

CIVIL APPELLATE JURISDICTION

Gobind Dass

S. P. Nayar

Cochin

March 25, 1963

January 31, 1963

H. T. Soares

Art. 226

High Court of Kerala

Art. 311

Art. 309

Art. 311

A. M. Shivaraman

Shivaraman

Collecor of Customs, Cochin

October 4, 1963

C. L. Subramaniam

Sec. 1

A. M. Sivaraman

A. M. Sivaraman

Soares

C. L. Subramaniam

A. M. Siyaraman

Sivaraman

January 6, 1964

National Greyhound Racing Club

Denning

Art. 311

[1960] 3 S.C.R. 407

Abraham Kurian

Tricbur

Sec. 1

C. L.

G Subramaniam

Abraham Kurian

C. L. Subramaniam

5th December, 1963

Trichur

December 30, 1963

January 8, 1964

Art. 311


SOM NARIB PURI

l'.

THE STATE OF RAJASTHAN

February 15, 1972

[J.M. SHELAT, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.J

Penal Code, Indian (45 of 1860)-Section 405, 409-Criminal Breach of Trust-'Entrusted,' ffleaning.

The appellant who was an employee of the Indian Airlines Corporation was convicted under s. 409, Penal Code, and section 5(2) read with section 5(1) (c) of the Prevention of Corruption Act,

1947. The e.ppzllanfs duty was to make reservations for the passengers. The pJ:actice was that whenever the quota was full intending travellers were required to pay trunk telephone charges for enabling the Corp<iration to obtain relc::r.se of seats from quotas 'lllotted to other centres. The appellant \vllc was incharge of this arrangem-ent, it was allt!ged, collected Rs. 184.90 towards trunk telephones charges but actually deposited with/ the corporation 9nJy a sum of Rs. 44.90 and misappropriated the balance.

The 1nod11s operandi, it was alleged, was that he would demand a higher amoutli for Trunk Call charges than was Jik.ely to .be in<1Urred and be \vould isslJe a correct receipt for this amount on behalf of the corporation bnt aitor making the trunk call, he would alter the counterfoil with the octual amount of trunk call charges. In the appeal , to this Court it was urge.ct that since the prosecution case as disclosed by: the evidence was that .the appellant had collected excess charges representing them to be actual charges for trunk calls and not that any excess over the actual charges would be returned to the appellant be could not be convicted either under s. 5(2) read with S(l)(c) of the Prevention of Corruption Act or uudr s. 409 penal code, because, the important ingredient, viz., enlhli; tment cf the amount was abs, ent.

Dismissing the appeal,

HELD : (i) The expression 'entrusted' in section 409 is used in a W.<le sense and inc\udes all cases in whic; b property is voluntarj!yJ1anded O'fr ior a specific purpose and is dishonestly disposed ·<>f contrary to the terms on which possession !)as been handed over. As long as tlr: accused is gh en possession of property for. a specific purpose or to deal with it in <: particular manner, the ownership being in some person other than the accmed, he can be said to be entrusted with that property to be applied' in accordance with the terms of entrustment and for the benefit of the owner. It may be -that a person to whom the property is handed over may tc an agent of the person to whom it .is entrusted or to whom it ma1• belong in which <)lse, if the ag:nt who comes into possession of it on behuif of his principal, fraudulently misaPPl'OPriates the property, he is nonetheless guilty of criminal, breach of trust, because, as an uent be ls enlruted with it. A person authorised to collect moneys on behalf of •nother II entrusted with the money when the ..mounts are paid to him, and though the person paying may no longer have any 'Proprietary in terest, nonetheless, the person on whose behalf it was collected become the owner as soon as the amount is handed ovrlr to the person so authorised to collect on his behalf. (502 DJ

The State v. Dahyalal Da/patram, A.LR. 1960 Born. 53; Ir. re: Ram A Soonder Poddar & Ors. 1878 (2) Cal. LR. 515; In re: Ramappa, (1911) 22 M.LJ. 112; In re: Venkata Raghunatha Sastri, (1923) 45 M.L.J. 133 and the, Crown Prosecutor v. J. Mclyer and K. S. Narasimhachari, 69 M.L.J. 681, referred to.

(ii) In the present case the amounts for trunk call cjiarges were demanded on behalf of the Corporation and we"> paid to the Corporation.

B .The receipts in respect of the sums were given on behalf of the Corpe

ration and it would be the Corporation tht would b<> liable directly to the p<>rson who had paid this amoun4 if no trunk calls were made, or any excess over the actual amoun.t of the trunk calI charges was charged by it.

The amount was not paid by passengers to the accused as f>uch but to

thr~ corporation and as soon a~ the receipt for the amount actually received from the passengers was given by the ac'Cused on behalf of the corpoartion, he was .entrusted with that an1ount.

His subsequent conc duct in falsifying the counterfoils '3Dd fraudulently misappropriating tho.!

JLmount would make him guilty of criminal breach of trust under s. 409 I.P.C., as also under section 5(2) read with section 5(1)(c) of the Act.

[604 EH]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 101 of 1969.

Appeal by special leave from the judgment and order dated April 16, 1969 of the Rajasthan High Court in S. B. Criminal Appeal No. 558 of 1966.

A. S. R. Chari and S. B. Wad, for the appellant.

K. !3 Mehta, for the respondent.

The Judgment of the Court was delivered by Jaganmohan Reddy, J.

This is an appeal by special leave against the judgment of the Rajasthan High Court. The accused was initially charged on three counts, firstly, under section 5(2) read with section S(l)(c) of t!ie Prevention of Corruption Act 1947 (hereinafter referred to as 'the Act'), secondly, under section 409, I.P.C., and .thirdly, under section 477A, I.P.C. Thereafter on 15-1-1964 another Special Judge charged him on two counts, namely, under section 5(2) read with section 5 (1)( c) and section 5(2) read with section 5(1)(w) of the Act. After the trial, the appellant was, however, convicted under section 409, I.P.C. and section 5(2) read with section 5(1 )(c) and (d) of the Act and sentenced to rigorous imprisonment of 18 months and a fine of Rs. 250/- under_ section 409, I.P.C. and 18 months' rigorous i!flprisonment and a fine of Rs. 250/- under section 5(2) read with sections 5(1)(c) and 5(l)(d) of the Act. The sentences on both these counts were directed to run concurrently. The I; iigh Court, however, thought that the Special Judge had not recorded any conviction under section 5(l)(d) of the Act and in that view confirmed the conviction and sentence of the appellant of 18 months' rigorous imprisonment on each of the coun~. namely, under

s. N. PUR\ v. STATE (Jagamnohan Reddy, J.) 499

A. section 409, I.P.C. and section 5(2) read with ;1ection 5(1)(c) of the Act, but reduced the fine for each of the offences from Rs. 250/· to Rs. 150/-.

The appellant was employed as a Traffic Assistant in the Indain Airlines Corporation's office at Jaipur and his duty was B to make reservations of the pasre.ngers intending to go by air and issue tickets. As it happens, when the quota of seats allotted to Jaipur is full, intending travellers who request for uccommodation would be required _to pay trunk telephone charges for enabl ing the Airlines Corporation to obtain release of seats from quotas allotted to other centres.

The practice of the Airlines was to

C collect the approximate charges and issue a receipt therefor and if a seat was available, the reservation would be confirmed and accommodation given to the passengers if seats could be released from other centres for Jaipur. Tin appellant who was incharge of these an:angements between 16-2-62 and 30-8-62, collected Rs. 184.90 towards trunk telephone charges but actually deposited witli the Airlines Corporation a sup1 of Rs. 44.91 and misappro- D priated the balance of Rs. 139.99. The modus operendi followed by him, it is alleged, 'Yl\S tha.t he would demand a higher amount for Trunk Call charges than were likely to be incurred and he would issue a correct receipt for those amounts on behalf of. the Airlines Corporation but after making the trunk call, he would alter the counter-foil with the actual amount of trunk call charges.

E On the same day he WO!!ld make a daily return showing the actual amounts and deposit them with the Cashier.

A typical sample of the receipts given by him on behalf of the Airlines Corporation is Exhibit 40 which i.s as follows :-

"INDIAN AIRLINES CORPORATION NEW DELHI.

No. 354577 Station : Jaipur.

Date : 30-8-62.

Received with thanks from M/s. M/Travels, Jaipur sum., of Rupees Twentythree and forty nP, being the amount T /Call charges to Udaipur and AMD for release of seat.

'for INDIAN AIRLINES °CORPORATION.

Rs. 23.40

Sd/- Cashier".

On 31-8-62, one M.D. Singh qf_the Mercury Travel Agency, Jaipur complained to D.S. Gupta, Incharge of the Office of the Indian Airlines Corporation a~ Jaipur that the appellant had

collected Rs. 23.40 for proposed trunk call charges from the 1i.

Agency but made no call and no seat was allotted to the passenger of the Mercury Travel Agency, even though one was available and that eat was given by B. S. Gupta to someone else. B. S. Gupta quesljioned the appell!!_nt who then made. a confession of his having collected the amount but not having made a call. After making this confession he immediately resigned his job.

A preliminary B inquiry was conducted by the Area Manager who thereafter lodged the First Informaticm Report.

The accused denied having collected the amounts or of having issued the receipts and further stated that whatever amounts were collected by him were paid in the office of the Airlines everyday.

Both the Courts foµnd on the evidence that the appellant used to make trunk calls whenever he was on duty from the Indian Airlines Corporation office at Jaipur for the relea5e of seats and that he would call for and receive trunk call charges from intend ing passengers. It was further held proved that the appellant gave receipts Exhibited in the case which were in his own hand-writing and signed by him; and that it was he who realised the total sum of Rs. 185 /- which was entrusted to him and over which he had a ®minion in his capacity as a public servant We have already pointed out that the !Iigh Court did not confirm the conviction of the appellant under section. 5(2) red with section 5(1 )(d) on the assumption that the said Special Judge had not convicted the accused for that offence, and since there is no appeal by the State against this part of the judgment, the contention on behalf of the State that he was convicted under section 5(1)(d) has no merits and cannot be sustainCcl.

On behalf of the appellant it was urged before the High Court that as the appellant had to face a trial extending over more than

3 years incurring enormous expenses for coming tq and from Chandigarh where he was practising law and was also in Jail for II some time, the benefit of the Probation of Offenders Act should

be given to him. This contention was rejected because the provisions of that Act were inapplicable in view of his conviction under section 409, I.P.t:;.

As the offence cif criminal breach of trust under section 409, .J:.P.C. is punishable with imprisonment for life, the High Court, in our view, was right because the provisions of section 4 are only applicable to a case of aperson found guilty of having committed an offence no~ punishble wi~ death or imprisonment for life.

A part from this rea9omn_g, section 18 of the Probation of Offenders Act makes the pl'OVISions of that Act inapplicable to an Offence under sub-section (2) of section S of the Prevention of Corruption Act.

On behalf of the appellant it is submitted by the learned Advocate that the prosecution case as dlosed by the evidence was tlrat 'the appellant had collected exc, ess charges from the p11S9engers

s. N. PURI v. STATE (Jaganmohan Reddy, J.) . 501

representing them to be the actual charges for trunk calls and not that any excess over the actual charges would be returned to them. In view of this evidence, the appellant could not be convicted either under secl; ion 5(2) read with section 5(l)(c) of the Act or under section 409, I.P.C. because the important ingredient which is entrustment of the amounts is absent.

In order that B any amount can be said to be entrusted it should be lawfully made over, but in this case the appell.aD.t obtained the amount by cheating and by the commission of an offence. If there was no entrustment of the moneys to the appellan~. he could not be con, victed either under section 409 or under section 5(2) read with 5(1)(c) of the Act and is accordingly entitled to an acquittal on C both these charges. In support of this contention reliance has been placed on Surendra Pal Singh v. The State('), where a Bench

of the Allahabad High Court held that the amounts collected from cultivators by the Canal Amin in excess of the amount actually due from them and misappropriated by him, did not amount to an entrustment as he could not be a trustee of that money on behalf of the cultivators from whom he realised it because when they D handed over the money to the accused, they purported to surrender all their rights in that money, nor could it be said that this money had become the property of the Government at any stage for him to be considered a trustee on }ts behalf. This decision was, however, disapproved in The Stal&. v. Dahyalal Dalpatram('), by a Bench of the Bombay High Court, a view with which the High E Court agreed. In that case the accused who was employed as a Talati in the Revenue Department, was invested with the authority to collect land revenue and fines. He was ordered to recover from the land-holders who had defaulted in paying the moneys but having collected the, m, he did not pay them into 11he Government Treasury as required by the rules made under the Land Revenue Code. The accused was convicted under section 409, I.P.C. On F the question that when the accused collected the amount as tax alleged to be due by the land-holder thouj!h the liability whereof could not beenforced according to Jaw, coµJd it be said that he was then entrusted with the money, the High Court after noticing that the Atlahabad High Court appears to have taken the view that a public servant collecting the money claiming that it was G due to the State but which in fact was no~ due to th~ State, could not be regarded as entr\isted with the money collected. by him. held that that was not a necessary ingredient of section 405. The

learned Advocate sought to distinguish this case on the round that in the Bombay case there was a definite direction f.o collect a specific amount and when that amount was collected there was ll' entrustment of that money which was lawfully collected, as such

~- !he accused was riitbtlv convicted. It was further contended that if looked at from thr !l('lint of view of the passen2ers from whom

(I) A.1.R. 1957 All. 122.

(2) A.l.R. 1960 Bom. 53, 4-L1031 SuJ)CJ/72

trunk call charges were collected, they had not entrusted the ll; lOney to the accused because they had parted with the proprietary rights thereon and if viewed from the point of view of the Airlines Corporation, the money collected did not become the property of the Corporation and consequently there was no entrustment of i!.

There can be no doubt that before a public servant can be convicted of an offence under section. 5 ( 1 He) or under section 409, I.P.C. the property which is said to have been misappropriated must be entrusted to him.

Section 405 merely provides, whoever being in any manner entrusqed with property or with any dominion over the property, as the first ingredient of the criminal breach of trust. The words 'in any manner' in the context are significant.

The section does not provide that the entrustment of property should be by someone or the amount recieved must be the property of the person on whose behalf it is received.

As long as the ac9.use.d is given possession of property for a specific purpose Qr to deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression 'entrusted' in section 409 is used in a wide sense and includes all C¥!:, S in w. hich property is voluntarily handed over for a specific purpc!"se and is dishonestly disposed of contrary to the terms on which possession has been handed over. It .may be that a person to whom the property is handed over may be an agent of the person to whom it is entrusted or 10 whom it may belong, in which case if the agent who comes into possession of it on behalf of his principal, fraudulently misappropriates the property, he is nonetheless guilty of criminal breach of trust because as an agent he is entrusted with it.

A person authorised to collect moneys on behalf of another is entrusted with the money when the amounts are paid to him, and though the person paying may no longer have any properietary interest nonetheless the person on whose behalf it was collected becomes the owner as soon as the amount is handed over to the person so authorised to oollect on his behalf.

This view of ours is well supported by decisions of different High Courts in this country for neruly a century, a few of which alone need be exrunined.

In the matter of Ram Soonder Poddar & Ors.('), a Deputy Magistrate convicted the accused under seetion 406, I.P.C., an offence over which he had jurisdiction, instead of under section 409, I.P.C. which was coizable only by the Court of Session.

On revision the High Court held that the proceedings were contrary io law and the Deputy Magistrate was directed to commit the accused for trial by the Court of Session. It' appears that the accused who were charged were Treasury employees. One of the accused

(I) 1878 (2) Cal. L.R. SIS.

s. N. PURI v. STATE (Jagamnohan Reddy, J.) 503

was allowed to write the Treasury Cash Book which was the duty of the Treasurer.

Talcing advantage of it, he misappropriated Rs. 16/- by scoring off the entry in the account book. In this misappropriation he was assisted by the other accused who was employed to do stamp work. While holding the trial to be without jurisdiction, it was observed that seer.ion 409 does 'not as supposed by the Deputy Magistrate, require the property in respect of which criminal breach of trust is committed, to be the property of Government, but only requires that it should be entrusted to a public servant in his capacity.as such public servant. In re: Ramappa( 1), the accused who was the Superintendent of some Coffee Curing Works was convicted 9f criminal breach of trust by misappropriating a large sum of money made up of amounts which he had received from the Manager on the false pretence that they were required for paying .coolies who garbled coffee. One of the arguments urged against the conviction was that the receipt of the money by false representation amounted to an offence of cheating and that the subsequent appropriation of it by the accused to his own use was not a criminal breach of trust as the criminal intent was present at.the time of the receipt of the moneys from the Manager. Benson and Sundara Aiyar, JJ., while rejecting that argument, observed :

"When the accused received the money he did so as a servant of the Company for the express purpose of using it for his master's benefit in a particular way. He was, therefore, entrusted with the money and his apP!'o:. priating it to himself clearly amounts to criminal breach of trust".

In Venkata Raghunatha Sastri('), , Spencer, J., held that where a person who had pledged promissory notes with another as security for a loan dishonestly induced the latter to hand over the same to him by pretending that he required the same for collecting money from his creditors with .the aid of which he would pay cash to the complainant, his act constituted an offence of cheating punishable under section 420, l.P.C. and tha~ when he dishonestly disposed of the notes in violation• of his contract with e pledgee to use the money collected in paying off his debt, there was both entrustment and dishonest misappropriation and that the conviclion for the offence of criminal breach of trust under section 406, l.P.C. was legal.

Both these cases were referred to in The Crown Prosecutor v.

J. Mclver and K. S. Narasimhachari(').

Tlie facts in thi~ case also were somewhat similar to those in Venkataraghunatha Sastri's case('). Madhavan Nair, J (as he then was) examined the mean- 'ing of the word 'entrusted' in section 406 and rejected a similar

H contention as was urged in this case on behalf of the appellant that

when fhe accused by deceiving the complainant fraudulently and

(I) (1911) 22 M, L, J. 112.

(3) 69 M.L.J. 681.

(2) (1923) 4l M.L.J. 133

(4) 4l M.L.J. 133.

dishonestly indced hint to part with the property in questioa, the offence of cheatmg was complete and that there is no room for further holding that the acused have committed criminal breach of trust also by their subsequent misappropriation of the property.

In the case before us, the practice which was being followed by the Jaipur office of the Indian Airlines Corporation is spoken to by M. U. Menon, P.W. 6, who was a Personal Assistant to the General Manager of the National Engineering Industries Ltd., Jrupur.

He says that on 16-2-1962 his General Manager had ected t". issue instirctions to t)le accounts branch for arrangmg for flight !Ickets by rur for Delhi. He first rang up the Indian Airlines Corporation 'ab.out the air passage for eight persons and received a reply from that office that 8 tickets were not available at Jaipur and they would iiy from Udaipur and Ahmedabad by trunk calls.

After some time the Indian"-Ai!Iines_ Corporation people rang up telling him that tickets can be arranged and he should send the money runounting to Rs. 410.50 which included trunk call charges of Rs. 26.50. He therettpon . sent a slip, Exhibit P-6 to the accounts department for further necessary action. There was no cross-exrunination on behalf of the accused. Similarly Ganesh Singh, P. W. 3 who is working for the National Engineering Industries Ltd., Jaipur said that when his people contacted Indian Airlines Corporation on telephone and enquired about the fare etc., they would ask for trunk call charges along with the amount for tickets.

This would be paid and in fact he pointed out to the accused and said that he might be one of the persons whom he' met at the office and after he paid the amounts for the tickets and irunk call charges, he would obtain a receipt and give it to the company. This evidence read with other evidence Which has been accepted by both the Courts would show that whatever may have been the criminal intention of the accused, the amounts for trunk call charges , were demanded on behalf of the Indian Airlines Corporation and '\YCfe paid to the Corporation. The receipts in respect of the sums were given on behalf of the Corporation and it would be the Corporation that would be liable directly to the person who had paid this amount, if no trunk calls were made, br any excess ever the actlial .amount of the trunk call charges was charged by it. The amount was not paid by passengers to the accused as such but to the Indian Airlines Corporation and as soon as the rpt for the amount actually received from the P}.1ssengers was given by the accused on behalf of the Corporation, he was entrusted with that amount. H"IS subsequent conduct in falsifying the counter-foils and fradulently misappropriating the amounts would make hint guilty of critninal breach of trust punishable under section 409, I.P.C. as also under section S(2) read with section S(l)(c) of the Act.

There is, therefore, no merit in this appeal and it is accordingly dismissed.

K.B.N.

Apptal dismissed.

SOM NARIB PURI

THE STATE OF RAJASTHAN

February 15, 1972

M. SHELAT

P. JAGANMOHAN REDDY

H. R. KHANNA, JJ

Penal Code

Section 405, 409

s. 409

Penal Code

section 5(2)

section 5(1)

Prevention of Corruption Act

s. 5(2)

Prevention of Corruption Act

s. 409

section 409

Ramappa

K. S. Narasimhachari

s. 409

I.P.C

section 5(2)

section 5(1)(c)

Rajasthan High Court

A. S. R. Chari

S. B. Wad

K. !3 Mehta

Jaganmohan Reddy

section 5(2)

Prevention of Corruption Act 1947

section 409

I.P.C

section 477A

I.P.C

section 5(2)

section 5

section 5(2)

section 5(1)(w)

section 409

I.P.C

section 5(2)

section 5(1 )(c)

section 409

I.P.C

section 5(2)

sections 5(1)(c) and 5(l)(d)

section 5(l)(d)

section 409

I.P.C

section 5(2)

Indain Airlines Corporation

Jaipur

INDIAN AIRLINES CORPORATION NEW DELHI

M.D. Singh

Mercury Travel Agency, Jaipur

D.S. Gupta

Airlines Corporation a~ Jaipur

Mercury Travel Agency

B. S. Gupta

Indian Airlines Corporation office

section 5(1 )(d)

section 5(1)(d)

Chandigarh

Probation of Offenders Act

section 409

section 409

section 4

section 18

Probation of Offenders Act

Prevention of Corruption Act

section 5(l)(c)

section 409

I.P.C

section 409

section 5(2) read with 5(1)(c)

Allahabad High Court

Bombay High Court

section 409

I.P.C

Atlahabad High Court

section 405

Bombay

section 409

I.P.C

Section 405

section 409

Ram Soonder Poddar

I.P.C

section 409

I.P.C

Jagamnohan Reddy

Benson

Sundara Aiyar

Venkata Raghunatha Sastri

Spencer

section 420

section 406

Venkataraghunatha Sastri

Madhavan Nair

section 406

Indian Airlines Corporation

M. U. Menon

Delhi

Udaipur

Ahmedabad

Ganesh Singh

section 409

I.P.C

K.B.N.


GUDAR DUSADff

STATE OF BmAR February 15, 1972

[J.M. SHELAT, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.]

111aian Penal Code (Act 45 of, 1860), s. 300, cl. thirdly-Singk blow with lath1 on head of deceased given deliberately-Nature of Offence.

S.ction 300, clause tbirdli, of the Indian Penal Code, 1860, consists of two parts. . Under the first part it has to be shown that there was an intention on the pan of the acpused to infiict the particular injury whicr

was found on the body Of the deceased.

The second part requires that the bodily injury intended to be infiicted was sufficient in the ordinary couhe of nature to cause death. So far as the first part is concerned, the COUJt has to see whether the injury which was found on the de0""8ed was the one intended 1>y the accused or whether it was accidental without his having intended to cause that bodily injury. it is found that the injury was not_ accidental and that the accused inten~ to cause the irijury which W35 ac1ually_ infilcted and found on the body of the deceased. the first part is satisfied.

The oourt should then go into the second part and find, in the liaht of the medical evidence, whether the bodily _injurv in8icted was sufficient in the ordinary cour>e of nature to cause death.

If the court finds that the requirements of both the parts have been satisfied, the case is covered by the clause unless it falls within one of the exceptiolli!. [508 CFl

In tliepresent c; ise, the c~ of the case ahowed tilat the assault by the accused on the deceased was premeditated and that the blow given by the accused to the deceased was not accidental. . The fact that the accused the blow . on the he:id of the deceased with a lathi •howed that it was his intention to cause the precise injurY which wa.• found on the. head of the deceased. N the injury was deliberate and not accidental, and as according to the medical evidence the injury was suffi cient in the ordinary course of nature to cause death, and as it actually resulted in the death of the deceased, the case would fall squarely within the ambit of clasue 'thirdly' of s. 300, I.P.C., and the appellant would be guilty of Jhe offence Of murder. The fact that the accused gave only one blow would not mitigate the offence and make l:iim guilty of culpable homicide not amounting to murder 1508. F-H; 509 D-EJ

Observations in Cbamru Budhwa v. State of M.P., AJ.R. 1954 S. C. 652, explained and distinguished,

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 94 of 1969.

Appeal by special leave from the judgment and order dated January 30, 1968 of the Patna High Court in Criminal Appeal No.

H 539 of 1966.

Nur-ud-din ..thmed and U. P. Singh, for the appellant.

R. C. Prasad, for the respondent.

.The Judgment of the Court was delivered by

Khanna, J.

Gudar Dusadb appellant was tried along with 23 others in the court of Additional Sessions Judge Saran.

Eighteen of the accused were acquitted by the trial court.

The appellant was convicted under sections 302 and 147 Indian Penal Code and was sentenced to undergo imprisonment for life on the former count.

No separate sentence was awarded to the appellant for the offence under section 147 Indian Penal Code.

The remaining five accused were convicted under section 323 read with section 149 Indian Penal Code as well as for other minor offences with which we are not concerned.

On appeal ' the Patna High Court maintained the conviction and senfence of the appellant, while some modification was made as regards the sentence awarded to the other five convicted accused.

The appellant thereupon came up in appeal to this Court by special Ieave.

The leave was, however, confined only to the queson whether the offence committed by the appellant was murder or culpable homicide not amounting to murder.

The case relates to an occurrence which took place in village Khahla in district Saran at about 11 a.m. on August 14, 1965.

Ramlal Bhagat, who was aged about 65 years, died as a result of the assault during the course of the occurrence while his son Ramashish Prasad (PW 10) received injuries.

The case of the prosecution is that a day before the occurrence Prasadi' Dusadh and Ganesh Dusadh killed a goat belonging to Bahatah Bhagat

(PW 8). On the advice of Ramlal Bhagat deceased, Baharan Bhagat lodged a report with the police at 3 p.m. on that day.

On the morning of August 14, 1965 Ramlal and his son Ramashish went to their paddy field.

While they were returning from the field at about 11 a.m. they were assaulted by the six convicted persons who had been hiding on the route.

The appellant gave a lathi blow on the head of Ramlal as a result of which fae latter fell down and died at the spot.

One of the companions of the appellant then shouted that the assault was made because of Ramlal being responsible for the commencement of criminal proceedings by Baharan. Some injuries were also caused to Ramashish.

The accused then set fire to one of their huts with a view to prepare some kind of defence.

After that the accused fled away.

SHO Sarju Prasad Singh of police station Barauli on receipt of information that a large number of persons belonging to the :>arty of the accused had collected to attack the other party in spite of the promulgation of an order under section 144 of the Code of Criminal Procedure, came to the place of occurrence but before that Ramlal had already been killed.

Sarju Prasad Singh recorded the statement of Ramashish and on the basis of that

GUDAR DUSADH v. BIHAR (Khanna, J.) 507

statement, a formal information report was prepared at the police station.

Post mortem examination on the body of Ramlal~ deceased was performed by Dr. R. S. Singh on August 15, 1965.

At the trial the plea of the appellant was that he had been falsely involved in the case at the instance of the Mukhia of the village who was inimical to the appellant.

The two courts below accepted the prosecution case that it was the appellant who had given a lathi blow on the head of Ram- 'lal deceased as a result of which the latter died. It was held that

the case against the appellant fell under clause "3r!lly" of section 300 of Indian Penal Code.

As such, the appellant was convicted under section 302 Indian Penal Code.

The only question with which we were concerned in appeal is whether the offence committed by the appellant is murder or whether it is culpable homicide not amounting 'to murder. In

this respect we find that according to Dr. R. S. Singh who performed the post mortem examination on the dead body of the deceased, the doctor found a lacerated wound 7!' X t" bone deep on the left side of the head of the deceased.

The injury was ante-mortem and had been caused by a weapon like lathi.

On dissection the doctor found 3" long fracture of , the left parietal bone about 2t" frrAT, the middle line of tl\e top of th1' head.

On removing the skull the doctor noticed large amount of blood and blood clots on the left side of the brain. Death, in the.opinion of the doctor, was due to compression on the left side of the brain.

The doctor further state!<! that the above injury was sufficient in the ordinary oourse of nature to cause death.

The appellant who caused the above in jury to Ramlal deceased, in our opinion, was guilty of the offence of murder and he has been rightly convicted under section 302 Indian Penal Code.

The appellant along with his companions was lying in wait to attack Ramlal and, according_to the evidence on record which has been accepted by the High Court, he gave a blow on the head of Ramlal as a result of which Ramlal fell down and died instantaneously.

It has also been found by the High Court that there was no altercation or exchange of abuses between Ramlal and the accused party. The circumstances of the case thus show that the assault was premeditated and the blow on the head of Ramlal was not accidental. The fact that the appellant gave only one blow on the head would not mitigate the offence of the appellant and make him guilty of the offence of culpable homicide not amounting to murder.

The blow on the head of Ramlal with Jathi was plainly given with some force and resulted In a 3" long fracture, ot the left parietal bone.

Ramlal deceased died instantaneously and as such, there arose no occasion for

giving a second blow to him.

As the injury on the head was deliberate and not acctdental and as the injury was sufficient in the ordinary course of nature to cause death, the case against the appellant would fall squarely within the ambit of clause "3rdly" of section 300 Indian Penal Code.

According to that clause, culpable homicide is murder if it is done with the intention of causing bodily injury to any person and the. bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. Section 300 also provides for some exceptions but we are not concerned with them in this case.

Clause "3rdly" consists of two parts.

Under the first part, it has to be shown that there was an intention on the part of the accused to inflict the particular injury which was found on the body of the deceased.

The second part requires that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death.

So far as the first part is concerned, the court has'to see whether the injury which was fcillnd :m the deceased was the one intended by the accused or whether it was accidental without his having intended to cause that bodily injury.

Once it is found that the injury was not accidental and that the accused intended to cause the injury which was actually inflicted and found on .the body of the; deceased, the first part shall be satisfied. The court would then go into the second part of the clause and find in the light of medical evidence as to whether the bodily injury inflicted was sufficient in the ordinary course of nature to cause death. If the court finds that the requirements of both the parts have been satisfied, the case shall be held to be covered by clause "3rdly" unless it falls within one of the exceptions.

In the present case, both parts of the clause "3rdly" have been satisfied.

As observed earlier, the in jury which was inflicted by the accused on the head of Ramlal was not accidental. It is not the case of any one that ilie appellant aimed a blow on some other part of the body and because of some supervening cause like sudden intervention or movement of the deceased the lathi struck the head of the deceased.

The fact that the appellant aimed a blow on the head of Ramlal with the lathi would go to show that it was the intention of the appellant to cause the precise injury which was found on the head of the deceased.

The evidence of Dr. R. S. Singh who performed post mortem examination shows that the above injury was sufficient in the ordinary course of nature to cause death and actually resulted in the death of the deceased.

The case of the appellant would thus be covered by clause "3rdly" of section 300 and he would l)e guilty of the offence of murder.

GUDAR DJJSADH v. Bll!AR (Khanna, !.) 509

Reference on behalf of the appellant hrui bCen made to the case ot Chamru Budhwa v. Stat" of Madhya Pradesh(1). Tl)ere was in thalt case a severe exchange of abuses betw, een .. the parties preceding the incident.

While the abuses were being eXchanged, the tempers rose high and both the parties came 0ut of their resc .... pective houses in anger. In the course of tlie quarrel the appel- lant dealt a fatal blow on the head of tlie deceased with his lathi. · It was held that the crime was conunitted. •by 'the appellant Without premeditation in a sudden fight in the heat of pa5slon and without the appellant having taken undue advantage or acted in a cruel or unusual manner.

The case of the appellant was thus held to be covered by exception 4 to section 300 of Indian Penal Cooe and he was found guilty of. the .offence of culpable homicide not amounting to murder. It was also observed that the fatal injury inflicted by the appellant on the head of the deceased by one blow was not caused with the intention of causing death or such bodily injury as was likely to cause death.

The last observation upon which reliance has been placed by Mr. Nuruddin on behalf of the appellant should be taken to have been made in the context of the fadts of that case.

The above case docs not war- .rant the proposition. that if the accused gives a deliberate blow on the head of the deceased with a lathi and thereby causes an injuzy as is sufficient in tl!e ordinary course of nature to cause death and actually results in death, the case against him would not fall under clause "3rdly" of section 300 of Indian Penal Code.

We are, therefore, of the view that the appellant was guilty of <the offence of murder and not culpable homicide not amounting to murder and that he has been rightly convicted under section 302 Indian Penal Code.

The appeal consequently fails and is dismissed.

V.P.S.

Appeal dismissed.

(I) A.1.R. 1954 S.C. 652.

DUSADff

STATE OF BmAR

February 15, 1972

M. SHELAT

P. JAGANMOHAN REDDY

H. R. KHANNA, JJ.

Penal Code

s. 300

Indian Penal Code, 1860

s. 300

I.P.C

Nur-ud-din

U. P. Singh

R. C. Prasad

Khanna

Gudar Dusadb

Additional Sessions Judge Saran.

sections 302 and 147

Indian Penal Code

section 147

Indian Penal Code

section 323

section 149

Indian Penal Code

Patna High Court

Khahla

Saran

August 14, 1965

Ramlal Bhagat

Ramashish Prasad

Prasadi' Dusadh

Ganesh Dusadh

Bahatah Bhagat

Ramlal Bhagat

Baharan Bhagat

Ramlal

Ramashish

Baharan

Sarju Prasad Singh

section 144

Code of Criminal Procedure

Ramlal~

R. S. Singh

August 15, 1965

Ram- 'lal

section 300

Indian Penal Code

section 302

Indian Penal Code

section 302

Indian Penal Code

Jathi

section 300

Indian Penal Code

Section 300

R. S. Singh

section 300

section 300

Nuruddin

section 300

Indian Penal Code

section 302

Indian Penal Code


KHANDU SONU DHOBI AND ANR.

STATE OF MAHARASHTRA February 1,5, 1972

[J, M. SHELAT, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.J

Penal Code 1860 (45 of 1860)-S. 4-03-Dishonesr misappropriation for a .time only is misappropriation.

Prevention of Corruption Ac~ (2 of 1947)-S. SA-Inve1ttigation conducted n breach of section-Illegality must result in miscarriage of justice.

Bo1nbay Land_ Improvement Schemes Act, 1942-Sub-section (1) and

(2) of s. 23-Bar of prosecution applies on(v to any thing done in good faith or ·•under" the Act.

The appellants entrusted with the duties of carrying out improvement schemes under the Bombay Land Improvement Scheme Act, 1942, were charged with the offence of preparing false documents and committing D crimi.nal breach of trust in :respect of certain amount.

It was alleged that even thougl) no work had been done and no amount had been disbursed they prepared documents showing the doing of the work and payment oJ.. the '3mount.

They were convicted under s. 218 read with section 34. section 477A read with section 34 and ection 409 read with :section 34 of the Indian Penal Code as well as section 5(2) read with section 5(i)(d) of the Prevention of Corruption Act. The High Court affim1ed the conviction.

In the appeal to this Court it was contended E that after the matter had been reported to the higher authorities the rectification wdrk W3.S done and the money was disbUrsed for the purpose for which it had been entrusted; that the conviction was bad beC)ause of non-compliance with section 5A of the Prevention of Corruption Act; and that the prosecution was barred by time unde• •· 23 of .the Bombay Land Improvement Schemes Act, 1942.

Dismissing t_he appeal, F

HELD : (i) There is no cogent ground to disagree with the trial court and the High Court that the accused had prepared false documents, bad nlso committed criminal breaC'h of trust '3Dd were in the discharge of their duties guilty of criminal misconduct as defined in s. 5 of the Pre- , ventic.il of Corruption Act.

(ii) It is no answer to a charge of criminal misappropriation that after G the 111atre:r had been reported to the higher authorities the accused got the rectification work dcne or the money was subsequently disbursed fer the purpose for \1/hich it had been entrusted. According to explanation 1 to section 403 Indian Penal Code a dishonest misappropriation for a time only is "misappropriation" within the meaning of that section.

[515 DJ

(iii) It is well established that cognizance of a case has, in fact, been H tuken by the court on a police report following inve11tigation conducted in bt..,;, ach of provisions of section 5A of the Prevention of Corruption Act, the result of the trial cannot be set aside unless the illegality in the

investigation can be shown to have brought about a miscarrjage of justice.

The reason for the above dictum is that an illegality cOmmitted during the course of investigation does not effect the competence and juf'isdiction

of the Court to try .the ae¢used. Where, tmrefore, the trial of the case has proceeded to terfnination, the invalidity of the preceding investigation would not vitiate the conviction of the accused as a !T.lsult of the trial Ullles's the illegality in the investiption has caused prejudic, e to the accused.

Since there has been no miscafriage of justice in the pnt case because of the alleged non-compliance with section SA the conviction of the appellants cannot be set aside on that score. [SIS HJ

H .. N. R.; shbu!f and Inder Singh v. The State of Delhi, {1955] I S.C.R. li50, referred to.

(1v) Sub-section (i) of the Bombay Land Improvement Schemes Act 1942 has plainly no application as it relates to 3nything done in the good faith. It cannot also be said that the acts of the appellants in preparing false documents and committing criminal bre3ch of trust as also the act of criminal misconduct were done "under" the Bombay Land Improve~

ment Schen"s Act within the meanini of sub-section (2). The subsection has rio. application wher.e something is done not under the Act even though it has been done by a public servant who has been •!Dtrusted with the duties of carrying improvement sches under this Act.

The iritpugned acts of tDe appellants W'..lS not in discharge of their duties under the Act but in obvious breach and flagrant dis!regard: of their duties.

!516 G-517 D 1 ·

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 105 of 1969.

Appeal by special leave from the judgment and order dated E March 27, 1969 of the Bombay High Court in Criminal Appeals

Nos. 53 aind 4S of 1968. -

V. S. Kotwal, A. G. Ratnaparkhi and Rajiv Shah, for the appellani.

R. M. Mehta aw B. D. Sharma, for the respondent.

The Judgment of the Court was delivered by

Khanna, J. This is an appeal by special leave by Khandu Sonu Dhobi and Bhikanrao Rambhau Khaimar against the judgment of the Bombay High Court affinning on appeal the conviction of the appellants under section 218 read with sei; tion 34, section 4 77 A read with . section 34 and section 409 read' with section 34 of Indian Penal Code as well as under section. S(2) read . with section 5 ( 1 )( d) of the Prevention of Corruption Act. . &inte'nee of rigorous imprisonment for a period of on~ year and a fine of Rs. 200 or in default fu!1!her rigorous imprisonment for a period of two months has been awarded on 'each count to the appellants. ·· The substantive sentences have ben ordered to run concurrently.

Dhobi appellant No. 1 was an agricultural assistant '.111d was ' \Working under Khaimar appellant No. 2 who was agncqlitUJ"al

SUPREME COURT REPORTS [1972] 3 S.C.lt.

supervisor in the soil conservation section of the Government of A Maharashtra.

Dhobi was incharge of the work relating to a Bundh in block No. 13 of village Asane in Taluka Mandurbar.

The above block comprisei; agricultural lands bearing survey Nos. 8, 17, 18, 19 and 32 measuring 90 acres.

The Bundhs were being constructed since the year 1962.

Rectification work in respect o( thos.e Bundhs at a cost of Rs. ~~9 .07 had to be got B done by Dhob1 appellant under the superv1s10n of Khairnar appellant.

The Government sanctioned an amount of Rs. 4 779 in connection with the construction of the Bundhs.

An advance amount of Rs. 5000 was received by Khairnar accused on March 2, 1966 in that connection.

Work of lhe value of Rs. 4400 was done but that relating to rectification work was not done. According to the rules of the soil conservation section, lhe Government C spent the money in the first instance and after the report of the completion of work was received, the expenses were recovered from the landowners for whose benefit the work was done. On March 11, 1966 Khairnar made entries in measurement book Ex. 27 showing that he had checked. 28 payments and certified the same.

Khaim.ar accused also stated in the entry that he. had D passed the measuremenis and paid Rs. 369 .07.

Paysheets Ex. 64 were prepared by Dhobi acc)ISed and he obtained the thumb impressions and signatures of the labourers on the paysheets.

Khairnar made his initials below the thumb impressions in the paysheets.

On the last page of the paysheets, Khairnar signed a certificate according to which he had paid Rs. 3~9 .O? ito P_W 10 E Jagan Trimbak who used to do the labour work.

Final bill Ex. 28 was also prepared on that day by the accused and the signa ture of Jagan Trimbak was obtained on the sa, me.

The bill was got signed from PW 7 Ziparu Tukaram and another person as attesting witnesses.

The bill was signed thereafter by Khairnar.

Debit entry Ex. 32 of Rs. 369.07 was made by Khairnar accused .. in the cash book.

He also prepared work abstract Ex. 29 on r April 16, 1966 and sent it to the sub-divisional soil conservation officer Nandurbar showing an expenditure of Rs. 369.07.

The case of the prosecution was that the measurement book Ex. 27, paysheets Ex. 64, final bill Ex. 28 and cash book entry Ex. 32 were false documents and were fabricated by the accused G without dooig any recification work on the Bundh. The accused thds committed criminal breach of trust in respect of the amount of Rs. 369.07 in furtherance of their common intention to misappropriate government property.

AccordiJig further to the prosecution case, the landowners in block No. 13 came to know of J:he above acts of the. accused and they complained about it to H Sarpanch Tanku Bhagwan (PW 12). Tanku sent a telegram on April 12, 1966 to the superintending agricultural officer, Bombay division, N asik in this connection. A. 00py of the telegram was

A thereafter sent by the superintending agricultural officer to divi- , sional soil conservation officer D.S.D. Ghate (PW 1) for neces- :

sary action as Wajl as for enquiry and report.

Chate PW went to village Asane on May 2, 1966 and inspected block No. 13.

He found th:i, t entries had lieen made about the payment of Rs. 369 .07 in the measurement book and cash book even though no rtictifica- B tion w6rk had been done.

Chate srubmitted his rep0rt on , May , 6, 1966 for proceeding departmentally against the accused.

On rece, ipt of the above report, the superintending agricultural officer directed P. R. Inamdar (PW 11 ) , deputy director of agricultural engineering, to go to Asane village and submit his report after perSonally verifying the facts.

Inamdar went with Ghate to c block No. 13 in Asane village on May 11, 1966. Both Inamdar

and Ghate found that no rectification work had been done. They did not find even a single pit in the l2nds in that block although, according to measurement book, 83 pits had been recently dug.

Inamdar and Ghate also met the Sarpanch and other landowners of Asane village. Report dated May 18, 1966 was thereafter D submitted by Inamdar affirming those facts.

Sarpanch Tanku sent complaint Ex. 84, in the meanwhile, on April 30, 1!166 to the director of anti-corruption branch Maharashtra State stating that the accused had prepared false bill for Rs. 369.07 without doing any work and that they had mis- E appropriated that amount.

It was also stated that attempts were being made to shield the accused.

The director of anti-corruption sent a copy of that application to Sub Inspector K. G. Patil (PW 13) who was then attached to Dhulia office of the anticorruption branch.

Sub Inspector Patil made local enquiry and took into possession the measurement book, paysheets and cash book.

The director of anti-corruption branch directed Patil to F register a case and investigate ino the matter. Patil went to Nasik and recorded statement Ex. 79 of Inamdar PW on November 7, 1966.

The statement was .then sent to Nandurbar Taluka police station.

A case was registered on the basis of that statement at the police .station on November 8, 1966.

On November 12, 1966 sub Inspector Patil applied for permission under G section SA of the Prevention of Corruption Act of judicial

magistrate I st class to investigate the offence.

The permission was granted by the judicial magistrate 1st class Nandurbar on the same day.

Patil thereafter recorded statements of a number or persons.

Patil was subsequently transferred and the case was investigated by his successors Mahamuni and Kulkarru who also H obtained the requisite permission.

Sanction Ex. 97 for the prosecution of the two accused was granted under section. 6 of the Prevention of Corruption Act by the superintending agricultural officer Bombay division, Nasik on May 18, 1967.

SUPREME COURT REPORTS

[1972] 3 S.C.R.

'The two accused in their statements admitted that the work A of the value of Rs. 369.07 was .not done till March 11, 1966 although it was so stated in the various documents by them. The accused also admitted that no amounts were paid to any of the labourers mentioned in the paysheelSI although signatures and thumb imprei; sions of the labourers had been obtained on the paysheets on March 11, 1966. According to the 11ccµsed, they B had prepared the various documents in accordance with the instructions of Ghate PW who was insisting in March 1966, and even.earlier, that a completion report relating to block No. 13 be sent as the entire amount spent on that !;>lock since 1962 could not be recovered for want of a completion report.

Khairnar accused added that rectification work Jiad been done between May 13, 1966 and May 16, 1966 and the amount of Rs. 369.07 C was thereafter disbursed on May 16, 1966.

The learned special judge held that the amount of Rs. 369.07 had not been paid by the two accused to the labourers.

No work, it was found, had been done and the different douments prepared by the accused in this connection were false even on D their own admissions.

The explanation furnished by the accused that they prepared false documents t the instance of Ghate and got work dQne thereafter was not accepted.

Objection was raised on behalf of the accusecl that the inves\igation of the case was illegal and that prosecution was barred by time under the provisions of section 23 of the Land Improvement Schemes Act, E 1942.

These objections were repelled.

Ti).e accused were accordingly convicted and sentenced as above.

On appeal the High Court affirmed the findings of the learned special judge.

We have heard Mr. Kotwal on behalf of the appellants and are of the opinion that there is no merit in the appeal. It has F not been disrupted before us that the ' accused made various entries and prepared documents on March 11, 1966 about their having got .the rectification work done as well as about the payment of Rs. 369.07 on that account. It has also not been dis puted before us that the amount of Rs. 369.07 was not paid to any one by the accused in March or April 1966.

According to G Ghate (PW 1 ) and Inamdar (PW 11 ) , no work relating to the rectification of the Bundh was found to have been done till May 11, 1966 when they visited the site in question .• Inamdar's evidence also shows that according to the measurement book prepared by the accused, 83 pits ha~ been recently dug though the witness could not find a smgle pit on the spot. In view of the H above, we find no cogent ground to disagree with the trial court and the High Court that the accused had prepared false documents and had also committed criminal breach of trust In respect

of the amount of Rs. 369.07.

We also agree with the trial court and the High c_ourt that the accused were in the discharge of their duties guilty of criminal misconduct as defined in section 5 of the Prevention of Corruption Act.

fr. Kotwal has argued that the accused completed the recti- B fical!on work after May 11, 1966. There is, however, no direct evidence as may show that the rectification work was completed after May 11, 1966. Even if it may be assumed that the accused completed the rectification work in May 1966, that fact, in our opinion, would not absolve the accused of their criminal liability.

The charge against the accused relates to preparation of false documents because even though no work had been done till March 11, 1966 and no amount had been dl:sbursed, they prepared docuc

ments showing the doing of that w'}rk and the payment of that amount.

It is no answer to that charge that after the matter had been reported to the higher auhorities, the accused in the month of May 1966 got the rectification work done.

It is also no answer to a charge of criminal misappropriation that the money was D subsequently, after the matter had been reported to the high authorities, disbursed for the purpose for which it had been entrusted.

According to explanation 1 .to section 403 Indian Penal Code, a dishonest misappropriation for a time only is "misappropriation" within the meaning of that section.

E Mr. Kotwal has also submitted .that the accused expressed willingness to complete the work after the matter had been reported to the higher authorities. This submission, even if accepted, would not exonerate the accused because the willingness after the matter had been reported to the higher authorities could not efface or undo the offence earlier committed by the accused. .

I F Argument has .then been advanced on behalf of the appellants that Sub Inspector Patil did not make investigation in the case in .

accordance with law. It is urged that permission to make investigation was granted to Sub Inspector Patil on November 12, 1966 and, as such, he was not authorised to make before that date the enquiry which led to the registration of the case as that G enquiry partook of the character of investigation. Nothing has been brought to our notice as to how an enquiry before the registration of a case can be held to be investigation. The matter, however, need not be dilated upon and it is not necessary to express any final opinion in the matter because we find that there is no material on the record as may show that the accused were prejudiced because of the alleged non-compliance with the pro- H visions of section SA of the Prevention of Corruption Act. It is well established that where cognizance of a case has, in fact, been taken by the court on a police report following investigation

SPPREME COURT REPORTS

c(Jnducted !nbreaclf of prpvisions of .section 5A of the Prevention A

Qf Corruption Act;. the result of the trial cannot be set aside un- the illega).ity in the .investigati6n can be shown to h.ave brought about a iniscarriag!l of justice.

The underlying reason for the above dictum is that an illegality committed in the course ' of investigation does not• afiect the competence and jurisdiction of the court th try the accuSed.

Where, therefore, the trial of B the case' has proceeded to 'tennination, .. the. invalidity of the proceeding investiglitiO)i: wo\Jld not vitiate the conviction. of the accus- . ed as a result of' ihe trial unless the illegalityin the investigation has caused prejtii!iCtHo the accused (see H. N. Rishbud and lnder Singh'v. The State Of 1Jelhi(1)]; Sincethere has been no miscarriage of jiistie In the present case because of the alleged c non-cotnplianee with section 5A, the convicti6n of the accusedappellants caruiot be set aside on that score.

For the same reason, we ru:e unable to accede to the contention of Mr. Kotwal that the conviction of the accused sho\Jld be set aside because permission under section 5A of the Prevention of Corruption Act !O SI Patil for investigation of the offence was granted in a

casual manner and without the existence of sufficient reasons.

Lastly, it has been argued by Mr. Kotwal that th.e prosecution of the accused was barred by time under section 23 of the Bombay Land Improvement Schemes Act, 1942.

The section reads as under:

" ( 1) No suit, prosecution or other legal proceeding shall be .instituted against any public servant or person duly authorised under this Act in respect of anything in good faith Cione or intended to be done under this Act or the rules made thereunder. ( 2) No suit or orosecution shall be instituted against any pul:>lic servant or person duly authorised under this. Act in respect of anything done or intended to be done, unde~ this , Act, unless the suit or prosecution has .been instituted. within six months from the date of the act complained of."

Sub-seetion ( 1) of the section has plainly no application as it G rel!ltes to l!!lytlritlg done. in. g\)Od faith.

According to Bomby General Clalllies Act, .a thing shall. be deemed .to be done m g~ faith \Vhere itis in fact done , honesy, whether it is d?Ile negligently or not.

The appellants admittedly were not actmg honestly when they prepared the false documents in question and . showed disbursement of Rs. 369.07 on March 11, 1966. Mr.

H J{otwal, however, relies on sub-section ( 2) of section 23 and

(I) [1955] I s.c.R. 1150. '

submits that the prosecution could be instituted against the appellants only within six months from March 11,

1966. As the charge sheet was submitted. long after the expiry of six months, the case against t!; te accused-appellants, according to the counsel, was barred by time.

This contention, in our opinion, is devoid of force.

Sub-section ( 2) refers to suit or prosecution against a public servant or person duly authorised under the Act in respect of anything done or intended to be done under the Bombay Land Improvement Schemes Act. It cannot be said that the acts of the accused-appellants in preparing false documents and in committ. ing criminal breach of truSt in respect of the amount of Rs. 369.07

as also their act of criminal misconduct were done under the Bombay Land Improvement Schemes Act.

Sub-section (2) of section 23 deals with anything done or intended to be done under the above mentioned Act by a public servant or a person duly authorised under the Act. It has no application where something is done not under the Act even though it has been done by a public servant who th.as been entrusted with duties of carrying out improvement schemes under the above mentioned Act.

The impugned acts of the appellants in the present case were not in discharge of thefr duties under the above mentioned Act but in obvious breach and flagrant disregard of their duties.

Not only they did no rectification work for the Bundh which was a part of the improvement scheme, they also misappropriated the amount which had been entrusted to them for the purpose of rectification.

Prayer has also been made for the reduction of the sentence, but we see no cogent ground. to interfere with . the same.

The appeal consequently fails and is dismissed.

K.B.N.

Appeal dismissed.

S-L!03! Sup.Cl/72

KHANDU SONU DHOBI AND ANR

STATE OF MAHARASHTRA

February 1,5, 1972

M. SHELAT

P. JAGANMOHAN REDDY

H. R. KHANNA, JJ

Penal Code 1860

S. 4

Improvement Schemes Act, 1942

s. 23

s. 218

section 34

section 477A

section 34

section 34

Indian Penal Code

section 5(2)

section 5(i)(d)

Prevention of Corruption Act

section 5A

Prevention of Corruption Act

s. 5

section 403

Indian Penal Code

section 5A

Prevention of Corruption Act

Ullles

V. S. Kotwal

A. G. Ratnaparkhi

Rajiv Shah

R. M. Mehta

B. D. Sharma

Khanna

Khandu Sonu Dhobi

Bhikanrao Rambhau Khaimar

Bombay High Court

section 218

section 4

section 34

section 409

section 34

Indian Penal Code

section 5

Prevention of Corruption Act

Dhobi

SUPREME COURT REPORTS [1972] 3 S.C.lt

Dhobi

Asane

Khairnar

March 2, 1966

March 11, 1966

Khaim.ar

Jagan Trimbak

Jagan Trimbak

Ziparu Tukaram

April 16, 1966

Nandurbar

H Sarpanch Tanku Bhagwan

Tanku

April 12, 1966

N asik

D.S.D. Ghate

May 2, 1966

Chate

P. R. Inamdar

Inamdar

Ghate

Asane village

Sarpanch Tanku

April 30, 1!166

Maharashtra State

K. G. Patil

Dhulia

Patil

Nasik

November 7, 1966

Nandurbar Taluka police station

November 8, 1966

November 12, 1966

Mahamuni

Kulkarru

Prevention of Corruption Act

May 18, 1967

Ghate

May 13, 1966

May 16, 1966

section 23

Kotwal

G Ghate

Inamdar

May 11, 1966

section 5

Prevention of Corruption Act

section 403

Indian Penal Code

SA of the Prevention of Corruption Act

section 5A

H. N. Rishbud

section 5A

section 5A

Prevention of Corruption Act

section 23

H J{otwal

section 23

March 11,

1966

section 23

Bundh