1949 JTR(SC) 69
1950 AIR(PC) 26 ; 1949 77 LawReportsInd.App. 62
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MACDERMOTT, LORD REID, LORD RADCLIFFE AND SIR MADHAVAN NAIR.
LUMBHARDAR ZUTSHI - Appellant
Versus
THE KING - Respondents
On Appeal from the High Court at Bombay.
Decided On : Nov. 28. 1949
Sanction under Section 197 of the Criminal Procedure Code is not required for prosecuting a public servant under Section 161 of the Indian Penal Code, and procedural irregularities in police investigations do not deprive a trial court of its jurisdiction.
Act
Referred
:BOMBAY CITY POLICE ACT: S.58(2), S.58, S.2
CIVIL PROCEDURE CODE
: S.202(1)
CRIMINAL LAW: .
CRIMINAL PROCEDURE CODE: S.1, S.202
(A) Indian Penal Code - Sections 161 and 109 - Criminal Procedure Code - Sections 197 and 202(1) - City Police Act - Section 58(2) - Public servant accepting gratification - Sanction for prosecution - Jurisdiction of Magistrate - Procedural irregularity in investigation - Whether sanction under Section 197 of the Criminal Procedure Code is required for prosecution under Section 161 of the Indian Penal Code - Held, sanction is not necessary.
(B) Jurisdiction - Whether a failure to comply with procedural requirements under Section 202(1) of the Criminal Procedure Code before authorizing a police investigation into a non-cognizable case deprives the trial court of jurisdiction - Held, a fault in procedure does not deprive the Magistrate of jurisdiction to try the accused.
(C) Appeal - Scope - New grounds of appeal not raised in the lower court or in the petition for special leave are generally not entertained unless they involve a fundamental question of jurisdiction.
Facts of the case:
A public servant was convicted of accepting a bribe to forbear the prosecution of a merchant, and another individual was convicted of abetting the offence. The conviction and sentence were upheld by the High Court. The appellants challenged the conviction on the grounds that no sanction had been obtained under the Criminal Procedure Code. Subsequently, a new ground was raised asserting that the trial was void because the police investigation into the non-cognizable case was conducted illegally due to the Magistrate's failure to comply with procedural requirements before authorizing the investigation.
Findings of Court:
The court found that sanction is not required for prosecution of a public servant for an offence under Section 161 of the Indian Penal Code. Regarding the legality of the investigation, the court held that any procedural fault in the order authorizing the police to investigate does not deprive the Magistrate of the jurisdiction to try the appellants.
Issues: 1. Whether sanction under Section 197 of the Criminal Procedure Code is necessary for prosecuting a public servant under Section 161 of the Indian Penal Code. 2. Whether a procedural failure under Section 202(1) of the Criminal Procedure Code in authorizing a police investigation into a non-cognizable case renders the subsequent trial and conviction void for lack of jurisdiction.
Ratio Decidendi: Sanction is not a prerequisite for prosecution under Section 161 of the Indian Penal Code. Furthermore, procedural irregularities occurring prior to the trial, specifically in the authorization of a police investigation, do not constitute a jurisdictional defect that would nullify the trial court's authority to try the case and pass a conviction.
Result: Appeal dismissed.
(B) Jurisdiction - Whether a failure to comply with procedural requirements under Section 202(1) of the Criminal Procedure Code before authorizing a police investigation into a non-cognizable case deprives the trial court of jurisdiction - Held, a fault in procedure does not deprive the Magistrate of jurisdiction to try the accused.
(C) Appeal - Scope - New grounds of appeal not raised in the lower court or in the petition for special leave are generally not entertained unless they involve a fundamental question of jurisdiction.
Facts of the case:
A public servant was convicted of accepting a bribe to forbear the prosecution of a merchant, and another individual was convicted of abetting the offence. The conviction and sentence were upheld by the High Court. The appellants challenged the conviction on the grounds that no sanction had been obtained under the Criminal Procedure Code. Subsequently, a new ground was raised asserting that the trial was void because the police investigation into the non-cognizable case was conducted illegally due to the Magistrate's failure to comply with procedural requirements before authorizing the investigation.
Findings of Court:
The court found that sanction is not required for prosecution of a public servant for an offence under Section 161 of the Indian Penal Code. Regarding the legality of the investigation, the court held that any procedural fault in the order authorizing the police to investigate does not deprive the Magistrate of the jurisdiction to try the appellants.
Issues: 1. Whether sanction under Section 197 of the Criminal Procedure Code is necessary for prosecuting a public servant under Section 161 of the Indian Penal Code. 2. Whether a procedural failure under Section 202(1) of the Criminal Procedure Code in authorizing a police investigation into a non-cognizable case renders the subsequent trial and conviction void for lack of jurisdiction.
Ratio Decidendi: Sanction is not a prerequisite for prosecution under Section 161 of the Indian Penal Code. Furthermore, procedural irregularities occurring prior to the trial, specifically in the authorization of a police investigation, do not constitute a jurisdictional defect that would nullify the trial court's authority to try the case and pass a conviction.
Result: Appeal dismissed.
Sanction - Settled that sanction under s. 197 of the Criminal Procedure Code is not necessary before a public servant can be prosecuted for an offence under s. 161 of the Indian Penal Code.
Solicitors for appellants: Barrow, Rogers & Nevill.
Solicitor for respondent: Solicitor, High Commissioner for India,
Judgement
Consolidated Appeals (No. 5 of 1948), by special leave, from the judgments of the High Court (February 12, 1947, and March 20, 1947) upholding the conviction and sentence passed by the Chief Presidency Magistrate (June 19, 1946) under s. 161 of the Indian Penal Code in the case of the appellant Zutshi, and upholding the conviction and enhancing the sentence passed by him on the same date under s. 161 read with s. 109 of the Penal Code in the case of the appellant Chimanlal.
The following facts are taken from the judgment of the Judicial Committee. The charge against the first appellant was that he, being a public servant, accepted a sum of Rs..15,000 for forbearing to prosecute a metal merchant named Vakharia and thereby committed an offence punishable under s. 161 of the Indian Penal Code. The second appellant was charged with abetting that offence. An appeal by the first appellant to the High Court at Bombay was dismissed on March 20, 1947. It appeared from the judgment of Stone C.J. that there were two grounds of appeal first, that the whole proceedings were invalid because no sanction had been given under s. 197 of the Criminal Procedure Code, and secondly, an appeal on the facts. The second appellant did not appeal to the High Court, but
Law Rep. 77 Ind. App. 62 ( 1949- 1950)
Lumbhardar Zutshi V. King 204
notice of enhancement of sentence was given to him, and his sentence was increased on March 20, 1947.
On April 21, 1947, a petition for special leave to appeal was lodged by the first appellant. In that petition no reference was made to anything which had occurred before March 15, 1944, when the charge against the appellant was framed by the Chief Presidency Magistrate it was narrated that the two main grounds of appeal to the High Court had been the invalidity of the whole proceedings because no sanction to the prosecution had been given, and that on the merits of the case the appellant had been wrongly convicted. It was then stated, " The grounds on which your petitioner seeks leave to appeal are
"(i) that the Chief Justice and Lokur J. erred in holding that sanction was not required to empower the court to take cognizance of the charge against your petitioner that the court which tried him was in these circumstances without jurisdiction and that his conviction is therefore a nullity; and
"(ii) that there is a conflict of judicial opinion in India as to the true construction of s. 197, in particular as to whether sanction is required where a charge of taking a gratification is brought against a public servant, and that it is fitting that his conflict should be settled by the judgment of the judicial Committee."
On that petition leave to appeal was granted by Order in Council of May 21, 1947. On May 27, 1947, a petition for special leave to appeal was lodged by the second appellant.
The grounds of appeal stated in that petition were "that your petitioner submit that the trial of the said Lumbhardar Zutshi without previous sanction of the Governor General in Council under s. 197 of the Criminal Procedure Code was without jurisdiction, that therefore the trial of your petitioner jointly with him for abetment of the offence alleged to have been committed by the said Zutshi was also illegal and that the conviction and sentence passed on your petitioner should be set aside." On that petition leave to appeal was granted by Order in Council of June 11, 1947.
1947. Nov. 7. Pullan for the appellants. Meg aw for the respondent.
Nov. 28. The judgment of their Lordships was delivered by LORD REID, who stated the facts-set out above and continued When leave to appeal was granted to the appellants it was still an open question, whether sanction under s. 197 of the Criminal Procedure Code was necessary before a public servant could be prosecuted for an offence under s. 161 of the Indian Penal Code. It has now been settled by their Lordships judgment in Gill v. The King (( 1948) L.R. 75 I.A. 41.), that sanction is not necessary, and accordingly the appellants cannot succeed on the grounds of appeal set out in their petitions for leave to appeal. Their counsel argued this appeal on an entirely different ground which is not even referred to in the judgments of the High Court, although a preliminary objection raising a somewhat similar point was taken unsuccessfully before the Chief Presidency Magistrate. Their Lordships would only be prepared to allow such an argument in an exceptional case. In the present case it was argued that the new ground of appeal raised a question of jurisdiction and their Lordships permitted the argument to proceed. The argument was that the trial and conviction of the appellants were void because the police investigation which led up to the trial was conducted illegally. This was a non-cognizable case and s. 58, sub-s. 2, of the! BOMBAY CITY POLICE ACT , 1902, provides that no police officer shall investigate a non-cognizable case without the order of a presidency Magistrate. There was an order by the Chief Presidency Magistrate in this case, but it was submitted that this order was invalid because the magistrate was bound before making such an order to comply with the
Law Rep. 77 Ind. App. 62 ( 1949- 1950)
Lumbhardar Zutshi V. King 205
requirements of s. 202, sub-s. 1, of the Criminal Procedure Code and he had not done so.
In their Lordships judgment this new ground of appeal does not involve any question of jurisdiction. If the argument for the appellants were well founded it would establish that the proper procedure had not been followed Before the making of the order of March 8, 1943, which authorized the police to ^investigate the alleged offence. Such a fault in procedure might have important consequences but it could not, in their Lordships judgment, deprive the Chief Presidency Magistrate of his jurisdiction to try the appellants.
Their Lordships do not propose to consider whether there was any fault in procedure in this case because It would be entirely contrary to the settled practice of the Board to entertain a question of this character when that question was not argued in the High Court and is not referred to in the appellants petitions for special leave to appeal.
Their Lordships will therefore humbly advise His Majesty that this appeal should be dismissed.