EMPEROR Vs. LUMBHARDHAR ZUTSHI

JUDGEMENT

(1.) This is an appeal by accused No. 1, Lumbhardhar Zutshi, from a conviction by the Chief Presidency Magistrate under Section 161 of the Indian Penal Code, 1860, that is to say, the receipt of illegal gratification by a Government servant, and the sentence of two years rigorous imprisonment passed on him on June 19, 1946. Accused No. 2, Chimanlal Mohanlal, who was charged with abetment of the offence of accepting illegal gratification, was also convicted, but was sentenced to one day's simple imprisonment and a fine of Rs. 1,000 by the Chief Presidency Magistrate. He has not preferred any appeal; no doubt, that is because of the lightness of his sentence, in itself difficult to understand as the Chief Presidency Magistrate has described the offence committed by him as being, "no less heinous than accused No. 1". We intend to give certain directions with regard to accused No. 2 at the conclusion of this judgment.

(2.) Mr. M.C. Setalvad, who appears in this Court for the appellant, submits, two main grounds of appeal, first, that the whole proceedings before the Chief Presidency Magistrate were invalid and ineffectual because no sanction to the prosecution was ever given by the Governor General in Council under Section 197 of the Criminal Procedure Code, and that accordingly the whole proceedings must be quashed and the conviction and sentence of accused No. 1 set aside; secondly, if this first point fails, then there is an appeal on the facts and the merits of the case. The only point, which has so far been argued before us, and which is dealt with by this judgment, is the first ground of appeal, which is primarily a question of law. If the appellant succeeds on this first submission, then the second ground of appeal would not arise at all.

(3.) Section 197 of the Criminal Procedure Code is as follows: (1) When any person who is a Judge within the meaning of Section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a Provincial Government or some higher authority, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person employed in connection with the affairs of the Federation, of the Governor General exercising his individual judgment; and (b) in the case of a person employed in connection with the affairs of a Province, of the Governor of that Province exercising his individual judgment. (2) The Governor General or Governor, as the case may be, exercising his individual judgment may determine the person by whom, the manner in which, the offence or offences, for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. (3) In relation to the period elapsing between the commencement of the Federation, the references in this section to the Federation and to the Governor General exercising his individual judgment shall be construed as references to the Governor General in Council.