TaxTMI 
TaxTMI 
1948 (2) TMI 23
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....ty Assistant Director of Contracts at Calcutta. In this office he was responsible for the issue and acceptance of tenders for purchase of material in compliance with indents made by the proper authorities. 4. The appellant Lahiri is the proprietor of the Baranagoro Engineering Works. In that capacity he obtained numerous contracts for supplying Government requisites through the appellant Gill and other officers. 5. As a result of secret enquiries which, for reasons that need not be further investigated, the Deputy Superintendent of Police, Calcutta, thought fit to make into the affairs of Gill, it was found that Gill had on 21-5-1941, received from Lahiri a cheque for Rs. 500. A search warrant was then obtained for the search of Lahiri's house. The warrant was executed on 11-10-194,2, and the police took possession of a diary kept by Lahiri and of the counterfoils of his cheque book in which there were notes purporting to refer to Gill in the handwriting of Lahiri. Upon these materials with others to which reference will be made it was determined that criminal proceedings should be instituted against Gill and Lahiri and accordingly steps were taken to obtain what were tho....
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....Federation and to the Governor-General exercising his individual judgment shall be construed as references to the Governor-General in Council. On 28-1-1943, the consent of the Governor-General under Section 270 was given to the institution of proceedings against Gill in the following terms: Under Section 270(1), Government of India Act, 1935, I, Victor Alexander John Marquesa of Linlithhgow acting in my discretion consent to the institution of criminal proceedings against Major H.H.B. Gill formerly Deputy Controller of Purchase, Supply Department Calcutta for having committed during the years 1941 and 1942 offences punishable under Section 161 and Section 120B read with Section 420, Penal Code. 6. On 3-2-1943, sanction of the Governor-General in Council under Section 197, Criminal P.C. was given in similar terms. 7. It is to be observed that the sanctions refer to offences punishable under Section 161 and Section 120B read with Section 420, Penal Code. and it is convenient here to set out these sections together with Section 120A and Section 165, Penal Code, which are also relevant: 120A. - Definition of Cri....
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....t guilty of the offence defined in this section. "Gratification" : The word "gratification" is not restricted to pecuniary gratifications, or to gratifications estimable in money. "Legal remuneration" : The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government, which he serves, to accept. "A motive or reward for doing" : A person who receives a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, comes within these words. Section 165 : Whoever, being a public servant, accepts or obtains, or agrees to accept or attempts to obtain, for himself, or for any other person, any valuable tiling without consideration or for a consideration which he knows to be inadequate: from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions of himself or of any public servant to wh....
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.... 21-5-1941, at Calcutta, being a public servant, to wit, Deputy Controller of Purchase in the Department of Supply, Government of India, obtained from Anil Lahiri of Baranagore Engineering Works Rs. 500 (Rupees five hundred) by encashment of cheque (Exhibit 4) as gratification other than legal remuneration for showing in the exercise of your official functions favour to the said Anil Lahiri in the matter of the contract for the supply of Anti-gas Respirator Spring Compressor No. 3 and you thereby committed an offence punishable under Section 161, Penal Cede and within my cognizance. 3. Against Lahiri only. That you on or about 21-5-1941, at Calcutta abetted Major H. H. B. Gill in the commission of the offence under Section 161, Penal Code by paying him Rs. 500 by cheque (Exhibit 4) as gratification other than legal remuneration for showing, in the exercise of his official functions as Deputy Controller of Purchase, favour to your firm Baranagore Engineering Works in the matter of the contract for the supply of Anti-gas Respirator Spring Compressor No. 3, which offence was committed in consequence of your abetment and you thereby committed an offence pu....
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....r showing in the exercise of you Major Gill's official functions, favours or for rendering tempting to render any service to you the said Anil Lahiri in the matter of your contracts or the supply of Anti-gas Respirator Spring Compressors and Becking Spikes and in consequence thereof offences punishment under Section 161, Penal Code were committed, you Major (now Captain) H.H.B. Gill and Anil mi thereby committed an offence punishable under 120B read with Section 161, Penal Code. The separate charges under Section 161 and Section 161/109 (which related to the cheque for Rs. 500) were retained unaltered. 15. Upon these charges, old and new, Gill and Lahiri were duly tried. A large number of witness gave evidence for the prosecution. Both Gill and Lahiri were examined by the learned Magistrate under Section 342, Criminal P.C. while Gill also it put in written statement and an additional written statement. Amongst the evidence adduced by the prosecution and admitted by the Court were the diary and cheque counterfoils and notes to which reference has already been made. That these documents, which will be compendiously referred to as "Lahiri's notes", were evidence against ....
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....all reasonable doubt, and that on the evidence it was not possible to find that the transaction was more than suspicious. If so, it appears to their Lordships to follow that the High Court neither disbelieved the explanation nor (which comes to the same thing) thought that there was reasonable ground for disbelieving it, In the case of the High Court also it is important to note how Lahiri's notes were dealt with. "In our opinion", they said, the entries in the note-book together with the entries in the counterfoils are explicable only on the hypothesis that Lahiri gave the amounts mentioned to Gill and we agree therefore with the learned Magistrate's finding that the conspiracy is established. This makes it clear that Lahiri's notes were admitted as evidence not only against Lahiji but also against Gill on the conspiracy charge, and the question at once arises upon what ground they were so admissible. 18. The High Court also had to consider the questions of general importance indicated earlier in this judgment. They were; (1) whether sanction was necessary to the institution of proceedings against Gill and (2) assuming that it was necessary whether....
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....ile thinking it unnecessary to discuss or determine the necessity for such sanction, was of opinion that (as in the case of the sanction under Section 270) the sanction which was in fact given enabled the Chief Presidency Magistrate to take cognisance of the offences set out in the sanction and that the subsequent course of the proceedings would be regulated and was justified by the relevant provisions of the Code of Criminal Procedure. The Court did not specifically refer to Section 230 of that Code, which deals with the question of a new or altered charge in cases where sanction is necessary, but their Lordships do not doubt that it was this section (amongst others) that the Court had in mind. 24. Finally the Court dealt with the competence of the Magistrate to record a conviction, under Section 120B read with Section 165 when the charge was for an offence under Section 120B read with. Section 161 and after a close analysis of the relevant offences held that under Section 238 of the Code such, a course was justified. 25. The Court stated that no other issue was raised before it. This statement was challenged by counsel for the appellants who urged that at, any rate an attem....
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.... two sections. In the consideration of Section 197 much assistance is to be derived from the judgment of the Federal Court in Hori Ram Singh v. Emperor 26 A.I.R. 1939 F.C. 43 and in particular from the careful analysis of previous authorities which is to be found in the opinion of Varadachariar J. Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act : nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, ....
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....and for the purpose of this question it is immaterial whether the conviction was under Section 120B read with Section 161 or with Section 165. It is here necessary to recapitulate certain facts. The learned Chief Magistrate found the appellants guilty of the specific charges alleged against them under Section 161. And it may well be that, disbelieving the explanation which Gill gave of the transaction the subject of that charge, he had reasonable ground in connection with the conspiracy charge for believing that Gill and Lahiri had conspired to commit the offence which was the subject of that charge, so that, under Section 10, Evidence Act, the notes made by Lahiri were admissible in evidence against Gill. That section, so far as relevant, provides that, where there is reasonable ground to believe that two or more persons have conspired together to commit an offence, anything written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by one of them, is a relevant fact against each of the persons believed to be so conspiring, as well for the purpose, of proving the existence of the conspiracy as for the purpose....