Hemendra Nath Gupta and Others vs Emperor

Agarwala, J.—These six petitions are by three persons against whom proceedings are pending in the Court of the Sub-divisional Magistrate of Daltonganj on charges of cheating, forgery, fabricating false documents and conspiring to commit these offences. The petitioner, Hemendra Nath Gupta, is a Court of Wards Manager; Sukhomoy Moitra is a Sub-Overseer in the employ of the Court of Wards, and Raj Dular Singh is a contractor who, it is said, bad been employed to do certain work on behalf of two estates, the Chainpur estate and the Bisrampore estate. Chainpur estate is under the Court of Wards management and the management of the Bisrampore estate has been taken over under the Chota Nagpur Encumbered Estates Act of 1876. The facts which have given rise to the prosecution are alleged to be as follows: The contractor having done certain work for these two estates and his work having been checked by the Wards Sub-Overseer, bills for the work were passed by the Manager. It is alleged that the amount of work charged for was not in fact done by the contractor, that the Sub-Overseer who is supposed to have checked the work passed accounts which misrepresented the true state of work done and that the Manager passed the bills knowing that the work had not actually been done. On 30th June 1936, the Deputy Commissioner ordered the District Board Supervisor and the District Board Overseer to check the work which had been charged for. These officers reported that work had been charged for which had not been done and that excess charges had been made for work that had been done and that the petitioner Sukhomoy Moitra had apparently given imaginary figures in his measurement book and had not, in fact, correctly checked the work done. It was estimated by these officers that as a consequence the estates had had to pay Rs. 700 in excess of the value of the work actually performed. On receipt of these reports the Deputy Commissioner sent the measurements and the report to the Senior Wards Deputy Collector with instructions to him to examine the papers and, if desirable, to institute criminal proceedings.

The Deputy Collector thereafter wrote to the Police a letter, which has been treated as the first information in the case, requiring an investigation of the charges against the Sub-Overseer and the contractor. With this letter the Deputy Collector sent the report of the District Board Overseer and Supervisor and other relevant papers. After investigation the Police submitted a charge-sheet against the contractor, the Overseer and the Manager, Hemendra Nath Gupta, and arrested the latter but released him on bail. In the present applications it has been sought to quash the proceedings at present pending or to transfer them from the Court of the Sub-divisional Magistrate at Daltonganj. The first ground in support of the application to quash the proceedings is that the sanction of the Local Government to the prosecution of Hemendra Nath Gupta has not been obtained as required by Section 197, Criminal P.C. So far as it is relevant for the present purpose that section is as follows:

When any person, who is a Judge within the meaning of Section 19, I.P.C., 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 of the Local Government.

It is contended that the petitioner Hemendra Nath Gupta is a Judge within the meaning of Section 19, Penal Code. That section defines the word "Judge" to denote:

Not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive.

Reference was made to various sections of the Chota Nagpur Encumbered Estates Act of 1876 which, it is contended, show that the duties and powers of a Manager under that Act are such that he falls within the definition of a Judge u/s 19, Penal Code. One of the duties of such a Manager is to ascertain what debts were owed by the proprietor of the estate at the time the management of the estate was assumed and to decide the validity of those debts and the amount of interest payable on them. The procedure to be followed by the Manager in deciding these questions is analogous to the procedure of a civil Court, and Section 10 of the Act provides that the decision of the Manager, unless appealed from, shall be final. It is true that under the concluding words of para. 1, Section 10 the decision of the Manager is subject to the provisions of Sections 10-A and 21-A which respectively authorize the Commissioner and the Board of Revenue to revise, modify, or reverse the Manager''s decision; but, subject to any such action by the Commissioner or the Board of Revenue, the decision is final. In my view, there can be no doubt that while exercising the functions referred to in part 4 of the Act relating to the settlement of debts, the Manager is a Judge within the meaning of Section 19, Penal Code.

That being so, Section 197 debars his prosecution on a charge of any of the offences alleged to have been committed by him while acting, or purporting to act, in the discharge of his official duty. This section has been completely recast by the Amending Act of 1923. Before the amendment very nice questions arose as to whether a Judge or public servant referred to in Section 197, could not be prosecuted without the sanction of the Local Government only for an offence committed by him as a Judge or public servant, or whether the section had wider application. The amendment, as has been pointed out in a number of recent decisions, has widened the scope of the section and now protects the persons referred to in it, not only in respect of offences committed while acting in the particular capacity referred to in the section, but in respect of offences committed while acting, or purporting to act, in the discharge of official duties also. That the Manager is an official there can be no doubt. Section 21 of the Act declares that every Manager appointed under the Act shall be deemed a public servant within the meaning of the Penal Code. In his capacity as Manager it was his duty to pass bills for work done by the contractor, so that, while passing the bill or bills, in the present case the Manager was acting in his official capacity and in discharge of his official duty, and, as was pointed out in Jugjivarapu Gangaraju v. Kandiboyini Venki AIR 1929 Mad 659, by Waller, J.:

If it is found that the Judge, Magistrate, or public servant has committed an act at a time when he was doing (or purporting to do) an official duty, this will be sufficient to attract the provisions of this section, that is to say, Section 197, Criminal P.C.

This decision was cited with approval in this Court in the case of Ram Singh v. S.A. Rizvi AIR 1935 Pat 52. In my view, in the present instance the offence with which the Manager is charged must be held to have been committed in the discharge of his official duties and therefore, the sanction of the Local Government to the prosecution was necessary. Admittedly, that sanction was not obtained prior to the institution of the present proceedings against the Manager. The prosecution of the Manager must, therefore, be quashed.

With regard to the other two petitioners, it is contended that their prosecution should also be quashed on the ground that the charge-sheet, on which the Magistrate took cognizance of the cases against them, was not "a report in writing of the facts" as required by Clause (b) of Sub-section (1) of Section 190. Reliance was placed upon a decision of the Bombay High Court in In re Shivlingappa Bhagappa AIR 1930 Bom 372. In that case, column 7 of the charge-sheet, which should have contained information of the nature of the offence and the circumstances connected with it, contained the following entry:

In connection with Hubli Town Civil Revision Nos. 36 and 37 of 1927 the accused noted in the charge-sheet and others conspired with each other and abetted one another in committing offences under Sections 161 to 165 and 109, I.P.C.

The Court held that this was not a statement of the facts as required by Section 190(1)(b) of the Code of Criminal Procedure. The Bombay case followed two previous decisions of the Calcutta High Court, viz. Lee v. Adhikarry (1910) 37 Cal 49=5 IC 553 and Nagendra Nath Chakrabarthi Vs. King-Emperor, . Those cases, in my view, are distinguishable from the present. So far as the contractor and the Sub-Overseer are concerned, the facts alleged against them are contained in the Overseer''s report to the Deputy Commissioner and this was attached to the first information by the Deputy Collector and was fixed to the charge-sheet by the investigating officer who submitted it, so that, although the facts were not actually written out in the document which is called the charge-sheet, they were contained in a document annexed to the charge-sheet. That, in my opinion, was sufficient compliance with the requirements of Section 190(1)(b) of the Criminal P.C.I would, therefore, reject the applications of these petitioners to quash the proceedings against them.

There remain the applications made on their behalf for transfer of the proceedings from the Court of the Sub-Divisional Magistrate. The application for transfer is not opposed, but it is suggested by the learned Government Advocate that the circumstances of the present case do not justify the case being sent altogether out of the District and the inconvenience of this course is pointed out in the view of the fact that the material witnesses are officials and others residing in Daltonganj where it is possible for the trial of the petitioners to be held by a Court which is above any suspicion of being influenced by local conditions, viz., by the Sessions Judge of Ranchi who sits at Daltonganj to try Sessions cases arising in the Daltonganj District. The question of trial by the Sessions Court, however, will arise only in the event of the accused being committed to the Sessions for trial. Before that stage is reached a judicial enquiry has to be held by a Magistrate. There is no objection on behalf of the petitioners to the commitment proceedings being conducted by the Sub-Divisional Magistrate who at present has seisin of them. The present proceedings, therefore, will continue before the Sub-Divisional Officer, and in the event of his finding a prima facie case to be established against the two petitioners, he will commit them to the Court of the Judicial Commissioner of Ranchi for trial.