iminal Appeal No 40 of 1951 127 Appeal from the Judgment and Order dated the 1st June 1951 of the High Court of Judicature in Assam Thadani CJ and Ram Labhaya J in Criminal Reference No I of 1951 arising out of Judgment and Order dated the 15th November 1950 of the Court of the Additional District Magistrate Lakhimpur in Case No 1126C of 1950
Jindra Lal for the appellant
Nuruddin Ahmed for the respondent
October 23
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J
Rameshwar Bhartia the appellant is a shopkeeper in Assam
He was prosecuted for storing paddy without a licence in excess of the quantity permitted by the Assam Food Grains Control Order 1947
He admitted storage and possession of 550 maunds of paddy but pleaded that he did not know that any licence was necessary
The Additional District Magistrate recorded a plea of guilty but imposed him a fine of Rs 50 only as he considered his ignorance of the provisions of the Food Grains Control Order to be genuine
The stock of paddy was left in the possession of the appellant by the Procurement Inspector under a Jimmanama or security bond executed in his favour
He was subsequently unable to produce it before the court as the whole of it was taken away by a Congress MLA for affording relief to those who suffered in the earthquake and so the appellant was ordered to procure a similar quantity of paddy after taking an appropriate licence and to make over the same to the procurement department payment of the price
The District Magistrate being moved to do so by the procurement department referred the case to the High Court under section 438 Criminal Procedure Code for enhancement of the sentence as in his opinion the sentence was unduly lenient and the Jimmanama which was admittedly broken should have been forfeited
128 The reference was accepted by the High Court and the sent ence was enhanced to rigorous  imprisonment for six months and a fine of Rs 1000
As regards the Jimmanama the case was sent back to the trial court for taking action according to law under section 514 Criminal Procedure Code for its forfeiture
The appellant applied to the High
Court for a certificate under article 134 1 c of the Constitution that the case was a fit one for appeal to this Court
This application was granted
Out of the three points urged for the appellant two were rejected but the third one was accepted as a good ground namely that there was a contravention of the provisions of section 556 Criminal Procedure Code and that consequently the trial before the Additional District Magistrate was void
One of the contentions urged before us was that Shri CK Bhuyan was not a Director at all and therefore there was no valid sanction under section 38 of the Order
A notifications dated 16th May 1950 and published in the Assam Gazette of the 24th May 1950 was produced before us to show that Sri CK Bhuyan was an Additional Deputy Commissioner and it was conceded by the appellant s counsel before the High Court that if he was a Deputy Commissioner he would be a Director under the Order as all Deputy Commissioners in Assam were notified as Directors for the purposes of the Order
Mr Jindra Lal sought to draw a distinction between a Deputy Commissioner and an Additional Deputy Commissioner in this respect but there is no warrant for the same apart from the circumstance that it is a question of fact which has to be investigated afresh and which we cannot allow to be raised now for the first time
The primary question to consider in this appeal is whether there has been any infringement of Section 556 Criminal Procedure Code and a consequent want of jurisdiction in the court which tried the offence
The facts relevant to this question lie 129 within a narrow compass
The Procurement Inspector sent a report  Ist July1950 about the nature of the offence  he wrote out a short note the subject and requested that the accused might be prosecuted and the Assistant Director of Procurement Dibru garh might be authorised to dispose of the paddy immediately to avoid loss due to deterioration Sri 0
K Bhuyanwho was the then District Magistrate Lakhimpur made the following order Prosecution sanctioned under section 7 1 of the Essential Supplies Temporary Powers Act 1946 for violation of sections 3 and 7 of the Assam Food Grains Oontrol Order 1947
 The case happened to be tried by the same gentleman in his capacity as Addtional District Magistrate and the accused was convicted as aforesaid
The argument for the appellant was that having sanctioned the prosecution Sri CK Bhuyan became personally interested in the case within the meaning of section 556 and was therefore incompetent to try the same
It was contended that the trial was not only irregular but illegal
There is no question that personal interest within the meaning of the section is not limited to private interest and that it may well include official interest also
But what is the extent of the interest which will attract the disability is a subject which different views are possible and have been taken
Section 556 itself indicates the difficulty
The Explanation to the section runs in these terms A Judge or Magistrate shall not be deemed a party or personally interested within the  meaning of this section to or in any case by reason only that be is a Municipal Commissioner or otherwise concerned therein in a public capacity or by reason only that he has viewed the place in which an offence is alleged to have been committed or any other place in which any other transaction material to the case is alleged to have occurred and made an inquiry III connection with the case
 130 This shows that to be connected with a case in a public capacity is not by itself enough to render the person incompetent to try it
Even if he had made an enquiry in connection with this case it would not matter
But look at the illustration A as collector upon consideration of information furnished to him directs the prosecution of B for a breach of the excise laws
A is disqualified from trying this case as a Magistrate
 It is evident from the words of the illustration that if a prosecution is directed by a person in one capacity he shall not try the case acting in another capacity as a Magistrate
The explanation and illustration lend some support to the view that there is a distinction between a passive interest and an active interest and that it is only in the latter case that the disqualification arises or intervenes
Under sub section 3 a of section 2 of the Assam Food Grains Control Order Director means the Director of Supply Assam and includes for the purpose of any specific provision of this Order any other officer duly authorised in that behalf by him or by the Provincial Government by notification in the Official Gazette
 Section 38 provides No prosecution in respect of an alleged contravention of any provision of this Order shall be instituted without the sanction of the Director
 A little confusion is likely to arise from the employment of the word  Director in the Control Order and the word directs in the illustration to section 556 of the Code 
It has to be borne in mind that a sanction by the Director within the meaning of the Code does not necessarily mean a direction given by him that the accused should be prosecuted
 In both cases of sanction and direction an application of the mind is necessary but there is this essential difference that in the one case there is a legal impediment to the prosecution if there be no sanction and in the other case there is a positive order that 131 the prosecution should be launched
For a sanction all that is necessary for one to be satisfied about is the existence of a prima facie case
In the case of a direction a further element that the accused deserves to be prosecuted is involved
The question whether a Magistrate is personally interested or not has essentially to be decided the facts in each case
Pecuniary interest however small will be a disqualification but as regards other kinds of interest there is no measure or standard except that it should be a substantial one giving rise to a real bias or a reasonable apprehension the part of the accused of such bias
 The maxim  Nemo debet esse judex in propria sua causa applies only when the interest attributed is such as to render the case his own cause
The fulfllment of a technical requirement imposed by a statute may not in many cases amount to a mental satisfaction of the truth of the facts placed before the officer
Whether sanction should be granted or not may conceivably depend upon consideration extraneous to the merits of the case
But where a prosecution is directed it means that the authority who gives the direction is satisfied in his own mind that the case must be initiated
Sanction is in the nature of a permission while a direction is in the nature of a command
Let us now examine some of the decisions the subject
For the appellant strong reliance was placed the judgment of the Privy Council in Gokulchand Dwarkadas vs King1 and it was argued the basis of some of the observations of the Judicial Committee that a sanction was an important and substantial matter and not a mere formality
The facts in that case were that while there was a sanction of the Government for a prosecution under the Cotton Cloth and Yarn Control Order there was nothing in the sanction itself or in the shape of extraneous evidence to show that the sanction was accorded after the relevant facts were placed before the sanctioning authority
To quote their Lordships  own words 1 1948 52 CWN325
132 There is no evidence to show that the report of the Sub Inspector to the District Superintendent of Police which was not put in evidence was forwarded to the District Magistrate nor is there any evidence is to the contents of the endorsement of the District Magistrate referred to in the sanction which endorsement also was not put in evidence
The prosecution was in a position either to produce or to account for the absence of the report made to the District Superintendent of Police and the endorsement of the District Magistrate referred to in the sanction and to call any necessary oral evidence to supplement the documents and show what were the facts which the sanction was given
 It is in this connection that their Lordships em phasise that the sanction to prosecute is an important step constituting a condition precedent and observe Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case
Nor in their Lordships  view is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of clause 23
 This however is no authority for the position that a sanction stands the same footing as a direction
It is true that the facts should be known to the sanctioning authority  but it is not at all necessary that the authority should embark also an investigation of the facts deep or perfunctory before according the sanction
The decision lends no support to the view that wherever there is a sanction the sanctioning authority is disabled under section 556 of the Code from trying the case initiated as a result of the sanction the other hand there is plenty of support for the opposite view
In the very early case of The Government of Bengal vs HeeraLall Dass and Others1 at a time when there 1 1872 17 Weekly Reporter Criminal Rulings 39 133 was no such statutory provision as section 556 of the Code but only the general rule of law that a man could not be judge in a case in which he had an interest the facts were that a Sub Registrar who was also an Assistant Magistrate having come to know in his official capacity as a registering officer that an offence under the Registration Act had been committed sanctioned a prosecution and subsequently tried the case himself
A Full Bench consisting of Sir Richard Couch C  J and five other learned Judges came to the conclusion after an examination of some of the English cases that the trial was not vitiated
The learned Chief Justice said In this case I think the Sub Registrar has not such an interest in the matter as disqualifies him from trying the case and I may observe with reference to some of the arguments that have been used as to the Sub Registrar having made up his mind and that the accused would have no chance of a fair trial that the sanction of the superior officer the Registrar is required before the prosecution can be instituted and certainly I do not consider that the prosecution will not be instituted unless the Sub Registrar has made up his mind as to the guilt of the party
It is his duty when he comes to know that an offence has been committed to cause a prosecution to be instituted by which I understand that there is prima facie evidence of an offence having been committed that there is that which renders it proper that there should be ail enquiry and the Registrar accordingly gives his sanction to it  and certainly I cannot suppose that because an officer in his position sanctions the institution of a prosecution his mind is made up as to the guilt of the party and 
that he is not willing to consider the evidence which may be produced before him when he comes to try the case
In this case there appears to be no such interest as would prevent the case from going before the Magistrate as the trying authority  134 In Queen Empress vs Chenchi Reddi1 it was pointed out that when there was only an authorisation and not a direction there was no supervening disability  and the case of Girish Chunder Ghose vs The QueenEmpress2 was distinguished the ground that there the Magistrate had taken a very active part in connection with the case as an executive officer
The Bombay High Court went even a step further in the case reported in Emperor vs Bavji3 where the Magistrate who tried the case had earlier held a departmental enquiry and forwarded the papers to the Collector with his opinion that there was sufficient evidence to justify a criminal prosecution
As he did no more than express an opinion that there was evidence which he had neither taken nor sifted which made a criminal prosecution desirable it was held that the Magistrate was not disqualified from holding the trial though no doubt it would have been more expedient had the Collector sent the case for disposal to another of his subordinates
As stated already the question whether the bar under section 556 comes into play depends upon the facts and circumstances of each particular case the dividing line being a thin one somewhat but still sufficiently definite and tangible namely the removal of a legal impediment by the grant of sanction and the initiation of criminal proceedings as the result of a direction
In the present case before us we have nothing more than a sanction and consequently we are unable to hold that the trial has become vitiated by reason of the provisions of section 556 Criminal Procedure Code
The other point taken behalf of the appellant is a more substantial one
The security bond was taken from him not by the court but by the Procurement Inspector
It is true that it contained the undertaking that the seized paddy would be produced before the court but still it was a promise made to the particular official and not to the court
The High 1 Mad 238
3 19O3 2 Cal
857 135 Court was in error in thinking that section 514 Criminal Procedure Code applied
Action could be taken only when the bond is taken by the court under the provisions of the Code such as section 91 for appearance the several security sections or those relating to bail
Clause 1 of section 514 runs Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken or of the Court of a Presidency Magistrate or Magistrate of the first class or when the bond is for appearance before a Court to the satisfaction of such Court that such bond has been forfeited the Court shall record the grounds of such proof and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid
 The language is perfectly clear the power to forfeit and the imposition of the penalty provided for in the later parts of the section arise only if the preliminary conditions are satisfied
There was no argument addressed to us that the High Court in suggesting that action should be taken under section 514 for forfeiture of the bond acted in the exercise of its inherent powers under section 561 A
It did not purport to exercise any such power and moreover there will then arise the question whether when the Code contains an express provision a particular subject there could be any resort to inherent jurisdiction under a general provision
We have got an additional circumstance in the appellant s favour in this case that the seized paddy was taken away by a member of the Legislative Assembly for giving relief to those affected by the earthquake and if that is true as it seems to be from the letter written by the  MLA to the Additional District Magistrate the 1st November 1950 it appears to us harsh if not unjust to ask him to produce the same paddy or a similar quantity of paddy
The order of the High Court sending back the case to the 136 Magistrate for taking action according to law under section 514 will therefore stand set aside
We generally do not interfere in the matter of sentence but in this case we find that the Magistrate has held that the appellant s plea that he was ignorant of the provisions of the Assam Food Grains Control Order 1947 was a genuine one
Having regard to this circumstance and the fact that from a fine of Rs 50 to 6 months  rigorous imprisonment and a fine of Rs 1000 is a big jump we think it is appropriate that the sentence of imprisonment imposed by the High Court should be set aside and we order accordingly
The fine of Rs 1000 will stand
Sentence reduced


Summary:
The question whether a Magistrate is personally interested in a ease within the meaning of section 556 Criminal Procedure Code has essentially to be decided the facts of each case
Where an officer as a District Magistrate exercising his powers under section 71 of the Essential Supplies Temporary Powers Act 1946 sanctioned the prosecution of a person for violation of sections 3 and 7 of the Assam Food Grains Control Order 1947 and the same officer as Additional District Magistrate tried and convicted the accused and it was contended that as the officer had given sanction for prosecution he was personally interested in the case within the meaning of section 656 Criminal Procedure Code and the trial and conviction were therefore illegal Held that bymerely giving sanction for prosecution he did not become personally interested in the case and the trial and conviction were not illegal
In both cases of sanction and direction to prosecute an application of the mind is necessary but there is this essential difference that in the one case there is a legal impediment to the prosecution if there is no sanction and in the other case there is a positive order that the prosecution should be launched
For a sanction all that is necessary for one to be satisfied about is the existence of a prima facie case
In the case of a direction a further element that the accused deserves to be prosecuted is involved
Whether sanction should be granted or not may conceivably depend considerations extraneous to the merits of the case
But where a prosecution is directed it means that the authority who gives the sanction is satisfied in his own mind that the case must be initiated
Sanction is in the nature of a permission while direction is in the nature of a command
Gokulchand Dwarka Das vs The King  Government of Bengal vs Heera Lall Dass and Others 1872 17 W R Cr 39 Queen Empress vs Chenchi Reddi 1901 ILR  Girish Chunder vs Queen Empress 1893 ILR  and Emperor vs Ravji  referred to