ION Criminal Appeals Nos 100 to 105 and 124 to 129 of 1954
Appeals from the judgment and order dated August 2
1954 of the Punjab High Court in Criminal Appeals Nos 112 of 49 333382 383 and 410 of 1950 and 241 of 1951 arising out of the judgment and order dated June 26 1950 of the Punjab Special Tribunal
WITH Petition No 31 of 1952
Petition under Article 32 of the Constitution of India for enforcement of Fundamental rights
Harnam Singh Hardyal Hardy and P C Aggarwala for the appellant in Cr
100 to 105 of 1954 Petition No 31 of 52 and Respondent in Cr
124 to 129 of 1954
C K Daphtary Solicitor General of India Kartar Singh Chawla T M Sen and D Gupta for the appellant in Cr
100 to 105 of 1954 and Petition No 31 of 1952 and Appellant in Cr
124 to 129 of 1954
October 28
The judgment of Sinha CJ Imam Wanchoo and Das Gupta JJ was delivered by Imam J Kapur J delivered a separate judgment
Imam J IMAM J
These appeals are on a certificate granted by the Punjab High Court and they have been heard 93 together as they rise out of a single judgment of the High Court
In Criminal Appeals Nos 100 to 105 of 1954 Satwant Singh is the appellant and in Criminal Appeals Nos 124 to 129 of 1954 the State of Punjab is the appellant
Although in these appeals only questions of law have been urged it is necessary to set out briefly some of the facts which led to the prosecution and conviction of Satwant Singh
As a result of the Japanese invasion of Burma in 1942 the Government of Burma and the Allied forces stationed there were compelled to leave that country
In connection with the evacuation from Burma and the defence of that country the Government of Burma and the army had to execute certain works such as the construction of roads repairs and construction of bridges strengthening and repairing of old tracks and converting railway lines into motor roads
Some of these works were executed by the army and some were entrusted to contractors
After evacuation of Burma its Government was located at Simla
In August 1942 the Government of Burma advertised inviting claims from contractors who had executed works or had supplied materials in Burma and had not yet been paid
Satwant Singh had worked as a contractor in Burma
He at first submitted a claim for a sum of a little over Rs 18000
Later on he put in further claims the total amount of which ran into several lakhs of rupees
These claims were sent by the Government of Burma to Major Henderson at Jhansi in March and May 1943 for verification as he was the officer who had knowledge of these matters
This officer certified many of these claims to be correct and sent the papers back to Simla
He did not pass one claim because it was within the knowledge of another officer Mr Nasa
On the certification of the claims by Henderson the Finance Department of the Government of Burma sanctioned the same and the Controller of the Military Claims at Kolhapur was directed to pay the amounts sanctioned
On the request of Satwant Singh cheques drawn on the Imperial Bank of India at Lahore were posted to him from Kolhapur and these cheques were 94 encashed at Lahore
In all Satwant Singh was paid Rs 744865 12 0
Subsequently suspicions of the Government of Burma were aroused concerning the many cliams made on it and it was discovered that many of them including some of those of Satwant Singh were false
A police investigation followed which revealed that a large number of claims made by various persons including Satwant Singh in respect of works done for the benefit of the army were false
Satwant Singh was arrested on the 12th of April 1944 at Ambala and was taken to Lahore
He had also submitted a claim in the name of his wife Surjit who was also arrested
Henderson was arrested at lmphal and brought to Lahore for interrogation
According to the prosecution Satwant Singh had committed the offence of cheating punishable under section 420 Indian Penal Code and Henderson had abetted him in the commission of that offence by falsely certifying Satwant Singh s claims to be true knowing that they were false and thereby had committed an offence punishable under section 420109 Indian Penal Code
Satwant Singh having expressed a desire to make a confession his confession was recorded by a First Class Magistrate on the 9th of May 1944
There being many cases of acceptance of bribe and criminal breach of trust by public servants and cheating of Government by certain persons and cases similar to that of Satwant Singh Ordinance No XXIX of 1943 hereinafter referred to as the Ordinance for trial of such cases was promulgated by the Governor General of India in 1943
Subsequently this Ordinance was amended by Ordinance XII of 1945
By virtue of a notification issued under the Ordinance as amended the case of Satwant Singh was allotted to the Third Special Tribunal at Lahore for trial with Henderson as his co accused
After the partition the trial by the Special Tribunal took place at Simla
Henderson had absconded to England and extradition proceedings had to be taken against him under the Fugitive Offender s Act of 1881
He was brought 95 before the Special Tribunal in December 1949
In the meantime Satwant Singh s case was separated and the trial against him alone continued
On Henderson s return the trial once again became a joint trial
Henderson applied for examination of certain witnesses on commission in England
His prayer was granted
Satwant Singh fearing that the trial of the cases against him would be delayed requested that his cases be separated from the cases against Henderson
This prayer was allowed and his trials proceeded against him as the sole accused except in the trial of Cases Nos 54 55 and 56 in which Henderson was a coaccused with him
The Special Tribunal imposed sentences of imprisonment ranging from one year to three and a half years in the several trials
In addition it imposed fines of various amounts
It divided the fines into ordinary and compulsory the latter by virtue of section 10 of the Ordinance
In default of payment of the  ordinary  fines it directed the appellant to undergo further imprisonment for certain periods
There was no such direction with respect to the  compulsory  fines
The High Court reduced the sentence of imprisonment to two years in all the trials where such sentence was in excess of that period
The sentences of imprisonment in all the trials were to run concurrently
The High Court maintained the sentence of  ordinary  fines imposed by the Special Tribunal but set aside the sentence of  compulsory  fines
The State had filed a petition before the High Court for the enhancement of the sentences of fine passed against Satwant Singh which was dismissed on the ground that the  compulsory  fines imposed were invalid in view of the decisions of this Court in the case of Rao Shiv Bahadur Singh and Another vs The State of Vindhya Pradesh 1 and the case of Kedar Nath Bajoria vs The State of West Bengal 2
In the opinion of the High Court enhancement of sentences of fine would be a method by which the provisions of article 20 of the Constitution would be circumvented
1 2  96 Satwant Singh has appealed against his conviction and sentence as ordered by the High Court
The State of Punjab has also appealed against the decision of the High Court that the compulsory  fines imposed were illegal
The State also has made a prayer that the  ordinary  fines imposed upon Satwant Singh may be enhanced
On behalf of the appellant his conviction was challenged on several points of law
Firstly it was urged that the provisions of section 188 of the Code of Criminal Procedure had not been complied with
The charge framed against the appellant stated that he had committed the offence of cheating at Simla and Kolhapur
Kolhapur was a place outside British India at the relevant time
In the present case there was neither a certificate of the Political Agent nor a sanction of the Provincial Government as required under section 188 of the Code of Criminal Procedure
The facts established that the offence of cheating was committed at Kolhapur and therefore it could not be inquired into in British India without such a certificate or such sanction
The trial of the appellant therefore was without jurisdiction
Secondly it was urged that the appellant committed the offence at Kolhapur and Henderson at Jhansi
They could not be tried together in a single trial by the Special Tribunal at Simla as neither section 179 nor section 180 of the Code of Criminal Procedure applied to the facts of the case and in view of the provisions of section 188 of the Code
Thirdly it was submitted that sections 233 to 239 of the Code of Criminal Procedure deal with joinder of charges and joinder of persons in a trial
Sections 234 and 239 of the Code could not be combined to try the appellant and Henderson in a single trial for 3 offenses of cheating by the former and 3 offenses of abetment thereof by the latter
Section 239 of the Code was a self contained provision and had to be read without bringing into aid the provisions of section 234
Fourthly it was pointed out that as no sanction under section 197 of the Code by the proper authority had been given for the prosecution of Henderson he could not be tried without such a sanction
Joint trial of Henderson and the 97 appellant without such a sanction vitiated the trial
Fifthly it was submitted that as Burma was not a Dominion of His Majesty s Government in 1943 the Ordinance did not apply
In the course of the argument the fifth submission was abandoned and we think rightly  It would be convenient to deal together with the first and the fourth submissions regarding the noncompliance with the provisions of sections 188 and 197 of the Code of Criminal Procedure
Before the provisions of section 188 can apply it must be established that the offence for which the appellant was charged was committed outside British India
The appellant was charged with the offence of cheating
He had filed certain claims before the Government of Burma at Simla
Those claims were certified as true by Henderson at Jhansi
The claims of the appellant were found to be untrue
In fact he was not entitled to any payment in respect of these claims
The misrepresentation by Satwant Singh was at Simla and the false certification of the claims as true by Henderson was at Jhansi
Simla and Jhansi were places in British India
As the result of the misrepresentation by the appellant and the false certification by Henderson the Government of Burma was induced thereby to make the payment of a large sum of money to the appellant at Lahore
The payment at Lahore to the appellant was made at his own request by cheques on the Imperial Bank of India at its Lahore Branch
Lahore was also a place at the relevant time in British India
It is true that in the charge framed Kolhapur was mentioned as one of the places where the cheating had taken place
In our opinion it was an error in the charge as framed to have mentioned that any offence of cheating took place at Kolhapur
That error in the charge however was a mere irregularity on a misunderstanding of the facts which could not vitiate the trial
It was however urged that as the cheques in favour of the appellant were posted at Kolhapur in law the payment to the appellant had been made in Kolhapur and delivery of property namely the cheques which must be regarded as 13 98 valuable security was made at Kolhapur
The offence of cheating therefore was committed at Kolhapur and neither at Simla nor at Lahore
In our opinion this submission is misconceived
The posting of the cheques at Kolhapur cannot be regarded as delivery of the cheques to the appellant at Kolhapur because the Post Office at that place could not be treated in the circumstances of the present case as the agent of the appellant to whom the delivery of the cheques bad been made
In fact they were not delivered to the appellant at Kolhapur but were delivered to him at Lahore
As regards the place of payment it was urged that when the cheques were issued and posted at Kolhapur the payment to the appellant must be regarded as having been made at Kolhapur
Reliance was placed on The Commissioner of Income Tax Bombay South Bombay vs Messrs Ogale Glass Works Ltd Ogale Wadi 1
That case was considered by this Court in the case of The Commissioner of Income Tax Bihar  Orissa vs Messrs Patney  Codecided on the 5th of May 1959 and it was held that the rule in the Ogale Glass Works  case 1 was inapplicable to the facts of the case
In the latter case it was found by this Court that  Whatever may be the position when there is an express or implied request for the cheque for the amount being sent by post or when it can be inferred from the course of conduct of the parties the appellant in this case expressly required the amount of the commission to be paid at Secunderabad and the rule of Ogale Glass Works  case 1would be inapplicable In the present case an inquiry was made from the appellant how he would like the payment to be made and he replied that cheques payable at the Imperial Bank of India Lahore Branch should be sent to him
Accordingly cheques on the Imperial Bank of India Lahore Branch were sent to the appellant by post in Lahore and the appellant encashed them there
In these circumstances the rule in Ogale Glass Works  case 1 is inapplicable and it must be held that the payment was 1 2  99 made to the appellant at Lahore and not at Kolhapur where the cheques had been posted
Furthermore what may be relevant for consideration as to the place of payment for the purpose of the Income Tax Act may not necessarily be relevant for the purposes of a criminal case in which the Courts have to ascertain where the offence of cheating was committed
It seems to us on the facts established in this case that no part of the offence of cheating was committed by the appellant outside British India
His false repre sentation to the Government of Burma that money was due to him was at a place in British India which induced that Government to order payment of his claims
In fact he was paid at Lahore at his own request by means of cheques on the Branch of the Imperial Bank of India at Lahore
The delivery of the property of the Government of Burma namely the money was made at Lahore a place in British India and we cannot regard in the circumstances of the present case the posting of the cheques at Kolhapur either as delivery of property to the appellant at Kolhapur or payment of his claims at Kolhapur
The entire argument founded on the provisions of section 188 of the Code therefore fails
As the offence committed by the appellant was not at a place beyond British India there was no need for the existence of a certificate of a Political Agent or in the absence of such a person a sanction of the Provincial Government
Coming to the question whether the absence of a sanction under section 197 of the Code vitiated the trial it has to be established that Henderson was a public servant removable by the Governor General in Councll or the Provincial Government
As no objection had been taken before the Special Tribunal by the appellant in this respect it was urged by the Solicitor General that the prosecution had no opportunity of establishing that Henderson though a public servant was a person not removable by the Governor General in Council or the Provincial Government
On the other hand it was urged by Mr Harnam Singh that in the High Court the objection had been taken but it had been overruled on the ground that there was in fact a 100 sanction in existence
The High Court was under a misapprehension
The sanction which was in existence was under section 270 of the Government of India Act 1935 which is given by the Governor General himself where as the sanction under section 197 of the Code is given by the Governor General in Council
The sanction under section 270 of the Government of India Act 1935 could not therefore be treated as a sanction under section 197 of the Code
In the High Court apparently no submission was made that Henderson was not a public servant removable by the Governor General in Council or the Provincial Government
If it is being urged now that Henderson was not such a person then the appellant should be given an opportunity to show that he was a public servant so removable
It is unnecessary to deal with these submissions which relate to a question of fact in view of our conclusion as mentioned below with respect to the applicability of the provisions of section 197 of the Code in the present case
Under section 197 no Court shall take cognizance of an offence committed by a public servant who is removable from his office by the Governor General in Council or a Provincial Government save upon a sanction by one or the other as the case may be when such offence is committed by him while acting or purporting to act in the discharge of his official duty
Henderson was charged with intentionally aiding the appellant in the commission of an offence punishable under section 420 of the Indian Penal Code by falsely stating as a fact in his reports that the appellants claims were true and that statement bad been made knowing all the while that the claims in question were false and fraudulent and that he had accordingly committed an offence under section 420109 Indian Penal Code
It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty
For instance acceptance of a bribe an offence punishable under section 161 of the Indian Penal Code is one of them and offence of cheating or abetment thereof is another
We have no hesitation in saying that where a public 101 servant commits the offence of cheating or abets another so to cheat the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty as such offences have no necessary connection between them and the performance of the duties of a public servant the official status furnishing only the occasion or opportunity for the commission of the offences vide Amrik Singh s case 1 
The Act of cheating or abetment thereof has no reasonable connection with the discharge of official duty
The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim that he did it in the course of the performance of his duty vide Matajog Dobey s case 2 
It was urged however that in the present case the act of Henderson in certifying the appellant s claims as true was an official act because it was his duty either to certify or not to certify a claim as true and that if he falsely certified the claim as true he was acting or purporting to act in the discharge of his official duty
It is however to be remembered that Henderson was not prosecuted for any offence concerning his act of certification
He was prosecuted for abetting the appellant to cheat
We are firmly of the opinion that Henderson s offence was not one committed by him while acting or purporting to act in the discharge of his official duty
Such being the position the provisions of section 197 of the Code are inapplicable even if Henderson be regarded as a public servant who was removable from his office by the Governor General in Council or a Provincial Government
Elaborate arguments were advanced in support of the contention that the provisions of section 197 of the Code were not inconsistent with the Ordinance and therefore had to be complied with before the Special Tribunal could try Henderson
It was pointed out that under section 6 of the Ordinance the Special Tribunal was specifically authorized to take cognizance of an offence without the accused being committed to it for trial and sub section
2 of that section stated that  Save 1  2  102 as provided in sub section
1 the Code of Criminal Procedure1898 V of 1898 except the provisions of section 196 A and of Chapter XXXIII shall so far as they are not inconsistent with this Ordinance apply to proceedings of a Special Tribunal  and for the purposes of the said provisions the Special Tribunal shall be deemed to be a Court of Session trying cases without a jury and a person conducting a prosecution before a Special Tribunal shall be deemed to be a Public Prosecutor
It was urged that by virtue of this sub section the provisions of the Code of Criminal Procedure would be applicable except the provisions of section 196 A and Chapter XXXIII which had been expressly excluded
If section 197 of the Code was intended to be excluded the Ordinance would have said so
Having regard to the view we take that the provisions of section 197 of the Code do not apply to the facts of the present case as the offence of abetment of cheating by Henderson cannot be regarded as an offence committed by him while acting or purporting to act in the discharge of his official duty it is unnecessary to consider the arguments advanced in this connection
Coming now to the 2nd and 3rd submissions made on behalf of the appellant we have to consider whether the appellant and Henderson could at all be jointly tried having regard to the fact that they were jointly tried up to a certain stage in some of the trials and to the conclusion of the trial concerning cases Nos 5455 and 56
We have already held that no part of the offence of cheating was committed by the appellant outside British India and consequently the provisions of section 188 of the Code did not apply
The provisions of sections 179 and 180 are wide enough to enable cognizance to be taken either by a Court where anything was done within the local limits of its jurisdiction or a court where the consequences ensued
Illustration c to section 179 clearly states that if A is put in fear of injury within the local limits of the jurisdiction of Court Xand is thereby induced within the local limits of the jurisdiction of Court Y to deliver property to the person who put him in fear the offence of extortion committed against A may be inquired into or tried 103 either by X or Y The appellant could have been  therefore tried either at Lahore or at Simla for the offence of cheating as the misrepresentation was atSimla and the consequence was at Lahore as the Government of Burma was induced by the misrepresentation to deliver property money at Lahore
Under section 180 when an act is an offence by reason of its relation to any other act which is also an offence a charge of the first mentioned offence may be inquired into or tried by a Court within the local limits of whose jurisdiction either act was done
Illustration a to this section states that a charge of abetment may be inquired into or tried either by the Court within the local limits of whose jurisdiction the abetment was committed or by the Court within the local limits of whose jurisdiction the offence abetted was committed
The offence of cheating by the appellant could have been tried either at Lahore or at Simla
Consequently Henderson could also have been tried for the abetment of that offence either at Lahore or at Simla
The case of these accused was allotted to the Special Tribunal at Lahore and would have normally been tried there but for the partition of India
The trial under the authority of law was concluded at Simla
There seems therefore to have been no illegality committed in trying the appellant and Henderson together at Simla
The other line of argument in support of the objection that the appellant and Henderson could not be tried together was based on the provisions of sections 233 and 239 of the Code
It was pointed out that under the provisions of section 233 of the Code for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in sections 234 235 236 and 239
Unless therefore the joinder of trial of the appellant and Henderson was permitted under section 239 of the Code they could not be tried together
It was urged that in construing section 239 of the Code it was not permissible to take into consideration the provisions of section 234
The only provision by which a person accused of an offence and a person accused 104 of abetment of that offence can be tried together in a single trial is under section 239b which permits persons accused of an offence and persons accused of abetment to be charged and tried together
Under the terms of these provisions any number of persons accused of commuting a single offence could be tried together with any number of persons who had abetted that offence
But cl
b did not permit the trial of persons accused of several offences and persons accused of abetment of those offences in one trial and to try a person accused of three offences along with a person accused of abetment of those offences would be contrary to the provisions of cl
If the provisions of section 239b and section 234 were combined the result would be to create another exception to be added to the exceptions stated in section 233 of the Code
No Court had any authority to create a  new exception to section 233
section 239 being an exception to section 233 its provisions had to be construed strictly
The plain words of section 239b make it quite clear that persons who had committed a single offence and those who abetted it only could be tried together
Since the appellant is said to have committed three offences of cheating and Henderson three offences of abetment thereof the provisions of section 239b did not apply and their trial together was vitiated
It was further pointed out that if there had been misjoinder of trial in the present case it could not reasonably be said that the appellant had not been prejudiced
If the appellant bad been tried apart from Henderson
Henderson s confession and all the evidence against him would have been excluded at the trial of the appellant
As the result of Henderson and the appellant being tried together all the evidence against Henderson and his confession must have necessarily adversely affected the case of the appellant
On the other hand the Solicitor General submitted that the provisions of the Code of Criminal Procedure must be construed as they stand and reference to decided cases may be made to assist the court in the matter of construction if necessary
The Code itself nowhere stated that sections 234 and 239 of the Code were mutually exclusive
The entire scheme of joinder of 105 charges and joinder of persons in a single trial has been set out in the Code
Although section 233 of the Code is clear enough it has expressly expected from the application of its provisions sections 234 235 236 and 239
Sections 234 235 236 and 239 are permissive sections
They are not compelling sections
That is to say although these sections permit joinder of charges and joinder of persons a Court may well consider it desirable in the interest of justice and having regard to the circumstances of a particular case that the charges framed should be split up and separate trials should take place in respect of them and the accused be tried separately
It was to avoid multiplicity of trials harassment to the accused and waste of time that the permissive sections 234 235 236 and 239 enable a court within their terms to join charges and persons in a single trial
Section 239 permitted joinder of charges and persons in a single trial in cases covered by cls
a to g
These clauses permitted the joinder of persons as accused in one trial and they contemplated the various circumstances in which such persons could be tried together
Joinder of several persons in one trial necessarily involves the framing of more than one charge
If the joinder of charges was within the terms of the section then the provisions of section 233 had no application
Although in cl
b of the section the words used are persons accused of an offence and persons accused of abetment or of an attempt to commit such offence  a reasonable construction of these words could not lead to the conclusion that the words  an offence  meant a single offence because under section 13 of the General Clauses Act Central Act X of 1897 words in the singular shall include the plural and vice versa
Under cl
b therefore persons accused of several offences and persons accused of abetment thereof could be tried together in a single trial
The concluding words of section 239  and the provisions contained in the former part of this Chapter shall so far as it may be apply to all such charges  permitted a court to apply that part of Chapter XIX which preceded section 239S 234 was one such provision and a court could resort to its provisions so far as they were applicable 14 106 It was further pointed out by the Solicitor General that although the appellant was asked to specify the points of law upon which these appeals would be urged he did not state that in fact he had been pre judiced by a joint trial of himself and Henderson
He also pointed out that as the result of the amendment of the Code of Criminal Procedure misjoinder of charges did not vitiate the trial unless the misjoinder had in fact occasioned failure of justice
we now proceed to consider some of the provisions of Chapter XIX of the Code which deal with the form of charges and the joinder of charges as well as joinder of persons
So far as the form of the charge is concerned the provisions of sections 221 to 232 of the Code would apply in any event where a single accused was being tried on a single or several charges or where several accused were tried for various offences at one trial within the terms of section 239 of the Code
So far as joinder of charges is concerned section 233 clearly required that for every distinct offence of which any person was accused there must be a separate charge and every such charge must be tried separately
The framers of the Code however realised that it would be impracticable to have for all circumstances such a rigid rule
The section accordingly excepted from its provisions cases which were covered by sections 234 235 236 and 239
section 234 accordingly permitted a single accused to be tried at one trial for more offences than one of the same kind committed within the space of 12 months provided they did not exceed three in number
section 235 went a step further
It permitted an accused person to be tried for more offences than one committed by him and the framing of a charge with respect to every such offence provided that the series of acts were soconnected together as to from the same transaction
It also permitted that if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished the person accused of them may be charged with and tried at one trial foreach of such offences
It also provided that if several acts of which one or more than one would by or them selves constitute an offence constitute when combined 107 a different offence the person accused of them may be charged with and tried at one trial for the offence constituted by such acts when combined and for any offence constituted by any one or more of such acts
section 236 permitted the framing of alternative charges where a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once
By section 239 joinder of persons in a single trial is permitted in the circumstances mentioned in cls
a to g
At the trial of such persons charges would have to be framed
Indeed the section commences with the following words   The following persons may be charged and tried together  Leaving cl
b out for the moment the other clauses of the section clearly contemplate the framing of more than one charge against accused persons when tried together
Under cl
a persons accused of the same offence committed in the course of the same transaction can be tried together
Under cl
c persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of 12 months can also be tried together
Under cl
d persons accused of different offences committed in the course of the same transaction can be tried together
Similar is the position in cases mentioned in cls
e f and It is clear therefore that the general rule that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately has no application to these clauses
Indeed section 233 contemplated that and expressly excluded the application of its provisions to section 239
The entire tenor of the provisions of section 239 indicates that several persons could be tried together for several offences committed in the circumstances mentioned therein
There is no apparent reason why cl
b should be construed in the way suggested by Mr Harnam Singh 108 according to whom in one trial any number of persons could be tried for a single offence along with any number of persons accused of abetment of that offence
The argument was based on the words  an offence in that clause and the suggestion was that these words meant a single offence
Having regard to the providers of section 13 of the General Clauses Act the singular includes the plural and it would not be straining the language of the clause if the same was construed also to mean that persons accused of several offences and persons accused of abetment thereof could be tried together at one trial
So construed framing of three charges under section 420 Indian Penal Code against Satwant Singh and three charges of abetment against Henderson in the same trial did not infringe the provisions of cl
Furthermore the concluding words of the section make it clear that the provisions contained in the former part of Chapter XIX ie previous to section 239 as a far as may be shall apply to all charges framed at the trial
It was suggested that the words  the former part of this Chapter  referred to sections 221 to 232 as Chapter XIX is in two parts the first part being the form of charges and the second part joinder of charges
Although such headings do appeal in the Chapter it is to be noticed that Chapter X LX does not divide itself into several parts as is to be found in many of the Chapters of the Code eg in Chapter XXIII the parts are headed A to L
It is further to be noticed that words similar to the concludingwords of section 239 do not appear in section 235 of the Code
The reason for these words appearing in section 239 of theCode appears to be that this section permits persons to be charged and tried together
The lode obviously contemplated that when charges were being framed against each of the several accused in the cases contemplated in section 239 not only the provisions concerning the form of charges but also the provisions concerning the joinder of charges as far as may be should apply
In these appeals the appellant was charged in one trial for three offences of cheating and Henderson for abetment of the same
If the appellant had been tried alone he could have been tried for three charges of cheating 109 committed within 12 months and Henderson in a separate trial could have been tried for three offences of abetment of the same offences committed within 12 months
There is no good reason for thinking that when cl
b of section 239 permitted the joinder of the appellant and Henderson in a single trial for the commission of the offence of cheating and abetment thereof the same was confined to one offence of cheating and one offence of abetment
In our opinion the trial of the appellant and Henderson together on the charges as framed did not vitiate the trial
It is unnecessary to deal with the last submission of the Solicitor General that the appellant had taken no ground that he had been prejudiced by his joint trial with Henderson because such a question does not arise having regard to the view we take that there was no misjoinder of trial
On behalf of the appellant certain circumstances were urged in mitigation of the sentence
It was pointed out that Henderson s sentence was reduced to 2 month s imprisonment and a small fine the proceedings against the appellant had been going oil since 1945 the appellant had already served some three months  imprisonment and that there was also a substantial fine
Accordingly it was prayed that the sentence of imprisonment may be reduced to the period already undergone while the sentence of  ordinary  fine may be maintained
The measure of punishment must be commensurate with the nature and the seriousness of the crime
The appellant had cheated the Government of Burma to the extent of something like 7 lakhs of rupees
It is impossible to say that the sentence of imprisonment as reduced by the High Court was in any way excessive
The fact that Henderson received a light punishment is not a relevant circumstance
The prayer for a further reduction of the sentence cannot be acceded to
The appeals filed by Satwant Singh are accordingly dismissed
Criminal Appeals Nos 124 to 129 of 1954
In these appeals the State of Punjab has appealed against that part of the judgment of the High Court 110 which set aside the order of the Special Tribunal imposing what has been described as compulsory fines
The High Court felt that it was bound by the decisions of this Court in the cases of Rao Shiv Bahadur Singh vs The State of Vindhya Pradesh and Kedar Nath Bajoria vs The State of West Bengal 2
It was urged by the Solicitor General that the Special Tribunal was in error in describing the fines imposed by it as  ordinary  and  compulsory Section 10 of the Ordinance contemplated no such distinction
What it did direct was whether or not a sentence of imprisonment was imposed by the Special Tribunal that a sentence of fine must be imposed and that fine shall not be less in amount than the amount of money or value of other property found to have been procured by the offender by means of the offence
In other words the section imposed a minimum fine in any event whether a sentence of imprisonment was or was not imposed
In the present case a sentence of imprisonment was in factimposed and the total of fines imposed whether described as  ordinary  or  compulsory  was not less than the amount of money procured by the appellant by means of his offence
Under section 42O of the Indian Penal Code an unlimited amount of fine could be imposed
Article 201 of the Constitution is in two parts
The first part prohibits a conviction of any person for any offence except for violation of law in force at the time of the commission of the act charged as an offence
The latter part of the Article prohibited the imposing of a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence
The offence with which the appellant had been charged was cheating punishable under section 420 of the Indian Penal Code which was certainly a law in force at the time of the commission of the offence
The sentence of imprisonment which was imposed upon the appellant was certainly not greater than that permitted by section 420 The sentence of fine 1 2  111 also was not greater than that which might have been inflicted under the law which had been in force at the time of the commission of the offence as a fine unlimited in extent could be imposed under the section
It was further pointed out that at least Case No 58 out of which arose Criminal Appeal No 112 of 1949 in the High Court was one to which the provisions of article 20 could not apply as the conviction in that case was recorded on the 24th of January 1949 before the Constitution came into force
Mr Harnam Singh on the other hand drew our attention to section 63 of the Indian Penal Code and submitted that a sentence of fine could at no time be excessive and therefore the sentence of fine which could be imposed under section 420 was not entirely unlimited as it could not be excessive
In considering whether a fine would or would not be excessive various considerations had to be kept in mind including the seriousness of the offence and the means of the accused
Section 63 of the Indian Penal Code expressly states that where no sum is expressed to which a fine may extend the amount of fine to which the offender is liable is unlimited
Section 420 of the Indian Penal Code does not express a sum to which a fine may extend as some of the sections of the Indian Penal Code do
As the section stands therefore the extent of fine which may be imposed by a Court under it is unlimited
Whether a fine imposed in a particular case is excessive would be a question of fact in each case
That consideration however is entirely irrelevant in considering whether article 20 of the Constitution has been contravened by the provisions of section 10 of the Ordinance as the extent of fine which can be imposed under section 420 by law is unlimited
It cannot be said that section 10 of the Ordinance in imposing the minimum fine which a court shall inflict on a convicted person was a penalty greater than that which might have been inflicted on that person under the law in force at the time of the commission of the offence where under such law the extent of fine which could be imposed is unlimited
112 In the case of Rao Shiv Bahadur Singh 1 referred to above this Court held that article 20 of the Constitution must be taken to prohibit a conviction or subjection to penalty after the Constitution in respect of ex post facto law whether the same was a pre Constitutional law or a post Constitutional law
The prohibition under the Article was not confined to the passing or the validity of the law but extended to the conviction or the sentence and was based on its character as ex post facto law and therefore fullest effect must be given to the actual words used in the Article
It had been urged in that case that the Vindhya Pradesh Ordinance No XLVIII of 1949 was an ex post facto law
This Court however held that Ordinance was not ail ex post facto law
The contention that the provisions of article 20 of the Constitution had been contravened was rejected and it was held that the criminal law relating to offences charged against the accused at the time of their commission was substantially the same as obtained at the time of the conviction and sentence under the Indian Penal Code
In Rao Shiv Bahadur Singh s case 1 this Court had not to consider whether an ex post facto law imposing a minimum fine for an offence with respect to which an unlimited fine could be imposed by the law in existence at the time of the commission of the offence contravened the provisions of article 20
In Kedar Nath Bajoria s case 2 in addition to the sentence imposed under the ordinary law the first appellant was fined Rs 50000 including the sum of Rs 47550 received by him as required by section 91 of the West Bengal Criminal Law Amendment Act of 1949
Reference to the decision in Rao Shiv Bahadur Singh s case1was made and this Court held that in any event the fine to the extent of Rs 47550 would be set aside
This Court however did not decide whether the total fine imposed was greater than what could be imposed under the law as it was at the commission of the offence
It assumed that Rao Shiv Bahadur Singh s case 1 supported the contention of the first appellant in that case
It is significant that in directing that the appeal would be heard in due course on merits this Court stated that it would be open to the Court in case 1 2  113 the conviction was upheld to impose such appropriate fine as it thought fit in addition to the sentence of imprisonment
In the present case even if it be assumed that section 10 of the Ordinance as an ex post facto law ill that in the matter of penalty a minimum sentence of fine was directed to be imposed by a court whereas at the time that the appellant committed the offence section 420 contained no such provision what is prohibited under article 20 of the Constitution is the imposition of a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence
The total sentence of fine ordinary  and  compulsory  in the present case cannot be said to be greater than that which might have been imposed upon the appellant under the law in force at the time of the commission of the offence because the fine which could have been imposed upon him under section 420 was unlimited
A law which provides for a minimum sentence of fine on conviction cannot be read as one which imposes a greater penalty than that which might have been inflicted under the law at the time of the commission of the offence where for such an offence there was no limit as to the extent of fine which might be imposed
Whether a fine was excessive or not would be a question of fact in each particular case but no such question can arise in a case where the law imposes a minimum sentence of fine
Under article 20 of the Constitution all that has to be considered is whether the ex post facto law imposes a penalty greater than that which might be inflicted under the law in force at the time of the commission of the offence
For the reasons already stated it cannot be said that section 10 of the Ordinance imposed any such penalty and therefore was in contravention of the provisions of article 20
These appeals are accordingly allowed and the order of the High Court setting aside the compulsory  fines imposed by the Special Tribunal is set aside and the orders of the Special Tribunal imposing the  compulsory  fines are restored
KAPUR J
I have read the judgment prepared by my learned brother Imam J
I agree to the order 15 114 proposed and the reasons therefor except that I would base the inapplicability of section 197 Criminal Procedure Code to the facts of the present case on different grounds
The legislature in India has considered it necessary to provide a large measure of protection for public officials from unnecessary harassment and for that purpose section 197 was enacted in the Criminal Procedure Code and this was recognised by Lord Simonds in the Privy Council case Gill vs The King1
That this is the legislative policy may also be gathered from a subsequent enactment the Prevention of Corruption Act where such provision was incorporated in regard to offences of bribery corruption and also misapprehend privation
But the question still remains to what cases this protection is made applicable
The contention raised on behalf of the appellant was that his case was prejudiced because of a joint trial with Henderson who it is contended was a Major in the Indian Army and who was charged for abetting the offence of cheating committed by the appellants The argument raised was that Henderson having been commissioned to and in the Indian Army was not removable from his office except with the sanction of the Central Government ie the then Governor General in Council and as there was no such sanction he could not validly be tried for the offence he was charged with
The case made before us in this Court was that the claims put forward by the appellant were sent to Henderson for verification and Henderson verified them to be correct and that he did this while acting or purporting to act in the discharge of his duty as public servant
The question then is whether the facts which are alleged to constitute the offence of abetment of cheating under section 420 read with section 109 Indian Penal Codefall within section 197 Criminal Procedure Code
In Gill vs The King 1 the Privy Council laid down the following test as to when a public servant is said to or purports to act in the discharge of his official duty
Lord Simonds there said at p 59 1 75 IA 41
115 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 Is official duty
The test may well be whether the public servant if challenged can reasonably claim that what he does he does in virtue of his office The same test was repeated in Meads  case 1 and in Phenindra Chandra Neogy vs The King2
Gill s case3 and Neogy s case 2 dealt with an offence of bribery under section 161 but Meads  case1 was a case of a Courtmartial against an officer who was alleged to have misappropriated money entrusted to him and his defence was that while he was sleeping the currency notes were burnt by the falling of a candle which was burning in his room
In Hori Rain Singh s case 4 which was approved by the Privy Council and this Court in Amrik Singh s case 5 Vardachariar J had accepted the correctness of that track of decision which had held that sanction was necessary when the act complained of attached to the official character of the person doing it
The test was thus stated by Venkatarama Aiyar J in Amrik Singh s case 5 at p 1307  but if the act complained of is directly concerned with his official duties so that if questioned it could be claimed to have been done by virtue of the office then sanction would be necessary and that would be so irrespective of whether it was in fact a proper discharge of his duties because that would really be a matter of defence on the merits which would have to be investigated at the trial and could not arise at the stage of the grant of sanction which must precede the institution of the prosecution
 Even in regard to cases of misappropriation this Court in Amrik Singh s case 5 was of the opinion that if the act complained of is so integrally connected with the duties attaching to the office as to be inseparable from them then sanction would be necessary but if there is no connection between them and the performance of those duties the official status furnishing 1 75 IA 185
3 75 I A 41
2 76 IA 10
4 5  116 only the occasion or opportunity for the act then no sanction would be necessary
There are two other cases reported in the same volume Ronald Wood Mathams vs State of West Bengal 1 and Shree Kanthiah Ramayya Munipalli vs The State of Bombay2 which also relate to sanction under section 197 Criminal Procter Code
After reviewing all these various authorities Venkatarama Aiyar J held at p 1310 The result then is that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation will depend on whether the acts complained of hinge on his duties as a public servant
If they do then sanction is requisite
But if they are unconnected with such duties then no sanction is necessary
 In this view of the law we have to decide whether sanction was necessary or not and it is a matter for investigation as to whether an Army officer situated as Henderson was so removable even if there was evidence to show that he was attached to the Indian Army
Secondly it will have to be decided oil evidence that the act complained of against Henderson that is verifying the claim of the appellant which is the basis for the allegation of abetment of the offence of cheating is directly concerned with his official duties or it was done in the discharge of his official duties and was so integrally connected with and attached to his office as to be inseparable from them
There is evidence neither in support of one nor of the other
In this particular case if it was desired to raise such a question that should have been done at the earliest moment in the trial Court when the facts could have been established by evidence
This is not the stage for asking the facts to be proved by additional evidence
In the grounds of appeal to the High Court the objection was to the form of the sanction
It also appears that no argument was raised in the High Court that the sanction under section 270 of the Constitution Act could not take the place of a sanction under section 197 Criminal Procedure Code because the scope of the two 1  2  117 provisions is different
But as I have said above the evidence to support the plea under section 197 and to establish the requisite nexus between the act done by Henderson and the scope and extent of his duties is lacking and therefore the applicability of section 197 to the facts of the present case cannot be held to have been proved
In my opinion the foundation has not been laid for holding that sanction under section 197 was necessary in the instant case
I therefore agree that the appeals be dismissed
By court
The petitioner s Criminal Appeals Nos 100 to 105 of 1954 having been dismissed and the conviction of the petitioner having been upheld this petition is dismissed


Summary:
The respondent booked certain goods on September 4 1947 with the N W Railway at Quebec in Pakistan to New Delhi
The wagon containing the goods was received at the Indian border station of Khem Karan on November 1 1947 duly sealed and labelled indicating its destination as New Delhi
It reached New Delhi on February 3 1948 and was unloaded on February 20 1948 but no immediate information was sent to the respondent
On June 7 1948 the respondent was asked by the E P Railway to take delivery of the goods lying at New Delhi station but when the respondent went there the goods were not traceable
Again on July 24 1948 the respondent was asked to take delivery of the goods when only a small portion of the goods 76 were offered to him subject to the payment of Rs 1067 8 0 as freight but the respondent refused to take delivery
On August 41949 the respondent filed a suit for Rs 162123 with interest as compensation for non delivery of goods against the Dominion of India
The trial court found that the E P Railway was guilty of negligence in handling the goods and decreed the suit for Rs 80000 and on appeal the High Court confirmed the decree
The appellant contended that there was no privity of contract between the respondent and the E P Railway and he could only have a claim against the N W Railway in Pakistan and that the suit was barred by limitation
Held that there was an implied contract of bailment between the respondent and the E P Railway and that Railway was liable for the loss
The conduct of the parties indicated that the respondent delivered the goods to the N W Railway with an authority to create the E P Railway as his immediate bailer from the point the wagon was put on its rails
The N W Railway must be deemed to have had implied authority to appoint the E P Railway to act for the consignor during the journey of goods by the E P Railway and by force of section 194 of the  the E P Railway became an agent of the consignor
The N W Railway left the wagon with the E P Railway and the latter consciously took over the responsibility of the bailer carried the wagon to New Delhi and offered to deliver the goods to the respondent
The respondent also accepted this relationship
From these facts even if an agency could not be implied a tacit agreement between the two Railways to carry the respondents goods to New Delhi could be implied resulting in a contract of bailment between the E P Railway and respondent
Kulu Ram Maigraj vs The Madras Railway Company ILR  GIP Railway Co vs Radhakisan Kushaldas ILR  Bristol and Exeter Railway vs Collins VII HLC 194 and De Bussche vs Alt 1878 LR 8 Ch
D 386 referred to
Held further that the suit was not barred by limitation
Even if article 30 of the Indian Limitation Act applied as contended for by the appellant the burden was on the appellant who sought to non suit the respondent to establish that the loss occurred beyond one year from the date of the suit
Thus the appellant had failed to establish by any clear evidence