iminal Appeals Nos 89 and 90 of
Appeals by Special Leave from the Judgment and Order dated the 23rd November 1953 of the High Court of Judicature at Bombay in Criminal Appeal No 1213 of 1953 and from the Judgment and Order dated the 25th August 1953 of the High Court of Judicature at Bombay in Criminal Appeal No 1121 of 1953 arising out of the judgment and decree dated the 6th August 1953 of the Court of Sessions Case No 36 of 1952
section Narayanaiah and Dr C VL Narayan for the appellant in Criminal Appeal No 89 of 1954
C Sanjeevarow Nayadu and R Ganapathy Ayyar for the appellant in Criminal Appeal No 90 of 1954
MC Setalvad Attorney General of India G N Joshi and Porus A Mehta with him for the respondent
151 1180 1954
December 22
The Judgment of the Court was delivered by BOSE J
These two appeals arise out of the same trial
The two appellants Shreekantiah the first accused in the trial Court and the appellant in Appeal No 89 of 1954 and Parasuram the second accused and the appellant in Appeal No 90 of 1954 were tried with a third accused Dawson on a number of different charges centering round section 409 of the Indian Penal Code criminal breach of trust by a public servant
The trial was by jury and all three were found guilty of an offence under section 409 read with section 34
They were convicted and sentenced as under Accused No 1
Shreekantiah to one year and a fine of Rs 500 with four months in default Accused No 2
Parasuram to two years and a fine of Rs 500 with six months in default and Accused No 3
Dawson to six months and a fine of Rs 200 with two months in default
The appeal of the second accused to the High Court was dismissed summarily on 25 8 1953 with the one word dismissed
The first and third accused appealed separately
Their appeal was heard by another Bench and was admitted and a reasoned judgment followed on 23 11 1953
This to
say the least was in the circumstances of this case anomalous
The appeals arise out of the same trial and are from one judgment and relate to the same charge to the jury and what is more they raise substantially the same points
This Court was constrained to express its disapproval of the summary rejections of appeals which raise issues of substance and importance
We draw attention to the remarks in Mushtak Hussein vs The State of Bombay1
Those observations apply with even greater force in the present case
The three accused are Government servants
At all material times the first was the Officer Commanding the Military Engineering Stores Depot at Dehu Road near Poona
He was in over all charge
The 1   820 1181 second was under him as the officer in charge of the Receipts and Issue control section
The third worked directly under the second as the Assistant Stores Officer
The depot is maintained by the Central Government and covers an area of some 150 acres
Government stores worth several lacs of rupees are kept there
On 11 9 1948 iron stores worth about Rs 4000 were illegally passed out of the depot and were handed over to one Ibrahim Fida Hussain an agent of the approver Mohsinbhai PW 1
The case for the prosecution is that the three accused who were in charge of these stores and to whom they had been entrusted in various capacities entered into a conspiracy to defraud Government of these properties and that in pursuance of this conspiracy they arranged to sell them to the approver PW 1 for a sum of Rs 4000
The money is said to have been paid and then the stores were passed out of the depot
The money is said to have been pocketed by the three accused and not credited to Government
On these facts a number of charges were framed
The first set was drawn up on 9 7 1953
All three accused were jointly charged with an offence punishable under section 52 of the Prevention of Corruption Act 1947 and all three were further jointly charged with having committed criminal breach of trust in furtherance of the common intention of all under section 409 of the Indian Penal Code read with section 34
Then followed a number of alternative charges in which each was separately charged with having committed criminal breach of trust personally under section 409
As a further alternative
 all three were jointly charged under section 409 Indian Penal Code read with section 109 for having abetted each other in the commission of a criminal breach of trust under section 409
Objection was at once taken to these charges and the one which concerns us now was couched in the following terms 1182 It is further submitted that the trial under section 52 Corruption Act 1947 with Indian Penal Code section 409 is likely to embarrass the accused in their defence as it would be difficult to efface the evidence if any of the accused persons given on oath from the minds of the Jurors when considering the charge under section 409 Indian Penal Code
It is therefore prayed that the charges under sec409 Indian Penal Code and section 52 of the Corruption Act may not be tried together in one trial
The Assistant Public Prosecutor said he had no objection to separating the charges and leaving the one under section 52 for another trial
The Court then made the following order on 10 7 1953 Thus though a joint trial for offence under section 52 of the Prevention of Corruption Act and the offences under the Indian Penal Code is legal and valid I think in view of the circumstances mentioned above it would be in the interest of justice and also in the interests of the accused themselves if the trial for the offence under section 52 of the Prevention of Corruption Act is separated
I therefore grant the application to this extent and order that the charge should be amended accordingly
In view of this the charges were re framed on 11 7 1953
The only difference of substance is that the charge under section 52 was dropped
The others remained
Now it will be observed that the accused are all public servants and they contend that as according to the prosecution they purported to act in the discharge of their official duties sanction was necessary under section 197 of the Criminal Procedure Code
There is sanction so far as the first accused is concerned but the second accused contends that there is none in his case to justify the present trial so his trial conviction and sentence are bad
The position about this is as follows On 27 10 1949 the Governor General acting under section 197 of the Code of Criminal Procedure sanctioned the prosecution of the first accused for offences tinder sections 1183 120 B 409 109 and so forth for having conspired with the other two to commit criminal breach of trust in respect of the properties with which this case is concerned and thus for having abetted the commission of that offence and also for having committed it
Similar sanction could easily have been given against the other two accused but it was not
The sanction for these offences was limited to the first accused
On the same date sanction was also given for the prosecution of the first accused under section 52 of the Prevention of Corruption Act and a similar sanction was given against the second accused
The question is whether this sanction against the second accused can be extended to cover his prosecution under section 409 of the Indian Penal Code
In our opinion it cannot
At the date of the sanction the unamended Prevention of Corruption Act II of 1947 was in force
Criminal breach of trust under section 409 of the Indian Penal Code was included in the definition of criminal misconduct under section 51c of the Act of 1947
Therefore an offence under section 409 could be tried under the Act of 1947 and the question arose whether it would have to be tried under that Act or whether it could also be tried in the ordinary way by the ordinary Courts
The Punjab High Court held in The State vs Gurucharan Sinah1 that it could not
Because of this the Act of 1947 was amended in 1952 by Act LIX of 1952 and section 4 of the amending Act makes it clear that the trial can be under either law
But in the same year the Criminal Law Amendment Act 1952 Act XLVI of 1952 was passed and because of this Act trials under section 52 of the Prevention of Corruption Act must be before a Special Court and a special procedure must be followed
Therefore the position which these various Acts created was this
First a choice was conferred on some authority to choose whether any given accused should be tried in a special Court with a special procedure and be subject to a lesser punishment under section 52 or whether he should be tried in the ordi 1 AIR 1952 Punjab 89 1184 nary way under section 409 of the Indian Penal Code with the risk of a higher punishment
The question then is who is to do the choosing
Under section 197 of the Code of Criminal Procedure the Governor General was at that date the sanctioning authority though the words exercising his individual judgment had by that time been deleted
Under the Prevention of Corruption Act the sanctioning authority was the Central Government
Now it may well be that the two mean the same thing because of section 8a of the General Clauses Act but that makes no difference at the moment
The fact remains that either one or two Government authorities were given the right and invested with the duty of making an election
They had the right to say whether a certain class of public servant who had committed criminal breach of trust should be tried for that offence under section 409 of the Indian Penal Code in the ordinary courts of the land according to the normal procedure obtaining there and be subject to a maximum penalty of ten years plus an unlimited fine or be tried for the same offence under another name in a special court by a special procedure and be subject to no more than seven years plus a fine which is also unlimited
At this stage of the arguments we asked the learned counsel for the appellants whether they intended to challenge the vires of this law under article 14 of the Constitution because if they did the matter would have to go to a Constitution Bench as we being only three Judges would have no power to decide it
The learned Attorney General at once objected because the point had not been raised at any stage and was not to be found even in the grounds of appeal to this Court
The learned counsel for the appellants replied that they did not wish to take the point
Accordingly we have to proceed in this case on the assumption that the amending Act of 1952 Act LIX of 1952 is valid
That results in the position we have outlined above
There is a choice not only of forum but also of procedure and the extent of the maximum penalty
If two separate authorities are given the right to 1185 choose and neither can encroach upon the preserve of the other then the Governor General has not sanctioned the present prosecution against the second accused and no other authority has the power to do so
Therefore in that event the sanction given to prosecute under section 52 cannot be used to cover the present trial because it is given by another authority not competent to give it
On the other hand  if the two authorities are really one then the election has been made clearly and unequivocally
The sanction is to proceed in the special courts with the special procedure and the second accused is not to be exposed to the risk of the higher penalty
In that event the present trial against the second accused is incompetent
That a defect of this kind is fatal and cannot be cured is well settled
See the Privy Council in Gokulchand Dwarkadas vs The King1 the observations of Varadachariar J in Hori Ram Singh vs The Crown1 and the decision of this Court in Madan Mohan vs The State of Uttar Pradesh1
But the learned Attorney General argued that no sanction was necessary because according to him despite what the second accused says by no stretch of imagination can he be said to have been acting or even purporting to act in the discharge of his official duty
The argument ran as follows The act complained of here is the breach of trust and the prior abetment of it the breach occurred as soon as the goods were loaded on Mohsinbhai s lorries it was no part of this accused s official duties to permit an unauthorised removal of the goods therefore
 when he allowed that he neither acted
nor purported to act in the discharge of his official duties
Reference was made to the decision of the Federal Court in Lieutenant Hector Thomas Huntley vs The King Emperor1 where Zafrullah Khan J held that it must be established that the act complained of was an official act and to the observations of Varadachariar J in Hori Ram Singh vs The Crown1 1 AIR 1948 PC 82
3 AIR 1954 SC 637 641
2  184
4  269
5  186
1186 where dealing with section 409 of the Indian Penal Code he says Though a reference to the capacity of the accused as a public servant is involved both in the charge under section 409 and in the charge under section 477 A there is an important difference between the two cases when one comes to deal with the act complained of
In the first the official capacity is material only in connection with the entrustment  and does not necessarily enter into the later act of misappropriation or conversion which is the act com plained of
What this argument overlooks is that the stress in the passage quoted is on the word necessarily which we have underlined
A later passage at page 187 explains this I would observe at the outset that the question is substantially one of fact to be determined with reference to the act complained of and the attendant circumstances it seems neither useful nor desirable to paraphrase the language of the section in attempting to lay down hard and fast tests
With that we respectfully agree
There are cases and cases and each must be decided on its own facts
Now it is obvious that if section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied for of course it is no part of an official s duty to commit an offence and never can be
But it is not the duty we have to examine so much as the act because an official act can be performed in the discharge of official duty as well as in dereliction of it
The section has content and its language must be given meaning
What it says is  when any public servant  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
We have therefore first to concentrate on the word offence
Now an offence seldom consists of a single act
It is usually composed of several elements and as a rule a whole series of acts must be proved before it can be 1187 established
In the present case the elements alleged against the second accused are first that there was an entrustment andor dominion second that the entrustment andor dominion was in his capacity as a public servant third that there was a disposal and fourth that the disposal was dishonest
Now it is evident that the entrustment and or dominion here were in an official capacity and it is equally evident that there could in this case be no disposal lawful or otherwise save by an act done or purporting to be done in an official capacity
Therefore the act complained of namely the disposal could not have been done in any other way
If it was innocent it was an official act if dishonest it was the dishonest doing of an official act but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act namely officially permitting their disposal and that he did
He actually permitted their release and purported to do it in an official capacity and apart from the fact that he did not pretend to act privately there was no other way in which he could have done it
Therefore whatever the intention or motive behind the act may have been the physical part of it remained unaltered so if it was official in the one case it was equally official in the other and the only difference would lie in the intention with which it was done in the one event it would be done in the discharge of an official duty and in the other in the purported discharge of it
The act of abetment alleged against him stands on the same footing for his part in the abetment was to permit the disposal of the goods by the doing of an official act and thus wilfully suffer another person to use them dishonestly section 405 of the Indian Penal Code
In both cases the offence in his case would be incomplete without proving the official act
We therefore hold that section 197 of the Code of Criminal Procedure applies and that sanction was necessary and as there was none the trial is vitiated from the start
We therefore quash the proceedings 152 1188 against the second accused as also his conviction and sentence
We now turn to the appeal of the first accused
He has been convicted under section 409 of the Indian Penal Code read with section 34
The main point here concerns a vital misdirection in the charge to the jury about section 34
The learned Additional Sessions Judge misunderstood the scope and content of this section and so misdirected the jury about the law
The section was expounded at length in paragraphs 15 and 16 of the charge and though some of the illustrations given are on the right lines there is much there that is wrong and which if acted on would cause a miscarriage of justice
The essence of the misdirection consists in his direction to the jury that even though a person may not be present when the offence is actually committed and even if he remains behind the screen he can be convicted under section 34 provided it is proved that the offence was committed in furtherance of the common intention
This is wrong for it is the essence of the section that the person must be physically present at the actual commission of the crime
He need not be present in the actual room he can for instance stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed
The antithesis is between the preliminary stages the agreement the preparation the planning which is covered by section 109 and the stage of commission when the plans are put into effect and carried out
Section 34 is concerned with the latter
It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which of 1189 course can be of a passive character such as standing by a door provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre arranged plan when the time comes for him to act
The emphasis in section 34 is on the word done When a criminal act is done by several persons 
It is essential that they join in the actual doing of the act and not merely in planning its perpetration
The section has been elaborately explained by Lord Sumner in Barendra Kumar Ghosh vs The King Emperor1
At page 52 he explains that participation in action is the leading feature of section 34
And at page 53 in explaining section 114 of the Indian Penal Code he says Because participation de facto as this case shows may sometimes be obscure in detail it is established by the presumption juris et de jure that actual presence plus prior abetment can mean nothing else but participation
The presumption raised by section 114 brings the case within the ambit of section 34
At page 55 he says about section 34 that participation and joint action in the actual commission of crime are in substance matters which stand in antithesis to abetments or attempts
The misdirection is plain and it goes to the root of the matter because the jury returned a verdict of guilty under section 409 of the Indian Penal Code read with section 34 alone and not under section 409 read with section 109
It is part of the defence of the first accused that he was not present when the goods were loaded nor was be present when they were allowed to pass out of the gates that is to say that he was not present when the offence was committed
It is true there is evidence to show that he was there when the lorries left but apart from the fact that there is a small discrepancy on the point there is nothing to indicate that this evidence was believed
If he was not present he 1 1924 LR 52 IA 40
1190 cannot be convicted with the aid of section 34
He could have been convicted of the abetment had the jury returned a verdict to that effect because there is evidence of abetment and the charge about abetment is right in law
But the jury ignored the abetment part of the charge and we have no means of knowing whether they believed this part of the evidence or not
There is also non direction on an important point which may have caused a miscarriage of justice
The case for the prosecution is that the accused disposed of the goods to Mohsinbhai for a sum of Rs 4000 which was duly paid to the second accused on the 10th
The learned trial Judge told the jury that the evidence led by the prosecution about the payment of the Rs 4000 is proved to be utterly useless and in telling them why he gave them a number of reasons
But he omitted to follow this up by telling them that if they rejected this part of the prosecution case as he invited them to do then the strongest part of the case against the accused collapsed because officers
in the position of the accused do not commit illegal acts like this and expose themselves to a prosecution and possible disgrace unless they are prompted by some strong motive usually self interest and though a conviction can be based on evidence which does not disclose a motive if the facts proved justify such a course yet it would ordinarily be unsafe to convict in a case like the present in the absence of proof indicating an adequate reason for criminal behavior on the part of the accused
Had the jury been told this as they should have been it is possible they would not have returned a verdict of guilty
In the circumstances we have no alternative but to quash this conviction also
We have now to consider whether there should be a retrial
As the present trial cannot proceed against the second accused and as all the accused are said to have acted in concert each playing an appointed part in a common plan we do not think it would be right 1191 to direct a retrial though this is the normal course when a jury trial is set aside on the grounds of misdirection and non direction
We therefore discharge not acquit both the appellants leaving it to Government either to drop the entire matter or to proceed in such manner as it may be advised
We do this because the accused expressly asked that the charge under the Prevention of Corruption Act should be left over for a separate trial
The two convictions are therefore quashed and also the sentences
We are told that the first accused has already served out his sentence
The fine if paid will be refunded
The bail bond of the second accused will be cancelled


Summary:
The three accused Government servants were jointly charged with an offence punishable under section 52 of the Prevention of Corruption Act 1947 and all three were further jointly charged with having committed breach of trust in furtherance of the common intention of all under section 409 of the Indian Penal Code read with section 34
Then followed a number of alternative charges in which each was separately charged with having committed criminal breach of trust personally under section 409
As a further alternative all three were 1178 jointly charged under section 409 read with section 109 for having abetted each other in the commission of a criminal breach of trust under section 409
On objection taken to these charges the trial for the offence under section 52 of the Prevention of Corruption Act was separated from the trial under section 409 of the Indian Penal Code
The charges were reframed
One under section 52 was dropped while others remained
On 27 10 1949 the Governor General acting under section 197 of the Code of Criminal Procedure sanctioned the prosecution of the first accused appellant No 1 for offences under sections 120 B 409 109 for having conspired with the other two to commit criminal breach of trust in respect of properties belonging to Government and for having thus abetted the commission of that offence and also for having committed it
Similar sanction was not given against the other two accused and was limited only to the first accused
On the same date sanction was given for the prosecution of the first accused under section 52 of the Prevention of Corruption Act 1947 and a similar sanction was given against the second accused
The question was whether this sanction against the second accused could be extended to cover his prosecution under section 409 and whether his trial was valid
Held answering the question in the negative that under section 197 of the Code of Criminal Procedure the sanctioning authority was the Governor General
Under the Prevention of Corruption Act 1947 the sanctioning authority was the Central Government
Either one or two Government authorities were given the right and invested with the duty of making an election
If two Government authorities are given the right to choose and neither can encroach upon the preserve of the other then the Governor General has not sanctioned the present prosecution against the second accused appellant No 2 and no other authority has the power to do so
Therefore the sanction given to prosecute under section 52 of Act II of 1947 could not be used to cover the present trial because it was given by an authority not competent to give it
If on the other hand the two authorities are really one then the election has been made clearly
The sanction under section 52 of the Prevention of Corruption Act 1947 as amended by Act LIX of 1952 and Act XLVI of 1952 is to proceed in special courts with a special procedure so the present trial against the second accused was incompetent
It is well settled that a defect of this nature is fatal and cannot be cured when section 197 applies and as it did sanction was necessary so the trial was vitiated from the start
The proceeding were accordingly quashed
If section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied for it is no part of an official s duty to commit an offence and never can be
But it is not the duty of an official which has to be examined so much as his act because an official act can be performed in the discharge of official duty as well as in dereliction of it
The section has content and its language must be given meaning
1179 In the case of the first accused there was misdirection in the charge to the Jury under section 34
The essence of the misdirection consisted in the Sessions Judge s direction to the jury that even though a person may not be present when the offence is actually committed and even if he remains behind the screen he can be convicted under section 34 provided it is proved that the offence was committed in furtherance of the common intention
This is wrong because the essence of the section is that the person must be physically present at the actual commission of the crime
The misdirection is plain and goes to the root of the case because the jury returned a verdict of guilty under section 409 read with section 34 alone and not under section 409 read with section 109 IPC Held that in cases which raise questions of substance and importance the High Courts should not pass summary orders of rejection without giving some indication of their views on the points raised before them
Mushtak Hussein vs The State of Bombay 1953 SCR 809 The State vs Gurucharan Singh AIR 1952 Punjab 89 Gokulchand Dwarkadas vs The King AIR  Hori Ram Singh vs The Crown 1939 FCR 159 Madan Mohan vs The State of Uttar Pradesh AIR  Lieutenant Hector Thomas Huntley vs The King Emperor 1944 FCR 262 and Barendra Kumar Ghosh vs The King Emperor 1924 LR 52 I A 40 referred to