Judgment Case ID: 233

Judgment:
No. 55 of 1954. Under article 32 of the Constitution for the enforcement of fundamental rights. N. C. Chatterjee	 (J. B. Dadachanji and Rajinder Narain	 with him) for the petitioners. K. V. Tambe and I. N. Shroff for the respondent. April 5. The Judgment of the Court was delivered by JAGANNADHADAS J. This is a petition under article 32 of the Constitution and is presented to this Court under the following circumstances. Petitioner No. I before us was an Agricultural Demonstrator of the Government of Madras and was employed as an Assistant Marketing Officer in Central Provinces and Berar for the purchase and movement of blackgram and other grains on behalf of the Madras Government. He	 as well as the second petitioner and 44 others	 are under prosecution before Shri K. E. Pandey	 a Special Magistrate of Nagpur	 Madhya Pradesh	 in Case No. I of 1949 pending before him on charges of cheating	 attempt to commit cheating	 criminal breach of trust 22 170 and criminal conspiracy	 (i.e.	 for offences punishable under section 420 read with section 120 B or 109 of the Indian Penal Code	 section 409 and section 409 read with section 120 B of the Indian Penal Code) and the allegation is that by reason of the acts committed by the accused	 the Government of Madras had to incur an expenditure of Rs. 3	57	147 10 0 in excess of the amount due. The Special Magistrate before whom the case is now pending was appointed by the Madhya Pradesh Government under section 14 of the Criminal Procedure Code	 and as the first petitioner was a servant of the Government of Madras	 the prosecution against him has been initiated by sanction given by the Government of Madras under section 197(1) of the Criminal Procedure Code. The validity of the prosecution is challenged on various grounds	 and the present petition is for quashing the proceedings on the ground of their invalidity. The three main points taken before us are: (1) Section 14 of the Criminal Procedure Code	 in so far as it authorises the Provincial Government to confer upon any person all or any of the powers conferred or conferrable by or under the Code on a Magistrate of the first	 second or third class in respect of particular cases and thereby to constitute a Special Magistrate for the trial of an individual case	 violates the guarantee under article 14 of the Constitution; (2) The sanction given under section 197(1) of the Criminal Procedure Code for the prosecution as against the first petitioner is invalid	 inasmuch as the order of the Madras Government granting the sanction does not disclose that all the facts constituting the offences to be charged were placed before the sanctioning authority ; nor does the sanction state the time or place of the occurrence or the transactions involved in it	 or the persons with whom the offences were committed. This contention is raised relying on the Privy Council case in Gokulchand Dwarkadas Morarka vs The King(1); (3) Even if the sanction under section 197 (1) of the Criminal Procedure Code is valid	 it is for the very Government which accords the sanction to specify also the Court before (1) A.I.R. 1948 P.C. 82. 171 which the trial is to be held under section 197(2) and in the absence of any such specification by the said Government	 the power under section 14 of the Criminal Procedure Code of appointing a Special Magistrate for the trial of the case cannot be exercised by the Madhya Pradesh Government. These points may now be dealt with seriatim. In support of the objection raised under article 14 of the Constitution	 reliance is placed on the decision of this Court in Anwar Ali Sarkar 's case (1). That decision	 however	 applies only to a case where on the allotment of an. individual case to a special Court authorised to conduct the trial by a procedure substantially different from the normal procedure	 discrimination arises as between persons who have committed similar offences	 by one or more out of them being subjected to a procedure	 which is materially different from the normal procedure and prejudicing them thereby. In the pre sent case	 the Special Magistrate under section 14 of the Criminal Procedure Code has to try the case entirely under the normal procedure	 and no discrimination of the kind contemplated by the decision in Anwar Ali Sarkar 's case (1) and the other cases following it arises here. A law vesting discretion in an authority under such circumstances cannot be said to be discriminatory as such	 and is therefore not hit by article 14 of the Constitution. There is	 therefore	 no substance in this contention. As regards the second ground which is put forward on the authority of the Privy Council case of Gokulchand Dwarkadas Morarka vs The King(2)	 it is admitted that the trial has not yet commenced. The Privy Council itself in the case mentioned above has recognised that the lacunas	 if any	 in the sanction of the kind contemplated by that decision can be remedied in the course of the trial by the specific evidence in that behalf. Learned counsel for the State	 without conceding the objection raised	 has mentioned to us that evidence in that behalf will be given at the trial. It is	 therefore	 unnecessary to decide the point whether or not the sanction	 as it is	 and without such evidence is invalid. (1) ; (2) A.I.R. 1948 P.C. 82. 172 It is the third point that has been somewhat seriously pressed before us. The contention of learned counsel for the petitioners is based on sub section (2) of section 197 of the Criminal Procedure Code	 which runs as follows : " The Governor General or Governor	 as the case may be	 exercising his individual judgment may determine the person by whom	 the manner in which	 the offence or offences for which	 the prosecution of such Judge	 Magistrate	 or public servant is to be conducted	 and may specify the Court before which the trial is to be held. " The argument is that it is for the very Government which sanctioned the prosecution under section 197(1) to specify the Court before which the trial is to be held and no other	 and that consequently	 in a case to which section 197(1) applies	 the exercise of any power under section 14 is excluded. It is said that though the exercise of the power under section 197(2) in so far as it relates to specification of the Court is concerned is discretionary and optional	 but if in an individual case	 that power is not exercised	 it must be taken that the appropriate Government did not feel called upon to allot the case 'to any special Court	 and that	 therefore	 such allotment by another Government under section 14 would affect or nullify the power of the appropriate Government under section 197(2). It is also suggested that such dual exercise of the power by two Governments would be contrary to the policy underlying section 197 which is for the protection of the public ser vant concerned	 by interposing the sanction of the Government between	 the accuser and its servants of the categories specified therein. This argument is farfetched. In the first instance	 there is no reason to think that section 197(2) is inspired by any policy of protection of the concerned public servant	 as section 197(1) is. There can be no question of protection involved by an accused being tried by one Court rather than by another at the choice of the Government. The power under section 197(2) appears to be vested in the appropriate Government for being exercised	 on grounds of convenience	 or the complexity or gravity of the case or other relevant considerations. The argument as to 173 the implication of non exercise of the power by the appropriate Government under section 197(2) is also untenable. The power to specify a Court for trial in such cases is a permissive power	 and there can be no such implication	 as is contended for	 arising from the non exercise of the power. This entire argument	 however	 is based on a misconception of the respective scopes of the powers under	 section 197(2) and section 14. The one relates to the "Court" and the other to the "Person". Under sub section (2) of section 197	 the sanctioning Government may specify a. Court for the trial of the ' case but is not bound to do so. When it does not choose to specify the Court	 the trial is subject to the operation of the other provisions of the Code. But even when it chooses to exercise the power of specifying the Court before which the trial is to be held	 such specification of the Court does not touch the question as to who is the person to function in such Court before which the trial is to take place. That is a matter still left to be exercised by the Provincial Government of the area where the trial is to take place. 'The argument of learned counsel proceeds on treating the word "Court" in sub section (2) of section 197 as being the same as a "person" in sub section (1) of section 14	 for which there is no warrant. There is accordingly no substance in this contention. In addition to the above three points	 learned counsel for the petitioners has also raised a further point that in the present case Shri K. L. Pandey who was first appointed as a Special Magistrate for the trial of the case	 and to whose file on such appointment this case was transferred	 was later on appointed as acting Sessions Judge for some time and ceased to have this case before him. He reverted back from his position as acting Sessions Judge to his original post. The point taken is that without a fresh notification appointing him as Special Magistrate and transferring the case to him as such	 he cannot be said to be seized of this case as Special Magistrate. Here again	 learned counsel for the State informs us	 without conceding the point so taken	 that he is prepared to advise the Government 174 to issue the necessary notification and have the case transferred. In view of that statement	 it is unnecessary to pronounce on the objection so raised. In the result	 all the points raised on behalf of the petitioners fail	 and this petition must be dismissed. It is desirable to observe that the questions above dealt with appear to have been raised before the High Court at previous stages by means of applications under article 226 and decided against. No appeals to this Court have been taken against the orders therein. Nothing that we have said is intended to be a pronouncement as to the correctness or otherwise of those orders	 nor to encourage the practice of direct approach to this Court (except for good reasons) in matters which have been taken to the High Court and found against	 without obtaining leave to appeal therefrom. Petition dismissed.

Summary:
The petitioner	 an officer of the Madras Government	 was employed in Central Provinces and Berar for the purchase of grains on behalf of the Madras Government. He along with many others	 was under prosecution before a Special Magistrate	 Nagpur (Mad by a Pradesh)	 on charges for offences under section 420 of the Indian Penal Code etc. for causing loss to the Madras Government. The Special Magistrate trying the case was appointed by the Madhya Pradesh Government under section 14 of the Code of Criminal Procedure and as the petitioner was a servant of the Government of Madras	 the prosecution against him was initiated with the sanction given by the Government of Madras under section 197 of the Code of Criminal Procedure. Held	 (i) that section 14 of the Criminal Procedure Code in so far as it authorises the Provincial Government to confer upon any person all or any of the powers conferred or conferrable by or under the Code on Magistrates of the first	 second or third class in 169 respect of particular oases and thereby to constitute a Special Magistrate for the trial of an individual case	 does not violate the guarantee under article 14 of the Constitution as the Special Magistrate in the present case had to try the case entirely under the normal procedure and no discrimination of the kind contemplated by the decision in Anwar Ali Sarkar 's Case ([1952] S.C.R. 284) arose in the present case. A law vesting discretion in an authority under such circumstances cannot be discriminatory and is	 therefore	 not hit by article 14 of the Constitution. (ii) It is not for the very Government which accords sanction under section 197(1) to specify also the Court before which the trial is to be held under section 197(2) and therefore in a case to which section 197(1) applies	 the exercise of any power under section 14 is not excluded. The word "Court" in sub section (2) of section 197 is not the same thing as a "person" in sub section (1) of section 14. The practice of direct approach to the Supreme Court under article 32 (except for good reasons) in matters which have been taken to the High Court and found against	 without obtaining leave to appeal therefrom	 is not be encouraged. Gokulchand Dwarkadas Morarka vs The King (A.I.R. 1948 P. C. 82) referred to; and Anwar Ali Sarkar 's case ([1952] S.C.R. 284) distinguished.