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Criminal Appeal No. 143 of .1953, decided on 8th November, 1954.
S. 6 (c) -Sanction-Promoting authority to a certain grade-Whether appointing authority---Sind (Police) Rifle Force Act 1943, S. 4 (3)-Commandant's sanction enough-Evidence bearing on validity of sanction-Whether admissible at appeal stage.
The facts constituting the offence were that the appellant, who was a member of the Sind Police Rifle Force, by making out a second pay bill received twice over the difference of pay between that of his ordinary grade and the grade to which he was promoted by reason of certain leave vacancies for a certain period He was charged under section 420 P. P. C., and section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act (II of 1947). His pro secution was sanctioned by the Commandant of the Force.
The appellant took the plea of want of proper sanction before the Chief Court and sought to produce evidence to substantiate his plea at the appeal stage.
Held, that the mere fact that the Inspector-General of Police promotes members of the Force to "C" grade does not avoid the operation of section 4 (3) of the Sind (Police) Rifles Force Act read with section 16 of the General Clauses Act by virtue of which Commandant of the Force was the appointing authority.
There being no evidence to contradict the Commandant's claim that he was competent to remove the appellant, the sanction given by the Commandant was proper.
Further that while the Court might have been inclined with hesitation to admit the documents sought to be produced by the appellant if the documents made it clear that the Commandant was not the competent authority to remove, admission of documents was refused inasmuch as there was nothing to contradict the Commandant's claim that he was a competent authority to remove.
(b) Criminal Procedure Code (V of 1898), S. 367-Judg ment-Contents-Should set out ingredients of offence charged seriatim.
No issue was raised in the judgment under appeal upon the point whether the accused was a public servant, the charge being that he had defrauded the Government of a certain sum while he was a member of the Sind Police Rifle Force. The Court framed a point for determination, viz., whether the accused committed fraud upon the Government by drawing Rs. 93-7-0 twice or did he so through genuine mistake.
Held, this was no compliance with section 367 Cr. P. C. The prosecution has to prove the ingredients of the offences charged and it is for a judge to set these out seriatim. There may be errors of oversight due to this habit of framing the point-for determination.
(c) Penal Code (XLh of 1860); S. 21, Ninth clause ---Public servant-"Any officer in the service or pay of the Crown . . . . for the performance of any public duty"---"Public duty" a necessary qualification of such officer.
The words "in the service or pay of the Crown" must be read together with "for the performance of any public duty". Unless this conjunction in sense, if not in grammar or at least idiom, is imported, it is difficult to understand why the draftsman thought it necessary to make a special mention (clauses First and Second) of covenanted servants or of the Queen's Commissioned Officers. These first two descrip tions of public servants are public servants by virtue of either their covenant or commission : other descriptions are public servants by virtue of the nature of their duties hence in the ninth description also "public duty" is a necessary qualification of the words "in the service or pay of the Crown".
Where the accused (a member of the Sind Police Rifle Force) was described as a "sheet clerk" and there was nothing to indicate what a sheet clerk was, held, that the prosecution had failed to prove that he was a public servant.
(d) Criminal trial-Conviction recorded under one of two offences charged-Mere omission to record conviction or acquittal under the other offence not necessarily to be deemed to amount to acquittal of that other offence-Appellate Court may convict and sentence accused under such offence.
The accused was charged under sections 465, 420 P. P. C. and section 5 (1) (d) Prevention of Corruption Act (II of 1947).
The Special Judge in his judgment recorded an express refusal to convict under section 465 P. P. C. He convicted the accused under section 5 (1) (d) read with section 5 (2), Prevention of Corruption Act. There was no express order regarding section 420 P. P. C.
The Special judge had however come to a finding that the accused had defrauded Government by obtaining Rs. 93-7-0 by submitting a pay-bill for that amount a second time, and convicted him only under section 5 (1) (d) read with section 5 (2) of Prevention of Corruption Act.
It turned out in appeal that the accused's conviction under section 5 (1) (d) read with section 5 (2). Prevention of Corruption Act could not be maintained because the pro secution had failed to prove that the accused was a public servant.
Held, that the Chief Court as an appellate Court was competent to determine whether the accused committed the offence of cheating.
On evidence, the Chief Court maintaining the sentence convicted the accused in the alternative of an offence under section 420 or section 420 read with section 109 P. P. C. in lieu of the offence under section 5 (1) (d) read with section 5 (2) Prevention of Corruption Act of which he was acquitted.
Federal Court, Criminal Appeal, No. 6 of 1952 (un reported) distinguished,
A. G. Akhund, for Appellant.
Tufail Ali, for the Crown.
-The appellant was charged as follows in the Court of the special judge, Hyderabad (Mr. H. M. Kureshi) :-
"That you on or about the 4th, day of November, 1949, at Hyderabad forged a document to wit supplementary pay bill for the period from 19th August 1946 to 30th November 1946 and from 20th December 1946 to 8th January 1947, with intent to commit fraud on Government by receiving the difference of your pay for the second time for the above said period and thereby committed an offence punishable under section 465 P. P. C. and within my cognizance.
And further that you by the above said means on or about 15th day of November 1949 at Hyderabad cheated Government by fraudulently inducing them to deliver to you Rs. 93-7-0 the alleged difference of your pay for the second time for the above said period and that thereby you committed an offence punishable under section 420 P. P. C. and within my cognizance.
And further that you on or about the same day at the same place being a public servant, viz., Sheet Clerk in S. P. R. Department by corrupt and illegal means obtained for yourself the above said amount of Rs. 93-7-0 and thereby committed an offence under section 5 (d) (2) of Central Act II of 1947 and within my cognizance.
And I hereby direct that you be tried by me on the said charges."
The prosecution case briefly is that the appellant was a member of the Sind (Police) Rifle Force constituted by the Sind (Police) Rifle Force Act 1943. From 19th August 1946 to 30th November 1946 and from 20th December 1946 to 8th January 1947, he officiated as "D" grade clerk in leave vacancies and on 8th January 1948, by Exh. 4-A a pay bill was prepared by him. This pay bill was in respect of difference of pay due to himself and three other clerks far various periods. The amount due to the appellant, Rs. 93-7-0, was drawn by him under his signature on 13th January 1948, at which time he was working as a pay bill clerk. We are not in this case concerned with the question whether he was then entitled to draw this extra pay or not.
On 7th July 1949, Government passed a resolution Exh. 4-D in which sanction was accorded retrospectively to the continuance of the ninth post of clerk in the office of the Commandant, Sind Police Rangers in the first grade, i.e. in the equivalent ''D" grade, for the period from 1st April 1944 to 31st August 1947. This Government Resolu tion was in response to a letter of the Inspector-General Police dated 6th April 1948, which recited that by Government orders dated 19th August 1946, nine posts of this grade had been sanctioned, but an amendment dated the 20th July 1946, was not received till September 1947, whereby it was notified that only 8 and not 9 of these posts were sanctioned, this amendment had effect from 1st April 1944, and hence the orders of Government were invited.
The appellant on 26th October 1949, (now Sheet Clerk) by Exh. 4-C applied to the Assistant Commandant that since he was promoted to the ninth post of 'D' grade for the period from 19th August 1946 to 30th November 1946 and from 20th December 1946, to 8th January 1947, he should in accord ance with the Government resolution be entitled to the difference of pay. He stated he had not been allowed to draw this difference.
The petition travelled down from the Assistant Com mander, and on its way up the pay-bill clerk (Parmanand, who left for India in 1950) certified that he had verified from the monthly and other pay-bills that appellant had not yet been paid the difference claimed, the Accountant endorsed it to the Head Clerk, who minuted on the faith of the certificate, and the Assistant Commandant sanctioned the payment. The appellant drew the amount of Rs. 93-7-0 on 15th November 1949 when he signed the pay-bill in acknowledgement of receipt.
It is common ground that he had already received this same difference in pay in the pay-bill which was paid on 13th January 1948. The appellant was put the following question by the Court :-
"Q. It is alleged that you cheated Government to the extent of Rs. 93-7-0 by drawing your pay-bill twice for the same period from 19th August 1946 to 30th November 1946 and again from 20th December 1946 to 8th January 1947, what have you to say "
His answer was that he had drawn the bill for the same period twice through an oversight and in his written statement he amplified this by stating that the duplication was a mistake due to the fact that he had forgotten all about the first payment owing to lapse of about two years and that he was also misguided by the Government resolution in Exh. 4-D because he was the ninth man in "D" grade. He stated that as soon as he became aware of the mistake he credited the amount to Government. As regards this last statement, it is in evidence that he credited the amount only after the matter had been reported to the Anti-Corruption Department on 10th June 1952 after it had been detected by the Accountant. This is borne out by the date of the challan which is 19th June 1952.
We agree with the learned judge in disbelieving the defence of the accused. He had himself prepared the first bill while he was a pay bill clerk and he himself prepared the second bill when he was a sheet clerk. The difference in pay was that between Rs. 77 and Rs 100, and it appears incredible that even a heavily worked clerk should forget that he had already drawn a difference amounting to almost one-third of his pay for nearly three months. The defence witness could only remember one other such instance of double payment.
It was argued that as Accountant he could have made away with the bills, but he had signed the general register also in token of receipt and he could hardly do away with pages of such a register : to do so would be to invite scrutiny of bills in the treasury. Secondly it is probable that after the matter came to light he could not have access to the bills, and that before it came to light he hoped that it would remain undetected.
It is common ground that section 6 (c) of Act II of 1947 required sanction for cognizance of an offence under section 5 of Act II of 1947 and that the sanction must be given ' by an authority competent to remove the appellant from his office. The sanction was given by the Commandant in July 1952, by Exh. 9.
Mr. A. G. Akhund for the appellant argued that the competent authority to grant the sanction was not the Commandant, but the Inspector-General, Police. The Commandant was cross-examined on the point of sanction as follows :-
"The accused was officiating in "C" grade at the time of my report to the Anti-Corruption Police. The accused was enrolled in service under Sind (Police) Rifles Act. As such I was competent to remove him from service in whatever grade he may be working. It is provided in the Sind (Police) Rifles Act."
The reference is to subsection 3 of section 4 of the Act which provides:
"The Commandant or any other authority authorized in this behalf by the Provincial Government may, subject to such conditions as may be prescribed, appoint persons to be members of the Force."
This subsection has to be read in conjunction with section 16 of the Sind General Clauses Act. Hence unless other conditions were prescribed, the Commandant was entitled to remove and thus to give the sanction.
In Criminal Appeal 13 of 1954 Khan. Muhammad v. Crown (P L D 1954 F C 293), Sir Abdul Rashid, C. J., delivering the judgment of the Federal Court stated : "Despite the wide terms of section 375 of the Code, the powers given to the Appellate Court are only meant to be exercised where the additional evidence was either not available at the trial or the party concerned was prevented from producing either by circumstances beyond its control or by reason of misunderstanding or mistake. "We think that the appellant must have known the authority who appointed him : he obviously knew about his own service sheet. It is argued that because he did not know the law regarding sanction he failed to inform his advocate: we think on such an obvious point the advocate must have asked his client. It is possible that since the danger of falsity of these documents is most remote and since they were equally within the knowledge of the prosecution, we C might with hesitation have admitted them since it is perhaps consistent with Khan Muhammad's case to exercise a discre tion in favour of an accused person, if the documents produced made it clear that the Commandant was not the competent authority to remove. The mere fact that the Inspector-General promotes to "C" grade does not avoid the operation of section 4 (3) of the Sind (Police) Rifles Act read with section 16 of the General Clauses Act. We brought to the advocate's notice section 243 of the Government of India Act which overrides section 240 of the same Act ; in other words, we are not concerned with the Government of India Act but only with the Sind (Police) Rifles Act in determining whether the Commandant was competent to remove and thus to give sanction. No attempt was made to produce any rules limiting the Commandant's power, and so far as the record stands (and even upon the evidence sought to be introduced) there is nothing to contradict the Commandant's claim made both in examination-in-chief and in cross-examination that he was competent to remove the appellant. We therefore refuse to admit the evidence, and hold that sanction was properly given.
For the purposes of section 5 (1) (d) of the Anti . Corruption Act the definition of public servant has to be sought in section 21 of the Pakistan Penal Code. No was raised in the judgment under appeal upon this point and here we may point out as we have done in the past on certain occasions that the practice of framing the point for determination, as was done in this case :-
(1) "whether the accused committed fraud upon the Government by drawing Rs. 93-7-0 twice or did he so through genuine mistake,"
is not compliance with the provisions of section 367 Cr. P. C. The prosecution has to prove the ingredients of the offences charged and it is for a judge to set these out seriatim. We have often come across errors of oversight due to this lax habit of framing the point for determination.
It is common ground that the only description is section 21 which could apply to the appellant is the ninth, and that of this ninth description the following are the material words : "Every officer whose duty it is as such officer . . . . to keep any document relating to the pecuniary interests of the Crown, and every officer in the service or pay of the Crown or remunerated by fees or commission for the performance of any public duty." Mr. Tufail Ali conceded, rightly in our opinion and in accordance with Ratanlal's commentary, that the words "in the service or pay of the Crown" must be read together with "for the performance of any public duty." Unless this conjunction in sense, if not in grammar or at least idiom, is imported, its is difficult to understand why the draftsman thought it necessary to make special mention of covenanted servant or of the Queen's Commissioned Officers. These first two F descriptions of public servants are public servants by virtue of either their covenant or commission : other descriptions are public servants by virtue of the nature of their duties hence we think that also in the ninth description "public duty" is a necessary qualification of the words "in the service or pay of the Crown."
Mr. Akhund raised the point that the appellant was not public servant when he prepared the second pay bill, buts was a sheet clerk and that there is no evidence on record to show what the duties of the sheet clerk were. The record does not state what the duties of a sheet clerk are : probably they are principally to maintain the histories of service of the personnel. But we do not think we are entitled to take judicial notice of such a probability. It is true that this point does not appear from the notes of arguments to have been raised at the trial. It is not even raised in the memo randum of appeal. But it is open to an appellant to raise even at this hour the point that he does not fall within any of the categories in section 21 P. P. C.
Mr. Tufail Ali argued that the appellant abused his position as pay-bill clerk, since that was the office he held when he officiated, and since he took advantage of so officiating : but whether or not this is correct in fact or a law, the definition of the offence requires in our opinion that the accused must have been a public servant when he l obtained the pecuniary advantage, since the material words are "a public servant is said to commit criminal misconduct if he . . . obtains . . . . any pecuniary advantage." In our opinion therefore the prosecution failed to establish this ingredient in the offence under section 5 (1) (d) of the Pre vention of Corruption Act (II of 1947).
It is not necessary for us to go into the difficult question whether abuse of his p6sition as a public servant must be construed, in the case of those categories who are public servants by reference to their duties, as meaning that the abuse must have reference also to those same duties. Nor is it necessary to discuss the questions whether corrupt or illegal means must be limited to such means as also constitute abuse of position.
The learned judge ended his judgment as follows:
"I am thus convinced that the accused had dishonest intention in drawing the amount of his second bill Exh. 4-F. He has clearly defrauded the Government by obtaining Rs. 93-7-0 for the second time from the Treasury by abusing his official position. I therefore convict him for offence under section 5 (d) (2) of Act II of 1947 and sentence him to undergo R. I. for 9 months as 'B' class prisoner. I cannot convict him for offence under section 465 P. P. C. because there is no legal sanction for the said offence. In my opinion the above sentence would serve the ends of justice as the accused has subsequently paid back the defrauded amount."
There was therefore an express refusal to convict under section 465 P. P. C. but there is no such express order regarding section 420. In fact we have a finding of defrauding Government by obtaining Rs. 93-7-0 for the second time. The learned judge has contented himself with convicting under section 5 (1) (d) and there appears no reason (as there is where for instance an accused charged under section 302 P. P. C. is convicted under section 304 P. P. C.) for implying an acquittal except from the bare circumstance that the judge has omitted to convict. On the contrary it seems clear that had he convicted under section 420 P. P. C. It would have been doubtful whether he could impose a consecutive sentence as the abuse of position consisted in cheating. It is to be noted also that the punishments are the same.
We therefore consider that there was no acquittal under section 420 P. P. C and that it is competent for us as an Appellate Court to determine whether the accused committed the offence of cheating charged or abetment thereof.
Mr. Tufail Ali rightly pointed out that Government mentioned in the charge rust act through its officers, human agents. In our opinion, the agent deceived was the Assistant Commandant ; for he it was who was authorised to sanction the drawing of difference in pay. It was contended by Mr, Akhund that the accused's statement in his application to the Assistant Commandant that he had not been allowed to draw the difference in pay did not operate upon the mind of the Assistant Commandant : what operated was the certificate of the pay-bill clerk that the non-receipt of difference of pay had. been, verified from the monthly and other pay-bills. Evidence that there was a great number of pay bills has been put in, and it is possible that the pay-bills of clerks were not filed separately from pay-bills of others in. the Rifles. It is reasonably possible that Parmanand, the pay-bill clerk, acted negligently, and not in concert with the accused : the learned judge thought otherwise on the ground that Parmanand migrated to India : but this migration was in 1950, and the second payment was drawn in January 1948. Even so, however, the appellant's false statement was before the Assistant Commandant and it was intended to operate upon the Assistant Commandant's mind : that it did so seems clear because the Assistant Commandant referred the appli cation to the Head Clerk. We do not think that it ceased to operate, merely because it was supported by a certificate of verification. If, however, we are wrong in this view, yet the appellant is guilty of abetment. The false certificate (negligently given, it is assumed) of Parmanand, the pay-bill clerk was the result of the instigation provided by the accused's false statement : for even on the hypothesis of negligence of Parmanand the accused, who knew the routine in such matters, must have expected him to give a false certificate, and therefore the false statement amounted to an invitation to certify the truth of this statement. If then Parmanand lacked dishonest intention, but nevertheless deceived the Assistant Commandant, and thereby induced him to deliver (through the Treasury) money to the appellant, the appellant is guilty of abetment by application of the principle illustrated at illustration (d) to section 108 P. P. C.
We therefore partially admit the appeal. We set aside the conviction under section 5 (1) (d) of the Prevention of Corruption Act, and in lieu thereof convict the appellant under section 420 or section 109 read with section 420 P. P. C. and maintain the sentence of nine months' R. I.
After the above judgment had been prepared, Mr. Akhund filed a copy of the judgment of the Federal Court in Criminal Appeal 6 of 1952 (1), unreported, and prayed that this should be considered.
The facts in this case were that a S. I. P. was convicted by a Magistrate under sections 161 and 221 P. P; C. In appeal, the Sessions judge made certain observations on the merits applicable to both offences, which the Federal Court remarked were inextricable from each other, and then proceeded to say "I am not going into the details of the facts to discuss whether or not the appellant is guilty, because I find that sanction accorded by the Inspector-General of Police in this case for prosecution of the appellant is not a valid one." He found that the sanction was invalid. He then said : "I therefore set aside the conviction and (1) Not approved for reporting sentence passed by the lower Court, and order the acquittal of the appellant".
In revision, the Chief Court held that the Sessions Judge had through oversight, induced by pressure of work, not considered the conviction under section 221 but only the conviction under section 161 and, therefore, had not disposed of the appeal. The Chief Court considered that Magistrates had jurisdiction to deal with an offence under section 221 since the cognizance of that offence, unlike the offence under section 161, was not barred by absence of sanction. The Federal Court considered that the observations which the Sessions judge had made on the merits of the case were applicable to both offences and, therefore, the Sessions judge had by oversight mentioned conviction and sentence in the singular instead of the plural, and that not only the offence under section 161 but also the offence under section 221 had been in his contemplation when he ordered acquittal of the accused. The Federal Court also overruled the view of the Chief Court that jurisdiction to take cognizance of the offence under section 161 did not affect the jurisdiction of the Magistrate to try the appellant under the other charge.
We consider that this case is clearly distinguishable. We have pointed out above that the learned Judge held that the appellant had defrauded Government by obtaining Rs. 93-7-0 the second time, and it appears that the learned judge refrained from passing an order of conviction because the case, in his opinion, could be dealt with adequately under section 5 (1) (d).
A. H. Order accordingly.
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