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Criminal Appeal No. 29 of 1956, decided on 17th February 1956.
(On appeal from the judgment and order of the High Court of Judicature at Dacca in East Bengal, dated the 19th July 1955 in Criminal Appeal No. 476 of 1954).
Ss. 4 (4) and 5 (5)]‑"Cases relating to an offence" includes cases in which Police has not yet put up a report‑Sanction in such cases not necessary.
A case under section 409, P. P. C. in its preliminary stages remained pending before a Magistrate from 14th April 1953 up to 12th April 1954 when it was transferred to the Special Judge, Act XXXVII of 1953 having come into force in the meantime on 17th November 1953. A regular report under section 173, Cr. P. C. had been made by Police on 15th December 1953.
The contention on behalf of the accused was that his pro secution must be deemed to have commenced from the date on which the charge‑sheet was presented namely 15th December 1953. On that date, under the law in force, two requirements had to be fulfilled viz., that his case should have been sent to the Special Judge, and there should have been sanction of the Central Govern ment for his prosecution.
Held, that the proceedings before the Magistrate from the 54th April 1953 up to the 17th November 1953 must be regarded as constituting a case relating to the offence which had been alleged and was subsequently formally charged against the accused.
Subsection (4) of section 4 is not, by its terms, confined to actual cases of offences but extends to cases connected with or arising out of allegations of offences of the relevant kind, which interpretation follows from the use of the expression "cases relating to any offences" in the subsection.
Further, that no sanction for prosecution was necessary by virtue of provisions of section 5 (5) of the same Act.
Plea of-Must be raised early.
Excludes operation of corresponding provisions of Criminal final Procedure Code‑Sanction for prosecution‑Provisions in S. .5 (5) of Act exclude provisions of S. 197, Cr. P. C.
Subsection (5) of section 5 of the amended Act of 1948, which is a special Act, qua the Cr. P. C., which is the general Act, expressly excludes the operation of the corresponding provisions of the Code by the use of the words "notwithstanding anything contained in the Code of Criminal Procedure, 1898". If a case was proceeding in proper form before the Special Judge nothing in the Criminal P. C. (e.g. section 197) could be deemed to operate so as to affect its legality in the relevant respect.
A. S. M. Mofakher, Advocate, Federal Court, instructed by H. S. Huda, Attorney for Appellant.
A. F. M. Mesbahuddin, Advocate, Federal Court, instructed by Shahabuddin Ahmad, Attorney for Respondent.
Date of hearing : 15th February 1956.
This appeal by one Syed Mansur Ali is brought before this Court by special leave from his conviction under section 409, P. P. C. and sentence of imprisonment and fine, as modified in appeal by a Division Bench of the Dacca High Court.
The facts are simple and have been stated with clarity in the judgment under appeal. Syed Mansur Ali was employed as an Upper Division Clerk in the Office of the Regional Controller of Civil Aviation at Tejgaon, and was charged with criminal breach of trust, in respect of a total sum of just over Rs. 42,000, between the 11th October 1952 and 23rd February 1953. The modus operandi was that for the same amount, payable in each case to the Dacca Flying Club, the accused fraudulently drew bills twice but only paid the amount once to the Dacca Flying Club. In each case both bills were entered in the appropriate books, and the only variation from accuracy appears to have been that in the books, both the amounts drawn were shown as having been paid to the Dacca Flying Club, though in fact only one such payment was made in respect of each bill. These matters are established by evidence which it largely of a documentary nature, and the allegation made by the accused that he had paid the amount drawn on the duplicate dills to the several Regional Controllers of Civil Aviation under whom he had worked was on the face of it absurd. It was denied by each of these officers.
The arguments addressed to us in support of the appeal proceeded on technical grounds of law. The first argument was the familiar one in cases of this kind, namely that the requirement of sanction by the appropriate authority for the prosecution of the accused had not been satisfied. The judgment of the High Court makes no mention .of this matter, although it is stated in the grounds of appeal that the contention was raised before the learned Judges, and it is certainly mentioned in the grounds of appeal to the High Court. There is however a discussion of the matter in the judgment of the learned Special Judge who tried the case. The relevant facts are as follows :‑
The case was tried by a Special Judge under the pro. visions of the Pakistan Criminal Law (Amendment) Act, 1948, as amended by Act XXXVII of 1953, which came into force on the 17th November 1953. By virtue of the amendment, an offence of the. nature found in this case, committed by a public servant, is triable only by a Special Judge, and there is the further requirement that "the previous sanction of the appropriate Government shall be required for any prosecution under this Act". The accused was first brought before Magistrate on the 14th April 1953, and from that date until the 15th December 1953 when the charge‑sheet against him was presented by the police,, he appears to have been con tinuously detained in custody, being produced before the Magistrate from time to time for orders of remand. It was not until the 12th April 1954 that the case was sent to the Special Judge under the Act of 1948. The contention on behalf of the accused was that his prosecution must be deemed to have commenced from the date on which the charge‑sheet was presented namely 15th December 1953. On that date, under the law in force, two requirements had to be fulfilled viz., that his case should have been sent to the Special 'Judge, and there should have been sanction of the Central Government for his pro secution. The Crown urged in reply that the requirement of sanction was avoided in the particular case by the provisions of subsection (4) of section 4 of the Act of 1948, as amended by Act XXXVII of 1953. This contention was accepted by the learned Special Judge for the reasons contained in the passage quoted below : ‑
"This case was started on 14th April 1953 when the accused was produced before the S. D. O. The criminal law was set in motion against the accused Syed Munsur Ali when P. W. I Mr. M. R. Rizvi lodged the F. I. R. Exh. (1) at P. S. Tejgaon. The S. D. O. passed judicial orders from time to time after applying his judicial mind. So to all intents and purposes the case was pending before the S. D. O. on 17th November 1953 and stood automatically transferred to the Special Judge, having jurisdiction over such cases under subsection (4) of section 4 on 17th November 1953 when the Criminal Law Amendment Act, 1953 (XXXVII of 1953) came into force".
The learned Special Judge also found that by the further operation of subsection (5) of section 5, the need for previous sanction for the prosecution of the accused was avoided.
Mr. Mofakher has argued before us, with some force that there was no "case pending before a Court" against the accused until the 15th December 1953 when the charge‑sheet was presented. Until that time, investigation was proceeding which might have resulted in a report either favourable or unfavourable to the accused. In the former eventuality there would have no cash against the accused. Until the 15th December 1953, what was going on was not a proceeding in Court, but an investigation by the police, and all orders made by the Magistrate before whom the accused was produced from time to time, were orders made under statutory powers provided for the purpose of facilitating such investigations, and consequently rather in the nature of administrative powers than truly judicial powers. On that basis, he urged that there was no "case pending in any Court" against the accused on the 17th Nov ember 1953, which, by the operation of subsection (4) of section 4 of the amended Act of 1948, could be deemed to stand transferred to the Special Judge. Such a case only took shape on the 15th December 1953, and although it fell within the exclusive jurisdiction of the Special Judge, it could not proceed without appropriate sanction.
To this argument, the reply made on behalf of the Crown was that the words of subsection (4) of section 4 of the amended Act of 1948 cannot bear toe narrow construction for which the appellant contends but are intentionally of wider scope. The subsection reads as follows:‑
"All cases relating to any offences mentioned in the Second Schedule and pending in any Court other than the Court of a Special Judge immediately before the commencement of the Criminal Law Amendment Act, 1953, shall, on such commence ment, stand transferred to the Special ,fudge having jurisdiction over such cases".
It was urged that if the words had been "all cases of offences" the argument for the appellant might have received some support, but the words actually used, viz., "all cases relating to any offence" are clearly of much wider import than that for which the appellant contends. A case of bail in respect of an offence, prior to the initiation of proceedings for the trial of such offence would fall within the description of a "case relating to such offence". Consequently the proceedings before the Magistrate from April 1953 up to the 17th November 1953 must be regarded as constituting a case relating to the offence which had been alleged and was subsequently formally charged against him.
We agree with the latter interpretation of subsection (4), and have no hesitation in holding that that subsection is not, by its terms, confined to actual cases of offences but extends to cases connected with or arising out of allegations of offences of the relevant kind. This interpretation seems to us to follow from the 6 use of the expression "cases relating to any offences" in the subsection. We accordingly agree with the learned Special Judge although not for the reason which appealed to him, that the case against the accused must be deemed to have stood transferred to the Special Judge on the 17th November 1953 and that by the further operation of subsection (5) of section 5 of the same Act the necessity of sanction for the prosecution of the case was avoided.
Mr. Mofakher next contended that since his client was employed under the Central Government, sanction for his prosecution was required under section 197, Criminal P. C. The status of the appellant, viz, an Upper Division Clerk, does not suggest to our minds the likelihood that he was only removeable from his office by the Central Government, and if that were the case, we should have expected that the plea would have been raised earlier, so that the point of fact might have been settled in the course of the proceedings. But the stronger ground upon which this argument must be rejected is that subsection (5) of section 5 of the amended Act of 1948, which is clearly a special Act, qua the Criminal P. C. being the general Act, expressly excludes the operation of the corresponding provisions of the Code by the use of the words "notwithstanding anything contained in the Code of Criminal Procedure 1898". Consequently, if it be held that the case was proceeding in proper form before the Special Judge, nothing in the Criminal P. C. can be deemed to operate so as to affect its legality in the relevant respect.
For these reasons, we dismiss this appeal.
A.H. Appeal dismissed.
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