P L D 1955 Sind 431 (PLP)

TYABJI, C. J.‑This is a reference made by the Sessions Judge of Hyderabad, .Mr, Rahimbukhsh Shaikh, who has forwarded to this Court the record and proceedings in a case in which his predecessor Mr S. A. Advani, had, in an appeal, ordered the acquittal of Sub‑Inspector Ghulam Muhammad, the respondent before us, who had been convicted by the First Class Subordinate Judge and Special Magistrate at Hyderabad of offences under section 161 of the Pakistan Penal Code, read with section 3 of the Prevention of Corrup tion Act, and under section 221 of the Pakistan Penal Code. The material facts are as follow :‑ Sub‑Inspector, Ghulam Muhammad and Mounted Constable Ghulam Hussain, two Police Officers, were jointly tried by the First Class Subordinate Judge and Special Magistrate, Hyderabad, each being charged with two offences, (1) under section 161 of the Pakistan Penal Code read with section 3 of the Prevention of Corruption Act, 1947, and (2) under section 221 of the Pakistan Penal Code. Ghulam Hussain was acquitted while Ghulam Muhammad was convict ed and sentenced to three years rigorous imprisonment and a fine of Rs. 200 under section 161, and to two years rigorous im prisonment and a fine of Rs. 1,000 under section

221. Ghulam Muhammad appealed and the Sessions Judge, Mr. Advani passed an order acquitting Ghulam Muhammad on the 7th January, 1950, which was the last day of Mr. Advani's service, on which it appears he was very much pressed for time. The Magistrate clearly could not take cognizance of the offence under section 161 of the Pakistan Penal Code (read with section 3 of the Prevention of Corruption Act) without the requisite sanction. In the order giving the sanction it was merely stated : " Irk exercise of the power conferred by clause (c) of section 6 of the Prevention of Corruption Act, 1947, sanction is hereby accorded to the institution of proceed ings against S. I. P. Ghulam Muhammad of Shahdadpur for offences punishable under section 161 Indian Penal Code and under section (5) 3 of the Prevention of Corruption Act, 1947 " and there was no evidence before the Magistrate to show that the sanctioning authority had considered the facts, on which Ghulam Muhammad was to be prosecuted. The learned Judge held that the sanction given was not a valid one and that the prosecution of Ghulam Muhammad was, therefore, without jurisdiction. He stated in his judgment :‑ " I am not going into the details of the facts to discuss whether or not the appellant is guilty because I find that the sanction accorded by the Inspector‑General of Police in his case for t)rosecution of the appellant is not a valid one " and proceeded to ordoer ;‑ " Want of valid 4anction is defect in the jurisdiction of the Court which cold not take cognizance of the offence and therefore cannot be cured under section 537 Criminal Procedure Code. I therefore set aside the conviction and sentence passed by the Law Court and order the acquittal of the appellant ". This judgment wars brought to the notice of Mr. Rahim Bakhsh Shaikh the successor of Mr. Advani, when a similar question regarding the validity of the sanctions arose in some other cases, and it be came necessary for the learned Sessions Judge to consider Mr. Advani's judgment. Mr. Rahimbukhsh was of the view that his predecessor's decision, that the sanction in the case was not valid, was open to doubt, and he was further of the view that even if the conviction under section 161 of the Pakistan Penal Code (read with section 3 of the Prevention of Corruption Act) was illegal, the convic tion under section 221 of the Pakistan Penal Code, which did not require any sanction, was in any case valid. He consider ed that in order to prevent a manifest miscarriage of justice it was necessary for him to refer the case to this Court. He made it clear that he realised that where a person had been found to have been erroneously acquitted on an appeal, normally the proper course would be to leave it to the Government to appeal against the order of acquittal, but as he considered this to be a very serious case, he made the reference, relying upon the observation in Ndthu Mal v. Abdul Hag (31 Cr. L J 584). It is unnecessary for us to express any opinion on the question whether if the appeal had been completely disposed of by Mr. Advani it would have been proper for us to entertain such a reference by Mr. Advani's successor, on the ground that the decision of his predecessor was manifestly wrong and had resulted in a grave failure of justice, because we find that Mr. Advani had wholly omitted to deal with the convic tion of the respondent under section

221. After holding that the conviction under section 161 was bad, on the ground that the Court bad no jurisdiction to take cognizance of that offence, Mr. Advani did not proceed further to hold that the entire trial was therefore vitiated, and that the other conviction under section 221 was also bad. When he stated that he " set aside the conviction and sentence passed by the Lower Court ", he was clearly referring to the conviction and sentence passed under section

161. It is possible that the learned judge may have had an idea at the back of his mind that the want of jurisdiction to take cognizance of one of the two offences with which the accused was charged vitiated the entire trial. But he did not say so. His judgment left the conviction under section 221 wholly untouched. It 'appears to us that this omission by the learned judge to deal with the conviction under section 221, was an oversight, the result of the pressure of the work which he had to dispose of on that day. The fact remains that the conviction under section 221 remained undisposed of in the appeal, and the question before us is whether we should not now direct the Sessions Judge of Hyderabad to hear and dispose of the appeal against the conviction under section

221. Mr. Brohi, the learned advocate who appears on behalf of the respondent, argues that as the prosecution of the res pondent under section 161 was without jurisdiction, the whole trial was vitiated including the trial of the charge under section 221, that therefore the acquittal of the respondent should be regarded as necessarily involving an acquittal on both the charges, and Mr. Brohi relied upon the decision in Rudragouda Rachangouda Patil and others v. Emperor (A I R 1937 Bom. 160), Hsdayatullah and others v. Emperor (A I R 1933 Sind 161), H. A. M. New bould v. Emperor (A I R 1936 Lah. 781) and Emperor v. Fazal Rahman and others (A I R 1937 Pesh. 52). It is necessary to consider these cases. Hidayatullah and others v. Emperor (A I R 1933 Sind 161), was a case in which the three accused were charged with a conspiracy to commit an offence under section 409 Pakistan P. C., and hav ing committed offences under sections 477‑A and 477, read with section 109, in pursuance of the conspiracy. It was found that one of the offences committed by the third accused, who was the President of the Taluka Local Board, had been committed while that accused purported to act in the discharge of his official duties, and that the Magistrate who had tried the case could not take cognizance of that offence without the necessary sanction, under section 197 of the Criminal Procedure Code, which was not given. The learned Judges held that on account of this want of sanction the entire trial of all the offences against all the accused in the case, was bad Ferrets, J. C, stated :‑ " For these reasons we are of opinion that the Court could not take cognizance of the offences alleged in this charge without the previous sanction of the Local Government. Such sanction not having been obtained the sentence was not passed by a Court of competent jurisdiction within the meaning of section 537 and the proceedings are irre mediably irregular. It follows that we must annul the convictions and sentences ". and Rupchand A. J. C. stated :‑ " His conviction and sentence, as also the convictions and sentences of the other accused who were jointly tried with him cannot be maintained ". No authority was cited for the view taken by the learned judges. As that was a case of a conspiracy to commit an offence which, so far as its commission by the principal offender was concerned, was held to be not cognisable we are not concerned here with the correctness of that view it might be argued that the entire conspiracy was not cognizable. We wish to express no opinion on this point. The words used by the learned judges, however, are very wide and they clearly appear to have been of the view that, in a case where several accused were jointly tried on several charges, the want of jurisdiction to try any charge against any accused would vitiate the entire trial of all the offenders on all the charges. With this view, for which no reasons were stated, we are unable to agree. In Rudragouda Rachangouda Patil v. Emperor (A I R 1937 Bom. 160), the first accused was the President of a Taluka Local Board and had been convicted of two offences, under sections 409 and

466. The second accused, the sub‑overseer, had been convict ed on a charge under section 409 read with section

109. It was found that the prosecution of the first accused for the offence under section 466 I. P. C. required sanction under section 197 Cr. P. C. which had not been given. On this finding it was held that the entire trial of the two accused who had been jointly tried was bad, and all the convictions of both the accused were set aside. Sen, J. after recording the finding regarding the want of sanction in respect of one of the charges, as stated above, said :‑ " It therefore, becomes unnecessary, in our opinion, to examine the question whether the other act of accused 1 alleged to constitute an offence under section 409 was also done or purported to be done by him in the discharge of his official duty. It is clear from Queen Empress v. A. Morton (I L R 9 Bom. 288) as well as from the principle enunci ated in Subrahmania Ayyar v. Emperor (I L R 25 Mad. 61) that where the Court has acted without jurisdiction with regard to a part of the trial, the whole proceedings are vitiated by the illegality committed and that any conviction based on such proceedings cannot stand. This principle would apply not only to the trial of accused 1 under section 409 but also to the trial of accused 2 in the present case " " I agree, therefore, that sanction was necessary to the trial of accused 1 on the charge of forgery at any rate, and that no sanction having been obtain the whole trial must be considered to be invalid ". No further reasons were stated. A reference to the two cases relied upon by Sen, J., to which I will next refer, will, however, show that there is nothing whatever in those cases which supports the view taken by the learned judges. In Queen‑Empress v. A. Morton & Moorteza Ali (I L R 9 Bom. 288), a very old case (of 1885) under the old Code, the facts were these. Accused Morton was a European Officer in the Nizam's State Railway at Secunderabad and, under the law as it then was, the case against him had, to be committed to the High Court of Bombay. Accused Moorteza, the chief clerk, was jointly con cerned with Morton in the offence and, under the law as it then was, could also be committed to the Bombay High Court along with Morton. Morton however could not be pro secuted without the necessary sanction under section 197 of the Criminal Procedure Code. He had been committed without any sanction, the sanction having been given after the case had been committed. The Full Bench took the view that the fact that the sanction had been given not before but after the case had been committed was a mere irregularity, and they left it to the Sessions Court to find whether the irregularity had resulted in any prejudice, and, in case it so found, to quash the commitment. In the order passed by the Full Bench Sargent, C. J, stated :‑ " If he decides to proceed with the trial of prisoner No. 1, then the second prisoner Moorteza Ali may also be tried, but if the commitment of Morton be quashed the commitment of Moorteza Ali must be quashed also ". As Moorteza Ali was not a European and was a resident of Secunderabad he could obviously not be committed by himself to the Bombay High Court. In Subrahmania Ayyar v. King‑Emperor (I L R 25 Mad. 61), the accused had been charged with not less than forty‑one acts extending over a period of two years in contravention of section 234 of the Criminal Procedure Code. The Privy Council pointed out that the trial in the case had been conducted in a manner which was prohibited, in disobedience to an express provision as to the mode of the trial, and held that the defect could not be regarded as a mere irregularity. This decision clearly only applies to cases in which the provisions relating to the joinder of charges were contravened. Their Lordships pointed out that the illegality in such a case was of the same kind as where in a civil suit several causes of action were illegally joined and the constitution of the suit was not authorised by the Rules of Civil Procedure. In Newbould v. Emperor (A I R 1936 Lah. 781), Newbould, the Postmaster, and Jamnadas, the Post Office Treasurer, were jointly tried each for three offences either under section 409 or under section 409 read with section

109. It was found that New bould had been prosecuted without the sanction required under section 197 of the Criminal Procedure Code. The learned Judge stated in that case :‑ " On behalf of Jamnadas it is urged that if the trial as regards Newbould is illegal for want of proper sanction, the whole trial is vitiated and this must is conceded by the learned Government Advocate ", and " The failure to obtain a valid sanction vitiates the whole trial ". Here again no reasons were stated for the view expressed. In Emperor v. Fazal Rahman and others (A I R 1937 Pesh. 52), accused Ayub Shah was tried on three charges under section 420 of the Indian Penal Code and the two other accused, Fazal Rahman and Ghulam Mustafa who were tried jointly with Ayub Shah, were charged with having abetted those offences. Fazal Rahman was a Sub‑Inspector in the Excise Department and his prosecution was found to be without the sanction required under section 197 of the Criminal Procedure Code, The learned judges (Middleton, J. C. and Almond A. J. C,) ielied on section 530 of the Criminal Procedure Code, and held that the entire trial, of all the charges against all the accused in the case, was bad. They said :‑ " Section 530 (p), Criminal Procedure Code lays down that if any Magistrate not being empowered by law in this behalf tries an offender his proceedings shall be void. We have already found that the trial Magistrate was not empowered to try Fazal Rahman and hence it follows that his proceedings were void. Learned Counsel for the Crown urges that the proceedings are only void in respect of Fazal Rahman. We are unable to accept this view. The word " proceedings " is not defined in the Code, but is frequently used therein and, from the nature of its use throughout the Code, we are satisfied that in connection with a trial it includes the whole bundle of actions taken and recorded by the Court from the moment of taking cognizance of the case " until its disposal". We are unable to differentiate the proceedings ' in a joint trial into separate proceedings' against each accused person and we agree with the lower appellate Court that the whole trial against all three accused was without jurisdiction as the trial Magistrate was not empowered to take cogni zance in it ". With respect, we are unable to agree with this construction of the meaning of the word " proceedings " in section

530. If a third class Magistrate were to convict an accused person under section 323 of the Penal Code and also demand security from him to keep peace, the proceeding relating to the demand of security to keep the peace would undoubtedly be void under section 530 (c) of the Criminal Procedure Code, but not the trial and conviction under section 323 of the Penal Code. Further, the Criminal Procedure Code clearly lays down (Cf. section 233) that for every distinct offence of which any person is accused there shall be a separate charge and that every such charge shall be tried separately, except in the cases where a joinder of charges is permitted by the Code. We think, therefore, that the trial of every distinct offence of which every accused person is charged must necessarily be regarded as a distinct and separate proceeding, in every case; just as much as the trial of every issue in every suit is a distinct and separate proceeding. We agree with the view taken in Awadh Singh and others v. Emperor (A I R 1947 Pat. 23) on the question before us. In that case five persons had been tried together each of an offence under section 420 read with section 34, and also of an offence under section 366 read with section

34. The Magistrate convicted three of the accused and acquitted the other two ; and passed sentences under section 420 against each of the three accused convicted. He did not consider it necessary to pass any additional sentences under section

366. The convicts appealed and argued that as their trial by the Magistrate on charges under section 366, which was exclusively triable by a Sessions Court, was without jurisdiction, the whole trial was bad by reason of section 530 (p) of the Criminal Procedure Code. Bennet J. after setting out the material words of section 530 (p) stated: " In my opinion, the ordinary, plain and grammatical meaning of those words is inconsistent with the contention put forward on behalf of the two petitioners. The word `proceedings' where used in a statute dealing with legal procedure ordinarily means a step in ail action or a trial, and in their contest here the words ` his proceedings ' must, I think, be taken to refer to what has gone before, that is to say, to the proceedings in respect of which the Magistrate was not empowered by law, and are not in their plain and ordinary meaning to be construed as embracing any other proceeding or proceedings. On this view, there fore, they would refer to the conviction under section 366. but not to the conviction under section 420, Penal Code ". and " Where a person is properly charged with two separate offences in one trial, his conviction upon each must cons titute a separate conviction, and there seems no reason in principle why the invalidity of one conviction upon grounds which affect that conviction alone should affect or invalidate the other conviction . He also rejected the argument that the joinder of two charges one of which was in respect of an offence which the Court had no jurisdiction to try constituted a misjoinder. Bennet J. stated : that this " contention appears to me to rest upon a misconception. The charges were properly joined, but the learned Magistrate had no jurisdiction to try one of them. That is not a case of misjoinder at all ". We find ourselves in entire agreement with the view expressed in this case. There is no doubt that in view of .the decision of the Privy Council in Gokulchand Dwarkadas Morarka v. The King (50 Bom. L R 399.), Mr. Advani decided rightly in holding that the sanction in this case was bad, that the Magistrate therefore had no jurisdiction to take cognizance of the offence under section 161, and that the conviction under that section had A to be set aside. This decision however does not affect the legality of the trial of the respondent on the charge under section

221. We accordingly, send this case back to the Sessions Court of Hyderabad with a direction 'that the appeal against the conviction of the respondent under section 221 of the Pakistan Penal Code, which has not yet been disposed of, be heard and disposed of in accordance with the law, and in accordance with the observations which have been made above. A. H. Case sent back.