judgement:
iminal Appeal No. 25 of 1954.
Appeal under Article 134(1) (c) of the Constitution from the judgment and order dated the 12th January 1954 of the Patna High Court in Criminal Miscellaneous Case No. 10 of 1953.
M. C. Setalvad, Attorney General of India and Mahabir Prasad, Advocate General of Bihar (Balbhadra Prasad Sinha and P. G. Gokhale, with them) for the appellant.
Purshottam Prikamdas, (R. Patnaik, with him) for the respondent.
November 8.
The Judgment of the Court was delivered by BHAGWATI J.
This appeal with certificate under article 134(1)(c) of the Constitution arises out of an application under section 2 of the Contempt of Courts 121 956 Act (XXXII of 1952) and section 8 of the (XXXVII of 1850) read with article 227 of the Constitution filed by the respondent against the appellant in the High Court of Judicature at Patna and raises an important question as to whether the Commissioner appointed under Act XXXVII of 1850 is a Court.
The respondent is a Member of the Bihar Civil Service (Executive Branch).
The State Government received reports to the effect that the respondent bad been guilty of serious misconduct and corrupt practices in the discharge of his official duties while employed as Sub Divisional Officer at Aurangabad and they accordinly decided that an inquiry into the truth of.
the various charges against him should be made under the provisions of the (Act XXXVII of 1850, hereinafter referred to as the Act) and Mr. Anjani Kumar Saran who was the then Additional District and Sessions Judge, Gaya, and was thereafter the District and Sessions Judge of that place was appointed Commissioner under the Act for making the inquiry.
Gaya was fixed as the venue of the inquiry and the State Government also ordered that, during the pendency of the inquiry, the respondent will remain under suspension.
The Government made the appointment aforesaid after obtaining the concurrence of the High Court on its administrative side which was obtained on the condition that an extra temporary post of Additional District and Sessions Judge was created by the Government for the period Mr. Saran was occupied with the inquiry.
The appointment was made on the 2nd June 1952 and it was expected that Mr. Saran would be able to complete the inquiry during a period of three months.
The respondent, however, adopted dilatory tactics.
He made various representations to the Government, one on the 6th June 1952 demanding that a Judge of the High Court be appointed as Commissioner under the Act to make the inquiry against him and that inquiry be made at Patna and not at Gaya, another on the 10th July 1952 protesting against the appointment of Mr. Saran 957 as Commissioner to hold the inquiry against him and demanding that a ' confirmed District and Sessions Judge be appointed as Commissioner in his place, and ' a third on the 17th November 1952 in which he requested the Government to appoint three Commissioners instead of one for holding the inquiry against him and also to pay the entire cost of his defence at the same rates at which the Special Public Prosecutor engaged by the Government was being paid and also to reimburse other incidental expenses to be incurred by him.
All these representations were turned down by the Government.
Being thus thwarted in his attempts to put off the inquiry on some pretext or the other, the respondent tried to evade the same and failed and neglected to reply to the queries made from him by the Commissioner.
The Commissioner also could not communicate to him the orders passed by him from time to time because the respondent did not stay at the headquarters and did not leave his proper address for communication either at Gaya or at Motihari.
On the 24th November 1952 the Commissioner passed an order calling upon the parties to attend the hearing of the proceedings before him on the 8th December 1952 and forwarded a copy of this order to the appellant for communication to the respondent.
The District Magistrates of Champaran and Gaya who were requested to serve a true copy of the order upon the respondent could not do so as he was available neither at Motihari nor at Gaya and it was with great difficulty that he could be traced at Patna and the order served upon him.
On the 18th December 1952, the Commissioner passed another order recording that he was feeling great difficulty in contacting the respondent and in communicating his orders to him.
He observed that this was a highly undesirable state of affairs and that it was necessary that his orders should be communicated to the res pondent as early as possible.
A copy of this order was forwarded by the Commissioner to the appellant along with his letter dated the 20th December 1952 for information and doing the needful.
The appellant thereafter wrote the letter complained against to 958 the Commissioner on the 26th December 1952 being D.O. No. II/3C 306/52A 11614 which ran as under: "Dear Mr. Saran, I am desired to refer to your memo No. 8266 dated the 26th November 1952 and to say that Government are anxious not to allow Mr. Jyoti Narayan to adopt dilatory tactics and delay the progress of the inquiry against him.
I am to request you to be vigilant against such tactics adopted by Mr. Narayan.
Yours sincerely, (Sd.) B. N. Sinha".
The Commissioner acknowledged receipt of this letter by his D.O. letter No. 244, dated the 5th January 1953 stating that he would not allow the respondent to adopt any dilatory tactics and delay the progress of the inquiry against him.
On the 2nd February 1953, the respondent filed a petition before the Commissioner stating inter alia that he had not been able to engage any lawyer or counsel for want of necessary papers and copies and prayed for an adjournment of the inquiry.
He also prayed for starting a contempt of Court proceeding against the appellant but the Commissioner rejected both his prayers.
The order which was passed by the Commissioner on these applications may as well be set out in extenso inasmuch as it has a bearing on the question whether the appellant was guilty of contempt of Court for having addressed the letter complained against to him: "3 2 53.
Another point raised in the first petition of the accused was that Mr. B.N. Sinha, Deputy Secretary to Government in addressing his D.O. letter No. 11614, dated the 26th of December, 1952, was guilty of contempt, because he had interfered in my judicial discretion.
I do not find anything in this letter from which it can be inferred that the author of the letter intended to influence me in the exercise of my judicial function.
This letter was sent to me in reply to my memo No. 8266 dated 26 11 1952 whereby I had forwarded a copy of my order dated 24 11 1952 for communication to Mr. Narayan.
Mr. 959 B.N. Sinha wrote in his letter dated the 26th of December 1952 that Government are anxious not to allow Mr. Jyoti Narayan to adopt dilatory tactics and to delay the progress of the inquiry.
Now it is to be noted that Mr. Narayan in paragraph 11 of his petition has himself charged the State Government for delaying the inquiry and thereby causing harassment to him.
Therefore, it is obvious that both parties, that is, the State and the accused are anxious that the inquiry should be expedited so what Mr. B.N. Sinha meant by writing the D.O. was that the inquiry should be expedited.
This cannot by any stretch of imagination be construed to mean that the aforesaid officer in any way tried to influence me in the discharge of my judicial functions.
For these reasons I rejected the two prayers contained in the first petition of Mr. J. Narayan".
The respondent thereafter started proceedings in, contempt against the appellant in the High Court of Judicature at Patna.
A Rule was issued by the High Court against the appellant which was heard and finally disposed of on the 12th June 1954.
The High Court was of the opinion that the Commissioner appointed under Act XXXVII of 1850 was a Court, that the Court was subordinate to the High Court, that the letter complained against amounted to a contempt of Court and that the appellant was guilty of such contempt.
It accordingly sentenced the appellant to pay a fine of Rs. 250 and in default to undergo simple imprisonment for a period of one month.
The appellant obtained a Certificate under Article 134(1), (e) of the Constitution from the High Court.
The Certificate was, however, limited to the question as to whether the Commissioner appointed under the Act is a Court.
At the hearing before us, the appellant filed a petition for urging additional grounds which included inter alia the ground that the High Court erred in holding that the Commissioner appointed under the Act is a Court subordinate to the High Court within the meaning of the for the mere reason that its orders are open to be reviewed 960 judicially in exercise of the power vested in the High Court under article 227 of the Constitution and also the ground that the High Court erred in holding that the letter complained against tended to interfere with or obstruct the course of justice and constituted contempt of Court.
The learned Attorney General for the appellant contended in the first instance that the Commissioner appointed under the Act is not a Court.
He next contended that even if he is a Court, he is not a Court subordinate to the High Court within the meaning of the .
He lastly contended that the letter complained against did not tend to interfere with or obstruct the course of justice and did not constitute contempt of Court.
Prior to the enactment of the , there was in existence in India the Contempt of Courts Act, 1926 (XII of 1926).
The various States also had their corresponding enactments.
The Contempt of Courts Act, 1926 (XII of 1926) and the corresponding enactments in the States of Hyderabad, Madhya Bharat, Mysore, Pepsu, Rajasthan and Travancore Cochin and the Saurashtra Ordinance II of 1948 were repealed by the and a uniform Act to define and limit the powers of certain Courts in punishing contempts of Courts was enacted which extended to the whole of India except the State of Jammu and Kashmir.
In section 2 of the Act, "High Court" was defined as meaning the High Court for a Part A State or a Part B State and including the Court of the Judicial Commissioner in a Part C State.
Section 3 of the Act enacted: "3.
(1) Subject to the provisions of sub section (2) every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of Courts subordinate to it as it has and exercises in respect of contempts of itself.
(2) No High Court shall take cognisance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an 961 offence punishable under the Indian Penal Code (Act XLV of 1860)".
The word "Court" was not defined in the Act and ' the expression "Courts subordinate to the High Courts" would prima facie mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purpose of administration of justice throughout the Union.
It would be relevant, however, to notice the definitions of "Court" available elsewhere.
Coke on Littleton and Stroud defined the word "Court" as the place where justice is judicially administered.
According to Stephen, "In every Court, there must be at least three constituent parts the actor, reus and judex; the actor or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, and to determine the law arising upon that fact, and if any injury appears to have been done, to ascertain, and by its officers to apply, the remedy".
Section 3 of the Indian Evidence Act (I of 1872) defines "Court" as including all Judges and Magistrates, and all persons, except arbitrators.
legally authorised to take evidence.
This definition, however, has been held to be not exhaustive but framed only for the purpose of Indian Evidence Act and is not to be extended where such an extension is not warranted.
Sections 19 and 20 of the Indian Penal Code (Act XLV of 1860) define the words "Court" and the "Court of Justice" as under: "Section 19.
The word 'Judge ' denotes not only every person who is officially designated.
as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against would be definitive, or a judgment which, if confirmed by some other authority would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
962 Section 20.
The words "Court of Justice" denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially".
The pronouncement of a definitive judgment is thus considered the essential sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a Court.
The Privy Council in the case of Shell Co. of Australia vs Fedral Commissioner of Taxation(1) thus defined "Judicial Power" at page 295: "Is this right? What is "judicial power"? Their Lordships are of opinion that one of the best definitions is that given by Griffith, C. J. in Huddart, Parker & Co. vs Moorehead(2) where he says: "I am of opinion that the words judicial power ' as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.
The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action".
Their Lordships further enumerated at page 297 certain negative propositions in relation to this subject: "1.
A tribunal is not necessarily a Court in this strict sense because it gives a final decision; 2.
Nor because it hears witnesses on oath; 3.
Nor because two or more contending parties appear before it between whom it has to decide; 4.
Nor because it gives decisions which affect the rights of subjects; 5.
Nor because there is an appeal to a Court; 6.
Nor because it is a body to which a matter is referred by another body.
See Rex vs Electricity Commissioners(3)" (1) (2) ; , 357.
(3) 963 and observed at page 298: "An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so called.
Mere externals do not make a direction to an administrative officer by an ad hoc tribunal an exercise by a Court of Judicial power".
The same principle was reiterated by this Court in Bharat Bank Limited vs Employees of Bharat Bank Ltd.(1) and Maqbool Hussain vs The State of Bombay(1) where the test of a judicial tribunal as laid down in a passage from Cooper vs Wilson(1) was adopted by this Court: "A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: (I) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and, often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal arguments by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law".
Maqbool Hussain 's case, above referred to, was followed by this Court in section A. Venkataraman vs The Union of India and, Another(4) where a Constitution Bench of this Court also laid down that both finality and authoritativeness were the essential tests of a judicial pronouncement.
It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are (1) ; (2) (1953] S.C.R. 730.
(3) , 340.
(4) ; 122 964 the essential tests of a judicial pronouncement.
It was, however, urged by Shri Purshottam Tircamdas for the respondent that the word "Court" should not be limited to a Court of Justice or a Court of law but should be construed in a wide sense, including within the connotation, other Courts which, though not Courts of Justice, were nevertheless Courts according to law and be relied upon a decision of the Court of Appeal in England in Royal Aquarium and Summer and Winter Garden Society Ltd. vs Parkinson(1) and the observations of Fry, L.J. at page 446 therein: "I do not desire to attempt any definition of a "court".
It is obvious that, according to our law, a court may perform various functions.
Parliament is a court.
Its duties as a whole are deliberative and legislative: the duties of a part of it only are judicial.
It is nevertheless a court.
There are many other courts which, though not Courts of Justice, are nevertheless courts according to our law.
There are, for instance, courts of investigation, like the coroner 's court.
In my judgment, therefore, the existence of the immunity claimed does not depend upon the question whether the subject matter of consideration is a Court of Justice, but whether it is a Court in law.
Wherever you find a Court in law, to that the law attaches certain privileges, among which is the immunity in question".
The question involved in that case was whether the defendant was entitled to absolute immunity from action for anything done by him while performing his duty as a member of the County Council in dealing with the applications for licences for music and dancing.
It was contended on behalf of the defendant that he was exercising a judicial function when he spoke the words complained of and therefore was entitled to absolute immunity in respect of anything he said.
The argument that "wherever you find a Court in law, to that the law attaches certain privileges among which is the immunity in question" was used on behalf of the defendant and Fry, L. J. dealt with the same as under at page 447: 965 "It was said that the existence of this immunity is based on considerations of public policy, and that, as a matter of public policy, wherever a body has to decide questions, and in so doing has to act judicially, it must be held that there is a judicial proceeding to which this immunity ought to attach.
It seems to me that the sense in which the word "judicial" is used in that argument is this: it is used as meaning that the proceedings are such as ought to be conducted with the fairness and impartiality which characterize proceedings in Courts of Justice, and are proper to the functions of a judge, not that the members of the supposed body are members of a Court.
Consider to what lengths the doctrine would extend, if this immunity were applied to every body which is bound to decide judicially in the sense of deciding fairly and impartially.
It would apply to assessment committees, boards of guardians, to the Inns of Court when considering the conduct of one of their members, to the General Medical Council when considering questions affecting the position of a medical man, and to all arbitrators.
Is it necessary, on grounds of public policy, that the doctrine of immunity should be carried as far as this? I say not.
I say that there is ample protection afforded in such cases by the ordinary law of privilege.
I find no necessity or propriety in carrying the doctrine so far as this argument requires".
Lord Esher, M. R. expressed himself as follows while dealing with this argument at page 442: "It is true that, in respect of statements made in the course of proceedings before a Court of Justice, whether by judge, or counsel, or witnesses, there is an absolute immunity from liability to an action.
The ground of that rule is public policy.
It is applicable to all kinds of Courts of Justice; but the doctrine has been carried further; and it seems that this immunity applies wherever there is an authorized inquiry which, though not before a Court of Justice, is before a tribunal which has similar attributes.
In the case of Dawkins vs Lord Rokeby(1) the doctrine was extended (1) L.R. 8 Q.B. 255; , 966 to a military court of inquiry.
It was so extended on the ground that the case was one of an authorized inquiry before a tribunal acting judicially, that is to say, in a manner as nearly as possible similar to that in which a Court of Justice acts in respect of an inquiry before it.
This doctrine has never been extended further than to Courts of Justice and tribunals acting in a manner similar to that in which such Courts act.
Then can it be said that a meeting of the county council, when engaged in considering applications for licences for music and dancing, is such a tribunal? It is difficult to say who are to be considered as judges acting judicially in such a case".
The case of Dawkins vs Lord Rokeby(1) was a case where immunity was claimed by a witness who had given evidence before a military Court of inquiry.
The case went to the House of Lords and the Lord Chancellor, in his speech at page 754, in observed: "Now, my Lords, adopting the expressions of the learned Judges with regard to what I take to be the settled law as to the protection of witnesses in judicial proceedings, I certainly am of opinion that upon all principles, and certainly upon all considerations of convenience and of public policy, the same protection which is extended to a witness in a judicial proceeding who has been examined on oath ought to be extended, and must be extended, to a military man who is called before a Court of Inquiry of this kind for the purpose of testifying there upon a matter of military discipline connected with the army".
Both these cases, the one before the Court of Appeal and the other before the House of Lords, were concerned with the extension of the principle of immunity of members of a tribunal or witnesses in judicial proceedings and the Courts logically extended the principle of immunity beyond the Courts of Justice to tribunals or bodies of persons functioning in a manner and according to procedure which was assimilated to a judicial inquiry.
The extension of the (1) L.R. 8 Q.B. 255; 967 immunity to such tribunals or bodies would not, however, constitute them Courts of Justice or Courts of law.
The position is thus summarised in the following passage in Halsbury 's Laws of England, Hailsham Edition, Volume 8, page 526: "Many bodies are not courts, although they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as assessment committees, guardians committees,, the Court of referees constituted under the Unemployment Insurance Acts to decide claims made on the insurance funds, the benchers of the Inns of Court when con sidering the conduct of one of their members, the General Medical Council, when considering questions affecting the position of a medical man".
We must, therefore, fall back upon the tests laid down above for determining what is a Court strictly so called within the connotation of the term as used in the .
It would be appropriate at this stage to note the relevant provisions of the (XXXVII of 1850) which would fall to be considered for determining whether the Commissioner appointed under the Act is a Court or not.
The Act was passed for regulating inquiries into the behaviour of public servants and the preamble runs: "Whereas it is expedient to amend the law for regulating inquiries into the behaviour of public servants not removable from their appointments without the sanction of Government, and to make the same uniform throughout India; It is enacted as follows: " Section 2 requires the articles of charges to be drawn out and a formal and public inquiry to be ordered whenever the Government shall be of opinion that there are good grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour by any such person.
The inquiry may be committed under section 3 either to the Court, 968 Board or other authorities to which the person accused is subordinate or to any other person or persons specially appointed by the Government, Commissioners for the purpose.
Sections 4 to 7 contain provisions in regard to the conduct of the prosecution and section 8 prescribes the powers of the Commissioners.
This section has been particularly relied upon as constituting the Commissioners a Court, and runs as under: "Section 8.
The commissioners shall have the same power of punishing contempts and obstructions to their proceedings, as is given to Civil and Criminal Courts by the Code of Criminal Procedure, 1898, and shall have the same powers for the summons of witnesses, and for compelling the production of documents, and for the discharge of their duty under the commission, and shall be entitled to the same protection as the Zila and City Judges, except that all process to cause the attendance of witnesses or other compulsory process, shall be served through and executed by the Zila or City Judge in whose jurisdiction the witness or other person resides, on whom the process is to be served, and if he resides within Calcutta, Madras or Bombay, then through the Supreme Court of Judicature thereto.
When the commission has been issued to a Court, or other person or persons having power to issue such process in the exercise of their ordinary authority, they may also use all such power for the purposes of the commission".
Section 9 prescribes a penalty for disobedience to process issued as aforesaid for the purpose of the commission and sections 10 to 20 prescribe the procedure to be followed in the conduct of the inquiry.
It ,may be noted that this procedure is assimilated as far as possible to the conduct of a prosecution in a Criminal Court of law and the person accused is given the fullest opportunity to enter upon his defence and lead evidence in order to clear himself of the charges levelled against him.
Sections 21 and 22 lay down the functions of the Commissioners in regard to the report to be made by them to the Government of their proceedings under the commission and the powers of 969 the Government to pass final orders on such reports.
These sections have an important bearing on the question before us and they enact: "Section 21.
After the close of the inquiry the commissioners shall forthwith report to Government their proceedings under the commission, and shall send with the record thereof their opinion upon each of the articles of charge separately, with such observations as they think fit on the whole case.
Section 22.
The Government, on consideration of the report of the commissioners, may order them to take further evidence, or give further explanation of their opinions.
It many also order additional articles of charge to be framed, in which case the inquiry into the truth of such additional articles shall be made in the same manner as is herein directed with respect to the original charges.
When special commissioners have been appointed, the Government may also, if it thinks fit, refer the report of the commissioners to the Court or other authority to which the person accused is subordinate, for their opinion on the case; and will finally pass such orders thereon as appear just and consistent with its powers in such cases".
These provisions were considered by this Court in the case of S.A. Venkataraman vs The Union of India and Another(1).
The question that arose for consideration there, was whether an inquiry made and concluded under the Act amounted to prosecution and punishment for an offence as contemplated under article 20(2) of the Constitution.
Articles of charge bad been framed against the petitioner in that case and evidence had been led both by the prosecutor and by the defence and witnesses on both sides were examined on oath and cross examined and re examined in the usual manner.
The Commissioner bad found, on a consideration of the evidence, that some of the charges had been proved against the petitioner and had submitted a report to that effect to the Government.
The President had accepted the opinion of the Commissioner and, in view of the findings on (1) ; 970 the several charges arrived at by the latter, was pro visionally of the opinion that the petitioner should be dismissed.
Opportunity was given to the petitioner under Article 311(2) of the Constitution to show cause against the action proposed to be taken in regard to him and after considering his representation and after consultation with the Union Public Service Commission, the President finally decided to impose the penalty of dismissal upon him and he was accordingly dismissed.
After his dismissal, the police submitted a charge sheet against him before the Special Judge, Sessions Court, Delhi, charging him with offences under sections 161 and 165 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act and upon that summons were issued by the learned Judge directing the petitioner to appear before his Court.
The petitioner thereupon challenged the legality of this proceeding in a writ petition contending, that the proceedings were without jurisdiction inasmuch as they amounted to a fresh prosecu tion, for offences for which he had been prosecuted and punished already.
While considering whether under the circumstances there had been a violation of the fundamental right of the petitioner under Article 20(2) of the Constitution, this Court, scrutinised the provisions of the Act and the position of the Commissioner appointed, thereunder.
Justice Mukherjea, as he then was, delivered the judgment of the Court and observed at page 1159: "As the law stands at present, the only purpose, for which an enquiry under Act XXXVII ' of 1850 could be made, is to help the Government to come to a definite conclusion regarding the misbehaviour of a public servant and thus enable it to determine provisionally the punishment which should be imposed upon him, prior to giving him a reasonable opportunity of showing cause, as is required under article 311(2) of the Constitution.
An enquiry under this Act is not at all compulsory and it is quite open to the Government to adopt any other method if it so chooses.
It is a matter of convenience merely and 971 nothing else.
It is against this background that we will have to examine the material provisions of the of 1850 and see whether from the nature and result of the enquiry which the Act contemplates it is at all possible to say that the proceedings taken or concluded under the Act amount to prosecution and punishment for a criminal offence."; and at page 1160: "A Commissioner appointed under this Act has no duty to investigate any offence which is punishable under the Indian Penal Code or the Prevention of Corruption Act and he has absolutely no jurisdiction to do so.
The subject matter of investigation by him is the truth or otherwise of the imputation of misbehaviour made against a public servant and it is only as instances of misbehaviour that the several articles of charge are investigated, upon which disciplinary action might be taken by the Government if it so chooses.
The mere fact that the word "prosecution" has been used, would not make the proceeding before the Commissioner one for prosecution of an offence.
As the Commissioner has to form his opinion upon legal evidence, be has been given the power to summon witnesses, administer oath to them and also to compel production of relevant documents.
These may be some of the trappings of a judicial tribunal, but they cannot make the proceeding anything more than a mere fact finding enquiry.
This is conclusively established by the provisions of sections 21 and 22 of the Act.
At the close of the enquiry, the Commissioner has to submit a report to the Government regarding his finding on each one of the charges made.
This is a mere expression of opinion and it lacks both finality and authoritativeness which are the essential tests of a judicial pronouncement.
The opinion is not even binding on the Government.
Under section 22 of the Act, the Government can, after receipt of the report, call upon the Commissioner to take further evidence or give further explanation of his opinion.
When Special Commissioners are appointed, their report could be referred to the court or other authority 123 972 to which the officer concerned is subordinate for further advice and after taking the opinion of the different authorities and persons, the Government has to decide finally what action it should take".
The Court was no doubt concerned in that case with finding whether the inquiry before the Commissioner was tantamount to a prosecution of the petitioner.
While considering the same, however, the position of the Commissioner was discussed and the conclusion to which the Court came was that he was a mere fact finding authority, that the report made by the Commissioner to the Government was merely his expression of opinion and it lacked both finality and auth oritativeness which are the essential tests of a judicial pronouncement.
This conclusion is sufficient to establish that the Commissioner appointed under the Act was not a Court and his report or findings were not a definitive judgment or a judicial pronouncement inasmuch as they were not binding and authoritative and lacked finality.
We are also of the same opinion.
Apart from the above considerations which weighed with the Court in that case, we have also the provisions of section 8 of the Act itself which go to show that the Commissioners are given certain powers 'of the Civil and Military Courts in regard to punishing contempts and obstruction to their proceedings, summoning of witnesses, compelling the production of documents and for service of their process as also the same protection as Zila and City Judges.
The very fact that this provision had got to be enacted shows that the position of the Commissioners was not assimilated to that of Judges and that they did not constitute Courts of Justice or Courts of law but were mere fact finding tribunals deriving whatever powers they could exercise under the very terms of the Act which created them.
The power of punishing contempts and obstruction to their, proceedings as is given to Civil and Criminal Courts by the Code of Criminal Procedure, 1898 was also similar in its nature and the very nature and extent of the power indicated that they were not Courts in the ordinary sense of the term.
No such provision would have been 973 uted Courts of Justice or Courts of law and it is no argument to say that these provisions were enacted even though they were not strictly necessary merely for the sake of abundant caution or clarification of the position.
We are of the opinion that the Commissioner appointed under the Act, having regard to the circumstances above set out, does not constitute a Court within the meaning of the term as used in the .
Our attention was, however, drawn by, Shri Purshottam Tricamdas to a decision of a Division Bench of the Punjab High Court in Kapur Singh vs Jagat Narain(1).
That was a case directly in point and on all fours with the case before us.
The learned Chief Justice of the Punjab High Court bad been appointed a Commissioner under the Act in the matter of an inquiry against Sardar Kapur Singh, I.C.S., and Lala Jagat Narain, the editor, printer and publisher of ail Urdu Daily newspaper published at Jullundur called The Hindu Samachar, was called upon to show cause why he should not be punished under section 3 of with regard to a leading article which appeared in his name in the issue of the paper dated the 12th March 1951.
A preliminary objection was taken on his behalf that the Court had no jurisdiction to take proceedings against him for contempt and the argument was that the Court of the Commissioner appointed to hold an inquiry under the Act was not a Court and in any event was not a Court subordinate to the High Court.
Mr. Justice Falshaw who delivered the judgment of the Court observed at page 50 in connection with this argument: "The itself seems clearly to indicate that a Commissioner or Commissioners appointed under the Act constitute a Court as they are given all the powers of a Court regarding the summoning of witnesses and other matters, and the only ground on which the learned counsel for the respondent could base his argument that the Commissioner does not constitute a Court was that he can (1) A.I.R. 1951 Punjab 49. 974 give no final decision, but merely has to draw up a report giving his findings on the charge or charges against the respondent, which is to be forwarded to the Government.
In my opinion, however, this fact alone is not sufficient to make the Commissioner or Commissioners any thing other than a Court and it is to be noted that the definition of Court in section 3, Evidence Act, is very wide indeed as it reads: " 'Court ' includes all Judges and Magistrate and all persons, except arbitrators, legally authorised to take evidence".
The learned Judges there relied upon the definition of Court given in section 3 of the Indian Evidence Act which, as has already been noted, is framed only for the purposes of the Act and is not to be extended where such an extension is not warranted.
This definition does not help in the determination of the question whether the Commissioners appointed under the Act constitute a Court and the attention of the learned Judges was not drawn to the position that finality and authoritativeness are the essential tests of a judicial pronouncement.
We are of the opinion that the decision reached by the learned Judges of the Punjab High Court in that case was wrong and cannot help the respondent.
Our attention was also drawn to another decision of the Nagpur High Court in M. V. Rajwade vs Dr. section M. Hassan(1).
The question which came to be considered by the Court in that case was whether a commission appointed under the was a, Court within the meaning of section 3 of the , and, while considering the provisions of that Act, the learned Judges of the Nagpur High Court incidentally considered the provisions of the .
They rightly observed that "the term 'Court ' has not been defined in the .
The Act, however, does contemplate a 'Court of Justice ' which as defined in section 20, Indian Penal Code, 1860, denotes 'a judge who is empowered by law to act judicially '.
The least that is required of a Court is the capacity to deliver a "definitive judg (1) A.I.R. 1954 Nag.
975 ment" and unless this power vests in a tribunal in any particular case, the mere fact that the procedure adopted by it is of a legal character and it has the power to administer an oath will not impart to it the status of a Court", and came to the conclusion that the commission appointed under the is not a Court within the meaning of the Contempt of 'Courts Act, 1952.
The learned Judges were merely considering the provisions of the and were not concerned with the construction of the provisions of the and whatever observations they made in regard to the provisions of the latter Act by way of comparing the same with the provisions of the former which they were there considering would not have the effect of putting on the provisions of the latter Act a construction which would be any avail to the respondent before us.
The ratio which was adopted by the learned Judges was quite correct but it appears that they digressed into a consideration of the provisions of the in order to emphasize the character and position of the commission appointed under the even though it was not strictly necessary for the purpose of arriving at their decision, though it must be mentioned that while discussing the nature and function of the commission they expressed themselves correctly as under: "The Commission governed by the is appointed by the State Government "for the information of its own mind", in order that it should not act, in exercise of its executive power, "otherwise than in accordance with the dictates of justice & equity" in ordering a departmental enquiry against its officers.
It is, therefore, a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature".
We are of the opinion that neither of these cases which have been relied upon by Shri Purshottam Tricamdas is of any help to the respondent or detracts 976 from the true position as we have laid down above.
The only conclusion to which we can come on a consideration of all the relevant provisions of the Act is that the Commissioner appointed under the Act is not a Court within the meaning of the .
In view of the conclusion reached above, we do not think it necessary to go into the question whether the Commissioner appointed under the Act is a Court subordinate to the High Court within the meaning of the .
Nor do we think it necessary to express any opinion as to whether the letter complained against constituted a contempt of Court.
We may, however, note in passing that the circum stances under which the letter came to be addressed by the appellant to the Commissioner, the terms thereof and the order which was passed by the Commissioner on the application made by the respondent to proceed against the appellant in contempt on date the 2nd February 1953 lend support to the argument which was advanced on behalf of the appellant that the letter complained against did not constitute contempt of Court.
The result, therefore, is that the appeal will be allowed, the order passed against the appellant by the Court below will be set aside and the original Criminal Miscellaneous Petition No. 10 of 1953 filed by the respondent in the High Court of Judicature at Patna will stand dismissed.
The fine if paid will be refunded.

summary/full:
Held, that a Commissioner appointed under the (XXVII of 1850) is not a court within the meaning of the (XXXII of 1952).
Shell Co. of Australia vs Federal Commissioner of Taxation ([1931] A.C. 275), Huddart,Parker & Co. vs Moorehead ([1909] ; , Rex vs Electricity Commissioners ([1924] 1 K.B. 171), Bharat Bank Limited vs Employees of Bharat Bank Ltd. ([1950] S.C.R. 459), Maqbool Hussain vs The State of Bombay ([1953] S.C.R. 730), Cooper vs Wilson ([1937] 2 K.B. 309), section A, Venkataraman vs The Union of India and Another ([1954] S.C.R. 1150), Royal Aquarium and Summer and Winter Garden Society Ltd. vs Parkinson ([1892] 1 Q.B. 431), Dawkins vs Lord Rokeby ([1873] L.R. 8 Q.B. 265), Kapur Singh vs Jagat Narain (A.I.R. 1951 Punjab 49) and M. V. Bajwade vs Dr. section M. Hassan, (A.I.R. , referred to.


judgement:
Criminal Appeal No. 342 of 1974.
Appeal under Section 2(a) of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970 from the Judgment and Order dated 2 7 74 of the Kerala High Court in Criminal Appeal No. 338 of 1973 and 87/74.
T. C. Raghavan and N. Sudhakaran for the Appellant.
K. R. Nambiar for the Respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
Narayanan Satheesan alias Baboo, the appellant herein, was tried by the Additional Sessions Judge, Mavelikara, under section 302 of the Indian Penal Code for intentionally causing the death of one K. G. Thomas alias Thampi, a well built male, aged about 32 years, who was an inhabitant of Eruvallipra Muri in Thiruvala Village, by inflicting an injury with a dagger (M.O. 1) on the back of his chest at 7.30 P.M. on December 16, 1972 at a sandy place situate on the Western side of the village road which goes to Veliyam Kadavu (Ghat Ferry) from Thirumoola on the eastern extremity of Purayidom known as Kaval Purayidom belonging to Arya Community within the jurisdiction of Thiruvalla Police Station.
On a consideration of the material adduced before him, the learned Judge acquitted the appellant of the charge under section 302 of the Indian Penal Code but convicted him under section 326 of the Code and sentenced him to rigorous imprisonment for a term of seven years with the finding that he had, by means of a dangerous weapon like M.O. 1.
caused grievous hurt on the person of the deceased which had endangered his life.
Aggrieved by this judgment and order, both the State as well as the appellant appealed to the High Court of Kerala at Ernakulam.
The High Court set aside the conviction of the appellant under section 326 of the Indian Penal Code and instead convicted him under section 302 of the Code and sentenced him to imprisonment for life.
Dissatisfied with this judgment, the appellant has come up in appeal to this Court under section 2(a) of the (Act 28 of 1970).
The case as put forth by the prosecution is that a couple of weeks before the date of occurrence, there was an altercation between the appellant and the deceased over the refusal by the latter to relinquish possession of the Purayidom before the expiry of the term of one year of the lease granted in his favour by the father of the accused on a pattom of Rs. 550/ which entitled him to the usufruct of the coconut trees standing on the Puravidom that during the course of the aforesaid alternation the appellant threatened to kill the deceased if he 579 did not hand back possession of the property peaceably; that irked at the refusal of the deceased to surrender possession of the Purayidom, the appellant armed himself with a dagger and followed the deceased on the evening of December 16, 1972, While the latter was passing along the above mentioned road and after thrusting the dagger in the back of the chest of the deceased,took to his heels without even taking out the weapon from the situs of the wound; that the deceased pulled out the weapon from his back and threw it on the ground hereafter blood gushed out of the wound and he fell down; that on seeing this incident Gopala Kurup (P.W.1), who was going to have his bath at Veliyam Kadavu and Thommi Mathai (PW.2) who was on his way to Thirumoola which is about five furlongs from his house to buy some provisions rushed to the scene of occurrence; that Thommi Mathai (P.W. 2) and Gopala Kurup (P.W. 1) removed the deceased about 6 or 7 feet towards the East whereafter Gopala Kurup (P.W. 1) bandaged the wound of the deceased which was bleeding profusely with his thorough (bath towel); that while the wound was being bandaged by Gopal Kurup, Pappan (P.W. 5), the Ferryman employed by the Municipality at Veliyath for ferrying people across Manimala river, also hastened to the scene of occurrence, saw the appellant running away and heard the deceased saying "Mathaichacha.
Babu stabbed me"; than after bandaging the wound as aforesaid, Gopal Kurup (P.W. 1) Thommi Mathai (P.W. 2) and Pappan (P.W. 5) removed the deceased to the middle of the road, laid him on the level surface and started raising an alarm, on hearing which the brothers of the deceased including Geevarghese George (P.W. II ) and some other persons arrived at the scene of occurrence, that in reply to the query made by his elder brother, Geevarghese George (P.W. 1 1), the deceased said "Achaya, Babu stabbed me"; that the deceased was thereafter removed by his brothers in a taxi car to the Thiruvalla Hospital where P.W. 6, Dr. G. K. Pai, examined his person and found a stab injury over his left infrascapular area, 3 XI c.m., horizontal in position, both edges sharp penetrating into the pleural cavity (left side) Direction of the wound obliquely forward and to the right side(?) Anenumothorax on the left side; that the doctor made an entry of the injury noticed by him in the relevant register of the Hospital and rendered first aid to the deceased; that while the first aid was being given to him, the deceased told the doctor that the injury was caused to him by stabbing at 8.00 P.M.; that in view of the serious nature of the wound, the doctor advised the relatives of the deceased to take him to the Medical College Hospital, Kottayam for expert medical attention and treatment; that thereafter the doctor gave intimation of the incident on telephone and by means of a letter (Ext.
p 4) to the Thiruvalla Police Station whereupon P.W. 15 viz. Madhavan Pillai Head Constable attached to the said Police Station proceeded to the Hospital but on learning on arrival at that place that the injured had already been sent to the Medical College Hospital, Kottayam, he at once returned to the Police Station and forthwith contacted Arpookara Police Station on telephone and informed the person in charge thereof that since the statement of the injured person by name K.G. Thomas who had been brought to Thiruvalla Hospital with serious injuries could not be, taken as he had been removed to the Medical College Hospital.
Kottayam for expert medical treatment, his 580 statement might be taken and the needful be done in the matter; that on being thus informed by Madhavan Pillai (P.W.15), Govinda Pillai (P.W. 13), Head Constable In charge of the Police Station, Kottayam proceeded to the College Hospital and after taking the permission of Dr. K. M. R. Mathew, who was examining the deceased in the casualty room, recorded his statement (Exh. p 9) at 9.30 P.M. which was to, the following effect : "I know that it is a Head Constable who is talking to me now.
I am called Thampi.
Babu, son of Ezharapra Narayanan stabbed, me with a dagger.
It was on my back that he stabbed me from behind.
It was at Veliyamkadavu (ferry) that he stabbed me.
It was I myself who pulled out the dagger with which I was stabbed and threw it there.
Ferryman Pappan and others have seen him stabbing me.
It was today at 7.30 p.m. that the incident took place.
It was in order to kill me on account of prior enmity that he stabbed me.
The place of incident is within the limits of Thiruvalla Station.
It is 40 kms.
south from here.
" The prosecution case further proceeds that it was not before 2 O 'clock at night intervening between 16th and 17th December, 1972 that Govinda Pillai (P.W. 13) could return to his Police Station as he had to record statements in four or five other cases intimation regarding which was received by him while he was at the Hospital; that on his return to the Police Station, Govinda Pillai (P.W. 12) prepared the First Information Report (Exh.
P 10) on the basis of Exbibit P 9 and sent the same to the Munsiff Magistrates Court Ettumanoor; that an hour after his return to the Police Station, Govinda Pillai got intimation from the Hospital vide Exhibit P 1 1 that the injured person, whose statement (Exh.
P 9) he had recorded had died at 3.00 A.M.; that about 8 O 'clock in the morning, Govinda Pillai went to the Medical College Hospital and prepared the Inquest Report (Exh.
P 8) whereafter he sent the dead body of the deceased to the Police Surgeon for post mortem examination; that P.W. 4, Dr. vs K. Jayapalan, Professor of Forensic Medicine and Police Surgeon, Medical College, Kottayam conducted the autopsy of the body of the deceased on December 17, 1972 at 2.00 P.M. and noticed the following appearances : "General Body was that of a well built adult male.
Rigor mortis fully established and retained all over.
Dried blood stains were seen on the front of right fore arm and front of chest.
Injuries (antemortem) (1) Sutured incised penetrating wound horizontally placed on the back of chest 3 cm.
to the left of middle and 24 cm.
below the top of shoulder.
The wound was found entering chest cavity cutting through the 9th intercostal space, perforated the lower lobe of left lung and penetrated the left ventricle of the heart.
The wounds on the lung and heart measured 2.8 cm.
in length and were found sutured.
The wound was directed forwards upwards and to the right.
581 (2) Sutured surgical thorocotomy wound 26 cm.
in length on the outer aspect and back of left chest 17 cm.
below the arm pit.
(3) Surgical wound 1.3 X .5 cm.
obliquely placed on the back of chest 3 cm.
below injury No. 1.
(4) Multiple small abrasions over an area 3.5 x 2 cm.
on the outer aspect of right shoulder.
Other findings are; Left lung was collapsed.
Left chest cavity contained 75 cc.
of blood clots.
Pericardial cavity contained 50 cc.
of blood clots.
Stomach was empty and mucous was normal.
" The doctor opined that injury No. 1 which could have been caused with a weapon like M.O. 1 was sufficient in the ordinary course to cause death.
The doctor further opined that the cause of death of the deceased was bleeding and shock following stab injury sustained by him on the back.
P.W. 17, V. Rajasekharan Nair, Circle Inspector of Police, Kayamkulam, took over investigation of the crime on receipt of the express intimation regarding the registration of the case under section 302 of the Indian Penal Code on December 17, 1972.
He repaired to the scene of occurrence without any loss of time, prepared the, scene mahazar, seized the blood stained earth and questioned the witnesses and prepared notes of their statements on the same evening.
He also seized the dagger (M.O. 1) which was produced before him by Geevarghese George (P.W. 11) on December 30, 1972.
It was not, however, before January 1, 1973 that the Police could arrest the appellant at Nedumbram.
After completion of the investigation, the appellant was proceeded against in the Court of Sub Magistrate, Thiruvalla, who committed him to the Court of Sessions to stand his trial under section 302 of, the Indian Penal Code with the result as stated above.
Although in addition to the other witnesses, the prosecution examined Gopal Kurup (P.W. 1), Thommi Mathai (P.W. 2) and Pappan (P.W. 5), who claimed to be the eye witnesses of the incident, both the Additional Sessions Judge and the High Court while holding that their arrival on the spot was proved, discarded the evidence of Gopal Kurup (P.W. 1) and Thommi Mathai (P.W. 2) on the )ground that their testimony was not trustworthy and rested the conviction of the appellant on the dying declaration (Exh.
P 9) which, according to them.
received ample corroboration from the testimony of Pappan (P.W. 5).
Appearing in support of the appeal, Mr. Raghavan has urged that the conviction of the appellant cannot be sustained firstly because the evidence on the record is not sufficient to bring home the offence to the appellant.
secondly because the dying declaration (Exh. P 9) which 582 has been heavily relied upon by the trial court and the High Court could not have been made by the deceased who was in a critical condition and clearly appears to have been fabricated after the death of the deceased and thirdly because the testimony of Pappan (P.W. 5) and Geevarghese George (P.W. 11) from which corroboration has been mainly derived is not cogent and convincing.
We have carefully gone through the entire evidence on the record.
While we do not consider it safe to place reliance on the eye witness account of the occurrence given by Gopal Kurup (P.W. 1) and Thommi Mathai (P.W. 2) which has been rejected as untrustworthy by the trial court and the High Court or on the statement of Geevarghese George (P.W. II) in view of his queen and unnatural conduct in wiping away the blood from the weapon of offence and not producing the same before the Police for nearly 14 days, we think that the statements of ' Govinda Pillai (P.W. 13) and Pappan (P.W. 5) cannot easily be brushed aside.
Pappan (P.W: 5) who belongs to the community of the appellant and has no animus against him and whose testimony is natural and consistent and whose credit has remained unshaken despite the lengthy cross examination to which he was subjected has unequivocally stated that at about 7.30 on the evening of December 16, 1972 while he was sitting in his boat which he had rowed to the Northern ferry as there were no passengers to take across the river, he heard the cry "Heigho", "heigho" from the shore; that on ascending five or six steps, be saw the deceased standing in a bent position on the western side of the road with a dagger stuck on his back and the accused whom he knew from his childhood running westwards from near the deceased; that the deceased himself pulled out the dagger and threw it in the Purayidom; that it was after Gopal Kurup (P.W. 1) and Thommi Mathai (P.W. 2) had come running lo the spot from the North that the deceased fell down on the right side; that Gopal Kurup (P.W. 1) bandaged the wound of the deceased with his bath towel and while his wound was being bandaged, the deceased was saying "Mathaicha, abut stabbed me".
The evidence of Govinda Pillai, Head Constable (P.W. 13) has also remained unshaken in cross examination.
From his statement which receives corroboration from the statements of not only Dr. V. K. Jayapalan (P.W. 4) and Dr. G. K. Pai (P.W. 6) who were examined by the prosecution but also from the statement of Dr. Mathew Varghese (P.W. 5) who was examined by the appellant, it is crystal clear that the deceased (whose central nervous system remained normal and who neither lost his consciousness nor his power of speech) gave a coherent account of the circumstances leading to his injury which be faithfully and accurately recorded in Exhibit P 9 and forthwith asked the deceased to append his signatures thereon which he did with a steady hand.
We are, therefore, absolutely convinced that the incident took place in the manner disclosed by the prosecution.
This does not, however, conclude the matter.
The important question as to the nature of the offence committed by the accused still remains to be determined by us.
adopting the reasoning of the trial court, it is emphasized by learned counsel for the appellant that since the appellant inflicted only one stab injury on the person of the 583 deceased and the deceased died during the performance of operation on his lung and heart and the prosecution has not tried to establish either that the doctor who performed the delicate operation was at specialist or a competent and skilful surgeon and took all reasonable; care and caution or that the death was the inevitable result of the stab injury, the appellant can at the utmost be held guilty of the offence, under section 326 of the Indian Penal Code.
We find it difficult to accede to this contention.
It is true that the appellant inflicted only ones stab wound on the deceased but the facts established in the case viz. that the appellant did not act under any sudden impulse but pursued the deceased after arming himself with a dagger which is a dangerous weapon in execution of a premeditated plan motivated by ill feelings nurtured for a number of days and inflicted a servere stab injury on the vital region of the body of the deceased which perforated not only his left lung but also penetrated into and impaired the left ventrical of his heart clearly show that the appellant had the intention of causing the death of the deceased and pursuant thereto acted in a manner which brings his offence within the mischief of section 302 of the Penal Code.
It is no doubt unfortunate that the prosecution has not attempted to examine the doctor who performed the operation but this lapse is, in our opinion, not sufficient to downgrade the enormity of the offence committed by the accused.
It cannot be overlooked that Dr. V. K. Jayapalan (P.W. 4) who conducted the autopsy has categorically stated that stab injury No. 1 was 'sufficient in the ordinary course to cause death ' and that the cause of death of the deceased was bleeding and shock following the said injury.
In Gudar Dusadh vs State of Bihar(1) where the accused made a pre meditated assault and inflicted an injury with a lathi on the head of the deceased which was sufficient in the ordinary course of nature, to cause death and actually resulted in the death of the latter, it was held that the mere fact that the accused gave only one blow on the head would not mitigate the offence of the accused and make him guilty of the offence of culpable homicide not amounting to murder.
In the instant case, the prosecution having succeeded in establishing that the stab injury inflicted on the person of the deceased was sufficient in the ordinary course of nature to cause the death, the offence committed by the accused squarely falls within the purview of clause 'thirdly ' of section 300 of the Indian Penal Code according to which culpable homicide is murder if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be caused is sufficient in the ordinary course of nature to cause death of the deceased.
Again the non production by the prosecution of the doctor who performed the operation on the deceased is of no avail to the appellant.
As rightly held by the High Court, the case is clearly covered by Explanation 2 to Section 299 of the Indian Penal Code which provides that where death is caused by an injury the person who (1)A.I. R. 584 causes it would be deemed to have caused the death although by resorting to proper remedies and skilful treatment the death might have been prevented.
It appears that the attention of the Additional Sessions Judge was not drawn to this aspect of the matter and while quoting a passage from Modi 's Medical Jurisprudence and Texicology (1963 Edition), he not only glossed over the last sentence thereof where it is succinctly stated that "it should be, noted that the liability of the offender is in no way lessened even though life might have been preserved by resorting to proper remedies and skilful treatment" but also tried to highlight something which did not possess any significance.
Taking into consideration the deadly character of the weapon used, the dastardly assault made by the accused and the vital organs of the body on which the injury was caused as also the categorical.
statement of Dr. V. K. Jayapalan, Professor of Forensic Medicine, who conducted the autopsy of the dead body of the deceased that the injury No. 1 was sufficient in the ordinary course to cause death of the deceased, we have no hesitation in holding that the appellant deliberately caused the fatal wound on the person of the deceased and in maintaining the conviction under section 302 of the Indian Penal Code.
For the foregoing reasons, we find no merit in this appeal which is dismissed.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant, though charged section 302 of the Indian Penal Code for intentionally causing the death of one K. G. Thomas alias Thampi, a well built male of 32 years on the night of December 16, 1972, by inflicting a stab 3X1 cm.
over his left infrascapular area was, however, on a consideration of the material adduced before him, acquitted of the said charge and convicted section 326 and sentenced to 7 years rigorous imprisonment by the Sessions Judge.
Both the appellant and the State appealed against the said orders.
The High Court ,accepted the State 's appeal, set aside the conviction section 326 and convicted him u/s 302 and sentenced him to imprisonment for life.
The High Court rested the conviction on the dying declaration (exhibit p. 9) which received ample corroboration from the testimony of; one of the three eye witnesses, Pappan (P.W. 5).
Dismissing the appeal to this court section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) (Act 28 of 1970), 1970, the court, HELD : (1) Non production by the prosecution of the doctor who performed the operation on the deceased is of no avail.
It is no doubt unfortunate that the prosecution has not attempted to examine the doctor who performed the operation, but this lapse is not sufficient to downgrade the enormity of the offence committed by the accused.
[583 C D, H] Explanation (2) to section 299 of the Indian Penal Code which provides that where death is caused by an injury, the person who causes it would be deemed to have caused the death although by resorting to proper remedies and skilful treatment, the death might have been prevented.
[583 H, 584 A] (3)(a) In the instant case, taking into consideration the deadly character of theweapon used, the dastardly assault made by the accused and the vital organsof the body on which the injury was caused as also the categorical statement of Dr. Jayapalan, P.W. 4, who conducted the autopsy of the dead body of the deceased that the injury No. 1 was sufficient in the ordinary course to cause death of the deceased, it is clear that the appellant deliberately caused the fatal wound on the person of the deceased.
The conviction u/s 302 of the Indian Penal Code must be maintained.
[584 B C] (b)It is true that the appellant inflicted only one stab wound on the deceased but the facts established in the case, namely, that the appellant did not act under any sudden impulse but pursued the deceased after arming himself with a dagger which is a dangerous weapon in execution of a premeditated plan motivated by ill feelings nurtured for a number of days and inflicted a severe stab injury on the vital region of the body of the deceased which perforated not only his left lung but also penetrated into and impaired the left centrical of his heart clearly show that the appellant had the intention of causing the death of the deceased and pursuant thereto acted in a manner which brings the offence within the mischief of section 302 of the Penal Code.
The offence committed by the accused squarely falls within the purview of clause "thirdly" of section 300 of the Indian Penal Code according to which culpable homicide is murder if the act 13 930SCI/77 578 by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be caused is sufficient in the ordinary course of nature to cause death of the deceased.
[583 B E] Gudar Dusadh vs State of Bihar, A.I.R. 1972 S.C. 952, followed.


judgement:
ON: Criminal Appeal No. 301 of 1971.
(Appeal by Special Leave from the Judgment and Order dated the 15th/l6th June 1971 of the Bombay High Court in Criminal Appeal No. 1405 of 1969).
P.H. Parekh and Miss Manju Jatley, for the appellant.
H.R. Khanna and M.N. Shroff, for respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
Corruption and nepotism is so rampant in our society of to day, and more particularly in the services, that the Indian Penal Code was not considered sufficient to meet this menace, and the Prevention of Cor ruption Act, .1947 (Act II of 1947) hereinafter referred to as 'the Act ' had to be enacted and amended from time to time to stamp out this evil.
This is an appeal by special leave 534 directed against the judgment of the Bombay High Court affirming the conviction of the appellant under section 5(1)(d) read with section 5(2) of the Act and the sentence of six months rigorous imprisonment passed by the Special Judge, Bombay.
The facts of the present case are more or less undisputed and are the least complicated and, therefore, they fall within a very narrow compass, and by and large we have to examine whether or not the inferences drawn by the High Court from the proved facts are legally correct and lead to only one hypothesis, namely, that the accused is guilty.
It may.
be necessary to give a resume of the prosecution case before indicating the evidence and the circumstances relied upon by the courts below in convicting the appellant.
The appellant was a senior officer in the Army, holding the rank of a Major, and was at the material time the local Purchase Officer, hereinafter to be referred to as LPO, at Ordnance Depot at Talegaon Dabhade, District Poona.
Fol lowing the Chinese attack in 1962 an Emergency was declared and the Army required certain engineering tools to be sup plied immediately.
The Ordnance Depot, Jabalpur, sent a requisition of engineering tools to the Ordnance Depot at Talegaon Dabhade, Poona.
In this connection the Control Officer of the Ordnance Depot wrote a letter to the Group Officer requesting him to despatch the stores immediately.
The Group Officer consequently wrote a letter to the appel lant who was the LPO at the relevant time to arrange the supply of stores immediately.
The appellant was directed to purchase the stores locally and to deliver them to the Group Officer.
The Group Officer also indicated in his letter that the stores requisitioned by him were not available at the Depot at Talegaon.
The detailed list of the tools, while is at Ext.
9, was received by the appellant on March 27, 1963.
On the same day the Chief Ordance Officer passed an order enabling the LPO to immediately purchase the tools on cash purchase basis.
We might pause for a little while in order to explain the nature of the order passed by the Chief Ordnance Officer.
It appears that the normal procedure in the Department was that the LPO had to draw cash and then go to the market and purchase the goods against cash.
But in view of the Emer gency and the immediate necessity of the tools this proce dure was waived and the appellant was permitted to buy the tools on covering purchase order basis; in other words, the appellant could himself purchase the tools without obtaining the previous sanction of the Chief Ordnance Officer, and on receiving the bills from the supplier and processing the same could get them sanctioned by the Chief Ordnance Officer and then make the payment to the supplier.
According to the prosecution the appellant, a day after he received the list, Ext. 9, placed orders with Jayantilal Himatlal Shah, P.W. 2, for supply of the tools.
It is not disputed that P.W. 2 was one of the contractors on the approved list of the Depart ment, and still continues to be so.
P.W. 2 further assured the appellant that he would make the supply as early as possible, and that .he would do so at moderate rates.
P.W. 2 accordingly procured .the articles from Bombay and delivered the same in the Depot by April 6, 1963 along with his bills after which 535 the bills were placed before.
the Chief Ordnance Officer and after sanction by him the payment was made to P.W. 2.
Apart from engineering tools there was another requisition for the supply of 900 dessert spoons.
The appellant first wanted to place this order also with P.W. 2, but he found that his rate was a little higher than the rate which was tendered to the Department sometime before, and, therefore, placed orders with another firm of M/s Devichand Lalchand Gandhi, P.W. 11, and received 900 dessert spoons of stain less steel from them.
Sometime in 1964, P.W. 18, an Inspector of Police in the Office of Special Police Establishment, Bombay, received some information regarding the appellant having committed an offence punishable under the Act on the basis of which he recorded the First Information Report on January 25, 1964.
Thereafter he obtained the permission of the Special Judi cial Magistrate for investigating the case and eventually submitted a chargesheet against the appellant before the Special Judge, Bombay, on April 28, 1966 as a result of which the appellant was tried, convicted and sentenced by the Special Judge, and his appeal against the said convic tion and sentence before the High Court failed.
The gravamen of the allegation against the appellant is that although the supplies were to be made as quickly as possible the appellant made a deliberate departure from the normal procedure which was adopted in the Department, in that he followed the procedure of covering purchase order basis and placed orders with P.W. 2 a,lone without making any enquiries from the local market whether the tools were available there.
It was also alleged that by placing orders with P.W. 2 the appellant caused P.W. 2 to earn a profit of 45% and thereby caused wrongful loss to the Army Department.
It was further alleged that a number of firms in Poona were prepared to supply the goods required at a much lesser profit of 10 to 15 % and the appellant made no enquiries whatsoever from these firms although some of them were also on the approved list of the Department.
On the basis of these circumstances only the prosecution sought the convic tion of the appellant.
The appellant pleaded innocence and denied that he had any intention to cause pecuniary benefit to P.W. 2.
The appellant submitted that the arti cles were very urgently required and as no time was left he had to act quickly and take immediate decisions.
It was for this purpose that the normal procedure was waived and the Chief Ordnance Officer permitted him to adopt the covering purchase order system.
As regards the enquiries from the local market, the definite case of the appellant in his statement under section 342 of the Code of Criminal Procedure was that he had in fact made enquiries from a few firms and his enquiries revealed that either the firms did not possess the goods themselves or that they were not dealers in all the goods.
He further expressed his ignorance that P.W. 2 made a profit of 45% and pleaded, on the other hand, that he was given to understand by P.W. 2 that the articles would be supplied at moderate rates.
The appellant seemed to suggest that as all the articles required were not available in the local market he thought it a prudent act to place orders with a person who was in a position to supply all the tools required at one stretch instead of running from one dealer to another for purchasing goods piecemeal, and as P.W. 2 was prepared to supply all the goods himself and he was also on the 18 1546 SCI/76 536 approved list of dealers the appellant decided to place orders with him.
He made no secret of the fact because all the higher officers, including the Chief Ordnance Officer, sanctioned the bills sent by P.W. 2.
The Trial Court, after consideration of the evidence and circumstances, found that the appellant had by corrupt means procured pecuniary benefit for P.W. 2 and caused wrongful loss.
The High Court in appeal confirmed the finding of the Trial Court.
Normally this Court in special leave against a concurrent judgment of the High Court and the Trial Court does not re appraise the evidence, but unfortunately in this case we find that both the courts below have drawn wrong inferences from proved facts and have made a completely wrong approach to the whole case by misplacing the onus of proof which lay on the prosecution on the accused.
Both the courts below had proceeded on the footing that it was for the accused and not for the prosecution to prove that the accused made enquiries from the local market or that he knew about the rates, etc.
This approach was obviously and manifestly wrong.
It is plain that it was for the prosecution to prove the ingredients of section 5(1) (d), which runs thus: "5( 1 ) A public servant is said to commit the offence of criminal misconduced.
(a). (b). (c). (d) if lie, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other persons any valuable thing or pecuniary advan tage . " In other words it was for the prosecution to prove affirma tively that the appellant by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
In view of the clear defence taken by the appellant it is obvious that it was for the prosecution to prove that the accused made no enquiries, that the accused made a departure from the normal procedure with oblique motive, and that the accused knew that P.W. 2 would make a profit of 45 % whereas others would be satisfied with a profit of 10 15%.
The High Court, to begin with, started with the presumption that the accused led no evidence to show that he made any enquiries.
We might state at the .risk of repetition that it was not for the accused to prove the prosecution case but it was for the prosecution to disprove what the accused said, namely, that he had made enquiries.
The prosecution could prove this fact only by producing satisfactory and convincing evidence to show that the ac cused in fact made no such enquiries and he knew about the margin of profit which other dealers would have made.
We shall immediately show that there is no legal evidence to prove this fact.
What the courts below have done is to disbelieve the case of the appellant because he led no evidence to show that he made any enquiries regarding the availability of goods or the rates, and therefore the courts presumed that the accused had a dishonest intention.
537 In the case of Narayanan Nambiar vs State of Kerala(1) this Court had the occasion to consider the import and interpretation of the words "corrupt or illegal means" and the word "abuse", as mentioned in section 5 (1) (d).
Tiffs Court observed thus: "Let us look at the clause "by otherwise abusing the position of a public servant", for the argument mainly turns upon the said clause.
The phraseology is very comprehen sive.
It covers acts done "otherwise" than by corrupt or illegal means by an officer abusing his position.
The gist of the offence under this clause is that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage.
"Abuse" means mis use i.e. using his position for something for which it is not intended.
That abuse may be by corrupt or illegal means or otherwise than those means.
The word 'otherwise ' has wide connotation and if no limitation is placed on it, the words "corrupt ', 'illegal ' and 'otherwise ' mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause.
So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part .
The juxtaposition of the word 'otherwise ' with the words "corrupt or illegal means" and the dishonesty implicit in the word "abuse" indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause? ' We are satisfied that the judgment of the High Court runs counter to the principles laid down by this Court in the case cited above, and the High Court does not appear to have applied that principle in deciding the truth of the case presented by the prosecution against the appellant.
In the instant case it is not alleged that the accused had used any corrupt or illegal means.
It has not been shown that the accused himself accepted any illegal gratification or pecuniary benefit nor has it been shown that he violated any statutory rule or order.
Thus, even on the prosecution allegation the case of the appellant falls only within the second part of section 5 (1 ) (d), namely, abusing his position as public servant.
The abuse of position, as held by this Court, must necessarily be dishonest so that it may be proved that the appellant caused deliberately wrongful loss to the Army by obtaining pecuniary benefit for P.W. 2.
After having gone through the evidence referred to by the courts below we think the prosecution has miserably failed to prove this fact.
To begin with, the first circum stance relied upon by the High Court is that the accused made a deliberate departure from the usual procedure of purchasing against cash.
According to the prosecution, the procedure was that the officer should have drawn cash from the office and then he should have gone to the market 'and purchased the articles and (1) [1963] supp.
2 S.C.R. 724, 730 731.
538 after having made the purchases he would obtain the sanction of the Chief Commanding Officer.
This procedure is known as "cash purchase basis".
The accused, however, adopted the procedure known as "covering purchase order", i.e., he made the purchases and got the bills sanctioned by the Chief Ordnance Officer.
It is not disputed that in the present case, in view of the emergent circumstances the Chief.
Ordnance Officer himself had allowed the appellant to make the purchases on the basis of cash purchase and had himself sanctioned the bills tendered by the supplier, P.W. 2.
All the bills were paid to P.W. 2 by cheque.
It was contended by the State that in the instant ' ease the appel lant had purchased these articles against cash and later on obtained the necessary covering purchase orders.
This is not correct because the appellant had merely placed orders with P.W. 2 for supply of goods and it was only after all the goods had been supplied, verified and found correct that the bills were forwarded to the Chief Commanding Officer for sanction.
The High Court itself found that Lt. Col. Pun had passed an order directing the appellant as LPO to purchase all the articles against cash immediately.
In this connec tion the High Court observed as follows: "Similarly, it is not in dispute that regarding the mode of purchase, Lt. Col. Purl had already passed an order directing the appellant as Local Purchase Officer to pur chase all the articles against cash immediate ly." Even assuming that the appellant purchased the articles against cash he was doing so in compliance with the orders of the Chief Ordnance officer and there was absolutely no reason for the High Court or the Special Judge to have drawn inferences against the appellant for violation of the proce dure when the highest officer of the Depot had sanctioned the procedure which was adopted by the appellant and had in fact authorised him to do so in view of the Emergency.
It may be necessary to refer to the evidence of P.W. 2, Lt.
Des Raj (P.W. 10) who stated that a covering purchase order is sanctioned only when the Chief Ordnance Officer is satisfied that there are special circumstances which neces sitate the sanction of the purchase order after the stores are purchased.
It is not disputed that the Chief Ordnance Officer had issued a covering purchase order in this case.
In these circumstances the best person who would have thrown a flood of light on the subject and whose evidence would have clinched the issue whether or not the accused was authorised to depart from the normal procedure was Col. Anand, the Chief Ordnance Officer, who though examined by the Police during investigations was not produced before the Court.
In the absence of his evidence there was no legal justification for the court to hold that the accused had departed, from the normal procedure without the authority of the Chief Ordnance Officer, particularly when it is admitted that a covering purchase order was passed by the said Offi cer and the bill was also finally sanctioned by him.
In these circumstances, therefore, the entire fabric of the reasoning of the High Court as also that of the Special Judge falls to the ground.
Another circumstance on the basis of which the appellant was convicted was the fact that he made no enquiries from the local suppliers, nor did he ascertain the rates.
On this question also the High Court, as well as the Special Judge, have misplaced the onus on the accused.
539 To begin with, the accused has categorically stated in his statement under section 342, Cr.
P.C., that he had in fact made enquiries and had sent the Supply Clerk and one Deshmukh for getting the rates and find out whether the stores were available.
The prosecution could succeed only in the state ment of the accused could be falsified and this could not only be done if the prosecution had examined the Supply Clerk who was sent by the appellant or Deshmukh, both of whom were employees in the Army and in possession and control of the prosecution, and yet none of these persons were examined to falsify the statement of the accused.
The High Court, on the Other hand, was in error when it observed that the accused did not produce either the clerk or Deshmukh forgetting that it was not for the accused but for the prosecution to prove that what the appellant had said was false.
Furthermore, reliance was placed by the High Court and the Special Judge on the evidence of P.W.s 14, 15 and 16.
P.W. 14 does state that his firm was dealing in engineering tools and other articles and that he was on the list of approved contractors of ,Ordnance Depot.
He, however, admitted that out of the articles required only 80 to 90 percent wet available with the firm.
In cross exami nation, when asked about a particular type of engineering tool the witness was unable to state for what purpose it was used.
The witness admitted that he did not maintain any stock register at the shop and the fact that the articles were available was being deposed by him merely on the basis of his memory.
Finally, the witness admitted thus: "I had not gone to Talegaon Ordnance Depot to enquire whether any engineering tools were required in the depot.
" The High Court seems to think that as this witness 's firm was merely a retailor, therefore there was not necessity to keep a stock register, The witness has nowhere stated that he was a retailer and not a whole saler and, therefore, there was absolutely no basis for the High Court to have conjectured or speculated on this point in order to raise an inference against the appellant.
On the other hand, in the absence of any document, register or inventory to show the nature of goods the firm of P.W. 14 was dealing in, it is difficult to accept the ipsi dixit of the witness consisting of his bare statement based on pure memory that the engi neering tools were available six years before the date he was deposing.
Such evidence, in our opinion, is absolutely worthless.
In fact P.W. 18, the Inspector, has deposed that in the course of his investigations he had seized the ac counts and documents of the local firms, and yet no document was produced by the prosecution to show that P.W. 14 in fact had in his possession engineering goods at the relevant time.
Furthermore, the witness positively states that he never went to Talegaon Ordnance Depot to enquire whether any tools were required.
It was also not put to the wit ness whether the appellant personally or through one of his employees had approached him regarding the supply of the goods.
In these circumstances, therefore, how possibly can an inference be drawn from his evidence that the accused made no enquiries whatsoever when the accused had positively stated that he did.
Finally, on the question of rates or margin of profit also, the witness makes 540 only a verbal statement that he would have charged 10 15% which cannot be accepted in the absence of documentary proof of the fact that the firm had sold these articles during the relevant time to various persons and made 10 15% profit only.
It is manifest that if the firm was carrying on such a huge business then everything must have been writ ten in the account books which were in possession of the Inspector and yet not produced.
In these circumstances, therefore, we are satisfied that the High Court misread the evidence of P.W.14.
Reliance was then placed on the evidence of P.W. 15, Mahen drakumar, who is a partner of the firm known as 'C. Ambalal & Co. ' To begin with, he clearly admits that his firm was dealing in hardware, paints, sanitaryware and only files amongst the engineering tools.
The witness further states that Out of the articles mentioned in the list, exhibit 9, only files, being items Nos. 75 to 94 and 96 to 99 were available with him and could be supplied by him.
He does not say that he was in a position to supply the other engi neering goods also.
Again, the witness makes only a verbal statement without any documentary proof that he would have charged 10 12% of profit on the amount spent.
It may be pertinent to note here that the appellant in his statement under section 342, has positively asserted that he did make enquiries from the firm of Ambalal.
Ambalal was examined by the police but not produced in court and the explanation given was that he was ill.
That by itself is not a convinc ing explanation because the prosecution could have asked for adjournment from the court to enable Ambalal to be examined as a witness for he alone could have falsified the statement of the accused whether or not any enquiry was made from him.
Finally, this witness himself states: "I do not remember whether I was present when the list, exhibit 9, was shown to Ambalal when his statement was recorded.
" The evidence of this witness, therefore, does not exclude the possibility of the accused having made enquiries from Ambalal and the accused has in fact explained in his state ment that no orders could have been placed with this firm because he was only in a position to supply files which formed a very small component of the engineering goods required.
In these circumstances, therefore, the evi dence, of P.W. 15 does not falsify the statement of the accused that he made enquiries from this firm but, on the other hand, goes to support it.
The High Court has observed that if the appellant had made enquiries from P.W. 15, then he would have undoubtedly remembered this fact.
This process of reasoning appears to us to be absolutely perverse.
When the witness himself does not remember whether the appellant had made any enquiries in his presence then the natural inference would be that he does not exclude the possibility of the appellant having made an enquiry, and in the absence of the examination of Ambalal it cannot be said that the statement of the accused was false.
The next evidence on which reliance was placed was of P.W. 16, Taharbhai.
This witness clearly admits that he had no engineering goods in his stock and if an order had been placed he could have 541 supplied them by procuring them from somebody else.
In these circumstances he was in the same position as P.W. 2.
This witness further admits that out of the list, Ex.9, only files and drills were available, but the stock of these articles was scanty.
He again orally says that he would have charged a profit of 15%.
This witness admits that he does not remember whether the appellant had come to his shop on March 27, 1963 to enquire about the availability of the goods and the rates of engineering tools.
It was sug gested to him that enquiries were made from him by the appellant and he said, that the tools were not available with his firm.
The evidence of this witness also suffers from the same infirmities as are to be found in the evidence of P.Ws. 14 and 15.
He has not produced the stock register nor any document or accounts or inventories to show that he had all the goods required.
His statement further does not exclude the possibility of the accused having made enquires from him, or at any rate does not falsify the statement of the accused.
As regards the margin of profit, that is also ipsi dixit without any basis and is not sup ported by his account books.
It seems to us that before a presumption against the accused could be raised that he knew that other firms would have charged a much lesser profit than P.W.2, it should have been proved by the production of account books of the firms concerned and their dealings during the relevant time that they had sold similar of identical goods and made only a profit of 10 15%.
The verbal statement of the witnesses regarding the margin of profit which they would have made had orders been placed six years back can carry no weight.
This is all the evidence on the basis of which infer ences against the appellant have been drawn.
After having gone through the evidence we are satisfied that the prose cution has not produced any reliable or conclusive material to prove that the appellant had any dishonest intention in causing pecuniary benefit to P.W. 2.
Even assuming that the accused departed from the normal procedure in view of the urgent necessity of the articles it cannot be said that this was done with a corrupt or oblique motive.
The appel lant had been asked.
by the Jabalpur Depot to supply these articles immediately.
The appellant, therefore, had t6 take a quick decision and he was authorised to do so by his Chief.
Since P.W. 2 was prepared to supply all the goods in bulk at one stretch the appellant may have thought it better to place the orders with him.
May be, that this was an error of judgment or an act of indiscretion, but from that alone an inference of dishonest intention cannot be drawn.
Moreover, P.W l0 has clearly stated thus: "I had no reason to doubt the honesty or sincerity of the accused during the period he was serving under me.
" This would show that the appellant was really an honest and sincere officer and his antecedents were good.
Against this background we should have expected much better and superior evidence to justify inference of the accused having been animated by a dishonest intention in placing orders with P.W. 2.
542 There is yet one more intrinsic circumstance which negatives the guilt of the accused.
Although the appellant had given orders with respect to all the articles to P.W. 2, yet when he found that P.W. 2 was charging higher rate for the dessert spoons he did not place orders for the same with him but placed the orders with P.W. 11, who supplied at the rate of Re. 1/ per spoon which was less than the rate at which P.W. 2 was ready to supply.
This shows that the appellant did take due care and caution and did not act blindly.
There is absolutely no legal evidence on the record to show as to what was the nature of the margin of profit which the firms of P.Ws.
14, 15 and 16 had made if the orders had been placed with them, and in the absence of such an evidence the court would not be justified in holding that the accused abused his position in causing pecuniary bene fit to P.W. 2.
The appellant had admitted that if he had known that P.W. 2 would have charged such a high profit he would have been more careful.
On the other hand, what appears to us to be most sur prising is that although P.W. 2 was the sole beneficiary of the whole transaction and had, according to the prosecution, made profit of 45% and was, therefore, in the nature of an accomplice, yet he continues to be on the approved list of the departmental suppliers even on the date when he was giving evidence.
Such a conduct on the part of the depart ment can only be consistent with the innocence rather than the.
guilt of the accused.
If the prosecution allegation was true that P.W. 2 through his business influence ob tained the order in his favour, then before the prosecu tion was started against the appellant, P.W. 2 should have been blacklisted.
But this was not done.
The High Court appears to have been led away by the impression that the appellant had personal relations with P.W. 2.
There is, however, no such evidence on record and P.W. 2 himself has categorically stated that his relations with the appellant were purely business relations as he used to visit the office in connection with the supplies off and on.
In these circumstances, therefore, if P.W. 2 was not suspected by the prosecution for having received huge pecuniary benefit much less could the blame lie on the appellant.
In these circumstances, even if there was some amount of carelessness or negligence on the part of the appellant it is impossible to doubt his bona fides.
He acted as a produ ent person and tried to get the supplies as quickly as possible with the result that all the gods required by Jabalpur Depot were supplied within two weeks.
A careful analysis of the evidence and the circumstances would, therefore, show that the approach of the High Court was clearly 543 wrong and that the inferences drawn by the High Court were not at all warranted by the circumstances and facts proved in the case.
The entire charge against the appellant rested on circumstantial evidence and the prosecution has failed to prove that the circumstances were such as could be ex plained only on one hypothesis, namely, that the accused was guilty.
For these reasons, therefore, the appeal is allowed, judgment of the High Court set aside and conviction and sentence imposed on the appellant are hereby quashed, and he is acquitted of the charge framed against him.
M.R. Appeal allowed.

summary/full:
The appellant was posted as the Local Purchase Officer at the Army Ordnance Depot in Poona district.
In connection with the purchase of some engineering tools, charges were brought against him under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, for having procured pecu niary benefit for a certain contractor by corrupt means, thereby causing wrongful loss to the army department.
The Trial Court convicted the appellant, and in appeal the High Court confirmed the conviction.
The Supreme Court granted him Special Leave to appeal under article 136 of the Constitu tion, and allowing the appeal, HELD: 1.
Both the courts below had proceeded on the footing that it was for the accused to prove the ingredients of section 5(1)(d) of the Act.
This approach was wrong.
It was for the prosecution to prove affirmatively that the appel lant by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
[536 C D] 2.
Normally this Court in special leave against a con current judgment of the High Court and the trial Court does not re appraise the evidence, but here we find that both the courts below have drawn wrong inferences from proved facts and have made a completely wrong approach to the whole case by misplacing the onus of proof which lay on the prosecution on the accused and presuming that the accused had a dishon est intention.
[536 B C, H] Narayanan Nambiar vs State of Kerala [1963] Supp.
2 SCR 724; 730 731, referred to.