Rameshwar Bhartia vs State Of Assam

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1952 Supreme(SC) 59

SUPREME COURT OF INDIA
23rd October 1952
CHANDRASEKHARA AIYAR AND BHAGWATI JJ.
Rameshwar Bhartia, Appellant
Versus
The State of Assam.
Criminal Appeal No. 40 of 1951.
Advocates appeared
Shri Jindra Lal, Advocate, instructed by Shri Rajinder Narain, Agent - for Appellant ; Shri Nur-ud-Din Ahmad, Advocate, instructed by Shri Naunit Lal, Agent - for the State of Assam.

Advocates:
INDRA LAL, NAUNIT LAL, Nuruddin Ahmed, RAJENDER NARAIN

Headnote:Article 134 -New point of fact-Practice.
       Held: A question of fact which has to be investigated afresh cannot be allowed to be raised for the first time in appeal to the Supreme Court. - Section 514-Scope-Bond not taken by Court but by other officials.
       Held: Action can be taken under S. 514, Cr.P.C. only when the bond is taken by the Court under the provisions of the Code such as S. 91 for appearance, the several security sections or those relating to bail. Where the security bond was taken not by the court but by the Procurement Inspector this section will not apply. - Section 556-Meaning of "personally interested."-Magis1rate granting sanction for prosecution in another capacity is not disqualified from trying case himself.
       Held: (1) The question whether a magistrate is personally interested .or not has essentially to be decided on the facts in each case. Pecuniary interest, however small, will be a disqualification, but as regards other kinds .of interest, there is no measure or standard except that it should be a substantial one, giving rise to a real bias, or a reasonable apprehension on the part of the accused of such bias. The maxim " Nome Debt esse judex in propria sua cause" applies only when the interest attributed is such as to render the case his own cause.
       (2) In both cases of sanction and. direction, an application of the mind is necessary, but there is this essential difference that in the one case there is a legal impediment to the prosecution if there be no sanction, and in the other case, there is a positive order that the prosecution should be launched. For a sanction, all that is necessary for one to be satisfied about is the existence of a prima facie case. In the case of a direction, a further element that the accused deserves to be prosecuted is involved. The question whether a Magistrate is personally interested or not has essentially to be decided on the facts in each case.
       (3) The fulfilment of a technical requirement imposed by a statute may not, in many cases, amount to a mental satisfaction of the truth of the facts placed before the officer. Whether sanction should be granted or not may conceivably depend upon considerations extraneous to the merits of the case. But where a prosecution is directed, it means that the authority who gives the direction is satisfied in his own mind that the case must be initiated. Sanction is in the nature of a permission, while a direction is in the nature of a command.
       (4) " Personal interest" within the meaning of S. 556, Cr. P.O., is not limited to private interest and it may include official interest also. The explanation to the section shows that to be connected with a case in a public capacity is not by itself enough to render the person incompetent to try it. Even if he had made enquiry in connection with the case, it would not matter.
       It is evident from the words of the illustration to the section that if a prosecution is directed by a person in one capacity, he shall not try the case acting in another capacity, as a Magistrate.
       The explanation and illustration lend some support to the view that there is a distinction between a passive interest, and an active interest, and it is only in the latter case that the disqualification arises or intervenes.
       (5) Accordingly, where a Magistrate who had granted a sanction for prosecution of the accused under section 38 of the Assam Food Grains Control Order in his capacity as a Director under that Order, tries the case himself, the trial is not rendered illegal, as it cannot be said that by reason of granting such sanction he had become" personally interested" in the case within the meaning of section 556, Cr. P.C.

Judgement

Chandrasekhara Aiyar J. - Rameshwar Bhartia, the appellant, is a shopkeeper in Assam. He was prosecuted for storing paddy without a licence in excess of the quantity permitted by the Assam Food Grains Control Order, 1947. He admitted storage and possession of 550 maunds of paddy, but pleaded that he did not know that any licence was necessary. The Additional District Magistrate recorded a plea of guilty, but imposed on him a fine of Rs. 50 only, as he considered his ignorance of the provisions of the Food Grains Control Order to be genuine. The stock of paddy was left in the possession of the appellant by the Procurement Inspector under a Jimmanama or security bond executed in his favour. He was subsequently unable to produce it before the Court, as the whole of it was taken away by a Congress M. L. A. for affording relief to those who suffered in the earthquake, and so, the appellant was ordered to procure a similar quantity of paddy after taking an appropriate licence, and to make over the same to the procurement department on payment of the price.

2. The District Magistrate, on being moved to do so by the procurement department, referred the case to the High Court under S. 438, Cr. P. C., for enhancement of the sentence, as in his opinion the sentence was unduly lenient and the Jimmanama, which was admittedly broken, should have been forfeited.

3. The reference was accepted by the High Court, and the sentence was enhanced to rigorous imprisonment for six months and a fine of Rs. 1,000. As regards the Jimmanama, the case was sent back to the trial Court for taking action according to law under S. 514, Cr. P. C., for its forfeiture.

4. The appellant applied to the High Court for a certificate under Art. 134 (1) (c) of the Constitution that the case was a fit one for appeal to this Court. This application was granted. Out of the three points urged for the appellant two were rejected, but the third one was accepted as a good ground, namely, that there was a contravention of the provisions of S. 556, Criminal P. C. and that consequently the trial before the Additional District Magistrate was void.

5. One of the contentions urged before us was that Shri C. K. Bhuyan was not a "Director" at all and, therefore, there was no valid sanction under S. 38 of the Order. A notification dated 16-5-1950 and published in the Assam Gazette of 24-5-1950 was produced before us to show that Sri C. K. Bhuyan was an Additional Deputy Commissioner, and it was conceded by the appellant s counsel before the High Court that if he was a Deputy Commissioner, he would be a Director under the Order, as all Deputy Commissioners in Assam were notified as Directors for the purposes of the Order. Mr. Jindra Lal sought to draw a distinction between a Deputy Commissioner and an Additional Deputy Commissioner in this respect, but there is no warrant for the same, apart from the circumstance that it is a question of fact which has to be investigated afresh, and which we cannot allow to be raised now for the first time.

6. The primary question to consider in this appeal is whether there has been any infringement of S. 556, Criminal, P. C., and a consequent want of jurisdiction in the Court which tried the offence. The facts relevant to this question lie within a narrow compass. The Procurement Inspector sent a report on 1-7-1950 about the nature of the offence, he wrote out a short note on the subject, and requested that the accused might be prosecuted and the Assistant Director of Procurement, Dibrugarh, might be authorised to dispose of the paddy immediately to avoid loss due to deterioration. Sri C. K. Bhuyan, who was the then District Magistrate, Lakhimpur, made the following order:

"Prosecution sanctioned under S. 7 (1), Essential Supplies (Temporary Powers) Act 1946 for violation of Ss. 3 and 7, Assam Food Grains Control Order, 1947."

The case happened to be tried by the same gentlemen in his capacity as Additional District Magistrate, and the accused was

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