Judgement

Petition for special leave to appeal in forma pauperis from a judgment and order of the Federal Court of India, sitting at Delhi (April 12, 1939), which reversed in part, and partly affirmed, a judgment and order of the High Court at Lahore (October 20, 1938).

This petition was the first matter from the Federal Court of India to come before the Judicial Committee of the Privy Council.

The petitioner, Dr. Hori Ram Singh, was a Sub-Assistant Surgeon in the Punjab Provincial Medical Service, having served for over twenty-eight years. From December, 1935, to the end of March, 1937, he was in charge of the Rural Hospital at Mithankot, which was maintained by the District Board of Dera Ghazi Khan, through the Inspector-General of Civil Hospitals, Punjab.

On September 10, 1937, the petitioner was charged in the Court of the First-class Magistrate at Dera Ghazi Khan, that (1.) on or about January 1, 1937, at Mithankot, being a public servant and in such capacity entrusted with medicines of the hospital, he committed criminal breach of trust in respect of certain named medicines to the value of Rs.7-8-0, and thereby committed an offence punishable under s. 409 of the Indian Penal Code; and (2.) on or about January I, 1937, at Mithankot, being a public servant as the doctor and officer in charge of the hospital, he wilfully and with intent to defraud omitted to record entries in the stock books of medicines for 1937, and thereby committed an offence punishable under s. 477A of the Indian Penal Code.

The petitioner pleaded "not guilty" to both charges.

On October 30, 1937, the First-class Magistrate at Dera Ghazi Khan found the petitioner guilty on both charges, and sentenced him to six months rigorous imprisonment under each count, the sentences to run concurrently.

The petitioner then appealed against his conviction and sentence to the sessions judge of Dera Ghazi Khan, who, on February 26, 1938, acquitted him on the ground that under s. 270, sub-s.1, of the Government of India Act, 1935, the consent of the Governor was necessary before the proceedings against the petitioner could be instituted.

By s. 270 of the Government of India Act, 1935 "(1.) No proceedings, civil or criminal, shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown in India before the relevant date, except with the consent....in the case of a person employed in connection with the affairs of a Province, of the Governor of that Province in his discretion."

The "relevant date" referred to in the sub-section was April 1, 1937, when the Act came into force with regard to the Indian Provinces.

Against the order of the sessions judge the Crown appealed to the High Court at Lahore, and a Criminal Division Bench of that Court (Young CJ. and Blacker J.) on October 20, 1938, set aside the order of acquittal on the ground that s. 270, sub-s. 1, of the Act did not apply as an act done in the execution of his duty as a servant of the Crown cannot by any stretching of the English language be made to apply "to an act which is clearly a dereliction of his duty as such." The High Court accordingly returned the record to the session’s judge for trial on the merits.

The petitioner then applied on November 17, 1938, to the High Court at Lahore for a certificate for appeal to the Federal Court of India under s. 205 of the Government of India Act. In granting the certificate the judges of the High Court stated that our attention has been drawn to some authorities of the other High Courts on which it may be possible to found an argument that the consent of the Governor was necessary. There are also other cases where the same point is taken, and an authoritative decision is required."

[In his petition to the Privy Council the petitioner stated that the “authorities of the other High Courts" referred to by the High Court at Lahore related to the construction of s. 197 of the Code of Crimina