Sanction for prosecution of Government servant essential.

Lord Reid.-On 19th June, 1946, the appellants were convicted and sentenced by the Chief Presidency Magistrate,

Bombay. The charge against the 1st appellant was that he, being a public servant, accepted a sum of Rs. 15,000 for

forbearing to prosecute a metal merchant named Vakharia and thereby committed an offence punishable under section

161 of the Indian Penal Code. The 2nd appellant was charged with abetting that offence. An appeal by the 1st appellant

to the High Court at Bombay was dismissed on 20th March, 1947. It appears from the judgment of Stone, C.J., that

there were two grounds of appeal: first that the whole proceedings were invalid because no sanction had been given

under section 197 of the Criminal Procedure Code and secondly an appeal on the facts. The 2nd appellant did not

appeal to the High Court, but notice of enhancement of sentence was given to him and his sentence was increased on

20th March, 1947. On 21st April, 1947, a petition for special leave to appeal was lodged by the 1st appellant. In this

petition no reference was made to anything which had occurred before 15th March, 1944, when the charge against the

appellant was framed by the Chief Presidency Magistrate: it was narrated that the two main grounds of appeal to the

High Court had been the invalidity of the whole proceedings because no sanction to the prosecution had been given and

that on the merits of the case the appellant had been wrongly convicted. It was then stated:

“The grounds upon which your petitioner seeks leave to appeal are:

(i) that the Chief Justice and Mr. Justice Lokur erred in holding that sanction was not required to empower the Court to

take cognizance of the charge against your petitioner, that the Court which tried him was in these circumstances without

jurisdiction and that his conviction is, therefore, a nullity and

(ii) that there is a conflict of judicial opinion in India as to the true construction of section 197 in particular as to whether

sanction is required where a charge of taking a gratification is brought against a public servant and that it is fitting that this

conflict should be settled by the judgment of the Judicial Committee."

On this petition leave to appeal was granted by Order in Council of 21st May, 1947. On 27th May, 1947, a petition for

special leave to appeal was lodged by the 2nd appellant. The grounds of appeal stated in this petition were:

" that your petitioner submits that the trial of the said Lambardar Zutshi without previous sanction of the

Governor-General in Council under section 197 of the Criminal Procedure Code was without jurisdiction, that therefore

the trial of your petitioner jointly with him for abetment of the offence alleged to have been committed by the said Zutshi

was also illegal: and that the conviction and sentence passed upon your petitioner should be set aside."

On this petition leave to appeal was granted by Order in Council of nth June, 1947.

When leave to appeal was granted to the appellants it was still an open question whether sanction under section 197 of

the Criminal Procedure Code was necessary before a public servant could be prosecuted for an offence under section

161 of the Indian Penal Code. It has now been settled by their Lordships’ judgment in Gill v. The King1, that sanction is

not necessary and accordingly the appellants cannot succeed on the grounds of appeal set out in their petitions for leave

to appeal. Their counsel argued this appeal on an entirely different ground which is not even referred to in the judgments

of the High Court, although a preliminary objection raising a somewhat similar point was taken unsuccessfully before the

Chief Presidency Magistrate. Their Lordships would only be prepared to allow such an argument in an exceptional case.

In the present case it was argued that the new ground of appeal raised a question of jurisdiction, and their Lordships

permitted the argument to proceed. The argument was that the trial and conviction of the app