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1948 Supreme(Mad) 46
PRIVY COUNCIL
Lord Simonds, Lord Normand, Lord Morton of Henryton, Lord MacDermott, Sir Madhavan Nair and Sir John Beaumont,JJ.
H.H.B. Gill and another
Versus
The King-Emperor
P.C. Appeal No. 57 of 1947.
Decided On : 17 February 1948
Sir Valentine Holmes, K.C. and Pullan for Appellant.
Sir Walter Monckton, K.C. and J. Megaw for Respondent.
The main legal point established in the judgment is that the admissibility of evidence under section 10 of the Indian Evidence Act is crucial in conspiracy charges, and without such admissible evidence, a conviction cannot be sustained.
Headnote:
Sanction - Criminal Conspiracy - Section 197 of the Code of Criminal Procedure - Section 270 of the Government of India Act - 120-A, 120-B, 161, 165, 420 of the Indian Penal Code
Fact of the Case:
The appellants were convicted for offences under section 165 read with section 120-B of the Indian Penal Code. The charges related to a criminal conspiracy to cheat the Government of India and the admissibility of evidence upon a charge of conspiracy.
Finding of the Court:
The Court held that the conviction of the appellants could not be sustained as the evidence admitted under section 10 of the Indian Evidence Act was not admissible against the appellants, and without such evidence, there was no material upon which they could be convicted of conspiracy.
Issues: The issues related to the necessity of sanction under section 270 of the Government of India Act and section 197 of the Code of Criminal Procedure, the admissibility of evidence under section 10 of the Indian Evidence Act, and the competence of the Magistrate to record a conviction under section 120-B read with section 165.
Ratio Decidendi: The Court held that no sanction under section 197 of the Code of Criminal Procedure was needed and that the conviction could not be sustained due to the inadmissibility of evidence under section 10 of the Indian Evidence Act.
Final Decision: The Court advised that the appeals should be allowed and the convictions of the appellants under section 120-B read with section 165 of the Penal Code be quashed.
This appeal which is brought from a judgment of the Federal Court of India1 dated the nth December, 1946, raises questions of difficulty and general importance. They relate in the first place to the problem which has so often been debated in the Courts of India in regard to the meaning and effect of section 197 of the Code of Criminal Procedure and in the second place to the admissibility of evidence upon a charge of conspiracy.
The nature of the case demands that the facts should be set out at some length.
As a result of the judgment now under appeal the Appellants H.H.B. Gill and A. Lahiri stand convicted for offences under section 165 read with section 120-B of the Indian Penal Code.
The appellant Gill joined the Indian Army Ordinance Corps in December, 1939. He was appointed Staff Captain in the Contracts Directorate from January 1940 and in April, 1941, he was given the temporary rank of Major as Deputy Assistant Director of Contracts at Calcutta. In this office he was responsible for the issue and acceptance of tenders for purchase of material in compliance with indents made by the proper authorities.
The Appellant Lahiri is the proprietor of the Baranagore Engineering Works. In that capacity he obtained numerous contracts for supplying Government requisites through the appellant Gill and other officers.
As a result of secret enquiries which, for reasons that need not be further investigated, the Deputy Superintendent of Police, Calcutta, thought fit to make into the affairs of Gill. It was found that Gill had on the 21st May, 1941, received from Lahiri a cheque for Rs. 500. A search warrant was then obtained for the search of Lahiri’s house. The warrant was executed on the nth October, 1942, and the police took possession of a diary kept by Lahiri and of the counterfoils of his cheque book in which there were notes purporting to refer to Gill in the handwriting of Lahiri. Upon these materials with others to which reference will be made, it was determined that criminal proceedings should be instituted against Gill and Lahiri and accordingly steps were taken to obtain what were thought (so far as Gill was concerned) to be the necessary consent and sanction under section 270 of the Government of India Act, 1935, and section 197 of the Code of Criminal Procedure as amended by the Government of India (Adaptation of Indian Laws) Order, 1937. It is convenient to set out these sections. They are as follows:-
Section 270 of the Government of India Act (1935).
"Indemnity for Past Acts.-(1) No proceedings civil or criminal shall be instituted against any person in respect of any act done or purporting to be dome in the execution of his duty as a servant of the Crown in India or Burma before the relevant date, except with the consent, in the case of a person who was employed in connection with the affairs of the Government of India or the affairs of Burma, of the Governor-General in his discretion, and in the case of a person employed in connection with the affairs of a Province, of the Governor of that Province in his discretion".
Section 197 of the Code of Criminal Procedure (as amended).
"(1) When any person who is a Judge within the meaning of section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a Provincial Government or some higher authority, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(A) in the case of a person employed in connection with the affairs of the Federation, of the Governor-General exercising his individual judgment; and
(B) in the case of a person employed in connection with the affairs of a Province, of the Governor of that Province exercising his individual judgment,
(2) The Governor-General or Governor, as the case may be, exercisin
