Judgement

Consolidated Appeals (No. 5 of 1948), by special leave, from the judgments of the High Court (February 12, 1947, and March 20, 1947) upholding the conviction and sentence passed by the Chief Presidency Magistrate (June 19, 1946) under s. 161 of the Indian Penal Code in the case of the appellant Zutshi, and upholding the conviction and enhancing the sentence passed by him on the same date under s. 161 read with s. 109 of the Penal Code in the case of the appellant Chimanlal.

The following facts are taken from the judgment of the Judicial Committee. The charge against the first 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 s. 161 of the Indian Penal Code. The second appellant was charged with abetting that offence. An appeal by the first appellant to the High Court at Bombay was dismissed on March 20, 1947. It appeared 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 s. 197 of the Criminal Procedure Code, and secondly, an appeal on the facts. The second appellant did not appeal to the High Court, but

Law Rep. 77 Ind. App. 62 ( 1949- 1950)

Lumbhardar Zutshi V. King 204

notice of enhancement of sentence was given to him, and his sentence was increased on March 20, 1947.

On April 21, 1947, a petition for special leave to appeal was lodged by the first appellant. In that petition no reference was made to anything which had occurred before March 15, 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 on which your petitioner seeks leave to appeal are

"(i) that the Chief Justice and Lokur J. 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 s. 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 his conflict should be settled by the judgment of the judicial Committee."

On that petition leave to appeal was granted by Order in Council of May 21, 1947. On May 27, 1947, a petition for special leave to appeal was lodged by the second appellant.

The grounds of appeal stated in that petition were "that your petitioner submit that the trial of the said Lumbhardar Zutshi without previous sanction of the Governor General in Council under s. 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 on your petitioner should be set aside." On that petition leave to appeal was granted by Order in Council of June 11, 1947.

1947. Nov. 7. Pullan for the appellants. Meg aw for the respondent.

Nov. 28. The judgment of their Lordships was delivered by LORD REID, who stated the facts-set out above and continued When leave to appeal was granted to the appellants it was still an open question, whether sanction under s. 197 of the Criminal Procedure Code was necessary before a public servant could be prosecuted for an offence under s. 161 of the Indian Penal Code. It has now been settled by their Lordships judgment in Gill v. The King (( 1948) L.R. 75 I.A. 41.), that sanction is not necessary