Rameshwar Bhartia vs The State Of Assam

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 40 of 1951

Decision Date: 23 October 1952

Coram: N. Chandrasekhara Aiyar, Natwarlal H. Bhagwati

In this case, the Court noted that the petition titled Rameshwar Bhartia versus the State of Assam was decided on 23 October 1952 by the Supreme Court of India. The judgment was authored by Justice N Chandrasekhara Aiyar, and the bench comprised Justice N Chandrasekhara Aiyar and Justice Natwarlal H Bhagwati. The petitioner was Rameshwar Bhartia and the respondent was the State of Assam. The citation for the decision was 1952 AIR 405, and it also appeared in the Supreme Court Reporter as 1976 SC 680 (3). The case involved section 556 of the Criminal Procedure Code of 1898, which dealt with the concept of a magistrate being “personally interested” in a proceeding. The Court examined the meaning of “personally interested” in relation to an officer who gave sanction to prosecute and whether that officer was disqualified from trying the case. It also distinguished between a sanction to prosecute and a direction to prosecute. The headnote explained that the question whether a magistrate is “personally interested” under section 556 had to be decided on the facts of each case. In the present matter, an officer serving as District Magistrate exercised powers under section 7(1) of the Essential Supplies (Temporary Powers) Act, 1946, to sanction prosecution of a person for violating sections 3 and 7 of the Assam Food Grains Control Order, 1947. The same officer, acting as Additional District Magistrate, later tried and convicted the accused. It was argued that because the officer had given the sanction, he was “personally interested” within the meaning of section 656 of the Criminal Procedure Code, and therefore the trial and conviction were illegal. The Court held that merely giving sanction for prosecution did not make the officer personally interested in the case, and consequently the trial and conviction were not illegal. The Court explained that both sanction and direction to prosecute required a consideration of the mind, but there was a fundamental difference. In the case of sanction, the absence of sanction created a legal barrier to prosecution, whereas a direction constituted a positive order to commence prosecution. For a sanction, it was sufficient that the authority was satisfied that a prima facie case existed. In contrast, a direction required the authority to be convinced that the accused deserved prosecution. The Court noted that the decision to grant sanction could be influenced by considerations unrelated to the merits of the case, while a direction implied that the authority was personally satisfied that the case must be pursued. Thus, sanction functioned as permission, while direction functioned as a command. The Court referred to several earlier authorities, including Gokulchand Dwarka Das v. The King (1948) 52 C.W.N. 325, Government of Bengal v. Heera Lall Dass and Others (1872) 17 W.R. Cr. 39, Queen Empress v. Chenchi Reddi (1901) I.L.R. 24 Mad. 238, Girish Chunder v. Queen Empress (1893) I.L.R. 20 Cal. 857, and Emperor v. Ravji (1903) 5 Bom. L.R. 542. The judgment concerned Criminal Appeal No. 40 of 1951, which was an appeal from the order of the High Court of Judicature at Assam dated 1 June 1951, delivered by Chief Justice Thadani and Justice Ram Labhaya J., arising from Criminal Reference No. 1 of 1951, which in turn stemmed from an order dated 15 November 1950 of the Additional District Magistrate, Lakhimpur, in case number 1126C of 1950. The appellant, Rameshwar Bhartia, was a shopkeeper in Assam who had been prosecuted for storing paddy without a licence in excess of the limit permitted by the Assam Food Grains Control Order, 1947. He admitted possession of 550 maunds of paddy but claimed ignorance of any licensing requirement. The Additional District Magistrate recorded a plea of guilt but imposed only a fine of Rs. 50, considering the appellant’s ignorance to be genuine. The stock of paddy remained in the appellant’s possession under a security bond executed in his favour by the Procurement Inspector. He later could not produce the stock.

In this matter, Labhaya J. made a reference numbered I of 1951, which derived from the judgment and order dated the fifteenth of November, 1950, issued by the Court of the Additional District Magistrate at Lakhimpur in case number 1126C of 1950. The appellant was represented by counsel Jindra Lal, while the respondent was represented by counsel Nuruddin Ahmed. The judgment was delivered on the twenty-third of October, 1952, by Justice Chandrasekhara Aiyer. The appellant, Rameshwar Bhartia, was identified as a shopkeeper operating in Assam. He faced prosecution on the ground that he had stored paddy without possessing a licence and that the quantity stored exceeded the limit prescribed by the Assam Food Grains Control Order of 1947. The appellant admitted that he possessed and stored five hundred and fifty maunds of paddy but contended that he was unaware of any requirement to obtain a licence for such storage. The Additional District Magistrate recorded a plea of guilty and, considering the appellant’s ignorance of the provisions of the Food Grains Control Order to be genuine, imposed only a monetary penalty of fifty rupees. The paddy stock had been placed in the appellant’s possession by a Procurement Inspector under a Jimmanama, which is a security bond executed in the appellant’s favour. Subsequently, the appellant was unable to produce the paddy before the court because the entire quantity had been removed by a Congress Member of the Legislative Assembly for the purpose of providing relief to victims of an earthquake. Consequently, the court ordered the appellant to procure a comparable quantity of paddy after obtaining the appropriate licence and to deliver the same to the procurement department upon payment of the price. At the request of the procurement department, the District Magistrate referred the case to the High Court under section 438 of the Criminal Procedure Code, seeking enhancement of the sentence on the view that the original penalty was unduly lenient and that the broken Jimmanama should have been forfeited. The High Court accepted the reference and increased the sentence to rigorous imprisonment for six months together with a fine of one thousand rupees. Regarding the Jimmanama, the case was remitted to the trial court to take action in accordance with section 514 of the Criminal Procedure Code for its forfeiture. The appellant then applied to the High Court for a certificate under article 134(1)(c) of the Constitution, asserting that the case was suitable for appeal to this Court. The application was granted. Of the three points raised by the appellant, two were dismissed, but the third was accepted as a valid ground because it identified a breach of section 556 of the Criminal Procedure Code, rendering the trial before the Additional District Magistrate void. One contention argued before this Court was that Shri C. K. Bhuyan was not a “Director” within the meaning of the relevant order and therefore the sanction required under section 38 of the order was invalid. A notification dated the sixteenth of May, 1950, and published in the Assam Gazette on the twenty-fourth of May, 1950, was produced to demonstrate that Shri C. K. Bhuyan held the position of Additional Deputy Commissioner; this fact was conceded by the appellant’s counsel.

The High Court observed that any officer who held the rank of Deputy Commissioner was, for the purposes of the Order, deemed to be a Director, because all Deputy Commissioners in Assam had been notified as Directors. The appellant’s counsel, Mr Jindra Lal, attempted to distinguish an Additional Deputy Commissioner from a Deputy Commissioner, arguing that the former should not be treated as a Director under the same Order. The Court found no substantive basis for such a distinction and noted that the question of whether the officer in question was a Director was a factual issue that required fresh investigation. Consequently, the Court refused to allow that factual dispute to be raised for the first time at this stage of the appeal. The principal issue before this appeal was whether Section 556 of the Criminal Procedure Code had been infringed, thereby depriving the trial court of jurisdiction to try the offence. The facts relevant to that question were confined to a narrow series of events. On 1 July 1950 the Procurement Inspector issued a report describing the nature of the alleged offence and, in a short note, recommended that the accused be prosecuted and that the Assistant Director of Procurement at Dibru Garh be authorised to dispose of the paddy immediately so as to avoid loss through deterioration. Acting in his capacity as the District Magistrate of Lakhimpur, Sri C K Bhuyan issued an order sanctioning prosecution under section 7(1) of the Essential Supplies (Temporary Powers) Act, 1946 for alleged violations of sections 3 and 7 of the Assam Food Grains Control Order, 1947. The same officer, now serving as Additional District Magistrate, subsequently tried the case and the accused was convicted. The appellant argued that by authorising the prosecution, Sri C K Bhuyan had become “personally interested” in the case within the meaning of Section 556 and was therefore incompetent to preside over the trial. It was further contended that the trial was both irregular and illegal. The Court accepted that the term “personal interest” in Section 556 is not limited to a private pecuniary stake; it may also include an official interest. However, the extent of interest that triggers the disqualification is a matter on which different views have been expressed, and the provision itself indicates the difficulty of drawing a precise line. The Explanation to Section 556 states that a judge or magistrate shall not be deemed a party or personally interested merely because he holds a public office such as Municipal Commissioner, or merely because he has visited the place where the offence is alleged to have been committed, or any other place material to the case, or merely because he has made an inquiry in connection with the case. This explanation demonstrates that mere involvement in a public capacity does not automatically render a judicial officer incompetent to try the matter. Even if the magistrate had made an inquiry related to the case, that fact alone would not create the disqualification contemplated by Section 556.

The Court observed that the illustration set out in the Code makes clear that a person who directs a prosecution in one official capacity may not later sit as a magistrate in the same case. In the illustration, it reads: “A, as collector, upon consideration of information furnished to him, directs the prosecution of B for a breach of the excise laws. A is disqualified from trying this case as a Magistrate.” The language of the illustration demonstrates that the act of directing a prosecution creates an active interest which triggers disqualification when the same individual attempts to try the case in a different role. The explanation and the illustration together support the view that a distinction exists between a passive interest and an active interest, and that only the latter gives rise to disqualification.

The Court then turned to the definition of “Director” under sub-section (3)(a) of section 2 of the Assam Food Grains Control Order, which states: “Director means the Director of Supply, Assam, and includes, for the purpose of any specific provision of this Order, any other officer duly authorised in that behalf by him or by the Provincial Government by notification in the Official Gazette.” Section 38 of the same Order provides that no prosecution for an alleged contravention of any provision of the Order shall be instituted without the sanction of the Director. The Court noted that the use of the word “Director” in the Control Order and the verb “directs” in the illustration to section 556 of the Code may cause confusion. It explained that a sanction issued by the Director, as understood in the Code, does not necessarily amount to a direction ordering the accused to be prosecuted. Both a sanction and a direction require an exercise of mind, but they differ fundamentally. In the case of a sanction, the law creates a barrier to prosecution if the sanction is absent; the sanction merely requires that a prima facie case exist. By contrast, a direction is a positive command that the prosecution must be launched, and it entails a further consideration that the accused deserves to be prosecuted.

The Court emphasized that whether a magistrate is personally interested must be decided on the facts of each case. Any pecuniary interest, however small, constitutes a disqualification. For other kinds of interest, there is no precise measurement, but the interest must be substantial enough to create a real bias or a reasonable apprehension of bias on the part of the accused. The maxim “Nemo debet esse judex in propria sua causa” applies only when the interest is such that the case becomes the judge’s own cause. The Court further observed that merely fulfilling a technical statutory requirement does not necessarily mean that the officer is mentally satisfied with the truth of the facts before him. The decision to grant a sanction may depend on considerations extraneous to the merits of the case, whereas a directed prosecution indicates that the authority giving the direction is convinced, in his own mind, that the case must be initiated.

In this case the Court explained that when an authority issues a direction, the authority must be satisfied in its own mind that a prosecution should be commenced. The Court distinguished a sanction, which it called a permission, from a direction, which it described as a command. The Court then considered a number of precedents that addressed this distinction. For the appellant, strong reliance was placed on the Privy Council judgment in Gokulchand Dwarkadas v. King (1) and it was argued that certain observations of the Judicial Committee showed that a sanction was an important and substantial matter rather than a mere formality. The facts in that case involved a sanction of the Government for a prosecution under the Cotton Cloth and Yarn Control Order, but there was no evidence in the sanction itself, nor in any extraneous material, to demonstrate that the sanction had been granted after the relevant facts had been placed before the sanctioning authority. The Court quoted the Lords’ own words: “There is no evidence to show that the report of the Sub-Inspector to the District Superintendent of Police, which was not put in evidence, was forwarded to the District Magistrate, nor is there any evidence as to the contents of the endorsement of the District Magistrate, referred to in the sanction, which endorsement also was not put in evidence. The prosecution was in a position either to produce or to account for the absence of the report made to the District Superintendent of Police and the endorsement of the District Magistrate referred to in the sanction, and to call any necessary oral evidence to supplement the documents and show what were the facts which the sanction was given.” In this connection the Lords emphasized that the sanction to prosecute was an important step constituting a condition precedent, observing that “looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor, in their Lordships’ view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of clause 23.” The Court held, however, that this authority did not equate a sanction with a direction. While the facts should be known to the sanctioning authority, it was not necessary for the authority to undertake a deep or even a perfunctory investigation of the facts before granting the sanction. The decision therefore gave no support to the view that a sanction automatically disabled the sanctioning authority, under section 556 of the Code, from trying the case that arose from the sanction. On the contrary, there was ample authority supporting the opposite view. The Court noted an early decision, The Government of Bengal v. HeeraLall Dass and Others (1), decided at a time when there was no specific statutory provision such as section 556 of the Code but only the general rule that a person could not be a judge in a case where he had an interest. In that case a Sub-Registrar, who was also an Assistant Magistrate, having learned in his official capacity as a registering officer that an offence under the Registration Act had been committed, sanctioned a prosecution and subsequently tried the case himself. A Full Bench consisting of Sir Richard Couch C.J. and five other learned judges examined several English cases and concluded that the trial was not vitiated. The learned Chief Justice observed that the Sub-Registrar did not have an interest that disqualified him from trying the case and commented on arguments that the Sub-Registrar had already made up his mind, noting that the accused would still be entitled to a fair trial.

In the matter before the Court there was no specific statutory provision titled section 556 of the Code; the only rule that applied was the well-known common-law principle that a person could not act as a judge in a case in which he possessed a personal interest. The facts were that a Sub-Registrar, who also held the office of Assistant Magistrate, learned in his official capacity as a registering officer that an offence under the Registration Act had been committed. Acting on that knowledge he authorized a prosecution and subsequently presided over the trial of the very case he had sanctioned. A Full Bench consisting of Sir Richard Couch C.J. and five other learned Judges examined several English authorities and reached the conclusion that the trial was not vitiated by the Sub-Registrar’s dual role. The learned Chief Justice stated:

“In this case, I think, the Sub-Registrar has not such an interest in the matter as disqualifies him from trying the case; and I may observe with reference to some of the arguments that have been used as to the Sub-Registrar having made up his mind, and that the accused would have no chance of a fair trial, that the sanction of the superior officer, the Registrar, is required before the prosecution can be instituted, and certainly I do not consider that the prosecution will not be instituted unless the Sub-Registrar has made up his mind as to the guilt of the party. It is his duty, when he comes to know that an offence has been committed, to cause a prosecution to be instituted, by which I understand that there is prima facie evidence of an offence having been committed, that there is that which renders it proper that there should be all enquiry, and the Registrar accordingly gives his sanction to it; and certainly, I cannot suppose that, because an officer in his position sanctions the institution of a prosecution, his mind is made up as to the guilt of the party and that he is not willing to consider the evidence which may be produced before him when he comes to try the case. In this case, there appears to be no such interest as would prevent the case from going before the Magistrate as the trying authority.”

The Court further noted that in Queen-Empress v. Chenchi Reddi (1) the presence of a mere authorisation, rather than a direct direction, did not create a disqualifying disability. The decision in Girish Chunder Ghose v. The Queen-Empress (2) was distinguished because, in that case, the Magistrate had taken a very active part in the matter as an executive officer. The Bombay High Court went a step further in the case reported in Emperor v. Bavji (3), where the Magistrate who tried the case had earlier conducted a departmental enquiry and forwarded his report to the Collector, expressing the opinion that sufficient evidence existed to justify a criminal prosecution. Since the Magistrate merely expressed an opinion on the existence of evidence, without having taken or examined the evidence himself, the court held that the Magistrate was not disqualified from conducting the trial, although it would have been more expedient for the Collector to refer the matter to another subordinate. This line of reasoning underscored that the critical question of disqualification under section 556 depends on the specific facts and circumstances of each case, with the decisive factor being whether a legal impediment was removed by a sanction and the initiation of proceedings as a result of a direction.

The Court observed that the Magistrate was not disqualified from conducting the trial, although it would have been more efficient if the Collector had referred the matter to another subordinate. The Court explained that whether the prohibition in section 556 of the Criminal Procedure Code applies depends on the specific facts and circumstances of each case. The dividing line is narrow but discernible: it is crossed only when a legal impediment is removed by the grant of sanction and the initiation of criminal proceedings as a result of a direction. In the present case, the only act was the issuance of a sanction, and there was no direction to commence proceedings. Consequently, the Court concluded that the trial was not invalidated by the provisions of section 556.

The Court then turned to a more substantial argument raised on behalf of the appellant concerning the manner in which a security bond had been obtained. The bond had been taken by the Procurement Inspector, not by the court, and although it contained a commitment that the seized paddy would be produced before the court, the promise was made to a specific official rather than to the court itself. The Court held that the High Court was mistaken in applying section 514 of the Criminal Procedure Code to this situation. Section 514 can be invoked only when a bond is taken by the court under the Code, such as under section 91 for appearance, the various security provisions, or bail provisions. The Court quoted the first clause of section 514, which states that a court may act on a bond only after it is satisfied that the bond has been forfeited and after recording the grounds for such proof. The Court emphasized that the power to forfeit a bond and impose a penalty arises only when the preliminary conditions prescribed by the statute are fulfilled. No submission was made to suggest that the High Court was exercising its inherent power under section 561-A to forfeit the bond, and the Court noted that when the Code contains an explicit provision on a matter, reliance on inherent jurisdiction under a general provision is not permissible. Finally, the Court acknowledged an additional circumstance favorable to the appellant: the seized paddy had been taken away by a Member of the Legislative Assembly to provide relief to those affected by the earthquake.

The Court noted that the paddy seized had apparently been taken by a member of the Legislative Assembly for the purpose of providing relief to persons affected by the earthquake, and that this claim was supported by a letter addressed by the MLA to the Additional District Magistrate dated 1 November 1950. In view of that evidence, the Court considered it to be harsh and possibly unjust to require the MLA to replace the same quantity of paddy or an equivalent amount. Consequently, the Court set aside the order of the High Court that had remitted the matter back to the Magistrate for further action under section 514. Although the Court ordinarily refrains from interfering with sentencing, it observed that the Magistrate had accepted the appellant’s contention that he was unaware of the provisions of the Assam Food Grains Control Order, 1947, and that this ignorance was found to be genuine. Taking into account that the original penalty consisted only of a fine of Rs 50, whereas the High Court had imposed a substantially harsher punishment of six months’ rigorous imprisonment together with a fine of Rs 1,000, the Court concluded that the increase was excessive. Accordingly, the Court ordered that the imprisonment sentence imposed by the High Court be set aside while allowing the fine of Rs 1,000 to remain in force. The sentence was therefore reduced. The appellant’s agent was Rajinder Narain and the respondent’s agent was Naunit Lal.