K. SATWANT SINGH v. STATE OF PUNJAB

By- Haseeb Khan[1]

In the Supreme Court of India

NAME OF THE CASEK. Satwant Singh v. State of Punjab
CITATION1960 AIR 266, 1960 SCR (2) 89
DATE OF JUDGEMENTOctober 28, 1959
APPELLANTK. Satwant Singh
RESPONDENTState of Punjab (and connected petition)
BENCH/JUDGEJustices Sinha, Bhuvneshwar P., Imam, Syed Jaffer, Kapur, J.L., Wanchoo, K.N., Gupta, K.C. Das.
STATUTES/CONSTITUTION INVOLVEDThe Essential Services (Maintenance) Ordinance Repeal Act, 2001.The Indian Penal Code, 1860.The Code of Criminal Procedure, 1973.
IMPORTANT SECTIONS/ARTICLESThe Indian Penal Code, 1860, s. 63, 109, 420The Code of Criminal Procedure, 1973, s. 196A, 197, 233 to 239

ABSTRACT

Satwant Singh, the plaintiff who had been a contractor in Burma, in response to an advertisement issued in August, 1942, by the expat government of Burma, acting at Simla, inviting claims from contractors for the construction and repairs executed by them, submitted claims adding up to several lacs of rupees. The Government of Burma transferred these claims to Major Henderson for verification at Jhansi in March and May, 1943, as he was the officer who had knowledge of these matters. He certified many of these claims to be correct and on his instrument the Government of Burma sanctioned the claims and directed the Controller of Military Claims at Kolhapur to pay the sum.

On the request of the plaintiff cheques drawn on the Imperial Bank of India at Lahore were posted to him from Kolhapur and were encashed in Lahore. The grandness of the claims aroused the mistrust of the Government and it was discovered that the claims made by the plaintiff were false. He was tried in several trials under S. 420 of the Indian Penal Code along with Henderson, charged under S.420/109 of the Code for assistance of those offences, before a Special Tribunal at Lahore, working under Ordinance No. XXIX of 1943, as amended by Ordinance No. XII of 1945.

After the partition of India, the trials by the Special Tribunal took place at Simla. The plaintiff was condemned at these trials and imprisonment ranging from one year to three years, and payment of penalties of varied measures was pronounced.

INTRODUCTION

The charge is defined under Section 2(b) of the Code Of Criminal Procedure, 1973, according to which, “ charges means the head of the charge when there are more than one charges ”. To put it in an added straightforward language, after the trial is initiated, the indicted person is informed about the allegations which have been raised against him and the provisions of the Code under which he’d be tried by the Court. The allegations put up against the indicted are therefore known as ‘Charges’  in the legal language.

 In the present case it was held that the sections of joinder of charges are not compelling in nature. They only permit the common trial of charges under certain circumstances, and the courts may consider the same in the interest of the administration of justice after comprehensively studying the data and circumstances of each case.

The general principle regarding charges as purported by Section 218 of the Code Of Criminal Procedure, 1973 is that every offence of which a particular has been indicted shall come under a separate charge and each similar charge shall be tried individually and distinctly. This means that each offence has to be treated as a separately and should be tried distinctively.

But, Section 218(2) carves out exceptions to Section 218(1). The provisions of Section 219, 220, 221 and Section 223, override the provisions as mentioned under Section 218 of the Code Of Criminal Procedure.

FACTS OF THE CASE

As a result of the Japanese raid of Burma in 1942 the Government of Burma and the Allied forces posted there were forced to leave that country. In connection with the evacuation from Burma and the defense of that country, the Government of Burma and the army had to execute certain jobs like as the construction of roads, repairs and construction of bridges, strengthening and repairing of old tracks and converting railroad lines into motor roads. Some of these jobs were executed by the army and some were entrusted to contractors. After evacuation of Burma its Government was located at Simla. In August 1942, the Government of Burma announced inviting claims from contractors who had executed jobs or had supplied accoutrements in Burma and had not yet been paid.

Satwant Singh had worked as a contractor in Burma. He at first submitted a claim for a sum of a little over Rs 18,000. Thereafter on, he put in farther claims the total sum of which ran into several lakhs of rupees. These claims were transferred by the Government of Burma to Major Henderson at Jhansi in March and May 1943, for verification as he was the officer who had knowledge of these matters. This officer certified numerous of these claims to be correct and transferred the papers back to Simla. He didn’t pass one claim because it was within the knowledge of another officer on the instrument of the claims by Henderson, the Finance Department of the Government of Burma sanctioned the same and the Controller of the Military Claims at Kolhapur was directed to pay the sum sanctioned. On the request of Satwant Singh cheques drawn on the Imperial Bank of India at Lahore were posted to him from Kolhapur and these cheques were encashed at Lahore. In all Satwant Singh was paid Rs. 7,44,865.

Later, dubieties of the Government of Burma were aroused concerning the numerous claims made on it and it was discovered that numerous of them, including some of those of Satwant Singh, were false. A police probe followed which revealed that a large number of claims made by varied persons including Satwant Singh in respect of jobs done for the benefit of the army were false. Satwant Singh was arrested on the 12th of April, 1944, at Ambala and was taken to Lahore. He had also submitted a claim in the name of his wife Surjit who was also arrested. Henderson was arrested at Imphal and brought to Lahore for interrogation.

Henderson had ran off to England and repatriation proceedings had to be taken against him under the Fugitive Offender’s Act of 1881. He was brought before the Special Tribunal in December 1949. In the meantime, Satwant Singh was separated and the trial against him alone continued. On Henderson’s return, the trial erstwhile again turned a conjoint trial. Henderson applied for examination of certain testimonies on commission in England. His prayer was granted. Satwant Singh, worrying that the trial of the cases against him would be delayed, requested that his cases be separated from the cases against Henderson. This prayer was allowed and his trials progressed against him as the sole indicted except in the trial of Cases 54, 55 and 56 in which Henderson was co-accused with him.

ISSUES RAISED BEFORE THE COURT

  1. Whether the absence of a sanction under Section 197 of the Code of Criminal Procedure, 1973 vitiated the trial?
  2. Whether the fine imposed in this particular case is excessive in nature?
  3. Whether the facts which are alleged to constitute the offence of abetment of cheating under Section 420, read with Section 109 of the Indian Penal Code, fall within Section 197, Criminal Procedure Code?

ARGUMENTS FROM THE APPELLANT SIDE

  1. It was urged by Mr. Harnam Singh, learned counsel for the respondent that in the High Court the objection had been taken but it had been overruled on the ground that there was in fact a sanction in existence, and the High Court was under a misapprehension.
  2. It was suggested by the learned counsel, Mr. Harnam Singh, that in one trial any number of persons could be tried for a single offence along with any number of persons accused of abetment of that offence. The argument was based on the words “an offence” in that clause and the suggestion was that these words meant a single offence.
  3. The learned counsel further stated that according to Section 63 of the Indian Penal Code and submitted that a sentence of fine could at no time be excessive and therefore the sentence of fine which could be imposed under Section 420 was not entirely unlimited as it could not be excessive.

ARGUMENTS FROM THE RESPONDENT SIDE

  1. It was urged by the learned counsel for the appellant, Solicitor General C.K. Daphtary, that the prosecution had no opportunity of establishing that Henderson, though a public servant, was a person not removable by the Governor-General-in-Council or the Provincial Government.
  2. The Solicitor-General submitted that the provisions of the Code of Criminal Procedure must be construed as they stand and reference to decided cases may be made to assist the court in the matter of construction if necessary.
  3. It was further pointed out by the Solicitor-General that although the appellant was asked to specify the points of law upon which these appeals would be urged, he did not state that, in fact, he had been prejudiced by a joint trial of himself and Henderson. He also pointed out that as the result of the amendment of the Code of Criminal Procedure misjoinder of charges did not vitiate the trial unless the misjoinder had, in fact, occasioned failure of justice.
  4. It was urged by the Solicitor-General that the Special Tribunal was in error in describing the fines imposed by it as “ordinary” and “compulsory”.

RELATED PROVISIONS

  1. The Indian Penal Code, 1860.
    1. “Section 63. Amount of fine.[2]—Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive.
    1. Section 109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.—[3]Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abet­ment, be punished with the punishment provided for the offence. Explanation.—An act or offence is said to be committed in conse­quence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
    1. Section 420. Cheating and dishonestly inducing delivery of property.—[4]Whoever cheats and thereby dishonestly induces the person de­ceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
  2. The Code of Criminal Procedure, 1973.
    1. Section 196(1A). Prosecution for offences against the State and for criminal conspiracy to commit such offence.[5] No Court shall take cognizance of-
      1. any offence punishable under section 153B or sub- section (2) or sub- section (3) of section 505 of the Indian Penal Code (45 of 1860 ), or
      1. a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.]
    1. Section 197. Prosecution of Judges and public servants.[6]
      1. When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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-
        1. in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
        1. in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: 1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression” State Government” occurring therein, the expression” Central Government” were substituted.
      1. No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
      1. The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression” Central Government” occurring therein, the expression” State Government” were substituted.
      1. Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
      1. Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.]
      1. The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
    1. Section 233. Entering upon defense.[7]
      1. Where the accused is not acquitted under section 232, he shall be called upon to enter on his defense and adduce any evidence he may have in support thereof.
      1. If the accused puts in any written statement, the Judge shall file it with the record.
      1. If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
    1. Section 234. Arguments[8]. When the examination of the witnesses (if any) for the defense is complete, the prosecutor shall sum up his case and the accused or his pleader shall be entitled to reply: Provided that where any point of law is raised by the accused or his pleader, the prosecution may, with the permission of the Judge, make his submissions with regard to such point of law.
    1. Section 235[9]. Judgment of acquittal or conviction.
      1. After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
      1. If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
    1. Section 236[10]. Previous conviction. In a case where a previous conviction is charged under the provisions of sub- section (7) of section 211, and the accused does not admit that he has been previously convicted as alleged in the charge, the Judge may, after he has convicted the said accused under section 229 or section 235, take evidence in respect of the alleged previous conviction, and shall record a finding thereon: Provided that no such charge shall be read out by the Judge nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under section 229 or section 235.
    1. Section 237.[11] Procedure in cases instituted under section 199 (2).
      1. A Court of Session taking cognizance of an offence under sub- section (2) of section 199 shall try the case in accordance with the procedure for the trial of warrant- cases instituted otherwise than on a police report before a Court of Magistrate: Provided that the person against whom the offence is alleged to have been committed shall, unless the Court of Session, for reasons to be recorded, otherwise directs, be examined as a witness for the prosecution.
      1. Every trial under this section shall be held in camera if either party thereto so desires or if the Court thinks fit so to do.
      1. If, in any such case, the Court discharges or acquits all or any of the accused and is of opinion that there was no reasonable cause for making the accusation against them or any of them, it may, by its order of discharge or acquittal, direct the person against whom the offence was alleged to have been committed (other than the President, Vice- President or the Governor of a State or the Administrator of a Union territory) to show cause why he should not pay compensation to such accused or to each or any of such accused, when there are more than one.
      1. The Court shall record and consider any cause which may be shown by the person so directed, and if it is satisfied that there was no reasonable cause for making the accusation, it may, for reasons to be recorded, make an order that compensation to such amount not exceeding one thousand rupees, as it may determine, be paid by such person to the accused or to each or any of them.
      1. Compensation awarded under sub- section (4) shall be recovered as if it were a fine imposed by a Magistrate.
      1. No person who has been directed to pay compensation under subsection (4) shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made under this section; Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.
      1. The person who has been ordered under sub- section (4) to pay compensation may appeal from the order, in so far as it relates to the payment of compensation, to the High Court.
      1. When an order for payment of compensation to an accused person is made, the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided.
    1. Section 238.[12] Compliance with section 207. When, in any warrant- case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of section 207.
    1. Section 239.[13]  When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.”

JUDGEMENT

The Supreme Court held that the misrepresentation by Satwant Singh was at Simla and the false instrument of the claims as true by Henderson was at Jhansi. Simla and Jhansi were places in British India. As the result of the misrepresentation by the complainant and the false instrument by Henderson the Government of Burma was convinced thereby to make the payment of a large sum of money to the complainant at Lahore. The payment at Lahore to the complainant was made at his own request by cheques on the Imperial Bank of India at its Lahore Branch. Lahore was also a place at the applicable time in British India.

The offence of cheating, thus, was committed at Kolhapur and neither at Simla nor at Lahore. In our opinion, this submission is miscalculated. The advertisement of the cheques at Kolhapur can not be regarded as delivery of the cheques to the complainant at Kolhapur because the Post Office at that place couldn’t be treated, in the circumstances of the present case, as the agent of the complainant to whom the delivery of the cheques had been made. In fact, they weren’t delivered to the complainant at Kolhapur but were delivered to him at Lahore. As regards the place of payment it was prompted that when the cheques were issued and posted at Kolhapur, the payment to the complainant must be regarded as having been made at Kolhapur. Reliance was placed on CIT v. Ogale Glass Works Ltd., Ogale Wadi[14]. That case was considered by the Supreme Court in the case of CIT v. Patney & Co.[15] decided on the 5th of May, 1959, and it was held that the rule in the Ogale Glass Works case was irrelevant to the data of the case. In the ultimate case it was set up by this Court that:

“Whatever may be the position when there’s an express or implied request for the cheque for the amount being sent by post or when it can be inferred from the course of conduct of the parties, the appellant in this case expressly required the amount of the commission to be paid at Secunderabad and the rule of Ogale Glass Works case would be inapplicable”.

In the present case an inquiry was made from the complainant how he’d like the payment to be made and he replied that cheques outstanding at the Imperial Bank of India, Lahore branch, should be transferred to him. Consequently, cheques on the Imperial Bank of India, Lahore branch, were transferred to the complainant by post in Lahore and the complainant encashed them there. In these circumstances, the rule in Ogale Glass Works case is irrelevant and it must be held that the payment was made to the complainant at Lahore and not at Kolhapur where the cheques had been posted.

Likewise, what may be applicable for consideration as to the place of payment for the purpose of the Income Tax Act may not inescapably be applicable for the purposes of a felonious case in which the Courts have to ascertain where the offence of cheating was committed. It seems to us, on the data established in this case, that no part of the offence of cheating was committed by the complainant outside British India. His false representation to the Government of Burma that money was due to him was at a place in British India which convinced that Government to order payment of his claims. In fact, he was paid at Lahore at his own request by means of cheques on the Branch of the Imperial Bank of India at Lahore.

The delivery of the property of the Government of Burma, namely, the money, was made at Lahore, a place in British India, and we can not regard, in the circumstances of the present case, the advertisement of the cheques at Kolhapur either as delivery of property to the complainant at Kolhapur or payment of his claims at Kolhapur. The entire argument innovated on the provisions of Section 188 of the Code thus, fails. As the offence committed by the complainant wasn’t at a place beyond British India, there was no need for the actuality of a instrument of a Political agent or, in the absence of such a person, a clearance of the Provincial Government.

Coming to the question whether the absence of a permission under Section 197 of the Code vitiated the trial, the Apex court stated that it has to be established that Henderson was a public servant removable by the Governor- General- in- Council or the Provincial Government. As no expostulation had been taken before the Special Tribunal by the complainant in this respect it was prompted by the Solicitor General that the prosecution had no chance of establishing that Henderson, though a public servant, was a person not removable by the Governor- General- in- Council or the Provincial Government. On the other hand, it was prompted by Mr. Harnam Singh that in the High Court the expostulation had been taken but it had been overruled on the ground that there was in fact a clearance in actuality.

The High Court was under a misapprehension. The sanction which was in existence was under Section 270 of the Government of India Act, 1935, which is given by the Governor- General himself, where as the permission under Section 197 of the Code is given by the Governor- General- in- Council. The permission under Section 270 of the Government of India Act, 1935, couldn’t thus be treated as a permission under Section 197 of the law. In the High Court, supposedly, no submission was made that Henderson wasn’t a public menial removable by the Governor- General- in- Council or the Provincial Government. If it’s being prompted now that Henderson wasn’t such a person also the complainant should be given an occasion to show that he was a public menial so removable.

Justice J.L. Kapur quoted Gill v. King[16]. In this case, the Privy Council laid down the following test as to when a public servant is said to or purports to act in the discharge of his official duty. Lord Simonds there said: “A public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of his official duty. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.”

The same test was repeated in Meads case[17] and in Phenindra Chandra Neogy v. King[18]. The case dealt with an offence of bribery under Section 161, but Meads case was a case of a Court-martial against an officer who was alleged to have misappropriated money entrusted to him and his defense was that while he was sleeping, the currency notes were burnt by the falling of a candle which was burning in his room.

In Hori Ram Singh[19] case which was approved by the Privy Council and the apex court in Amrik Singh case , Vardachariar, J., had accepted the correctness of that track of decision which had held that sanction was necessary when the act complained of attached to the official character of the person doing it: “but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defense on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.”

CONCLUSION

The structure of charge is the utmost introductory step of the process of inauguration of a trial in a felonious proceeding. Utmost care must be taken while the charges are being framed as wrong structure may lead to denial of justice.

Hence, one should stall from unlawful structure and joinder of charges as such an inefficiency would vitiate the veritably introductory substance of a fair trial. While framing the charges, the judge needs to take care of the fact that there’s an actuality of a case prima facie and should give his reasons for discharging the case in memorial. The sections which deal with different types of trials only mention that only the duty of framing of charges has been vested upon the courts. The court may alter/ add to any charge at any time before the judgment is pronounced. Also, the provisions dealing with the joinder of charges aren’t rigorously applicable to the judges. There’s an actuality of discretion upon the judges to either combine the charges or try each charge independently depending upon the data and circumstances of each case.

[1] Author is a 3rd semester student from Amity Law School, Lucknow.

[2] The Indian Penal Code, 1860, s. 63, No. 45, Acts of Parliament, 1860 (India).

[3] The Indian Penal Code, 1860, s. 109, No. 45, Acts of Parliament, 1860 (India).

[4] The Indian Penal Code, 1860, s. 420, No. 45, Acts of Parliament, 1860 (India).

[5] The Code of Criminal Procedure, 1973,  s. 196(1A), No. 2, Acts of Parliament, 1973 (India).

[6] The Code of Criminal Procedure, 1973,  s. 197, No. 2, Acts of Parliament, 1973 (India).

[7] The Code of Criminal Procedure, 1973,  s. 233, No. 2, Acts of Parliament, 1973 (India).

[8] The Code of Criminal Procedure, 1973,  s. 234, No. 2, Acts of Parliament, 1973 (India).

[9] The Code of Criminal Procedure, 1973,  s. 235, No. 2, Acts of Parliament, 1973 (India).

[10] The Code of Criminal Procedure, 1973,  s. 236, No. 2, Acts of Parliament, 1973 (India).

[11] The Code of Criminal Procedure, 1973,  s. 237,  No. 2, Acts of Parliament, 1973 (India).

[12] The Code of Criminal Procedure, 1973,  s. 238, No. 2, Acts of Parliament, 1973 (India).

[13] The Code of Criminal Procedure, 1973,  s. 239,  No. 2, Acts of Parliament, 1973 (India).

[14] The Commissioner Of Income Tax v. Messrs Ogale Glass Works Ltd., 1954 AIR 429.

[15] The Commissioner Of Income Tax, Bihar v. M/S. Patney & Co., 1959 AIR 1070, 1959 SCR Supl. (2) 868.

[16] H.H.B. Gill vs The King, (1948) 50 BOMLR 487.

[17] Albert West Meads vs The King, (1948) 50 BOMLR 664.

[18] Phenindra Chandra Neogy vs The King, (1949) 51 BOMLR 440.

[19] Hori Ram Singh vs King-Emperor, (1940) 42 BOMLR 619.

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