1944 (4) TMI 13 - Other - Indian Laws

Summary

Issues Involved:
1. Validity of Ordinance 29 of 1943.
2. Necessity of consent under Section 270(1), Constitution Act.
3. Applicability of Section 197, Criminal P.C.
4. Merits of the conviction under Section 161, Penal Code.

Issue-wise Detailed Analysis:

1. Validity of Ordinance 29 of 1943:
The appellant did not challenge the validity of Ordinance 29 before the Tribunal. The High Court overruled the objection to its validity, and the objection was not pressed before the Federal Court. Therefore, the validity of the Ordinance required no further consideration.

2. Necessity of consent under Section 270(1), Constitution Act:
The appellant contended that the prosecution was not maintainable without the Governor-General's consent under Section 270(1). The High Court opined that by promulgating the Ordinance and constituting the Special Tribunals, the Governor-General had implicitly given consent. The Federal Court agreed, stating that the act of receiving illegal gratification could not be considered an act done in the execution of duty as a servant of the Crown. The Court cited Hori Ram Singh v. Emperor, emphasizing that accepting a bribe does not qualify as an official act.

3. Applicability of Section 197, Criminal P.C.:
The appellant argued that the prosecution lacked the Governor-General in Council's sanction under Section 197. The High Court judges provided two grounds for rejecting this objection: one judge found the section inapplicable as the appellant did not establish himself as a public servant covered by the section, and the other judge believed Section 197 was excluded by Section 6(2) of the Ordinance. The Federal Court concurred, noting that Section 197 did not apply to cases triable under Ordinance 29 due to Section 1(2) of the Criminal P.C., which preserves special jurisdiction and procedures conferred by other laws.

4. Merits of the conviction under Section 161, Penal Code:
The prosecution's case was based on the testimony of P.W. 1, who alleged that the appellant demanded and received Rs. 20 as illegal gratification for providing wagons. The Tribunal found the prosecution's case established, but the Federal Court scrutinized the evidence closely.

The Court noted several inconsistencies and contradictions in P.W. 1's testimony, making him an unreliable witness. The Tribunal had relied on factors such as the appellant not issuing a receipt for the Rs. 20, the alleged custom of railway officials not accepting part-payments, and the improbability of demurrage being payable. However, the Federal Court found these factors insufficient to establish guilt beyond reasonable doubt.

The Court examined the evidence regarding the appellant's claim that the Rs. 20 was a deposit for demurrage. It found that the prosecution failed to prove that the appellant could not have honestly believed demurrage was due or likely to become due. The Court also considered the possibility of the appellant receiving the money in good faith and found that the prosecution did not exclude this possibility beyond reasonable doubt.

Conclusion:
The Federal Court concluded that the conviction under Section 161 could not be sustained. The Court allowed the appeal, acquitted the appellant, and directed his release from bail and refund of the fine if paid.