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TMI Blog1944 (4) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... luded appeals from orders and sentences of Special Tribunals (Section 7) but preserved the revisional jurisdiction of the High Courts under Chap. 32, Criminal P.C. (Section 8). The appellant accordingly moved the Patna High Court, which had jurisdiction in the matter, in revision. The High Court dismissed the revision petition but granted a certificate under Section 205 (1), Constitution Act. Hence the appeal to this Court. 4. The prosecution story was that P.W. 1 approached the appellant on 22nd May 1943, and asked to be allotted two wagons for the dispatch of sheep and goats from Jamalpur to Bally (a Calcutta suburban station). The appellant asked him to come two days later with the necessary forms. P.W. 1 returned on the 24th with the forms (Exs. 1 and 2) duly filled in and signed, whereupon the appellant cold him to wait while he telephoned to find out whether the wagons were available. After telephoning he asked him to bring the livestock for loading on the 25th. P.W. 1 said that he could not be ready on the 25th and so he was asked to come on the 26th and was told that the livestock would be dispatched only if be paid the appellant ₹ 20. On the 26th, P.W. 4 an Inspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings against the appellant. As regards Section 197, Criminal P.C. one of the learned Judges held that the section was inapplicable as the appellant had failed to establish that he was within the category of public servants to whom that section was applicable, and the other was of the opinion that the operation of that section was excluded by Section 6 (2) of the Ordinance. 6. These two objections were repeated and pressed before us. In our judgment they are without force. Section 270 (1), Constitution Act, relates to proceedings instituted against a person in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown. In 1939 F.C.R. 159l this Court laid down that to attract the provisions of this section it was not sufficient merely to establish that the person proceeded against was a public servant and that while acting as a public servant, or taking advantage of his position as a public servant, he did certain acts; it must be established that the act complained of was an official act. In this case the act complained of was the act of receiving illegal gratification. That surely could not be an act done or purporting to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen acting or purporting to act in the discharge of their official duty, the protection afforded by this section was limited to the kind of act contemplated in Section 270 (1), Constitution Act, and that therefore Section 197 was inapplicable to the present case for the same reason which rendered Section 270 (1) inapplicable. As we have held that the objection based on Section 197 fails on the grounds stated by us, it is unnecessary to decide whether the acts contemplated by Section 197 of the Code are the same as those covered by Section 270 (1), Constitution Act. 9. We were asked to grant leave for grounds on the merits to be urged before us. The learned Judges of the High Court did not record any finding on the merits as they considered the merits only incidentally to discover whether through any defect in procedure the accused had been deprived of the right of fair trial or whether the decision of the Tribunal was vitiated by some mistake of law. They were of the view that having regard to the practice of the Court, they were not entitled in the exercise of their revisional jurisdiction to interfere with the decision of the Tribunal, unless such a defect or mistake was shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted himself. That he purported to be in negotiation with the appellant to secure the allotment of two wagons for the transport of livestock from Jamalpur to Bally, that he visited the appellant on 24th and 26th May 1943, filled in and signed Exs. 1 and 2, and handed over to the appellant on 26th May two tenrupees notes, are almost the only matters which have been established beyond doubt so far as his evidence is concerned. The Tribunal did notice some of the unsatisfactory features in the testimony of p.w. 1, but took the view that it was not necessary to decide how far his evidence could be believed with regard to its uncorroborated parts. The impression left on our minds after a careful consideration of his evidence is that he is not a very satisfactory witness. He certainly permitted his anxiety to support the prosecution case to overpower his regard for truth. He was not slow to invent details which, while giving a plausible colour to his story, were demonstrated in cross-examination to be false. 12. The story that he tried to make out was that he was a partner with one Makhdum in the sheep and goats business. According to him the livestock was being dispatched to Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble; and (d) that the appellant was prepared to have the goods dispatched as if they were on military account. We shall proceed to consider each of these factors in the order in which we have set them out. 14. The appellant's case being that the amount of ₹ 20 was deposited with him on account of demurrage, his failure to give a receipt might well be explainable. Normally, a receipt would be given only when the amount of the charge to be levied had been definitely ascertained and paid in full, and in this case that could not have been done till the wagons had been loaded and were ready for dispatch. Also p.w. 3 (General Assistant in the Goods Office at Jamalpur) began by stating in his examination-in-chief that a receipt is given only when it is insisted upon, though he soon corrected himself and added that a receipt is given in every case. 15. We have not been able to discover on the record any evidence to the effect that it is not the custom of railway officials to receive part-payment of any charge. No doubt p.w. 2 (Assistant Superintendent of Transportation) has stated that the appellant was not entitled to take any money as security for future demurrage and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to a default of duty on the part of the Shed Clerk. The entry must have been made in the regular course of official duty and does not appear to us to be open to any suspicion. On behalf of the Crown it was frankly admitted before us that the entry was genuine and that the criticism to which it had been subjected by the Tribunal could not be supported. The entry does not indicate whether the wagon was placed in position for loading on the 24th, but it does show that it was detained for the purpose of sheep loading and to that extent lends support to the appellant's case. 17. The Tribunal have observed that assuming that the appellant gave orders for this wagon to be detained for sheep loading, he had no authority to do so and consequently no authority to charge demurrage. The evidence doea not exclude the authority of the Station Master to detain a wagon pending receipt of sanction for allotment. On the other hand, there is a sentence in the evidence of P.W. 2 which throws some doubt on the correctness of the assumption made by the Tribunal. He stated it would be the easiest thing going for the Station Master to give a consignor two wagons though we had only allotted him on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this must be false as there was no possibility of the appellant communicating with Howrah by telephone on the 24th, the control telephone beyond Rampur Hat Station having been out of order since 21st May and continuing to be out of order till some date after 28th May. This has been sought to be established by the production of the control chart (EX. 8) relating to 24th May. The chart was produced by P.W. 2. Objection was taken before us to the admis-sibility of the control chart on the ground that it was not prepared by P.W. 2, and that P.W. 2 was not in charge of the Control Office. Assuming, however, that the chart does show that the control telephone was out of order beyond Rampur Hat, it has not been established that there was no other means open to the appellant to get through to Howrah on the telephone from 2lst May onwards. For instance, it has not been shown that Howrah could not have been reached by telephone via Kiul the junction nearest to Jamalpur on the main line. Jamalpur is an important station on the East Indian Railway system and it would be surprising if it had been permitted to remain beyond the reach of telephonic communication from Howrah for over a week and po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be a reasonable inference that after telephoning the appellant was in a position to arrange for a wagon to be loaded on the 25th and it was because P.W. 1 asked for further time that the loading was allowed to be postponed. This coupled with the entry Ex. A (1) shows that a wagon was detained on the 24th for the loading of livestock and that so far as the appellant was concerned could have been made available, and possibly was mabe available, for loading at the latest on the 25th. In these circumstances, whatever the legal position with regard to the liability of P.W. 1 for demurrage may have been, if the appellant honestly believed that demurrage had or might become chargeable, and on the 26th received ₹ 20 as a deposit on account of demurrage, he would not be guilty of an offence under Section 161, Penal Code. It must be remembered that even on the afternoon of the 26th, P.W. 1 did not profess to be ready to load as, according to him, the livestock was still on its way from Monghyr to Jamalpur, and demurrage would continue to accrue. 23. After giving the case our very careful consideration we are not satisfied that the possibility of the appellant having received the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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