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TMI Blog1948 (12) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... Act applies to the cases of the appellants Nos. 1 to 7 so as to necessitate sanction of the Central Government as well as that of the Provincial Government. 3. The appellants, thirteen in number, of whom no less than seven were police officials including a Sub-Inspector and some constables, were tried by the learned Sessions Judge of offences under Sections 147 and 325 read with Section 149,. Penal Code. All of them were convicted of both the offences and were sentenced to varying terms' of imprisonment. 4. Admittedly, no sanction of the Provincial Government or of the Central Government was obtained for the initiation of proceedings against any of the appellants. Again, admittedly no such question, as is sought to be raised at this stage, was raised either in the course of the trial in the lower Court, or in the course of the hearing of the appeal before this Court. 5. I have heard Mr. Sheo Charan Lal, the learned Counsel for the applicants, in support of the application. I have also heard Mr. Kanhaiya Lal Misra, the learned Deputy Government Advocate, who opposes the application. On behalf of the applicants, it has been strenuously contended that the trial of applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for leave to appeal to His Majesty in Council, a Bench of two learned Judges of this Court in Bankey Lal v. Jagat Narain 23 ALL. 94 had to interpret the word involve in the expression must involve some substantial question of law in Section 110, Civil P.C. It was held that the word involves implies a considerable degree of necessity. The mere circumstance that a question of law is raised in a case would not justify the inference that the proposed appeal involves a substantial question of law, unless it be necessary to decide the question of law for a proper decision of the case. The same construction has been put on the word 'involve', as it occurs in Section 205, Constitution Act, in the case of Hafiz Mohammad Ahmad Said Khan v. Shiam Lal AIR1944All273 ., by a Full Bench of three Judges of this Court of which I was a member. In that case, it has been made clear that there is no difference in. this respect between the provisions of Section 110, Civil P.C., and those of Section 205, Constitution Act. The test for determining whether a substantial question of law is involved in a particular case, has been indicated by the Full Bench in these terms: ...that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Bank, Ltd. Amritsair v. Commissioner of Income Tax, Lahore. In this case, their Lordships explained that the remarks of the Board in Errol Mackay's case A.I.R. 1940 P.C. 16 as regards the duties of the Judges of the High Court, must be read as confined to cases of nature which arose in that case and in this connection reference was made by their Lordships to the remarks of Lord Halsbury, Quinn v. Leatham (1901) A.C. 495 that: Every judgment must be read as applicable to particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed or qualified by the particular facts of the case in which such expressions are to be found. In the case of Punjab Co-operative Bank, their Lordships, in the first place, laid down that the provisions of Section 205 which impose a duty on the High Court to consider the specified question are merely directory and not mandatory. Then their Lordships proceeded to state: It is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held: The duty cast under the Government of India Act, 1935, is to give or withhold a certificate at the time when the High Court delivers its judgment, although there is nothing in Section 205 which would prevent a High Court from rectifying its own mistake. But though an application for a certificate of the nature mentioned in Section 205 can be filed even after the judgment has been pronounced in the case by the High Court, it can be filed only when the High Court has erred in not considering the question of the granting or withholding of the certificate, that is where the High Court has not considered the matter even though there was a reasonable possibility of a substantial question arising as to the interpretation of the Government of India Act, 1935, or any Order in Council made thereunder. At p. 485 the learned Judges observed: The last clause of Sub-section (1) of Section 205 would even seem to pre-suppose that the question was raised before the High Court, as otherwise it is difficult to see how it would be possible for that Court of its own motion to give or withhold a certificate such as is referred to in the section. To the same effect is the decision of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Goddam Padmanabham v. Pasupuleti Kamaraju A.I.R. 1943 Mad. 481 where at p. 482 Patanjali Sastri J. expressed himself thus: Section 205, Sub-section (2) allows an appeal to the Federal Court on 'defined grounds' where a certificate under Sub-section (1) is given. One of such grounds which is material here is that a question of the kind specified in the section 'has been wrongly decided,' which, I take it, means wrongly decided by the Court from whose judgment, decree or final order the appeal is sought to be preferred. It was held: Where a question has not been raised and decided in the proceedings in the High Court, no certificate under Section 205 can be granted. The same view was affirmed in Tripasura Venkata Narsinga Rao v. Vysyaraju Surayya Raju A.I.R. 1947 Mad. 151 where Patanjali Sastri J. sitting with another learned Judge, had to consider the question of issuing a certificate under Section 205, Constitution Act. In that case, one of the questions raised and argued in the appeal before the High Court was a substantial question as to the interpretation of Sections 99 and 100, Constitution Act, but it was considered unnecessary to decide it and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of India Act and the High Court cannot involve such a question by importing into the case hypothetical considerations. 12. Lastly, I must refer to the decision of two learned Judges of our own Court, viz., the case of Jagdam Sahai AIR1948All12 (ubi supra). As mentioned already, the two learned Judges of this Court expressed their full agreement with the views expressed by Patanjali Sastri J. in the case of Goddam Padmanabham A.I.R. 1943 Mad. 481 (ubi supra). After deciding the main question referred to the Bench, the learned Judges dealt with the cases before them and dismissed the applications pending before them on the ground that the points attempted to be raised before the Federal Court had not been raised before the High Court and that the points did not raise any substantial question of law as to the interpretation of the Government of India Act or any Order in Council made thereunder. This decision was followed very recently in the case of Sri Ram and Anr. v. Emperor A.I.R. 1948 All. 106 by a Bench of two learned Judges and the certificate under Section 205 was refused on the ground that the constitutional question not having been taken before the High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government Medical Officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining though the examination itself may be such an act. 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. Applying the test to the facts of the case before them-the appellant had been charged with accepting or conspiring to accept bribes-their Lordships held that the appellant could not justify the act in respect of which he was charged as an act done by him by virtue of the office that he held. 15. Again, in the case of Albert West Meads v. The King, their Lordships had to consider whether Section 270 (1), Constitution Act applied to the case before them. It was a case where the appellant had been prosecuted for fraudulently misapplying money entrusted to his care as a public servant. Their Lordships relied on what they had said in the earlier case. Applying the principle to the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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