M. K. Gopalan and Another v. The State of Madhya Pradesh

Jagannadhadas J. the accused, the Government of Madras had to incur

an expenditure of Rs. 3,57,147-10..0 in. excess of the amount due. The Special Magistrate before whom the case is now pending was appointed by the Madhya Pradesh Government under section 14 of the Criminal Procedure Code, and as the first petitioner was a ser-vant of the Government of Madras, the prosecution against him has been initiated by sanction given by the Government of Madras under section 197 ( 1) of the Criminal Procedure Code.

The validity of the prosecution is challenged on various grounds, and the present petition is for quash-ing the proceedings on the ground of their invalidity. The three main points taken before us are : (1) Section 14 of the Criminal Procedure Code, in so far as it autho-rises the Provincial Government to confer upon any person all or any of the powers conferred or conferrable by or under the Code on a Magistrate of the first, second or third class in respect of particular cases and thereby to .constitute a Special Magistrate for the trial of an individual case, violates the guarantee under article 14 of the Constitution ; (2) The sanction given under section 197 ( 1) of the Criminal Procedure Code for the prosecution as against the first petitioner is in-valid, inasmuch as the 01:der of the Madras Government granting the sanction does not disclose that all the facts constituting the offences to be charged· were placed befor.e the ·sanctioning authority ; nor does the sanction. s'tate the time or place of the occurrence or the tran-sactions involved in it, or the persons with whom the offences were committed. This contention is raised relying on the Privy Council case in Gokulchand Dwarkadas Morarka v. The King(') ; (3). Even if the sanction under section 197 ( 1) of the Criminal Proce-dure Code is valid, it is for the very Government which accords the sanction .to specify also .. the Court before -T which the trial .is to be held under section 197(2) arid 1954

in the absence of any such . specification by. the said M. K. Gopalan Government, the power under section 14 of the Criminal and Another Procedure Code of appointing a Special Magistrate for v. The State of the trial of the case cannot be exercised by the Madhya Madhya Pradesh Pradesh Government .. Jagannadhadas]. These points . may now be dealt with seriatim. In support of the objection raised under article 14 of the Constitution, reliance is placed on the decision of this Court in Anwar Ali Sarkar's case( 1 ). That decision, however, applies only to a case where on the'. allotment of an individual case to a special Court authorised to conduct the trial by a procedure substantially· different from the normal procedure, discrimination arises · as between persons who have committed similar offences, by one or more out of them being subjected to a proce-dure, which is materially different from the ·normal procedure and prejudicing them thereby. In the pre-sent case, the Special Magistrate under section 14 of !he Criminal Procedure Code has to try the case entire-ly under the normal procedure, and no discrimination of the kind .contemplated by the decision in Anwar Ali Sarkar's case( 1) and the other cases following it arises here. A law vesting discretion in an autho-rity under such circumstances cannot · be said to be discriminatory as such, and is therefore not hit by article 14 of the Constitution. There is, therefore, no substance in this contention. .

As regards the second ground which is put forward on the authority of the Privy Council case of Gokul-chand Dwarkadas Morarka v. The King(2), it is admit-ted that the trial has not yet commenced; The Privy Council itself in the case mentioned above has recogni-sed that the lacuna, if any, in the sanction of the kind contemplated by that decision can be remedied in the course of the trial by the specific evidence in that behalf. Learned counsel for the State, without con-ceding the objection raised, has mentioned to us that evidence in that behalf will be given at the trial. It is, therefore, unnecessary to decide the point whether or not the sanction, as it is, and without such evidence is invalid.

(1) [1952] S.C.R. 284. (2) A.I.R. 1948 P.C. 82.

12-86 S. C India/59

1'72 SUl!REME COt:JR:T ·REP0RTS f 1955] - 1954 .. It is the·tlllrd point ·that has been somewhat•"sehous' .M .K. Gopalan ly pressed before us; The contention of learned · coun' ':and Another sel for the petitioners is ·based on sub-section (2) of sec~

v. tion 197 of die Criminal Procedure Code, ·which· 'tuns as The State of MadfEYa -·- ·Pradesh follows:- ·

J. "The Governor-General or Governor, as the 'case Jagannadhailas

may be, exercising his individual judgment may deter-mine the person by whom, the manner in .which, the offence or . offences for. which, the prosecution .. of such Judge, Magistrate, or. public . servant .is to. be conducted, and may specifry the Court before which the. trial :is to be held." .

The argument is that it is for the very Government which sanctioned the .. prosecution· under section d97 ( 1) to specify the Court before which ·the trial .is ·to be held and no other, and th~t consequently, in a ·case to which seGtion 197 ( 1) . applies, the exercise of any power under section 14 is excluded. It is said that though the exer-cise of the power under ·section . 197(2) ·in so far as it relates to specification · of the Court is concerned. is• dis-. cretionary and optional, but if. in an .individual case, that power is not exernised, it must . be taken that . the appropriate Government did not feel called upon .to a.[lot the case· to any special Court, ·and that, therefore, such allotment by. another . Government . under ·. section 14 would affect· or .nullify the power of the appropriate Government under section 197(2). It is also suggested that such dual exercise of the power by two : Govern-rnents would be contrary tC) the policy underlying sec-tion 197 which is for the protection .of the public . ser-vant. concerned, by interposing the sanction , <;>f the Government between · the · accuser · .and its ser.vants of the categories specified therein. This argument, is far. fetched. In the ·first instance, there .is no . ,.reason to think ih'at section 197(2) is inspired by any pqljc;y, of protection of the co:icerned public. servant, . as section 197(1) is. There .can. be no question of .. protection_ in-volved by an accused being tried by one Court r!lther than by another at the ·choice of the Government. The power under section 197(2)° appears to be vested hi .the '\ppropriate Government· for being exer.cised, on grounds of convenience, or the complexity or gravity of the -case or other _relevant. considerations. The . argwnent as to the implication ; of non•exertise of the 1power by · the 1954 appropriate Government under section 197 (2) ·'is ·also M, K. 'Clipalan and untenable. The power to' specify· a' Court for trial · in Another such cases is a permissive power;. and there be no v. ca~ The State of.. such implication, as is ·contended for,· "arisi_ng' froin ··'the Madhya Pradesh honcexercise of the power.· · : ~" " · " · · · 1 j,. Jagannadhadas . This · entire argument, ·h'owever; is. based . oh!'a _'mi~~ conception of the respective scopes of the powerS under '

section 197(2) and section; 14. The'· one r~lates· ~.to the "Court" and the. other to -·the ''person"~ Under suhc section. ·(2) of section 197, the sancti<~ning G<?vern~ent may specify a Court for the trial of not the . case but ·is' riot bound to do so. When it. 'does choose to specify the . Court, the· trial is subject to the "operation of· the bther provisions of the' Code. 'Bu( even when iCchooses ..... to exercise . the power of specifying the ' Court 'before

whith the trial is to be held, such specification of the Court does not touch the question as to who is the per-son to function in such Court before which the trial is to take place. That is a matte!'. still left to be exercised by the Provincial 'Government or :the arta where the trial is to take place. The argument of learned counsel proceeds on treating · .the _ 'Yorcl 1 "Cffmd' in s,ubcsection _,_ (2) of. section 1?7 a~ peing, the sarp.e. as. a . "pers~n" in

sub-section (1) of section 14, for which there· 1s no warrant. There is. accordingly no" substance in this .contention.

· Iri addition to the above three points, 'learned counsel for the petitioners has also raised a further '_ppint · that . in the present case Shri K. L. Pandey who was first · appointed as a Special Magistrate for' t~e trial h( ,the r case, and to whose file on such appointment. this case: was

transferred, was later on appointed as acting Sessions ·Judge for some time and ceased to have this case before him. He reverted back from his position as actiilg Sessions Judge to his original post. The .•point ·•taken is that without a fresh notification· ·appointing him as :

·Special Magistrate ·and transferring _the_ ··case to him' as such, he cannot be said . to be seized of this case. as'

_ Special .Magistrate. Here · again, learned .coµnsel .for.

the State informs us, without· conceding the point"•.so taken, that he is prepared to advise 'the· ·Government

1'74 [l?55] 1954 to issue the necessary. notifiqtjon .. and h~ve ... dle case .Af. K. Gopalan ~!Id transferred. In view of that statemep.t, sg it is unneces-

Another sary to. pronounce pn the obje~tion raised. . .

v. In the result, all the. points .raised on behalf of the The State of Madhya Pradesh petitioners fail, and. this petition must be dismissed.

Jagannadhadas J. It is desirable to observe that the questions above

dealt with appear to have been raised before the High Court at previous stages ·by 'means of appliqtions urider ·""' article 226 and decided . against. . No appeals. to this Court have been taken against the orders therein. Nothing that we have said is . intended to be a pro-nouncement as to ·the correctness or otherwise of those orders, J,10r to encourage the practice ·of direct approach to this Court (except for good reasons) in matters which have been taken \o the High Court and fou.nd. against, without obtaining leave· to appeal ther.efrom. · Petition dismissed.

1954 PANDIT CHUNCHUN JHA

April 14. tJ.

SHEIKH EBADAT ALI AND ANOTHER.

[MuKHERJEA, VIV!AN BosE, GHULAM I{AsAN and .VENKATARAMA AvvAR JJ.J Transfer of Property Act (Act IV of 1882)-Section 58(c) as amended by Act XX of .J929-,Document-Whether a mortgage or sale outright-Principles. for determining whether the document is one or the other. · ' . ·

The.re is 1?-C? hard and fast" rule for de~ermining )Vhether a given transaction is a mortgage by coh_ditional sale Or sale outright with a con_dition for-repUrchase. · ·

:Each case must be dCcided On its own facts. The numerous decisions of the High Courts on the point are of no help because two documents are seldom expressed in identical -terms.

The intention of the parties is the determining. factor but the intention must be _gathered from the document itself which has to be construed to find out the legal effect of the word~ used by the parties. If the . words are express and clear, effe~t must be given to them and any extraneous enquiry into what was thought or in-te.nded is ruled <.>ut. If ho¥,rever there is ambiguity. in the language k employed-then it is Permissible to look to the surrouflding circum-stances to determine what was inten·ded.

ORIGINAL JURISDICTION : Petition No. 55 of 1954.

Under article 32 of the Constitution for the enforce-ment of fundamental rights.

N. C. Chatterjee, (!. B. Dadachanji and Rajinder Narain, with him) for the petitioners.

K. V. Tambe and I. N. Shroff for the respondent.

1954. April 5. The Judgment of the Court was ·delivered by

JAGANNADHADAS J.-This is a petition under arti-cle 32 of the Constitution and is presented to this Court under the following circumstances. Petitioner No. 1 before us was an Agricultural Demonstrator of the Government of Madras and was employed as an Assist-ant Marketing Officer in Central Provinces and Berar for the purchase and movement of blackgram and other .grains on behalf of the Madras Government. He, as well as the second petitioner and 44 others, are under prosecution before Shri K. L. Pandey, a Special Magis-trate of Nagpur, Madhya Pradesh, in Case No. 1 of ;,... 1949 pending before him on charges of cheating,

:attempt to commit cheating, criminal breach of trust 1954 and criminal conspiracy, (i.e., for. offences punishable M. ·K. Gopalan under section 420 read with section 120-B or 109 of the and Another Indian Penal Code, section 409 and section 409 read

v. with section 120-B of the Indian Penal Code) and the The State of MadhJ'a Pradesh allegation is that by reason of the acts committed by