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1940 DIGILAW 2 (SC)

HORI RAM SINGH v. THE KING-EMPEROR

1940-01-18

LORD PORTER, SIR GEORGE RANKIN, VISCOUNT MAUGHAM

body1940
Judgement Petition for special leave to appeal in forma pauperis from a judgment and order of the Federal Court of India, sitting at Delhi (April 12, 1939), which reversed in part, and partly affirmed, a judgment and order of the High Court at Lahore (October 20, 1938). This petition was the first matter from the Federal Court of India to come before the Judicial Committee of the Privy Council. The petitioner, Dr. Hori Ram Singh, was a Sub-Assistant Surgeon in the Punjab Provincial Medical Service, having served for over twenty-eight years. From December, 1935, to the end of March, 1937, he was in charge of the Rural Hospital at Mithankot, which was maintained by the District Board of Dera Ghazi Khan, through the Inspector-General of Civil Hospitals, Punjab. On September 10, 1937, the petitioner was charged in the Court of the First-class Magistrate at Dera Ghazi Khan, that (1.) on or about January 1, 1937, at Mithankot, being a public servant and in such capacity entrusted with medicines of the hospital, he committed criminal breach of trust in respect of certain named medicines to the value of Rs.7-8-0, and thereby committed an offence punishable under s. 409 of the Indian Penal Code; and (2.) on or about January I, 1937, at Mithankot, being a public servant as the doctor and officer in charge of the hospital, he wilfully and with intent to defraud omitted to record entries in the stock books of medicines for 1937, and thereby committed an offence punishable under s. 477A of the Indian Penal Code. The petitioner pleaded "not guilty" to both charges. On October 30, 1937, the First-class Magistrate at Dera Ghazi Khan found the petitioner guilty on both charges, and sentenced him to six months rigorous imprisonment under each count, the sentences to run concurrently. The petitioner then appealed against his conviction and sentence to the sessions judge of Dera Ghazi Khan, who, on February 26, 1938, acquitted him on the ground that under s. 270, sub-s.1, of the Government of India Act, 1935, the consent of the Governor was necessary before the proceedings against the petitioner could be instituted. The petitioner then appealed against his conviction and sentence to the sessions judge of Dera Ghazi Khan, who, on February 26, 1938, acquitted him on the ground that under s. 270, sub-s.1, of the Government of India Act, 1935, the consent of the Governor was necessary before the proceedings against the petitioner could be instituted. By s. 270 of the Government of India Act, 1935 "(1.) No proceedings, civil or criminal, shall be instituted against any 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 India before the relevant date, except with the consent....in the case of a person employed in connection with the affairs of a Province, of the Governor of that Province in his discretion." The "relevant date" referred to in the sub-section was April 1, 1937, when the Act came into force with regard to the Indian Provinces. Against the order of the sessions judge the Crown appealed to the High Court at Lahore, and a Criminal Division Bench of that Court (Young CJ. and Blacker J.) on October 20, 1938, set aside the order of acquittal on the ground that s. 270, sub-s. 1, of the Act did not apply as an act done in the execution of his duty as a servant of the Crown cannot by any stretching of the English language be made to apply "to an act which is clearly a dereliction of his duty as such." The High Court accordingly returned the record to the session’s judge for trial on the merits. The petitioner then applied on November 17, 1938, to the High Court at Lahore for a certificate for appeal to the Federal Court of India under s. 205 of the Government of India Act. In granting the certificate the judges of the High Court stated that our attention has been drawn to some authorities of the other High Courts on which it may be possible to found an argument that the consent of the Governor was necessary. In granting the certificate the judges of the High Court stated that our attention has been drawn to some authorities of the other High Courts on which it may be possible to found an argument that the consent of the Governor was necessary. There are also other cases where the same point is taken, and an authoritative decision is required." [In his petition to the Privy Council the petitioner stated that the “authorities of the other High Courts" referred to by the High Court at Lahore related to the construction of s. 197 of the Code of Criminal Procedure as amended in 1937 by the Government of India (Adaptation of Indian Laws) Order.] The Federal Court of India (Gwyer C.J., Sulaiman and Varadachariar JJ.) held that so far as the charge under s. 409 of the Indian Penal Code was concerned, the acts in respect of which the petitioner was prosecuted could not be regarded as acts done or purported to be done in execution of his duty, and the consent of the Governor was not necessary, but that as regards the charge under s. 477A of the Code such a consent was necessary. The Court passed the following order— "The case will be remitted to the High Court with a declaration that the following order ought to be substituted for the order of the High Court .... "That the case be sent back to the sessions judge for hearing on the merits as regards the charge under s. 409 of the Indian Penal Code, that the order of acquittal passed by the sessions judge be set aside, and that the proceedings under s. 477A of the Code be quashed for want of jurisdiction, the consent of the Governor not having been obtained." The judgment of the Federal Court is reported at ( 1939) 2 Fed. L. J. 153. On May 11, 1939, the Federal Court of India refused an application by the petitioner for leave to appeal to His Majesty in Council. 1940. Jan. 18. Robert Gibson K.C.(of the Scottish Bar) and C. J. Colombos for the petitioner. This case, historically important in that it is the first case to come before this Board from the Federal Court of India, raises a question of the gravest constitutional importance involving the interpretation of s. 270, sub-s.1, of the Government of India Act, 1935. It affects all public servants. [LORD MAUGHAM. This case, historically important in that it is the first case to come before this Board from the Federal Court of India, raises a question of the gravest constitutional importance involving the interpretation of s. 270, sub-s.1, of the Government of India Act, 1935. It affects all public servants. [LORD MAUGHAM. The real question is whether there should be an appeal from the Federal Court on the true con struction of s. 270, sub-s.1, which relates only to acts done or purported to be done in the execution of duty, etc., before April 1, 1937. It has no application for the future; we are only dealing with past acts. In addition to that, we have the opinion of the Federal Court, and it does not appear very clear that any question of constitutional law is involved at all. It is a question of the construction of a section inserted for the purpose of protecting people who have done something before the Government of India Act came into force.] It is submitted that leave to appeal should be granted in order that disharmony of interpretation throughout India may be clarified and uniformity put in its place. [LORD MAUGHAM. There would be considerable weight in that submission if the two sections, s. 197 of the Code of Criminal Procedure and s. 270, sub-s. 1, of the Government of India Act, 1935 were exactly the same. There is a material difference between them, and the Board will not give leave in this case in order that some light may perhaps be thrown upon a wholly different section. The matter has to be put on the ground that there is something in s. 270, sub-s.1, which raises some question of constitutional law which justifies the giving of leave to appeal.] [LORD PORTER. Is it possible to argue that a man who has committed a criminal breach of trust, or who has committed a crime, in committing that crime has been acting in the discharge or purported discharge of his duty ?] In this case, yes, because that is so charged. It is charged that he has done that in that capacity, using the words of the Act, "as a servant of the Crown." The misappropriation takes place when that man in his capacity of a public servant hands over to himself as an individual the trust property. It is charged that he has done that in that capacity, using the words of the Act, "as a servant of the Crown." The misappropriation takes place when that man in his capacity of a public servant hands over to himself as an individual the trust property. That is a breach of trust, and he does that in his capacity of a public servant. He could not do it otherwise; and it is an act which is done or purported to be done, or is deemed to be done, in his official capacity. It is a matter which must be decided in limine; it is a matter of jurisdiction. Once the accused has the complaint, he is entitled to say "This affects me as a servant of the Crown in the discharge of my duty; you must have the consent of the Governor." [LORD MAUGHAM. I want to know why the construction of what is in substance a temporary provision in the Government of India Act is such a matter that, after the Federal Court has decided it, there should be given leave to appeal from its decision. You are relying really on something which is purely technical. It is not a thing which is going to affect the future in India, because the number of cases of this kind that still exists must be trifling.] This is a constitutional question which affects, and has been considered in the light of, a great many conflicting decisions in India. [SIR GEORGE RANKIN. It is only constitutional in the same sense that any question under s. 197 of the Criminal Code can be said to be constitutional.] [LORD MAUGHAM. This Board will not give leave to appeal in order that it may have an opportunity of expressing an opinion on the true construction of s. 197 of the Criminal Procedure Code.] The point is that the criminal proceedings that are figured in s. 270, sub-s. 1, commence when the complaint is framed and served. At that stage the consent of the Governor must be there if there is going to be jurisdiction in the Court. As soon as the complaint appears does it not appear that the circumstances are such that the Governor should apply his mind? In this case there has apparently been no application at all to the Governor. At that stage the consent of the Governor must be there if there is going to be jurisdiction in the Court. As soon as the complaint appears does it not appear that the circumstances are such that the Governor should apply his mind? In this case there has apparently been no application at all to the Governor. There is no difference, it is submitted, between s. 477a and s. 409, and the judges, having found that consent was necessary in the one case, should have found that it was necessary in the other case. There has been a grave miscarriage of justice to the petitioner due to a serious error in the interpretation of a section in an Act of the Imperial Parliament, and special leave to appeal should be granted. G. D. Roberts K.C. and W. Wallach for the respondent were not called upon to argue. Jan. 18. The judgment of their Lordships was delivered by LORD MAUGHAM. This is an application for special leave to appeal in forma pauperis from a judgment of the Federal Court of India, and it has the distinction of being the first application for such leave from that Court. The question which arises is as to the true construction of s. 270, sub-s.1, of the Government of India Act, 1935. It is in these terms "No proceedings, civil or criminal, shall be "instituted against any person in respect of any act done or "purporting to be done in execution of his duty as a servant "of the Crown in India" before the relevant date, which is April 1, 1937, " except with the consent,” putting it shortly, as applying to this particular case, "of the Governor " of the Province in which the petitioner was employed. It is perfectly clear, therefore, that this section is in the nature of an exceptional section which is intended to afford some measure of protection to certain public servants in relation to acts done or purported to be done in execution of their duty, being acts done before the date in question. Their Lordships ought not to forget the fact that the matter has been before the Federal Court, and that an appeal from the Federal Court should not lightly be admitted by this Board, and should only be admitted if it arises in a really substantial case. Their Lordships ought not to forget the fact that the matter has been before the Federal Court, and that an appeal from the Federal Court should not lightly be admitted by this Board, and should only be admitted if it arises in a really substantial case. In this case it does not seem to their Lordships that the matter is anything but one concerned with the construction of a very exceptional section which will have no application in the future, and it is a technical point. They have had the view of the Federal Court with regard to it and, having regard to all the circumstances of the case, and bearing in mind the ingenious argument which has been presented to them, they do not think that this is a case in which their Lordships should advise His Majesty to grant leave to appeal. In those circumstances, the application for leave must be dismissed. The Council Office fees will be remitted as it is a petition in forma pauperis, but otherwise there will be no order as to costs. PRACTICE NOTE. Appeal to Privy Council—Application by minor through next friend for special leave to appeal in forma pauperis—Next friend not a pauper —Leave to appeal in forma pauperis refused—Granted on usual terms. Where a minor by his next friend applied by petition for special leave to appeal in forma pauperis to the Judicial Committee of the Privy Council from a decision of a High Court in India, and the minor was found a pauper, but the next friend was not so found within the Rules of the Privy Council, the Board refused to grant leave to appeal in forma pauperis, but granted special leave to appeal in the ordinary way on the usual terms on giving security for costs.