Judgement Appeal (No. 57 of 1947), by special leave, from a judgment of the Federal Court of India (Spens C.J., Zafrulla Khan and Kania JJ.) (December 11, 1946) dismissing the appeals of the appellants H. H. B. Gill and Anil Lahiri from a judgment of the High Court at Calcutta (Blank and Ellis JJ.) (April 12, 1946) and confirming their conviction for an offence under s. 165 read with s. 120b of the Indian Penal Code and the sentence of three months simple imprisonment passed on each of them. The appellant Gill was at the material time Deputy Assistant Director of Contracts at Calcutta, and Lahiri was the proprietor of the Baranagore Engineering Works and a contractor with the Government, and the questions for consideration in this appeal were (1.) Whether the sanction of the Governor-General in Council was required by s. 197 of the Code of Criminal Procedure before a court could take cognizance in the case of a public servant of the offence of bribery and/or conspiracy to take bribes. (2.) Whether such sanction had been obtained in the present case. (3) Whether the conviction of the appellants under s. 165 read with s. 120b of the Penal Code was otherwise defective. (4) Whether there was any admissible evidence on which the appellants could lawfully be convicted of any offence. The facts and the sections of the Government of India Act, 1935, of the Code of Criminal Procedure and of the Indian Penal Code relevant for the consideration of the appeal appear from the judgment of the Judicial Committee. 1948. Jan. 19, 20, 21. Sir Valentine Holmes K.C. and Pullan for the appellants. This appeal raises two main questions, (1.) whether the conviction is bad for want of the proper sanction under s. 197 of the Code of Criminal Procedure. If the appellant fails on s. 197 of the Code he is clearly wrong on s. 270 of the Government of India Act, 1935, and it is not therefore proposed on this appeal to contend that sanction under s. 270, sub-s. 1, of the Act of 1935 was required in this case. (2.) Whether the only evidence on which the conviction was based is admissible against Gill. That evidence consisted of certain notes made by Lahiri in a notebook and on some counterfoils of cheques, which admittedly were never seen by Gill. (2.) Whether the only evidence on which the conviction was based is admissible against Gill. That evidence consisted of certain notes made by Lahiri in a notebook and on some counterfoils of cheques, which admittedly were never seen by Gill. A third point is whether the conviction under s. 165 of the Penal Code was good when the charge was under s. 161 of that Code. There are two issues between the parties on the first question, (a) whether a sanction under s. 197 was needed at all for the prosecution of Gill—nobody would suggest that it was needed for the prosecution of Lahiri ; (b) whether, a sanction having been given in this case, the bar to the court taking cognizance was lifted for ever, so that the court could proceed to convict on any charge. As to (a), the sanction of the Governor-General in Council under s. 197 was indispensable for the prosecution of Gill for the offence of conspiracy to take bribes or gifts (ss. 161 and 165 respectively of the Penal Code), and no such sanction was obtained. The only sanction given in this case was that for cheating the Government (s. 420 of the Penal Code) and the charge on which the appellants were ultimately convicted was not one in the same terms as that on which the sanction was originally given. It does not appear what the facts were on which sanction was granted it has been held that the prosecution must prove that the sanction was given in respect of the facts which formed the subject-matter of the prosecution Gokulchand Dwarkadas Morarka v. The King (Ante p. 30.). The Federal Court did not think that the contention that the magistrate was not legally competent to record a conviction under s. 120b/165 when the charge was in respect of an offence under s. 161 read with s. 120b had any force. Without giving up that point, but proceeding on the footing that the Federal Court was right, the argument against the appellant is that if the bar to cognizance is once lifted by the granting of a sanction the subsequent course of the proceedings is governed by the provisions of the Criminal Procedure Code. Without giving up that point, but proceeding on the footing that the Federal Court was right, the argument against the appellant is that if the bar to cognizance is once lifted by the granting of a sanction the subsequent course of the proceedings is governed by the provisions of the Criminal Procedure Code. That proposition is accepted, subject to one qualification, butit is submitted that, accepting that the provisions of the Criminal Procedure Code determine the matter, the new conspiracy charge which was framed by Mr. Palmer at the second trial required under that Code a new sanction. The qualification is that where the Governor-General under s. 197, sub-s. 2, actually specifies the offence in respect of which the prosecution is to be conducted, then notwithstanding any provision of the Criminal Procedure Code the accused cannot (i.) be charged with, or (ii.) convicted of any other offence. Otherwise there is no point in sub-s. 2 at all. There is no authority to assist on this submission. The question whether, under the relevant provisions of the Criminal Procedure Code, a new sanction was required for the framing of the new con spiracy charge, turns on s. 230. If the facts on which the new charge was framed were the same as those on which the original sanction was given no new sanction would be required. They are, however, entirely different facts, and that being so, under s. 230 a new sanction was definitely required. It is for the prosecution to prove what the facts were before the sanctioning authority, and the prosecution has only proved the facts necessary to establish the original charge. On the second question, the only evidence accepted by the High Court in proof of conspiracy to give and take gifts are the notes made by Lahiri in his diary and cheque counterfoils. Those entries cannot possibly have been admissible in evidence against Gill. Even if they were, they could not prove that Lahiri had given Gill money, and if Lahiri had given evidence that he had given Gill money that would have been the evidence of an accomplice of which there would have been no corroboration. It is not suggested that Gill either saw the notes or knew of their existence. Even if they were, they could not prove that Lahiri had given Gill money, and if Lahiri had given evidence that he had given Gill money that would have been the evidence of an accomplice of which there would have been no corroboration. It is not suggested that Gill either saw the notes or knew of their existence. So far as English law goes, my submission must be accepted, and there is nothing in s. 10 of the Indian Evidence Act, 1872, which makes the law different from that in this country, and that section does not assist the respondent. [Reference was made to Ratanlal & Thakore on the Law of Evidence, 6th ed., p. 27.] The conviction of the appellants is contrary to law, and based on no admissible evidence and should be set aside. Pullan followed, and, dealing with the question of there being different charges at the first and second trial, referred to Golok Behari Takal v. Emperor (( 1937) 42 C. W. N. 129, 147-9.). In the second trial the appellants were charged with conspiracy to give and receive bribes in respect of two specific contracts, and it was not open to the courts to convict them on general charges of giving and receiving gifts which they were never called on to answer. The second conspiracy charged is an altogether different one, and the conviction is bad. Further, there is no sanction which could possibly cover the conviction under s. 165. Sir Walter Monckton K.C. and Megaw for the respondent. There are three main points (1.) The question of the necessity of a sanction, at all, i.e., do the facts of this case (bring it within s. 197 so that sanction under that section is required to found jurisdiction ? (2.) Supposing that sanction is necessary under that section, has such sanction been given warranting this conviction on the amended charge ? (3.) Can be counterfoils and other documents of Lahiri be evidence against Gill on the charge on which he stands convicted ? (2.) Supposing that sanction is necessary under that section, has such sanction been given warranting this conviction on the amended charge ? (3.) Can be counterfoils and other documents of Lahiri be evidence against Gill on the charge on which he stands convicted ? Dealing first with point (3.), it is submitted that there was evidence, as accepted by the magistrate and the High Court, as to the entries in the cheque counterfoils and notebook of Lahiri on which the conviction of the appellants should be sustained, having regard to all the circumstances of the case and to the provisions of s. 10 of the Evidence Act. That section provides that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence, anything written by any one of them is a relevant fact against each, and the question is at what point of time has it to be determined that there is reasonable ground to believe, etc. It is submitted that it has to be determined when the evidence is tendered. What s. 10 calls for is reasonable belief. It is not going to be displaced if at a later time that which the magistrate reasonably believed is not proved to be established ; it must be judged, therefore, at the point of time when the evidence comes to be tendered. If that is right—that at the time when it was received the evidence was admissible—then thereafter problems in relation to it become matter of weight. The next question is whether sanction is necessary at all. First, with regard to the words in s. 197, sub-s. 1, " is accused " of "; the fact that no formal charge is necessary under certain sections of the Criminal Procedure Code shows that for the sanction there is no need for the formal charge, and further, the framing of charges often takes place at a comparatively late stage. First, with regard to the words in s. 197, sub-s. 1, " is accused " of "; the fact that no formal charge is necessary under certain sections of the Criminal Procedure Code shows that for the sanction there is no need for the formal charge, and further, the framing of charges often takes place at a comparatively late stage. Secondly, on construction of the words "of any " offence alleged to have been committed by him while acting “or purporting to act in the discharge of his official duty," if a man accepts a gift or money as gratification or without lawful consideration within s. 161 and s. 165 of the Penal Code, he cannot be said to have been acting or purporting to act in discharge of his official duty King-Emperor v. Maung Bo Maung (( 1935) I. L. R. 13 R. 540, 549.), which puts the argument on " acting or purporting "to act" rather neatly. The words of s. 270, sub-s. 1, of the Government of India Act, 1935, are in most material respects very similar to those of s. 197 of the Criminal Code, and the important authorities on s. 270 are Hori Ram Singh v. The Crown ([ 1939] F.C.R. 159, 187.), Lieut. Hector Thomas Huntley v. King Emperor ([ 1944] F.C.R. 262, 268.) and Maharani Gurucharan Kaur v. Province of Madras ([ 1944] F.C.R. 195, 208-11.). Of the cases in the High Courts on s. 197, in Raja Rao v. Ramaswamy (( 1927) I.L.R. 50 M. 754.)the test is put, how is he acting to commit the offence. The test put in Gangaraju v. Venki (( 1928) I.L.R. 52 M. 602.) is not enough in the light of the other cases. Amanat Ali v. Emperor (( 1929) A.I.R. (Cal.) 724.) says that the act must have had an official character—it goes back to the quality of what he was doing see also Ganapathy Goundan v. Emperor (( 1932)A.I.R. (Mad.) 214.). In Ganga Prasad v. Brindaban Chandra Das (( 1935) A.I.R. (Cal.) 176.) a person employed in the public works committed an assault, and it was held not to be within his duty so as to require sanction, but in Ram Singh v. S. A. Rizvi (( 1934) I.L.R. 14 Pat. In Ganga Prasad v. Brindaban Chandra Das (( 1935) A.I.R. (Cal.) 176.) a person employed in the public works committed an assault, and it was held not to be within his duty so as to require sanction, but in Ram Singh v. S. A. Rizvi (( 1934) I.L.R. 14 Pat. 299, 311.) an assault by a magistrate was held to be so connected with his official duty as to be inseparable from it ; " each case must be "decided on its own facts." Gurushidayya v. Emperor (( 1939) A.I.R. (Bom.) 63.) follows expressly King-Emperor v. Maung Bo Maung (I.L.R. 13 R. 540.). In Pollard v. Sayta Gopal (( 1943) A.I.R. (Cal.) 594, 608-9.) a police officer committed an assault in the course of his duty, and it was held that sanction was necessary ; it was a case, it was said, in which he was acting or purporting to act in the course of his duty. [Reference was also made to Kurshed Ahmed v. Amanulla (( 1940) 44 C.W.N. 735.).] Those High Court cases justify the summary which is found in the first of the Federal Court cases cited above ((9) [ 1939] F.C.R. 159.), and they show that for sanction to be necessary the act constituting the alleged offence must be the sort of act which falls within the scope of the official duty of the public servant, or be so connected with its performance as to be inseparable. He must be either acting in the course of the discharge of his official duty, or professing so to act, and acting so that a reasonable person would assume that he would so act. Section 197 of the Criminal Procedure Code is not therefore applicable in the circumstances of this case and no sanction under that section was required. Assuming that the above argument fails, and that sanction was necessary, the next question is whether such sanction has been given warranting this conviction under s. 120b 1165. Section 197 of the Criminal Procedure Code is not therefore applicable in the circumstances of this case and no sanction under that section was required. Assuming that the above argument fails, and that sanction was necessary, the next question is whether such sanction has been given warranting this conviction under s. 120b 1165. It is submitted, first, that the bar to the exercise of jurisdiction was effectively lifted by the sanction given, and thereupon the courts had jurisdiction to continue to try the accused in accordance with the Criminal Procedure Code, and it is contended that what was done thereafter was in accordance with the Code, and by reason of s. 230 thereof no fresh consent or sanction was necessary on the alteration of the charge against Gill. Section 230 has no application to the powers granted to the court under ss. 237 and 238, which are not dealing with new or altered or added charges, such as s. 230 is concerned with, but are giving power to the court to convict without adding to the charge at all. It was competent for the court on the facts on which sanction had been given to go on and reach a conviction without going through the formality of altering the charges. The point as to what were the facts before the sanctioning authority has never been taken moreover, there is a world of difference between the complaint in this case and the inter-police report which is referred to in Gokulchand Dwarkadas Morarka v. The King (Ante p. 30.). The prosecution are entitled to assume that the matters which are in this complaint had been before the sanctioning authority. [He was stopped on the point as to the effectiveness of the sanction.] Megaw followed. There is no valid distinction between the relevant words in s. 197 of the Code and s. 270 of the Act of 1935—the principles governing sanction in each case are the same, as is the test to be applied whether or not sanction is required. Sir Valentine Holmes K.C. replied. I do not propose to deal with the question whether sanction was necessary at all, because that ceases to be material to Gill as soon as it has been decided against him that the sanction that was given was effective. Therefore the only remaining question is that of the admissibility of the evidence—Lahiris notes. Sir Valentine Holmes K.C. replied. I do not propose to deal with the question whether sanction was necessary at all, because that ceases to be material to Gill as soon as it has been decided against him that the sanction that was given was effective. Therefore the only remaining question is that of the admissibility of the evidence—Lahiris notes. It is submitted that the argument for the respondent is based on two fundamental fallacies, the first of which is that the point of time at which it has to be determined that there was reasonable ground to believe under s. 10 of the Evidence Act is the time when the evidence is given. There is not an iota of authority to support that proposition, and it is certainly not good in English law. Charles Hildyard Thornton Whitaker (( 1914) 10 Cr. A. Rep. 245.) is of no importance in this case, but is an instance of what is happening every day in the criminal courts, and there is some indication in the present case that the practice is the same in India. The second fallacy is when it was said that it is the magistrates belief on reasonable grounds that governs the matter. It is not a question of his belief, but whether there is reasonable ground to believe Barindra Kumar Ghose v. Emperor ((909) I. L. R. 37 C. 467, 504.). Therefore it is was for the magistrate to decide whether there was reasonable ground to believe. If there was, then he could admit the notes in evidence, but on the appeal, if the High Court say that there was not reasonable ground, then the notes cease to be admissible. That is the position in England, and there appears to be nothing to the contrary in India. Suspicion can never be a reasonable ground to believe anything. There must be facts which the court can say are reasonable grounds to believe on, and here the High Court having acquitted Gill on the separate charge, there was no evidence left on which they could convict him on the conspiracy charge. It may lead to an odd result, because the evidence was admissible against Lahiri, and there may be a verdict against Lahiri and for Gill. Feb. 17. The judgment of their Lordships was delivered by LORD SIMONDS. It may lead to an odd result, because the evidence was admissible against Lahiri, and there may be a verdict against Lahiri and for Gill. Feb. 17. The judgment of their Lordships was delivered by LORD SIMONDS. This appeal, which is brought from a judgment of the Federal Court of India, dated December 11, 1946, raises questions of difficulty and general importance. They relate, in the first place, to the problem which has so often been debated in the courts of India in regard to the meaning and effect of s. 197 of the Code of Criminal Procedure and, in the second place, to the admissibility of evidence on a charge of conspiracy. The nature of the case demands that the facts should be set out at some length. As a result of the judgment now under appeal the appellants H. H. B. Gill and A. Lahiri stand convicted for offences under s. 165 read with s. 120b of the Indian Penal Code. The appellant Gill joined the Indian Army Ordnance Corps in December, 1939. He was appointed Staff Captain in the Contracts Directorate from January, 1940, and in April, 1941, he was given the temporary rank of major as Deputy Assistant Director of Contracts at Calcutta. In this office he was responsible for the issue and acceptance of tenders for purchase of material in compliance with indents made by the proper authorities. The appellant Lahiri is the proprietor of the Baranagore Engineering Works. In that capacity he obtained numerous contracts for supplying Government requisites through the appellant Gill and other officers. As a result of secret inquiries which, for reasons that need not be further investigated, the Deputy Superintendent of Police, Calcutta, thought fit to make into the affairs of Gill, it was found that Gill had on May 21, 1941, received from Lahiri a cheque for Rs. 500. A search warrant was then obtained for the search of Lahiris house. The warrant was executed on October 11, 1942, and the police took possession of a diary kept by Lahiri and of the counterfoils of his cheque book in which there were notes purporting to refer to Gill in the hand-writing of Lahiri. 500. A search warrant was then obtained for the search of Lahiris house. The warrant was executed on October 11, 1942, and the police took possession of a diary kept by Lahiri and of the counterfoils of his cheque book in which there were notes purporting to refer to Gill in the hand-writing of Lahiri. On these materials, with others to which reference will be made, it was determined that criminal proceedings should be instituted against Gill and Lahiri and, accordingly, steps were taken to obtain what were thought, (so far as Gill was concerned) to be the necessary consent and sanction under s. 270 of the Government of India Act, 1935, and s. 197 of the Code of Criminal Procedure as amended by the Government of India (Adaptation of Indian Laws) Order, 1937. It is convenient to set out these sections. It is convenient to set out these sections. They are as follows Section 270 of the Government of India Act, 1935 "Indemnity for Past Acts.—(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 or Burma before the " relevant date, except with the consent, in the case of a person " who was employed in connexion with the affairs of the " Government of India or the affairs of Burma, of the Governor-" General in his discretion, and in the case of a person employed " in connexion with the affairs of a Province, of the Governor " of that Province in his discretion." Section 197 of the Code of Criminal Procedure (as amended) " (1.) When any person who is a judge within the meaning of " s 19 of the Indian Penal Code, or when any magistrate, or " when any public servant who is not removable from his office " save by or with the sanction of a Provincial Government or " some higher authority, is accused of any offence alleged to " have been committed by him while acting or purporting to " act in the discharge of his official duty, no court shall take “cognizance of such offence except with the previous sanction— " (a) in the case of a person employed in connexion with " the affairs of the Federation, of the Governor-General " exercising his individual judgment; and " (b) in the case of a person employed in connexion with " the affairs of a Province, of the Governor of that Province " exercising his individual judgment. " (2.) The Governor-General or Governor, as the case may be, " exercising his individual judgment may determine 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 specify the court " before which the trial is to be held. " (3.) In relation to the period elapsing between the "commencement of part III of the Government of India "Act, 1935, and the establishment of the Federation, the " references in this section to the Federation and to the " Governor-General exercising his individual judgment shall " be construed as references to the Governor-General in " Council." On January 28, 1943, the consent of the Governor-General under s. 270 was given to the institution of proceedings against Gill in the following terms " Under s. 270 (1.) of the Government of India Act, 1935, I, Victor Alexander John, Marquess "of Linlithgow, acting in my discretion, consent to the institution of criminal proceedings against Major H. H. B. Gill, " formerly Deputy Controller of Purchase, Supply Department, Calcutta, for having committed during the years 1941 "and 1942 offences punishable under s. 161 and s. 120b read "with s. 420 of the Indian Penal Code." On February 3, 1943, sanction of the Governor-General in Council under s. 197 of the Code of Criminal Procedure was given in similar terms. It is to be observed that the sanctions refer to " offences punishable "under s. 161 and s. 120b read with s. 420 of the Indian " Penal Code," and it is convenient here to set out these sections together with s. 120a and s. 165 of the Indian Penal Code, which are also relevant "120a.—Definition of Criminal Conspiracy.—When " two or more persons agree to do, or cause to be done— " (1.) an illegal act, or " (2.) an act which is not illegal by illegal means, such "an agreement is designated a criminal conspiracy " Provided that no agreement except an agreement to "commit an offence shall amount to a criminal conspiracy " unless some act besides the agreement is done by one "or more parties to such agreement in pursuance thereof. "Explanation.—It is immaterial whether the illegal act " is the ultimate object of such agreement, or is merely "incidental to that object. " 120b.—PUNISHMENT OF CRIMINAL CONSPIRACY.— " (1.) Whoever is a party to a criminal conspiracy to commit "an offence punishable with death, transportation or rigorous "imprisonment for a term of two years or upwards, shall, "where no express provision is made in this Code for the "punishment of such a conspiracy, be punished in the "same manner as if he had abetted such offence. "(2.) Whoever is a party to a criminal conspiracy other " than a criminal conspiracy to commit an offence punishable " as aforesaid shall be punished with imprisonment of either " description for a term not exceeding six months, or with "fine or with both." Section 161.—" Whoever, being or expecting to be a “public servant, accepts or obtains, or agrees to accept, " or attempts to obtain from any person, for himself or for " any other person, any gratification whatever, other than M legal remuneration, as a motive or reward for doing or " forbearing to do any official act or for showing or forbearing H to show, in the exercise of his official functions, favour or " disfavour to any person, or for rendering or attempting to " render any service or disservice to any person, with the " Legislative or Executive Government of India, or with the " Government of any Presidency, or with any Lieutenant-" Governor, or with any public servant, as such, shall be " punished with imprisonment of either description for a " term which may extend to three years, or with fine, or "with both. "Explanations.—Expecting to be a public servant.’ " If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about "to be in office, and that he will then serve them, he may be " guilty of cheating, but he is not guilty of the offence " defined in this section. " Gratification. The word gratification is not " restricted to pecuniary gratifications or to gratifications " estimable in money. "‘Legal remuneration. The words legal remuneration "are not restricted to remuneration which a public servant 41 can lawfully demand, but include all remuneration which 44 he is permitted by the Government, which he serves, 44 to accept. " Gratification. The word gratification is not " restricted to pecuniary gratifications or to gratifications " estimable in money. "‘Legal remuneration. The words legal remuneration "are not restricted to remuneration which a public servant 41 can lawfully demand, but include all remuneration which 44 he is permitted by the Government, which he serves, 44 to accept. " A motive or reward for doing.’ A person who receives "a gratification as a motive for doing what he does not “intend to do, or as a reward for doing what he has not 44 done, comes within these words.” Section 165.—" Whoever, being a public servant, accepts “or obtains, or agrees to accept or attempts to obtain, for " himself, or for any other person, any valuable thing without 44 consideration, or for a consideration which he knows to be " inadequate, " from any person whom he knows to have been, or to be, "or to be likely to be concerned in any proceeding or business "transacted or about to be transacted by such public " servant, or having any connexion with the official functions "of himself or of any public servant to whom he is subordinate; " or from any person whom he knows to be interested in " or related to the person so concerned; " shall be punished with simple imprisonment for a term " which may extend to two years, or with fine, or with both.” " Section 420.—Cheating and Dishonestly Inducing " Delivery of Property.—Whoever cheats and thereby " dishonestly induces the person deceived to deliver any " property to any person or to make, alter or destroy " the whole or any part of a valuable security, or anything "which is signed or sealed, and which is capable of being "converted into a valuable security, shall be punished with " imprisonment of either description for a term which may " extend to seven years, and shall also be liable to fine." These sanctions having been obtained on February 25, 1943, the Deputy Superintendent of Police filed a complaint in the court of the Chief Presidency Magistrate, Calcutta, and it appears to their Lordships that it is relevant to observe that the complaint refers to a number of facts which the police purported to have then discovered and that while, as has already been stated, the sanctions related only to offences (a) under s. 161 and (b) under s. 120b read with s. 420, the same facts or some of them would appear equally to support chares under s. 120b read with s. 161 or with s. 165. On May 4, 1943, the Chief Presidency Magistrate (Mr. R. Gupta) framed 1. Against Gill and Lahiri. the following charges " That you, between March 1941 and July 1942, along with " others unknown at Calcutta and other places were parties "to a criminal conspiracy to cheat the Government of India " in the Department of Supply by dishonestly or fraudulently " inducing its Financial Officers to pay larger sums of money " than due to you Anil Lahiri of Baranagore Engineering " Works in respect of contracts for the supply of Anti-gas "Respirator Spring Compressors No. 3 and Decking Spikes "by means of false representation regarding the acceptability " of the rates quoted by Baranagore Engineering Works and " character and capacity of supply made by them in “preference to those of other firms and you thereby " committed an offence punishable under section 120b read " with section 420 of the Indian Penal Code and within " my cognizance." 2. Against Gill only. " That you on or about the 21st day of May, 1941, at " Calcutta, being a public servant, to wit, Deputy Controller " of Purchase in the Department of Supply, Government of " India, obtained from Anil Lahiri of Baranagore Engineering "Works Rs.500|-. (Rupees five hundred) by encashment " of cheque (Exhibit 4) as gratification other than legal " remuneration for showing in the exercise of your official " functions favour to the said Anil Lahiri in the matter of " the contract for the supply of Anti-gas Respirator Spring " Compressor No. 3 and you thereby committed an offence "punishable under section 161 of the Indian Penal Code " and within my cognizance." 2. 3. Against Lahiri only. " That you on or about the 21st day of May, 1941, at "Calcutta abetted Major H. H. B. Gill in the commission of " the offence under section 161 of the Indian Penal Code " by paying him Rs. 3. Against Lahiri only. " That you on or about the 21st day of May, 1941, at "Calcutta abetted Major H. H. B. Gill in the commission of " the offence under section 161 of the Indian Penal Code " by paying him Rs. 500/-by cheque (Exhibit 4) as gratification other than legal remuneration for showing, in the " exercise of his official functions as Deputy Controller of "Purchase, favour to your firm Baranagore Engineering " Works in the matter of the contract for the supply of " Anti-gas Respirator Spring Compressor No. 3, which " offence was committed in consequence of your abetment " and you thereby committed an offence punishable under " section 109 read with section 161 of the Indian Penal Code "and within my cognizance." It has not been disputed that these charges at least were framed strictly in accordance with the consent and sanction given. It has, however, been urged by learned counsel for Gill that it was not competent for the magistrate to try the appellants on any other charges or for any other offences. To this matter their Lordships will recur. On June 29, 1943, both Gill and Lahiri were examined and made statements under s. 342 of the Code of Criminal Procedure, and on August 19, 1943, the Chief Presidency Magistrate gave judgment. He held that the charge of conspiracy under s. 120b read with s. 420 had not been established and acquitted both the accused. On the second charge also, against each of the accused under s. 161, he found that the evidence fell short of the standard required to convict he therefore acquitted them both. An appeal against this order of acquittal was preferred by the Superintendent and Remembrancer of Legal Affairs, Bengal, to the High Court of Judicature at Fort William in Bengal. It was heard on December 8, 1944, by Roxburgh and Ormond JJ., who made an order in the following terms "The order of acquittal is set aside and the case is remanded "to the Chief Presidency Magistrate for trial on an amended "charge of conspiracy to take [sic] and receive bribes and also "on the charges under sections 161 and 161/109 of the Indian " Penal Code as previously framed." It may be noted parenthetically that s. 109 refers to abetment. Thus s. 420 drops out of the conspiracy charge and s. 161 takes its place. Thus s. 420 drops out of the conspiracy charge and s. 161 takes its place. No further sanction under the sections already cited was obtained or asked for. On June 22, 1945, Mr. Palmer, who had succeeded Mr. Gupta as Chief Presidency Magistrate, framed a new charge of con spiracy in the following terms "That you, between " March 1941 and July 1942, at Calcutta and elsewhere, were "parties to a criminal conspiracy, with the object of, you "Major (now captain) H. H. B. Gill being a public servant, " to wit, the Deputy Controller of Purchases in the Department "of Supply, to accept from you Anil Lahiri, a contractor in " the name of Baranagore Engineering Works and you Anil "Lahiri to give to the said Major (now Captain H. H., B. Gill, "gratifications other than legal remuneration as a motive or " reward for showing in the exercise of you Major Gills official u functions, favours or for rendering or attempting to render "any service to you the said Anil Lahiri in the matter of your " contracts for the supply of Anti-gas Respirator Spring " Compressors and Decking Spikes and in consequence thereof "offences punishable under section 161 of the Indian Penal "Code were committed, and you Major (now Captain) H. H. B. " Gill and Anil Lahiri thereby committed an offence punishable "under section 120b read with section 161 of the Indian “Penal Code." The separate charges under s. 161 and ss. 161/109 (which related to the cheque for Rs.500) were retained unaltered. On these charges, old and new, Gill and Lahiri were duly tried. A larger number of witnesses gave evidence for the prosecution. Both Gill and Lahiri were examined by the learned magistrate under s. 342 of the Code of Criminal Procedure, while Gill also put in a written statement and an additional written statement. Amongst the evidence adduced by the prosecution and admitted by the court were the diary and cheque counterfoils and notes to which reference has already been made. That these documents, which will be compendiously referred to as " Lahiris notes," were evidence against Lahiri is not denied. Nor is it to be denied that they would be at least cogent evidence against Gill, if against him they were admissible. The question which must be presently considered is whether they are admissible against him. That these documents, which will be compendiously referred to as " Lahiris notes," were evidence against Lahiri is not denied. Nor is it to be denied that they would be at least cogent evidence against Gill, if against him they were admissible. The question which must be presently considered is whether they are admissible against him. On August 13, 1945, the Chief Presidency Magistrate gave judgment, and, in view of the importance which on one part of the case this matter has assumed, it is relevant to note how he dealt with Lahiris notes. " These payments, he said, " do " not form the subject of separate charges, but evidence of these " payments has been let in firstly as proof of the conspiracy "and secondly under ss. 14 and 15 of Evidence Act as facts " tending to show the intention or lack of good faith on the " part of the parties in connexion with the payment of Rs.500 " in May, 1941, which forms the subject-matter of the separate " charge." In the result, the learned Magistrate, while disbelieving the explanation given by the defence in regard to the cheque for Rs.500 (the subject of the separate charge), did not consider that an offence had been proved under s. 161, but held that it was quite clear that an offence under s. 165 had been committed. Accordingly, without formally amending or re-framing the, charges, he convicted both Gill and Lahiri of conspiracy under s. 120b read with s. 165, and he also convicted Gill on the separate charge under s. 165 and Lahiri on the separate charge under s. 165 read with s. 109. He sentenced Gill to simple imprisonment for three months and to a fine of Rs. 210 under s. 165, and Lahiri to a similar term and fine. He passed no separate sentence on the conspiracy charge. Both Gill and Lahiri appealed to the High Court against conviction and sentence, while the Provincial Government applied for enhancement of sentence. By its judgment, dated April 12, 1946, the High Court (Blank and Ellis JJ.) set aside the convictions on the separate charges but maintained the convictions on the charge of conspiracy under s. 165 read with s. 120b, and sentenced each of the accused to three months simple imprisonment. By its judgment, dated April 12, 1946, the High Court (Blank and Ellis JJ.) set aside the convictions on the separate charges but maintained the convictions on the charge of conspiracy under s. 165 read with s. 120b, and sentenced each of the accused to three months simple imprisonment. The opinion of the High Court in regard to the separate charge may be summarized by saying that in the view of the court the accused had given an explanation of the transaction, the truth of which it was not for them to prove beyond all reasonable doubt, and that on the evidence it was not possible to find that the transaction was more than suspicious. If so, it appears to their Lordships to follow that the High Court neither disbelieved the explanation nor (which comes to the same thing) thought that there was reasonable ground for disbelieving it. In the case of the High Court also it is important to note how Lahiris notes were dealt with. " In our opinion," they said, " the entries in the note-book "taken together with the entries in the counterfoils are "explicable only on the hypothesis that Lahiri gave the "amounts mentioned to Gill and we agree, therefore, with the "learned magistrates finding that the conspiracy is established." This makes it clear that Lahiris notes were admitted as evidence not only against Lahiri but also against Gill on the conspiracy charge, and the question at once arises on what ground they were so admissible. The High Court also had to consider the questions of general importance indicated earlier in his judgment. They were (1.) whether sanction was necessary to the institution of proceedings against Gill, and (2), assuming that it was necessary, whether the sanctions in fact given justified cognizance being taken of the altered charges under s. 161 read with s. 120b and, further, whether in any event sentence for an offence under s. 165 read with s. 120b could be justified. On these questions the High Court held (a) that sanction was not necessary under s. 270 of the Government of India Act, (b) that sanction was necessary under s. 197 of the Code of Criminal Procedure, but that (c) the sanction in fact given was sufficient to cover the subsequent proceedings. Their view was that when the sanction had been granted " the bar of taking cognizance was lifted ". Their view was that when the sanction had been granted " the bar of taking cognizance was lifted ". . . . and thereby the provisions of the Code of Criminal " Procedure were, attracted." And they held that all subse quent proceedings were authorized by that Code. After some delay, owing to an abortive petition to this Board which was dismissed on the ground that the High Court had not withheld its certificate under s. 205 of the Government of India Act, 1935, Gill and Lahiri, having obtained the proper certificate, appealed from the judgment of the High Court to the Federal Court of India. On December 11, 1946, the Federal Court (Spens C.J., Zafrulla Khan and Kania JJ.) dismissed both appeals, and it is convenient to state what matters appear to have been raised before that court and how they were dealt with. In the first place, the court (whose judgment was delivered by Zafrulla Khan J.) dealt with the so-called constitutional question which arose under s. 270 of the Government of India Act. The court held that no consent was necessary for the institution of proceedings in respect of an offence under s. 120b read with s. 161 "in as much as an " agreement by a public servant to receive illegal gratification " and the receipt of such gratification by him cannot be said " to be acts done or purporting to be done in the execution of " duty." In coming to this conclusion the court followed its own earlier decision in Huntleys case . S e c o nd l y (t ho ug h ea r l i e r i n i t s own j u dg m e n t) , t h e c o ur t hel d t h a t , even i f s a nct i on un der s . S e c o nd l y (t ho ug h ea r l i e r i n i t s own j u dg m e n t) , t h e c o ur t hel d t h a t , even i f s a nct i on un der s . 27 0 wa s n e ce s s ar y , t h e s a nct i on gi ve n w a s a d e q ua t e a n d no f u r t he r s a nc t i on wa s n e c e s si t a t e d by t h e o r d e r o f t h e Hi gh C o u r t wh e r e b y t h e c a s e wa s r e m a n d e d f o r t ri al o n f r e s h ([ 19441 F.C.R. 262.) r t d e al t wi t h t h e c o m p et ence of t h e m a gi s t r a t e t o r e c o r d a con v i c t i o n un der s . 1 2 0 b r e a d wi t h s . 1 6 5 wh en t h e c h a r ge wa s f o r an of f e nce un der s . 1 2 0 b r e a d wi t h s . 1 6 1 , an d af t e r a cl o s e an al y si s of t h e r el e v a n t of f e n c e s h e l d t h a t u n d e r s . 2 3 8 of t h e C o d e s u c h a co u r s e wa s j u s t i f i e d . 2 3 8 of t h e C o d e s u c h a co u r s e wa s j u s t i f i e d . T h e c o ur t s t a t e d t h at no o t h e r i s s u e wa s r a i s ed bef o r e i t . T h i s s t a t e m ent wa s chal l e n g ed by co u n s el f o r t h e ap p el lan t s wh o u r g e d t h a t at a n y r a t e an a t t e m p t h a d b e en m a d e t o ar g u e t h e q u es tio n a risin g o n t h e ad m is sibil it y o f ev i d en ce t o wh i c h r e f e r e n c e h a s b e en m a d e . From the order of the Federal Court an appeal has, by special leave, been brought and has now to be considered by their Lordships, and they would first observe that, in as much as there was not (as is sometimes done) any special limitation imposed on the subject-matter of appeal, it must be open to the appellants to rely on any ground of appeal which would normally be open to them. They do not think it right, therefore, to exclude the argument on the admissibility of evidence, which in truth is not only of vital interest to the appellants but also raises a question of general importance. On the questions raised before the Federal Court their Lordships are of the following opinion. The necessity of a sanction under s. 270 of the Government of India Act was expressly disclaimed by counsel for the appellants. It is sufficient, therefore, for their Lordships to say that they see no ground for challenging the decision of the Federal Court in Huntleys case ([ 1944] F.C.R. 262.), which in this case the court has followed. The necessity of a sanction under s. 270 of the Government of India Act was expressly disclaimed by counsel for the appellants. It is sufficient, therefore, for their Lordships to say that they see no ground for challenging the decision of the Federal Court in Huntleys case ([ 1944] F.C.R. 262.), which in this case the court has followed. If this is so, it is unnecessary to consider the scope of the sanction that was in fact given. The Federal Court has not expressed an opinion on the necessity of a sanction under s. 197 of the Code, but, as the High Court has expressed the view that such a sanction was in this case necessary and on this much-vexed question the Board has heard full argument, their Lordships think it right to express their own view. In the first place, their Lordships find it impossible, at least in relation to an offence of this character, to distinguish between s. 270 and s. 197. The words in s. 270 "in respect of any act done or purporting to be done in the " execution of his duty as a servant of the Crown " appear to them to have precisely the same connotation as the words in s. 197, sub-s. 1, "any offence alleged to have been committed "by him while acting or purporting to act in the discharge of "his official duty." It is idle to speculate why a change of language was made. But, if a temporal meaning is not given, as in their Lordships view it clearly should not be given, to the words in s. 197 "while acting, etc.," it is in their opinion impossible to differentiate between the two sections. In the consideration of s. 197 much assistance is to be derived from the judgment of the Federal Court in Hori Ram Singh v. The Crown ([ 1939] F.C.R. 159.), and in particular from the careful analysis of previous authorities which is to be found in the opinion of Varadachariar J. Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials, cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as 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 such a test to the present case, it seems clear that Gill could not justify the acts in respect of which he was charged as acts done by him by virtue of the office that he held. Without further examination of the authorities their Lordships, finding themselves in general agreement with the opinion of the Federal Court in the case cited, think it sufficient to say that in their opinion no sanction under s. 197 of the Code of Criminal Procedure was needed. This being their opinion, it is not strictly necessary to consider the second point that was raised, namely, whether, if a sanction was necessary, the subsequent proceedings were justified by the sanction that was in fact given. But they think it desirable to say that on this question they fully concur in the judgment of the Federal Court in this case. Section 230 of the Code of Criminal Procedure is clearly part of the Code which becomes operative when once a sanction has been given under s. 197, and, as has been pointed out in the earlier part of this judgment, the whole of the facts, which would justify equally a charge under s. 120b read with s. 420 and a charge under s. 120b read with s. 161, are stated in the complaint originally filed by the Deputy Superintendent of Police, which at the same time exhibited the sanctions already obtained. It is an inference, which at this late stage of the proceedings cannot properly be challenged, that the same facts were before the sanctioning authority when the sanction was given. It is an inference, which at this late stage of the proceedings cannot properly be challenged, that the same facts were before the sanctioning authority when the sanction was given. If it was desired to raise such a question, that should have been done at the earliest moment when the prosecution could have supported by evidence the inference which even without it can fairly be drawn. Their Lordships were pressed by learned counsel for the appellants with the recent decision of the Board in Morarkas case (Ante p. 30.), but in that case the facts were wholly different and the decision gives no help to the appellants. Their Lordships are therefore of opinion that, if any sanction under s. 197 was necessary, such sanction was given as justified the court in taking cognizance of the altered charges. The question then arises whether the court, having proper cognizance of the proceedings, ought to have convicted the appellants of conspiracy, and for the purpose of this question it is immaterial whether the conviction was under s. 120b read with s. 161 or with s. 165. It is here necessary to recapitulate certain facts. The learned Chief Magistrate found the appellants guilty of the specific charges alleged against them under s. 161. And it may well be that, disbelieving the explanation which Gill gave of the transaction the subject of that charge, he had reasonable ground in connexion with the conspiracy charge for believing that Gill and Lahiri had conspired to commit the offence which was the subject of that charge, so that under s. 10 of the Indian Evidence Act the notes made by Lahiri were admissible in evidence against Gill. That section, so far as relevant, provides that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence, anything written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by one of them, is a relevant fact against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. But it must be observed (a) that apart from the evidence relevant to the specific charge there was no other competent evidence on which such a reasonable ground for belief could be rested, and (b), that the notes were clearly not admissible against Gill unless s. 10 could be invoked. It was plainly admitted by counsel for the respondent that it was on s. 10 only that he relied for the admission of such evidence, though it is not clear what course was taken in this respect in the courts of India. On the case going to appeal, the High Court accepted, or at least did not reject, the explanation given by Gill in regard to the specific charge, and having accepted it were left with nothing on which they could found the belief that Gill and Lahiri were conspiring to commit an offence. But without this belief they could not under s. 10 justify the admission of Lahiris notes as evidence against Gill, and without such evidence they had no material on which they could convict him of conspiracy. The case undoubtedly presents some curious features, and learned counsel were not able to refer their Lordships to any case in the courts of India where a similar set of circumstances had been reviewed. But it appears to their Lordships that just as a trial judge may admit evidence under s. 10 when he has such a reasonable ground of belief as is postulated, yet must reject it if at a later stage of the trial that reasonable ground of belief is displaced by further evidence, so the appellate court, which has from the outset refused that belief, must refuse also to admit evidence which was admissible only on the footing of the belief being entertained. It is not the true view that in a conspiracy charge of this kind evidence once admitted remains admissible evidence whatever new aspect the case may bear whether in the original or the appellate court. Applying this principle to the present case, their Lordships are of opinion that the conviction of Gill cannot be sustained and, since the charge is one of conspiracy, it follows that Lahiris conviction also falls. Applying this principle to the present case, their Lordships are of opinion that the conviction of Gill cannot be sustained and, since the charge is one of conspiracy, it follows that Lahiris conviction also falls. In this view of the case it is unnecessary to consider the final question that was raised whether, on the assumption that the court had proper cognizance of the case, a conviction could be recorded not under s. -120b read with s. 161 but under s. 120b read with s. 165, and their Lordships express no opinion on it. For the reasons above appearing their Lordships will humbly advise His Majesty that these appeals should be allowed and the convictions of the appellant Gill and the appellant Lahiri under s. 120b read with s. 165 of the Penal Code quashed. There will be no order as to costs (The Board gave this heard on February 26, ask ed direction with regard to costs for costs, when the appellants, by a petition).