PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF PUNJAB. DATE OF JUDGMENT: 25/01/1955 BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER DAS, SUDHI RANJAN BHAGWATI, <NAME> CITATION: 1955 AIR 274 1955 SCR (1)1201 ACT: Indian Penal Code (Act XLV of 1860), s. 34-Merely explana- tory-No offence created there by-Ss. 34 and 149 of the Indian Penal Code -Distinction between the two- Code of Criminal Procedure (Act V of 1898), s. 233-Charge under s. 302 read with s. 149 , Indian Penal Code -No specific charge under s. 302 , Indian Penal Code as required by s. 233 of the Code of Criminal Procedure-Conviction under s. 302-Legality thereof. HEADNOTE: Section 34 of the Indian Penal Code is merely explanatory. It does not create any specific offence. Under this section several persons must be actuated by a common intention and when in further- (1) A.I.R. 1936 Lah. 68. 1202 ance of that common intention a criminal act is done by them, each of them is liable for that act as if the act had been done by him alone. There is a clear distinction between the provisions of s. 34 and s. 149 of the Indian Penal Code and the two sections are not to be confused. The principal element in s. 34 of the Indian Penal Code is the common intention to commit a crime. In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation s. 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone. There is no question of common intention in s. 149 of the Indian Penal Code. An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and the other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled. Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence. There is a difference between object and intention, for although the object may be common, the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in one respect namely that they are all -unlawful, while the element of participation in action, which is the leading feature of s. 34 , is replaced in s. 149 by membership of the assembly at the time of the committing of the offence. A charge for a substantive offence under section 302 , or section 325 of the Indian Penal Code, etc. is for a distinct and separate offence from that under section 302 , read with section 149 or section 325 , read with section 149 , etc. A person charged with an offence read with s. 149 cannot be convicted of the substantive offence without a specific charge being framed as required by s. 233 of the Code of Criminal Procedure. There was no room for the application of s. 236 of the Code of Criminal Procedure to the facts of the present case. The provisions of s. 236 of the Code of Criminal Procedure can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed and tried or alternative charges can be framed. In the present case there was no doubt about the facts and if the allegation against the appellant that he had caused the injuries to the deceeased with takwa was established by evidence, then there could be no doubt that the offence of murder had been committed, 1203 In the present case there was no question of any error, omission or irregularity, in the charge within the meaning of s. 537 of the Code of Criminal Procedure because no charge under s. 302 of the Indian Penal Code was in fact framed. There was an illegality in the present case and not an irregularity which was curable by the provisions of ss. 535 and 537 of the Code of Criminal Procedure. Assuming however that there was merely an irregularity which was curable, the irregularity in the circumstances of the case was not curable because the appellant was misled in his defence by the absence of a charge under s. 302 of the Indian Penal Code. By framing a charge under s. 302 , read with s. 149 , Indian Penal Code against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under s. 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution ease. <CITATION> ( (1925] I.L.R. 52 Cal. 197), <CITATION> (  20 W.R. (Cr.) 5), <CITATION> (  I.L.R. 34 Cal. 698), <CITATION> ( 6 C.W.N. 98), <CITATION> (  I.L.R. 41 Cal. 662), <NAME> and Others v. King-Emperor ( I.L.R. 47 Mad. 746), <CITATION> (  I.L.R. 9 All. 645), <NAME> (  18 L.W. 946), <NAME> v. King-Emperor (  I.L.R. 7 Patna 484), <CITATION> (A.I.R. 1948 All. 162), and <CITATION> (  S.C.R. 904), referred to. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 132 of 1954.

Appeal by Special Leave granted by <ORG> by its Order dated the 3rd September, 1954 from the Judgment and Order dated the 15th June' 1954 of <ORG> at Simla in Criminal in Appeal No. 287 of 1954 arising out of the Judgment and Order dated the 14th April 1954 of <ORG> in Session Case No. 4 of 1954. <NAME>, (<NAME>, with him), for the appellant.

<NAME> and <NAME>, for the respondent. 1955. January 25. The Judgment of the Court was delivered by <NAME> appeal by <NAME> comes by special leave against the judgment of the Punjab (1) <ORG>. The appellant was convicted by the <ORG> under section 302 of the Indian Penal Code and the sentence of death passed on him by the Additional Sessions Judge of Jullundur was con- firmed.

On the facts alleged by the prosecution there can be no doubt that <NAME> was killed on the 5th of November, 1953, at about 6-45 P.m. at the shop of <ORG>. It is alleged that the appellant along with others assaulted <NAME>. The appellant was armed with a takwa. Numerous injuries were found on the person of <NAME>. According to the doctor, who held the postmortem examination, injuries 1, 3 and 4 were due to a heavy sharp edged weapon and could be caused by a takwa. It was denied by the prosecution that the deceased was assaulted by any other person with a takwa. According to the Medical evidence, injuries 1, 3 and 4 individually, as well as collectively, were enough to cause: death in the ordinary course of nature.

In <ORG> the appellant along with others was charged under section 148 and section 302 , read with section 149 of the Indian Penal Code. The Additional Sessions Judge, however, held, that the charge of rioting was not proved. He, accordingly found the appellant and three others guilty under section 302 read with section 34 of the Indian Penal Code. He acquitted the other three accussed There was an appeal by three convicted persons to <ORG> and the high court convicted the appellant alone under section 302 of the Indian Penal Code, confirming the sentence of death but altered the conviction of the other accused 'from section 302 / 34 to section 323 , Indian Penal Code . it held that the provisions of section 34 of the Indian Penal Code did not apply.

On behalf of the appellant questions of law and questions of fact were urged. It will be unnecessary to deal with the questions of fact if the argument on points of law is accepted.

The principal question of law to be considered is as to whether the appellant could legally be convicted for murder and sentenced under section 302 , Indian Penal Code when he was not charged with that offence. It was urged that as the appellant had been acquitted of the charge of rioting and the offence under section 302 / 149 of the Indian Penal Code, he could not be convicted for the substantive offence of murder under section 302 , Indian Penal Code , without a charge having been framed against him under that section. Reliance has been placed on the provisions of the Code of Criminal Procedure relating to the framing of charges, the observations of <ORG> in <CITATION> (1) and certain decisions of <ORG> to which reference will be made later on. It was urged that for every distinct offence of which a person is accused, there shall be a separate charge and every such charge shall be tried separately except in cases mentioned under sections 234 , 235 , 236 ) 237 and 239 of the Code of Criminal Procedure. Section 149 of the Indian Penal Code creates a specific offence and it is a separate offence from the offence of murder punishable under section 302 of the Indian Penal Code. The provisions of sections 236 , 237 and 238 of the Code of Criminal Procedure did not apply to the facts and circumstances of the present case. Off behalf of the Prosecution, however, it was urged that section 149 did not create any offence at all and therefore no separate charge was obligatory under section 233 of the Code of Criminal Procedure and that in any event the provisions of sections 236 and 237 of the Code of Criminal Procedure did apply and the appellant could have been convicted and sentenced, under section 302 of the Indian Penal Code, although no charge for the substantive offence of murder had been framed against him.

(1) [1925] I.L.R. 52 Cal, 197, It is necessary, therefore, to examine the provisions of section 149 of the Indian Penal Code and consider as to whether this section creates a specific offence. Section 149 of the Indian Penal Code is to be found in Chapter VIII of that Code which deals with offences against the public tranquillity. Section 149 of the Indian Penal Code reads:- "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence".

This section postulates that an offence is committed by a member of an unlawful assembly in prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed in prosecution of that object and declares that in such circumstances every person, who was a member of the same assembly at the time of the commission of the offence, was guilty of that offence. Under this section a person, who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly, in the circumstances mentioned in the section, although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. Without the provisions of this section a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly. Therefore when the accused are acquitted of riot and the charge for being members of an unlawful assembly fails, there can be no conviction of any one of them for an offence which he had not himself committed. Similarly under section 150 of the Indian Penal Code, a specific offence is created. Under this section a person need not be a member of an unlawful assembly and yet he would be guilty of being a member of an unlawful assembly and guilty of an offence which may be committed by a member of the unlawful assembly in the circumstances mentioned in the section. Sections 149 and 150 of the Indian Penal Code are not the only sections in that Code which create a specific offence. Section 471 of the Indian Penal Code makes it an offence to fraudulently or dishonestly use as genuine any document which a person knows or has reason to believe to be a forged document and it provides that such a person shall be punished in the same manner as if he had forged such document. Abetment is an offence under the Indian Penal Code and is a separate crime to the principal offence. The sentence to be inflicted may be the same as for the principal offence. In Chapter XI of the Indian Penal Code offences of false evidence and against public justice are mentioned. Section 193 prescribes the punishment for giving false evidence in any stage of a judicial proceeding or fabricating false evidence for the purpose of being used in any stage of a judicial proceeding. Section 195 creates an offence and the person convicted of this offence is liable in certain circumstances to be punished in the same manner as a person convicted of the principal offence. Sections 196 and 197 to 200 of the Indian Penal Code also create offences and a person convicted under any one of them would be liable to be punished in the same manner as if he had given false evidence.

It was, however, urged on behalf of the Prosecution that section 149 merely provides for constructive guilt similar to section 34 of the Indian Penal Code. Section 34 reads: "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".

This section is merely explanatory. Several persons must be actuated by a common intention and when in furtherance of that common intention a criminal act is done by them, each of them is liable for that act as if the act bad been done by him alone. This section does not create any specific offence. As was pointed out by Lord <NAME> in <CITATION> (1) "'a criminal act' means that (1)  I.L.R. 52 Cal. 197, unity of criminal behaviour which results in something, for which an individual would be punishable, if it were all done by himself alone, that is, in a criminal offence". There is a clear distinction between the provisions of sections 34 and 149 of the Indian Penal Code and the two sections are not to be confused. The principal element in section 34 of the Indian Penal Code is the common intention to commit a crime. In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone.' There is no question of common intention in section 149 of the Indian Penal Code. An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled. Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence. <CITATION> (1) Lord <NAME> dealt with the argument that if section 34 of the Indian Penal Code bore the meaning adopted by <ORG>, then sections 114 and 149 of that Code would be otiose. In the opinion of Lord <NAME>, however, section 149 is certainly not otiose,, for in any case it created a specific offence. It postulated an assembly of five or more persons having a common object, as named in section 141 of the Indian Penal Code and then the commission of an offence by one member of it in prosecution of that object and he referred to <CITATION> and (1)  I.L.R. 52 Cal, 197, Others(1). He pointed out that there was a difference between object and intention, for although the object may be common, the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action, which is the leading feature of section 34 , was replaced in section 149 by membership of the assembly at the time of the committing of the offence. It was argued, however, that these observations of Lord <NAME> were obiter dicta. Assuming though not conceding that may be so, the observations of a Judge of such eminence must carry weight particularly if the observations are in keeping with the provisions of the Indian Penal Code . It is, however, to be remembered that the observations of Lord <NAME> did directly arise on the argument made before <ORG>, <ORG> reviewing as a whole the provisions of sections 34 , 114 and 149 of the Indian Penal Code.

On behalf of the appellant certain decisions of <ORG> were relied upon in support of the submission made, viz. <CITATION> (2), <NAME> and Others v. <NAME>-Emperor(3) and <CITATION> (' ). These decisions support the contention that it will be illegal to convict an accused of the substantive offence under a section without a charge being framed if he was acquitted of the offence under that section read with section 149 of the Indian Penal Code., On the other hand, the prosecution relied upon a decision of the. Full Bench of <ORG> in <NAME> and Others v. <NAME>-Emperor(5) and the case <CITATION> (6). The decision of <ORG> was given in April, 1924, and reliance was placed upon the decision of <ORG>. The decision of -the <ORG> in <NAME> case was in October, 1924. <ORG>, therefore, did not have before it the decision of the - <ORG>. It is impossible to, say what view might have been expressed (1)  20 W.R. (Cr.) 5.(2)  I.L.R. 34 Cal.

698. (3) [1961] 6 O.W.N 98.(4) [1914] I.L.R. 41,Cal. 662. (5) [1924] I.L.R. 47 Mad. 746.(6) [1887] T.L.R. 9 All.

645. by that court if <ORG> judgment in the aforesaid case had been available to the court. The view of <ORG> had been noticed and it appears that a decision of <ORG> in <NAME> was to the effect that section 149 of the Indian Penal Code is a distinct offence from section 325 of the Indian Penal Code. Because of this it was thought advisable to refer the matter. to a Full Bench. Two questions were referred to the Full Bench: (1) When a charge omits section 149 , Indian Penal Code , and the conviction is based on the provisions of that section, is that conviction necessarily bad, or does it depend on whether the accused has or has not been materially rejudiced by the omission? (2) When a charge has been framed under sections 326 and 149 , Indian Penal Code , is a conviction under section 326 , Indian Penal Code , necessarily bad, or does this also depend on whether the accused has or has not been materially prejudiced by the form of the charge? -The Full Bench agreed with the view expressed by Sir <NAME> in the Allahabad case that section 149 created no offence, but was, like section 34 , merely declaratory of a principle of the common law, and its object was to make it clear that an accused who comes within that section cannot put forward as a defence that it was not his hand which inflicted the grievous hurt. It was observed by <ORG> that a person could not be tried and sentenced under section 149 alone, as no punishment is provided by the section. Therefore the omission of section 149 from a charge does not create an illegality by reason of section 233 of the Code of Criminal Procedure which provides that for every distinct offence of which any person is accused there shall be a separate charge. They did not agree, with the general statement in <NAME>'s case(2) that it is, settled law that when a person is charged by implication under section 149 , he cannot be convicted of the substantive offence.

A charge for a substantive offence under section 302 , or section 325 of the Indian Penal Code, etc. is for a distinct and separate offence from that under section (1)  18 L.W. 946.

(2) (1901] 6 W.N. 98.

302, read with section 149 or section 325 , read with section 149 , etc. and to that extent the Madras view is incorrect. It was urged by reference to section 40 of the <ORG> that section 149 cannot be regarded as creating an 'offence' because it does not itself provide for a punishment. Section 149 creates an offence but the punishment must depend on the offence of which the offender is by that section made guilty. Therefore the appropriate punishment section must be read with it. It was neither desirable nor possible to prescribe one uniform punishment for all cases which may fall within it. The finding that all the members of an unlawful assembly are guilty of the offence committed by one of them in the prosecution of the common object at once subjects all the members to the punishment prescribed for that offence and the relative sentence. Reliance was also placed upon the decision of <ORG> in <NAME> v. King-Emperor(1) as well as the decision of <ORG> in <CITATION> (1). In the former case the decision of <ORG> in <NAME> case was not considered and the decision followed <ORG> of <ORG> and the opinion of Sir <NAME>. In the latter case <ORG> definitely declined to answer the question as to whether the accused charged with an offence read with section 149 , <ORG> , or with an offence read with section 34 , <ORG> , could be convicted of the substantive offence only. After an examination of the cases referred to on behalf of the appellant and the prosecution we are of the opinion that the view taken by <ORG> is the correct view namely, that a person charged with an offence read with section 149 cannot be convicted of the substantive offence without a specific charge being framed 'as required by section 233 of the Code of Criminal Procedure. It was urged that in view of the decision of this Court in <CITATION> (1) a conviction under section 302 , read with see-

(1) [1928] I.L.R. 7 Patna 484. (2) A.I.R. 1948 All. 162, (3) 1954 S.C.R. 904,  tion 149, could be converted into a conviction under section 302 / 34 which <ORG> did. There could be no valid objection, therefore, to converting a conviction under section 302 / 34 into one under section 302 which <ORG> did.' This argument is unacceptable. <ORG> clearly found that section 34 was not applicable to the facts of the case and acquitted the other accused under section 302 / 34 , that is to say the other accused were wrongly convicted by the trial court in that way but the appellant should have been convicted under section 302 . <ORG> could not do what the trial court itself could not do, namely, convict under section 302 , as no separate charge had been framed under that section. It was urged by the Prosecution that under the provisions of section 236 and section 237 of the Code of Criminal Procedure a person could be convicted of an offence which he is shown to have committed although he was not charged with it. Section 237 of the Code of Criminal Procedure is entirely dependent on the provisions of section 236 of that Code. The provisions of section 236 can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed and tried or alternative charges can be framed. In these circumstances if there had been an omission to frame a charge, then under section 237 , a conviction could be arrived at on the evidence although no charge had been framed. In the present case there is no doubt about the facts and if the allegations against the ap- pellant that he bad caused the injuries to the deceased with takwa was established by evidence, then there could be no doubt that the offence of murder bad been committed. There was no room for the application of section 236 of the Code of Criminal Procedure.

It had been argued on behalf of the prosecution that no finding or sentence pronounced shall be deemed invalid merely on the ground that no charge was framed. Reliance was placed on the provisions of section 535 of the code of criminal procedure Reference was also made to the provisions of section 537 of that Code. Section 535 does permit. a court of appeal or revision to set aside the finding or sentence if in its opinion the non-framing of a charge has resulted in a failure of justice. Section 537 also permits a court of appeal or revision to set aside a finding or sentence if any error, omission or irregularity in the charge has, in fact, occasioned a failure of justice. The explanation to the section no doubt directs that the court shall have regard to the fact that the objection could and should have been raised at an earlier stage in the proceedings. In the present case, however, there is no question of any error, omission or irregularity in the charge because no charge under section 302 of the Indian Penal Code was in fact framed.. Section 232 of the Code of Criminal Proce. dure permits an appellate court or a court of revision, if satisfied that any person convicted of an offence was misled in his defence in the absence of a charge or by an error in the charge, to direct a new trial to be had upon a charge framed in whatever manner it thinks fit. In the present case we are of the opinion that there was an illegality and not an irregularity curable by the provisions of sections 535 and 537 of the Code of Criminal Procedure. Assuming, however, for a moment that there was merely an irregularity which was curable we are satisfied that, in the circum- stances of the present case, the irregularity is not curable because the appellant was misled in his defence by the absence of a charge under section 302 of the Indian Penal Code.

By framing a charge under section 302 , read with section 149 of the Indian Penal Code against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution ease, Attention has been drawn to the Medical -evidence. With reference to injury No. I the doctor stated that the wounds - were not very clean-cut. It is further pointed out that the other incised injuries on the head were bone deep. The bone, however, had not been out. Injuries on the head although inflicted by a blunt weapon may sometimes assume the characteristics of an incised wound. Reference was made to <ORG> on Medical Jurisprudence, 9th Ed., at page 241, where it is stated that under certain circumstances, and in certain situations on the body, wounds produced by a blunt instrument may stimulate the appearance of an incised wound. These wounds are usually found over the bone which is thinly covered with tissue, in the regions of the head, forehead, eyebrow, cheek, and lower jaw, among others. It is also pointed that <NAME> bad admitted that <NAME> took away the takwa from the appellant after <NAME> had been dragged out of the shop but no takwa blow was given outside the shop. <NAME>, another eye-witness, also- admitted that <NAME> had taken the takwa from the appellant when they had come out of the shop. It was urged that if a specific charge for murder had been framed against the appellant, he would have questioned the doctor more closely about the incised injuries on the head of the deceased, as well as the prosecution witnesses. It is difficult to hold in the circumstances of the present case that the appellant was not prejudiced by the non-framing of a charge under section 302 , Indian Penal Code .

Having regard to the view expressed on the question of law, it is unnecessary to refer to the arguments on the facts. The appeal is accordingly allowed and the conviction and the sentence of the appellant is set aside and the case of the appellant is remanded to the court of <ORG> at Jullundur for retrial after framing a charge under section 302 of the Indian Penal Code and in accordance with law. Appeal allowed.


CASE NO.: Appeal (civil) 718 of 1962 PETITIONER: Jagdish Mitter RESPONDENT: <ORG> DATE OF JUDGMENT: 20/09/1963 BENCH: P.B. GAJENDRAGADKAR & K. SUBBARAO & K.N. WANCHOO & J.C. SHAH & R. DAYAL JUDGMENT:

JUDGMENT 1964 AIR (SC) 449 The Judgment was delivered by <NAME>, J Per Gajendragadkar, JThe short question which arises in this appeal is whether the order passed by the Director of Postal Services on 28 October, 1949 terminating the services of the appellant amounts to his dismissal under S. 240(1) so as to attract the provisions of S.240(3) of the Government of India Act, 1935.

The appellant was appointed as a temporary second division clerk in <ORG>, Lahore, for a period of six months, on 9 October, 1946. At the end of the initial period of six months, his appointment was continued from time to time until he was posted in the office of Postmaster-General at Ambala on 12 August, 1947. Whilst he was working in that post, the impugned order was passed by which his services were terminated. That led to the present suit filed by the appellant on 11 November, 1952 in which he claimed a declaration that the termination of his services was illegal on the ground that rule 126 of the Posts and Telegraphs Manual, Vol. II. General Regulations, had been contravened, and no enquiry had been held against him after furnishing him with a chargesheet in that behalf. It is from this suit that the present appeal arises.

The claim made by the appellant was disputed by the respondent, <ORG>, on several grounds. It was alleged that the appellant was a temporary servant and as no declaration had been made in his favour that he had acquired the status of quasi-permanent servant, it was urged that his services could be terminated on a month's notice in terms of his contract. In such a case, no enquiry was required to be held and not chargesheet had to be supplied to the appellant.

The respondent also averred that prior to the discharge of the appellant, a complaint had been received in July, 1949, from one <NAME> which led to an enquiry in respect of the conduct of the appellant. <NAME> had alleged that he had posted four reply - paid postcards to the Postmaster-General, Ambala, in connexion with a claim application for National and Defence Certificates originally registered in Pakistan; he however, received no reply to the said letters except a bare acknowledgement. On 7 July 1949 <NAME> received a reply written on a portion of one of his reply postcard; the contents showed that the said card was written by <NAME>, the brother of the appellant, to his mother. <NAME> had failed to score off the address of the original sender written on the postcard, and so, it was delivered to <NAME> instead of the mother of <NAME>. In the course of investigation that followed, <NAME> admitted that he had written the said postcard to his mother using for that purpose the reply paid card sent by <NAME>.The Sub-Judge at Ambala who tried the suit held that since the appellant was a temporary <ORG> servant, his service could be terminated without holding any enquiry and that the provisions of S.240(3) of the <ORG> of India Act, 1935, were, therefore inapplicable and so, he dismissed the appellant's suit. The appellant appealed against the said decree and his appeal was allowed by the learned District Judge at Ambala. The learned District Judge held that the order passed against the appellant was one of dismissal, and so, it attracted the provisions of S.240(3) of the <ORG> of India Act, 1935. He found that the said provisions had not been complied with, and so, he held that the order of dismissal passed against the appellant was invalid.

This decision of the learned District Judge was challenged by the respondent by preferring an appeal before <ORG>. <NAME>, J., who heard this appeal upheld the pleas raised by the respondent and came to the conclusion that the order passed against the appellant was no more than a mere order of discharge, and so, it fell outside the purview of S. 240(3). In the result, the appeal preferred by the respondent was allowed and the appellant's suit was ordered to be dismissed. Against this decision, the appellant preferred a Letters Patent Appeal before <ORG> of the said <ORG>, but the said Letters Patent Appeal appeal was dismissed in limine. The appellant then applied to the said <ORG> for a certificate of fitness, but since the said certificate was refused, he moved this Court for special leave, and it is with the special leave granted to him by this Court that he has brought the present appeal before us. On his behalf, <NAME> has contended that the <ORG> was in error in holding that the impugned order passed against the appellant did not amount to dismissal within the meaning of Art. 311 of the Constitution, or S.240(3) of the Government of India Act, 1935. Since the provisions of S. 240(3) and those of Art. 311 are substantially similar in regard to the point of controversy between the parties in the present appeal, we propose to refer to Art. 311 in the course of our judgment.The true legal petition in regard to the scope and effect of the provisions of Art. 311 in respect of persons employed in civil capacities under the <ORG> or a <ORG> on a temporary or probationary basis is now fairly well-established. It is, however, necessary to state the said legal position briefly before dealing with the merits of the dispute between the parties in the present appeal.

Having regard to the legislative history of the provisions contained in Art. 311 , the words "dismissed,"" removed"and" reduced in rank" as used in Art. 311(1 ), have attained the significance of terms of art. As has been observed by <NAME>, C.J. in <CITATION> 1958 (1) LLJ 544 at 599] :

"both at the date of the commencement of the 1935 Act and of our Constitution the words 'dismissed' 'removed' and 'reduced in rank' as used in the service rules, were well-understood as signifying or denoting the three major punishments which could be inflicted on Government servants. The protection given by the rules to the Government servants against dismissal, removal or reduction in rank, which could not be enforced by action, was incorporated in Sub-sec. (1) and (2) of S. 240 to give them a statutory protection by indicating a procedure which had to be followed before the punishments of dismissal, removal or reduction in rank could be imposed on them and which could be enforced in law. These protections have now been incorporated in Art. 311 of our Constitution."

It is thus clear that every order terminating the services of a public servant who is either a temporary servant, or a probationer, will not amount to dismissal or removal from service within the meaning of Art. 311. It is only when the termination of the public servant's services can be shown to have been ordered by way of punishment that it can be characterized either as dismissal or removal from service.It is also now settled that the protection of Art. 311 can be invoked not only by permanent public servants, but also by public servants who are employed as temporary servants or probationers, vide <NAME> case 1958 (1) LLJ 544 ] (vide supra) and so, there can be no difficulty in holding that if a temporary public servant or a probationer is served with an order by which his services are terminated, and the order unambiguously indicates that the said termination is the result of punishment sought to be imposed on him, he can legitimately invoke the protection of Art. 311 and challenge the validity of the said termination on the ground that the mandatory provisions of Art. 311(2) have not been complied with. In other words, a temporary public servant or a probationer cannot be dismissed or removed from service without affording him the protection guaranteed by Art. 311(2).

It is true that the tenure held by a temporary public servant or a probationer is of a precarious character. His services can be terminated by one month's notice without assigning any reason either under the terms of contract which expressly provide for such termination or under the relevant statutory rules governing temporary appointments or appointments of probationers. Such a temporary servant can also be dismissed in a punitive way; that means that the appropriate authority possesses two powers to terminate services of a temporary public servant; it can either discharge him purporting to exercise its power under the terms of contract or the relevant rule, and in that case, it would be a straightforward and direct case of discharge and nothing more; in such a case, Art. 311 will not apply. The authority can also act under its power to dismiss a temporary servant and make an order of dismissal in a straightforward way; in such a case, Art. 311 will apply.This simple position is sometimes complicated by the fact that even while exercising its power to terminate the services of a temporary servant under the contract or the relevant rule, the authority may in fairness enquire whether the temporary servant should be continued in service or not. It is obvious that the temporary servants or probationers are generally discharged, because they are not found to be competent or suitable for the post they hold. In other words, if a temporary servant or a probationer is found to be satisfactory in his work, efficient, and otherwise eligible, it is unlikely that his services would be terminated, and so, before discharging a temporary servant, the authority may have to examine the question about the suitability of the said servant to be continued and acting bona fide in that behalf, the authority may also give a chance to the servant to explain, if any complaints are made against him, or his competence or suitability is disputed on some grounds arising from the discharge of his work; but such an enquiry would be held only for the purpose of deciding whether the temporary servant should be continued or not. There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not to punish the temporary servant but just to decide whether he deserves to be continued in service or not. If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to be continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule; in such a case, it would not be open to the temporary servant to invoke the protection of Art. 311 for the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged.On the other hand, in some cases, the authority may choose to exercise its power to dismiss a temporary servant and that would necessitate a formal departmental enquiry in that behalf. If such a formal enquiry is held, and an order terminating the services of a temporary servant is passed as a result of the finding recorded in the said enquiry, prima facie the termination would amount to the dismissal of the temporary servant. It is in this connexion that it is necessary to remember cases in which the services of a temporary servant have been terminated directly as a result of the formal departmental enquiry, and cases in which such termination may not be the direct result of the enquiry; and this complication arises because it is now settled by decisions of this <ORG> that the motive operating in the mind of the authority in terminating the services of a temporary servant does not alter the character of the termination and is not material in determining the said character-vide <NAME> 1958 (1) LLJ 544 ] (vide supra). Take a case where the authority initiates a formal departmental enquiry against a temporary servant, but whilst the enquiry is pending, it takes the view that it may not be necessary or expedient to terminate the services of the temporary servant by issuing an order of dismissal against him. In order to avoid imposing any stigma which an order of dismissal necessarily implies, the enquiry is stopped and an order of discharge simpliciter is served on the servant. On the authority of the decision of this <ORG> in the case of <NAME> 1958 (1) LLJ 544 ] (vide supra) it must be held that the termination of services of the temporary servant which in form and in substance is no more than his discharge effected under the terms of contract or the relevant rule, cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued for some alleged misconduct. That is why in dealing with temporary servants against whom formal departmental enquiries may have been commenced but were not pursued to the end, the principle that the motive operating in the mind of the authority is immaterial, has to be borne in mind.But since considerations of motive operating in the mind of the authority have to be eliminated in determining the character of the termination of services of a temporary servant, it must be emphasized that the form in which the order terminating his services is expressed will not be decisive. If a formal departmental enquiry has been held in which findings have been recorded against the temporary servant and, as a result of the said findings, his services are terminated, the fact that the order by which his services are terminated, ostensibly purports, to be a mere order of discharge, would not disguise the fact that in substance and in law the discharge in question amounts to the dismissal of the temporary servant. That is why the form of the order is inconclusive; it is the substance of the matter which determines the character of the termination of services. In dealing with this aspect of the matter, we must bear in mind that the real character of the termination of services must be determined by reference to the material facts that existed prior to the order. Take a case where a temporary servant attacks the validity of his discharge on the ground of mala fides on the part of the authority. If in resisting the plea of mala fides the authority refers to certain facts justifying the order of discharge and these facts relate to the misconduct, negligence or inefficiency of the said servant, it cannot logically be said that in view of the plea thus made by the authority long after the order of discharge, it should be held that the order of discharge was the result of the consideration set out in the said plea. What the <ORG> will have to examine in each case would be, having regard to the material facts existing up to the time of discharge, is the order of discharge in substance one of dismissal ? If the answer is that notwithstanding the form which the order took, the appointing authority, in substance, really dismissed the temporary public servant, Art. 311 would be attracted.It would thus be noticed that the problem raised by complaints made by temporary public servants who have been discharged, presents several facts, and in dealing with one fact or the other presented to the <ORG> by the special facts in each case, emphasis has naturally shifted. But the main principles, which have been accepted by this <ORG> and applied in dealing with cases of temporary servants who have been discharged, are no longer in doubt. It would be convenient to illustrate this position by referring to some recent decisions of this <ORG> on this point.

<CITATION> 1960 (1) LLJ 577 ] this <ORG> was dealing with the case of a Sub-Deputy Collector whose services were terminated by an order which set out elaborately the grounds on which the discharge in question was based. Upholding the probationer's plea that the order of discharge was, in substance, one of dismissal to which Art. 311(2) applied, this <ORG> observed that he had been discharged from service really because the Government had, on enquiry, come to the conclusion, rightly or wrongly, that he was unsuitable for the post he held on probation. It is significant that the order of discharge, in terms, referred to considerations which showed why the Government treated the probationer as corrupt and, therefore, unsuitable for the post he held on probation. In other words, on the face of the order, a stigma was attached to the probationer who was discharged. That is why this <ORG> upheld the view taken by <ORG> that Art. 311(2) was applicable, and since, its mandatory provisions had not been complied with, the order was invalid. In this connexion, it is necessary to point out that the impugned order was preceded by an enquiry which had been held against the probationer and notice was served on him at the said enquiry calling upon him to show cause why his services should not be terminated forthwith.In dealing with this question, <NAME>, C.J., who spoke for the <ORG> summarized the effect of the decision of this <ORG> in <NAME> case 1958 (1) LLJ 544 ] (vide supra) by formulating five propositions. Propositions 2 and 3 are relevant for our present purpose. They read as under :

"2. The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.

3. But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Art. 311(2) of the Constitution."

It would be noticed that these propositions were laid down in a case where the order of discharge on its face attributed stigma to the probationer whose services were discharged and it was preceded by an enquiry held with a view to decide whether the said probationer's services should not be terminated forthwith; and so, with respect, in appreciating the effect of proposition 3 as enunciated in the judgment, these material facts must be borne in mind. We do not think that the Court intended to lay down a broad and unqualified proposition that wherever any kind of enquiry is held by the authority before terminating the services of a probationer, the subsequent termination of such a probationer's services in whatever form it is couched, must always be deemed to amount to his dismissal. As we have already indicated, almost in every case where the question of continuing the probationer or a temporary servant falls to be decided by the authority, the authority has necessarily to inquire whether the said probationer or temporary servant deserves to be continued and that may sometimes lead to an enquiry. In fact, it would be an act of fairness on the part of the authority to make such an enquiry and give a chance to the servant concerned to explain his conduct before the authority reaches a conclusion in the matter. Such an enquiry is actuated solely by the desire to decide the simple question as to whether the temporary servant or the probationer should be continued or not, and is undertaken for that purpose alone without any desire to attach any stigma to him. An enquiry of this character must be distinguished from the formal departmental enquiry where charges are served on the servant and which is undertaken for the purpose of punishing him; otherwise it would lead to this anomalous result that in the case of a temporary servant or a probationer, the authority must discharge him without inquiring into his alleged inefficiency or unsuitability but if the authority chooses to act fairly and makes some kind of enquiry and gives an opportunity to the servant concerned to explain his alleged deficiency, the discharge becomes dismissal. We have no doubt that in laying down third proposition, this Court did not refer to such informal enquiries and did not intend to take in cases of simple and straightforward discharge of temporary servants which follow such informal enquiries. <CITATION> 1961 (1) LLJ 552 ] this Court was dealing with a case of a sub-inspector on probation in <ORG>, who had been discharged. His case that the discharge amounted to dismissal had been upheld by <ORG>, but was rejected by this Court in appeal, because this Court came to the conclusion that the impugned order of discharge could not properly be held to be an order of dismissal. It is true that the impugned order of discharge did refer to the adverse comments made against the probationer's conduct and did say that it was, therefore, no good retaining him further in service and that, prima facie, would amount to attaching a stigma to the probationer who was discharged; nevertheless, the order was construed by this Court to be an order of discharge simpliciter and no more, because rule 55(b) of the Civil Services (Classification, Control and Appeal) Rules required that before the services of a probationer were terminated, an enquiry had to be held about his competence after giving him an opportunity to show cause against the grounds alleged against him; and it was because such an enquiry had to be held that the result of the enquiry was communicated to the probationer when he was discharged. In other words, the statements in the order of discharge on which the probationer had relied for the purpose of showing that the said order amounted to dismissal, had to be made in the order as a result of the requirements of rule 55(b), and so, this Court came to the conclusion that merely on the strength of the said statements, the impugned order could not be characterized as an order of dismissal. In dealing with this question, this Court observed that the enquiry against the respondent (probationer) was for ascertaining whether he was fit to be confirmed and so, "an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed."

could not, in law, be treated as an order of dismissal. Thus, this decision illustrates the importance of the character of the enquiry held against a temporary servant which may ultimately lead to the termination of his services. It also emphasizes that if the probationer's contention had been upheld, it would virtually have meant that every order of discharge passed against a probationer after complying with the requirements of rule 55 (b) would have to be treated as an order of dismissal and that obviously cannot be right.

The third decision to which we ought to refer is the decision of this <ORG> in <NAME> (S.) v. State of Punjab [ 1963 (1) LLJ 671 ]. This case concerned a tahsildar who was recruited in the year 1936 and appointed as an extra Assistant Commissioner on probation in 1945. In 1952, he was reverted to the post of tahsildar by an order duly served on him. This order was followed by a warning served on him on 18 September, 1953, and in the warning in was clearly stated that the officer was guilty of misconduct in several respects. It appears that the officer challenged the validity of the order reverting him to the post of a tahsildar on the ground that it amounted to punishment, and he also alleged that it was the result of mala fides. This <ORG> considered the relevant material adduced in the proceedings which showed that the record of the officer was extremely satisfactory and that the order reverting him showed that the Government was acting mala fide. Thus, the decision in this case was based mainly, if not solely on the ground that the reversion of the officer was mala fide. It is true that in the course of the judgment, this <ORG> has observed that having regard to the sequence of events which led to the reversion followed by the warning administered to the officer considered in the light of his outstanding record, the reversion could also be held to be a punishment; but the officer's plea which proved effective was the plea of mala fides against the Government.The last case which was cited before us on this point is the decision of this <ORG> in <CITATION> 1964 (1) LLJ 68 ]. <NAME> was appointed an Inspector of Consolidation in 1953. This appointment was on temporary basis and terminable with one month's notice. It appears that in 1955, <NAME> was served with a chargesheet alleging that he had received Rs. 150 as illegal gratification from one <NAME> and had demanded Rs. 30 as illegal gratification from one <NAME>. After the officer submitted his explanation, an enquiry was conducted and the enquiry officer made his report in which a finding was made against the officer in regard to the charge that he had received Rs. 150 as illegal gratification from <NAME>. This report was submitted on 22 February, 1955. The record of the said case shows that the Settlement Officer who apparently held the departmental enquiry against <NAME> had found that he was guilty of the charges and had recommended that he should be removed from service immediately. Soon thereafter, on 17 March, 1955, an order was passed terminating the officer's services forthwith and informing him that in lieu of notice he would get one month's pay as required by rules. It is significant that though the order in form purported to be one of discharge, the Deputy Commissioner who issued the said order in terms indicated that he agreed with the enquiry officer's finding that <NAME> had accepted bribes. In that connexion, this <ORG> emphasized the fact that the enquiry made by the Settlement Officer was made with the object of deciding whether disciplinary action should be taken against <NAME> for his alleged misconduct, and it also observed that as a result of the said enquiry, and in consequence of the finding made at the said enquiry, the order of discharge was passed. Thus, notwithstanding the form which the order took, it was a case of dismissal in substance. That is why this <ORG> set aside the order as being illegal inasmuch as it had contravened Art. 311(2). We ought to add that in his petition <NAME> had alleged that no reasonable opportunity was given to him to show cause against the order of dismissal as required by Art. 311; and in view of this <ORG>'s decision that the discharge of <NAME> was in fact and in substance one of dismissal, the plea made by him under Art. 311(2) succeeded. This case illustrate the proposition that in dealing with the complaints made by public servants against their discharge from public service, what matters is not the form of the order by which their services are terminated but the substance of it. It would thus be noticed that the four cases which we have considered by way of illustration dealt with different aspects of the problem pertaining to temporary servants who are discharged or reverted and naturally, on each occasion, observations were made in relation to the particular aspect with which the <ORG> was concerned. We are satisfied that the principles laid down in all these decisions are in no sense inconsistent.Let us now revert to the facts of the present case. We have already stated that before the service of the appellant were terminated, some enquiry was held on the complaint of one <NAME> and at this enquiry it transpired that <NAME>, the brother of the appellant, had used a reply-paid postcard sent by <NAME> without scoring the address of <NAME> written on it by him. In fact, it appears that <NAME> admitted that he had illegally used the said card. But we do not know when this enquiry was held, how it commenced and what was the final order passed as a result of it. Unfortunately, the paper book filed by the appellant who has been allowed to appeal as a pauper does not include the relevant papers and so, it would not be possible to hold that the enquiry in question was held with a view to take a disciplinary action against the appellant, or that the order of discharge which was ultimately passed against him flowed from the finding made at the said enquiry. It is quite possible that even if the respondent intended to hold a formal enquiry with a view to take disciplinary action against the appellant, it may have thought that a preliminary investigation in that behalf may first be conducted and then a decision may be taken as to whether a formal enquiry should be held or not. If that was the scope of the enquiry which was apparently held in this case, the appellant cannot rely upon the said enquiry in support of his plea that his discharge amounts to dismissal.

However, the appellant's contention that the order of discharge passed against him on the face of it shows that it is not discharge by dismissal, cannot be rejected. We have already observed that Art. 311 applies to temporary servants or probationers, so that if it is shown that instead of terminating their services by one month's notice under the terms of the contract or the relevant rules, the authority proceeds to dismiss them, it is incumbent on the authority to afford to the said temporary servants or probationers the protection guaranteed by Art. 311(2). The appellant's contention is that in the present case the order itself shows that it is not a discharge but a dismissal, and that naturally involves the question as to the construction of the order. The order reads thus :

"<NAME>, a temporary second division clerk of this office, having been found undesirable to be retained in <ORG> service, is hereby served with a month's notice of discharge with effect from 1 November 1949."

No doubt the order purports to be one of discharge and as such, can be referred to the power of the authority to terminate the temporary appointment with one month's notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in <ORG> service, it expressly casts a stigma on the appellant and in that sense, must be held to be an order of dismissal and not a mere order of discharge. The learned Additional Solicitor-General attempted to argue that what the order really meant was that <ORG> did not think it desirable or necessary to continue the appellant in its employment. He fairly conceded that the words used in the order were somewhat unfortunate, but he urged that the order should be liberally construed and should be held to have been passed by the authority by virtue of its power to terminate the services of the appellant on one month's notice. We are not prepared to accept this argument. It is obvious that to say that it is undesirable to continue a temporary servant in very much different from saying that it is unnecessary to continue him. In the first case, a stigma attaches to the servant, while in the second case, termination of service is due to the consideration that a temporary servant need not be continued, and in that sense, no stigma attaches to him. It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be : Does the order cast aspersion or attach stigma to the officer when it purports to discharge him ? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal. That being so, we are satisfied that <ORG> was in error in coming to the conclusion that the appellant had not been dismissed, but had been merely discharged. It is conceded that if the impugned order is construed as one of dismissal the appellant has been denied the protection guaranteed to temporary servants under S.240(3) of the <ORG> of India Act, 1935 or Art. 311(2) of the Constitution, and so, the order cannot be sustained.In the result, the appeal is allowed and the decree passed by the lower appellate Court is restored with costs throughout. The appellant will pay the court-fees which he would have had to pay if he had not been allowed to appeal as a pauper.

The learned counsel for the appellant is entitled to his fees.


PETITIONER: S. N. BOSE Vs. RESPONDENT: STATE OF BIHAR DATE OF JUDGMENT: 26/03/1968 BENCH: <NAME>, K.S. BENCH: <NAME>, K.S. MITTER, G.K. CITATION: 1968 AIR 1292 1968 SCR (3) 563 CITATOR INFO : RF 1968 SC1323 (5) R 1984 SC 684 (19) R 1984 SC 718 (21) R 1992 SC 604 (125,133) ACT: Prevention of Corruption Act (II of 1947), ss. 4(1), 5 A and 6(1) (c)-Investigation by Inspector of Police after obtaining permission from First Class Magistrate to lay trap-Permission if sufficient for investigation-Reasons if to be recorded by Magistrate while granting permission Presumption under s. 4-Scope of and how rebutted-Sanction to prosecute-Granted by Chief, Medical Officer of Railway hospital as head of department-Accused a non-gazetted officer having privileges of a gazetted officer-Sufficiency. HEADNOTE: The appellant was an assistant medical officer in a railway hospital at Gaya. Though- he had certain privileges ordinarily available to gazetted officers he was only a non- gazetted Class III officer. He was convicted for offenses tinder s. 161 I.P.C. and 's. 5 (2) read with s. 5 (I) (d) of the Prevention of Corruption Act , 1947. The complaint that he had received illegal gratification, was investigated into by an Inspector of Police. The Inspector obtained permission from a First Class Magistrate for laying a trap, investigated into the case, and later, after the entire investigation was over, he obtained permission from the Magistrate to investigate into, the case. The sanction to prosecute required under s. 6(1) of the Act, was granted by the Chief Medical Officer, who was the bead of the department. The conviction was challenged on the following grounds : (1) The investigation was without authority of law, because, under s. 5A , the Inspector could not have investigated without the prior permission of a Magistrate of the First Class; (2) The permission granted by the Magistrate did not meet the requirements of law because, it was given casually and without applying his mind to the question as to whether there was any need for departing from the normal rule laid down in the section, namely, that such cases should ordinarily be investigated by an officer of the rank of Dy. Superintendent of Police or above and there should be good reasons before a Magistrate accords permission to officers below that rank; (3) The presumption under s. 4 that the appellant had accepted the sum a motive or reward should not be drawn unless the prosecution proved that the amount was paid as a bribe; (4) The presumption was rebutted by the appellant's explanation that what was paid to him was the return of a loan; and (5) the sanction to prosecute granted by the Chief Medical Officer was invalid as lie was not the authority competent to remove him. HELD : (1) There is no basis for the contention that any portion of' the investigation was done without authority by law. [567 D]. Investigation under s. 4(1) Cr. P.C. is one and indivisible and includes all the steps taken by the Inspector to ascertain the truth of the complaint alleging that the appellant was attempting to obtain a bribe. Laying a trap, is a part of the investigation and a permission given under s. 5 A of the Prevention of Corruption Act enables the officer concerned not only to lay a trap but also to further investigate. The fact that the Inspector of Police obtain the two permissions, one for laying a trap and 564 another for investigating the case, does not affect the earlier order as the second permission was wholly superfluous. [566 G-H, 567 B-D] (2) The order giving permission to. the Inspector did not give any reasons and there is thus a violation of s. 5A . But an illegality committed in the course of an investigation does not vitiate the result of a trial unless there was a miscarriage of justice. In the present case the legality of the investigation was not challenged in the trial court and prejudice to the appellant was neither pleaded nor established. [568 C-D, F-G]. (3) The presumption under s. 4 arises when it is shown that the accused had received the stated amount and that the said amount was not legal remuneration. [569 D]. (4) The words 'unless the contrary is proved' in s. 4(1) show that the presumption was to be rebutted by proof and not by a bare explanation which is merely plausible. The 'burden testing on the -accused will however be satisfied if he establishes his case by a mere preponderance of probability and it is not necessary for him to prove it beyond reasonable doubt. In the present case, the appellant's plea was not accepted by the trial court and <ORG> and hence, it must be held that he had not discharged the burden placed on him. [571 C-E]. <CITATION> ,  2 S.C.R. 201, <CITATION> ,  1 S.C.R. 1150, <CITATION> , A.I.R. 1964 S.C.R. 221, <CITATION> . A.I.R. 1964 S.C. 28, C. 1. <CITATION> .  2 S.C.R. 592, <CITATION> , A.I.R. 1964 S.C. 575 and V. D. Jhangan v., State of U.P.  3 S.C.R. 736, followed. (5) Under s. 6(1) (c) of the Prevention of Corruption Act , the appellant could not be prosecuted without the previous sanction of the authority competent to remove him. Oral evidence of the officer giving sanction cannot be relied on for deciding the validity of the sanction. The Court must be satisfied by reference to the rules on the subject. Schedule 11 to the 1961 Rules relating to discipline and appeal of railway servants makes provision for the punishment of railway servants employed in zonal railways. Under the Schedule I a head of a department was not competent to impose on Class III officers the punishment of removal from service. That punishment could only be imposed by an appointing authority or any other higher authority. Under r, 134. the authorities competent to make first appointments to non-gazetted posts are the General Manager. the Chief Administrative Officer or a lower authority to whom he may delegate power; but the power has not been delegated to heads of departments. Therefore, the Chief Medical Officer was neither the appointing authority nor was he competent to. remove the appellant from his Office. Hence he was also not competent to grant the sanction for prosecuting the appellant. [571 F; 572 D; 573B-C, H;574A-B]. <CITATION> . .1 S.C.R. 121, followed. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 109 of 1967.

Appeal by special leave from the judgment and order dated May 4, 1967 of <ORG> in Criminal Appeal No. 455 of 1965.

<NAME> and <NAME>, for the appellant. <NAME>, for the respondent.

The Judgment of the Court was delivered by <NAME>, J. In this appeal by special leave, Mr. <NAME> learned counsel for the appellant advanced the following contentions : (1) the investigation conducted in this case was without the authority of law, (2) the nature of the onus under s. 4 of the Prevention of Corruption Act has been wrongly construed by <ORG> as well as the trial court, and (3) the sanction granted under S. 6 of the Prevention of Corruption Act is invalid in law as the authority who granted the same had no competence to do so. The facts leading upto this appeal are these. The appellant was an assistant medical officer in the railway hospital at Gaya in the year 1964. <NAME> <NAME> was a khalasi working under the inspector of works, <ORG>, Gaya. On March 2, 1964, as he was suffering from dysentery and stomach pain he was sent to the appellant along with a sick note for treatment. The case of <NAME> was that when he went to the appellant for treatment the appellant demanded and received, from him Rs. 2 as illegal gratification for treating him. Thereafter he was. treated by the appellant on the 5th, 7th. 9th and 12th of that month. By the 12th he had completely recovered and, therefore he wanted to rejoin duty and for that purpose he requested the appellant to give him a fitness certificate. For issuing him that certificate the appellant demanded Rs. 5 as bribe and he further told <NAME> that unless he paid him the said sum by March 14, 1964, he (appellant) would remove <NAME>'s name from, the sick list. After this talk, when <NAME> was going out of the hospital he met a person by name <NAME> He complained to <NAME> about the behavior of the appellant. The said person told him that he would meet him again on March 14, 1964, but on March 14 Mr. <NAME> <NAME>, Inspector of <ORG> met <NAME> in his house and ascertained from him all that had happened. Thereafter <NAME> met <NAME> again at the railway station as desired by the latter. From there both of them went to the district Dak bungalow where <NAME> recorded the complaint of <NAME>. The same day <NAME> obtained from the First Class Magistrate an order under s. 5A of the Prevention of Corruption Act. Thereafter, <NAME> produced before <NAME> a five-rupee-currency note in the presence of panch witnesses. <NAME> noted the number of the currency note in question, prepared a memorandum in respect of the same, got it attested by the panch witnesses and thereafter returned the said currency note to <NAME> to be given to the appellant in case he made any further demand for bribe. After these preliminaries were over <NAME> went to the appellant along with the panch witnesses. There when <NAME> asked for the certificate, the appellant repeated his earlier demand. Then <NAME> gave him the currency note in question. This was seen by the panch witnesses. Immediately signal was given to <NAME> who came to the hospital and. asked the appellant to produce the five rupee note received by him from <NAME>. At this stage the appellant became extremely nervous. He admitted that <NAME> had paid him Rs. 5 but that according to him was a return of the loan given to him by the appellant. He produced the currency note in question. After investigation the appellant was charged under s. 161  and s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act . The plea of the appellant was that <NAME> and his wife were doing odd jobs in his house; <NAME> was a drunkard and hence was always in need; he used to often borrow from him (appellant); he had borrowed Rs. 5/- from him some. days prior to the date of the trap and he returned that amount on that day. The appellant examined some witnesses in support of that plea.

The trial court as well as <ORG> accepted the prosecution evidence; rejected the defence version and convicted the appellant both under s. 161 , IPC as will as s. 5(2) of the Prevention of Corruption Act. They have given good reasons in support of the findings of fact reached by them. As this <ORG> does not go into questions of fact except under exceptional circumstances, Mr. <NAME> primarily confined himself to the legal issues arising in the case.

His first contention was that the investigation held in this case was without the authority of law and hence the. appellant is entitled to be acquitted. He urged that in view of s. 5A of the Prevention of Corruption Act, PW 17 who was only an Inspector of police could not have investigated the case without the prior permission of a magistrate of the first class; on March 12, 1964 he merely applied for and obtained from a first class magistrate permission to lay a trap; the permission to, investigate the case was obtained by him only on the 21st but by that time the entire investigation was over; hence there was no valid investigation. The application made by PW 17 on the 12th was under s. 5A of the Prevention of Corruption Act Therein, it is true, he had only asked for permission to lay a trap. It must be remembered that the permission given was one under s. 5A . A permission under that provision is a permission to investigate the case. Laying the trap is a part of the investigation. It is so laid down by this Court in <CITATION> (). An investigation is one and indivisible.[ All steps taken by PW 17 to ascertain the truth of the complaint made by PW 4 alleging that the appellant was attempting to obtain bribe from him, come within the expression 'investigation' under s. 4(1) of the Code of Criminal Procedure. 'Investigation' includes all the proceedings (1)  2 S.C.R.201.

under the Code for the collection of evidence conducted by a police officer or any person (other than a magistrate) who is authorised by a magistrate in this behalf. The scope of the expression 'investigate' found in S. 5A of the Prevention of Corruption Act was explained by this Court in <CITATION> (-) and <CITATION> (2). Section 5A does not contemplate two sanctions, one for laying the trap, and another for further investigation. Once an order under that provision is made that order covers the entire, investigation. A permission given under that provision enables the officer concerned not only to lay a trap but also to hold further investigation. There is no doubt that <ORG> was under a mistaken impression that he should obtain two permissions, one for laying the trap and another for investigating the case. Evidently because of that he applied for a second permission Rome days after the trap was laid. But that permission was wholly superfluous and the same does not affect the validity of the earlier order. Hence there is no basis for the contention that any portion of the investigation in this case was done without the authority of law.

It was next urged that before granting the permission the learned magistrate did not apply his mind to the question whether there was any need for granting the sanie. Before permitting PW 17 he should, have first ascertained whether any officer of the rank of Deputy Superintendent or above was not immediately available to investigate the case, and whether 'there was any other reason for departing from the normal rule laid down by the legislature, namely, that cases of this nature should be investigated by officers of the rank of Deputy Superintendent of Police or above. It was further contended on behalf of the appellant that the earned magistrate made the order casually he gave no reason in support of his order and hence the permission granted does not meet the requirements of the law.

The object of the legislature in enacting S. 5A was to see that the investigation of offenses punishable under ss. 161 , 165 or 165A, IPC as well as those under S. 5 of the Prevention of Corruption Act should be done ordinarily by officers of the rank of deputy superintendent or above N4 doubt S. 5A also provides for an alternative procedure. An officer below the rank of deputy superintendent can investigate those: offenses if he obtains the previous permission of a first-class magistrate. The legislature proceeded on the basis that except for good-reasons the magistrate would not accord permission for officers below the rank of a deputy superintendent to investigate those offenses. But exigencies of administrative convenience may require I that some of those (1)  1 S.C.R. 1150.

(2) A.I.R. 1964 S.C. 221.

cases have to be investigated by officers below the rank of Deputy Superintendents. For that reason it was provided that' in such circumstances the permission of a. magistrate of the first class should be obtained. This Court has laid down in <CITATION> (') that the statutory safeguards under S. 5A must strictly be complied with for they are. conceived in public interest and were provided as a guarantee against frivolous and vexatious proceedings. A magistrate, can-not surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at the stage of granting permission. He must also be satisfied that there is reason owing to exigencies of the administrative convenience to entrust a subordinate officer with the investigAtion. It is further observed therein that it is desirable that the order giving the permission should ordinarily on the face of it disclose the reasons for giving permission. The order giving permission under s. 5A in this case does not give any reason. On the application submitted by PW 17 the learned magistrate merely ordered "Permission granted". PW 17 did not mention in his application any- special reason for permitting him to investigate the case unless we consider the statement in the application "Today is the date fixed for issuing the fit certificate: after receiving a bribe money of Rs. 5 from him" as impliedly a ground in, support of his application. It is surprising that even after this Court pointed out the- significance of s. 5A in several decisions there 'are still some magistrates and police officers who continue to act in a casual manner. It is obvious that they are ignorant of the decisions of this Court. But the legality of the investigation held in this case does not appear to have been challenged in the trial court. The charge leveled against the appellant is established by satisfactory and therefore all that we have now to see is whether the accused was prejudiced by the fact that investigation of this case was made by an officer below the rank of a Deputy Superintendent, as laid down by this Court in <CITATION> (2) and <CITATION> (3). No prejudice was pleaded -much less established An illegality committed in the course of an investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceed to termination the invalidity of the preceding investigation does not vitiate "the result unless the miscarriage of justice has been caused thereby, <CITATION> (4).

We next take up the question as to the, scope of s. 4 of the Prevention of Corruption Act. As, mentioned earlier, the appel-

(1) [1959] 2 S.C.R. 201. (2) A.I.R. 1964 S.C. 28. (3) A.I.R. 1964 S.C. 221. (4) (1955] 1 S.C.R. 1150.

<NAME>

lant admits the fact that he received a sum of Rs. 5 from <ORG> on March 14, 1964. Once that fact is admitted by him, the court has to presume unless the contrary is proved by the appellant that he accepted the sum in question as a motive or reward for issuing the fit certificate. Mr. <NAME>'s contention was that the presumption in question does not arise unless the prosecution proves that the amount in question was paid as a bribe. He urged that the presumption under s. 4 arises only when the prosecution proves that the Appellant had received "any gratification (other than legal remuneration) or any valuable thing from any person". He laid stress on the Word gratification' and according to him the word 'gratification' can only mean something that is given as a corrupt reward. If this contention of Mr. <NAME> is correct then the presumption in question would become absolutely useless. It is not necessary to go into this question in any great detail as the question is no more res Integra. <CITATION> ") this Court held that the "presumption under s. 4 arose when it was shown that the Accused had received the stated amount and that the, said amount Was not legal remuneration. The word 'gratification' in s. 4(1) was given its literal dictionary meaning of satisfaction of appetite or desire; it could not be construed to mean money paid by way of a bribe." The Court further observed "If the word 'gratification' is construed to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the.raising of the presumption.

Technically it may no doubt be suggested that the object which the statutory presumption serves on, this construction is that the court may then presume that the money was paid by way of a bribe as a motive or reward as required by s. 161 of the Code. In our opinion this could not have been the intention of the <ORG> in prescribing the;

statutory presumption under s. 4(1) . In the context we see no justification for not giving the word 'gratification' its literal dictionary meaning.

There is another consideration which supports this construction. The presumption has also to be raised when it is shown that the accused person has received valuable thing. This clause his reference to, the offence punishable under s, 165 of the Code ; and there is no doubt that one of the essential ingredients, of the said offence is that the valuable things should have been received by the accused without consideration or for a not be suggested that the relevant clause in s. 4(1) (1)  2 S.C.R. 592.

which deals with the acceptance of any valuable thing should be interpreted to impose upon the prosecution an obligation to prove not only that the valuable thing has been received by the accused but that it has been received by him - without consideration or for a consideration which he knows to be inadequate. The plain meaning of this clause undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused without anything more. If that is the true, position in respect of the construction of this part of s. 4(1) it would be unreasonable to, hold that the word gratification' in the same clause imports the necessity to prove not only the payment of money but the incriminating character of the said payment. It is true that the <ORG> might have used the word money' or 'consideration' as has been done by the relevant section of the English statute; but if the dictionary meaning of the word 'gratification' fits in with the scheme of the section and leads to the same result as the meaning of the word valuable thing' mentioned in the same clause, we see no justification for adding any clause to qualify the word 'gratification'; the view for which the appellant contends in effect amounts to adding a qualifying clause to describe gratification."

The same view was taken by this Court in <CITATION> (1) and again in <CITATION> (2).

It was next contended that to discharge the burden placed on the appellant under s. 4 all that he has to do is to offer a reasonable explanation, the burden placed on him by s. 4(1) being somewhat analogous to that 'Placed on an accused under s. 114 of the Evidence Act . This branch of the law is also well-settled by the decisions of' this Court. Section 114 of the Evidence Act provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Under that provision the court is not bound to draw any presumption of fact. 'It is within its discretion to draw a presumption or not. But under s, 4(1) the court is bound to draw the presumption mentioned therein. ',The presumption in question will hold good unless the accused proves the contrary. In other words, the burden of proving the contrary is squarely placed on the accused. A fact is said to be when after Considering the matters before it the court either believes it to exist or con (1) A.T.R. 1964 S.C. 575.

(2) [1966] 3 S.C.R. 736.

siders its existence was so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists. The proof given by the accused must satisfy the aforementioned conditions. If it does not satisfy those conditions then he cannot be said to, have proved the contrary. <CITATION> (') this Court considered the nature of the proof required to be given by' the accused under s. 4 (I). Therein this, Court held that the burden resting on the accused person in such a case would not be as light as that placed on him under s. 114 of the Evidence Act and the same cannot be held to be discharged merely by reason of the fact that the explanation offered by him is reasonable and prob- able. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in that provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. The same view was taken by this Court in <CITATION> (2). But at the same time it was mentioned in that decision that the burden resting on the accused will be satisfied if the accused person establishes his case by a preponderance of probability and it is not necessary for him to establish his case by the test of proof beyond reasonable doubt. In other words, the, nature of the burden placed on him is not the same as that placed on prosecution which must not only prove its case but prove it beyond reasonable doubt. In the instant case the evidence adduced by the appellant in support of his plea was not accepted by the trial court as well as <ORG>. Hence it must be held that he had not discharged the burden placed on him by law.' This takes us to the last point urged by Mr. <NAME> namely that the sanction to prosecute granted by PW 1, the chief medical officer, under s. 6(1) of the Prevention of Corruption Act is invalid as he was not the authority competent to remove the appellant from his office and hence the prosecution is vitiated. Section 6(1) , to the extent it is material for our present purpose, reads : "No court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code, or Under sub-section (2) or sub- section 3A of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,

(a)...........................

(b)...........................

(c) in the case of any other person, of the authority competent to remove him from his office."

(1) A.I.R. 1964 S.C. 575.

L7 Sup. CI/68-12 (2) [1966] 3 S.C.R. 736 This Court has laid down in <CITATION> .(1); as well as in several other decisions that no court can validly take cognizance of any of the offenses mentioned in s. 6(1) of the Prevention of Corruption Act without the previous sanction of the authority competent to remove from office the accused. Without a valid sanction the court had no jurisdiction to try the case. Hence, if the sanction accorded in: this case is invalid then the appellant is entitled to be acquitted.

P.W. I deposed that the appellant was a class III officer and that he could have been appointed or dismissed by the Deputy Agent Personnel who is subordinate to him. Therefore he (P.W. 1) was competent to grant previous sanction under S. 6 (1) of the Prevention of Corruption Act . P.W. 1's assertion that the appellant could have been removed from 'his office either by the Deputy Agent Personnel or by himself was challenged in his cross-examination. The trial court as well as <ORG> have relied on the oral evidence of P.W. 1 in coming to the conclusion that the sanction granted is valid. In our opinion those courts erred in relying on oral evidence in deciding the validity of the sanction granted. Hence, we asked the learned counsel for the respondent to satisfy us with reference to the rules on the subject that P.W. 1 was competent to remove the appellant from his office. For this, ,purpose we granted him several adjournments. Though our attention has now been invited to some rules, those rules do not establish that P.W. I as competent to grant the sanction in question. It was contended on behalf of. the appellant that he was a gazetted officer and therefore he could be removed only by <ORG>. This contention does not appear to be correct. As seen from the <ORG>, <ORG> publication under the title "authorised scales of pay", the appellant is a class HI officer. From that publication it is further seen that F only class I and II officers are designated as gazetted officers. In support of his contention that he -was a gazetted officer, the ap- pellant relied on <ORG>'s letter No. PC/60/PS- 5/MH3 dated 2-3-1962. 'Paragraph 4 of that letter-the only relevant paragraph for our present purpose-says that an assistant surgeon after five years service shall hold the honorary gazetted rank and shall be entitled to the usual privileges granted to gazetted officers in matters such as passes, allotment of quarters. This letter merely indicates that the officers mentioned therein are entitled to certain privileges which are ordinarily available to gazetted officers. We are unable to 'read that letter as raising the rank of the appellant to that of a gazetted officer. Therefore we proceed on the basis that the appellant was a non-gazetted officer. But the question still remains whether P.W. 1 was competent to remove him (1)  S.C.R. 121.

from service. In view of appendix 3 8 of the Indian Railways Establishment Code Vol. III (4th re-print, dated 26-7-1962), we may take it that P.W. 1 was the head of the department to which the appellant belongs. The next question is whether the head of his department was competent to remove the appellant from his service.

As per r. 134 of the Indian Railway Establishment Code, pub- lished in 1959, authorities competent to make first appointment to non-gazetted posts in <ORG> are the General Manager, the Chief Administrative Officer or lower authority to whom he may delegate power. There is no evidence to show that this power has been delegated to the heads of the department. No provision in the Indian Railway Establishment Code 1959 prescribing the authorities competent to remove from office a class III officer was brought to our notice. But the prefatory note to Vol. I of the Code says, "The revised Chapter XVII and revised Appendices I and XII will be printed later for inclusion in this edition. Till such times these are printed, the rules and provisions contained in Chapter XVII and Appendices IV and XVIII in the 1951 Edition (Reprint) as, amended from time to time shall continue to apply."

In 1961 new rules relating to discipline and appeal of railway servants other than employed in the railway protection force have been published. Rule 1701 says, "Without prejudice to the provisions of any law, for the time being in force, relating to the conduct of Government servants, or to the rules made under section 47 (e) of the Indian Railways Act , 1890 , the conduct of railway servants shall be governed by the rules contained in Appendix Vlll." Our attention has not been invited to any rules made under s. 47 (e) of the Indian Railways Act , 1890 or any other statutory rules. Hence we are proceeding on the basis that the aforementioned r. 1701 governs the present case. Rule 1705 says that the authorities who are competent to place a railway servant under suspension and to impose penalties on him are specified- in the Schedules 1, II and III appended to the Rules. Rule 1707 sets out the various punishments that may be imposed on a railway servant which includes removal from service as well as dismissal from service. Schedule I deals with railway servants employed in <ORG> office, <ORG>, <ORG>, Baroda, <ORG>, Poona, <ORG>, <ORG>, <ORG> and all other railway offices which are not enumerated above. Schedule I does not apply to the case of railway servants employed in the zonal railways. As regards them, provision is made in Sch. III. From that Schedule it is seen that though a head of the <ORG> can impose on Class III officers censure as well as some other punishments detailed therein, he is not competent to impose on them the punishment of removal from service, compulsory retirement or dismissal from service. Those punishments, as seen from the Schedule,can be imposed on them only by thE appointing authority or any other higher authority. P.W. 1 is not shown to be the appointing authority. On the material before us it is not possible to come to the conclusion that P.W. 1 was competent to grant sanction under s. 6 (1)of the Prevention of Corruption Act .

We accordingly allow this appeal and set aside the conviction of the appellant. He is on bail. His bail bond stands cancelled.

V.P.S. Appeal allowed.