JUDGMENT
Kamla Sahai, J.
1. Both the appellants have been convicted under Section 161, Penal Code. Appellant Nil Madhah Patnaik, who has filed Criminal Appeal No. 365 of 1953, has been sentenced to undergo rigorous imprisonment for one year and appellant Md. Yasin Ahmad Khan, who has filed Criminal Appeal No. 376 of 1953, has been sentenced to
undergo rigorous imprisonment for six months. As . both the appeals are directed against the same judgment, this judgment will govern them both.
2. Appellant Nil Madhab Patnaik was attached to Kandra Police outpost in Singhbhurn distinct as an assistant Sub-Inspector of Police. Yasin Ahmad Khan was attached to the same police outpost as a constable. Village Bikaneepur lies within the jurisdiction of that outpost.
3. The prosecution case is that the wife of Phagu Manjhi (P. W. 15), a resident of village Bikaneepur, was indisposed from 30-9-1952. It was sus-‘ pected that she was a victim of witchcraft. The villagers, thereupon, went to village Dhatnidih in order to consult Gura Manjhi, who acted as a ‘sakha (a man who drives out evil spirits). Gura Manjhi said that a ghost living in the bari’ of an old woman who was the elder wife of a man and who was living close to the house of Phagu Manjhi was responsible for the illness. The villagers identified Champa Manjhin (P. W. 28) as the woman described by Guru Manjhi. Three fowls were sacrificed in order to propitiate the evil spirit. Appellant Nil Madhab Patnaik learnt about this affair two days later on 10-10-1952. He sent for Thikadar Shimanta Mahato (P. W. 16) and made enquiries from him. It may be mentioned that a ‘thikadar’ performs the functions of a chaukidar in the locality where the occurrence in question took place. The assistant Sub-Inspector then went to village Bikaneepur on the same date, i.e., the 10th October, arriving there at about 5 p.m. He had already sent Constable Yasin Ahmad Khan to the village and he had arrived there at about 4.30 p.m. Under the directions of appellant Patnaik, Shimanta Mahato (P. W. 16) brought together about twenty eight residents of village Bikaneepur and other neighbouring villages on the village road. Appellant Patnaik then threatened them by saying that he would chalan them. In due, course, he put forward the suggestion that he might let them off if he was paid Rs. 500. There was a good, deal of higgling and, ultimately, it was agreed that the villagers should pay the appellant at the rate of Es. 2/8 per head:
Rukmini Kumar Chatterji (P. W. 2), who is also known as Thakiir, lives in village Bikaneepur as he is an employee in the Kandra Glass Factory close by. He began realising money from the assembled villagers and, with the exception of four persons, all paid him at the rate of Rs. 2/8. One of the remaining four paid him Rs. 2/4/-, The total collection came to Rs. 62/4/-, out of which P. W. 2 handed over Rs. 50 to appellant Patnaik and Rs. 12/4 to appellant Yasin Ahmad Khan. Thereafter, appellant Patnaik allowed all except Bikram (P. W. 13) and Phagu (P. W. 15) to go. He demanded a further sum of Rs. 100 each from these two witnesses for their release. After some negotiation, it was settled that they would pay him Rs. 30 each and they would also give him a goat each next day. At about midnight, both the appellants went back to their outpost.
4. Mr. Mandal (P. W. 8) was then the Sub-, Divisional Officer of Saraikela. Kandra outpost lies in that Sub-Division. On 11-10-1952, he !earnt from Banamali Mahato (P. W. 27) that appellant Patnaik had realised bribe from the
villagers of Bikaneepur. He immediately sent a slip to the Inspector to follow; him and he proceeded to Bikaneepur. He made enquiries there and examined several witnesses. Thereafter,” he went to Kandra Police outpost and examined the station diary as well as the personal diary of appellant Patnaik. He again visited Bikaneepur next day along with the Inspector (P. W. 14) and examined seven more witnesses who were not available on the first day. Both the officers came to the outpost and there the Inspector looked into the station diary and said that he found in the relevant station diary entry something more than what the Sub-Divisional Officer was saying it contained. On looking into it, the Sub-Divisional Officer found that some additions and alterations-had been made in the station diary entry (Ex, 3),. Ext. 3/1 being the interpolated portion.
5. The Sub-divisional Officer drew up his report (Ex. 4) and submitted it to the Deputy Commissioner on 19-10-1952. Both the appellants were-put upon their trial and it commenced before the Special Judge on 31-10-1952. Charges were-framed on 21-12-1952. It was, however, discovered that the sanction as required under Section 6, Prevention of Corruption Act, 1947 (Act II of 1947 had not been obtained. On 5-2-1953, the Public Prosecutor filed an application praying to the Special Judge to dismiss the case and to discharge the accused persons as there was no sanction and to start a fresh case against them on the same facts. The Special Judge, accordingly, dismissed the original case and discharged the accused but took, fresh cognizane of the offence on the basis of a sanction (Ex. 1/1) which was accorded by the Deputy Inspector-General of Police, Southern. Range.
6. Mr. Mukherji, who has appeared on behalf of appellant Patnaik, has not challenged the allegation that there was a witchcraft case in Bikaneepur, as alleged by the prosecution, nor has he challenged the allegation that the two appellants were in village Bikaneepur from about 4-30 and 5 P.M. to about midnight. Indeed, these allegations do not appear to have been challenged even in the trial Court and there is plenty of evidence to support them. Mr. Mukherji has raised several points of law and has further contended that the prosecution case that bribe was given to the appellants has not been proved. I propose to constder first the points of law which he has raised.
7. The first point which Mr. Mukherji has raised is that the sanction. accorded by the Deputy Inspector-General of Police does not comply with legal requirements because it does not show that the facts of the present case were before tire Deputy Inspector-General and that he took them into consideration before he accorded the sanction. In support of his contention, he has relied upon the decision of the Privy Council in the case of — ‘Gokulchand Dwarkadas v. The King’, AIR 1948 PC 82 (A). This was a case in which sanction for prpsecution was required under Clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943. Sir John Beaumont, who delivered the Judgment of the Board, observed as follows:
“In their Lordships view, in order to comply with the provisions of Clause 23, it must be proved
that the sanction was given in respect pf the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since Clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority.”
8. In the present case, the sanction (Ex. 1/1) runs as follows :
“Whereas I, B. B. Banerji, Deputy Inspector-General of Police, Southern Range, Ranch’i, on consideration of the facts and evidence disclosed in letter No. 68-C dated 30th January, 1953: from the Deputy Commissioner, Singhbhum (a copy whereof is enclosed), have reasons to believe that A. S. I. N. M. Patnaik and Constable Yasih Khan of Kandra Outpost, Seraikella, district Singhbhum have committed an offence under Section 161, Penal Code.
Now, therefore, in exercise of’ the powers conferred, on me by Section 6 of Act II of 1947, I consent to the initiation of proceedings for the prosecution of the aforesaid accused for an offence under the aforesaid section of the Indian Penal Code.
Sd. B. B. Banerji
31-1-53
Deputy Inspector-General of Police,
Southern Range, Ranchi.”
Thus, the facts of the case have clearly not been referred to on the face of the sanction. The letter written by the Deputy Commissioner to the ‘Deputy Inspector-General, however, has been referred to and that letter is Ex, 1/2, The last paragraph of that letter shows that a copy of the Sub-Divisional Officer’s report was enclosed with it vwhen it was being despatched to the Deputy Inspector-General. The report, as I have said, is Exhibit 4. It is a very exhaustive document and it clearly refers to the evidence which the Sub-Divisional Officer collected at village Bikaneepur and Kandra outpost on the llth and 12th of October 1952 in connection with this case. That being so, it is clear that the prosecution has proved in this case bay extraneous evidence that all the facts necessary to enable the sanctioning authority to decide whether sanction should be accorded or not were before him, I have, therefore, no reason to think that the Deputy Inspector-General of Police did not consider all these matters before he accorded the sanction. The point raised by Mr. Mukherji, therefore, fails.
9. The second point which Mr. Mukherji has raised is that the Special Judge purports to have taken cognizance of this case on 5-2-1953 under “Section 8(1), Criminal Law Amendment Act, (Act XLVI of 1952), but the act of taking cognizance must be referred to Section 190, Criminal P. C., which is the only section which provides for cognizance of an offence being taken. Mr. Mukherji has further contended that the Special Judge must be deemed to have taken cognizance under Section 190(l)(c), Criminal P. C., as neither a complaint -was filed in this ease nor was a report in writing submitted by any
police officer. His contention is that, if the Special Judge took cognizance under Section 190(l)(c) he had,, under Section 191, Criminal P. C., to inform the appellants that they were entitled to have the case tried by another Court arid that the trial is vitiated because the Special Judge gave no such informatioa to the appellants.
The learned Additional Standing Counsel has,, however, replied that the act of taking cognizance-is not referable to Section 190, Criminal P. C., because the Special Judge is not a Magistrate but is a Sessions Judge trying cases without the aid o£ jury or assessors as provided in Sub-section (3) of Section 8 of the Criminal Law Amendment Act. He has contended that sub-s. (I) of that section has to be read with Section 193 of the Code of Criminal Procedure because that sub-section merely lifts the ban. imposed by Section 193 against a Sessions Judge taking, cognizance – of a case as a Court of original jurisdiction without its being committed to him. In my opinion, it is unnecessary, to consider these arguments because the point can be disposed of very shortly. Sub-section (2), Section 7, Criminal Law Amendment Act, provides as follows :
“Every offence specified in Sub-section (1) of Section 6 shall be tried by the Special Judge for the area within which it was committed, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government.”
There is only one Special Judge who exercises jurisdiction over the area in which the occurrence in question took place and he has tried the present case. Under Section 7(2) read with Section 7(1), no one else could try it Sub-section (3) of Section 8 provides that the provisions. of the Code of Criminal Procedure shall apply to the. proceedings before a Special Judge, if they are riot inconsistent with this Act. It would be inconsistent with Section 7(2) of the Act to allow an opportunity to an accused to be tried by a Court other than that of a Special Judge. That being so, Section 191 of the Code of Criminal Procedure has no application to the facts of this case even if it is assumed that Section 190 applies. The trial cannot, therefore, be held to be vitiated.
10. The next point raised by Mr, Mukherji is based upon Clause 5 of the Fifth Schedule of the Constitution. He has contended that the place where the occurrence in question took place is situated in a scheduled area and that, in view of Clause 5 of the Fifth Schedule, no law could be made applicable to such an area without a notification by the Governor of Bihar. In my opinion, this contention is quite unsound. Clause 5 of the Fifth Schedule makes a provision for the Governor to make a notification directing that any particular Act of Parliament or of the Legislature of the State shall not apply to a scheduled area or shall apply with such and such modifications and exceptions. An Act of Parliament is applicable to every part of the territory of India and an Act of the Legislature of the State is applicable to every part of the State including scheduled areas under Art. 245(1) of the Constitution. There is nothing in Clause 5 of the Fifth Schedule to show that the Governor must issue a notification before any such Act can be enforced in a scheduled area. There
can, therefore, be no doubt that the Criminal Law Amendment Act which has been passed by the Parliament is applicable to the area in which the
occurrence in question took place.
11. It is necessary now to consider the merits
of the case against Patnaik. Mr. Mukherji has stated that the situation in village Bikaneepur on the date on which appellant Patnaik was there was such that a breach of the peace could be apprehended at any moment and that appellant Patnaik,
therefore, intended to take steps for action under Section 107, Criminal P. C., against some residents of that village. According to him, appellant Patnaik
was acting in a bona fide manner. In support of this argument, he has drawn my attention to the station diary entry (Ex. 3} dated the 10th October.
(After reviewing the evidence his Lordship came to the conclusion:) I am clearly of the’view that the money collected by P. W. 2 from P. Ws. 13, . 15 and 16 as well as others was paid to appellant Patnaik as illegal gratification so that he should forbear from making a report for action under Section 107, Criminal P. C., against them. I hold, therefore, that the witnesses have told the truth and that appellant Patnaik received illegal gratification from several persons including P. Ws. 13, 15 and’, 16.
12. So far as appellant ‘Yasin Khan is concerned, the learned Special Judge has given a finding in the alternative. He has held that this appellant is guilty o£ an offence under Section 161, Penal Code, or he is, at least, guilty of abetment. This is not at all permissible. Although charges may be framed in the alternative, the finding has to be definite. He could convict this appellant either under Section 161 or under Section 161/109, Penal Code, in accordance with whatever finding he could arrive at. It is, therefore, necessary to consider which offence has been established against this appellant. After considering the circumstances his Lordship concluded:) In these circumstances, I am of opii nion that he has been proved to be guilty of having aided and thereby abetted appellant Patnaik in realising illegal gratification, though it has not ‘been established that he actually received illegal gratification himself. His conviction has, therefore, to be altered to one under Section 161/109, Penal Code. No interference with the sentence imposed upon him is called for because the sentence which has been imposed is not at all severe.
13. The result is that Criminal Appeal No. 365
filed by appellant Patnaik is dismissed and Criminal Appeal No. 376 filed by appellant Yasin Khan
is dismissed with the modification that his conviction is altered to one under Section 161/109, Penal
Code.