CRIMINAL LAW AND

PROCEDURE
Dinesh C. Pande*

I. POWERS OF APPELLATE COURT

THE EXTENT and scope of the powers of appellate court do often form
an issue for discussion and decision in criminal appeals. Although the law
has remained settled on established principles, the matter is brought for consi-
deration for application of the principles to the facts and circumstances of
each case. This has led to the reporting of a number of cases dealing with
the power of the appellate court.

In Hallu v. State? the accused had been acquitted but the decision was
reversed by the High Court. On appeal to the Supreme Court, it was pointed
out that in rioting cases the discrepancies in the evidence are likely to occur
which places a duty on the court to find out the broad probabilities. It was
also pointed out that where independent witnesses are unwilling to come for-
ward the testimony of interested parties cannot be discarded merely for this
reason. The omissions in the first information report cannot also be the
reason for disbelieving a case as it does not constitute the substantive
evidence.
On analysis of the evidence on record the Supreme Court found that two
views of the evidence were reasonably possible. These two differing views
were adopted by the trial court and the High Court respectively. The
settled rule that in such cases the verdict of the trial court should prevail
was endorsed and the reversal was set aside. Likewise, in Rajendra Rai v.
State of Bihar? the Supreme Court reiterated that in case of duality of views
on evidence the preference is for the one held by the trial court,3 but on a
review of the evidence the Supreme Court found that the view taken by the
trial court was clearly unreasonable which justified the reversal of the order.

*LL,M. (Lucknow), LL.M (Northwestern), Associate Research Professor, The Indian

Law Institute, New Delhi.
1. 1974 Cr. L.J. 1385 (S.C.).
2. 1974 Cr.L.J. 1471 (S.C).
3. Sse also Bhim Singh v. State, 1974 Cr.LJ. 337 (S.C).
Vol. X] CRIMINAL LAW AND PROCEDURE 239

An attitude of slowed action in interfering with the decisions of the lower

court is the rule adopted by the superior courts. Due consideration is also
shown to the benefits, rights and privileges of the accused which are well known
and understood. And once the matter has been processed by two courts vjz.,
the trial and the High Court, the Supreme Court has shown greater reluc-
tance to disturb the concurrent findings.33 But in Balak Ram v. State of
U.P.? the cotirt laid down that the concurrent findings can also be upset
where the forms of legal process are disregarded or principles of natuial jus-
tice are violated or substantial and grave injustice has otherwise resulted.5
Thus, the appellate power to review requires consideration of every
aspect. The compliance of a legal principle or rule in its content and appli-
cation is as necessary as every matter on record which has a bearing on the
questions of fact as well as the reasons given by the court below in support of
an acquittal order.6 It is also necessarily required that if the acquittal order
is found not justified the court must record its reasons in its judgment.7 The
reversal of appeal needs that cogent reasons be given8 though the rejection
does not require giving of reasons.9

In Irlapati Subbaya v. Public Prosecutor10 the court allowed the appeal,

and set aside the conviction order because the interference by the ^ligh Court
was not found justified. Beg J. pointed out that the High Court did not base
its conclusion on, "a comprehensive appreciation of all the features of the case
which, taken together, cast a reasonable doubt on the prosecution version".
The learned judge further observed:
It is well established that, in an appeal against acquittal, the appellate
court ought to attach due weight to the assessment of evidence by the
trial court which has had the additional advantage of seeing the
witnesses depose in the witness box.11

3a. Rajendra Kumar v. State of Maharashtra, 1974 Cr.L.J. 737 (S.C).

4. 1974 Cr.L.J, 1486 (S.C).
5. See also A.I.R. 1971 S.C 460.
6. Chandra Kant v. State of Maharashtra, 3974 Cr.L.J. 1042 (S.C). See also Public
Prosecutor \. P.M.V. Khan, 1974 Cr.L.J. 1069. The Privy Council has laid down
this principle in Sheo Swarup's case, A.I R. 1934 P.C 22.
7. Supra note 6,
8. S.T. Shinde v. State of Maharashtra, 1974 Cr.L.J. 674 (S C.); Rajpal Bhiraram
v. State, 1974 Cr.LJ. 806 (S.C).
9. Rajpal Bhiraram v. State, supra note 8.
10. 1974 Cr.L.J. 706 (S.C). See also Barati v. State of UP., 1974 Cr.LJ 709
(S.C.).
11. Id, at 709.
240 ANNUAL SURVEY OF INDIAN LAW [1974

II. ARGUABLE QUESTIONS—A GROUND FOR REVIEW

The Supreme Court explained that the review power of the court in a
criminal case does admit the consideration of an important question emerging
from post-mortem report which remained unconsidered by the trial court.
In such cases the High Court has a duty to take further expert medical
evidence under sections 540 and 428 of the Code of Criminal Procedure.12

A positive action is called for in appeals which raise arguable questions

either of law or of fact.13 In such cases the court must record a reasoned order.
A summary dismissal of an arguable point is held bad.14 Thus, where
there was conflict about the ocular evidence regarding the occurrence which
left room for argument for the appreciation of evidence in terms of law and
fact, the dismissal of appeal was unjustified.15

Can appellate court alter the conviction from the substantive offence to
the one of abetment ? This question was raised in Shamrao Shriram Akhade
v. State.u The facts of the case were of doubtful nature as to whether the
accused had kidnapped the prosecutrix or had abetted her kidnapping. The
accused had been charged only with the former offence. The appellate court
altered the conviction to that of abetment in exercise of its power under
section 423 of the Code of Criminal Procedure without any prejudice being
caused to the accused.

III. INHERENT POWERS OF THE HIGH COURT

The decided cases on the subject delineate the area where courts do not
exercise the power to interfere in the legal process. The investigatory domain
of the police has remained outside the exercise of this power since Nazir
Ahmed's11 case was decided by the Privy Council. The Supreme Court
followed the rule in State of W.B. v. S.N. Basak18 wherein it said :

12. Raghitnandanv. State, 1974 Cr.L.J. 453 (S C ) . See also Rajendra Kumar v.
State, supra note 3a.
13. S.T. Shinde v. State of Maharashtra, supra note ?; Virmal Mukhand v. State of
Gujarat, 1974 Cr.L.J. 227 (S.C); K.V. Suroshe v. State, 1974 Cr.L.J. 330 (S.C.).
14. D.K. Gaikwadv. State, 1974 Cr.L.J. 446 (S C ) ; Virmal Mukhand, supra note
13. See also 1974 Cr. L.J. 330 (S.C); 1974 Cr.L.J. 446 (S.C); 1974 Cr.L.J. 737
(S.C); 1974 Cr.L.J. 806 (S.C).
15. Supra note 3.
16. 1974 Cr.L.J. 86 (Bom.).
17. Emperor v. Nazir Ahmed, 71 I.A. 203, 213.
18. A.I.R. 1963 S.C. 447.
Vol. XI CRIMINAL LAW AND PROCEDURE 241

[T]he police has the statutory right to investigate into the circums-
tances of any alleged cognizable offence without authority from a
magistrate and this power of the police to investigate cannot be
interfered with, by the exercise of power under section 439 or under
the inherent power of the court under section 561-A of Criminal
Procedure Code....
In Jehan Singh v. Djlhi Administration™ the inherent powers of the court
were invoked to quash the proceedings. In fact no chargesheet had been
laid or a complaint had been made till then. The effect of the order would
have been to restrain the police from proceeding into the matter and investi-
gating the same. This power is exclusively within the jurisdiction of the police
and till the magistrate takes cognizance of the matter the authority to inter-
fere with the matter becomes hypothetical. The rationale underlying the legal
policy of not interfering with the investigation is that the functions of judi-
ciary and police are complementary and not overlapping and "the courts'
functions begin when a charge is preferred before it, and not until then".20
Similar conclusions were also arrived at in the case of Mathew Zachariah v.
State of Kerala}1 The Punjab High Court22 explained the scope of section
561-A, the Code of Criminal Procedure, by stating that the powers are meant
to be exercised only in an exceptional case and most sparingly, but the court
observed :

[l]n exercising such powers the Court must guard against the risk
of interfering with the investigation of offences which, if allowed to
proceed would result in bringing the offenders to book.23

Reliance was also placed on Nazir Ahmad*s21 case to reiterate the view
that if no cognizable offence is disclosed in the first information report, or
where no offence of any kind is disclosed the courts will be well within the
bounds to interfere and quash the procedings.

Ordinarily the exercise of power to interfere begins only when the matter
is taken cognizance of by the court. The cognizance is taken of a case and
njt of an individual offence. "A proceeding initiated on a petition of com-

19. 1974 Cr.L.J. F02.

20. Supra rioic 17 at 212.
21. 1974 Cr. L.J. 1198 (Kci.).
22. Kidwrilal v. Dayancncl, 1974 Cr. L.J. 902,
23. Id. at 904.
24. Supra note 17,
242 ANNUAL SURVEY OF INDIAN LAW [1974

plaint can be quashed, when the complaint petition, taken as a whole, does
not disclose any offence".25 The courts are reluctant to interfere at an interlocu-
tory stage,26 but the exercise of inherent power to quash the proceedings at an
interlocutory stage is not precluded completely. In K. Narayanswami v.
Viswanathan21 this view was expressed on the basis of observations of the
Supreme Court wherein it was stated :
There may be cases where it may be possible for the High Court to
take the view that the institution or continuance of criminal proceed-
ings against an accused person may amount to the abuse of the
process of the Court or that the quashing of the impugned proceedings
would secure the ends of justice.... Cases may also arise where the
allegation in the First Information Report or the complaint, even if
they are taken at their face value and accepted in their entirety, do
not constitute the offence alleged. In such cases it would be legi-
timate for the High Court to hold that it would be manifestly unjust
to allow the process of the Criminal Courts to be issued against the
accused person.28
The power to interfere in the natural flow of the legal process arises to
secure the ends of justice and only in circumstances where without the use of
this power injustice would be the end result. As a corollary to the above, the
courts ascertain as to whether any proper remedy is available to the party, if
not the jurisdiction to quash proceedings can be invoked.29

IV. PUBLIC SERVANTS AND THE CRIMINAL LAW

Privilege against prosecution
The public servants are known to be the privileged persons under the
law. The persons included in this category are not exclusively the ones who
are enumerated in section 21 of the Indian Penal Code; nor is it the test that
they be remunerated from the state exchequer30 or be the appointees of the
government.31 The criterion to determine the person's holding the charge of
a public duty remains undefined. In essence, a public servant is a person

25. Narmadeshwar Sharma v. S. C. Poddar, 1974 Cr, L.J. 959, 962 (Pat.).
26. Maculloch v. State, 1974 Cr. L.J. 182 (Cal.).
27. 1974 Cr.L.J. 1524 (Mad.).
28. R. P. Kapur v. State, A.I.R. 1960 S.C 866.
29. B. Ramprakanacharya v. The State, 1974 Cr. L.J. 877 (H.P.).
30. Ram Chandra Sahu v. Emperor, 12 Pat. 184; Mahendra Prasad, 9 Cal. (C) 698 ;
Parmeshar Datt v. Emperor, 8 All. 201.
31. S, 21, Expl. 1, the Indian Penal Code, 1861.
Vol. X] CRIMINAL LA W AND PROCEDURE 243

who is actually siezed with the situation and has a right to hold that situation
along with the authority to perform duties and accept responsibilities arising
therefrom This "is recognised as filling the position of a public servant".33
An actual possession of the situation of a public servant sustains his activi-
ties, irrespective of legal defect, provided his right to hold the office is not in
question,3,1 otherwise he may just be an interloper in possession of the public
office.34

The significance of being a public servant is recognised by the law of

procedure inasmuch as when a complaint is made by him in the discharge of
his official duties, he is not required to be examined.33 The law also accords
him a privilege of not bsing prosecuted without obtaining prior sanction.36

Tests for prosecution of public servant

A number of decisions handed down by the Supreme Court have time
and again laid down the principles governing sanction of prosecution of pub-
lic servants. The underlying principle is to see if the protection ensured^ is
for the lawful discharge of duties even though it might have caused annoyance
or inconvenience to others.
In B. Basavalingappa v. V. Narasimham*1 it was stated that the cover of
protection granted under section 197 of the Code of Criminal Proceduie
extends to a person only on the satisfaction of the conditions that the person
seeking protection is a public servant who is not removable from his office
except by the government and that the offence for which he is accused is done
in the discharge of his official duty. In other words, "the test may well be
whether the public servant, if challaned can reasonably claim that what he
does, he does in virtue of his office".38 There must be a reasonable connec-
tion between the act and the discharge of duty to claim a privilege against
prosecution.39 In Basavalingappa's39a case where a minister in the state cabinet
made a statement, which was alleged to be defamatory, it was held to be an

32. Parmeshar Datt, supra note 30; Harbilas v. Crown, A.T.R. 1950 E.P. 167,
33. Expl. (2) to s. 21, the Indian Penal Code, 1861.
34. State of Orissa. v. B.K. Naik, A.I.R. 1964 Ori. 202,203.
35. S. 200 (a) the Code or Criminal Procedure, 1973.
36. S. 197, ibid.
37. 1974 Cr.L.J. 66 (Mys.).
38. Bhagwan Prasad v. NP. Misha, A.I.R. WO S.C. 1661 followed in State v. B.K.
Badhwan, 1974 Cr.L.J. 197 (H.P.).
39. Amrik Singh v. State ofPepsu, A.I.R. 1955 S.C 309,
39a. Supra note 37.
244 ANNUAL SURVEY OF INDIAN LA W [ [974

act done in the discharge of his duty, as the welfare of the state reasonably
concerned himself to make the statement although it did not relate to his
portfolio. As the impugned statement was held to have been made in the
discharge of official duty, it was wrong for the court to take cognizance of the
matter without getting a prior sanction for prosecuting the minister.
The question of the privilege of grant of sanction for prosecution has often
been raised to require the courts to apply the legislative policy of ensuring
protection to a public servant to determine if the acts done or purported to
be done in the discharge of official duty did fall within the ambit of the law-
fully accorded privilege or not.
A protection against prosecution is given to the public servants only if
his acts fall within the range of official duties not outside it. The interrela-
tionship between the impugned acts and the official duty thus always remain
a question for the courts to determine. Accordingly, an allegation of hurling
a glass bottle by a sub-divisional officer which caused injuries to the com-
plainant could not reasonably be said to be an act in the discharge of public
duty.40 In N. Sharmav. S. C. Poddarn the alleged conduct of the police
officers in using abusive language and demanding the bribe did not need
scrutiny by the superior authorities as a condition precedent for the court to
take cognizance of the case.

The taking of cognizance and the initiation of proceedings were found

to be unwarranted in the case of R. K. Anand v. Joginder Singh.i2 In this case
the officers of the municipal corporation were alleged to have misappropriated
articles and had removed an unauthorised construction despite the injunction
order of a civil court to the contrary. The facts of the case disclosed the
need to obtain prior sanction for prosecution as the acts complained of were
in pursuance of the public office held by the accused petitioners, "although it
may be in excess of the duty or in the absence of such duty". The law does
provide a coverture to acts purported to have been done in the discharge of
official duty. The benefit of the law cannot be claimed where the official
position is merely used to do illegal acts.

Sanction—an executive function

The judicial concern to inquire into the acts complained of against a
public servant arises only on the satisfaction of the authority sanctioning

40. State v. B.K. Badhwan, supra note 38.

41. 1974 Cr.L.J. 959 (Pat.).
42. 1974Cr.L.J.-1007(H.P,)
Vol. X] CRIMINAL LAW AND PROCEDURE 245

prosecution. The permission, however, is not necessary for such acts as are
outside the purview of the official acts. But, where a sanction has been given
for prosecuting the public servant for acts or omissions, the satisfaction of the
sanctioning authority is enough to proceed with the matter. The act of grant-
ing sanction is of an executive nature which does not lend the act an objective
character, In D.S. Bhandari v. State of Rajas than13 it was contended that the
sanction accorded for prosecution was wrong inasmuch as the sanctioning
authority did not look into the statements of the witnesses and did not arrive
at the decision through the documents collected by the investigation agency.
The court negatived the contention and stated:

All that is necessary is that the facts constituting the offence must be
placed before the sanctioning authority in order to obtain sanction.
If the sanctioning authority feels that he is not in a position to satisfy
himself as to the facts constituting the offence it is always open to
him to call for materials before taking a decision as to the grant of
sanction.44

The legal position regarding the grant of sanction for the prosecution of
a public servant is that if the sanctioning authority is satisfied after applying
his mind to the facts disclosed to him that it would be desirable and proper
to accord sanction for giving jurisdiction to the court to take cognizance of
the case, then it would be valid. No issue can be raised about its legality on
the basis that certain documents or papers, which lay the foundation for
ch^rgesheet, ought to be perused.

Immunity against right of private defence

Another privilege enjoyed by a public servant is against a citizen who is
denied to exercise his right of private defence against the public servant for
his irregular acts.45 Under the Indian Penal Code,
There is no right of private defe ice against an act which does not
reasonably cause the apprehension of death or of grievous hurt, if
done, or attempted to be done, by a public servant acting in good
faith under colour of his office, though that act may not be strictly -
justifiable by law.46

43. J974 Cr.L.J. 1130 (Raj.).

44. M a t 1133.
45. State v. Limbaji, (1956) 58 Bom. L.R. 551.
46. S. 99 para. (1), the Indian Penal Code, 186L
146 ANNUAL SURVEY OF INDIAN LA W [1914

An immunity can thus be claimed by a public servant if he acts in good

faith and under the colour of his office even though the legality of the act
could not otherwise be sustained.

The issue came up before the Supreme Court in Kesho Ram v. Delhi
Administration*1 where the appellant had given a blow to an inspector, who
in the discharge of his duty, had gone to collect the milk tax and had seized
his buffalo.

The plea for application of section 99 of the Indian Penal Code was
advanced by the appellant which required an examination as to whether the
authority of the inspector was exercised in good faith in addition to the fact
that the inspector was acting in the colour of his office. To sustain his plea
the appellant contended that as there was no notice of demand sent to them
the act of seizure of the buffalo in default of the payment of tax was an
exercise of duty in bad faith. The court did not uphold the plea and obser-
ved that the action of the inspector did not become vitiated by bad faith
simply for that reason for the lack of notice of demand. The court was of
the view that "their attempt to recover the tax due by seizure of the animal
was not entirely outside the law, AH that could be said was that they erred,
even if sadly, in the exercise of their power". 48

A judicious view was taken of the facts and circumstances of the case.
The court did emphasise the need for the use of due care and caution by the
public servants in the discharge of their duty. While the court took the view
that the reckless contravention of the procedure adopted in the realisation of
the tax was an irregular act of the inspectors in the light of the unclear law
on the subject under the Act, the option to invoke the powers of seizure
under the circumstances was not viewed unfavourably. However, the court
did not approve the holding of the High Court that the notice of demand
was an option along with the optional power to seize the animal in default
of payment of the tax. Beg J. sought to curb a drastic interpretation of the
law and enunciated that if the powers to seize the animal are intended to be
invoked "at any time" as provided under the Act, it is essential that the
optional power of demanding the tax by notice must precede before the exer-
cise of this power.49

47. 1974 Cr.LJ. 814 (S.C).

48. M. at 817.
49 Id. at 817 para 11,
Vol. X] CRIMINAL LA W AND PROCEDURE 241

V. REMAND

The order sanctioning remand of an accused person to police custody

even without presenting the person before the remanding authority is no
longer res Integra. The issue was raised and decided by a majority in Raj
Narain v. Supn Central Jail,50 that a remand made without producing the
accused in the court for remitting him to further custody does not invalidate
the order.

The desirability of producing the person has been consistently emphas-

ised. It is understandable that in an issue like an order for custodial arrange-
ment of a person with the police puts a premium on the personal liberty of
the individual who till then is a mere suspect, and is entitled to larger benefits
under our established law and procedure. The requirement of presence is
essentially needed as an insurance against an unwarranted executive indul-
gence to treat the freedom of the person in a casual and cavalier fashion.
This can, of course, be checked if the progress of the investigation is perused
in the presence of the accused person, which in turn can be accounted in
computing the need to order for fresh remand. This is vitally important
because the process for ordering further remand is not a mechanical affair
but it is an organic issue which calls for determination of actualities in each
such case where a remand is sought. The person seeking remand as well as
the one against whom'it is sought ought to be brought before the court either
simultaneously or if necessary separately; but the desirability of presenting the
accused cannot be underrated.

No doubt the courts have sought to endorse the expediency of the exe-
cutive by validating an action whereby the executive may choose to dispense
with the presence of the accused. Such unfortunate trend has crept in
vigorously through Raj Narain's*1 case and since then has been followed in
Gauri Shanker v. State of Bihar52 and M. Sambasia Rao v. Union of India.5*

In a latest decision54 handed down by the Supreme Court the matter was
discussed afresh. In keeping with the earlier Supreme Court decisions the
precedential departure was not possible. The telling effect of such a rule is
noticeably visible in this case in which the court found that the petitioner's
case rested on the same footing as that of the co-accused who had been

50. 1971 Cr.L.J. 244.

51. Ibid.
52. A.I.R. 1972 S.C. 71L
53. A.I.R. 1973 S.C, 850.
54* Sandip Kumar Dev v. Officer-in-Charge Sakchi P.S. Jamshedpur, 1974 Cr.L.J. 740.
248 ANNUAL SURVEY OF INDIAN LA W [1974

released on bail, and remarked that ''in view of the fact that the investigation
took more than two years to complete this may be a fit case in which the
Magistrate could release the petitioner on a proper bail". 55

The propriety of admitting the petitioner to bail was evident to the

judges of the Supreme Court. This could have been achieved earlier for the
petitioner if the physical presence of the remanded person at subsequent dates
of remand order would have insistently been demanded by the Supreme
Court as elemental requirement o f t h e l a w o f remand. The rule asking for
the presence of the person whose freedom is being put at stake, is commensu-
rate with the broader notions of personal liberty which may be deprived in
accordance with such social needs as may be sanctioned by the law. The ex-
pediency of the executive does not tend to assume the charactei of law. In
fact the legalising of such procedure lends a colour of legality to the executive
excesses which the law forsakes.

VI. CONJOINT ACTIONS AND CULPABILITY

Nawab Ali and some others had grouped themselves in an unlawful

assembly under section 149 of the I.P.C., but Nawab Ali had slipped away
prior to the commission of the murder. His liability was determined to have
arisen on accoxint of his membership of the unlawful assembly, but on appeal
the Supreme Court acquitted the appellant. It was explained that the appli-
cation of the rule underlying section 149 of the Penal Code demanded that
the person concerned was a member of the unlawful assembly at the time of
the commission of the offence. Accordingly, "if the person goes away and
ceases to be a member of the unlawful assembly before the commission of
the offence, no vicarious liability can be fastened upon him". 58

Participation in the unlawful assembly does entail upon each participant

a liability for the end result. Thus in Bhajan Singh v. State*1 the original
object of the unlawful assembly had been to beat the victim but the dangerous
finale of the well-knit object led each of them to be guilty of the offence of
murder. The liability arises because the execution of the same common
object assumed '*the fearful character implicit in the illegal action under-
taken". 58 But in State of U.P. v. J.N. Gupta™ the act of an unascertained
assailant in an occurrence which was a chance encounter, the members of the

55. Id. at 741.

56. Nawab Ali v. State, 1974 Ct.L.J. 921 (S.C).
57. 1974 Cr.L.J. 1029 (S.C).
58. Id. at 1032.
5$. * 1974 Cr.L.J. 625 (S.C).
Vol. X] CRIMINAL LA W AND PROCEDURE 249

assembly could not be held responsible for the unanticipated act of that
individual.
Section 34 of the Penal Code is another provision to hold liable vicar-
iously. Lord Sumner had summed up the scope of the section by observing
that in crime as well as in life, they also serve who merely stand and wait.60
This principle re-echoed in Lalai v. State*1 where the silent spectator, who
had entertained a common intention to murder the deceased was held no less
guilty than the actual perpetrator.
In Tukaranis case'*2 the fact of distance did not make difference in exclu-
ding joint liability. The well understood principle was stated as follows :
Criminal sharing ..by active presence or by distant direction,
making out a certain measure of jointness in the commission of the
act is the essence of Section 34.63
The court further observed,
Even assuming that presence at the scene rs a pie-requisite to attach
Section 34 and that such propinquity is absent, Section 107 which is
diffeient in one sense, still comes into play to rope in the accused.61
The complicity of the offenders for conjoint actions need not be based
on conjectures but'be fastened or fixed conclusively. Thus, in Sawal Das v.
State oj Bihaih'° wheie two out of the three accused had been acquitted, the
question of conjoint liability did not arise. To prove the guilt of the accused
appellant it was necessary that the liability be established individually for the
offence of murder simpliciter, and the trial for joint actions in such cases
are likely to pave way for only presumptions or conjectures which are insuffi-
cient and improper standards for convicting a person. However, if the identity
of the persons jointly committing the crime remains not known b'ut the fact
of the crime in conjunction of the unknown persons is fully established the
act of the accused is deemed to be in furtherance of the common intention. 66

VII. CRIMINAL MISAPPROPRIATION

A criminal bleach of trust, in relation to a property, must firstly create
an obligation to have a dominion or control over the property, and then a

60. Barendra Kumar Ghose v. Emp., A.I.R. 1925 P.C. 1.

61. A.I.R. 1974 S.C. 2118.
62. Tukaram Ganpat Pandare \£. State, 1974 Cr. L.J. 469 (S.C).
63. M a t 471.
64. Ibid.
65. A.I.R. 1974 S.C. 778,
66. See Sukh Ram v. State, 1974 Cr.L.J 354,
250 ANNUAL SURVEf OF INDIAN LAW [\9?A

dishonest appropriation of the property contrary to the terms of obligation

is committed.

In S. & R. of Legal Affairs v. S.K. RoyQ7 a public servant, who was not
concerned or authorised to realise the insurance policy premiums, could not
plead that his authority to receive the property and have a dominion or
control over it, is not an entrustment under section 409 of the Indian Penal
Code.

In fact the fraudulent exercise of authority of a public servant aimed to

get the dominion of property cannot be viewed as an exculpating circum-
stance. Beg J. illuminatingly explained that in such cases,

The "entrustment" results, from what the person handing over money
or property is made to think, understand and believe about the
purpose for which he hands over money or property to a public
servant....Ordinarily, it is the ostensible or apparent scope of a public
servant's authority when receiving property and not its technical
-limitations, under some internal rules of the department or office
concerned, and the use made by the servant of his actual official
capacity which would...determine whether there is a sufficient nexus
or connection between the acts complained and the official capacity
so as to bring it within the ambit of Section 409 Indian Penal Code.68

A technical emphasis on the aspect that the dominion or control over

property should be legally correct before the charge of breach of trust can
be preferred does no longer hold valid. This position has been true in respect
of ptiblic servants, who are charged with a duty to act honestly, once the
entrustment of property arises in any manner whatsoever.69

In matters of public dealing the proof of entrustment may well be what

the person entrusting the property to a public servant thinks. The word
"entrustment" is essentially a term of art and it connotes different impli-
cations in different contexts. Thus, the secretary of a co-operative society
who gave instructions to make a wrong cross entry with regard to a sum was
deemed to have misappropriated the amount with him.70

67. 1974 Cr.L.J. 678 (S.C).

68. Ibid.
69. See St. of OP. v. B.R. Upad, A.I.R. 1961 S.C. 751.
70. Kantilal G. Singh v. State of Guj., 1974 Cr.L.J. 310 (S.C)*
Vol.Xl CRIMINAL LAW AND PROCEDURE 251

In Bikram Singh v. The State11 the charge of criminal breach of trust was
held to be correctly framed. In the instant case the managing director had
the dominion over the money deposited in instalments with the company
operating a chit fund, and on fully subscribing the instalments the subscri-
bers had become entitled to receive the amounts for which the managing
director had issued cheques which had been dishonoured. The court held
that the entrustment of property was not necessary, as the managing director
had prima facie a dominion over the property. However, the Punjab and
Haryana High Court 72 took the view that the non-refund of the amount can-
not be taken as criminal breach of trust. At best a civil action can lie for
the return of deposits.
It is submitted that the earlier view is in consonance with the law which
seeks to widen the scope of "entrustment" and includes the "prima facie"
dominion or control over the property as a necessary constituent of the
offence. Objectively speaking a stricter application of law to the operation of
companies engaged in chit fund business is a social demand. It is because
the companies play on the gullibility of a common man and the managing
authorities of the company know it well that a civil action is difficult to resort
to for a common man, and furthermore, that he can play safe to a certain
extent by pleading that the wrong complained of is on the borders of the
civil wrong. A narrower interpretation of the term of "entrustment" has
led a number of small investors to suffer at the hands of unethical entrepre-
neurs.
VIII. PUBLIC NUISANCE
Generally the law relating to nuisance is cogitated in matters which
pertain to the domain of civil wrongs. However, the Penal Code connotes
the expression "Public Nuisance" to be an act or omission which causes any
common injury, danger or annoyance to the public or the people in general
who dwell or occupy property in the vicinity.73 A limited remedial measure
to obviate the injury, annoyance or danger to the public is provided by way
of summary proceedings under the Code of Criminal Pocedure, 1898. Sec-
tion 133 of the Code provides;
(1) Whenever a District Magistrate, a Sub Divisional Magistrate or
a Magistrate of the first class considers, on receiving a police report
or other information and on taking such evidence (if any) as he
thinks fit,

71. 1974 Cr.L.J. 418 (Delhi).

72. Sat Narain v. State, 1974 Cr. L.J. 232 (P & H).
73. See s. 268, the Indian Penal Code, 186L
252 ANNUAL SURVEY OP INDIAN LAW [1974

that any building, tent or stiucture or any tree is in such a condition

that it is likely to fall and thereby cause injury to persons living or
carrying on business in the neighbourhood or passing, and that in
consequence the removal, repair or support of such building, tent or
structure, or the removal or support of such tree, is necessary...
such Magistrate may make a conditional order requiring the person...
owning, possessing or controlling such building, tent, structure ... or
owning or possessing such tree, within a time to be fixed in the
order,
to prevent or stop the erection of, or to remove, repair or support,
such building, tent or stiucture, or to remove or support such tree.

The procedure to be adopted in cases of public nuisance is that the au-

thority having been posted with sufficient and adequate information may
make a conditional order requiring person responsible for such a public nui-
sance to act in a directed manner. The conditional order is served upon the
person concerned generally by way of service of summons,74 who in turn will
act accordingly or may appear to show cause against the order. On the per-
son presenting himself, the magistrate may question him as to whether he
denied the existence of any public right in respect of the place.75 On his
doing so, he would adduce evidence and inquire into the matter before act-
ing in accordance with law.7U
The scope of this section has led to take a view that the law has been
enacted to meet the emergent situations of public nuisance warranting an
action for early removal of the obstruction.77 Thus, the action contemplated
under section 133 of the Code of Criminal Procedure is not meant to pre-
clude litigation in civil courts for the adjudication of rights caured by events
which are essentially of civil nature. It is understandable that the sparing
use of criminal process is desirable to deal with interests or harms where the
affected party is not an exactly identifiable individual or a group of indivi-
duals, but it consists of a somewhat vague association expressed through the
term "public."
The elasticity in the term "public" leads the court to adopt a restric-
tive application of the provision which finds a place in the penal law and
which, therefore, requires to be construed in a narrower ambit. A common-

74. S. 134, Cr. P.C. 1898.

75. S. 139A, ibid.
16. See ss. 137, 138, ibid.
11. See Rameshwar Prasad v. State of Bihar A.I.R. 1958 Pat. 210; ste aho Emperor V.
Tutsi Ram, A.I.R 1938 Lah. 523.
Vol. X] CRIMfN 1L I AW AND PROCEDURE 253

sense approach to the problem need not be lost sight of. Thus in the Indian
rural surroundings urinating on a village path is a matter of common occur-
rence, hence the insanitary conditions caused by the xtrination of cattle on
such path may not necessarily amount to public nuisance, because of the
difference of attitude of the rural and urban public towards the standards of
sanitation and traffic.78

However, the judicial trend in this regard is deflecting as can be noticed

through the decisions in Somnath v. State7U and Chittar 8c ors. v. Chhoga &
ors.so In the former case the court took the view that the act of public
nuisance need not be such as may affect large number of persons. It said
that "the requirement is satisfied if the danger is confined to the members of
a single household, even to a sole occupant". 81 This view is in contrast to
an earlier holding where the court found that when the inconvenience had
not been felt for a number of years by the public it could not be a public
nuisance on the matter being raked up in a court of law.82

The newer approach to the law relating to public nuisance, which takes
into account the inconvenience of the minimal number of persons,83 thus
assumes significance. It has been rather the opinion of the court that the
imminence of danger must be of such magnitude as may cause alarm or a
sense of urgency to act for the immediate removal of public nuisance. In
other words, a delayed action would be termed as aquiescence which in form
would frustrate the remedial action of urgent nature contemplated under sec-
tion 133 of the Code. The policy to impose a limitation on invoking the
provision of the Code of Criminal Procedure was meant to restrict the
application and discourage the use of criminal process as a remedial action
for the wrongs of public nuisance;81 although "it cannot be laid down as an
inflexible rule that where a structure constituting an unlawful obstruction to
a public way has been allowed to stand for a number of years it can in no
case be ordered to be removed under Section 133".^

78. Chakra Behra v. .State, 1974 Cr. L.J. 423 (On ).

79. 1974 Cr. L J. 522 (Goa).
80 1974 Cr.LJ. 1230 (Raj).
81. Supra note 79 at 524. See also 1962 (2) Cr.L.J. 666 (Ker.).
82. Rameshwar Prasad v. State of Bihar, supra note 77,
83. Supra note 80.
84. Sec cases cued in mpra note 77
^5. Rai Kumar v. State, 1962 (2) Cr. L.J. 413 (AIL).
254 ANNUAL SURVEY OF INDIAN LA W [ 1974

The prescriptive right to commit a public nuisance does not legalise the
wrong. This has precisely been the crux of the second case noted above86
wherein the court emphasised that "the legislature does not lay down any
categorical conditions of time for the exercise of jurisdiction under Section
133 of the Criminal Procedure Code".87 The gradual expansion of the scope
of the law in this regard is a wholesome feature inasmuch as it may enable to
check the tide of unauthorised encroachments by the individuals, who only
care for their gains at the cost of public interests. A gainful purpose can well
be achieved by extended application of the law to restore back the facilities
meant for the public generally, but which seem to be gradually passing over
into the hands of those unscrupulous persons who can audaciously exploit
the unauthorised gains.

S6. Supra note 80.

87. Id. at 1233.