SAHEBKHAN UMERKHAN v. STATE — 1962 DIGILAW 91 (GUJ)

B. J. DIVAN, J. ( 1 ) THE appellant Sahebkhan Umarkhan who was the Sarpanch of Hingolgadh Panchayat from 1st August 1959 to 28th June 1960 was alleged to have committed dishonest and criminal misappropriation of various amounts aggregating to Rs. 3000. 00 and odd. In respect of these criminal misappropriations two separate trials were commenced against the accused before the Special Judge Rajkot District Rajkot. In Special Criminal Case No. 17 of 1961 the accused was charged with having committed dishonest misappropriation of a sum of Rs. 2506. 62 np. during the period August 1 1959 to July 30 1960 and thereby having committed offence under sec. 409 I. P. C. and sec. 5 (1) (c) punishable under sec. 5 (2) of the Prevention of Corruption Act. In Special Criminal Case No. 2 of 1962 the same accused was charged for having dishonestly misappropriated an amount of Rs. 656. 97 np. during the period from August 1 1960 to June 28 1961 and thereby having committed offences punishable under sec. 409 I. P. C. and sec. 5 (1) (c) punishable under sec. 5 (2) of the Prevention of Corruption Act. Both these cases were tried by the learned Special Judge Rajkot District Rajkot and in each case the accused was convicted of the aforesaid offences and sentenced to suffer R. I. for 2 years and I year respectively with a direction that the sentences should run concurrently. It is against these orders of conviction and sentence in these two cases passed by the Special Judge Rajkot District that the accused has come in appeal and both the appeals will be deposed of by this common judgment. ( 2 ) UNDER sec. 6 of the Prevention of Corruption Act no Court can take cognizance of an offence punishable under sec. 5 (2) of the Act except with the previous sanction of the authority competent to remove the public servant from his office. Clauses (a) and (b) of sub-sec. (1) of sec. 6 have no application to the facts of this case and therefore they do not arise for consideration and it is clear from the provisions of sub-sec. (1) of sec. 6 the Act that the previous sanction of the authority competent to remove the public servant from his office must have been given before the Special Judges Court appointed to try the case can take cognizance of the offence. (1) of sec. 6 the Act that the previous sanction of the authority competent to remove the public servant from his office must have been given before the Special Judges Court appointed to try the case can take cognizance of the offence. Under sec. 6 of the Criminal Law Amendment Act 1952 power has been given to the State Government to appoint Special Judges for the trial of offences inter alia under sec. 5 (2) of the Prevention of Corruption Act. Under sec. 7 of the Criminal Law Amendment Act 1952 the offences specified in sec. 6 (1) can be tried only by a Special Judge and under sub-sec. (3) of sec. 7 when trying any case a Special Judge may also try any offences other than an offence specified in sec. 6 with which the accused may under the Code of Criminal Procedure be charged at the same trial. It is by virtue of the operation of sub-sec. (3) of sec. 7 of the Criminal Law Amendment Act 1952 that the Special Judge got jurisdiction to try offences under sec. 409 I. P. C. It is provided under sec. 8 of the Criminal Law Amendment Act that the Court of the Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and it is not necessary to have an order of commitment to the Court of a Special Judge. It is clear that sub-sec. (3) of sec. 7 of the Criminal Law Amendment Act is an enabling provision which confers jurisdiction on the Special Judge to try offences which arise in the course of the same transaction which are allied with the principal offence for the trial of which he is appointed a Special Judge. But it is clear that there must be a proper sanction to prosecute granted under the provisions of sec. 6 of the Prevention of Corruption Act before a Special Judge can take cognizance of an offence punishable under sec. 5 of the Prevention of Corruption Act. It is also clear that if the Special Judge has no jurisdiction to try an offence punishable under sec 5 of the Prevention of Corruption Act he has no jurisdiction to try the other allied offences for which power has been conferred upon him under sub-sec. (3) of sec. 5 of the Prevention of Corruption Act. It is also clear that if the Special Judge has no jurisdiction to try an offence punishable under sec 5 of the Prevention of Corruption Act he has no jurisdiction to try the other allied offences for which power has been conferred upon him under sub-sec. (3) of sec. 7 of the Criminal Law Amendment Act 1952 We are supported in this conclusion by a decision of the Patna High Court reported in A. I. R. 1961 Patna 203 (Ramautar Mahton v. State) and there it was held as follows:-THE proceeding before the Special Judge in a case relating to an offence under sec. (5) (2) of the Prevention of Corruption Act 1947 is no trial at all when there is no valid sanction under sec. 6 of that Act. In such a case the Special Judge has no jurisdiction under sec. 7 (3) of the Criminal Law Amendment Act 1952 to try the offence under sec. 409 of the Penal Code also. The trial for that offence being without jurisdiction is null and void. Thus the trial for the other offence is without jurisdiction when the Special Judge convicts the accused for such an offence by the same judgment by which he holds that he is not competent to try the offence which he was trying under sec. 7 (1) of the Act of 1952. ( 3 ) IT is contended by Mr. Vakharia appearing on behalf of the accused in both these appeals that the sanction to prosecute which was given by the Collector Rajkot is invalid sanction because on the date on which the sanction was purported to have been given the Collector was not the authority competent to remove the Sarpanch from his office in view of the provisions of the Bombay Village Panchayats Act 1958 (Bombay Act No. 111 of 1959 ). Under sec. 39 of the Bombay Village Panchayats Act 1958 the Panchayat Mandal may after giving due notice to the Panchayat and the person concerned and after such inquiry as it thinks fit remove from office any member or any Sarpanch or Upa-Sarpanch who has been guilty of misconduct or neglect of or incapacity to perform his duty or is persistently remiss in the discharge thereof. A Sarpanch or an Upa-Sarpanch so removed may at the discretion of the Panchayat Mandal also be removed from the Panchayat; provided that no such person shall be removed from office until he has been given a reasonable opportunity of being heard. Under sec. 41 of the Act the Collector may suspend from office any Sarpanch or Upa-Sarpanch against whom any criminal proceedings have been instituted or who has been detained in a prison during trial under the provisions of any law for the time being in force. Therefore the power to remove a Sarpanch from office vests only in the Panchayat Mandal and the power to suspend a Sarpanch during the pendency of criminal proceedings vests in the Collector of the District. But in this particular case as shown by Ex. 40 in Special Case No. 2 of 1962 it was the Collector Rajkot District who granted the sanction to prosecute the accused under sec. 409 and 477-A I. P. C. as well as under sec. 5 (2) of the Prevention of Corruption Act. ( 4 ) WE have carefully examined the provisions of the Bombay Village Panchayats Act 1958 and we find that apart from sec. 39 there is no other provision under this Act which provides for removal of a Sarpanch from his office and that power as we have already pointed out above vests in the Panchayat Mandal and not in the Collector. Sec. 187 of the Bombay Village Panchayats Act 1958 provides that if any difficulty arises in giving effect to the provisions of this Act the State Government may by an order published in the Official Gazette do anything not inconsistent with the provisions of this Act which appear to it to be necessary or expedient for the purpose of removing the difficulty. It may be pointed out that the Bombay Act No. 111 of 1959 came into force with effect from 1st June 1959 and was made applicable to the former State of Bombay which included the District of Rajkot. It may be pointed out that the Bombay Act No. 111 of 1959 came into force with effect from 1st June 1959 and was made applicable to the former State of Bombay which included the District of Rajkot. Therefore on and from 1st June 1959 the provisions of the Bombay Act No. 111 of 1959 applied to the District of Rajkot where this particular village of which the accused was the Sarpanch is situated and hence after June 1 1959 it was only the Panchayat Mandal for the District of Rajkot that could remove this particular Sarpanch from his office and that was the only competent authority who could remove the accused from his office as a Sarpanch. But under the powers conferred upon it by sec. 187 of the Act the Government of Bombay published a Notification dated September 19 1959 This Notification is to be found at page 190 of the Bombay Government Gazette Part I-A for 1959 and the Notification after setting out various facts states as follows :-NOW therefore in exercise of the powers conferred by sec. 181 of the said Act the Government of Bombay with a view to removing such difficulties directs that until the Mandals are duly constituted the Collector shall in addition to the duties of Mandals conferred on Collectors by Government Order Local Selfgovernment and Public Health Department No V. P. A 1059 dated the 25th May 1959 perform the following functions and duties and exercise the powers of the Mandals and their Chairman namely : -. . . . . . . . . . . . . . . . . (5) Power under sec. 39. . . . . . . . . . . . . . . . . . . ( 5 ) THEREFORE by virtue of this Notification which the State Government was competent to issue till the District Village Panchayat Mandal for the District of Rajkot was duly constituted the Collector Rajkot could exercise the powers of removing a Sarpanch from his office conferred upon the Panchayat Mandal under sec. 39 of the Bombay Act No. 111 of 1959. Mr. Vakharia contended before us that the Panchayat Mandal for the District of Rajkot started functioning from October 2 1959 and therefore at the date when the sanction in this particular case was given viz. 39 of the Bombay Act No. 111 of 1959. Mr. Vakharia contended before us that the Panchayat Mandal for the District of Rajkot started functioning from October 2 1959 and therefore at the date when the sanction in this particular case was given viz. on September 28 1961 the Collector of Rajkot District had no power to remove the Sarpanch from his office and that power could only be exercised under sec. 39 of the Bombay Act No. 111 of 1959 by the Panchayat Mandal. ( 6 ) THE learned Assistant Government Pleader was given time to ascertain whether it was a fact that the Rajkot District Village Panchayat Mandal functioning under the Bombay Act No. 111 of 1959 came into existence and began to work from October 2 1959 and after obtaining instructions the learned Assistant Government Pleader stated that this statement of fact viz. that the District Village Panchayat Mandal for the District of Rajkot started functioning on October 2 1959 is correct. In this view of the matter it is obvious that from October 2 1959 the Collector of Rajkot District had no power to remove any Sarpanch of any Panchayat in the Rajkot District from his office and that with effect from October 2 1959 that power could only be exercised by the Rajkot District Village Panchayat Mandal and by no-one else. That being the case it is obvious that the sanction to prosecute which was given by the Collector of Rajkot on September 28 1961 was not a valid sanction. ( 7 ) IT is clear from what we have discussed earlier that as there was no valid sanction to prosecute the Special Judge Rajkot District did not get any jurisdiction to entertain the matter so far as the offence punishable under sec. 5 (2) of the Prevention of Corruption Act is concerned and that the learned Special Judge also had no jurisdiction to try the offence under sec. 409 I. P. C. Since this is a question of want of jurisdiction it is obvious that the entire trial before the Special Judge was vitiated and therefore the orders of conviction and sentence passed against the accused in both these cases must be set aside. 409 I. P. C. Since this is a question of want of jurisdiction it is obvious that the entire trial before the Special Judge was vitiated and therefore the orders of conviction and sentence passed against the accused in both these cases must be set aside. We wish to make it clear that the accused is being discharged and not acquitted as we have not gone into the facts or considered the merits of the evidence led before the trial Judge. ( 8 ) IN the result we allow both these appeals and set aside the orders of conviction and sentence passed by the trial Court. The accused is discharged and he should be set at liberty forthwith. Appeals allowed. .