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1966 DIGILAW 274 (ALL)

Gauri Shanker v. State

1966-07-28

J.N.TAKRU

body1966
ORDER J.N. Takru, J. - Gauri Shankar has filed this appeal against his conviction and concurrent sentences of three years, R.I. u/s 5(2) of the Prevention of Corruption Act and two years' R.I. u/s 161 IPC. 2. It is unnecessary to mention the facts of this case at any length, as the appeal is likely to succeed on a preliminary point-to be indicated presently-urged on behalf of the Appellant. The facts, material for the appreciation of the said point, are these: The Appellant was a Municipal Commissioner and the Chairman of the Marketing Committee of the Municipal Board, Haldwani-cum-Kathgodam in the district of Naini Tal at the material time. The case for the prosecution is that on 14-5-1961 at about 8.30 P.M., the Appellant, in his capacity as a Municipal Commissioner and Chairman of the Marketing Committee, by corrupt and illegal means and by abusing his position as a public servant, obtained a sum of Rs. 100/- as gratification other than the legal remuneration from P.W. 1 Kallu, as a motive or reward for doing an official act in his' favour, to wit, to regularise the continuance of his Tandoor on Municipal land in front of his hotel or restaurant known as Khane-ki-Dukan. The case was investigated by P.W. 10 Shiam Swarup Singh, C.I. under the orders of the District Magistrate, Naini Tal and after completing the investigation, he submitted a charge sheet against the Appellant. Since, however, the intended prosecution was of a public servant the Commissioner of the Kumaon Division and the District Magistrate of Naini Tal wrote to the department of the Local Self Government, UP, asking for the requisite sanction for the Appellant's prosecution. The requisite sanction was accorded in the name of the Governor of Uttar Pradesh in October 1962 and it is the validity of this sanction which was canvassed before me by Sri H.P. Varshney learned Counsel for the Appellant as a preliminary point. The said sanction is, Ex. Ka. The requisite sanction was accorded in the name of the Governor of Uttar Pradesh in October 1962 and it is the validity of this sanction which was canvassed before me by Sri H.P. Varshney learned Counsel for the Appellant as a preliminary point. The said sanction is, Ex. Ka. 11 and in so far as it is material for the present enquiry, reads thus: Whereas it has been brought to the notice of the State Government that Sri Gauri Shankar, Member, Municipal Board, Haldwani, was caught red-handed by the police accepting bribe and as a case u/s 161 IPC was registered against him at Police Station Haldwani, And whereas on giving full consideration to the facts available the Governor of Uttar Pradesh is satisfied that a prima facie case of acceptance of illegal gratification and criminal misconduct is made out against the said member and it is necessary to prosecute him for such offence; Now therefore in exercise of the powers u/s 197 of the Code of Criminal Procedure 1898 (Act V of 1898) read with Section 6 of the Prevention of Corruption Act 1947 (Act No. II of 1947) the Governor is pleased to accord sanction to the prosecution of the said member for the offence u/s 161 of the IPC 1860 (Act XLV of 1860) land under such other provisions of law as may be applicable to the circumstances and facts of the case against the paid Sri Gauri Shankar. In the name of the Governor of Uttar Pradesh. Sd. D.P. Arya Up Sachiv 3. According to Sri Varshney as the aforesaid sanction does not set out the facts constituting the offence with which the Appellant was charged and there is no other material on the record from which it can be gathered that those facts were before the sanctioning authority when it granted the sanction, Ex. Ka-11, the said sanction was defective and no cognizance of the offence could be taken on the basis of such a defective sanction. After hearing the learned Counsel for the parties and examining the authorities, I am satisfied that the sanction, Ex Ka-11, is not in accordance with law and the prosecution of the Appellant must, consequently, be held to be without jurisdiction and void ab initio. 4. Now, the leading case on the point, as to what constitutes a valid sanction, is that of AIR 1948 82 (Privy Council) . 4. Now, the leading case on the point, as to what constitutes a valid sanction, is that of AIR 1948 82 (Privy Council) . It was held in that case that, A sanction which simply names the person to be prosecuted and specifies the provision of the order which he is alleged to have contravened is not a sufficient compliance with Clause 23. In order to comply with the provisions of Clause 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the fact 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. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them for example, that on political or economic grounds they regard a prosecution as inexpedient. Where facts are not referred to on the face of the sanction nor is it proved by extraneous evidence that they were placed before the sanctioning authority, the sanction is invalid and the trial court would not be a Court of competent jurisdiction. This being so the defect cannot be cured u/s 537, Code of Criminal Procedure as a defect in the jurisdiction of the Court can never be cured u/s 537. 6. The aforesaid decision was followed with approval by the Supreme Court in Biswabhusan Naik Vs. The State of Orissa, AIR 1954 SC 359 , Madan Mohan Singh Vs. State of Uttar Pradesh, AIR 1954 SC 637 , Jaswant Singh Vs. The State of Punjab, AIR 1958 SC 124 and P.C. Joshi and Another Vs. The State of Uttar Pradesh, AIR 1961 SC 387 . 7. The State of Orissa, AIR 1954 SC 359 , Madan Mohan Singh Vs. State of Uttar Pradesh, AIR 1954 SC 637 , Jaswant Singh Vs. The State of Punjab, AIR 1958 SC 124 and P.C. Joshi and Another Vs. The State of Uttar Pradesh, AIR 1961 SC 387 . 7. Thus the only thing which has to be seen in the present case is whether all the facts constituting the offence with which the Appellant was charged are referred to on the face of the sanction or they are proved by extraneous evidence to have been placed before the sanctioning authority before it granted the requisite sanction. I shall take up the written sanction first. That sanction has been quoted in extenso in an earlier part of this judgment and it shows that the only three particulars, which the sanctioning authority had before it when it granted the sanction Ex Ka 11, were (1) that the Appellant was a member of the Municipal Board, Haldwani, (2) that he was caught red-handed by the police accepting bribe and (3) that a case u/s 161 IPC was registered against him at Police Station Haldwani. The short question, therefore, is whether these three particulars are sufficient for the grant of a valid sanction for the offence for which the Appellant was to be prosecuted. I might mention straightaway, that as the third particular mentioned above is not a fact constituting the offence in question, its reference in the sanction is irrelevant and immaterial, though it would have been otherwise if the sanction had shown that a copy of the first information report, which was lodged u/s 161 IPC, was before the sanctioning authority and it had perused it before sanctioning the prosecution of the Appellant. We are, therefore, left with only two particulars so far as the written sanction, Ex. Ka 11, is concerned and the question, as stated above, is whether these two particulars are sufficient for holding the sanction to be a valid sanction. Fortunately the answer to this question presents no difficulty for in two of the cases cited above, viz. Bishwabhushan Naik (B) and Madan Mohan Singh (C) the written sanction contained more or less similar particulars and they were held by the Supreme Court to be insufficient for a valid sanction. Fortunately the answer to this question presents no difficulty for in two of the cases cited above, viz. Bishwabhushan Naik (B) and Madan Mohan Singh (C) the written sanction contained more or less similar particulars and they were held by the Supreme Court to be insufficient for a valid sanction. In Bishwabhushan Naik (B) the sanction thus ran : "In pursuance of Section 6 of the Prevention of Corruption Act, 1947 (II of 1947) the Governor of Orissa is hereby pleased to accord sanction for prosecution of Sri B.B. Nayak, Inspector of Factories, Orissa, employed in connection with the affairs of the province under Sub-section (2) of Section 5 of the said Act. 2. Nature of offence committed- Criminal misconduct in discharge of official duty. While in Madan Mohan Singh (C) the sanction was in the following terms: With reference to your wireless message dt. 4-9-1948, relating to the prosecution of Sardar Mohan Singh Ahluwalia, Excise: Inspector, Circle V, Bagphat, District Meerut on the alleged charge of accepting illegal gratification, I have the honour to sanction the prosecution of the above Excise Inspector as requested. He is being placed under suspension pending his prosecution vide this office letter No. 14312-17/IV-302 dated 25-11-1948. 8. In the latter case as the prosecution did not lead any other evidence to show that the materials constituting the offence were placed before the sanctioning authority, the sanction was struck down and the conviction of the Appellant was set aside on that ground alone. In the former case, the written sanction, which was more or less similar to the written sanction in Madan Mohan Singh (C), was saved by the fact that the letter of the District Magistrate, wherein he had asked for the sanction for the prosecution of the Appellant of that case, contained all the necessary facts constituting the offence with which the Appellant was to be charged and there was evidence to show that that letter was before the sanctioning authority when it granted the necessary sanction. That letter was in the following terms: I have the honour to report that Sri B.B. Nayak, Inspector of Factories, Orissa, in the course of his visit to this district had been visiting certain mills and on information received by me that he had been collecting heavy sums as illegal gratification from the Manager or proprietor of Mills under threat or mischief to the mill owners, it was arranged to verify the truth of this information by handing over 3 hundred rupee notes marked with my initials in presence of the Superintendent of Police and two other respectable gentlemen and mill-owners, on the evening of 2-10-1948. On the 3rd October the Factory Inspector having actually received the illegal gratification of Rs. 450/- which sum included the three marked hundred rupee notes, the prosecuting Inspector seized the marked notes along with a further heavy sum of Rs. 2,698/- from his possesssion.... 9. It will be noticed that in this letter all the particulars constituting the offence u/s 6 of the Prevention of Corruption Act and Section 161 IPC are stated. The Supreme Court also held that the reference in that letter to the particulars about the collection of bribe and the finding of the sum in the possession of the accused were sufficient to validate the prosecution. In the instant case, however, the sanction Ex. Ka. 11 does not show that the amount of the bribe and the fact that it was found in the possession of the Appellant were even known to the sanctioning authority, when it gave the sanction in question. Consequently, having regard to the rule laid down by the Supreme Court in the cases referred to above the written sanction, Ex. Ka-11, does not ex facie show that all the facts constituting the offence in respect of which it was given, were before the sanctioning authority when it gave that sanction and it was therefore the duty of the prosecution to lead some other evidence to fill up that lacuna. The prosecution produced two witnesses to prove that all the relivant facts were before the sanctioning authority. The first witness is P.W. 9 Durga Prasad Arya, the Up Sachiv, Shashan Vibhag, Uttar Pradesh Shashan, Lucknow. His evidence is however of no help to the prosecution since he was unable to say what papers and masters were placed before the sanctioning authority when it granted the sanction Ex. The first witness is P.W. 9 Durga Prasad Arya, the Up Sachiv, Shashan Vibhag, Uttar Pradesh Shashan, Lucknow. His evidence is however of no help to the prosecution since he was unable to say what papers and masters were placed before the sanctioning authority when it granted the sanction Ex. Ka-11. The second witness is P.W. 11 Gyan Prakash, who was the Secretary to the Governor at the relevant time. In his examination-in-chief he stated that he sanctioned the prosecution after perusing the notes, correspondence and all other matters which were on the file of the case. In his cross-examination, however, he nullified the effect of the above by saying that at the time when he granted the sanction, he did not know (1) the time and place of the incident, (2) the amount of the bribe, (3) the person from whom the said bribe is alleged to have been taken by the Appellant and (4) the circumstances tinder Which the alleged bribe was said to have been given and taken. He further admitted that the letter of the District Magistrate, Naini Tal asking sanction for the prosecution of the Appellant did not contain any facts concerning the present case. Finally he also admitted that the only facts of the case which came to his knowledge Upon examining the papers of the file concerned were that the Appellant was caught red-handed by the police accepting bribe and that a case u/s 161 IPC had been registered against him at Police Station Haldwani: further that if there had been no recommendation of District Magistrate of Naini Tal for the prosecution of the Appellant, there would have been no question of his sanctioning the same. Thus from the oral evidence also it appears that many of the facts, which constitute the offence for which the Appellant was charged, were not even present before the sanctioning authority when it accorded its sanation for his prosecution. In these circumstances, the sanction Ex. Ka-11, must be held to be a defective sanction and as an invalid sanction cannot confer jurisdiction upon the court to try the case the appeal is likely to succeed on this point alone. In these circumstances, the sanction Ex. Ka-11, must be held to be a defective sanction and as an invalid sanction cannot confer jurisdiction upon the court to try the case the appeal is likely to succeed on this point alone. The setting aside of the Appellant's conviction and sentence does not, however, preclude the State from prosecuting the Appellant again after obtaining 3 valid sanction to that effect and considering the propriety and desirability of the prosecution after a lapse of over five years. 10. The result therefore is that the conviction and sentence of the Appellant are set aside and his appeal is allowed. The Appellant was granted bail for the pendency of his appeal. He need not surrender and his bail bonds are hereby discharged. Appeal allowed.