RAMACHANDRA BABANNA GHANTI v. STATE OF MYSORE — 1969 DIGILAW 120 (KAR)

( 1 ) THE appellant was convicted by the Special Judge, Bangalore appointed under the provisions of S. 6 cf the Criminal Law (Amendment) Act, 1952, of offences punishable under Ss. 409, 451 and 477a cf the Penal Code, and also of offences punishable under S 5 (2) read v/ith S. 5 (1) (c) of the Prevention of Corruption Act, 1947. He awarded a sentence of rigorous imprisonment of four months with respect to the offences punishable under the Penal Code and no separate sentences were awarded for the offences under the Prevention of Corruption Act. ( 2 ) THE preliminary argument advanced by Mr. Bhagawan was that the convictions fall to the ground since there was no proper sanction on which s. 6 of the Prevention of Corruption Act insists. The relevant part of S. 6 reads:"6 (1) No Court shall take cognizance of an offence punishable under S. 161 or S. 164 or S. 165 of the IPC. , or under sub-sec. (2) or sub-sec. (3a) of S. 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction. . . . . . (c) in the case of any other person, of the authority competent to remove him from his office. " ( 3 ) THE Special Judge acquired jurisdiction to try the offences punishable under S. 5 (2) of the Prevention of Corruption Act by reason of his appointment as a Special Judge for that purpose under S. 6 of the Criminal Law (Amendment) Act, 1952 which reads:"6 (1) The State Government may, by notification in the Official gazette, appoint as many Special Judges as may be necessary. . . . " ( 4 ) THAT appointment also became the source of his power to try the four offences under the Penal Code with which the accused was also charged, under S. 7 (3) of the Criminal Law (Amendment) Act, 1952 which reads :"7 (3) When trying any case, the Special Judge may also try any offence, other than an offence specified in S. 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial. "so the jurisdiction to try the offences punishable under the Penal Code becomes available to a Special Judge if he acquires the power to try the offences enumerated in S. 6 of the Criminal Law (Amendment) Act, 1952. If there be no jurisdiction to try those offences, there can be no jurisdiction to try the other offences of which S. 7 (3) speaks. ( 5 ) MR. Bhagawan in the course of his next argument presented before me advanced the contention that the Special Judge by reason of the absence of a proper sanction under S. 6 (c) of the Prevention of Corruption act, did not acquire jurisdiction to try the offence punishable under the prevention of Corruption Act, and so did not possess the jurisdiction to try the offence under the Penal Code with which the accused was charged. If Mr. Bhagawan is right in his argument that the sanction on which S. 6 of the Prevention of Corruption Act insists did not precede the prosecution commenced against the accused, the conviction of the accused must fail not only with respect to the offences punishable under the Prevention of corruption Act but also in respect of the offences under the Penal Code with which he was charged. ( 6 ) THE prosecution case was that when the accused was working as a a lower division clerk in the reservist section of the Effective Group records of the Maratha Light Infantry, Belgaum, he committed breach of trust with respect to a sum of Rs 159-74 np. on December 7, 1961. It was stated that that sum of money had been entrusted to the accused for remittance to PW. 27 Jamedar Vithal Gaikwad towards his arrears of pay, but was misappropriated by the accused. It was also said that the accused had committed offences of forgery and falsification of accounts by manipulating the concerned records. So it was that he was charged with an offence of breach of trust, an offence of forgery and an offence of dishonest user off a forged document and falsification of accounts and dishonest misappropriation which are all offences punishable under the Penal Code, and an offence of dishonest misappropriation punishable under S. 5 (2) read with s. 5 (1) (c) of the Prevention of Corruption Act. ( 7 ) IT will be seen that S. 6 (1) of the Prevention of Corruption Act prohibits the cognizance of an offence punishable under S. 5 (2) of the Act except with the previous sanction of the authorities enumerated in clauses (a), (b) and (c) of that sub-section. I am not concerned in this case with clauses (a) and (b) which have no application. The authority whose previous sanction was necessary in the present case was the authority specified in clause (c), and the authority competent to remove the accused from his office. But sanction in the present case was granted by PW. 10 who was the officer-in-charge of the Records of the Maratha Light Infantry and Ext. P-20 is his sanction. ( 8 ) BUT Mr. Bhagawan maintained the argument that since PW. 10 was not the authority competent to remove the accused from his office, the sanction accorded by him is not the sanction which can have any efficacy for the purpose of S. 6 (1) of the Prevention of Corruption Act. The argument constructed was that since the accused had been appointed by the commissioner of the Sub Area, Poona, who was an officer superior to pw. 10, the Commander of that Sub Area was the person who could remove the-accused from his office, and so was the person who could accord the sanction enjoined by S. 6 (1) (c ). PW. 10 who was holding a lower rank than that held by the Commander of the Sub Area of the higher formation who could remove the accused from his office, could not, it was contended, accord the sanction which had to precede the cognizance of the offence by the Special Judge. Ext. P-10 is the agreement under which the accused was appointed in his post on May 26, 1954. That agreement says that he was appointed by the Commander of the Sub Area of Poona, and it is not disputed that that Commander is now the commander of the Sub Area, Mysore, in bangalore. Ext. P-10 is the agreement under which the accused was appointed in his post on May 26, 1954. That agreement says that he was appointed by the Commander of the Sub Area of Poona, and it is not disputed that that Commander is now the commander of the Sub Area, Mysore, in bangalore. ( 9 ) BUT by an order made by the Adjutant General, New Delhi, on january 4, 1954 there was a delegation of the power of removal of Class iii Officers to the Officers-in-charge in the Records Section of the Maratha regiment in Belgaum and other Officers, and since the post held by the accused was a Class III post, if nothing else could be said about it it might appear that he became liable to be removed from his post under the delegation made by the Adjutant General in that way by the Officer-in-charge of the Record Section of the Maratha Regiment in Belgaum. But on that power of removal bestowed on the Officer-in-charge of the Record Section of the Maratha Regiment in Belgaum, a fetter was imposed by para 2 of the order of delegatipn which reads :"para 2. The punishment of reduction, removal and dismissal will not however be awarded without the prior approval of the next higher formation Commander. " ( 10 ) IT is not disputed for the prosecution that the next higher formation commander to whom this part of the order oi delegation refers, is the commander of the Sub Area, Mysore, in Bangalore, who is no other than the commander who appointed the accused in his post under the agreement Ext. D-10. That being so, although there was a delegation by the Adjutant General, new Delhi, under Ext. P-59 of the power of removal of a Class III, servant, to the officer-in-charge of the Records, who, in the present case, was PW. 10, PW. 10 did not acquire any absolute power of removal, since that power of removal was exercisable only with the imprimatur of the commander of the next higher formation, and without such imprimatur, the power of removal was not exercisable, and an order of removal made by the officer-in-charge would have no efficacy or effect until the commander of the Sub Area accorded his approval to such removal. ( 11 ) THAT fetter placed on the delegated power by the Adjutant General in respect of the punishment of reduction, removal and dismissal, makes it abundantly clear that the power of removal did not effectively reside in the delegate but that it continued to reside in the next higher formation commander, who alone could make an effective order of removal by according the approval to a proposal for removal made by the delegate. ( 12 ) THE true position therefore is that under Ext. P-59 the power which was accorded to the delegate was no more than a power to make a proposal to the next higher formation commander for removal, and that he could not make an order of removal himself without the concurrence of that next higher formation commander. So the authority competent to remove the accused from his office of whom S. 6 (1) (c) of the Prevention of Corruption act speaks, was, in the present case, the next higher formation commander and not PW. 10. The sanction Ext. P-20 accorded by PW. 10 had therefore no efficacy and was no sanction for the purpose of S. 6 (1) (c) of the Prevention of Corruption Act. ( 13 ) SO the Special Judge was incompetent to take cognizance of the offence punishable under S. 5 (2) of the Prevention of Corruption Act read with section 5 (1) (c) of that Act, and, if he could not take cognizance of this offence and so could not try the accused in respect of this offence, he could not under S. 7 (3) of the Criminal Law (Amendment) Act, 1952, take cognizance of any other offence punishable under the Penal Code. ( 14 ) THE resultant position emerging from the discussion so far made is is that this appeal succeeds on the ground that the prosecution was not preceded by the sanction made imperative by S. 6 of the Prevention of corruption Act. I allow this appeal and set aside the conviction of the appellant in respect of all the offences with which he was convicted, and the sentence imposed upon him. --- *** --- .