S. N. Bose v. State Of Bihar — 1973 DIGILAW 29 (PAT)

Judgment 1. The petitioner is the accused awaiting his trial before the Special Judge at Patna in Special Case No. 33 of 1969. His prayer in the present application is that the prosecution which is pending against him should be quashed. The prosecution is in respect of offences under Sec.161 of the Penal Code and Sec. 5(2) read with Sec. 5(1)(d) of the, Prevention of Corruption Act, 1947, said to have been committed by the petitioner in March, 1964. 2. At the relevant time the petitioner was the Assistant Medical Officer in the Railway Hospital at Gaya. One Doman Ram was a Khalasi working, under the Inspector of Works at the same station. It is alleged that the petitioner had demanded and received Rs. 2, from the said Khalasi as illegal gratification for treating him for dysentery and stomach pain and that subsequently the petitioner had demanded and received Rs. 5 from him as illegal gratification for giving him a fitness certificate. 3. Upon the aforesaid allegations the petitioner was put on trial before the Special Judge at Patna in Special Case No. 1 of 1964 and he was convicted by the trial Court on the 15th September, 1965. His conviction was upheld by this Court with some modification in Criminal Appeal No. 455 of 1966 decided on the 4th May, 1967. But on further appeal the conviction and sentence recorded against him were set aside by the-Supreme Court on the 26th March, 1968. The judgement of the Supreme Court is reported in Sailendranath Bose V/s. State of Bihar, AIR 1968 SC 1292 : (1968 Cri LJ 1484). The Supreme Court found that there was no valid sanction for the prosecution of the petitioner as required by Sec. 6(1) of the Prevention of Corruption Act. 1947, hereinafter referred to as the "Act", inasmuch as the sanction to prosecute the petitioner had been accorded by the Chief Medical Officer, who was not the authority competent to remove him from his office. It appears that after the decision of the Supreme Court as aforesaid, the sanction for the prosecution of the petitioner in respect of the same offences was accorded by the Railway Board and subsequently a charge-sheet was submitted against the petitioner, on the basis of which cognizance was taken by the Special Judge on the 31st May, 1969. It appears that after the decision of the Supreme Court as aforesaid, the sanction for the prosecution of the petitioner in respect of the same offences was accorded by the Railway Board and subsequently a charge-sheet was submitted against the petitioner, on the basis of which cognizance was taken by the Special Judge on the 31st May, 1969. The petitioner appeared before the Special Judge and on the 19th July, 1969, he filed a petition for dropping the proceeding, which was rejected1 on the 16th August. 1969. On the 15th September, 1969, the petitioner filed a-fresh petition to the same effect, but that was also rejected on the 22nd September, 1969. Thereupon the petitioner filed the present application in this Court on the 30th September, 1969. The present rule was issued by S.P. Singh J., on the 3rd October, 1969. 4. The main contention of Mr. B.C. Ghose who appears in support of this application is that in view of the decision of the Supreme Court referred to above a fresh prosecution of the petitioner with the previous sanction of the Railway Board is not justified. It is pointed out that the Supreme Court had merely set aside the conviction that had been recorded against the petitioner on the earlier occasion and had not directed a retrial. Therefore a fresh trial will mean an undue harassment to the petitioner who has been under suspension for nearly nine years now since 1964. Mr. Ghose has further argued that amount constituting the alleged illegal gratification was too trivial for an officer like the petitioner, who was then drawing a salary of about Rs. 600 per month, and it may well be that the Supreme Court did not give any direction for retrial of the petitioner in view of the provisions contained in Sub-Section (3) of Sec. 4 of the Act which reads : "Notwithstanding anything contained in Sub-Sections CD and (2), the Court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn. Mr. Mr. Ghose says that another reason why the Supreme Court did not give any direction for retrial in the instant case may have been that upon the views expressed by their Lordships on the merits of the case, a departmental action against the petitioner was likely to be taken, inasmuch as the petitioner had not been honourably acquitted so that the department was not debarred from punishing him and the petitioner stood to lose his job and also to forfeit his pension and gratuity. 5. In the light of these submissions of learned counsel for She petitioner I have carefully gone through the judgement of the Supreme Court reported in AIR 1968 SC 1292 : (1968 Cri LJ 1484) and I find that their Lordships set aside the conviction of the petitioner on the sole ground that there was no valid sanction for his prosecution as required by Sec. 6(1) of the Act. On the merits of the case, their Lordships observed that both the trial Court as well as the High Court which had accepted the prosecution evidence and rejected the defence version had given good reasons in support of the findings of fact reached by them. Their Lordships also considered the plea which the petitioner had Put forward in defence, namely that the Khalasi had returned the sum of Rs. 5 to the petitioner on the day of the occurrence which he had borrowed from the petitioner a few days earlier. In that context their Lordships observed at page 1296 of the report : "We next take up the question as to the scope of S. 4 of the Prevention of Corruption Act. As mentioned earlier, the appellant admits that the fact that he received a sum of Rs. 5 from P.W. 4 on March 14, 1961 Once that fact is admitted by him the Court has to presume unless the contrary is proved by the appellant that he accepted the sum in question as a motive or reward for issuing the fit certificate." Their Lordships then proceeded to consider whether the petitioner had succeeded in discharging the burden which lay upon him under S. 4(1) of the Act and pointed out that while under Sec.114 of the Evidence Act the Court had a discretion to draw a presumption or not under Sec. 4(1) of the Act, the Court was bound to draw the presumption mentioned therein. In this context their Lordships observed : "The presumption in question will hold good unless the accused proves the contrary. In other words, the burden of proving the contrary is squarely placed on the accused. A fact is said to be proved when after considering the matters before it the Court either believes it to exist or considers its existence was so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists. The proof given by the accused must satisfy the aforementioned conditions. It does not satisfy those conditions then he cannot be said to have proved the contrary." Observing further that the nature of the burden placed on the accused is not the same as that placed on the prosecution, their Lordships expressed themselves upon the merits of the petitioners case as follows : "In the instant case the evidence adduced by the appellant in support of his plea was not accepted by the trial Court as well as the High Court. Hence it must be held that he had not discharged the burden placed on him by law." 6. It is manifest that upon the views which their Lordships had thus expressed on the merits of the prosecution and the defence cases; they would have proceeded to uphold the conviction that had been recorded by the trial Court and upheld by this Court, but they were precluded from doing so for the simple reason that the prosecution of the petitioner had proceeded without a valid sanction under Sec. 6(1) of the Act. Dealing with the question of sanction, their Lordship observed at page 1297 as follows : "Without a valid sanction the Court had no jurisdiction to try the case. Hence, if the sanction accorded in this case is invalid, then the appellant is entitled to be acquitted." Ultimately their Lordships held that the Chief Medical Officer (P.W. 1) was not shown to be the appointing authority and, therefore, upon the materials placed before their Lordships, it was not possible to come to the conclusion that P.W. 1 was competent to grant sanction under Sec. 6(1) of the Act Finally, their Lordships concluded thus : "We accordingly allow this appeal and set aside the conviction of the appellant. He is on bail. His bail bond stands cancelled." 7. He is on bail. His bail bond stands cancelled." 7. It will be noticed that their Lordships gave no direction one way or the other in the operative part of their judgement as to whether there should be a retrial or not. In the Court below, however, the petitioner put forward the contention that a retrial was barred by reason of the provision contained in Sec. 403(1) of the Code of Criminal Procedure, Perhaps such a stand was taken there on behalf of the petitioner in view of the observations contained in the judgement of the Supreme Court referred to above to the effect that the original sanction being invalid, the petitioner was entitled to be acquitted. But this contention was rightly negatived by the learned Special Judge in view of the legal position which is well established that a trial without a valid sanction is void abimtio so that in such a trial the Court can neither convict nor acquit the accused. Realising this well-established legal position. Mr. B.C. Ghose who appeared for the petitioner in this Court, did not rely upon the rule of autrefois acquit contained in Sec. 403 of the Code. I would not, therefore, construe the judgement of the Supreme Court as amounting to an order of acquittal in favour of the petitioner. 8. The question still arises whether in the Circumstances of the present case the petitioner should be tried for the same offence on the footing that a valid sanction for his prosecution has since seen obtained. Having studied the judgement of the Supreme Court I am inclined to think that their Lordships did not contemplate that the petitioner should be subjected to a fresh trial. Otherwise their Lordships would have refrained from entering into a discussion on the merits of the prosecution and the defence cases and upholding the conclusion of the trial Court and of this Court arrived at on the previous occasion. Had any retrial been within the contemplation of the Supreme Court, then their Lordships would have set aside the conviction that had been recorded against the petitioner on the short ground that the earlier trial was without Jurisdiction on account of an invalid sanction. Had any retrial been within the contemplation of the Supreme Court, then their Lordships would have set aside the conviction that had been recorded against the petitioner on the short ground that the earlier trial was without Jurisdiction on account of an invalid sanction. It is a cardinal principle of criminal jurisprudence that where a retrial is contemplated, the superior Court refrains from pronouncing upon the merits of the prosecution or the defence cases while proceeding to direct a retrial because that would amount to loading the dice one way or the other. To illustrate my point, I wish to refer to the decision of the Supreme Court in Logendranath Jha V/s. Bolai Lal, AIR 1951 SC 316 : (52 Cri LJ 1248). In that case, the High Court had set aside the acquittal of the accused in exercise of its powers of revision under Sec. 439 of the Code of Criminal Procedure invoked by the private complainant. The High Court had held that there was no justifiable ground for rejecting the prosecution evidence and. that the acquittal was perverse and had ordered a retrial with a warning in the following terms : "I would, however, make it perfectly clear that when the case is retried, which I am now going to order, the Judge proceeding with the trial will not be in the least influenced toy any expression of opinion which I may have given in this judgement." Dealing with the matter, their Lordships observed as follows : "No doubt, the learned Judge formally complied with Sub-Section (4) by directing only a retrial of the appellants without convicting them, and warned that the Court retrying the case should not be influenced by any expression of opinion contained in his judgement. But there can be little doubt that he loaded the dice against the appellants, and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgement as to the credibility, of the prosecution witnesses and the circumstances of the case in general." It seems to me that the same principle should be extended to the instant case in the context of the observations made by the Supreme Court with respect to the merits of the prosecution and the weakness of the defence case. As already indicated earlier, their Lordships had upheld the findings of fact recorded by the trial Court as well as the High Court which had accepted the prosecution evidence and rejected the defence version by observing that both the Courts had given good reasons in support of the findings of fact reached by them. Proceeding further their Lordships had pointed out that the petitioner had not discharged the burden which lay upon him under S. 4(1) of the Act since the evidence which he had adduced in support of his plea had not been accepted by the trial Court or by the High Court. In the context these observations of the Supreme Court upon the merits of the prosecution and the defence cases, it is idle to think that the trial Court holding the retrial will approach the case with an open mind, totally uninfluenced by the expression of views contained in the judgement of their Lordships. In other words, the probabilities are that the contemplated retrial will be an idle formality culminating in the conviction of the petitioner as a result of findings of fact on the same lines as were upheld by this Court and approved by the Supreme Court on the earlier occasion. Quite apart from any question of harassment on account of a retrial, which has been raised before me by Mr. Ghose, I am of the opinion that this is a case in which for the ends of justice the petitioner ought not to be subjected to another trial on the same facts. Mr. Ghose has rightly urged that the petitioner can be sufficiently punished departmentally for his lapses in the discharge of his duties as a public servant. 9 Upon the facts and in the circumstances of the present case, I allow this application and quash the proceeding that is being taken against the petitioner in Special Case No. 33 of 1969.