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1981 DIGILAW 99 (ORI)

REPUBLIC OF INDIA v. KHAGENDRANATH JHA

1981-07-15

N.K.DAS

body1981
JUDGEMENT 1. The respondent in the Government Appeal and the appellant in the Criminal Appeal is the same person. For the sake of convenience he is referred to as 'accused'. The accused was the Agent, State Bank of India, Athgarh. He was charged under S.5(1)(d) read with S.5(2) of the Prevention of Corruption Act, 1947 and under S.120-B I.P.C. on the allegation that he agreed with one person to cheat the State Bank of India and ultimately cheated the Bank and allowed undue pecuniary benefit to one Ramesh Chandra Rai Samant. It is not necessary to state the facts in detail. The accused was acquitted of the charge under S.5(1)(d) read with S.5(2) of the Prevention of Corruption Act and he was convicted for offence under Ss.477-A and 120-B of the I.P.C. with sentence to undergo R. I. for two years on each count. The Government Appeal is directed against the order of acquittal of the offence under the Prevention of Corruption Act and the Criminal Appeal is directed against the conviction of the accused under the Penal Code. 2. Mr. Mohanty, the learned counsel for the accused, contends that there was no valid sanction for the prosecution of the accused and in absence of valid sanction, the entire prosecution is illegal and the court has no jurisdiction to try the case. He further submits that if the prosecution under the Prevention of Corruption Act fails he cannot be convicted of other offence, inasmuch as the case was tried by a Special Judge. 3. The trial court has held that the accused was not a public servant and there was no valid sanction. It is not disputed in this court that the accused was a public servant. According to S.21 of I.P.C. 'Public servant' denotes a person falling under any of the descriptions mentioned thereunder. In the category "Twelfth", it is provided that every person in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in S.617 of the Companies Act, 1956. Undisputedly the State Bank of India was established by the State Bank of India Act, 1955 and by virtue of the aforesaid provisions of the Penal Code the accused is a public servant. 4. It is contended that there has been no sanction for prosecution under prevention of Corruption Act. Undisputedly the State Bank of India was established by the State Bank of India Act, 1955 and by virtue of the aforesaid provisions of the Penal Code the accused is a public servant. 4. It is contended that there has been no sanction for prosecution under prevention of Corruption Act. According to S.6 of the Prevention of Corruption Act, sanction is mandatory for prosecution for offence under S.5(2) of the Act. In this case Ext. 40 is the sanction order which has been proved by P.W. 14. P.W. 14 has admitted that the accused is a Grade II Officer. From Ext. 40, it appears that the sanction has been given by the Local Board of the State Bank of India by virtue of S.50 of the State Bank of India Act with previous sanction of the Central Government. This is known as the State Bank of India General Regulations 1935. Chap. VI of the Regulations relates to Central Board and its Executive Committee and Chap. VII relates to Local Boards and their committees. Regn, 55 of the Regns. comes under Chap. VI of the Regulations, Regn. 55 provides : "(1) Save as provided in Sub-Section (2), and as may be directed by the Central Board, a Local Board may exercise all the powers of the State Bank in respect of the staff serving in the areas in its jurisdiction. (2) (a) The initial appointment of officers of all categories shall be made by the Executive Committee. Such officers shall not be dismissed from the service of the State Bank except by the Executive Committee. x x x x" Under Chap. VI, Regn. 46 provides the constitution of the Executive Committee and its powers. This Regn. 46 relates to Central Board only. It would thus appear that there is an executive committee of the Central Board. There is no provision in Chap. VII which relates to Local Boards and their committees. There is no provision for any executive committees. The ultimate result is that the executive committee of the Central Board is entitled to appoint and dismiss officers of all categories of the State Bank of India and the Local Body has no such power. No materials have been placed before the trial court to show that this regulation has been changed or modified. The ultimate result is that the executive committee of the Central Board is entitled to appoint and dismiss officers of all categories of the State Bank of India and the Local Body has no such power. No materials have been placed before the trial court to show that this regulation has been changed or modified. In view of such clear provision in the regulation, it is mandatory that the Executive Committee is the authority to dismiss the officers which includes the present accused. Therefore sanction for prosecution for offence under the Prevention of Corruption Act is to be accorded by the Executive Committee and that will be a proper sanction in the eye of law. In the instant case the sanction has been accorded by the Local Board. Nothing has been placed before me to indicate that the Local Board is in any way authorised under the Act or under the Regulations to accord sanctions or to dismiss an officer. In view of this position, the sanction accorded in the present case cannot be said to be valid in the eye of law and it would be deemed that there has been no sanction for prosecution. In absence of sanction, the prosecution becomes illegal and, as such, the entire prosecution is vitiated and is not valid. The ultimate conclusion would be that there has been no prosecution at all and the order of acquittal stands. Accordingly, there is nothing to interfere in the Government Appeal. 5. The next contention on behalf of the accused is that as the prosecution for offence under the Prevention of Corruption Act fails and as the case was tried by a Special Judge, the conviction under Ss.477-A and 120-B, I.P.C. arising out of the same matter or the allegation cannot be sustained. In Ramautar Mahton v. The State, AIR 1961 Pat 203 : (1961 (1) Cri LJ 694), it has been held by a Division Bench that the proceeding before a Special Judge in a case relating to an offence under S.5(2) of the Prevention of Corruption Act, 1947 is no trial at all when there is no valid sanction under S.6 of that Act. In such a case the Special Judge has no jurisdiction under S.7(3) of the Criminal Law Amendment Act, 1952 to try the offence under S.409 of I.P.C. also. The trial for that offence being without jurisdiction is nullity and void. In such a case the Special Judge has no jurisdiction under S.7(3) of the Criminal Law Amendment Act, 1952 to try the offence under S.409 of I.P.C. also. The trial for that offence being without jurisdiction is nullity 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 judgement which he was trying under S.7(1) of the Act. A Division Bench of the Gujarat High Court in Sahebkhan Umerkhan v. The State, 1963 (2) Cri LJ 556 has also held that if the Special Judge has no jurisdiction to try an offence punishable under S.5(2) of the prevention of Corruption Act, he has no jurisdiction to try the other allied offences, such as one under S.409 I.P.C. for which power has been conferred upon him under Sub-Sec. (3) of S.7 of the Criminal Law Amendment Act, 1952. The Gujarat High Court has followed the aforesaid Patna decision. In view of the aforesaid position of law, I am to hold that the Special Judge had no jurisdiction to try the case and the entire prosecution was illegal. Therefore, the conviction of the accused under S.477-A and S.120-B of the I.P.C. should be deemed to be null and void and amounts to no conviction in the eye of law. 6. In view of the aforesaid findings, the entire prosecution, out of which both the Government Appeal and Criminal Appeal arise, is void and non est. Both the appeals are, therefore, disposed of accordingly. The conviction of the appellant under Ss.477-A and 120-B of the I.P.C. is set aside. The Govt. Appeal is dismissed and the Criminal Appeal is allowed. Order accordingly.