JUDGMENT : ( 1. ) THE appellant Jagdish Prasad Namdeo Had preferred this appeal against the judgment, dated 27-2-1984, in Special Case No. 2/83 by Shri N. G. Karambelkar, Second Addl. Sessions Judge, Ujjain convicting dim, firstly under section 161 Indian Penal Code and secondly under section 5 (1) (d) read with 5 (2) of the prevention of Corruption Act (for short Act), and sentencing him to one yearss R. I. on each count, and furthermore a fine of Rs. 100/- on the second count, with directions that substantive terms of imprisonments shall be concurrent and that in default of payment of fine, he shall undergo S. I. for one month. However, the above said appellant namdeo, died during the pendency and Smt. Jamnabai, the widow, vide Orders dtd. 14-1-1987, was granted leave under section 394 (2) Criminal Procedure Code to continue this appeal. ( 2. ) IT is common ground that the appellant Namdeo, a Sub-auditor in the department of Co-operative Societies, previously posted, as such at Bhopal, was transferred, in the same capacity, to Ujjain vide Order dtd. 4-6-1974 (Ex. P-14. A ). Since then he was sub-auditor in the office of Deputy Registrar, Co-operative Societies, ujjain. As such he was a public servant. The appellant, pursuant to the Orders (Ex. P-15 (A)dtd. 2-8-1979 had audited the accounts of chandukhedi Dugdh Sahakari Samiti for the period 1-7-1979 to 30-6-1980 on 16th and 17th January i981 and had prepared Audit report dtd. 17-1-1981 (Ex. P-5) which admittedly had been seized from him. Undisputedly at the relevant time, the complainant Premnarain Tiwari (PW. 1) was secretary in the above said Society whose accounts were audited. The appellant namdeo had a Khata with Hotchand Singh (PW. 2) as the former used to purchase kirana articles from the latter, on credit. ( 3. ) (i) According to the prosecution, the appellant during audit detected an embezzlement of a sum of Rs. 2000/- and therefore he told the complainant Tiwari (PW. 1)that if he is paid Rs. 100/- he (appellant) will drop/delete that objection from the audit report. Several times demand wad made, but the complainant did not oblige the appellant, saying that he (PW. 1) has not committed any embezzlement. Ultimately, on 2-2-1981 the complainant assured to pay Rs. 100/-in the evening at the residence of the appellant. 1)that if he is paid Rs. 100/- he (appellant) will drop/delete that objection from the audit report. Several times demand wad made, but the complainant did not oblige the appellant, saying that he (PW. 1) has not committed any embezzlement. Ultimately, on 2-2-1981 the complainant assured to pay Rs. 100/-in the evening at the residence of the appellant. The complainant was unwilling to pay the illegal gratification hence he went to Superintendent, S. P. E. Indore and gave a Written complaint (Ex. P-2) saying that he is desirous of getting Namdeo trapped red-handed. S. P. , S. P. E. Indore ordered babusingh Inspector (PW. 10) to take necessary action. The complaint (Ex. P-2) was received by Babusingh Inspector (PW. 10) at about 2 Oclock the same day i. e. on 2-2-1981. . (ii) Thereafter, Babusingh accompanied by Divisional Inspector Bhanwar (PW. 9), Constables Hariprasad Malviya (PW. 3), Amarsingh, Laxminarayan and driver mulchand and the Complainant (PW. 1) went forthwith in a Jeep to Ujjain. Babusingh applied to the D. A. to the Commissioner (Ex. 11) and Shri Kapur Deputy Collector (PW. 6) was asked to join the trap party (Endt. A to A on Ex. P-11 ). This was at 345 p. m. at the Kothi Palace where the Collectorate and other offices are located. It is said that an attempt was made to get Panchas, but as none was available, Shri Kapur (PW. 6) and raghunath a peon of the Collectorate (PW. 5) were made Panchas. They were apprised of the contents of the written complaint (Ex. P-2 ). The complainant gave two currency notes each of Rs, 50/-demonination, and their numbers were noted in the Panchanama. The Constable driver Mulchand treated the notes with Phenolphthalein powder. A personal search of Tiwari Complainant was also taken and nothing was found on his clothes. Mulchand therefore, put those two notes in the left breast-pocket of the bush shirt worn by the complainant and the latter was explained that he will not touch those notes except on the occasion of giving the bribe. (iii) It is further alleged, that during the preliminary proceedings, Mulchands fingers were washed with a glass having Sodium Carbonate and the solution turned pink. A part of this washing was kept duly sealed with the Signatures of panchas thereon. (iii) It is further alleged, that during the preliminary proceedings, Mulchands fingers were washed with a glass having Sodium Carbonate and the solution turned pink. A part of this washing was kept duly sealed with the Signatures of panchas thereon. The complainants fingers were also Washed in the solution of Sodium carbonate but there was no change of colour. The hands of others to be included in the raid party were washed with water. Portions of Sodium Corbonate and Phenolphthalein powder were taken in different PUDIAS and kept in envelopes duly sealed and attested by Panchas. Babusingh (PW. 10) who headed the raid-party had also washed his hands. After this demonstration preliminaries, all were told that anyone who would touch or handle the notes and the finger on being washed with solution of Sodium Carbonate the colour would turn pink. The complainant was asked to signal the raid-party on handing over the bribe by wiping his face with a Kerchief. A Panchanama (Ex. P-3) was drawn about those preliminaries. (iv) It is alleged that after the above said preliminaries at Kothi Palace (offices), the raid party which included the complainant Tiwari (P. W. 1), Babusingh Inspector (P. W. 10), Shri Kapoor Dy. Collector (PW. 6), Raghunath Peon (PW. 5), Govindram bhanwar Inspector (PW. 9), Hariprasad (PW. 3), Constables Amarsingh, Laxminarain and Mulchand Driver left at 17. 15 hrs. in a Jeep arid arrived at Mahkal Choraha at 17. 45 p. m. The complainant (PW. 1) then proceeded to the house of the accused/appellant followed at some distance by members of the party. It is alleged that at about 6. 00 p. m. the complainant was told by the wife of the appellant that the latter has gone to Saba mandi Market Choraha to fetch vegetables. On that information the party members spread themselves and followed the complainant towards Sabzi Mandi. That complainant met the appellant in Sabzi Mandi at about 6. 30 p. m. Thereafter while the appellant and the complainant were returning together to go to the appellants house on the way the appellant stopped at the Kirana Shop of Hotchand Sindhi (PW 2) situated in lakherwadi Mohalla. It is said that at that shop the appellant asked the complainant for money. The complainant (PW. 1) handed over the two currency notes to the appellant who gave them to Hotchand (PW. It is said that at that shop the appellant asked the complainant for money. The complainant (PW. 1) handed over the two currency notes to the appellant who gave them to Hotchand (PW. 2) saying that this be adjusted in his previous credit-account. Hotchand (PW. 2) put those notes in the counter called GALLA and returned a balance of Rs. 27/ -. (v) It is alleged that (hereafter the appellant just left Hotchands shop saying that he would soon return to make purchases. On complainants signal other members of the party who were at close distances, went closer. Hariprasad (PW. 3) and Bhanwar (PW. 9) caught hold of the elbows of the appellant. After disclosing their Identity, Amarsingh brought clean water in glasses and solutions of Sodium Carbonate were prepared. The appellants hands were washed and the colour of Solution turned pink. Similarly, the hands of the complainant and thereafter, that of Hotchand Sindhi (PW. 2) were also washed in solutions of Sodium Carbonate with the same results. Parts of washings of each were put in different bottles, labelled and signed by witnesses. (vi) It is alleged that Hotchand (P. W. 2) on being asked to give the two currency notes given by the appellant picked up those notes from the counter and their numbers were tallied. Those two notes were thus seized and sealed in an envelope. Hotchand (P. W. 2) also gave the scripts of appellants credit account (Ex. P-6) which were seized by police. It is said that on payment towards credit transactions such KHATA (on plain papers) used to be returned to the appellant who used to then tear them. On that day, hotchand is said to have credited Rs. 73/- towards the balance due, and had returned rs. 27/- to the appellant, which, amount was also seized from his person. The police, thereafter, released the appellant on bail bonds. (Panchnama relating to Trap, Marked (vii) Then the Police obtained the Audit Inspector Note (in triplicate) from the appellant from his house (Seizure Memo Ex P-8 ). After those proceedings Dehati. Nadshi Ex. P-12, was written and offence registered (Ex. P-13 ). Inspector Babusingh during investigations recorded the statements of witnesses. The opinion of C. E. , F. S. I. Sagar was also obtained (P-16 ). Case diary and other papers were sent and Sanction order (Ex. P-9) was obtained. After those proceedings Dehati. Nadshi Ex. P-12, was written and offence registered (Ex. P-13 ). Inspector Babusingh during investigations recorded the statements of witnesses. The opinion of C. E. , F. S. I. Sagar was also obtained (P-16 ). Case diary and other papers were sent and Sanction order (Ex. P-9) was obtained. Ultimately, upon these allegations the appellant was charge sheeted. ( 4. ) THE accused/appellant denied both the charges and stated that the complainant has falsely implicated him. In his comprehensive and fairly lengthy statement under Section 313 Criminal Procedure Code stated that the complainant did meet him that evening but the place was "m. P. Masala Bhandar" where he had purchased chillies worth Rs. 3/ -. That, it is there when the complainant Tiwari (PW. 1)unsuccessfully tried to put fifty rupees notes in his hands which he returned. That he even scolded him that the complainant still persisted and therefore, he pushed him aside; that Mirchiwala enquired and appellant told him that this person (complainant) is giving the amount which he does not want to take. That thereafter, the appellant proceeded towards His house, and even on the way the complainant tried to forcibly make the payment but he shook him off. That he did visit Hotchands shop where he purchased tea and sugar, and paid Rs. 20/- and got some change. Hotchand gave him rs. 5/ -. That thereafter, he had already gone to his house when the complainant came and said that he has not taken the money but atleast, he may have tea with him. That when he went from his house outside, Bhanwar (PW 10) and complainant (P. W. 1)forcibly took him to Hotchands shop on pretext of having tea, and demanded from hotchand the notes (allegedly) given by appellant. That, Hotchand denied any notes being given by appellant. That thereafter Hotchand produced THREE notes of Rs. 50/-denominations, then the numbers were tallied and washings were taken. That, either the complainant or someone else had asked for some change and that is how the currency notes were received by Hotchand. That, Kapoor and Raghunath had arrived at Hotchands shop much after the recovery of notes etc. That, on that date he had paid rs. 150/- in his credit KHATA and the dues against him were Rs. 73. 87 paise. The accused examined DW. That, Kapoor and Raghunath had arrived at Hotchands shop much after the recovery of notes etc. That, on that date he had paid rs. 150/- in his credit KHATA and the dues against him were Rs. 73. 87 paise. The accused examined DW. 1 Abdul Sattar, Proprieter of M. P. Masala Bhandar and DW. 2 gopaldas in support of defence version. ( 5. ) THE learned trial Court after elaborate discussion of evidence, found the appellant guilty on both the charges, and sentenced him as referred earlier. ( 6. ) THE principal points for consideration are :- (i) Whether the appellant is guilty of criminal misconduct in discharge of official duty in obtaining illegal gratification of Rs. 100/- from the complainant ? (ii) Whether in the above circumstances, presumption envisaged under section 4 of the Prevention of Corruption Act 1947 is attracted ? (iii) Whether the appellant has been falsely implicated as stated by defence ? (iv) Whether the previous sanction Ex. p. 9 obtained in this case for prosecution under section 6 of the Act is proper ? (v) Conclusions from the above. ( 7. ) POINTS Nos. 1 to 3: on a perusal of the record I find that the evidence of P. W. 1 Tiwari (complainant), P. W. 2 Hotchand Sindhi, P. W. 3 Hariprasad, P. W. 5 Raghunath peon, P. W. 6 Shri Kapoor, Dy Collector, P. W. 9 Govindrao Bhanwar and P. W. 10 Babusingh, I. O is material on the above aspects, which have to be evalusted in context of the evidence of DW. 1 Abdul Sattar and DW. 2 Gopaldas. PW. 1 Tiwari has deposed that the accused, on several occasions, demanded Rs. 100/-and as he was unwilling to oblige the accused, he ultimately rushed to S. P. , SPE (Vig.), Indore, and gave a written complaint Ex. P. 2. Premnarain Tiwari (P. W. 1) has given details about the preliminaries prior to arranging the trap, and the departure of the raid party. P. W. 3 Hariprasad, P. W. 6 Shri Kapoor and P. W. 10 Babusingh have also deposed, and that part of the prosecution story is not controverted. P. 2. Premnarain Tiwari (P. W. 1) has given details about the preliminaries prior to arranging the trap, and the departure of the raid party. P. W. 3 Hariprasad, P. W. 6 Shri Kapoor and P. W. 10 Babusingh have also deposed, and that part of the prosecution story is not controverted. P. W. 1 Tiwari further deposed, that the appellant was not at his house, and being told by his wife that he had gone to Subzi Mandi to fetch vegetables, the raid-party "proceeded towards Mandi (paras 10 to 15 of P. W. 1 ). On meeting the accused in Sabzi Mandi, he told PW. 1 that "i have already purchased the vegetables and let us go to my house". However, on their way, the accused stopped at a sindhis shop, in Lakherwadi, and said "lao PAISE LAO", and PW. 1 gave two notes to the accused Namdeo. Thereafter, accused gave those two notes to the shopkeeper (i. e. Hotchand), saying, "yeh LO PAISE. MERE PURANEY HISAB ME JAMA KAR DO, aur BAKEY PAISE WAPAS KARO". The shopkeeper took those notes, put them in the till, and returned the balance; The accused told the shopkeeper that he would shortly return for shopping, and left. P. W. 1 gave the predetermined signal and the accused was thereafter caught Thus, I find that the main allegations narrated in para 3 (iv) to (vii) earlier, are fully testified by P. W. 1 Tiwari, and his evidence further finds, corroborated in the statements of P. W. 3 Hariprasad, P. W. 6 Shri Kapoor, P. W. 9 bhanwar and P. W. 10 Babusingh, which need not be repeated. ( 8. ) THE learned counsel has relied upon the evidence of P. W. 2 Hotchand and p. W. 5 Raghunath. Both have been confronted with their police statements marked Ex. P. 7 and P. 10 respectively and cross-examined by the prosecution. The learned trial court has rightly disbelieved parts of their evidence. He has rightly believed parts of their narrations which support the prosecution case (Refer : Prafulla Kumar vs. Emp. AIR 1931 Cal. (F. B.) page 407, approved in Sat Pauls case 1976 MPLJ page 206 and narain Nathu Naith vs. Maharashtra AIR 1971 SC 1655 ). The learned trial court has rightly disbelieved parts of their evidence. He has rightly believed parts of their narrations which support the prosecution case (Refer : Prafulla Kumar vs. Emp. AIR 1931 Cal. (F. B.) page 407, approved in Sat Pauls case 1976 MPLJ page 206 and narain Nathu Naith vs. Maharashtra AIR 1971 SC 1655 ). P. W. 2 Hotchand would have us believe that either the complainant or the some stranger, just before the recovery of notes from his GALLA had given these for a change, and that the accused had purchased tea and sugar against cash. But P. W. 2 admits that in the credit KHATA, the accused, on 1st Jan. 81 had paid Rs. 150/- and on 2-2-81, a sum of Rs. 73. 67 was outstanding. That is how when Rs. 100/- were paid at the time of incident, Hotchand returned Rs. 27/- (Rs. 100 - 73. 67 p.) to the accused, which soon after have been seized by Police from his person. P. W. 2 admits that KHATA PARCHI had been seized from him. ( 9. ) P. W. 5 Raghunath, according to the learned counsel Shri Ukas, along with p. W. 6. Kapoor had lost track of the accused and complainant, and by the time they arrived at Hotchands shop, trap and its aftermath were over. While trying to re-enact the scene, we can visualize the members of the raid-party shadowing the complainant. But though they were in civies they had maintained reasonably safe distances from the complainant. Obviously, they would be scattered. That is why they were unable to overhear the talks between PW. 1 and accused, which is natural. Trial Court has noted the demeanour of P. W. 5 Raghunath, and bearing in mind the convincing evidence of p. W. 6 Kapoor, Raghunaths narration has been rightly discarded. There is threadbare discussion of the above evidence and that of two defence witnesses in the judgment by learned Trial Court (paras 12 to 16), and further reference would be just repetition. Suffice to state that the prosecution has proved, beyond doubt, that two currency notes of Rs. There is threadbare discussion of the above evidence and that of two defence witnesses in the judgment by learned Trial Court (paras 12 to 16), and further reference would be just repetition. Suffice to state that the prosecution has proved, beyond doubt, that two currency notes of Rs. 50/-denominatons each, which were earlier treated with Phenolphthelein powder were given by P. W. 1 to the appellant, and the latter, in trun, gave them to P. W. 2 hotchand, saying, that the sum be adjusted in credit KHATA and change be returned; and accordingly; P. W. 2 Hotchand put the notes in the GALLA and returned Rs. 27/- to accused. Hence legal presumption enjoined in S. 4 of the Act arises, which I find unrebutted, and therefore, accused has been rightly held guilty of criminal misconduct in taking an illegal gratification of Rs. 100/- ( 10. ) SANCTION : Arguments relating to the merits and demerits referred above were feeble. But the principal attack veers around tile validity of sanction under section 6 of the Act. In the instant case it is vehemently argued that P. W. 4 Shri R. P. Shukla: DSP (Vig.) had deposed that the papers relating to sanction were sent by his predecessor and therefore, he does not know much more about this aspect. It is said that Shri K. S. Shrivastava, Deputy Secretary, who has signed the sanction, has also not been examined. There is no quarrel with the well settled propositions : that "burden" of proving that requisite sanction has been obtained is on the prosecution; that, such sanction is a "condition precedent" to the institution of prosecution; that, it is not an "idle formality" that the prosecution has to prove that all materials have been placed before sanction was accorded; that, facts should be referred to in the sanction itself, nonetheless, if they do not appear on the face of it, the prosecution must establish aliunde by evidence, that those facts were placed before the sanctioning authority (referred Major Somnath vs. Union of India, AIR 1971 SCp. 1910, Gokulchand Dwarka das Morarka vs. State AIR 1948 PC. p. 82, Madan Mohan Singh vs. State of UP. AIR 1954 SC p. 637, Jaswantsingh vs. State of Punjab AIR 1958 SC 124 ). ( 11. ) APPLYING those tests, I find that this part of criticism must fail. 1910, Gokulchand Dwarka das Morarka vs. State AIR 1948 PC. p. 82, Madan Mohan Singh vs. State of UP. AIR 1954 SC p. 637, Jaswantsingh vs. State of Punjab AIR 1958 SC 124 ). ( 11. ) APPLYING those tests, I find that this part of criticism must fail. P. W. 10 -Bherusingh (para 13) states, that case diary and all papers were sent to Law Department before sanction Ex. P. 9 was received. P. W. 11 Shri Jugad Asst. in Law Department has proved that Ex. P. 9 bears the signature of Shri K. S. Shrivastava, Deputy Secretary, He has often seen him sign papers. He has stated, that papers were received from Vigilance department and Ex. P. 9 bears the official seal. Sanction order, which is in 4 typed-written pages states, all the materials and circumstances. It is a speaking order. Thus, ex-facie it appears that there has been proper application of mind. ( 12. ) PAUSING here, I may refer to Art. 166 of the Constitution of India, which is as follows:- " (1)All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the governor, shall be authenticated hi such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on tile ground that it is not an order or instrument made or executed by tile Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among ministers of the said business is so far as it is not business with respect to which the Governor is by or under this Constitution to act in his discretion. " ( 13. ) I may further refer to M. P. Government Business (Allocation) Rules (for short, Rules) Bhopal, 26th Sept. 1957, framed under Cls. 2 and 3 of Art. 166 referred earlier : rule 6: Where a statute requires an order to be signed by a secretary without defining that term, signature by an Under-Secretary or any other secretary authorised by the Rules of Business would suffice. " ( 14. 1957, framed under Cls. 2 and 3 of Art. 166 referred earlier : rule 6: Where a statute requires an order to be signed by a secretary without defining that term, signature by an Under-Secretary or any other secretary authorised by the Rules of Business would suffice. " ( 14. ) REVERTING to provisions contained in Art. 166 in ILR 1973 A. P. 64, it was observed : "if the sanction accorded by the State Government under section 6 of prevention of Corruption Act is in accordance with provisions of Article 166 (1) of the Constitution, and it is duly AUTHENTICATED as per the provisions of Art. 166 (2) as specified in the Rules framed under Art. 166 (3), the constitution accords, total and absolute immunity to such an instrument expressed in the name of the Governor, and it cannot be called in question on the ground that it is not ah order or instrument made or executed by the governor. However, the immunity under Article 166 (2) is only to a limited extent. It does not prevent the accused from challenging the validity of the said order on the ground that such an order was not based on the satisfaction of appropriate authority. " But in view of what has been stated in paras 10 and 11 earlier, to repeat, there is no lacuna in the sanction on the ground that "order was not based on the satisfaction" of the appropriate authority. ( 15. ) NEXT it is contended, that the sanction order is vitiated, in as much as, the Law Department was not the "competent Authority" under the M. P. Government Business (Allocation) Rules 1957 (as amended ). The learned counsel Shri Ukas referred some decisions and strongly relied upon a decision of this Court State of M. P. vs. Shricharan misra, Criminal Appeal 463/82 decided on 12-2-86, which are discussed hereafter : in State of Haryana vs. N. C. Tandon AIR 1977 SC p. 1793, the sanction was accorded by Chief Engineer, N. W. Zone, Chandigarh. The High Court had held, that on the relevant date when sanction order was passed C. E. N. W. Zone had no plenary or delegated power to appoint to a post and that such powers was delegated to Chief Engineers of Zones, for the first time, on a subsequent date. The High Court had held, that on the relevant date when sanction order was passed C. E. N. W. Zone had no plenary or delegated power to appoint to a post and that such powers was delegated to Chief Engineers of Zones, for the first time, on a subsequent date. It was held, that the authority competent to appoint respondent-accused, on the relevant date, was Chief Engineer, WESTERN command, SIMLA, and NOT Zonal Chief Engineer. Order was held bad in law. In State of Rajasthan vs. Dr. A K. Datta AIR 1981 SC p. 20=1980 CR. L. R. 676 the respondent was an employee in Zoological Survey of India, at Jodhpur. The High Court found, that prior to the amendment, the Competent Authority to accord sanction for offences investigated by Delhi Special Police Establishment was the Department of personnel (Karmik Vibhag), Cabinet Sacretariat, where such sanction was required to be given by Central Govt. In that case offences were investigated by the SPE, Jaipur. The High Court had held, that in the absence of any sanction by the Ministry of education or by Department of Personnel (Karmik Vibhag), the Sp. Judge had no jurisdiction, and for reasons stated in the decision, the Supreme Court declined to interfere. ( 16. ) THE decision strongly relied upon by the learned counsel is Criminal Appeal 463/82 (State of M. P. vs. Shricharan Misra, decided on 12-2-86), with particular references to paras 6 to 10 thereof. Therein, as in the instant case, the learned, government Advocate placed reliance on amendment in the Business (Allocation)Rules, introduced vide Notification No. 2980-3632-1 (1), dated 18th Nov. 1983 (Gazette, dated 18-11-1983 page 3038 ). By amendment power to accord sanction under S. 197 criminal Procedure Code was included by the Rules. In this case, further Amendments in the Schedule to the Rules have been effected, vide Notification No. F-A-1-15-83-I bhopal, dated 17-1-86 (published in Extra-ordinary Gazette of the even date ). It now reads as follows : "criminal Procedure, including all matters in the Code of Criminal procedure, 1973 except probation of offenders, sanction of prosecution under section 197 of the Code of Criminal Procedure, 1973 and S. 6 of the prevention of Corruption Act, 1947. It now reads as follows : "criminal Procedure, including all matters in the Code of Criminal procedure, 1973 except probation of offenders, sanction of prosecution under section 197 of the Code of Criminal Procedure, 1973 and S. 6 of the prevention of Corruption Act, 1947. "sanction of prosecution under section 197 of the Code of Criminal procedure, 1973 and S. 6 of the Prevention of Corruption Act, 1947 in respect of the members of the services with which the department is concerned. " ( 17. ) IN the case before me, the sanction is dated 1-24983; the amendments are respectively, dated 18-11-1983 and 17-1-1986, and most respectfully agreeing with the above decision, I am also of the view that those amendments cannot be given retrospective effect to validate the sanction given on 1-2-1983. However, in my view, that decision is distinguishable. ( 18. ) (i) The crux of the controversy is cribbed and confined : whether under the rules, as unamended, the Law Department, had the power to accord sanction ? (The schedule to the Rules refers to the serial numbers in the Legislative List in the Seventh schedule to the Constitution of India ). (ii) In the Schedule to rules, LAW DEPARTMENT is mentioned under the Head xxi/a, and under the headingb, Item No. 2 reads : "criminal LAW - including all matters included in the Indian Penal code"; item No. 3 reads : "criminal PROCEDURE, including all matters included in the Code of criminal Procedure". (iii) The Serial Numbers in the concurrent List III in the 7th Schedule to the constitution corresponding to these Items are : item No. 1: "criminal Law, including all matters included in the Indian Penal code at the commencement of this Constitution, but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of Naval, Military or Air Forces or any other armed forces of the Union in aid of Civil power. Item No. 2: "criminal Procedure, including all matters included in the Code of Criminal Procedure at the commencement of the Constitution. Item No. 2: "criminal Procedure, including all matters included in the Code of Criminal Procedure at the commencement of the Constitution. " (iv) Thus, expressions and terminology used in Rules, to some extent, are similar: "criminal Procedure,, including all matters in the Code of Criminal procedure, 1973 except probation of offenders, sanction of prosecution under s. 197 of the Code of Criminal Procedure, 1973, and S. 6 of the Prevention of corruption Act, 1947. "sanction of prosecution under section 197 of the Code of Criminal procedure, 1973 and S. 6 of the Prevention of Corruption Act, 1947 in respect of the members of the services with which the department is concerned. " ( 19. ) IN the items referred in 7th Schedule to Constitution, as also in the Rules, the expression including has special significance. In Principles of Statutory Interpretation by Hon. G. P. Singh, Third Edn. at pages 138 to 142, it has been observed : "the definition of a word in the definition section may either be restrictive of its ordinary meaning, or it may be extensive of the same. When a word is defined to mean, such and such, the definition is prima-facie, restrictive and exhaustive, whereas, where the word defined is declared to include such and such, the definition is, prima facie, extensive. Further, a definition may be in the form of means and includes where again the definition is exhaustive; on the other hand, if a word is defined to apply to and include, the definition is understood as extensive "______". The definition may be both inclusive and exclusive i. e. it may include certain things and exclude others. In such a case limited exclusion of a thing may suggest that the other categories of that thing, which are not excluded, fall within inclusive definition. " ( 20. ) AGAIN in Shorter Constitution of India, by D. D. Basu, 9th Edition, at p. 959, under the heading list III-Concurrent List the scope and ambit of the expressions in items 1 and 2 has been stated as follows : "scope of the present Entry : "the present Entry does not seek to define criminal Law. It first enlarges the ambit of the expression by including in it all matters included in the Indian penal Code (1860), and then excludes from such enlarged ambit all offences against law coming under Lists I and II. It first enlarges the ambit of the expression by including in it all matters included in the Indian penal Code (1860), and then excludes from such enlarged ambit all offences against law coming under Lists I and II. The reason for this exclusion is, that offences against laws with respect to a matter specified in List I or II are given a place in Entry 93 of List I and Entry 64 of List II, respectively. including all matters included in the Code of Criminal Procedure - The word "including" is a word of enlargement, and not restriction. Hence, all matters included in the Code of Criminal Procedure at the date of commencement of the Constitution, whether they relate to procedure or to substantive right, would be concurrent legislative subject. Investigation of offences is included in the present Entry. " (Also refer G. V. Romanian vs. Supdt Central Jail, 1974 SCC (3)p. 531 at 535 para 14, and Constitution of Law of India, by H. M. Seervai, Vol. II Third Edn. p. 2122 ). ( 21. ) IN my opinion, the expression "criminal Law" would include all offences relating to act, of Commissions or Omissions, which are punishable. Any other restrictive interpretation would lead to anomalous consequences. According to strouds Judicial Dictionary, IVth Edition Vol. I: cri. Law means :-the Criminal Law may be defined as body of law whether dealing with mala- of when is a crime or an offence punishable by Criming Proceeding. " true, Prevention of Corruption Act is a special statute. It is species of the genus "criminal Law", whereas the matters relating to sanction under section 6 would be a subject falling under "criminal Procedure". The expressions criminal Law and "criminal Procedure" referred in the schedule to the Constitution, as well as in the schedule under allocation rules, are general expressions of wider import which need to be given large and liberal constitution. Under "criminal Law" oeas the matters relating to sanction under section 6 would be a subject falling under "criminal procedure". The expressions criminal Law and "criminal Procedure" referred in the Schedule to the Constitution, as well as in the schedule under allocation Rules, are general expressions of wider import which need to be given large and liberal constitution. Under "criminal Law" or "criminal procedure" powers regarding sanction are subsidiary and ancillary powers. The expressions criminal Law and "criminal Procedure" referred in the Schedule to the Constitution, as well as in the schedule under allocation Rules, are general expressions of wider import which need to be given large and liberal constitution. Under "criminal Law" or "criminal procedure" powers regarding sanction are subsidiary and ancillary powers. So far as the subsequent amendments, effected twice, are concerned, if this interpretation is accepted then they were unnecessary. May be, they have been added by way of abundant caution, or clarity, or for removal of doubts. ( 22. ) (a) Furthermore, under the said rules it cannot be said that after delegation of power, the Governor has exhausted his own powers, and therefore no order could be passed in the name and by order of the Governor. In State vs. Mehta Rasiklal AIR 1954 saurashtra p. 52, the sanction by Raj Pramukh was challenged on the ground that person who was authority to remove was Chief Engineer, hence, the competent authority. The accused was a junior Clerk, removable by Chief Engineer. It was held, that the authority of appointment or removal was not stated to be vested in the Chief engineer by any statute by Departmental orders, where any power delegated is in fact exercised by the subordinate, it would be binding upon the Raj Pramukh. But so long as there is no exercise of such power the Raj Pramukh exercises the same powers himself on the general law that a principal can always exercise the power which he delegated to his Agent. If the principal can revoke the authority to the Agent, the Raj Pramukh could, at any moment, put an end to the delegation to the Authority to the Chief engineer, and he could invest any other Officer with this power or could reserve them for himself. The sanction by Raj Pramukh was held valid. (b) In State vs. Yeshpal AIR 1957 Pun. 91 - The AIG, who ranked with SP, was appointing authority. But the sanction was given by DIG i. e. authority higher in rank than SP. It was held, the sanction did not contravene Section 6 (l) (c) of Prevention of corruption Act. (c) In Sampuran Singh vs. State of Punjab ( AIR 1982 SC 1407 ), Section 6 (1) (c) has been considered in context of Art 311 (1) of the Constitution. It was held, the sanction did not contravene Section 6 (l) (c) of Prevention of corruption Act. (c) In Sampuran Singh vs. State of Punjab ( AIR 1982 SC 1407 ), Section 6 (1) (c) has been considered in context of Art 311 (1) of the Constitution. Therein, accused was sectional Officer (Overseer) in the Punjab PWD. The appointing authority was Chief engineer. The sanction was given not by Chief Engineer, but by Chief Minister holding the port-folio. The sanction was held, valid. (d) In State of Maharashtra vs. Govind Purushottam 1974 Cri. LJ. Bom. Page 18 -The Registrar Co-operative Societies refused to give Sanction. It was held, that on his refusal the State Government could review and accord sanction under Section 6 (1) (c ). ( 23. ) FURTHERMORE, the Rules of business under Article 166 (3) are merely "directory" and therefore, their "substantial compliance is sufficient". In the instant case, the Rules under Heading Law Department - B items 2 and 3 are general expressions of wide amplitude, but under - C items 5,8,11 are allied subjects. Rules 3 to 7 have to be read together. I find, therefore, that order of the Governor has been duly authenticated. Furthermore, no objecting question was raised during trial about the "appointing Authority". Appointment order was with the accused also. Under section 3 of M. P. Cooperative Societies Act, the State seems to be the competent authority. ( 24. ) TO reiterate, the order sanctioning the prosecution under section 6 (l) (b) and (c) of the Prevention of Corruption Act has been passed by State Government in the name and by the order of the Governor. There is no contravention of Article 311 of the constitution. The orders were passed by the Highest authority in whom execution action has been vested. They are duly authenticated under Article 166 of Constitution and Rules. Moreover, in the view I have taken about interpretation of expressions "criminal Law" and "criminal Procedure" and other wordings used thereunder they are of wide amplitude. The subject of sanction under section 6 of the Prevention of corruption Act (Part of adjective Law) cannot be said to have been excluded even under unamended Rules. Accordingly, it cannot be said that the sanction was not by specified or competent authority. The subject of sanction under section 6 of the Prevention of corruption Act (Part of adjective Law) cannot be said to have been excluded even under unamended Rules. Accordingly, it cannot be said that the sanction was not by specified or competent authority. Subsequent amendments, as already observed appear to have been probably made for further clarification or removal of doubts or may be even under erroneous notions. True, they do not have ratrospective effect. In spite of that the position as obtaining under the then existing rules, Sanction Ex. P. 9 dated 2-2-1983 cannot be said to be otherwise invalid. ( 25. ) LASTLY, the learned counsel for the appellant urged that the appellant is survived by his wife and children. However, that can hardly be a ground to allow this appeal But then, as observed in Dadamia vs. State of Maharashtra, in that case, as also in this case, the accused was awarded the sentence, of one year, and it was held that further sentence of fine of Rs. 100/- does not appear to be necessary. Since the appellant is dead, the question of serviving any sentence does not arise. ( 26. ) IN the result, this appeal fails and is dismissed with a modification that the sentence of fine of Rs. 100/- as awarded by the learned Trial Courtis set aside. Appeal dismissed.