Patna High Court
Ramautar Mahton vs The State on 7 September, 1960
Equivalent citations: AIR1961PAT203, 1961CRILJ694, AIR 1961 PATNA 203, 1960 BLJR 688
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Sahai, J.
1. The Special Judge of Monghyr has acquitted the appellant of a charge under Section 5(2) of the Prevention of Corruption Act (II of 1947) (hereinafter to be referred to as Act II) but has convicted him under Section 409 of the Penal Code, and has sentenced him to undergo rigorous imprisonment for three years.
2. A halka is the lowest unit of revenue administration in a district, and a Karmachari is in charge of one or more halkas, A number of halkas are under the control of a circle office which is headed by a Circle Officer. The appellant was the Karmachari of halkas Nos. 44, 45, 49 and 52 with his office at a village named Chakai. A village named Kathwara fell under Halka No. 49. The headquarters of the circle office was located at Jhajha, and Shri B. Jha (P. W. 7) was the Circle Officer in 1954 and 1955.
3. The Prosecution case is that, on 29-11-1954, Shri B. Jha (P. W. 7) visited Kathwara. and several persons then complained to him that the appellant was in the habit of realising money illegally from them. After making an enquiry, he sent a prosecution report (exhibit 3) dated 6-10-1955, to the Sub-Inspector of Police, Chakai.
In this report, he gave details of twelve instances, and stated that they showed that the appellant had "taken illegal gratification in his capacity as karmchari and misappropriated the Government money". The Sub-Inspector attached a formal first information report from (exhibit 3/1) to it. The Deputy Superintendent of Police was not available, and hence the Subdivisional Magistrate entrusted the investigation of this case to the Sadar Inspector of Police (P. W. 10).
The Inspector addressed a letter (exhibit 6) to the District Magistrate, requesting him to sanction the appellant's prosecution for offences described in Section 5(1)(a) and 5(1)(c) of Act II as that was required under Section 6 of the same Act. The sanction order dated 20-5-1956, is exhibit 7, and the District Magistrate stated therein, after giving brief facts of the case, that, a prima facie case having been made out against the appellant, his prosecution under Section 161 of the Penal Code was sanctioned.
4. On 21-8-1957, the Special Judge framed two charges against the appellant, both for the period between May, 1954, and November 1954. In the charge for an offence under Section 5(2) of Act II, he stated that the appellant had, in his capacity as a public servant (karmachari), dishonestly and fraudulently misappropriated and converted to his own use three sums of money, viz., (i) a sum of Rs. 40/-, which he received in two instalments from Khiru Mahton (P. W. 1) in November, 1954, towards cost of settlement of gairmazrua lands and price of produce thereof, (ii) a sum of Rs. 3/8/-, which he received from Balli Mahton in September, 1954, on account of rent without granting any receipt, and (iii) a sum of Rs. 46/-, which he received from Munshi Mian in July, 1954, towards the cost of six mutation cases.
The learned Judge framed the other charge under Section 409 of the Penal Code in respect of the same items of payment. In his judgment dated 16-12-1957, the learned Judge has held that, as the District Magistrate's sanction order related to an offence under Section 161 of the Penal Code, it was not a valid sanction for the offence described in Section 5(1) and punishable under Section 5(2) of Act II. He has, therefore, recorded an order of acquittal in respect of that offence but has convicted the appellant under Section 409 of the Penal Code, as I have already mentioned. The appellant has come up in appeal against that Judgment.
5. Appearing on behalf of the appellant, Mr. Lakshman Saran Sinha has urged the following three points:
(1) The Special Judge had no jurisdiction to try an offence under Section 409 of the Penal Code because, for want of a valid sanction, he was not competent to try the offence under Section 5(2) of Act II.
(2) The appellant cannot be held to have committed criminal breach of trust in respect of the first and third items of charge relating to Rs. 40/- and Rs. 46/-, respectively. Even if proved, these items would make out offences under Section 161 of the Penal Code.
(3) The prosecution has not succeeded in proving its case.
6. It is unnecessary for me to consider the second and the third points because, in my Judgment, the first point is sound, and must prevail.
7. It is abundantly clear that the learned Special Judge is right in holding that the sanction granted by the District Magistrate for prosecution of the appellant under Section 161 of the Penal Code is not a valid sanction for his prosecution under Section 5(2) of Act II. The offences which are described in Section 5(1) are those of criminal misconduct. The offences described in Clauses (a) and (b) of that sub-section are aggravated forms of offences under Sections 161 and 162, respectively.
The maximum punishment provided under Sub-section (2) of Section 5 for an offence under any clause of Section 5(1) is seven years, besides fine, and the maximum punishment for an offence under Section 161 or 162 is three years, besides fine. Furthermore, only habitual offenders come within the mischief of Clauses (a) and (b) of Section 5(1); but a man who commits even one offence is punishable under Section 161 or 162 of the Penal Code.
8. The offence described in Clause (c) of Section 5(1) of Act II is similar to the offence of criminal breach of trust as defined in Section 405 of the Penal Code; but the two offences are clearly different from each other. I need not discuss this point because it came up for consideration before the Supreme Court in Om Prakash Gupta v. State of U. P., (S) AIR 1957 SC 458 and Govinda Menon, J., who delivered the Judgment of their Lordships, has pointed out the points of difference between the offence described in Section 5(1)(c) of Act II and that defined in Section 405 of the Penal Code.
His Lordship has made it perfectly clear that each offence is quite distinct and separate from the other. Sanction relating to Prosecution under Section 161 of the Penal Code cannot, therefore, be a valid sanction relating to prosecution for a quite different offence covered by Section 5(2) of Act II. Reference may be made in this connection to Dharam Sarup v. The State, AIR 1953 All 37 in which a single Judge, Agarwala, J. expressed a similar view.
9. I may add that the charge iramed under Section 5(2) in the present case refers clearly to an offence described under Clause (c) of Section 5(1) and not to an offence covered by Clause (a) which is similar to, though more serious than, an offence under Section 161. There can, therefore, be no doubt that there was no valid sanction in this case for prosecution of the appellant under Section 5(2).
In view of Section 6 of Act II, the Special Judge was not competent to take cognizance of that offence. The learned Judge, however, committed an error in recording an order of acquittal in respect of that offence. The moment he came to the conclusion that there was no valid sanction, he should have held that the entire proceeding before him with, regard to the offence under Section 5(2) was null and void. That being so, he could not pass an order, either of acquittal or of conviction.
10. Sub-section (2) of Section 6 of the Criminal Law (Amendment) Act, (XLVI of 1952) (hereinafter to be referred to as Act, XLVI) provides that only a person who is or has been, a Sessions, Additional Sessions or Assistant Sessions Judge can be appointed as a Special Judge. Section 8(3) of the same Act lays down that "the Court of Special Judge shall be deemed to be a Court of Sessions trying cases without a Jury or without the aid of assessors" for the purposes of the provisions of the Code of Criminal Procedure which are to apply, if not inconsistent with Act, XLVI, to proceedings before a Special Judge. In Section 9 also, the Special Judge has been put in the same position as a Court of Session trying cases without a Jury. I now read Section 193(1) of the Code of Criminal Procedure.
"(1) Except as otherwise expressly provided by this Code or by any other Law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf." This provision is mandatory, and it completely bars the taking of cognizance of any offence by the Court of Session as a Court of original jurisdiction without commitment by a Magistrate in the absence of an express provision to the contrary. Though the Special Judge has been placed in the same position as a Court of Session, a contrary provision made in Sub-section (1) of Section 8 of Act XLVI is:
"A Special Judge may take cognizance of offences without the accused being committed to him for trial."
This provision precludes the necessity of a commitment to the Special Judge.
11. Sub-section (1) of Section 7 of Act, XLVI lays down that all cases specified in Sub-section (1) of Section 6 of the same Act, which includes an offence under Section 5(2) of Act II, shall be triable by Special Judges only. Sub-section (3) of the same section enables a Special Judge, when trying any case, to try any other offence for which the accused could be charged at the same trial under the Code of Criminal Procedure.
It is under this sub-section that the Special Judge, in the present case, charged the appellant for an offence under Section 409 of the Penal Code, and proceeded to try him for that offence as well as the offence under Section 5(2) of Act II which, as a Special Judge, he alone could try.
12. Mr. Lakshman Saran Sinha has referred to Section 6(1) of Act II which, so far as relevant tor this case, lays down:
"6. (1) No Court shall take cognizance of an offence punishable under .... Sub-section (2) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanc tion:
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(c) in the case of any other person of the authority competent to remove him from his office."
He has contended that the absence of sanction goes to the very root of the Special Judge's jurisdiction, and that all proceedings before him relating to a prosecution under Section 5(2) are void ab initio in the absence of a valid sanction. If it is found at any stage that there was no valid sanction, the Special Judge cannot be held to have been trying a case under Act II within the meaning of Sub-section (3) of Section 7 of Act. XLVI.
That being so, learned Counsel has contended, the Special Judge cannot be held to have had jurisdic-tion to try any other offence also. On the other hand. Mr. Brishketu Saran Sinha, who has appeared on behalf of the State, has argued that Section 7(3) of Act XLVI makes no reference to the competency of the Special Judge to hold the trial or to the validity of the institution of the case. He has submitted that the Special Judge was, in fact, trying an offence under Section 5(2), and that that was sufficient to give him jurisdiction to try the offence under Section 409.
13. In support of this argument, Mr. Brishketu Saran Sinha has relied upon a decision of the Supreme Court in State of Madhya Pradesh v. Veereshwar Rao Agnihotri, 1957 BLJR 476: ((S) AIR 1957 SC 592). In that case, the Special Judge tried the accused on several charges, including Section 409 of the Penal Code and Section 5(2) of Act II. He did not record any formal order of acquittal on the charge under Section 5(2) because he was of opinion that his jurisdiction was affected owing to the fact that the investigation was made in contravention of Section 5(4) (now Section 5-A of Act II) by a Police Officer below the rank of a Deputy Superintendent of Police.
He, however, convicted the accused under Section 409. On appeal, the High Court of Madhya Bharat held that the doctrine of autrefois acquit applied, and the conviction under Section 409 was bad. The conviction was, therefore, set aside, and the accused was acquitted. On appeal from the High Court's Judgment, the Supreme Court held:
"It is obvious that Section 403(1) has no application to the iacts of the present case, where there was only one trial for several offences, of some of which the accused person was acquitted while being convicted of one. On this ground alone the order of the High Court is liable to be set aside."
Govinda Menon, J., who delivered the Judgment of their Lordships, further referred to (S) AIR 1957 SC 458. (supra), and observed that, as held in that case, "the offence of criminal misconduct punishable under Section 5(2) of the Prevention of Corruption Act II of 1947 is not identical in essence, import and content with an offence under Section 409 of the Indian Penal Code". Their Lordships allowed the appeal, and remanded the case to the High Court for rehearing on merits.
14. In my Judgment, the decision in the above case is of no help to the State. The point which has been raised before us in this appeal was not raised in that case. Besides, the Special Judge was not right in that case in holding that his jurisdiction to try the offence under Section 5(2) was affected. It was not a case where there was no valid sanction but a case in which there was an irregularity in the investigation. That does not vitiate the trial. Reliance may be placed upon H. N. Rishbud v. State of Delhi, (S) AIR 1955 SC 196. Jagannadhadas, J., who delivered the Judgment, observed:
"If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the case in --'Parbhu v. Emperor', AIR 1944 PC 73 and -- 'Lumb-hardar Zutshi v. The King', AIR 1950 PC 26."
He has also observed with reference to an investigation in violation of a mandatory provision:
"In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Act."
15. As the defect in the investigation was brought to the notice of the Court at an early stage of the trial in State of Madhya Pradesh v. Mubarak Ali, AIR 1959 SC 707, an order by the High Court for reinvestigation of the case by the Deputy Superintendent of Police was upheld by their Lordships.
16. It is manifest, therefore, that the defective investigation in the case of 1957 BLJR 476: ((S) AIR 1957 SC 592) (supra) did not go to the root of the Special Judge's jurisdiction, and the trial held by him for the offence under Section 5(2) of Act II cannot be held to have been no trial at all.
17. Mr. Lakshman Saran Sinha has frankly stated that he cannot cite any direct authority is support of his contention because the question does not appear to have been raised in any other case precisely in the form in which he has done in the present case. He has, however, drawn our attention to some decisions which I proceed now to consider.
18. In Basdeo Agarwalla v. Emperor, AIR 1945 FC 16, the appellant was convicted under the Drugs Control Order, 1943. Clause 16 of that Order provided;
"No prosecution for any contravention of the provisions oi this Order shall be instituted without the previous sanction of the Provincial Government... ......"
Spens, C. J., who delivered the Judgment, said:
"In our Judgment the words of Clause 16 of this Order are plain and imperative, and it is essential that the provisions should be observed with complete strictness and where prosecutions have been Initiated without the requisite sanction that they should be regarded as completely null and void, and if sanction is subsequently given, that new proceedings should be commenced ab initio.''
19. A similar question arose before the Privy Council in Yusofalli Mulla Noorbhoy v. The King, AIR 1949 PC 264. That case related to the Hoarding and Profiteering Prevention Ordinance, 1943. Section 14 of the Ordinance prohibited institution of a prosecution under the Ordinance without the previous sanction of different authorities. The Magistrate, who tried the appellant, held that the sanction was invalid: but, instead of stopping further trial, he acquitted the appellant.
When the appellant was prosecuted again for the same offences and on the same facts, the question arose whether the fresh trial was barred under Section 403 of the Code of Criminal Procedure on the doctrine of autrefois acquit. Their Lordships agreed with the view expressed by the Federal Court in Basdeo Agarwalla's case, AIR 1945 FC 16 (supra) that "a prosecution launched without a valid sanction is a nullity".
20. Mr. Brishketu Saran Sinha has sought to distinguish the above decision on the ground that their Lordships arrived at the decision which they did because Section 403 can only apply when the previous trial was held "by a Court of competent jurisdiction". He has urged that a trial is a trial whether it is held by a Court of competent jurisdiction or not.
He has also submitted that a Court has, at least, to determine whether it has jurisdiction to try a case or not, and the proceeding before it for that purpose is a trial, though the Court ultimately comes to the conclusion that it has no jurisdiction to try the case. In my Judgment, these arguments are completely without substance. The word 'trial' has not been defined in the Code of Criminal Procedure: but it is perfectly obvious that a proceeding cannot be a trial unless it is held before a Court of competent jurisdiction.
When it is said that a trial is 'null and void' for want of a valid sanction, what is meant is that there was legally no trial at all. In Yusofalli Mulla's case, AIR 1949 PC 264 (supra), a distinction was sought to be made between the validity of the institution of a prosecution and the competence of the Court; but Sir John Beaumont did not accept the argument. I may usefully quote his observation which is as follows:
"A Court cannot be competent to hear and determine a prosecution the institution of which is prohibited by law and Section 14 prohibits the institution of a prosecution in the absence of a proper sanction. The learned Magistrate was no doubt competent to decide whether he had jurisdiction to entertain the prosecution and for that purpose to determine whether a valid sanction had been given, but as soon as he decided that no valid sanction had been given the Court became incompetent to proceed with the matter."
This observation fully answers the suggested distinction between that case and the present case.
21. Reference may also be made to Baij Nath Prasad v. State of Bhopal, (S) AIR 1957 SC 494. The question of applicability of Section 403(1) of the Code of Criminal Procedure arose in that case in circumstances similar to those in Yusofalli Mulla's case, AIR 1949 PC 264. Their Lordships agreed with the views expressed by the Privy Council in that case and by the Federal Court in Basdeo Agarwalla's case, AIR 1945 FC 16.
22. Mr. Lakshman Saran Sinha has also referred to the decision of a single judge, Nevaskar, J., in State v. Gulabram, AIR 1957 Madh Pra 224. The accused in that case was charged with offences under Sections 161 and 420 of the Penal Code. After full trial the Special Judge decided that the accused was not a public servant, and that he could not, therefore, be charged for an offence under Section 161.
He further held that, as he could not try the accused under Section 161, he could not try him under Section 420 only. When the accused was again put upon his trial for the offence under Section 420, the question of applicability of Section 403(1) of the Code of Criminal Procedure was raised. It was held that that section did not apply, and fresh trial was not barred. In the course of his judgment, his Lordship observed:
"The moment the learned Special Judge finds that the accused is not a public servant, his jurisdiction to try the accused for the offence mentioned in Section 6, Criminal Law Amendment Act, ceases. Con-seqeuntly his further jurisdiction under Section 7(3) of the Act to try any other offence, with which the accused could be jointly tried along with the offence mentioned in Section 6 of the Criminal Law Amendment Act would also cease. That being the position, it is difficult to construe the order of the learned Special Judge as an order of acquittal in respect of an offence under Section 420 I. P. C."
23. That case is distinguishable because the Special Judge himself refused to try the offence under Section 420 when he came to the conclusion that the accused could not be charged for an offence under Section 161. It can hardly be argued that a Special Judge can go on with the trial of other offences under Section 7(3) of Act XLVI even after coming to a conclusion of the kind reached by the Special Judge in that case.
The question which arises in the present case is whether the trial of the other offences can be held to have been without jurisdiction when the Special Judge convicts the accused for such an offence by the same judgment by which he holds that he was not competent to try the offence which he was trying under Section 7(1) of Act XLVI. In my Judgment, the same result must follow.
As the proceeding before the Special Judge in this case relating to the offence under Section 5(2) of Act II was no trial at all clue to the absence of a valid sanction, the Special Judge had no jurisdiction under Section 7(3) of Act XLVI to try the offence under Section 409 of the Penal Code also. The trial for that offence, being without jurisdiction, is null and void. The appellant's conviction cannot, therefore, be upheld. Indeed, no order, either of acquittal or conviction, can be passed.
24. In the result. I allow the appeal, and set aside the conviction and sentence recorded against the appellant.
Untwalia, J.
25. I agree.