Jaswant Singh Vs. The State of Punjab
[1957] INSC 89 (25 October 1957)
KAPUR, J.L.
SINHA, BHUVNESHWAR P.
CITATION: 1958 AIR 124 1958 SCR 762
ACT:
Criminal trial-Sanction in respect of one
offence-Trial for two offences requiring sanction-If trial wholly void-
Prevention of Corruption Act, 1947 (II of 1947), ss. 5(1)(a), 5(1)(d) and 6.
HEADNOTE:
Sanction was given under s. 6 of the
Prevention of Corruption Act, 1947, for the prosecution of the appellant for
having received illegal gratification from one Pal Singh. He was charged with
and tried for two offences under s. 5(1)(a) of the Act for habitually accepting
or obtaining illegal gratification and under S. 5(1)(d) for receiving illegal
gratification from Pal Singh. The Special judge found both charges proved and
convicted the appellant. On appeal, the High Court held that the appellant
could neither be tried nor convicted of the offence under S. 5(1)(a) as no
sanction had been given in respect of it but upheld the conviction for the
offence under S. 5(1)(d) for which sanction had been given. It was argued that
the conviction even for the offence under S. 5(1)(d) was illegal as the trial
was wholly void and without jurisdiction :
Held, that the contention that the trial for
two offences requiring sanction is wholly void, where the sanction is granted
for only one offence and not for the other, is unsustainable. The want of
sanction for the offence of habitually accepting bribes does not make the
taking of cognizance of the offence of taking a bribe from Pal Singh void nor
the trial for that offence illegal and the Court a Court without jurisdiction.
Hori Ram Singh v. The Crown, (1939) F.C.R.
159 and Basirul- Huq v. The State of West Bengal, (1953) S.C.R. 836, referred
to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 66 of 1954.
Appeal from the judgment and order dated the
31st December, 1953 of the Punjab High Court in Criminal Appeal No. 540 of
1953, arising out of the judgment and order dated the 14th September, 1953, of
the Court of Special Judge, Amritsar, in Corruption Case No. 13/1-10/3 of 1953.
Shaukat Hussain, for the appellant.
Gopal Singh and T. M. Sen, for the
respondent.
1957. October 25. The following judgment of
the Court was delivered by 763 KAPUR J.-The sole point in this appeal against
the judgment and order of the Punjab High Court pronounced on December 31,
1953, is the validity and effect of the sanction given under s. 6(1) of the
Prevention of Corruption Act (Act 2 of 1947), hereinafter termed the Act.
The appellant was prosecuted for receiving
illegal gratification and the charge against him was in the following terms:
"That, you, Jaswant Singh, while
employed as a Patwari, Fatehpur Rajputan habitually accepted or obtained for
yourself illegal gratification and that you received in the sum of Rs. 50 on
19-3-1953 at Subzi Mandi Amritsar from Pal Singh P. W. as a reward for
forwarding the application Es.
P. A. with your recommendation for helping
Santa Singh father of Pal Singh in the allotment of Ahata No. 10 situate at
village Fatehpur Rajputan and thereby committed an offence of Criminal
misconduct in the discharge of your duty mentioned in section 5(1)(a) of the
Prevention of Corruption Act, 1947, punishable under sub-section 2 of section 5
of the aforesaid Act and within my cognizance. " The Special Judge found
that the appellant had accepted illegal gratification from Pal Singh, Hazara
Singh, Harnam Singh, Joginder Singh, Atma Singh, Hari Singh and Ganda Singh and
that he had received Rs. 50 from Pal Singh on March 19, 1953, at Subzi Mandi,
Amritsar. He then held:
"The charge under section 5 (1)(a) of
the Prevention of Corruption Act, 1947, has been established against him beyond
reasonable doubt. He is guilty of an offence punishable under sub-section (2)
of section 5 of the said Act. " The appellant took an appeal to the High
Court of the Punjab and Dulat J. held that taking into consideration the
sanction which will be quoted hereinafter:
" The appellant could neither have been
charged nor convicted of what is probably a much graver offence of habitually
accepting bribes." 97 764 But he held that sanction was valid qua the
charge of accepting illegal gratification of Rs. 50 from Pal Singh.
The conviction was therefore upheld but the
sentence was reduced to the period already undergone and the sentence of fine
maintained.
The argument raised by the appellant in this
court is that as the sanction was confined to illegal gratification of Rs. 50
paid by Pal Singh and the charge was for habitually accepting illegal
gratification the trial was without jurisdiction and the appellant could not be
convicted even for the offence which was mentioned in the sanction. The
sanction was in the following terms:
" Whereas I am satisfied that Jaswant
Singh Patwari son of Gurdial Singh Kamboh of village Ajaibwali had accepted an
illegal gratification of Rs. 50 in 5 currency notes of Rs. 10 denomination each
from one Pal Singh son of S. Santa Singh of village Fatehpur Rajputan, Tehsil
Amritsar for making a favorable report on an application for allotment of an
ahata to S. Santa Singh father of the said S. Pal Singh.
And whereas the evidence available in this
case clearly discloses that the said S. Jaswant Singh Patwari had committed an
offence under Section 5 of the Prevention of Corruption Act.
Now therefore, 1, N. N. Kashyap, Esquire
I.C.S. Deputy Commissioner, Asr, as required by Section 6 of the Prevention of
Corruption Act of 1947, hereby sanction the prosecution of the said S. Jaswant
Singh Patwari under section 5 of the said Act." Section 6(1) of the Act
provides for sanction as follows:
" No Court shall take cognizance of an
offence punishable under Section 161 or Section 165 of the Indian Penal Code or
under sub-section (2) of section 5 of this Act, alleged to have been committed
by a public servant, except with the previous sanction. " Section 5 (1)(a)
relates to a case of a public servant if he habitually accepts illegal
gratification and s. 5(1)(d) 765 if he obtains for himself any valuable thing
or pecuniary advantage. The contention comes to this that as the sanction was
only for receiving Rs. 50 as illegal gratification from Pal Singh and therefore
an offence' under s. 5 (1)(d) the prosecution, the charge and conviction should
have been under that provision and had that been so there would have been no
defect in the jurisdiction of the court trying the case nor any defect in the
conviction but as the appellant was tried under the charge of being a habitual
receiver of bribes and the sanction was only for one single act of receiving
illegal gratification the trial was wholly void as it was a trial by a court
without jurisdiction.
The sanction under the Act is not intended to
be nor is an automatic formality and it is essential that the provisions in
regard to sanction should be observed with complete strictness; Basque Agarwala
v. King Emperor (1). The object of the provision for sanctions is that the
authority giving the sanction should be able to consider for itself tile
evidence before it comes to a conclusion that the prosecution in the
circumstances be sanctioned or forbidden.
In Gokulchand Dwarkadas Morarka v. The King
(2) the Judicial Committee of the Privy Council also took a similar view when
it observed:
" In their Lordships' view, to comply
with the provisions of cl. 23 it must be proved that the sanction was given in
respect of the facts constituting the offence charged. It is plainly desirable
that the facts should be referred to on the face of the Sanction, but this is
not essential, since cl. 23 does not require the sanction to be in any
particular form, nor even to be in writing. But if the facts constituting the
offence charged are not shown on the face of the sanction' the prosecution must
prove by extraneous evidence that those facts were placed before the
sanctioning authority. The sanction to prosecute is an important matter; it
constitutes a condition precedent to the institution of the prosecution and the
Government have an absolute discretion to grant or withhold their sanction.
(1)[1945] F.C.R. 93,98 (2) [1948] L.R. 75
I.A.30, 37 766 It should be clear from the form of the sanction that the
sanctioning authority considered the evidence before it and after a
consideration of all the circumstances of the case sanctioned the prosecution,
and therefore unless the matter can be proved by other evidence, in the
sanction itself the facts should be referred to indicate that the sanctioning
authority had applied its mind to the facts and circumstances of the case. In
Yusofalli Mulla Noorbhoy v.
The King (1) it was held that a valid
sanction on separate charges of hoarding and profiteering was essential to give
the court jurisdiction to try the charge. Without such sanction the prosecution
would be a nullity and the trial without jurisdiction.
In the present case the sanction strictly
construed indicates the consideration by the sanctioning authority of the facts
relating to the receiving of the illegal gratification from Pal Singh and
therefore the appellant could only be validly tried for that offence. The
contention that a trial for two offences requiring sanction is wholly void,
where the sanction is granted for one offence and not for the other, is in our
opinion unsustainable. Section 6(1) of the Act bars the jurisdiction of the court
to take cognizance of an offence for which previous sanction is required and
has not been given. The prosecution for offence under s. 5(1)(d) therefore is
not barred because the proceedings are not without previous sanction which was
validly given for the offence of receiving a bribe from Pal Singh, but the
offence of habitually receiving illegal gratification could not be taken
cognizance of and the prosecution and trial for that offence was void for want
of sanction which is a condition precedent for the courts taking cognizance of
the offence alleged to be committed and therefore the High Court has rightly
set aside the conviction for that offence. In Hori Ram Singh v. The Crown(1)
the charges against a public servant were under ss. 409 and 477A, Indian Penal
Code, one for dishonestly converting and misappropriating certain medicines
entrusted to the public servant and the other for wilful omission with intent
to defraud to record certain entries in the (1)(1949) L.R. 76 I.A.158 (2)[1939]
F.C.R.159.
767 account books of the hospital where he
was employed. Thus two distinct offences were committed in the course of the
same transaction in which the one, under s. 477A, Indian Penal Code, required
sanction under s. 270(1) of the Government of India Act and the other under s.
409, Indian Penal Code, did not. But the bar to taking cognizance of the former
offence was not considered a bar to the trial for an offence, for which no
sanction was required and therefore the proceedings under s. 477A were quashed
as being without jurisdiction but the proceedings under s. 409 Indian Penal
Code were allowed to proceed. Similarly the Supreme Court in Basir-ul-Huq v.
The State Of West Bengal (1) held s. 195, Criminal Procedure Code to be no bar
to the trial for a distinct offence not requiring sanction although disclosed
by the same facts if the offence is not included in the ambit of an offence
requiring such sanction. The want of sanction for the offence of habitually
accepting bribes therefore does not make the taking of cognizance of the
offence of taking a bribe of Rs. 50 from Pal Singh void nor the trial for that
offence illegal and the court a court without jurisdiction.
The submission next raised is that the
evidence in support of being habitually a receiver of bribes has caused serious
prejudice to the defence of the appellant but no such prejudice has been shown
nor does the judgment of the High Court which has proceeded on the evidence in
support of the charge of Pal Singh's transaction, indicate the existence of any
prejudice and there was nothing indicated before us leading, to the conclusion
of prejudice or to consequent failure of justice.
The High Court came to the conclusion that
the trial for the offence of habitually accepting illegal gratification could not
be validly tried and evidence led on that charge could not be considered but
the conviction of receiving a bribe of Rs. 50 from Pal Singh is well founded
and also that the appellant has not been prejudiced in the conduct of his
defence.
(1) [1953] S.C.R. 836.
768 No arguments were addressed to this court
on the correctness of the finding of the High Court in regard to the conviction
for receiving illegal gratification from Pal Singh. We agree with the opinion
of the High Court that the offence under S. 5(1) (d) of receiving illegal bribe
of Rs. 50 has been made out and would therefore dismiss this appeal.
Appeal dismissed.
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