S. N. Bose Vs. State of Bihar [1968] INSC
77 (26 March 1968)
26/03/1968 HEGDE, K.S.
HEGDE, K.S.
MITTER, G.K.
CITATION: 1968 AIR 1292 1968 SCR (3) 563
CITATOR INFO :
RF 1968 SC1323 (5) R 1984 SC 684 (19) R 1984
SC 718 (21) R 1992 SC 604 (125,133)
ACT:
Prevention of Corruption Act (II of 1947),
ss. 4(1), 5 A and 6(1) (c)-Investigation by Inspector of Police after obtaining
permission from First Class Magistrate to lay trap-Permission if sufficient for
investigation-Reasons if to be recorded by Magistrate while granting permission
Presumption under s. 4-Scope of and how rebutted-Sanction to prosecute-Granted
by Chief, Medical Officer of Railway hospital as head of department-Accused a
non-gazetted officer having privileges of a gazetted officer-Sufficiency.
HEADNOTE:
The appellant was an assistant medical
officer in a railway hospital at Gaya. Thoughhe had certain privileges
ordinarily available to gazetted officers he was only a nongazetted Class III
officer. He was convicted for offenses tinder s. 161 I.P.C. and 's. 5 (2) read
with s. 5 (I) (d) of the Prevention of Corruption Act, 1947. The complaint that
he had received illegal gratification, was investigated into by an Inspector of
Police. The Inspector obtained permission from a First Class Magistrate for
laying a trap, investigated into the case, and later, after the entire
investigation was over, he obtained permission from the Magistrate to
investigate into, the case. The sanction to prosecute required under s. 6(1) of
the Act, was granted by the Chief Medical Officer, who was the bead of the
department.
The conviction was challenged on the
following grounds : (1) The investigation was without authority of law,
because, under s. 5A, the Inspector could not have investigated without the
prior permission of a Magistrate of the First Class; (2) The permission granted
by the Magistrate did not meet the requirements of law because, it was given
casually and without applying his mind to the question as to whether there was
any need for departing from the normal rule laid down in the section, namely,
that such cases should ordinarily be investigated by an officer of the rank of
Dy.
Superintendent of Police or above and there
should be good reasons before a Magistrate accords permission to officers below
that rank; (3) The presumption under s. 4 that the appellant had accepted the
sum a motive or reward should not be drawn unless the prosecution proved that
the amount was paid as a bribe; (4) The presumption was rebutted by the
appellant's explanation that what was paid to him was the return of a loan; and
(5) the sanction to prosecute granted by the Chief Medical Officer was invalid
as lie was not the authority competent to remove him.
HELD : (1) There is no basis for the
contention that any portion of' the investigation was done without authority by
law. [567 D].
Investigation under s. 4(1) Cr. P.C. is one
and indivisible and includes all the steps taken by the Inspector to ascertain
the truth of the complaint alleging that the appellant was attempting to obtain
a bribe. Laying a trap, is a part of the investigation and a permission given
under s. 5A of the Prevention of Corruption Act enables the officer concerned
not only to lay a trap but also to further investigate. The fact that the
Inspector of Police obtain the two permissions, one for laying a trap and 564
another for investigating the case, does not affect the earlier order as the
second permission was wholly superfluous. [566 G-H, 567 B-D] (2) The order
giving permission to. the Inspector did not give any reasons and there is thus
a violation of s. 5A.
But an illegality committed in the course of
an investigation does not vitiate the result of a trial unless there was a
miscarriage of justice. In the present case the legality of the investigation
was not challenged in the trial court and prejudice to the appellant was
neither pleaded nor established. [568 C-D, F-G].
(3) The presumption under s. 4 arises when it
is shown that the accused had received the stated amount and that the said
amount was not legal remuneration. [569 D].
(4) The words 'unless the contrary is proved'
in s. 4(1) show that the presumption was to be rebutted by proof and not by a
bare explanation which is merely plausible. The 'burden testing on the -accused
will however be satisfied if he establishes his case by a mere preponderance of
probability and it is not necessary for him to prove it beyond reasonable
doubt. In the present case, the appellant's plea was not accepted by the trial
court and the High Court and hence, it must be held that he had not discharged
the burden placed on him. [571 C-E].
State of M.P. v. Mubarak Ali, [1959] 2 S.C.R.
201, H. N.
Rishbud and Inder Singh v. State of Delhi,
[1955] 1 S.C.R.
1150, State of U.P. v. Bhagwant Kishore
Joshi, A.I.R. 1964 S.C.R. 221, Munnalal v. State of U.P. A.I.R. 1964 S.C. 28,
C. 1. Emden v. State of U.P. [1960] 2 S.C.R. 592, Dhanvantrai Balwantrai Desai
v. State of Maharashtra, A.I.R.
1964 S.C. 575 and V. D. Jhangan v., State of
U.P. [1966] 3 S.C.R. 736, followed.
(5) Under s. 6(1) (c) of the Prevention of
Corruption Act, the appellant could not be prosecuted without the previous
sanction of the authority competent to remove him. Oral evidence of the officer
giving sanction cannot be relied on for deciding the validity of the sanction.
The Court must be satisfied by reference to the rules on the subject.
Schedule 11 to the 1961 Rules relating to
discipline and appeal of railway servants makes provision for the punishment of
railway servants employed in zonal railways.
Under the Schedule I a head of a department
was not competent to impose on Class III officers the punishment of removal
from service. That punishment could only be imposed by an appointing authority
or any other higher authority.
Under r, 134. the authorities competent to
make first appointments to non-gazetted posts are the General Manager.
the Chief Administrative Officer or a lower
authority to whom he may delegate power; but the power has not been delegated
to heads of departments. Therefore, the Chief Medical Officer was neither the
appointing authority nor was he competent to. remove the appellant from his
Office.
Hence he was also not competent to grant the
sanction for prosecuting the appellant. [571 F; 572 D; 573B-C, H;574A-B].
R. R. Chari v. State of U.P. [1963].1 S.C.R.
121, followed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 109 of 1967.
Appeal by special leave from the judgment and
order dated May 4, 1967 of the Patna High Court in Criminal Appeal No.
455 of 1965.
Debobrata Mookherjee and P. K. Ghosh, for the
appellant.
D, P. Jha, for the respondent.
565 The Judgment of the Court was delivered
by Hegde, J. In this appeal by special leave, Mr. Debabrata Mookherjee learned
counsel for the appellant advanced the following contentions : (1) the
investigation conducted in this case was without the authority of law, (2) the
nature of the onus under s. 4 of the Prevention of Corruption Act has been
wrongly construed by the High Court as well as the trial court, and (3) the
sanction granted under S. 6 of the Prevention of Corruption Act is invalid in
law as the authority who granted the same had no competence to do so.
The facts leading upto this appeal are these.
The appellant was an assistant medical officer in the railway hospital at Gaya
in the year 1964. PW 4 Doman Ram was a khalasi working under the inspector of
works, Eastern Railway, Gaya. On March 2, 1964, as he was suffering from
dysentery and stomach pain he was sent to the appellant along with a sick note
for treatment. The case of PW 4 was that when he went to the appellant for
treatment the appellant demanded and received, from him Rs. 2 as illegal
gratification for treating him. Thereafter he was. treated by the appellant on
the 5th, 7th. 9th and 12th of that month. By the 12th he had completely
recovered and, therefore he wanted to rejoin duty and for that purpose he
requested the appellant to give him a fitness certificate. For issuing him that
certificate the appellant demanded Rs. 5 as bribe and he further told PW 4 that
unless he paid him the said sum by March 14, 1964, he (appellant) would remove
PW 4's name from, the sick list.
After this talk, when PW 4 was going out of
the hospital he met a person by name Babu.He complained to Babu about the
behavior of the appellant. The said person told him that he would meet him
again on March 14, 1964, but on March 14 Mr.
A. C. Das PW 17, Inspector of Special Police
Establishment met PW 4 in his house and ascertained from him all that had
happened. Thereafter PW 4 met PW 17 again at the railway station as desired by
the latter. From there both of them went to the district Dak bungalow where PW
17 recorded the complaint of PW 4. The same day PW 17 obtained from the First
Class Magistrate an order under s. 5A of the Prevention of Corruption Act.
Thereafter, PW 4 produced before PW 17 a five-rupee-currency note in the
presence of panch witnesses. PW 17 noted the number of the currency note in
question, prepared a memorandum in respect of the same, got it attested by the
panch witnesses and thereafter returned the said currency note to PW 4 to be
given to the appellant in case he made any further demand for bribe.
After these preliminaries were over PW 4 went
to the appellant along with the panch witnesses. There when PW 4 asked for the
certificate, the appellant repeated his earlier demand. Then PW 4 gave him the
currency note in question. This was seen by the panch 566 witnesses.
Immediately signal was given to PW 17 who came to the hospital and. asked the
appellant to produce the five rupee note received by him from PW 4. At this
stage the appellant became extremely nervous. He admitted that PW 4 had paid
him Rs. 5 but that according to him was a return of the loan given to him by
the appellant. He produced the currency note in question. After investigation
the appellant was charged under s. 161 IPC and s. 5(2) read with s. 5(1)(d) of
the Prevention of Corruption Act.
The plea of the appellant was that PW 4 and
his wife were doing odd jobs in his house; PW 4 was a drunkard and hence was
always in need; he used to often borrow from him (appellant); he had borrowed
Rs. 5/from him some. days prior to the date of the trap and he returned that
amount on that day. The appellant examined some witnesses in support of that
plea.
The trial court as well as the High Court
accepted the prosecution evidence; rejected the defence version and convicted
the appellant both under s. 161, IPC as will as s.
5(2) of the Prevention of Corruption Act.
They have given good reasons in support of the findings of fact reached by
them. As this Court does not go into questions of fact except under exceptional
circumstances, Mr. Mookherjea primarily confined himself to the legal issues
arising in the case.
His first contention was that the
investigation held in this case was without the authority of law and hence the.
appellant is entitled to be acquitted. He
urged that in view of s. 5A of the Prevention of Corruption Act, PW 17 who was
only an Inspector of police could not have investigated the case without the
prior permission of a magistrate of the first class; on March 12, 1964 he
merely applied for and obtained from a first class magistrate permission to lay
a trap; the permission to, investigate the case was obtained by him only on the
21st but by that time the entire investigation was over; hence there was no
valid investigation. The application made by PW 17 on the 12th was under s. 5A
of the Prevention of Corruption Act Therein, it is true, he had only asked for
permission to lay a trap.
It must be remembered that the permission
given was one under s. 5A. A permission under that provision is a permission to
investigate the case. Laying the trap is a part of the investigation. It is so
laid down by this Court in State of Madhya Pradesh v. Mubarak Ali(). An
investigation is one and indivisible.[ All steps taken by PW 17 to ascertain
the truth of the complaint made by PW 4 alleging that the appellant was
attempting to obtain bribe from him, come within the expression 'investigation'
under s. 4(1) of the Code of Criminal Procedure. 'Investigation' includes all
the proceedings (1) [1959] 2 S.C.R.201.
567 under the Code for the collection of
evidence conducted by a police officer or any person (other than a magistrate)
who is authorised by a magistrate in this behalf. The scope of the expression
'investigate' found in S. 5A of the Prevention of Corruption Act was explained
by this Court in H. N. Rishbud and Inder Singh v. State of Delhi(-) and State
of Uttar Pradesh v. Bhagwant Kishore Joshi(2). Section 5A does not contemplate
two sanctions, one for laying the trap, and another for further investigation.
Once an order under that provision is made that order covers the entire,
investigation. A permission given under that provision enables the officer
concerned not only to lay a trap but also to hold further investigation. There
is no doubt that PW 17 was under a mistaken impression that he should obtain
two permissions, one for laying the trap and another for investigating the
case. Evidently because of that he applied for a second permission Rome days
after the trap was laid. But that permission was wholly superfluous and the
same does not affect the validity of the earlier order.
Hence there is no basis for the contention
that any portion of the investigation in this case was done without the
authority of law.
It was next urged that before granting the
permission the learned magistrate did not apply his mind to the question
whether there was any need for granting the sanie. Before permitting PW 17 he
should, have first ascertained whether any officer of the rank of Deputy
Superintendent or above was not immediately available to investigate the case,
and whether 'there was any other reason for departing from the normal rule laid
down by the legislature, namely, that cases of this nature should be
investigated by officers of the rank of Deputy Superintendent of Police or
above. It was further contended on behalf of the appellant that the earned
magistrate made the order casually he gave no reason in support of his order
and hence the permission granted does not meet the requirements of the law.
The object of the legislature in enacting S.
5A was to see that the investigation of offenses punishable under ss. 161, 165
or 165A, IPC as well as those under S. 5 of the Prevention of Corruption Act
should be done ordinarily by officers of the rank of deputy superintendent or
above N4 doubt S. 5A also provides for an alternative procedure. An officer
below the rank of deputy superintendent can investigate those: offenses if he
obtains the previous permission of a first-class magistrate. The legislature
proceeded on the basis that except for good-reasons the magistrate would not
accord permission for officers below the rank of a deputy superintendent to
investigate those offenses. But exigencies of administrative convenience may
require I that some of those (1) [1955] 1 S.C.R. 1150.
(2) A.I.R. 1964 S.C. 221.
568 cases have to be investigated by officers
below the rank of Deputy Superintendents. For that reason it was provided that'
in such circumstances the permission of a. magistrate of the first class should
be obtained. This Court has laid down in State of Madhya Pradesh v. Mubarak
Ali(') that the statutory safeguards under S. 5A must strictly be complied with
for they are. conceived in public interest and were provided as a guarantee
against frivolous and vexatious proceedings. A magistrate, can-not surrender
his discretion to a police officer but must exercise it having regard to the
relevant material made available to him at the stage of granting permission. He
must also be satisfied that there is reason owing to exigencies of the
administrative convenience to entrust a subordinate officer with the
investigAtion. It is further observed therein that it is desirable that the
order giving the permission should ordinarily on the face of it disclose the
reasons for giving permission. The order giving permission under s. 5A in this
case does not give any reason. On the application submitted by PW 17 the
learned magistrate merely ordered "Permission granted". PW 17 did not
mention in his application anyspecial reason for permitting him to investigate
the case unless we consider the statement in the application "Today is the
date fixed for issuing the fit certificate: after receiving a bribe money of
Rs. 5 from him" as impliedly a ground in, support of his application. It
is surprising that even after this Court pointed out thesignificance of s. 5A
in several decisions there 'are still some magistrates and police officers who continue
to act in a casual manner.
It is obvious that they are ignorant of the
decisions of this Court. But the legality of the investigation held in this
case does not appear to have been challenged in the trial court. The charge
leveled against the appellant is established by satisfactory and therefore all
that we have now to see is whether the accused was prejudiced by the fact that
investigation of this case was made by an officer below the rank of a Deputy
Superintendent, as laid down by this Court in Munnalal v. State of Uttar
PradeSh(2) and State of Uttar Pradesh v. Bhagwant Kishore Joshi(3). No
prejudice was pleaded -much less established An illegality committed in the
course of an investigation does not affect the competence and jurisdiction of the
court for trial and where cognizance of the case has in fact been taken and the
case has proceed to termination the invalidity of the preceding investigation
does not vitiate "the result unless the miscarriage of justice has been
caused thereby, See Rishbud and Inder Singh v. State of Delhi(4).
We next take up the question as to the, scope
of s. 4 of the Prevention of Corruption Act. As, mentioned earlier, the appellant
(1) [1959] 2 S.C.R. 201. (2) A.I.R. 1964 S.C. 28.
(3) A.I.R. 1964 S.C. 221. (4) (1955] 1 S.C.R.
1150.
569 admits the fact that he received a sum of
Rs. 5 from PW 4 on March 14, 1964. 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. Mr.
Mookherjea's contention was that the presumption in question does not arise
unless the prosecution proves that the amount in question was paid as a bribe.
He urged that the presumption under s. 4 arises only when the prosecution
proves that the Appellant had received "any gratification (other than
legal remuneration) or any valuable thing from any person". He laid stress
on the Word gratification' and according to him the word 'gratification' can only
mean something that is given as a corrupt reward. If this contention of Mr. Mookherjea
is correct then the presumption in question would become absolutely useless. It
is not necessary to go into this question in any great detail as the question
is no more res Integra. In C.I. Emden v. State of U.P. (I") this Court
held that the "presumption under s. 4 arose when it was shown that the
Accused had received the stated amount and that the, said amount Was not legal
remuneration. The word 'gratification' in s. 4(1) was given its literal
dictionary meaning of satisfaction of appetite or desire; it could not be
construed to mean money paid by way of a bribe." The Court further
observed "If the word 'gratification' is construed to mean money paid by
way of a bribe then it would be futile or superfluous to prescribe for the raising
of the presumption.
Technically it may no doubt be suggested that
the object which the statutory presumption serves on, this construction is that
the court may then presume that the money was paid by way of a bribe as a
motive or reward as required by s. 161 of the Code. In our opinion this could
not have been the intention of the Legislature in prescribing the;
statutory presumption under s. 4(1). In the
context we see no justification for not giving the word 'gratification' its
literal dictionary meaning.
There is another consideration which supports
this construction. The presumption has also to be raised when it is shown that
the accused person has received valuable thing. This clause his reference to,
the offence punishable under s, 165 of the Code; and there is no doubt that one
of the essential ingredients, of the said offence is that the valuable things
should have been received by the accused without consideration or for a not be
suggested that the relevant clause in s.
4(1) (1) [1960] 2 S.C.R. 592.
570 which deals with the acceptance of any
valuable thing should be interpreted to impose upon the prosecution an
obligation to prove not only that the valuable thing has been received by the
accused but that it has been received by him without consideration or for a
consideration which he knows to be inadequate. The plain meaning of this clause
undoubtedly requires the presumption to be raised whenever it is shown that the
valuable thing has been received by the accused without anything more. If that
is the true, position in respect of the construction of this part of s. 4(1) it
would be unreasonable to, hold that the word gratification' in the same clause
imports the necessity to prove not only the payment of money but the
incriminating character of the said payment. It is true that the Legislature
might have used the word money' or 'consideration' as has been done by the
relevant section of the English statute;
but if the dictionary meaning of the word
'gratification' fits in with the scheme of the section and leads to the same
result as the meaning of the word valuable thing' mentioned in the same clause,
we see no justification for adding any clause to qualify the word
'gratification'; the view for which the appellant contends in effect amounts to
adding a qualifying clause to describe gratification." The same view was
taken by this Court in Dhanvantrai Balwantrai Desai v. State of Maharashtra(1)
and again in V.
D. Jhangan v. State of Uttar Pradesh(2).
It was next contended that to discharge the
burden placed on the appellant under s. 4 all that he has to do is to offer a
reasonable explanation, the burden placed on him by s. 4(1) being somewhat
analogous to that 'Placed on an accused under s. 114 of the Evidence Act. This
branch of the law is also well-settled by the decisions of' this Court. Section
114 of the Evidence Act provides that the court may presume the existence of
any fact which it thinks likely to have happened, regard being had to the
common course of natural events, human conduct and public and private business,
in their relation to the facts of the particular case. Under that provision the
court is not bound to draw any presumption of fact. 'It is within its
discretion to draw a presumption or not. But under s, 4(1) the court is bound
to draw the presumption mentioned therein. ',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
when after Considering the matters before it the court either believes it to
exist or con (1) A.T.R. 1964 S.C. 575.
(2) [1966] 3 S.C.R. 736.
571 siders 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. If it does not satisfy those conditions then he
cannot be said to, have proved the contrary. In Dhanvantrai Balwantrai v. State
of Maharashtra(') this Court considered the nature of the proof required to be
given by' the accused under s. 4 (I).
Therein this, Court held that the burden
resting on the accused person in such a case would not be as light as that
placed on him under s. 114 of the Evidence Act and the same cannot be held to
be discharged merely by reason of the fact that the explanation offered by him
is reasonable and probable. It must further be shown that the explanation is a
true one. The words 'unless the contrary is proved' which occur in that
provision make it clear that the presumption has to be rebutted by proof and
not by a bare explanation which is merely plausible. The same view was taken by
this Court in V. D. Jhangan v. State of Uttar Pradesh (2). But at the same time
it was mentioned in that decision that the burden resting on the accused will
be satisfied if the accused person establishes his case by a preponderance of
probability and it is not necessary for him to establish his case by the test
of proof beyond reasonable doubt. In other words, the, nature of the burden
placed on him is not the same as that placed on prosecution which must not only
prove its case but prove it beyond reasonable doubt. 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.' This takes us to the last
point urged by Mr. Mookherjea namely that the sanction to prosecute granted by
PW 1, the chief medical officer, under s. 6(1) of the Prevention of Corruption
Act is invalid as he was not the authority competent to remove the appellant
from his office and hence the prosecution is vitiated. Section 6(1), to the
extent it is material for our present purpose, reads :
"No court shall take cognizance of an
offence punishable under section 161 or section 164 or section 165 of the
Indian Penal Code, or Under sub-section (2) or sub-section 3A of section 5 of
this Act, alleged to have been committed by a public servant, except with the
previous sanction, (a)...........................
(b)...........................
(c) in the case of any other person, of the
authority competent to remove him from his office." (1) A.I.R. 1964 S.C.
575.
L7 Sup. CI/68-12 (2) [1966] 3 S.C.R. 736 572
This Court has laid down in R. R. Chari v. State of U.P.(1);
as well as in several other decisions that no
court can validly take cognizance of any of the offenses mentioned in s. 6(1)
of the Prevention of Corruption Act without the previous sanction of the
authority competent to remove from office the accused. 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.
P.W. I deposed that the appellant was a class
III officer and that he could have been appointed or dismissed by the Deputy
Agent Personnel who is subordinate to him. Therefore he (P.W. 1) was competent
to grant previous sanction under S. 6 (1) of the Prevention of Corruption Act.
P.W. 1's assertion that the appellant could have been removed from 'his office
either by the Deputy Agent Personnel or by himself was challenged in his cross-examination.
The trial court as well as the High Court have relied on the oral evidence of
P.W. 1 in coming to the conclusion that the sanction granted is valid. In our
opinion those courts erred in relying on oral evidence in deciding the validity
of the sanction granted. Hence, we asked the learned counsel for the respondent
to satisfy us with reference to the rules on the subject that P.W. 1 was
competent to remove the appellant from his office. For this, ,purpose we
granted him several adjournments. Though our attention has now been invited to
some rules, those rules do not establish that P.W. I as competent to grant the
sanction in question.
It was contended on behalf of. the appellant
that he was a gazetted officer and therefore he could be removed only by the
Railway Board. This contention does not appear to be correct. As seen from the
Government of India, Ministry of Railways publication under the title
"authorised scales of pay", the appellant is a class HI officer. From
that publication it is further seen that F only class I and II officers are
designated as gazetted officers. In support of his contention that he -was a
gazetted officer, the appellant relied on the Railway Board's letter No.
PC/60/PS5/MH3 dated 2-3-1962. 'Paragraph 4 of that letter-the only relevant
paragraph for our present purpose-says that an assistant surgeon after five
years service shall hold the honorary gazetted rank and shall be entitled to
the usual privileges granted to gazetted officers in matters such as passes, allotment
of quarters. This letter merely indicates that the officers mentioned therein
are entitled to certain privileges which are ordinarily available to gazetted
officers. We are unable to 'read that letter as raising the rank of the
appellant to that of a gazetted officer.
Therefore we proceed on the basis that the
appellant was a non-gazetted officer. But the question still remains whether
P.W. 1 was competent to remove him (1) [1963] S.C.R. 121.
573 from service. In view of appendix 3 8 of
the Indian Railways Establishment Code Vol. III (4th re-print, dated
26-7-1962), we may take it that P.W. 1 was the head of the department to which
the appellant belongs. The next question is whether the head of his department
was competent to remove the appellant from his service.
As per r. 134 of the Indian Railway
Establishment Code, published in 1959, authorities competent to make first
appointment to non-gazetted posts in the Indian Railways are the General
Manager, the Chief Administrative Officer or lower authority to whom he may
delegate power. There is no evidence to show that this power has been delegated
to the heads of the department. No provision in the Indian Railway
Establishment Code 1959 prescribing the authorities competent to remove from
office a class III officer was brought to our notice. But the prefatory note to
Vol. I of the Code says, "The revised Chapter XVII and revised Appendices
I and XII will be printed later for inclusion in this edition. Till such times
these are printed, the rules and provisions contained in Chapter XVII and
Appendices IV and XVIII in the 1951 Edition (Reprint) as, amended from time to
time shall continue to apply." In 1961 new rules relating to discipline
and appeal of railway servants other than employed in the railway protection
force have been published. Rule 1701 says, "Without prejudice to the
provisions of any law, for the time being in force, relating to the conduct of
Government servants, or to the rules made under section 47 (e) of the Indian
Railways Act, 1890 (9 of 1890), the conduct of railway servants shall be
governed by the rules contained in Appendix Vlll." Our attention has not
been invited to any rules made under s. 47 (e) of the Indian Railways Act, 1890
or any other statutory rules. Hence we are proceeding on the basis that the
aforementioned r. 1701 governs the present case. Rule 1705 says that the
authorities who are competent to place a railway servant under suspension and
to impose penalties on him are specified in the Schedules 1, II and III appended
to the Rules. Rule 1707 sets out the various punishments that may be imposed on
a railway servant which includes removal from service as well as dismissal from
service. Schedule I deals with railway servants employed in the Railway Board's
office, the Research, Design and Standard Organisation, the Railway Staff
College, Baroda, the Advanced Permanent Way Training School, Poona, the Railway
Service Commission, the Railway Rates Tribunal, the Railway Liaison Office and
all other railway offices which are not enumerated above. Schedule I does not
apply to the case of railway servants employed in the zonal railways. As
regards them, provision is made in Sch. III.
From that Schedule it is seen that though a
head of the Department can impose on Class III officers 574 censure as well as
some other punishments detailed therein, he is not competent to impose on them
the punishment of removal from service, compulsory retirement or dismissal from
service. Those punishments, as seen from the Schedule can be imposed on them
only by the appointing authority or any other higher authority. P.W. 1 is not
shown to be the appointing authority. On the material before us it is not
possible to come to the conclusion that P.W. 1 was competent to grant sanction
under s. 6 (1)of the Prevention of Corruption Act.
We accordingly allow this appeal and set
aside the conviction of the appellant. He is on bail. His bail bond stands
cancelled.
V.P.S. Appeal allowed.
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