S.N. BOSE versus STATE OF BIHAR

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S. N. BOSE

v. ·'\ STATE OF BIHAR · ', March 26, 1968 ·

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[G. K. MITTER AND K. S. HEGDE, JJ.]

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Pre»ention of Corruption Act (II of 1947), ss. 4(1), SA ond 6(1) (c)-Investigation by Inspector of Police after obtaining permission from First Class Afagistrate _to lay trap--Pernzission if sufficient for investiga Iion-Rea.<>ons if to be ;ecOrded hy Alagistrate lvhile grcnting pernzission Presumption under s. 4---Scope of and how rebutted-Sanction to prose cute-Granted by Chief Medical Officer of Rciln·ay hospital a<; 'head of <lepartment-Accused a non-gazetted officer having prh·ileges of a-· ga:etted officer-~uffeciencyr

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The appellant wits an assistant medical offiCCr· in a_ railway hospital at Gaya. Though he had certain privileges ordinarily available to gazetted officers he was only a non-gazetted Class III officer. He was convicted for effcnC'es under s. 161 I.P.C. and s. 5(2) read \\ith s. S(l)(d) of the Prevention of Corruption Act, 1947. The complaint that be had received Hiegal gratification, \vas investigated into by an Inspector of'. Police. The Inspector obtained permission from a First Class l\Iagistrate for· layin6 a trap, investigated into the case, and later, after th~ entire investigation was over. he obtained pcrmis.sion from the ~Iagistrate to investigate into the cas-::. The sanction to prosecute :required under_ s. 6(1) of the Act, Was granted by the Chief l\Icdical Officer, who· was the hoad of tho Jcpartment.

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The conviction \\'as _challenged on the fo1Iowing grounds: (1) The investigation \Vas \\'ithout authority of la\v, because, under s. SA,· the Inspector could not have investigated \\ithout the prior permission of a )Jagistrak~ of the First Class; (2) The permission granted by the l\fagis t'.ratc d_id not meet the -requirements of la\V because, it was g!ven casually and '""ithout applying his -mind to the que·stion as to \vhcther 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. SuperintcnJcnt Of Police or above and there should be good reasons before a l\·lagistrate accords permission to officers below that rank; (3)- The presumption under s. 4 that the appc11ant h3.d accepted. - the sum as a mOtivc or reward should not be drawn unless t~ prosecution· · proved that the amouilt v.·as paid as a bribe; ( 4) The presumption \\'aS r~buttcd by the appellant's explanation that \\'hat was paid to him was th~ return of a loan; and (5) the sanction- to p'rD!>ecute graritcd by the -Chief l\fedieal Officer. \Vas invalid as he -was not the authority competent to remove him;

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HELD : ( 1) There is no basis for the contention that. any portion of

the investigation was done without authority of Jaw.

[567 DJ. .

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Investigation under s. 4(1) Cr. P.C. is one and indivisible- and in cludes all the steps taken by the Inspector to ascertain the truth of ,the complaint all·z-ging that the appellant \vas attempting to obtain a bribe_. Laying ·a trap~ is a ·part of the investigation and a permission given under s. SA of the Prevention of Corruption Act enables the officer concerned not only to lay a trap but also to _further inv'2·stigatc., The.fact that the I nspcctor of Police obtain-:!d t\\'O permissions, one for laying a trap and

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SUPRl!MB OOUllT llBPOl.1S

(1968) 3 S.C.R.

another for investigating the case, does not alfect the eorlier order as the A SC-."Ond p-;!rmission was wholly superlluous. [566 G-H, 567 B-DJ

(2) The ordet giving permission to the Inspector did not give ani reasons and there is thus a violation of s.. SA. But an illegality committed in the course of an investigation does not vitiate the mrult of a trial un less there was a miscarriage of justice. Jn the present ca!le the Icgalitv of the investigation was not challenged in the trial conn and prejudice tO the appellant was neither pleaded nor established. r568 ~D. F-0].

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( 3) Tho presumption under s. 4 arises when it is shown that the ac cused had received the stated amount and that the said amount ·was nm legal remuneration. [569 DJ.

( 4) The _words 'unless the contrary is proved' in s. 4( I) show that the presumption was to be rebutted by proof and not by a bale explana- tion which. i~ merely plausible. 1he burden resting on the accused "ill C however ho satisfied if he establishes his case by a mere prePondermce oi probability and it is not necessary for him to prove it beyond reasonable Jn the present case, the appellant's pica was not accepted by th.: doubt. trial court and the High Coutt and hence, it must be held that be had not dis~arged the burden placed on him. [571 ~E].

State of M.P. v. Mubarak A.Ii. [1959] 2 S.c.R.. 201, H. N. Risl1bm! and lnder Singh v. Sune of Delhi, (1955] 1 S.c.Il. 1150, Sfllte of U.P. ,. . D Bhagwant Kishore Joshi, A.I.R. 1964 S.C.R. 221, MlllUtllltll v. Sune <>.' U.P. A.l.R. 1964 S.C. 28, C. I. Enuln. >'. Stale of U.P. :! S.C.R. 592, Dhanvt111/1'11i Balwt111/1'11i Daai v. StaJe of Malumlshtra, A.l.R_. 1964 S.C. 575 and V. D. lhangan v. State of U.P. [1966] 3 S.C.R. 736. followed.

[1960]

(5) Under s. 6(1) (c) of the Prevention of Cor'ruption Act, the appel· lant couid n-ot be prosecuted without the previous sanction fJf the autho- rity competent to remove him. Oral evidence of the officer gi\"ing sanction cannot be relied on for 4eciding the validity of the sanction. Tiie Court must be satisfied by reference to the rules on the snbject. Schedule II to the 1961 Rules relating to discipline and appeal of railway servants makes provision for the punishment of nilway servants employed in zonal railways. Under the Schedule. a bead of a depattment was not mmpetent to impose on Class m officem the puoiabment of IelDO¥ll from service. That punishment conld only be im-1 by an appointing autho- rity or any other . higher authority. Under r. · 134. the authorities compe- tent to make first appointments to non-guetted pools arc the General Manager. the Chief Administrative Ofticer or a lower authority to whon1 he mcy dekgate power; but the power has not- been delegat~ m head~ T'ttcief~r4=~ !he Chief Med.~ai Ollicer was neither the of departments. appointing authority nor was he competent to remove the appellant from his office. Hence he was also not comoelent to grant the sanction for wo.ccutiug the app;J!lant. [571 F; 572 D; 573B-C, H; S74 A-BJ.· R. R. Chari v. State of U.P. [1963] 1 S.C.R. 121, fullowed. CRIMINAL APPELLATE JUlllSDlcnON : ~al Appeal No.

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109 of 1967.

Appeal by special leave from the judgment and order dated May 4, l 967 of the Patna High Court in Criminal Appeal J\"o. H 455 of 1965.

Debobrata Mookherjee and P. K. Ghosh, for the appellant B. P. !ha, for the respondent.

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s. N. BOSE v. BIHAR (Hegde, J.)

' 565

The Judgment of the Court was delivered by

Degele, 1.

In this appeal by special

leave, Mr. Debabrata Mookherjea learned counsel for the appellant advanced the fol lowing contentions : (1) the investigation conducted in this case was without the authority of Jaw, (2) the nature. of the onus under s. 4 of the Prevention of Corruptfon Act has been wrongly con strued 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 Jaw 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 (ap pellant) 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 behaviour 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 bunaa Jow where PW 17 recorded the complaint" of PW 4. The sa;;,_e day PW 17 obtained from the First Class Magistrate an order under s. SA of the Prevention of Corruption Act. Thereafter, PW 4 produced before PW l 7 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 re· !llflled the said currency note to PW 4 to be given to the appellant m case he made any further demand for bribe. After these pre Iiminarle_s 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 pancll

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[1968) J s.c.R.

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 ques tion. After investigation the appellant was charged under s. 161 IPC and s. 5(2) read with s. 5(1)(d) of the Prevention of Corrup tion Act.

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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 prosecu tion evidence; rejected the defence version and convicted the ap pellant both under s. 161, IPC as well ass. 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 en titled 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 noi h_ave investigated the case without the prior pennission 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 applic.ation made by PW 17. on the 12th was under s. 5A of the Prevention of Corruption Act. Therein, it is true, he had It must be remembered only asked. for permission to lay a trap. that ihe permission given was one under s. 5A. A permission under ihat provision is a pennission to investigate the case. Lay ing 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 ihe appellant was attempting to obtain bribe from him, come within the expression 'investigation' under s. 4(1) of the Code of 'Investigation' includes all the proceedings Criminal Procedure.

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[1959] 2 S.C.R. 201.

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s. N. BOSE v. BIHAR (Hegde, J.)

567

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under the Code for the collection of evidence conducted by a police officer or any person (other than a magistrate) who is autho rised 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 lnder Singh v. State of Delhi(') and State of .Uttar Pradesh v. Bhagwant Kishore Joshi("). 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 enti~e investigation. A permission given under that provision enables the officer concerned not only to lay a trap but also to hold fur ther 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. Eviden tly because of that he applied for a second permission some days after the trap was laid. But that permission v.ias wholly super fluous 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 Jaw.

It was next urged that before granting the permission the learn ed magistrate did not apply hL~ mind to the question whether there was any need for granting the same. Before permitting PW 17 he should have first ascertained whether any officer of the rank of Depnty 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 learned magis trate made the order casually; he gave no reason in support of his order and hence the permission granted does not meet the re- quirements of the law.

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The object of the legislature in enacting s. 5A was to see that the investigation of offences punishable under ss. 161, 165 or l 65A, IPC as well as those under s. 5 of the Prevention of Cor ruption Act should be done ordinarily by officers of the rank of deputy superintendent or allove. No doubt s. 5 A also provides for an alternative procedure. · An. officer below the rank of deputy superintendent can investigate those offences if he obtains the previous permission of a first-class magistrate. The legislature pro ceeded 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 offences. But exigen cies of ~dministrative convenience may . require that some of those

(I) (1955] 1 S.C.R. 11 SO.

(2) A.1.R.1964S.C. 221.

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SUPREME COURT llEPOllTS

[i968] 3 s.c.R.

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cases have to be investigated by officer.: below the rank of Deputy Superintendents. For that reason it was provided that in such cir.cumstances the permission of a magistrate of the first class shoulQ be .obtained. This Court has laid down in State of Madhya Pradesh v. Mubarak Ali( 1 ) that the statutory safeguards under s. 5A must strictly be complied with for they are conceived in public interest and were provided as a guarantt;e against frivolous and vexatious proceedings. A magistrate. cannot surrender his discre tion 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 sub ordinate 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. SA 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 any special· reason for permitting him to investigate the case unless we con- D >ider the statement in the apJ:?lication "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 the significance of s. 5A in several decisions there are still some magistrates and .police officers who continue to act in a casual manner. It is obvi ous that they are ignorant of the decisions of this Court. But the legality of the investigation held in this case does not appear to in the trial court. The charge levelled have been challenged against the appellant is established by satisfactory evidenee 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. ·Slate of Uttar Pradesh(') and State of Uttar Pradesh v. Bhagwant Kishore Joshi("). 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 proceeded 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 lnder Singh v. Slate of Delhi(').

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We next take up the question as to the scope of ~. 4 of the Prevention of Corruption Act. As mentioned earlier, the appel- H

(I) (1959] 2 S.C.R. 201. (3) A.l.R. 1964 S.C. 221.

(2) A.T.R. 1964 S.C. 28. (4)

(1955] 1 S.C.R.1150.

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s. N. BOSE v. BIHAR (Hegde, /.)

569

lant 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 ·pro secution proves that the appellant had received "any gratification (other than legal remuneration) or any valuable thing from any p~rson". He laid stress on the word 'gratification' and according ro 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 abso lutely useless. It is not necessary to go into this question in any great detail as the question is no more res integra. In C.1. En:rden v. State of U .P. (1 ) 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 remunera tion. The word 'gratification' in s. 4(1) was given its literal dic tionary 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 presump tion. 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 In our or reward as required by s. 161 of the Code. opinion this could not have been the intention of the Legislature in prescribing the statutory presumption nuder s. 4(1). ·In the context we see no justification for not ~ving the word 'gratification' its literal dictionary meampg.

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 the any valuable thing. This clause has reference to offence punishable under s. 165 ot the Code; and there is no doubt that one of the essential ingredients of the said offence is that the valuable thing should have been received by the accused without consideration or for a consideration which he knows to be inadequate. It can not be suggested that the relevant cfause in s. 4(1}

OJ 11%0J 2 s.c.R: 592.

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SUPREME COURT REPORTS

(1968] 3 S.C.R.

which deals with the acceptance of any valuable thing should be interpreted to impose upon the prosecutiou 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 rele vant section of the English statute; but if the dictionary the meaning of the word scheme of the section and leads to the same result as the meaning of the word. 'valuable thiRg' 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."

'gratification' fits in with

The same view was taken by this Court in Dhanvantrai Ra/wamrai Desai v. State of Maharashtra(') and again in V. D. Jhangan v. State of Uttar Pradesh(').

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 thei law is also Well-settled bv the decisions of this Court. Section 114 of the Evidence Act pro vides that the court !\lay presume the existence of any fact which it thinks likely to have happened, regard being had to the com mon 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 It is within its discretion to draw a presump presumption of fact. tion or not. But under s. 4(1) the court is bound to draw the presumption mentioned therein. The presumption in question In other will hold good unless the accused proves the contrary. words, the burden of proving the contrary is squarely placed on the accused. A fact is said to be proved when after considering the matters before it the court either believes it to exist or con-

(I) A.1.R. 1964 S.C. 515.

(2) [1966] 3 S.C.R. 736.

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s. N. BOSE v. BIHAR (Hegde, J.)

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(1). Therein this Court held that the ~urden 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 prob able. 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 U ttar Pradesh (2) . But at the same time it was mentioned in that decisign that the burden resting on the accused will be satis fied if the accµsed person establishes his case by a preponderance of probability and it is not necessary for him to establish his case In other words, by the test of proof beyond reasonable doubt. 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 name ly that the sanction to prosecute granted fiy PW 1, the chief medi cal officer, under s. 6(1) of the Prevention of Corruption Act is invalid as he ~as not the authority competent to remove the ap· pellant from his office and hence the prosecution is vitiated. Sec tion 6 (1), to the extent it is material for our present purpose, reads :

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"No court shall take cognizance of an offence punish• able under section 161 or section 164 or section 165 of the Indian Pertal Code, or under sub'section (2) or sub-section ~A of section 5 .of this Act, alleged to have been. comm1tt~d bt a public servant, except with the previous sanct10n ..

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competent to remove him from his office."

(I) A.LR. 1964 S.C. 575.

L7 Sup. Cl/68-12

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[1966] 3 SC R 736

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(1968) 3 S.C.R.

This Court has laid down in R. R. Chari v. State of UP. (1 ) ; Bil well as in several other decisions that no court can validly take cognizance of any of the offences mentioned in s. 6(1) of the Pre vention of Corruption Act without the previous sanction of the authority ~ompetent to remove from office the accused. Without a valid sanction the court had no jurisdiction to try the case. Hence, if the sanction accorde4 in this case is invalid then the appellant is entitled to be acquitted.

P.W. 1 deposed that the appellant was a class ill 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 appel lant could have been removed from his office either by the Deputy Agent Personnel or by himself was challenged in his cross-exa mination. 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 t.o 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 wo granted him several adjournments. Though our atten tion has now been invited to some rules, those rules do not estab }ish that P. W. 1 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' pub lication under the title "authorised scales oi pay'', the appellant is a class III officer. From that publication it is further seen that only class I and Il officers are designated as gar.etted ·officers. In support of his contention that he was a gazetted officer, the ap pellant relied on the Railway Board's letter No. PC/60/PS-S/MH- 3 dated 2-3-1962. Paragraph 4 of that letter-the only relevant paragraph for our present purpose--i;ays that an assistant surgeon after five years service shall hold the honorary gazetted rank and shall be entitled to the usual privileges granted to gar.etted officers in matters such as passes,. allotment of quarters. This letter mere ly indicates that the officers mentioned therein are entitled to cer tain privileges which are· ordinarily available to gazetted officers. We are unable to read that letter as raising the rank of the appel lant to that of a gazetted officer. Therefore we proceed on the basis that the appellan_t was a non-gazetted officer. ·But the ques tion still remains whether P.W. 1 was competent to remove him

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ll963J l S.C.R. 121.

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s. N. BOSE V. BIHAR (Hegde, J.)

573

from service. In view of appendix 38 of the Indian Railways Esta blishment Code Vol. II (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 from his service.

the appellant

As per r. 134 of the Indian Railway Establishment Code, pub lished 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 pre scribing the authorities competent to remove from office a class Ill 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 provi sions contained in Chapter XVII and Appendices IV and XVIIl 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 pro visions of any Jaw, for the time being in force, relating to the con duct 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 VIIl." 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 I, JI and Ill 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 S.:i:'ice Commission, the Railw~y Rates Tribunal, the Railway L1a1son Office and all other ratlway offices which are not enu merated above. Schedule I does not apply to the case of railway s:ryant~ employi;<I in the zonal railways. As regards them, pro v1s1on 1s made m Sch. JI. From that Schedule it is seen that though a head of the Department can impose on Class Ill officers

B

c

D

F

G

H

i

574

SUPREME COURT REPORTS

[1968) 3 S.C.R.

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 con clusion that P.W. 1 was competent to grant sanction under s. 6 ( 1) of the Prevention of Corruption Act.

A

B

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.

A ppea/ allowed.