Lakshmi Narain, J.C.
1. On a motion filed by the two accused Atul Chandra Gautam and Manindra Chandra Dev Varma, the learned Sessions Judge, Tripura has referred the case under Section 438, Cr.P.C. with recommendation that proceedings against the accused in case No. 77 Chhang of 1950 pending in the Court of Sri S.C. Kar, Magistrate Khowai, be quashed on the ground that the Magistrate could not proceed with the case under Section 161, I.P.C. without proper sanction as required by Section 6 of the Prevention of Corruption Act of 1947 (Act II of 1947).
2. I have gone through the record of the case as also the explanation given by the Magistrate.
3. The learned Sessions Judge has made the following observation in recommending this motion:
The petitioners were being charged under Section 161, I.P.C., i.e., for taking illegal gratification. The offence is alleged to have been committed on 16.7.1950. Now, by virtue of Part C States (Laws) Act (Act I of 1950) read with the Merged States (Laws) Act (Act LIX of 1949), certain Acts including the Prevention of Corruption Act 1947, (Act II of 1947) were extended to Tripura with effect from 16.4.50. It appears that there was Tripura State Prevention of Corruption Act, 1359 T.E. (Act 7 of 1359 T.E.) in force in Tripura. It appears that this Act corresponds to the Prevention of Corruption Act, 1947 (Act II of 1947). Under the provisions of Section 4 of the Part C States (Laws) Act, 1950 (Act I of 1950), therefore, the old law stood repealed with effect from 16.4.50 and the new law contained in the Prevention of Corruption Act (Act II of 1947) was extended to Tripura with effect from the same date. Now Section 6 of the Prevention of Corruption Act, 1947 (Act II of 1947) provides as follows:
No Court shall take cognizance of an offence punishable under Section 161 or Section 156 of the Indian Penal Code or under Sub-section (2) of Section o of this Act alleged to have been committed by a public servant except with the previous sanction,
(a) in the case of person who is employed in connection with the affairs of Federation and is not removable from his office save by or with sanction of the Central Government or some higher authority of the Central Government;
(b) In the case of a person who is employed in connection with the affairs of a Province and is not removable from his office save by or with the sanction of the Provincial Government or some higher authority, of the Provincial Government;
(c) In the case of any other person, of the authority competent to remove him from his office.
It will be seen that there is a distinction between this section and Section 197, Cr.P.C., inasmuch as the significant words 'While acting or purporting to act in the discharge of his official duty' in relation to the description of the public servant in Section 197, Cr.P.C., are absent from the Section 6 of the Prevention of Corruption Act, 1947 (Act II of 1947). The effect is that in a prosecution under Section 161, I.P.C. previous sanction is a necessity, irrespective of the question whether the public servant was acting or purporting to act in the discharge of his official duty.
The learned Magistrate in his explanation stated that in view of the language used in Section 197, Cr.P.C. '...the provision is not intended to be applied in cases where a public servant does not act in the discharge of his official capacity'. That this view is clearly wrong will appear from the decisions reported in Gurucharan Singh v. State 1952 Cri LJ 316 (Punj).
The learned Magistrate could not have therefore taken cognizance of the complaint and should have dropped the proceedings.
The learned Magistrate in his explanation further stated that the accused persons did not seem to be prejudiced, even if sanction is deemed necessary. This is clearly incorrect as the greatest prejudice has been occasioned to the petitioners by the case against them being dragged from 14.10.50 to uptil 23.5.52, while the case was liable to be dropped in the very beginning because of want of sanction.
The learned Magistrate in his explanation further stated that in view of certain actions of the Home Secretary and Section P., it should be held that implied sanction was given to the prosecution. The theory of implied sanction appears to me to be a novel one. It is clearly unknown to law. It has been held in In Re Devanugraham 52 Cri.L.J. 29 (Mad) that sanction for prosecution under Section 161 I.P.C. to be a legal one should be clearly evidenced either from the order granting the sanction or other documentary evidence placed before the Court or even oral evidence that the facts were placed before the officer from whom sanction was sought.
The learned Magistrate in his explanation further stated that the petitioners did not take such objection at the earliest opportunity and allowed the case to proceed for more than 5 months and that under Section 537, Cr.P.C., also the objection failed. I have elsewhere made the strongest comments on the conduct of the learned Magistrate for dragging the case in this manner from 14.10.50 to 23.5.52. The petitioners could hardly be blamed for allowing the case to proceed with when they were not responsible for either initiating the proceedings or terminating the same. No onus lies on the accused petitioners to take the objection which should have been taken notice of by the learned Magistrate on his own initiative. The learned Magistrate should have made himself conversant with the provisions of Section 6 of the Prevention of Corruption Act (Act II of 1947) and acted accordingly.
Section 537, Cr.P.C., cannot in my opinion cure an illegality of this kind which cuts away the basis of the prosecution.
4. Suffice to say the above observation is on the face of it correct. Accepting the recommendation, therefore, it is ordered that the proceedings taken against the two accused (petitioners) are quashed as they have been taken without the previous sanction for prosecution of the appropriate authority as required by law (Section 6 of the Prevention of Corruption Act 1947 (Act II of 1947).