1. Two points have been raised before us by Mr. Thakore in this appeal. He contends that the conviction of the appellant cannot be sustained on the merits because the order of conviction in substance is based on the evidence of accomplice witnesses and the only corroboration on which the prosecution is able to rely is the corroboration coming from the account books written by the accomplices themselves.
Mr. Thakore's argument is that once it is held that the witnesses are accomplices, they should not be allowed to corroborate themselves even though they seek to corroborate their oral testi-mony by the production of a contemporaneous document in the form of account books. Corroboration which is required in law to the testimony of an accomplice is corroboration coming from independent sources, and Mr. Thakore is prepared to say that even if the evidence of the prosecution is taken at its highest the only corroboration which the prosecution has been able to produce is from the accomplices themselves
2. The second point which Mr. Thakore has raised is that the whoie of the trial is without jurisdiction inasmuch as the appellant could not be prosecuted for the offence charged without a valici sanction and the sanction that is produced is invalid. Logically and as a matter of law it would be necessary to deal with the second point first, and if we hold, as we propose to, that Mr. Thakore is right when he contends that the sanction produced against his client is invalid, it would be unnecessary to consider the merits of the other argument urged by him before us. Indeed on the view which we are going to take the trial is invalid and the merits do not fall to be considered at all.
3. The charge against the appellant was that as a station master he was in the habit of accepting bribes from several merchants who wanted to send their goods by railway. He was a station master at Sonasan railway station between 24-12-1947 and 24-11-1948 and the total amount of illegal gratification which he is alleged to have received during this period is Rs. 134-7-0.
The prosecution examined Shakralal and Himatlal to show that their firms paid illegal gratifications to the appellant from time to time and it is on tneir evidence and the account books produced by them containing the entries in respect of these payments that the prosecution relied in support of its charge. The learned Judge who tried this case was satisfied that the charge had been proved on the merits and he also held that the sanction was valid.
But in coming to the conclusion that the sanction was valid the learned Judge was influenced, and rightly, by the decision of Dixit J. who had occasion to consider the same point in another criminal case filed against the same appellant. Indeed, it appears that in the said earlier case where the present appellant was charged under Section 161, Penal Code it was discovered at the investigational stage that the accused was in the habit of accept-ing bribes and that Investigation really served as the genesis for the present prosecution.
The said criminal case had a somewhat chequered career. It had come there to this Court before Dixit J. and one of the points raised before the learned Judge was that the sanction was invalid. Dixit J. felt that this point should have been raised on earlier occasion when he was dealing with the same matter, and since the order of remand passed by pixit J. assumed that the sanction was valid, Dixit J. did not allow Mr. Thakore to raise the point about the invalidity of the sanction when the matter came back to this court against the final order of conviction and sentence.
Having stated that argument which was raised before him by Mr. Thakore, Dixit J. referred to the previous history of the case and he observed that the case had been sent down to the learned Additional Sessions Judge in order that he may deal with the merits of the case. 'It seems to me', says Dixit J.,
'that it is not now open to me to reconsider a finding already recorded in the case. On this ground, I think, the first contention must fail.'
It would thus be clear that the merits of the argument that the sanction was invalid never came to be considered and decided by this court in the earlier case.
4. The point about the Invalidity of the sanction really lies within a very narrow compass. The appellant is a Class III railway servant, and it is common ground that it is the General Manager of the railways who is the appointing authority and who normally can take disciplinary action of suspending or dismissing the appellant from service.
The argument urged before the Lower Court was that the General Manager was given the power to delegate his authority to remove or dismiss Class III servants and as such the delegate Traffic Superintendent was authorised to dismiss the appellant and so he was empowered to grant the sanction in the present case. The sanction has been granted by the Traffic Superintendent and not by the General Manager.
But the learned Judge accepted the prosecution case that as a delegate from the General Manager the Traffic Superintendent was competent to dismiss the appellant and was likewise competent to grant sanction to prosecute him, as required by Section 6, Prevention of Corruption Act. Rule 1704 of the Discipline and Appeal Rules under the Indian Railways Establishment Code Vol (sic) 1951, provides that
'subject to the provisions of Rule 1705, the authorities specified in col. 3 of Schedule I appended to the rules in this chapter may Impose the penalties specified in col. 4 upon the classes of railway servants shown in col. 2 of that schedule.' When we turn to Sch. I, item No. 3 refers to all classes of non-gazetted staff, and the authority empowered to impose penalties, as shown in col. 3, is the Head of Office. It is not disputed that the Traffic Superintendent is not the Head of Office and so it is clear that under Rule 1704(i) the Traffic Superintendent would not be entitled to impose a penalty on the appellant. That indeed is not the prosecution case.
Rule 1704(ii) authorises the General Manager, in respect of railway servants under his administrative control, to delegate to the authorities sub-oidinate to him power to impose those penalties, except the penalties mentioned in that Sub-rule. The learned Assistant Government Pleader contends that if it was open to the General Manager to delegate his authority to impose penalties against the members of subordinate staff and if in facthe has delegated the authority to the Traffic Super-intendent, there is no reason why the Traffic Superintendent should not be authorised to sanction the prosceution of the appellant.
The difficulty in accepting this argument however is the opening words of Rule 1704, themselves, which are 'subject to the provisions of Rule 1705'. It cannot be denied that these opening words govern the provisions of Rule 1704(i) and Rule. 1704(ii), so that the delegation which the General Manager purported to make in favour of the Traffic Superintendent is subject to the provisions of Rule 1705, and Rule 1705(c) provides that
'no railway servant shall be removed or dismissed by an authority lower than that by which he was appointed to the post held by him sub-stantively.'
It is conceded that under Clause (c) of Rule 1705 the only authority that could remove or dismiss the appellant is the General Manager and not the Traffic Superintendent, so that it is clear that in regard to the power to dismiss a railway servant a delegate cannot exercise his authority having regard to the fact that the delegation is subject to the provisions of Rule 1705.
If that be so, there is no doubt that the sane-5 tion has been granted in this case by an officer i who was not competent to dismiss the appellant. I in that view of the matter, it must be held that the objection raised by Mr. Thakore against the validity of the trial is well founded. That alone would be enough to dispose of this appeal.
5. The order of conviction and sentence passed against the appellant must be set aside on the ground that the trial is without jurisdiction in the absence of a proper sanction.
6. Before we part with this appeal however we would like to add that the appellant has been already convicted in another case and has already undergone a sentence of two months imprisonment. He has subsequently been dismissed from service and we are told that he has lost his provident fund, gratuity etc., and all other amenities to which he was entitled in the absence of a conviction in the criminal case.
Besides, whether or not we might have accepted Mr. Thakore's arguments on merits if we had reached that stage it is clear that the evidence op which the prosecution sought to rely is the evidence of accomplices sought to be corroborated by the accomplices themselves. This incident took place some years ago. We, therefore, think that it would not be expedient in the interests of justice tnat the appellant should be tried again.
7. The appeal accordingly succeeds and theorder of conviction and sentence is set aside. Bailbond cancelled.
8. Appeal allowed.