1. Budh Sagar aged 27, resident of village Jamunahi, police station Itiathok, district Gonda has been found guilty of an offence under Section 5 (1) (d) of the Prevention of Corruption Act (Central Act II of 1947) read with Section 5(2) of the same Act and has been sentenced to rigorous imprisonment for two years and has been directed to pay a fine of Rs. 200/- with four months* further rigorous imprisonment in default. Against his conviction, sentence and fine, he has preferred this appeal. The appeal came up for hearing before one of us and a reference was made to a Bench in view of certain observations made by a learned Single Judge in the case of Ram Pukar Singh v. State. AIR 1954 All 223. Today we have heard the learned counsel for the appellant and the learned counsel for the State.
2. The prosecution case, in brief, is that Budh Sagar was an Amin in the Irrigation Department attached to Kohargaddi reservoir, police station Pachhperwa, district Gonda in October, 1958. Village Gurchihwa was within his circle and the scheduled rate of Rs. 1/9/- per bigha for irrigation of fields applied to that village. The scheduled rate applies only to villages where the tenants have the option of irrigating their fields or not.
A flat rate applies to villages where no such option is allowed and whether the tenants irrigate their fields or not, they have to pay the irrigation charges at the flat rate of -/5/- per bigha. The prosecution further alleges that the tenants of village Gurchihwa did not irrigate their fields as the rate was high, it had rained towards the end of September and in the beginning of October 1958 and they were told by the Engineer that the water would first be supplied to villages subject to flat rate of charges.
In any case, the allegation is that Budh Sagar went to village Gurchihwa on 10th October, 1958, at about noon and threatened to measure the area of Jand which the tenants had irrigated from the canal. He even, started making certain measurements in the fields of Zakat Mohammad, Mohammad Aqbal and several others. There were pro-tests and then the appellant demanded a sum of Rs. 50/- from Zakat Mohammad as bribe. After some higgling, a settlement was made at Rs. 50/-. Zakat Mohammad promised to pay the amount when he had arranged for the money.
He, however, went to his cousin, Mohammad Naseera Khan and Rupendra Nath Gupta, the Secretary and the President of the Praja Samaj Party respectively. After consulting them, he came to Gonda and gave a written report Ext. ka 1 to the Deputy Superintendent of Police (Complaints) on 13-10-1958. P. W. 6 R. N. Tyagi obtained the Deputy Commissioner's permission for investigation and to lay a trap. Zakat Mohammad paid the sum of Rs. 30/-, in notes of which numbers had been previously noted, to the appellant at the house of Abinash Chandra Patrol.
As soon as Zakat Mohammad came out of that house, the Deputy Superintendent of Police (complaints) R. N. Tyagi P. W. 6, Lalji Govind Rao, Station Officer, police station Pachhperwa, P. W. 5, and K. M. Munshi Circle Inspector accompanied by two other persons entered the house and told the accused that they would search his person. The accused said nothing and it is stated that three currency notes of Rs. 10/- each were recovered from his closed fist. A report was then lodged at police station Pachhperwa and finally a charge-sheet was submitted against the appellant on 21st December, 1958.
3. For our purposes it is not necessary to give the defence in detail. It is sufficient to state that the accused's case was that he had not taken the money and that Zakat Mohammad had only told him that the money was meant for the Ziledar as advance rent in respect of certain land ordinarily covered by the reservoir but available for cultivation when the level of the water goes down.
4. The question of sanction was raised before the learned Special Judge in the beginning but Sri Ishwari Prasad Advocate for the accused made a statement on paper A 51 withdrawing the objection as regards the validity of the sanction and stating that the sanction on the file was a valid one. Thereupon the learned Special Judge proceeded with the trial of the case. At the time of the de-fence, however, the question was raised a second time. The learned Special Judge held, in view of the decision in Ram Pukar's case, AIR 1954 All 223 (supra), that the question could not be raised a second time and that the question of sanction could be raised only at the time of taking cognisance. The learned Special Judge convicted the appellant as stated earlier.
5. In Ram Pukar's case, AIR 1954 All 223 (supra), Desai, J., did not, to our mind, lay down the proposition stated by the learned Special Judge. In that case the applicant had challenged his conviction on legal grounds including a ground that the sanction was not proved. Desai, J., thereupon stated:-
'This signature of the Superintendent, Watch and Ward, on the sanction has not been proved, But there was no dispute about the signature..... The learned Magistrate was justified in presuming that the sanction purporting to have been given by the Superintendent, Watch and Ward, was in fact given by him. Once he took cognizance of the offence no question of proving the sanction could arise subsequently. Whether the sanction had been given or not was to be seen before taking cognizance of the offence and not after it. If there were no sanction, no cognizance of the offence could be taken at all. The sanction was required only for the purpose of taking cognizance of the offence; 'once the cognizance was taken, its utility was exhausted and it was no longer needed either during the enquiry into the guilt of the accused or for the purpose of Convicting him. Whether an accused is guilty or not does not depend upon whether his prosecution was sanctioned or not; the existence of sanction is not an ingredient of any offence. Nor is it the law that an accused cannot be convicted unless the sanction by the appropriate authority of his prosecution has been proved.'
It appears that Desai, J., was then considering only the question whether it was necessary that the sanction should be proved. Subsequently, however, he stated:-
'After the Court has taken cognizance of the offence, all that the prosecution has to prove in order to secure conviction of the accused, is that he committed the crime, and there is no provision obliging it to prove any other fact such as the sanctioning of his prosecution. Only the Court had to be satisfied of the existence of the sanction, and that too before taking cognizance, and once the prosecution satisfied it and it took cognizance the prosecution could not be required and is not required by any statutory provision to satisfy it again or the accused.'
These remarks certainly lend themselves to the interpretation put on them by the learned Special Judge. But a reference to the last sub-paragraph will make the intention of the learned Judge clear for he stated:-
'It was open to the applicant to rebut the presumption. But not only did he not lead any evidence to prove that the signature on the sanction was not that of the Superintendent but also ha did not question the genuineness of the signature. When there was no controversy at all before the learned Magistrate about the sanction having been given by the Superintendent, Watch and Ward, the prosecution was not required to do anything such as producing evidence to prove the signature.'
This quotation clarifies the position. Desai, J.,clearly envisaged the possibility that at a subsequentstage, after the cognizance had been taken, the accused could challenge the validity of the sanctionand then the Court was bound to enquire into thatquestion. We, therefore, do not understand thisruling to lay down the proposition that once theCourt has been satisfied as regards the validity of the sanction and has taken cognizance, it is nolonger open to the accused to challenge or to theCourt to consider the validity or sufficiency of thesanction.
6. We are fortified in our view not only by the remarks of Desai, J., but the view taken in certain other cases. In the case of Bhagwan Sahai v. State of Punjab, AIR 1960 SC 487 the question of the invalidity of the sanction was gone into. If this question could not be raised once cognizance had been taken by the trial Judge, it would not have been necessary to consider the question at all. In-ferentially, therefore, it may be said that this case is an authority for the view that the question of the validity of the sanction may be discussed even after cognizance has been taken by a Court.
7. In the case of Baij Nath Prasad v. State of Bhopal, (S) AIR 1957 SC 494 the question of the invalidity of the sanction was gone into. The trial Judge had held that the sanction was a proper and valid sanction. The Judicial Commissioner took a different view and held that the sanction was invalid. Again, it is clear that the question of the validity of the sanction was not considered a closed chapter but was held to be a question which may be discussed even after cognizance had been taken of the case.
8. We arc further of opinion that it could never have been the intention of the Legislature that the question as regards the validity or sufficiency of the sanction should be decided against the accused in his absence without giving him an opportunity to press his contentions on the point. Further, the question of the validity of the sanction raises a question of jurisdiction and we are inclined to the view that the question as regards the jurisdiction of a Court to take seisin of the particular matter may be raised at any stage before the trial closes.
9. We are, therefore, of opinion that the learned trial Judge was wrong in his interpretation of the decision of this Court in the case of Ram Pukar, AIR 1954 All 223 (supra) and that the correct view is that the question of the validity or sufficiency of the sanction may be raised by the accused at any stage before the final decision has been I given by the trial Court.
10. The next question before us is as regards the sanction Ext, ka 16. It is agreed that the earlier sanction Ext. ka 15 does not accord a valid sanction. Ext. ka 16 is a queer document. It reads :-
'I herewith sanction the prosecution under Section 161, I, P. C. read with Section 5, Prevention of Corruption Act of Sri Budh Sagar Amin as desired by you.'
As this sanction did not, on the face of it, indicate that the sanctioning authority, Kr. Pravin Chandra Singh, Executive Engineer, Irrigation Division, Gonda had considered all the relevant materials and had applied his mind to the facts of the case, the learned trial Judge rightly summoned this witness as a Court witness under Section 540 of the Code of Criminal Procedure (The question of the validity of the sanction was raised at the stage of the defence). The statement of this witness, however, makes a queer reading. It appears to us that this witness does not even -understand his functions and obligation at the time a sanction for prosecution is to be granted. He states:-
'When letter Ext., ka 15 was put before me, I had seen only two papers namely the report of the Dy. Superintendent of Police (C) received through the Superintendent of Police and the suspension order of Sri Budh Sagar accused passed by my predecessor in office.'
Witness, however, refers to Ext. ka 19. This document is not a copy of the report of the Deputy Superintendent of Police that is referred to by him earlier. In fact, no copy of that report has been placed by the prosecution on the record. He further stated:-
'When I had signed Ext. ka 15 I thought that the accused Sri Budh Sagar had been caught with some money and since the rules do not provide that the Amin should receive any money I thought that he had done something illegal and so I signed that letter ..... Witness read the letter Ext. ka 16 and stated that he did not have full knowledge of facts at the time of signing it upon which it was thought to prosecute the accused Budh Sagar. What I thought at the time was that the Amin had behaved in a manner which was not proper for him to do and I thought that in order to maintain the prestige and the reputation of the department it was just as well that the matter be thrashed out in a Court of law. I did not know at the time of my signing the letter that it was my duty before according sanction for the prosecution to deliberate and take a deliberate decision as to whether it was a fit case for according sanction for prosecution... I was told that I should go through the whole file.''
When cross-examined by the State Counsel, witness stated:-
'I had gone through the report of the Dy. S. P. (Complaints) addressed to the Superintendent of Police. Before according the second sanction dated 26-7-1959 I had read the detailed) report of the Dy. S. P. (C) addressed to the Superintendent of Police, Gonda about this case. I had taken my decision in accord sanction to the prosecution of Sri Budh Sagar even before I had read the report of the Dy. S. P. (C) and I did not withdraw it even after read-ling it ..... The report of the Dy. S. P. (C) was only a resume of facts and I had not read the statements of witnesses, if any, recorded by the Dy. S. P. (C) and that is why I say that I did not have the knowledge of full facts. I had Come to know before signing the letter Ext. ka 15 that the accused Budh Sagar was alleged to have accepted illegal gratification and he was suspended in that very connection ...... It was in my knowledge that the charge of receiving illicit gratification had been made against the accused Budh Sagar and was the subject of investigation by the Police and this I knew before recording my sanction for the first time.'
In Cross-examination by the learned counsel for the accused the witness stated:-
'When I had accorded the sanction dated 26-7-1959, I did not have before me the F. I. R. the recovery memo, the statements of the witnesses or the papers of the Ziledar relating to the work of the accused prepared by the Dy. S P. (C) ..... I did not, as such, have full facts of the case in my knowledge even when I had accorded the second sanction. I had seen the papers in a general manner .....'
From this statement it is obvious that the witness takes his duties lightly. He accepts that he did not know full facts and he does not appear to have taken the trouble of ascertaining them before according the sanction for prosecution. In any case, the witness does not appear to have realised that it was his duty to take a deliberate decision as to whether it was a fit case for according sanction for the prosecution. In these circumstances on the evidence of this witness, it is clear that the sanction has been granted as a matter of routine, perhaps on the request of the prosecuting authority and without the application of his mind by the officer concerned. In fact, we find it difficult to believe that this witness is capable of attending to the matter of granting sanction properly.
11. However, as the sanction has not been validly and properly given, the whole trial is vitiated., We accordingly set aside the conviction, sentence and fine of the appellant. He is on bail and need not surrender to his bail bonds, which are discharged. We need not go into the facts of the case. The whole record of the Case will be consigned to the record room, without further orders.