K.P. Mohapatra, J.
1. This appeal is directed against the order passed by the Special Judge (Vigilance), Sambalpur convicting the appellant under Section 5(2) of the Prevention of Corruption Act (referred to as the 'Act') and under Section 409 I. P. C. and sentencing him to imprisonment of various terms and fines of different amounts with a further direction that the sentences of imprisonment shall run concurrently.
2. The brief facts of the prosecution case are that the appellant was serving as the Revenue Inspector of Tora within Bargarh Sub-division in the months of July and August, 1975. During those months there was a special drive for collection of land revenue and water tax from tenants. The appellant as the Revenue Inspector of the area was incharge of collection thereof. On 26. 7. 1975 he collected a sum of Rs. 50/- and again on 27. 7. 1975 he collected a further sum of Rs. 400/- from Ramesh Chandra Sahu (P. W. 5) towards land revenue and water tax. In July 1975 he collected a sum of Rs. 800/- from Gourishankar Sahu (P. W. 8) towards royalty of a Sairat. On 23. 8. 1975, he collected Rs. 500/- towards land revenue and water tax from Madanmohan Sahu (P. W. 9). The appellant' also collected a sum of Rs. 300/- in two instalments from one Krushna Chandra Sahu towards land revenue and water tax. Despite receipt of the aforesaid amount of Rs.2050/-, the appellant did not grant receipts to the prayers. He did not reflect the receipts in the books of accounts. On the other hand, he misappropriated the entire sum of Rs. 2050/-. Much later on 15. 10. 1976 he gave refund of Rs, 750/- through his successor Revenue Inspector, P. K- Sarangi (P. W. 6). Complaints were made against . the appellant of misappropriation and F.I.R, was lodged by the Officer-in-charge, vigilance, Police Station, Sambalpur on 16. 9.1976. After close of investigation by the Vigilance Organisation, Charge-sheet was submitted against the appellant.
3. The learned Special Judge framed charges against the appellant for offences under Sections 5 (1) (c) and 5 (1) (d) punishable under Section 5 (2) of the Act and under Section 409 I. P. C. The appellant denied the charges.
4. During trial, the prosecution examined eleven witnesses including most of the persons who made payments to the appellant and also produced a large number of documentary evidence. After consideration thereof, the learned Special Judge found the charges established against the appellant and, therefore, he convicted and sentenced the appellant as referred to above.
In Paras 5 to 9 the facts of the case have been stated by the Court. After stating the facts, His Lordships Observed.
10. The collection registers which have been proved do not how receipt of the various amounts from P. Ws. 5, 9 and -Krushna Chandra Sahu. There is clear evidence on record of the persons who made the payments to the appellant supported by documentary evidence and the evidence of public officers, such as, P. Ws. 4, 6 and 7 to the effect that the appellant received Rs. 450/- from P. W. 5, Rs. 500/- from P. W. 9 and Rs. 300/- from Krushna Chandra Sahu but did not account for the same. It is unthinkable that all these ' persons formed an unholy combination to entrap the appellant for no apparent reason. The evidence of the prosecution as already discussed is convincing, save and except, very insignificant variations here and there which cannot be taken note of because, whilst the occurrence was in the months of July and August, 1975 the witnesses were examined in 1979 and 1980. In such circumstances discrepancies were bound to occur. In consideration of the evidence adduced by the prosecution, I hold in agreement with the learned Special Judge that except the alleged payment of a sum of Rs. 800/- made by P. W. 8 the rest of the payments to the appellant according to the charges have been established beyond reasonable doubt. In, this connection I cannot resist the temptation of quoting from the decision reported in A. I. R. 1959 S.C. 1390 : Krishna Kumar v. Union of India.
'It is not necessary or possible in every case to prove in what precise manner the accused person has dealt with appropriated the goods of his master... The question is one of intention and not a matter of direct proof but giving a false account of that he has done with the goods received by him may be treated a strong circumstance against the accused person. In the case of a servant charged with misappropriating the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss than the. facts being within the servant's knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and than by reason of Section 106 of the Evidence Act to throw the onus on him to prove his innocence.'
In a recent decision of this Court reported in 56(1983) C. L. T. 288 : Md. Sabir Hussain v. State of Orissa, it was held that in a case where entrustment is proved or admitted, it would be for an accused person to account for the money entrusted with him and the prosecution may not be in a position to show as to how exactly the money has been misappropriated or converted by an accused person to his own use, but the evidence and the circumstances must lead one to a reasonable conclusion that an accused person in order to cause wrongful gain to himself or wrongful loss to another, has committed misappropriation. Since the appellant being a public servant received the amounts but did not account for the same though he was bound to do so, it cannot but be said that he was guilty of misapropriation.
11. Even though it has been found on the evidence adduced the prosecution that the appellant received various amounts due to Government from the prosecution witness, did not account for the same and misappropriated the amounts, it is yet necessary to consider important aspect canvassed by Mr. P. K. Misra to the effect that in absence of a valid sanction under Section 6 of the Act, the entire proceed is null and void, as a consequence of which, the appellant is entitled an acquittal. Indisputedly Section 6 of the Act is of mandatory character [See 52 (1981) CLT 157, Republic of India v. Khagendranath Jha Trial of an offence under Section 5(2) of the Act is no trial at all due to want of valid sanction under Sectio. 6 of the Act [See 58(1984) CLT 1; Rajib Lochan Pradhan v. State]. In 1971 S.C. D. 1126; Major Somnath Union of India and Anr., the Supreme Court held as follows :
'...For a sanction to be valid it must be established that the sanction was given in respect of the facts constituting the offence with which the accused is proposed to .be charged. Though it is desirable that the facts should be referred to in the sanction itself, none-the-less if they do not appear on the face of it the prosecution must establish aliunde by evidece that those facts were placed before the sanctioning authorities...'
In A.I.R. 1979 S.C. 677 ; Mohd. Iqbal Ahmed v. State of And Pradesh, the law with regard to sanction under Section 6 of the Act been succinctly and lucidly laid down. It was held as follows :
'...It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways ; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initie.
X X X X'...because what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solimn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.'
Also see 56(1983) C.L.T. 288 ; Md. Sabir Hussain v. State of Orissa.
12. The relevant portion of the sanction order (Ext. 19) is quoted below not only for easy reference but also to see if the Sanctioning Authority, namely, the District Magistrate, Sambalpur had applied his mind to the facts and evidence of the case before according sanction for the prosecution under Section 6 of the Act.
'Whereas it is alleged that Sri Baikunthanath Mohanty while functioning as Revenue Inspector, Tora Revenue Circle under Bargarh Tahsil Office during the period from 12. 7. 1970 to 26. 10. 1975 collected arrear land revenue, water tax and Sairat dues amounting to Rs. 2050/- in village Tora from Sri Ramesh Chandra Sahu, Krishna Chandra Sahu, Madan Mohan Sahu, and Gouri Shankar Sahu in July/August 75 but did not issue receipts to them for the amounts collected. The said Baikunthanath Mohanty did not deposite the amount on Govt. account nor made entry in the concerned records regarding these collections and misappropriated the same.
X X X XAnd where as I Sri Surandra Nath Khuntia, I. A. S. (Name and Designation of the sanctioning authority to be noted) being the authority competent to remove the said Sri Baikunthanath Mohanty from service, consider after carefully examining the material and evidence before me with regard to this report that the said Sri Baikunthanath Mohanty should be prosecuted in the Court of law for the above mentioned offence.'
According to the evidence collected by the prosecution, different prosecution witnesses paid different amounts to the appellant on different dates. Some of them made complaint before the Sub-divisional Officer Bargarh and the matter was enquired into. It is also on record that the appellant subsequently paid Rs. 7501- and accordingly receipts were granted in favour of two persons who had paid amounts to the appellant. A large number of documents were also seized to be used as evidence by the prosecution. In the sanction order no reference at all has been made in respect of the evidence both oral and documentary which the Sanctioning Authority considered before according sanction. All these evidence in the shape of statements and documents were in possession of the prosecution before sanction was accorded. Therefore, it was essential that all the evidence collected by the prosecution should have been placed before the Sanctioning Authority whose duty it was to peruse them and consider if it was a fit case for Sanctioning prosecution under Section 6 of the Act. But on perusal of the sanction order (Ext. 19) it would appear that the Sanctioning Authority stated bare facts and it did not even indicate that he had applied his mind to the facts of the case before according sanction. No other evidence was also adduced by the prosecution to prove that all the collected materials were placed before the Sanctioning Authority who after applying his mind and considering the facts of the case accorded sanction for the prosecution. This being the position, the conclusion is irresistable that the mandatory provision of Section 6 of the Act was violated and the order of sanction being invalid the prosecution and trial of the appellant under Section 5(2) of the Act is void ab initio.
13. The next point for consideration is whether the charge framed against the appellant under Section 409 I.P.C. for the same cause of action can be sustained. Since the trial of the appellant for offence under Section 5(2) of the Act is null and void, trial of the offence under-Section 409 I.P.C. is without jurisdiction. There are direct decisions in support of the aforesaid view. In A.I.R. 1961 Patna 203; Ramautar Mahtoo v. The State, the appellant was charged for an offence under Section 5(2) read with Sections 2(1) (a) and 2(1) (c) of the Act and in respect of the same facts he was further charged for an offence under Section 409 I.P.C. The learned Special Judge acquitted the appellant of the charge under Section 5(2) of the Act because of want of sanction under Section 6 thereof. But he convicted the appellant under Section 409 I.P.G. A Division Bench of the Patna High Court held as follows :-
' The question which arises in the present case is whether the trial of the other offences can be held to have been without jurisdiction when the Special Judge convicts the accused for such an offence by the same judgment by which he holds that he was not competent to try the offence which he was trying under Section 7(1) of the Act XLVI. In my judgment, the same result must follow.
As the proceeding before the Special Judge in this case relating to the offence under Section 5(2) of Act II was no trial at all due to the absence of a valid sanction, the Special Judge had no jurisdiction under Section 7(3) of Act XLVI to try the offence under Section 409 of the Penal Code also. The trial for the offence, being without jurisdiction, is null and void. The appellant's conviction cannot, therefore, be upheld. Indeed, no order, either of acquittal or conviction, can be passed. '
On identical facts a Division Bench of the Gujarat High Court in 1963 (2) Criminal. L. J. 556 ; Sahebkhan Umerkhan v. The State, relied upon the decision in Ratniutar Mahton case (supra) and held as follows :
' It is clear from what we have discussed earlier that as there was no valid sanction to prosecute, the Special Judge, Rajkot District, did not get any jurisdiction to entertain the matter so far as the offence punishable under Section 5(2) of the Prevention of Corruption Act is concerned, and that the learned Special Judge also had no jurisdiction to try the offence under Section 409 I.P.C. Since this is a question of want of jurisdiction, it is obvious that the entire trial before the Special Judge was vitiated and, therefore, the orders of conviction and, sentence passed against the accused in both these cases must be set aside. We wish to make it clear that the accused is being discharged and not acquitted as we have not gone into the facts or considered the merits of the evidence led before the trial Judge.'
There are also three decisions of this Court reported in 52 (1982) CLT 167 : Republic of India v. Khagendranath Jha, 58 (1984) C.L.T. 1: Rajib Lochan Pradhan v. State, and 58 (1984) C.L.T. 53 : 1984 (I) OLR 597 : B.K. Kutty v. State in which the decisions reported in A.I.R. 1961 Patna 203 and 1963 (2) Criminal L. J. 556 supra, were relied upon to hold that if the trial of an offence under Section 5(2) of the Act is void ab initio due to want of valid sanction, the Special Judge has no jurisdiction under Section 7(3) of the Criminal Law Amendment Act, 1952 to try allied offences. In an identical case a different view, however, was taken in the case reported in 56(1983) C.L.T. 288 : Md. Sabir Hussain v. State of Orissa. Although it was held that for want of valid sanction under Section 6 cognizance of offence punishable under Section 5(2) of the Act could not be taken, yet it was further held that the prosecution under Section 409 I. P. C. could not be said to be invalid. While taking such a view, reference was not made to the earlier decision of this Court reported in 52(1981) C.L.T. 197 : Republic of India v. Khagendranath Jha, as well as, the decisions reported in A.I.R. 1961 Patna 203 ; Ramautar Mahton v. The State and 1963 (2) Crminal L.J. 556, Sahebkhan Umerkhan v. The State. In the premises of the aforesaid settled position of law, since the trial of the appellant by the learned Special Judge for the offence under Section 5(2) of the Act is null and void, he lacked jurisdiction to try the offence under Section 409 I. P. C. in respect of the same cause of action.
14. For the foregoing reasons, the order of conviction and sentence passed on the appellant cannot be sustained and are set aside. The appeal is accordingly allowed.