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Republic of India Vs. Khagendranath Jha - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in52(1981)CLT197; 1982CriLJ961
AppellantRepublic of India
RespondentKhagendranath Jha
Cases ReferredSahebkhan Umerkhan v. The State
Excerpt:
.....it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated..........person. for the sake of convenience he is referred to as 'accused'. the accused was the agent, state bank of india. athgarh. he was charged under section 5(1)(d) read with section 5(2) of the prevention of corruption act, 1947 and under section 120-b i.p.c. on the allegation that he agreed with one person to cheat the state bank of india and ultimately cheated the bank and allowed undue pecuniary benefit to one ramesh chandra rai samant. it is not necessary to state the facts in detail. the accused was acquitted of the charge under section 5(1)(d) read with section 5(2) of the prevention of corruption act and he was convicted for offence under sections 477-a and 120-b of the ipc with sentence to undergo r. i. for two years on each count. the government appeal is directed against the.....
Judgment:

N.K. Das, J.

1. The respondent in the Government Appeal and the appellant in the Criminal Appeal is the same person. For the sake of convenience he is referred to as 'accused'. The accused was the Agent, state Bank of India. Athgarh. He was charged Under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Under Section 120-B I.P.C. on the allegation that he agreed with one person to cheat the State Bank of India and ultimately cheated the Bank and allowed undue pecuniary benefit to one Ramesh Chandra Rai Samant. It is not necessary to state the facts in detail. The accused was acquitted of the charge Under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and he was convicted for offence Under Sections 477-A and 120-B of the IPC with sentence to undergo R. I. for two years on each count. The Government Appeal is directed against the order of acquittal of the offence under the Prevention of Corruption Act and the Criminal Appeal is directed against the conviction of the accused under the Penal Code.

2. Mr. Mohanty, the learned Counsel for the accused, contends that there was no valid sanction for the prosecution of the accused and in absence of valid sanction, the entire prosecution is illegal and the court has no .jurisdiction to try the case. He further submits that if the prosecution under the Prevention of Corruption Act fails he cannot be convicted of other offence, inasmuch as the case was tried by a Special Judge.

3. The trial court has held that the accused was not a public servant and there was no valid sanction. It is not disputed in this Court that the Taccused was a public 'servant. According to Section 21 of IPC 'Public servant' denotes a person falling under any of the descriptions mentioned thereunder. In the category 'Twelfth', it is provided that, every person in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956. Undisputedly the State Bank of India was established by the State Bank of India Act, 1955 and by virtue of the aforesaid provisions of the penal Code the accused is a public servant.

4. It is contended that there has been no sanction for prosecution under prevention of Corruption Act. According to Section 6 of the Prevention of Corruption Act, sanction is mandatory for prosecution for offence Under Section 5(2) of the Act. In this case Ext. 40 is the sanction order which has been proved by P.W. 14. P.W. 14 has admitted that the accused is a Grade II Officer. From Ext. 40, it appears that the sanction has been given by the Local Board of the State Bank of India by virtue of Section 50 of the State Bank of India Act with previous sanction of the Central Government. This is known as the State Bank of India General Regulations 1935. Chap. VI of the Regulations relates to Central Board and its Executive Committee and Chap. VII relates to Local Boards and their committees. Regn. 55 of the Regns. comes under Chap. VI of the Regulations. Regn. 55 provides;

(1) Save as provided in Sub-section (2). and as may be directed by the Central Board, a Local Board may exercise all the powers of the state Bank in respect of the staff serving in the areas in its jurisdiction,

(2)(a) The initial appointment of officers of all categories shall be made by the Executive Committee. Such officers shall not be dismissed from the service of the State Bank except by the Executive Committee. x x x

Under Chap. VI, Regn. 46 provides the constitution of the Executive Committee and its powers. This Regn. 46 relates to Central Board only, It would thus appear that there is an executive committee of the Central Board. There in no provision in Chap. VII which relates to Local Boards and their committees. There is no provision for any executive committees. The ultimate result is that the executive committee of the Central Board is entitled to' appoint and dismiss officers of all categories of the State Bank of India and the Local Body has no such power. No materials have been placed before the trial court to show that this regulation has been changed or modified. In view of such clear provision in the regulation, it is mandatory that the Executive Committee is the authority to dismiss the officers which includes the present accused. Therefore, sanction for prosecution for offence under the Prevention of Corruption Act is to be accorded by the Executive Committee and that will be a proper sanction in the eye of law. In the instant case the sanction has been accorded by the Local Board. Nothing has been placed before me to indicate that the Local Board is in any way authorised under the Act or under the Regulations to accord sanctions or to dismiss an officer. In view of this posi-1 tion, the sanction accorded in the present case cannot be said to be valid in the eye of law and it would be deemed that there has been no sanction for prosecution. In absence of sanction, the prosecution becomes illegal and, as such, the entire prosecution is vitiated and is not valid. The ultimate conclusion would be that there has been no prosecution at all and the order of acquittal stands. Accordingly, there is nothing to interfere in the Government Appeal.

5. The next contention on behalf of the accused is that as the prosecution for offence under the Prevention of Corruption Act fails and as the case was tried by a Special Judge, the conviction Under Sections 477-A and 120-B, I. P. C, arising out of the same matter or the allegation cannot be sustained.

In Ramautar Mahton v. The State : AIR1961Pat203 , it has been held by a Division Bench that the proceeding before a Special Judge in a case relating to an offence Under Section 5(2) of the Prevention of Corruption Act, 1947 is no trial at all when there is no valid sanction Under Section 6 of that Act. In such a case the Special Judge has no jurisdiction under Section 7(3) of the Criminal Law Amendment Act, 1952 to try the offence Under Section 409 of IPC also. The trial for that offence being without jurisdiction, is nullity and void. Thus, the trial for the other offence is without jurisdiction when the Special Judge convicts the accused for such an offence by the same judgment which he was trying under Section 7(1) of the Act.

A Division Bench of the Gujarat High Court in Sahebkhan Umerkhan v. The State, 1963(2) Cri LJ 556 has also held that if the Special Judge has no jurisdiction to try an offence punishable Under Section 5(2) of the prevention of Corruption Act, he has no jurisdiction to try the other allied offences, such as one Under Section 409 IPC for which power has been conferred upon him under Sub-section (3) of Section 7 of the Criminal Law Amendment Act, 1952. The Gujarat High Court has followed the aforesaid Patna decision.

In view of the aforesaid position of law, I am to hold that the Special Judge had no jurisdiction to try the case and the entire prosecution was illegal. Therefore, the conviction of the accused Under Section 477-A and Section 120-B of the IPC should be deemed to be null and void and amounts to no conviction in the eye of law.

6. In view of the the entire prosecution both the Government minal Appeal arise, is Both the appeals are, of accordingly. The appellant Under Sections of the I.P.C. is set Appeal is dismissed Appeal is allowed.


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