1. The appellant R. R. Chari was a permanent employee in a gazetted postunder the Government of Assam. In 1941, his services were lent to theGovernment of India. The first appointment which the appellant held under thegovernment of India was that of the Deputy Director of Metals in the MunitionsProduction Department at Calcutta. Then he came to Delhi on similar work in theoffice of the Master-General of Ordnance which was the Steel Priority Authorityduring the War period. He was subsequently transferred to Kanpur as AssistantIron & Steel Collector in 1945. Sometime thereafter, he became the Deputyfrom Iran & Steel Controller, Kanpur Circle; which post he held for onemonth in September, 1945. From January, 1946, he was appointed to the said postand he held that post until September 20, 1946. The period covered by thecharges which were eventually formed against the appellant and others is fromJanuary 1, 1946 to September 20, 1946. On the latter date, the appellantproceeded on leave for four months and did not return to service either underthe Government of India or under the Assam Government.
2. It appears that while the appellant had proceeded on leave the Governmentof India wrote to the Assam Government on February 8, 1947, intimating that ithad decided to replace the services of the appellant at the disposal of theAssam Government on the expiry of the leave granted to him with effect fromSeptember, 21, 1946. The Government of India also added that the exact periodof the leave granted to the appellant would be intimated to the AssamGovernment later. On April 28, 1947, leave granted to the appellant was gazettedwith effect from September 21, 1946 for a period of four months. A subsequentnotification issued by the Central Government extended the leave up to May 13,1947. On this latter date, the Central Government suspended the appellant, andon a warrant issued by the District Magistrate, Kanpur, he was arrested on theOctober 28, 1947. Subsequently, he was released on bail. Thereafter, theGovernment of India accorded sanction for the prosecution of the appellantunder section 197 of the Criminal Procedure Code on the January 31, 1949. ACharge-sheet was submitted by the prosecution alleging that the appellant alongwith three of his former assistants had committed various acts of conspiracy,corruption and forgery during the period 1.1.1946 to 20-9-1946. The otherpersons who were alleged to be co-conspirators with the appellant, were Vaish,a clerk in charge of licensing under the appellant, Rizwi and Rawat who werealso working as clerks under the appellant. Rizwi absconded to Pakistan andRawat died. In the result, the case instituted on the said charge sheetproceeded against the appellant and Mr. Vaish.
3. Broadly stated the prosecution case was that during the period December1945 to September 20, 1946, the appellant and Vaish and other entered into acriminal conspiracy to do illegal acts, such as the commission of offencesunder sections 161, 165, 467. Indian Penal Code or in the alternative, offencessuch as were prescribed by rule 47(3) read with rule 47(2) of the Defence ofIndia Rules, 1939 and abetment in the acquisition and sale of Iron and steel,in contravention of the Iron and Steel (Control of Distribution) Order 1941;and that in pursuance of the said conspiracy, they did commit the aforesaidillegal acts from time to time and thus rendered themselves liable to bepunished under section 120B of the Indian Penal Code. That was the substance ofthe first charge.
4. The Second Charge was in regard to the commission of the offences undersection 161 and it set out in detail the bribes accepted by the appellant from14 specified persons. In the alternative, it was alleged that by virtue of thefact that the appellant accepted valuable things from the persons specified. hehad committed as offence under section 165 of Indian Penal Code.
5. The third charge was under section 467 Indian Penal Code or in thealternative, under rule 47(3) read with rule 47(2)(a) of Defence of IndiaRules. The substance of this charge was that in furtherance of the conspiracy,the appellant fraudulently or dishonestly made, signed or executed fourteendocuments specified in clauses (a) to (n) in the charge. Amongst thesedocuments were included the orders prepared in the names of several dealers andlicences issued in their favour.
6. The fourth charge was that the appellant had abetted the firms specifiedin clauses (a) to (k) in the commission of the offence under rule 81(2) of theDefence of India Rules. That, in brief, is the nature of the prosecution caseagainst the appellant as set out in the several charges.
7. At the initial stage of the trial, the appellant took a preliminaryobjection that the sanction accorded by the Government of India to theprosecution of appellant under section 197 Code of Criminal Procedure wasinvalid. This objection was considered by Harish Chandra J. of the AllahabadHigh Court and was rejected on all July, 18th 1949. The learned Judge directedthat since he found no substance in the preliminary contention raised by theappellant, the record should be sent back to the trial Court without delay sothat it may proceed with the trial of the case. On May 7, 1953, the appellantalone with Vaish was tried by the Additional District and Sessions Judge atKanpur. The charge under section 120-B was tried by the learned Judge with theaid of assessors, whereas the remaining charges were tried by him with the aidof the jury. Agreeing with the opinion of the assessors and the unanimousverdict of the jury, the learned Judge convicted the appellant under section120-B and sentenced him to two years' rigorous imprisonment. He also convictedhim under section 161 and sentenced him to two years' Rigorous imprisonment anda fine of Rs. 25,000/- in default to suffer further rigorous imprisonment forsix months. For the offences under section 467 Indian Penal Code of whichappellant was convicted, the learned Judge sentenced him to four years'rigorous imprisonment. He was also convicted under rule 81(4) read with rule121 and clause 4, 5, 11b(3) and 12 of the Iron and Steel Order of 1941 andsentenced to two year's rigorous imprisonment. All the sentences thus imposedon the appellant were to run concurrently. Vaish who was also tried along withthe appellant was similarly convicted and sentenced to different terms ofimprisonment.
8. The appellant and Vaish then appealed to the High Court against the saidorder of convictions and sentence. It was urged on their behalf before the HighCourt that the charge delivered by the Judges to the jury suffered from gravemisdirections and non-directions amounting to misdirections. This plea wasaccepted by the High Court and so, the High Court examined the evidence foritself. In the main, the High Court considered the ten instances adduced by theprosecution for showing that the appellant had accepted illegal gratificationand had committed the other offences charged, and came to the conclusion thatthe prosecution evidence in respect of eight instances could not be acted upon,whereas the said evidence in respect of two instances could be safely actedupon. These two instances were deposed to by Lala Sheo Karan Das and otherwitnesses and by Sher Singh Arora and other witnesses. In the result, the HighCourt confirmed the appellant's convictions under sections 161 and 467 and thesentences imposed by the trial court in that behalf. His conviction undersection 120-B Indian Penal Code, and under rule 81(4) read with rule 121Defence of India Rules was set aside and he was acquitted of the said offences.The High Court directed that the sentences imposed on the appellant undersections 161 and 467 should run concurrently. The appeal preferred by Vaish wasallowed and the order of conviction and sentence passed against him by thetrial Court in respect of all the charges was set aside. This order was passedon March, 17th, 1958. The appellant then applied for and obtained a certificatefrom the High Court and it is with that certificate that he has come to thisCourt in appeal.
9. At this stage, it would be useful to indicate briefly the main findingsrecorded by the High Court against the appellant. As we have just indicated,there are only two instances out of ten on which the High Court has made afinding against the appellant. The first is the case of Lala Sheo Karan Das.According to the prosecution case, as a motive or reward for issuing writtenorders and expediting supply of iron by the stock-holders' Association Kanpurto Lala Sheo Karan Das, the appellant accepted from him Rs. 4,000/- on31.3.1946, Rs. 2,000/- on 9.4.1946; Rs. 1,000/- on 11.4.1946 and Rs. 1,000/- on12.5.1946 as illegal gratification. That is the basis of the charge undersection 161. The prosecution case further is that in regard to the supply ofiron to Lala Sheo Karan Das, certain documents were forged and it is allegedthat the written orders issued in that behalf Exhibits P 341 and P 342 wereante-dated and the licences issued in that behalf were similarly ante-dated. Insupport of this case, oral evidence was given by Lala Sheo Karan Das himself,his son Bhola Nath and Parshotam Das, his nephew who is a partner with him.This oral evidence was sought to be corroborated by relevant entries in kachhirokar' books. These entries indicated that the several amounts had been paid bythe firm to the appellant. The High Court considered the oral evidence and heldthat the said evidence was corroborated by entries in the account-books. Theargument that dacca rokar books had not been produced did not appear to theHigh Court to minimise the value of the kachhi rokar books which were actuallyproduced, and the contention that the books of Account kept by accomplicesthemselves could not, in law, corroborate their oral evidence, did not appealto the High Court as sound. It held that even though Sheo Karan Das, his sonand his nephew may be black-marketers, it did not necessarily follow that theywere liars. Besides, the High Court took the view that there were certainpieces of circumstantial evidence which lent support to the oral testimony ofthe accomplices. The ante-dating of the orders, and the supply of a largequantity of iron, were two of these circumstances. It is on these grounds thatthe High Court accepted the prosecution case against the appellant undersection 161 Indian Penal Code. The High Court then examined the evidence insupport of the charge under section 467 and it held that the manner in whichthe dates in the quota register had been tampered with supported the oraltestimony of the witnesses that the applications made by Sheo Karan Das hadbeen deliberately and fraudulently ante-dated and orders passed on them and thelicences issued pursuant to the said orders-all were fraudulent documents whichproved the charge under section 467 as well as under rule 47(3) read with47(2)(a). On these grounds, the appellant's conviction under section 467 wasalso confirmed.
10. As to the prosecution case in respect of the bribes offered by SherSingh Arora, the High Court was not satisfied with the evidence adduced inrespect of the actual offer of money, but it held that the evidence adduced bythe prosecution in respect of the offer and acceptance of certainvaluable-things was satisfactory. These valuable things were a three-piece sofaset, a center piece, two stools and a revolving chair (Ext. 16 to 21). Thesewere offered on behalf of Sher Singh Arora and accepted by the appellant inJanuary, 1946. In dealing with this part of the prosecution case, the HighCourt considered the statements made by the appellant and ultimately concludedthat the charge under section 161 had been proved in respect of the saidarticles.
11. In regard to the charge under section 467, the High Court adopted thesame reasons as it had done in dealing with the said charge in respect of SheoKaran Das's transactions and held that the said charge had been proved. Thelicences which are alleged to have been ante-dated are Exts. P 535 and P 536.The application which is alleged to have been ante-dated is Ext. P 294, and theHigh Court thought that the relevant entries in the quota register showed thatthe dates had been tampered with. In the result, the charge under section 467in respect of this transaction was held to be established. An alternativecharge was also proved against the appellant under rule 47(3) read with rule47(2)(c) Defence of India Rules.
12. The first point which Mr. Chari has raised before us is that the Addl.District & Sessions Judge had no jurisdiction to try this case, because atthe relevant time, the Criminal Law Amendment Act, 1952, (46 of 1952) had comeinto operation and the case against the appellant could have been tried only aSpecial Judge appointed under the said Act. This argument has been rejected bythe High Court and Mr. Chari contends that the decision of the High Court inerroneous in law. In order to deal with the merits of this point, it isnecessary to refer to some dates. The order of commitment was passed in thepresent proceedings on March 1, 1952. It appears that thereafter a list ofdefence witnesses was filed by the appellant before the committing Magistrateon July 24, 1952. On July 28, 1952, the Criminal Law Amendment Act came intoforce. On August 14, 1952, Vaish filed a list of witnesses before thecommitting Magistrate and requested that one of the prosecution witness shouldbe recalled for cross-examination. On September 18, 1952, the District &Sessions; Judge at Kanpur was appointed a Special Judge under the Act. OnDecember 19, 1952, the case was taken up before the Special Judge and thequestion as to where the case should be tried and argued. The Special Judgeheld that the question had been considered by the Madras High Court in the caseof P. K. Swamy and it had been held that the Special Judge had no jurisdictionto hear the case because the order of commitment had been passed prior to thepassing of the Criminal Law Amendment Act. Since the order of the commitment inthe present case had also been passed before July 28, 1952, the Special Judgeheld that the case against the appellant must be tried under the provisions ofthe Criminal Procedure Code and not under the provisions of the Criminal LawAmendment Act; and so, an order was passed that the trial should be held by theAdditional District & Sessions Judge at Kanpur. After the case was thustransferred to the Addl. Sessions Judge at Kanpur, it was actually taken upbefore him on May, 7, 1953, when the charge was read out to the accused personsand the jury was empanelled. It is in the light of these facts that thequestion about the jurisdictions of the trial Judge to be determined.
13. Two provisions of the Criminal Law Amendment Act fail to be consideredin this connection. Section 7 provides that notwithstanding anything containedin the Code of Criminal Procedure, or in any other law, the offences specifiedin sub-Section (1) of section 6 shall be triable by a Special Judge only,Offences under sections 161 and 165 Indian Penal Code are amongst the offencesspecified by section 6(1). Section 7(2)(b) provides that when trying any case,a Special Judge may also try any offence other than an offence specified insection 6 with which the accused may, under the Code of Criminal Procedure becharged at the same time. Therefore, if the offence under section 161 fallsunder section 7(1) and has to be tried by a Special Judge, the other offencescharged would also have to be tried by the same Special Judge as a result ofsection 7(2)(b). It is clear that the provisions of section 7 are prospective.This position is not disputed. But is would be noticed that section 7 does notprovide for the transfer of pending cases to the special Judge and so, unlessthe appellant's case falls under the provisions of section 10 which providesfor transfer, it would be tried under the ordinary law in spite of the factthat the main offence charged against the appellant falls under section 6(1) ofthe Criminal Law Amendment Act.
14. That takes us to section 10 which deals with the transfer of certainpending cases. This section provides that all cases triable by a special Judgeunder section 7 which immediately before the commencement of the Act, werepending before any Magistrate shall, on such commencement, be forwarded fortrial to the special Judge having jurisdiction over such cases. It is thusclear that of the cases made triable by a special Judge by section 7, it isonly such pending cases as are covered by section 10 that would be tried by thespecial Judge. In other words, it is only cases triable by a special Judgeunder section 7 which were pending before any Magistrate immediately before thecommencement of this Act would be transferred to the special Judge andthereafter tried by him. So, the question to consider is whether theappellant's case could be said to have been pending before any Magistrateimmediately before the commencement of the Act. This position also is not indispute.
15. The dispute centers round the question as to whether the appellant'scase can be said to have been pending before a magistrate at the relevant time,and this dispute has to be decided in the light of the provisions contained insection 219 of the Code of Criminal Procedure. This section occurs in Chapter18 which deals with the enquiry into cases triable by the Court of Sessions orHigh Court. We have already seen that on March 1, 1952, an order of commitmenthad been passed in the present case and that means that the jurisdiction of thecommitting Court had been exercised by the said Court under section 213 of theCode. Mr. Chari contends that though the order of commitment had been passed,that does not mean that the case had ceased to be pending before the committingMagistrate. It is not disputed that once an order of commitment is made, thecommitting Magistrate has no jurisdiction to deal with the said matter; hecannot either change of the order or set it aside. So far as the order ofcommitment is concerned, the jurisdiction of the Magistrate has come to an end.The said order can be quashed only by the High Court and that too on a point oflaw. That is the effect of section 215 of the Code. It is, however, urged thatsection 216 confers jurisdiction on the committing magistrate to summonwitnesses for defence as did not appear before the said Magistrate and todirect that they should appear before the Court to which the accused had beencommitted. Similarly, before the said Magistrate, bonds of complainants andwitnesses can he executed as prescribed by section 217. Section 219 conferspower on the committing Magistrate to summon and examine supplementarywitnesses after the commitment and before the commencement of the trial, and tobind them over in a manner here in before provided to appear and give evidence.It is on the provisions of this section that the appellant's case rests. Theargument is that since the committing magistrate is given power to summonsupplementary witnesses even after an order of commitment has been passed, thatshows that the committing magistrate still hold jurisdiction over the case andin that sense, the case must be deemed to be pending before him. We are notimpressed by this argument. The power to summon supplementary witnesses andtake their evidence is merely a supplementary power for recording evidence andno more. This supplementary power does not postulate the continuance ofjurisdiction in the committing magistrate to deal with the case. It issignificant that this power can be exercised even by a Magistrate other thanthe committing magistrate, provided he is empowered by or under section 206 andclearly, the case covered by the commitment order passed by the one magistratecannot be said to be pending before another magistrate who may be empowered tosummon supplementary witnesses. When section 10 of the Criminal Law AmendmentAct refers to cases pending before any magistrate, it obviously refers to casespending before magistrates who can deal with them on the merits in accordancewith law and this requirement is plainly not satisfied in regard to any case inwhich a commitment order had been passed by the committing magistrate. Afterthe order of commitment is passed, the case cannot be said to pending before thecommitting magistrate within the meaning of section 10. Therefore, we aresatisfied that the High Court was right in coming to the conclusions thatsection 10 did not apply to the present case and so, the Addl. Sessions Judgehad jurisdiction to try the case in accordance with the provisions of the Codeof Criminal Procedure. It is true that in dealing with this point, the HighCourt has proceeded on the consideration that the appellant's trial hadactually commenced before the Addl. Sessions Judge even prior to July 28, 1952.In fact, it is on that basis alone that the High Court has rejected theappellant's contention as to absence of jurisdiction in the trial Judge. We donot think that the reason given by the High Court in support of this conclusionis right, because the trial of he appellant could not be said to have commencedbefore May, 7, 1953. However, it is unnecessary to pursue this point anyfurther because we are inclined to take the view that the appellant's case doesnot fall under section 10 of the Criminal Law Amendment Act and that is enoughto reject the contention of the appellant on this point.
16. The next argument raised is in regard to the validity of the sanctiongiven by the Government of India to the prosecution of the appellant. Thissanction Ext. P-550 purports to have been granted by the Governor-General ofIndia under section 197 of the Code for the institution of criminal proceedingagainst the appellant. It has been signed by Mr. S. Boothalingam, JointSecretary to the Government of India on January 31, 1949. The sanction sets outwith meticulous care all the details of the prosecution case on which theprosecution rested their charges against the appellant and so, it would not beright to contend that the sanction has been granted as a mere matter offormality. The several details set out in the sanction indicate that primafacie, the whole case had been considered before the sanction was accorded. Mr.Chari, however, attempted to argue that on the face of it, the sanction doesnot show that the Governor-General granted the sanction after exercising hisindividual judgment. Section 197 of the code at the relevant time required thatsanction for the prosecution of the appellant should have been given by theGovernor-General exercising his individual judgment, and since, in terms itdoes not say that the Governor-General in exercise of his individual judgmenthad accorded sanction, the requirement of section 197 is not satisfied. That isthe substance of the contention. In support of this contention, reliance issought to be placed on certain statements made by Mr. Boothalingam in hisevidence. Mr. Boothalingam stated that sanction of the Governor-General wasconveyed by him as Joint Secretary to the Government of India. He also addedthat authorities of the Government of India competent to act in this behalfaccorded the sanction and he conveyed it. His evidence also showed that thematter had been considered by the competent authorities and that he was one ofthose authorities. Mr. Chari argues that Mr. Boothalingam has not expresslystated that the Governor-General applied his individual mind to the problem andexercising his individual Judgment, came to the conclusion that the sanctionshould be accorded. This contention had not been raised at any stage before andthe point had not been put to Mr. Boothalingam who gave evidence to prove thesanction. If the point had been expressly put to Mr. Boothalingam he would haveeither given evidence himself on that point or would have adduced otherevidence to show that the Governor-General had exercised his individualjudgment in dealing with the matter. Therefore, we do not think that his pleacan be allowed to be raised for the first time in this Court.
17. The next ground of attach against the validity of the sanction is basedon the assumption that at the time when the sanctions was given, the appellanthad ceased to be in the employment of the Government of India and had revertedto the Assam Government. If it is established that at the relevant time, theappellant was a person employed in connection with the affairs of the AssamState, then of course, it is the Assam Government that would be competent togive the sanction. The High Court has found that at the relevant time, the appellantcontinued to be in the employment of the affairs of the Federation and had notreverted to the Assam Government; and in our opinion, this finding of the HighCourt is right. We have already referred to the course of events that led tothe granting of the leave to the appellant by the Government of India; to theextension of the leave by the said Government and to his subsequent suspension.The appellant's argument is that after he went on leave, he moved the AssamGovernment for extension of his leave and was, in fact, asked by the AssamGovernment to appear before a medical board appointed by it. We do not thinkthat these facts are enough to prove that the appellant had reverted to theservice of the Assam Government. In fact, it is clear that the Government ofIndia had intimated to the Assam Government that the appellant continued to beunder its employment and that the Assam Government had expressly told theGovernment of India that is had no desire that the appellant should revert toits service until the criminal proceedings instituted against him were over.The Assam Government also pointed out that the appellant himself did not wishto rejoin in his post of Superintendent of the Assam Government's Press but hadonly asked for Leave Preparatory to Retirement following medical advice. It isthus clear that though the Government of India had originally thought ofrepelling the appellant's services with the Assam Government at the end of theleave which was proposed to be granted to him, subsequent events which led toan investigation against the appellant and his suspension caused a change inthe attitude of the Government of India and it decided to continue him in itsemployment in order that he should face a trial on the charges which were thenthe subject-matter of investigation. There is no order reverting him to theAssam Government passed by the Govt. of India and there is no passed by theAssam Government at all on this subject. Therefore, there can be no doubt thatat the relevant time, the appellant continued to be employed in the affairs ofthe Federation.
18. It was then sought to be argued that the effect of SR 215 was that thereversion of the appellant to the Assam Government should be deemed to havetaken effect from the date when the leave was granted to him by the Governmentof India. In our opinion, there is no substance in this argument. The portionon which the appellant relies is merely an administrative direction under theRule and it cannot possibly over-ride the specific orders issued by theGovernment of India in respect of the appellant's leave and reversion. Besides,even the requirements of the said Rule are not satisfied in the present case.Therefore, the conclusion is inescapable that the appellant was employed in theaffairs of the Federation at the time when the sanction was accorded.
19. That takes us to the question as to whether the Government of India wascompetent to grant the sanction even if the appellant was at the relevant timea person employed in connection with the affairs of the Federation. Mr. Charicontends that in the case of the appellant whose services had been loaned bythe Assam Government to the Government of India, it could not be said that hewas a person permanently employed in connection with the affairs of theFederation and so, clause (a) of section 197 (1) would not apply to him at all.He was a person permanently employed in connection with the affairs of a Stateand that took the case under clause (b) which means that it is the Governor ofAssam exercising his individual judgment who could have accorded valid sanctionto the appellant's prosecution. We are not impressed by this argument. It isclear that the first part of section 197(1) provides a special protection,inter alia, to public servants who are not removable from their offices save byor with the sanction of the State Government or the Central Government wherethey are charged with having committed offences while acting or purporting toact in the discharge of their official duties; and the form which thisprotection has taken is that before a criminal court can take cognizance of anyoffence alleged to have been committed by such public servants, a sanctionshould have been accorded to the said prosecution by the appropriateauthorities. In other words, the appropriate authorities must be satisfied thatthere is a prima facie case of starting the prosecution and this prima faciesatisfaction has been interposed as a safeguard before the actual prosecutioncommences. The object of section 197(1) clearly is to save public servants fromfrivolous prosecution, Vide Afzelur Rahman v. The King Emperor. That being theobject of the section, it is clear that if persons happened to be employed inconnection with the affairs of the Federation, it was the Governor-General whogave sanction and if persons happened to be employed in connection with theaffairs of the State, it was the Governor. What is relevant for the purpose ofdeciding as to who should give the sanction, is to ask the question; where isthe public servant employed at the relevant time If he is employed in theaffairs of the Federation, it must be the Governor-General in spite of the factthat such employment may be temporary and may be the result of the fact thatthe services of the public servant have been loaned by the State Government tothe Government of India. Therefore, having regard to the fact that at therelevant time the appellant was employed in connection with the affairs of theFederation, it was the Governor-General alone who was competent to accordsanction. Therefore, out conclusion is that the sanction granted by theGovernor-General for the prosecution of the appellant is valid.
20. That still leaves the validity of the sanction to be tested in the lightof the provisions of section (6) of the prevention of Corruption Act, 1947. Atthe relevant time, Section 6 read thus :
'No court shall takecognizance of an offence punishable under section 161 or section 165 of theIndian Penal Code (XIV of 1860) or under sub-section (2) of section 5 of thisAct, alleged to have been committed by a public servant, except with theprevious sanction :
(a) In the case of a person whois employed in connection with the affairs of the Federation and is notremovable from his office save by or with the sanction of the CentralGovernment or some higher authority, Central Government.
(b) In the case of a person whois employed in connection with the affairs of a province and is not removablefrom his office save by or with the sanction of the Provincial Government orsome higher authority, Provincial Government :
(c) in the case of any otherperson, of the authority competent to remove him from his service'.
21. It would be noticed that the scheme of this section is different fromthat of section 197 of the Code of Criminal Procedure. The requirement of thefirst part of section 197(1) which constitutes a sort of preamble to theprovisions of section 197(1)(a) & (b) respectively, has been introduced bysection 6 severally in clauses (a) and (b). In other words, under clauses (a)and (b) of section 197(1) the authority competent to grant the sanction isdetermined only by reference to one test and that is the test provided by'the affairs in connection with which the public servant isemployed'; if the said affairs are the affairs of the Federation, theGovernor General grants the sanction; if the said affairs are the affairs of aProvince, the Governor grants the sanction. That is the position under section197(1) as it then stood. The position under section 6 of the Prevention ofCorruption Act is substantially different. Clauses (a) & (b) of thissection deal with persons permanently employed in connection with the affairsof the Federation or in connection with the affairs of the Provincerespectively, and in regard to them, the appropriates authorities are theCentral Government and the Provincial Government. The case of a public servantwhose services are loaned by one Government to the other, does not fall eitherunder clause (a) or under clause (b), but it falls under clause (c). Havingregard to the scheme of the three clauses of section 6, it is difficult toconstrue the word 'employed' in clauses (a) & (b) as meaning'employed for the time being'. The said words, in the context, mustmean 'permanently employed'. It is not disputed that if the servicesof a public servant permanently employed by a Provincial Government are loanedto the Central Govt., the authority to remove such public servant from officewould not be the borrowing Government but the loaning Government which is theProvincial Government and so, there can be no doubt that the employmentreferred to in clauses (a) and (b) must mean the employment of a permanentcharacter and would not include the ad hoc or temporary employment of anofficer whose services have been loaned by one Government to the other.Therefore, the appellant's case for the purpose of sanction under section 6will fall under clause (c) and that inevitably means that is only theProvincial Government of Assam which could have given a valid sanction undersection 6. At the relevant time, section 6 had come into operation, and section6 expressly bars the cognizance of offences under section 161 unless a validsanction had been obtained as required by it. Therefore, in the absence of avalid sanction, the charge against the appellant under section 161 and section163 could not have been tried and that renders the proceedings against theappellant in respect of those two charges without jurisdiction.
22. The result is that the contention of the appellant that the sanctionrequired for his prosecution under Section 161 and Section 165 is invalid,succeeds and his trial in respect of those two offences must, therefore, beheld to be invalid and without jurisdiction. That being so, it is unnecessaryto consider whether the finding of the High Court in respect of the chargeunder section 161 is justified or not. So, we do not propose to consider theevidence led by the prosecution in respect of the said charge in relation tothe two cases of Lala Sheo Karan Das and Sher Singh Arora.
23. The charge under section 467 or the alternative charge under Defence ofIndia Rules still remains to be considered, because the said offences areoutside the scope of section 6 of the Prevention of Corruption Act and thesanction accorded by the Governor-General in respect of the appellant'sprosecution for the said offences is valid under section 197 of the Code ofCriminal Procedure. What, then, are the material facts on which the conclusionof the High Court is based The first point on which stress has been laid bothby Mr. Chari and Mr. Sarjoo Prasad relates to the background of the case. Mr.Chari contends that the prosecution of the appellant is in substance, theresult of the attempts successfully made by the black-marketeers in Kanpur toinvolve the appellant in false charges and in support of his plea, Mr. Charihas very strongly relied on the evidence of Mr. Kanhaiya Singh. This witnesswas, at the relevant time, an Inspecting Assistant Commissioner of Income-taxat Kanpur and his evidence seems to show that unlike his predecessor Mr.Talwar, the appellant gave whole-hearted co-operation to the witness indiscovering the illegal dealings of black-marketeers in Kanpur in iron.According to the witness, the black-marketeers came to know about theco-operation between him and the appellant and that disturbed them very rudely.Some lists were prepared by the appellant giving the witness detailedinformation about the activities of the black-marketeers and the witnesssuggested that in order to destroy the papers thus supplied to him by theappellant, a burgulary was arranged in his house in May or June, 1946. Asimilar burgulary took place in appellant's house. There was also a fire in theappellant's house. The witness was asked whether any of the persons who havegiven evidence against the appellant in the present case, were included in thelist supplied by the appellant to him, and the witness refused to answer thesaid question and claimed protection under section 54 of the Income Tax Act.Mr. Chari's argument is that the activities of the appellant in co-operationwith Mr. Kanhaiya Singh frightened the black-marketeers and so, they organisedthe present plot involve the appellant in a false case. In that connection, Mr.Chari also relies on the fact that out of the ten instances, the story deposedto in respect of eight has been rejected by the High Court.
24. On the other hand, Mr. Sarjoo Prasad has argued that as soon as theappellant took charge from Mr. Talwar, he evolved a very clever scheme ofestablishing personal contacts with the black-marketeers; dispensed with theenquiry which used to be held prior to the granting of licences to them andthus introduced a practice of direct dealings with the black-marketeers whichfacilitated the commission of the offences charged against him. He has alsoreferred us to the evidence given by Mr. Sen which tends to show that theappellant was frightened by the prospect of investigation and so, suddenly leftKanpur under the pretext of illness. In other words, Mr. Sarjoo Prasad'sargument is that the appellant deliberately adopted a very clever modusoperandi in discharging his duties as a public servant and has, in fact,committed the several offences charged against him. We do not think that the ultimatedecision of the narrow point with which we are concerned in the present appealcan be determined either on the basis that the appellant is more sinned againstthan a sinner or that he is a cold-blooded offender. Ultimately, we will haveto examine the evidence specially connected with the commission of the offenceand decide whether that evidence can legitimately sustain the charge undersection 467.
25. Let us take the case as disclosed by the evidence of Sheo Karan Das inrespect of the charge under section 467. According to Sheo Karan Das, the twoapplications Exts. 35 and 36 were given by him in the office of the appellanton the 29th or 30th March, 1946, but the appellant asked the witness to getother applications in which the date should be prior to 23rd of March.Accordingly, the witness put the date 22nd March on his applications. On the29th or 30th March when the witness met the appellant, he asked for 130 tonsand the appellant told him that he could give him more than that, provided, of course,the appellant got his profit. Accordingly, after these applications wereantedated, the appellant passed orders and licences were issued. Thus, it wouldbe seen that the prosecution case is that the applications which were presentedby Sheo Karan Das on the 29th or 30th of March, were deliberately ante-dated inorder that the orders subsequently passed by the appellant and the licencesissued thereunder should also appear to have been issued prior to the 23rd ofMarch and that, in substance, is the essence of the charge under section 467.
26. When this case was put to the appellant, he made a somewhat elaboratestatement which it is necessary to consider. According to this statement, theappellant left Kanpur on March 23, 1946, for a meeting with Mr. Spooner who wasthe Iron Steel Controller at Calcutta. Mr. Spooner told him in confidence thatthere would be no more need to issue licences after March 31, on account ofdecontrol. He also expressly desired that no further licences need be issued byany Regional Dy. Iron & Steel Controller after March 26, 1946. Theappellant returned to Kanpur on March 28, and attended office on the 29th. Hethen found that the office had placed on his table a number of licences forwhich he had already issued orders before he left Kanpur on the 23rd. Some newapplications had also come thereafter and these included applications fromGovernment bodies and other public institution. These were also placed on histable. The appellant urged that statutorily he had the power to issue licencesuntil March 31, even so, in order to comply with the desire expressed by Mr.Spooner, he ordered that all licences should be issued as on March 23. Theappellant emphasised that even if he had dated the licences and his own ordersas on the 30th or 31st March, that would have introduced no invalidity in theorders or licences respectively, and so, he contended that even though in form,the orders and the licences can be said to have been ante-dated, theante-dating did not introduce any criminal element at all. It appears thatafter his return to Kanpur on the 28th, a large number of licences were issuedin this way. This statement of the appellant thus shows that even onapplications admittedly received after the 23rd, licences were issued as on the23rd and orders had been passed by the appellant in support of the issue ofsuch licences. This ante-dating of the licences is a circumstances on which theprosecution strongly relies in support of the charge under section 467.
27. It is, however, significant that besides the testimony of theaccomplices, there is no other evidence on the record to show that theapplications given by Sheo Karan Das had been brought to the office of theappellant for the first time on the 29th or 30th of March as deposed to by him.No register had been produced from the office showing the date of the receiptof the said applications. It is true that in the quota register, dates had beentampered with, but there is no evidence to show who tampered with those datesand so, the fact that dates had been tampered with will not afford any legalevidence in support of the case that the applications presented by Sheo KaranDas had, in fact, been presented for the first time on the 29th of March andhad not been filed on the 22nd of March as pleaded by the appellant. Theante-dating of the applications is a very important fact and of this fact thereis no other evidence at all. Therefore, in our opinion, the crucial fact on whichthe charge under section 467 is based is deposed to only by accomplicewitnesses and their statements are not corroborated by any other evidence onthe record. The admission made by the appellant does not necessarily show thatthe applications had been ante-dated. Indeed, it is very curious that theappellant should have passed necessary orders and should have directed theissue of licences as on the 23rd of March even in regard to the applicationsreceived by him subsequent to the 23rd March and this has been done in respectof applications received from Government bodies and public institutions. Thisfact lends some support to the applicant's theory that he did not want toappear to have contravened the desire expressed by Mr. Spooner that no licence shouldbe issued subsequent to the 26th March. There is no doubt that the appellantwas competent to issue licences until the 31st of March and so, it is not as ifit was essential for him to ante-date his orders or to ante-date the licencesissued in accordance with them. Then as to the orders passed by the appellanton the applications presented by Sheo Karan Das there is no date put by theappellant below his signature, though the date 22nd March appears at the top ofthe document. But it may be assumed that the order was passed on the 29th.That, however, does not show that the applications were made on the 29th andwithout proving by satisfactory evidence that the applications were made on the29th, the prosecution cannot establish its charge against the appellant undersection 467. In our opinion, the High Court appears to have misjudged theeffect of the admissions alleged to have been made by the appellant when itcame to the conclusion that the said admissions corroborated the accomplice'scase that the applications had been presented by him for the first time on the29th March. The fact that there is no evidence offered by any of theprosecution witnesses examined from the appellant's office to show the dateswhen the applications were received, has not been considered by the High Courtat all. Therefore, the finding of the High Court on the essential part of theprosecution story in respect of the charge under section 467 really rests onthe evidence of the accomplice uncorroborated by any other evidence. That beingso, we must hold that the High Court erred in law in making a finding againstthe appellant in respect of the charge under section 467 as well as thealternative charge under the relevant Defence of India Rules. What we have saidabout this charge in respect of the licences issued to Sheo Karan Das applieswith the same force to the said charge in respect of the licences issued toSher Singh Arora. In respect of those licences also, there is no evidence toshow that the applications made by Sher Singh Arora had been ante-dated, andso, the charge in respect of the said licences also cannot be held to have beenestablished.
28. The result is, the finding of the High Court in respect of the chargeagainst the appellant under section 467 or the alternative charge under therelevant Defence of India Rules must be reversed, his conviction for the saidoffences set aside and he should be ordered to be acquitted and discharged inrespect of those offences.
29. That raises the question as to whether we should order a retrial of theappellant for the offence under section 161. Mr. Sarjoo Prasad has argued thatthe interests of justice require that the appellant should be asked to face anew trial in respect of the charge under section 161, Indian Penal Code if andafter a valid sanction is obtained for his prosecution for the same. We are notinclined to accept this argument. Two facts have weighed in our minds in comingto the conclusion that a retrial need not be ordered in this case. The first considerationis that the accused has had to face a long and protracted criminal trial andthe sword had been hanging over his head for over 14 years. The accused wassuspended in 1947 and since then these proceedings have gone on all the time.The second factor which has weighed in our minds is that though the prosecutionbegan with a charge of a comprehensive conspiracy supported by severalinstances of bribery, on the finding of the High Court it is reduced to a caseof bribery offered by two persons; and then again, the substantial evidence isthe evidence of accomplices supported by what the High Court thought to becorroborating circumstances. It is true that offences of this kind should notbe allowed to go unpunished, but having regard to all the facts to which ourattention has been drawn in the present case, we are not inclined to take theview that the ends of justice require that the accused should be ordered toface a fresh trial. The result is that the conviction of the appellant undersection 161 is set aside on the ground that his trial for the said offence waswithout jurisdiction since his prosecution in that behalf was commenced withouta valid sanction as required by section 6 of the prevention of Corruption Act.
30. Appeal allowed.