1. The opponent was convicted by the First Class Magistrate, Veraval, under Section 161, I.P.C. and sentenced to pay a fine of Rs. 500/-. In appeal, the learned Sessions Judge, Sorath. Division, confirmed the opponent's conviction and sentence. The State has now applied for enhancement of the opponent's sentence. The opponent on his part disputes the correctness and the legality of his conviction.
2. The opponent was the Chitnis in the office of the Mamlatdar, Veraval, and it is alleged that on or about 14.6.1950 he received Rs. 50/- by way of illegal gratification from Rajput Kachra Hansraj of Khandeli in connection with some application which was pending in the Mamlatdar's office. The opponent's prosecution had been sanctioned by the Collector by his order No. EST/4293 of 1950 dated 8.7.1950 which reads as follows:
Under Section 6 of Prevention of the Corruption Act 1947, sanction is accorded to prosecution of Chhaganlal Kalidas, Chitnis clerk, Veraval-Patan Mamlatdar's Office in a competent court of law for offences under Section 161, Indian Penal Code and Section 5(2) of the Prevention of Corruption Act 1947.
Sd. L.D. Dave
Sorath District, Junagadh
Copy forwarded with compliments to:
3. The Inspector General of Police, Saurashtra Government, Rajkot with ref. to his endst. No. CB/2720 dated 29.6.50.
P.A. to Collector,
The opponent's contention was that the sanction to prosecute him accorded by the Collector was not in accordance with the requirements of Section 6, Prevention of Corruption Act, and the want of a valid sanction had vitiated the whole trial.
3. The order of the Collector mentions Section 161 of the Penal Code for which the sanction to prosecute is given but does not state the facts or the circumstances constituting the offence. The question how far an order sanctioning prosecution which does not state the facts from which the offence is made out has been decided by the Privy Council in - Gokulchand Dwarkadas v. The King (A). In that case, the Government had by a resolution accorded sanction to the prosecution of the appellant for breach of the provisions of Clause 18(2), Cotton Cloth and Yarn (Control) Order (1943). Sanction was accorded under Clause 23 of the order and was in the following terms:
Endorsement from the District Magistrate, Sholapur, No. XIX/4500/dated 8th Novr. 1944. Resolution: Government is pleased to accord sanction under Clause 23, Cotton Cloth and Yarn (Control) Order, 1943, to the prosecution of Mr. Gokulchand Dwarkadas Morarka for breach of the provisions of Clause 18(2) of the said Order
By Order of the Governor of
Deputy Secretary to Government of Bombay.
4. Adverting to this sanction their Lordships observed (p. 84):
In order to comply with the provisions of Clause 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since Clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the fact of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority..
Nor, in their Lordships' view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of Clause 23.
This decision was followed in - Ramuni Variyar v. Narayana Varassiyar (Subha Rao) AIR 1949 Mad 711(B), which was a case of a conviction under Section 161, I.P.C. and - Nandlal Rex : AIR1950All377 .
5. As stated above, the sanction to prosecute the opponent does not state the facts which constitute the offence. The prosecution has offered no extraneous evidence to show that the facts on which the opponent has been prosecuted were placed before the sanctioning authority viz., the Collector. The learned Assistant Government Pleader referred to the order of the opponent's suspension (Ex. 16b) which was issued by the Collector before sanctioning his prosecution; and suggested that it showed that these facts were placed before the Collector. But beyond stating that reasonable suspicion existed against the opponent for receiving illegal gratification, the order of suspension does not give any particulars about the offence for which the Collector suspended him and intended to sanction his prosecution.
Bhupatrai, Inspector, Anti-Corruption Branch, Sorath Division, Ex. 17 states that after he completed the investigation of this offence at Veraval, he made a report to the District Superintendent of Police requesting that the opponent should be suspended from service and sanction to prosecute him be obtained. There is however no evidence that this report was placed before the Collector. In the Privy Council case there was an exhaustive report of facts alleged against, the appellant from the Sub-Inspector of Police, Food Control, Sholapur, but there was no evidence that it was forwarded to the District Magistrate or that the District Magistrate had forwarded the report or its contents to the Government which had accorded the sanction. Government Resolution had merely mentioned his endorsement.
6. Adverting to the report of the Sub-Inspector and this endorsement, their Lordships observed that (p. 84):
There is no evidence to show that the report of the Sub-Inspector to the District Superintendent of Police, which was not put in evidence, was forwarded to the District Magistrate nor is there any evidence as to the contents of the endorsement of the District Magistrate referred to in the sanction, which endorsement also was not put in evidence. The prosecution was in a position either to produce or to account for the absence of the report made to the District Superintendent of Police and the endorsement of the District Magistrate referred to in the sanction, and to call any necessary oral evidence to supplement the documents and show what were the facts on which the sanction was given. Their Lordships see no justification for drawing inference in favour of the prosecution upon matters on which they withheld evidence under their control. Under Section 114, Evidence Act, illust. (g) the normal presumption is that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
In the absence of evidence that the Inspector's report was placed before the Collector or other evidence to show what were the facts on which the Collector sanctioned the opponent's prosecution, the statement of the Inspector that he had made a report to his superior officer does not carry the prosecution any further.
7. The learned Assistant Government Pleader referred us to the endorsement below the order Ex. 16c under the signature of Personal Assistant referring to an endorsement of the Inspector General of Police and forwarding a copy of the order to him. He argued that it must be presumed that the Inspector General of Police forwarded his report to the Collector by that endorsement. However we are up against the same difficulty viz., that we have not the Inspector General of Police's endorsement on the file, and the prosecution expects us to make a presumption in its favour, which cannot be done.
8. We hold that there is no valid sanction for prosecuting the opponent and consequently the learned Magistrate, had no jurisdiction to take cognizance of the offence. In the view which we take, of the legality of the sanction, we did not call upon the opponent's Advocate to argue other points against the conviction. The opponent's conviction and sentence are ordered to be set aside and he is ordered to be acquitted. In view of this order, the Government's petition for enhancement of the sentence is dismissed. The fine if paid should be refunded to the opponent.
9. I agree.