Kan Singh, J.
1. This is an appeal by the State brought against the judgment of the learned Special Judge, Tonk dated 26/3/1970 acquitting the accused respondents of an offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, and under Sections 161, 165, 165A, 420. 419, 120B. 117, 114 and 218, IPC.
2. Accused Girvar Dayal was, at the relevant time, a Sub-Inspector of Police, and posted at Police Station, Uniara. On 21st February, 1966, the accused Girvar Dayal Dave accompanied with others went to village Balithal to the house of PW/6 Sukhdev Sukhdev was said to the have held a feast for 500 to 700 persons in contravention of law. The accused had earlier entered into a conspiracy to exploit this for extracting illegal gratification from Sukhdev. They succeeded in extracting an amount of Rs. 500/ from Sukhdey Accused Umrao Mai was acquitted. He posed himself as a Superintendent of Police. The other accused were constables. Girvar Dayal Dave was offered a bribe of Rs. 100/- in the first instance to hush up the case, but he suggested that the Sukhdev should meet Umraomal, who was siting in the vehicle, Girvar Dayal made Sukhdev to understand that Umrao Vial Jain was the Superintendent of Police, and he would not be satisfied with a small amount. While the party of the accused were leaving, some tha one or the other of the villagers were able to know that accused Umrao Mai Jain was not the Superintendent of Police, but an Advocate Ultimately, on 26/2/1986. a complaint was ledged by Sukbdev before PW/16, Shri Dharma Pal, Superintendent of Police to the effect that the accused had cheated him by giving out Umarao Mai Jain as Superintendent of Police. Shri Dharma Pal ordered a preliminary investigation. Accordingly, PW/15 Krishna Gopal, the Deputy Superintendent of Police male the investigation, and reported that complaint was true One 14/3/1966, the Superintendent of Police, Tonk ledged a formal FIR with the Anti-Corruption, Police Station, Jaipur. The Anti Corruption Police then completed the investigation, and on 9/6/1967 put up a chailan against the accused in the Court of Special Judge, Tonk Learned Special Judge registered the case on 13/6/1967, and ordered the issue of summons against the accused on 24/8/1967 One of the accused, however, did not appear on the date of hearing, and accordingly a boilable warrant was issued against him. A sanction for prosecuting the accused under Section 6 of the Prevention of Corruption Act accorded by the Deputy Inspector General of Ponce was filed along with the challan; but the prosecution felt that this was defective. Accordingly, a fresh sanction purporting to have been issued by the Inspector General of Police on 18/9/1967, was filed. The proceedings continued before the learned Special Judge. Eventually, the accused were acquitted by the learned Special Judge.
3. It was argued before the learned Special Judge that the sanction accorded by the Inspector General of Police on 18/9/1967 could not validate the proceedings or the taking of cognizance by the learned Special Judge on 21/6/1967 when he ordered the issue of summon against the accused. In the second place, it was argued that the offence was not established by the evidence on record against any of the accused.
4. The learned Special Judge held that the prosecution of the accused was bad as at the time the chailan was put up and cognizance taken by this Court, there was no valaid sanction of the competent authority, The learned Special Judge also went into the evidence, and held that the charge was not established against the accused. In the result, he acquitted the accused.
5. We have heard learned Public Prosecutor. Section 6 of the Prevention of Corruption Act, 1947 runs as follows:
6. Previous sanction necessary for prosecution:
(1) No Court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code or under Sub-section (1) or Sub-section (3.A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction:
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of the Central Government
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government.
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under Sub-section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed,
This section is clear that the Court shall not take cognizance of any offence punishable under various sections mentioned therein except with the previous sanction, and in the case of a person, who is employed in connection with the affairs of a State, the sanction has to be of the authority competent to remove him from office. The sanction has to precede the taking of cognizance, and not to follow it. The sanction here was subsequent to taking of cognizance. It will not, therefore validate the taking of cognizance by the Court. This sane ion has to be by the authority who is competent to remove the public servant from his office. In the present case, the accused other than Umrao Mai were subordinate police officers, and, therefore, the sanction was reamed to be or the authority who was competent to remove them from office. Learned Public Prosecutor admits that the accused Girvar Dayal Dave was appointed as Sub Inspector in the integrated setup of Rajasthan by the Inspector General of Police. That being so, the sanction for prosecution accorded by he Deputy Inspector General of Police prior to the filing of the challan was of no avail. The competent authority, namely, the Inspector General of Police had accorded the sanction after the proceedings had commenced before the learned Special Judge, sanction being given on 18/9/1967.
6. Learned Public Prosecutor submitted that the Special Judge can not be said to have taken congnizance of the offence merely by issuing of submissions against the accused. This, in our view, is an entirely erroneous submission to make Cognizance of an offence is taken by a Court when it applies its mind to the facts alleged against the accused, and then decides to proceed in the matter by issuing a process, or otherwise. We may refer to two cases of the Supreme Court R.R. Chari v. State of U.P. : 1951CriLJ775 and Barjonth v. State of M.P. : 1966CriLJ179 . In the last mentioned case, the Police had submitted a charge sheet against the accused on 4/4/1953. The order-sheet recorded by the Magistrate vent so show that on 6/4/53, be had ordered that the prosecution witnesses were to be summoned on a future date, and that the accused were to be present in the Court from the Jail on that date. I was held by their Lord-ships that the Magistrate had taken cognizance of the offence on 6/4/53 when he ordered that the accused shall be produced in the Court from Jail on the next date. Therefore in the present case, the learned Special Judge will be taken to have taken cognizance of the offence against the accused when he ordered the issuing of the summons against the accused in the first instance. The sanction for prosecution was accorded by the competent authority, namely, Inspector General of Police as late as 18/9/67, that is, long after the taking of the cognizance. This sanction' therefore, cannot validate the taking of cognizance by the learned Special Judge, or the proceedings taken subsequently The learned Special Judge was, therefore, right in holding that there was no valid sanction accorded by the competent authority before the taking of the cognizance.
7. However, as the learned Special Judge had reached the conclusion that there was no valid sanction before the taking of cognizance in the present case, be was not justified in entering into the merits of the case. It was his clear duty to have stayed his hands once he had come to the conclusion that there was no valid sanction. In the absence of a valid sanction, the Special Judge did not have any jurisdiction to proceed with the case, or to weigh the evidence and then record an acquittal on merits. The prosecution should have been left free to proceed further in the matter, it they were so advised, on the basis of a valid sanction; but, the learned Special Judge was not justified in recording an order of acquittal against the accused. The proper order to pass would be that of discharge, and not of acquittal. We are not, therefore, called upon to enter into the merits of the evidence.
8. In result, therefore, we dismiss this appeal with the modification that the order recorded by the learned Special Judge shall be treated as one of discharge instead of acquittal and the prosecution is left free to put up a fresh challan against the accused, if so advised.