L.S. Mehta, J.
1. The succinct fact of this case, as alleged by the prosecution, are that the accused Ashraf Khan was a Police Head Constable. He was attached to Jagdish Singh, P. Section I, in the Additional Munsif-Magistrate', Jaipur City (West). Bhagwan Das, driver of jeep-car No. RSL 5953, owned by P.W 1 Bhagat Ram, had been involved in a criminal case, relating to rash and negligent driving and causing grievous injury to some person. The police presented a challan against him under Sections 279 and 339, I.P.C., in the aforesaid court. It is alleged that Jagdish Singh, P.S.I., and Ashraf Khan had demanded Rs. 100/- from Bhagwan Das for getting him released in the criminal case on payment of a nominal fine. After some negotiations Rs. 45/- were settleed as a bribe. Pursuant to that arrangement Rs. 20/- were paid to the accused on January 7, 1963. The residue was promised to be paid the next dav when the judgment of the court would be pronounced. Bhagat Ram owner of the jeep-car, showed antipathy towards offering bribe. He made an application in the Anti-Corruption Department, on January 8, 1963? He also Cave 5 currency notes of Rs. 5/-each to the Superintendent of Police, Anti-Corruption Department. The currency notes were duly initialed and then they were handed over to the Deputy Superintendent of Police, Mr. Chandanmal, P.W. 8 for laying a trap. Trap was organized and in pursuance thereof the respondent was caught soon after receiving Rs. 25-, in currency notes. The respondent Ashraf Khan, as a result was challenged under Section 5(2). Prevention of Corruption Act, 1947 (hereinafter referred to as the Act) under Section 161 the aforesaid offence on the ground that the prosecutions evidence failed to bring home the crime beyond reasonable doubt.
2. Dissatisfied by the above verdict, the State Government has taken this appeal. The contention of learned Counsel for the State is that the trial court went wrong in not raising presumption of having accepted bribe under Section 4 of the Act against the accused. Larned Counsel further subdued that the court below erred in holding that Bhagat Ram, P.W. 1 was not a truthful witness. The trying Judge, counsel added unnecessarily exacted he minor discrepancies occurring in the statements of the prosecution witnesses Earned Counsel for the respondent argued that the sanction obtained for the prosecution of the accused is not valid as the same was not accorded by the competent authority. The point relating to sanction, according to defence counsel, goes to the very root of the matter, vitiating the whole trial. Such a plea can be raised even at the appellate stage.
3. The most vital point requiring determination is whether or not respondents prosecution was sanctioned by the competent authority The respondent had been initially tried by Mr. D.C. Sharma, Special Judge Jaipur City. He had been convicted under Section 5(2) of the Act and had been sentenced to 1 years rigorous imprisonment and to pay a fine of Rs. 200/- in default to undergo further rigorous imprisonment for six months. An annea had been taken against that order. This Court, by to order, dated April 30 1965 set aside the conviction on the ground that the Deputy Inspector General of Police had had no power to accord sanction for the respondent's prosecution & that as the respondent had been appointed by the State Govt., his prosecution could have been ordered by the appointing authority & not by an authority inferior to it. Thereafter Mr. S.K. Vyas, Deputy. Secretary to the Govt. Appointments Dept. (III), Raj. had issued Order No. F 2 (82) Apptts. (A. III)/65, dated November 3, 1965, directing that the Head Constable Ashraf Khan be prosecuted under Section 161, I.P.C. read with Section 5(1)(d)(2) of the Act. Latter on a challan was again presented in the court of the Special Judge, Jaipur City. This court, by its order d -3 10-'66, withdrew the case from the file of the Special Judge, Jaipur City and transferred it for disposal to the Special Judge, Jaipur District The trial court observed in its judgment that the sanction Ex. P. 12 was valid, though on the merits of the case the accused was acquitted. This part of the order of the trial court has been challenged by counsel for the respondent while submitting his reply to the arguments advanced on behalf of the State.
4. Thereis no controversy that the accused was re-employed as a Head Constable by the State Government under the orders of the Rajpramukh on October 29, 1954: vide Government Order No. F. 1(56) Home (I)/54,dated October 29, 1954 Section 6 of the Act provides that 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 (2) of Section 5 of the Act, alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office. Article 311 of the Constitution of India lays down that no person, who is a member of a civil service of ihe Union or an All India Service or a civil servant of a State or holds a civil pest under the Union or a State shall be dismissed or removed by the authority subordinate to that by which he was appointed.
5. It may be stated here inter alia that when a public servant receives bribe, he neither acts, nor purports to act in the discharge of his official duty. Hence Section 197(1), Cr.P.C., has no application to such a case. In this connection a referrence is made to H.H.B. Gill v. The King AIR 1948 P.C. 128. In that case Lord Simonds observed:
A public servant can only be said to act or to purport to act in discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act.... A public servant charged with an offence under Section 120B read with Section 161, Penal Code, cannot justify his act of receiving bribe as an act done by him by virtue of the office that he held. No sanction under Section 197 is, therefore, necessary for the institution of proceedings against a public servant for an offence under Section 120B read with Section 161, Penal Code.
Though Section 197, Cr.P.C., does not apply to the prosecution of a case under Section 161, I.P.C., yet the sanction is 'sine qua-non,' when the delinquent is also heir g prosecuted under Section 5 of the Act if he is not removable from office except with the previous permission of the Government. In enacting Section 6 the Legislature accepted the principle that where a public servant is prosecuted for an offence which challenges his honesty and integrity, the issue in such a case is not between the prosecutor and the offender but the State is also vitally concerned in it, as it affects the moral of the public servant as also the administrative interest of the State. It is for this reason that the discretion to prosecute a public servant has been taken away from the prosecuting agency and is now vested in the departmental authorities. A special safe-guard has been conferred by the Legislature against irresponsible prosecution of the members of the service.
6. In determining as to who can be considered a competent authority to remove a Government servant is envisaged by Section 6 of the Act. The requirement of Article 311 of the Constitution of India must be given due consideration. Section 6 must be interpreted in the light of the requirements of Article 311 of the Constitution. A perusal of Article 311 shows that the authority to dismiss or remove a public servant should not be one subordinate in rank to that by which the Government servant was appointed and the principle appears to be that it is the factum of the appointment of the civil servant, who claims the guarantee, that must be taken into consideration. In support of this position reference is made to N. Somasunderam v. State of Madras AIR 1956 Mad. 419. In that case it has been observed:
Where an authority, higher than the one entitled under the statutory rules to order an appointment, in fact orders a valid appointment, it is the factum of that appointment that controls the scope of the guarantee conferred by Article 311(1) of the Constitution and, if such a civil servant is dismissed or removed from service by an authority, no doubt, competent under the rules to order the appointment and also to order dismissal, which, however, is lower in rank than the authority which in fact ordered the appointment, such an order would contravene the provisions of Article 311(1) of the Constitution.
Govinda Menon, J., (as he then was) in State of Kerala v. Madhavan : (1961)IILLJ484Ker pointed out:
Sanction under Section 6 of the Prevention of Corruption Act in respect of a civil servant who is sought to be prosecuted for offences under Section 5(1)(d) and Section 5(2) read with Section 161 of the Indian Penal Code is to be obtained from that Government or officer who is an appointing authority within the meaning of Article 311(1) of the Constitution of India. The competence of the authority to order removal or dismissal will have to be determined with reference to the requirements of Article 311(1) of the Constitution and one of the requirements is that the authority that orders dismissal or removal should not be one subordinate in rank to that by which the civil servant in question was appointed and the principle appears to be that it is the factum of the appointment of the civil servant who claims the guarantee that determined the scope of the guarantee conferred by Article 311. Section 6 of the Prevention of Corruption Act cannot override the provisions of the Constitution.
In Suraj Narain v. N.W.F. Province AIR 1942 P.C. 3 Vardachariar J., held:
The declaration contained in Sub-section (2) of Section 240 cannot be qualified or taken away by statutory rules. Hence the dismissal of a Sub-Inspector appointed by Inspector General, by the Deputy Inspector General of police according to the North-West Frontier Province Rules as modified in 1934 is inoperative.
In Mahesh Prasad v. State of U.P. : 1955CriLJ249 , it has been laid down that the removing authority should be of the same rank and grade as appointing authority. In Sobhagmal v. State , Wanchoo C.J., observed:
Obviously, therefore, Article 311 means that the dismissing authority should be at least co-ordinate in rank with the appointing authority and should not be subordinate in rank.
7. In Parmeshwar Dayal v. State AIR 1963 S.C. 126, it has been observed that if a civil servant is dismissed or removed from service by an authority competent under the rules lower in rank than the authority which in fact ordered the appointment, such an order would contravane the provisions of Article 311 of the Constitution. In N.W. F. Province v. Surajnarain AIR 1949 P.c. 112, their Lordships of the Privy Council approving the law laid down in Suraj Narain's case AIR 1942 F.C. 3 made it clear that where the person appointed by the Inspector General of Police, was dismissed by a Deputy Inspector General of Police prior to the amendment of the rules regarding the power of appointment and dismissal, the dismissal was bad. Normally when the statutory rules define the authority competent to appoint a civil servant, it would be seldom that an authority higher in ranks takes into itself the power to order an appointment in an individual case. But if such an appointment is an order by a higher authority it is only that higher authority that can exercise the power of ordering removal or dismissal from service.
8. The principle underlying the above decisions would appear to have supported the view that where an authority higher than the one entitled under the statutory rules to order an appointment, it is the factum of that appointment which controls the scope of the guarantee conferred by Article 311 of the Constitution and if such a civil servant is dismissed or removed by an authority lover in rank than the appointing authority, such an order would contravene the provisions of Article 311 of the Constitution.
9. Learned Counsel for the State referred to a decision of this Court in State v. Tarachand 1963 RLW 8, wherein it has been observed:
The Minister Incharge of the Department was competent to sanction prosecution of an officer of R.A.S. cadre.
That case is clearly distinguishable from the facts of the present case. In State v. Tarachand (supra) the papers were submitted to the Chief Minister and the sanction order contained various expressions of the following nature:
The Governor is satisfied.
The papers were placed before the Governor.
The Governor is pleased to direct.
In the present case Mr. S. Vyas, P.W. , Deputy Secretary to the Government, Appointments Department, has categorically said in his cross-examination:
But the fact is that I went through the relevant papers concerning the case for the purpose of sanctioning the case for the prosecuting. The words 'whereas it has been brought to my notice' etc., and 'further been brought to the notice etc.' and 'the facts etc., placed before me, J am satisfied' mentioned in Ex. 2 refer to me.
The above statement clearly shows that the papers were not submitted to the authority which had appointed the accused. The matter was simply brought to the notice of the Deputy Secretary.
10. Judging this case by the test laid down in the cases cited above, there should be little difficulty in reaching the correct conclusion. The respondent having been in fact appointed under the order of Rajpramukh, he could not have been dismissed from service by the Deputy Secretary Appointment Department. Since the provision of Article 311 of the Constitution has been violated by the order, dated November 3, 1965, the order is liable to be quashed as one passed without jurisdiction. Under the Constitution (Seventh Airundment) Act, 1956, the word 'Rajpramukh' has been omitted and only the word 'Governor' has been retained in the various provisions of the Constitution. Therefore, if the appointing authority was Rajpramukh and that post has been abolished, the analogous post, equal in rank, would be deemed to be 'Governor', he and alone was competent to accord sanction for the prosecution of the accused in this case.
11. A question has been posed by the learned Counsel for the State that the objection regarding the validity of the sanction ought to have been raised at the commencement of the trial and not at the appellate stage. In Mata Jog Jog Dobey v. M.C. Bhari : 28ITR941(SC) , it was observed:
Whether sanction is necessary or not may have to be determined from stage to stage.
Earned Counsel for the State relied on a decision of the Supreme Court in Dattafraya v. State of Bombay : 1952CriLJ955 . In that case there was ample evidence on the record to prove that the decision had in fact been taken by the proper authority and the infirmity in the form of authentication, did not vitiate the order that decision did not proceed on the correctness of the from of authentication but on the fact of an order having in fact been made by an appropriate authority & has thus no application to the present case, where it is clear that the Deputy Secretary, Appointments, in fact had not put up papers before the appointing authority. There is a recent decision of the Section C on the point R. J. Singh Ahuluwalia v. State of Delhi, Criminal Appeal No. 70 of 1970, decided on September 7, 1970. In that case the point regarding the sanction was allowed to be raised even at the stage of hearing of the appeal in the Supreme Court. Therefore, this argument of the learned Counsel for the State also fails.
12.Having reached the above conclusion, the Special Judge ought to have discharged the accused on the ground that he had no jurisdiction to try him. The order of acquittal, therefore, shall be deemed Jo have been passed without jurisdiction, and could only operate as order of discharge: vide Yusaf Alli Mulla v. The King AIR 1949 P.C. 264.
13. In the result, this appeal fails and is dismissed, with the observation made above.