JUDGMENT
K.D. Sharma, J.
1. This is an appeal filed by Dr. A.K. Datta against the judgment of the learned Special Judge for Rajasthan, Jaipur, in Case No. 9 of 1964, by which he was convicted under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act and Section 471, IPC and sentenced to undergo rigorous imprisonment (or one year and to pay a fine of Rs. 100/, in d fault of payment of fine to further suffer rigorous imprisonment for one month on the first count and on the second to undergo rigorous imprisonment for six months and to pay a fine of Rs. 100/-, in default of payment of fine to further suffer rigorous imprisonment for one month. Both the sentences however, were directed to run concurrently.
2. The prosecution case against the appellant was that in the year 1961 he was appointed Officer Incharge, Desert and Gangetic Plains, Zoological Survey of India at Jodbpur. Shri M.R. Mondal and Chandan Singh were working under him on the posts of Upper Division Clerk and Lower Division Clerk respectively. It was alleged that during this period Dr. A.K. Dutta entered into a criminal conspiracy with M.R. Mondal and Chandan Singh to do or cause to be done illegal acts, such as offences of criminal misconduct & of forging public documents in discharge of his official duties. In pursuance of the said conspiracy, Dr. A K Dutta asked Chandan Singh to show the names of Nathu Singh) Lax man Singh, Babu Lal, Laxmi Bai, Rukma and Ashkaran Singh in the official record as persons having been employed as casual labourers in his office, although he knew it well that such persons were never employed by him to do any office work. Dr. A.K. Datta employed maid-servants, namely, Laxmi Bai, Rukma, etc. from time to time for doing Bis domestic work but their wages were paid out of the Government funds by him in collusion with Mondal and Chandan Singh Clerks. According to the prosecution, Dr. A.K. Datta got false-muster-rolls-cum pay sheets prepared by Chandan Singh and Mondal in the name of fictitious casual labourers for making payment of wages to these maid-servants at the rate of Rs. 2/-, per day. In this manner, Dr. A.K. Datta was alleged to have mis-appropriated or converted to his own use a total sum of Rs. 358 12 p. with the help of the aforesaid two subordinates, who entered the names of fictitious casual labourers in the Official record and falsely drew and disbursed wages in their names by obtaining forged thumb impressions on pay bills against their names in the following manner:
Name of labourer Period for No. of No of amount
S. charged in which amount shown as days shown actuall
No. muster sheet was charged having wor- as absent drawn &
@ Rs. 2/-, ked in the in muster shown
per day muster sheet sheet disbursed
1. Nathu Singh 2.1.61 to 12 24/-
14.1.61
2. do 16 1.61 to 23 46/-
15.2.61
3. do 16.2.61 to 11 22/-
28.2.61
4. -do 1.3.61 to 17 34/-
22.3.61
5. -do 1.4.91 to 15 4 30/-
19.4.61
6. do- 1.5.61 to 10 2 18 06
10.5.61
7. -do 21.5.61 to 10 3 18.06
10.5.61
8. Laxman Singh 1.6.61 to 8 1 14/-
8.6.61
9. Babu Lal 12.6.61 to 6 12/-
17.6.61
10. Laxman Singh 21.6.61 to 10 2 16/-
30.6.61
11. do 10.7.61 to 8 1 14/-
17.7.61
12. -do- 22.7.61 to 10 2 16/-
31.7.61
13. Laxmi Bai 1.8.61 to 21 6 30/-
21.8.61
14. Kalu Ram 30.10.61 to 6 - 12/-
4.11.61
15. Rukma 20.11.61 to 15 3 24/-
4.12.61
16. do 5.12.61 to 15 3 24/-
19.12.61
17. Ashkaran Singh 19.12.61 to 2 - 4/-
30.12.61
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Rs. 358/12
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A criminal case No. RC 36/62 was registered against Dr. A.K. Datta on 31st December, 1962 by Shri A.R. Khan, Superintendent of Police, Special Police Establishment, Jaipur.. The case was partly investigated by Shri Surendra Singh, Inspector but, later on, the investigation of this case was handed over to Shri Ram Chandra, PW 22, on 10th May, 1963, bv the Superintendent of Police, Special Police Establishment, Jaipur- Shri Ram Chandra recorded statements of prosecution witnesses and took thumb impressions of Laxmi Bai, Laxman Singh, Nathu Singh and otbeis and sent them to Finger Print, Bureau. After receiving opinion of the Finger Print Expert, Shri Ram Chandra obtained requisite sanction to prosecute Dr. A.K. Datta and his subordinates, namely, M.R. Mondal and Chandan Singh. On completion of the investigation he Bled a charge’sheet against the appellant and his associates in the Court of the Special Judge No. 2, Jaipur City The learned Judge proceeded to try the appellant and his associates. During the course of trial, Chandan Singh turned an approver and gave evidence against Dr. A.K. Datta arid M.R. Mondal. The learned Special Judge completed the trial and found Dr. A.K. Datta guilty of the offences punishable under Section 471, IPC and Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947. He, however, acquitted Dr Datta of the charge of criminal conspiracy punishable under Section 120B, IPC. The other co-accused M. R. Mond3l was not found guilty of any offence. So he was acquitted of all the charges framed against him at the trial.
3. Aggrieved by his conviction and sentences, Dr, A.K Datta has come to this court in appeal as stated above.
4 I have carefully gone through the record and heard arguments advanced by the leraned Counsel for the appellant and Shri Rajeshwar Singh Parihar for the Respondent.
5. The first contention put forward by the leraned Counsel appearing fr the appellant is that the sanction of the competent authority was necessary for the prosecution of the appellant under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947, and that the prosecution could not obtain valid sanction to prosecute the appellant in this case’. Hence, according to him the Special Judge could not take cognizance of an offence under Section 5(1)(c) read with Section 5(2) of the Act without the sanction of the competent authority, fn support of his above contention he referred me to Gazette Notification No. S.G. 2494 dated August 3, 1965, which’ amended the Government of India (Allocation of Business) Rules, 1961, and contended on its strength that prior to he issue of this Notification, Ministry of Home Affairs was not competent to sanction the appellant’s prosecution The above contention if” not without force From a bare reading of the referred to above Gazette Notification No S.G. 2494 dated 3rd August, 1962, it appears that the President of India has made an amendment in the Government of India (Allocation of Business) Rules, 1961, in exercise of his powers conferred by Clause 3 of Article 77 of the Constitution of India. The amendment was made as follows:
In the said Rules, in the Second Schedule,
1. Under the Heading, “Ministry of Home Affairs”,
(a) after entry 32, the following entry shall be inserted, namely : “32A. According of sanction for the prosecution of any person for, any offence investigated into by the Delhi Special Police Establishment, where such sanction is required to be accorded by the Central Government.
Note.–Sanction for the prosecution of any person for any offence not investigated into by the Delhi Special Police Establishment, shall be accorded by the Administrative Ministry, where such sanction is required to be accorded by the Central Government.
Prior to this amendment the competent authority to accord sanction for offences investigated into by the Delhi Police Establishment was the Department of the Personnel (Karmic Vibhag) Cabinet Secretariat, where such sanction was required to be given by the Central Government. For any offence not investigated into by the Delhi Special Police Establishment the sanction for prosecution could be accorded by the Administrative Ministry where such sanction was required to be given by the Central Government. In the instant case the sanction was granted on 17th September, 1964, by the Ministry of Home Affairs, Government of India, under the signature of K. Sivaraj, Deputy Secretary to the Government of India, by order and in the name of the President of India. Before dealing with the objection relating to the validity of the sanction, I think it proper to reproduce the sanction. It reads as follows:
No. 10/18/64-AVD
Government of India
Ministry of Home Affairs
….
New Delhi, the 17th September, 1964
ORDER
Whereas it is alleged:
1. That Dr. A. K. Datta while working as Officer-in-Charge, Desert and Gangetic Planes, Zoological Survey of India, Jodhpu, during the period of January-September 1962, entered into a criminal conspiracy with his clerk Chandan Singh, LDC, of the said office, to commit the offences of criminal misconduct in the discharge of official duties by dishonestly drawing and showing the disbursement and also certifying the payment of wages to various fictitious persons namely Smt. Rukma, Smt. Kesar Bai and Smt. Radha Kishan Pyari, alleged to have been employed as casual labourers in the said office; when no such person of the said name had ever worked nor any amounts as wages were due to them and misappropriated to said documents or allowed the co-conspirator to do the same.
2. That further in pursuance of the said conspiracy the wages at the rate of Rs. 2/- per day of the said fictitious casual labourers were drawn for the periods mentioned below and their respective amounts were shown as disbursed to the payees by obtaining forged thumb impressions on the pay bills against their names:
————————————————————————————————-
Name of labourer Period for No. of No of amount
S. charged in which amount shown as days shown actuall
No. muster sheet was charged having wor- as absent drawn &
@ Rs. 2/-, ked in the in muster shown
per day muster sheet sheet disbursed
-------------------------------------------------------------------------------------------------
1 2 3 4 5 6
-------------------------------------------------------------------------------------------------
1. Rukma 20.12.61 to 15 3 24.00
3.1.62
2. Kesar Bai 15.1.62 to 15 3 24.00
29.1.62
3. Kesar Bai 12.4.62 to 17 5 24.00
28.4.62
4. Radha Kishan Pyari 12.9.62 to 19 3 24.00
30.9.62 -----------
Rs. 104.00
-----------
3. That Dr. A.K. Datta in pursuance of the said conspiracy, allowed a sum of Rs. 104/, to be misappropriated either by himself or by his co-conspirator by falsely attesting the attendance of aforesaid fictitious casual labourers and by falsely certifying the engagement of the labourers and their payment against forged thunub-impressions of the said payees.
4. That the above acts of Dr. A.K. Datta constitute the following offences under the law:
(a) Section 120B IPC read with Section 5(2) of the Prevention of Corruption Act (Act II of 1947).
(b) Section 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act (Act II of 1947).
(c) Section 471 IPC
5 And whereas the Central Government after fully and carefully examining the material in regard to the said allegations and the circumstances of the case considers that the said Dr. A K. Datta should be prosecuted in a court of law for the said offences.
6. Now, therefore, the Central Government is hereby pleased to accord sanction Under Section 197 Cr.P.C. and Section 6(1)(a) of the Prevention of Corruption Act, 1947 (Act II of 1947) for the prosecution of Dr. A.K. Datta for the said offences and any other offences punishable under other provisions of, law in respect of the acts aforesaid and for the taking of cognizance of the said offences by a court of competent jurisdiction.
Sd:–K. Sivraj
(K. Sivraj),
Deputy Secretary to the Government of India;
By order and in the name of the
President of India.
The important point that arises for determination in this appeal, therefore, is whether the Ministry of Home Affairs, Government of India was a competent authority to sanction prosecution of the appellant for offences mentioned above in the sanction. It is not disputed before me that the appellant was removable from service by the President of India. There is no further dispute that at the relevant time the appellant was working as Officer-in-Charge, Desert and Gangetic Planes, Zoological Survey of India at Jodhpur and that the work of the Zoological Survey of India was under the Department of Science and Technology allocated to Ministry of Education and Social Welfare sod that the effences alleged to have been committed by Dr A.K. Datta were investigated by Special Police Establishment, Jaipur. As the Ministry concerned was the Ministry of Education and Social Welfare, the appellant’s prosecution must have been sanctioned by the said Ministry under the Government of India (Allocation of Business) Rules, 1961 as they stood prior to their amendment by the President of India on 3rd August, 1965, It was only when the Government of India (Allocation of Business) Rules, 1961, were amended by the: President of India, vide Gazette Notification that the Ministry of Home Affairs could validly sanction the prosecution of any person for offences investigated into by Delhi Special Police Establishment, where such sanction was required to be given by the Central Government Even after amendment of the Rules, sanction for prosecution of any person for any offence not investigated into by Delhi Special Police Establishment would have to be accorded by the Administrative Ministry concerned, where such sanction was required to be accorded by the Central Government. In the absence of any sanction for the prosecution of the appellant by the Ministry of Education or by the Department of Personnel (Karkim Vibhag), the Special Judge had no jurisdiction to take cognizance of the offences mentioned in the charge sheet filed against the appellant. The leraned Counsel appearing on behalf of the respondent strenuously argued before me that the appellant did not care to raise any objection to the validity of the sanction in the trial court and that he should not be permitted to raise this objection for the first time in the High Court, because, according to him, this is not a pure question of law and that if this point had been raised in the court below, the prosecution could have met it by adducing necessary evidence on the practice and procedure followed by the Government in granting such sanctions during the period between 1948 and 3 8 1965. The leraned Counsel for the respondent applied for permission to lead additional evidence on the point of validity of sanction to prosecute the appellant. The application for taking additional evidence under Section 423, Cr P.C. was rejected on 15.3.1974, on the ground that the question whether the Ministry of Home Affairs was competent to accord sanction of this case prior to 3 8 1965 can very well be decided upon under the then existing rules & that the respondent cannot be permitted to let in additional evidence for filling up any lacuna or gap in the prosecution evidence. As for the contention of the leraned Counsel for the respondent that the objection relating to validity of sanction cannot be permitted to be raised for the first time in this Court, it may be observed that it was for the prosecution to prove by satisfactory evidence that the sanction accorded in this case was a valid one and that the authority who sanctioned the prosecution of the appellant was competent to accord the sanction. The leraned Counsel for the respondent could not show that the Ministry of Education or Department of Personnel had sanctioned the appellant’s prosecution in this case. The sanction given in this case itself reveals that it was accorded by the Ministry of Home Affairs on 17th September, 1964, on which date the Ministry of Home Affairs was not competent to accord such a sanction under the Government of India (Allocation of Business) Rules, 1961. It is undoubtedly true that this objection was not raised in the trial court, bur, as it strikes at the root of the case and as it relates to a condition precedent of a valid prosecution, I think it may be properly allowed to be raised at this stage. Reference in thi3 connection may be made to an authority R.J. Ahuluwalia v. State of Delhi 1970 UJ (SC) 885 (887), wherein their Lordships of the Supreme Court observed as follows:
The appellant’s leraned Counsel asked for permission to raise a point in challenge of this sanction. The new point sought to attack the sanction on two-fold ground. In the first instance he contended that this sanction was granted for prosecution under Section 6(1)(a). Secondly, it was contended ‘hat in the case of the appellant it was only the Home Department of the Government of India which could sanction the prosecution. This argument was founded on the Gazette Notification No. S.G 2494 dated 3rd August, 1965 which amended the Government of India (Allocation of Business) Rules, 1961 pursuant to the powers conferred on the President by Clause (3) of Article 77 of the Constitution. This ground of challenge had, of course, not been raised in either of the two courts below but since it went to the root of the case, being a jurisdictional point, we considered it just and proper to allow it to be raised.
The Leraned Counsel for the respondent invited my attention to the office memorandum No. 22/10/48 SPE dated 6th October 1948, as amended from time to time issued to all Ministeries/Departments and contended on its basis that the procedure for issue of sanction by the Government to prosecute Government officials for corruption cases investigated info by Delhi Special Police Establishment was that the Inspector General of Police, Delhi, Special Police Establishment used to forward the papers to the Home Ministry through the Ministry concerned, with his recommendations for obtaining sanction of the Government to prosecute officers and that the ministry concerned used to forward the papers with its concurrence to the Ministry of Home Affairs if it agreed, to launch a prosecution against a Government official after careful scrutiny of the relevant papers and that after necessary consultation the Ministry of Home Affairs had issued the sanction to prosecute the appellant after following the above procedure and that the sanction should not be held invalid merely because the Ministry of Education or the Department of Personnel had not issued the formal sanction. The above contention is not acceptable, because the Government of India (Allocation of Business Rules, 1961, have been made by the President in exercise of the powers conferred by Clause (3) of Article 77 of the Constitution & in supersession of all previous rules and orders on the subject. After coming into force of the Government of India (Allocation of Business) Rules, 1961, all previous rules and orders on the subject were superseded. Hence even if there were any rules of procedure laid down for issue of sanction by the Ministry of Home Affairs under office memorandum No. 22/10/48-SPE dated 6th October, 1948 to prosecute Government officials for corruption cases investigated into by the Delhi Special Police Establishment prior to 1981, they ceased to have legal force after coming into force of the Government of India (Allocation of Business) Rules, 1961.
6. Mr. Rajeswar Singh Parihar counsel for the respondent streneously urged before me that the appellant has been convicted by the Special Judge under Section 471, IPC also and that no sanction was necessary to prosecute the appellant for this offence as dishonest or fraudulent user of pay sheets and muster-rolls on his part as genuine while knowing or having reason to believe them to be forged documents, clearly fell outside the scope of his duty. In support of his above contention, he has relied upon the following authorities : Hori Ram Singh v. Emperor AIR 1939 PC 43, Ronald v. State of West Bengal AIR 1954 SC 455, and Behari Lal v. Moola 1962 RLW 148. I have carefully gone through the referred to above rulings. In my opinion, they are distinguishable on facts. The question of sanction has to be determined on the facts of each case. It is undoubtedly true that sanction for prosecution under Section 197(1), Cr. P.C. is not required in (sic)
The State, Respondent (7), wherein their Lordships were pleased to make the following observations:
As the proceeding before the Special Judge in this case relating to the offence under Section 5(2) of Act II was not trial at all due to the absence of a valid sanction, the Special Judge bad no jurisdiction under Section 7(3) of Act XLVI to try the offence under Section 409 of the Penal Code also. The trial for that offence, being without jurisdiction, is null and void. The appellant’s conviction cannot, therefore, be upheld. Indeed, no order, either of acquittal or conviction can be passed.
In this view of the matter the trial of the appellant under either of the aforesaid sanctions was legally no trial at all.
8. The leraned Counsel appearing on behalf of the appellant has urged that in the interest of justice a fresh trial after receipt of a fresh valid sanction should not be permitted to start, because the appellant had already faced a protracted criminal trial and had been put to unnecessary harassment for a period of about twelve years. He further argued that the appellant had to come from Calcutta to attend the court of the Special Judge on a good number of hearings during the protracted trial and, therefore, had to incur a huge expenditure to defend himself. If he is asked to face a new trial after twelve years, he would again be subjected to huge expenses and great harassment. la support of his above contention, he placed reliance on an authority of the Supreme Court of India reported as R.R. Chari v. State of U.P. AIR 1962 SC 1572. The above contention raised by the leraned Counsel for the appellant is not acceptable in the peculiar circumstances of this case. The two factors, which were taken into consideration by their Lordships of the Supreme Court in the referred to above case in arriving at a conclusion that the appellant should not be ordered to face a fresh trial are not present in the instant case. It will not be out of place to mention that Dr. Datta was not under suspension during the trial. The appeal is therefore accepted and the convictions of the appellant under Section 471, IPC and Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act are set aside on the ground that he was prosecuted in the court of the Special Judge, Jaipur, for the said offences without a valid sanction as required by Section 6 of the Prevention of Corruption Act & Section 197(1), Cr.P.C. Dr. A.K. Datta is on bail. His bail bonds are cancelled.