PETITIONER:
JASWANT SINGH
Vs.
RESPONDENT:
THE STATE OF PUNJAB
DATE OF JUDGMENT:
25/10/1957
BENCH:
KAPUR, J.L.
BENCH:
KAPUR, J.L.
SINHA, BHUVNESHWAR P.
CITATION:
1958 AIR 124 1958 SCR 762
ACT:
Criminal trial-Sanction in respect of one offence-Trial for
two offences requiring sanction-If trial wholly void-
Prevention of Corruption Act, 1947 (II of 1947), ss.
5(1)(a), 5(1)(d) and 6.
HEADNOTE:
Sanction was given under s. 6 of the Prevention of
Corruption Act, 1947, for the prosecution of the appellant
for having received illegal gratification from one Pal
Singh. He was charged with and tried for two offences under
s. 5(1)(a) of the Act for habitually accepting or obtaining
illegal gratification and under S. 5(1)(d) for receiving
illegal gratification from Pal Singh. The Special judge
found both charges proved and convicted the appellant. On
appeal, the High Court held that the appellant could neither
be tried nor convicted of the offence under S. 5(1)(a) as no
sanction had been given in respect of it but upheld the
conviction for the offence under S. 5(1)(d) for which
sanction had been given. It was argued that the conviction
even for the offence under S. 5(1)(d) was illegal as the
trial was wholly void and without jurisdiction :
Held, that the contention that the trial for two offences
requiring sanction is wholly void, where the sanction is
granted for only one offence and not for the other, is
unsustainable. The want of sanction for the offence of
habitually accepting bribes does not make the taking of
cognizance of the offence of taking a bribe from Pal Singh
void nor the trial for that offence illegal and the Court a
Court without jurisdiction.
Hori Ram Singh v. The Crown, (1939) F.C.R. 159 and Basirul-
Huq v. The State of West Bengal, (1953) S.C.R. 836, referred
to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 66 of
1954.
Appeal from the judgment and order dated the 31st December,
1953 of the Punjab High Court in Criminal Appeal No. 540 of
1953, arising out of the judgment and order dated the 14th
September, 1953, of the Court of Special Judge, Amritsar, in
Corruption Case No. 13/1-10/3 of 1953.
Shaukat Hussain, for the appellant.
Gopal Singh and T. M. Sen, for the respondent.
1957. October 25. The following judgment of the Court was
delivered by
763
KAPUR J.-The sole point in this appeal against the judgment
and order of the Punjab High Court pronounced on December
31, 1953, is the validity and effect of the sanction given
under s. 6(1) of the Prevention of Corruption Act (Act 2 of
1947), hereinafter termed the Act.
The appellant was prosecuted for receiving illegal
gratification and the charge against him was in the
following terms:
“That, you, Jaswant Singh, while employed as a Patwari,
Fatehpur Rajputan habitually accepted or obtained for
yourself illegal gratification and that you received in the
sum of Rs. 50 on 19-3-1953 at Subzi Mandi Amritsar from Pal
Singh P. W. as a reward for forwarding the application Es.
P. A. with your recommendation for helping Santa Singh
father of Pal Singh in the allotment of Ahata No. 10 situate
at village Fatehpur Rajputan and thereby committed an
offence of Criminal misconduct in the discharge of your duty
mentioned in section 5(1)(a) of the Prevention of Corruption
Act, 1947, punishable under sub-section 2 of section 5 of
the aforesaid Act and within my cognizance. ”
The Special Judge found that the appellant had accepted
illegal gratification from Pal Singh, Hazara Singh, Harnam
Singh, Joginder Singh, Atma Singh, Hari Singh and Ganda
Singh and that he had received Rs. 50 from Pal Singh on
March 19, 1953, at Subzi Mandi, Amritsar. He then held:
“The charge under section 5 (1)(a) of the Prevention of
Corruption Act, 1947, has been established against him
beyond reasonable doubt. He is guilty of an offence
punishable under sub-section (2) of section 5 of the said
Act. ”
The appellant took an appeal to the High Court of the Punjab
and Dulat J. held that taking into consideration the
sanction which will be quoted hereinafter:
” The appellant could neither have been charged nor
convicted of what is probably a much graver offence of
habitually accepting bribes.”
97
764
But he held that sanction was valid qua the charge of
accepting illegal gratification of Rs. 50 from Pal Singh.
The conviction was therefore upheld but the sentence was
reduced to the period already undergone and the sentence of
fine maintained.
The argument raised by the appellant in this court is that
as the sanction was confined to illegal gratification of Rs.
50 paid by Pal Singh and the charge was for habitually
accepting illegal gratification the trial was without
jurisdiction and the appellant could not be convicted even
for the offence which was mentioned in the sanction. The
sanction was in the following terms:
” Whereas I am satisfied that Jaswant Singh Patwari son of
Gurdial Singh Kamboh of village Ajaibwali had accepted an
illegal gratification of Rs. 50 in 5 currency notes of Rs.
10 denomination each from one Pal Singh son of S. Santa
Singh of village Fatehpur Rajputan, Tehsil Amritsar for
making a favorable report on an application for allotment of
an ahata to S. Santa Singh father of the said S. Pal Singh.
And whereas the evidence available in this case clearly
discloses that the said S. Jaswant Singh Patwari had
committed an offence under Section 5 of the Prevention of
Corruption Act.
Now therefore, 1, N. N. Kashyap, Esquire I.C.S. Deputy
Commissioner, Asr, as required by Section 6 of the
Prevention of Corruption Act of 1947, hereby sanction the
prosecution of the said S. Jaswant Singh Patwari under
section 5 of the said Act.”
Section 6(1) of the Act provides for sanction as follows:
” No Court shall take cognizance of an offence punishable
under Section 161 or Section 165 of the Indian Penal Code or
under sub-section (2) of section 5 of this Act, alleged to
have been committed by a public servant, except with the
previous sanction. ” Section 5 (1)(a) relates to a case of
a public servant if he habitually accepts illegal
gratification and s. 5(1)(d)
765
if he obtains for himself any valuable thing or pecuniary
advantage. The contention comes to this that as the
sanction was only for receiving Rs. 50 as illegal
gratification from Pal Singh and therefore an offence’ under
s. 5 (1)(d) the prosecution, the charge and conviction
should have been under that provision and had that been so
there would have been no defect in the jurisdiction of the
court trying the case nor any defect in the conviction but
as the appellant was tried under the charge of being a
habitual receiver of bribes and the sanction was only for
one single act of receiving illegal gratification the trial
was wholly void as it was a trial by a court without
jurisdiction.
The sanction under the Act is not intended to be nor is an
automatic formality and it is essential that the provisions
in regard to sanction should be observed with complete
strictness; Basque Agarwala v. King Emperor (1). The object
of the provision for sanctions is that the authority giving
the sanction should be able to consider for itself tile
evidence before it comes to a conclusion that the
prosecution in the circumstances be sanctioned or forbidden.
In Gokulchand Dwarkadas Morarka v. The King (2) the Judicial
Committee of the Privy Council also took a similar view when
it observed:
” In their Lordships’ view, to comply with the provisions of
cl. 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
cl. 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 face
of the sanction’ the prosecution must prove by extraneous
evidence that those facts were placed before the sanctioning
authority. The sanction to prosecute is an important
matter; it constitutes a condition precedent to the
institution of the prosecution and the Government have an
absolute discretion to grant or withhold their sanction.
(1)[1945] F.C.R. 93,98 (2) [1948] L.R. 75 I.A.30, 37
766
It should be clear from the form of the sanction that the
sanctioning authority considered the evidence before it and
after a consideration of all the circumstances of the case
sanctioned the prosecution, and therefore unless the matter
can be proved by other evidence, in the sanction itself the
facts should be referred to indicate that the sanctioning
authority had applied its mind to the facts and
circumstances of the case. In Yusofalli Mulla Noorbhoy v.
The King (1) it was held that a valid sanction on separate
charges of hoarding and profiteering was essential to give
the court jurisdiction to try the charge. Without such
sanction the prosecution would be a nullity and the trial
without jurisdiction.
In the present case the sanction strictly construed
indicates the consideration by the sanctioning authority of
the facts relating to the receiving of the illegal
gratification from Pal Singh and therefore the appellant
could only be validly tried for that offence. The
contention that a trial for two offences requiring sanction
is wholly void, where the sanction is granted for one
offence and not for the other, is in our opinion
unsustainable. Section 6(1) of the Act bars the
jurisdiction of the court to take cognizance of an offence
for which previous sanction is required and has not been
given. The prosecution for offence under s. 5(1)(d)
therefore is not barred because the proceedings are not
without previous sanction which was validly given for the
offence of receiving a bribe from Pal Singh, but the offence
of habitually receiving illegal gratification could not be
taken cognizance of and the prosecution and trial for that
offence was void for want of sanction which is a condition
precedent for the courts taking cognizance of the offence
alleged to be committed and therefore the High Court has
rightly set aside the conviction for that offence. In Hori
Ram Singh v. The Crown(1) the charges against a public
servant were under ss. 409 and 477A, Indian Penal Code, one
for dishonestly converting and misappropriating certain
medicines entrusted to the public servant and the other for
wilful omission with intent to defraud to record certain
entries in the
(1)(1949) L.R. 76 I.A.158
(2)[1939] F.C.R.159.
767
account books of the hospital where he was employed. Thus
two distinct offences were committed in the course of the
same transaction in which the one, under s. 477A, Indian
Penal Code, required sanction under,s. 270(1) of the
Government of India Act and the other under s. 409, Indian
Penal Code, did not. But the bar to taking cognizance of
the former offence was not considered a bar to the trial for
an offence, for which no sanction was required and therefore
the proceedings under s. 477A were quashed as being without
jurisdiction but the proceedings under s. 409 Indian Penal
Code were allowed to proceed. Similarly the Supreme Court
in Basir-ul-Huq v. The State Of West Bengal (1) held s. 195,
Criminal Procedure Code to be no bar to the trial for a
distinct offence not requiring sanction although disclosed
by the same facts if the offence is not included in the
ambit of an offence requiring such sanction. The want of
sanction for the offence of habitually accepting bribes
therefore does not make the taking of cognizance of the
offence of taking a bribe of Rs. 50 from Pal Singh void nor
the trial for that offence illegal and the court a court
without jurisdiction.
The submission next raised is that the evidence in support
of being habitually a receiver of bribes has caused serious
prejudice to the defence of the appellant but no such
prejudice has been shown nor does the judgment of the High
Court which has proceeded on the evidence in support of the
charge of Pal Singh’s transaction, indicate the existence of
any prejudice and there was nothing indicated before us
leading, to the conclusion of prejudice or to consequent
failure of justice.
The High Court came to the conclusion that the trial for the
offence of habitually accepting illegal gratification could
not be validly tried and evidence led on that charge could
not be considered but the conviction of receiving a bribe of
Rs. 50 from Pal Singh is well founded and also that the
appellant has not been prejudiced in the conduct of his
defence.
(1) [1953] S.C.R. 836.
768
No arguments were addressed to this court on the correctness
of the finding of the High Court in regard to the conviction
for receiving illegal gratification from Pal Singh. We
agree with the opinion of the High Court that the offence
under S. 5(1) (d) of receiving illegal bribe of Rs. 50 has
been made out and would therefore dismiss this appeal.
Appeal dismissed.