JUDGMENT
K.C. Jagadeb Roy, J.
1. The petitioner in this revision challenges the
judgment dated 20-4-1988 passed in Criminal Appeal No. 12 of 1987 wherein the learned Sessions Judge, Keonjhar has dismissed the appeal and confirmed
the order of conviction and sentence passed by the Trial Court against him.
The petitioner was convicted under Section 4 of the Dowry Prohibition Act,
1961 and sentenced to undergo imprisonment till rising of the Court and to pay
a fine of Rs. 5,000/- in default to undergo simple imprisonment for 6 months.
2. The petitioner is a Bank Officer and his marriage was fixed with
one Sukanti, but the marriage could not be gone through due to the alleged
demand of a motor cycle by the petitioner. The father of Sukanti lodged an
F.I.R. on 21-4-1984 against the petitioner. Sanction had been given by the
Pistrict Magistrate, Keonjhar by his order dated 10-6-1984 after which U.I. Case No. 371 of 1984 (Trial Case No. 843 of 1984) was initiated against the
petitioner under Section 4 of the Dowry Prohibition Act in the Court of the
Chief Judicial Magistrate, Keonjhar on the “basis of the prosecution report submitted by the officer-in-charge, Patna P.S. By the order dated 17-4-1987, the
trial Court convicted the petitioner and sentenced him to undergo imprcionment
till rising of the Court and to pay fine of Rs. 5,000/-, in default, to undego
simple imprisonment for 6 months as stated earlier. The said judgment of the
Trial Court was confirmed by the Sessions Judge, Keonjhar by his
order dated 20-4-1988 passed in Criminal Appeal No. 12 of 1987. The
payment of fine of Rs. 5,000/-, however, had been stayed by the Appellate
Court and later by this Court by its order dated 13-5-1988 in Misc. Case No.
445 of 1988.
3. In this revision, the learned Counsel for the petitioner Mr. P.K. Misra submits that since these was no valid sanction for prosecution of the case,
the whole proceeding was a nullity and the orders passed by the Courts below
are without jurisdiction.
4. Section 4 of the Dowry ‘Prohibition Act reads as follows :
“4. Penalty for demanding dowry : If any person, after the commencement of this Act, demands, directly or indirectly, from the
parents or guardian of a bride or bridegroom, as the case may be,
any dowry, he shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five
thousand rupees, or with both :
Provided that no Court shall take cognizance of any offence
under this section except with the previous sanction the State Government or of such officer as the State Government may, by general or
special order, specify in this behalf.”
Section 4 is, however, substituted by the Amending Act 63 of 1984 which came
to the effect from 2-10-1985. But in the present case cognizance was taken on
15-7-1984 much before the amending provision came into effect.
5. This Court has already held in a case reported in 58 (1984) C.L.T.
184 (Nurun Nisha Begum v. Hasina Khatun and Others) that the sanction envisaged under the proviso to Section 4 of the Dowry Prohibition Act, 1961 is mandatory in nature. Under the Prevention of Corruption Act, similar provision
regarding sanction is also provided before the cognizance of the offence under
the said Act is taken. While dealing with the according of sanction under the
Prevention of Corruption Act, the Supreme Court as well as this Court have
indicated that the according of sanction is not merely a formality and the
sanctioning authority must have to apply its mind to the evidence on record
while considering the question of according or refusing of sanction in a particular case. If there was no proper application of mind to the materials on record,
and the sanctioning authority merely passed the order sanction in terms of section under the statute, the sanction Cannot be treated as valid sanction in the
eye of law and would amount to nullity and the proceeding initiated on the
basis of the sanction, therefore, would be without jurisdiction.
6. The Supreme Court in a case reported in A.I.R. 1958 SC 124
(Jaswant Singh v. State of Punjab) has held thus ;
” xx xx The object of the provision for sanctions is that the
authority giving the sanction should be able to consider for itself the
evidence before it comes to a conclusion that the prosecution in the
circumstances be sanctioned or forbidden.
XX XX XX XX XX
It should be clear form 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, xx xx.”
7. In (Yusofalli Mulla v. The King) reported in 1949 P.C. 264, it was
held thus :
“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.”
8. In a subsequent case reported in A.I.R. 1979 S.C. 677 (Mohd. Iqhal
Ahmed v. State of Andhra Pradesh), the Supreme Court also held thus :
“xx xx. It is incumbent on the prosecution to prove that a valid
sanction has been granted by the Sanctioning Authority after it was
satisfied that a case for sanction has been made out constituting the
offence. This should be done in two ways ; either (1) by producing
the original sanction which itself contains the facts constituting the
offence and the grounds of satisfaction and (2.) by adducing evidence
aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any
case instituted without a proper sanction must fail because this being
a manifest difficult (sic-defect) in the prosecution, the entire proceedings are rendered void ab initio, xx xx.”
9. This Court also held following several decisions of the Supreme
Court as well as of this Court that the conviction under Section 5 of the Prevention of Corruption Act was illegal for want of sanction under Section 6 of
the Act. This view was taken by this Court in a case reported in 1985 (1) O.L.R.
263 (Baikunthanath Mohanty v. The State of Orissa) which was a case under the
Prevention of Corruption Act. But the spirit of sanction contained in Section 6
of the Prevention of Corruption Act is the same as in proviso to Section 4 of
the Dowry Prohibition Act, 1961 before its amendment. This principle applied
by the Supreme Court as well as by this Court squarely apply to the case under
the Dowry Prohibition Act in the matter of sanction.
10. In the present case, the impugned sanction order was marked as
Ext. 2 in the Court below which shows that the District Magistrate exercised his
power conferred under Section 4 of the Dowry Prohibition Act according
sanction for submitting prosecution against the petitioner for having committed
the offence under Section 4 of the Dowry Prohibition Act. From this, nothing
transpires as to what were the materials before the Sanctioning Authority while
according sanction to start the prosecution against the petitioner. The learned Counsel for the petitioner has also drawn my attention to the deposition of the
Investigating Officer who was examined as P.W. 8. In his deposition, P.W. 8
has stated that he had written a letter to the Superintendent of Police to obtain
sanction order from the Collector to launch the prosecution. He did not know
the content of the letter of the Superintendent of Police written to the Collector.
He further stated that normally no statement was recorded during the inquiry
and no written record is available. The learned Addl. Standing Counsel appearing on behalf on the State is unable to show any material on records on the
basis of which the Collector gave his sanction order to initiate the prosecution
against the petitioner.
11. From the facts and circumstances of the case, I hold that there was
no proper application of mind by the Sanctioning Authority according sanction
for initiating the prosecution against the petitioner. The duty of the Sanctioning
Authority is to apply his mind fully and carefully to the materials placed before
him and to consider if the sanction could be accorded for prosecution which
was not done in this case though it was mandatory. The sanction order as per
Ext-2 does not amount to any proper sanction and therefore, a nullity and the
prosecution that was initiated on the basis of this sanction is, therefore, without
jurisdiction.
12. In the result, the criminal revision is allowed and the conviction
and sentence passed by the Courts below are set aside.
