The State vs Biswanath Naik on 19 February, 1952

JUDGMENT

Jagannadhadas, C.J.

1. This an appeal by the State against the acquittal of one Biswa-mohan Naik, a public servant. He was charged on three, counts of having received illegal gratification in the discharge of his official duties and of thereby having committed offences under Section 161 of the Indian Penal Code. The trial Magistrate acquitted him in respect of two of the counts, but convicted him as regards the third and sentenced him to one year’s rigorous imprisonment. On appeal, the learned Sessions Judge held him not guilty in respect of this third count also and acquitted him therefor. It is against this acquittal in respect of the third count that the State has come up in appeal to this Court.

2. The accused was the Inspector of Factories under the Government of Orissa drawing a monthly salary of Rs. 300/-. In the course of his official duties he had to inspect all the factories and the mills within the State of Orissa. In September, 1948 he took up inspection of the mills in the district of Balasore. The prosecution case against him is on the allegation that in respect of three of the mills, he purported to find defects therein and threatened the persons in charge of the respective mills with penalties for the same and obtained bribes from them, so that he may refrain from taking notice of the defects and prosecuting them therefor. Accordingly the charges against him are that (1) on or about the 30th September he obtained a bribe of Rs. 300/-from one Harish Chandra Gochait, in respect of the Jagadhatri Mill of Khantapara and (2) that on or about the 3rd of October, 1948, he obtained a bribe of Rs. 450/- from Hariram Gupta P. W. 5 of Mangala Mill, Basta.

It may be mentioned that so far as the last bribe received from P. W. 5 of Mangala Mill is concerned, that is said to have been disclosed by a trap to catch the accused immediately after the payment of the bribe consisting of three marked one-hundred rupee notes. As will presently appear, it is unnecessary to set out the facts of this case in more detail. The trial Court acquitted the accused in respect of the alleged bribes of Jagadhatri Mill of Khantapara and Chandi Mill of Haladipada, and the appellate Court acquitted the accused in respect of the alleged bribe received from P. W. 5 of the Mangala Mill of Basta.

3. We are accordingly concerned in this appeal with the bribe (alleged?) to have (been?) obtained by the accused from P, W. 5 in respect of the Mangala Mill of Basta on or about the 3rd of October, 1948. The learned Sessions Judge has set aside the conviction in respect of this mill on two grounds, viz., (I) the requisite sanction has not been made out and the sanction relied upon by the prosecution is not in accordance with the law and hence the trial is illegal and (2) on the merits and appreciation of the evidence in the case, this item of offence charged against the accused has not been made out.

4. In the arguments, before us, both sides have concentrated on the question of the validity of the sanction. The prosecution, as already stated, is in respect of alleged offences under Section 161 of the Indian Penal Code. There was at one time, considerable difference of opinion, as to whether for a prosecution in respect of an offence under Section 161 of the Indian Penal Code, sanction either under Section 270 of the Government of India Act, 1935, or under Section 197 of the Criminal P.C., was necessary. This question was finally determined by the Privy Council in the decision in H. H. B. GILL V. THE KING’, AIR 1948 P C 128 wherein their Lordships held that in respect of the prosecution of a public servant for an offence of bribe-taking under Section 161 of the Indian Penal Code, no sanction under either of the above statutory provisions was necessary. The reason is that in receiving a bribe, a public servant neither acts, nor purports to act in the discharge of his official duty- They adopted in this respect the view taken by the Federal Court in ‘HORI RAM SINGH v. EMPEROR’, AIR 1939 PC 43 and ‘H. T. HUNTLEY v. EMPEROR’, AIR 1944 PC 66, when discussing cases which arose with reference to Section 270 of the Government of India Act.

To remove the doubts in the legal position before the final decision of the Privy Council was given and to afford a greater measure of protection to public servants as regards prosecution, the legislature enacted by Section 6 of Act II of 1947 (quoting only portions thereof relevant for the present purpose) as follows: “No Court shall take cognizance of an offence punishable under Section 161 of the Indian Penal Code, alleged to have been committed by a pubic servant, except with the previous sanction of the Provincial Government in the case of a person who is employed in connection with the affairs of a Province and is not removable from his office save by or with the sanction of the Provincial Government.” Admittedly, the accused was not removable from his office except with the sanction of the Provincial Government. It is, therefore, undisputed that sanction of the Provincial Government was required before the Court could take cognizance of the charges against the accused under Section 161 of the Penal Code.

5. In the trial Court, Ex. 40, a letter dated the 16th December 1948, from the Secretary to the Government of Orissa, Commerce and Labour Department, to the District Magistrate, Balasore, was relied on as the requisite sanction. That letter is as follows:

“From V. Ramanathan, Esqr., I.C.S.,

Secretary to Government.

To

The District Magistrate, Balasore,

Dated Cuttack, the 16th December 1948.

Sir,

With reference to your letter No. 995-C. dated the 17th November 1948, I am directed to say that after due consideration of the facts set out in your report, the Provincial Government are pleased to sanction prosecution under Section 197 of the Code of Criminal Procedure, 1898, of Sri B. B. Naik, Inspector of Factories, Orissa, on a charge of taking gratification other than legal remuneration in respect of an official act. under Section 161 of the Indian Penal Code, 1860, or under any other section of the said Code under which he might be found guilty.

Yours faithfully,        
(Sd) ILLEGIBLE),        
Secretary to Government.”

In the trial Court an objection was taken presumably relying on the Privy Council decisions in ‘GOKULCHAND DWARKADAS MORAKA v. THE KING’, AIR 1948 P C 82, that this sanction was not valid as it did not set out the facts constituting the offence for which the prosecution was sanctioned, and it was also pointed out that the sanction purported to have been given under Section 197 of the Criminal P. C., and not under Section 6 of the Prevention of Corruption Act, II of 1947, To get over the first objection, the prosecution attempted at the stage of arguments before the trial Magistrate to exhibit the letter of the District Magistrate, dated the 17th November, which was referred to in Ex. 40. But the learned Magistrate refused to have it exhibited, but held that Ex. 40 shows that the sanctioning authority applied its mind to the case and accorded the sanction. He also overruled the objection that the sanction given was not one under Section 6 of Act II of 1947 but one under Section 197 of the Code of Criminal Procedure treating it as an inadvertent slip and curable under Section 537 of the Criminal P.C. He held, therefore, that the objections taken for the defence as to the validity of the sanction were not maintainable.

On appeal the learned Sessions Judge permitted the letter of the District Magistrate dated the 17th November 1948, and referred to in Ex. 40 to be marked by way of additional evidence as Ex. 40 (a). Taking both Exs. 40 and 40 (a) together he held that the evidence does not disclose that the facts constituting the offence had been properly placed before the sanctioning authority for their consideration. He consequently held on the view taken in Moraka’s case that the sanction is not valid. He also held that the sanction being one under Section 197 of the Criminal P. C., and not under Section 8 of Act II of 1947, was not sufficient. On these grounds, he held the sanction to be invalid.

6. Learned counsel for the appellant while supporting the grounds on which the learned Sessions Judge on appeal held the sanction to be invalid, has urged that the defect as regards the sanction in this case is much more fundamental. He points out that the letter Ex. 40 relied upon by the prosecution is not and does not purport to be itself the order of sanction of the Provincial Government, but is merely a letter intimating that the sanction of the Government has been granted. He further urges that in any case, if this letter, Ex. 40, is intended to be the only order , of sanction, it is not in the requisite legal form and cannot therefore, be taken notice of. After having considered the arguments on both sides, on this part of the case fully, we come to the conclusion that the argument of the learned counsel for the defence must prevail. As has been stated already the previous sanction of the Provincial Government is a pre-requisite for the Court taking cognizance of the present charge. Therefore, what has to be placed before the Court is proof of that very order granting sanction and not proof of the fact that sanction had been granted. The sanction of the Provincial Government is an executive act of the said Government. The requirement being a statutory one, it must be given in the manner and expressed in the form authorised by the statutory provisions or regulations and no other.

We are not in the present case, concerned with the question whether or not the sanction was given by competent authority, who can speak and act validly for the Provincial Government — a question which arose in the special Bench case

in ‘VARADARAJULU NAIDU v. EMPEROR;, 42 Mad 835. No such question has been raised’ before us. But by virtue of Section 59(1) of Government of India Act, 1935, which applies to the case:

“All executive action of the Government of the Provinces shall be expressed to be taken in the name of Governor.”

It is not disputed that under Sub-section (2) of the same section, orders can be authenticated by one of the principal Secretaries of the Provincial Government, which Shri V. Ramanathan was, But it is quite clear that by virtue of Sub-section (1), the order of sanction must be expressed in the name of Governor. It is only an order expressed in the form authorised by Section 59(1) taken if need be with the definition of “Provincial Government” in the General Clauses Act, as meaning the “Governor”, and authenticated in the manner indicated in Section 59(2) that constitutes, the legal proof of a valid sanction of the Provincial Government and no other. In the present case, Ex. 40, which is relied upon, does not express ‘on the face of it, as it should have done that the executive action in question, viz., the sanction of the Provincial Government, was taken in the name of Governor. It is a mere letter from one Government Officer to another stating that sanction has been granted. Hence, there is no proof of the order of sanction itself.

Also see ‘EBADUL HUQ v. THE CROWN!, 52 Cr L J 260. This is not a question of mere form, but one of substance, since it relates to the jurisdiction of the Court to take cognizance. It is well settled that where certain forms and formalities are prescribed as a condition precedent for jurisdiction, those requirements, must he strictly complied with, before jurisdiction can be taken. Indeed, the learned Advocate-General appearing for the State could not seriously contest the above view.

7. We are also unable to agree that Ex. 40 which is relied upon by the prosecution as constituting the requisite sanction is sufficient for the present case. It refers in terms only to Section 197 of Criminal P.C., and not to Section 6 of the Prevention of Corruption Act, II of 1947. It is to be noticed that the letter of the District Magistrate, with reference to which the sanction was given and exhibited as Ex. 40 (a) on appeal, (we express no opinion as to the propriety of admission of such additional evidence by the appellate Court) in terms, points out that the sanction is required under the Prevention of Corruption Act, II of 1947. But curiously enough, the reply thereto, Ex. 40, specifies that the sanction is given under Section 197 of Criminal P.C. It is impossible to treat this as a mere inadvertent mistake. It is to be remembered that the question as to whether a sanction for an offence under Section 161 was required under Section 197, Criminal P.C., was rather in doubt on the cases at that time. The sanctioning authority may, therefore, well have thought that the sanction was not necessary, but gave it only by way of abundant caution. By Virtue of ‘GILL’S CASE’, AIR 1948 P C 128, no sanction for a prosecution of an offence under Section 161 is required so far as Section 197, Criminal P. C., is concerned. Hence a sanction purporting to have been given under Section 197, Criminal P.C., is no sanction at all. The sanction under the Prevention of Corruption Act must be given with full realisation of the responsibility that the sanction is a pre-requisite for the Court taking cognizance which cannot be presumed in this case in view of the mistake.

8. It is unnecessary to go into the further question whether Ex. 40 and Ex. 40 (a) taken together is sufficient legal proof of the sanction under Section 6 of the Prevention of Corruption Act, and if it satisfies the test laid as to the requirements of a legal sanction, laid down in Morark’s case,

9. Having come to the clear conclusion that there is no proper sanction for the Court taking cognizance in this case a position virtually accepted by the Advocate-General, we do not propose to go into the merits of the case and we express no opinion on the same.

10. The appeal must accordingly be dismissed.

Panigrahi, J.

11. I agree.