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PETITIONER: R. R. CHARI

       Vs.

RESPONDENT: STATE OF U.P

DATE OF JUDGMENT: 28/03/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1962 AIR 1573            1963 SCR  (1) 121  CITATOR INFO :  R          1968 SC1292  (11)  R          1984 SC 684  (19)

ACT: Criminal Trial-Bribery and forgery-Public Servant, tried  by Sessions  Judge-Legality of trial-Accused permanent  servant of Assam Government loaned to Central Government Sanction by Central Government, validity of-Criminal Law Amendment  Act, 1952  (46  of 1952), ss. 7, 10-Code of  Criminal  Procedure, 1898  (Act of 1898), ss. 197, 213-Prevention  of  Corruption Act 1947 (2 of 1947) s. 6.

HEADNOTE: The  appellant  was in the permanent service  of  the  Assam Government  but  his  services  were  lent  to  the  Central Government.   At the relevant time, i e , December  1945  to September  1946,  he was posted at Kanpur as Deputy  Iron  & Steel  Controller.   In  connection  with  the  granting  of permits to certain persons charges under ss. 120B, 161,  165 and  467  Indian Penal Code, and under r. 473(3)  read  with r.472,  Defence  of India Rules were leveled’  against  him. Sanction  for  his prosecution was granted  by  the  Central Government  on  January  31, 1919, and a  charge  sheet  was submitted against him.  On March 1, 1952, the appellant  was committed  to  the Court of Sessions for trial.   The  trial commenced on May, 7, 1953, and the Sessions judge  convicted the appellant of all the charges.  On appeal the High  Court upheld  the  conviction under ss. 161 and 467  Indian  Penal Code and set aside the conviction on the other charges.  The appellant contended (i) that the trial by the Sessions judge was  illegal as after the coming into force of the  Criminal Law Amendment Act, 1952, on July 28, 1952, he could only  be tried by a Special judge, and (ii) that the sanction granted by  the  Central Government was invalid and of no  avail  as sanction for the prosecution of the appellant could only  be granted   by  the  Assam  Government  in   whose   permanent employment the appellant was. Held,  that the Sessions Judge had jurisdiction to hold  the trial and it was not required that the appellant should have been  tried by a special judge.  Though s.7 of the  Criminal Law  Amendment required all offenses under ss. 1 61 and  165 Indian  Penal  Code  to be tried by  a  Special  judge,  the

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section  was  only  prospective  and  did  not  provide  for transfer  of all pending cases.  Under s.10 of the Act  only such  cases triable by a Special Judge under s.7as were  ac- tually pending before any Magistrate immediately before 122 the  commencement  of the Act could be  transferred  to  the Special  judge.   The  case  against  the  appellant  having already been committed to the Sessions was no longer pending before  the Magistrate.  The mere fact that  the  Magistrate still  had  power,  under s.216 of  the  Code  of  Criminal, Procedure to summon witnesses for the defence and bind  them to  appear before the Court of Sessions, did not imply  that his  jurisdiction  to  deal  with the  merits  of  the  case continued. Held,  further  that  though the  sanction  granted  by  the Central  Government was a good sanction under s. 197 of  the Code of Criminal Procedure it was not a valid sanction under s.6  of the Prevention of Corruption Act.  At the time  when the sanction was granted the appellant was in the  permanent employment  of the Assam Government but he was  employed  in the  affairs of, the Federation.  Under s.197, in  cases  of persons  employed  in  connection with the  affairs  of  the Federation  the Governor-General was the authority to  grant the sanction and in cases of persons employed in  connection with  the affairs of the States it was the Governor.   Under s.6  of  the  Corruption Act  the  position  was  different. Clauses  (a)  and  (b) of the  section  dealt  with  persons permanently  employed in connection with the affairs of  the Federation  or of the Provinces and in regard to  them,  the appropriate authorities were the Central Government and  the Provincial  Government.  The word "employed" in cls.(a)  and (b)  referred to employment of a permanent  character.   The case  of a public servant whose services were loaned by  one Government to another fell under cl.(c) under which sanction could  be  ranted by the authority competent to  remove  him from  his  service.  The authority competent to  remove  the appellant from his service was the Assam Government and that Government alone could have granted a valid sanction for the prosecution  of the appellant. Accordingly the trial of  the appellant  for  offenses under ss. 161 and 165  was  without jurisdiction. Held, further that the convinction of the appellant for  the offence under s.467 could not stand as it was based entirely upon the uncorroborated testimony of accomplices.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 46  of 1958. Appeal from the judgment and order dated March 17, 1958,  of the  Allahabad  High Court in Criminal Appeal  No.  1635  of 1953,                             123 A.  S. R. Chari, S. Pichai and S. Venkatakrishnan,  for  the appellant. SarjooPrasad, G.C.Mathur and G.P.Lal, for the respondent. 1962.   March 28.  The Judgement of the Court was  delivered by GAJENDRAGADKAR, J.-The appellant R.R. Chari was a  permanent employee  in a gazetted post under the Government of  Assam. In 1941, his services were lent to the Government of  India. The  first  appointment which the appellant held  under  the government  of  India  was that of the  Deputy  Director  of Metals  in the Munitions Production Department at  Calcutta.

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Then  he came to Delhi on similar work in the office of  the Master-General  of  Ordnance which was the Steel  Priority Authority during the War period.  He was subsequently trans- ferred  to  Kanpur as Assistant Iron a Steel  Controller  in 1945.   Sometime  thereafter, he become the  Deputy  Iron  & Steel Controller, Kanpur Circle; which post he held for  one month  in  September,  1945.  From  January,  1946,  be  was appointed  to  the  said post and he held  that  post  until September 20 1946.  The period covered by the charges  which were eventually formed against the appellant and, others  is from  January 1, 1946 to September 20, 1946.  On the  latter date,  the appellant proceeded on leave for four months  and did  not return to’ service either under the  Government  of India or under the Assam Government. It  appears that while the appellant had proceeded on  leave the  Government  of India wrote to the Assam  Government  on February 8, 1947, intimating that it had desided to  replace the  services of the appellant at the disposal of the  Assam Government  on the expiry of the leave granted to  him  with effect  from September, 21, 1946.  The Government  of  India also added that the exact 124 period  of  the  leave granted to  the  appellant  would  be intimated to the Assam Government later.  On April 28, 1947, leave granted to the appellant was gazetted with effect from September  21,  1946  for  a  period  of  four  months.    A subsequent  notification  issued by the  Central  Government extended the leave up to May 13, 1947.  On this latter date, the  Central  Government suspended the appellant, and  on  a warrant  issued by the District Magistrate, Kanpur,  he  was arrested  on  the October 28, 1947.   Subsequently,  he  was released  on  bail.   Thereafter, the  Government  of  India accorded sanction for the prosecution of the appellant under s.  197  of the Criminal Procedure Code on the  January  31, 1949.   A  Charge-sheet  was submitted  by  the  prosecution alleging  that the appellant along with three of his  former assistants   had  committed  various  acts  of   conspiracy, corruption and forgery during the period 1, 1.1946 to  20-9- 1946   The  other  persons  who  were  alleged  to  be   co- conspirators  with  the appellant, were vaish,  a  clerk  in charge of licensing under the appellant, Rizwi and Rawat who were also working as clerks under the appellant.  Bizwi abs- conded to Pakistan and Rawat died.  In the result, the  case instituted  on the ,,aid charge sheet proceeded against  the appellant and Mr. Vaish. Broadly  stated  the prosecution case was  that  during  the period  December 1945 to September 20, 1946,  the  appellant and Vaish and other entered into a criminal conspiracy to do illegal acts, such as the commission of offenses under,  ss. 161,  165,  467.  Indian Penal Code or in  the  alternative, Offenses  such as were prescribed by r. 47 (3) read with  r. 47 (2) of the Defence of India Rules, 1939 and. abetment  in the   acquisition   and  sale  of  Iron   and   .steel,   in contravention   of   the   Iron  and   Steel   (Control   of Distribution) Order 1941 ; and that in pursuance of the said conspiracy, they did commit the aforesaid illegal acts  from time  to  time  and thus rendred  themselves  liable  to  be punished under s.120-B 125 of  the  Indian Penal Code.  That was the substance  of  the first charge. The  Second  Charge was in regard to the commission  of  the offence under s. 161 and it set out in detail  the  bribes accepted by the appellant from 14 specified persons.  In the alternative, it was alleged that by virtue of the fact  that

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the  appellant  accepted valuable things  from  the  persons specified,  he had committed as offence under s. 165  Indian Penal Code. The  third charge was under s. 467 Indian Penal Code  or  in the  alternative, under r. 47(3) read with r. 47(2)  (a)  of the  Defence of India Rules.  The substance of  this  charge was  that  in furtherance of the conspiracy,  the  appellant fraudulently   or  dishonestly  made,  signed  or   executed fourteen  documents specified in clauses (a) to (n)  in  the charge.   Amongst these documents were included  the  orders prepared in the names of several dealers and licences issued in their favour. The  fourth  charge was that the appellant had  abetted  the firms  specified in clauses (a) to (k) in the commission  of the  offence  under r 81(2) of the Defence of  India  Rules. That,  in  brief,  is the nature  of  the  prosecution  case against the appellant as set out in the several charges. At  the  initial stage of the trial, the  appellant  took  a preliminary  objection  that the sanction  accorded  by  the Government of India to the prosecution of appellant under s. 197 Code of Criminal Procedure was invalid.  This  objection was  considered by Harish Chandra J. of the  Allahabad  High Court and was rejected on the July, 18th 1949.  The  learned Judge  directed  that  since he found no  substance  in  the preliminary  contention raised by the appellant, the  record should be sent back to the trial Court without delay so that it may proceed with the trial of the case.  On 126 May 7 1953, the appellant alone with Vaish was tried by  the Additional  District  and  Sessions Judge  at  Kanpur.   The charge  under s. 120-B was tried by the learned  Judge  with the  aid  of assessors, whereas the remaining  charges  were tried  by him with the aid of the jury.  Agreeing  with  the opinion  of the assessors and the unanimous verdict  of  the jury, the learned Judge convicted the appellant under s. 120 B and sentenced him to two years’ rigorous imprisonment.  He also convicted him under section s. 161 and sentenced him to two years Rigorous imprisonment and a fine of Rs,  25,000/-. in  default to suffer further rigorous imprisonment for  six months.   For the offence under s. 467 Indian Penal Code  of which  the  appellant  was  convicted,  the  learned   Judge sentenced him to four years’ rigorous imprisonment.  Be  was also  convicted  under r. 81 (4) read with r. 121  and  cls. 4,5, 11 b (3) and 12 of the Iron and Steel Order of 1941 and sentenced  to  two years’rigorous  imprisonments.   All  the sentences  thus  imposed  on  the  appellant  were  to   run concurrently.   Vaish  who  was also tried  along  with  the appellant was similarly convicted and sentenced to different terms of imprisonment. The  appellant  and Vaish then appealed to  the  High  Court against the said order of convictions and sentence.  It  was urged on their behalf before the High Court that the  charge delivered  by  the  Judge to the jury  suffered  from  grave misdirections and non-directions amounting to misdirections. his  plea  was accepted by the High Court and so,  the  High Court  examined the evidence for itself.  In the  main,  the High  Court  considered  the ten instances  adduced  by  the prosecution  for  showing that the  appellant  had  accepted illegal  gratification and had committed the other  offenses charged,  and  came to the conclusion that  the  prosecution evidence  in respect of eight instances could not  be  acted upon, whereas the said evidence in respect of two  instances could be safely acted upon.  These two instances                             127 were  deposed to by Lala Sheo Karan Das and other  witnesses

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and by Sher Singh Arora and other witnesses.  In the result, the  High Court confirmed the appellant’s  conviction  under ss. 161 and 467 and the sentences imposed by the trial Court in that behalf.  His conviction under s. 120-B Indian  Penal Code,  and under r. 81(4) read with r. 121 Defence of  India Rules  was  set  aside  and he was  acquitted  of  the  said offenses.   The  High  Court  directed  that  the  sentences imposed  on the appellant under ss. 161 and 467  should  run concurrently.  The appeal preferred by Vaish was allowed and the  order of conviction and sentence passed against him  by the trial Court in respect of all the charges was set aside. This  order was passed on March 17th, 1958.   The  appellant then  applied for and obtained a certificate from  the  High Court  and it is with that certificate that he has  come  to this Court in appeal. At,  this stage, it would be useful to indicate briefly  the main  findings  recorded  by  the  High  Court  against  the appellant. As we    have  just indicated,         there  are only two  instances out of ten on which the High  Court  has made a finding against the appellant. The first is the  case of Lala Sheo Karan Das.  According to the prosecution  case, as  a  motive  or  reward for  issuing  written  orders  and expediting supply of iron by the stock-holders’  Association Kanpur  to Lala Sheo Karan Das, the appellant accepted  from him  Rs. 4,000/- on 31.3.1946, Rs. 2,000/- on 9.4.1946;  Rs. 1,060/- on 11.4.1946 and Rs. 1,000/-on 12.5-1946 as  illegal gratification.   That  is  the basis  of  the  charge  under section 161.  The prosecution case further is that in regard to  the  supply  of iron to Lala  Sheo  Karan  Das,  certain documents  were  forged and it is alleged that  the  written orders  issued in that behalf Exhibits P 341 and P 342  were ante-dated  and  the  licences issued in  that  behalf  were similarly ante-dated. In support of this case, oral evidence was given by 128 Lala  Sheo  Karan  Das  himself,  his  son  Bhola  Nath  and Parshotam  Das, his nephew who is a partner with him.   This oral  evidence  was sought to be  corroborated  by  relevant entries in kachhi rokar books.  These entries indicated that the  several  amounts  had  been paid by  the  firm  to  the appellant.  The High Court considered the oral evidence  and held  that the said evidence was corroborated by entries  in the account-books.  The argument that dacca rokar books  had not  been  produced  did not appear to  the  High  Court  to minimise  the  value of the kachhi rokar  books  which  were actually  produced,  and the contention that  the  books  of Account  kept by accomplices themselves could not,  in  law, corroborate their oral evidence, did not appeal to the  High Court  as sound.  It held that even though Sheo  Karan  Das, his  son and his nephew may be black-marketeers, it did  not necessarily follow that they were liars.  Besides, the  High Court  took  the  view that there  were  certain  pieces  of circumstantial  evidence  which  lent support  to  the  oral testimony  of  the  accomplices.   The  ante-dating  of  the orders, and the supply of a large quantity of iron, were two of  these  circumstances.  It is on these grounds  that  the High  Court  accepted  the  prosecution  case  against   the appellant  under s. 161 Indian Penal Code.  The  High  Court then examined the evidence in support of the charge under s. 467  and it held that the manner in which the dates  in  the quota  register  had been tampered with supported  the  oral testimony  of  the witnesses that the applications  made  by Sheo Karan Das had been deliberately and fraudulently  ante- dated  and  orders passed on them and  the  licences  issued pursuant  to the said orders-all were  fraudulent  documents

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which proved the charge under s. 467 as well as under r.  47 (3)  read with 47(2)(a).  On these grounds, the  appellant’s conviction under s. 467 was also confirmed. As to the prosecution case in respect of the bribes  offered by Sher Singh Arora, the High Court                             129 was  not satisfied with the evidence adduced in  respect  of the  actual  offer of money, but it held that  the  evidence adduced  by  the  prosecution in respect of  the  offer  and acceptance  of  certain valuable  things  was  satisfactory. These valuable things were a three-piece sofa sot, a  centre piece,  two stools and a revolving chair (Exts. 16  to  21). These  were  offered  on  behalf of  Sher  Singh  Arora  and accepted by the appellant in January, 1946.  In dealing with this part of the prosecution case, the High Court considered the   statements  made  by  the  appellant  and   ultimately concluded  that the charge under s. 161 had been  proved  in respect of the said articles. In regard to the charge under s. 467, the High Court adopted the  same  reasons as it had done in dealing with  the  said charge in respect of Sheo Karan Das’s transactions and  held that  the said .charge had been proved.  The licences  which are  alleged to have been ante-dated are Exts.  P 535 and  P 536.   The application which is alleged to have  been  ante- dated  is Ext.  P 294, and the High Court thought  that  the relevant entries in the quota register showed that the dates had been tampered with.  In the result, the charge under  s. 467   in  respect  of  this  transaction  was  held  to   be established.  An alternative charge was also proved  against the appellant under r. 47(3) read with r. 47(2) (c)  Defence of India Rules. The first point which Mr. Chari has raised before us is that the Addl.  District & Sessions Judge had no jurisdiction  to try  this case, because at the relevant time,  the  Criminal Law Amendment Act, 1952(46 of 1952) had come into  operation and  the  case against the appellant could have  been  tried only by a Special Judge appointed under the said Act.   This argument  has been rejected by the High Court and Mr.  Chari contends that the decision Of the High Court in erroneous in law.  In order to deal with the merits of this point, it  is necessary to 130 refer to some dates.  The order of commitment was passed  in the  present proceedings on March 1, 1952.  It appears  that thereafter  a  list of defence  witnesses was tiled  by  the appellant before the Commiting Magistrate on July 24,  1952. On  July 28, 1952, the Criminal Law Amendment Act came  into force.  On August 14, 1952, Vaish filed a list of  witnesses before  the committing Magistrate and requested that one  of the  prosecution  witnesses should be  recalled  for  cross- examination.  On September 18, 1952, the District & Sessions Judge at Kanpur was appointed a Special Judge under the Act. On  December  19,  1952, the case was taken  up  before  the Special  Judge and the question as to where the case  should be  tried  was  argued.  The Special  judge  held  that  the question had been considered by the Madras High Court in the case  of P. K. Swamy and it had been held that  the  Special Judge had no jurisdiction to hear the case because the order of  commitment’ had been passed prior to the passing of  the Criminal  Law Amendment Act.  Since the order of  commitment in  the  present case had also been passed before  July  28, 1952,  the  Special  Judge held that the  case  against  the appellant must be tried under the provisions of the Criminal Procedure Code and not under the provisions of the  Criminal Law  Amendment  Act; and so, an order was  passed  that  the

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trial  should be held by the Additional District &  Sessions Judge at Kanpur.  After the case was thus transferred to the Add1.   Sessions Judge at Kanpur, it was actually  taken  up before  him on May 7, 1953, when the charge was read out  to the  accused persons and the jury was empanelled.  It is  in the  light  of  these facts. that  the  question  about  the jurisdictions of the trial Judge has to be determined. Two provisions of the Criminal Law Amendment Act fall to  be considered  in  this  connections Section  7  provides  that notwithstanding  anything contained in the Code of  Criminal Procedure, or in 131 any other law, the offenses specified in sub-section (1)  of s.  6  shall be triable by a Special  Judge  only,  Offenses under  ss.  161 and 165 Indian Penal Code  are  amongst  the offenses  specified  by s. 6(1).  Section  7(2)(b)  provides that when trying any case, a Special Judge may also try  any offence  other than an offence specified in s. 6 with  which the  accused  may, under the Code of Criminal  Procedure  be charged  at the same time.  Therefore, if the offence  under s. 161 falls under s. 7(1) and has to be tried by a  Special Judge,  the  other offenses charged would also  have  to  be tried  by the same Special Judge as a result of s.  7(2)(b). It  is  clear that the provisions of a. 7  are  prospective. This position is not disputed.  But it would be noticed that s.  7 does not provide for the transfer of pending cases  to the special Judge and so, unless the appellant’s case  falls under  the provisions of s. 10 which provides for  transfer, it  would  be tried under the ordinary law in spite  of  the fact  that  the main offence charged against  the  appellant falls under s. 6(1) of the Criminal Law Amendment Act. That  takes  us to s. 10 which deals with  the  transfer  of certain pending cases.  This section provides that all cases triable  by  a special Judge under s.  7  which  immediately before the commencement of the Act, were pending before  any Magistrate  shall,  on such commencement, be  forwarded  for trial  to  the special Judge having jurisdiction  over  such cases.  It is thus clear that of the cases made triable by a special Judge by s. 7, it is only such pending cases as  are covered  by s.10 that would be tried by the  special  Judge. In other words, it is only cases triable by a special  Judge under  s.  7  which  were  pending  before  any   Magistrate immediately  before the commencement of this Act that  would tie transferred to the special Judge and thereafter tried by him.    So,  the  question  to  consider  is   whether   the appellant’s case could be said to have been pending 132 before any Magistrate immediately before the commencement of the Act.  This position also is not in dispute. The  dispute  centres round the question as to  whether  the appellant’s  case can be said to have been pending before  a magistrate at the relevant time, and this dispute has to  be decided  in the light of the provisions contained in s.  219 of  the Code of Criminal Procedure.  This section occurs  in Chapter  18 which deals with the enquiry into cases  triable by  the  Court of Sessions or High Court.  We  have  already seen that on March 1, 1952, an order of commitment had  been passed  in  the  present  case  and  that  means  that   the jurisdiction  of the committing Court had been exercised  by the said Court under s. 213 of the Code.  Mr Chari  contends that  though the order of commitment had been  passed,  that does not mean that the case had ceased to be pending  before the committing Magistrate.  It is not disputed that once  an order  of commitment is made, the committing Magistrate  has no  jurisdiction  to deal with the said  matter;  he  cannot

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either  change  the order or set it aside.  So  far  as  the order  of commitment is concerned, the jurisdiction  of  the Magistrate  has  come  to an end.  The  said  order  can  be quashed  only by the High Court and that too on a  point  of law.   That  is the effect of s. 215 of the  Code.   It  is, however,  urged  that  s. 216 confers  jurisdiction  on  the committing magistrate to summon witnesses for defence as did not  appear  before the said Magistrate and to  direct  that they should appear before the Court to which the accused had been  committed.   Similarly, before  the  said  Magistrate, bonds  of  complainants  and witnesses can  he  executed  as prescribed  by  s. 217.  Section 219 confers  power  on  the committing  Magistrate to summon and  examine  supplementary witnesses  after the commitment and before the  commencement of the trial, and to bind them over in manner here in before provided to appear and give evidence.  It is on the 133 provisions     of  this  section that the  appellant’s  case rests.    The   argument  is  that  since   the   committing magistrate is given power to summon supplementary  witnesses even  after  an order of commitment has  been  passed,  that shows that the committing magistrate still hold jurisdiction over the case and in that sense, the case must be deemed  to be  pending  before  him.   We are  not  impressed  by  this argument.   The power to summon supplementary witnesses  and take  their  evidence is merely a  supplementary  power  for recording  evidence and no more.  This  supplementary  power does  not postulate the continuance of jurisdiction  in  the committing  magistrate  to  deal  with  the  case.   It   is significant  that  this  power can be exercised  even  by  a Magistrate other than the committing magistrate, provided he is  empowered  by  or under s. 206  and  clearly,  the  case covered  by  the commitment order passed by  one  magistrate cannot  be said to be pending before another magistrate  who may be empowered to summon supplementary witnesses.  When s. 10 of the Criminal law Amendment Act refer to cases  pending before any magistrate, it obviously refers to cases  pending before  magistrates who can deal with them on the merits  in accordance  with  law and this requirement  is  plainly  not satisfied in regard to any case in which a commitment  order had  been  passed by the committing magistrate.   After  the order of commitment is passed, the case cannot be said to be pending before the committing magistrate within the  meaning Of  S. 10.  Therefore, we are satisfied that the High  Court was  right  in coming to the conclusion that s. 10  did  not apply to the present case and so, the Addl.  Sessions  Judge had  jurisdiction  to try the case in  accordance  with  the provisions  of the Code of Criminal Procedure.  It  is  true that  in  dealing with this point, the High Court  has  pro- ceeded  on the consideration that the appellant’s trial  had actually commenced befere the 134 Addl.  Sessions Judge even prior to July 28, 1952.  In fact, it  is on that basis alone that the High Court has  rejected the appellant’s contention as to absence of jurisdiction  in the. trial Judge.  We do not think that the reason given  by the  High  Court  in support of this  conclusion  is  right, because the trial of the appellant could not be said to have commenced before May 7, 1953.  However, it is unnecessary to pursue  this  point any further because we are  inclined  to take the view that the appellant’s case does not fall  under s.  10 of the Criminal Law Amendment Act and that is  enough to reject the contention of the appellant on this point. The next argument raised is in regard to the validity of the sanction given by the Government of India to the prosecution

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of  the  appellant.  This sanction Ext.  P-550  purports  to have been granted by the Governor-General of India under  s. 197 of the Code for the institution of criminal  proceedings against  the  appellant.   It  has been  signed  by  Mr.  S. Boothalingam, Joint Secretary to the Government of India  on January  31,  1949.  The sanction sets out  with  meticulous care  all the details of the prosecution case on  which  the prosecution  rested their charges against the appellant  and so, it would not be right to contend that the, sanction  has been  granted  as a mere matter of formality.   The  several details  set out in the sanction indicate that prima  facie, the  whole case had been considered before the sanction  was accorded.   Mr. Chari, however, attempted to argue  that  on the  face  of  it,  the sanction  does  not  show  that  the Governor-General  granted the sanction after exercising  his individual  judgment.   Section  197  of  the  code  at  the relevant time required that sanction for the prosecution  of the appellant should have been given by the Governor-General exercising his individual Judgment, and since, in terms ’  , it does not say that the Governor-General in exercise of his individual                             135 judgment had accorded sanction, the requirement of s. 197 is not satisfied.  That is the substance of the contention.  In support of this contention, reliance is sought to be  placed on  certain  statements  made by  Mr.  Boothalingam  in  his evidence.   Mr.  Boothalingam stated that  sanction  of  the Governor-General  was conveyed by him as Joint Secretary  to the Government of India.  He also added that authorities  of the  Government  of India competent to act  in  this  behalf accorded the sanction and he conveyed it.  His evidence also showed that the matter had been considered by the  competent authorities  and that he was one of those authorities.   Mr. Chari argues that Mr. Boothalingam has not, expressly stated that the Governor-General applied his individual mind to the problem and exercising his individual Judgment, came to  the conclusion  that  the  sanction should  be  accorded.   This contention  had not been raised at any stage before and  the point had not been put to Mr. Boothalingam who gave evidence to prove the sanction.  If the point had been expressly  put to  Mr.  Boothalingam be would have  either  given  evidence himself  on that point or would have adduced other  evidence to  show that the Governor-General had exercised  his  indi- vidual  judgment in dealing with the matter.  Therefore,  we do not think that this plea can be allowed to be raised  for the first time in this Court. The  next  ground  of attach against  the  validity  of  the sanction  is based on the assumption that at the  time  when the sanctions was (riven, the appellant had ceased to be  in the  employment of the Government of India and had  reverted to  the Assam Government. .If it is established that at  the relevant  time,  the  ,appellant was a  person  employed  in connection  with  the affairs of the Assam  State,  then  of course,  it is the Assam Government that would be  competent to give the sanction.  The High Court has found that at  the relevant time, the appellant continued to be 136 in  the employment of the affairs of the Federation and  had not  reverted to the Assam Government ; and in our  opinion, this  finding of the High Court is right.  We  have  already referred  to the course of events that led to the  granting: of the leave to the appellant by the Government of India; to the extension of the leave by the said Government and to his subsequent  suspension.   The appellant’s argument  is  that after  he went on leave, he moved the Assam  Government  for

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extension of his leave and was, in fact, asked by the  Assam Government to appear before a medical board appointed by it. We  do not think that these facts are enough to  prove  that the  appellant  had  reverted to the service  of  the  Assam Government.   In fact., it is clear that the  Government  of India  had  intimated  to  the  Assam  Government  that  the appellant continued to be under its employment and that  the Assam Government had expressly told the Government of  India that  it had no desire that the appellant should  revert  to its  service  until  the  ’criminal  proceedings  instituted against  him were over.  The Assam Government  also  pointed out that the appellant himself did not wish to rejoin in his post  of Superintendent of the Assam Government’s Press  but had only asked for Leave Preparatory to Retirement following medical advice.  It is thus clear that though the Government of India had originally thought of replacing the appellant’s services  with the Assam Government at the end of the  leave which  was proposed to be granted to him, subsequent  events which led to an investigation against the appellant and  his suspension caused a change in the attitude of the Government of India and it decided to continue him in its employment in order that he should face a trial on the charges which  were then the subject matter of investigation.  There is no order reverting him to the Assam Government passed by the Govt. of India  and there is no order passed by the Assam  Government at all on this subject.  Therefore                             137 there  can  be  no  doubt that at  the  relevant  time,  the appellant  continued  to be employed in the affairs  of  the Federation. It  was then sought to be argued that the effect of  SR  215 was  that  the  reversion  of the  appellant  to  the  Assam Government  should be deemed to have taken effect  from  the date when the leave was granted to him by the Government  of India.   In  our  opinion, there is  no  substance  in  this argument.   The  portion on which the  appellant  relies  is merely  an  administrative direction under the Rule  and  it cannot possibly over-ride the specific orders issued by  the Government of India in respect of the appellant’s leave  and reversion.  Besides, even the requirements of the said  Rule are  not  satisfied  in the present  case.   Therefore,  the conclusion is inescapable that the appellant was employed in the affairs of the Federation at the time when the  sanction was accorded. That  takes us to the question as to whether the  Government of  India  was competent to grant the sanction even  if  the appellant  was  at the relevant time a  person  employed  in connection  with the affairs of the Federation.   Mr.  Chari contends  that in the case of the appellant  whose  services had been loaned by the Assam Government to the Government of India, it could not be said that he was a parson permanently employed  in connection with the affairs of  the  Federation and so, cl. (a) of s. 197 (1) would not apply to him at all. He was a person permanently employed in connection with  the affairs  of  a State and that took the case  under  cl.  (b) which means that it is the Governor of Assam exercising  his individual judgment who could have a(,-corded valid sanction to  the  appellant’s prosecution.  We are not  impressed  by this  argument.  It is clear that the first part of  s.  197 (1)  provides  a special protection, inter alia,  to  public servants who are not removable from their offices save by or with the 138 sanction  of the State Government or the Central  Government where they are charged with having committed offenses  while

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acting  or  purporting  to act in  the  discharge  of  their official  duties;  and the form which  this  protection  has taken is that before a criminal court can take cognizance of any  offence alleged to have been committed by  such  public servants,  a sanction should have been accorded to the  said prosecution by the appropriate authorities.  In other words, the appropriate authorities must be satisfied that there  is a  prima facie, case for starting the prosecution  and  this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences.  The object of  s.. 197(1)  clearly  is to save public servants  from  frivolous prosecution,  Vide, Afzelur Rahman v. The  King  Emperor(1). That  being the object of the section, it is clear  that  if persons  happened  to  be employed in  connection  with  the affair’s of the Federation, it was the Governer-General  who gave  sanction  and if persons happened to  be  employed  in connection  with  the  affairs  of the  State,  it  was  the Governor.   What is relevant for the purpose of deciding  as to  who  should give the sanction, is to  ask  the  question where is the public servant employed at the relevant time  ? If he is employed in the affairs of the Federation, it  must be  the  Governor-General  in spite of the  fact  that  such employment  may  be temporary and may be the result  of  the fact  that  the  services of the public  servant  have  been loaned  by the State Government to the Government of  India. Therefore,  having regard to the fact that at  the  relevant time  the  appellant  was employed in  connection  with  the affairs of the Federation, it was the Governor-General alone who  was  competent  to  accord  sanction.   Therefore,  our conclusion  is  that the sanction granted by  the  Governor- General for the prosecution of the appellant is valid. That still leaves the validity of the sanction to be  tested in the light of the provisions of (1)  (1943) F.C R. 7,12. 139 a. (6)    of the prevention of the Corruption Act, 1947.  At the relevant time, section 6 read thus:               "No court shall take cognizance of an  offence               punishable under section 161 or section 165 of               the  Indian Penal Code (XIV of 1860) 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:               (a)   In the case of a person who is employed               in   connection  with  the  affairs   of   the               Federation  and  is  not  removable  from  his               office  save  by or with the sanction  of  the               Central Government or some higher authority,               Central    Government.               (b)   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               or    some   higher   authority,    Provincial               Government:               (c)   in the case of any other person, of  the               authority  competent  to remove him  from  his               service". It  would  be  noticed that the scheme of  this  section  is different  from  that  of s. 197 of  the  Code  of  Criminal Procedure.  The requirement of the first part of s. 197  (1) which constitutes a sort of preamble to the provisions of s. 197(1)(a)  &  (b) respectively, has been introduced  by  s.6 severalty  in cls. (a) and (b).  In other words, under  els. (a)  and (b) of s. 197(1) the authority competent  to  grant

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the sanction is determined only by reference to one test and that  is  the test provided by ,,the affairs  in  connection with  which  the public servant is employed";  if  the  said affairs  are  the affairs of the  Federation,  the  Governor General  grants the sanction ; if the said affairs  are  the affairs of a Province, the 140 Governor grants the sanction.  That is the position under s. 197(1)  as  it then stood.  The position under s. 6  of  the Prevention  of  Corruption Act is  substantially  different. Clauses  (a)  &  (b)  of  this  section  deal  with  persons permanently  employed in connection with the affairs of  the Federation or in connection with the affairs of the Province respectively,  and  in  regard  to  them,  the  appropriates authorities  are the Central Government and  the  Provincial Government.  The case of a public servant whose services are loaned by one Government to the other, does not fall  either under  cl. (a) or under cl.(b), but it falls under el.  (c). Having regard to the scheme of the three clauses of s. 6, it is  difficult to construe the word "employed in cls.  (a)  & (b)  as  meaning "employed for the time  being".   The  said Words,  in the context, must mean ,,,permanently  employed". It is not disputed that if the services of a public  servant permanently  employed by a Provincial Government are  loaned to  the Central Govt., the authority to remove  such  public servant  from office would not be the  borrowing  Government but   the  loaning  Government  which  is   the   Provincial Government,  and  so,  there  can  be  no  doubt  that   the employment  referred  to  in cls. (a) & (b)  must  mean  the employment  of a permanent character and would  not  include the  ad  hoc  or temporary employment of  an  officer  whose services  have been loaned by one Government to  the  other. Therefore, the appellant’s case for the purpose of  sanction under s. 6 will fall under el. (c) and that inevitably means that  it is. only the Provincial Government of  Assam  which could  have  given  a  valid sanction under  s.  6.  At  the relevant  time,  s.  6 had come into  operation,  and  s.  6 expressly bars the cognizance of offenses under s.161 unless a  valid  sanction  had been obtained  as  required  by  it. Therefore,  in the absence of a valid sanction,  the  charge against the appellant under a. 161 and s. 163 could not have been tried and that renders the                             141 proceedings  against the appellant in respect of  those  two charges without jurisdiction. The result is that the contention of the appellant that  the sanction required for his prosecution under section 161  and section 165 is invalid, succeeds and his trail in respect of those  two offenses must, therefore, be held to  be  invalid and without jurisdiction.  That being so, it is  unnecessary to consider whether the finding of the High Court in respect of  the charge under s. 161 is justified or not.  So, we  do not propose to consider the evidence led by the  prosecution in  respect of the said charge in relation to the two  cases of Lala Shoo Karan Das and Sher Singh Arora. The charge under section 467 or the alternative charge under Defence  of  India  Rules still remains  to  be  considered, because  the said offenses are outside the scope of s. 6  of the  Prevention of Corruption Act and the sanction  accorded by  the  Governor-General  in  respect  of  the  appellant’s prosecution  for the said offenses is valid under s. 197  of the  Code  of  Criminal  Procedure.   What,  then,  are  the material facts on which the conclusion of the High Court  is based?   The first point on which stress has been laid  both by Mr. Chari and Mr. Sarjoo Prasad relates to the background

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of the case.  Mr. Chari contends that the prosecution of the appellant  is,  in  substance, the result  of  the  attempts successfully  made  by  the  back-marketeers  in  Kanpur  to involve the appellant in false charges and in support of his plea, Mr. Chari has very strongly relied on the evidence  of Mr. Kanhaiya Singh.  This witness was, at the relevant time, an Inspecting Assistant Commissioner of Income-tax at Kanpur and  his evidence seems to show that unlike his  predecessor Mr. Talwar, the appellant gave whole-hearted co-operation to the  witness in discovering the illegal dealings  of  black- marketeers in Kanpur in 142 iron.   According to the witness, the black-marketeers  came to know about the cooperation between him and the  appellant and  that  disturbed  them very  rudely.   Some  lists  were prepared by the appellant giving the witness detailed infor- mation about the activities of the black-marketeers and  the witness  suggested that in order to destroy the papers  thus supplied  to him by the appellant, a burgulary was  arranged in his house in May or June, 1946.  A similar burgulary took place  in the appellant’s house.  There was also a  fire  in the appellant’s house.  The witness was asked whether any of the persons who have given evidence against the appellant in the present case, were included in the list supplied by  the appellant to him, and the witness refused to answer the said question  and. claimed protection under s. 54 of the  Income Tax Act.  Mr Chari’s argument is that the activities of  the appellant in cooperation with Mr. Kanhaiya Singh  frightened the black-marketeers and so, they organised the present plot to  involve  the  appellant  in  a  false  case.   In   that connection,  Mr. Chari also relies on the fact that  out  of the ten instances, the story deposed to in respect of  eight has been rejected by the High Court. On the other hand, Mr. Sarjoo Prasad has argued that as soon as  the appellant took charge from Mr. Talwar, he evolved  a very  clever scheme of establishing personal  contacts  with the black marketeers; dispensed with the enquiry which  used to  be held prior to the granting of licences to  them  and. thus  introduced  a  practice of direct  dealings  with  the black-marketeers  which  facilitated the commission  of  the offenses  charged against him.  He has also referred  us  to the  evidence given by Mr. Sen which tends to show that  the appellant  was frightened by the prospect  of  investigation and  so, suddenly left Kanpur under the pretext of  illness. In  other  words, Mr. Sarjoo Prasad’s argument is  that  the appellant deliberately adopted a very clever  143 modus operandi in discharging his duties as a public servant and  has, ’in fact, committed the several  offenses  charged against him.  We do not think that the ultimate decision  of the narrow point with which we are concerned in the present_ appeal  can  be  determined either on  the  basis  that  the appellant is more sinned against than a sinner or that he is a  cold-blooded  offender.   Ultimately,  we  will  have  to examine   the  evidence  specifically  connected  with   the commission  of the offence and decide whether that  evidence can legitimately sustain the charge under s. 467. Let  us take the case as disclosed by the evidence  of  Sheo Karan Das in respect of the charge under s. 467.   According to Sheo Karan Das, the two applications Exts. 35 and 36 were given  by him in the office of the appellant on the 29th  or 30th March, 1946, but the appellant asked the witness to get other applications in which the date should be prior to 23rd of March.  Accordingly, the witness put the date 22nd  March on  his  applications.  On the 29th or 30th March  when  the

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witness  met  the appellant, he asked for 130 tons  and  the appellant  told him that he could give him more  than  that, provided,   of  course,  the  appellant  got   his   profit. Accordingly,  after these applications were  antedated,  the appellant passed orders and licences were issued.  Thus,  it would  be  seen  that  the  prosecution  case  is  that  the applications  which were presented by Sheo Karan Das on  the 29th or 30th of March, were deliberately ante-dated in order that the orders subsequently passed by the appellant and the licences  issued thereunder should also appear to have  been issued prior to the 23rd of March and that, in substance, is the essence of the charge under s. 467. When this case was put to the appellant, he made a  somewhat elaborate  statement  which  it is  necessary  to  consider. According to this statement, 144 the  appellant left Kanpur on March 23, 1946, for a  meeting with  Mr.  Spooner  who was the  Iron  Steel  Controller  at Calcutta.   Mr.  Spooner told him in confidence  that  there would  be no more need to issue licences after March 31,  on account  of  decontrol.  He also expressly desired  that  no further licences need be issued by any Regional Dy.  Iron  & Steel  Controller  after  March  26,  1946.   The  appellant returned  to Kanpur on March 28, and attended office on  ,he 29th.  He then found that the office had placed on his table a number of licences for which he had already issued  orders before  he left Kanpur on the 23rd.  Some  new  applications had  also  come thereafter and these  included  applications from Government bodies and other public institutions.  These were  also  placed on his table.  The appellant  urged  that statutorily  he had the power to issue licences until  March 31, even so, in order to comply with the desire expressed by Mr.  Spooner, he ordered that all licences should be  issued as  on March 23.  The appellant emphasised that even  if  he had dated the licences and his own orders as on the 30th  or 31st March, that would have introduced no invalidity in  the orders  or licences respectively, and so, he contended  that even though in form, the orders and the licences can be said to have been ante-dated, the ante-dating did not  introduce, any  criminal  element at all.  It appears  that  after  his return  to  Kanpur on the 28th, a large number  of  licences were  issued in this way.  This statement of  the  appellant thus  shows  that even on applications  admittedly  received after  the  23rd, licences were issued as on  the  23rd  and orders  had been passed by the appellant in support  of  the issue of such licences.  This antedating of the licences  is a  circumstance on which the prosecution strongly relies  in support of the charge under s. 467. It  is, however, significant that besides the  testimony  of the accomplices, there is no other                             145 evidence  on the record to show that the applications  given by  Sheo  Karan Das had been brought to the  office  of  the appellant for the first time on the 29th or 30th of March as deposed  to by him.  No register had been produced from  the office  showing  the  date  of  the  receipt  of  the   said applications.  It is true that in the quota register,  dates had been tampered with, but there is no evidence to show who tampered  with those dates and so, the fact that  dates  had been  tampered  with will not afford any legal  evidence  in support of the case that the applications presented by  Sheo Karan Das had in fact, been presented for the first time  on the  29th  of March and had not been filed on  the  22nd  of March  as pleaded by the appellant.  The ante-dating of  the applications is a very important fact and of this fact there

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is no other evidence at all.  Therefore, in our opinion, the crucial  fact on- which the charge under s. 467 is based  is deposed to only by accomplice witnesses and their statements are  Dot corroborated by any other evidence on  the  record. The  admission  made by the appellant does  not  necessarily show that the applications had been ante-dated.  Indeed,  it is  very  curious  that the  appellant  should  have  passed necessary  orders  and  should have directed  the  issue  of licences  as  on  the 23rd of March even in  regard  to  the applications  received by him subsequent to the  23rd  March and  this has been done in respect of applications  received from  Government bodies and public institutions.  This  fact lends some support to the appellant’s theory that he did not want  to appear to have contravened the desire expressed  by Mr.  Spooner that no license should be issued subsequent  to the  26th March.  There is no doubt that the  appellant  was competent to issue licences until the 31st of March and  so, it  is not as if it was essential for him to  ante-date  his orders  or  to ante-date the licences issued  in  accordance with them.  Then as to the orders passed by the appellant on the applications presented by 146 Sheo Karan Das, there is no date put by the appellant  below his signature, though the date 22nd March appears at the top of  the document.  But it may be assumed that the order  was passed  on the 29th.  That, however, does not show that  the applications  were made on the 29th and without  proving  by satisfactory evidence that the applications were made on the 29th,  the prosecution cannot establish its  charge  against the appellant under s. 467.  In our opinion, the High  Court appears  to  have  misjudged the effect  of  the  admissions alleged  to have been made by the appellant when it came  to the  conclusion  that the said admissions  corroborated  the accomplice’s  case that the applications had been  presented by him for the first time on the 29th March.  The fact  that there  is  no  evidence offered by any  of  the  prosecution witnesses  examined from the appellant’s office to show  the dates  when  the applications were received,  has  not  been considered by the High Court at all.  Therefore, the finding of  the High Court on the essential part of the  prosecution story in respect of the charge under s. 467 really rests  on the  evidence of the accomplice uncorroborated by any  other evidence.   That being so, we must hold that the High  Court erred  in law in making a finding against the  appellant  in respect  of  the  charge  under  s.  467  as  well  as   the alternative  charge  under  the relevant  Defence  of  India Rules.   What we have said about this charge in  respect  of the licences issued to Sheo Karan Das applies with the  same force  to the said charge in respect of the licences  issued to  Sher  Singh Arora.  In respect of those  licences  also, there  is no evidence to show that the applications made  by Sher Singh Arora had been ante-dated, and so, the charge  in respect  of  the said licences also cannot be held  to  have been established. The result is, the finding Of the High Court in   respect of the charge against the appellant under s.    467   or    the alternative charge under the relevant Defence of India Rules must be reversed, his                             147 conviction for the, said offenses set aside and be should be ordered  to be acquitted and discharged in respect of  those offenses. That  raises  the question as to whether we should  order  a retrial of the appellant for the offence under s. 161.   Mr. Sarjoo  Prasad  has  argued that the  interests  of  justice

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require  that  the appellant should be asked to face  a  new trial  in respect of the charge under a. 161,  Indian  Penal Code  if  and  after a valid sanction is  obtained  for  his prosecution  for  the same.  We are not inclined  to  accept this  argument.   Two  facts have weighed  in-our  minds  in coming to the conclusion that a retrial need not be  ordered in  this case.  The first consideration is that the  accused has had to face a long and protracted criminal trial and the sword has been hanging over his head for over 14 years.  The accused   was  suspended  in  1947  and  since  then   these proceedings  have  gone on all the time, The  second  factor which   has  weighed  in  our  minds  is  that  though   the prosecution   began  with  a  charge  of   a   comprehensive conspiracy supported by several instances of bribery, on the finding of the High Court it is reduced to a case of bribery offered  by  two persons; and then  again,  the  substantial evidence  is the evidence of accomplices supported  by  what the  High Court thought to be  corroborating  circumstances. It is true that offenses of this kind should not be  allowed to  go  unpunished, but having regard to all  the  facts  to which  our attention has been drawn in the present case,  we are  not inclined to take the view that the ends of  justice require  that the accused should be ordered to face a  fresh trial.   The result is that the conviction of the  appellant under section 161 is set aside on the ground that his  trial for  the  said offence was without  jurisdiction  since  his prosecution  in  that behalf was commenced without  a  valid sanction as required by s.6 of the prevention of  Corruption Act.                             Appeal allowed. 148