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PETITIONER: LAKSHMI SHANKAR SRIVASTAVA

       Vs.

RESPONDENT: STATE (DELHI ADMINISTRATION)

DATE OF JUDGMENT21/11/1978

BENCH: DESAI, D.A. BENCH: DESAI, D.A. KAILASAM, P.S. KOSHAL, A.D.

CITATION:  1979 AIR  451            1979 SCR  (2) 348  1979 SCC  (1) 229

ACT:      Appeal, abatement  of-An appeal  does not  abate on the death of   the  accused when  leave is  granted to  the near relative to continue the appeal Criminal Procedure Code 1973 (Act II  of 1974), Section 394(2) r/w sec. 8(3) and 9 of the Criminal Law Amendment Act.      Sanction for  prosecution Effect of the order issued by S.R.O. 631  by the  president of  India in  exercise of  the power conferred  by   sub rule  (2) of rule l, Clause (b) of sub rule  (2) of  rule 14 and sub rule (1) of rule 23 of the Central Civil Services (Classification,, Control and Appeal) Rules 1957.

HEADNOTE:      The appellant who was working as an investigator in the office of  the Chief  Controller of  Imports and Exports was charged, found  guilty and convicted and sentenced to suffer rigorous imprisonment  for 18  months on  each count  for an offence under  Sections 5(1)  (d) and 5(2) of the Prevention OF Corruption Act, 1947 and section 161 I.P.C. and a fine of Rs.  200/-   or  in  default  to  undergo  further  rigorous imprisonment under  section 5(2)  of the  Act. His appeal to the High Court was dismissed and the conviction and sentence were confirmed.  Special leave  was granted  by the  Supreme Court limited  to the  question.  Of  validity  of  sanction accord under  section 6 of the Prevention of Corruption Act, 1947. The  appellant died  during the pendency of the appeal and his  near relatives  were granted permission to continue the appeal.      Dismissing the appeal, the. Court ^      HELD 1.  The preliminary  objection of  the State as to the abatement  of the  appeal because  of the  death of  the appellant taking into account preparedness to conclude  that the sentence might he set aside must be negatived. [352D]      (a) As  per  the  proviso  to  section  394(2)  of  the Criminal Procedure  Code, 1973,  where the appeal is against the  conviction   and  sentence   of  imprisonment  and  the appellant dies during the pendency of the appeal, any of his near relatives  may, within  the  time  prescribed  therein, apply to  the appellate  Court before  which the  appeal  is

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pending for leave to continue the appeal and if the leave is granted the appeal shall not abate. [352A-B]      (b) The  appellant, in the, instant case, has preferred the  appeal   against  his   conviction  and   sentence   of imprisonment and  also sentence of fine. After his death his near relatives  as contemplated  in the  Explanation to  sub section (2)  of section  394 Crl.  P.C., applied to continue the appeal  and were  granted leave  to continue the appeal. Therefore, the  near relations  of the deceased can continue the appeal  and even  if the  respondent State concedes that the sentence  of fine  be set aside yet the appeal would not abate if  leave is  granted  o  the  near  relation  of  the deceased to continue the appeal. [352C-D] 349      2. ’The  sanction  accorded,  for  prosecution  of  the appellant under  section 6  of the  Prevention of Corruption Act, 1947  by the  Joint Chief  Controller  of  Imports  and Exports is valid in law: [355H, 356A]      (a) The  instant case  is  governed  by  Central  Civil Services (Classification,  Control & Appeal) Rules, 1965 and in view  of S.R.O.. 631 issued by the President, in exercise of the  power conferred  by sub  rule (2) of rule 11, clause (b) of sub rule (2) of rule 14, and sub rule (2) of rules 23 of the  Central Civil  Services (Classification,  Control  & Appeal) Rules, 1957, which order was saved by rule 34 of the 1965 Rules. [353C-D]      (b) Rule 12(1) and (2) of 1965 Rules is in pari materia with rule  14 of  1957 Rules.  Rule 2  of 1965 Rules confers power on  the President  to  impose  any  of  the  penalties specified in rule 11 on any Government servant. Sub rule (2) (b) provides  that any  person appointed  to a Central Civil Post  included   in  the  General  Central  Service  by  the authority specified  in this  behalf by a general or special order of  the President  or where  no such  order  has  been issued,  by   the  appointing  authority  specified  in  the Schedule in  this behalf,  may impose  any of  the penalties specified in  rule 11  which includes the penalty of removal from service.  Therefore, the  President has  the  power  to issue any general or special order to confer power to impose penalties as  specified in  rule 11  on any  authority other than the  one specified  in the  Schedule in this behalf. If the  order  issued  by  the  President.  S.R.O..  631  under corresponding rule  11 and the relevant rules bearing on the subject of  1957 Rules  is not shown to be inconsistent with any of  the Rules  included in  1965 Rules,  obviously  such order  would   be  saved  under  rule  34.  There  being  no inconsistency as  contemplated by  Rule 34, indisputably the order issued  by the  President S.R.O.  631 along  with  the schedule would  be saved.  Once S.R.O.  631  is  saved,  the relevant entry in the schedule in respect of the origination of C.C.I.E.  would be  saved. Accordingly  the entry  in the order  issued   by  the   President   would   supplant   the corresponding entry  in 1965  Rules and  would  have  to  be substituted for  the entries  in the  relevant item  in  the Schedule. The  necessary consequence  would be  that in  the case of  the organization  of The  C.C.I.E. for all posts in Headquarters  office,   lt.  C.C.I.E.   would  be  both  the appointing and  the disciplinary  authority having tho power to remove  from service  such persons belonging to Class III services. Now, the appellant was indisputably holding a post in Class  III service  in the  Headquarters  office  of  the organisation of C.C.I.E. He was at the relevant time holding the post of Investigator which is admittedly a Civil Post in Class III  service in  the office  of C.C.I.E. Indisputably, therefore. Jt.  C.C.I.E. would  be both  the appointing  and

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disciplinary  authority   with  power  to  remove  him  from service. Therefore,  Jt.  C.C.I.E.  would  be  competent  to accord sanction  as envisaged  by s.  6(1)(c)  of  the  Act. [355B-H]      The fact  that the administrative department in respect of the office of C.C.I.E. is the Ministry of Foreign Trade & Supply does  not make  any difference  because C.C.I.E. is a separate office with its own establishment.[1354A]      R. J.  Singh Ahluwalia  v. State  of Delhi, A.L.R. 1971 S.C. 1552; distinguished.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 124 of 1972 350      Appeal by  Special Leave  from the  Judgment and  order dated 24-11-1971  of the Delhi High Court in Criminal Appeal No.54 of 1971.C. P. Lal for the Appellant.      H. R. Khanna and M. N. Shroff for the Respondent.      The Judgment of the Court was delivered by      DESAI, J.-The;  appellant in  this  appeal  by  special leave limited  to the determination of the question: whether the sanction  is valid in law or not, has been convicted for offences under  section 5(2)  read with  section S(1) (d) of the Prevention  of Corruption  Act, 1947  (’Act’ for short), and section  161 of the Indian Penal Code, and was sentenced to suffer  rigorous imprisonment for 18 months on each could and a  fine of  Rs. 2000/-,  in default  to  suffer  further rigorous imprisonment  for a  period of  two months,  for an offence under  s. 5(2) of the Act. His appeal being Criminal Appeal No.  54 of  1971 was  dismissed by  the High Court of Delhi and the conviction and sentence were confirmed.      As the leave is limited to the question of the validity of sanction  ac corded  under s.  6 of  the Act,  it is  not necessary to set out in detail the prosecution case. Briefly stated, the  prosecution case  is that the appellant who was employed at  the relevant time as Investigator in the office of the  Chief Controller  of Imports & Exports (C.C.I.E. for short), accepted  from one  P.T. Toprani  an amount  of  Rs. 250/- by  way. of  illegal gratification  which was  not his legal remuneration  in presence  of witnesses  on 18th  June 1969 at  about 5.30  p.m. near Gujarati Samaj; Sabha, Delhi. D. S.  P. Badri Sharma appeared as soon as the trap arranged by him  materialised and  recovered the amount of Rs. 2501/- from the  appellant. After  completing the investigation the appellant was  charge-sheeted for  the offences  hereinabove mentioned.      Section 6  of the,  Act forbids  the Court  from taking cognizance, inter alia, of offences punishable under s. 161, IPC and  under sub-s.  (2) of s 5 of the Act except with the previous  sanction   of  the   authority  therein  set  out. Necessary sanction  was accorded by the Jt. C.C.I.E. On 26th November 1969. The relevant portion of the sanction reads as under:           "Now, therefore,  I, S.  P.  Chablani,  being  the      authority competent  to remove  the  said  Shri  L.  S.      Srivastava, from office do hereby accord sanction under      section 6(1)  (c) of the prevention  of Corruption Act,      1947 for  the  prosecution  of  the  said  Shri  L.  S.      Srivastava, for  the said  offences under  section 161,      I.P.C. and 5(2) read with 5(1)(d) of Act II of 1947 and      in 351

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    any other  offence punishable  under the  provisions of      law, in  respect of  the facts  aforesaid and  for  the      taking of cognizance of the said offences by a court of      competent jurisdiction".      Mr. H.  R. Khanna, learned counsel who appeared for the respondent raised a preliminary objection. It was urged that the appellant  died during  the pendency of this appeal and, therefore, the  appeal abates  and cannot be proceeded with. Simultaneously it  was urged  that if the appeal were not to abate on  the  only  ground  that  the  appellant  was  also sentenced to  pay a fine of Rs. 200/- and, therefore. it may he said  that right to property of the legal representatives may he  adversely affected  and, therefore,  they  would  be entitled to  continue the  appeal, the  respondent State  is prepared to  concede that  the sentence  of fine  may be set aside.      Section  394  of  the  Criminal  Procedure  Code  which provides for abatement of appeals reads as under:           "394.  (1)  Every  appeal  under  section  377  or      section 378,  shall finally  abate on  the death of the      accused.           (2) Every  other appeal under this Chapter (except      all appeal from a sentence of fine) shall finally abate      on the death of the appellant:           Provided  that  where  the  appeal  is  against  a      conviction and  sentence of  death or  of imprisonment,      and the  appellant dies  during  the  pendency  of  the      appeal any  of his  near relatives  may, within  thirty      days of  the (death  of the  appellant,  apply  to  the      Appellate Court  for leave  to continue  to the appeal;      and if Leave is granted, the appeal shall not abate.           Explanation-In this section, "near relative" means      a  parent,   spouse,  lineal   descendant,  brother  or      sister".      The appeal  by the appellant is not one under s. 377 or s. 378  or the Cr. P.C. and, therefore, sub-s. (1) of s. 394 will not  be attracted The trial for an offence under s. 161 IPC and  s. 5(2)  of  the  Act  would  be  governed  by  the provisions of Criminal Law Amendment Act, 1952. lt envisages setting up  of Court  of special  Judge. Section 8(3) of the Criminal Law  Amendment  Act  provides  that  the  Court  of Special Judge  shall be  deemed to  be a  Court of Sessions. Section 9  confers power upon the High Court to exercise all powers of  appellate Court  as if the Court of Special Judge were a  Court of  Sessions trying  cases  within  the  local limits of the jurisdiction of the High Court. 352      The present  case would, therefore, be governed by sub- s. (2)  of s.394,  Cr.P.C. It becomes clear from the proviso to s.  394(2), Cr.P.C.  that where the appeal is against the conviction and  sentence of  imprisonment and  the appellant dies during  the pendency  of the  appeal, any  of his  near relatives may,  within the time prescribed therein, apply to the appellate  court before  which the appeal is pending for leave to continue the appeal and if the leave is granted the appeal shall  not abate.  The appellant  has  preferred  the appeal against  his conviction  and sentence of imprisonment as also sentence of fine. After his death his near relations as contemplated  in the Explanation to sub-s. (2) of s. 394, Cr. P.C.  applied by Criminal Miscellaneous Petition No. 559 of 1978  to continue  the  appeal  and  this  Court  granted substitution of  such near relations by its order dated 28th March 1978 and thereby granted leave to continue the appeal. Therefore, the  near relations  of the deceased can continue the appeal  and even  if the  respondent State concedes that

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the sentence  of fine  be set aside yet the appeal would not abate because  the appeal against conviction and sentence of imprisonment would not abate if leave is granted to the near relations of  the deceased  to  continue  the  appeal.  Such Leaving having  been granted,  the appeal  would not  abate. There is  thus no  merit in the preliminary objection and it must be negatived.      Section 6  of the  Act which  provides for necessity of previous sanction  for prosecution  for any  of the offences under the Act reads as. under:           "6. (1)  No court  shall  take  cognizance  of  an      offence punishable  under section 161 ( or section 164)      or section 1165 of the Indian Penal Code, or under sub-      section (2)  or Sub  section (3A)  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  Union and  is not      removable from  his office save by or with the sanction      of the State Government, of the Central Government.           (b) in  the case  of a  person who  is employed in      connection with  the affairs  of a  State  and  is  not      removable from  his office save by or with the sanction      of the Central Government, of the State Government.           (c) in  the case  of  any  other  person,  of  the      authority competent to remove him from his office.           (2) Where  for any  reason  whatsoever  any  doubt      arises whether  the previous sanction as required under      sub-section 353           (1) should  be  given  by  the  Central  or  State      Government or  any other authority, such sanction shall      be given  by that  Government or  authority which would      have been  competent to  remove the public servant from      his office  at the time when the offence was alleged to      have been committed".      Mr.  Lal  for  the  appellant  contended  that  as  the appellant was  an Investigator in the office of the C.C.I.E. which at best was a Department under the over all control of the Ministry  of Foreign  Trade and  Supply.  Government  of India, the  sanction to prosecute him could only be given by the Government of India. In the alternative it was contended that as  the C.C.I.E.  is head of the office, he alone could accord sanction for prosecution as contemplated by s. 6 and, therefore. the sanction accorded by Jt. C.C.I.E., an officer subordinate to  C.C.I.E .  was ab  initio void and the Court could not  have taken  cognizance of the offence. Mr. Khanna for the  respondent on  the other  hand contended  that this case  would   be  governed   by   Central   Civil   Services (Classification,  Control  and  Appeal  Rules,  1965  (’1965 Rules’ for  short), and in view of S.R.O.. 631 issued by the President in exercise of the powers D‘ conferred by sub-rule (2) of  rule 11,  clause (b) of sub-rule (2) of rule 14, and sub-rule (2)  of rule  23  of  the  Central  Civil  Services (Classification, Control  and  Appeal)  Rules,  1957  (’1957 Rules’ for  short), which  order was saved by rule 34 of the 1965 Rules  and, therefore,  the Jt.  C.C.I.E. was  both the appointing  and   disciplinary   authority   including   the authority competent to remove the appellant from service and was  accordingly  competent  to  accord  sanction  under  s. 6(1)(c) of  the Act.  Rule 11(2) of 1957 Rules provides that all appointments to Central Civil Posts, classes II, III and IV, included in the General Central Service shall be made by the authorities  specified in  that behalf  by a  general or special order  of the President, or, where no such order has

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been made,  by the  authorities specified  in  the  Schedule appended to  the Rules.  Similarly, rule 14(1) provides that the President  may impose any of the penalties including one of removal or dismissal from service as envisaged by rule 13 on any  Government servant. Sub-rule (2) of rule 14 provides that without  prejudice to  the provisions  of sub-rule (1), any of  the penalties  specified in  rule 1  may be  imposed under sub-clause  (b) in  respect of  person appointed  to a Central Civil  post included in the General Central Services by the  authority specified  in this  behalf by a general or special order  of the  President or  where no such order has been made  by the  appointing  authority  or  the  authority specified in the Schedule in this behalf. The entry at p. 38 provides that  the appointing  and disciplinary authority in respect of posts in non-Secretariat offices other than posts in respect  of which  specific provision  has been made by a general or special order 354 of the  President, the  head of  office would  be  both  the appointing and  the removing  authority. Now, undoubtedly in respect of the office of the C.C.I.E., the C.C.I.E. would be the head  of office.  The office  of the  C.C.I.E. is a non- Secretariat office. May be, the administrative department in respect of  this office  would be  the Ministry  of  Foreign Trade and Supply. But C.C.I.E. is a separate office with its own establishment  and undoubtedly  head of  office would be the  C.C.I.E.   The  President  in  exercise  of  the  power conferred by  sub-rule (2) of rule 11 and clause (b) of sub- Rule (2)  of rule  14 of  the 1957  Rules has made a special order as  contemplated by  rule 11(2)  and rule  14(2)(b) as under:           "S.R.O. 631-In exercise of the powers conferred by      sub rule  (2) of rule 11, clause (b) of sub-rule (2) of      rule 14  and sub-rule  (1) of  rule 23  of the  Central      Civil  Services  Classification,  Control  and  Appeal)      Rules, 1957, The President hereby directs that-           (1) in respect of the posts in the General Central      Service, Class  II specified  in column  1 of Part I of      the Schedule  to this order, the authority specified in      column 2  shall be  the Appointing  Authority  and  the      authority  specified   in  column   3  shall   be   the      Disciplinary  Authority  in  regard  to  the  penalties      specified in column 4,           (2) in respect of the posts in the General Central      Service. Class  III and  the General  Central  Service,      Class II  specified in  column 1 of Parts II and III of      the said  Schedule, the authority specified in column 2      shall be  the Appointing  Authority ! and the authority      specified in  column 3  and 5 shall be the Disciplinary      Authority  and   Appellate  Authority  respectively  in      regard to the penalties specified in column 4".      A comprehensive Schedule is annexed to this order. ’The relevant entry is as under: Description of Post Appointing Authority competent Appellate                     authority  to impose penalties authority                                penalties which it                                may impose (with                                reference to item                                numbers in rule 13)                                Authority     Penalties ------------------------------------------------------------     1                 2            3           4         5 ------------------------------------------------------------ Organisation of the Chief Controller of

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Imports and Exports All posts in- Headquarters office Joint Chief   Joint Chief  All Chief                     Controller of Controller ofController of                     Imports &     Imports &    Imports &                     Exports       Exports      Exports ------------------------------------------------------------ 355 The entries  in the  Schedule appended to 1957 Rules will be effective  and operative subject of course to any general or special order  made by the President in this behalf. It was, however, contended that by rule 34 of 1965 Rules, 1957 Rules were repealed  and,  therefore,  the  order  issued  by  the President in  exercise of  the powers  conferred by sub-rule (2) of  rule 11 and various other rules bearing on the point would stand  repealed and  the order  of the President would not be  effective unless  a similar  order is  issued by the President under  the corresponding  rule 12  of 1965  Rules. Rule 12(1)  and (2)  of 1965  Rules is  in pari materia with rule 14  of 1957  Rules. Rule 12 of 1965 Rules confers power on the President to impose any of the penalties specified in rule 11  on any Government servant. Sub-rule (2)(b) provides that any  person appointed  to a Central Civil Post included in the General Central Service by the authority specified in this behalf  by a  general or special order of the President or where  no such  order Has  been issued, by the appointing authority specified  in the  Schedule in  this  behalf,  may impose any  of the  penalties specified  in  rule  11  which includes the penalty or removal from service. Therefore, the President has  the power  to issue  any general  or  special order to  confer power  to impose  penalties as specified in rule II on any authority other than the one specified in the Schedule in  this behalf.  Now, if  the order  issued by the President, S.R.O..  631 under corresponding rule l l and the relevant rules  bearing on  the subject of 1957 Rules is not shown to  be inconsistent  with any of the Rules included in 1965 Rules.  obviously such order would be saved Tender rule 34. No inconsistency was shown to us as contemplated by rule 34.  Therefore,   indisputably  the   order  issued  by  the President, S.R.O..  631 along  with the  Schedule  would  be saved.  Once  S.R.O..  631  is  saved,  the  relevant  entry hereinabove  quoted   in  respect  of  the  organisation  of C.C.I.E. would  be saved. Accordingly the entry in the order issued by  the President  would supplant  the  corresponding entry in 1965 Rules and would have to be substituted for the entries in  the relevant item in the Schedule. The necessary consequence would be that in the case of the organisation of the C.C.I.E.  for all  posts  in  Headquarters  office,  Jt. C.C.I.E. would  be both  the appointing and the disciplinary authority having  the power  to  remove  from  service  such persons belonging  to Class III services. Now, the appellant was indisputably  holding a post in Class III service in the Headquarters office  of the  organisation of C.C.I.E. He was at the relevant time holding, the post of Investigator which was admittedly  a Civil  post in  Class III  service in  the office of  C.C.I.E. Indisputably,  therefore,  Jt.  C.C.I.E. would be both the appointing and disciplinary authority with power to   remove  him from service. Therefore, Jt. C.C.I.E. would be  competent to  accord sanction  as envisaged  by s. 6(1)(c) of the Act. Sanction 356 in this case having been granted by the Jt. C.C.I.E., it was valid. There  is thus  no substance in the contention of Mr. Lal.      Mr. Lal  in this  connection drew  our attention  to  a

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decision in  R. J.  Singh Ahluwalia v. The State of Delhi(1) The appellant  in that case was at the relevant time working as Assistant  in Co-ordination  III  of  D.G.T.D.  at  Udyog Bhavan, New Delhi. His contention was that sanction accorded by Shri  K. Rajaram, Deputy Secretary to Government of India in  the  Ministry  of  Industrial  Development  and  Company Affairs (Department of Industrial Development) was not valid and that he could only have been prosecuted under a sanction that may  be accorded  by the  Home Ministry.  In respect of this contention  it was conceded on behalf of the State that in the  absence of  such sanction the prosecution must fail. The judgment proceeds on concession and not on any  analysis or examination  of the  relevant provisions. Therefore it in no way helps the appellant in this case.      This being  the only point that could be raised in this appeal by  limited leave  and such  contention being without merit, the  appeal fails. and is dismissed. As the appellant is dead there is no question of his surrendering to Bail. S.R.                                       Appeal dismissed. (1) A.I.R. 1971 S.C. 1552. 357