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PETITIONER: S. N. BOSE

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 26/03/1968

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. MITTER, G.K.

CITATION:  1968 AIR 1292            1968 SCR  (3) 563  CITATOR INFO :  RF         1968 SC1323  (5)  R          1984 SC 684  (19)  R          1984 SC 718  (21)  R          1992 SC 604  (125,133)

ACT: Prevention of Corruption Act (II of 1947), ss. 4(1), 5 A and 6(1)   (c)-Investigation  by  Inspector  of   Police   after obtaining  permission  from First Class  Magistrate  to  lay trap-Permission  if sufficient for investigation-Reasons  if to  be  recorded  by Magistrate  while  granting  permission Presumption under s. 4-Scope of and how rebutted-Sanction to prosecute-Granted  by  Chief,  Medical  Officer  of  Railway hospital  as  head  of  department-Accused  a   non-gazetted officer having privileges of a gazetted officer-Sufficiency.

HEADNOTE: The appellant was an assistant medical officer in a  railway hospital  at  Gaya.   Though-  he  had  certain   privileges ordinarily available to gazetted officers he was only a non- gazetted  Class III officer.  He was convicted for  offenses tinder s. 161 I.P.C. and ’s. 5 (2) read with s. 5 (I) (d) of the Prevention of Corruption Act, 1947.  The complaint  that he had received illegal gratification, was investigated into by   an  Inspector  of  Police.   The   Inspector   obtained permission from a First Class Magistrate for laying a  trap, investigated  into  the case, and later,  after  the  entire investigation  was  over, he obtained  permission  from  the Magistrate  to investigate into, the case.  The sanction  to prosecute required under s. 6(1) of the Act, was granted  by the  Chief  Medical  Officer,  who  was  the  bead  of   the department. The conviction was challenged on the following grounds : (1) The  investigation  was without authority of  law,  because, under  s.  5A,  the Inspector could  not  have  investigated without  the prior permission of a Magistrate of  the  First Class; (2) The permission granted by the Magistrate did  not meet the requirements of law because, it was given  casually and without applying his mind to the question as to  whether there  was any need for departing from the normal rule  laid down  in  the  section,  namely,  that  such  cases   should ordinarily be investigated by an officer of the rank of  Dy.

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Superintendent  of Police or above and there should be  good reasons  before a Magistrate accords permission to  officers below  that  rank; (3) The presumption under s. 4  that  the appellant  had accepted the sum  a motive or  reward  should not  be drawn unless the prosecution proved that the  amount was paid as a bribe; (4) The presumption was rebutted by the appellant’s  explanation that what was paid to him  was  the return of a loan; and (5) the sanction to prosecute  granted by the Chief Medical Officer was invalid as lie was not  the authority competent to remove him. HELD  :  (1) There is no basis for the contention  that  any portion of’ the investigation was done without authority  by law. [567 D]. Investigation under s. 4(1) Cr.  P.C. is one and indivisible and  includes  all  the  steps taken  by  the  Inspector  to ascertain  the  truth  of the complaint  alleging  that  the appellant was attempting to obtain a bribe.  Laying a  trap, is a part of the investigation and a permission given  under s.  5A  of  the Prevention of  Corruption  Act  enables  the officer concerned not only to lay a trap but also to further investigate.   The fact that the Inspector of Police  obtain the two permissions, one for laying a trap and 564 another  for  investigating the case, does  not  affect  the earlier   order   as  the  second  permission   was   wholly superfluous. [566 G-H, 567 B-D] (2)  The order giving permission to. the Inspector  did  not give  any  reasons and there is thus a violation of  s.  5A. But   an   illegality  committed  in  the   course   of   an investigation does not vitiate the result of a trial  unless there was a miscarriage of justice.  In the present case the legality  of  the investigation was not  challenged  in  the trial  court  and  prejudice to the  appellant  was  neither pleaded nor established. [568 C-D, F-G]. (3) The presumption under s. 4 arises when it is shown  that the accused had received the stated amount and that the said amount was not legal remuneration. [569 D]. (4)  The  words ’unless the contrary is proved’ in  s.  4(1) show  that the presumption was to be rebutted by  proof  and not  by a bare explanation which is merely  plausible.   The ’burden testing on the -accused will however be satisfied if he   establishes  his  case  by  a  mere  preponderance   of probability  and  it is not necessary for him  to  prove  it beyond   reasonable  doubt.   In  the  present   case,   the appellant’s plea was not accepted by the trial court and the High  Court  and  hence, it must be held  that  he  had  not discharged the burden placed on him. [571 C-E]. State  of  M.P. v. Mubarak Ali, [1959] 2 S.C.R. 201,  H.  N. Rishbud  and Inder Singh v. State of Delhi, [1955] 1  S.C.R. 1150,  State of U.P. v. Bhagwant Kishore Joshi, A.I.R.  1964 S.C.R.  221, Munnalal v. State of U.P. A.I.R. 1964 S.C.  28, C.  1.  Emden  v.  State  of  U.P.  [1960]  2  S.C.R.   592, Dhanvantrai Balwantrai Desai v. State of Maharashtra, A.I.R. 1964  S.C. 575 and V. D. Jhangan v., State of U.P. [1966]  3 S.C.R. 736, followed. (5)  Under s. 6(1) (c) of the Prevention of Corruption  Act, the  appellant could not be prosecuted without the  previous sanction  of  the authority competent to remove  him.   Oral evidence of the officer giving sanction cannot be relied  on for  deciding the validity of the sanction.  The Court  must be  satisfied  by  reference to the rules  on  the  subject. Schedule  11  to the 1961 Rules relating to  discipline  and appeal   of  railway  servants  makes  provision   for   the punishment  of railway servants employed in zonal  railways. Under  the  Schedule  I  a head  of  a  department  was  not

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competent to impose on Class III officers the punishment  of removal from service.  That punishment could only be imposed by  an appointing authority or any other  higher  authority. Under  r,  134.  the authorities  competent  to  make  first appointments to non-gazetted posts are the General  Manager. the  Chief  Administrative Officer or a lower  authority  to whom  he  may  delegate power; but the power  has  not  been delegated  to  heads of departments.  Therefore,  the  Chief Medical Officer was neither the appointing authority nor was he  competent  to.  remove the appellant  from  his  Office. Hence  he was also not competent to grant the  sanction  for prosecuting the appellant. [571 F; 572 D; 573B-C, H;574A-B]. R. R. Chari v. State of U.P. [1963].1 S.C.R. 121, followed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 109  of 1967. Appeal  by special leave from the judgment and  order  dated May  4, 1967 of the Patna High Court in Criminal Appeal  No. 455 of 1965. Debobrata Mookherjee and P. K. Ghosh, for the appellant. D, P. Jha, for the respondent. 565 The Judgment of the Court was delivered by Hegde,  J.  In this appeal by special leave,  Mr.  Debabrata Mookherjee  learned counsel for the appellant  advanced  the following  contentions : (1) the investigation conducted  in this  case was without the authority of law, (2) the  nature of  the onus under s. 4 of the Prevention of Corruption  Act has been wrongly construed by the High Court as well as  the trial court, and (3) the sanction granted under S. 6 of  the Prevention  of  Corruption  Act is invalid  in  law  as  the authority who granted the same had no competence to do so. The facts leading upto this appeal are these.  The appellant was an assistant medical officer in the railway hospital  at Gaya in the year 1964.  PW 4 Doman Ram was a khalasi working under  the  inspector of works, Eastern Railway,  Gaya.   On March  2,  1964,  as he was  suffering  from  dysentery  and stomach pain he was sent to the appellant along with a  sick note for treatment.  The case of PW 4 was that when he  went to  the appellant for treatment the appellant  demanded  and received,  from  him  Rs. 2  as  illegal  gratification  for treating  him.  Thereafter he was. treated by the  appellant on the 5th, 7th. 9th and 12th of that month.  By the 12th he had completely recovered and, therefore he wanted to  rejoin duty and for that purpose he requested the appellant to give him a fitness certificate.  For issuing him that certificate the appellant demanded Rs. 5 as bribe and he further told PW 4 that unless he paid him the said sum by March 14, 1964, he (appellant)  would remove PW 4’s name from, the  sick  list. After this talk, when PW 4 was going out of the hospital  he met a person by name Babu.- He complained to Babu about  the behavior of the appellant.  The said person told him that he would meet him again on March 14, 1964, but on March 14  Mr. A.  C. Das PW 17, Inspector of Special Police  Establishment met PW 4 in his house and ascertained from him all that  had happened.   Thereafter PW 4 met PW 17 again at  the  railway station  as desired by the latter.  From there both of  them went  to the district Dak bungalow where PW 17 recorded  the complaint  of  PW 4. The same day PW 17  obtained  from  the First  Class  Magistrate  an  order  under  s.  5A  of   the Prevention  of  Corruption Act.  Thereafter, PW  4  produced before  PW 17 a five-rupee-currency note in the presence  of

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panch  witnesses.   PW 17 noted the number of  the  currency note  in question, prepared a memorandum in respect  of  the same, got it attested by the panch witnesses and  thereafter returned  the said currency note to PW 4 to be given to  the appellant  in  case he made any further  demand  for  bribe. After  these  preliminaries  were  over PW  4  went  to  the appellant  along with the panch witnesses.  There when PW  4 asked  for  the  certificate,  the  appellant  repeated  his earlier  demand.   Then PW 4 gave him the currency  note  in question.  This was seen by the panch 566 witnesses.   Immediately signal was given to PW 17 who  came to the hospital and. asked the appellant to produce the five rupee  note  received by him from PW 4. At  this  stage  the appellant  became extremely nervous.  He admitted that PW  4 had paid him Rs. 5 but that according to him was a return of the  loan  given to him by the appellant.  He  produced  the currency   note  in  question.   After   investigation   the appellant was charged under s. 161 IPC and s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act. The  plea of the appellant was that PW 4 and his  wife  were doing  odd jobs in his house; PW 4 was a drunkard and  hence was  always  in  need;  he used to  often  borrow  from  him (appellant);  he  had borrowed Rs. 5/- from him  some.  days prior to the date of the trap and he returned that amount on that day.  The appellant examined some witnesses in  support of that plea. The  trial  court  as well as the High  Court  accepted  the prosecution  evidence;  rejected  the  defence  version  and convicted the appellant both under s. 161, IPC as will as s. 5(2)  of the Prevention of Corruption Act.  They have  given good  reasons in support of the findings of fact reached  by them.   As  this Court does not go into  questions  of  fact except  under  exceptional  circumstances,  Mr.   Mookherjea primarily  confined himself to the legal issues  arising  in the case. His first contention was that the investigation held in this case  was  without  the  authority of  law  and  hence  the. appellant  is  entitled to be acquitted.  He urged  that  in view of s. 5A of the Prevention of Corruption Act, PW 17 who was only an Inspector of police could not have  investigated the case without the prior permission of a magistrate of the first  class;  on March 12, 1964 he merely applied  for  and obtained  from a first class magistrate permission to lay  a trap;  the permission to, investigate the case was  obtained by  him  only  on  the 21st but  by  that  time  the  entire investigation   was   over;  hence  there   was   no   valid investigation.   The application made by PW 17 on  the  12th was under s. 5A of the Prevention of Corruption Act Therein, it is true, he had only asked for permission to lay a  trap. It  must  be remembered that the permission  given  was  one under  s.  5A.   A  permission under  that  provision  is  a permission  to investigate the case.  Laying the trap  is  a part of the investigation.  It is so laid down by this Court in   State   of  Madhya  Pradesh  v.  Mubarak   Ali().    An investigation is one and indivisible.[ All steps taken by PW 17  to  ascertain the truth of the complaint made  by  PW  4 alleging  that the appellant was attempting to obtain  bribe from  him, come within the expression ’investigation’  under s. 4(1) of the Code of Criminal Procedure.   ’Investigation’ includes all the proceedings (1) [1959] 2 S.C.R.201. 567 under the Code for the collection of evidence conducted by a police  officer or any person (other than a magistrate)  who

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is authorised by a magistrate in this behalf.  The scope  of the   expression  ’investigate’  found  in  S.  5A  of   the Prevention of Corruption Act was explained by this Court  in H. N. Rishbud and Inder Singh v. State of Delhi(-) and State of  Uttar Pradesh v. Bhagwant Kishore Joshi(2).  Section  5A does not contemplate two sanctions, one for laying the trap, and another for further investigation.  Once an order  under that  provision  is  made  that  order  covers  the  entire, investigation.   A  permission given  under  that  provision enables  the  officer concerned not only to lay a  trap  but also to hold further investigation.  There is no doubt  that PW 17 was under a mistaken impression that he should  obtain two  permissions,  one for laying the trap and  another  for investigating  the  case.   Evidently  because  of  that  he applied for a second permission Rome days after the trap was laid.   But that permission was wholly superfluous  and  the same  does  not affect the validity of  the  earlier  order. Hence there is no basis for the contention that any  portion of  the  investigation  in this case was  done  without  the authority of law. It  was next urged that before granting the  permission  the learned  magistrate did not apply his mind to  the  question whether  there was any need for granting the sanie.   Before permitting  PW 17 he should, have first ascertained  whether any  officer of the rank of Deputy Superintendent  or  above was  not immediately available to investigate the case,  and whether  ’there was any other reason for departing from  the normal rule laid down by the legislature, namely, that cases of  this  nature should be investigated by officers  of  the rank  of Deputy Superintendent of Police or above.   It  was further contended on behalf of the appellant that the earned magistrate  made  the order casually he gave  no  reason  in support  of his order and hence the permission granted  does not meet the requirements of the law. The  object of the legislature in enacting S. 5A was to  see that the investigation of offenses punishable under ss. 161, 165  or  165A,  IPC  as well as those  under  S.  5  of  the Prevention  of Corruption Act should be done  ordinarily  by officers  of the rank of deputy superintendent or  above  N4 doubt S. 5A also provides for an alternative procedure.   An officer   below  the  rank  of  deputy  superintendent   can investigate  those:  offenses  if he  obtains  the  previous permission  of  a first-class magistrate.   The  legislature proceeded  on  the basis that except  for  good-reasons  the magistrate  would not accord permission for  officers  below the  rank  of a deputy superintendent to  investigate  those offenses.  But exigencies of administrative convenience  may require I that some of those (1) [1955] 1 S.C.R. 1150. (2) A.I.R. 1964 S.C. 221. 568 cases have to be investigated by officers below the rank  of Deputy  Superintendents.   For that reason it  was  provided that’ in such circumstances the permission of a.  magistrate of the first class should be obtained.  This Court has  laid down  in State of Madhya Pradesh v. Mubarak Ali(’) that  the statutory  safeguards under S. 5A must strictly be  complied with  for  they are. conceived in public interest  and  were provided  as  a guarantee against  frivolous  and  vexatious proceedings.  A magistrate, can-not surrender his discretion to  a police officer but must exercise it having  regard  to the relevant material made available to him at the stage  of granting  permission.  He must also be satisfied that  there is   reason  owing  to  exigencies  of  the   administrative convenience  to  entrust  a  subordinate  officer  with  the

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investigAtion.   It is further observed therein that  it  is desirable  that  the  order  giving  the  permission  should ordinarily on the face of it disclose the reasons for giving permission.  The order giving permission under s. 5A in this case does not give any reason.  On the application submitted by  PW 17 the learned magistrate merely ordered  "Permission granted".   PW  17 did not mention in his  application  any- special  reason for permitting him to investigate  the  case unless  we consider the statement in the application  "Today is  the  date fixed for issuing the fit  certificate:  after receiving  a bribe money of Rs. 5 from him" as  impliedly  a ground  in,  support of his application.  It  is  surprising that even after this Court pointed out the- significance  of s. 5A in several decisions there ’are still some magistrates and police officers who continue to act in a casual  manner. It  is  obvious that they are ignorant of the  decisions  of this  Court.  But the legality of the investigation held  in this  case  does not appear to have been challenged  in  the trial  court.  The charge leveled against the  appellant  is established  by satisfactory and therefore all that we  have now to see is whether the accused was prejudiced by the fact that investigation of this case was made by an officer below the  rank of a Deputy Superintendent, as laid down  by  this Court in Munnalal v. State of Uttar PradeSh(2) and State  of Uttar  Pradesh v. Bhagwant Kishore Joshi(3).   No  prejudice was pleaded -much less established  An illegality  committed in  the  course  of an investigation  does  not  affect  the competence and jurisdiction of the court for trial and where cognizance  of the case has in fact been taken and the  case has  proceed to termination the invalidity of the  preceding investigation  does  not  vitiate  "the  result  unless  the miscarriage of justice has been caused thereby, See  Rishbud and Inder Singh v. State of Delhi(4). We next take up the question as to the, scope of s. 4 of the Prevention  of Corruption Act.  As, mentioned  earlier,  the appel- (1)  [1959] 2 S.C.R. 201.    (2) A.I.R. 1964 S.C. 28. (3)  A.I.R. 1964 S.C. 221.   (4) (1955] 1 S.C.R. 1150. 569 lant admits the fact that he received a sum of Rs. 5 from PW 4 on March 14, 1964.  Once that fact is admitted by him, the court  has to presume unless the contrary is proved  by  the appellant  that he accepted the sum in question as a  motive or reward for issuing the fit certificate.  Mr. Mookherjea’s contention  was  that the presumption in question  does  not arise  unless  the  prosecution proves that  the  amount  in question was paid as a bribe.  He urged that the presumption under s. 4 arises only when the prosecution proves that  the Appellant had received "any gratification (other than  legal remuneration)  or any valuable thing from any  person".   He laid stress on the Word gratification’ and according to  him the  word  ’gratification’ can only mean something  that  is given  as  a  corrupt reward.  If  this  contention  of  Mr. Mookherjea is correct then the presumption in question would become  absolutely useless.  It is not necessary to go  into this question in any great detail as the question is no more res Integra.  In C.I. Emden v.State of U.P. (I") this  Court held  that  the "presumption under s. 4 arose  when  it  was shown  that the Accused had received the stated  amount  and that the, said amount Was not legal remuneration.  The  word ’gratification’ in s. 4(1) was given its literal  dictionary meaning of satisfaction of appetite or desire; it could  not be  construed  to mean money paid by way of  a  bribe."  The Court further observed               "If  the word ’gratification’ is construed  to

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             mean  money  paid by way of a  bribe  then  it               would  be futile or superfluous  to  prescribe               for    the.raising   of    the    presumption.               Technically it may no doubt be suggested  that               the  object  which the  statutory  presumption               serves on, this construction is that the court               may  then presume that the money was  paid  by               way  of  a  bribe as a  motive  or  reward  as               required  by  s.  161 of  the  Code.   In  our               opinion this could not have been the intention               of   the  Legislature  in   prescribing   the;               statutory  presumption under s. 4(1).  In  the               context we see no justification for not giving               the    word   ’gratification’   its    literal               dictionary meaning.               There is another consideration which  supports               this  construction.  The presumption has  also               to be raised when it is shown that the accused               person  has  received  valuable  thing.   This               clause   his   reference   to,   the   offence               punishable under s, 165 of the Code; and there               is   no  doubt  that  one  of  the   essential               ingredients,  of the said offence is that  the               valuable  things should have been received  by               the accused without consideration or for a not               be  suggested that the relevant clause  in  s.               4(1) (1)  [1960] 2 S.C.R. 592. 570               which   deals  with  the  acceptance  of   any               valuable thing should be interpreted to impose               upon  the prosecution an obligation  to  prove               not  only  that the valuable  thing  has  been               received  by the accused but that it has  been               received by him - without consideration or for               a   consideration   which  he  knows   to   be               inadequate.  The plain meaning of this  clause               undoubtedly  requires  the presumption  to  be               raised whenever it is shown that the  valuable               thing has been received by the accused without               anything more.  If that is the true,  position               in respect of the construction of this part of               s. 4(1) it would be unreasonable to, hold that               the  word  gratification’ in the  same  clause               imports  the necessity to prove not  only  the               payment   of  money  but   the   incriminating               character  of  the said payment.  It  is  true               that the Legislature might have used the  word               money’ or ’consideration’ as has been done  by               the  relevant section of the English  statute;               but  if  the dictionary meaning  of  the  word               ’gratification’ fits in with the scheme of the               section  and leads to the same result  as  the               meaning of the word valuable thing’  mentioned               in  the same clause, we see  no  justification               for  adding  any clause to  qualify  the  word               ’gratification’;   the  view  for  which   the               appellant contends in effect amounts to adding               a     qualifying    clause     to     describe               gratification." The  same  view  was  taken by  this  Court  in  Dhanvantrai Balwantrai Desai v. State of Maharashtra(1) and again in  V. D. Jhangan v. State of Uttar Pradesh(2). It was next contended that to discharge the burden placed on the appellant under s. 4 all that he has to do is to offer a

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reasonable explanation, the burden placed on him by s.  4(1) being somewhat analogous to that ’Placed on an accused under s. 114 of the Evidence Act.  This branch of the law is  also well-settled  by the decisions of’ this Court.  Section  114 of the Evidence Act provides that the court may presume  the existence  of  any  fact  which it  thinks  likely  to  have happened,  regard being had to the common course of  natural events,  human conduct and public and private  business,  in their  relation to the facts of the particular case.   Under that   provision  the  court  is  not  bound  to  draw   any presumption of fact.  ’It is within its discretion to draw a presumption or not.  But under s, 4(1) the court is bound to draw  the presumption mentioned therein.  ’,The  presumption in  question  will hold good unless the accused  proves  the contrary.   In  other  words,  the  burden  of  proving  the contrary is squarely placed on the accused.  A fact is  said to be when after Considering the matters before it the court either believes it to exist or con (1)  A.T.R. 1964 S.C. 575. (2)  [1966] 3 S.C.R. 736. 571 siders  its  existence was so probable that  a  prudent  man ought under the circumstances of the particular case to  act upon the supposition that it exists.  The proof given by the accused  must satisfy the aforementioned conditions.  If  it does not satisfy those conditions then he cannot be said to, have proved the contrary. In Dhanvantrai Balwantrai v. State of  Maharashtra(’) this Court considered the nature  of  the proof  required to be given by’ the accused under s. 4  (I). Therein  this,  Court held that the burden  resting  on  the accused person in such a case would not be as light as  that placed on him under s. 114 of the Evidence Act and the  same cannot be held to be discharged merely by reason of the fact that the explanation offered by him is reasonable and  prob- able.   It must further be shown that the explanation  is  a true  one.  The words ’unless the contrary is proved’  which occur  in that provision make it clear that the  presumption has  to be rebutted by proof and not by a  bare  explanation which is merely plausible.  The same view was taken by  this Court  in V. D. Jhangan v. State of Uttar Pradesh (2).   But at the same time it was mentioned in that decision that  the burden  resting  on  the accused will be  satisfied  if  the accused  person establishes his case by a  preponderance  of probability and it is not necessary for him to establish his case by the test of proof beyond reasonable doubt.  In other words,  the, nature of the burden placed on him is  not  the same as that placed on prosecution which must not only prove its  case  but  prove it beyond reasonable  doubt.   In  the instant  case  the  evidence adduced  by  the  appellant  in support  of his plea was not accepted by the trial court  as well  as the High Court.  Hence it must be held that he  had not discharged the burden placed on him by law.’ This  takes  us to the last point urged  by  Mr.  Mookherjea namely  that the sanction to prosecute granted by PW 1,  the chief  medical officer, under s. 6(1) of the  Prevention  of Corruption  Act  is  invalid as he  was  not  the  authority competent to remove the appellant from his office and  hence the prosecution is vitiated.  Section 6(1), to the extent it is material for our present purpose, reads : "No  court  shall take cognizance of an  offence  punishable under  section  161  or section 164 or section  165  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)...........................

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(b)........................... (c)  in  the  case of any other  person,  of  the  authority competent to remove him from his office." (1) A.I.R. 1964 S.C. 575. L7 Sup.  CI/68-12 (2) [1966] 3 S.C.R. 736 572 This Court has laid down in R. R. Chari v. State of U.P.(1); as  well  as in several other decisions that  no  court  can validly take cognizance of any of the offenses mentioned  in s.  6(1)  of the Prevention of Corruption  Act  without  the previous sanction of the authority competent to remove  from office the accused.  Without a valid sanction the court  had no  jurisdiction  to try the case.  Hence, if  the  sanction accorded  in:  this case is invalid then  the  appellant  is entitled to be acquitted. P.W.  I deposed that the appellant was a class  III  officer and  that he could have been appointed or dismissed  by  the Deputy Agent Personnel who is subordinate to him.  Therefore he  (P.W. 1) was competent to grant previous sanction  under S.  6  (1) of the Prevention of Corruption  Act.   P.W.  1’s assertion  that the appellant could have been  removed  from ’his  office  either  by the Deputy Agent  Personnel  or  by himself was challenged in his cross-examination.  The  trial court  as  well as the High Court have relied  on  the  oral evidence  of  P.W. 1 in coming to the  conclusion  that  the sanction  granted  is valid.  In our  opinion  those  courts erred  in relying on oral evidence in deciding the  validity of  the  sanction  granted.  Hence,  we  asked  the  learned counsel  for the respondent to satisfy us with reference  to the rules on the subject that P.W. 1 was competent to remove the  appellant  from  his office.   For  this,  ,purpose  we granted him several adjournments.  Though our attention  has now been invited to some rules, those rules do not establish that P.W. I as competent to grant the sanction in question. It  was contended on behalf of. the appellant that he was  a gazetted  officer and therefore he could be removed only  by the  Railway Board.  This contention does not appear  to  be correct.  As seen from the Government of India, Ministry  of Railways  publication under the title "authorised scales  of pay",  the  appellant  is a class  HI  officer.   From  that publication  it is further seen that F only class I  and  II officers are designated as gazetted officers.  In support of his  contention  that he -was a gazetted  officer,  the  ap- pellant  relied on the Railway Board’s letter No.  PC/60/PS- 5/MH3 dated 2-3-1962.  ’Paragraph 4 of that letter-the  only relevant  paragraph  for our present  purpose-says  that  an assistant  surgeon after five years service shall  hold  the honorary  gazetted rank and shall be entitled to  the  usual privileges  granted to gazetted officers in matters such  as passes, allotment of quarters.  This letter merely indicates that the officers mentioned therein are entitled to  certain privileges  which  are  ordinarily  available  to   gazetted officers.  We are unable to ’read that letter as raising the rank  of  the  appellant  to that  of  a  gazetted  officer. Therefore  we proceed on the basis that the appellant was  a non-gazetted  officer.   But  the  question  still   remains whether P.W. 1 was competent to remove him (1) [1963] S.C.R. 121. 573 from  service.   In  view  of appendix 3  8  of  the  Indian Railways  Establishment Code Vol.  III (4th re-print,  dated 26-7-1962),  we may take it that P.W. 1 was the head of  the department  to  which  the  appellant  belongs.   The   next question is whether the head of his department was competent

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to remove the appellant from his service. As per r. 134 of the Indian Railway Establishment Code, pub- lished   in  1959,  authorities  competent  to  make   first appointment to non-gazetted posts in the Indian Railways are the  General  Manager, the Chief Administrative  Officer  or lower authority to whom he may delegate power.  There is  no evidence  to show that this power has been delegated to  the heads of the department.  No provision in the Indian Railway Establishment   Code   1959  prescribing   the   authorities competent  to  remove from office a class  III  officer  was brought to our notice.  But the prefatory note to Vol.  I of the  Code  says,  "The  revised  Chapter  XVII  and  revised Appendices I and XII will be printed later for inclusion  in this edition.  Till such times these are printed, the  rules and  provisions contained in Chapter XVII and Appendices  IV and  XVIII  in the 1951 Edition (Reprint) as,  amended  from time to time shall continue to apply." In  1961  new  rules relating to discipline  and  appeal  of railway   servants  other  than  employed  in  the   railway protection  force  have  been published.   Rule  1701  says, "Without  prejudice  to the provisions of any law,  for  the time  being in force, relating to the conduct of  Government servants,  or to the rules made under section 47 (e) of  the Indian  Railways  Act,  1890 (9 of  1890),  the  conduct  of railway servants shall be governed by the rules contained in Appendix  Vlll." Our attention has not been invited  to  any rules made under s. 47 (e) of the Indian Railways Act,  1890 or  any other statutory rules.  Hence we are  proceeding  on the  basis  that  the aforementioned  r.  1701  governs  the present  case.  Rule 1705 says that the authorities who  are competent to place a railway servant under suspension and to impose  penalties on him are specified- in the Schedules  1, II  and III appended to the Rules.  Rule 1707 sets  out  the various punishments that may be imposed on a railway servant which  includes  removal from service as well  as  dismissal from  service.   Schedule  I  deals  with  railway  servants employed in the Railway Board’s office, the Research, Design and  Standard  Organisation,  the  Railway  Staff   College, Baroda,  the Advanced Permanent Way Training School,  Poona, the Railway Service Commission, the Railway Rates  Tribunal, the  Railway  Liaison Office and all other  railway  offices which  are not enumerated above.  Schedule I does not  apply to  the  case  of railway servants  employed  in  the  zonal railways.  As regards them, provision is made in Sch.   III. From  that  Schedule it is seen that though a  head  of  the Department can impose on Class III officers 574 censure as well as some other punishments detailed  therein, he  is  not competent to impose on them  the  punishment  of removal  from  service, compulsory retirement  or  dismissal from   service.   Those  punishments,  as  seen   from   the Schedule,can  be  imposed  on them only  by  thE  appointing authority  or  any other higher authority.  P.W.  1  is  not shown  to  be  the appointing authority.   On  the  material before us it is not possible to come to the conclusion  that P.W. 1 was competent to grant sanction under s. 6 (1)of  the Prevention of Corruption Act. We   accordingly  allow  this  appeal  and  set  aside   the conviction of the appellant.  He is on bail.  His bail  bond stands cancelled. V.P.S.                         Appeal allowed. 575