P L D 1958 Dacca 532 (PLP)

SATTAR, J.‑The appellant was placed on his trial before Mr. A. Mannan, Sessions Judge and ex‑officio Special Judge, Dinajpur, to answer a charge under section 5 (2) of Act II of 1947.

2. The prosecution case is that the accused who is a Union Agricultural Assistant was attached to Union No. 3 of Rajarampur within police‑station Thakurgaon at the relevant time and he on 16th Chaitra, 1359 B. S., realised from one Sabiruddin ‑/12/‑ but granted him a receipt for ‑/4/‑ on account of jute license fee. He on 17th Chaitra, 1359 B. S., realised from one Babijuddin Ahmad Rs. 3/8/‑ but granted him a receipt of jute license fee for Re. 1/‑ only and on that date he also realised from one Kakaru Rs. 2/‑ but granted him a receipt of jute license fee for ‑/8/‑ only. The balance of the amounts were mis appropriated by him.

3. The defence of the accused was that he realised exactly the amounts for which he granted receipts and he had been falsely implicated in the case out of sheer enmity.

4. This case had a chequered career. It appears from the papers that charge‑sheet in this case was submitted on 4‑1‑54 and, after some time, on 12‑7‑54, the Court Sub‑Inspector filed an application before the Magistrate in whose Court the case was then pending for withdrawal of the case. The learned Magistrate allowed the prayer under section 494 of the Code of Criminal Procedure and the accused was discharged under section 494 (a) of the said Code. Thereafter a fresh charge‑sheet was submitted on 12‑2‑

55. The case remained pending before the Magistrate till 24‑8‑55 when the records were sent to the District Magistrate for transmission to the Special Judge, Rangpur, for proceeding with the trial of this case. On 16‑I1‑55, the records were sent to the Special Judge, Dinajpur, and, on 20‑1‑56, the Special Judge, Dinajpur. ordered registration of the present case. There after the trial of this accused began on 25‑2‑57.

5. It has been brought to our notice by Mr. Abu Muhammad Abdullah who appears for the appellant that before the first charge‑sheet mentioned above was submitted on 4‑1‑54, there was another charge‑sheet submitted and, after the case remained pending for some time, the same was withdrawn by the prosecution.

6. It appears from the records of this case that the sanction that was obtained for the prosecution of the present appellant is dated 16‑11‑

53. The sanction which was given by the Deputy Director of Agriculture. Rajshahi, is to the following effect: "Whereas it appears from the report of the Superintendent of Police, D. A. B., Dinajpur, available before me in connection with Thakurgaon P. S. Case No. 21, dated 26‑4‑53, under section 420, P. P. C., read with section 5 (2) of Act II of 1947 that Muhammad Baharuddin Sarkar son of Mayezuddin Sarkar of Sarisahat, P. S. Baraigram, District Rajshahi, Union Agri cultural Assistant, U. B. No: 3 Rajagaon, P. S. Thakurgaon, while he was in capacity of Union Agricultural Assistant of the said U. B. has committed an offence under section 5 (2) of Act 11 of 1947. Now, therefore, in exercise of the powers conferred upon me by section (c) of the Prevention of Corruption Act, II of 1947, I do hereby accord sanction for the prosecution of the aforesaid Union Agriculrural Assistant Muhammad Baharuddin Sarkar, son of Mayezuddin Sarkar of Sansahat, P. S. Baraigram District Rajshahi, now attached to Dinajpur District as Union Agricultural Assistant, for the said offence under section 5 (2) of Act 11 of 947 " Mr. Abu Muhammad Abdullah has raised the question that there is no proper sanction in this case within the meaning of the Pakistan Criminal Law Amendment Act, 1948, as amended by Act XXXVII of 1953. Section 5, subsection (5) of the said Act provides: "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), or in any other law, the previous sanction of the appropriate Government shall be required for any prosecution under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act Provided that no such sanction shall be required in respect of a case transferred under the proviso to subsection (2) of section 4 or by virtue of subsection (4) of that section". Act XXXVII of 1953 came into force on 17th November 1953, and made all offences under the Prevention of Corruption Act, 1947 (Act II of 1947), triable exclusively by the Special Judge under the provisions of subsection (3) of section 4 of the Act. It is, therefore, clear that on 4‑1‑54, or on 12‑2‑55, when charge‑sheets were submitted against the present appellant, the offence for which he was charged was exclusively triable by a Special Judge and, therefore, it is not a case which comes within the purview of subsection (2) of section 4 of the Act. The sanction in this case that was obtained and which we have already quoted clearly goes to show that it is not a sanction within the meaning of subsection (5) of section 5 of the Criminal Law Amendment Act of 1953.

7. It has been held by our learned brother Rahman, J., in the case of Jahirul Huq Khan v. The State (9 D L R 109 1937), following two decisions of the Federal Court of India, reported in (1945) 7 F C R 90 and (1945) F C R 93, that, in the absence of a sanction, a' Special Judge has no jurisdiction either to take cognizance of the'. offence charged or to continue to take any proceeding in connection 'A with that prosecution. The absence of the sanction renders the entire) prosecution ab initio void and this defect cannot be cured even by obtaining a sanction subsequently during the pendency of the proceeding. It has also been held in that case that prosecution Q includes the initiation or commencement of a criminal proceeding and begins when a formal charge is exhibited against the offenders. In that case there was a proper sanction but the same was obtained after the charge‑sheet was submitted against the accused but before the trial began. In spite of that His Lordship held that that could not cure the initial defect that occurred on account of not obtaining the sanction previous to the initiation of the proceeding In the present case it has been conceded by the learned Counsel appearing for the State, that there is no proper sanction. In that view of the matter following the decisions above referred to with which we respectfully agree, we must hold that the proceedings that were started and which ended in the conviction of the present appellant was bad from beginning to end. In the view we have taken with regard to this matter, it is not necessary for us to discuss the other points which were raised on behalf of the appel 1ant at tile hearing of this Appeal.

8. In the result, we allow this appeal, set aside the conviction and sentence of the appellant and direct that he be discharged from his bail bond. The fine, if paid, should be refunded to him. CHAKRABORTI, J.‑I agree. K. B. A. Appeal allowed.