P (PLP)

D. C. Roy and Mohendra Kumar Ghosh, for Petitioner. S. Afzal, Deputy Legal Remembrancer, for Crown, ELLIS, J.‑

In this case a Rule .was issued on the District Magistrate of Faridpur to show cause why the conviction of the Petitioner Shaikh Anwar Ali under section 161 of the Pakistan Penal Code and the fine of Rs. 150 imposed on him thereunder should not be set aside. The charge under Section 161 of the Code against the petitioner recorded that on the 9th January 1948 at Sardar Munsif's Office, Faridpur, being a public servant in the judicial Department (a clerk in the Sardar Munsif's Office) he obtained from P. W. I Moniruddin through P. W. 2 Sashti Charan Das. Rs. 2 a gratification other than legal remuneration as a motive for doing an official act. Mr. Mohendra Kurnar Ghosh moved the Court on the 3rd January 1949 and a Rule was issued on two grounds, Ground No. 2 " For that the charge under Section 5 (d) Clause 2 of Act II of 1947 being exclusively triable by the Court of Sessions the learned magistrate has erred in altering the same and framing a new charge under section 161

1. P. Code to assume Jurisdiction, the procedure followed by the learned Magistrate had. been improper and illegal and operated to the serious prejudice of the petitioner," and on Ground No. 8 " For that the prosecution was bad in law without the necessary sanction of the District judge before the initiation of the prosecution." . When the Rule came up for hearing we heard Mr. D. C. Roy who appeared in its support and the Deputy Legal Remem brancer who appeared to oppose it. In our opinion the Rule must be made absolute on ground No.

8. Section 6 of the prevention of Corruption Act, II of 1947 says: " Previous sanction necessary for prosecution‑No Court shall take cognizance of an offence punishable under Section 161 or Section 165 of the Indian Penal Code (XLV 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 of the authority competent to remove him from his office." In the present case the occurrence took place on 16' 10 hours on the 9th January 1948 and the first information report was lodged at 21 15 hours on the same date. The first information report was lodged in respect of an offence under section 161 of the Pakistan Penal Code read with section 5 (2) of Act 11 of 1947. On 8th March, 1948, a charge sheet was received in respect of an offence under section 161 read with section 5 (2) of Act II of 1947. The learned Magistrate took cognizance of the offence although he did not have in his hand the previous sanction necessary for prosecution. The record shows that such sanction was in fact actually given by the District judge on the 27th February 1948. We do not know where that sanction remained after it had been granted on the 27th February 1948, but it certainly was never in the hand of the Magistrate So far as we have been able to see from the scrutiny of the record it was in fact not produced until after the petitioner's conviction or: the 30th July 1948 and after he had filed an appeal before the Sessions Judge against his conviction and his sentence The sanction was actually produced in the appellate Court on the 24th September 1948. Accepting as we do, that under section 6 of Act Il of 1947 the previous sanction is necessary is respect of an offence punishable Under Section 161 of the Code. We have no alternative but to make the Rule absolute and set aside the conviction and sentence and we direct accordingly. A.H. Revision accepted