P L D 1957 (W (PLP)

A. R. CHANGEZ, J.‑

This is a revision petition against the order of the Special Judge (Provincial), Rawalpindi, dated the 14th of September 1956, whereby it was held that the retrial of the respondent for an offence under section 161, P. P. C., was barred by section 403 of the Code of Criminal Procedure. The material facts giving rise to this petition are as follows. The respondent Mr. Muhammad Zia Nayyar was sent up for trial under section 161, P. P. C., on the allegations that while he was posted as a Food Inspector at Taxila in the year 1952 he had accepted Rs. 150 as a gratification other than legal remuneration from one Abdul Aziz shop‑keeper as a motive or reward for recommending his case and helping him in securing wheat and other food grain licences. The sanction for the prosecution of the accused as required by section 6 of the Prevention of Corruption Act (II of 1947), which was then applicable to the case, was given by the Deputy Commissioner, Rawalpindi. The trial commenced in the Court of Ch. Qadir Bakhsh, Special Magistrate, who recorded the entire prosecution evidence, But in view of the amendment in November 1953 of the Pakistan Criminal Law Amendment Act (XIX of 1948), the case was transferred to the Court of the Special Judge (Provincial), Rawalpindi. The latter recorded only the defence evidence and after hearing the arguments, acquitted the accused on the 25th of September 1954, solely on the ground of want of proper sanction. He held that the sanction given by the Deputy Commissioner was invalid because the concurrence of both the District Food Controller and the Deputy Commissioner was needed for the prosecution of the accused. He further held that "the whole of the trial was against law and both the Courts had no jurisdiction to try him." In view of this finding he did not deal with the merits of the case. Subsequently the respondent was again sent up for trial before the Special judge, after the prosecution had been sanctioned by the Governor in exercise of the powers con?ferred by subsection (5) of section 5 of the Pakistan Criminal Law Amendment Act 1948. It may be pointed out that by then section 6 of the Prevention of Corruption Act (II of 1947) had been deleted. On a preliminary objection raised on behalf of the accused, the learned Special judge held that he had no jurisdiction to retry the accused in view of section 403 of the Code of Criminal Procedure. Hence this revision petition. The question, therefore, which requires determination is, whether the bar of autrefois acquit applies to the facts of the present case. The well known ancient legal maxim nemo debet bis vexari pro una et eadem causa, i.e., no one shall be put in peril twice for the same matter, is embodied in section 403 of the Code of Criminal Procedure, which reads as follows :‑ "A person has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237." There are certain exceptions to this rule which are incor?porated in clauses (2) to (5) of this section. One of the essential conditions for the bar of a fresh trial under this section is that the Court by which the accused was first tried was a Court of competent jurisdiction. The question naturally arises what exactly is meant by "tried by a Court of competent jurisdiction". Does it only mean the status or character of the former Court to try the offence, or does it also include within its purview cases in which the Court, though otherwise competent to try the case, could not have done so because certain conditions precedent for the exercise of its jurisdiction had not been fulfilled ? From the language of the section it appears that before a plea of autrefois acquit can be successfully raised, it shall have to be established that the Court was qualified to try the case in the sense that the offence being triable by a Magistrate 1st Class was in fact tried by such a Magistrate. But this alone will not be sufficient. Another important condition which shall have to be established will be that the Court concerned had jurisdiction to try it, Want of jurisdiction may arise from the nature of the offence which the Court may not be empowered to try. It may also arise from the absence of some element, which is essential as a pre‑requisite for proceeding with the case. Thus it may be a condition precedent to the exercise of jurisdiction by the Court that the complaint should be filed by a particular person or authority, or that a sanction for the prosecution of the accused by the competent authority is necessary for initiating the proceedings against the accused. Sections 195 to 199 of the Code of Criminal Procedure forbid cognizance being taken by Courts of the offences referred to therein unless the conditions laid down in those sections are fulfilled. Similarly there are provisions in some other Acts which require the sanction or the complaint of an authority for launching a prosecution under these Acts. Non‑compliance with a particular requirement of law which is a condition precedent to the exercise of jurisdiction in a matter, will affect the root of the jurisdiction of the Court. There is a fundamental difference between want of jurisdiction and irregular exercise of jurisdiction. In the former case, the proceedings taken by the Court will be void ab initio, whereas in the latter case, they will not be void whatever other consequences might follow. Section 530 of the Code of Criminal Procedure lays down‑ "If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely :‑ (p) tries an offender ; his proceedings shall be void. Thus where a Magistrate tries an accused without a proper complaint as required by section 195 of the Code of Criminal Procedure, the proceedings are void. In re Muthu Moodan and another (A I R 1937 Mad. 301) it was held by a Full Bench of the Madras High Court as follows :‑ "The answer to these questions is in my opinion clear and apparent at once on a perusal of section 530 of the Code. According to that section if any Magistrate 'not being empowered by law in this behalf' 'tries an offender his proceedings shall be void. The Sub‑Magistrate of Erode was certainly empowered by section 28 to try an offence under section 186, I. P. C., but was he empowered to try these offenders for this particular offence ? Clearly not, for section 195 prevents him from taking any notice whatever of the offence until a proper complaint is filed. His trial was therefore void. His charge was void. His judgment of acquittal was void. There is nothing which the accused can compel the Court to recognize in support of plea under section 403". In that case the accused were tried for an offence under section 186, I. P. C., and acquitted on the plea that in view of section 195 (1), Criminal P. C., the Court could not have taken cognizance of an offence under section 186, I. P. C., except upon the complaint of the public servant concerned or some other public servant to whom he was subordinate. Thereafter the public servant concerned filed the com?plaint and the plea of autrefois acquit was raised before the Court which refused to entertain it. The accused then went up in revision before the High Court and the Full Bench gave the decision referred to above. Similarly where an accused is tried without the previous sanction of the Provincial Government, when such a sanction is necessary for his prosecution, along with some others for whose trial no sanction is necessary, the whole proceedings are void and not merely the proceedings in respect of the accused. It was so held in Emperor v. Fazal Rahman (A I R 1937 Pesh. 52) Likewise it has been held in Emperor v. Ram Rakha (A I R 1938 Lah. 625) Abdul Rashid v. Harish Chandra (A I R 1929 All. 940) Emperor v. Ambaji Dhakya Katkari (A I R 1928 Bom. 143), Mohendra Nath Sahu v. Emperor (A I R 1934 Pat. 411 (1)) and Faqir Muhammad v. Emperor (A I R 1927 Sind 10), that where the sanction or complaint of a particular person or authority is necessary under the law for the trial of a person and the Court acquits such a person in the absence of such sanction or complaint, such a Court shall not be deemed to be a Court of competent jurisdiction. In the year 1952 when the respondent was prosecuted, the Court could not have taken cognizance of the offence under section 161, P. P. C., in the absence of a sanction by the competent authority as provided by section 6 of the Prevention of Corruption Act of 1947. That section which has since been omitted; was in the following terms :‑ "No Court shall take cognizance of an offence punishable under section 161 or section 165 of the P. P. C., or under subsection (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 Govern?ment ; (b) in the case of a person who is employed in connec?tion 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 Govern?ment ; (c) in the case of any other person, of the authority competent to remove him from his office. The case of the respondent fell within clause (c) of this section. It is, therefore, clear that in view of this mandatory provision of law, the Court could not have taken cognizance of an offence punishable under section 161, P. P. C., against the respondent except with the previous sanction of the authority which was competent to remove him from office. The learned Special judge held that the Deputy Commissioner alone was not competent to remove the respondent from office and, therefore, the sanction given by the Deputy Commissioner for the prosecution of the accused was not a valid sanction. Under the circumstances, no Court could have taken cognizance of the offence and the proceedings taken in the absence of a valid sanction were, therefore, wholly void. The precise point raised in this petition came up for decision before S. A. Rahman J. (as he then was) in Ihsan Ilahi v. Crown (P L D 1951 Lah. 430). In that case the facts were that Ihsan Ilahi, a police constable, was at first jointly tried with one Khair Din for an offence under section 161, P. P. C., as a result of which Khair Din was convicted, but Ihsan Ilahi was acquitted on the ground that previous sanction for his pro?secution had not been obtained from the Superintendent of Police. Subsequently, the accused was tried again after the necessary sanction had been obtained. He was convicted and sentenced to undergo eight months' rigorous imprisonment. When the matter came up in revision before the High Court, it was contended on his behalf that the second trial was barred under the provisions of section 403 of the Code of Criminal Procedure. Repelling this contention His Lordship observed as follows :‑ "The contention raised on behalf of the petitioner is in my opinion unsound. The words "Courts of competent jurisdiction" occurring in section 403 are extremely significant. By virtue of section 6 of the Prevention of Corruption Act, 1947, no Court can take cognizance of an offence punishable under section 161 or section 165 of the P. P. C., or under subsection (2) of section 5 of the Act itself, alleged to have been committed by a public servant, except with the previous sanction of the authority competent to remove such person from office. It is clear, therefore, that the previous trial of the petitioner, unsupported as it was by the sanction of the competent authority, was without jurisdiction, and it could not be said that the petitioner had been tried by a Court of competent jurisdic?tion, within the meaning of section 403 of the Criminal P. C. The subsequent trial, therefore, would not be barred under the provisions of this section. This construction of the section is supported by authority Reference may be made in this connection to Emperor v. Jiwan ((1915) I L R 37 All. 107) Emperor v. Ambaji Dhakya Katkari ((1928) I L R 52 Bom. 25), Nanakram v. Emperor (19 Cr. L J 796), Muhammad Yasin v. Emperor (27 Cr. L J 849) and Abdul Ghani v. Emperor ((1902) I L R 29 Cal. 412). It must be held therefore that the previous trial in the circumstances of this case, was no trial at all in the eye of law, and cannot therefore be pleaded in bar of the second trial. I have consequently no hesitation in repelling the contention raised on behalf of the petitioner". The learned counsel for the respondent, however, argued that the facts of that case were distinguishable from the facts of the present case inasmuch as there was no sanction at all in the above‑mentioned case and as such the Court had no jurisdiction to take cognizance of the offence, but in the present case a sanction order was placed on the file which to all intents and purposes appeared to be a valid sanction and therefore the Court was entitled to take cognizance of the offence and to proceed with the case. In support of this contention he relied on certain observations of the late Federal Court of Pakistan in S. M. K. Alvi v. The Crown (P L D 1953 F C 189). In that case, in the first instance a sanction order was placed on the file which did not show on the face of it that the facts of the case had been placed before the sanctioning authority at the time the sanction order was actually passed. The Court took cognizance of the offence on the basis of this sanction and initiated the proceedings. But a few days later, another sanction order was placed on the file and simultane?ously with it the first sanction was cancelled. The second sanction was a valid sanction in all respects. Mr. Brohi, who appeared on behalf of Mr. AM before the Federal Court, contended on the authority of the Privy Council decision in the case of Gokulchand Dwarkadas Morarka v. The King (75 Ind App 30) that the first sanction was invalid as no extraneous evidence had been produced to the effect that the facts had been placed before the sanctioning authority and the sanction did not show on its face that the facts had been so placed. And, therefore, it was argued that the Court had no jurisdiction to take cognizance of the case against Mr. Alvi on the basis of the first sanction and as the second sanction was placed on the file after the Court had already taken cognizance o1 the offence, the whole trial was vitiated. While dealing with this objection, the learned Chief Justice of Pakistan observed as follows:‑-- "In our opinion, it is not open to the defence, if they object to the validity or sufficiency of the sanction, to take one objection in the trial Court, and to rely on a completely different objection relating to the sufficiency of the sanction in this Court, specially when the objection could have beer easily met by the production of a single witness in the trial Court. It must be mentioned that no objection of and type whatever to the sanction was raised in the High Court though the hearing of the appeal lasted for several days. Moreover, there can be little doubt that the operative effect of the first sanction, viz., to remove a bar to the prosecution as well as to the taking of cognizance by the trial Court, was not affected by the purported cancellation. The sanction was not void ab initio, since the failure to mention facts therein could be remedied and no warrant can be found for the belief that the relevant power extends also to the withdrawal of a prosecution launched thereunder or to depriving a Court of jurisdiction which it has commenced to exercise, by a mere cancellation of a sanction already issued. We consider that the issue of the second sanction, coupled with cancellation of the first, must be understood as amending or amplyfying the first sanction, and that the resultant effect is, in material respects, no different from that which the production of 'extraneous evidence' might have brought about." The learned counsel for the respondent maintained that these observations of the learned Chief justice indicate that if the sanction is not void ab initio, then if the Court exercises jurisdiction thereunder, such proceedings are not void. He urged that the sanction in the present case was also not void ab initio although it was later found to be invalid. After giving due consideration to this aspect of the case, I have arrived at the conclusion that the argument of the learned counsel is without any substance. The learned Chief Justice of Pakistan was dealing with the sanction which was not void ab initio and it was held that if the objection to its validity on the ground that it did not show on its face that the facts had been placed before the sanctioning authority, had been taken in the trial Court, it would have been easily met by the production of a single witness. It was further held by his Lordship that no warrant could be found for the belief that the relevant power extended also to the withdrawal of a prosecution launched thereunder or to depriving a Court of jurisdiction which it had commenced to exercise by a mere cancellation of a sanction already issued. As I understand, it, the principle enunciated in this ruling only means that if the objection to the validity of a sanction can be met by the production of extraneous evidence, then the proceedings taken on the basis of such a sanction are not invalidated, but it does not follow that if the sanction is altogether invalid then also the proceedings taken on such an invalid sanction are valid. His Lordship did not deal in that case with the consequences of a sanction order which is later found to be invalid. As such, I do not think there is any foundation for the argument that the proceedings taken on the basis of a sanction, which was later found to be invalid, were not void. The specific point raised on behalf of the respondent is concluded by the authoritative pronouncement of their Lordships of the Privy Council in Yusofalli Mulla Noorbhoy v. The King (AIR1949PC 264=PLD1949PC108). In that case the facts were that the accused was tried by the Presidency Magistrate under section 13 subsection (1) of the Hoarding and Profiteering Prevention Ordinance (XXXV of 1943). Section 14 of the Ordinance provided that :‑ "No prosecution for any offence punishable under this Ordinance shall be instituted except with the previous sanction of the Central or Provincial Government or of an officer not below the rank in a Presidency town of a Deputy Commissioner of Police, or elsewhere of a District Magis?trate empowered by the Central or the Provincial Govern?ment to grant such sanction." Sanction to the prosecution of the accused in that case had been granted by the Controller General of Supplies: The prosecution evidence was recorded, charges were framed and thereafter the accused was acquitted on the ground of the invalidity of the sanction. Thereafter fresh sanction was obtained from the competent authority and fresh prosecu?tion was instituted against the accused for the same offence and on the same facts as in the former prosecution. The learned Magistrate acquitted the accused holding that the fresh prosecution was barred under section 403 of the Code of Criminal Procedure. On appeal by the Government, the High Court set aside the order of acquittal and remanded the case for disposal in accordance with law. Against this decision, the arc‑used filed an appeal by special leave before the Privy Council and Sir John Beaumont, who delivered the judgment of the Board, while dealing with this question, observed as follows:‑-- "Mr. Page for the appellant urged various grounds against the decision under appeal. His first contention was, that the expressions "Court of competent jurisdiction" in section 403 (1) and "Court . . . . . not competent to try the offence" in section 403 (4) refer to a Court competent to try the class of cases in which the particular offence falls, and do not involve that the Court must be competent to try the particular case. In their Lordships' view this argument is untenable. The whole basis of section 403 (1) is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal. If the Court was not so competent it is irrelevant that it would have been competent to try other cases of the same class, or indeed the case against the particular accused in different circumstances, for example if a sanction had been obtained. This case fell under section 403 (1) and the terms of section 403 (4) do not call for discussion." While dealing with the contention that the learned Magistrate did not adjudicate on the validity of the sanction, His Lordship observed as follows :‑ "But this is not what happened. It is clear, as already noted, that the learned Magistrate himself considered the decision in Criminal Revision Application 191 of 1945: Purshottam Harjivan Shah v. Emperor (A I R 1946 Bom. 492: 47 Cr. L J 900) and came to the conclusion, on the basis of that decision, that the sanction was bad, and the prosecution incompetent. This conclusion was clearly right, whether or not the Magistrate correctly appreciated the grounds on which the decision of the High Court was based. Having reached that conclusion, the learned Magistrate ought to have discharged the accused on the ground that he had no jurisdiction to try him. The orders of acquittal were passed without jurisdiction, and could only operate as orders of discharge." His Lordship further observed:‑

"A Court cannot be competent to hear and determine a prosecution the institution of which is prohibited by law and section 14 prohibits the institution of a prosecution in the absence of a proper sanction. The learned Magistrate was no doubt competent to decide whether he had jurisdic?tion to entertain the prosecution and for that purpose to determine whether a valid sanction had been given, but as soon as he decided that no valid sanction had been given the Court became incompetent to proceed with the matter." Dealing with the contention that as the order of acquittal passed by the learned Magistrate in the first prosecution was not appealed from, that became binding on the expiration of the period of limitation for appeal against acquittal, his Lordship observed :‑ This is merely to regard another aspect of the same problem. If the orders of acquittal were passed by a Court of competent jurisdiction, though wrongly, they would be binding unless set aside in appeal. But if the orders were a nullity there was nothing to appeal against. It may well be that the Government, if embarrassed by the orders of acquittal, might have applied to the High Court to quash them, and in this connection reference may be made to the decision of the House of Lords in Crane v. Director of Public Prosecutions ((1921)2AC299:(90LJK‑B1160)). But the omission of Government to take such a step, which was not incumbent, could not convert an order made without jurisdiction into an order passed by a Court of competent jurisdiction." From the above discussion, it will be clear that the bar of a fresh trial under section 403 of the Code of Criminal. Procedure applies only if the Court which had held the first trial was a Court not only qualified to try the offence generally, but was also competent to try the accused for the offence, in that particular case. The rule of law laid down by their Lordships of the Privy Council in the above‑quoted ruling is fully applicable to the facts of the present case. It, therefore, follows that the; Special judge was not competent to try the respondent on the basis of an invalid sanction and, therefore, the proceedings taken by him were void ab initio. Under the circumstances; the accused cannot be deemed to have been tried by a Court: of competent jurisdiction within the meaning of section 403 of the Code of Criminal Procedure. It was not a trial at all in the eye of law and the order of acquittal was passed without jurisdiction and was a nullity. For the aforesaid reasons, I hold that section 403 of the Code of Criminal Procedure is no bar to the fresh trial of the respondent for the same offence and on the same facts as in the former prosecution. Accordingly, I accept this revision petition, set aside the order of the Special judge dated the 14th of September 1956 and remit the case to the Court concerned for disposal in accordance with law. A.H.???????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.