P L D 1954 Lahore 37 (PLP)

S. A. RAHMAN, J.‑Tufail Muhammad petitioner was tried under section 161, P. P. C. read with section 5 of the Preven tion of Corruption Act, 1947, by the Additional District Magistrate, Multan. He was found guilty and sentenced to eighteen months' rigorous imprisonment together with a fine of Rs. 500 or in default three months' rigorous imprisonment further. He appealed unsuccessfully to the learned Sessions Judge, Multan. A revision petition has been filed in this Court on behalf of the convict. The petitioner was serving under the Punjab Government as a Cotton Inspector at Multan. It was alleged that on the 4th of July 1952, in the course of his duties, the petitioner had visited the shop of Bashir Ahmad P. W. and discovered that he had in stock 39 bags of black cotton seed in contravention of the Punjab Cotton Control Act, 1949 (hereinafter referred to as the Act). Tufail Muhammad issued him a notice to show cause why action should not be taken against him under rule 21 (1) framed under the Act. Bashir Ahmad had an interview with the Inspector and it is alleged that on his demand, he promised to pay him Rs. 400 by way of illegal gratification for not taking any action against him. Bashir Ahmad then contacted the police and raiding parry was organized so as to catch the Inspector red‑handed while accepting illegal gratification. Bashir Ahmad was sent ahead to the house of the Cotton Inspector while a Magistrate, a Sub -inspector and some others waited near a Tonga Stand in the Multan Cantonment. On a pre‑arranged signal being given by Bashir Ahmad, the house of the petitioner was raided and four marked‑currency notes of the value of Rs. 400 were recovered from a copy book lying on a mantel‑piece. The accused when questioned by the Magistrate on arrival had denied that he had taken any bribe. On these facts the petitioner was prosecuted. By virtue of the provisions of section 6 of the Prevention of Corruption Act, 1947, the petitioner could not have been prosecuted for the alleged offence unless previous sanction had been obtained for the prosecution from the prescribed authority. Mr. Muhammad Ali on behalf of the petitioner has raised the contention that no such sanction was proved in the course of the evidence in this case and that in fact no proper sanction had been obtained prior to the prosecution. On referring to the record it was found that there was an order of sanction purporting to have been signed by the Director of Agriculture. Mr. Mahmud Ali argued that even if the Director of Agriculture had sanctioned this prosecution, it was bad in law as the case of the petitioner fell within the purview of clause (b) of section 6 of the Prevention of Corrup tion Act and the sanction should have been accorded by the Provincial Government and not by the Director of Agricul ture. As this was a legal objection which had not been raised in the trial Court or in the lower appellate Court, Mr. S. A. Mahmud on behalf of the Crown asked for time to ascertain the exact position in respect of the petitioner's appointment. On the adjourned hearing it was stated on behalf of the Crown that the order of appointment had in fact been passed in the case of the petitioner by the Director of Agriculture and not by the Provincial Government. Mr. Mahmud Ali invited my attention to section 8 of the Act, which so far as relevant lays down as follows :‑ "The Government may, by notification, appoint such person as it thinks fit, to be Inspectors for the purposes of this Act, within such local limits as may be assigned to them respectively. Inspectors so appointed shall be deemed for all purposes to be public servants within the meaning of section 21 of the Indian Penal Code". As the position with regard to the appointment of the peti tioner was somewhat obscure, it was considered necessary in the interest of justice to examine the Director of Agriculture and an Under Secretary to the Government in the Punjab Agriculture Department as witnesses in this Court. Their evidence has made it clear that the Government empowered the Director of Agriculture to act as the appointing authority for Cotton Inspectors by means of a letter dated the 22nd of March 1950, vide copy Exh. H. P. W. 1/2. The Director of Agriculture was authorised further to address the Public Service Commission in respect of their recruitment, direct. On the authority of this letter, the appointment of Mr. Tufail Muhammad Chaudhri, the petitioner, was apparently made by the Director of Agriculture himself, by order dated the 26th of February 1951. (See copy marked H. P. W. 1/3). It seems to have been lost sight of, that under the Act, the appoint ment could only have been made by notification under orders of Government. Notification in this context means notification in the Official Gazette published under proper authority by virtue of section 2 (36) of the Punjab General Clauses Act. The Director of Agriculture could not act as the appointing authority unless that function had been delegated to this officer by Government under section 7 of the Act and that also by a notification. It is conceded on behalf of the Government e that no such notification was issued, delegating powers of Government in respect of the appointment of Cotton Inspec tors to the Director of Agriculture. The inference is, therefore clear that the appointment of the petitioner by the Director of Agriculture, though it purported to have been made under the Act, cannot be regarded as one made in pursuance of the provisions of the Act. As was observed by the Privy Council in Nazir Ahmad v. King Emperor (AIR 1936 PC 253), if a statute provides a particular mode for the doing of an act, it has to be done in the prescribed manner or not at all. In Emperor v. Vimlabai Deshpande (AIR 1946 PC 123), it was laid down that if an order passed is invalid under a statutory rule, it cannot be said to have been made in exercise of a power conferred by the relevant statute. The mere fact that the petitioner was assigned the same duties and performed the same functions as other Cotton Inspectors who had been duly appointed under the Act, would not make the appointment a statutory one. On the facts it is clear that the appointment of the petitioner was not made by the Provincial Government but by the Director of Agriculture. At the same time it is obvious that the petitioner was note employed as a private servant by the Director of Agriculture. He was assigned certain duties as a Government servant on the assumption that his appointment was valid under the Act. Those duties were, in fact, identical with the duties of other Cotton Inspectors duly appointed under the Act. The petitioner would, be covered in my opinion, by the 8th and 9th clauses of section 21, P. P. C. and he would, therefore, be a "public servant". The question that falls for determination then is which was the competent authority to accord sanction for his prosecution. Clause (b) of section 6 of the Prevention of Corruption Act, 1947 would only be attracted to the case of a person who is not removable from his office save by or with the sanction of the Provincial Government or some higher authority. The petitioner's case does not obviously fall within the purview of clause (a) of section 6, as that provision pertains to officers employed in connection with the affairs or the Federation. His case would, therefore, either fall under clause (b) or clause (c) of that section. Mr. Mahmud Ali contends that since Cotton Inspectors could only be appointed by the Provincial Government, they could not be removed by an authority lower than that Government. He ignores the fact that the petitioner's appointment was made not by the Pro vincial Government but by the Director of Agriculture, apparently without having been invested with legal authority to do so under the Act. On general principles, I do not see why the authority which was responsible for the appoint ment should not be able to order dismissal or removal from service of the person concerned. Section 14 of the Punjab General Clauses Act apparently embodies such a general principle when it lays down that the power to appoint includes the power to suspend and dismiss. The order of appointment in the‑ case of the petitioner was passed by the ‑Director of Agriculture without reference to the Provincial Government. I have no hesitation in holding, therefore, that, the Director of Agriculture could have removed the petitioner from .his appointment. His case, consequently, does not fall within clause (b) but is covered by clause (c) of section u of the Prevention of Corruption Act. It follows that the Director of Agriculture was competent to accord sanction, for prosecution of the petitioner who had in fact been appointed by him to a statutory post but not in the manner prescribed by the statute. The matter however does not rest there. Khan A. Rahman, the Director of Agriculture, in his statement in this Court made an unequivocal admission that he passed the order of sanction for prosecution, Exh. H. P. W. 1/4, on the trial Court's record in the present case, on the basis of a letter received from Mian Ghulam Haider, Superintendent Police, Multan, copy marked Exh. H. P. W. 1/5, along with which a draft sanction order was also forwarded. A copy of the draft order is Exh. H. P. W. 1/6. The order of sanction is admittedly a verbatim reproduction of this draft. It was further conceded that no other papers accompanied these two documents. Mr. Khan A. Rahman had not made any personal inquiries into the facts of the case, nor does it appear that on any previous occasion any papers bearing on the facts of the case, came up for consideration by the Director of Agricul ture. He, therefore, very frankly acknowledged that the sanction for prosecution was wholly and solely founded on the letter of the Superintendent of Police. In these cir cumstances, it is somewhat difficult to appreciate the claim of the Director of Agriculture that he was satisfied that the prosecution was necessary in the public interest. To me it seems that the learned Director of Agriculture accorded sanction for the prosecution in a mechanical fashion, without due consideration of the facts and circumstances of the case. A reference to Exh. H. P. W. 1/5 would show that the only facts mentioned therein are that Tufail Muhammad, Cotton Inspector, had, on the 17th of July 1951, at Multan Cantonment, received Rs.400 from Khwaja Bashir Ahmad as illegal gratification for showing him favour in the discharge of his official functions. It was mentioned that the investi gating officer had procured sufficient evidence on the basis of which a conviction under section 161, P. P. C. and section 5 of the Prevention of Corruption Act could be secured. It was added that a successful raid had been conducted in the case under the supervision of Rana Maqbul Ahmad, Magist rate. What favour was expected of the Cotton Inspector by Khwaja Bashir Ahmad as a consideration for the illegal gratification that had passed, was not at all specified. The `sufficient evidence" on which the investigating officer had come to a conclusion that there would be a case for conviction was also not disclosed. The very material circumstance that the money had been found not from the personal possession of the Cotton Inspector but from a book on the mantelpiece in a room of his house and that the .Cotton Inspector had denied the allegation of having received a bribe as soon as the Magistrate confronted him, was not adverted to. It cannot be said, therefore, by any stretch of interpretation that the material facts of the case were before the Director of Agriculture prior to his passing the order of. prosecution. Section 6 of the Prevention of Corruption Act, 1947 enacts that no Court shall take cognizance of an offence punishable under section 161 or section 165 of the Penal Code or under subsection (2) of section 5 of the Act alleged to have been committed by a public servant, except with the previous sanction of an authority not lower than the authority competent to remove him from office. The question that falls for determination is the meaning to be attached is the expression 'previous sanction'. Does it imply just an order of sanction to be passed by the prescribed authority taking on trust a report made to it by the investigating officer? I do not think that could have been the intention of the Legislature. If that were the position then it would be a mere act of supererogation to have the imprimature of the sanctioning authority added to the opinion of the investigating officer. What was obviously intended was that the sanc tioning authority should apply its mind to the facts and circumstances of the case and although, prima facie, some offence may be revealed by the evidence collected, the autho rity in question would not be bound to accord sanction for the prosecution unless it came to the conclusion that it would be expedient in the interest of justice to do so., Such a conclusion could only be arrived at, after all the material facts had been considered. It is clear that this has not been done in the present case and in my view, therefore, the pur ported sanction to prosecute was not in accordance with law. There is authority available for the view which I have taken decision directly in point is reported as Karim Bux v. Rex (A I R 1950 All. 494.) That is a post‑partition decision by a learned Single Judge of the Allahabad High Court. The prosecution was under section 164, P. P. C. and the provisions of section 6 of the Prevention of Corruption Act fell to be construed for the purpose of that case, and therefore the observations of the learned judge are pertinent to the present case. The accused in the reported case was a police constable and it was conceded that the sanction of the Superintendent of Police was necessary before the Court could take cognizance of the offence. It appears that the investigation in that case had been made on a report of the Superintendent of Police himself to the District Magistrate and later on the comple tion of the investigation, a charge‑sheet was submitted by the investigating officer to the Superintendent of Police who ordered that it may be sent to the proper Court through the Court Inspector. This order was relied on as an order of sanction to prosecute. It was held that this was not an order contemplated by the statute but was a mere routine order such as would have been normally passed by the Superinten dent of Police on any other charge‑sheet. The Court Inspector in charge of the case further appears to have asked for a more formal sanction of the Superintendent of Police for the prosecution, by a letter and the Superintendent Police then wrote the words "prosecution sanctioned" on that letter, during the pendency of the case. It was contended before the learned judge that section 6 of the Prevention of Corruption Act did not lay down any special form of sanc tion, that the Superintendent of Police knew all about the case at whose instance the investigation had been made and later on a charge‑sheet sent to the Court and, therefore, he should be deemed to have sanctioned the prosecution. The learned judge observed that sanction to prosecute a particular person implied first a full knowledge of the facts upon which it was sought to prosecute him and secondly, a deliberate decision of the sanctioning authority that he may be prosecuted These two things were necessary in the opinion of the learned judge to be proved before it could be said that a particular order amounted to a sanction for prosecution. It was added that it was necessary that the sanction should be given after all the facts had been collected against an accused so that the sanctioning authority had before it the materials upon which the prosecution was to be launched. It was found that the order of the Superintendent of Police directing that the charge‑sheet should be forwarded to the Court did not amount to a previous sanction as contemplated by section 6 of Act II of 1947 and that such sanction should be something more deliberate and for mal than a mere routine order passed on a charge‑sheet to the Court. The subsequent sanction was also held to be of no avail, In a parallel case reported as Gokalchand Dwarkadas Morarka v. King (AIR 1948 PC 82.) relating to a prosecution under clause 18 (2) of the Cotton Cloth and Yarn (Control) Order 1943 which required previous sanction of the Provincial Government or an officer not below the rank of a District Magistrate authorised by the Provincial Government in that behalf, the Privy Council observed as follows :‑ "Upon this state of the evidence, the respondent has argued that the view which has prevailed in the High Court of Bombay is wrong and that a sanction which names the person to be prosecuted and specifies the provision of the order which he is alleged to have contravened is a sufficient compliance with clause 23 of the said Order. In their Lordship's view in order to comply with the provisions of clause 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it consti tutes a condition precedent to the institution of the prosecu tion and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecu tion as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor in their Lordships' view is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of clause 23. The words of section 23 of that Order which prescribed pre vious sanction for the prosecution are in pari materia with those of section 6 of the Prevention of Corruption Act. The observations of their Lordships of the Privy Council, therefore, afford a valuable guide for authorities charged with the duty of sanctioning prosecution under the latter Act. In view of the above discussion I am constrained to hold that there was no valid sanction for the prosecution of the petitioner accorded in this case. As there has been no sanction such as is contemplated by law and which could confer juris diction on the Court take cognizance of the offence, the trial must be held to be vitiated and in fact no trial, in the eye of law. I therefore set aside the conviction and sentence of the petitioner and quash the proceedings of the Courts below, as without jurisdiction. A. H, Conviction set aside.