P L D 1958 Dacca 569 (PLP)

D. C. Roy with S. K. Basu for Appellant. A. Hye Chowdhury for the State. RAHMAN, J.__ This appeal is directed against the conviction of the appellant under section 409 of the Pakistan Penal Code by the Special Judge Pabna. The learned Judge has sentenced him to suffer rigorous imprisonment for one year as also to pay a fine of Rs. 600 or in default to suffer rigorous imprisonment for six months more. He has also directed that, if the fine is realised, the sum of Rs. 550 is to be paid to the Mafizuddin Market Committee Fund.

2. The appellant who was a clerk of the Pabna Collectorate at the relevant time was accused of having, by way of his office as a clerk of the Relief and Rehabilitation Department of the said Collectorate, received a sum of Rs. 3,300 in three instalments in respect of an auction bid for an ijara of a market but to have dishonestly misappropriated therefrom a sum of Rs. 550.

3. In view, however, of the point taken as to the jurisdiction of the learned Special Judge and the validity of the entire trial, it is neither necessary nor advisable for us at this stage to enter into the facts of this case.

4. Mr. Dinesh Chandra Roy appearing 'n behalf of the appellant has drawn our attention to the fact that although the appellant was produced before the learned Special Judge on the 14th of November 1955, and various proceedings were taken thereafter with regard to the granting of bail to him by the said Special Judge, as also for obtaining the necessary sanction of the appropriate Government for his prosecution, the sanction was not filed in Court even on the 23rd of April 1956, when the Public Prosecutor ultimately submitted a charge‑sheet against the appellant. On the next date, namely, the 17th of May 1956, again no sanction for the prosecution was filed by the Public Prosecutor but a further adjournment was taken for production of the sanction and of the other connected documents. The appellant was also directed to furnish his list of defence witnesses. Then on the next date, namely, the 2nd of June 1956, the sanction was ultimately filed in Court. The learned Special Judge purported to record in the order‑sheet on the said date "Sanction received. Cognizance taken. Fix 9th and 10th July 1956, for hearing, etc".

5. In these circumstances, Mr. Roy has argued that the prosecution commenced, at any rate, from the time when the charge‑sheet was exhibited and if at that time no previous sanction was filed as required by subsection (5) of section 5 of the Criminal Law Amendment Act, 1948, as further amended from time to time, the whole trial was null and void and the conviction and sentence based upon such a null and void trial cannot be maintained. In support of this contention, he has placed reliance on a decision of myself, sitting singly, in the case of Jahirul Huq Khan v. The State (9 DLR 109). In that case it was held that prosecution includes the initiation or commencement of a criminal proceeding and begins when a formal charge is exhibited against A the offender and it was further held, relying upon the decision of the Federal Court of British India in the case of Basdeo Agarwalla v. Emperor (AIR 1945 FC 16) and Suraj Parkash v. Emperor (A I R 1945 F C 24) that if a previous sanction is necessary for the initiation of prosecution, then a prosecution initiated without such sanction is entirely null and void and the obtaining of such sanction during the pendency of such proceeding does not cure the defect of the proceeding.

6. In the present case, although the learned Judge ha; purported to say that he took cognizance on the 2nd of June 1956, it appears that he actually took cognizance before than and when the charge sheet was exhibited, he fixed the date for further hearing of the case and on that date he asked the accused to furnish the list of defence witnesses, This he could not have done unless he had taken cog?nizance of the case. It cannot, therefore, be disputed that the prosecution in this case commenced without the requisite sanction and cognizance was taken by the learned Special Judge long before the 2nd of June 1956.

7. The learned Advocate appearing for the State has drawn our attention to the fact that although in this case the sanction was not filed until the 2nd of June 1956, it appears that the District Officer of Pabna actually signed the sanction on the 3rd of April 1956, and. therefore, when the charge‑sheet was exhibited there was a sanction in existence although it may not have been filet in Court and the Court may have been aware of it. In our opinion, the mere fact of the sanction having come into existence on an earlier date is not sufficient because it is a' thing required by a Court to vest it with jurisdiction to hear a case. It is necessary, therefore, that it must be before the Court before it actually takes cognizance of a case and begins to take proceedings in it; otherwise, the entire object of having such a sanction may well be defeated. The sanction has to be formally proved in the case and is a condition precedent to the initiation of the prosecution case. The mere bringing into existence of is sanction without filing it in Court, in our opinion, is of no avail., This view of ours also appears to have support from another decision of a Division Bench of this Court in the case of Sk. Anwar Ali v. Crown (1 D L R 176), where .Ellis and Ispahani, JJ. held that under section 6 of Act Il of 1947, where also previous sanction was necessary in respect of an offence punishable under section 161 of the Pakistan Penal Code, the filing of a sanction after the conviction of the accused in that case but during the pendency of the appeal filed by him before the Sessions Judge against the said conviction was considered insufficient, even though the sanction was actually said to have been given on the 27th of February 1948, and the charge‑sheet exhibited on the 8th of March 1948. It is true that the facts of that case disclosed inordinate delay in the filing of the sanction but nevertheless the ratio decidendi of that decision appears to have been that since the Magistrate took cognizance of the offence at a time when he did not have in his hand the previous sanction necessary for the prosecution, the trial was null and void. In the present case, `too, although the sanction may have come into existence on the files of Government on the 3rd of April 1956, it was not filed in Court until the 2nd of June 1956, and the Court took cogni?zance of the offence at the latest on the 23rd of April 1956, when the charge‑sheet was exhibited before it, without having in its hand the necessary previous sanction. The proceeding, therefore, was wholly null and void and, as such, the conviction cannot be maintained.

8. In the result, this appeal is allowed and the conviction and sentence of the appellant are set aside as being wholly without jurisdiction. We direct that the appellant be now discharged from his bail bond. It will, of course, be open to the Government, if they still consider it necessary, to re‑prosecute him with a proper sanction. CHAKRABORTI, J.‑I agree. Appeal allowed.