P L D 1961 Dacca 565 (PLP)

12. The second point urged is that the trial is illegal as there was no valid sanction for prosecution of the appellant. It was argued that as neither the sanction itself shows that the sanctioning authority gave the sanction in respect of the facts constituting the offence charged nor there is evidence to show that the facts constituting the offence were placed before the sanctioning authority, the sanction is invalid. In support of this contention reference was made to the case of Gokalchand Dwarkadas Morarka v. The King (PLD 1948 PC 11). That was a case in which the accused was convicted of an offence under clause 18 (2) of the Cotton Cloth and Yarn (Control), Order, 1943. Section 23 of that Order requires sanction for prosecu tion for contravention of any of the provisions of the order. While allowing the appeal their Lordships of the Judicial Com mittee held that a sanction which simply names a person to be prosecuted and specifies the provision of the Order which he is alleged to have contravened is not a sufficient compliance with clause

23. It was held that in order to comply with the provisions of clause 23 it must be proved that sanction was given in respect of the facts constituting the offence charged are not so on the face of the sanction, the prosecution must prove by extraneous facts that facts were proved before the sanctioning authority. But the facts of the present case are distinguishable from the facts of the above mentioned case. The sanction in the above mentioned case is in the following terms : ‑ "Sanction to prosecute. (Signed) H. N. G. Cotton Cloth and Yarn (Control) Order, 1943. Contravention of the provisions Prosecutions for

Government of Bombay Finance Department (Supply) Resolution No.

518. Bombay Castle, 5th January, 1945. Endorsement from the District Magistrate, Sholapur, No. XIX/4500, dated 8th November 1944. Resolution :‑Government is pleased to accord sanction under clause 23, Cotton Cloth and Yarn (Control) Order, 1943; to the prosecution of Mr. Gokulchand Dwarkadas Morarka for breach of the provisions of clause 18 (2). of the said Order. By Order of the Government of Bombay, (Signed). Deputy Secretary, to Government, Bombay." But the sanction order given in this case is in ‑the following terms:‑ "SANCTION FORM Whereas from the reports available before me in connection with Brahmanbaria P. S. Case No. 27 dated 18‑8‑57 it appears that there‑ are sufficient materials to suggest that constable No. 226 Jainullah and constable No. 169 Gazi Julfiqar of Brahmanbaria P. S., have committed an offence under section 161/342, P. P. C., and Section 5 of Act II of 1947. Now, therefore, in exercise of the power conferred upon me. I do hereby accord‑ sanction for the prosecution of constable No. 226 Jainullah and constable No. 169 Gazi Julfiqar (at present under suspension) for the said offence under section 161/342, P. P. C., and section 5 of Act II of 1947. (Sd.) Illegible. 18‑3‑58. (Syed Mannan Baksh). Superintendent of Poliae, Tippera, Comilla." In the case of Gokulchand Dtvarkadas Mdrarka v. The King, the sanction merely specified the accused as the person to be prosecuted and the clause of the order which he is alleged to have' contravened. But in the sanction Exh. 8 quoted above there is mention of this fact that the materials to suggest that the accused constables committed an offence under section 161/342 of the Pakistan Penal Code and under section 5 of Act II of 1947 were before the sanctioning authority. So, the sanction in the present case, besides specifying the name of accused and the offences alleged to have been committed by them, also made mention of the materials which suggested the commission of the offence. The mention of the words "* 4 * sufficient materials to suggest * * * *" in the sanction go to show that the facts constituting the offence were placed before the sanctioning authority and the sanctioning authority applied its mind to the facts before giving the decision for sanction.

13. The learned Advocate for the appellant has submitted that the evidence of P. W. 8 is merely to the effect that he obtained sanction from the Superintendent of Police and that as he did not state that the facts constituting the offence were reported to the Superintendent of Police, it cannot be held that the sanctioning authority had the facts constituting the offence before it. This contention has no force because it is mentioned in the sanction itself that from the report available before the sanctioning authority there were sufficient materials to suggest about the commission of the offences under section 161/342 of the Pakistan Penal Code and under section 5 of the Act II of 1947.

14. It was argued that there was no valid sanction as the sanctioning authority itself did not appreciate the materials constituting the offence and acted duly on the report of somebody else. This contention also cannot be accepted because in the' sanction it is mentioned that from the report available before the sanctioning authority it appeared that there were sufficient materials for giving sanction for prosecution of the accused. From the words in the sanction to the effect "* * * * * from the report available before me * * * * *" it appears that the sanctioning authority examined the report and on such examination found sufficient materials for giving sanction for prosecution oil the accused: If the words "from the reports available before me" were not there, then only the contention that the sanctioning authority did not itself, apply its mind to the materials constituting the offence would have some force. We hold that the facts constituting the offence were placed before the sanction ing authority and the sanctioning authority after, application of its mind to the facts gave the sanction. It also may be, noted here that the official acts carry the presumption that these are done with regularity. So, there is also the presump tion that the sanctioning authority gave the sanction after consideration of all the materials constituting the offence which were placed before it. We, therefore, hold that there was proper sanction in this case.

15. Defence case that the appellant was forced to accept Rs. 194 as illegal gratification out of fear is not supported by the evidence of any of the D. Ws. Moreover, they were not present at the time of the payment of the sum of Rs. 194 to the appellant. Further, defence case is improbable in itself. Had he been forced to accept the sum of Rs. 194 he would also be forced to release the man. Again, if men of the side of the accused had taken recourse to force the question of payment of illegal gratification would never arise.

16. There is no ground to interfere with the conviction and the sentence passed by the learned Special Judge. The appeal is accordingly, dismissed and the conviction and sentence of the appellant are upheld. We further direct that the appellant will now surrender to his bail bond forthwith to serve out the remainder of the sentence imposed upon him. HAMOODUR RAHMAN, J.--‑I agree. K. B. A. Appeal dismissed.