P L D 1957 Supreme Court (India) 406 (PLP)

S. K. DAS, J.‑

These two petitions for the issue of appro priate writs restraining the respondents from prosecuting and trying the two petitioners on certain criminal charges in circumstances to be presently stated, raise the same question of law and have been heard together. This judgment will govern them both. Baij Nath Prasad Tripathi, petitioner in petition No. 115 of 1956, was a Sub‑Inspector of Police in the then State of Bhopal. He was prosecuted in the Court of Shri B. K. Puranik Special Judge, Bhopal, and convicted of offences under section 161, I. P. C., and section 5 of the Prevention of Corrup tion Act, 1947. He was sentenced to nine months' rigorous imprisonment on each count. He preferred an appeal against the conviction and sentences to the Judicial Commissioner of Bhopal. The Judicial Commissioner held by his judgment dated 7th March 1956, that no sanction according to law had been given for the prosecution of the petitioner and the Special Judge had no jurisdiction to take cognizance of the case; the trial was accordingly ab initio invalid and liable to be quashed. He accordingly set aside the conviction and quashed the entire proceedings before the Special Judge. He then observed: "The parties would thus be relegated to the position as if no legal charge‑sheet had been submitted against the appellant". On 4th April 1956, the Chief Commissioner of Bhopal passed an order under section 7 (2) of the Criminal Law Amendment Act, 1952 (XLVI of 1952) that the petitioner shall be tried by Shri S. N. Shrivastava, Special Judge, Bhopal, for certain offences under the Prevention of Corruption Act read with section 161,

1. P. C. The case of the petitioner is that he cannot be prosecuted and tried again for the same offences under the aforesaid order of 4th April 1956. Sudhakar Dube, petitioner in Petition No. 132 of 1956, was also a Sub‑Inspector of Police in the then State of Bhopal. He was also prosecuted in the Court of Shri B. K. Puranik, Special Judge, Bhopal, on a charge of having accepted illegal gratifica tion for showing official favour to one Panna Lal. The learned Special Judge by an order dated 10th January 1956, came to the conclusion that no legal sanction for the prosecution of the petitioner had been given by the competent authority and the sanction given by the Inspector‑General of Police was not valid in law; he therefore held that the whole trial was null and void and he could not take cognizance of the offences in question. Accordingly he quashed the proceedings. On 7th February 1956, the Chief Secretary to the Government of Bhopal accorded fresh sanction for the prosecution of the peti tioner for offences under section 161, I. P. C., and section 5 of the Prevention of Corruption Act. The petitioner then moved this Court for appropriate writs restraining the respon dents from prosecuting and trying him for the offences stated in the fresh sanction aforesaid. On behalf of both the petitioners the contention is that by reason of clause (2) of Article 20 of the Constitution and section 403 of the Code of Criminal Procedure, the petitioners cannot now be tried for the offences in question. It is necessary to read here some of the relevant sections bearing on the point at issue. Section 6 of the Criminal Law Amendment Act, 1952 (prior to the amendment made in 1955), so far as is relevant for our purpose, as in these terms:‑ "6. (1) The State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas as may be specified in the notification to try the following offences, namely:‑ (a) an offence punishable under section 161, section 165, or section 165‑A of the I. P. C. (Act XLV of 1860), or subsec tion (2) of section 5 of the Prevention of Corruption Act, 1947 (11 of 1947): (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a)". Subsection (1) of section 7 of the same Act lays down‑ "7. (1) Notwithstanding anything contained in the Code of Criminal Procedure 1898 (Act V of 1898) or in any other law the offences specified in subsection (1) of section 6 shall be triable by Special Judges only". The same section also states that when trying any case, a special Judge may also try any offence other than an offence specified in section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial. It is not necessary for our purpose to read the other sections of the Criminal Law Amendment Act, 1952. We then go to the Prevention of Corruption Act, 1947, section 6 whereof is relevant for our purpose. That section is in these terms:‑-- "6. (1) No Court shall take cognizance of an offence punishable under section 161 or section 165 of the

1. 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 Union and is not removable from his office save by or with the sanction of the Central Government (of the) Central Government; (b) in the case of a person who is employed in connection with the affairs of (a State) and is not removable from his office save by or with the sanction of the State Government, (of the) State Government; (c) in the case of ally other person, of the authority com petent to remove him from his office. (2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under subsec tion (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed." It is under this section that sanction was necessary for the prosecution of the petitioners. Clause (2) of Article 20 of the Constitution, on which the petitioners rely, states :‑ "No person shall be prosecuted and punished for the same offence more than once." Section 403 (1) of the Code of Criminal Procedure, on which learned counsel for the petitioners has placed the greatest reliance, is in these terms :‑ "A person who has once been tried by a Court of compe tent 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 a 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." Now, it is necessary to state that, the point taken by learned counsel for the petitioners is really concluded by three decisions‑(a) one of the Privy Council, (b) another of the Federal Court and (c) the third of this Court itself. The Privy Council decision is in Yusofalli Mulla v. The King (AIR 1949 P C 264), the Federal Court decision in Basdeo Agarwalla v. King Emperor (1945 F C R 93) and the decision of this Court (not yet reported) was given in Budha Mal v. Slate of Delhi (Cr. A No. 17 of 1952, dated 3‑10‑1952). The Privy Council decision is directly in point, and it was there held that the whole basis of section 403 (1) was 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, as for example where the required sanction for the prosecution was not obtained, it was irrelevant that it was competent to try other cases of the same class or indeed the case against the particular accused in different circumstan ces, for example if a sanction had been obtained. So is the decision of this Court where the following observations were made with regard to the point in question:-- "Section 403, Criminal P. C., applies to cases where the acquittal order has been made by a Court of competent jurisdiction but it does not bar a retrial of the accused in cases where such an order has been made be Court which had no jurisdiction to take cognizance of the case. It is quite apparent on this record that in the absence of a valid sanction the trial of the appellant in the first instance was by a Magistrate who had no jurisdiction to try him." After the pronouncements made in the decisions referred to above, it is really unnecessary to embark on a further or fuller discussion of the point raised, except merely to state that we have heard learned counsel for the petitioners who made a vain attempt with a crusading pertinacity worthy of a better cause, to show that the Privy Council decision was wrong and the decision of this Court required reconsideration, and having heard learned counsel in full, we are of the view that the decisions referred to above state the legal position correctly. It is clear beyond any doubt that clause (2) of Article 20 of the Constitution has application in these two cases. The petitioners are not being prosecuted and punished for the same offence more than once, the earlier proceedings having been held to be null and void. With regard to sec tion 403, Code of Criminal Procedure, it is enough to state that the petitioners were not tried, in the earlier proceedings, by a Court of competent jurisdiction, nor is there any conviction or acquittal in force within the meaning of section 403 (1) of the Code, to stand as a bar against their trial for the same offences. Learned counsel for the petitioners invited our attention to sections 190, 191, 192, 529 and 530 of the Code of Criminal Procedure and submitted that in certain circumstan ces the Code drew a distinction between `jurisdiction' and `taking cognizance'. The whole fabric of the argument of learned counsel was founded on this distinction. Assuming, however, that in certain cases one Magistrate may take cogni zance and another Magistrate may try an accused person, it is difficult to appreciate how any Court can try the petitioners of these cases in the absence of a sanction in view of the mandatory provisions of section 6 of the Prevention of Corrup tion Act, 1947. If no Court can take cognizance of the offences in question without a legal sanction, it is obvious that no Court can be said to be a Court of competent jurisdiction to try those offences and that any trial in the absence of such sanction must be null and void, and the sections of the Code on which learned counsel for the petitioners relied have really no bearing on the matter. Section 530 of the Code is really against the contention of learned counsel, for it states, inter alia, that if any Magistrate not being empowered by law to try an offender, tries him, then the proceedings shall be void. Section 529 (e) is merely an exception in the matter of taking cognizance of an offence under section 190, subsection (1), clauses (a) and (b); it has no bearing in a case where sanction is necessary and no sanction in accordance with law has been obtained. As part of his arguments, learned counsel for the peti tioners referred to certain observations made by Braund, J. in a decision of the Allahabad High Court, Basdeo Emperor (A I R 1945 All. 340), where the learned Judge drew a distinction between `taking cognizance' and `jurisdiction'. The distinction was drawn in a case where a Magistrate duly empowered to commit cases to the Sessions Court committed an accused person to the Court of session in disregard of the provisions of section 254 of the Code of Criminal Procedure, and the question was whether the irregularity so committed rendered the Sessions Court incompetent to try the case. The facts there were entirely different from the facts of the present cases and there was no occasion nor necessity for considering such mandatory provi sions as are contained in section 6 of the Prevention of Corruption Act. We do not think that the observations made in that case can be pressed in service in support of the argument of learned counsel for the petitioners in these cases, treating those observations as though they laid down any abstract propositions of law not dependent on the context of the facts in connection with which they were made. Out of deference to learned counsel for the petitioners, we have indicated and considered very briefly the arguments advanced before us. As we have said before, the point is really concluded by decisions of the highest tribunal, decisions which correctly lay down the law. The result therefore is that these petitions are devoid of all merit and must be dismissed. K. B. A. Petitions dismissed.