1968 P Cr (PLP)

Date of hearing : 23rd May 1967. The State is aggrieved with the order dated 11th November 1965, passed by the learned Special Judge‑cum‑Enquiry Officer, Hyderabad, discharging the respondent in the case pending against the latter under section 161, P. P. C. read with section 5 (2) of Act II of 1947.

2. On the 24th June 1964 the respondent was an Assistant Health Officer (Veterinary) of the Municipal Committee, Hyderabad and the prosecution case against him was that on the 25th June 1965 he had accepted Rs. 100, as illegal gratification from Hakim Ali Khan, Secretary of the Tonga Drivers, Union, Hyderabad. The amount originally demanded by the respondent was said to be Rs. 400, to give fitness certificate for horses to be examined at the Annual Tonga Inspection by the Municipal Committee but it was reduced to Rs.

100. On the 25th June 1965 a trap was arranged after Hakim Ali had complained to the Anti‑Corruption Inspector. Ten notes of ten rupees each were marked in the presence of a mashir and the respondent is alleged to have accepted the amount and later when intercepted the marked currency notes were found lying under a table, the contention being that after accepting them the respondent had covered them with his left hand and later slipped them over. The notes were secured and found to be the marked ones. The numbers on them tallied with those which had been given to y, Hakim Ali. After the usual investigation the respondent was 3 challaned and charge‑sheet was submitted before the learned Special Judge‑cum‑Enquiry Officer, Hyderabad, on the, 29th September 1965.

3. On the 4th October the learned Special Judge passe4 the following order: "Register the case. Issue summons against the accused for appearance". On 11th October 1965 a letter was addressed to the Chairman of the Municipal Committee, Hyderabad, as required under section 6 (5) of the Criminal Law (Amendment) Act, 1958 informing him that a charge‑sheet' had been filed against the respondent, that sanction for prosecution of the respondent be accorded or refused within 60 days after receipt of the letter failing which it would be presumed that sanction had been duly accorded. On the 3rd November 1965 the Chairman of the Municipal Committee addressed a letter to the Anti‑Corruption Officer with a copy to the learned Special Judge enclosing a copy of Resolution No. 847 dated 21‑10‑65 refusing sanction to prosecute the respondent and informing them Incidentally that Dr. Ursani has since resigned and his resignation is also accepted by the Municipal Committee in the sage Resolution. The Resolution stated that the complaint against the respondent had no support from important and reliable witnesses of the vardat and further "that the respondent lad tendered his resignation which had been accepted by the Municipal Committee and the Committee was of the view that in justice they did not consider it expedient that sanction to prosecute the respondent be granted in this case as well as in any other case against him". On receipt of this letter, the learned Special Judge passed the following order: "Since the sanctioning authority has refused to grant sanction for the prosecution the accused is discharged and the case disposed of accordingly". It is this order with which the State is aggrieved.

4. The learned counsel for the State has argued that after receipt of e challan the learned Judge not having read over the Rubkari to the respondent, prosecution of the respondent had not yet begun and the respondent not being a public servant on 11‑11‑65 the date of the impugned order no sanction for his prosecution was necessary. He has also argued on the stage when a prosecution in such circumstances can be said to start and urged that in a surnmons case as the instant one the prosecution starts when the Rubkari is read over to the accused and not when the summons ids ordered by the Court to issue in furtherance of the challan.

5. On the other hand, learned counsel for the respondent bas argued that by the issue of summons after receipt of challan the learned Special Judge had applied his judicial mind to the case and the proceedings can be said to be initiated by the order for the issue of summons and that in that respect cognizanace had been taken by the learned Special Judge and his order, therefore, in the circumstances was valid. It was also feebly argued by the defence that this revision was time‑barred, the impugned order having been passed on 11‑11‑65 and the revision 'application having been filed on the 19th April 1965. The last point can, however, be disposed of on the ground that under section 10 of the Act no period has been fixed for an appeal or a vision.

6. On the other two grounds raised by the counsel on either side following points fall for determination: (a) At what stage sanction for prosecution is necessary, (b) was the respondent a public servant on 11‑11‑65, if not, was sanction for his prosecution necessary. Reasons: (a) On perusal of the relevant law applicable to this case it is necessary first to examine section 6 of Act II of 1947 which states that no Court can take cognizance of an offence punishable under section 161 or 165, P. P. C. or under subsection (2) of section 5 of that Act, alleged to have been, committed by a public servant except with the previous sanction of the appropriate authority. The express implication is that in the absence of sanction even taking cognizance of the offence was hatred. A Court can only take cognizance by applying its mind to the facts which led to it either by way of a complaint or through a challan and it has been held by some Courts that even when Court records a statement under section 200, Cr. P. C. it is presumed to have taken cognizance of an offence as a Court does upon a police charge‑sheet presented to it when it can be said to pass a judicial order either for purposes of securing attendance of witnesses or of the accused. Section 6 was replaced by section 5 (5) of the Criminal Law (Amendment) Act, 1953 (XXXVII of 1953). The subsequent enactments, namely, Criminal Law (Amendment) Act, 1948 and Criminal Law (Amendment) Act, 1958 necessitated sanction for every prosecution of a public servant under these Acts. Now section 5 (5) of the Act states‑ "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), or in any other law previous sanction of the appropriate Government shall be required for any prosecution under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act." Section 6 (5) of the Pakistan Criminal Law (Amendment) Act, 1958, and the Proviso to it make out that although previous sanction of the appropriate Government is necessary for the prosecution of a public servant and such sanction is sufficient for prosecution of a Public servant for an offence triable under the Act and where the complaint or report referred to in subsection (1) of section 4 is not accompanied by sanction of such Government, the Special Judge shall on receipt of such a complaint or report immediately address a letter to the appropriate Government and if the required sanction is not received nor refused within sixty days of the receipt of the letter by the appropriate Government, sanction can be deemed to have been duly accorded. It has, therefore, been argued by the learned counsel for the State that sanction is only necessary where the prosecution of a public servant begins and that the wording of Cl. (5) of section 5 clearly make out that the prosecution can only be deemed to have begun after receipt of the complaint or the report, if (i) it is not accompanied by necessary sanction and (2) the period of sixty days has not elapsed after the address of the required letter. Consequently, it has also been argued that if Courts have taken certain preliminary steps such as ordering summons to issue for the securing of attendance of witnesses or the accused or granted bail to the accused or called upon him to furnish security for future attendance it could not in law be said that the prosecution of the case has started. I agree with this standpoint assumed by the State that on 11‑11‑65 when the impugned order was passed prosecution of the respondent had yet begun for by then only preliminary formalities had been gone through seeking permission to prosecution or its refusal before proceeding with the prosecution. I agree with the learned counsel for the State that the actual prosecution only can be said to start when the Rubkari or substance of accusation is read over to the accused the respondent in this case. (b) With regard to the second point (b) it is obvious on the basis of Resolution of the Municipal Committee passed on the 21st October 1965 that on 11‑11‑65 the date when the impugned order was passed the respondent had ceased to be a public servant his resignation having been accepted by a Resolution of that Committee and therefore no sanction for his prosecution was necessary not being the requirement of law for his prosecution on that date. Their Lordships of the Supreme Court have considered this aspect in Nazir Hussain Shah v. The State (PLD1965SC 139) taking into account their previous pronouncements and observed thus: "In view of the above observations we have re‑examined the question of the necessity of sanction in such cases. It seems to us that the language of the Explanation appended to subsection (5) of section 6 being clear and unambiguous it is not open to us to read into it a limitation which is not there by reference to extraneous circumstances." These observations were reiterated by their Lordships in Ataur Rehman v. The State (P L D 1967 S C 23) when considering the case of State v. Saeed Ahmad (P L D 1962 S C 277) when they held that: "The bar to prosecution contained in subsection (1) of section 6 of the Criminal Law (Amendment) Act would, therefore, on the plain meaning of the term "public servant" apply to only those persons who are public servants at the time when the Court' takes cognizance of the offence with which they are charged under the Act and not to persona who at the time of the alleged commission of the offence were such public servants. There is another aspect of the case. Under the Constitution all citizens are equal before law and entitled to equal protection of law (Fundamental Rights No. 15). The protection against prosecution without previous sanction of the appropriate Government conferred on public servants by the Criminal Law Amendment Act, XL of 1958, is discriminatory and a clog on the dispensation of justice. The provisions of subsection (5) of section 6 must, therefore, be narrowly construed and not given a wider weaning so as to include even those who at the time when the Court takes cognizance of an offence, allegedly committed by them, have ceased to be public servants."

7. For these reasons, I hold that the revision filed by the State must be allowed and in consequence of which I order the re‑trial of the respondent which is a necessity in law. Petition allowed.