Gadhia Bhanuchandra Vallabhadas vs State

Shah, C.J.—The Appellant Bhanuchandra Vallabhdas Gadhia has been convicted by the Special Judge, Central Saurashtra Division of offences, u/s 161, Penal Code and Section 5(2), Prevention of Corruption Act of 1947 and sentenced for each of the offences to two years rigorous imprisonment and a fine of Rs. 1000/- in default three months further rigorous imprisonment.

He has also been convicted of the offence u/s 471, I.P.C. and sentenced to one year''s rigorous imprisonment, and u/s 426, I.P.C. and sentenced to one month''s rigorous imprisonment, all the sentences of imprisonment being ordered to run concurrently.

The Appellant was, at the material time, Senior Textile Inspector at Rajkot. One Jethalal Zever of Bhuj had purchased a quantity of cloth at Rajkot on or about 30-7-1951, and had taken the cloth to Navlakhi by rail for exporting it to Bhuj. However the cloth was detained at Navlakhi on 4th August by the ferry clerk Karsanji Patel on the ground that Jethalal had no export permit, and oh his report the Port Officer enquired into the matter and in the course thereof recorded Jethalal''s statement and also got two lists stating the value, the variety and the quantity of the cloth and persons from whom the cloth was purchased. That was on l''ith August, and the same day the Port Officer made a report to the Export-Import Trade Controller, Rajkot, forwarding with the report the two lists given by Jethalal and also Jethalal''s statement.

This report was received at Rajkot on the 14th and as the matter pertained to the office of the Textile Controller the papers were ordered to be sent to that office with a covering letter of the same day, but they were not.actually sent. 15th and 16th August were holidays. The accused, who was working in the office of the Textile Controller, himself went to the office of the Export-Import Trade Controller on the 17th and received the papers at about mid-day, but he retained them till the 20th on which date he handed them over in the office of the Textile Contrbller.

The prosecution case is that during this time the accused removed the two lists submitted by Jethalal at Navlakhi and replaced them by two new lists which are Exs. 7 and 8 in the case. On the 20th August the accused took the papers to the Assistant Textile Controller Mr. Mehta who forwarded them to one Mr. Dave for legal advice. The accused himself took the papers to Mr. Dave and after they were returned by Mr. Dave with his opinion on the 21st August, the accused submitted the same day a draft of the letter to be sent to the Port Officer, but no other action was taken on that day. Ultimately on the complaint filed by Khatao the son of Jethalal on 24th August the papers of the case were recovered from the table of the accused on the same day and handed over to the police. The accused was arrested the next 0ay and org. subsequently prosecuted.

The prosecution case is that Jethalal, having failed to get the cloth released at Navlakhi, came down to Rajkot on the 11th August and met one Ratilal Rugnath the next day and at Ratilal''s suggestion both of them approached the accused, who, on his part, suggested that they should go to Navlakhi and try to get the cloth released by bringing to bear influence on the Port Officer. Accordingly two taxis were hired in the afternoon of 12th August, in one of which the accused went ahead alone and he was followed in the other taxi by Jethalal, his son Chimanlal and Ratilal. They stopped on the way at Morvi and from there proceeded to Navlakhi. On the way to Navlakhi it is alleged that the accused demanded and was given Rs. 1150/- for spending at Navlakhi. They reached Navlakhi at night and the accused there saw one Kantilal, but Kantilal having said that he had no influence with the Port Officer all of them returned to Rajkot and on the way Jethalal having asked for the sum, the accused returned it.

On the 14th August Jethalal again requested Ratilal to approach the accused once again for the pux-pose of either releasing the cloth or getting an export permit, and this time, according to the prosecution, the accused demanded Rs. 5000/- as illegal gratification. Jethalal and'' his two sons Khatao and Chimanlal left for Bhuj to get the money and on the 17th noon Khatao and Chimanlal returned to Rajkot with the mofiey. Ratilal having met the accused thereafter, the accused raised the demand to Rs. 6000/-, but ultimately it was settled at Rs. 5700/-, and the accused then suggested that the two lists submitted by Jaithalal at Navlakhi will have to be replaced by new lists, .and these lists, which are Exs. 7 and 8, were then prepared by Khatao. Ratilal paid Rs. 5700/- to the accused on the 20th morning and! also gave the lists Exs. 7 and 8, and the prosecution alleges that the original lists were destroyed by the accused and in their place new lists were substituted.

On the 22nd August some Khatri merchants and Khatao, together with one Bawalal, who was an intermediary, approached the Chief Minister and complained to him about the accused taking illegai gratification from various merchants, and the Chief Minister, it is alleged advised them to get back as much sum as possible. Ratilal then approached the accused and got back Rs. 4700/- on the 23rd August and Khatao got back Rs. 200/- mctte in the morning of'' the 24th August. Ratilal having paid Rs. 4400/- to Khatao, according to Khatao, Rs. 950/- still remained with the accused and he filed a complaint in respect of this sum.

The accused and Ratilal were both sent up for their trial before the First Class Magistrate on charges of offences under Sections 161, 114, 201, Penal Code and Section 5(2), Prevention of Corruption Act, but on the Magistrate ceasing to have jurisdiction to hear the case, the case was transferred to the Court of the Special Judge, Ratilal was tendered a pardon and the case therefore proceeded against the accused alone.

On the evidence in the case, the learned Judge framed a charge against the accused on four counts, the first being in respect of the sum of Rs. 1150/- the accused being charged with having attempted to receive that sum as illegal gratifies ion and thereby committing an offence u/s 161, I.P.C. and Section 5(1)(d), Prevention of Corruption Act.

The charge on the second count related to the accused having committed an offence u/s 471, I.P.C. for having vised as genuine a forged document, namely, the lists Exs. 7 and 8, and u/s 428, I.P.C. for having destroyed the original lists. The third charge was in respect of Rs. 5700/-, the accused being charged with having committed to receive illegal gratification and thereby having committed offences u/s 161, I.P.C. and Section 5(1)(d), Prevention of Corruption Act.

The last charge was u/s 5(1)(a) and (d) in that the accused was habitually accepting illegal gratification. The accused denied having committed any of the offences and, in the view we are taking of this appeal, it is unnecessary to set out the particulars of the defence taken by the accused.

The learned Judge held that in the absence of independent corroboration it was not possible to find, that Rs. 1150/- were actually paid by Jethalal to the accused on the 12th but the accused did demand the sum and thereby attempted to obtain illegal gratification. The learned Judge reached a similar finding in respect of Rs. 5700/-, namely, that although for want of independent corroboration it could not be held that Rs. 5700/- were actually received by the accused, the circumstantial and other evidence in the case did prove that the accused had demanded this sum as a bribe on the 14th and thereafter on the 17th and 18th August, and it was, at any rate, promised to him- through Ratilal, and the accused had therefore committed an offence u/s 161, I.P.C. In. respect of both these sums, however, the learned Judge did not find that an offence u/s 5(1) i.d) was committed.

The learned Judge also held the offences under Sections 471 and 426, I.P.C. proved and finally he held, having regard to the pecuniary resources of the accused which were disproportionate to his known sources of income, that the accused should be presumed to be habitually receiving illegal gratification and the accused was therefore convicted of an offence u/s 5(1)(a), Prevention of Corruption Act.

Mr. Shukla for the Appellant has at the outset raised two points of law, The first being that, the charges framed by the learned Special Judge against the accused and the trial of the ..accused on these charges is not in accordance with the sanction given by the Chief Secretary to the Saurashtra Government and that the whole of the trial was therefore vitiated and became void.

The sanction, which is Ex. 101 in the case, is as follows:

No. HD/SPL/MA Home Department, Rajkot, dt, 25th Aug. 1951 Sanction for Prosecution.

Whereas Bhanuchandra Vallabhdas Gadhia, held the post of Textile Inspector, Rajkot on 19-3-51... And whereas it is alleged that, on 19-8-51 he has accepted lis. 5700/- by way of illegal gratification from one Jethalal Zaver of Cutch whose cloth was detained at port Navlakhi in the absence of a valid permit.

Now, therefore, in exercise of the powers conferred upon me by Section 6, Prevention of Corruption Act, 19-17, I,B.R. Patel, Chief Secretary, Government of Saurashtra, hereby accord sanction for the prosecution of Bhanuchandra V. Ghatlhia, Textile Inspector, Rajkot for the offences under Sections 161, 120-B, I.P.C. and 5(2), Prevention of Corruption Act 1947.

Sd. B.R. Patel, Chief Secretary, Government of Saurastra, Rajkot.

The sanction u/s 6, Prevention of Corruption Act, 1947 is a condition precedent to the taking of cognizance of an offence u/s 161, or Section 165, Penal Code or Section 5(2) of this Act, and it is under this section that the sanction has been granted. It is not disputed before us that the Chief Secretary was the competent authority to give the sanction, but it is urged that the sanction relates to the offence in respect of the sum of Rs. 5700/- only and that on this sanction the lower Court could not have taken cognizance of offences relating to the sum of Rs. 1150/- nor of the offence u/s 5(1)(a) in respect of the accused habitually receiving illegal gratification, and that the charges on counts Nos. 1 and 4 were therefore not warranted by the sanction, and that this renders the trial wholly illegal and void.

Mr. shukla also urged that sanction was necessary in respect of offences under Sections 471 and 426, I.P.C., but this part of the contention I will consider later.

Now reading the sanction, Ex. 101, there can be no doubt that it relates to the specific allegation in respect of the illegal gratification of Rs. 5700/- and it is in respect of this sum that the Chief Secretary has sanctioned the prosecution of the accused for offences u/s 161, I.P.C. and Section 5(2), Prevention of Corruption Act, apart from Section 120B, I.P.C. Section 5(2), Prevention of Corruption Act referred to in the sanction pertains to .the illegal gratification of this sum and by no stretch of reasoning can it be extended to the facts constituting the other two charges.

The attempt to receive Rs. 1150/- as illegal gratification on the 12th August is a distinct offence, and this is so notwithstanding the contention of the Advocate General that it was an act which was in the nature of a step in the process of the bribe taking for the purpose of either releasing or getting a permit for Jethalal''s cloth detained at Navlakhi. Therefore if the accused was to be prosecuted in respect of the offence in relation to Rs. 1150/- then evidently sanction for the same was essential. Similarly the offence of habitual bribe taking falling u/s 5(1)(a) of the Prevention of Corruption Act too was a distinct offence, much more distinct than the former one, and it had no relation to the incident of getting Jethalal''s cloth released or getting an export permit and receiving illegal gratification for the same, and in respect of this offence too sanction was absolutely necessary.

The learned Advocate General has urged that the fact that sanction has been given for prosecuting the accused u/s 5(2), Prevention of Corruption Act should suffice to cover cases of offences which might become punishable under the said section and that it was not necessary to state, what the learned Advocate General calls, the evidence constituting the offences. There can be no quarrel with the proposition that the sanction need not set out the evidence in proof of the offence, but the contention, as made, by the learned Advocate General is without substance altogether.

It is quite necessary that the sanction should relate the facts constituting the offence and for which the person is to be prosecuted, and this it must do in respect of all the offences for which he is to be prosecuted. It is not correct, as the learned Advocate General contends, that the fact of the principal offence, namely, the acceptance of Rs. 5700/- as illegal gratification has been stated in the sanction and that this should suffice because the oilier acts are merely facts constituting this particular offence. It is alleged that u/s 5(3) of the Act the evidence regarding the pecuniary resources or property of the accused which are disproportionate to his known sources of income may be adduced and it is suggested that this evidence may embrace the charge regarding Rs. 1150/- as well.

The rule of law laid down in Section 5(3) is a departure from the normal law of the land that no parson can be convicted on a mere presumption of his having committed an offence. The -normal rule of law is that an accused is presumed to be innocent until his guilt is established, and the onus of establishing the guilt is always on the prosecution. Under Sub-section (3), however, a presumption of criminal misconduct may be drawn if the accused person or any person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income for which resources the accused person cannot satisfactorily account, and unless the contrary is proved the presumption is that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction shall not be invalid by reason only that it is based solely on such presumption. No doubt evidence can be adduced under the Sub-section in respect of a specific charge under any of the clauses of Section 5(1), but in order that an accused can be tried on that specific charge a sanction has to be given at the, outset. The rule in Sub-section (3) has nothing to do with sanction and this contention of the learned Advocate General must therefore fail.

The fact remains that the sanction does not) cover the offence in respect of the sum of Rs. 1150/- nor the offence of habitual bribe taking falling u/s 5(a) of the Prevention of Corruption Act, and that being so, the learned Special Judge had no jurisdiction to take cognizance 6� these offences.

Mr. Shukla has cited - AIR 1948 82 (Privy Council) in support of his contention that the want of sanction renders the trial void and that it is not a mere irregularity curable u/s 537, Code of Criminal Procedure. There the sanction simply named the person to be prosecuted and the provisions of the order which he was alleged to have contravened, and it was held that the sanction was not a sufficient compliance of CI. 23, Cotton Cloth and Yarn (Control) Order (1943).

Their Lordships said:

The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution 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 prosecution as expedient. 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 Lordship''s view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of Clause 23. Under that clause sanction has to be given to a prosecution for the contravention of any of the provisions of the Order, A person could not be charged merely with the breach of a particular provision of the order; he must be charged with the commission of certain acts constitute a breach and, it is to that prosecution -that is, for having done acts which constitute a breach of the order that the sanction is required. In the present case, there is nothing on the face of the sanction, and no extraneous evidence, to show that the sanctioning authority knew the facts alleged to constitute a breach of the Order, and the sanction is invalid.

Now here the defect is really not one of stating the facts constituting the offence. The facts in so far as they relate to the sum of Rs. 5700/- are sufficiently stated. What is lacking is that the sanction does not relate to other offences at all. In fact the sanction relates to this particular offence and .none other and no question of the inadequacy of facts constituting those other offences therefore really arises in this case. Therefore the position, is that there is no sanction at all in respect of the charges on counts 1 and 4 of the charge, and the trial is therefore without jurisdiction.

The question then is whether the whole of the trial will be rendered void or it will be void only in respect of offences for which no sanction has been given.

This question was considered by the Bombay High Court in - The State Vs. Laldas and Others, . There accused No. 7, who was an Assistant Divisional Forest Officer and in respect of whom the sanction had been given, was tried along with other accused persons. The sanction for his prosecution related the facts and one of these was that in an enquiry which the said accused No. 7 had conducted, he had purposely suppressed the true facts, and had framed a panchnama that only 31 tree- had been cut though it has been specifically brought to his notice that the trees cut in that area were on a much larger scale. The charge framed against the said accused u/s 218, I.P.C. referred to as many" as eight documents consisting of the panchanama and its appendices and five other documents as having been falsely made by accused No. 7.

On the question of the effect of the infirmity introduced by the absence of the sanction in respect of some of the documents which were the subject matter of the charge the learned Judges observed that it is now well settled that if a public officer is tried without obtaining the sanction required u/s 197, the whole of the trial in respect of that offence was void, and, after referring to - AIR 1945 16 (Federal Court) and - ''Gokalchand Dwarkadas Morarka''s case (A)'' they held that the trial of accused No. 7 with regard to the offence u/s 218, Penal Code, in respect of all documents other''than the panchnama about 118 trees, sholly void. Mr. Jaghirdar for the accused thereupon contended that the defect in the sanction vitiated the trial of all the accused persons in respect of all the offences but the contention was not accepted, and it was held that if the trial of accused No. 7 in respect of the offence u/s 218 along with the trial of other charges is shown to have prejudiced the other accused or even accused No. 7 in respect of the charges framed against him, it would be a different matter.

The matter was thus one of prejudice and if prejudice was caused then the trial of the other accused persons would become void. ''A fortiori'' therefore the trial of accused No. 7 would become void if it caused any prejudice to him.

In - Emperor Vs. Rudragouda Rachangouda Patil, , accused No. 1, who was found to be a public servant, was charged with offences under Sections 466 and 409, Penal Code, and since sanction to prosecute was necessary u/s 197, Code of Criminal Procedure in respect of Section 466 and had not been obtained, it was held that the prosecution under that Section was illegal and in consequence the whole proceedings were vitiated and the trial of accused No. 1 in respect of Section 409 too was illegal; not only that but the trial of accused No. 2 was also held to be illegal and the convictions of both the accused were set aside.

The decisions relied upon by Sen J., who delivered the principal judgment of the Bench were examined by Gajendragadkar J., in - ''State v. Laldas (B)'', and, after going through these decisions, I agree entirely with Gajendragadkar J.''s appraisal thereof. - ''Hori Ram Singh v. Emperor'', AIR 1939 PC 43 (EI, which has been considered in - ''State v. Laldas (B)'', was a case of a single accused as in the case before us. The accused, who was a Sub-Assistant Surgeon, was charged under Sections 409 and 477-A, Penal Code, and it was held by their Lordships of the Federal Court that the consent of the Governor was necessary for prosecuting the accused u/s 477A though not u/s 409.

In that case the Sessions Judge had acquitted the accused altogether on the ground that the previous consent of the Governor had not been obtained u/s 270(1), Government of India Act, 1935. The High Court held that no consent was necessary and remitted the case to the Sessions Judge for disposal on the merits. Their Lordships, in the view they took ultimately regarding the sanction of the Governor, directed that the order of acquittal passed by the Sessions Judge be set aside, all the proceedings so far as they related to the charge u/s 477A be quashed and the case with regard to that offence dismissed on the sole ground of want of consent of the Governor, without acquitting the accused of the charge, leaving the door open for a fresh prosecution u/s 477A, if the consent of the Governor was obtained thereafter. With regard to the charge u/s 409 their Lordships sent back the appeal to the Sessions Judge for rehearing as regards the said charge leaving it open to the Sessions Judge to order a re-trial if he came to the conclusion that the joinder of the two charges had occasioned a failure of justice.

Thus the Federal Court did not take the view that the absence of sanction with regard to the offence u/s 477A rendered the whole of the trial void; it was only the trial in respect of Section 477A that was rendered void for absence of sanction. The principle laid down in ''Hori Ram''s case (E)'' thus is that where an accused person is tried for more than one offences and sanction is necessary for one or more of the said offences and not for the remaining offences, the trial in respect of the latter offence is not void per se; it will be rendered void in case the defect in question had in fact occasioned a failure of justice. The same is true where more than one persons are tried together and the trial of one of the accused in respect of one or more charges is bad for want of sanction. In that case too the trial of the remaining accused will not be void unless prejudice has been caused. If the trial was a jury trial prejudice against the accused in respect of the other offences can ordinarily be held to be implicit and the whole trial can be safely set aside without any difficulty. But if the trial has been held by a Magistrate or a, Sessions Judge, without a jury, then the accused person or persons would not be entitled to contend that the whole of the trial should be deemed to be void without proof of prejudice.

That was the direction given in ''Hori Ram''s case (E)" and it serves as a guide to the ultimate orders to be passed in such case. Incidentally, in view of ''Hori Ram''s case (E)'' ''Rudragouda v. Emperor (D)'' was not followed in ''State v. Laldas (B)''. The trial of the present accused, which was held by a Special Judge without a jury, would be void if prejudice was caused to the accused in respect of offences not covered by the sanction and in that event the whole trial will have to be set aside as void. Now here a good deal of evidence was adduced on the charge of receiving illegal gratification of Rs. 1150/- as also of habitual bribe-taking and the learned Judge has considered this evidence and in fact the evidence bearing on the charge in respect of Rs. 1150/- has palpably influenced the learned Judge''s decision on the charge in respect of Rs. 5700/-. Undoubtedly therefore grave prejudice has been caused to the accused in this case by the joinder of the two charges not covered ;by the sanction and the whole trial is therefore, ivitiated and becomes void altogether.

Mr. Shukla has urged that in respect of offence under Sections 471 and 427, Penal Code also sanction u/s 197, Code of Criminal Procedure was necessary in as much as these are acts alleged to be done by a public servant. However these are acts not alleged to have been done by the accused, while acting or purporting to be acting in the discharge of his official duty. It was no part of the official duty of the accused to have used as genuine a forged document which is known to have been forged or to have committed mischief in respect of the original documents. The test to be applied in considering whether it is an act done or purporting to be done in the discharge of his official duty is stated in - ''H.H.B. Gill v. The King AIR 194 PC 128 (F) at p. 133 as follows:

A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge either acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.

Applying this test to the facts of this case it seems clear that the accused cannot justify the acts of using the'' forged lists Exs. 7 and 8 or of destroying them as acts done by him by virtue of the office held by him. No sanction in respect of the offences under Sections 471 and 426, I.P.C. was therefore necessary.

The second point of law urged by Mr. Shukla is that the trial was bad on account of a misjoinder of charges in as much as the accused was charged with several offences in violation of the mandatory provisions of Section 233, Code of Criminal Procedure. The said section, which is the basic section, provides that for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239. Now the offences charged against the accused are an offence u/s 161, I.P.C. and Section 5(1)(d), Prevention of Corruption Act in respect of Rs. 1150/-, offences under Sections 471 and 426, I.P.C., offence regarding Rs. 5700/- u/s 161, I.P.C. and Section 5(1)(d) and offence of habitual bribe taking u/s 5(1)(a) of the Act so that the trial has been in respect of five offences. These are distinct offences and under the general law stated in Section 233 the charge and the trial should be separate for each offence unless any of the exceptions applies.

The principle relating to the joinder of charges as contemplated by Sections 233, 234, 235 and 236 was considered by a Full Bench of the Bombay High Court in - D.K. Chandra Vs. The State, . There the accused was charged with having committed criminal breach of trust in respect of a certain sum on 12-4-1949 and in the alternative he was charged with having cheated in respect of the same sum on the same day. He was also charged with having committed criminal breach of trust on 20-4-1949 in respect of Anr. sum and was charged in the alternative with haying cheated in respect of the same sum on the same day, so that in all the accused was charged with having committed four offences. It was held that the offences not being of the same kind, there was a contravention of Section 234(1) and the two acts, in respect of which the charges were framed, being separate and distinct the joinder was also not justified u/s 235(1).

Chagla C. J. observed as follows:

If the prosecution wishes to justify a trial in which charges are joined, it is for the prosecution strictly to establish that the joinder is permissible either u/s 234, 235 or 236. It is a well known canon of construction that exceptions must be strictly construed, and unless the prosecution satisfied the Court that the exception has been strictly complied with, the joinder of charges in a trial must be held to be contrary to law. It may be possible in .a conceivable case for the prosecution to establish that a case falls under more than one exception. But if it falls under more than one exception it must so fall that it must not infringe the provisions any 01 rule three S. Section It is not permissible for the prosecution to combine and supplement the three sections in such a manner as to contravene the provisions of any of these three sections.

The contention urged by the Government Pleader that the accused was really charged with two offences of the same kind and therefore the joinder of charges was permissible u/s 234(1) was repelled.

The learned Chief Justice held that Section 234(1) does not deal with acts; it deals with offences, and the condition laia down is that the accused must be charged with not more than three offences of the same kind. Section 234(1) does not provide that the accused may be charged with having committed three acts or three series of acts of the same kind. The second fallacy pointed out was that the Government Pleader looked upon an alternative charges not being an additional charge at all.

The Full Bench dissented from the decision in - Rex Vs. Daya Shankar Jaitly, an which the view taken was that there was nothing in Section 233 to indicate that Sections 234, 235, 236 and 239 could not be read together.

In - Mangi Vs. State, the Allahabad High Court has reaffirmed the view taken in ''Rex v. Daya Shankar (H)'' and has questioned the correctness of the Bombay decision. It has held that the exceptions contained in Sections 234, 235, 236 and'' 239 have to be read together and as supplementing each other and that they should be construed as permitting a joinder of trials, that is to say, they lay down the circumstances in which joinder of trials can take place. In accor4 dance with this view, it was held that Section 234 should not be read as implying a prohibition .of trial of more than three offences, but should be read as laying down a permission for the joint trial of not more than three offences of the same nature; and finally their Lordships observed that so long as a particular joint trial is permitted by one section or the other taken either singly or jointly, it cannot be said to be contrary to the intention of the legislature, though on the face of it may appear to go beyond one of the provisions of the enactment; and for this construction they also relied on the word ''and'' occurring between Sections 236 and 239 instead of ''or'' in Section 233.

With respect, the view taken by the Bombay High Court is correct and is in consonance with the scheme envisaged by Sections 233 to 239 of the Code. The general law in Section 233 is that there must be a separate charge and a separate trial for each distinct offence; there can be a joinder of charges provided any of the exceptions applied. Since the exceptions provide for a departure from the general rule they must be strictly construed as not to defeat the right of an independent trial conferred by the geucial rule. Therefore the case should fall under a particular exception and not under the exceptions combining and supplementing each other in a manner so as to contravene the provisions of any of these exceptions. Therefore the joinder of the charges in this case will have to fall under one or the other of the exceptions.

The learned Advocate General has, however, adopted a different line of argument, and it is that the act of the accused in this case is a continuous act and the various incidents complained of constitute but one act. The contention is that the act is one single act and it does not matter if the constituent parts thereof amount to different offences. It was, it was urged, one continuous act for the purpose or object of releasing the detained goods or getting an export permit, and, according to the learned advocate General (sic) no scope for the application of the exception in Section 234. But the acts alleged to have been done by the accused are distinct and they are committed on different dates, and .the accused is charged in respect of each one of them. They are not mere steps towards the commission of one act, and there is really no scope for such a contention to be made. The test is not whether they are done with one and the same object or purpose. It is different thing to say that the acts amounting to offences are committed in the course of the same transaction in which case Section 235 will apply, but the position taken up by the learned Advocate General is an extreme one viz., that there is only one act and this position, in any opinion, is altogether untenable.

So far as Section 234(1) is concerned, it does not help the prosecution because the offences under Sections 471 and 426, I. P. C. are not of the same kind as the offences u/s 161 and Section 5(1)(d) and Section 5(1)(a), Prevention of Corruption Act. Nor again, does Section 235 assist the prosecution. The acts whereby the offence under Sections 161, Penal Code, and Section 5(1)(d) of the Act m respect of Rs. 5700/- and offences under Sections 471 and 426, Penal Code, were committed evidently can be said to be so connected together as to form the same transaction and Mr. Shukla too concedes that it is so.

But the acts constituting the offence of habitual bribe taking u/s 5(1)(a) can by no stretch of reasoning be deemed to be acts so connected together with the abovesaid acts as to form part of the same transaction. In fact they have no relation to this point of time. They pertain to obtaining illegal gratification from Ors. over a period of time in the past and have nothing to do with the offences committed in respect of Jethalal Jhaver.

As regards the offences in respect of Rs. 1150/-, that was a completed act in itself and the original design viz., of bringing to bear influence on the Port Officer of Navlakhi and to get the goodls released was not accomplished and the accused is also alleged to have returned the sum. That was on the 12th August and so far as the Navlakhi was concerned, it was all over. The matter was taken up again by Jethalal after returning to, Rajkot and the process was begun over again. The acts which were done in the course of that process at Rajkot would not constitute the same transaction the one that had taken place at Navlakhi; rather they constitute a new transaction though the purpose thereof was to get the goods released or to get an export permit. But though the purpose may be the same there was no continuity of action, which is an essential element, and therefore the offence in relation to Rs. 1150/- cannot be deemed to have been committed in the course of the same transaction (see - ''Shapurji Sorabji v. Emperor AIR, 1936 Bom 154 (J). Therefore the joinder of charges u/s 5(1)(a), Prevention of Corruption Act and Sections 161 and 5(1)(d) of the Act in respect of Rs. 1150/- was illegal and constitute misjoinder of charges, and that being so the conviction of the accused must be set aside.

The points as to the inadequacy of sanction and misjoinder of, charges were not taken in the Court below and they are raised for the first time in appeal. As to the former we would emphasise, as was done in The State Vs. Laldas and Others, '', that just as it is the duty of the Judges and Magistrates to consider the question of sanction whenever public servants are charged before them, it is also the duty of the lawyers to take the point about sanction at the earliest stage and invite the Judge or the Magistrate to decide it before proceeding to deal with the merits of the prosecution case.

Since this is not merely of misjoinder of charges the question of ordering a retrial does not arise for consideration. The trial has become void altogether for want of adequate sanction, and therefore the proceedings have to be quashed. Accordingly we set aside the convictions and the sentences passed on the accused and order the fine, if paid, to be refunded. Bail bond to be cancelled. It will bs open to the prosecution to proceed against the accused in respect of charges for such offences as it thinks proper after having due regard to the requirements of the sanction. If a fresh trial is to take place it will be held before a Judge other than the learned Judge who has already dealt with the case.

CHHATPAR, J.

I agree.