Ramanand Prasad Sinha vs State of Bihar and Others

N. Pandey, J.—This is an application u/s 482 of the Code of Criminal Procedure (hereinafter referred to as the ''Code'') wherein the petitioner has prayed for quashing an order dated 27-9-1991 whereby the Special Judge Vigilance, has taken cognizance of the offence u/s 5 (2) of the Prevention of Corruption Act and also u/s 161 of the Indian Penal Code.

The learned Single Judge on 25-3-1992 after noticing that there are important questions of law involved, has referred this case to a Division Bench. Accordingly, this application, was placed before us for hearing.

In order to appreciate the questions involved, it would be appropriate to notice a few facts.

On 21-5-1985, at the instance of the District Magistrate, Begusarai, a case u/s 161 of the Indian Penal Code and u/s 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the ''Old Act'') was instituted against the petitioner. After close of investigation and on the basis of sanction accorded u/s 6 of the Old Act, charge-sheet was submitted. Thereafter, on 1-4-1987, cognizance of the offence was taken and accordingly, on 29-1-1988, charges where framed. During the course of trial, the prosecution examined its witnesses and statement of the accused u/s 313 of the Code was also recorded. At this stage, it transpired that the sanction, obtained on 2-3-1987, was not legal and valid. Accordingly, another order of sanction (Exhibit 4) was brought on the record.

A prayer was made on behalf of the prosecution to take cognizance and to examin the witnesses, afresh. The defence took a stand that since there was no valid and legal sanction, the order of the court dated 1-4-1987, taking cognizance and consequently the entire trial vitiated. The matter was heard and the learned Special Judge held that as there was no valid sanction, the order taking cognizance and thereafter the entire trial was defective and without jurisdiction. Accordingly, in the facts and circumstances of the case, he took cognizance on the basis of a fresh sanction and directed the accused to appear for framing charges.

Mr. Yogesh Chandra Verma, learned Counsel for petitioner, contended that the impugned order is completely illegal and without jurisdiction. Admittedly, the prosecution case was closed and the judgment was reserved. At this statge, it was not open to the trial court to take a fresh cognizance and start a fresh trial. According to him, the moment it was brought to the notice of the trial court that there was no valid sanction, he had no option but to hold that the prosecution case is vitiated for want of a valid sanction. It was stated that by the impugned order, the Special Judge has given an opportunity to the prosecution to fill up a lacuna, which is not permissible in law.

A question arises for consideration in the present case, whether the trial court had jurisdiction to try the case with respect to which there was no valid sanction. It is now necessary to read some of the relevant sections on the point at issue. Section 6 (1) and (2) of the Old Act is in these terms:

(1) No court shall take cognizance of an offence punishable u/s 161 or Section 165 of the Indian Penal Code or under subsection (2) of Section 5 of this Act, alleged to have been committed by a public servant except with 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 any other person, of the authorities competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under Sub-section (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 well settled on the basis of numerous decision that a court cannot be competent to hear and determine a prosecution, the institution of which is prohibited by law. Section 6 of the Old Act completely prohibits a court to take cognizance unless a valid sanction, to prosecute an accused u/s 5(2) of the Act and Sec. 161 of the Indian Penal Code is accorded. In the case of AIR 1945 16 (Federal Court) , it was held that no prosecution for any contravention of the provisions of the Act shall be instituted without the previous sanction of the provincial Government.

A similar question was considered and decided in the case of Ramautar Mahton Vs. The State, and their Loardships held as follows:

** ** ** The question which arises in the present case is whether the trial of the other offences can be held to have been without jurisdiction when the Special Judge convicts the accused for such an offence by the same judgment by which he holds that he was not competent to try the offence which he was trying u/s 7(1) of Act XLVI. In my judgment, the same result must follow. As the proceeding before the Special Judge in this case relating to the offence u/s 5(2) of Act II was no trial at all due to the absence of a valid sanction, the Special Judge had no jurisdiction u/s 7(3) of Act XLVI to try the offence u/s 409 of the Penal Code also. The trial for that offence, being without jurisdiction is null and void...."

In this connection, it would be useful to notice, what prejudice ultimately has been caused to the petitioner, when an order has been passed for retrial. In the facts of the case, it cannot be urged that no fresh trial can be ordered. One can take shelter under the provisions of Section 300 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as ''the Code" corresponding to Section 403 of Old Code and Article 20(2) of the Constitution of India and urge that once an accused is acquitted or discharged, by a court of competent jurisdiction, he cannot be tried again for the same offence. According to Mr. Verma the trial court having noticed that there was no valid sanction, had no option, but to hold that the order taking cognizance and consequent thereto the entire trial, in absence of a valid sanction was bad and invalid. Therefore, on such decision, if any, the petitioner was entitled for acquittal. The question arises whether such an order for discharge or acquittal, if at all granted, can bar a fresh trial. It would be necessary to notice the relevant provisions on the point at issue. Section 300 of the Code is in these terms:

Person once convicted or acquitted not to be tried for same offence.--(1) A person who has once been tried by a Court of competent 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 subsection (1) of Section 221, or for which he might have been convicted under Sub-section (2) thereof.

** ** **

Similarly, clause (2) of Article 20 of the Constitution reads thus;

No person shall be prosecuted or punished for the same offence more than once.

Mr. B.P. Pandey, learned Counsel for the Vigilance submitted that Section 300 of the Code bars a fresh trial in a case in which the accused has been acquitted or discharged by a court of competent jurisdiction. The first thing that has to be seen whether in such case, a trial has been conducted by a court which was competent to determine the case and to record a verdict of conviction or acquittal. According to him, if the trial court was not competent for want of a valid sanction, it was irrelevant whether he passed an order of conviction or acquittal. Section 300 of the Code of clause (2) of Article 20 of the Constitution creates no bar for fresh cognizance or trial in such a situation. In support of his contention, he has placed reliance on the case of Baij Nath Prasad Tripathi Vs. The State of Bhopal, . It would be appropriate to notice paragraph 5 of the report on this point wherein their Lordships after taking notice of the other decisions, held as follows:

(5) 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 the court itself. The Privy Council decision is in AIR 1949 264 (Privy Council) the AIR 1945 16 (Federal Court) and the decision of this court (not yet reported) was given in Budha Mal v. State of Delhi, Cri Appeal No. 1 of 1952, dated 3-10-1952 (C). 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 circumstances, 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 Procedure Code, 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 accussed in cases where such an order has been made by a 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 firt instance was by a magistrate who had no jurisdiction to try him.

After considering the pronouncements made in different decisions referred to above, their Lordships held further as follows in paragraph 6:

(6)...It is clear beyond any doubt that clause (2) of Article 20 of the Constitution has application in these two cases. The petitioners arc not being prosecuted and punished for the same offence more than once, the earlier proceeding having been held to be null and void. With regard to Section 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...

From what has been stated above, it is clear that if the Court could not take cognizance of the offence in question without a legal sanction, it cannot be held that the Court was competent to try such offences in absence of valid sanction.

In the promises aforesaid, I am of the view that the trial court has rightly held that for want of valid sanction, it had no jurisdiction to proceed with the case and, therefore, take cognizance in order to hold a fresh trial.

Mr. Verma also contended that in any view of the matter, the trial court had no jurisdiction to review or recall its earlier order, taking cognizance. If there was no valid sanction, it was only open for a higher court to quash the order of cognizance and pass appropriate order. The aforesaid submission of Mr. Verma has no substance, for the simple reason, namely, that in absence of a valid sanction, the trial court was not competent to take cognizance. If the trial court was not competent in the eye of law, there was no valid order taking cognizance. Therefore, in absence of any valid order taking cognizance, the trial court was perfectly justified in law in taking cognizance of the offence afresh on the basis of the valid sanction.

The other aspect is enqually relevant to be noticed. In case the impugned order is quashed, it would give rise to another illegal order, namely, the order whereby congnizance was taken, without any valid sanction and also the entire trial which was conducted before a Court which had no jurisdiction to try the case. It is now well settled by various decisions of this Court as also the Supreme Court that a Court while dealing with such situation, should, so far as possible, refrain from quashing such order which may give rise to another illegality referred to above.

Mr. Verma lastly contended that by enactment of the Prevention of Corruption Act, 1988 (hereinafter referred as the ''New Act)*, the words "Section 161 or 164 or Section 165 of the Indian Penal Code" under Sub-section (2) or (3) of Section 5 of the Old Act, have been substituted by the words under "Section 7, 10, 11, 13 and 15 of the New Act". The New Act received the assent of the President of India on 9-9-1988 published in the Gazette of India (Extraordinary.! Part II on 12-9-1988. Therefore, it is urged that the impugned order dated 27-9-1991, whereby cognizance has been taken u/s 161,1. P. C. is completely bad and without jurisdiction. According to Mr. Verma, Section 161 I.P.C. having been dropped out from Section 5 of the Old Act, the Court could not take cognizance under the aforesaid provisions.

The provisions of Section 6 of the Old Act have now been incorporated under the New Act as Section 19. In Section 19 of the New Act, offences u/s 161 or Section 165 have not been included. No doubt this provision has introduced a drastic change. A question arises, whether a trial with respect to the offence punishable u/s 161 1. P. C. committed at the time when the old Act, was in operation would continue under the provisions of the Old Act or the New Act. Section 30 of the ''New Act'' deals with the the provisions of repeal and saving and Section 31 deals with the provisions of omission of Section 161 to 165A of the Indian Penal Code, both inclusive and provides application of Section 6 of the General Clauses Act. In order to to elucidate the proposi ion, it would be useful to notice the relevant provisions of Sub-section (2) of Section 30 of the New Act, which runs thus:

Repeal and saving.--(1) * * * (2) Notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act,'' be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act.

Similarly, Section 31 of the New Act says:

Omission of certain Sections of Act 45 of 1860.--Sections 161 to 165-A (both inclusive) of the Indian Penal Code shall be omitted and Section 6 of the General Clauses Act, 1897, (10 of 1897) shall apply to such omission as if the said sections had been repealed by a Central Act.

Admittedly at the time when the offence in question was committed, the promention was required to obtain sanction by the competent authority, under the provisions of Section 6 of the old Act, to prosecute the petitioner. According to Sub-section (2; of the Section 31 of the New Act, notwithstanding such repeal but without prejudice to the application of Section 6 of the General Clauses Act anything done or any section taken in pursuance of the Act so repealed shall in so far as it is not inconsistent with the provisions of this Act, he deemed to have been done or taken in pursuance of the corresponding provision of this Act. Therefore, it has been noticed that for the offence committed u/s 161 I. P. C, sanction granted for prosecution of the petitioner is not inconsistent with the provisions of this Act. There is no specific provision or bar under the New Act for such action taken at the relevant time In that view of the matter, under the provisions of Section 5 of the General Clauses Act, action taken by the prosecution and the court concerned, has to be held valid and justified so long it is not inconsistent with the provisions of the New Act.

The introduction of the provisions of Section 6 of the General Clauses Act. u/s 31 or 31 of the New Act, do not give any scope to save the Provisions of the repealed Act, but it saves only the rights and liabilities which have occurred under the repealed provisions, since the right acquired under the Old Act, has not been taken away by the repealed provisions thereof.

In that view of the matter, I am constrained to hold that the trial court was completely justified in taking cognizance u/s 161 I.P.C. and the same is not inconsistent with the provisions of the New Act.

12 Having considered all the facts and circumstances of the case, I find no merit in this application. Therefore, in the result, this application is dismissed.

I agree.