Rash Behari De vs The State

Thadani, C.J.—This is a revision application under the provisions of Section 439, Criminal P.C. directed against an order of the learned Sessions Judge, L.A.D., dated 25-10-49, toy which he dismissed an appeal preferred toy the applicant against his conviction and sentence passed by the learned Magistrate of the 1st Class, Tezpur, u/s 161, Penal Code.

The only ground seriously urged before us is that the learned 1st Class Magistrate, Tezpur, who tried the case was not competent to take cognizance of the complaint without previous sanction as required by Section 6(c) of Act II (2) of 1947 passed by the Indian Legislature. Section 6 is in these terms:

6 No Court shall take cognizance of an offence punishable u/s 161 or Section 165 Penal Code or under Sub-section (2) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction....

(c) in the case of any other person, of the authority competent to remove him from his office.

Mr. Ghose contended that in this case, the appellant was not liable to be removed by the Executive Engineer of the Division concerned but by the Chief Engineer, and that as no previous sanction of the Chief Engineer was obtained before the prosecution against the applicant was lodged, the proceedings of the trying Magistrate were without Jurisdiction. Mr. Ghose has referred us to a circular issued by the Chief Engineer, dated 21-6-45, which is in these terms:

No. E. 20 A/24/44/5661-73, dated 21-6-45.

From: F.E. Cormack, Esqr., B.Sc, C.I.E., I.S.E., Chief Engineer, North.

A.A. Barnard, Esqr., B.E., O.B.E., I.S.E., Chief Engineer, South.

To: All Executive Engineers in Assam.

Subject: Filling up of permanent vacancies of Head Clerks and Upper Division, Clerks.

Sir,

In partial modification of the orders issued with this office letter No. E.1E/1/43/4290-309, dated 25-6-43, I have the honour to say that in permanent Division, you are competent to appoint and confirm Head Clerks and Upper Division Clerks in permanent vacancies after considering the claims of all permanent Clerks of the Division concerned including those serving temporarily in other Divisions but holding lien in their permanent posts. In order, however, to avoid any possible injustice, you should submit your proposals for filling up such vacancies to this office for approval.

(2) In the case of new Divisions, the Head Clerks and the Upper Division Clerks will be appointed by this office by selection.

Your obedient servant, Sd/- R.L. Varma, For Chief Engineer, North/South.

From the contents of the circular, Mr. Ghose argued that as the appointment of an Upper Division Clerk in a permanent vacancy--the applicant is an Upper Division Clerk--was subject to the approval of the Chief Engineer, his appointment must be regarded as an appointment made by the Chief Engineer, and not by the Executive Engineer. We are unable to accept this contention. Appendix 12 to the Fundamental Rules and Assam Subsidiary Rules, 2nd Edn., 1939, at p. 371, contains the list of officers who are authorised to All up appointments. Under item No. 33, which is the item applicable to the facts of this case, Executive Engineers are the officers who are authorised to fill up appointments in the office and petty establishment of their respective offices; that is to say, the power to appoint Upper Division Clerks in permanent vacancies in the existing Divisions vests in the Executive Engineer of the Division concerned, and not in the Chief Engineer. It is true that the Chief Engineer exercises supervision in the matter of filling up these vacancies by requiring his approval to the appointment. But the power to appoint an Upper Division Clerk in the first instance does not vest in the Chief Engineer. The letter of the Chief Engineer, Assam dated 28-2-48, addressed to the Executive Engineer, Central Assam Division, tends to show that the Chief Engineer recognised this position, for otherwise he would scarcely have sent to the Executive Engineer a specimen order of sanction for the prosecution of the applicant. In that letter, he directed the Executive Engineer to sanction the prosecution of the applicant and to forward the sanction forthwith to the Deputy Inspector General of Police, Anticorruption Branch, Assam, Shillong. The Chief Engineer specifically pointed out to the Executive Engineer that as he was the person competent to remove the applicant from his office, his sanction was necessary u/s 6(c) of Act II (2) of 1947 (Central). The giving of sanction is not disputed by the applicant''s advocate. What is disputed is the validity of the sanction, Mr. Ghose contending that the sanction is invalid because it has not been given by the Chief Engineer. We think the sanction has been validly given by the Executive Engineer as he was the appointing authority.

Section 18, Assam General Clauses Act II(2) of 1915, is in these terms:

Where, by any Act, a power to make any appointment is conferred, then, unless a different intention appears, the authority having power to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that power.

The Executive Engineer toeing the authority competent to appoint the applicant was, therefore, the proper authority to remove the applicant from his office, and as it was he who has given the previous sanction for the prosecution of the applicant, the trial held by the Magistrate was held with jurisdiction.

On the merits of the case, Mr. Ghose contended that the inferences which the Courts below have drawn from proved facts do not necessarily connect the applicant with the commission of the crime. We do not think the case has been decided on inferences drawn from proved facts, but upon appreciation of the evidence recorded in the case; nor do we think that the inferences which the Courts below have, drawn from proved facts fail to connect the applicant with the commission of the crime. When the Inspector of Police, Anti-Corruption Branch, was apprised of the fact that the applicant was demanding a bribe, he took a ten-rupee note from one Golok and interviewed the Deputy Commissioner who requested Mr. Kalita, a Magistrate, to assist the Inspector of Police. The Magistrate noted the number of the ten-rupee note. Golok then, in the company of one Dhiren, went to the F.W.D. office, where he met the applicant. The applicant took Golok and Dhiren to the office tea-room and there Golok handed over the ten-rupee note to the applicant who put the ten-rupee note into his pocket and left the room. Golok followed him. Dhiren then went out and signalled to P.W. 9 who was waiting in the Court compound. P.W. 9 informed the Inspector of Police who took the Magistrate to the applicant and the Magistrate searched the applicant''s person and found the marked ten-rupee note. This direct evidence was accepted by the Courts below, and we see no reason to take a different view.

The result is that the revision application is dismissed. The Rule is discharged.

Ram Lahbaya, J

I agree.