Ratilal Bhagwanji vs State

Shah, C.J.—This revision application involves a question of the validity of a sanction to prosecute and is filed against an order of the

Sessions Judge, Sorath, setting aside the order of discharge passed by the First Class Magistrate, Junagadh, and directing that the trial of the

accused should be proceeded with according to law. The applicant Ratilal Bhagvanji was a head-clerk and accountant in the office of the Chief

Medical Officer of Junagadh and he was prosecuted for certain offences of criminal breach of trust, cheating, forgery etc., under a sanction

obtained from the then Administrator of Junagadh State. This sanction was held to be invalid by the Magistrate, Mr. Kikani, since it had not been

signed by His Highness the Rajpramukh and the accused was thereupon discharged, A sanction was subsequently given by His Highness the

Rajpramukh on 11.10.1949 and same was later amended by an order dated 8.2.1950, by which the sections of the Junagadh State Penal Code

were substituted by the corresponding sections of the Indian Penal Code. The validity of this sanction was challenged by the applicant on the

ground that it was indefinite and vague and further that it had not been given, u/s 197, Criminal P.C. Another contention made was that the sanction

had not been duly signed either by his Highness the Rajpramukh or by any duly authorised officer. The learned Magistrate took the view that the

sanction was invalid on account of vagueness because it did not mention the time or period during which the offences for which the sanction was

purported to have been given, were committed by the accused and that the accused could not be prosecuted under such a vague sanction. He

rejected the other two contentions urged on behalf of the accused, but since in his opinion the sanction was invalid he discharged the accused. The

learned Sessions Judge lias held, in revisioin, that the sanction mentioned the sections of the Indian P.C. under which the accused was to be

prosecuted & that the cases filed against the accused were under those sections and under no other sections. According, to him, the sanction was

meant to comprise of the charges or classes of charges under the sections of the Penal Code specified in the sanction, and there was no ambiguity

therein as would mislead or cause prejudice to the accused.

Now the material part of the sanction says that Mr. Ratilal B. Thakar has forged documents knowing them to be forged and prepared false

accounts for the purpose of misappropriating certain amounts, being the property of the Government, and that His Highness the Rajpramukh was

pleased to accord sanction under the provisions of Article 17 of the Covenant to prosecute Mr. Thakar under the Sections specified therein. The

sanction however does not state the period of time during which the alleged offences have been committed by the applicant and in respect of which

the sanction had been given. The applicant was in the service of the former Junagadh State for about ten years and judging, from the language of

the sanction, it could not be said that the sanction was meant or was given in respect of offences committed by him in a particular year or during a

particular period of time. Under Article 17 of the Covenant, His Highness-the Rajpramukh is the authority to give sanction for the prosecution of a

public servant and no prosecution can be instituted excepting with his previous sanction. But that sanction is to con, form to the requirements of

Section 197, Criminal P.C. which says that the Governor, in this case His Highness the Rajpramukh, exercising his individual judgment may

determine among other things, the offence or offences for which a public servant is to be prosecuted. The word ''offence'' does not merely mean

the section or sections under which the offence is punishable, because as in the present case, several offences might have been committed over a

certain period of time and it could not be known by a mere mention of the sections as to for which particular offences the accused was to be

prosecuted. It is true that the order granting sanction need not specify the offences with the same degree of precision as in a charge. All the same,

the sanction should, at any rate, state when or what period of time the alleged offences were committed. The sanction here does not contain any

details excepting that the applicant had committed certain offences of forging documents, knowing them to be forged and preparing false

documents for the purpose of misappropriating certain amounts. But this gives no indication either to the Court before whom he is to be

prosecuted or to the accused himself as to which particular offences these are and at what particular time they had been committed.

In � Emperor Vs. Jehangir Ardeshir Cama, : Emperor Vs. Jehangir Ardeshir Cama, , the accused, a Deputy Collector under suspension, was

convicted u/s 161, Penal Code on three charges and the sanction mentioned amongst other things ""in the month of February"" which words were

later amended by adding the words ""or March (March 1st, 1924)"". It was urged that the sanction was vague but the contention was rejected for

the reason that the further details specified in the charge made it clear that the offence charged and enquired into was what it was there alleged to

be. It was observed:

Had there been two offences, one on February 29th and another on March 1st, the objection might have been valid; but as throughout the question

is only of a single offence, which is otherwise properly described and specified, the sanction is not in our opinion bad. At the same time it may be

conceded it would have been preferable if the sanction like the charge had used the words ''on or about'' and not merely the word ''on'' or if the

prosecution had been from the outset more careful whether it was Friday, February 29th, or Saturday, March 1st, that the gold was alleged to

have been purchased and given.

The date of the alleged offence was there stated in the sanction and the discrepancy was merely as to the exactness of the date, viz., whether it was

29.2.1924 or 1.3.1924, and the sanction was not considered to be bad because there was only a single offence. That is not the position in the

present case because here several offences are said to have been committed by the applicant on various dates and one is not certain whether they

were committed during the course of one year or of several years. In � Emperor v. Madhav Laxman 43 Bom 147, the Kulkarni and the Patil of

the village were charged with three offences of cheating and exacting from three persons sums of money in excess of the land assessment payable

to the Government when the said persons went to pay in the assessment. The sanction was ""for cheating or for such other offences with which it

may be necessary to prosecute them in connection with obtaining money from the ryots."" It does not appear that the validity of the sanction was

impugned on the ground that the date of the period of the offence had not been mentioned. The sanction was challenged on account of vagueness

in the description of the offences in respect of which the prosecution was made. The contention was negatived because it was considered that there

was no such vagueness. In my opinion, however, the approximate time of the offences or the period during which they were committed was

required to be stated in the sanction, and I am fortified in this view by the observation of Madgavkar J. in � Emperor v. Jahngir Cama, viz. that if

two offences had been committed, one on February 29th and another on March 1st, this objection as regards vagueness might have been valid.

Here no date or period of time whatever has been mentioned in the sanction and that makes the sanction all the more open to objection. Under the

sanction as given, the applicant could be charge-sheeted for offences committed during the course of one year or several years and the sanction

would be good for prosecuting him for a number of cases. That obviously could not have been intended by the sanctioning authority. The learned

Magistrate was therefore right in holding that the sanction in this case was invalid on account of vagueness and that the accused could not be

prosecuted on the strength of such an invalid sanction.

The next objection urged by Mr. Joshi for the applicant was that while the sanction mentions that it had been given under Article 17 of the

Covenant, it does not mention that it was also given u/s 197, Criminal P.C. and that this omission renders the sanction invalid. However Section

197 merely provides that no Court shall take cognizance of an offence committed by a public servant except with the previous sanction. The

essential requirement, therefore, is that a sanction has to be given by the proper authority, before prosecuting such a person. It is nowhere

provided that the sanction should mention the provisions of the Act under which it has been given. The sanction, in this case, need not have been

stated that it was given under Article 17 of the Covenant; and it is no way defective for want of the mention of Section 197, Criminal P.C. There is

no substance in the contention and it must be rejected. There is equally no merit in the third contention urged on behalf of the applicant, viz., that

the sanction was not signed by His Highness the Rajpramukh or by a duly authorised Officer. The objection is not true on the facts because the

sanction has been signed by Mr. J.L. Hathi, Additional Secretary, Home Department (Medical). On this being pointed out to Mr. Joshi, he has not

pressed the contention.

However, the accused cannot be prosecuted on the strength of an invalid sanction and the learned Magistrate was right in discharging him. I

therefore allow this revision application, set aside the order of the learned Sessions Judge and restore the order of the learned Magistrate

discharging the accused.

Chhatpar, J.

I agree.