State vs Mohamad Raza Beg

(1) The important question arising for consideration in this case is whether the Prevention of Corruption Act, 2006 (hereinafter called as The Act')

bestows power on the appropriate authority to add, alter, or supersede an order of sanction made under section 6 of the Act,

(2) The question has arisen like this. The accusedrespondent was a Government servant employed in the police Department of the State. It was

alleged that he accepted a sum of Rs. 100/ as illegal gratifiction from one, Mohamad Ramzan Shalla, for showing undue favour to him in the

discharge of his public duties. The appropriate authority considered the matter and permitted his prosecution under Section 5 (2) of the Act, On

the basis of this sanction, the court of Special Judge also subsequently took cognizance of the offence against him. While the trial was in progress,

the appropriate authority issued a revised order of sanction sanctioning his prosecution for offences under sections 161 RFC and Section 5 (3) of

the Act. On the basis of this sanction, the prosecution moved an application for amendment of the charge They wanted section 161 R. P. C. also

to be included in the charge. The learned Special Judge has disallowed the application holding that the appropriate authority was not competent to

issue the revised sanction nor even the court had otherwise power to amend the charge.

(3) The Act does not expressly empower the appropriate authority to add to, alter, or supersede an order of sanction made under section 6 of the

Act The argument of the learned Counsel appearing for the state, however is that the power is available under Section 21 of the General Clauses

Act. Section 21 of the Act, provides, that where, by and Act or Regulation, a power to issue notification, orders, rules, or byelaws is conferred

then, that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or

rescind, any notification, order, rules, or byelaws so issued. This section is pari materia with section 21 of the General Clauses Act prevailing

elsewhere in the country That section fell for consideration before the Supreme Court in the case of State of Bihar Versus D. N. Gangully and ors,

A. I R. 1958 S. C. 1018. The court observed :

It is well settled that this Section embodies a rule of construction, and the question whether or not it applies to the provisions of a particular statute

would depend on the subject matter, context, and the effect of relevant provisions of the said statute. In other words, it would be necessary to

examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether by the application of the rule

of construction enunciated by section 21, the power to cancel,., can be said to vest by necessary implication.

(4) On this principle, I must, therefore, proceed, to examine the object and the scheme of the Act. By its preamble, the Act seeks to made more

effective provisions for the prevention of bribery and corruption in the State. Section 3 of the Act declares offences under Sections 161 and 165 of

the Ranbir Penal Code to be Cognizable offences. Section 3 of the Act provides for a rule of presumption and says that where in any trial of an

offence punishable under Section 161, or Section 165, R. P. C. or of Section 165 (a) R. P. C. it is proved that an accused person has accepted or

obtained, has agreed to accept or attempted to obtain for himself or for any other person, any gratification (other than legal remuneration) or any

valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted

to obtain that gratification or that valuable thing, as the case may be, as a motive or reward as mentioned in those Sections. Section 5 defines

criminal misconduct in discharge of official duty and provides for its punishments in these words ;

(I) A Public Servant is said to commit the offence of criminal misconduct in the discharge of his duty

a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification

(other than legal remuneration) as a motive or reward such as it mentioned in Section 161 of the Ranbir Penal Code, 1989, or,

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without

consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, likely to be

concerned in any proceeding or business transacted or about to be transacted by him. or having any connection with the official functions or himself

or of any public servant to whom he knows to be interested in or related to the person so concerned, or,

(d) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use (or attempts to misappropriate or convert to his own

use) any property entrusted to him or under his control as a public servant or wilfully suffers any other persons so to do or,

(e) If he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains (or attempts to obtain) for himself or for any

other person any valuable thing or pecuniary advantage.

(2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which shall

not be less than one year but which may extend to seven years and shall also be liable to fine :

Provided that the court may, for any special reasons recorded in writing, refrain from imposing a sentence of imprisonment or impose a sentence of

imprisonment of less than one year"".

(5) Section 6 provides for sanction and says that no court shall take cognizance of an offence punishable under Sec. 161 or Section 165 of the

Ranbir Penal Code or under SubSection (2) of Section 5 of this Act, alleged to have been committed by a public servant except with the previous

sanction ...""Section 7 to 10 contains miscellaneous provisions concerning special rules of evidence and other matters in relating to the proceedings

taken under the Act.

(6) The object and the scheme of the Act would thus appear to be that there should be effective check against bribery and corruption in the public

services in the State, but at the same time, honest elements should be protected against prosecution on the basis of frivolous accusations of this

nature. The court cannot take cognizance of offences punishable under 161 or Sec. 165 of the Ranbir Penal Code or section 5 (2) of the Act,

unless such prosecution is permitted by the appropriate authority Thus the initiative liss with the appropriate authority in the matter and it is only

where it has accorded sanction to the prosecution of a Government Servant that the Court can lawfully take cognizance under any of these

sections. The appropriate authority is required to apply its mind to the available material and make an appropriate order But the scheme of the Act,

does, primafacie seem to be inconsistent with any power in the appropriate authority to consider the matter over and over again and alter, amend,

vary, or set aside an order of sanction once made under Section 6 of the Act. In that view, the power conferred by Section 21 of the General

Clauses Act, cannot be said to be available under Section 6 of the Act. The argument to the contrary of the learned counsel papering for the State

must necessarily fail.

(7) Applying this principle to the present case, the appropriate authority had no power to revise the sanction and consequently the learned Special

Judge was right in holding that the revised sanction could not beabasis for amending the charge. That makes it necessary for me to go into the other

question, whether the court was otherwise competent to amend the charge. I leave that question open.

(8) The result, therefore, is that the revision fails, and is dismissed accordingly.