State vs Rajendra Kumar Jain
2019 Latest Caselaw 5474 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment reserved on 23.5.2019
 
Judgment delivered on 8.7.2019
 
Court No. - 65
 

 
Case :- CRIMINAL REVISION No. - 450 of 1993
 

 
Revisionist :- State
 
Opposite Party :- Rajendra Kumar Jain
 
Counsel for Revisionist :- A.G.A.
 
Counsel for Opposite Party :- A.G.A.,Ajay Kumar Pandey
 

 
Hon'ble Dinesh Kumar Singh-I,J.

1. Heard Sri Vivek Rastogi, learned A.G.A. for the State and Sri Satish Trivedi, learned Senior Advocate assisted by Sri Ajay Kumar Pandey, learned counsel for the opposite party.

2. This Criminal Revision has been preferred by the State against the judgment and order dated 24.12.1992 passed by 5th Additional District and Sessions Judge, Agra in S.T. No. 2 of 1991, (State Vs. Rajendra Kumar Jain), under Section 162 I.P.C., P.S. Etmaddaula, District Agra and it is prayed that the said order of discharge passed by the trial court be set-aside and the accused-respondents be convicted according to law.

3. It is mentioned in the grounds of the revision that opposite party no. 2 was Lekhpal, who was trapped by police for accepting Rs. 6,000/- as bribe from Rup Singh, which was organized on an application of Rup Singh. It was stated by Rup Singh that he had moved an application before Tehsildar for demarcation of his land, which was sent to the accused, who demanded and accepted Rs. 6,000/- as bribe. The Sub-divisional Officer Appointing Authority of the accused did not record the sanction to prosecute the accused on the ground that Rup Singh had committed forgery and a case under Section 420, 120B, 463, 466, 468 and 471 IPC was initiated against Rup Singh. The objection which was raised from the side of accused with respect to framing charge was that since the offence took place much before the enforcement of the Act No. 49 of 1988, the old Act of 1947 would be applicable in the present case, according to which, the sanction by the Competent Authority was required to be taken before taking cognizance of offence under Section 161 IPC or 165 IPC or under Section 5(2) of the Prevention of Corruption Act. The prosecution placed reliance upon the amendment of Section 19 of the Act No. 49 of 1988 which had settled the controversies by amending the clause as follows:-

"Notwithstanding anything contained in clause (c), the State Government may where it considers necessary, so to do, required the authority referred to in clause (c) to give previous sanction within the period specified in this behalf and if said authority fails to give the previous sanction may be given by the State Govt."

4. The above quoted provision has not been found by this Court in the said Act, thus it appears to have been misquoted/erroneously quoted.

5. Further the ground is set up that the order of the discharge passed by the trial court is perverse. Section 19(d) explanation-2 has empowered the State Government to accord sanction where the sanction has been refused by the concerned Authority. In the instant case, the State Government accorded the sanction vide its order dated 18.4.1890 to prosecute the accused. The impugned order discharging the accused is patently illegal due to reasons that the provisions of U.P. Amendment Act, 1991, Section 19(d) were applicable on the relevant date. The sanction has been accorded by the State Government after full application of mind. The miscarriage of justice has taken place due to discharge of the accused, hence the said order needs to be set aside.

6. In order to understand the controversy and to appreciate whether the impugned order is against provisions of law, it would be pertinent to refer here to the facts as narrated in the impunged order as well as the finding of the trial court given therein.

7. The trial court has recorded in the impugned order that accused Rajendra Kumar Jain, a Lekhpal was trapped by police for accepting Rs. 6,000/- as bribe from Rup Singh. The said trap proceedings were laid on the basis of application moved by Rup Singh stating therein that the area of his Plot No. 1292 was 16 bighas 10 biswas and the litigation was also pending with the State. In that regard, he had moved an application before Tehsildar for demarcating his land which was sent to the accused Lekhpal, who demanded the said amount. Further it is recorded in the impugned order that the sanction for prosecution of the accused in this case was refused by Appointing Authority, S.D.O., mentioning that actual area of land of Rup Singh was 7 bighas, but during the consolidation proceedings, he manipulated to obtain the area of land measuring 16 bighas 10 biswas, which was found to be forged. It was also mentioned that Rup Singh had earlier made an agreement for sale of the land to various persons and subsequently he sold the entire land on 28.10.1987 on much lower price. On the basis of report of Lekhpal, (accused), a forgery was detected and a case under Section 420, 120B, 463, 466, 468 and 671 IPC was lodged against Rup Singh (complainant). It was recorded in the impugned judgment that the accused had discharged his duty sincerely, he was an honest and upright Lekhpal and that the complaint was moved with the ill-will due to repeated reports given by the Lekhpal against Rup Singh. Rup Singh had manipulated to implicate the accused in this forged case.

8. It is also recorded in the impugned judgment that permission for prosecuting the accused was granted subsequently by the Governor and the charge sheet was submitted against the accused. The trial court has recorded in the impugned judgment that Section 6 of the Act of 1947 bars court from taking cognizance of the offences enumerated therein alleged to have been committed by public servant except with the previous sanction of the Competent Authority. The object underlying such provision was to save the public servant from being harassed from frivolous or un-substantiated prosecution, therefore, when the court is called upon to take cognizance of the offence, sanction ought to be taken from appropriate authority otherwise the court would have no jurisdiction to take cognizance of the offence. The trial, without valid sanction, would be without jurisdiction and it would render the proceedings ab-initio void.

9. The grant of sanction is not a mere formality but a solemn and sacrosanct act which gives the umbrella of protection to the government servants against frivolous prosecution. It is further recorded in the impugned judgment that it appears that the permission was refused by the competent authority which was perhaps not brought to the knowledge of Governor at the time of obtaining sanction. The sanction accorded by the Governor does not mention the said fact. If the said fact had been brought to the notice of the Governor, the Governor might have discussed the same and recorded in the sanction order the opinion as to why he differed from the competent authority and why he was of the view that permission should be accorded. It is also recorded that the omission of mentioning these facts goes to show that the sanction was given in a mechanical way without applying the mind and accordingly the accused was discharged for non grant of valid sanction.

10. It would be pertinent to mention here the relevant Rules which would be applicable in the present case. The occurrence in the present case took place on 19.7.1988, when the prevention of Corruption Act 1977 was holding the field.

11. Section 6 of the Prevention of Corruption Act is as follows:-

6. Previous sanction necessary for prosecut ions. - (1) No Court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code or under sub-section (2) or sub-section (3A) of Section 5 of this Act , alleged to have been committed by a public servant, except

with the 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 gave 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 authority competent to remove him from his office.

12. It is apparent from the above ruling that under clause (c) of the same it is laid down that prosecution against Government employee facing the charge of Prevention of Corruption Act can be started only after sanction being taken from Competent Authority and that Authority would mean the Authority who is competent to remove him from office at the time when the offence was alleged to have been committed. In the case in hand, the accused is a Lekhpal. The Lekhpal in U.P. is a public servant who is not removable from his office save by or with the sanction of the State Government or some Higher Authority. Lekhpals in Uttar Pradesh are appointed under the Lekhpals Service Rules, 1958, published in the U. P. Gazette dated May 17, 1958. It is provided in Rule 2 that the Lekhapals' service is a non-gazetted subordinate service. Rule 7 provides that whenever the halqa of a Lekhpal falls vacant the Assistant Collector shall appoint thereto the senior most candidate on the list maintained under paragraph 6 (1), provided further that the order passed by the Assistant Collector shall be appealable before the Collector whose orders shall be final. Rule 16 lays down that all persons on appointment as Lekhpals shall be placed on probation for a period of two years, and the Assistant Collector may at his discretion extend the period of probation in individual cases for a period not exceeding one year. Clauses (d) and (e) of Rule 16 read as follows:--"(d) where it transpires at any time during or at the end of the period of probation or extended period of probation that a Lekhpal has not made sufficient use of his opportunities or has otherwise failed to acquit himself satisfactorily his service shall be terminated after observing the formalities prescribed in Rule 5(3) of the Civil Services (Classification, Control and Appeal) Rules without entitling him to any compensation, (e) A probationer shall be confirmed in his appointment by the Assistant Collector at the end of the period of probation or the extended period of probation if his work and conduct are found satisfactory. The period of probation shall continue till the order of confirmation is passed or the probation is terminated.

13. It has not been specifically mentioned in Clause (d) of Rule 16 that the Assistant Collector shall have the powers to remove a Lekhpal under that clause. However, the Rule read as a whole makes it clear that the intention must have been that the powers under Clause (d) of Rule 16 must also be exercised by the Assistant Collector, who is authorised to confirm a Lekhpal in his appointment under Clause (e) of Rule 16.

14. In this connection two other rules of the Lekhpals Service Rules, 1958, might be considered. Sub-rule (2) of Rule 28 runs as follows:-

"When it is proposed to dismiss or remove a Lekhpal as a measure of punishment he shall first be suspended, and shall make over his papers and records to the Supervisor Kanungo or to such other person as the Supervisor Kanungo may indicate within one week from the receipt of the order. In either case the Supervisor Kanungo shall be responsible for seeing that the Lekhpal has made over all his records and papers."

15. Rule 29 provides:-

"A Lekhpal will be punished by the Collector or the Assistant Collector for misconduct or neglect of duty by fine not exceeding three months' pay."

16. Rule 28(2) does not specifically mention that the Assistant Collector shall be empowered to dismiss or remove a Lekhpal. However, if the rules are read as a whole, there can be no doubt that the intention was that the said powers should be exercised by the Assistant Collector and no one else, it is significant to note that the rules nowhere lay down that in cases where it is proposed to dismiss or remove a Lekhpal the proceedings need be submitted by the Assistant Collector to any higher authority for passing final orders.

17. Prior to the reorganisation of the services of Lekhpals, the Patwaris, who used to do the same work as the Lekhpals, were governed by the rules framed under Section 234 (b) of the Land Revenue Act, 1901, and contained in the Land Records Manual. It was provided in those rules (vide Rule I) that the punishing authority shall be the Collector, and the Assistant Collectors in charge of sub-divisions were also authorised to exercise the powers of the Collector. It was specifically mentioned in Rule 13 that a Patwari may be removed or dismissed by the Collector or the Assistant Collector in charge of the sub-division on any of the grounds mentioned therein. Rule 14 provided that a patwari could also be punished by the Collector or Assistant Collector in charge of a sub-division for misconduct or neglect of duty by fine not exceeding three months' pay, by reduction from a higher grade to a lower grade or by loss of seniority within his grade. The Lekhpals Service Rules, 1958, virtually followed the same pattern which existed in the rules framed earlier under Section 234 (b) of the Land Revenue Act, 1901. with this exception only that (a) the Assistant Collectors were primarily made appointing authorities, and (b) it was not mentioned in the rules framed under Article 309 of the Constitution of India that the Assistant Collectors shall be the authority to dismiss or remove the Lekhpals.

18. It has, therefore, to be considered whether under the Lekhpal Service Rules, 1958 the State Government conferred only the power of appointment on the Assistant Collectors, reserving for itself the power to dismiss the Lekhpals by its own orders, or whether the power to appoint given to the Assistant Collectors by implication also conferred on them the power to remove or dismiss the Lekhpals.

19. The above question was considered by this Court in Sita Ram Vs. State, AIR 1968, All 207 and it was opined by this Court that Section 16 of the General Clauses embodies a Rule of general interpretation and unless the context otherwise required, it must be held that Authority competent to appoint had also by implication been authorized to dismiss or remove the Lekhpal who was the person in civil employment of the State. A perusal of the Lekhpal Service Rules 1958 clearly indicates that intention must have been to confer the power of dismissal also on the Assistant Collector who was specifically authorized to appoint Lekhpal.

20. The attention of the trial court was drawn by the learned counsel for the revisionist to the fact that Section 19 of the Act of 49 of 1988 provides as under: -

"Notwithstanding anything contained in clause (c), the State Government may, where it considers necessary so to do, require the authority referred to in clause (c), to give previous sanction within the period specified in this behalf and if the said authority fails to give the previous sanction within such period, the previous sanction may be given by the State Government."

21. In the light of above provision it was argued that under the old Act of 1947 the power to grant sanction lay with the authority which would be competent to remove the public servant from his office at the time when offence was alleged to have been committed but under the new Act, if the said authority fails to give the previous sanction within the specified period, the previous sanction may be granted by the State Government, therefore the said controversy stands settled, but due to the offence in the case in hand being of 19/07/1988, while the new Act having come into force on 09/09/1988, the said provision would not be applicable. Hence, it was argued that the sanction granted by the State Government would not hold good particularly keeping in view the fact that earlier the prosecution sanction was declined by the appointing authority i.e. Sub Divisional Officer. This argument was accepted by the trial court and accordingly it discharged the accused revisionist.

22. I have gone through the provision of Section 19 of Prevention of Corruption Act, 1988 which is as follows:-

"19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 --

(a) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence 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 that Government;

(b) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence 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 that Government;

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

Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless--

(i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and

(ii) the court has not dismissed the complaint under section 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:

Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant:

Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:

Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month:

Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary.

Explanation.--For the purposes of sub-section (1), the expression "public servant" includes such person--

(a) who has ceased to hold the office during which the offence is alleged to have been committed; or

(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.]

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the 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.

                    (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973  (2                                of 1974),-- 
 
 (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; 
 

 
 (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission orirregularity has resulted in a failure of justice; 
 

 
 (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial,appeal or other proceedings. 
 

 
 (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.   
 
                                       
 
                      Explanation.--For the purposes of this section,-- 
 
                            (a) error includes competency of the authority to grant sanction; 
 
                 (b) a sanction required for prosecution includes reference to any requirement that the	prosecution shall be at the instance of a specified authority or with the sanction of a  	specified person or any requirement of a similar nature.
 

 
23.	It shows that the provision quoted above by the trial court does not find mention in the said provision.
 

 

24. I am not inclined to subscribe to the above line of argument because in the State of T.N. vs T. Thulasingam, 1994 Supp (2) Supreme Court Cases 405, in Para 77 of the judgment, the Hon'ble Supreme Court has held that "77. The last finding of the High Court in reversing the decision of the trial court so far as it upheld the sanction for prosecution of the employees is again erroneous. The High Court was in error in its view that only the special officer appointed by the Corporation, when it was superseded, was competent to grant the sanction. It will be noticed that here the sanction had been given by the superior authority, namely the Government itself which appointed the special officer. Once the sanction is granted by the superior authority it does not get invalidated. It could be invalid if the sanction had been granted by the authority subordinate to the authority who had to grant the sanction and in that case would have been subject to challenge. We thus find that the trial court was right in holding that the sanction was validly granted by the competent authority.

25. Similarly in Mahesh Prasad vs the State of Uttar Pradesh, MANU/SC/0045/1954 following has been held: -

"7. The only serious argument that has been advanced and which requires a little closer examination is that there was no valid sanction for the prosecution. There is no doubt that this is a case to which the Prevention of Corruption Act, 1947 would apply and that by virtue of section 6(c) thereof the prosecution requires the sanction of the authority "competent to remove the appellant from his office." It is urged that this requirement was not satisfied on the facts of this case. It has been pointed out that the appellant is a civil servant of the Indian Union and that by virtue of article 311(1) of the Constitution he cannot be removed by an authority subordinate to that by which he was appointed. This appears also to be the position under rule 1705(c) of the Indian Railway Establishment Code, Volume I (1951 Edition) which is as follows :

"No railway servant shall be removed (or dismissed) by an authority lower than that by which he was appointed to the post held by him substantively".

8. The sanction for the prosecution in this case was granted under Ex. 10 by one Shri L. R. Gosain, Superintendent Power, East Indian Railway, Allahabad. The order of appointment of the appellant, Ex-F, shows the Divisional Personnel Officer, East Indian Railways, Allahabad, as the appointing authority. It may be mentioned that in the appeal before the Sessions Judge a contention was raised that appointment of the appellant was in fact made by the Divisional Superintendent and that Ex. F was only signed by the Divisional Personnel Officer on his behalf. The Sessions Judge found against this contention and the same has not been challenged before us. What, however, is urged is that the Superintendent Power who gave the sanction for prosecution is not shown to be an officer not lower in rank than the Divisional Personnel Officer who made the appointment. The question as to the validity of the sanction has been raised both before the Sessions Judge as well as before the High Court. The High Court in considering the question appears to have merely satisfied itself that under the Railway Regulations, Shri L. R. Gosain, Superintendent Power, was a person competent to remove the appellant from his office within the terms of section 6 of Prevention of Corruption Act. The High Court does not appear to have considered the further question whether or not the requirements of article 311(1) of the Constitution and rule 1705(c) of the Railway Establishment Code have been satisfied with reference to the inter se position as between the authority who appointed the appellant and the authority who sanctioned the prosecution. The learned Sessions Judge, however, has recorded a categorical finding that the Divisional Personnel Officer is in the same grade as the Superintendent Power. His finding is in the following terms :

"I, therefore, hold that the accused could be and was actually appointed by the Divisional Personnel Officer who is in the same grade as the Superintendent Power. It cannot therefore be said that the Superintendent Power Mr. L. R. Gosain was not authorised to remove the accused from service by virtue of rule 1705 and this argument advanced against the validity of sanction, Ex. 10, falls to the ground".

9. Learned counsel for the appellant urged that the requirement both of the Constitution and of the rule of the Railway Code, contemplated that the authority competent to remove must be either the very authority who appointed or any other authority directly superior to the appointed authority in the same department. We do not think that this contention is tenable. What the Constitution requires is that a person should not be removed by an authority subordinate to the one by whom he was appointed and what the rule in the Railway Code prescribes is substantially the same, viz., "the authority competent to remove should not be lower than the one who made the appointment". These provisions cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior. It appears to us to be enough that the removing authority is of the same rank or grade. In the present case it does not appear into which particular branch of the department the appellant was taken, in the first instance in 1944 under Ex. F. But it is in the evidence of P.W. 4, the Head-clerk of the office of the Divisional Superintendent, that the office of the Running Shed Foreman in which the appellant was a clerk in 1951 was directly under the Superintendent Power. He was obviously the most appropriate officer to grant the sanction, provided he was of a rank not less than the Divisional Personnel Officer.

10. Counsel for the appellant urges that the evidence does not support the finding of the learned Sessions Judge that Shri L. R. Gosain, Superintendent Power, was of the same grade as the Divisional Personnel Officer who made the appointment. P.W. 4 in his evidence, however, quite clearly speaks to this as follows :

"Divisional Superintendent is the head of the entire administrative division. The Divisional Personnel Officer is under him. The Superintendent Power and Superintendent Transport are also under him and also such other officers of the same rank............ Divisional Personnel Officer and the various Superintendents are officers of the same rank. They are not subordinate to each other".

11. It has been commented that this should have been substantiated by the official records and not by oral evidence. That no doubt would have been more satisfactory. The learned Sessions Judge on appeal, in order to satisfy himself, has referred to the Classified List of Establishment of Indian Railways and the same has been produced before us for our information. This shows that both the Divisional Personnel Officer as well as Superintendent Power are officers in the senior scale drawing equal scales of pay, Rs. 625-50-1375. This is an indication that they are officers of the same rank and confirms the oral evidence of P.W. 4 who being the Head-clerk of the Divisional Superintendent's office must be competent to speak about these matters. It certainly cannot be said that the Superintendents Power who has granted the sanction for prosecution of the appellant at the time working under him, is of a rank or a grade lower than the Divisional Personnel Officer who appointed the appellant. This matter would probably have been more satisfactorily clarified in the trial court if the question as to the validity of the sanction had been raised not merely with reference to the wording of section 6 of the Prevention of Corruption Act but also as read with article 311(1) of the Constitution and rule 1705(c) of the Railway Establishment Code. On the material we are not satisfied that there is any reason to reverse the findings of the courts below that the sanction is valid. "

26. Thus from the above citations it is absolutely clear that the most appropriate officer to grant sanction would be an officer who was of the same rank who had appointed the accused and not less than his rank. It would pre-suppose that the authority holding higher rank than the authority who had appointed the accused would certainly have power vested in it to grant sanction to prosecute. Therefore in the case in hand the sanction having been accorded by the State Government/Governor would not be held to be erroneous even if the fact that the Sub Divisional Magistrate had refused to grant sanction in this matter, was not brought to his knowledge.

27. Now the question arises as to whether in the present matter in which the trial court has discharged the accused as far back as in the year 1992 that is on 24/12/1992 and since then about 27 years have elapsed, whether it would be meaningful to direct the trial court to initiate trial of the accused in accordance with law.

28. In this regard we would like to rely upon Nanjappa vs State of Karnataka, (2015) 14 SCC 186. In this case, the appellant, a bill collector of Gram Panchayat allegedly demanded bribe of Rs. 500 to issue a copy of alleged Panchayat resolution whereby the Panchayat allegedly had decided to convert the road in front of PW 1 complainant's house in the sites for allotment to 3rd parties. On the basis of allegation of PW 1 complainant, the Lokayukta Police arranged to trap and the evidence relating to receiving of bribe by the appellant was collected and recorded. The trial court however, acquitted the appellant on the principal ground that sanction from competent authority was not obtained, that is sanction from Chief Officer Zila Parishad, was not obtained (Section 113, Karnataka Panchayat Raj Act, 1993). The trial court further recorded the finding that the complainant's accusation about the appellant demanding bribe from him was unreliable and unworthy of credit. The High Court, however, found the discrepancies pointed out by the trial court to be inconsequential. And regarding cognizance by the trial court, the High Court held that the validity of sanction was not questioned at the appropriate stage and the appellant was not entitled to raise the same at the conclusion of the trial. The High Court, therefore, by the impugned order reversed the acquittal and convicted the appellant under sections 7 and 13 read with Section 13 (2), P.C. Act and sentenced him to undergo imprisonment for a period of 6 months under sections 7 and for a period of one year under sections 13 besides fine and sentence of imprisonment in default of payment of the same. Allowing the appeal and setting aside the order of conviction it was held by the Apex Court that in case at hand the special court not only entertained the contention urged on behalf of the accused about the invalidity of order of sanction but found that the authority issuing the said order was incompetent to grant sanction. The trial court held that the authority who had issued the sanction was not competent to do so, a fact which has not been disputed before the High Court or in present appeal. The only error which the trial court committed was that, having held the sanction to be invalid, it should have discharged the accused rather than record an order of acquittal on the merit of the case. Resultantly, the trial by an incompetent court was bound to be invalid and non est in law. Further it was held that the High Court had not correctly appreciated legal position regarding the need for sanction or the effect of its invalidity. It has simply glossed over the subject, by holding that the question should have been raised at an earlier stage. The High Court did not realise that the issue was not being raised before it for the first time but had been successfully urged before the trial court. Next, it was considered as to whether, while allowing the present appeal and setting aside the order of the High Court, a fresh prosecution against the appellant should be permitted. The incident in question had occurred on 24/03/1998. The appellant was, at that point of time, around 38 years old. The appellant was today a senior citizen. Putting the clock back at this stage, when the prosecution witnesses may not be available, would not serve any purpose. That apart, the trial court had, even upon appreciation of the evidence, although it was not required to do so, had given its finding on the validity of the sanction, and had held that the prosecution case was doubtful, rejecting the prosecution story, therefore no purpose would be served to resume the proceedings again. It was further held that there was no compelling reason for directing a fresh trial at this distant point of time in a case of this nature involving a bribe Rs. 500 for which the appellant had already suffered the ignominy of the trial, conviction and jail term, no matter for a short while. Thus the appeal was allowed and the order passed by the High Court was set aside.

29. As in the above mentioned case, it was held by the Supreme Court that at a distant point of time it would be futile to resume the proceedings of trial because by then the witnesses of prosecution may not be available, in the present case also I find that approximately 27 years have passed since the trial court had passed order of discharge, therefore at this distant point of time it does not appear to be reasonable to direct the trial court to begin proceedings of trial of the accused revisionist, although I find that the discharge order passed by the trial court was not in consonance with law.

30. Accordingly this revision stands dispose of.

31. Let a copy of this judgment be transmitted to the trial court along with the lower court record to do the needful.

Order Date :- 8.7.2019

A.P. Pandey