1954 JTR(SC) 148
1955 AIR(SC) 70 ; 1955 AllLJ 87 ; 1955 BLJR 98 ; 1955 CrLJ 249 ; 1955 1 MLJ 83 ; 1955 SCJ 153 ; 1955 1 SCR 965 ; 1955 KHC 324
SUPREME COURT OF INDIA
B.K. Mukherjea, Vivian Bose, B. Jagannadhadas, JJ.
Mahesh Prasad – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 39 of 1954
Decided On : 29-10-1954
Act
Referred
:CONSTITUTION OF INDIA : Art.311(1)
INDIAN PENAL CODE : S.161
PREVENTION OF CORRUPTION ACT : S.6(c)
RAILWAYS ESTABLISHMENT CODE : R.1705(c)
Prevention of Corruption Act, (1947), Section 3, proviso and Section 5(4) before Amending Act 59 of 1952 and Section 5-A inserted by Amending Act 59 of 1952-Provisions mandatory-Effect of violation Duty of the trial court.
Scheme of investigation under the Criminal Procedure Code ; Sections 4(1) (i), 156, 168, 173, 551, Chap. XIV; 190, 193, 195 to 199 and 537.
The cases against the appellants were that they along with some others entered into criminal conspiracies to obtain for themselves or for others iron and steel materials in the name of certain bogus firms and that they actually obtained quota certificates, on the strength of which some of the members of the conspiracy took delivery of quantities of iron and steel from the stock-holder of these articles. The charges therefore, under which the various accursed, including the appellants, were being prosecuted were under section 120B, I.P.C., section 420, I.P.C. and section 7 of the Essential Supplies (Temporary Powers) Act, 1946. In respect of such of the accused as were public servants, there were also charges under section 5(2) of the Prevention of Corruption Act, 1947.
Under section 5(4) of the Prevention of Corruption Act, 1947, a police officer below the rank of a Deputy Superintendent of Police shall not investigate any offence punishable under sub. section (2) of section 5 of the Act without the order of a Magistrate of the First Class. The first information reports in these cases were held in April and June, 1949, but permission of the Magistrate, for investigation as against the public servant concerned, by a police officer of a rank lower than a Deputy Superintendent of Police, was given in March and April 1951. The charge sheets in all these cases were filed by such officers in August and November 1951, i.e. subsequent to the date on which permission as above was given. But admittedly the investigation was entirely or mostly completed in between the dates when the first information was laid and the permission to investigation by an officer of a lower rank was accorded. It was therefore argued that the proceedings by way of trial initiated on such charge-sheets were illegal and required to be quashed.
Held: (1) Sub-sections (1) and (2) of section 5 of the Prevention of Corruption Act, 1947, create a new offence of "criminal misconduct in discharge of official duty" by a public servant. This is in itself a cognizable offence, having regard to item 2 of the last portion of Schedule II of the Cr.P.C. under the head "offences against the other laws", In the normal course. therefore, an investigation into the offence of criminal misconduct under Section 5(2) of the Act and an investigation in to the offence under Sections 161 and 165, I.P.C. which have been made cognizable by section 3 of the Act would have to be made by an officer in charge of a police station and no order of any Magistrate in this behalf would be required. But the proviso to Section 3 as well as sub-section (4) of section 5 provide that "a police officer below the rank of a Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the First Class or make any arrest there for without a warrant."
These provisions and the corresponding section 5-A as inserted by the Amending Act 59 of 1952 are mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality. There is no universal rule to aid in determining whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the court to try to get at the real intention of the legislature by carefully attending to the whole Scope of the statute to be construed.
(2) According to the scheme of Criminal Procedure Code, investigation is a. normal preliminary to an accused being put up for trial for a cognizable offence (except when the Magistrate takes cognizance otherwise than on a police report in which case he has the power under Section 202 of the Code to order investigation if he thinks fit), Therefore it is clear that when the legislature made the offences in the Act cognizable, prior investigation by the appropriate police officer was contemplated as the norm3.1 preliminary to the trial in respect of such offences under the Act, Under the Code investigation consists generally of the following steps: (1) Proceeding to the spot; (2) Ascertainment of the facts and circumstances of the case; (3) Discovery and arrest of the suspected offender; (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the inve3tigation and to be produced at the trial; and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filling of a charge-sheet under Section 173.
The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for everyone of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in Section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station. It is also clear that the final step in the investigation, viz., the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under section 551.
(3) When the legislature has enacted in emphatic terms such a provision as is in Section 5(4) of the Prevention of Corruption Act, 1947, it is clear that it had a definite policy behind it. To appreciate that policy it is relevant to observe that under the Code of Criminal Procedure most of the offences relating to -public servants as such are non-cognizable. The underlying policy in making these offences by public servants non-cognizable appears to be that public servants who have to discharge their functions should not be exposed to the harassment of investigation against them on information leveled, possibly, by persons affected by their official acts, unless a magistrate is satisfied that an investigation is called for, and on such satisfaction authoriscs the same. This is meant to ensure the diligent discharge of their official functions by public servant~, without fear of favour. When, therefore, the legislature thought fit to remove the protection from the public servants, in so far as it relates to the investigation of the offences of corruption comprised in the Prevention of Corruption Act, 1947, by making them cognizable, it may be presumed that it was considered necessary to provide a substituted safeguard from undue harassment by requiring that the instigation is to be conducted normally by a police officer of a designated high rank. Having regard therefore to the peremptory language of sub-section (4) of Section 5 of the Act as well as to the policy apparently underlying it, it is reasonably clear that the said provision must be taken to be mandatory.
There is no reason to think that the policy comprehends within its scope only some and not all the steps involved in the process of investigation which, according to the scheme of the Act, have to be conducted by the appropriate investigating officer either directly or when permissible through deputies, but on his responsibility. It is a to be borne in mind that the Act creates two new rules of evidence one under Section 4 and the other under Section 5(3), of an exceptional nature and contrary to the accepted canons of criminal jurisprudence. It is true that the result of a trial in Court depends on the actual evidence in the case but it cannot be posited that the higher rank and the consequent greater responsibility and experience of a police officer has absolutely no relation to the nature and quality of evidence collect3d during investigation and to be subsequently given in Court.
(4) What sub-section (2) of Section 156, Cr.P.C. cures is investigation by an officer not empowered under that section i.e., with reference to sub-sections (1) and (3) thereof. Sub-section (1) of Section 156 is a provision empowering an officer in charge of a police station to investigate a cognizable case without the order of a Magistrate and delimiting his power to the investigation of such cases within a certain local jurisdiction. It is the violation of this provision that is cured under sub-section (2). Obviously sub-section (2) of Section 156 cannot cure the violation of any other specific statutory provision prohibiting investigation by an officer of a lower rank than a Deputy Superintendent of Police unless specifically authorised. But apart from the implication of the language of section 156 (2), it is not permissible to read the emphatic negative language of sub-section (4) of section 5 of the Act or of the proviso to Section 3 of the Act, as being merely in the nature of an amendment of or a proviso to sub-section (1) of Section 156, Cr.P.C.
(5) Where the cognizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.
(6) It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case may call for. The granting of permission by a magistrate under S. 5 (4) of the old Act or section 5-A of the Amended Act is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it.
(7) In one appeal, an Inspector of Police started the investigation on 2-5-1949 under S. 420, I.P.C. and S. 6, Essential Supplies (Temporary Powers) Act committed by a certain person who was not a public servant It was found that some persons who were public servants were liable to be prosecuted under S. 5 (2), Prevention of Corruption Act. The Inspector then made an application to the Magistrate for sanction for investigation under S. 5 (4) of the Act against such public servants. The sanction was given on 20-3-1951 and a charge sheet was filed on 13-11-1951. In the circumstances of the case there was no such defect in the investigation as to call for interference.
(8) In the other two cases the appeals are allowed with the direction that the Special Judge will take back the two cases on to his file and pass appropriate orders after reconsideration in the light of the judgment of the Supreme Court. - Prevention of Corruption Act (1947), Section 6 (C)-Authority competent to remove. - Penal Code, Section 161, Explanation 4-Motive or reward for doing.
Held: (1) To constitute an offence under this section it is enough if the public servant who receives the money takes it by holding out that he will render assistance to the giver "with any other public servant" and the giver gives the money under that belief. It may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it. He may not even have intended to do what he holds himself out as capable of doing. He may accordingly be guilty of cheating. Nonetheless he is guilty of the offence under Section 161 of the Indian Penal Code. This is clear from the fourth explanation to Section 16I.
(2) There is nothing in the terms or Section 161, I.P.C. requiring that the public servant contemplated therein must be a specified public servant. - Article 311 (I)-Authority competent to remove-Railway Establishment Code, (1951) Edition, Vol. I., R. 1705 (c)-Prevention of Corruption Act, 1947, S. 6 (c).
Held: Article 311 (I) of the Constitution and R. 1705 (c) of the Railway Establishment Code cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior.2 It is enough if the removing authority is of the same rank or grade.
Scheme of investigation under the Criminal Procedure Code ; Sections 4(1) (i), 156, 168, 173, 551, Chap. XIV; 190, 193, 195 to 199 and 537.
The cases against the appellants were that they along with some others entered into criminal conspiracies to obtain for themselves or for others iron and steel materials in the name of certain bogus firms and that they actually obtained quota certificates, on the strength of which some of the members of the conspiracy took delivery of quantities of iron and steel from the stock-holder of these articles. The charges therefore, under which the various accursed, including the appellants, were being prosecuted were under section 120B, I.P.C., section 420, I.P.C. and section 7 of the Essential Supplies (Temporary Powers) Act, 1946. In respect of such of the accused as were public servants, there were also charges under section 5(2) of the Prevention of Corruption Act, 1947.
Under section 5(4) of the Prevention of Corruption Act, 1947, a police officer below the rank of a Deputy Superintendent of Police shall not investigate any offence punishable under sub. section (2) of section 5 of the Act without the order of a Magistrate of the First Class. The first information reports in these cases were held in April and June, 1949, but permission of the Magistrate, for investigation as against the public servant concerned, by a police officer of a rank lower than a Deputy Superintendent of Police, was given in March and April 1951. The charge sheets in all these cases were filed by such officers in August and November 1951, i.e. subsequent to the date on which permission as above was given. But admittedly the investigation was entirely or mostly completed in between the dates when the first information was laid and the permission to investigation by an officer of a lower rank was accorded. It was therefore argued that the proceedings by way of trial initiated on such charge-sheets were illegal and required to be quashed.
Held: (1) Sub-sections (1) and (2) of section 5 of the Prevention of Corruption Act, 1947, create a new offence of "criminal misconduct in discharge of official duty" by a public servant. This is in itself a cognizable offence, having regard to item 2 of the last portion of Schedule II of the Cr.P.C. under the head "offences against the other laws", In the normal course. therefore, an investigation into the offence of criminal misconduct under Section 5(2) of the Act and an investigation in to the offence under Sections 161 and 165, I.P.C. which have been made cognizable by section 3 of the Act would have to be made by an officer in charge of a police station and no order of any Magistrate in this behalf would be required. But the proviso to Section 3 as well as sub-section (4) of section 5 provide that "a police officer below the rank of a Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the First Class or make any arrest there for without a warrant."
These provisions and the corresponding section 5-A as inserted by the Amending Act 59 of 1952 are mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality. There is no universal rule to aid in determining whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the court to try to get at the real intention of the legislature by carefully attending to the whole Scope of the statute to be construed.
(2) According to the scheme of Criminal Procedure Code, investigation is a. normal preliminary to an accused being put up for trial for a cognizable offence (except when the Magistrate takes cognizance otherwise than on a police report in which case he has the power under Section 202 of the Code to order investigation if he thinks fit), Therefore it is clear that when the legislature made the offences in the Act cognizable, prior investigation by the appropriate police officer was contemplated as the norm3.1 preliminary to the trial in respect of such offences under the Act, Under the Code investigation consists generally of the following steps: (1) Proceeding to the spot; (2) Ascertainment of the facts and circumstances of the case; (3) Discovery and arrest of the suspected offender; (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the inve3tigation and to be produced at the trial; and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filling of a charge-sheet under Section 173.
The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for everyone of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in Section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station. It is also clear that the final step in the investigation, viz., the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under section 551.
(3) When the legislature has enacted in emphatic terms such a provision as is in Section 5(4) of the Prevention of Corruption Act, 1947, it is clear that it had a definite policy behind it. To appreciate that policy it is relevant to observe that under the Code of Criminal Procedure most of the offences relating to -public servants as such are non-cognizable. The underlying policy in making these offences by public servants non-cognizable appears to be that public servants who have to discharge their functions should not be exposed to the harassment of investigation against them on information leveled, possibly, by persons affected by their official acts, unless a magistrate is satisfied that an investigation is called for, and on such satisfaction authoriscs the same. This is meant to ensure the diligent discharge of their official functions by public servant~, without fear of favour. When, therefore, the legislature thought fit to remove the protection from the public servants, in so far as it relates to the investigation of the offences of corruption comprised in the Prevention of Corruption Act, 1947, by making them cognizable, it may be presumed that it was considered necessary to provide a substituted safeguard from undue harassment by requiring that the instigation is to be conducted normally by a police officer of a designated high rank. Having regard therefore to the peremptory language of sub-section (4) of Section 5 of the Act as well as to the policy apparently underlying it, it is reasonably clear that the said provision must be taken to be mandatory.
There is no reason to think that the policy comprehends within its scope only some and not all the steps involved in the process of investigation which, according to the scheme of the Act, have to be conducted by the appropriate investigating officer either directly or when permissible through deputies, but on his responsibility. It is a to be borne in mind that the Act creates two new rules of evidence one under Section 4 and the other under Section 5(3), of an exceptional nature and contrary to the accepted canons of criminal jurisprudence. It is true that the result of a trial in Court depends on the actual evidence in the case but it cannot be posited that the higher rank and the consequent greater responsibility and experience of a police officer has absolutely no relation to the nature and quality of evidence collect3d during investigation and to be subsequently given in Court.
(4) What sub-section (2) of Section 156, Cr.P.C. cures is investigation by an officer not empowered under that section i.e., with reference to sub-sections (1) and (3) thereof. Sub-section (1) of Section 156 is a provision empowering an officer in charge of a police station to investigate a cognizable case without the order of a Magistrate and delimiting his power to the investigation of such cases within a certain local jurisdiction. It is the violation of this provision that is cured under sub-section (2). Obviously sub-section (2) of Section 156 cannot cure the violation of any other specific statutory provision prohibiting investigation by an officer of a lower rank than a Deputy Superintendent of Police unless specifically authorised. But apart from the implication of the language of section 156 (2), it is not permissible to read the emphatic negative language of sub-section (4) of section 5 of the Act or of the proviso to Section 3 of the Act, as being merely in the nature of an amendment of or a proviso to sub-section (1) of Section 156, Cr.P.C.
(5) Where the cognizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.
(6) It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case may call for. The granting of permission by a magistrate under S. 5 (4) of the old Act or section 5-A of the Amended Act is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it.
(7) In one appeal, an Inspector of Police started the investigation on 2-5-1949 under S. 420, I.P.C. and S. 6, Essential Supplies (Temporary Powers) Act committed by a certain person who was not a public servant It was found that some persons who were public servants were liable to be prosecuted under S. 5 (2), Prevention of Corruption Act. The Inspector then made an application to the Magistrate for sanction for investigation under S. 5 (4) of the Act against such public servants. The sanction was given on 20-3-1951 and a charge sheet was filed on 13-11-1951. In the circumstances of the case there was no such defect in the investigation as to call for interference.
(8) In the other two cases the appeals are allowed with the direction that the Special Judge will take back the two cases on to his file and pass appropriate orders after reconsideration in the light of the judgment of the Supreme Court. - Prevention of Corruption Act (1947), Section 6 (C)-Authority competent to remove. - Penal Code, Section 161, Explanation 4-Motive or reward for doing.
Held: (1) To constitute an offence under this section it is enough if the public servant who receives the money takes it by holding out that he will render assistance to the giver "with any other public servant" and the giver gives the money under that belief. It may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it. He may not even have intended to do what he holds himself out as capable of doing. He may accordingly be guilty of cheating. Nonetheless he is guilty of the offence under Section 161 of the Indian Penal Code. This is clear from the fourth explanation to Section 16I.
(2) There is nothing in the terms or Section 161, I.P.C. requiring that the public servant contemplated therein must be a specified public servant. - Article 311 (I)-Authority competent to remove-Railway Establishment Code, (1951) Edition, Vol. I., R. 1705 (c)-Prevention of Corruption Act, 1947, S. 6 (c).
Held: Article 311 (I) of the Constitution and R. 1705 (c) of the Railway Establishment Code cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior.2 It is enough if the removing authority is of the same rank or grade.
Mr. Hardayal Hardy, Advocate, with Messrs. K. L. Arora and S. D. Sekhri, Advocates, for Appellant; Mr. C. P. Lal, Advocate, for Respondent.
Judgement
JAGANNADHADAS J.: The appellant in this case was a clerk in the office of the Running Shed Foreman of the East Indian Railway at Kanpur. He was convicted under Section 161 of the Indian Penal Code and sentenced to rigorous imprisonment for one year and nine months, and also to a fine of Rs. 200. The conviction and sentence have been upheld by the Sessions Judge on appeal and by the High Court in revision.
The charge against the appellant was that on the 6th of January, 1951, he accepted illegal gratification of Rs. 150 from the complainant Kurphekan - a retrenched cleaner in the Locomotive Department of the Railway, examined as P. W. 2 - as a motive for getting him re-employed in the Railway (by arranging with some superior officer). There was an alternative charge under Section 162 of the Indian Penal Code but it is no longer necessary to notice it since the conviction is for the main charge under Section 161 of the Indian Penal Code.
The Special Police Establishment having received information of the demand of the bribe arranged for a trap and caught the appellant just at the time when he received the sum of Rs. 150 from the complainant and seized the amount. The appellant admitted the receipt of the money but denied that he demanded or accepted it as a bribe. His case was that the complainant had previously borrowed money from him and that this money was paid in discharge of the debt. The courts below have rejected the defence and accepted the prosecution case and conviction followed thereupon.
2. Learned counsel for the appellant has tried to persuade us, with reference to the evidence in the case, that the view taken by the Courts below is unsustainable. It is unnecessary to notice this argument in any detail because this is an appeal on special leave and nothing so seriously wrong with the findings of fact have been shown, which call for interference by this Court. It is sufficient to notice the main legal argument that have been advanced.
3. It is pointed out that the appellant though employed in the Railway was not himself a person who was in a position to give a job to the complainant nor is it shown that he had any intimacy or influence with any particular official who could give a job. It is urged therefore that the offence, if any, committed by the appellant could only be one of cheating and not the receiving of a bribe. This argument is without any substance. By the terms of Section 161 of the Indian Penal Code a person who is a public servant and accepts illegal gratification as a motive for rendering service, with any public servant as such, is guilty of the offence thereunder.
To constitute an offence under this section it is enough if the public servant who receives the money takes it by holding out that he will render assistance to the giver "with any other public servant" and the giver gives the money under that belief. It may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it. He may not even have intended to do what he holds himself out is capable of doing. He may accordingly be guilty of cheating. Nonetheless he is guilty of the offence under Section 161 of the Indian Penal Code. This is clear from the fourth explanation to Section 161,I. P. C, which is as follows :
" A motive or reward for doing . A person who recives a gratification as a motive for doing what he does not intend to do, (or as a reward for doing what he has not done) comes within these words."
Illustration (c) to Section 161, I.P.C. which runs as follows also elucidates this :
"A, a public servant, induces Z erroneously to believe that A s influence with the Government has obtained a title for Z and thus induces Z to give A money as a reward for this service. A has committed the offence defined in this section".
Thus where a public servant who receives illegal gratification as a motive for doing or procuring an official act whether or not he is capable of doing it or whether or not he intends to do it he is quite clearly within the ambit of Section 161, I. P. C
4. The next contention that has been raised is that the charge does not specify the particular public servant who was intended to be influenced by the appellant in consideration of his receiving the money. It is urged that Section 161, I. P. C. would not apply to such a case. It is suggested that the phrase "with any public servant" in Section 161, I. P. C. must relate to a specified public servant. In the present case the evidence of the complainant and the finding of the High Court is that the appellant "purported to attempt rendering of a service to the complainant with another public servant, viz., the Head-clerk at Allahabad". But even apart from such a finding there is nothing in the terms of Section 161, I. P. C. requiring that the public servant contemplated therein must be a specified public servant. The material portion of the section is as follows :
"for rendering or attempting to render any service or disservice to any person, with the Central or Provincial Government or Legislature, or with any public servant as such."
The phrase "Central or any Provincial Government or Legislature" does not contemplate any specified individual or individuals. There is no reason why the phrase "any public servant used in the same context should be taken to mean any specified public servant. The gist of the offence under Section 161, I. P. C. (in so far as it is relevant here) is the receipt by a public servant of illegal gratification as a motive or reward for the abuse of official position or function, by the receiver himself or by some other public servant at his instance. There is, therefore, no substance in this argument.
5. 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. Vol. I (1951 Edn.) 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."
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 Railway. Allahabad, as the appointing authority. It may, be mentioned that in the appeal before the Sessions Judge a contention was raised that the 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 appear 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 the 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."
Learned counsel for the appellant urged that the requirement both of the Constitution and of the rule of the Railway Code, contemplates that the authority competent to remove must be either the very authority who appointed or any other authority directly superior to the appointing 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.
6. 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 a1so 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 ".
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 also 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 matter.
It certainly cannot be said that the Superintendent 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.
7. All the contentions raised before us are untenable. This appeal must accordingly fail. It has been represented to us that the appellant who has been refused bail by this Court when leave to appeal was granted but has been granted bail subsequently has already served nearly six months of imprisonment in the intervening period, that he is a young man and has lost his job. In the circumstances we consider that it is not necessary to send him back to jail. The result, therefore, is that the appeal is dismissed subject to the modification of sentence of imprisonment. We reduce the sentence of imprisonment to the period already undergone. The sentence of fine stands.
Appeal dismissed.
For Citation : AIR 1955 SC 70