STATE OF KERALA Vs. MADHAVAN

JUDGEMENT

(1.) This appeal has been filed by the State against the order passed by the Special Judge, Trivandrum in C.C. 13/59 acquitting the accused who had been charged under S.5 [1](d) and S.5 (2) of Act II of 1947 read with S.161 of the India Penal Code, on the ground that the sanction of the competent authority under S.6 of the Act for his criminal prosecution had not been obtained and that the trial is therefore invalid and vitiated. That a defect of this kind if it really exists is fatal and cannot be cured is well settled. Therefore if it is found in this case that the prior sanction of the competent authority as laid down in S.6 read with Art.311 of the Constitution is not obtained the trial would be ab initio void though a fresh trial would be possible after obtaining proper sanction and a charge sheet is submitted afresh.

(2.) The question therefore for consideration is whether the sanction order Ext. P20 is valid and proper. S 6(1) of the Prevention of Corruption Act - Act 2 of 1947 lays down that no court shall take cognizance of an offence punishable under S.161 or S.164 or S.165 of the Indian Penal Code, or under sub-s.(2) of S.5 of this Act, alleged to have been committed by a public servant, except with the previous sanction of the authority competent to remove him from his office. Art.311 (l) of the Constitution provides that no Government servant can be dismissed or removed by an authority subordinate to that by which he was appointed.

(3.) In this case the accused was appointed on 25th November 1939 by the Government of Cochin and Est. D-1 is the order of appointment. It is therefore contended by the accused that only the successor Kerala Government can under Art.311 dismiss or remove him from service and hence under S.6 of the Act the Kerala Government is the only competent authority to sanction the prosecution. On the question whether the accused was appointed by the Government of Cochin State there is no dispute. What the learned Public Prosecutor contends is that the sanction granted by the Director of Health Services is perfectly valid as he must be deemed to be the authority, on whom the powers of the appointing authority, viz., the Government now vests by delegation by the Kerala Government and therefore the Director of Health Services can dismiss or remove the accused from service and therefore can sanction the prosecution of the accused under the Act.