VARGHESE Vs. STATE

JUDGEMENT

(1.) AGAINST that conviction and sentence the the petitioner filed an appeal before this court as Criminal Appeal 352/69. The contention taken in the criminal appeal was that as per S. 6 (1) (c) of the Act, no court shall take cognizance of an offence punishable under S 161 of IPC, or under sub-section (2) or sub-section (3-A) of S. 5 of the 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.

(2.) THE petitioner is an employee under the Kerala State electricity Board. THE Kerala State Electricity Board had given sanction under s. 6 (1) (c) of the Act to prosecute the petitioner for the aforementioned offences. In the criminal appeal before this court the petitioner contended that the sanction given by the Electricity Board is not valid at all, and therefore the proceeding before the 2nd respondent, in which he was convicted was not a judicial proceedings and also without jurisdiction. It was also contended that the conviction and sentence was void. This court held in the criminal appeal that there had been no proper sanction to the prosecution as contemplated by the relevant statutory provision and that without such sanction the prosecution was unsustainable and void and on that basis the court set aside the conviction and sentence and acquitted the petitioner.

(3.) THE petitioner objected to the marking of the deposition. According to him that cannot be proved under S. 33 of the Evidence act, since the same had been taken in a proceedings which had been declared by this court as unsustainable and void on the ground that the case was taken cognizance of by the 2nd respondent without proper sanction. It was also contended by the petitioner that the deposition of the witness being recorded in a proceedings without jurisdiction is not evidence given in a judicial proceedings or before any person authorised by law to take it. Over-ruling the objections the 2nd respondent has passed an order which has been marked as Ext. P1 in this O. P. It is stated therein that a perusal of the judgment in criminal appeal will show that what the court had decided therein is only to the effect that there has been no proper sanction obtained for prosecuting the accused and therefore the prosecution was unsustainable in law. THE learned special Judge points out that the court had not held that there has been inherent absence of jurisdiction on the part of the court to conduct the trial of C. C. 2/67 and therefore it cannot be contended that the deposition taken therein is destitute of any legal effect. THE learned Special Judge further proceeds to state that no doubt the evidence given in a judicial proceedings with inherent absence of jurisdiction cannot be admitted in evidence under S. 33 of the Evidence Act. By the mere fact that the High Court had declared that the trial had been proceeded with without obtaining proper sanction to prosecute the accused and therefore the prosecution is unsustainable will not have the effect of making the deposition taken in that proceedings being treated as non est in law. Reliance was placed by the learned Special Judge on the decision of this court in Crl. R. P. 193/73. In that revision petition the question raised was whether a prior deposition of a witness recorded in a case which was subsequently found to have been initiated without jurisdiction can be used in a subsequent proceedings as valid prior statement either for the purpose of corroboration or for purpose of contradiction. THE present petitioner was the revision petitioner there also. It would appear that a witness who was examined as pw. 5 in C. C. 2/67 was examined as Pw3 when the case came up again in C. C. 9/ 72. This time that witness was hostile to the prosecution. THErefore, his earlier statement, viz. , bis deposition as Pw5 in C. C. 2/67 was sought to be used in the retrial. Taking advantage of the provision in S. 145 of the Evidence Act the accused objected to the use of the deposition as a valid prior statement. This objection was over-ruled and the petitioner came to this court in revision. My learned brother justice Khalid held in that case that "the deposition of a witness does not disappear with the declaration by this court that the trial was vitiated for want of sanction. THE deposition remains as a prior statement. This statement cannot be said to be non est. THE only effect of the declaration by this court that the trial is vitiated for want of sanction is that the accused will not be visited with any adverse consequences by virtue of that trial. " This court said that "it will be extending the principle to an extreme unacceptable extent to say that even a deposition taken in that case will have to be deemed to be non est. Justice Khalid relied on a decision of the Patna High Court in Ramakrishnan v. Emperor (AIR 1946 Patna 82) where a similar situation had arisen. A Division Bench of that High court held that there is no embargo on a previous statement being used in a subsequent proceeding although the previous statement was recorded in a proceeding which was subsequently held to be without jurisdiction.