STATE Vs. HIMATLAL MOTILAL

JUDGEMENT

(1.) THE State has preferred this appeal against the order of the First Class Magistrate, Junagadh, acquitting the respondent of the offence of taking illegal gratification punishable under Section 161, I.P.C.

(2.) THE respondent is a superannuated police head clerk of the Bombay Province. He was in the employment of the Junagadh State prior to its integration with the Saurashtra State. After its integration, the respondent was re -employed as head clerk in the office of the District Superintendent of Police for a period of one year under the sanction of Government conveyed by its order No. 13 -1 (H) dated 14.12.1949. The case for the prosecution was that the respondent accepted Rs. 100/ - as illegal gratification from one Nathubhai Mulubhai of Malta Hatina as a motive or reward for rendering service to the said Nathubhai in assisting him to obtain restoration of arms which Nathubhai had surrendered to the Government. According to the prosecution Nathubhai had surrendered his sword and pistol under orders of the Government and his licence was cancelled. He wanted restoration of these arms and therefore approached the respondent who demanded Rs. 100/ - as consideration for helping him in getting back the arms. Nathubhai then went away promising to return with the money. He was however unwilling to pay anything to the respondent and reported the matter to the authorities. A trap was accordingly arranged and the respondent was actually caught taking a currency note of Rs. 100/ - from Nathubhai on the public road near the Post Office. This was on 29.3.1950. On 30.3.1950, a warrant for the respondent's arrest was obtained from the learned Magistrate before whom he was produced after being arrested and the Magistrate released him on bail. After completing the investigation the Police sent a charge sheet to the Magistrate on 18.5.1950. Along With the charge sheet, a copy of an order signed by Mr. Pathak for the Inspector -General of Police suspending the respondent from service was filed. (Exh. 29 and Exh. 40). An endorsement below this order signed by the Deputy Superintendent of Police, Special Branch, Rajkot, purported to accord sanction for the respondent's prosecution as required by Section 6 of the Prevention of Corruption Act, 1947. It appears that the prosecution entertained some doubt about the validity of this sanction. The Inspector General of Police therefore moved the Government to accord sanction for the respondent's prosecution by his express letter No. S/IGP/6025 of 1950 dated 23.6.1950 (Exh. 61). Sanction for the respondent's prosecution was therefore accorded by the order of the Government dated 15th July 1950 (Exh. 64). This order has been signed by Mr. Section M. Dalai, Deputy Secretary, Home Department. After receiving the sanction from the Government the learned Magistrate commenced to record prosecution evidence and framed a charge against the respondent under Section 161, I.P.C. Witnesses were recalled for cross -examination at the instance of the respondent but on the day fixed for their cross -examination the respondent submitted an application to the learned Magistrate stating that the proceedings of the learned Magistrate rejected this contention and should be quashed as he had taken cognizance of the offence before receiving the sanction. The learned Magistrate rejected the contention and ordered that the trial should be proceeded with. Against this order, the respondent applied in revision to the Sessions Judge without success. He then approached this Court in revision against the learned Magistrate's order. In this revision, In addition to the contentions raised before the learned Magistrate the validity of the order of the Government dated 15.7.1950 (Exh. 64) sanctioning the respondent's prosecution was called into question on the ground that it did not mention the particulars of the offence with which he was charged. This Court held that the learned Magistrate took cognizance of the offence on 18.5.1950 when he received the charge -sheet and took actual cognizance of the same. On this date, there was no valid sanction to prosecute the respondent as required by Section 6 of the Prevention of Corruption Act as the Government's sanction Ex. 64 was received on 15.7.1950 after the learned Magistrate had taken cognizance of the offence. But as the sanction was received while the proceedings were still pending, the respondent was not prejudiced and the defect could be cured under Section 537, Cr.P.C. It was further held that the sanction would be a valid sanction if the facts on which the sanction was based were placed before the sanctioning authority and the sanction was granted by that authority after applying its mind to these facts. The sanction of the Government produced in this case on the face of it did not mention these facts. But as the learned Advocate General stated before the Bench that the prosecution was in a position to produce extraneous evidence that these facts were placed before Mr. Dalai, the case was sent back to the learned Magistrate with a direction that the prosecution should be given an opportunity to adduce evidence on the point. Thereafter, the prosecution examined Hardatt Mohanlal (Exh. 66) the Superintendent, Special Branch, in the Home Department and produced certain papers from the office of the Home Department. The learned Magistrate recorded the rest of the evidence and after hearing arguments acquitted the respondent holding that though the prosecution had proved that the respondent had accepted Rs. 100/ - from Nathubhai, it was not proved that he had accepted them as a motive or reward for rendering service to him. On the question of the validity of the sanction, he held that the prosecution had not proved that the facts upon, which the sanction was based were placed before Mr. Dalai who gave the sanction, but the defect was nevertheless cured under Section 537, Criminal P.C.. The present appeal is against this order.

(3.) WE shall first take up the question whether the prosecution has proved that the facts as which the prosecution was based were placed before Mr. Dalai. (After discussion of the evidence his Lordship proceeded:). The prosecution was given an opportunity to prove that these facts were brought to the notice of Mr. Dalal before he sanctioned the respondent's prosecution and they have failed to do so and it is not possible to draw any inference in favour of the prosecution. We must therefore hold that the facts on which the respondent's prosecution has been founded are not proved to have been placed before Mr. Dalal before he gave the sanction.