SAHEBKHAN UMERKHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant Sahebkhan Umarkhan who was the SarPanch of Hingolgadh Panchayat from 1st August 1959 to 28th June 1960 was alleged to have committed dishonest and criminal misappropriation of various amounts aggregating to Rs. 3000.00 and odd. In respect of these criminal misappropriations two separate trials were commenced against the accused before the Special Judge Rajkot District Rajkot. In Special Criminal Case No. 17 of 1961 the accused was charged with having committed dishonest misappropriation of a sum of Rs. 2506.62 nP. during the period August 1 1959 to July 30 1960 and thereby having committed offence under sec. 409 I.P.C. and sec. 5(1)(c) punishable under sec. 5(2) of the Prevention of Corruption Act. In Special Criminal Case No. 2 of 1962 the same accused was charged for having dishonestly misappropriated an amount of Rs. 656.97 nP. during the period from August 1 1960 to June 28 1961 and thereby having committed offences punishable under sec. 409 I.P.C. and sec. 5(1)(c) punishable under sec. 5(2) of the Prevention of Corruption Act. Both these cases were tried by the learned Special Judge Rajkot District Rajkot and in each case the accused was convicted of the aforesaid offences and sentenced to suffer R.I. for 2 years and I year respectively with a direction that the sentences should run concurrently. It is against these orders of conviction and sentence in these two cases passed by the Special Judge Rajkot District that the accused has come in appeal and both the appeals will be deposed of by this common judgment.

(2.) Under sec. 6 of the Prevention of Corruption Act no Court can take cognizance of an offence punishable under sec. 5(2) of the Act except with the previous sanction of the authority competent to remove the public servant from his office. Clauses (a) and (b) of sub-sec. (1) of sec. 6 have no application to the facts of this case and therefore they do not arise for consideration and it is clear from the provisions of sub-sec. (1) of sec. 6 the Act that the previous sanction of the authority competent to remove the public servant from his office must have been given before the Special Judges Court appointed to try the case can take cognizance of the offence. Under sec. 6 of the Criminal Law Amendment Act 1952 power has been given to the State Government to appoint Special Judges for the trial of offences inter alia under sec. 5(2) of the Prevention of Corruption Act. Under sec. 7 of the Criminal Law Amendment Act 1952 the offences specified in sec. 6(1) can be tried only by a Special Judge and under sub-sec. (3) of sec. 7 when trying any case a Special Judge may also try any offences other than an offence specified in sec. 6 with which the accused may under the Code of Criminal Procedure be charged at the same trial. It is by virtue of the operation of sub-sec. (3) of sec. 7 of the Criminal Law Amendment Act 1952 that the Special Judge got jurisdiction to try offences under sec. 409 I.P.C. It is provided under sec. 8 of the Criminal Law Amendment Act that the Court of the Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and it is not necessary to have an order of commitment to the Court of a Special Judge. It is clear that sub-sec. (3) of sec. 7 of the Criminal Law Amendment Act is an enabling provision which confers jurisdiction on the Special Judge to try offences which arise in the course of the same transaction which are allied with the principal offence for the trial of which he is appointed a Special Judge. But it is clear that there must be a proper sanction to prosecute granted under the provisions of sec. 6 of the Prevention of Corruption Act before a Special Judge can take cognizance of an offence punishable under sec. 5 of the Prevention of Corruption Act. It is also clear that if the Special Judge has no jurisdiction to try an offence punishable under sec 5 of the Prevention of Corruption Act he has no jurisdiction to try the other allied offences for which power has been conferred upon him under sub-sec. (3) of sec. 7 of the Criminal Law Amendment Act 1952 We are supported in this conclusion by a decision of the Patna High Court reported in A.I.R. 1961 Patna 203 (Ramautar Mahton v. State) and there it was held as follows:-

(3.) It is contended by Mr. Vakharia appearing on behalf of the accused in both these appeals that the sanction to prosecute which was given by the Collector Rajkot is invalid sanction because on the date on which the sanction was purported to have been given the Collector was not the authority competent to remove the Sarpanch from his office in view of the provisions of the Bombay Village Panchayats Act 1958 (Bombay Act No. 111 of 1959). Under sec. 39 of the Bombay Village Panchayats Act 1958 the Panchayat Mandal may after giving due notice to the Panchayat and the person concerned and after such inquiry as it thinks fit remove from office any member or any Sarpanch or Upa-Sarpanch who has been guilty of misconduct or neglect of or incapacity to perform his duty or is persistently remiss in the discharge thereof. A Sarpanch or an Upa-Sarpanch so removed may at the discretion of the Panchayat Mandal also be removed from the Panchayat; provided that no such person shall be removed from office until he has been given a reasonable opportunity of being heard. Under sec. 41 of the Act the Collector may suspend from office any Sarpanch or Upa-Sarpanch against whom any criminal proceedings have been instituted or who has been detained in a prison during trial under the provisions of any law for the time being in force. Therefore the power to remove a Sarpanch from office vests only in the Panchayat Mandal and the power to suspend a Sarpanch during the pendency of criminal proceedings vests in the Collector of the District. But in this particular case as shown by Ex. 40 in Special Case No. 2 of 1962 it was the Collector Rajkot District who granted the sanction to prosecute the accused under sec. 409 and 477-A I. P. C. as well as under sec. 5(2) of the Prevention of Corruption Act.