SHAMJI KARSAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The Division Bench consisting of D. A. Desai and A. N. Surti JJ. has referred the following question to a larger Bench which has now been placed before us:-

(2.) When the appeal reached hearing before the Division Bench consisting of D. A. Desai and A. N. Surti JJ. the learned advocate for the appellant raised two preliminary contentions and we are concerned in the present judgment with the first of those contentions. It was contended that in the instant case sanction to prosecute the present appellant being Ex. 178 on the record of the case was given by the District Development Officer Amreli. This sanction to prosecute the appellant was invalid in that the District Development Officer was not the appointing authority of the appellant and therefore could not have removed the appellant from service and hence it was not open to the District Development Officer to accord sanction under sec. 6 of the Prevention of Corruption Act 1947 in this particular case against the appellant. It was further contended in this connection that as the sanction was invalid the Court of the Special Judge Amreli had no jurisdiction to take cognizance of the offences against the present appellant.

(3.) In order to appreciate this contention regarding the validity of the sanction it may be pointed out that under sec. 6 of the Prevention of Corruption Act 1941 no Court can take cognizance of an offence punishable under sec. 161 or sec. 164 or sec. 165 of the Indian Penal Code or under sub-sec. (2) or sub-sec. (3-A) of sec. 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 service. It is common ground before us that clauses (a) and (b) of sec. 6(1) do not apply to this case because it is nobodys contention that clause (a) which contemplates the case of a person employed in connection with the affairs of the Union would apply to the present appellant nor is it his case that the present appellant is a person employed in connection with the affairs of the State of Gujarat and is not removable from his office save by or with the sanction of the Government. If the case does not fall under either clause (a) or clause (b) then clause (c) contemplates in the case of any other person of the authority competent to remove him from his office. Under Article 311 clause (1) of the Constitution no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.