BAIJNATH PRASAD TRIPATHI Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by Baij Nath Prasad Tripathi, ex Sub-Inspector of Police, against his conviction of offences under Section 161, I. P. C, and under Section 5 (1) (d), Prevention of Corruption Act, and the sentence of 9 months R. I. on each count, the two sentences to run concurrently.

(2.) ON 30-12-1955, an application was moved on behalf of the appellant raising an objection for the first time that the sanction of a competent authority under Section 6, Prevention of Corruption Act for his criminal prosecution had not been obtained, with the result that the trial was invalid and the order of conviction could not be maintained. In view of the fact that this objection went to the very foundations of the trial and if the sanction had not been obtained as contemplated by Section 6, Prevention of Corruption Act read with Article 311, Constitution of India, the proceedings would have to be quashed, considering that under Section 6, the Courts of law could take cognizance of the case only after the prior sanction had been obtained and the defect of not obtaining the prior sanction was not curable under Section 537, Criminal P. C. and was fatal to the trial the appeal was first of all heard on this preliminary objection. In view of the fact that the appellant was a non-gazetted Government servant for whose appointment no formal notification is published in the official Gazette considerable difficulty was felt in obtaining papers regarding his appointment to the post of the Sub-Inspector, In fact, no formal order of appointment could be traced out and an inference as to the authority who appointed him will have to be drawn, from such papers as have come to my notice and also from the various notifications issued by or under the orders of the Chief Commissioner, on the directions issued by the Secretariate of the Government of Bhopal in this connection.

(3.) THERE can be no two opinions on the interpretation of Section 6, Prevention of Corruption Act. There had never been any conflict in the decisions of the various High Courts on this point. The only one case which had come to my notice and in which a contrary view was taken is a decision of the Single Judge of the Allahabad High Court. But in view of the consistent opinion of the Privy Council, the Federal Court, and the Supreme Court taken from time to time, this question of law does not require any consideration. The latest case is of the Supreme Court reported in--'shreekantiah Ramayya v. State of Bombay' , where it was observed at page 292, para 16: That a defect of this kind is fatal and cannot be cured is well settled. " Their Lordships relied upon the earlier decisions in-' gokul Chand Dwarkadas v. The King' 1948 PC 82 AIR V 35 (B), and--'madan Mohan Singh v. The State of Uttar Pradesh' , and the observations of Varadachariar J. in 'dr. Hori Ram Singh v. Emperor' 1939 PC 43 (AIR V 26) (D ). In other words, therefore, if the prior sanction of the competent authority as laid down in Section 6, Prevention of Corruption Act, read with Article 311 of the Constitution, was not obtained, the trial would be ab initio void and will have to be set aside, though a fresh trial would be possible after a proper sanction had been obtained and a charge-sheet submitted afresh against the appellant for his trial of offences for which the sanctions had been obtained.