SUDHENDRA KUMAR BHATTACHARJEE Vs. STATE

JUDGEMENT

(1.) A prosecution was launched against the appellant under S. 5(2) read with S 5(1)(c) of the Prevention of Corruption Act, 1947, for short the Act, and S. 409 of the Indian Penal code. The gravamen of the charge against the appellant was that while employed as a public servant in the capacity of a V.P. Letter Clerk in Sub-Post Office at Digboi he had dishonestly or fraudulently misappropriated or otherwise converted for his own use a total sum of Rs. 2,281.82 which had been entrusted to him during the period from 1-4-68 to 26-4-68. In the trial which commenced, the prosecution examined as many as 26 witnesses and on conclusion of the same, the learned Special Judge, Assam, found the appellant guilty under the aforesaid sections of law and awarded different terms of imprisonment as mentioned in para 17 of the impugned judgment.

(2.) The conviction has been ultimately assailed by Shri Bhattacharjee only on the ground that the sanction accorded in the present case for prosecuting the appellant under S. 5(2) read with section 5(1)(c) of the Act was invalid inasmuch as it had not been granted by a person competent to remove the appellant from the office he was holding at the relevant time. A reference to the Posts and Telegraphs Manual, Volume-III, which has been produced by the learned Special Public Prosecutor shows that the proper authority to remove a person like the appellant is the Senior Superintendent. This is admitted by the learned Public Prosecutor in view of what has been mentioned at page 281 of the Manual. In the present case, the sanction was, however, accorded by PW. 15, Shri R. Sarma who was the Superintendent of Post Office. Though the Superintendent of Post Offices has been recognised as the appointing authority of all ministerial staff under clerical grades, to which grade the appellant belongs, he is not the removing authority. Section 6(1)(c) of the Act, however, requires previous sanction of the authority competent to remove the person concerned from the office. The sanction was, therefore, not valid in the eye of law. This vitiated the trial for alleged commission of offence under section 5(2) read with section 5(1)(c) of the Act. This is fairly conceded by the learned Special Public Prosecutor.

(3.) This, however, is not the end of the matter inasmuch as the appellant was also prosecuted and found guilty under S. 409 of the Indian Penal Code. It has, therefore, to be seen whether the infirmity in the sanction affected the trial and conviction of the appellant under S. 409 of the Indian Penal Code. The learned Special Public Prosecutor has submitted in this connection that the provisions of the Act has not repealed section 409 of the Penal Code, and for prosecution under this section, no sanction is necessary. In support of this submission, the learned counsel has referred to a Full Bench decision of the Allahabad High Court in Om Prakash v. State, AIR 1955 All 275. My attention has also been invited to Hori Ram v. Emperor, AIR 1939 FC 43 : (40 Cri LJ 468), which has laid down that no consent is necessary to prosecute a public servant under S. 409 of the Penal Code.