S. AMRIK SINGH Vs. STATE

JUDGEMENT

(1.) THIS is a petition under Article 134 (c) of the Constitution for a certificate that the case is fit, for being taken in appeal to the Supreme Court, of India. The Petitioner is S. Amrik Singh, what was an S. D. O. (P.W.D) serving under, the Pepsu Government and who was tried for offences under Sections 409 and 465, Penal Code. He was acquitted by the trial Magistrate but that acquittal was, on an appeal by the State, quashed by our order dated 15 -5 -1953 and he was found guilty and., sentenced for both these offences. The petition does not show that any substantial point of law is involved in the case except that it has been pointed out that the trial was bad; as no sanction, as contemplated by Section 197, Code of Criminal Procedure for prosecuting the Petitioner under Section 465, I.P.C. had been obtained and that "the sanction granted' for launching prosecution under Section 409, I. P. C. was defective on account of its not being free from indefiniteness or vagueness.

(2.) IT has to be mentioned here that the plea of want of sanction being a bar to a valid prosecution was not raised during the trial nor in this Court when the appeal was heard although the Petitioner was represented by one of the leading lawyers .here. When a public servant is charged with an offence before a Magistrate' or a Judge, it would, no doubt, be the duty of that Magistrate or Judge to consider whether that offence .committed by that public servant in the discharge of his official duty or when he was purporting to discharge that duty and whether sanction to prosecute him is necessary and has been obtained; but his professional engagement casts an equally if not greater duty upon the counsel representing the Public Servant accused to bring to the notice of the Magistrate or Judge trying the case the question of sanction at the earliest opportunity so that he can determine it before he begins to deal with the facts and merits of the prosecution accusations and thus save public time, inconvenience and expenses to the accused and avoid proceedings that may later be found to be contrary to law for want of sanction. The counsel in the trial Court as well as in this Court failed in their duty to do so, if at all the question of sanction was deemed to have a material bearing. We had, however, on a perusal of the record come across a letter of the Chief Secretary, Pepsu Government addressed to the Inspector -General of Police, in which it was stated that.

(3.) WE have, however, looked into the order of the State Government on which the communication of the Chief Secretary alluded to above was based and do not feel the slightest hesitation in observing with regret that the Chief Secretary conveyed sanction of the Government when in lact none had been granted. All that the Government had permitted was the registration of a case and enquiry which by no stretch of language was tantamount to permission to prosecute the Petitioner on the specific charges on which he was subsequently tried. The conclusion therefore must be that the trial Magistrate took cognizance of the offences of forgery and criminal breach of trust and proceeded to try the Petitioner without the previous sanction of the Government.