JALAL UDDIN Vs. EMPEROR

JUDGEMENT

(1.) Jalaluddin Excise Inspector of the Bijnor District applied to the High Court in revision to have his conviction under Section 161, Indian Penal Code, for taking an illegal gratification from a liquor contractor set aside. The learned Judge to whom the application was presented referred the matter to a Bench of two Judges and also issued a notice to Jalaluddin to show cause why the sentence passed on him should not be enhanced. The applicant was sentenced by a Magistrate of the Moradabad District, to whose Court the case was transferred from Bijnor, to simple imprisonment for one month and a fine of Rs. 500 with three month's further simple imprisonment in default.

(2.) The point raised in revision was that the prosecution of the applicant without the sanction of the Local Government was bad and so the trial should be set aside. The applicant is an Excise Inspector who was appointed to his post by the Local Government in 1901. Under Section 197(1) of the Cr.P.C. the sanction of the Local Government is necessary for the prosecution of any public servant who is not removeable from his office save by or with the sanction of the Local Government or some higher authority. The appellant was appointed prior to the passing of the U.P. Excise Act IV of 1910. Under Section 10(2) of that Act the Local Government is given power by a notification to appoint an officer referred to as the Excise Commissioner vide Clause (a) and to delegate to the officer all or any of its powers under the Act except the power conferred by Section 40 of the Act to make rules. In pursuance of such authority the Local Government issued a notification under Section 10(2)(f) of the U.P. Excise Act on 8 September 1924. It is admitted that an Excise Commissioner has been duly appointed. Under the Notification No. 295- XIII-110 of 8 September 1924 (U.P. Gazette of 13 September 1924, page 1249) the Local Government has delegated to the Excise Commissioner among other the following powers: 9. Power to appoint all officers of the Excise Department below the lank of Assistant Excise Commissioner, provided that the appointment and promotion, removal or dismissal of Excise Inspectors shall be subject to the general control of the Local Government. 10. Power to censure, withhold promotion from, reduce to a lower pest, suspend, remove or dismiss all officers of the Excise Department below the rank of Assistant Excise Commissioner.

(3.) There is a proviso added to the powers that in cases of dismissal, removal or reduction the Excise Commissioner shall follow the procedure laid down in Rule 14 of the rules made by the Secretary of State under Section 96-B(2) of the Government of India Act. According to this notification the applicant who is an Excise Officer below the rank of Assistant Excise Commissioner may be dismissed by the Excise Commissioner. He is, therefore, removeable from his office by an authority lower than that of the Local Government and without the sanction of that Government.