ION Criminal Appeal No 66 of 1954
Appeal from the judgment and order dated the 31st December 1953 of the Punjab High Court in Criminal Appeal No 540 of 1953 arising out of the judgment and order dated the 14th September 1953 of the Court of Special Judge Amritsar in Corruption Case No 131 103 of 1953
Shaukat Hussain for the appellant
Gopal Singh and T M Sen for the respondent
October 25
The following judgment of the Court was delivered by 763 KAPUR J
The sole point in this appeal against the judgment and order of the Punjab High Court pronounced on December 31 1953 is the validity and effect of the sanction given under section 61 of the Prevention of Corruption Act Act 2 of 1947 hereinafter termed the Act
The appellant was prosecuted for receiving illegal gratification and the charge against him was in the following terms That you Jaswant Singh while employed as a Patwari Fatehpur Rajputan habitually accepted or obtained for yourself illegal gratification and that you received in the sum of Rs 50 on 19 3 1953 at Subzi Mandi Amritsar from Pal Singh P W as a reward for forwarding the application Es
P A with your recommendation for helping Santa Singh father of Pal Singh in the allotment of Ahata No 10 situate at village Fatehpur Rajputan and thereby committed an offence of Criminal misconduct in the discharge of your duty mentioned in section 51a of the Prevention of Corruption Act 1947 punishable under sub section 2 of section 5 of the aforesaid Act and within my cognizance
 The Special Judge found that the appellant had accepted illegal gratification from Pal Singh Hazara Singh Harnam Singh Joginder Singh Atma Singh Hari Singh and Ganda Singh and that he had received Rs 50 from Pal Singh on March 19 1953 at Subzi Mandi Amritsar
He then held The charge under section 5 1a of the Prevention of Corruption Act 1947 has been established against him beyond reasonable doubt
He is guilty of an offence punishable under sub section 2 of section 5 of the said Act
 The appellant took an appeal to the High Court of the Punjab and Dulat J held that taking into consideration the sanction which will be quoted hereinafter  The appellant could neither have been charged nor convicted of what is probably a much graver offence of habitually accepting bribes
 97 764 But he held that sanction was valid qua the charge of accepting illegal gratification of Rs 50 from Pal Singh
The conviction was therefore upheld but the sentence was reduced to the period already undergone and the sentence of fine maintained
The argument raised by the appellant in this court is that as the sanction was confined to illegal gratification of Rs 50 paid by Pal Singh and the charge was for habitually accepting illegal gratification the trial was without jurisdiction and the appellant could not be convicted even for the offence which was mentioned in the sanction
The sanction was in the following terms  Whereas I am satisfied that Jaswant Singh Patwari son of Gurdial Singh Kamboh of village Ajaibwali had accepted an illegal gratification of Rs 50 in 5 currency notes of Rs 10 denomination each from one Pal Singh son of section Santa Singh of village Fatehpur Rajputan Tehsil Amritsar for making a favorable report on an application for allotment of an ahata to section Santa Singh father of the said section Pal Singh
And whereas the evidence available in this case clearly discloses that the said section Jaswant Singh Patwari had committed an offence under Section 5 of the Prevention of Corruption Act
Now therefore 1 N N Kashyap Esquire ICS Deputy Commissioner Asr as required by Section 6 of the Prevention of Corruption Act of 1947 hereby sanction the prosecution of the said section Jaswant Singh Patwari under section 5 of the said Act
 Section 61 of the Act provides for sanction as follows  No Court shall take cognizance of an offence punishable under Section 161 or Section 165 of the Indian Penal Code or under sub section 2 of section 5 of this Act alleged to have been committed by a public servant except with the previous sanction
 Section 5 1a relates to a case of a public servant if he habitually accepts illegal gratification and section 51d 765 if he obtains for himself any valuable thing or pecuniary advantage
The contention comes to this that as the sanction was only for receiving Rs 50 as illegal gratification from Pal Singh and therefore an offence  under section 5 1d the prosecution the charge and conviction should have been under that provision and had that been so there would have been no defect in the jurisdiction of the court trying the case nor any defect in the conviction but as the appellant was tried under the charge of being a habitual receiver of bribes and the sanction was only for one single act of receiving illegal gratification the trial was wholly void as it was a trial by a court without jurisdiction
The sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness Basque Agarwala vs King Emperor 1
The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself tile evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden
In Gokulchand Dwarkadas Morarka vs The King 2 the Judicial Committee of the Privy Council also took a similar view when it observed  In their Lordships  view to comply with the provisions of cl 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged
It is plainly desirable that the facts should be referred to on the face of the Sanction but this is not essential since cl 23 does not require the sanction to be in any particular form nor even to be in writing
But if the facts constituting the offence charged are not shown on the face of the sanction  the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority
The sanction to prosecute is an important matter it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction
11945 FCR 9398 2 1948 LR 75 IA30 37 766 It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution and therefore unless the matter can be proved by other evidence in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case
In Yusofalli Mulla Noorbhoy vs The King 1 it was held that a valid sanction on separate charges of hoarding and profiteering was essential to give the court jurisdiction to try the charge
Without such sanction the prosecution would be a nullity and the trial without jurisdiction
In the present case the sanction strictly construed indicates the consideration by the sanctioning authority of the facts relating to the receiving of the illegal gratification from Pal Singh and therefore the appellant could only be validly tried for that offence
The contention that a trial for two offences requiring sanction is wholly void where the sanction is granted for one offence and not for the other is in our opinion unsustainable
Section 61 of the Act bars the jurisdiction of the court to take cognizance of an offence for which previous sanction is required and has not been given
The prosecution for offence under section 51d therefore is not barred because the proceedings are not without previous sanction which was validly given for the offence of receiving a bribe from Pal Singh but the offence of habitually receiving illegal gratification could not be taken cognizance of and the prosecution and trial for that offence was void for want of sanction which is a condition precedent for the courts taking cognizance of the offence alleged to be committed and therefore the High Court has rightly set aside the conviction for that offence
In Hori Ram Singh vs The Crown1 the charges against a public servant were under sections 409 and 477A Indian Penal Code one for dishonestly converting and misappropriating certain medicines entrusted to the public servant and the other for wilful omission with intent to defraud to record certain entries in the 11949 LR 76 IA158 21939 FCR159
767 account books of the hospital where he was employed
Thus two distinct offences were committed in the course of the same transaction in which the one under section 477A Indian Penal Code required sanction unders 2701 of the Government of India Act and the other under section 409 Indian Penal Code did not
But the bar to taking cognizance of the former offence was not considered a bar to the trial for an offence for which no sanction was required and therefore the proceedings under section 477A were quashed as being without jurisdiction but the proceedings under section 409 Indian Penal Code were allowed to proceed
Similarly the Supreme Court in Basir ul Huq vs The State Of West Bengal 1 held section 195 Criminal Procedure Code to be no bar to the trial for a distinct offence not requiring sanction although disclosed by the same facts if the offence is not included in the ambit of an offence requiring such sanction
The want of sanction for the offence of habitually accepting bribes therefore does not make the taking of cognizance of the offence of taking a bribe of Rs 50 from Pal Singh void nor the trial for that offence illegal and the court a court without jurisdiction
The submission next raised is that the evidence in support of being habitually a receiver of bribes has caused serious prejudice to the defence of the appellant but no such prejudice has been shown nor does the judgment of the High Court which has proceeded on the evidence in support of the charge of Pal Singh s transaction indicate the existence of any prejudice and there was nothing indicated before us leading to the conclusion of prejudice or to consequent failure of justice
The High Court came to the conclusion that the trial for the offence of habitually accepting illegal gratification could not be validly tried and evidence led on that charge could not be considered but the conviction of receiving a bribe of Rs 50 from Pal Singh is well founded and also that the appellant has not been prejudiced in the conduct of his defence
1  768 No arguments were addressed to this court on the correctness of the finding of the High Court in regard to the conviction for receiving illegal gratification from Pal Singh
We agree with the opinion of the High Court that the offence under section 51 d of receiving illegal bribe of Rs 50 has been made out and would therefore dismiss this appeal
Appeal dismissed


Summary:
The appellant landlord filed an eviction suit for possession of the demised premises mainly on the ground of arrears of rent under Section 123 of the Bombay rent Act 1947
The suit was settled between the parties
By the terms of the compromise possession would be given by the tenant to the landlord by 10 October 1970 or the landlord may recover possession by execution based on this decree but if the tenant paid the entire arrears in full by 10 October 1970 the landlord would not execute the decree for possession
The tenant failing to pay the entire arrears as stipulated the landlord decree holder filed execution proceedings
The executing Court issued a warrant for possession but the Appellate Court set aside the order and dismissed the prayer for eviction
The High Court remanded the matter to the Appellate Court to determine the character of the compromise terms
That court again allowed the appeal and dismissed the execution proceedings altogether
On appeal the High Court agreed with the Appellate Court
It found 730 that clause permitting eviction was penal in nature and therefore not enforceable
The questions before this court weredid the parties to the compromise intend to create or continue the relationship of landlord and tenant whether the compromise terms in the consent decree were penal in nature or merely gave a concession and whether Section 114 Transfer of Property Act could be invoked while executing a decree for possession notwithstanding Section 123 of the Bombay Act
Allowing the appeal this Court HELD It is well settled that a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the court superadding its seal to the contract
But all the same the consent terms retain all the elements of a contract to which the court s imprimaturs is affixed to give it the sanctity of an executable court order
The court will not add its seal to the compromise terms unless the terms are consistent with the relevant law
735 H If the law vests exclusive jurisdiction in the court to adjudicate on any matter the court will not add its seal to the consent terms unless it has applied its mind to the question
In such a case it is the independent satisfaction of the court which changes the character of the document from a mere contract to a court s adjudication which will stop the tenant from contending otherwise in any subsequent proceedings and operate as resjudicata
736 B The character of the con sent decree will depend on the nature of the dispute resolved and the part played by the court while superadding its seal to it
736 C 2 If a defendant is required to suffer the consequence of his failure to abide by terms stipulated such consequence would he penal in nature
But if the defendant gets some benefit by complying with a requirement such as clause can never be penal in character
739 B 3 Admittedly the tenant had failed to pay or tender in court the 731 standard rent and permitted increases due to the landlord
736 E The clause in the consent terms whereby upon payment of the entire rent etc
due from the tenant by a stipulated date was dearly to secure his dues ie arrears of rent etc
This is in the nature of a concession
Where a landlord grants a concession and agrees that if the entire arrears is cleared by a stipulated date he will not insists possession that will not render the clause penal in nature
739 E 4 If the condition precedent for availing of the benefit of concession under clause 3 of the consent terms is satisfied the relationship of landlord and tenant continues but if the tenant fails to comply with the condition precedent for availing of the benefit or concession the forfeiture operates and the tenant becomes liable for eviction under the decree
739 G 5 After the enactment of clause b to section 123 which is a special provision incorporating the equity provision contained in section 114 TP Act in a modified form cases governed under the Act must he resolved in accordance with section 123 of the Act and not under section 114 TP Act
The landlord s right to seek eviction has been drastically reduced and circumscribed by sections 12and 13 of the Act
Similarly the tenant must also seek protection from eviction by complying with the requirements of the Act
740 B If such is not the legal position Sections 12 3 a and 12 3 b would be rendered wholly nugatory
Under the Act a tenant is allowed to continue in possession notwithstanding the termination of the contractual tenancy if the abides by the provisions of the Act
If he fails to abide by the requirement of section 123 of the Act he must take the consequences flowing therefrom
There is no question of granting him double protection
740 C E Krishnabai vs Hari 8 BLR 813 and Gajanand Govind vs Pandurang Keshav 53 BLR 100 referred to
840 B Pradesh Kumar Bajpai vs Binod Behari Sharkar 1980 3SCR 93 relied on
840 H