N Criminal Appeal No 124 of 1972 350 Appeal by Special Leave from the Judgment and order dated 24 11 1971 of the Delhi High Court in Criminal Appeal No54 of 1971C P Lal for the Appellant
H R Khanna and M N Shroff for the Respondent
The Judgment of the Court was delivered by DESAI J
The appellant in this appeal by special leave limited to the determination of the question whether the sanction is valid in law or not has been convicted for offences under section 52 read with section S1 d of the Prevention of Corruption Act 1947  Act  for short and section 161 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for 18 months on each could and a fine of Rs 2000  in default to suffer further rigorous imprisonment for a period of two months for an offence under section 52 of the Act
His appeal being Criminal Appeal No 54 of 1971 was dismissed by the High Court of Delhi and the conviction and sentence were confirmed
As the leave is limited to the question of the validity of sanction ac corded under section 6 of the Act it is not necessary to set out in detail the prosecution case
Briefly stated the prosecution case is that the appellant who was employed at the relevant time as Investigator in the office of the Chief Controller of Imports  Exports CCIE for short accepted from one PT Toprani an amount of Rs 250 by way
of illegal gratification which was not his legal remuneration in presence of witnesses on 18th June 1969 at about 530 pm near Gujarati Samaj Sabha Delhi
D section P Badri Sharma appeared as soon as the trap arranged by him materialised and recovered the amount of Rs 2501 from the appellant
After completing the investigation the appellant was charge sheeted for the offences hereinabove mentioned
Section 6 of the Act forbids the Court from taking cognizance inter alia of offences punishable under section 161 IPC and under sub section
2 of s 5 of the Act except with the previous sanction of the authority therein set out
Necessary sanction was accorded by the Jt
CCIE
On 26th November 1969
The relevant portion of the sanction reads as under Now therefore I section P Chablani being the authority competent to remove the said Shri L section Srivastava from office do hereby accord sanction under section 61 c of the prevention of Corruption Act 1947 for the prosecution of the said Shri L section Srivastava for the said offences under section 161 IPC and 52 read with 51d of Act II of 1947 and in 351 any other offence punishable under the provisions of law in respect of the facts aforesaid and for the taking of cognizance of the said offences by a court of competent jurisdiction
Mr H R Khanna learned counsel who appeared for the respondent raised a preliminary objection
It was urged that the appellant died during the pendency of this appeal and therefore the appeal abates and cannot be proceeded with
Simultaneously it was urged that if the appeal were not to abate on the only ground that the appellant was also sentenced to pay a fine of Rs 200 and therefore
it may he said that right to property of the legal representatives may he adversely affected and therefore they would be entitled to continue the appeal the respondent State is prepared to concede that the sentence of fine may be set aside
Section 394 of the Criminal Procedure Code which provides for abatement of appeals reads as under 394
1 Every appeal under section 377 or section 378 shall finally abate on the death of the accused
2 Every other appeal under this Chapter except all appeal from a sentence of fine shall finally abate on the death of the appellant Provided that where the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal any of his near relatives may within thirty days of the death of the appellant apply to the Appellate Court for leave to continue to the appeal and if Leave is granted the appeal shall not abate
Explanation In this section near relative means a parent spouse lineal descendant brother or sister
The appeal by the appellant is not one under section 377 or section 378 or the Cr
PC and therefore sub section
1 of section 394 will not be attracted The trial for an offence under section 161 IPC and section 52 of the Act would be governed by the provisions of Criminal Law Amendment Act 1952
lt envisages setting up of Court of special Judge
Section 83 of the Criminal Law Amendment Act provides that the Court of Special Judge shall be deemed to be a Court of Sessions
Section 9 confers power upon the High Court to exercise all powers of appellate Court as if the Court of Special Judge were a Court of Sessions trying cases within the local limits of the jurisdiction of the High Court
352 The present case would therefore be governed by sub section 2 of s394 Cr
PC It becomes clear from the proviso to section 3942 Cr
PC that where the appeal is against the conviction and sentence of imprisonment and the appellant dies during the pendency of the appeal any of his near relatives may within the time prescribed therein apply to the appellate court before which the appeal is pending for leave to continue the appeal and if the leave is granted the appeal shall not abate
The appellant has preferred the appeal against his conviction and sentence of imprisonment as also sentence of fine
After his death his near relations as contemplated in the Explanation to sub section
2 of section 394 Cr
PC applied by Criminal Miscellaneous Petition No 559 of 1978 to continue the appeal and this Court granted substitution of such near relations by its order dated 28th March 1978 and thereby granted leave to continue the appeal
Therefore the near relations of the deceased can continue the appeal and even if the respondent State concedes that the sentence of fine be set aside yet the appeal would not abate because the appeal against conviction and sentence of imprisonment would not abate if leave is granted to the near relations of the deceased to continue the appeal
Such Leaving having been granted the appeal would not abate
There is thus no merit in the preliminary objection and it must be negatived
Section 6 of the Act which provides for necessity of previous sanction for prosecution for any of the offences under the Act reads as
under 6
1 No court shall take cognizance of an offence punishable under section 161  or section 164 or section 1165 of the Indian Penal Code or under sub section 2 or Sub section 3A of section 5 of this Act alleged to have been committed by a public servant except with the previous sanction a in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the State Government of the Central Government
b in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the Central Government of the State Government
c in the case of any other person of the authority competent to remove him from his office
2 Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub section 353 1 should be given by the Central or State Government or any other authority such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed
Mr Lal for the appellant contended that as the appellant was an Investigator in the office of the CCIE which at best was a Department under the over all control of the Ministry of Foreign Trade and Supply
Government of India the sanction to prosecute him could only be given by the Government of India
In the alternative it was contended that as the CCIE is head of the office he alone could accord sanction for prosecution as contemplated by section 6 and therefore
the sanction accorded by Jt
CCIE an officer subordinate to CCIE 
was ab initio void and the Court could not have taken cognizance of the offence
Mr Khanna for the respondent on the other hand contended that this case would be governed by Central Civil Services Classification Control and Appeal Rules 1965  1965 Rules  for short and in view of SRO 631 issued by the President in exercise of the powers D conferred by sub rule 2 of rule 11 clause b of sub rule 2 of rule 14 and sub rule 2 of rule 23 of the Central Civil Services Classification Control and Appeal Rules 1957  1957 Rules  for short which order was saved by rule 34 of the 1965 Rules and therefore the Jt
CCIE was both the appointing and disciplinary authority including the authority competent to remove the appellant from service and was accordingly competent to accord sanction under section 61c of the Act
Rule 112 of 1957 Rules provides that all appointments to Central Civil Posts classes II III and IV included in the General Central Service shall be made by the authorities specified in that behalf by a general or special order of the President or where no such order has been made by the authorities specified in the Schedule appended to the Rules
Similarly rule 141 provides that the President may impose any of the penalties including one of removal or dismissal from service as envisaged by rule 13 on any Government servant
Sub rule 2 of rule 14 provides that without prejudice to the provisions of sub rule 1 any of the penalties specified in rule 1 may be imposed under sub clause b in respect of person appointed to a Central Civil post included in the General Central Services by the authority specified in this behalf by a general or special order of the President or where no such order has been made by the appointing authority or the authority specified in the Schedule in this behalf
The entry at p 38 provides that the appointing and disciplinary authority in respect of posts in non Secretariat offices other than posts in respect of which specific provision has been made by a general or special order 354 of the President the head of office would be both the appointing and the removing authority
Now undoubtedly in respect of the office of the CCIE the CCIE would be the head of office
The office of the CCIE is a non Secretariat office
May be the administrative department in respect of this office would be the Ministry of Foreign Trade and Supply
But CCIE is a separate office with its own establishment and undoubtedly head of office would be the CCIE
The President in exercise of the power conferred by sub rule 2 of rule 11 and clause b of sub Rule 2 of rule 14 of the 1957 Rules has made a special order as contemplated by rule 112 and rule 142b as under SRO 631 In exercise of the powers conferred by sub rule 2 of rule 11 clause b of sub rule 2 of rule 14 and sub rule 1 of rule 23 of the Central Civil Services Classification Control and Appeal Rules 1957 The President hereby directs that 1 in respect of the posts in the General Central Service Class II specified in column 1 of Part I of the Schedule to this order the authority specified in column 2 shall be the Appointing Authority and the authority specified in column 3 shall be the Disciplinary Authority in regard to the penalties specified in column 4 2 in respect of the posts in the General Central Service
Class III and the General Central Service Class II specified in column 1 of Parts II and III of the said Schedule the authority specified in column 2 shall be the Appointing Authority  and the authority specified in column 3 and 5 shall be the Disciplinary Authority and Appellate Authority respectively in regard to the penalties specified in column 4
A comprehensive Schedule is annexed to this order The relevant entry is as under Description of Post Appointing Authority competent Appellate authority to impose penalties authority penalties which it may impose with reference to item numbers in rule 13 Authority Penalties 1 2 3 4 5 Organisation of the Chief Controller of Imports and Exports All posts in Headquarters office Joint Chief Joint Chief All Chief Controller of Controller ofController of Imports  Imports  Imports  Exports Exports Exports 355 The entries in the Schedule appended to 1957 Rules will be effective and operative subject of course to any general or special order made by the President in this behalf
It was however contended that by rule 34 of 1965 Rules 1957 Rules were repealed and therefore the order issued by the President in exercise of the powers conferred by sub rule 2 of rule 11 and various other rules bearing on the point would stand repealed and the order of the President would not be effective unless a similar order is issued by the President under the corresponding rule 12 of 1965 Rules
Rule 121 and 2 of 1965 Rules is in pari materia with rule 14 of 1957 Rules
Rule 12 of 1965 Rules confers power on the President to impose any of the penalties specified in rule 11 on any Government servant
Sub rule 2b provides that any person appointed to a Central Civil Post included in the General Central Service by the authority specified in this behalf by a general or special order of the President or where no such order Has been issued by the appointing authority specified in the Schedule in this behalf may impose any of the penalties specified in rule 11 which includes the penalty or removal from service
Therefore the President has the power to issue any general or special order to confer power to impose penalties as specified in rule II on any authority other than the one specified in the Schedule in this behalf
Now if the order issued by the President SRO 631 under corresponding rule l l and the relevant rules bearing on the subject of 1957 Rules is not shown to be inconsistent with any of the Rules included in 1965 Rules
obviously such order would be saved Tender rule 34
No inconsistency was shown to us as contemplated by rule 34
Therefore indisputably the order issued by the President SRO 631 along with the Schedule would be saved
Once SRO 631 is saved the relevant entry hereinabove quoted in respect of the organisation of CCIE would be saved
Accordingly the entry in the order issued by the President would supplant the corresponding entry in 1965 Rules and would have to be substituted for the entries in the relevant item in the Schedule
The necessary consequence would be that in the case of the organisation of the CCIE for all posts in Headquarters office Jt
CCIE would be both the appointing and the disciplinary authority having the power to remove from service such persons belonging to Class III services
Now the appellant was indisputably holding a post in Class III service in the Headquarters office of the organisation of CCIE
He was at the relevant time holding the post of Investigator which was admittedly a Civil post in Class III service in the office of CCIE
Indisputably therefore Jt
CCIE would be both the appointing and disciplinary authority with power to remove him from service
Therefore Jt
CCIE would be competent to accord sanction as envisaged by section 61c of the Act
Sanction 356 in this case having been granted by the Jt
CCIE it was valid
There is thus no substance in the contention of Mr Lal
Mr Lal in this connection drew our attention to a decision in R J Singh Ahluwalia vs The State of Delhi1 The appellant in that case was at the relevant time working as Assistant in Co ordination III of DGTD at Udyog Bhavan New Delhi
His contention was that sanction accorded by Shri K Rajaram Deputy Secretary to Government of India in the Ministry of Industrial Development and Company Affairs Department of Industrial Development was not valid and that he could only have been prosecuted under a sanction that may be accorded by the Home Ministry
In respect of this contention it was conceded on behalf of the State that in the absence of such sanction the prosecution must fail
The judgment proceeds on concession and not on any analysis or examination of the relevant provisions
Therefore it in no way helps the appellant in this case
This being the only point that could be raised in this appeal by limited leave and such contention being without merit the appeal fails
and is dismissed
As the appellant is dead there is no question of his surrendering to Bail
SR Appeal dismissed
1 AIR 1971 SC 1552


Summary:
The appellant who was working as an investigator in the office of the Chief Controller of Imports and Exports was charged found guilty and convicted and sentenced to suffer rigorous imprisonment for 18 months on each count for an offence under Sections 51 d and 52 of the Prevention OF Corruption Act 1947 and section 161 IPC and a fine of Rs 200 or in default to undergo further rigorous imprisonment under section 52 of the Act
His appeal to the High Court was dismissed and the conviction and sentence were confirmed
Special leave was granted by the Supreme Court limited to the question
Of validity of sanction accord under section 6 of the Prevention of Corruption Act 1947
The appellant died during the pendency of the appeal and his near relatives were granted permission to continue the appeal
Dismissing the appeal the
Court  HELD 1
The preliminary objection of the State as to the abatement of the appeal because of the death of the appellant taking into account preparedness to conclude that the sentence might he set aside must be negatived
352D a As per the proviso to section 3942 of the Criminal Procedure Code 1973 where the appeal is against the conviction and sentence of imprisonment and the appellant dies during the pendency of the appeal any of his near relatives may within the time prescribed therein apply to the appellate Court before which the appeal is pending for leave to continue the appeal and if the leave is granted the appeal shall not abate
352A B b The appellant in the instant case has preferred the appeal against his conviction and sentence of imprisonment and also sentence of fine
After his death his near relatives as contemplated in the Explanation to sub section 2 of section 394 Crl
PC applied to continue the appeal and were granted leave to continue the appeal
Therefore the near relations of the deceased can continue the appeal and even if the respondent State concedes that the sentence of fine be set aside yet the appeal would not abate if leave is granted o the near relation of the deceased to continue the appeal
352C D 349 2 The sanction accorded for prosecution of the appellant under section 6 of the Prevention of Corruption Act 1947 by the Joint Chief Controller of Imports and Exports is valid in law 355H 356A a The instant case is governed by Central Civil Services Classification Control  Appeal Rules 1965 and in view of SRO 631 issued by the President in exercise of the power conferred by sub rule 2 of rule 11 clause b of sub rule 2 of rule 14 and sub rule 2 of rules 23 of the Central Civil Services Classification Control  Appeal Rules 1957 which order was saved by rule 34 of the 1965 Rules
353C D b Rule 121 and 2 of 1965 Rules is in pari materia with rule 14 of 1957 Rules
Rule 2 of 1965 Rules confers power on the President to impose any of the penalties specified in rule 11 on any Government servant
Sub rule 2 b provides that any person appointed to a Central Civil Post included in the General Central Service by the authority specified in this behalf by a general or special order of the President or where no such order has been issued by the appointing authority specified in the Schedule in this behalf may impose any of the penalties specified in rule 11 which includes the penalty of removal from service
Therefore the President has the power to issue any general or special order to confer power to impose penalties as specified in rule 11 on any authority other than the one specified in the Schedule in this behalf
If the order issued by the President
SRO 631 under corresponding rule 11 and the relevant rules bearing on the subject of 1957 Rules is not shown to be inconsistent with any of the Rules included in 1965 Rules obviously such order would be saved under rule 34
There being no inconsistency as contemplated by Rule 34 indisputably the order issued by the President SRO 631 along with the schedule would be saved
Once SRO 631 is saved the relevant entry in the schedule in respect of the origination of CCIE would be saved
Accordingly the entry in the order issued by the President would supplant the corresponding entry in 1965 Rules and would have to be substituted for the entries in the relevant item in the Schedule
The necessary consequence would be that in the case of the organization of The CCIE for all posts in Headquarters office lt CCIE would be both the appointing and the disciplinary authority having tho power to remove from service such persons belonging to Class III services
Now the appellant was indisputably holding a post in Class III service in the Headquarters office of the organisation of CCIE
He was at the relevant time holding the post of Investigator which is admittedly a Civil Post in Class III service in the office of CCIE
Indisputably therefore
CCIE would be both the appointing and disciplinary authority with power to remove him from service
Therefore Jt
CCIE would be competent to accord sanction as envisaged by section 61c of the Act
355B H The fact that the administrative department in respect of the office of CCIE is the Ministry of Foreign Trade  Supply does not make any difference because CCIE is a separate office with its own establishment1354A R J Singh Ahluwalia vs State of Delhi ALR  distinguished