o 115 of 1956 and Petition No 132 of 1956
Petitions under Article 32 of the Constitution of India for the enforcement of fundamental rights
B D Sharma for the petitioners
C K Daphtary Solicitor General of India Porus A Mehta and R H Dhebar for the respondents 651 1957
February 13
The Judgment of the Court was delivered by section K DAS J
These two petitions for the issue of appropriate writs restraining the respondents from prosecuting and trying the two petitioners on certain criminal charges in circumstances to be presently stated raise the same question of law and have been heard together
This judgment will govern them both
Baij Nath Prasad Tripathi petitioner in Petition No 115 of 1956 was a Sub inspector of Police in the then State of Bhopal
He was prosecuted in the Court of Shri B K Puranik Special Judge Bhopal and convicted of offences under section 161 Indian Penal Code and section 5 of the Prevention of Corruption Act 1947
He was sentenced to nine months  rigorous imprisonment on each count
He preferred an appeal against the conviction and sentences to the Judicial Commissioner of Bhopal
The Judicial Commissioner held by his judGment dated March 7 1956 that no sanction according to law had been given for the prosecution of the petitioner and the Special JudGe had no jurisdiction to take cognizance of the case the trial was accordingly ab initio invalid and liable to be quashed
He accordingly set aside the conviction and quashed the entire proceedings before the Special Judge
He then observed The parties would thus be relegated to the position as if no legal charge sheet had been submitted against the appellant On April 4 1956 the Chief Commissioner of Bhopal passed an order under section 72 of the Criminal Law Amendment Act 1952 No XLVI of 1952 that the petitioner shall be tried by Shri section N Shri vastava Special Judge Bhopal for certain offences under the Prevention of Corruption Act read with section 161 Indian Penal Code
The case of the petitioner is that he cannot be prosecuted and tried again for the same offences under the aforesaid order of April 4 1956
Sudhakar Dube petitioner in Petition No 132 of
1956 was also a Sub Inspector of Police in the then State of Bhopal
He was also prosecuted in the Court of Shri B K Puranik Special Judge Bhopal on a 84 652 charge of having accepted illegal gratification for showing official favour to one Panna Lal
The learned Special Judge by an order dated January 10 1956 came to the conclusion that no legal sanction for the prosecution of the petitioner had been given by the competent authority and the sanction given by the Inspector
General of Police was not valid in law he therefore held that the whole trial was null and void and he could not take cognizance of the offences in question
Accordingly he quashed the proceedings
On February 7 1956 the Chief Secretary to the Government of Bhopal accorded fresh sanction for the prosecution of the petitioner for offences under section 161 Indian Penal Code and section 5 of the Prevention of Corruption Act
The petitioner then moved this Court for appropriate writs restraining the respondents from prosecuting and trying him for the offences stated in the fresh sanction aforesaid
On behalf of both the petitioners the contention is that by reason of cl
2 of article 20 of the Constitution and section 403 of the Code of Criminal Procedure the petitioners cannot now be tried for the offences in question
It is necessary to read here some of the relevant sections bearing on the point at issue
Section 6 of the Criminal Law Amendment Act 1952 prior to the amendment made in 1955 so far as is relevant for our purpose is in these terms  6
1 The State Government may by notification in the Official Gazette appoint as many special Judges as may be necessary for such area or areas as may be specified in the notification Co try the following offences namely a an offence punishable under section 161 section 165 or section 165 A of the Indian Penal Code Act XLV of 1860 or sub section 2 of section 5 of the Prevention of Corruption Act 1947 II of 1947 b any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause a 
Sub section 1 of section 7 of the same Act lays down 7
1 Notwithstanding anything contained in the Code of Criminal Procedure 1898 Act V of 1898 or in 655 any other law the offences specified in subsection I of section 6 shall be triable by special Judges only
The same section also states that when trying any case a special Judge may also try any offence other than an offence specified in section 6 with which the accused may under the Code of Criminal Procedure 1898 be charged at the same trial
It is not necessary for our purpose to read the other sections of the Criminal Law Amendment Act 1952
We then go to the Prevention of Corruption Act 1947 section 6 whereof is relevant for our purpose
That section is in these terms  6
1 No Court shall take cognizance of an offence punishable under section 16l 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 sanctiona 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 Central 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 State 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 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
 It is under this section that sanction was necessary for the prosecution of the petitioners
Clause 2 of article 20 of the Constitution on which the petitioners rely states 654 No person shall be prosecuted and punished for the same offence more than once
 Section 403 1 of the Code of Criminal Procedure on which learned counsel for the petitioners has placed the greatest reliance is in these terms  A person who has once been tried by a Court of competent jurisdiction for ail offence and convicted or acquitted of such offence shall while such conviction or acquittal remains in force not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237 Now it is necessary to state that the point taken by learned counsel for the petitioners is really concluded by three decisions a one of the Privy Councilb another of the Federal Court and c the third of this Court itself
The Privy Council decision is in Yusofalli Mulla vs The King 1 the Federal Court decision in Basdeo Agarwalla vs King Emperor 2  and the decision of this Court not yet reported was given in Budha Mal vs State of Delhi 3 on October 3 1952
The Privy Council decision is directly in point and it was there held that the whole basis of section 403 1 was that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal if the Court was not so competent as for example where the required sanction for the prosecution was not obtained it was irrelevant that it was competent to try other cases of the same class or indeed the case against the particular accused in different circumstances for example if a sanction had been obtained
So is the decision of this Court where the following observations were made with regard to the point in question  Section 403 Criminal Procedure Code applies to cases where the acquittal order has been made by a Court of competent jurisdiction but it does not bar 1 AIR 1949 PC 264
2 3 Criminal Appeal No 17 Of 1952 decided on October 3 1952
655 a retrial of the accused in cases where such an order has been made by a court which had no jurisdiction to take cognizance of the case
It is quite apparent on this record that in the absence of a valid sanction the trial of the appellant in the first instance was by a magistrate who had no jurisdiction to try him
 After the pronouncements made in the decisions referred to above it is really unnecessary to embark on a further or fuller discussion of the point raised except merely to state that we have heard learned counsel for the petitioners who made a vain attempt with a crusading pertinacity worthy of a better cause to show that the Privy Council decision was wrong and the decision of this Court required reconsideration and having heard learned counsel in full we are of the view that the decisions referred to above state the legal position correctly
It is clear beyond any doubt that el
2 of article 20 of the Constitution has no application in these two cases
The petitioners are not being prosecuted and punished for the same offence more than once the earlier proceedings having been held to be null and void
With regard to section 403 Code of Criminal Procedure it is enough to state that the petitioners were not tried in the earlier proceedings by a Court of competent jurisdiction nor is there any conviction or acquittal in force within the meaning of section 403
1 of the Code to stand as a bar against their trial for the same offences
Learned counsel for the petitioners invited our attention to sections 190 191 192 529 and 530 of the Code of Criminal Procedure and submitted that in certain circumstances the Code drew a distinction between jurisdiction  and I taking cognizance 
The whole fabric of the argument of learned counsel was founded on this distinction
Assuming however that in certain cases one Magistrate may take cognizance and another Magistrate may try an accused person it is difficult to appreciate how any Court can try the petitioners of these cases in the absence of a sanction in view of the mandatory provisions of section 6 of the Prevention of Corruption Act 1947
If no Court can take cognizance of the offences in question without a legal sanction it is obvious 666 that no Court can be said to be a Court of competent jurisdiction to try those offences and that any trial in the absence of such sanction must be null and void and the sections of the Code on which learned counsel 1 for the petitioners relied have really No bearing on the matter
Section 530 of the Code is really against the contention of learned counsel for it states inter alia that if any Magistrate not being empowered by law to try all offender tries him then the proceedings shall be void
Section 529 e is merely an exception in the matter of taking cognizance of an offence under section 190 sub section
1 cls
a and b it has no bearing in a case where sanction is necessary and no sanction in accordance with law has been obtained
As part of his arguments learned counsel for the petitioners referred to certain observations made by Braund J in a decision of the Allahabad High Court Basdeo vs Emperor 1 where the learned Judge drew a distinction between taking cognizance  and jurisdiction 
The distinction was drawn in a case where a Magistrate duly empowered to commit cases to the Sessions Court committed ail accused person to the Court of Session in disregard of the provisions of section 254 of the Code of Criminal Procedure and the question was whether the irregularity so committed rendered the Sessions Court incompetent to try the case
The facts there were entirely different from the facts of the present cases and there was no occasion nor necessity for considering such mandatory provisions as are contained in section 6 of the Prevention of Corruption Act
We do not think that the observations made in that case can be pressed in service in support of the argument of learned counsel for the petitioners in these cases treating those observations as though they laid down any abstract propositions of law not dependent on the context of the facts in connection with which they were made
Out of deference to learned counsel for the petitioners we have indicated and considered very briefly the arguments advanced before us
As we have said 1 AIR T045 All
657 before the point is really concluded by decisions of the highest tribunal decisions which correctly lay down the law
The result therefore is that these petitions are devoid of all merit and must be dismissed
Petitions dismissed


Summary:
The accused was tried and convicted by a Special judge for offences under section 161 of the Indian Penal Code and section 5 of the Prevention of Corruption Act
On appeal the whole proceedings were quashed as being ab initio invalid for want of proper sanction
The authorities accorded fresh sanction and directed the accused to be tried by a Special judge for the same offences
It was contended by the accused that the second trial was barred by article 20 2 of the Constitution of India and by section 403 Of the Code of Criminal Procedure
Held that the trial was not barred
article 20 2 had no application in the case
The accused was not being prosecuted and punished for the same offence more than once the earlier proceedings having been held to be null and void
The accused was not tried in the earlier proceedings by a Court of competent jurisdiction nor was there any conviction or acquittal in force within the meaning of section 4031 of the Code to stand as a bar against the trial for the same offence
Yusofalli Mulla vs The King AIR 1949 P C 264 Basdeo Agarwalla vs King Emperor and Budha Mal vs of Delhi Criminal Appeal No 17 Of 1952 decided on October 1952 followed