JUDGMENT
[ENTITY], J.C.
1. This is an appeal by [ENTITY], ex Sub-Inspector of Police, against his conviction of offences under [SECTION], [ACT], and under [SECTION], [ACT], and the sentence of 9 months R.I. on each count, the two sentences to run concurrently.
2. On 30-12-1955, an application was moved on behalf of the appellant raising an objection for the first time that the sanction of a competent authority under [SECTION], [ACT] for his criminal prosecution had not been obtained, with the result that the trial was invalid and the order of conviction could not be maintained.
In view of the fact that this objection went to the very foundations of the trial and if the sanction had not been obtained as contemplated by [SECTION], [ACT] read with [SECTION], [ACT], the proceedings would have to be quashed, considering that under [SECTION], the Courts of law could take cognizance of the case only after the prior sanction had been obtained and the defect of not obtaining the prior sanction was not curable under [SECTION], [ACT] and was fatal to the trial the appeal was first of all heard on this preliminary objection.
In view of the fact that the appellant was a non-gazetted Government servant for whose appointment no formal notification is published in the official Gazette considerable difficulty was felt in obtaining papers regarding his appointment to the post of the Sub-Inspector, In fact, no formal order of appointment could be traced out and an inference as to the authority who appointed him will have to be drawn, from such papers as have come to my notice and also from the various notifications issued by or under the orders of the Chief Commissioner, on the directions issued by the Secretariate of the Government of Bhopal in this connection.
3. There can be no two opinions on the interpretation of [SECTION], [ACT]. There had never been any conflict in the decisions of the various High Courts on this point. The only one case which had come to my notice and in which a contrary view was taken is a decision of the Single Judge of the Allahabad High Court.
But in view of the consistent opinion of the Privy Council, the Federal Court, and the Supreme Court taken from time to time, this question of law does not require any consideration. The latest case is of the Supreme Court reported in 'Shreekantiah Ramayya v. State of Bombay' , where it was observed at page 292, para 16:
That a defect of this kind is fatal and cannot be cured is well settled." Their Lordships relied upon the earlier decisions in 'Gokul Chand Dwarkadas v. The King' 1948 PC 82 AIR V 35 (B), & 'Madan Mohan Singh v. The State of Uttar Pradesh' , and the observations of [ENTITY] J. in '[PRECEDENT].
In other words, therefore, if the prior sanction of the competent authority as laid down in [SECTION], [ACT], read with [SECTION] of the [ACT], was not obtained, the trial would be ab initio void & will have to be set aside, though a fresh trial would be possible after a proper sanction had been obtained and a charge-sheet submitted afresh against the appellant for his trial of offences for which the sanctions had been obtained.
4. [SECTION], [ACT] lays down that no Court shall take cognisance of an offence punishable under [SECTION], [ACT], or [SECTION], [ACT], alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office.
The words "to remove him from his office" are significant and would clearly show that the authority contemplated therein is the one competent to remove that public servant from his office and not any public servant holding the office held by the accused person.
It is, however, provided in [SECTION] that where for any reason whatsoever any doubt arises as to whose previous sanction as required in Sub-section (1), should be obtained, the sanction shall be given by that 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.
[SECTION], [ACT] cannot override the provisions of the [ACT] and consequently, Sub-section (2) thereof can be made applicable to only such cases where it cannot be ascertained with reasonable certainty as to who had actually appointed the accused person or where by change in rules, the authority who had actually appointed him was no longer competent to remove him from his office.
[SECTION] of the [ACT] provides that no Government servant can be dismissed or removed by an authority subordinate to that by which he was appointed.
5. [SECTION], [ACT], gives power to the Inspector General of Police, to dismiss, suspend, or reduce any police officer of the subordinate ranks whom he thinks remiss or negligent in the discharge of his duty or unfit for the same. This power of the Inspector General is subject to the provisions of [SECTION] of the [ACT] and to such rules as the State Government may, from time to time, make under this Act.
The Inspector General of Police has thus the statutory power to dismiss or remove any police officer of the subordinate ranks. But this power would be indirectly taken away if that particular officer was appointed by an authority superior to the Inspector General of Police. The marginal note of this section was not modified when certain amendments were made to this section.
Originally the Inspector General of Police had also the power to appoint Police officers of the subordinate ranks. But this part of [SECTION] was deleted at the time certain amendments were made there. Consequently, therefore, even though the Inspector General has the statutory power to dismiss or remove a Police Sub-Inspector, such powers cannot be exerciser if under the rules of the State Government such officer was to be appointed and had in fact been appointed by an authority superior to the Inspector General of Police.
In other words, if under Rules framed by the State Government under the [ACT], or otherwise, a Police Sub-Inspector is appointed by the State Government itself, the Inspector General would not be an authority competent to dismiss or remove that Police Sub-Inspector and the authority competent to remove him from his office would be one not subordinate to the authority who actually appointed him.
6. The appellant was originally appointed as a Police constable in the Police Force of Uttar Pradesh and was in due course promoted as a Head Constable and for a certain period officiated as a Police Sub-Inspector prior to his being sent on deputation to the State of Bhopal for appointment as a Police Sub-Inspector. After he had worked for a few years, he was absorbed in the cadre of Sub Inspectors of Bhopal State with effect from 1-4-1952.
It was contended on behalf of the State that the appointment to his present office would be deemed to be at the time he was sent to Bhopal State on deputation and the appointment would be by the authority who posted him as such after) his deputation, and not when he was actually absorbed to the Police Force of Bhopal State. This contention does not at all appeal to me. The words 'appointment', 'transfer', and 'posting' have quite distinct meanings of their own.
Very often the rules framed are such, as to give an authority to a particular officer to make the appointment, but transfers or postings can be made by a subordinate authority. Similarly, an officer sent on deputation to another State will be deemed to have been appointed to the post by a competent authority of the parent State of whose Cadre he had a lien on a substantive post, while transfers and postings can be made by a competent authority of the State to which his services have been given on loan.
In these circumstances the posting or the transfer of a public servant will not determine, nor will it be a safe guide to determine, by whom he had actually been appointed to the post. In the case of the appellant the competent authority of Uttar Pradesh would be the authority who had made his appointment but after his absorption in the cadre of Police Sub-Inspectors of Bhopal State, he would be deemed to have been appointed by the person competent to make such an appointment and who had, in fact, appointed him as such.
In my opinion, therefore, the authority competent to appoint him or who had actually appointed him will have to be determined from the date of his absorption and from the orders whereunder he was absorbed in the service of the Bhopal State as a Police Sub-Inspector. Thus any order passed prior to 1-4-1952 can be disregarded in determining the authority who had, in fact, appointed the appellant.
7. The two relevant papers subsequent to 1-4-1952 which can throw light on the question under consideration are a letter No. 2134-37/EST/A/59 / 16/8 dated 14-8-1953 addressed to the Superintendents of Police, [ENTITY] and [ENTITY], and a letter No. 1239/I-Pol-(16)-1/51 dated 28-1-1954 from the Under-Secretary, Home Department, Government of Bhopal addressed to the Inspector General of Police. In the first letter it is mentioned that the Bhopal and Uttar Pradesh Governments had agreed to absorb the appellant on permanent cadre of Bhopal Police.
In certain cases it can happen that the appointing authority may be one subordinate to the Government of Bhopal, though such appointment can be made only after the prior approval of the Government of Bhopal had been obtained. In case this letter could suggest that the appointment of the appellant as a Police Sub-Inspector was being made by the Inspector General of Police after obtaining the approval of the State Government, it could be said that the appointment had been made by the Inspector General of Police. But his letter is silent on this point.
The only inference, therefore, which can be drawn from this letter is that the appointment was probably made by the Government of Bhopal. The other letter also leads me to a similar inference. In para 2 thereof it is mentioned that the Government had approved of the permanent absorption of the appellant with effect from 1-4-1952 and in para 3 it is mentioned that on permanent absorption he would draw the salary in the scale of Sub-Inspectors sanctioned for Sub-Inspectors of Bhopal State.
Any doubt which may have existed in the interpretation of these two letters is in my opinion set at rest by the various notifications issued by the Chief Commissioner of Bhopal regarding the re-delegation of his powers for making appointments to the various posts.
8. The Chief Commissioner of Bhopal had made certain rules called the [ACT], under [SECTION] of the [ACT], which were published in the Gazette of Bhopal under notification No. 52 dated 9-8-1950. But these Rules were framed before the President delegated the functions of the State Government to the Chief Commissioner of Bhopal under the [ACT]. Such delegation of powers was made under Government of India Notification No. 104-J, dated 24-8-1950.
Further, even though such powers had been delegated to the Chief Commissioner on 24-8-1950 and the [ACT] had been extended to the State of Bhopal with effect from 1-1-1950, the Act could not immediately come into operation with effect from that date. [SECTION], [ACT] itself lays down that the Act shall not by its own operation take effect in any State, but the State Government may by an order to be published in the Official Gazette extend the whole or any part of the Act to the State. Such an order was published under Notification No. 6-II-T dated 12-6-1954.
In other words, therefore, the [ACT] would be deemed to have taken effect in the State of Bhopal with effect from 12-6-1954 and any rules framed earlier purporting to be under [SECTION], [ACT] will not in the eye of law, be rules framed under this Act. They would be like ordinary rules published by the Chief Commissioner from time to time and they would be the rules which he could modify from time to time.
9. [SECTION], [ACT], gave power to the Inspector General of Police to make appointments upto the rank of Inspectors. But this rule will be deemed to have been modified by the subsequent notifications issued from time to time. Notification No. 5 dated 27-9-1951, which supersedes all the previous orders on the subject, indicates the powers of the Chief Commissioner which were being re-delegated to certain Heads of Departments including the Police Commissioner, i.e., the Inspector General of Police.
Notification No. 4 dated 16-2-1952, which was issued in continuation of Notification No. 5 dated 27-9-1951, provides for the re-delegation of powers to Heads of Departments for making appointments to sanctioned permanent posts. This Notification No. 4 clearly lays down the power of the Heads of Departments who were authorised to make appointments to posts carrying a scale of pay the maximum of which did not exceed Rs. 120/-. This point was further made clear in office Memorandum No. 6444 issued by the Home Secretariat, Bhopal, on 31-5-1952.
Paragraph 5 of this Office Memorandum is material on the point. It is laid down therein that for all posts which carry a maximum salary of Rs. 120/- per month, the Heads of the Departments concerned will in future be the appointing authority and for all other posts the appointing authority will be either the Bhopal Government or the Government of India as the case may be.
Certain Police Regulations were published in 1954 by the Inspector General of Police, Bhopal under the authority of the Government of Bhopal. This is an official publication and it is mentioned therein that the Inspector General of Police has the above restricted powers and he can make appointments to the subordinate ranks only to such posts which do not carry the maximum salary above Rs. 120/-.
It was mentioned by the learned Government Advocate that these Police Regulations were never approved by the Government and cannot be treated as an official publication. It is not necessary for me to record any finding on this-point, but the fact remains that upto the year 1954 it was clear to every one including the Inspector General of Police that he was not authorised to make appointments to posts carrying a maximum salary of more than Rs. 120/-.
The rules for the appointments of Police Sub-Inspector and Circle Inspectors were further modified under Notification No. 15, dated 5-11-1954 where by the Inspector General of Police could make appointments upto the post of Circle Inspectors provided the maximum salary of the post was not above Rs. 120/- and the appointment to such posts carrying a salary of more than Rs. 120/- could be made by the Chief Secretary.
10. It is the admitted case of the parties-that the time-scale of the Police Sub-Inspector as sanctioned by the Government of Bhopal is Rs. 80-80-5-130-E.B.-3-160 In these circumstances prior to 5-11-1954 the Police Sub-Inspectors could be appointed only by the Government of Bhopal and after this date they could be appointed by the Chief Secretary and not by the Inspector General of Police.
The appellant was absorbed in the Bhopal Police under G.O. 1239 dated 28-1-1954, though the order was to take effect from 1-4-1952. In these circumstances only the Government of Bhopal, that is, the Chief Commissioner, was competent to appoint the appellant as a Police Sub-Inspector. If the documents referred to previously are read in this light, it will have to be held that the appellant was permanently absorbed in the Bhopal Police and was appointed as a Police Sub-Inspector by and under the orders of the Chief Commissioner of Bhopal.
When he was so appointed by the Chief Commissioner, the authority competent to remove him from his office would, by virtue of [SECTION], of the [ACT], be not one subordinate to the Chief Commissioner. Consequently the sanction for prosecution as required under [SECTION], [ACT] must be by the Chief Commissioner and not by an authority subordinate to him.
11. The proper order on the record sanctioning the criminal prosecution of the appellant is that of the Inspector General of Police. When the appellant had taken the preliminary objections regarding the sanction having not been given by the competent authority, the Government Advocate filed a copy of the letter which the inspector General of Police had sent to the Chief Secretary to the Government of Bhopal. This letter is D.O. No. 656 ST dated 6-4-1955.
From para 3 thereof it appears that often, the detection of the crime the Inspector General of Police had discussed the case with the Chief Secretary on the telephone and the Chief Secretary had suggested that the Sub-Inspector should be dealt with according to law and must stand his trial before the Court.
On the basis of these observations it can to the most be said that the Chief Secretary, Shri [ENTITY], had also given his sanction for the criminal prosecution of the appellant when he was informed of the facts of the case leading to the detection of the crime. But the sanction of the Chief Secretary can be of no help to the prosecution. The Chief Secretary is subordinate to the Chief Commissioner and consequently the sanction of the former cannot be deemed to be the sanction of the Chief Commissioner.
12. It may also be observed that the above letter was to he sent it the Chief Commissioner and the Chief Minister for information. Not only was this fact mentioned in para 4 of the letter but the original latter may be with its enclosures, was sent to the Chief Commissioner and the Chief Minister for their information. On the margin there are the Initials of the Chief Commissioner but his initials on the letter cannot at all indicate that he had given his sanction as was necessary under [SECTION], [ACT].
The Courts of law do not want to be too technical in laying down in which form sanction should be given but at the same time it is necessary that the order passed by the authority must be such as to indicate that while passing the order he had in mind to sanction the criminal prosecution of that public servant.
In [PRECEDENT], the word "approved", on the draft letter was regarded to be sufficient to hold that the Excise Commissioner had given the sanction for the criminal prosecution. In the present case no sanction had been given, nor was any word used to suggest that sanction for criminal prosecution was being given.
In case the Chief Secretary had submitted the letter to the Chief Commissioner for giving his approval or sanction to the criminal prosecution of the appellant and the Chief Commissioner had simply put his initials below the note of the Chief Secretary, it could be said on the basis of the practice prevalent in the Secretariat that by fixing his signature what the Chief Commissioner had in mind and, in fact, ordered was that the appellant should be prosecuted and his case sent up before the court of law.
Mere initials of the Chief Commissioner in such circumstances could be regarded to amount to a sanction as contemplated by the law. But in the present case the letter was sent to the Chief Commissioner merely for information. This was indicated in the letter itself and in the forwarding portion the Chief Secretary did not add anything suggesting thereby that the papers were being sent for information only.
In other words, there is nothing on the record to show that the Chief Commissioner had given his sanction for the criminal prosecution, of the appellant of the offences of which he has now been convicted. When no legal sanction had been given, the Special Judge had no jurisdiction to take cognisance of the case. The trial was thus ab initio invalid and is liable to be quashed.
13. The appeal is hereby allowed, the order of conviction is set aside and the proceedings taken by the Special Judge are quashed. The parties would thus be relegated to the position as if no legal charge-sheet had been submitted against the appellant.