Government Appeal (S.J.)No. 2 of 2001 **** Against the judgment and order, dated 21st December, 2000, passed by Sri Prabodh Ranjan Dash, Special Judge, C.B.I., South Bihar, Patna, in Special Case No. 19 of 1980 **** The Union of India through Central Bureau of Investigation, Special Police Establishment, Patna .. Appellant Versus Shambhu Sharan, son of late Rajpati Prasad, resident of village Madhopur, P.S. Bargaria, district Siwan, at present 533/Nehru Nagar, P.S. Patliputra Colony, district Patna .. Respondent **** For the appellant .. Mr. B.K. Sinha, S.C.,C.B.I. For the respondent .. Mr. Kanhiya Prasad Singh, Sr. Adv. With M/S Nachiketa Jha & Lal Babu Keshri, Advs. **** P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. This appeal is directed against the order of acquittal, dated 21st December, 2000, passed by Sri Prabodh Ranjan Dash, Special Judge, Central Bureau of Investigation, South Bihar, Patna, in Special Case No. 19 of 1980 arising out of R.C. No. 12 of 1980 2. The prosecution case, as alleged in the written report that while the respondent was working as Assistant Booking Clerm at Patna Junction Railway Station during 1972 to 1979 misused his official position 2 and acquired a mass wealth disproportionate to his known source of income. On the same allegation the first information report was lodged bearing R.C. No. 12 of 1980, dated 27.08.1980 under Sections 5(2) and 5(1)(e) of the Prevention of Corruption Act (hereinafter referred to as, „the Act‟). After investigation the charge sheet was submitted under Section 5(2) read with 5(1)(e) of the Prevention of Corruption Act and after cognizance charge was framed under Section 5(1)(e) and (2) of the Act. During the trial twenty witnesses have been examined on behalf of the prosecution, various documentary evidences have also been proved which have been marked as Exhibits 1 to 9. The defence has also adduced one documentary evidence and three witnesses have been examined on behalf of the defence. 3. However, after considering oral and documentary evidence the trial Court hold that the accused accumulated more wealth disproportionate to his known source of income and so prosecution has proved the charge beyond reasonable doubt that accused accumulated huge wealth more than his known source of income. However, the learned trial Court, further, held that sanction to prosecute the respondent under the Act is bad in law and so cognizance taken against the accused under the Act is also bad in law and the accused can not be convicted for lack of proper sanction and thereby acquitted the accused. 4. However, the finding of acquittal recorded on the ground that sanction is bad in law as Exhibit 7, the sanction order for launching the prosecution hasbeen accorded by Mr. R.N. Tiwary, Divisional Railway 3 Manager, Eastern Railway, was not competent authority to accord sanction for prosecution to the accused on the basis that this respondent was also accused in another case under Sections 5(2) and (1) of the Act in which he was convicted by Special Court, but, in appeal the Hon‟ble High Court has been pleased to set aside the judgment holding that “sanction to prosecute the accused/respondent under the provisions of the Act was bad in law. The sanctioning authority in that case was also R.N. Tiwary, Divisional Railway Manager, Danapur, who is also the sanctioning authority in this case, as per Exhibit 7, and, hence, held that the aforesaid observation of the trial Court has no option, but, to hold that no proper sanction is accorded”. 5. Hence, against the judgment of acquittal the Union of India has preferred this Government Appeal challenging the finding of the learned lower Court that sanction accorded for prosecution is bad. The learned counsel for the appellant, however, contended that the Divisional Railway Manager is the competent authority to accord sanction for prosecution. 6. The learned counsel for the Union of India while assailing the judgment on the point of sanction has contended that the judgment rely by the learned lower Court is dated 09th April, 1997, where it has been held that General Manager is the authority whereas in the earlier decision of this Court in Cr. Misc. No. 5254 of 1984 by a Bench of this Court by it‟s order, dated 16th of March, 1990 (Kapildeo Ram Vrs. The State of Bihar) held that the appointing authority of such type of post as was held by the appellant as Divisional Railway Manager and on the basis of this decision 4 has contended that the Divisional Railway Manager is the proper authority to give sanction for prosecution and further contended that this decision has not been considered in the said appeal in which it was held that the General Manager is the appointing authority and he is a person who can accord sanction and that decision is by a single Judge and if the decision pronounced in Cr. Misc. No. 5254 of 1984 has not been considered then that decision which has been relied upon by the lower Court as per incurium and impugned judgment and sanction is not sustainable in law and the decision of Cr. Misc. No. 5254 of 1984 shall prevail and, hence, this Court has the option either to refer the matter to a Division Bench or to give effect to the earlier judgment holding Divisional Railway Manager is the sanctioning authority of the respondent. 7. The learned counsel for the respondent, however, contends that the decision in Cr. Misc. No. 5254 of 1984 is only momentous not applicable as ratio decided in the case is quite contrary and the decision on the point with regard to the case of the appellant itself was considered in appeal and held that Divisional Railway Manager is not proper authority whereas this decision with regard to the different matters and matter in issue in the decision of Cr. Misc. No. 5254 of 1984 was whether the District Personal Officer-cum-Divisional Railway Manager is of the same rank or higher rank whereas the case on which the learned lower Court relied is a direct decision on the point in appeal against the appellant itself holding in an earlier appeal against this appellant itself that Divisional Railway Manager is not the authority to grant sanction and, thus, case relied 5 upon the learned lower Court has direct bearing whereas the case relied upon by the Union of India is with regard to one Kapildeo Ram not appeal able and more over the prosecution has not brought on record who was the appointing authority and the respondent and there is no fact on record to suggest that the case of Kalildeo Ram was similar to that of the respondent and ratio of the case decided is appeal able and further relying on the decision reported in A.I.R. 1957 M.P., 126 (Ramchandra Gopalrao Vrs. D.I.G. Police), A.I.R. 1990 S.C., 450 (Union of India & Ors. Vrs. Shaik Ali), A.I.R. 1979 S.C., 1912 (Krishna Kumar Vrs. The Divisional Assistant Electrical Engineer, Central Railway & Ors.), A.I.R. 2008 S.C., 690 (State of Rajasthan Vrs. Ganeshi Lal) and A.I.R. 2008 S.C. 403 (Oriental Insurance Company Ltd. Vrs. Smt. Raj Kumari & Ors.) submitted that irresistible conclusion can be derived that the Divisional Railway Manager is not the sanctioning authority and, hence, the finding recorded by the learned lower Court not required to be disturbed. 8. Hence, on the rival contention of the parties the question for consideration whether the finding recorded by the learned lower Court holding that the Divisional Railway Manager is not the sanctioning authority to grant sanction for prosecution to the appellant is sustainable in the eye of law. 9. The learned counsel for the respondent, however, contended that the trial Court after going through Exhibit 7, the sanction order, and considering Section 6 of the Prevention of Corruption Act held that R.N. Tiwary, the Divisional Railway Manager, is not competent authority to 6 accord sanction under the Prevention of Corruption Act the trial took the note that it is the General Manager who is the competent authority to accord sanction. It has further been contended that the learned lower Court took into consideration that the respondent, Shambhu Sharan, was also an accused in other case and was convicted by the trial Court, but, in Criminal Appeal No. 261 of 1992 Hon‟ble High Court set aside the judgment on the ground that the sanctioning authority, Divisional Railway Manager, in that case was not competent authority. The decision relied upon by the appellant is not applicable as the ratio of the case decided to the facts and circumstances of the present case and for the purposes has relied upon a decision reported in A.I.R. 2008, S.C., 403 (Oriental Insurance Company Ltd. Vrs. Smt. Raj Kumari & Ors.) as a decision in authority for what it actually decides and whatever has been decided in the decision relied upon by the appellant has got no universal application and there the issue whether Divisional Railway Manager and Divisional Personal Officer are of same rank and, hence, on the rival contention of the parties the question for consideration whether the sanction granted by the prosecution suffer from illegality. 10. However, in the present facts and circumstances of the case in the evidence by prosecuting it has not brought on record that who has actually appointed the respondent. Learned counsel for the respondent relied upon the evidence of P.Ws. 7 and 12 and Exhibit 7 is the sanctioning order which shows that Divisional Railway Manager, Eastern Central Railway, Danapur, has accorded sanction. P.W. 7 is one Anant Mohan Das 7 and he has stated that he is a Personal Manager, Eastern Central Railway, in Danapur Office, and his service book is being maintained in this Branch. Since, 1975 to 1979 he was Assistant Parcel Clerk and Assistant Booking Clerk and was a Class III employee. However, he has stated that the Senior Divisional Commercial Superintendent is the competent authority for removal of the accused and the Divisional Railway Manager is a higher authority than the Senior Divisional Commercial Superintendent and both the authorities are competent to remove the accused from service. P.W. 12 is one Mahesh Prasad Gupta and has stated that he is in confidential department of the Divisional Railway Manager Office, Danapur, and this witness stated that he can not say whether the accused was appointed by Railway Service Commission and he can stated this fact only after seeing the service record and has denied the suggestion that it is not a fact that the respondent was appointed by the General Manager. He has further stated that he can not say that who appointed the respondent. He has denied the suggestion that the officers of senior scale (Class I) are higher in rank than the appointing authority of Shambhu Sharan and his attention has been drawn that it is wrong to say that sanction was granted by an officer, who appointed the respondent. However, the fact remains that there is nothing in evidence that who actually appointed the respondent and the only evidence adduced as stated above in the evidence of P.Ws. 7 and 12 is that the sanction was granted by an officer who was senior in rank than the officer who appointed the respondent without mentioning the fact who 8 appointed the respondent. However, the fact remains that there is nothing in the record to suggest that who appointed the respondent. 11. In the facts and circumstances of the case the learned lower Court while deciding the issue to be into consideration that since this respondent itself in another case under the Prevention of Corruption Act was convicted and this respondent preferred an appeal before the Hon‟ble High Court vide Criminal Appeal No. 261 of 1992 in which it has been held that the General Manager is the appointing authority and the Divisional Railway Manager is not the competent authority to accord sanction for prosecution and set aside the judgment and conviction recorded by the lower Court in the case of the respondent. The certified copy of the said judgment was produced before the learned lower Court and the lower Court taking cognizance of the judgment hold that in case of the respondent a verdict of the Hon‟ble Court holding that the Divisional Railway Manager is not the competent authority to accord sanction and, hence, the learned lower Court observed that it had no option than to accept that the Divisional Railway Manager is not the competent authority. 12. Learned counsel for the appellant on these facts, however, contended and relied upon an unreported decision passed in Cr. Misc. No. 5254 of 1984 decided on 16th of March, 1990, in which one Kapildeo Ram was the petitioner and where the point raised that the prosecution of the petitioner is invalid as sanction required under Section 6 of the Act has not been obtained from the competent authority. However, the facts and circumstances of case of Kapildeo Ram is that respondent come with a case 9 that he was appointed by an order of General Manager and so the Divisional Railway Manager could not have removed the respondent from service and so the order according sanction is ipso facto in violation. 13. However, the Railway filed a counter affidavit where it was categorically stated that the respondent was never appointed by the General Manager and was appointed by the Divisional Personal Officer, Eastern Central Railway, Danapur, and the said appointment letter was marked as Exhibit „A‟ to the counter affidavit and, hence, the point raised there whether Divisional Personnel Officer, Danapur, has designated himself as appointing authority and the letter appears to be conditional and the respondent accepted offer of the term mentioned and the aforesaid letter clearly show that the respondent was appointed by the Divisional Personal Officer, Danapur, and not by the General Manager, Eastern Central Railway and on those facts and circumstances of the case the question arrived at is as to whether the respondent could have been removed from service by the Divisional Personal Officer, Eastern Central Railway, Danapur, who has accorded sanction and there it has been held that appointing authority or an authority of equivalent rank or any authority higher than appointing authority can pass an order of removal of Railway employee from the service and further held that the Divisional Railway Manager was not the appointing authority and higher authority and, hence, the question arose whether the Divisional Railway Manager is higher and equivalent in rank than Divisional Personal Officer and a plea has been taken in the counter affidavit that the Divisional Railway Manager who accorded sanction is an 10 officer higher in rank than the Divisional Personal Officer and, hence, hold the Divisional Railway Manager being the higher authority than the Divisional Personal Officer and so was competent to accord sanction. 14. However, in the facts and circumstances of the present case at hand there is nothing on the record of this case that who appointed actually or factually the respondent. However, there is suggestion that in the evidence of P.W. 7 denied the fact that the respondent has been appointed after the sanction of the General Manager and P.W. 12 has categorically stated that he can not say who appointed the respondent and P.W. 7 has only stated that the Senior Divisional Commercial Superintendent is competent authority to remove. However, the fact that who is the appointing and removing authority is not decided by the evidence as it is not only fact, but, it is consequent by some Rules and the evidences or statement of the witness can not over rule the Rules. However, when the basic fact is missing that who is the appointing authority it would become difficult to decide that who is the dismissal authority. However, the case of the respondent was considered by the Hon‟ble High Court in this case, but, in the other case and in the said judgment of the criminal miscellaneous, which is on record, and the learned lower Court has also considered the decision where it has been held that the General Manager is the appointing authority and the Divisional Railway Manager or Divisional Commercial Superintendent were not the competent authority to sanction the prosecution of the respondent under the provisions of the Prevention of Corruption Act. In the said judgment the Hon‟ble High Court also 11 considered the same order passed by it under Section 482 of the Criminal Procedure Code and it was held that miscellaneous petition and revision are momentous and the can be well agitated in regular case and it‟s appeal and it held that the criminal miscellaneous petition the matter was not urged and the attention was not drawn to Section 6 of the Prevention of Corruption Act and Article 311 of the Constitution of India and, hence, are not barred to considered in the appeal. 15. However, the facts and circumstances of the case the learned counsel for the appellant relied upon on an unreported decision of Cr. Misc. No. 5254 of 1984 as stated above has got quite different facts and circumstances where the appellant‟s letter was brought on record and taking into consideration the Rules it was held that under the facts and circumstances of that case the Divisional Railway Manager is the competent authority to accord sanction. However, a case decided on a fact of particular case that decision may not be accepted for universal application of all application and in the facts and circumstances of the case are same and similar and ratio decided is applicable. 16. Learned counsel for the respondent, however, also placed several Rules or decision reported in A.I.R. 1957 M.P., 126 (Ramchandra Gopalrao Vrs. D.I.G. Police), which is a case relating to appointment by Inspector General of Police and dismissal by Deputy Inspector General of Police, A.I.R. 1956 Bom, 504 (Mohanlal Keshvlal Vrs. The State) where it has been held that in case of all Class III Railway servant the General Manager of the Railway who is the appointing authority normally can take 12 disciplinary action. In the facts and circumstance of that case the General Manager delegated the power and, as such, the Traffic Superintendent was authorized to grant the sanction and in the facts and circumstances of that case held that the General Manager has power to renew the disciplinary action taken against Class III employee. In decision A.I.R. 1992 Cr.L.J., 111 (Smt. Madhuri Mukund Chitnis Vrs. Mukund Martand Chitnis & Anr.) is with regard to Corporate Bank where the General Manager appointed and sanction was granted by the Divisional Railway Manager, in decision reported in A.I.R. 1990, S.C. 450 (Union of India Vrs. Shaik Ali) held that the Divisional Railway Manager is not the competent authority to retire a Yard Master holding Class III post and further the decision reported in 1979 S.C., 1912 (Krishna Kumar Vrs. The Divisional Assistant Electrical Engineer, Central Railway & Ors.), where it has been held that Article 311(1) of the Constitution of India removal from service by authority supporting to that appointing a civil servant there is no dispute in the proposition about the compliance of Article 311(1) Constitution of India and all the decision cited as mentioned above have different facts and circumstances of the case and the question for consideration there applicable in the facts and circumstances of the present case when there is no mention that who is the appointing authority and the Hon‟ble High Court held that the respondent appointed on the post by the General Manager who is the competent authority and the Divisional Railway Manager is not proper authority to accord sanction, specifically in the case of this respondent. 13 17. However, the second count of argument, the learned counsel for the appellant contends that the unreported decision in Cr. Misc. No. 5254 of 1984 was decided in the year 1990 and the case in appeal in which the respondent has been held to be appointed by the General Manager, who is the appointing authority and contends that since in the decision it has been held that the Divisional Railway Manager is the authority to grant sanction be treated that Divisional Railway Manager is the sanctioning authority and since this decision has not been taken into consideration in the decision and appeal, hence, the earlier decision shall prevail. However, there is no doubt in the proposition if the two decisions having on similar facts that earlier decision at a point, if not considered, then the earlier decision shall prevail. However, this is subject to that the point in issue or the ratio decided in both the cases is same. However, there is nothing on record to suggest that who appointed the respondent and mere on the evidence of P.Ws. 7 and 12 it can not be held that the Divisional Railway Manager was the sanctioning authority. However, learned counsel for the appellant taking the case of Class III employees relied upon various Schedules of power of establishment matter, 10th August, 1987. However, in the said Schedule in column 5 regarding the appointment to non-gazetted post it has come in paragraph 215(3)(1) is the authority. He has also relied upon the Railway Establishment Rule and where the disciplinary authority has been mentioned that in relation to in position of seniority of the railway servant means that the authority competent to impose penalty of compulsory retirement, removal or dismissal the authority shall be 14 appointment authority. The Indian Railway Establishment Code, Volume 1, fifth edition, 1985, Rule 215 mentioned the authority competent to make first appointment to grade „c‟ and „d‟ post and has relied upon 215(c) where it has been mentioned that Indian Railway and other railway administration the General Manager or lower authority to whom he may authorize the power as the appointing authority. However, the reliance placed on the Rules also does not suggest any help to the learned counsel for the appellant in absence of the fact that who appointed the respondent and under what authority the respondent was appointed and the appointment letter of respondent has not been brought on record and even there is no oral evidence to suggest who has appointed the respondent and the decision relied on by the learned counsel for the appellant is not applicable. Under the facts and circumstances of this case is that the fact of the case relied on is quite different from the fact of the case even several rule cited by the respondent, however, related to different facts and circumstances. In the facts and circumstances of the case that appointment was made by some of authority and dismissal by some other authority. The authority who can dismiss or remove, the said proposition is not in dispute and the question is that whether the Divisional Railway Manager is the sanction authority or not. Learned counsel for the respondent relied upon a decision reported in A.I.R. 2008 S.C., 1083 (State of Haryana & Ors. Vrs. Dinesh Kumar) is relevant where it has been held that other decision has three basic postulates finding on material fact and the principle of law applicable and the judgment based on the combined effect and decision. Every observation 15 found only what logically proves from the various observations and the enumeration of the reason and principle on which a question raised has been decided is alone binding as a precedent. Here in the facts and circumstances the sheet anchor of the decision of the appellant is Cr. Misc. No. 5254 of 1984 having decided in different facts and having different points for consideration as discussed above is not applicable in the facts and circumstances to hold that the decision is applicable and further the decision relied by the learned lower Court in Criminal Appeal No. 261 of 1992 applies squarely in the facts and circumstances of the case as it relates to the respondent though in another case and, hence, I do not find any illegality or irregularity in the impugned order and further finding with