^ HIGH COURTOF CHHATTISGARH AT BILASPUR (SB: Hon'ble Mr T.P.SHARMA, Jl Criminal ADpeal No.1225 of 1993 State of Madhya Pradesh (now Chhattisgarh) '•1" ' .I.IVs.' ,' , :' ' • 1' : • ' Ishwar Aadhar Yadav POST FOR PROUNCEMENT OF THE JUDGMENTON 5/8/2010 •t . Sd/- T.P.Sharma Judge '•^*- s^ -' ""^ '"*!. ^ ^St^ l'jp>. •.-.t.^. ADDellant HIGHCOURTOF CHHATTISGARH AT B1LASPUR CriminaIADDeaINo.1225of1993 State of Madhya Pradesh (now Chhattisgarh) ResDOndent Versus Ishwar Aadhar Yadav S/o Samliya Yadav, Upper Division Clerk, MuniGipal Corporation, Rajnandgaon (Criminal Appeat under Section 378 (3) of Cr.P.C.) SB: Hon'ble Mr. T.P. Sharma,J. Present- Mr.Sushil Dubey, Deputy GovernmentAdvocate for the appellant. None preserit forthe respbndent, though served. JUDGMENT "IT..:, •i' "' •.f''"'.' - '" 1. '2.- (Delivered on 5°' August, 2010) Challenge in this appeal is to the order of discharge dated 15-1.93 passed by the Special Judge, Raipur, in Special Griminal Case No.139/91, whereby learned Special Judge has acqyitted the respondent of .the charge of the then applicable under Section 161 &f litie Indian Penal Code and Section 5 (i) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 on the ground that after repealing pf the Preventitin of Prevention Act, 1947 (hereinafter referred to as 'the Act, 1947'); sanctioniHg authority has accorded sanction under the provisions of the Act, 1947 on 5.2.1991 for which he was not competent to accord sanction and any such sanction is not sine qua non for taking cognizance of the offence and was no'legal sanction. Qrder is Jnyugned on the ground that sanctioning authoritY was competent to accord sanction and only on the ground of misquoting of •^-'' • '.'. . '•; . '. '.."' :''. •' '" • • '• the proyisions, especially in thelight of Section 30 (2) of the Prevention ot Corruption Act, 1988 (hereinafter referred to as 'the Act, 1988') would not initiated the proceedings but by discharging the respondent, theCourt below hascommittedillegality. w 5. As per caseofthe prosecution, on 10.7.87 the respondent demanded and aceepted illegal gratification other than legal remuneration by misusing his post for himself or for others. Trap party constituted. Qffence was investigated. Aftercompletionof investigation, documents of the prosecution were placed before the sanctioning authority who was competent to accord 'sanction and sanctioning authority after applying the mindaccorded.sanction on 5.2.1991 undertheprovisions of Sectiqn 6 (1) (b) (c) of the Prevention of Corruption Act, 1947wa& 1^6&t.legal.::. ' ,. • ' . .••1;:.^ .. ,^. ' ^' '. '/•' .,. ,' After hearing the parties on the legaljty of according sanction and rider created under the lawfortaking cognizance of the offence without'valid sanetion, vide impugned order the Court below has arrived at a fihding that sanction acGorded under the provisions of the Act, 1947 on 5.2.1991 wHichwasnotinforceand was repealed by Section 30 (1) of the Prevention of the Corruption Act, 1988, was not legal. Learned counsel for the appellanVState vehemently argued that on 5.2.1991 (ActNo. 2 of 1947) was not in force and was repealed by Section 13 (1) oftheAct, 1988. Act N6.49 of1988whichcameinto force from 9.9.1988, buttheprovisionsofSection 6 (1) pf the Repeal Act relating to the prosecution for sanction and Section 19of the Act Wo.49 of1988 are one andthesame,therefore, in termsoTsub-sectioh (2) pf Section 13 of the Aet, 1988, any sanction accorded under the provisions of old Actwas valid sanction. Even otherwise provisions of both the Acts relating to according of sanction are not incbnsistent; therefore, only mentioningor quotingof old provisions will not vitiate the prosecution or sanction accordetf' for prosecution of the respondent. After diie notice to the respondent, he has not made his appearance. On the date of/theoffence viz., 10.7.1987, the Act, 1947 was in force. Sanction for prosecution under Section 6 (1) of the Act, 1947 issine qua npn for taking Gognizanfie- for the offence punishable under the prQvisions ofthe Repeal Act, 1947. Section 6 (1) and (2) of the Act, 1947readas under:- "6. (1) No Court sball take cognizance of an offence punishable under section 161 or section 164, Section 165 of the Indran . <; Penal Code, 1860 (Act XLV of 1860) or under sub-section (2) of ^-% ii^ V '•Sfc,'(iaimtS"" f" - s seetion 5 of this AGt,alleged to have been committed by a pyblic servant, except with the previoussanction,- (a)in the case ofa person who is employed in connection with theaffairs of the Union and is not removable from his office, save by or with the sanction of the Central Government, oflhe Central Government; (b)in the case ofaperson wha is employedin connection with the affairs of a State and is not removable from his offiGe, save by or with the sanction of the State Government, ofthe State Govemment; (c)in the case of any other person, of the authority competenttoremovehimfromhisoffice. (2) Where for any reasonwhatsoever any doubtarises whether the previous sanctionas reqyired under sub-section (1) should be given by the Central or State Govemment or any other authority, such sahctipn shall be given by the Goyernment or authority which would have been competent to remove the public servant frem his offjce at the time when the offence was alleged to have been committed... ......... 6-A xxx xxx xxx" (gn 5.2,1991 Prevention of Corruption Act, ,1947 was not in forceand was repealed by Section 30 (1) oftheAct, 1988 (Act No. 49 of 1988) whiehGameinto foreeon 9.9.1988. Sanetionfor proseeutionunderthe provisions of the Act, 1988 isalso sme qua non for taking cognizance in accordance with Section 19 of the Act, 1988 which reads as under:- "19. Previous sanction necissary for prosecuti6n.-(1) No Court shatl take cognizance of an offence punishable under Sectjons 7, 10, 11, 13 and 15 alleged to have been committed by a public^ervant, exceptwiththe previoussanction,- •• / ': '", ^ '. . . • • . ! . " • ' , (a)in the case of a person who is employed in connection with the affairs oT'the Union and is not removable from his office save by or with ^he sanction of the Central Government, of that Govemment; (b)in the case of a person who is employed in connection with the affairs of a State and is not removable from his -'ft' yl' t;^ B' ^ 't:'!^feaS^ ''•^£E@^'1^7'" " ^^ ^- .office save by or with the sanction of the State Govemmerrt, ofthatGovemment; (c) in the case of any other person, of the authority competentto remove him from his office. (2) Where for any reason whatsoever any doubt arises as to. whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanctipn shall be given by that Governmentor'authority which would have been competent to remove the public servant from his office at the timewhentheoffencewasallegedtohavebeeneommitted. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of1974),- (a) no finding, sentence or Qrder passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of thatcourt, afailureofjustiGe has infactbeenoccasioned thereby; (b) no courtshall stay the proeeedings under this Acton the grouhd of any error, omisston or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or iFregularity has resulted in a failure ofjustice; - (c) nocourt shall stay itie proceedings under this Act on any other ground and no courtshall exercise fhe powers of revision jn relation to any interlocutory order passed in any inquiry, trial, appeal orother proceedjngs. .'-• / ' ', ' ;1 . ' . . . ;' ' •' ' ! ! '. ' . : (4) In determining under sub-section (3) whether th6 absence of, or any error, omission or irregularity in.such sanction has occasioned pr resulted in a failure of justice the Court shall h9ve regard tothe fact whether theobjectjon coutd and should have been raisedatany earlierstage in the proceedings. ?< »' //"„. ~^. ExplanatiQn.-ForthepurpQsesofthissection,- -to-S^ai,, /z (^' ^1^-' • 1'1 •1! ;1'.':1:.: • - (a)errbr includes eompetency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specifiedpersbnoranyrequirementofasimilarnature." 8. The provisions contained ih sub-section (2) of Section 30 is enabling provisions relating to new and old act which provjdes the provisions to .^.' !' '. ' '' . 1/. - '' • . ; . ' • . ' . ' . '•" ^ ! . regulate and continue the investigation, proceeding and trial initi.ated under the old act. Section 30 (1) & (2) of the Act, 1988 reads as under:-;.1. ':.,,-' i-— • ' ., 1';— 1 -,1 .1:::; . . 1 1' : "30. Repeal and saving- (1) The Prevention of Corruption Act, 1947 (2 6f 1947) andtheCriminalLawAmendmentAct, 1952 (46 of 1952) are hereby repealed. (2) Notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897 (10 of 1897),anything doneor any action taken or purported to have been done or taken under or in pursuance of the Acts sa repealed shall, inso far as it is not incorisistent with the prOyisions of this Act, be deeroed tp have been done or taken .' !c :' '". .' ' • '. 1 ;' ' . .- • • ' —.: : : ; 1 ; .• . - '.. under or in pursuance of the Gorresponding provision of this Act." .-',/,•,,•, " ::• ..,1' ' ' .;::':- ,;'•/':'• ^ • ... . • ' . ...'.•• - 9. As per admitted position, pffencecommitted on 10.7.1985, dnthatday the respondentwas publicservant. As perthe case ofthe prosecution, he demanded and aGcepted i1;legal gratification other than legal remuneration on 10.7.1985. 10. After cohsidering the material cpllected on,' behalf of the prosecution,' , - sanctton for ^rosecution in terms of Section 6 (1) (b) (c) ofthe Act, 194.7 wasaccorded on 5.2.91 bythe competent authority. On the date of Gommission of the offence, Prevention of Corruption Act, 1947 (Act N0.2 Of "1947) was in fbrce which was repealed by the Prevention of Corruption Act, 1988 (Act No. 49 of 1988) which came into force from - 9tl1September, 1988. , ~ 1 iK^ 11. Inthe present case, sanction has been accorded under Section 6 (1) (b)(c)of the Act, 1947 which was not in force onthe date of according sanction i.e. 5.2.1991. The Prevention of.Corruption Aet, 1947 has been repealed by the new Prevention qf CorruptionAct, 1988. While repealing the Preventioo of Corruption Act, 1947 (Act No.2 of 1947), legislature has made special provisipn for action taken or puFported to have been done or tal^en in the old Act not inconsistent with the provisionsof the newAct, ' ;^': '' /: • ' . :' '-.;: ' !' • ' "!. ! - '- " .: ' . -' - : 12. While dealing with the question oFrnaintainabilityoftheeaseand trial undertheoldACtaftercomingintoforceofthenewAct,theApexCourt in the matter of Nar Bahadur Bhandari ete. v. State of Sikkim and others held thatinaccordancewithSection 13 (1)ofthe Preyentionof Corruption Act, 1988, the Court is competent to try the offence punishableundertheold Act. Para 9 ofthe said judgment reads as under:-".'. :.,""'' l.'""\ ' ..'.•' :',1 :.1:1: ..1 ,' i "9." The contentions urged on behalf of fhe petitioners are based on a wrong understanding of provisions of the Act of 1988. No ctoubt, Section 3 of the said Act refers pnly to pffences punishable under the act and the Special Courts constituted under Section 3 wtll have jurisdiction to try the offences punishable under the Act butSection 3 cannot be read in isolation. Itshould be read along with other provisionsdfthe Act to understand the scope thereof. Section 30(1)oftheActof '- 1988 repeals theActsof 1947 and 1952. Thatdoesnot mean that any offence which was committed under the Act of 1947. would cease to he triable after the repeal of the said •Aef. Normally Section 6 offtie General Clauses Act would come into play and enable the continuation of the proceedings including mvestigafion as if tlie repealing Act had not been passed. As per the provjsions of Section 6 of the General Clauses Act the position will beasif th^Act of 1947continues to be in forcefor the purposeof trying the offence within the meaning of the said ^ Act. Section 6 of the General Clauses Act however makes it . clear that the said position will not obtain if a different intentiQn appears'in the repealing Act. In the present case, the Act of 4988 is the repeating Act. Suh-sec. (2) of Section 30 reads as , •:/\./,';'-.follows:- . '.:/ :'^;-^ :... .•'1'' ' '...''' ^ 1:'.'' (2)" Notwithstanding suchrepeal, butwithout prejudjce to the application of Section 6 of the Geheral Clayses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been dohe or taken under or in pursuance of the Acts so repealed shalt, in so far as it is not inconsisfent with the provisions of this Act, be -deemed to have been done or taken ynder or in ., . ^ 1, pursuanc&pfthecorresponding provision ofthis Act." ./-:• 1AIR1998 SC 22(^ ^.-?l^. .• li3?S&i.~ E ">!1 ;^^'../. • ~^- .! ••'•-.- .1''" The said sub-section while on the ohe hand ensures that the application of Section 6 of the General Clauses Aet is not prejudiced, on the other it expresses a different intention as contemplated by the said Sectiop 6, The last part of the above sub-section introduces a legal fiction whereby anything done or action taken under or in pursuanee of the Act of 1947 shall be deemed to have been done pr taken under or in pursuance of corresponding proyisions of the Act of 1988. That is, the fiction is to the effect that the Actof 1988 had eome into force when such thing was don^oraction was tdken." ' 13. Inthe lightof legal propositionand intermsof Section30 (2)ofiheAct, 1988, sanctioning authonty was competent to accord sahction relating to the offence punishable under the old Act in accordance wjtfi the provisions of old Act. While according sanction, the sanGtioning authority has not commjtted any illegality. While discharging the respondent from the aforesaid charges, the Special Judge has not considered the prpvisions of Section 30 (2) of the Act, 1988 and thereby committed illegality in dischargirig the respondent. The order impugried is not sustainable under the law and is liable to be set aside.. 14. Consequently, the appeal isallowed.Theorderimpugnedisherebyset aside. The case is remitted baek to the eourt of the Speeial Judge, Raipur for further trial of the case inaccordance with law. Sd/- T.P. Sharaia Judge .•l' •'"•^•' t1..;', '*«r