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Petitioner: ALI AHMED MOLLA VS Respondent: THE STATE
P L D 1960 Dacca 696
P L D 1960 Dacca 696
Before Khan, J
ALI AHMED MOLLA‑Appellant
versus
THE STATE‑Respondent
Criminal Appeal No. 653 of 1959, decided on 2nd February 1960.
Sanction to prosecute‑Facts of offence charged different from those placed before sanctioning authority‑Sanction invalid- Defect not curable under S. 537, Cr. P. C., 1898.
Where the sanction on the face of it did not contain the facts constituting the offence charged, but some other material was placed before the sanctioning authority, nor was there any extraneous evidence given that those facts were placed before the sanctioning authority, the sanction would be invalid, and the trial Court would not be a Court of competent jurisdiction. This defect of jurisdiction was not curable under section 537 of the Criminal Procedure Code, 1898, as a defect in the jurisdiction of a Court could not be cured under that section. A trial, therefore held on such an invalid sanction was a nullity.
Gokulchand Dwarkadas Morarka v. The King P L D 1948 P C 11 rel.
Nand Lal Srivastava v. Rex A I R 1950 All. 377 ; In re I. V. Subba Rao A I R 1949 Mad. 710 and Tufail Muhammad v. The Crown P L D 1954 Lah 37 ref.
Abdus Salam Khan with Zinnur Ahmed for M. Shaukat Ali for Appellant.
A. Aziz for the State.
JUDGMENT
The appeal is directed against the conviction and sentence passed against the appellant Ali Ahmed Mollah on 21‑9‑59 under section 161 of the Pakistan Penal Code, read with section 5 (2) of Act II of 1947 by the Special Judge Mr. A. M. Hossain, Dacca Division, Mymensingh. The appellant has been sentenced to rigorous imprisonment for one year and also to a fine of Rs, 500 in default to rigorous imprisonment for another three months.
2. The prosecution case in substance is as follows: The appellant Ali Ahmed Mollah was the Head Clerk of the Police Ration Store, Mymensingh in 1958. In his capacity as head clerk he was to check the bills of different ration supply con tractors and to get them passed by the Additional Superintendent of Police, Head quarters, Mymensingh, in charge of the Police Ration Store. It is alleged that the appellant used to make delay in checking and passing the bills of the contractors unless he was paid a certain percentage of the amounts billed for. P. W. 3 Abdur Rouf Khan was a Police Ration Supply contractor of different police‑stations of Mymensingh district in 1958. In 1958, in May and June he supplied rations to Police Station Sherpur as he was appointed Police Ration Supply contractor of that station also. He submitted two bills‑one for April 1958, and another for June 1958‑to the appellant through proper channel. The appellant, as usual, delayed the checking and passing of the said bills, as he was not paid a certain percentage of the amounts billed for as bribe. According to the prosecution, the appellant demanded Rs. 25 as an illegal gratification for checking and passing these two bills, from the said Abdur Rouf Khan and ultimately this demand was settled at Rs. 15. It was also settled between Abdur Rouf Khan and the appellant that Abdur Rouf Khan would pay him the amount near a tea stall just opposite the new C and B office, Mymensingh. Abdur Rouf Khan thereafter approached Mr. Ashraful Huq (P. W. 8) who was then the Assistant Director, Anti‑Corruption, Mymensingh, on 25‑8‑58 and reported all about the matter to him. Mr. Ashraful Huq recorded his statement and produced him before the Superintendent of Police, Mymensingh, and reported to him all that had happened between the appellant and Abdur Rouf Khan. The Superintendent of Police directed Mr. Ashraful Huq to arrange a trap for the accused. Abdur Rouf Khan produced three 5‑rupee notes to be paid to the accused as bribe. The Superintendent of Police noted down the numbers of those three notes and those were made over to Abdur Rouf Khan by Mr Ashraful Huq for payment to the appellant on his demand. It was alleged that Mr. Ashraful Huq along with Mvi. 'Ali Asdar and Abdur Rouf Khan would go to the tea stall, opposite the new C and B office, Mymensingh, in the morning of 26‑8‑58 where the payment would be made to the appellant who would come there at that time, as was settled with Abdur Rouf Khan. Accordingly, Mr. Ashraful Huq and Mvi. Ali Asdar went to the said tea stall, entered inside it and concealed themselves behind a screen. Abdur Rouf Khan stood in front of the tea stall and, in the meantime, P. W. 4 Abdus Salek Mallik, another Police Ration Supply contractor went to the appellant in the Police Club and informed the appellant that Abdur Rouf Khan was waiting with the money in front of the tea stall, opposite the C and B Office, as he had been told by the appellant that Abdur Rouf Khan had not yet given him the promised money. There after both Abdus Salek Mallik and the appellant came in a rickshaw near the said tea stall on their way to Police Ration Store Office. When they reached the tea stall, the appellant asked Abdur Rouf ‑Khan to accompany him. At this, Abdus Salek Mallik got down and Abdur Rouf Khan got on that rickshaw in which the appellant was seated. Thereafter both the appellant and Abdur Rouf Khan proceeded towards the Police Ration Store Office which was situated in the Police Lines and, when the rickshaw reached the Police Lines gate, Abdur Rouf Khan made over the notes in question to the appellant on his demand and therefrom they went direct to the Police Ration Store Office in the rickshaw. There they both got down from the rickshaw and the appellant entered the office while Abdur Rouf Khan stood outside. When the appellant and Abdur Rouf Khan were coming in the same 'rickshaw to the Police Ration Store Office from near the tea stall, Mr. Ashraful Huq asked P. W. 4 Abdus Salek,Mallik to follow them in another rickshaw and to see if the payment was made and to report it to them. Mr. Ashraful Huq and Mvi. Ali Asdar also followed Abdus Salek Mallik to the Police Ration Store Office: Abdus Salek Mallik went to the Police Lines and met Abdur Rouf Khan in the verandah of the office of the Police Ration Store. When Abdur Rouf Khan told him that he had already made over the notes to the appellant on his demand, Abdus Salek Mallik got into his rickshaw and met Mr. Ashraful Huq and Mvi. Ali Asdar near the gate of the Police Lines and reported to them of the acceptance of the notes by the appellant. Mr. Ashraful Huq and Mvi. Ali Asdar then went to Mr. R. A. Chowdhury (P. W. 1) who was then the Additional Superintendent of Police, Headquarters, Mymensingh, and was also in charge of the Police Ration Store and they reported to him all that was told by Abdur Rouf Khan to A Salek. Mr. R. A. Choudhury along with Mr. Ashraful Huq and Mvi. Ali Asdar hastened to the Police Ration Store Office and, after, they had reached there, Mr. Ashraful Huq challenged the appellant and asked him to produce the notes accepted by him from Abdur Rouf Khan as bribe. The appellant was hesitating and denied to have accepted any money from anybody and thereafter immediately put his hand in his wearing pant, when Mr. Ashraful Huq caught hold of his hand and wanted to search the appellant. He also asked the appellant to bring out his hand from his pocket and to allow him to search. Just at that time the appellant brought out his hand from his pocket with the notes. Mr. Ashraful Huq seized the notes from his hand and comparing the numbers of the notes mentioned above with those in the inventory which was prepared earlier after the numbers of the notes were noted by the Superintendent of Police and made over to Abdur Rouf Khan and found them agreeing. Then he prepared a seizure list in respect of the recovered notes and other articles recovered from the appellant and the appellant was taken into custody and was forwarded to Court. Mr. Ashraful Huq lodged first information report at the Kotwali police‑station and Mvi. Ali Asdar, Assistant Inspector of D. A. B., Mymensingh took up investigation 'of this case after obtaining permission from a First Class Magistrate, Mymensingh, and, before he completed investi gation, Mr. Ashraful Huq took up the investigation of the case and completed it and, after obtaining sanction order for pro secuting the appellant, submitted charge‑sheet against him.
3. Upon these facts, the appellant was put on trial before the Special Judge, Dacca Division, Mymensingh, under section 161 of the Pakistan Penal Code, read with section 5 (2) of Act II of 1947. The accusation against the appellant, as explained to him by the learned Special Judge under section 242 of the Criminal Procedure Code, is as follows:
"The accusation against you Moulvi Ali Ahmed is that you while serving as the Head Clerk of Mymensingh Police Ration Store on 26‑8‑58 accepted Rs. 15 in three five‑rupee notes from Abdur Rouf Khan, Police Ration Supply contractor, as a gratification other than legal remuneration as a motive or reward for expediting payment of his bill and thereby committed an offence under section 161, P. P. C., read with section 5 (2) of Act II of 1947 . . . . . ."
4. The appellant pleaded not guilty to the charge. He denied the occurrence as alleged by the prosecution and his defence was that he was appointed Head Clerk in place of Mvi. Mohsenuddin Ahmed and the said Mohsenuddin Ahmed, in conspiracy with some ration supply contractors including P. W. 3 who are his relations, has got up this case in order to occupy his place as Head Clerk. It was also suggested that this Head Clerk in conspiracy with his relation contractors was trying to put him to trouble from before for which he had filed a petition to the Superintendent of Police informing him all about `the activities of this Mohsenuddin Ahmed, his relation, clerk A. Wadud Mia, and his relation contractors. It was also suggested that the appellant gave Abdur Rouf Khan threatening that he was blacklisted for non‑supply of rations to Dewanganj and Fulbaria police‑ stations and that Abdur Rouf Khan had also a grudge against him, as his supplementary bill was sent back for inquiry.
5. The learned Special Judge on a consideration of the evidence on record and the facts and circumstances of the case found the charge well proved against the appellant and, as such, he convicted and sentenced the appellant as stated above. Hence this appeal.
6. Mr. Abdus Salam Khan, the learned Advocate appearing on behalf of the appellant, has urged that the trial was a nullity for want of a proper and valid sanction and that the conviction and sentence of the appellant cannot be sustained in law inasmuch as there is no evidence to corroborate the evidence of P. W. 3, who is a decoy witness or at best an accomplice. Mr. Khan has submitted that the sanction order to prosecute the appellant under section 161 of the Pakistan Penal Code, read with section 5 (2) of Act II of 1947, relates to the appellant's accepting Rs. 15 as illegal gratification from Abdur Rouf Khan for showing him favour in respect of expediting payment of his ration bill of Tangail police‑station for the month of March 1958, whereas the accused has been actually prosecuted and convicted for accepting Rs. 15 as illegal gratification from the said Abdur Rout' Khan for showing him favour in respect of expediting payment of his ration bill of Sherpur police‑station for the months of April and June 1958. Mr. Khan, therefore, contends that where a sanction to prosecute under section 161 of the Pakistan Penal Code, read with section 5 (2) of Act II of 1947, does not show that it relates to the acts in respect of which the prosecution was launched and the prosecution does not give any extraneous evidence either to show what facts were put before the sanctioning authority on the basis of which he granted the permission for prosecution, the sanction is invalid and the Court has no jurisdiction to take cognizance of the case. The sanction order proved in this case runs thus:
"Whereas from the perusal of the reports and records placed before me in connection with Mymensingh Kotwali P. S. Case No. 64, dated 26 8‑58, under section 161, P. P. C., read with section 5(2) of Act II of 1947, against Moulvi A. K. M. Ali Ahmed Mollah, Clerk, Police Office, attached to Police Ration Store, Mymensingh, I am satisfied that there are sufficient materials to establish a prima facie case that on 26‑8‑58 the said A. K. M. Ali Ahmed Mollah accepted Rs. 15 from one Abdur Rouf Khan, a Police Ration contractor, Mymensingh, as illegal gratification for showing him favour in respect of expediting payment of his ration bill of Tangail P. S. for the month of March 1958.
Now, therefore, in exercise of the power conferred upon me and as required under clause 3 of Judicial Notification No. 3852J, dated 11‑11‑58, I do hereby accord sanction to the prosecution of the said accused A. K. M. Ali Ahmed Mollah under section 161, P. P. C., read with section 5 (2) of Act II of 1947, or any other law or laws that may apply."
7. It may be pointed out here that in the accusation already referred to it was not mentioned for expediting the payment of bill of which month and of which police‑station the accused accepted the bribe in question. But the evidence was led by the prosecution that the bribe of Rs. 15 in three five‑rupee notes was taken by the accused from Abdur Rouf Khan for expediting payment of his bills for the months of April and June 1958, of Sherpur police‑station. It was also put to the accused in examination under section 342 of the Criminal Procedure Code that there was evidence against him that he accepted Rs. 15 in three five‑rupee notes from Abdur Rouf Khan, Police Ration Supply contractor, on 26 8‑58 as a gratification other than legal remuneration as a motive or reward for expediting payment of his bills of Sherpur police‑station. Thus it is clear that the sanction order to prosecute the appellant relates to some alleged act committed by the appellant which is quite different from that for which the prosecution was launched against him. In the case of Gokulchand Dwarkadas Morarka v. The King (AIR 1948 (P C) 82 : P L D 1948 P C 11) Sir John Beaumount, delivering the judgment of the Board, observed at page 84 of the report:
In order to comply with the provisions of clause 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seemed to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor, in their Lordships' view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of clause 23. Under that clause sanction has to be given to a prosecution for the con travention of any of the provisions of the Order. A person could not be charged merely with the breach of a particular provision of the Order ; he must be charged with the commission of certain acts which constitute a breach, and it is to that prosecution ‑that is, for having done acts which constitute a breach of the order‑that the sanction is required. In the present case there is nothing on the face of the sanction, and no extraneous evidence to show that the sanctioning authority knew the facts alleged to constitute a breach of the Order, and the sanction is invalid."
In this case, sanction to the prosecution of appellant was given by order of the Government of Bombay in the following terms:
"SANCTION TO PROSECUTE. (Signed) H. N. G. Cotton Cloth and Yarn (Control) Order, 1943. Contravention of the provisions. Prosecution for‑--- Government of Bombay. Finance Department (Supply) Resolution No. 518. Bombay Castle, 5th January 1945. Endorsement from the District Magistrate, Sholapur, No. XIX/4500, dated 8th November 1944.
Resolution.‑Government is pleased to accord sanction under clause 23, Cotton Cloth and Yarn (Control) Order, 1943, to the prosecution of Mr. Gokulchand Dwarkadas Morarka for breach of the provisions of clause 18 (2) of the said Order.
By order of the Government of Bombay,
(Signed) Deputy Secretary to Government, Bombay.
To
The District Magistrate, Sholapur."
8. The above sanction named the person to be prosecuted and specified the provision of the Order which he was alleged to have contravened, but it did not specify the acts of the appellant alleged to constitute such contravention. It is, therefore, clear from the above principle laid down by their Lordships of the Privy Council where the facts are not referred to on the face of the sanction nor is it proved by extraneous evidence that they were placed before the sanctioning authority, the sanction is invalid, and the trial Court would not be a Court of competent jurisdiction. Their Lordships further held that this defect could not be cured under section 537 of the Criminal Procedure Code, as a defect in the jurisdiction of a Court can never be cured under section 537 of the Criminal Procedure Code.
9. Mr. A. Aziz, the learned Advocate appearing on behalf of the State, has urged that the broad facts constituting the offence committing by the appellant, that is, his acceptance of Rs. 15 from Abdur Rouf ‑Khan as bribe for expediting payment of his ration bill has been mentioned in the sanction order and that there was only mis‑statements of fact as to the month of the bills and as to the police‑station to which those bills related. Such mis‑statement of fact does not in any way indicate that the facts constituting the offence for which the appellant was indicted in this case were not placed before the sanctioning authority. I am, however, unable to accept this contention in view of the rule of law laid down by their Lordships of the Privy Council, as quoted above, and also in view of the decision in the case of Nand Lal Srivastava v. Rex (A I R 1950 All 377). In this case, V. Bhargava, J. observed at page 378 of the report as follows:
" It was essential for the prosecution to 'show that this sanction related to the acts committed by the applicant in respect of which this prosecution was launched against him. This has not been done and the letter purporting to contain the sanction also does not show that the sanction was in respect of these very acts. Prosecution in such a case must, therefore, be deemed to be without proper sanction and hence it must be held that the Magistrate had no jurisdiction to take cognizance of this case."
The learned Judge in laying down the above principle of law followed the Privy Council case, referred to above.
10. In the case of In re I. V. Subba Rao (AIR 1949 Mad. 710) Somasundaram, J. observed at page 711 of the report:
"In this case, as already stated the sanction on the face of it does not contain the facts constituting the offence charged nor was there any evidence given that those facts were placed before the sanctioning authority."
and, as such, the learned Judge held that there had been no valid sanction and the lower Court had, therefore, no jurisdiction to take cognizance of the offence. In this case, the petitioner was a station‑master at Dwarapudi. He was charge sheeted by the Special Police Establishment for having accepted an illegal gratification of Rs. 10 for booking two iron machinery parts to Bezwada. He was convicted under section 161 of the Indian Penal Code and in revision it was contended on his behalf that the sanction which was required for prosecuting the petitioner under Act II (2) of 1947 was not a valid one. In this case, the sanction order was as follows:
"No. P426 Madras 22nd July 1947. To The Deputy Superintendent of Police, Special Police Establishment, Vepery, Madras.
Dear Sir,
Ref : I. V. Subba Rao, Station Master, Dwarapudi.
With reference to your letter C No. 437/SPE/M/47 of the 4th instant, sanction is afforded to prosecute the above‑named. Yours faithfully, (signed) Chief Commercial Manager."
11. In the case of Tufail Muhammad v The Crown (P L D 1954 Lah 37) it has been held:
"The expression `previous sanction' in section 6 of the Prevention of Corruption Act intends that the sanctioning authority should apply its mind to the facts and circumstances of the case before it and although, prima facie, some offence may be revealed by the evidence collected, the authority in question would not be bound to accord sanction for prosecution unless it came to the conclusion that it would be expedient in the interest of justice to do so. Such conclusion could only be arrived at after all the material facts had been considered. In a case where this procedure has not been followed, the purported sanction to prosecute the accused is illegal."
It was further held in this case:
"Where there has been no valid sanction for prosecution as contemplated by law which could confer jurisdiction on the Court to take cognizance of the offence, the trial must be held to be vitiated and in fact be regarded as no trial in the eye of law."
In this case, his Lordship Rahman, J. in laying down the principle of law, followed the principle laid down in the Privy Council case, referred to above. His Lordship observed, after quoting the principle laid down by their Lordships of the Privy Council, as follows : "the observations of their Lordships of the Privy Council, therefore, afford a valuable guide for authorities charged with the duty of sanctioning prosecutions under the latter Act."
12. In this case under appeal before me, the sanction order is purported to have been given by the Superintendent of Police, Mr. M. Mohsin. Mr. M. Mohsin has deposed in this case as P. W. 2. He has deposed with regard to the permission he gave for laying a trap for the appellant. He has not said a single word about the sanction order. There is nothing in his evidence to show that the facts constituting the offence for which the prosecution was launched against the appellant in this case were placed before him and that he considered all those facts in according the sanction in question. Thus there is no extraneous evidence on record to show that the facts constituting the offence in question were placed before Mr. M. Mohsin, who was the sanctioning authority in this case and who in fact accorded sanction to prosecute the appellant under section 161 of the Pakistan Penal Code, read with section 5 (2) of Act, II of 1947, for accepting bribe from Abdur Rouf for expediting payment of his ration bills of Tangail police‑station for the month of March 1953. The sanction order clearly shows, as has been quoted above, that materials other than the materials which constituted the offence for which the prosecution had been launched against the appellant were placed before Mr. M. Mobsin, the sanctioning authority. Thus following the ruling of the Privy Council, referred to above, which has been followed in the, cases referred to above, I hold that in this case there has been no valid sanction and, as such, the learned Special Judge had no jurisdiction to take cognizance and try the appellant and the trial of the appellant was no trial at all in the eye of law and, as such, was a nullity. The conviction of the appellant must, therefore, be set aside.
13. Mr. Abdus Salam Khan, the learned Advocate, had also advanced arguments on the merits of the case and he has urged that there is no independent and reliable evidence to corroborate the evidence of P. W. 3 Abdur Rouf Khan who proved that the appellant had taken bribe from him or that, on his demand, he paid the same to him. Now in this case there is no dispute about the fact and it has been proved by the prosecution that two supplementary bills for the months of April and June 1958, of P. W. 3 Abdur Rouf Khan for his supplying rations of Sherpur police‑station were pending before the appellant for checking and for having them passed by the Additional Super intendent of Police, Headquarters, at the relevant time. The evidence of P. W. 3 is that these bills came to the appellant in July 1958, and were delayed…
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