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Petitioner: LT. MAHBUB KHAN VS Respondent: THE CROWN
P L D 1954 Federal Court 248
P L D 1954 Federal Court 248
(Appellate Jurisdiction)
Before A. S. M. Akrarn, M. Shahab-ud-Din and
A. R. Cornelius, JJ.
LT. MAHBUB KHAN---Appellant
versus
THE CROWN---Respondent
Criminal Appeal No. 2 of 1954, decided on 3rd May 1954.
(On appeal from the judgment and order of the High Court of judicature at Lahore dated the 9th June 1952, in Criminal Revision No. 316 of 1952).
Prevention of Corruption Act (II of 1947), S. 6-Sanction for prosecution under S. 5 (2)-Appointment of Rehabilitation Tehsildar by Governor, sanction for prosecution by Financial Commissioner-Held invalid-Repeal of S. 6 by Criminal Law Amendment Act (XXXVII of 1953)-Effect on pending or concluded case.
The accused was appointed Rehabilitation Tehsildar by the Governor. Prosecution of accused under section 5 (2) of the Prevention of Corruption Act (II of 1947) was sanctioned by the Financial Commissioner.
Held (by the Court) : That there was no valid sanction for the prosecution of the accused and that the proceedings ending in his conviction were without jurisdiction.
Repeal of section 6 Prevention of Corruption Act (11 of 1947) by Act XXXVII of 1953 was not of retrospective opera tion. Position would not have been affected even if the repeal had taken place while the case was pending.
The matter was covered by section 6, General Clauses Act, 1897.
Per Shahab-ud-Din, J.-Deletion of section 6 is not a change merely in respect of the procedure. On the other hand, it is essentially a change relating to the jurisdiction to take cognizance of the offence alleged against the appellant.
By the time the amendment by Act (XXXVII of 1953) came into force the proceedings had been concluded. The appellant was convicted on 29th October 1951 and his conviction was maintained by the Appellate Court on 10th March 1952. The revision proceedings in the High Court were not a continuation of the original proceedings much less the proceedings in which this Court granted special leave to appeal ; and both these proceedings also terminated long before the amendment. The revision petition was dismissed on 9th June 1952 and special leave to appeal was granted by this Court on 28th October 1952. In the circumstances no ques tion of pending actions being affected by the Amendment Act seems to arise.
To apply to him now the law as it stands after the amend ment in 1953 amounts to depriving him of a plea which he was entitled to put forward in his defence and has been urging from long before the amendment. The change in the law cannot, therefore, be said to relate only to the form of procedure.
Gokulchand Dwarkadas Morarka v. The King 75 1 A 30 a t p. 38 and Afzal-ur-Rahman v. King Emperor 1943 F C R p. 7 at p. 11 ref.
Per Cornelius, J.-That defect (want of proper sanction) is by no means to be regarded as a mere irregularity, or depar ture from prescribed procedure. Its importance must be placed on a very much higher level. It goes indeed to the jurisdiction of the Court by which Mehbub Khan was tried (case of Gokulchand Morarka L R 75 I A 30). The terms of the original section 6 leave no room for doubt that in the absence of previous sanction by the appropriate authority among those specified, the trial Court could not take cogni zance of the alleged offence. It follows that every step taken by the Court from the first to the last was without jurisdiction, and therefore of no effect by reason of the absence of a valid sanction to the prosecution.
The question which has arisen in the present case as a result of repeal of section 6 is not a mere question of procedure but relates to the substantial question of jurisdiction. Conse quently the rule to be applied is the fundamental rule that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct application.
The provision in the Prevention of Corruption Act, 1947 requiring the sanction of certain high authorities as a condition precedent to the prosecution of public servants is clearly one designed for the protection of such persons, and in that sense can be regarded as a right allowed to them by statute. In respect of statutes which take away rights under existing laws, there is a presumption that they are not intended to have retrospective effect.
Per Akram, J. (contra).---No one has a vested right in any particular form of procedure. The Courts have to apply the procedural law as it stands amended even with regard to pend ing proceedings unless clearly prevented from doing so. The reason for this is that no vested interest or substantive right of any one gets affected by a change in the procedural law. Section 6 required merely certain formalities to be satisfied before launching on a prosecution, it laid down only a process by which the substantive portion of the law was made avail able. In the Amending Act there is nothing which saves pending cases from the effect of the annulment of those requirements or the process prescribed. The position, there fore, seems to be that with regard to the compliance or non compliance with section 6 of Act II of 1947, and consequently, the competence or incompetence of the trial Court to deal with the matter under appeal, no question at present arises.
Appellant : in person.
A. R. Changez, Advocate-General of the Punjab, (C. M. Sharif. Advocate, Federal Court with him) instructed by Ijaz Ali, Attorney, for Respondent. Date of hearing: March 30, 1954.
JUDGMENT
AKRAM, J.---Lt. Mahbub Khan, Rehabilitation Tehsildar, was convicted and sentenced to rigorous imprisonment for two years and a fine of Rs. 1,000 by the Additional District Magistrate, Sheikhupura, on 29th October 1951, under section 5 (2) of the Prevention of Corruption Act, II of 1947, for receiving illegal gratification. His appeal was dismissed by the Additional Sessions judge and his application for revision to the High Court of Judicature at Lahore, succeeded only to the extent that his sentence of imprisonment was reduced from two years to one year. He, thereupon made an applica tion to this Court and obtained our leave to appeal.
It was urged by the appellant who appeared in person before us, that the sanction for prosecution required under section 6 of Act II of 1947, having been obtained from the Financial Commissioner was not a proper sanction because it should have been obtained from the Governor, who alone was competent to grant it as he only could remove the appel lant from service having himself appointed him (see section 5 (2) (b) of Act II of 1947) ; that the conviction and the sentence of the appellant were, therefore, not valid or sustainable in law. In support of the above contention reliance was placed upon a Memorandum the relevant portion of which is as follows:-
"No. 3562-E
Lahore, dated the 17th July 1948.
From
D. S. R. (L), West Punjab.
To
The Commissioner, Lahore Division.
Subject :-Appointment of Tehsildar for rehabilitation work.
Reference :-Endt. No. S. S. 168/46/A dated the 4th May 1948 from the Deputy Commissioner, Sheikhupura to your address.
(1) ..............
(2) The Governor of West Punjab is also pleased to select Lt. Mahbub Khan formerly a Tehsildar in Faridkot State, for appointment as Rehabilitation Tehsildar, Sheikhu pura, vice M. Riaz Ahmad."
A copy of this Memorandum was forwarded to the appellant for information and he was directed "to report himself immediately to the Deputy Commissioner, Sheikhupura, for duty."
The three Courts below on a consideration of the Finan cial Commissioner's Standing Orders 1910, Appendix A, page 17, and other evidence adduced by the parties came to the conclusion that the sanction for prosecution was duly obtained from the proper authority. With regard to this matter the High Court observed in its judgment as follows:-
"It is thus clear that the Tehsildar employed on Resettlement or any other work under the control of the Financial Commissioners are appointed by the Financial Commis sioners and according to Appendix A, attached to the Tehsildari Rules, Tehsildars can be dismissed by the Finan cial Commissioners. They have a right to appeal to the local Government. The local Government, therefore, cannot be-the authority for the purpose of removing or dismissing them."
Assuming, however, that the contention put forward by the appellant is not altogether without force, we shall have still to consider the legal effect of the Amendment Act XXXVII of 1952, passed in November 1953, which deleted section 6 and made certain other alterations in the Prevention of Corruption Act, II of 1947. It is well-known that a change in the law of procedure ordinarily affects pending actions as well. At the present moment when our jurisdiction is being invoked, we find that section 6 of Act II of 1947 on which the contention of the appellant is based has ceased to exist. I cannot ignore the change thus made while dealing with the present appeal. No one has a vested right in any particular form of procedure. The Courts have to apply the procedural law as is stands amended even with regard to pending proceedings unless clearly prevented from doing so. The reason for this is that no vested interest or substantive right of any on gets affected by a change in the procedural law. Section 6 required merely certain formalities to be satisfied before launching on a prosecution, it laid down only a process by which the substantive portion of the law was made available.' In the Amending Act there is nothing which saves pending) cases from the effect of the annulment of those requirements or the process prescribed. The position, therefore, seems to' be that with regard to the compliance or non-compliance with' section 6 of Act II of 1947, and consequently the competence or incompetence of the trial Court to deal with the matter under appeal, no question at present arises. I am accordingly, of opinion that there is no reason for our interfering with the decision of the Court below on the ground of want of proper sanction. I dismiss the appeal.
SHAHAB-UD-DIN, J.---I regret I cannot agree, with the conclusion of my learned brother Akram that, assuming that the sanction for prosecution in this case was invalid we should not, in view of the Amendment Act 37/53 by which section 6 of the Prevention of Corruption Act was deleted, interefere on the principle that a change in procedure affects pending actions.
In my opinion this principle is not applicable to the present case. Deletion of section 6 is not a change merely in respect of the procedure. On the other hand, it is essentially a change] relating to the jurisdiction to take cognizance of the offence alleged against the appellant: He was prosecuted for and offence under section 5 (2) of the Prevention of Corruption Act and in respect of such a prosecution section 6 had prohi bited taking of the cognizance of the offence: except with the previous sanction of the authority indicated therein. Clause 23 of the Cotton Cloth anal Yarn (Control) Order 1943 was to the effect that no prosecution for the contravention of any of the provisions of that order should be instituted without the previous sanction of the Provincial Government or of such officer of the Provincial Government not below the rank of District Magistrate as the Provincial Government may autho rise. In respect of this provision their Lordships of the Privy Council observed in Gokulchand Dwarkadas Morarka v. The King (75 I A 30 at p. 38.):--
"The giving of sanction confers jurisdiction on the Court to try the case and the judge or Magistrate having jurisdiction must try the case in the ordinary way under the Code of Criminal Procedure."
The same can be said of section 6 of the Prevention of Corrup tion Act which was to the effect that no Court shall take cognizance of the offences mentioned in that section except with the sanction of the authority indicated therein. This provision was made obviously to protect the public servants against unnecessary harassment and for that purpose it was left to the authority, competent to dismiss the public servant concerned, to determine the question of expediency of the prosecution from the point of view of public interests. Such a protection would be worthless if the public servants are not entitled to challenge the validity of the proceedings either on the ground that there was no sanction or that the sanction was not given by the authority mentioned in that section, and it is on the latter ground that the appellant before us has been questioning, throughout, the validity of the criminal proceedings which ended in his conviction. To apply to him' now the law as it stands after the amendment in 1953 amounts to depriving him of a plea which he was entitled to put forward in his defence and has been urging from long before the' amendment. The change in the law cannot, therefore, be said to relate only to the form of procedure.
In this view the position of the appellant in my opinion., would not have been affected even if the amendment had taken place while the case was pending in the trial Court, for the appellant could very well have raised the question of juris diction in spite of the change in the law unless the Amend ment Act had expressly stated that an action which had been commenced without the valid sanction would be covered by the amendment. But there is nothing to that effect in the Amendment Act, the words used in respect of section 6 being only :-
"Section 6 shall be omitted".
By the time the amendment came into force the proceedings had been concluded. The appellant was convicted on 29th' October 1951 and his conviction was maintained by the' Appellate Court on 10th March, 1952. The revision proceedings in the High Court were not a continuation of the original proceedings much less the proceedings in which this Court granted special leave to appeal ; and both these proceedings' also terminated long before the amendment. The revision petition was dismissed on 9th June 1952 and special leave to appeal was granted by this Court on 28th October 1952. In the circumstances no question of pending actions being affected by the Amendment Act seems to arise. It is, therefore, in my opinion, essential for the decision of this appeal that we should deal with the main contention of the appellant that the sanction given for his prosecution was invalid.
The arguments of the appellant, who appeared in person before us, may briefly be stated thus. He was appointed a Rehabilitation Tehsildar by the Governor and only the Governor was competent to remove him from that office. Under section 240 of the Constitution Act he could not be dismissed from service by any authority subordinate to that by which he was appointed. The Governor alone could therefore sanction the prosecution, but sanction was given in this case by the Financial Commissioner who is a subordinate of the Governor. There was thus no valid sanction and the entire proceedings were without jurisdiction.
In support of this position he relied on (1) Memorandum No. 4381-E dated the 20th December 1947 relating to the appointment of Tehsildars for Rehabilitation work, wherein: are mentioned the conditions o3 service and the sanction given by the Governor for re-employment of certain officers and also the order of appointment by the Governor of certain others as Rehabilitation Tehsildars and (2) Memorandum No. 3562-E dated 17th July 1948 whereunder the Governor of West Punjab terminated the services of Riaz Ahmad whose re-employment as Rehabilitation Tehsildar had been sanction ed under the first memorandum, and the Governor of West Punjab selected the appellant for appointment as a Rehabilitation Tehsildar at Sheikhupura in the place of the said Riaz Ahmad.
The Sessions judge who heard the appeal rejected the contention of the appellant on the ground that the appellant was selected for appointment by the Governor but was not appointed by him, and that according to Financial Commissioner's Standing Orders 1910 App. A : page 17 Tehsildars could be appointed and dismissed by the Financial Commis sioner. He referred to the observation in Afzal-ur-Rahman v. King-Emperor (1943 F C R p. 7 at p. 11,) that section 241 (3) of the Constitution Act contemplated that the dismissal could be by an authority subordinate to the Governor if that had been the pre-existing practice. When the matter came up in revision before the High Court a certified copy of the order of the Financial Commissioner of 28th June 1948 a date prior to that of the memo. relied on by the appellant as the order of his appoint ment was produced, and it was contended for the Crown that the word Governor' in the memo. dated 17th July 1948 was a "clerical mistake". Relying on the document so pro duced and the Financial Commissioner's Standing Orders the learned judge of the High Court who heard the revision petition accepted the position of the Advocate-General that the appointment of the appellant was made by the Financial Commissioner and that according to the Standing Orders, the Financial Commissioner was competent to appoint and dismiss Tehsildars. He, therefore, dismissed the revision petition.
But a careful scrutiny of the above documents clearly shows that the appellant was appointed by Government and not by the Financial Commissioner. The order of the Financial Commis sioner produced before the High Court can hardly be called an order of appointment. It is to the effect that the Financial Commissioner interviewed five persons including the appellant, that of them two persons one Sardar Muhammad Khan and the other, the appellant, appeared to be suitable and that they "should be appointed at Sargodha and Sheikhupura on rehabilitation work". The rest of the order relates to the other candidates and is not relevant. There is nothing in this order to show that its copy was sent either to the Accountant-General or to the appellant, which would have been done if what the Financial Commissioner had written was itself the order of appointment. Nor have we been shown anything on record indicating that a formal order was issued to the appellant in the name of the Financial Commissioner. On the other hand, the memo. relied on by the appellant as the order of appointment memo. No. 3562-E dated 17th July 1948 is as follows :--
"In view of the unsatisfactory work and serious neglect of duty on the part of Mr. Riaz Ahmad Rehabilitation Tehsildar Sheikhupura, the Governor of West Punjab is pleased under clause 9 in para. 1 of West Punjab Government Memorandum No. 4381-E, dated the 20th December 1947 to order that his services should be terminated forthwith.
2. The Governor of West Punjab is also pleased to select Lt. Mahboob Khan, formerly a Tehsildar in Faridkot State for appointment as Rehabilitation Tehsildar Sheikhu pura vice Mr. Riaz Ahmad.
It is seen from the record that a copy of it was forwarded to the Deputy Commissioner Sheikhupura with the following direction:
"M. Riaz Ahmad, Rehabilitation Tehsildar, should please be relieved of his duties immediately".
It is also seen from the record that a copy of the memo. was sent to the Accountant-General Punjab in continuation of the memo. dated 20th December 1947 wherein the Governor had sanctioned the re-employment of certain persons including the said Riaz Ahmad and that a copy of this memo. was sent also to the appellant with the direction that he should report himself immediately to the Deputy Commissioner Sheikhupura for duty. As for the contention for the Crown before the High Court that reference to `Governor of West Punjab' in the memo. in question was a clerical mistake, we have not been shown anything on the record to support this contention. Such a submission does not appear to have been made before the Sessions Judge It is significant that in the memo. in question reference is made to the earlier memorandum dealing with the conditions of service, one of which is said there to be that the Government may terminate the services. That earlier memorandum as pointed out already contains a paragraph to the effect that the Governor was pleased to appoint certain officials as Rehabilitation Tehsildars. It could not be that there also a clerical mistake occurred. If there was such a mistake definite evidence should have been adduced in respect of it. On the record before us it seems to me that what was produced as the order of the Financial Commissioner is only an expression of his opinion with regard to the suitability of the candidates he had interviewed and that his recommendation that the appellant should be appointed and posted to Sheikhupura for rehabilitation work was approved of and given effect to by the Government.
We have not been shown that the Standing Orders relied on by the Court below related to persons appointed on rehabilitation work. However as pointed out already memo. 4381-E, dated 20th December 1947 which is referred to in the memo. of 17th July 1948 cited above clearly indicates that Tehsildars for Rehabilitation work were to be appointed by Government and that their services could be terminated by Government. This memo. first states that the Governor of West Punjab was pleased to sanction the re-employment of certain officials. It then goes on to state the pay and other conditions of service and the third paragraph begins with the words :-
"The Governor of the West Punjab is also pleased to appoint the following refugee revenue officials from the Indian States to the temporary post of Rehabilitation Tehsildars entered in West Punjab Government Memo. No. 3798-E, dated the 19th November 1947".
Then follow the names of officers so appointed. A copy of this order was forwarded to the Deputy Commissioners concerned as well as to the Accountant-General. Reference has already been made to the memo. of the 17th July 1948 wherein the appellant was appointed. I, therefore, think that from what appears on the record the Standing Orders referred to by the Sessions Judge and the learned judge of the High Court cannot be taken as governing this case.
As regards the observation of the Federal Court of undivided India relied on by the Sessions judge, it obviously does not apply here, as there is nothing on the record to show that there was a pre-existing practice of the Financial Commis sioner dismissing persons appointed as Rehabilitation Tehsildars by the Government. On the other hand Memo. No. 4381-E dated the 20th December 1947 to which reference has already been made states in- paragraph 1, sub-paragraph (9):
"Service may be dispensed with by Government any time without notice for serious misconduct, inefficiency, neglect or failure of duty".
It was in the exercise of this power that in the memo. dated 17th July 1998, the services of Riaz Ahmad Rehabilita tion Tehsildar Sheikhupura whom the appellant displaced were terminated by the Governor of the West Punjab. If subsequent to this order the power of terminating the services of Rehabilitation Tehsildars had been given to the Financial Commissioner those proceedings or orders should have been produced before the Court. At the request of the present appellant the High Court ordered the production of certain documents including " any decision of the Government with the relevant file showing that conditions of service, appointments and dismissals of Rehabilitation Tehsildars were varied subsequent to the West Punjab Government Memorandum No. 4381-E dated 20th of December 1947;" but no such record appears to have been produced. In the circumstances, we should proceed on the basis that the memo. of 20th December 1947 under which the services of Rehabilitation Tehsildars can be dispensed with only by Government is in force without any modification.
Under section 6 (b) of the Prevention of Corruption Act, in the case of persons not removable from their office save by or with the sanction of the Provincial Government or some higher authority the sanction for prosecution should be given by the Provincial Government; and under section 6 (c), in the case of any other person sanction for prosecution should be given by the authority competent to remove him from his office. From what has been said above it follows that in this case the Financial Commissioner was not com petent to sanction the prosecution under either of these clauses of section 6.
The learned Advocate-General then contended that the appellant resigned and ceased to be a public servant by the time the prosecution was sanctioned and that, therefore, no sanction was necessary to prosecute him. But we have not been shown anything in the evidence to support the statement that the appellant ceased to be a public servant by the time sanction was given. The order sanctioning the prosecution does not say anything on this point and this contention does not appear to have been raised before…
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