G.B. Patnaik, J.
1. The appellant who was the cashier of the Division Office of the Forest Corporation stood charged under Sections 5(1)(c) and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act as well as under Sections 409 and 477A of the Indian Penal Code. He has been convicted on all counts and has been sentenced to undergo R.I. for six months for the offence under the Prevention of Corruption Act as well as six months each for the offence under Sections 409 and 477A, I.P.C, and the sentences have been directed to run concurrently.
2. It is the prosecution case that in the capacity as the cashier he has misappropriated to the tune of Rs. 10,044.35 between the period 1-2-1975 to 15-4-1975. According to the prosecution case, P. W. 4 submitted the Account sheet to the Division Office for the period from 20-2-73 to 28-2-75 which shows refund of advance to the tune of Rs. 3935/- and P. W. 12, the Divisional Manager passed the said amount under Ext. 14. But the accused by inserting the number T before the same, inflated the advance refunded to customers by Rs. 10,000/-. Then in the cash book dated 28-2-75, the accused also had shown refund of advance to customers as Rs. 16,227.50 which should have been duly Rs. 6,227.50 . and in the process by manipulation the cash was reduced by Rs. 10,000/- and the accused misappropriated the said sum. It is the further prosecution case that P. W. 11 the Deputy Divisional Manager, Ratnagiri Sub-division recovered a sum of Rs, 23.50 from the pay bill of one D. R. Puruseth and Rs. 20.75 from the pay bill of another staff T. R. Pradhan. But the accused omitted to show the recovery and showed only Rs. 27/- as security deposit and did not include the sum of Rs. 44.25 in the cash book as stated earlier and thereby misappropriated the said sum. It is not necessary to state detailed facts in this case in view of the points urged by the learned Counsel for the appellant. It would be sufficient to note that the prosecution examined 15 witnesses and exhibits a large number of documents and on consideration of the same, the learned Special Judge came to the conclusion that on account of manipulation of figures, the accused misappropriated the sum of Rs. 10,000/- and thereby committed the offence under Section 5(1)(c) and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act as well as the offence under Sections 409 and 477A, I.P.C.
3. Mr. K. C. Mohanty, the learned Counsel for the appellant does not assail the findings of the learned Special Judge on merits of the case. He, however, contends that the sanction in question is invalid as the materials have not been placed before the sanctioning authority and the sanctioning authority accorded sanction without application of mind. There cannot be any dispute that prior sanction as required under Section 6 of the Prevention of Corruption Act is necessary to clothe the trial judge with the jurisdiction to try the offence under the provisions of Prevention of Corruption Act. In support of the contention with regard to the invalidity of the sanction Mr. Mohanty placed reliance on a decision of this Court in the case of Baikunthanath Mohanty v. State of Orissa (1985) 1 Orissa LR 263 : 1985 Cri LJ 563 and also placed the evidence of the sanctioning authority (P. W. 10) and the sanction order (Ext. 39). Before adverting the attention to the evidence of P. W. 10 and also the sanction order (Ext. 39), it would be profitable to take note of the decision on which the learned Counsel for the appellant placed reliance. In paragraphs 11 and 12 of the judgment in Baikunthanath Mohanty's case referred to supra, the learned single Judge has taken note of several decisions of this Court as well as of the Supreme Court. In the case of Major Somanath v. Union of India 1971 SCD 1126 : 1971 Cri LJ 1422, it was observed by the Supreme Court that for a sanction to be valid, it must be established that the sanction was given in respect of the facts constituting the offence with which the accused is proposed to be charged. It was also observed that though it is desirable that the facts should be referred to in the sanction itself, nonetheless if they do not appear on the face of it the prosecution must establish by giving evidence aliunde that those facts were placed before the sanctioning authority. It would be worthwhile to extract a passage from the decision of the Supreme Court in the case of Mohammed Iqbal Ahmed v. State of Andhra Pradesh : 1979CriLJ633 :It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings, are rendered viod ab initio.
Relying upon this decision as well as some other earlier decisions of this Court and applying the ratio to the sanction order in Baikunthanath Mohanty's case, this Court came to the conclusion that there has been no valid sanction as all necessary materials had not been placed before the sanctioning authority and the sanctioning authority did not apply his mind. Bearing in mind the ratio of the aforesaid case, if the evidence of P. W. 10 is examined it appears that the prosecution has failed to establish the fact that all materials had been placed before sanctioning authority and the said sanctioning authority accorded sanction by applying his mind to those materials. P. W. 10 though stated in his evidence that he issued the sanction order (Ext. 39) after fully and carefully examining the materials placed before him and further stated that so far as he remembered, a report containing details of report of the prosecution was placed before him which had been sent by the S. P. (Vigilance), Berhampur and on perusal of that report he arrived at his satisfaction, but in the cross-examination candidly admitted that the said report is not available on record. There is no other evidence on record to indicate as to what are those materials or the report alleged to have been given by the S. P., (Vigilance) which had been placed before the sanctioning authority before he accorded sanction. In other words, the prosecution evidence is practically nil to prove what materials had been place before the sanctioning authority before he accorded the sanction in question. In this view of the matter, merely on the statement of P. W. 10 that he fully and carefully examined the materials placed before him and not being able to state as to what materials had been produced it must be held that the prosecution had failed to establish that the sanctioning authority accorded sanction by examining the materials on record and applied his mind fully and Carefully to those materials. A perusal of text 39, also does not improve the prosecution case in any manner. Following the ratio of the decisions of this Court reported in (1085) 1 Orissa LR 263 : 1985 Cri LJ 563, it must be held that the sanction in this case is invalid and, therefore, the conviction of the appellant under Section 5(2) of the Prevention of Corruption Act cannot be sustained and is accordingly set aside.
4. The further question which remains to be considered is whether the conviction on other two counts can be sustained or not. Mr. Mohanty, the learned Counsel, for the appellant relying upon the self-same decision of Baikutnanath Mohanty's case (1985) 1 Orissa LR 263 : 1985 Cri LJ 563 contends that once the conviction under Section 5(2) of the Prevention of Corruption Act fails, then the Special Judge would have no further jurisdiction to continue the trial in respect of two other offences of the Indian Penal Code and therefore the conviction on those counts also must fail.
5. Learned Standing Counsel, however, appearing for the State relies upon the decision of another learned single Judge of this Court in the case of Md. Sabir Hussain v. State of Orissa (1983) 56 Cut LT 288 wherein the learned Judge has taken a contrary view. In view of the two divergent views the learned Standing Counsel contends that the matter may be referred to a larger Bench. But it appears that the learned single Judge while deciding the Md. Sabir Hussain's case had not kept in his mind the provision of Section 7(3) of the Criminal Law Amendment Act. The matter has been discussed at length by another learned single Judge in the case of Rajib Lochan Pradhan v. State (1984) 53 Cut LT 1 and after referring to Section 7(3) of the Criminal Law Amendment Act, it has been Observed that when the trial before the Special Judge relating to the offence under Section 5(2) of Prevention of Corruption Act is held to be no trial at all due to want of valid sanction under Section 6 of the Prevention of Corruption Act, the Special Judge would have 10 further jurisdiction under Section 7 of the Criminal Law Amendment Act to try the offences under Sections 467 and 477A, I. P.C. and, therefore the trial for this offence must be held to be null and void In coming to the aforesaid conclusion, the learned Judge had relied upon a Bench decision of the Patna High Court reported in : AIR1961Pat203 Ramautar Mahatan v. State as well as the earlier decision of this Court reported in (1981) 52 Cut LT 197 : 1982 Cri LJ 961 Republic of India v. Khagendranath Jha. It also transpires that the learned single Judge who had taken a contrary view in Md. Sabir Hussain's case referred to supra has himself considered this question in a later decision in the case of B. K. Kutty v. State (1984) 58 Cut LT 53 : 1984 Cri LJ 1289 and has taken a decision contrary to what he had decided in Md. Sabir Hussain's case. In my view, the correct position has been enunciated by Mohanty, J. (as he then was) in Rajib Lochan Pradhan v. State (1984) 58 Cut LT 1 and therefore it would not be necessary for me to refer the matter to a larger Bench. Following the aforesaid decision of this Court, I would, therefore, hold that the conviction of the appellant under Section 409 as well as under Section 477A, I.P.C. must be set aside and accordingly I set aside the same.
6. In the result, all the conviction and sentences passed against the appellant are set aside and the appellant is acquitted of all the charges. This Criminal Appeal is accordingly allowed. The bail bond furnished by the appellant stands cancelled.