Farooq Hasan, J.
1. Three appellants in two appeals namely, Madho Behari Goyal (Cr. Appeal No. 226/1977), Brandawan Dass (B.D. Soni) and Gokuldas (Cr. Appeal No. 207/77) were tried for the offences under Sections 120B, 409, 477A, 463, 471 and Section 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act, 1947 ('Act') read with Section 114, IPC and they were found guilty; and the learned Special Judge (C.B.I.) Rajasthan, Jaipur vide his judgment dated June 6, 1977 convicted and sentenced the appellants as under:
(1) Madho Beheri Goyal (Cr. Appeal No. 226/1977)Under Section 120B, 409 & 477A, IPC Five year's rigorous imprisonment oneach count;Under Section 465, IPC 1 year's rigorous imprisonment;Under Section 5(1)(c) of the Act 5 year's rigorous imprisonment with afine of Rs. 2,000/- in default 3 months'RI.(2) Brandavan Dass (B.D. Soni) (Cr. Appeal No. 207/77)Under Sections 120B, 409, 471, IPC Five year's rigorous imprisonment oneach count.Under Sections 465 & 411 IPC One year's rigorous imprisonment oneach counts;Under Section 5(1)(c) of the Act Five year's rigorous imprisonmentwith a fine of Rs. 3,000/- indefault 3 month's RI;(3) Gokul Dass (Cr. Appeal No. 207/77)Under Sections 120B, 144, 409, IPC and One year's simple imprisonment on Section 5(1)(c) of the Act. each count.All the sentences were ordered to run concurrently.
2. Fects: A challan was filed against the appellants on the following facts : Madho Behari Goyal was working as Store-Keeper in the Office of Garrison Engineer, M.E.S. (Army) at Jodhpur in 1967 and upto March, 1968; thereafter handed over charge of E/M, Sub-Division Stores including that of pipes of Kallinga make to his successor Shri R.C. Pal from 24-1-1968 to 6 2-1968. B.D. Soni (appellant) was the Proprietor of M/s Soni & Company Jodhpur and Gokuldas was employed with the firm at the relevant time. The present appellants along with Shri Roop Chand and Shri R.C. Pal were participants in criminal conspiracy intending to misappropriation of 40 G.I. pipes of 4' diameter measuring about 254 meters, which were in the custody and under charge of M.B. Goyal in his capacity as Store-Keeper. On 15-6-1967 or nearabout M.B. Goyal in collusion with Roop Chand & Gokul Das removed 40 pipes of Kallings make 4' diameter costing about Rs. 6,085.64p. from the M.E.S. Yard in military truck No. ID-33476 and unloaded the same near M/s Zinco Industries at Jodhpur from where the said pipes were removed by the appellants Gokul Das and B.D. Soni to the godowns of M/s Soni & Company. The appellant M.B. Goyal who was working as Store-keeper in order to conceal the aforesaid removal of the said pipes issued baby indent No. C-887277O dated 21-6-1967 which was prepared by him. Shri M.B. Goyal and R.C. Pal in order to conceal the shortage of the said 40 pipes did not show the shortage of 20 pipes at the time of handing over charge from 24-1-1968 to 6-2-1968. Prior to handing over the charge by M.B. Goyal to R.C. Pal, Store-Keeper, Parmeshwara, Naib-Subedar had brought some pipes from Forward Area to Jodhpur and the same were allowed to be unloaded in the M.E.S. yard and were taken on charge by R.C. Pal on 14-3-1968. Further, shortage of 10 pipes was made good by replacement of 10 pipes by B.D. Soni & Company in collusion with R.C. Pal. The checking was conducted in the month of November, 1968 by a Board constituted by Garrison Engineer (Army) and it was found that there were shortages of 134.10 meter G.I. Pipe of 4' diameter at Tannot and 62.34 meter pipe of the same description at E/M Sores, Jodhpur, B.D. Soni, after getting G.I. pipes removed from M.E.S. Stores Jodhpur obtained through Gokul Das bill No. 16762 dated 17-6-1967.
3. On the basis of other facts which are not necessary to be mentioned in this judgment because the present appeals are being decided on preliminary points, it was alleged that the appellants mis-appropriated pipes and made false entries and thus alleged to have committed offence under Sections referred to above. The charge-sheets were filed before the learned Special Judge who framed charges against the appellants, and found appellants guilty for the offences referred in above and as such the learned Special Judge convicted & sentenced the appellants as mentioned herein before. Hence these appeals.
4. Learned counsel for the appellants, at the very outset submitted that in the instant case the sanction (Ex. P. 45) was not given by a proper authority. In this regard, learned counsel contended that M.B. Goyal was a Store-keeper Gr. II vide order dt. 15-11-1965 issued by the Chief Eng., Western Command, Shimla and the appointing authority of the appellant M.B. Goyal who belonged to Class III posts under the Central Civil Services (Classification Control & Appeal) Rules, 1965 (here in after referred to as 'the Rules of 1965') was Chief Engineer, Western Command, Shimla; and thus according to the learned counsel, the authority who issued sanction for prosecution vide Ex. P. 5 was not competent to accord sanction for prosecution of the appellant M.B. Goyal.
5. It has not been disputed by the learned Special Public Prosecutor for the C.B.I. that sanction in the present case was given on Dec, 5, 1970 by Chief Engineer's Office, Poona and Rajasthan, Zone. It has, therefore, further been contended by S.C. Agarawal, learned counsel for the appellants that under the relevant Rules the Officer who had issued sanction (Ex. P. 45) had no plenary or delegated powers to appoint on a post in Class III service and that such a power was delegated to Chief Engineers of Zones for the first time on 14-1-1972. In this view of the matter, the learned counsel for the appellants contended that the sanction for prosecution can only have been given by the Chief Engineer Western Command Shimla and not by the Chief Engineer, Poona & Rajasthan Zone. Reliance in this regard has been placed on the decision of the Supreme Court in State of Haryana v. N.C. Tandon : 1977CriLJ1440 .
6. Mr. S.P. Tyagi, learned Special Public Prosecutor appearing for the C.B.I, fairly admitted the aforesaid position and was unable to place any relevant notification or amendment under the Rules showing that the Chief Engineer, Poona & Rajasthan Zone was authorised to accord sanction for prosecution of the appellant, M.B. Goyal on December 5, 1970.
7. I have considered the point raised by the learned counsel for the appellant and the submissions made by the learned Special Public Prosecutor, In State of Haryana v. N.C. Tandon (supra) the Supreme Court clearly held that under the Rules of 1965, the Chief Engineer North-Western Zone was not competent to remove the accused appellant and the order sanctioning the prosecution was bad in law. Their Lordships of the Supreme Court further observed as under:
31. The argument advanced on behalf of the appellant is that the very authority that had issued the letter dated April 27, 1956, has construed it as delegating the powers of appointment, punishment etc. to the Zonal CEs also, and therefore, the Court should accept that interpretation.
32. We are unable to accept this argument. We have already pointed out that this letter dated 23-1-1963, has not been issued under the signature of the same authority from which the order dated 27-4-1956, had emanated. It does not ex-facie show that any order, apart from that dated 27-4-1956, had been passed by the Engineer-in Chief under Rule 10. For reasons given earlier, we have no hesitation in holding that the assumption made in paragraph 12 of this letter extracted above, to the effect that the Zonal Chief Engineers were vested with powers of appointments, punishments etc. in accordance with H.Q. letter dated 27th April 1956 was clearly incorrect. Perhaps that was why on 14-1-1972, the necessity of making a proper order delegating such powers lo the Zonal Chief Engineers and others under Rule 9 was felt by the Engineer-in-Chief.As stated earlier, in the present case, the sanction for prosecution was given on December 5, 1970 by the Chief Enginneer, Poona & Rajasthan Zone who was not appointing authority for the appellant, M.B. Goyal at the relevant time when the alleged offence is said to have been committed by the appellant, M.B. Goyal with the assistance of other accused. No notification or amendment under the Rules of 1965 has been placed on record to show that Chief Engineer, Poona and Rajasthan Zone on December 5, 1970 when the sanction in question was accorded was delegated with the powers of the Chief Engineer on the Command.
8 In view of the aforesaid authority, according to the Rules, it was Chief Engineer Western Zone Command Shimla who could have given sanction for prosecution of the appellant, M.B. Goyal. In these circumstances, the case fails because there is no valid sanction against the appellant M.B. Goyal as required by law, and thus whole of the trial is vitiated. For these observations, reliance can be placed upon the decisions: RR Chart v. State of Uttar Pradesh : [1963]1SCR121 , M.I. Ahmed v. State of Andhra Pradesh : 1979CriLJ633 , R. S. Nayak v. A.R. Antulay : 1984CriLJ613 .
9. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. As held in M.I. Ahmed v. State of A.P. (supra), the grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosant act which affords protection to Government servants against frivolous prosecution and must therefore, be strictly complied with before any prosecution can be launched against the public servant concerned. And, a trial without a valid sanction where one is necessary under Section 6 is without jurisdiction because when the Court is called upon to take cognizance of the offence a sanction ought to be available otherwise the Court trying the case would have no jurisdiction to take cognizance of the offence. Therefore, in the absence of a valid sanction, the charges against the appellants under the aforesaid sections could not have been tried and that renders the proceedings against the appellants in respect of the charges levelled against them without jurisdiction in the present case.
10. The result is that the contention of the appellants that the sanction in view of the authority cited by him (supra) is invalid, succeeds and the whole trial in respect of the charges levelled against the appellants by a Special Judge under the Act, must, therefore, be held to be invalid and without jurisdiction. That being so, it is unnecessary to consider whether the findings arrived at by the learned Special Judge are justified or not. So, I do not propose to consider the evidence led by the prosecution in respect of the charges in relation to the appellants in both the appeals.
11. In the net result, the appeals are allowed; the impugned judgment of the Special Judge (C.B.I.), Rajasthan, Jaipur is set aside and so also the convicion and sentence passed against the accused appellants. But, in the present circumstances, an appropriate order which can be passed in these appeals is to discharge the appellants instead of passing order of acquittal. Obviously, it would not preclude a fresh prosecution for the same offence, but it is a matter for the State, in the circumstances of the case, to consider whether prosecution should be launched against the appellants or not. The appellants are already on bail and they need not surrender to the bail bonds. The bail bonds are discharged,