TMI Blog1957 (2) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 115 of 1956, was a Sub-Inspector of Police in the then State of Bhopal. He was prosecuted in the Court of Shri B. K. Puranik, Special Judge, Bhopal, and convicted of offences under 161, Indian Penal Code, and s. 5 of the Prevention of Corruption Act, 1947. He was sentenced to nine months' rigorous imprisonment on each count. He preferred an appeal against the conviction and sentences to the Judicial Commissioner of Bhopal. The Judicial Commissioner held by his judgment dated March 7, 1956, that no sanction according to law had been given for the prosecution of the petitioner and the Special Judge has no jurisdiction to take cognizance of the case; the trial was accordingly ab initio invalid and liable to be quashed. He accordingly s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh sanction for the prosecution of the petitioner for offences under s. 161, Indian Penal Code, and s. 5 the prevention of Corruption Act. The petitioner then moved this Court for appropriate writs restraining the respondents from prosecuting and trying him for the offences stated in the fresh action aforesaid. 4. On behalf of both the petitioner the contention is that by reason of clause (2) of Art. 20 of the Constitution and s. 403 of the Code of Criminal Procedure, the petitioners cannot now be tried the offences in question, It is necessary to read her some of the relevant sections bearing on the point at issue. Section 6 of the Criminal Law Amendment Act, 1952 (prior to the amendment made in 1955), so far as is relevant for our purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (2) of section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction, - (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government......., [of the] Central Government; (b) in the case of a person who is employed in connection with the affairs of [a State] and is not removable from his office save by or with the sanction of the State Government............, [of the] State Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) where for any reason whatsoever any doubt arises whether the previous san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Court decision in Basdeo Agarwalla v. King-Emperor [1945] F.C.R. 93; and the decision of this Court (not yet reported) was given in Buddha Mal v. State of Delhi [Criminal Appeal No. 17 of 1952 decided on October 3, 1952] on October 3, 1952. The Privy Council decision is directly in point, and it was there held that the whole basis of s. 403(1) was that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal; if the Court was not so competent, as for example where the required sanction for the prosecution was not obtained, it was irrelevant that it was competent to try other cases of the same class or indeed the case against the particular accused in diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 403, Code of Criminal Procedure, it is enough to state that the petitioners were not tried, in the earlier proceedings, by a Court of competent jurisdiction, nor is there any conviction or acquittal in force within the meaning of s. 403(1) of the Code, to stand as a bar against their trial for the same offences. Learned counsel for the petitioners invited our attention to Sections 190, 191, 192, 529 and 530 of the Code of Criminal Procedure and submitted that in certain circumstances the Code drew a distinction between 'jurisdiction' and 'taking cognizance'. The whole fabric of the argument of learned counsel was founded on this distinction. Assuming, however, that in certain cases one Magistrate may take cognizance and an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted an accused person to the Court of Session in disregard of the provisions of s. 254 of the Code of Criminal Procedure, and the question was whether the irregularity so committed rendered the Sessions Court incompetent to try the case. The facts there were entirely different from the facts of the present cases and there was no occasion nor necessity for considering such mandatory provisions as are contained in s. 6 of the Prevention of Corruption Act. We do not think that the observations made in that case can be pressed in service in support of the argument of learned counsel for the petitioners in these cases, treating those observations as though they laid down any abstract propositions of law not dependent on the context of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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