Full Judgment Text
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PETITIONER:
S. N. BOSE
Vs.
RESPONDENT:
STATE OF BIHAR
DATE OF JUDGMENT:
26/03/1968
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
MITTER, G.K.
CITATION:
1968 AIR 1292 1968 SCR (3) 563
CITATOR INFO :
RF 1968 SC1323 (5)
R 1984 SC 684 (19)
R 1984 SC 718 (21)
R 1992 SC 604 (125,133)
ACT:
Prevention of Corruption Act (II of 1947), ss. 4(1), 5 A and
6(1) (c)-Investigation by Inspector of Police after
obtaining permission from First Class Magistrate to lay
trap-Permission if sufficient for investigation-Reasons if
to be recorded by Magistrate while granting permission
Presumption under s. 4-Scope of and how rebutted-Sanction to
prosecute-Granted by Chief, Medical Officer of Railway
hospital as head of department-Accused a non-gazetted
officer having privileges of a gazetted officer-Sufficiency.
HEADNOTE:
The appellant was an assistant medical officer in a railway
hospital at Gaya. Though- he had certain privileges
ordinarily available to gazetted officers he was only a non-
gazetted Class III officer. He was convicted for offenses
tinder s. 161 I.P.C. and ’s. 5 (2) read with s. 5 (I) (d) of
the Prevention of Corruption Act, 1947. The complaint that
he had received illegal gratification, was investigated into
by an Inspector of Police. The Inspector obtained
permission from a First Class Magistrate for laying a trap,
investigated into the case, and later, after the entire
investigation was over, he obtained permission from the
Magistrate to investigate into, the case. The sanction to
prosecute required under s. 6(1) of the Act, was granted by
the Chief Medical Officer, who was the bead of the
department.
The conviction was challenged on the following grounds : (1)
The investigation was without authority of law, because,
under s. 5A, the Inspector could not have investigated
without the prior permission of a Magistrate of the First
Class; (2) The permission granted by the Magistrate did not
meet the requirements of law because, it was given casually
and without applying his mind to the question as to whether
there was any need for departing from the normal rule laid
down in the section, namely, that such cases should
ordinarily be investigated by an officer of the rank of Dy.
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Superintendent of Police or above and there should be good
reasons before a Magistrate accords permission to officers
below that rank; (3) The presumption under s. 4 that the
appellant had accepted the sum a motive or reward should
not be drawn unless the prosecution proved that the amount
was paid as a bribe; (4) The presumption was rebutted by the
appellant’s explanation that what was paid to him was the
return of a loan; and (5) the sanction to prosecute granted
by the Chief Medical Officer was invalid as lie was not the
authority competent to remove him.
HELD : (1) There is no basis for the contention that any
portion of’ the investigation was done without authority by
law. [567 D].
Investigation under s. 4(1) Cr. P.C. is one and indivisible
and includes all the steps taken by the Inspector to
ascertain the truth of the complaint alleging that the
appellant was attempting to obtain a bribe. Laying a trap,
is a part of the investigation and a permission given under
s. 5A of the Prevention of Corruption Act enables the
officer concerned not only to lay a trap but also to further
investigate. The fact that the Inspector of Police obtain
the two permissions, one for laying a trap and
564
another for investigating the case, does not affect the
earlier order as the second permission was wholly
superfluous. [566 G-H, 567 B-D]
(2) The order giving permission to. the Inspector did not
give any reasons and there is thus a violation of s. 5A.
But an illegality committed in the course of an
investigation does not vitiate the result of a trial unless
there was a miscarriage of justice. In the present case the
legality of the investigation was not challenged in the
trial court and prejudice to the appellant was neither
pleaded nor established. [568 C-D, F-G].
(3) The presumption under s. 4 arises when it is shown that
the accused had received the stated amount and that the said
amount was not legal remuneration. [569 D].
(4) The words ’unless the contrary is proved’ in s. 4(1)
show that the presumption was to be rebutted by proof and
not by a bare explanation which is merely plausible. The
’burden testing on the -accused will however be satisfied if
he establishes his case by a mere preponderance of
probability and it is not necessary for him to prove it
beyond reasonable doubt. In the present case, the
appellant’s plea was not accepted by the trial court and the
High Court and hence, it must be held that he had not
discharged the burden placed on him. [571 C-E].
State of M.P. v. Mubarak Ali, [1959] 2 S.C.R. 201, H. N.
Rishbud and Inder Singh v. State of Delhi, [1955] 1 S.C.R.
1150, State of U.P. v. Bhagwant Kishore Joshi, A.I.R. 1964
S.C.R. 221, Munnalal v. State of U.P. A.I.R. 1964 S.C. 28,
C. 1. Emden v. State of U.P. [1960] 2 S.C.R. 592,
Dhanvantrai Balwantrai Desai v. State of Maharashtra, A.I.R.
1964 S.C. 575 and V. D. Jhangan v., State of U.P. [1966] 3
S.C.R. 736, followed.
(5) Under s. 6(1) (c) of the Prevention of Corruption Act,
the appellant could not be prosecuted without the previous
sanction of the authority competent to remove him. Oral
evidence of the officer giving sanction cannot be relied on
for deciding the validity of the sanction. The Court must
be satisfied by reference to the rules on the subject.
Schedule 11 to the 1961 Rules relating to discipline and
appeal of railway servants makes provision for the
punishment of railway servants employed in zonal railways.
Under the Schedule I a head of a department was not
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competent to impose on Class III officers the punishment of
removal from service. That punishment could only be imposed
by an appointing authority or any other higher authority.
Under r, 134. the authorities competent to make first
appointments to non-gazetted posts are the General Manager.
the Chief Administrative Officer or a lower authority to
whom he may delegate power; but the power has not been
delegated to heads of departments. Therefore, the Chief
Medical Officer was neither the appointing authority nor was
he competent to. remove the appellant from his Office.
Hence he was also not competent to grant the sanction for
prosecuting the appellant. [571 F; 572 D; 573B-C, H;574A-B].
R. R. Chari v. State of U.P. [1963].1 S.C.R. 121, followed.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 109 of
1967.
Appeal by special leave from the judgment and order dated
May 4, 1967 of the Patna High Court in Criminal Appeal No.
455 of 1965.
Debobrata Mookherjee and P. K. Ghosh, for the appellant.
D, P. Jha, for the respondent.
565
The Judgment of the Court was delivered by
Hegde, J. In this appeal by special leave, Mr. Debabrata
Mookherjee learned counsel for the appellant advanced the
following contentions : (1) the investigation conducted in
this case was without the authority of law, (2) the nature
of the onus under s. 4 of the Prevention of Corruption Act
has been wrongly construed by the High Court as well as the
trial court, and (3) the sanction granted under S. 6 of the
Prevention of Corruption Act is invalid in law as the
authority who granted the same had no competence to do so.
The facts leading upto this appeal are these. The appellant
was an assistant medical officer in the railway hospital at
Gaya in the year 1964. PW 4 Doman Ram was a khalasi working
under the inspector of works, Eastern Railway, Gaya. On
March 2, 1964, as he was suffering from dysentery and
stomach pain he was sent to the appellant along with a sick
note for treatment. The case of PW 4 was that when he went
to the appellant for treatment the appellant demanded and
received, from him Rs. 2 as illegal gratification for
treating him. Thereafter he was. treated by the appellant
on the 5th, 7th. 9th and 12th of that month. By the 12th he
had completely recovered and, therefore he wanted to rejoin
duty and for that purpose he requested the appellant to give
him a fitness certificate. For issuing him that certificate
the appellant demanded Rs. 5 as bribe and he further told PW
4 that unless he paid him the said sum by March 14, 1964, he
(appellant) would remove PW 4’s name from, the sick list.
After this talk, when PW 4 was going out of the hospital he
met a person by name Babu.- He complained to Babu about the
behavior of the appellant. The said person told him that he
would meet him again on March 14, 1964, but on March 14 Mr.
A. C. Das PW 17, Inspector of Special Police Establishment
met PW 4 in his house and ascertained from him all that had
happened. Thereafter PW 4 met PW 17 again at the railway
station as desired by the latter. From there both of them
went to the district Dak bungalow where PW 17 recorded the
complaint of PW 4. The same day PW 17 obtained from the
First Class Magistrate an order under s. 5A of the
Prevention of Corruption Act. Thereafter, PW 4 produced
before PW 17 a five-rupee-currency note in the presence of
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panch witnesses. PW 17 noted the number of the currency
note in question, prepared a memorandum in respect of the
same, got it attested by the panch witnesses and thereafter
returned the said currency note to PW 4 to be given to the
appellant in case he made any further demand for bribe.
After these preliminaries were over PW 4 went to the
appellant along with the panch witnesses. There when PW 4
asked for the certificate, the appellant repeated his
earlier demand. Then PW 4 gave him the currency note in
question. This was seen by the panch
566
witnesses. Immediately signal was given to PW 17 who came
to the hospital and. asked the appellant to produce the five
rupee note received by him from PW 4. At this stage the
appellant became extremely nervous. He admitted that PW 4
had paid him Rs. 5 but that according to him was a return of
the loan given to him by the appellant. He produced the
currency note in question. After investigation the
appellant was charged under s. 161 IPC and s. 5(2) read with
s. 5(1)(d) of the Prevention of Corruption Act.
The plea of the appellant was that PW 4 and his wife were
doing odd jobs in his house; PW 4 was a drunkard and hence
was always in need; he used to often borrow from him
(appellant); he had borrowed Rs. 5/- from him some. days
prior to the date of the trap and he returned that amount on
that day. The appellant examined some witnesses in support
of that plea.
The trial court as well as the High Court accepted the
prosecution evidence; rejected the defence version and
convicted the appellant both under s. 161, IPC as will as s.
5(2) of the Prevention of Corruption Act. They have given
good reasons in support of the findings of fact reached by
them. As this Court does not go into questions of fact
except under exceptional circumstances, Mr. Mookherjea
primarily confined himself to the legal issues arising in
the case.
His first contention was that the investigation held in this
case was without the authority of law and hence the.
appellant is entitled to be acquitted. He urged that in
view of s. 5A of the Prevention of Corruption Act, PW 17 who
was only an Inspector of police could not have investigated
the case without the prior permission of a magistrate of the
first class; on March 12, 1964 he merely applied for and
obtained from a first class magistrate permission to lay a
trap; the permission to, investigate the case was obtained
by him only on the 21st but by that time the entire
investigation was over; hence there was no valid
investigation. The application made by PW 17 on the 12th
was under s. 5A of the Prevention of Corruption Act Therein,
it is true, he had only asked for permission to lay a trap.
It must be remembered that the permission given was one
under s. 5A. A permission under that provision is a
permission to investigate the case. Laying the trap is a
part of the investigation. It is so laid down by this Court
in State of Madhya Pradesh v. Mubarak Ali(). An
investigation is one and indivisible.[ All steps taken by PW
17 to ascertain the truth of the complaint made by PW 4
alleging that the appellant was attempting to obtain bribe
from him, come within the expression ’investigation’ under
s. 4(1) of the Code of Criminal Procedure. ’Investigation’
includes all the proceedings
(1) [1959] 2 S.C.R.201.
567
under the Code for the collection of evidence conducted by a
police officer or any person (other than a magistrate) who
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is authorised by a magistrate in this behalf. The scope of
the expression ’investigate’ found in S. 5A of the
Prevention of Corruption Act was explained by this Court in
H. N. Rishbud and Inder Singh v. State of Delhi(-) and State
of Uttar Pradesh v. Bhagwant Kishore Joshi(2). Section 5A
does not contemplate two sanctions, one for laying the trap,
and another for further investigation. Once an order under
that provision is made that order covers the entire,
investigation. A permission given under that provision
enables the officer concerned not only to lay a trap but
also to hold further investigation. There is no doubt that
PW 17 was under a mistaken impression that he should obtain
two permissions, one for laying the trap and another for
investigating the case. Evidently because of that he
applied for a second permission Rome days after the trap was
laid. But that permission was wholly superfluous and the
same does not affect the validity of the earlier order.
Hence there is no basis for the contention that any portion
of the investigation in this case was done without the
authority of law.
It was next urged that before granting the permission the
learned magistrate did not apply his mind to the question
whether there was any need for granting the sanie. Before
permitting PW 17 he should, have first ascertained whether
any officer of the rank of Deputy Superintendent or above
was not immediately available to investigate the case, and
whether ’there was any other reason for departing from the
normal rule laid down by the legislature, namely, that cases
of this nature should be investigated by officers of the
rank of Deputy Superintendent of Police or above. It was
further contended on behalf of the appellant that the earned
magistrate made the order casually he gave no reason in
support of his order and hence the permission granted does
not meet the requirements of the law.
The object of the legislature in enacting S. 5A was to see
that the investigation of offenses punishable under ss. 161,
165 or 165A, IPC as well as those under S. 5 of the
Prevention of Corruption Act should be done ordinarily by
officers of the rank of deputy superintendent or above N4
doubt S. 5A also provides for an alternative procedure. An
officer below the rank of deputy superintendent can
investigate those: offenses if he obtains the previous
permission of a first-class magistrate. The legislature
proceeded on the basis that except for good-reasons the
magistrate would not accord permission for officers below
the rank of a deputy superintendent to investigate those
offenses. But exigencies of administrative convenience may
require I that some of those
(1) [1955] 1 S.C.R. 1150.
(2) A.I.R. 1964 S.C. 221.
568
cases have to be investigated by officers below the rank of
Deputy Superintendents. For that reason it was provided
that’ in such circumstances the permission of a. magistrate
of the first class should be obtained. This Court has laid
down in State of Madhya Pradesh v. Mubarak Ali(’) that the
statutory safeguards under S. 5A must strictly be complied
with for they are. conceived in public interest and were
provided as a guarantee against frivolous and vexatious
proceedings. A magistrate, can-not surrender his discretion
to a police officer but must exercise it having regard to
the relevant material made available to him at the stage of
granting permission. He must also be satisfied that there
is reason owing to exigencies of the administrative
convenience to entrust a subordinate officer with the
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investigAtion. It is further observed therein that it is
desirable that the order giving the permission should
ordinarily on the face of it disclose the reasons for giving
permission. The order giving permission under s. 5A in this
case does not give any reason. On the application submitted
by PW 17 the learned magistrate merely ordered "Permission
granted". PW 17 did not mention in his application any-
special reason for permitting him to investigate the case
unless we consider the statement in the application "Today
is the date fixed for issuing the fit certificate: after
receiving a bribe money of Rs. 5 from him" as impliedly a
ground in, support of his application. It is surprising
that even after this Court pointed out the- significance of
s. 5A in several decisions there ’are still some magistrates
and police officers who continue to act in a casual manner.
It is obvious that they are ignorant of the decisions of
this Court. But the legality of the investigation held in
this case does not appear to have been challenged in the
trial court. The charge leveled against the appellant is
established by satisfactory and therefore all that we have
now to see is whether the accused was prejudiced by the fact
that investigation of this case was made by an officer below
the rank of a Deputy Superintendent, as laid down by this
Court in Munnalal v. State of Uttar PradeSh(2) and State of
Uttar Pradesh v. Bhagwant Kishore Joshi(3). No prejudice
was pleaded -much less established An illegality committed
in the course of an investigation does not affect the
competence and jurisdiction of the court for trial and where
cognizance of the case has in fact been taken and the case
has proceed to termination the invalidity of the preceding
investigation does not vitiate "the result unless the
miscarriage of justice has been caused thereby, See Rishbud
and Inder Singh v. State of Delhi(4).
We next take up the question as to the, scope of s. 4 of the
Prevention of Corruption Act. As, mentioned earlier, the
appel-
(1) [1959] 2 S.C.R. 201. (2) A.I.R. 1964 S.C. 28.
(3) A.I.R. 1964 S.C. 221. (4) (1955] 1 S.C.R. 1150.
569
lant admits the fact that he received a sum of Rs. 5 from PW
4 on March 14, 1964. Once that fact is admitted by him, the
court has to presume unless the contrary is proved by the
appellant that he accepted the sum in question as a motive
or reward for issuing the fit certificate. Mr. Mookherjea’s
contention was that the presumption in question does not
arise unless the prosecution proves that the amount in
question was paid as a bribe. He urged that the presumption
under s. 4 arises only when the prosecution proves that the
Appellant had received "any gratification (other than legal
remuneration) or any valuable thing from any person". He
laid stress on the Word gratification’ and according to him
the word ’gratification’ can only mean something that is
given as a corrupt reward. If this contention of Mr.
Mookherjea is correct then the presumption in question would
become absolutely useless. It is not necessary to go into
this question in any great detail as the question is no more
res Integra. In C.I. Emden v.State of U.P. (I") this Court
held that the "presumption under s. 4 arose when it was
shown that the Accused had received the stated amount and
that the, said amount Was not legal remuneration. The word
’gratification’ in s. 4(1) was given its literal dictionary
meaning of satisfaction of appetite or desire; it could not
be construed to mean money paid by way of a bribe." The
Court further observed
"If the word ’gratification’ is construed to
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mean money paid by way of a bribe then it
would be futile or superfluous to prescribe
for the.raising of the presumption.
Technically it may no doubt be suggested that
the object which the statutory presumption
serves on, this construction is that the court
may then presume that the money was paid by
way of a bribe as a motive or reward as
required by s. 161 of the Code. In our
opinion this could not have been the intention
of the Legislature in prescribing the;
statutory presumption under s. 4(1). In the
context we see no justification for not giving
the word ’gratification’ its literal
dictionary meaning.
There is another consideration which supports
this construction. The presumption has also
to be raised when it is shown that the accused
person has received valuable thing. This
clause his reference to, the offence
punishable under s, 165 of the Code; and there
is no doubt that one of the essential
ingredients, of the said offence is that the
valuable things should have been received by
the accused without consideration or for a not
be suggested that the relevant clause in s.
4(1)
(1) [1960] 2 S.C.R. 592.
570
which deals with the acceptance of any
valuable thing should be interpreted to impose
upon the prosecution an obligation to prove
not only that the valuable thing has been
received by the accused but that it has been
received by him - without consideration or for
a consideration which he knows to be
inadequate. The plain meaning of this clause
undoubtedly requires the presumption to be
raised whenever it is shown that the valuable
thing has been received by the accused without
anything more. If that is the true, position
in respect of the construction of this part of
s. 4(1) it would be unreasonable to, hold that
the word gratification’ in the same clause
imports the necessity to prove not only the
payment of money but the incriminating
character of the said payment. It is true
that the Legislature might have used the word
money’ or ’consideration’ as has been done by
the relevant section of the English statute;
but if the dictionary meaning of the word
’gratification’ fits in with the scheme of the
section and leads to the same result as the
meaning of the word valuable thing’ mentioned
in the same clause, we see no justification
for adding any clause to qualify the word
’gratification’; the view for which the
appellant contends in effect amounts to adding
a qualifying clause to describe
gratification."
The same view was taken by this Court in Dhanvantrai
Balwantrai Desai v. State of Maharashtra(1) and again in V.
D. Jhangan v. State of Uttar Pradesh(2).
It was next contended that to discharge the burden placed on
the appellant under s. 4 all that he has to do is to offer a
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reasonable explanation, the burden placed on him by s. 4(1)
being somewhat analogous to that ’Placed on an accused under
s. 114 of the Evidence Act. This branch of the law is also
well-settled by the decisions of’ this Court. Section 114
of the Evidence Act provides that the court may presume the
existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural
events, human conduct and public and private business, in
their relation to the facts of the particular case. Under
that provision the court is not bound to draw any
presumption of fact. ’It is within its discretion to draw a
presumption or not. But under s, 4(1) the court is bound to
draw the presumption mentioned therein. ’,The presumption
in question will hold good unless the accused proves the
contrary. In other words, the burden of proving the
contrary is squarely placed on the accused. A fact is said
to be when after Considering the matters before it the court
either believes it to exist or con
(1) A.T.R. 1964 S.C. 575.
(2) [1966] 3 S.C.R. 736.
571
siders its existence was so probable that a prudent man
ought under the circumstances of the particular case to act
upon the supposition that it exists. The proof given by the
accused must satisfy the aforementioned conditions. If it
does not satisfy those conditions then he cannot be said to,
have proved the contrary. In Dhanvantrai Balwantrai v. State
of Maharashtra(’) this Court considered the nature of the
proof required to be given by’ the accused under s. 4 (I).
Therein this, Court held that the burden resting on the
accused person in such a case would not be as light as that
placed on him under s. 114 of the Evidence Act and the same
cannot be held to be discharged merely by reason of the fact
that the explanation offered by him is reasonable and prob-
able. It must further be shown that the explanation is a
true one. The words ’unless the contrary is proved’ which
occur in that provision make it clear that the presumption
has to be rebutted by proof and not by a bare explanation
which is merely plausible. The same view was taken by this
Court in V. D. Jhangan v. State of Uttar Pradesh (2). But
at the same time it was mentioned in that decision that the
burden resting on the accused will be satisfied if the
accused person establishes his case by a preponderance of
probability and it is not necessary for him to establish his
case by the test of proof beyond reasonable doubt. In other
words, the, nature of the burden placed on him is not the
same as that placed on prosecution which must not only prove
its case but prove it beyond reasonable doubt. In the
instant case the evidence adduced by the appellant in
support of his plea was not accepted by the trial court as
well as the High Court. Hence it must be held that he had
not discharged the burden placed on him by law.’
This takes us to the last point urged by Mr. Mookherjea
namely that the sanction to prosecute granted by PW 1, the
chief medical officer, under s. 6(1) of the Prevention of
Corruption Act is invalid as he was not the authority
competent to remove the appellant from his office and hence
the prosecution is vitiated. Section 6(1), to the extent it
is material for our present purpose, reads :
"No court shall take cognizance of an offence punishable
under section 161 or section 164 or section 165 of the
Indian Penal Code, or Under sub-section (2) or sub-section
3A of section 5 of this Act, alleged to have been committed
by a public servant, except with the previous sanction,
(a)...........................
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(b)...........................
(c) in the case of any other person, of the authority
competent to remove him from his office."
(1) A.I.R. 1964 S.C. 575.
L7 Sup. CI/68-12
(2) [1966] 3 S.C.R. 736
572
This Court has laid down in R. R. Chari v. State of U.P.(1);
as well as in several other decisions that no court can
validly take cognizance of any of the offenses mentioned in
s. 6(1) of the Prevention of Corruption Act without the
previous sanction of the authority competent to remove from
office the accused. Without a valid sanction the court had
no jurisdiction to try the case. Hence, if the sanction
accorded in: this case is invalid then the appellant is
entitled to be acquitted.
P.W. I deposed that the appellant was a class III officer
and that he could have been appointed or dismissed by the
Deputy Agent Personnel who is subordinate to him. Therefore
he (P.W. 1) was competent to grant previous sanction under
S. 6 (1) of the Prevention of Corruption Act. P.W. 1’s
assertion that the appellant could have been removed from
’his office either by the Deputy Agent Personnel or by
himself was challenged in his cross-examination. The trial
court as well as the High Court have relied on the oral
evidence of P.W. 1 in coming to the conclusion that the
sanction granted is valid. In our opinion those courts
erred in relying on oral evidence in deciding the validity
of the sanction granted. Hence, we asked the learned
counsel for the respondent to satisfy us with reference to
the rules on the subject that P.W. 1 was competent to remove
the appellant from his office. For this, ,purpose we
granted him several adjournments. Though our attention has
now been invited to some rules, those rules do not establish
that P.W. I as competent to grant the sanction in question.
It was contended on behalf of. the appellant that he was a
gazetted officer and therefore he could be removed only by
the Railway Board. This contention does not appear to be
correct. As seen from the Government of India, Ministry of
Railways publication under the title "authorised scales of
pay", the appellant is a class HI officer. From that
publication it is further seen that F only class I and II
officers are designated as gazetted officers. In support of
his contention that he -was a gazetted officer, the ap-
pellant relied on the Railway Board’s letter No. PC/60/PS-
5/MH3 dated 2-3-1962. ’Paragraph 4 of that letter-the only
relevant paragraph for our present purpose-says that an
assistant surgeon after five years service shall hold the
honorary gazetted rank and shall be entitled to the usual
privileges granted to gazetted officers in matters such as
passes, allotment of quarters. This letter merely indicates
that the officers mentioned therein are entitled to certain
privileges which are ordinarily available to gazetted
officers. We are unable to ’read that letter as raising the
rank of the appellant to that of a gazetted officer.
Therefore we proceed on the basis that the appellant was a
non-gazetted officer. But the question still remains
whether P.W. 1 was competent to remove him
(1) [1963] S.C.R. 121.
573
from service. In view of appendix 3 8 of the Indian
Railways Establishment Code Vol. III (4th re-print, dated
26-7-1962), we may take it that P.W. 1 was the head of the
department to which the appellant belongs. The next
question is whether the head of his department was competent
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to remove the appellant from his service.
As per r. 134 of the Indian Railway Establishment Code, pub-
lished in 1959, authorities competent to make first
appointment to non-gazetted posts in the Indian Railways are
the General Manager, the Chief Administrative Officer or
lower authority to whom he may delegate power. There is no
evidence to show that this power has been delegated to the
heads of the department. No provision in the Indian Railway
Establishment Code 1959 prescribing the authorities
competent to remove from office a class III officer was
brought to our notice. But the prefatory note to Vol. I of
the Code says, "The revised Chapter XVII and revised
Appendices I and XII will be printed later for inclusion in
this edition. Till such times these are printed, the rules
and provisions contained in Chapter XVII and Appendices IV
and XVIII in the 1951 Edition (Reprint) as, amended from
time to time shall continue to apply."
In 1961 new rules relating to discipline and appeal of
railway servants other than employed in the railway
protection force have been published. Rule 1701 says,
"Without prejudice to the provisions of any law, for the
time being in force, relating to the conduct of Government
servants, or to the rules made under section 47 (e) of the
Indian Railways Act, 1890 (9 of 1890), the conduct of
railway servants shall be governed by the rules contained in
Appendix Vlll." Our attention has not been invited to any
rules made under s. 47 (e) of the Indian Railways Act, 1890
or any other statutory rules. Hence we are proceeding on
the basis that the aforementioned r. 1701 governs the
present case. Rule 1705 says that the authorities who are
competent to place a railway servant under suspension and to
impose penalties on him are specified- in the Schedules 1,
II and III appended to the Rules. Rule 1707 sets out the
various punishments that may be imposed on a railway servant
which includes removal from service as well as dismissal
from service. Schedule I deals with railway servants
employed in the Railway Board’s office, the Research, Design
and Standard Organisation, the Railway Staff College,
Baroda, the Advanced Permanent Way Training School, Poona,
the Railway Service Commission, the Railway Rates Tribunal,
the Railway Liaison Office and all other railway offices
which are not enumerated above. Schedule I does not apply
to the case of railway servants employed in the zonal
railways. As regards them, provision is made in Sch. III.
From that Schedule it is seen that though a head of the
Department can impose on Class III officers
574
censure as well as some other punishments detailed therein,
he is not competent to impose on them the punishment of
removal from service, compulsory retirement or dismissal
from service. Those punishments, as seen from the
Schedule,can be imposed on them only by thE appointing
authority or any other higher authority. P.W. 1 is not
shown to be the appointing authority. On the material
before us it is not possible to come to the conclusion that
P.W. 1 was competent to grant sanction under s. 6 (1)of the
Prevention of Corruption Act.
We accordingly allow this appeal and set aside the
conviction of the appellant. He is on bail. His bail bond
stands cancelled.
V.P.S. Appeal allowed.
575