JUDGMENT

Arun Kumar Dutta, J.

1. The instant criminal revisional application, along with 11 other applications, being Criminal Revision Case Nos. 1585 to 1596/90, had been heard together in terms of the order dated 10.9.90 passed by this Court in the instant matter.

2. The petitioner in all the 12 matters at hand is the same and the alleged offences for which he has been prosecuted in the relevant cases are also similar in nature. The petitioner by his relevant applications in the 12 re-visional cases at hand Under Section 401, read with Section 482, of the Code of Criminal Procedure has prayed the Court for quashing all the 12 relevant criminal proceedings against him as also the impugned orders passed therein by the learned Special Judge, Birbhum, in connection therewith on the grounds set forth therein.

3. On 15.11.84 the 12 complainants in the relevant 12 cases had lodged complaints before the Superintendent of Police, Suri, Birbhum, to the effect that the petitioner-accused, then working as the Assistant Inspector of Schools, Birbhum, had received different sums of money from them on the plea of procuring them jobs, which he failed to do. On the basis of the aforesaid 12 complaints filed by the complainants the relevant 12 cases had been started against the petitioner-accused. The police after completion of investigation had submitted charge-sheet before the learned Sub-Divisional Judicial Magistrate at Suri on 21.3.88. Since the petitioner-accused had also been prosecuted for having allegedly committed an offence punishable Under Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter shortened into Act) the learned Sub-Divisional Judicial Magistrate had forwarded the relevant 12 cases to the Special Judge-I at Suri, Birbhum, on 22.5.89. The learned Special Judge had thereupon taken cognizance of the offences and had also framed charge against the petitioner-accused in the relevant 12 cases in question Under Sections 161/420, I.P.C., read with Section 5(2) of the Prevention of Corruption Act. The petitioner-accused who was working as Assistant Inspector of Schools, Birbhum, at the time of commission of the alleged offences was working as Assistant Inspector of Schools (Secondary), North 24-Parganas at Barasat at the time of starting of the relevant 12 cases against him.

4. The petitioner has sought for quashing all the relevant 12 proceedings against him and the relevant orders passed by the learned Special Judge framing charge against him, the way he did, mainly on the ground that no sanction has been accorded by the appropriate authority Under Section 197 of the Code for prosecuting him in 7 cases, and that the sanction accorded in the remaining 5 cases had not been accorded by the authority competent to do so. The other submission feebly sought to be made on his behalf during the hearing that he is liable to be discharged in view of the amended provisions of Section 167(5) of the Code appears to be entirely ill-made as charge-sheet in the relevant cases had admittedly been submitted by the Investigating Agency on 21.3.88, long before the aforesaid amended Act had come into force on 2.5.89. The aforesaid amended provision provides for stopping the investigation and discharging the accused in terms thereof but does not provide for stopping the trial of a case. Since investigation in the relevant 12 cases had already been completed before the aforesaid amended provision came into force there could clearly be no question of stopping the investigation and nothing remains to be stopped in terms thereof as the trial of the relevant cases could not conceivably be stopped in terms thereof.

5. As regards the petitioner's principal contention that the relevant 12 proceedings are liable to be quashed in the absence of sanction Under Section 197 of the Code in the 7 relevant cases and absence of sanction by the competent authority in the remaining 5 cases, the learned Advocate for the State had sadly sought to urge that no sanction is required in the relevant cases in the nature of the alleged offences. He had also referred to the decisions in Nandaram Agarwala v. H. C. Bhari and Ors., and Manohar Kaul v. The State of Jammu & Kashmir, in support thereof. In terms of the first decision, the court must find out in such a case as to whether the act and the official duty are so inter-related , that one can postulate reasonably that it was done by the accused in the performance of his official duty, though possibly in excess of the needs and requirements of the situation. It had been held therein that there must be a reasonable connection between the act and the official duty. It had been held in the second decision that where a public servant commits the offence of cheating of abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offence has no necessary connection between it and the performance of duties of a public servant, the official status furnishing only the occasion or opportunity for commission of the offence. But the aforesaid decisions referred to on behalf of the opposite party-State could clearly have no application in the facts and circumstances of the relevant 12 cases at hand as the petitioner-accused appears to have been prosecuted by the prosecuting agency for having allegedly committed offences punishable Under Sections 161/420, I.P.C, read with Section 5(2) of the Prevention of Corruption Act. The Investigating Agency upon completion of the investigation also appears to have submitted charge-sheet against the accused thereunder. The very fact that the prosecuting agency has prosecuted the petitioner-accused also under Sub-section (2) of Section 5 of the aforesaid Act would seem to give the clearest and conclusive indication that it is their own case that the petitioner-accused has allegedly committed offence punishable thereunder. Section 5 of the aforesaid Act deals with criminal misconduct in the discharge of official duty. In terms of Sub-section (1)(d) thereof a public servant is said to commit the offence of criminal misconduct if he, by illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person, any valuable thing or pecuniary advantages, as are precisely the allegations against him in the relevant petition of complaints filed by the 12 complainants. The petitioner-accused had not merely been prosecuted by the prosecuting agency Under Section 5(2) of the aforesaid Act, along with the two other relevant provisions of the I.P.C., but on the materials collected by them during investigation and presented before the court, the learned Special Judge by his relevant orders in the relevant 12 cases also appears to have framed charge against the petitioner-accused Under Sections 161/420, I.P.C. read with Section 5(2) of the Prevention of Corruption Act, obviously implying that there are prima facie materials to indicate that he has committed criminal misconduct in the discharge of the official duties. That being so, it would not certainly lie in the mouth of the opposite party-State to say how that the petitioner-accused has not committed criminal misconduct in the discharge of his official duty. It would further seem significant and observable to note from the materials on record that sanction had been accorded for trial of the petitioner-accused in 5 of the 12 criminal cases on behalf of the Director of School Education, West Bengal, by letter dated 6.1.1988, obviously implying that such sanction was needed since the alleged offences in connection therewith had been allegedly committed by the petitioner-accused in the discharge of his official duty. In the aforesaid circumstances, it would be too late in the day for the opposite party-State to contend now that the alleged offences punishable Under Section 5(2) of the Prevention of Corruption Act, allegedly committed by the petitioner-accused, had not been committed by him in the discharge of his official duty. With things as they are, it would be difficult to uphold the contention of the opposite party-State that no sanction is required for prosecuting the petitioner-accused for the alleged offences, which be accordingly overruled.

6. As indicated above, the alleged offences had allegedly been committed by the petitioner-accused in the discharge of his official duty for which he has been prosecuted by the Investigating Agency Under Sections 161/420, I.P.C., read with Section 5(2) of the Prevention of Corruption Act. And, on the materials presented by the Investigating Agency before the court below, the learned Special Judge had as well held that there is prima facie materials to frame charge against him thereunder, for which he had framed charges against him thereunder.

7. Since the petitioner-accused has been prosecuted for the alleged offences punishable Under Sections 161/420, I.P.C., read with Section 5(2) of the Prevention of Corruption Act in the discharge of his official duty, and since he is, undisputedly, a Class II Officer of the West Bengal State Services, who could be appointed by the Governor under Rule 6 of the West Bengal Services (Classification, Control and Appeal) Rules, and could be removed from his office by him (Governor), Sanction is essential for his prosecution therefor. In terms of Section 197(1) of the Code, no court could take cognizance of the alleged offences (against the petitioner-accused) except with the previous sanction of the Governor. Section 197 of the Code apart, no court could either 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 under Sub-section (3A) of Section 5 of the Prevention of Corruption Act, 1947, alleged to have been committed by a public servant, except with the previous sanction of the Authorities mentioned therein in terms of Section 6 thereof. The aforesaid relevant provisions of the Code and the Act being, what they are, previous Sanction from the competent Authority is a condition precedent to confer jurisdiction on any particular court to try a person of an offence under the aforesaid relevant provisions of the Indian Penal Code or Under Section 5(2) of the Prevention of Corruption Act, 1947. Where the law prescribes Sanction as a condition precedent to a prosecution, the court must not only be satisfied that the required Sanction has been accorded, but that the Sanctioning Authority has accorded it after applying its mind to the facts constituting the offence. It is by now well-settled that a Sanction accorded by an Authority not competent to do so is no Sanction in the eye of law, and such a defect is not a mere technical defect but goes to the very root of the matter vitiating the entire proceedings, as held in the decision in Union of India v. A. D. Bali, 1978 Cr LJ NOC 14 (HP). Absence of a valid sanction cannot be said to be an irregularity or any omission or error in the obtaining of the sanction. The absence of the sanction bars the prosecution of the Government employee. Where the sanction has not been granted by the competent authority, there is no question of curing the sanction which is on the very face of it illegal and in contravention of Article 311 of the Constitution. Under Article 311 of the Constitution, an authority lower in rank than the appointing authority is not competent to remove an employee and the same principle would apply in the case of sanction also. Valid sanction can only be given by a person who is the appointing authority. 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 need for sanction has been made out constituting the offence. The grant of Sanction is not an idle formality or an arcimonious exercise but a solemn and sacrosanct act which affords a 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. The Supreme Court in the decision in Md. lqbal Ahmed v. State of Andhra Pradesh, 1979 Cr LJ 633, has further observed that 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. What the court is to sec is whether or not the sanctioning authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same ; any subsequent fact which may come into existence after the grant of sanction is wholly irrelevant.

8. In view of the facts and circumstances discussed above as also the decisions referred to above, there could be no mistaking that sanction Under Section 197 of the Code and Section 6 of the Prevention of Corruption Act is a condition precedent for prosecution of the petitioner-accused for the alleged offences for which he is prosecuted. Admittedly and evidently, sanction had been accorded only in 5 of the 12 cases, being Suri P.S. Case Nos. 4(2)85, 6(2)85, 7(2)85, 8(11) and 9(11)84, dated 6.2.1985 on behalf of the Director of School Education, West Bengal, by letter dated 6.1.1988. Undeniably, no sanction had been accorded by any authority for the prosecution of the remaining 7 cases, vitiating the entire proceedings. The said 7 relevant cases are accordingly liable to be outright quashed in view of the discussions above. And, so far as the other 5 cases are concerned, as indicated above, sanction appears to have been accorded not by the Governor who is, undisputedly, the appointing and removing Authority of the petitioner-accused. It has been held by the Supreme Court in Sampuram Singh v. State of Punjab, that the authority

competent to remove (and therefore competent to accord sanction) can be higher in rank to the appointing authority. Sanction accorded by such higher authority was held by the Supreme Court to be not invalid. But in the aforesaid 5 relevant cases sanction appears to have been accorded by letter dated 6.1.88 on behalf of the Director of School Education, West Bengal, who is neither the appointing nor the removing authority of the petitioner-accused nor any higher authority and cannot, therefore, be held to be an authority competent to accord sanction Under Section 197 of the Cr. P.C., or Under Section 6 of the Prevention of Corruption Act. The sanction so accorded by the aforesaid letter dated 6.1.88 by an authority, lower in rank than the appointing authority, not competent to do so, is clearly no sanction in the eye of law and as such the defect is not a mere technical defect but goes to the very root of the matter vitiating the entire proceedings. The aforesaid 5 relevant cases are as well liable to be quashed as such.

8. In view of the discussions above, all the relevant 12 proceedings before the court below are clearly liable to be quashed. The relevant 12 criminal revisions at hand should succeed in the result.

9. Even though the relevant 12 proceedings are liable to be quashed in view of the discussions above, 1 am tempted to recall that the intention of the legislature in providing for sanction in respect of offences covered by Section 6 of the Act is merely to afford a reasonable protection to the public servant in the discharge of his official functions. The section is a safeguard for the innocent and is not a sheild for the guilty. That being so, all the relevant 12 criminal revisional cases be allowed on contest. The relevant 12 proceedings be accordingly quashed. But in view of the nature and gravity of the allegations against the petitioner-accused the appropriate authorities shall be at liberty to proceed against him according to law. If not otherwise barred, if so advised.

10. This judgement/order governs all the relevant 12 criminal revision cases, being Criminal Revision Case Nos. 1585 to 1596 of 1990.

11. The lower court records, if called for, be sent down forthwith.

12. Let a xerox copies of this judgment order be supplied to the learned advocates for both sides on usual undertakings, as prayed for.