STATE OF J&K Vs. RAJANI SEHGAL

JUDGEMENT

(1.) THESE two Revision Petitions which are admitted shall stand disposed of vide this common Judgment.

(2.) THE Session Judge, Udhampur was of the opinion that the prosecution case suffers from a legal infirmity and in the presence of such legal infirmity the prosecution of the accused is not possible unless sanction is obtained. It is the order which is subject matter of challenge in these petitions preferred by the State. The facts in brief are as under:

(3.) THEREFORE , the question as to whether trial can go on without obtaining sanction when a particular Act falls within two statutory provisions - one which requires sanction and the other which does not so require was gone into. The Full Bench decision given by the Bombay High Court in the case of State V. Sahebaro, AIR 1954 Bom. 549, which support the proposition as put across by the State was taken note of . The view expressed by the Gauhati High Court in the case reported as 1988 Cri. L. J. 1563, Sudhendra Kumar Bhattacharjee Y. State, was a view to the contrary and this was also considered. B.L. Hansaria, J, later Judge of the Supreme Court, expressed an opinion to the effect that the salutary requirement of obtaining previous sanction cannot be set a naught by prosecuting a public servant for an offence under the Penal Code for which no sanction is necessary, though the offence attracts the mischief of provision(s) of law mentioned in section 6 of the Prevention of Corruption Act. As per the learned Judge, Such a course would really frustrate the purpose for which previous sanction has been deemed necessary by the Legislature.  In doing so, the learned Judge placed reliance on a decision of Andra Pradesh High Court reported as AIR 1975 Andra Pra. 663, A.Veeraiah v. State. What was observed by Subba Rao C.J. (later Chief Justice of India ), was summarized in the following words. If the facts constitute an offence requiring either the sanction of a superior authority or the filling of a complaint by a court, It cannot be evaded by adopting the device of omitting one of the ingredients of the defence and prosecuting him under some other section. This was illustrated by saving that if a public servant received an amount on behalf of the State and dishonestly misappropriated the same, the offence directly fell under S. 5 (1), (0) of the Act and he could be prosecuted only with the previous sanction of the authority; and the prosecution could not, by adopting the device of ignoring the fact that the accused was a public servant, evade the requirement of previous sanction by filling a complaint under S.408 of the Penal Code. 