AGARWALA, J. - (1.) THIS is an application in revision by Karim Bux, a police constable of Fatehpur, who has been convicted under Section 164, Penal Code, and sentenced to one year's rigorous imprisonment and Rs. 100 as fine by the Sessions Judge of Fatehpur hearing an appeal against the applicant's conviction by a Magistrate not only under Section 161 but also under Section 384, Penal Code. The conviction under Section 384, Penal Code, was set aside.
(2.) THE only point for consideration before me is whether there was a sanction to prosecute the applicant or not. The sanction to prosecute is required by Section 6 of Act 2 of 1947 which runs as follows : Section 6. - "No Court shall take cognisance of an offence punishable under Section 161 or Section 165, Penal Code, or under sub sections (2) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction, (a)........ (b) in the case of a person who is employed in connection with the affairs of a Province and is not removable from his office save by or with the sanction of the Provincial Government or some higher authority, Provincial Government; (c) in the case of any other person, of the authority competent to remove him from his office." The applicant being a police constable, it is common ground that the authority whose sanction was necessary is the Superintendent of Police of Fatehpur. The essential facts which are not disputed before me are as follows :
(3.) THERE was a general complaint that constables on the road sides were extorting money and taking bribes from owners and drivers of trucks exporting grain from one place to another. This fact was brought to the notice of the District Magistrate of Allahabad by an Inspector of the Anti -Corruption Department, U.P., Allahabad. The District Magistrate accordingly deputed one Magistrate of the first class to accompany the Inspector and to arrest such offenders. On the night between 2nd 3rd March 1947 at about 9 p.m. Th. Raghupal Singh Inspector accompanied by Shri Shiam Saran Das Magistrate, first class, arrived at Rasulabad in the district of Fatehpur. Bhola Nath, proprietor of a firm of Allahabad, and Rameshwar, Manager of a truck, along with its driver Jaigopal, met them at that place, as previously arranged. The Magistrate signed Government promissory notes of the value of Rs. 30 and handed them over to the proprietor of the track which was loaded with mustard seeds. The Magistrate and the Inspector took their seats in the truck and proceeded to Khaga where they arrived at about midnight. The truck was stopped by the applicant Karim Bux constable who was on duty at that time. He demanded his haq and after some talk Rs. 12 were paid to the applicant as illegal gratification for allowing the truck to proceed further. This amount of Rs. 12 was paid in one ten rupee note and two notes of Re. 1 each already signed by the Magistrate. As the truck was about to proceed after the payment of the bribe, it was stopped and the Magistrate and the Inspector alighted from the truck and forthwith arrested the applicant. Then a report of this incident was made by the Inspector to the District Magistrate of Allahabad, who forwarded the same to the Superintendent of Police of Allahabad, who in his turn forwarded it to the Superintendent of Police, Fatehpur, for necessary action. Then the Superintendent of Police, Fatehpur, made a report to the District Magistrate, Fatehpur, for orders to investigate the case under Section 155(2), Criminal Procedure Code The District Magistrate of Fatehpur ordered the investigation to be made. After the investigation, the applicant was prosecuted and convicted as aforesaid. What happened between the completion of the investigation and the submission of the case to the Court is not fully known from the documents placed on the record. The only document on the record is a charge -sheet dated 19th June 1947 prepared by Zahid Husain, investigating officer. He appears to have submitted it to the Superintendent of Police who ordered that "it may be sent to the proper Court through the Court Inspector." This order is the usual order which the Superintendent of Police has to record on every charge -sheet submitted to him for further action. Then one Shri K.K. Bhatnagar, who seems to be the Court Inspector concerned, submitted it to the Court on 7th July 1947. Beyond this order of the Superintendent of Police, Fatehpur, there is no other sanction of a date prior to 7th July 1947 when the charge -sheet was submitted to the Court and the Courts took cognisance of the case. While the case was pending in the Court, the Court Inspector seems to have realised the importance of obtaining the sanction of the Superintendent of Police. He, therefore, wrote a letter on 3rd December 1947 to the Superintendent of Police, Fatehpur, requiring him to accord his sanction to the prosecution of the applicant. In this letter he, no doubt, mentioned that "there is previous sanction of the Superintendent of Police, dated 30th June 1947 to 'prosecute' on the brief of the case, but as it has to remain in the file, separate sanction is applied for." The Superintendent of Police sanctioned the prosecution by writing the words "prosecution sanctioned." This sanction is dated 3rd December 1947. It is obvious that this sanction cannot be of any help to the prosecution as Section 6 of Act 2 of 1947 requires a 'previous' sanction. ;