- (1.) THE important question arising for consideration in this case is whether the Prevention of Corruption Act, 2006 (herinafter called as The Act) bestows power on the appropriate authority to add, alter, or supersede an order of sanction made under section 6 of the Act,
(2.) THE question has arisen like this. The accused -respondent was a Government servant employed in the police Department of the State. It was alleged that he accepted a sum of Rs. 100/ - as illegal gratification from one, Mohamad Ramzan Shalla, for showing undue favour to him in the discharge of his public duties. The appropriate authority considered the matter and permitted his prosecution under Section 5 (2) of the Act, On the basis of this sanction, the court of Special Judge also subsequently took cognizance of the offence against him. While the trial was in progress, the appropriate authority issued a revised order of sanction sanctioning his prosecution for offences under sections 161 RPC and Section 5 (3) of the Act. On the basis of this sanction, the prosecution moved an application for amendment of the charge. They wanted section 161 R. P. C. also to be included in the charge. The learned Special Judge has dis -allowed the application holding that the appropriate authority was not competent to issue the revised sanction nor even the court had otherwise power to amend the charge,
(3.) THE Act does not expressly empower the appropriate authority to add to, alter, or supersede an order of sanction made under section 6 of the Act The argument of the learned Counsel appearing for the state, however is that the power is available under Section 21 of the General Clauses Act. Section 21 of the Act, provides, that where, by and Act or Regulation, a power to issue notification, orders, rules, or bye -laws is conferred then, that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind, any notification, order, rules, or bye -laws so issued. This section is parimateria with section 21 of the General Clauses Act prevailing elsewhere in the country That section fell for consideration before the Supreme Court in the case of State of Bihar Versus D. N. Gangully and ors, AIR 1958 S. C. 1018. The court observed: "It is well settled that this Section embodies a rule of construction, and the question whether or not it applies to the provisions of a particular statute would depend on the subject matter, context, and the effect of relevant provisions of the said statute. In other words, it would be necessary to examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether by the application of the rule of construction enunciated by section 21, the power to cancel... can be said to vest by necessary implication." On this principle, I must, therefore proceed, to examine the object and the scheme of the Act. By its preamble, the Act seeks to make more effective provisions for the prevention of bribery and corruption in the State. Section 3 of the Act declares offences under Sections 161 and 165 of the Ranbir Penal Code to be Cognizable offences. Section 3 of the Act provides for a rule of presumption and says that where in any trial of an offence punishable under Section 161, or Section 165, R. P. C. or of Section 165 (a) R. P. C. it is proved that an accused person has accepted or obtained, has agreed to accept or attempted to obtain for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward as mentioned in those Sections. Section 5 defines criminal mis -conduct in discharge of official duty and provides for its punishments in these words: (1) A Public Servant is said to -commit the offence of criminal mis -conduct in the discharge of his duty - a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as it mentioned in Section 161 of the Ranbir Penal Code, 1989, or, (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, likely to be concerned in any proceeding or business transacted or about to be transacted by him. or having any connection with the official functions or himself or of any public servant to whom he knows to be interested in or related to the person so concerned, or, (d) If he dis -honestly or fraudulently misappropriates or otherwise converts for his own use (or attempts to mis -appropriate or convert to his own use) any property entrusted to him or under his control as a public servant or willfully suffers any other persons so to do or, (e) If he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains (or attempts to obtain) for himself or for any other person any valuable thing or pecuniary advantage. (2) Any public servant who commits criminal mis -conduct in the discharge of his duty shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine; Provided that the court may, for any special reasons recorded in writing, refrain from imposing a sentence of imprisonment or impose a sentence of imprisonment of less than one year". ;