SHARMA, J. - (1.) THIS is an appeal filed by Dr. Kailash Nath Haldiya against a judgment of the learned Special Judge, Jaipur City, by which he was convicted under sec. 420, I. P. C. and sec. 5 (1) (d) read with sec. 5 (2) of the Prevention of Corruption Act and sentenced to undergo simple imprisonment for a period of one year on the first count and to suffer simple imprisonment for one year and to pay a fine of Rs. 100/-, in default of payment of fine to undergo further simple imprisonment for three months on the second count. Both the substantive sentences of imprisonment were, however, ordered to run concurrently.
(2.) THE prosecution case against the appellant was that he was working on the post of Superintending Medical Officer, National Smallpox Eradication Programme Unit, Jaipur during the period between 13-6-1964 and 15-6-1964 (both days inclusive ). While functioning as such, he started from Jaipur in the morning of 13-6-1964 in a Government owned jeep-car No. MRB 483 (now RSL 1871) driven by Shrichandu Lal driver, on the pretext of touring the area within his jurisdiction on official duty. Instead of utilising the said Government-owned jeep-car for his official tour, he took it to Rewari, which is situated outside the territory of the State of Rajasthan. He reached Rewari in the evening and stayed there till morning of 15-6-1964, on the occasion of marriage of his relative. He returned from Rewari on 15-61964 along with his family consisting of two sons, two daughters and one sister-in-law. At Rewari the appellant purchased 52 1/2 litres of petrol from the shop of his father-in-law on credit as is evident from the account- books of the said shop. On his way back to Jaipur, the appellant issued a petrol coupon No. 230 dated 15-5-1964 to M/s. Jhandi Prasad Parmeshwarlal, petrol dealer at Shahpura, for purchasing 51-1/2 litres of petrol and one litre of mobil oil in Government account, but instead of taking petrol and mobil oil for his jeep-car, he sold the same through the Munim of the said firm and dishonestly pocketed the sale proceeds thereof. Likewise Dr. Haldia issued on 15-6-1964 one more petrol coupon No. 229 dated 14 6-64 for obtaining 50 litres of petrol on Government account in order to create false evidence that this quantity of petrol was purchased by him on 14-6-1964, though in fact it was got on 15-6-1964. Dr. Haldiya, however, suppressed the fact of having taken Government owned jeep-car to Rewari by omitting to make necessary entries in the log book of the said jeep-car and fraudulently made false entries in the log-book in his own hand-writing and signatures in order to show that he had gone on tour in the area within his jurisdiction. He further made false entries about his visit to Bandikui in the log-book on 16-6-1964 in order to cover up the mileage undetaken in his trip to Rewari. In this manner, he cheated the Rajasthan Govt. by abusing his official position. He further obtained illegal pecuniary advantage for himself by submitting false T. A. & D. A. bills of his tours from 13-6-64 to 16-6-64 showing therein his visits to Dausa Lalsot, Bilona, Shivasinghpura, Ramgarh, Dausa, and night halt at Bandikui on 13-6-1964, to Baswa, Rajgarh, Alwar, Kotputli, Rajnota. Shahpura and night halt at Kotputli on 14-6-64 and from Jaipur to Kotputli on 15-6-64 and, in this manner, he dishonestly drew daily allowance of four days from the Govt. treasury, although he knew it well that such trips were never undertaken by him in his official capacity. Shri Motilal Dabi. Deputy Superintendent of Police, Anti-Corruption Department, Jaipur, received a credible information from some secret source that one officer had cheated the Government by abusing his official position and had obtained illegal pecuniary advantage for himself by preparing false T. A. & D. A. bills and drawing the amounts thereof knowing it well that the journeys for which T. A. and D. A. bills were prepared and amounts drawn had not been undertaken by him for official work. The Deputy Superintendent, Anti-Corruption started investigation into the case and eventually, upon investigation, it was found that it was the appellant who had taken Government-owned jeep-car to Rewari for his private work and had cheated the Government and obtained illegal pecuniary advantage for himself by making false entries in the log-book of the jeep car and by drawing daily allowance for four days through false T. A. and D. A. bills. After collecting necessary evidence, the Deputy Superintendent of Police obtained necessary sanction to prosecute the appellant from the Governor and submitted a charge-sheet against the appellant under sec. 420, 468, 471, I. P. C and under sec. 5{l) (d) read with sec. 5 (2) of the Prevention of Corruption Act in the court of the Special Judge No. 1, Jaipur City. The learned Special Judge, Jaipur City, tried the appellant for the aforesaid charges and found him guilty of the offences of cheating punishable under sec. 420, I. P. C. and sec. 5 (l) (d) read with sec. 5 (2) of the Prevention of Corruption Act, as stated above. He acquitted the appellant of the offences punishable under secs. 468 and 471, I. P. C. Aggrieved by his conviction and sentence the appellant has come up in appeal to this Court. I have carefully gone through the record and heard arguments advanced by Shri Bhimraj Purohit for the appellant and Shri G. A. Khan, appearing on behalf of the State. Shri Bhimraj appearing on behalf of the appellant has raised an objection to the competency of the Special Judge, Jaipur City to try the appellant. According to him, at the time when the challan was filed against the appellant in the court of the Special Judge No. 1, Jaipur City, there were more than one Special Judge for the area within which the offences were alleged to have been committed by the appellant. The Special Judge No. 1, Jaipur City, in whose court the challan was submitted, was not specified by the State Government as the Special Judge who would try the offences with which the appellant had been charged. Hence he strenuously urged that the Special Judge No. 1, Jaipur City, was not competent to try the appellant for these offence because he was not the only Special Judge appointed for the area of the Jaipur City, there being one more Judge having been appointed as a Special Judge for the whole of Rajasthan including that area. In support of his above contention, the learned counsel invited my attention to sub-sec. (2) of sec. 7 of the Criminal Law (Amendment) Act, 1952 hereinafter referred to as The Act, and relied upon an authority of the Mysore High Court Ananthashaya Nacharya Dambal vs. State of Mysore (l ). The learned counsel forther argued that the sanction obtained by the prosecution to prosecute the appellant also did not specify that this case would be tried by special Judge No. 1, Jaipur City and, therefore, the learned Special Judge No. 1, Jaipur City, could not claim competence to try the offences alleged to have been committed by the appellant. Shri G. A. Khan, appearing on behalf of the State, on the other hand, argued that an objection relating to the competence of the Special Judge No. 1, Jaipur City to try the appellant was not taken in the trial court and that it is not now open to the appellant to contend before this Court that the trial Judge was not empowered to try the offences. According to him, the objection does not relate to the existence of jurisdiction, because the learned Special Judge No. 1 Jaipur City, had jurisdiction to try the case. At the most, it can be treated as an objection to the exercise of jurisdiction in an irregular manner. In support of his above contention, Shri G. A. Khan placed reliance on sec. 462 of the Criminal Procedure Code, 1973 (corresponding to sec. 531 of the old Code), and on two authorities - State vs. Ramprasad (2) and Ramchandra vs. State of Bihar (3 ). I have given my anxious consideration to the rival contentions. It is not disputed before me that the offence punishable under sec. 5 (l) (d) read with sec. 5 (2) of the prevention of Corruption Act, which is alleged to have been committed by the appellant in this case, falls within the purview of sec. 6 (1) of the Act. This offence can be tried by Spl. Judges only as laid down u/sub-sec. (1) of S. 7 of the Act. While trying this offence, the Spl. Judge could also try any offence other than the offence specified in sec. 6 of the Act, with which the appellant was charged at the same trial. U/s. 6 of the Act, the State Govt. may appoint as many Spl. Judges as may be necessary for such area or areas as may be specified in the notification issued in this behalf in the Official Gazette to try an offence punishable under sub-sec. (2) of sec. 5 of the Prevention of Corruption Act and secs. 161, 165 and 165-A. I. P. C. Under sub-sec. (2) of sec. 7 of the Act, if there are more Special Judges than one appointed for a particular area, every offence specified in sub-sec. (1) of sec. 6 of the Act shall be tried by such one of them as may be specified in this hehalf by the State Government. The question, therefore, that arises for determination is whether there were more Special Judges than one for Jaipur City on the date when the charge-sheet was filed against the appellant in the court of the Special Judge, Jaipur City and whether any one of them was specified by the State Government to try the offences which were stated to have been committed by the appellant. The decision of this question requires a careful study of the several notifications issued from time to time in this behalf by the Government of Rajasthan in exercise of the powers conferred upon it by sec. 6 (1) of the Act. The first notification issued in this behalf is dated 26th August, 1952 and it reads as below: "in exercise of the powers conferred by sec. 6 of the Criminal Law Amendment Act, l952 (No. XLVI of 1952), the Government of Rajasthan is pleased to appoint all the sessions. Judges and Additional Sessions Judges in Rajasthan, in virtue of their office, to be Special Judges within their respective jurisdiction for the purpose of the said Act. " By virtue of this notification the Sessions Judge and the Additional Sessions Judge, Jaipur City were appointed to be Special Judges for the area within their jurisdiction for the purposes of the said Act. The second notification was issued on 18th November, 1955, and it is as follows: 'in exercise of the powers conferred by sec. 6 of the Criminal Law (Amendment) Act. 1952 (Central Act XLVI of 1952) and in partial modification No. F. 2 (9) Jud/52 dated the 26th August, 1952, the Government of Rajasthan is pleased to appoint the Sessions Judge, Jaipur City, to be Special Judge also for the trial of all cases investigated by the Delhi Special Police Establishment involving offences punishable u/secs. 161 or 165 or l65-A, of the IPC or sec. 5 (2) of the Prevention of Corruption Act, 1947 (Central Act 11/1947) with jurisdiction over the whole State of Rajasthan. " By this notification, the State Government appointed Sessions Judge, Jaipur City to be Special Judge also for the trial of all cases investigated by Delhi Special Police Establishment involving offences specified therein. The third important notification issued in this behalf is dated 26th February, 1958. It reads as under: "in pursuance of sec. 6 of the Criminal Law (Amendment) Act. 1952 (Central Act No. XLVI of 1952) read with sec. 7 (2) of the said Act and in supersession of previous notifications in this behalf, the State Government hereby - (1) appoints the Sessions Judges. Additional Sessions Judges & Assistant Sessions Judges specified in col. 2 of the sub-joined Schedule, by virtue of their office to be Special Judges to exercise jurisdiction respectively, in the area mentioned against each in column 4 thereof in respect of the cases other than those investigated by the Delhi Special Police Establishment. (ii) appoints the Sessions Judge, Jaipur City, to be Special Judge with jurisdiction over the whole of the State of Rajasthan for the trial of cases investigated by the Delhi Special Police Establishment. " THE SCHEDULE S. No. Name of Court Head Quarters Area of jurisdiction as Special Judge 1 2 3 4 Bikaner Division (1) x x x Ajmer Division (4) Sessions Judge, Jaipur City. Jaipur Jaipur City (Municipal limits) (5) Sessions Judge, Jaipur District. Jaipur Jaipur District (excluding Municipal limits of Jaipur City ). (6) x x x By this notification the Sessions Judge, Jaipur City, was appointed by virtue of his office to be a Special Judge to exercise jurisdiction in the area of Jaipur City (municipal limits) in respect of cases other than those investigated by the Delhi Special Police Establishment. By para 2 he was appointed to be Special Judge having jurisdiction over the whole of the State of Rajasthan for the trial of cases investigated by the Delhi Special Police Establishment. Later on, by another notification dated 20th May, 1965 the State Government made the following amendment in the said Notification dated 26th February, 1958: - "in exercise of the powers conferred by sec. 6 of the Criminal Law (Amendment) Act 1952 (Central Act XLVI of 1952) and in supersession of this Department Notifications No. F26 (90) Jud. /62 dated the 7th July, 1964 and No. F. (14) Jud/64, dated the 15th May, 1965, the State Government hereby makes the following amend-ment to this Department Notification No, D, 386/ F. 3 (2) LJ/b/58, dated the 26th February, 1958, namely - AMENDMENT In the said Notification, in para (11) before the Schedule for the expression "sessions Judge, Jaipur City" the expression "special Judge No. 2, Jaipur" shall be substituted. " Another Notification was issued by the State Government on 15th June, 1965, whereby Shri D. D. Gupta, Officiating Civil and Additional Sessions Judge, Jaipur City, was appointed Special Judge No. 2 for the whole of Rajasthan to try the offences specified in sub-sec. (1) of sec. 6 of the Act. This notification reads as follows: "in exercise of the powers 'conferred by sub-sec. (1) of sec 6 of the Criminal Law Amendment Act, 1952 (Central Act XLVI of 1952) the State Government hereby appoints Shri D. D. Gupta, Officiating Civil and Additional Sessions Judge, Jaipur City as a Special Judge No. 2 for the whole of Rajasthan to try the offences specified in the said sub-section. The Notification No. F. 26 (90) Jud/62. dated the 33th November, 1963 may be treated as cancelled with effect from the date Shri D. D. Gupta takes over charge as such Judge from Shri Bipin Chandra Ojha. " From this notification, it is evident that the State Government appointed another Special Judge for the whole of Rajasthan to try offences specified in sub-sec. (1) of sec. 6 of the Act, the first one being already appointed by Notification No. D. 386/f. 3 (2) L. J. (B)/58 dated 26th February, 1958 for the area falling within the municipal limits of Jaipur City. This notification was later on followed by another Notification No. F. 19 (23) Jud/66 dated 17th July, 1967, whereby the State Government was pleased to appoint Shri Gopal Sahai Sharma, Officiating Civil & Addl. Sessions Judge as Special Judge with his headquarters at Jaipur for the whole of Rajasthan to try the offences specified in the said sub-sec. (1) of sec. 6 of the Act. This notification issued subsequently reads as below: - "in exercise of the powers conferred by sub-sec. {1) of sec. 6 of the Criminal Law Amendment Act, 1952 (Central Act XLVI of 1952) and in consultation with the High Court, the State Government is pleased to appoint Shri Gopal Sahai Sharma, Officiating Civil and Additional Sessions Judge, as Special Judge, with his head-quarters at Jaipur for the whole of Rajasthan to try the offences specified in the said sub-section. " From a bare reading of these notifications it appears that on the date, i. e. 26-4-1968, on which a challan was presented against the appellant in the court of the Special Judge, Jaipur City, there were Special Judges more than one for the area covered by the municipal limits, Jaipur City. Shri G. A. Khan, appearing on behalf of the State could not produce any notification to show that Notification No. F. 19 (23) Jud/66, dated 17th July, 1967, appointing Shri Gopal Sahai Sharma, Officiating Civil and Additional Sessions Judge as Special Judge with his headquarters at Jaipur for the whole of Rajasthan to try the offences specified in sub-sec. (1) of sec. 6 of the Act was cancelled or superseded later on by the Government of Rajasthan on or before 26-4-1968 on which date the appellant was challaned in the court of the Special Judge, Jaipur City. (On the other hand, Shri Bhimraj Purohit, counsel for the appellont, filed a certified copy of the order-sheet dated 4-3-1970 of the court of Special Judge No. 2, Jaipur City, in case No. 11 of 1970 State vs. Dr. B. H. Jutshi signed by Shri Gopal Sahai in order to show that Shri Gopal Sahai was continuing as a Special Judge No. 2, Jaipur City till 4-3-1970 ). In view of these facts, it can be safely held that for the area of Jaipur City (municipal limits) there were two Special Judges on 26-4-1968, one was Sessions Judge, Jaipur City, who by virtue of his office was appointed to be Special Judge for that area by virtue of Notification dated 26-2-1968. The other was Shri Gopal Sahai Sharma, Officiating Civil and Additional Sessions Judge, Jaipur City, whose appointment as Special Judge, was made vide Notification No. F. 19 (23) Jud/66, dated 17th July, 1967 and who continued to hold this post at least till 4-3-1970. There is no dispute that the Special Judge No. 1, Jaipur City was not specified by the State Government as the Special Judge who would try the offence with which the appellant had been charged. The sanction Ex. P. 3 obtained in this case to prosecute the appellant does not reveal that any such specification as required by sub-sec. (2) of sec. 7 of the Act was made by the State Government for trial of the offences which were stated to be committed by the appellant. The relevant portion of the sanction is as follows: - "dr. K. N. Haldia is removable from his office by the order of the Governor; now therefore in pursuance of sec. 197 Cr. P. C. and sec. 6 of the Prevention of Corruption Act the Governor of Rajasthan is pleased to accord sanction for the prosecution of said Dr. K. N Haldia for offences under secs. 420, 468 and 471 of the Indian Penal Code and under sec. 5 (1) (d) (2) of the prevention of Corruption Act in the competent court of law. " The pertinent question that arises for decision therefore is whether in the absence of specification as required by sub-sec. (2) of sec. 7 of the Act, the learned Special Judge, Jaipur City, who has tried this case, could have jurisdiction to try offences which were stated to have been committed by the appellant within the municipal limits of Jaipur City. The answer to this question may be found in sub sec. (2) of sec. 7 of the Act, which is as follows: - "7 (2) Every offence specified in sub-sec. (1) pf sec. 6 shall be tried by the Special Judge for the area within which it was committed or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government. " This sub-section clearly enacts that where the number of Special Judges is more than one for any particular area, it is necessary for the State Government to specify which one of those Special Judges shall try the offences with which the accused is charged. If there is no such specification as required by sub sec. (2) of sec. 7 of the Act either in the sanction itself or in a notification issued in this behalf, a particular Judge for that area cannot have the competence to try that offence, because, he is not the only Special Judge appointed for that area, there being person or persons having been appointed as Special Judges for the same area. To my mind, it appears that by enacting sub-sec. (2) of sec. 7 of the Act, the intention of the legislature was that ordinarily every offence specified in sub-sec. (1) of sec. 6 of the Act shall be tried by a Special Judge appointed for the area within it was committed, but if more Special Judges than one are appointed for the same area, such offences shall be tried by such one of them as may be specified in this behalf by the State Government. In this view of the matter, the learned Special Judge No. 1, Jaipur City, had no jurisdiction to try the offences committed by the appellant within the municipal limits of Jaipur City, because on 26-4-1968 on which date the present challan was presented against the appellant, there was another Special Judge No. 2 appointed for the whole of Rajasthan, including municipal limits of Jaipur City to try these offences and because it was not specified by the State Government as which one of the two Special Judges would try the offences with which the appellant had been charged. A similar view was taken by a Division Bench of the Mysore High Court in the referred to above case of Ananthashayanacharya Dambal vs. State of Mysore, wherein their Lordships have made the following observations - "if the Government did not by the notification by which it appointed Mr. Range Gowda or by any subsequent notification confer power upon Mr. Range Gowda to try the offence with which the petitioner was charged, it is clear, that Mr. Range Gowda cannot claim the competence to try that offence since he is not the only Special Judge appointed for the District of Bijapur, there being two more having been appointed as Special Judges for that area. (11) It is thus clear that Mr. Range Gowda has no jurisdiction to proceed with the tril of the case againt the accused. We issue a writ of prohibition restraining Mr. Range Gowda from proceeding with that case. " It is undoubtedly true that an objection relating to the competency of the Special Judge, Jaipur City, to try the appellant was not taken in the trial court, but as this objection relates to the existence of jurisdiction and does not merely relate to the exercise of it in an irregular manner, it goes to the root of the case and can be raised in the appellate court as observed by the Lordships of the Supreme Court in R. J. Ahuluwalia vs. State of Delhi (4 ). The relevant observations of their Lordships of the Supreme Court on this point are quoted below - "the appellant's learned counsel asked for permission to raise a new point in challenge of this sanction. The new point sought to attack the sanction on two-fold ground. In the first instance he contended that this sanction was granted for prosecution under sec. 6 (1) (c) of the prevention of Corruption Act and not under sec. 6 (1) (a ). Secondly, it was contended that in the case of the appellant it was only the Home Department of the Government of India which could sanction the prosecution. This argument was founded on the Gazette Notification No. S. C. 2494 dated August 3, 1965 which amended the Government of India (Allocation of Business) Rules, 1961 pursuant to the powers conferred on the President by cl. (3) of Art. 77 of the Constitution. This ground of challenge had, of course, not been raised in either of the two courts below but since it went to the root of the case, being a jurisdictional point, we considered it just and proper to allow it to be raised. " Consequently, I do not subscribe to the view of Shri G. A. Khan appearing on behalf of the State that the objection relates to the exercise of jurisdiction in an irregular manner and that the irregularity, if any, in the exercise of jurisdiction has not the effect of vitiating the trial. The rulings cited by Shri G. A. Khan for the State are not on the point involved in this case. In Ram Chandra vs. State of Bihar (supra), the challan was presented against the accused before the Magistrate at Dhanbad for an offence punishable under sec. 161 Penal Code and sec. 5 (2) of the Prevention of Corruption Act, 1947. The case was later on transferred by the High Court to the court of Munsiff Magistrate at Patna upon an application by the accused. After the order of trnasfer was passed, the Criminal Law (Amendment) Act, 1952, came into force. The case, therefore, was sent to the Special Judge, Patna, for trial in view of S 10 of the Act. The accused was tried by the Special Judge of Patna and convicted. The accused preferred an appeal against the conviction. In the appeal it was argued on behalf of the accused that the Special Judge at Manbhum alone could have tried the case. Their Lordships of the Supreme Court rejected this contention for the accused on the ground that there was nothing in S. 10 of the Act which bars the application of S. 531 of the Code of Criminal Procedure and that in view of S. 531 of the Cr. P. C. the order of the Special Judge convicting the accused appellant could not be set aside merely because the Special Judge of Patna had no territorial jurisdiction to try the case when no prejudice was shown to have been caused to the accused in any way In the instant case, the Special Judge, Jaipur City had territorial jurisdiction to try the case by virtue of notification dated 26-2-1958, as indicated above. The question involved in this case is whether in the absence of any specification by the State Government as required by sub-s. (2) of S. 7 of the Act, he could try the offences with which the appellant was charged. In the Division Bench ruling of this Court State Vs. Ram Prasad (supra), the contention raised was that the Special Judge could be appointed by the State Government for an area or areas but not by class of cases. The Division Bench of this Court, while rejecting the above contention, observed as follows - "it would have been quite in order if in the present case an order had been passed by the State Government that the present case be tried by the Special judge, Jaipur City. The same result has been achieved by a general order that the cases investigated by the Dehli Special Police Establishment shall be tried by the Special Judge, Jaipur City. " As the present case has not been investigated by the Delhi Special Police Establishment, the above observations made by the Division Bench of this Court are not applicable to this case. Consequently, I am of the view that under S. 7 (2) of the Act, it was necessary for the State Government to specify which of the two Special Judges would try the offences stated to have been committed by the appellant. As the State Government did not, by any notification, empower the Special Judge, Jaipur City, to try the offences with which the appellant was charged, it can be safely held that the Special Judge, Jaipur City, could not conduct the trial of this case against the appellant since he was not the only Special Judge appointed for the area within the municipal limits of Jaipur City, there being another Special Judge having been appointed for the whole of Rajas-than including the aforesaid area. In the view that I have taken, it is not necessary for me to give a decision on other points which have been argued before me relating to the merits of the case. The result is that I accept the appeal, set aside the convictions and sentences of the appellant under S. 420, I. P. C. and S. 5 (i) (d) read with S. 5 (2) of the Prevention of Corruption Act on the ground that the learned Special Judge, Jaipur City, was not competent to try aforesaid offences against the appellant as he was not specified by the State Government as directed by sub-sec. (2) of S. 7 of the Act as the Special Judge who could try the offences with which the appellant had beed charged. Dr. Kailash Nath Haldiya is on bail. His bail bonds are hereby cancelled. . ;