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Criminal Revision Application No. 201 of 1967, decided on 9th December 1969.
, S. 403-Principle of autrefois acquit and autrefois convict (no one shall be either punished or put in peril twice for same offence)-Conditions to be satisfied for invoking S. 403(1).
Section 403(1), Cr. P. C. incorporates the common law principle of the well known pleas of autrefois acquit and autrefois convict', namely that no one shall be either punished or put in peril twice for the same offence. Before, however, this section can be invoked the following conditions have to be satisfied :-(i) That the accused has been already tried for the offence charged against him ; (ii) That the trial was held by a Court of competent jurisdiction ; and (iii) That there was judgment or order of acquittal or conviction.
In the instant case, the accused were tried and convicted for alleged forgery of a sale deed but were acquitted on appeal. Later on, in connection with the same transaction, they were charged with the offence of removing forged thumb-impression from official Register. The trial Judge discharged the accused on the ground that the case before him was in respect of the same or similar offence of which the accused had already been tried and acquitted. On a revision petition by the State before the High Court, it was contended on behalf of the accused that the charges in the two cases were "similar" or in any case "inter-linked" to such an extent that the decision in the earlier case was bound to have effect on the later case as well Held, the two charges were in respect of totally distinct offences committed by different accused at different times. Merely because some accused happen to be common in both the cases or that the later offence may have been committed with a view to destroy or cause disappear ance of certain evidence which could have been material in the other case, would not bar a trial for the subsequent offence. Moreover, even if the findings of the learned Special Judge that the offences which are the subject-matter of the two cases were "similar" could be accepted, section 403, Cr. P. C. would not bar such a trial.
It is impossible to hold that the effect of acquittal with refer ence to the complaint of the earlier case was a bar to the entertainment of the second complaint which has given rise to this revision application. The Special Judge's order was therefore, both erroneous as well as improper.
Abdul Majid v. The State P L D 1963 Dacca 661 ; Sambasivam v. Public Prosecutor, Federation of Malaya 1950 A C 458 ; Raza v. Emperor A I R 1944 Pat. 247 ; Purnananda Das Gupta and others v. Emperor A I R 1939 Cal. 65 ; Malak Khan v. Emperor A I R 1946 C 16 ; Pritam Singh v. The State of Punjab P L U 1957 S C (Ind.) 1 and Muhammad 1kram and others v. The State P L D 1965 Lab. 461 ref.
Madad Ali v. The State P L D 1965 Kar. 541 Tel.
, S. 6(5)-Sanction for prosecution-Mere omission to mention, an order of sanction, exact date on which, or place where, offence alleged to have taken place-Held : would not render sanction invalid-Presumption of regularity of all official acts --- Applies to sanction for prosecution as well-Evidence Act (I of 1872), S. 114, illus. (e).
Simply because the exact date or the place where the offence is alleged to have taken place was not mentioned, it would not render the sanction invalid, specially in a case where it would be virtually impossible for the prosecution to say as to on which particular day the offence was committed.
It is well settled that there is a presumption that the authority granting sanction applied his mind to all relevant facts of the case unless the circumstances show otherwise ; and that the presumption of the regularity of all official acts applies to sanctions for prosecution as well.
Muhammad Bashir v. The Crown P L D 1955 Lab. 661 ; F. D. Costa v. The Crown P L D 1959 Dacca 744 ; Jainullah v. The State P L D 1961 Dacca 565 and State v. Riaz-ur-Rehman P L D 1965 Quetta 1 ref.
-Delay-Alleged offence taking place 12 years back and accused discharged 2J years back by an incorrect order-Mere fact that prosecution delayed on account of erroneous order of trial Court-Held, not sufficient ground for placing accused outside operation of law.
M. S. Khwaja v. The State P L D 1965 S C 287 Tel.
Manzoor Hussain Bar-at-Law for the State.
Khalid M. Ishaque, Azizullah K. Shaikh and Hamid Adman for Respondents.
Date of hearing : Ist December 1969.
This revision application filed by the State is directed against the order dated 7th April 1967, passed by the learned Special Judge-cum-Enquiry Officer, Hyderabad, whereby the learned Judge discharged the respondents, who were accused before him in Special Case No. 93/1965, under sections 419, 420, 467 and 477-A, P. P. C. read with section 5 (2) of the Prevention of Corruption Act, 1947.
2. In order to appreciate the contentions urged before me it is necessary to state some relevant facts.
One Shakirullah who came to Nawabshah district in 1947 along with 25 other persons purchased 327 acres of land in Taluka Naushero Feroze. Of this land 77 acres were owned by Shakirullah himself while the remaining 250 acres belonged to his co-sharers including the respondents, Wali Muhammad and Rehmat Ali. Although in the Record-of-Rights the "Khatta" for the entire area of 327 acres stood in the name of Shakirullah the co-sharers were in possession of their respective pieces of land. In the year 1954, mutations were effected in the name of all the co-sharers with the result that 77 acres were shown in the name of Shakirullah while the remaining area stood against the name of his co-sharers including the respondents Wali Muhammad and Rehmat Ali.
In 1957, Shakirullah come to know that the entire land belonging to him had also been fraudulently mutated in the name of his co-sharers including Rehmat Ali. Shakirullah's son Muhammad Sharif, who was also his general attorney, therefore, reported the matter to Nausharo Feroze Police by lodging his First Information Report, Exh. 3/A. In the course of investiga tion the opinion of a handwriting expert was obtained which showed that Shakirullah's signature on this sale deed was forged by respondent Wali Muhammad. After the usual investigations were concluded five persons, namely, Gulab, Hidayatullah, Wali Muhammad, Rebmat Ali and Khan Chand, Sub-Registrar were challaned before the Special Judge, who released Khan Chand on the ground of the sanction against him being invalid. He also did not proceed against the remaining four accused because, according to him the case was triable by an ordinary Court. A fresh challan was accordingly filed before the District Magistrate, on 14-7-1967 against these four accused, who filed an application under section 561-A, Cr. P. C. in this Court for quashing the said proceedings but their application was dismissed by this Court in November 1963, and the case proceeded before the learned Civil Judge and Section 30 Magistrate Nawabshah who held that the sale deed had been forged and that respondents Wali Muhammad and Rehmat Ali were guilty for an offence under section 467 read with section 114, P. P. C., for forging the alleged sale deed.
This judgment dated 5th , January 1965, was, however, set aside in appeal by the learned Additional Sessions Judge, Nawabshah and a revision against that order of acquittal (being Criminal Revision No. 124 of 1966) was also dismissed by this Court by its order dated 12-11-1968.
3. In the meantime it came, to light that respondent No. I, namely Muhammad Moosa while posted as Sub-Registrar at Naushero Feroze had in collusion with other respondents destroyed material evidence relating to the aforesaid offence. The allegation was that in the register of thumb-impressions maintained in his office he had removed the thumb-impressions purporting to be that of Shakirullah but really affixed by Wali Muhammad, in order to save Wali Muhammad from criminal prosecution. On the basis of these allegations the five respondents were challaned in the Court of Special Judge-cum-Enquiry officer, Hyderabad for offences under sections 419, 420, 460 and 477, P. P. C. read with section 5 (2) of the Prevention of Corruption Act, 1947. While this case was pending respondents Rehmat Ali and Wali Muhammad filed two separate applications on 19-12-1966 and 16-3-1967, respectively praying therein that they should be discharged as they had already been tried by a Court of competent jurisdiction in respect of the same offences and had been acquitted in appeal by the Additional Sessions Judge, Nawabshah. The learned Special Judge accepted this contention and discharged these two respondents as well as respondent Gulab by his order dated 7-4-1967. In the same order the learned Judge held that as the sanction against the respondents Nos. 1 and 2 was defective the case could not proceed against them as well. He, accordingly, discharged all the five respondents.
4. This order of the learned Judge is assailed before me by the learned counsel appearing for the State on the ground that as the present case related to a totally distinct offence, the learned Judge was not justified in invoking the provisions of section 403, Cr. P. C. and discharging the respondents Nos. 3, 4 and 5, namely Gulab, Rehmat Ali and Wali Muhammad on this erroneous ground. As against the remaining respondents, the learned counsel contends that the sanction was valid and proper and the learned Judge should not have discharged these respondents simply because the sanction order did not mention the time and place at which the alleged offence was supposed to have taken place.
I propose to deal with both these contentions separately.
5. The law as to the effect of a previous conviction or acquittal is contained in section 403, of the Code of Criminal Procedure. Subsection (1) thereof reads as under :-
A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237.
This incorporates the common law principle of the well know pleas of autrefols acquit' and autrefois convict,' namely that no one shall be either punished or put in peril twice for the same offence. Before, however, this section can be invoked the following conditions have to be satisfied :-
(i) That the accused has been already tried for the offence charged against him ;
(ii) That the trial was held by a Court of competent jurisdiction ; and
(iii) That there was judgment or order of acquittal or conviction.
In the present case it is the common case of both the parties that the respondents Rehmat Ali and Wali Muhammad were tried alongwith two others, namely, Gulab Khan and Hidayatullah by the learned Civil Judge and Section 30 Magistrate, Nawabshah for the alleged forgery of a sale deed in the year 1957. It may be useful to reproduce the relevant part of the charge framed in that case which reads as follows :-
"That you accused Gulab and Wali Muhammad on 29th day of April 1957, forged a certain document purporting to be a valuable security to wit a sale deed purporting to have been executed by Mian Shakarullah, transferring his land to Wali Muhammad and others with intent to defraud and cause damage to Mian Shakarullah and thereby you committed an offence under section 467, P. P. C. and within the cognizance of this Court.
And you accused Rehmatali and Hidayatullah attested the above sale deed and thereby abetted the forgery of the sale deed and thereby committed offence under section 467, P. P. C. read with section 114, P. P. C. and within the cognizance of this. Court.
And I hereby direct that you be tried by me on the said charge."
The subject-matter of the later case out of which this revision application arises was, however, a totally distinct offence, namely; that relating to removal of the forged thumb-impression of one. Shakirullah from the Thumb Print Register maintained in the office of respondent No. 1, who was then Sub-Registrar at. Nushero Feroze. This is evident from the substance of accusation itself which was to the following effect :-
"It is alleged by the prosecution that you accused Muhammad Moosa were posted as Sub-Registrar, Naushero Feroze,, District Nawabshah, and you accused Atta Muhammad were his clerk in the year 1957-58 and as such both of you were public servants.
Both of you and you accused Gulab Khan stamp vendor,. Rehmat Ali and Wali Muhammad in collusion with one another managed to remove away from the Thumb Print Register of the office, forged thumb-impression of Mian Muhammad Shakirullah (which was affixed by Wali Muhammad accused) and got a bogus thumb-impression substituted therein in order to dishonestly save accused Wali Muhammad from criminal prosecution for the offences of cheating and forgery in crime No. 4 of 1958 of Anti-Corruption Police, Nawabshah against Wali Muhammad etc.
You accused Muhammad Moosa also got the name of Mian Muhammad Shakirullah son of Mian Karamatullah written by Wali Muhammad co-accused, in the thumb print register of the office of the Registrar Nushero Feroze.
And thereby committed offences punishable under sections 419, 420, 467, 477-A, 109, P. P. C. and section 5(2) of the Prevention of Corruption Act, 1947."
On a comparison of the two indictments reproduced above it can be easily seen that they are essentially different. They relate to separate and independent transactions, affecting distinct individuals. For example, the main accused in this case namely, respondent No. 1, Muhammad Moosa was not tried at all at any earlier stage. This position is concerned even by the learned counsel for respondents Nos. 4 and 5. Mr. Khalid M. Ishaque, however, contends that the two charges are so inter-linked that the decision of one was bound to have effect on the other and, therefore, continuance of the proceedings against these respon dents would have amounted to unnecessary harassment. In support of this contention, the learned counsel relied on the observations of A. S. Chowdhury, J. in Abdul Majid v. The State (P L D 1963 Dacca 661). That was a case in which the accused were originally tried under section 409, P. P. C. for misappropriation of an amount of Rs. 1,164-11-0. The allegations against Abdul Majid were that he put his signatures against certain entries in the cash book showing deposit of amounts in the Treasury although, in fact, nothing was done and thus he committed or aided the commission of misappropriation of Government money. After he was acquitted of these charges, Abdul Majid was again prosecuted under section 477-A, P. P. C. on the allegation of facts which were founded on the same signatures ; and precisely the same facts which formed the basis of the charge under section 409/109 of the Penal Code were being alleged in the subsequent trial under section 477-A of the Penal Code. Besides, in Abdul Majid's case it was admitted by the learned counsel for the State himself that the two charges were based, "absolutely on the same facts". The State counsel also conceded that there could be no conviction in the later case unless it was found that the same signatures were put with criminal intent as alleged by the prosecution. This would have been against the findings in the earlier case. In view of this position it was observed in para. 8 of the judgment as follows :-
In the earlier trial, the finding was to the effect that the same signatures have been done in good faith. I really do not see how the present case can end in conviction, inasmuch as, there can be no conviction for falsification of accounts unless it is possible to reach conclusion that these very same signatures were done with the criminal intent as specified in the section. In the peculiar circumstances of this case, it seems to me, that the facts alleged to constitute the present offence are those alleged in the former trial. In that view of the matter, I am of opinion that continuance of the proceedings will put the petitioner into unnecessary harassment. Therefore, in the ends of justice the impugned proceedings on this grounds alone should be quashed.
Reliance was placed on the following observations of the Privy Council in the case of Sambasivam v: Public Prosecutor, Federation of Malaya (1950 A C 458=P L D 1950 P C 23) :-
The effect of a verdict of acquittal pronounced by a compe tent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim Res judicata proveritate occipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the fire-arm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regarded to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other.
I may however, point out that this case of the Privy Council has been dissented from by a Division Bench of this Court in Madad Ali v. The State (P L D 1965 Kar. 541), wherein the learned Judges after relying on two cases from the Patna and Calcutta High Courts, namely, Ali Raza v. Emperor (A I R 1944 Pat. 247) and Purnanada Das Gupta and others v. Emperor (A I R 1939 Cal. 65) and also referring to an earlier decision of the Privy Council reported as Malak Khan v. Emperor (A I R 1946 P C 16) went on to point out that "the attention of their lordships of the Privy Council fin the case from Malaya and which has been referred to above was not drawn to this decision in Malak Khan's case." The learned Judge's views as to the effect of section 403, Cr. P. C. were summarized in the following words :-
To the extent that an acquittal on an another charge reduces the weight of that evidence upon which that charge was based no exception need be taken. But to say that, that evidence must necessarily be excluded from consideration in all other proceedings and in connection with another charge is, in our humble opinion, too wide a proposition.
raven if my humble opinion on the subject may be in accordance with the views of their Lordships of the Privy Council in the case of Sambasivam v. The P. P. Malaya which has been cited with approval not only by A. S. Chowdhury, J. but by other Courts of the sub-continent as well, including the Supreme Court of India 3n Pritam Singh v. The State of Punjab (P L D 1957 S C 1) ; I am bound by the authority of the Division Bench
Moreover, as I have already stated the case of Abdul Majid v. The State decided by A. S. Chowdhury, J. was clearly distinguishable on facts from the one before me.
7. The learned Special Judge-cum-Enquiry Officer's order dated 7-4-1967, which, as all the learned counsel appearing before me agreed, is really an order under section 249, Cr. P. C. is based on a misconception, namely, that the case before him was in respect of the same or similar offence in respect of which the respondents Nos. 4 and 5 were already tried and acquitted in appeal. This can be seen from his conclusions recorded in ,para. 5 of his order which read as follows :--
"I, therefore, hold that in view of the provisions of section 403, Cr. P. C. accused in this case cannot be tried again for the same and similar offences alleged against them for the reason mentioned above. They are also not liable to be tried -for any other offences which arise out of the same facts on which the previous case against them was based."
It is conceded by Mr. Khalid M. Ishaque, the learned counsel for respondents Nos. 4 and 5 that the case before the learned Judge was not in respect of the same allegations. The learned counsel, however, contends that the charges in the two cases were "similar" or in any case "inter-linked" to such an extent that the decision in the earlier case was bound to have affect on the later case as well. I regret, I cannot accept this contention for the simple reason that the two charges which have been reproduced above are in respect of totally distinct offences committed by different accused at different times. Merely because some accused happen to be common in both the cases or that the later offence may have been committed with a view to destroy or cause dis appearance of certain evidence which could have been material in the other case, would not bar a trial for the subsequent offence. Moreover, even if the findings of the learned Special Judge that the offences which are the subject-matter of the two cases were "similar" could be accepted, section 403, Cr. P. C. would not bar such a trial. In this connection I may with advantage refer to a case of this Court reported as Muhammad Ikram and others v. The State (P L D 1965 Lah. 461) wherein Anwarul Haq, J. after citing several important decisions on the subject and elaborately analyzing each one of them expressed his conclusions in the following words
A perusal of the authorities referred to at the Bar as well as of the clear language employed in the various subsections of section 403, Cr. P. C. leaves no doubt that this section has no application to a case where the subsequent offence for which the accused is being tried subsequently did not form part of the offence alleged at the previous trial ; nor is this section', attracted to a case in which the subsequent offence is not, in any manner, connected with the facts alleged at the earlier trial, the protection contained in subsection (1) of section 403, extends to an offence for which a charge different from the one made against the accused at the previous trial might have been, made on the same facts under section 236, Cr. P. C. and also in respect of an offence for which be might have been convicted at the previous trial under section 237, Cr. P. C. ; but the protection clearly does not extend to those offence which are completely distinct or those which arise out of facts not at all alleged at the previous trial. A distinction has to be made here between same and similar facts. The bar against a fresh trial does not extend to similar facts.
8. In view of what has been stated above it is impossible to hold that the effect of acquittal with reference to the complaint o the earlier case was a bar to the entertainment of the second complaint which has given rise to this revision application. The learned Special Judge's order dated 7-4-1967 is therefore both erroneous as well as improper.
9. I shall now consider the case of respondents Nos. 1 and 2 whose release under section 249, Cr. P. C. has teen ordered only on the ground that the sanction against them was defective. It is necessary in this connection to reproduce the sanction order dated 3-5-1965, which reads as follows :-
"Whereas I am satisfied that Mr. Muhammad Moosa while posted as Sub-Registrar, Naushero Feroze District Nawabshah, a public servant in the year 1957-58, in collusion with his clerk Atta Muhammad, Gulab Khan Stamp Vendor, Rehmat. Ali and Wali Muhammad co-accused to remove away from the Thumb Print Register of his office, the forged thumb-impres sion of Mian Shakirullah (which was affixed by Wali Muhammad co-accused) and got a bogus thumb-impression substituted therein in order to dishonestly save Wali. Muhammad from criminal prosecution for the offence of cheating and forgeries in Crime No. 4 of 1958 of Anti-Corruption Police Station, Nawabshah against Wali Muhammad etc. He also got the name of Mian Muhammad Shakirullah son of Mian Karamatullan written by Wali Muhammad, co-accused, in the Thumb Print Register of his office. He, thereby committed offences punishable under section 419/420/467/477-A, P. P. C.. read with section 5(2) of Act II of 1947.
And whereas after considering the facts constituting the offences, other circumstances of the case, the explanation of the. accused officer and perusal of the relevant record, I am satisfied that the grant of sanction to his prosecution is necessary.
And whereas I, Habibullah, M. Baloch, Inspector General of Registration, Southern Zone, West Pakistan, Hyderabad, am competent to dismiss the said Mr. Muhammad Moosa Sub -Registrar.
Now, therefore, in exercise of the powers conferred by section 6 (5) read with section 12 (2) (a) of the Pakistan Criminal Law Amendment Act, 1958, I hereby accord sanction to the prosecution of the said Muhammad Moosa Sub- Registrar in respect of the offences, specified above, in the Court of Special Judge."
My experience of such cases shows that this is the usual form in which sanction is accorded and l find it difficult to agree with the learned Special Judge that it was "very vague "or that it "did not specifically state any particulars of the offence alleged "against respondent Muhammad Moosa. Simply because the exact date or the place where the offence is alleged to have taken place was not mentioned, it would not render the sanction invalid ; specially in a case of this nature where it would be virtually impossible for the prosecution to say as to on which particular day the thumb-impression was removed from the Register.
The learned Special Judge was also not justified in characteriz ing the sanction order as quite vague and mechanical "and holding it to be "invalid in law".
10. It is well settled that there is a presumption that the authority granting sanction applied his mind to all relevant facts of the case unless the circumstances show otherwise ; and that the presumption of the regularity of all official acts applies to sanctions for prosecution as well. This was made clear by Kaikaus, J. in Muhammad Bashir v. The Crown (P L D 1955 Lah. 661) and similar views were also expressed by Hamoodur Rehman, J. (as his Lordship then was) in F. D. Costa v. The State (P L D 1959 Dacca 744). I may also refer to another case of the Dacca High Court, namely, Jainullah v. The State (P L D 1961 Dacca 565) decided by a Division Bench of which his Lordship the present Chief Justice of the Supreme Court of Pakistan was a member. The sanction order in that case was in the following terms :-
Sanction form.-Whereas from the reports available before me in connection with Brahmanbaria P. S. Case No. 27 dated 18-8-57 it appears that there are sufficient materials to suggest that constable No. 226 Jainullah and constable No. 169 Gazi Julfiqar of Brahmanbaria P. S., have committed an offence under section 161/324, P. P. C. and section 5 of Act II of 1947.
Now, therefore, in exercise of the power conferred upon me, I do hereby accord sanction for the prosecution of constable No. 226 Jainullah and constable No. 169 Gazi Julfiqar (at present under suspension) for the said offence under section 161/342, P. P. C. and section 5 of Act II of 1947.
(Sd.) Illegible.
18-3-58.
(Syed Mannan Bakhsh),
Superintendent of Police.
Tippera, Comila."
While dealing with the contention that this sanction was invalid their Lordships observed as follows :-
It was argued that there was no valid sanction as the sanctioning authority itself did not appreciate the materials constituting the offence and acted duly on the report of somebody else. This contention also cannot be accepted because in the sanction it is mentioned that from the report available before the sanctioning authority it appeared that there were sufficient materials for giving sanction for prosecution of the accused. If the words from the reports available before me were not there then only the contention that the sanction ing authority did not itself apply its mind to the materials constituting the offence could have some force. We hold that the facts constituting the offence were placed before the sanctioning authority and the sanctioning authority after application of its mind to the facts gave the sanction. It also may be noted here that the official acts carry the presumption that these are done with regularity. So, there is also the presumption that the sanctioning authority gave the sanction after consideration of all the materials constituting the offence which were placed before it. We, therefore, hold that there was proper sanction in this case.
The point involved is also dealt with in a Division Bench authority of this Court reported as State v. Riaz-ur-Rahman (P L D 1965 Quetta 1). In that case one Riaz-ur-Rahman a Presentation Organizer in Radio Pakistan, was put on trial for an offence of cheating under section 420, P. P. C. and 5(2) of the Prevention of Corruption Act, 1947 before the Special Judge, Quetta. The sanction for his prosecution was accorded in the following one line :-
We hereby accord necessary permission to the prosecution of the case against Malik Riaz-ur-Rahman.
The learned Special Judge acquitted the accused on the ground that no proper sanction for the prosecution was given by the Sanctioning Authority. This order was challenged by the State by way of an appeal under section 417, Cr. P. C. on two grounds, one of which was that there was no form prescribed for the sanction of the prosecution and that the learned Special Judge should have decided this objection after affording reasonable opportunity to the prosecution to establish that the order of the sanction was passed by the Sanctioning Authority after satisfying itself that it was a fit cage for the prosecution of the respondent/accused. This contention found favour with their lordships, who accordingly allowed the State appeal and directed the Special Judge to proceed with the trial in accordance with law. Wahiduddin Ahmed, J. (as his lordship then was) observed as follows :-
Admittedly, the Sanctioning Authority by letter dated 26th December 1961, has accorded the necessary sanction for the prosecution of the respondent. The mere fact that it was not in proper form or did not contain the full particulars would not lead to the conclusion that in fact no sanction was received for the prosecution of the respondent.
In para. 8 of the same judgment his Lordship expressed his opinion in the following words :-
There is much force in the contention of the State counsel that the question whether sanction for prosecution was granted after full satisfaction or otherwise could not be decided without examining the Sanctioning Authority. It, however, appears to us that it was not brought to the notice of the learned Special Judge that according to the provision of law applicable to the case under consideration, no particular form has been pres cribed for according sanction for the prosecution. In law even if form in which sanction is accorded is found to be defective, it is open to the prosecution to prove by extraneous evidence that necessary data was placed before the Sanctioning Authority and he had satisfied himself for the justification to accord sanction. In this connection reference is made to the review of the Judicial Committee expressed in Gokulchand Dwarkadas Morarka v. The King P L D 1948 P C 11. It was observed by their lordships in that case that even if the form in which the sanction for prosecution is issued is found to be defective ; an opportunity should be provided to the prosecution to prove by extraneous evidence that necessary facts were placed before the Sanctioning Authority for the prosecution of a public servant for finding out whether the sanction was proper or not.
These weighty observations would apply with full force to the present case in which the sanction was more elaborate and more carefully worded than that in any of the cases cited above. It mentions all the particulars of the offence alleged as well as the facts constituting the said offence. It is clearly stated in the order itself that the sanction was being granted "after considering the facts constituting the offences, other circumstances of the case, the explanation of the accused officer and perusal of the relevant record" ; and after the Sanctioning Authority was "satisfied that the grant of sanction for prosecution was necessary." ..Merely because the exact date when the offence was committed or the place where it occurred was not mentioned in the sanction- order, the learned Special Judge was not justified in terminating a valid trial even before it had proceeded. Moreover, in any view of the matter, even if the learned Judge was doubtful about the validity of the sanction, he should have at least, given an opportunity to the prosecution to prove that the Sanctioning Authority was posted with all material facts before according sanction. It is significant to note that the order of sanction was not challenged even by respondent No. 1 himself, and the learned Special Judge, in my opinion, gravely erred in terminating the proceedings against the respon dents on imaginary grounds without either recording any evidence on that point or giving any opportunity to the prosecution to show that the sanction order was valid.
11. It has been urged by Mr. Azizullah K. Sheikh, the learned counsel for respondent No. 1 that even if the learned Special Judge's order on this point is incorrect, improper or illegal ; the respondents should not be tried now in view of the lapse of time. It is no doubt true that the alleged offence too place sometime during the year 1958 and that the respondent were discharged by the learned Judge about 2 years back ; butt that would hardly be a justification for maintaining an incorrect and improper order resulting in release of the accused who were alleged to have committed serious offences. Respondent No. 1 was admittedly the Sub-Registrar at Naushero Feroze at the time when the thumb-impression Register in his office was tampered with. Merely because the prosecution has been delayed on account of an erroneous order of the trial Judge, that would not, in my opinion, be a sufficient ground for placing an alleged offender outside the operation of law. In this connec tion, I cannot do better than to reproduce the following observations of Cornelius, C. J. in the case of M. S. Khawaja v. The State (P L D 1965 S C 287) :-
The impression is gained from these quotations that in the learned Single Judge's view time was of the essence for the competency of a criminal prosecution, and to that extent, we must observe that his views cannot be accepted as of universal application. Limitation does not apply to criminal prosecution and it is also inappropriate to examine questions of delay through the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on the same footing as in a civil matter inter partes. Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power to prevent abuse of the process of any Court or otherwise to secure the ends of justice', would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any other reason than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law.
These weighty observations which were made in the case of an application for quashing the proceedings under section 561-A, Cr. P. C. on the ground of delay, would also apply to the facts of the present case.
12. For the reasons given above I would allow this revision application and set aside the order dated 7th April 1967, of the learned Special Judge-cum-Enquiry Officer, Hyderabad. The case is sent back to the learned Special Judge-cum-Enquiry Officer, Hyderabad with a direction to proceed with the trial of the respondents in accordance with law.
S. Q. Petition allowed.
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