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Criminal Appeal No. 80 of 1959, decided on 2nd November 1 , 59.

‑District and Sessions Judge, as appointing authority, giving .sanction for prosecution of accused‑Held : same officer as Special Judge not quaked to try accused‑Consent of accused immaterial.

The District and Sessions Judge, as the appointing authority, gave sanction for prosecution of the accused for offences under section 409, P. P. C. and section 5 (2), Prevention of Corruption Act (11 of 1947). Later, the same officer tried and convicted the accused.

Held, that the Special Judge was disqualified from trying the accused judicially on the charges, in respect of which he had accorded sanction.

Consent of the accused could not confer jurisdiction on the Court, when it was not competent by reason of section 556, Cr. P. C. to try the accused.

The sanction is a condition precedent to the institution of a prosecution. A knowledge and consideration of the facts, the existence of a prima facie case; and a consideration of the expediency of granting a sanction in his discretion are the requisites of a sanction.

In substance the grant of sanction is for a prosecution and is a direction fox a prosecution, though not one directly. There is a difference no doubt between a direction and a sanction, but the practical effect is the same. The word direction' in the illustration to section 556, Cr. P. C. must be interpreted liberally and if a sanction has been granted, the officer becomes personally interested and is debarred from trying the accused on the principle underlying section 556. Justice must not only be done, but must manifestly be seen to be done.

Ghulam Rasool and others v. Crown P L D 1951 F C 62 and Lorinda Ram Sewa Ram v. The Emperor 21 Cr. L J 389 fol,

Muhammad Bakhsh v. Emperor A I R 1929 Lah. 718 ; Yusaf Umar Tindal v. Emperor (1940) 41 Cr. L J 707 and Gokulchand Dwarkadas v. The King P L D 1948 P C 11 ref.

Rameshwar Bhartia v. The State of Assam A I R 1952 S C 405 considered.

Azizullah K. Sheikh for Appellant.

A. K. Shaikh, Assistant A. G. for Respondent.

Date of hearing : 23rd October 1959.

Jawed Hussain was appointed a clerk in the office of the Joint Sub‑Judge and F. C. M. Jacobabad. It is alleged that as in charge of case properties he misappropriated some gold and ornaments, recovered in criminal case (State v. Persumal and Bholi), which were entrusted to him for safe custody. An enquiry was held against him. Sanction for his prosecution on charges under section 409, P. P. C. read with section 5 (2) of the Pre vention of Corruption Act, 1947, was applied for. Mr. M. 1. Kazi, District and Sessions Judge, Jacobabad as the appointing authority of Jawed Hussain as clerk accorded sanction on 25th November 1957. When the appellant was sent up for trial, his case went to the Court of Mr. M. 1. Kazi as Special Judge, Jacobabad. The appellant appeared before him on 17th December 1957 and the case was fixed for 22nd January 1958 for regular hearing. On the 18th of January 1958, Mr. M. 1. Kazi made an order that as he had accorded sanction to prosecute the accused, it was desirable that the case be tried by some other Judge, and thereby directed that a reference be made to the High Court for transfer of the case from his Court. On this reference, the Additional Registrar of the High Court of West Pakistan, Karachi by his Memo. No. C/662 dated 15‑3‑1958 informed the Special Judge, Jacobabad that the provision of Chapter VIII, Part B, clause (2) of the Federal Capital and Criminal Courts Circulars had not been complied with by him and he should first issue notices to the parties, record their objections, if any, and then forward R & P along with the objections to the High Court, when the matter would be decided. The Special Judge, thereupon,, issued notices to the parties to appear and state if they had any objection. On the 31st of March 1958, the parties i.e the accused and the District Public Prosecutor appeared and stated that they had no objection if the case was tried by him. On the same day the Special Judge ordered that hearing of the case be fixed and the witnesses summoned. No further reference was made to the High Court. The trial then proceeded and Mr. M. I. Kazi as Special Judge, Jacobabad convicted the appellant under section 409, P. P. C. read with section 5 (2) of the Pre vention of Corruption Act, 1947, and sentenced him to rigorous imprisonment for 12 months and a fine of Rs. 100, in default to suffer further rigorous imprisonment for two months, Jawed Hussain has appealed to this Court.

2. Mr. Azizullah K. Sheikh, the learned counsel for the appellant, raises a preliminary objection to the competency of Mr. M. 1. Kazi to try the appellant. He argues that as he had granted sanction and thereby directed the prosecution of the appellant, he was debarred by section 555, Cr. P. Code from trying him. Reliance is placed by him on the illustration to section 556 of the Code of Criminal Procedure and Ghulam Rasool and others v. Crown (P L D 1951 F C 62). Mr. Abdul Kadir Shaikh, the learned Assistant Advocate General, argues that though the Special Judge had accorded sanction for the prosecution, it did not amount to directing his prosecution and he was not therefore debarred from trying the appellant under section 556, Cr. P. C. He relies on Rameshwar Bhartia v. The State of Assam (A I R 1952 S C 405).

The short question which falls for determination in this case is whether an officer who accords sanction for the prosecution of an accused person is disqualified from trying him in view of. section 556, Cr. P. C., which provides as follows :‑

"No Judge or Magistrate shall, except with the permission of, the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself.

A Judge or Magistrate shall not be deemed a party, or personally interested, within the meaning of this section, to or in any case by reason only that he is a Municipal Commissioner or otherwise concerned therein in a public capacity, or by reason only that he has viewed the place in which an offence is alleged to have been committed, or any other place in which any other transaction material to the case is alleged to have occurred and made an inquiry in connection with the case."

This section debars a Judge, except with the permission of the Appellate Court, to try any case in which he is a party or personally interested. If the section without its illustration is interpreted there would be considerable force in the argument that the Special Judge was neither a "party" nor "personally interested". The illustration to the section however indicates that the words "personally interested" have been used in the widest concept. The illustration is as follows :‑

"A, as Collector, upon consideration of information furnished to him, directs the prosecution of B for a breach of the Excise Laws. A is disqualified from trying this case as a Magistrate."

This illustration indicates that if an officer upon consideration of the information supplied to him directs the prosecution of an accused person, he is disqualified from trying him. The illus tration came up for consideration before the federal Court of Pakistan in Ghulam Rasool v. Crown. In this case, on an appeal by the State, the acquittal of Ghulam Rasool and another was set aside by a Bench of the High Court consisting of Jan, J. and Kayani, J. Kayani, J. had, as Legal Remembrancer, as he then was, after examination of the evidence on the record, arrived at the conclusion that "the accused appeared to be concerned in the murders", and he considered it "worth while to try an appeal", although he was not clear that it would result in success'. The appeal was filed and was admitted. When the appeal came to be heard by the Bench, it was brought to the notice of the counsel for the accused before the hearing stated that Kayani, J. had dealt with the matter as Legal Remembrancer and had expressed the above opinion. The counsel stated that he had full confidence in the impartiality of the learned Judge and agreed to the appeal being heard and disposed of by the Bench as constituted. In support of the view that Kayani, J. by expressing an opinion as Legal Remembrancer could not be regarded as being personally interested in the case within the meaning of section 556 of the Code of Criminal Procedure, the, decision in the matter of the petition of Ganeshi (I L R 15 All. 192), was cited before the Bench, who proceeded to hear the appeal, which was accepted. Before the Federal Court, on appeal, it was argued on behalf of the convicts that as one of the Judges, namely Kayani, J. had already advised the Government for preferring an appeal against acquittal in his capacity as Legal Remembrancer of the Punjab Government, he ought not to have taken part in the hearing of the appeal, and that this disregard of the well settled and well‑recognized practice had resulted in serious prejudice and grave substantial injustice to the petitioner, and because of the sound principle on which section 556, Cr. P. C., was based, the judgment of the High Court was wholly vitiated, and the conviction and sentence was consequently illegal. The learned Judges of the Federal Court, in considering whether in view of his opinion expressed by Kayani, J., he could be held to have been personally interested', came to the following conclusion by interpreting the illustration given after the explanation to section 556, Cr. P. C. :‑

"Having been appended to the section itself : It must be called in aid to interpret the intention of the Legislature. It unequivocally indicates that an officer would be disqualified from trying a case if he has either directed the prosecution after consideration of the information furnished to him, or, in the case of an appeal or revision, after the consideration of evidence adduced in ‑the case and on which the judgment of the first Court was based. The consideration of evidence and coming to .a decision, even for a purpose of an opinion whether any appeal or a revision should be filed, is; in our judgment, a more serious matter than the consideration of the information referred to in the illustration. The observation in Pohpi's case I L R 13 All. 171 that "human beings are after all human beings and with all honour due to the honesty and integrity of the Judges," they are not to hear cases in which they have been themselves concerned appears to us to be apposite and has to be taken note of. It is highly undesirable, in our view, (and that is the effect of the illustration) that a Judicial Officer, whatever be his rank or position, should act judicially in a case in which he had occasion to investigate extra‑judicially and in which he had formed an opinion adversely to a party against whom he had directed a prosecution or the institution of an appeal or revision. We are not unmindful of the fact that the Legal Remembrancer's opinion was not final and had to be approved by a higher authority before it could be given effect to, but it must not be forgotten that the Legal Remembrancer is the highest law officer of the Government, who have to depend on his advice which is usually accepted. This was what had actually happened in the present case.

A consideration of the principles underlying the various decisions cited at the bar leads us to the conclusion that nothing should be allowed to happen in a case which may give rise to a reasonable apprehension in the mind of an accused person that he would not or did not have a fair trial. It is essential, as had been said in a large number of cases, that "justice must not only be done but must manifestly be seen to be done."

The contention that Kayani, J. had been "personally interested" was upheld by the Federal Court. This decision has an important and even a decisive bearing on the question before me.

3. In Rumeshwar Bhartia v. State of Assam, relied upon by the learned Assistant Advocate‑General, sanction for the prosecution of Rameshwar Bhartia a shopkeeper of Assam under section 7 (1) of the Essential Supplies Temporary Powers Act, 1946 for storing paddy without a licence in excess of the permitted quantity in violation of sections 3 and 7 of the Assam Food Grains Control Order, 1947 was accorded on a report by the Procurement Inspector by Shree S. K. Bhuyan, who was then the District Magistrate. Rameshwar Bhartia pleaded guilty and was fined Rs. 50. The High Court on a reference by the District Magistrate enhanced the sentence to 6 months' rigorous imprisonment and a fine of Rs. 1,000. Rameshwar Bhartia applied for and was granted a certificate by the High Court for appeal to the Supreme Court. One .of the objections raised before the Supreme Court of India was that as Shree C. K. Bhuyan had sanctioned the prosecution of Rameshwar Bhartia as District Magistrate, he had become personally interested' in the case within the meaning of section 556, Cr. P. C., and was, therefore, incompetent to try the same, that in trying him as A. D. M. there was a contravention of section 556, Cr. P. C. and conse quently a want of jurisdiction and the conviction must be set aside. The learned Judges of the Supreme Court of India, con sidering the explanation to the section, along with the section came to the conclusion that to be connected with a case in a public capacity was not by itself enough to render the person incompetent to try it, and even if he had made an enquiry in connection with the case it would not matter, and though the wording of the illustration made it evident that if a prosecution was directed' by a person in one capacity, he should not try the case acting in another capacity as a Magistrate, the explana tion and the illustration lent some support to the view that there was a distinction between a passive interest and an active interest and that it was only m the latter case i.e., a sub stantial interest rendering the case his own, giving rise to a real bias that the disqualification arose ; though it was argued before them relying on Goculchand Dwarkadas v. King (AIR 1948 PC 82 = PLD 1948 PC 11) that the sanction was an important and substantial matter, and not a mere formality, and that sanction could not be accorded without the knowledge of the facts of the case and without reference to the facts constituting the offence, the learned judges of the Supreme Court held that sanction was in the nature of informa tion and was not a direction to prosecute, which was in the nature of a command. Their Lordships drew the distinction that grant of sanction amounted to fulfilment of a technical requirement of a statute without a mental satisfaction of the truth of the facts and (may) be based on extraneous consideration, but a direction to prosecute amounted to a satisfaction that the case must be initiated. It was however conceded that the question whether a Magistrate was personally interested or not had essentially to be decided on the facts of each case.

4. In Larinda Ram Sewa Ram v. The Emperor (21 Cr. L J 389) the District Magistrate in his capacity as an Inspector of Factories had on receiving certain information directed an enquiry to be made and as a result of the enquiry he had sanctioned the prosecutions under the Factories Act and tried the offences. It was urged on the basis of section 556, Cr. P. C. that the conviction was illegal as the District Magistrate who had accorded sanction for the prosecu tion could not try the cases himself. In view of the importance of the question involved, the case was considered by a Division Bench of the Lahore High Court consisting of Mr. Justice Scott Smith and Mr. Justice Dundas, who relying on the illustration to section 556, Cr. P. C. held that as the District Magistrate as Inspector of Factories had ordered an enquiry to be made arid in the same capacity had sanctioned the prosecution, he to all intents and purposes had directed the prosecution and the Illustration to section 556, Cr. P. C. applied to the facts and he was "personally interested" in the cases ; and therefore dis qualified from trying them. Reliance was placed on Mangal v. The Emperor (14 I C 758). Again in Muhammad Bakhsh v. Emperor (A I R 1929 Lah. 718) Tek Chand, J., observed that the explanation to section 556 covered only those cases in which the Magistrate, though a member, had not taken part in directing or sanctioning the prosecution. Also in Yusaf Umar Tindal v. Emperor ((1940) 41 Cr. L J 707) it was argued that as the City Magistrate had tried the accused and convicted him after granting sanction himself as Additional District Magistrate, he was disqualified from doing so under the provisions of section 556, Cr. Y. C. and the trial was there fore illegal. It was held that sanction could only be granted on a consideration of the facts connected with prosecution, and having once granted sanction in his capacity as Additional District Magistrate the appellant could not be tried by the Magistrate granting the sanction, and therefore the conviction of the appellant was illegal ; and it was accordingly set aside.

5. On a consideration of the question in the light of illustration to section 556, Cr. P. C., I am of the opinion that in granting a sanction, an officer is bound to consider the fact; of the case, and to determine whether there is a prima facie case, and it is expedient in his discretion to grant sanction, which he considers extra‑judicially. It has been held by the Privy Council in Gokulchand Dwarkadas v. The King that sanction to prosecute is an important matter ; it constitutes a condition precedent to the institution of a prosecution and the officer has an absolute discretion to grant or withhold it. The considera tion is not merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted, and sanction can be refused on any ground which commended itself to the officer, for example, on political or economic grounds, the grant of sanction may be regarded as inexpedient and it is plain that the discharge of the obligation of deciding whether to give or withhold the sanction cannot be adequately performed without a knowledge of the facts ; for sanction cannot be given without reference to the facts constituting the offence, i.e., in rela tion to the acts done which constitute a breach. The grant of sanction is a solemn act.

6. Thus the sanction is a condition precedent to the insti tution of a prosecution. A knowledge and consideration of the facts, the existence of a prima facie case, and a consideration of e the expediency of granting a sanction in his discretion are the requisites of a sanction. In directing a prosecution all that need be considered is the existence of a prima facie case on the con sideration of the facts. When sanction is accorded, prosecution is authorised thereby and without it a prosecution could not have taken place. In substance, therefore, the grant of sanction is for a prosecution and is a direction for a prosecution, though not one directly. There is a difference no doubt between a direction and a sanction, but the practical effect is the same. The word direction' in the illustration must be interpreted liberally and if a sanction has been granted, the officer becomes personally interested and is debarred from trying the accused on the principle underlying section 556, Cr. P. Code. Justice must not only be done, but must manifestly be seen to be done.

7. The appellant could not have been prosecuted in this case without the sanction, and I have no doubt that the sanction must have been accorded by the Special Judge on a consideration of the facts of the case and on being satisfied that a prima facie case existed and it was expedient 'that he should be prosecuted. The consideration of all this is no less serious than the con sideration of the information in the illustration. In both cases, there is a marked similarity in the considerations involved. In giving sanction, in addition, consideration of expediency was involved. The Special Judge in his capacity as District Judge had dealt with the case extra‑judicially, and respectfully follow ing the interpretation of section 5: 6, Cr. P. C. by use of the illustration by the Federal Court of Pakistan, and following the decision in Lorinda Ram Sewa Ram v. Emperor. 1 hold that the Special Judge was disqualified from trying the appellant, judicially on the charges, in respect of which he had accorded sanction.

8. It has not been urged before me that the statement of the accused before the Special Judge that he had no objection to his being tried by him, makes any difference to the mandatory nature of the prohibition in section 556, Cr. P. Code. Such a contention could not be raised in view of the decision of the Federal Court in Ghulam Rasool v. Crown. The statement of the accused cannot confer jurisdiction on the Court, when t e was not competent by reason of section 556, Cr. P. Code to try the accused.

9. I, therefore, set aside the conviction of the appellant and direct that he shall be retried by another Special Judge competent to try him. Pending retrial, the appellant shall remain on bail in the sum of Rs. 8,000 with one surety and a personal bond in the like amount.

A. H.

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