1978 (11) TMI 155

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....he leave is limited to the question of the validity of sanction ac corded under s. 6 of the Act, it is not necessary to set out in detail the prosecution case. Briefly stated, the prosecution case is that the appellant who was employed at the relevant time as Investigator in the office of the Chief Controller of Imports & Exports (C.C.I.E. for short), accepted from one P.T. Toprani an amount of Rs. 250/- by way. of illegal gratification which was not his legal remuneration in presence of witnesses on 18th June 1969 at about 5.30 p.m. near Gujarati Samaj; Sabha, Delhi. D. S. P. Badri Sharma appeared as soon as the trap arranged by him materialised and recovered the amount of Rs. 2501/- from the appellant. After completing the investigation the appellant was charge-sheeted for the offences hereinabove mentioned. Section 6 of the, Act forbids the Court from taking cognizance, inter alia, of offences punishable under s. 161, IPC and under sub-s. (2) of s 5 of the Act except with the previous sanction of the authority therein set out. Necessary sanction was accorded by the Jt. C.C.I.E. On 26th November 1969. The relevant portion of the sanction reads as under: "Now, therefore, I, ....

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....cial Judge shall be deemed to be a Court of Sessions. Section 9 confers power upon the High Court to exercise all powers of appellate Court as if the Court of Special Judge were a Court of Sessions trying cases within the local limits of the jurisdiction of the High Court. The present case would, therefore, be governed by sub- s. (2) of s.394, Cr.P.C. It becomes clear from the proviso to s. 394(2), Cr.P.C. that where the appeal is against the conviction and sentence of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within the time prescribed therein, apply to the appellate court before which the appeal is pending for leave to continue the appeal and if the leave is granted the appeal shall not abate. The appellant has preferred the appeal against his conviction and sentence of imprisonment as also sentence of fine. After his death his near relations as contemplated in the Explanation to sub-s. (2) of s. 394, Cr. P.C. applied by Criminal Miscellaneous Petition No. 559 of 1978 to continue the appeal and this Court granted substitution of such near relations by its order dated 28th March 1978 and thereby granted leave to contin....

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....ate to C.C.I.E . was ab initio void and the Court could not have taken cognizance of the offence. Mr. Khanna for the respondent on the other hand contended that this case would be governed by Central Civil Services (Classification, Control and Appeal Rules, 1965 ('1965 Rules' for short), and in view of S.R.O.. 631 issued by the President in exercise of the powers D` conferred by sub-rule (2) of rule 11, clause (b) of sub-rule (2) of rule 14, and sub-rule (2) of rule 23 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 ('1957 Rules' for short), which order was saved by rule 34 of the 1965 Rules and, therefore, the Jt. C.C.I.E. was both the appointing and disciplinary authority including the authority competent to remove the appellant from service and was accordingly competent to accord sanction under s. 6(1)(c) of the Act. Rule 11(2) of 1957 Rules provides that all appointments to Central Civil Posts, classes II, III and IV, included in the General Central Service shall be made by the authorities specified in that behalf by a general or special order of the President, or, where no such order has been made, by the authorities specified in ....

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....cified in column 2 shall be the Appointing Authority ! and the authority specified in column 3 and 5 shall be the Disciplinary Authority and Appellate Authority respectively in regard to the penalties specified in column 4". A comprehensive Schedule is annexed to this order. 'The relevant entry is as under: Description of Post Appointing Authority competent Appellate authority to impose penalties authority penalties which it may impose (with reference to item numbers in rule 13) Authority Penalties Organisation of the Chief Controller of Imports and Exports All posts in- Headquarters office Joint Chief Joint Chief All Chief Controller of Controller ofController of Imports & Imports & Imports & Exports Exports Exports The entries in the Schedule appended to 1957 Rules will be effective and operative subject of course to any general or special order made by the President in this behalf. It was, however, contended that by rule 34 of 1965 Rules, 1957 Rules were repealed and, therefore, the order issued by the President in exercise of the powers conferred by sub-rule (2) of rule 11 and various other rules bearing on the point would stand repealed and the order of the Pre....