Judgement

S. K. DAS, J.- These two petitions for the issue of appropriate writs restraining the respondents from prosecuting and trying the two petitioners on certain criminal charges in circumstances to be presently stated, raise the same question of law and have been heard together. This judgment will govern them both.

2. Baij Nath Prasad Tripathi, petitioner in petition No. 115 of 1956, was a Sub-Inspector of Police in the then State of Bhopal. He was prosecuted in the Court of Shri B.K. Puranik Special Judge, Bhopal, and convicted of offences under S. 161, Indian Penal Code, and S.5 of the Prevention of Corruption Act, 1947. He was sentenced to nine months rigorous imprisonment on each count. He preferred an appeal against the conviction and sentences to the Judicial Commissioner of Bhopal. The Judicial Commissioner held by his judgment dated 7th March 1956, that no sanction according to law had been given for the prosecution of the petitioner and the Special Judge had no jurisdiction to take cognizance of the case; the trial was accordingly ab initio invalid and liable to be quashed. He accordingly set aside the conviction and quashed the entire proceedings before the Special Judge. He then observed: "The parties would thus be relegated to the position as if no legal charge-sheet had been submitted against the appellant". On 4th April 1956, the Chief Commissioner of Bhopal passed an order under S.7 (2) of. the Criminal Law Amendment Act, 1952 (No. XLVI of 1952) that the petitioner shall he tried by Shri S.N. Shrivastava, Special Judge, Bhopal, for certain offences under the Prevention of Corruption Act read with S.161, Indian Penal Code. The case of the petitioner is that he cannot be prosecuted and tried again for the same offences under the aforesaid order of 4th April 1956.

3. Sudhakar Dube, petitioner in petition No. 132 of 1956, was also a Sub-Inspector of Police in the then State of Bhopal. He was also prosecuted in the Court of Shri B.K Puranik, Special Judge, Bhopal, on a charge of having accepted illegal gratification for showing official favour to one Panna Lal. The learned Special Judge by an order dated 10th January 1956, came to the conclusion that no legal sanction for the prosecution of the petitioner had been given by the competent authority and the sanction given by the Inspector-General of Police was not valid in law: he therefore held that the whole trial was null and void and he could not take cognizance of the offences in question. Accordingly he quashed the proceedings. On 7th February 1956, the Chief Secretary to the Government of Bhopal accorded fresh sanction for the prosecution of the petitioner for offences under s. 161, Indian Penal Code, and s.5 of the Prevention of Corruption Act. The petitioner then moved this Court for appropriate writs restraining the respondents from prosecuting and trying him for the offences stated in the fresh sanction aforesaid.

4. On behalf of both the petitioners the contention is that by reason of cl. (2) of Art. 20 of the Constitution and S. 403 of the Code of Criminal Procedure, the petitioners cannot now be tried for the offences in question. It is necessary to read here some of the relevant sections bearing on the point at issue. Section 6 of the Criminal Law Amendment Act, 1952, (prior to the amendment made in 1955), so far as is relevant for our purpose, is in these terms:

"6(1) The State Government may, by notification in the Official Gazette appoint as many Special Judges as may be necessary for such area or areas as may be specified in the notification to try the following offence, namely :-

(a) an offence punishable under S.161, S. 165, or S. 165 -A of the Indian Penal Code, (Act XLV of 1860), or sub-s. (2) of S.5 of the Prevention of Corruption Act, 1947 (11 of 1947);

(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in cl. (a)".

Sub-section (1) of S.7 of the same Act lays down

"7. (1) Notwithstanding