Judgment

SHELAT, J.: This appeal, by special leave, is directed against the judgment of the High Court of Patna which upheld the order of conviction passed by the Special Judge, Muzaffarpur against the appellant under sec. 5 (1) (c) read with sec. 5 (2) of the Prevention of Corruption Act, II of 1947. The High Court, however reduced the sentence awarded to the appellant from two years rigorous imprisonment to four months rigorous imprisonment on consideration of his old age and the fact of his having subsequently paid up the amount alleged to have been embezzled by him.

2. At the time of the offence alleged against him, the appellant was working as an extra departmental agent, Chairaila Post Office in Muzaffarpur District. On December, 27, 1960, one Rupen Chaudhary sent from Calcutta a money order for Rupees 100/- to his brother Biseshwar of Jaya Village which used to be served by Chairaila Post Office. The money order was never received by the payee, the said Biseshwar. On discovery of that fact, a departmental enquiry was first made and thereafter prosecution was launched against the appellant, who as a result thereof, was convicted and sentenced as aforesaid.

3. The defence of the appellant was that there was another individual bearing the name of Biseshwar Chaudhary to whom the appellant had paid the said amount on being identified as such by one Thakur Prasad Chaudhary, that the appellant had paid the said amount to that Biseshwar under a bona fide belief that he was the true remittee, and that subsequently, after the enquiry was instituted, he discovered his mistake and got the said Biseshwar to refund the amount to him, which amount the appellant in his turn paid to the post office. The second defence was that he being a public servant, the Special Judge could not take cognizance of the offence unless sanction to prosecute him under Sec. 6 of the Act was first obtained and that not having been done the trial was vitiated. Both these contentions were rejected by the Special Judge and the High Court on the ground that whereas the Special Judge took cognizance of the offence on July 16, 1962, the appellant had already been dismissed from service long before that date, and therefore, although he was a public servant at the date of the offence, he had ceased to be one on the date when the Trial Judge took cognizance of the offence. Therefore, no sanction under Section 6 was required, and there was no defect in the trial.

4. Counsel for the appellant did not raise before us any contention on the merits of the prosecution case in view of the concurrent findings of both the Courts of facts. Consequently, the only contention he raised was about the necessity of sanction without which, he urged, the trial was vitiated in view of that requirement being mandatory under Section 6 of the Act. Therefore, the only question which needs an answer is whether the appellant was in fact removed from service prior to July 16, 1962.

5. It is not in dispute that the appellant was an extra departmental agent and as such he was only performing the duties which would be the duties of a Village Post-master. It is also not disputed that his service could be terminated and he could be removed from service by the Inspector of Post Offices, the relevant Inspector at the material time being witness Suren, who also was the appointing authority. It is on record that on May 12, 1961 Suren passed an order in the following terms:-

"Subject: Chairaila M. O. fraud case.

Please remove Shri Nanhu Singh R. D. A. Chairaila at once pending enquiry".

At first sight it would appear from the penultimate words of that order that the appellant was merely suspended pending enquiry, but not removed from service. That perhaps would have been the meaning placed on the order, if that was the only evidence to indicate what actually the order meant. In his evidence, however, Suren explained that the appellant was dismissed by that order. It would seem that the appellant also understo