Judgment

DESAI, J. :- The appellant in this appeal by special leave limited to the determination of the question : whether the sanction is valid in law or not, has been convicted for offences under S. 5 (2) read with S. 5 (1) (d) of the Prevention of Corruption Act, 1947 (Act for short), and S. 161 of the I. P. C., and was sentenced to suffer rigorous imprisonment for 18 months on each count and a fine of Rs. 200/- in default to suffer further rigours inprisonment for a period of two months, for an offence under S. 5 (2) of the Act. His appeal being Criminal Appeal No. 54 of 1971 was dismissed by the High Court of Delhi and the conviction and sentence were confirmed.

2. As the leave is limited to the question of the validity of sanction accorded under S. 6 of the Act, it is not necessary to set out in detail the prosecution case, Briefty stated, the prosecution cases 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. 250/- from the appellant. After completing the investigation the appellant was chargesheeted for the offences herein above mentioned.

3. Section 6 of the Act forbids the Court from taking cognizance, inter alia, of offences punishable under Sec. 161. I. P. C. and under sub-sec. (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 Nov. 1969. The relevant portion of the sanction reads as under :

"Now, therefore, I, S. P. Chablani, being the authority competent to remove the said Shri L. S. Srivastava, from office do hereby accord sanction under Sec. 6 (1) (c) of the Prevention of Corruption Act, 1947 for the prosecution of the said Shri L. S. Srivastava, for the said offences under S. 161, I. P. C. and S. 5 (2) read with S. 5 (1) (d) of Act II of 1947 and for any other offence punishable under the provisions of law, in respect of the facts aforesaid and for the taking of cognizance of the said offence by a court of competent jurisdiction."

4. Mr. H. R. Khanna, learned counsel who appeared for the respondent raised a preliminary objection. It was urged that the appellant died during the pendency of this appeal and, therefore, the appeal abates and cannot be proceeded with. Simultaneously it was urged that if the appeal were not to abate on the only ground that the appellant was also sentenced to pay a fine of Rs. 200/- and, therefore, it may be said that right to property of the legal representatives may be adversely affected and, therefore, they would be entitled to continue the appeal, the respondents State is prepared to concede that the sentence of fine may be set aside.

5. Section 394 of the Criminal P. C. which provides for abatement of appeals reads as under :

"394 .(1) Every appeal under S. 377 or S. 378 shall finally abate on the death of the accused.

(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant :

Provided that where the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.

Explanation - In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister."

6. The appeal by the appellant is not one under S. 377 or S. 378 of the Cr. P. C. and, therefore, sub-sec. (1) of S. 394 will not be attr