The absence of a valid sanction for prosecution under Section 5(2) of the Prevention of Corruption Act (Act II) deprived the Special Judge of jurisdiction to try the appellant for criminal breach of trust under Section 409 of the Penal Code, rendering the trial for the latter offense null and void.

Sahai, J.

1. The Special Judge of Monghyr has acquitted the appellant of a charge under Section 5(2) of the Prevention of Corruption Act (II of 1947) (hereinafter to be referred to as Act II) but has convicted him under Sec. 409 of the Penal Code, and has sentenced him to undergo rigorous imprisonment for three years.

2. A halka is the lowest unit of revenue administration in a district, and a Karmachari is in charge of one or more halkas, A number of halkas are under the control of a circle office which is headed by a Circle Officer. The appellant was the Karmachari of halkas Nos. 44, 45, 49 and 52 with his office at a village named Chakai. A village named Kathwara fell under Halka No. 49. The headquarters of the circle office was located at Jhajha, and Shri B. Jha (P. W. 7) was the Circle Officer in 1954 and 1955.

3. The Prosecution case is that, on 29-11-1954, Shri B. Jha (P. W. 7) visited Kathwara. and several persons then complained to him that the appellant was in the habit of realising money illegally from them. After making an enquiry, he sent a prosecution report (exhibit 3) dated 6-10-1955, to the Sub-Inspector of Police, Chakai.

In this report, he gave details of twelve instances, and stated that they showed that the appellant had "taken illegal gratification in his capacity as karmchari and misappropriated the Government money". The Sub-Inspector attached a formal first information report from (exhibit 3/1) to it. The Deputy Superintendent of Police was not available, and hence the Subdivisional Magistrate entrusted the investigation of this case to the Sadar Inspector of Police (P. W. 10).

The Inspector addressed a letter (exhibit 6) to the District Magistrate, requesting him to sanction the appellants prosecution for offences described in Section 5(1)(a) and 5(1)(c) of Act II as that was required under Sec. 6 of the same Act. The sanction order dated 20-5-1956, is exhibit 7, and the District Magistrate stated therein, after giving brief facts of the case, that, a prima facie case having been made out against the appellant, his prosecution under Sec.161 of the Penal Code was sanctioned.

4. On 21-8-1957, the Special Judge framed two charges against the appellant, both for the period between May, 1954, and November 1954. In the charge for an offence under Sec. 5(2) of Act II, he stated that the appellant had, in his capacity as a public servant (karmachari), dishonestly and fraudulently misappropriated and converted to his own use three sums of money, viz., (i) a sum of Rs. 40/-, which he received in two instalments from Khiru Mahton (P. W. 1) in November, 1954, towards cost of settlement of gairmazrua lands and price of produce thereof, (ii) a sum of Rs. 3/8/-, which he received from Balli Mahton in September, 1954, on account of rent without granting any receipt, and (iii) a sum of Rs. 46/-, which he received from Munshi Mian in July, 1954, towards the cost of six mutation cases.

The learned Judge framed the other charge under Sec. 409 of the Penal Code in respect of the same items of payment. In his judgment dated 16-12-1957, the learned Judge has held that, as the District Magistrates sanction order related to an offence under Sec.161 of the Penal Code, it was not a valid sanction for the offence described in Sec. 5(1) and punishable under Sec. 5(2) of Act II. He has, therefore, recorded an order of acquittal in respect of that offence but has convicted the appellant under Sec. 409 of the Penal Code, as I have already mentioned. The appellant has come up in appeal against that Judgment.

5. Appearing on behalf of the appellant, Mr. Lakshman Saran Sinha has urged the following three points:

(1) The Special Judge had no jurisdiction to try an offence under Sec. 409 of the Penal Code because, for want of a valid sanction, he was not competent to try the offence under Sec. 5(2) of Act II.

(2) The appellant cannot be held to have committed criminal breach of trust in respect of the first and third items of cha