Chhangani, J.—This revision petition by the State has been directed against the order dated 3.11.61 of the Special Judge, Balotra, whereby he discharged the accused

Tarachand of offences under sec. 161, Indian Penal Code, and sec. 5(2) of the Prevention of Corruption Act, holding that the sanction for his prosecution was bad in law and the Court could not take cognizance of the case on the basis of defective sanction. ,

2. The case originally came up before Bhargava, J. who on account of the importance of the point involved in the case, referred the matter to a larger Bench.

3. The facts of the case lie in a very short compass. The respondent Tara Chand was a member of Rajasthan Administrative Service and was at the material time posted as Sub-Divisional Magistrate, Barmer. During his tenure as such, between "November, 1959 and March, 1960", he is alleged to have accepted illegal gratifications from parties in cases that were pending before him, on the Pretext of showing undue favour to them. On a demand of bribe by him from one Hazi Ali Mohammad, who was accused in a passport case pending before the respondent, Hazi Ali Mohammad filed a complaint on 30.3.1960 at 8.15 P.M. before the Deputy Superintendent Police, Anti Corruption Department, Jodhpur. A trap was accor-dingly laid during the course of which the accused accepted as bribe an amount of Rs. 500/- in marked currency notes which were recovered from his possession. Investigation was then commenced and during the course of it, a further sum of Rs. 11,450/- was recovered which, it is alleged, was lying concealed in his house. It was also noticed that the respondent had bank balance of Rs. 5p34.68 nP. ana that he used to deposit a major portion of his salary every month in bank. On these materials, the prosecution obtained sanction for his prosecution and eventually put up a challan against him in the Court of Special Judge, Balotra under sec. 161, I.P.C. and sec. 5(2) of the Prevention of Corruption Act.

4. The plea of the accused was of a general denial.

5. The Special Judge proceeded to try the case and examined 28 witnesses for the prosecution upto 18.8.1961. On the last mentioned date, when the case was fixed for the examination of Umraomal, Section Officer, Appointments A-III Department, Government of Rajasthan, Jaipur, the Special Public Prosecutor (Anti Corruption Department) put up an application stating that the sanction was laconic in the absence of specific approval of the Governor of the State and prayed tor some time to rectify the mistake by puting on record a proper and valid sanction. The prosecution, however, did not adhere to this position and later on the Deputy Government Advocate filed another application on 30.9.61 completely repudiating the stand taken in the Special Public Prosecutors application dated 18.8.61. It was stated in this application that the prior application by the Special Public Prosecutor was put in under some misconception of legal points. It was further stated that the Governor had not reserved unto him the right of sanctioning prosecution and, therefore, it was futile to send the papers to the Governor and that the sanction was properly awarded by the Government. It was also claimed that the executive order issued by the Government in the name of the Governor was not justiciable and a complete immunity from challenge of any kind was claimed. This was followed by an application dated 28.10.61 on behalf of the accused raising the , question of the validity of the sanction. Reliance was placed on Rule 31 of the Government of Rajasthan Rules of Business and it was contended that as the accused was not removable from his office except under the orders of the Governor, the sanction accorded in his case without the papers having been placed before the Governor was not valid in law.

6. The Special Judge, after considering the provisions of law, recorded the following conclusions:–

1. That a member of the Rajasthan Administrative Service to which

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