A.D.KOSHAL, J.

1. This appeal filed by the State of Punjab against the judgement of Shri Asa Singh Gill. Special Judge, Gurdaspur, dated the 20th of July, 1970 holding the trial of respondent No. 1 for offences under S.5(2) of the Prevention of Corruption Act (hereinafter referred to as the Act) and Section 161 of the Indian Penal Code and of respondent No. 2 under Section 165-A of the Indian Penal Code, conducted by him to be without jurisdiction and, therefore null and void has been entrusted for decision to a Full Bench in pursuance of the order of reference dated the 18th of May, 1971, made by a Division Bench consisting of my learned brother Tewatia, J. and myself and the sole question requiring determination therein is whether the sanction for prosecution of respondent No. 1 purporting to have been given by the State Government under Section 6 of the Act was or was not validly accorded.

2. The facts leading to this appeal may be briefly stated. Respondent No. 1 is a member of the Punjab Civil Service (Judicial Branch) and was holding the post of Subordinate Judge-cum-Judicial Magistrate 1st Class Batala on the 27th of October, 1968. It is alleged by the appellant State that on that date he accepted through respondent No. 2 a sum of Rs. 200 in cash and a bottle of whisky as illegal gratification from one Jawand Singh who was a person accused of a criminal offence in a case pending in his (respondent No. 1s) Court. On the 1st of August 1969, the State Government, purporting to act in pursuance of the provisions of Sub-Section (1) of Section 6 of the Act passed an order sanctioning the prosecution of respondent No. 1. That order is expressly made in the name of the Governor of Punjab and is signed by Shri A.N. Kashyap, Chief Secretary to Government, Punjab. It is common ground between the parties that the order was issued by the Government in the exercise of its executive functions and not personally by the Governor to whom the file of the case was never submitted before sanction for prosecution was accorded. During the course of the trial of the respondents 14 witnesses were examined on behalf of the prosecution and 27 in defence. At the argument stage it was contended before the learned trial Judge on behalf of the respondents that it was the Governor of Punjab acting in his individual capacity who was competent to remove respondent No. 1 from service, he being the appointing authority in the case of respondent No. 1 under Article 234 of the Constitution of India and that he (the Governor) alone could sanction the prosecution of respondent No. 1 in view of the provisions of Section 6 of the Act. Reliance on behalf of the respondents was placed in this connection on Murari Lal Puri V/s. State of Punjab. Criminal Appeal No. 1180 of 1968, decided by a Division Bench of this Court consisting of Harbans Singh and Mahajan, JJ., on 18-5-1970. In that case the sanction for prosecution under Section 5(2) of the Act of Shri Murari Lal Puri a District and Sessions Judge, was accorded by the Haryana State Government when the State was under the Presidents rule. The order granting sanction was passed by the Chief Secretary to Government, Haryana, and was never placed before the Governor of Haryana or the President of India. It was argued on behalf of the State that under Article 233 of the Constitution the power of appointment of district Judges was vested in the Governor of the State by which expression was meant the Governor of the State exercising the executive functions of the State Government, that the State Government was, therefore, the appointing authority in the case of district judges and was also consequently vested with the power of their removal so that it was the authority competent to accord sanction for the prosecution of Shri Murari Lal Puri. The argument was repelled by the Division Bench and it was held that by the expression Governor of the State occurring in Article 233 of the Constitution is meant the Gov