Judgment

SARKARIA, J.:- This appeal by the State is directed against a judgment of the Punjab and Haryana High Court setting aside the conviction of the respondent herein in respect of offences under S. 5 (2) read with Sec. 5 (1) (d) of the Prevention of Corruption Act, 1947 and S. 161, Penal Code on the sole ground that the sanction for his prosecution had not been accorded by a competent authority.

2. N. C. Tandon, respondent was a civilian in the defence service in the rank of temporary Superintendent Building and Roads, Grade I. It was alleged that he had accepted illegal gratification of Rs. 300/- from one Brij Bhushan Lal. Contractor on 11-3-1971 as a motive or reward for doing an official act. The Contractor was at the material time doing the constrution of main sewers in Chandigarh Cantonment near Panchkula. The respondents duty was to supervise that construction. The respondent, it is alleged, demanded the bribe as a reward for recording correct measurements. Brij Bhushan Lal did not, in fact, want to pay the gratification. He, therefore, informed the Special Police Establishment authorities who on 10-11-1971 trapped the accused and allegedly recovered the tainted money from his possession.

3. The sanction for the prosecution of the accused was accorded by Brig. Naresh Prasad, Chief Engineer, North Western Zone, Chandigarh on 24-6-1971. The Special Judge, Ambala tried and convicted the accused on the aforesaid charges and sentenced him to one year,s rigorous imprisonment and a fine of Rs. 1,000/-.

4. Tandon appealed to the High Court. The appeal was heard by a learned single Judge who held that on 24-6-1971, when Brig. Naresh Prasad Chief Engineer, North Western Zone passed the order of sanction for prosecution, he had under the relevant Rules, no plenary or delegated power to appoint to a post in Class III service and that such a power was delegated to Chief Engineers of Zones for the first time on 14-1-1972. The learned Judge noted that the authority competent to appoint the accused-respondent on 24-6-71. was the Chief Engineer Western Command, Simla, and not the Zonal Chief Engineer. He therefore concluded that the sanction for prosecution of the accused had not been given by the competent authority. On this short ground, the High Court allowed Tandons appeal, without going into the merits of the case.

5. At the outset, we may notice the general principles which govern the sanction for prosecution in such cases.

6. Sub-section (1) of S. 6 of the Prevention of Corruption Act says.

"No court shall take congnizance of an offence punishable under Sec. 161 (or Sec. 164) or Section 165 of the Indian Penal Code, or under sub-section (2) (or sub-s. (3A)) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction of the authorities enumerated in Cls. (a), (b) and (c) of that section".

7. Sub-section (2) of the section provides:

"Where for any reason whatsoever any doubt arises whether the previous sanction as required under subsection (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed". (emphasis added)

8. Thus the test as indicated in this sub-section, for judging the competency of the authority giving the sanction is, whether at the time of the alleged commission of the offence, it had the power to remove the public servant from his office.

9. Another principle to be borne in mind is, that unless a different intention appears, the power to appoint to an office includes the power to dismiss or remove from that office (vide Section 16, General Clauses Act).

10. We may further clear the ground and have a short, swift look at the relevant statutory rules. It is common ground that the post of Superintendent, Grade I (B & R) which the accused was temporari