judgement:
minal Appeal No. 143 of 1954.
On appeal by special leave from the judgment and order dated the 12th August 1953 of the Patna High Court in Criminal Appeal No. 345 of 1952 arising out of the judgment and order dated the 20th August 1952 of the Court of Additional Session Judge, Darbhanga in Session Case No. 12 of 1952.
H.J. Umrigar and B. C. Prasad, for the appellant.
B.K. Saran and M. M. Sinha, for the respondent. 1955.
December 8.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The appellants were charged before the Additional Sessions Judge, Darbhanga under section 302 read with section 34 of the Indian Penal Code for the murder of one Balbbadra Narain Singh.
They were also charged, some under section 147 and the others under section 148, for be ing members of an unlawful assembly and for rioting.
The case of the prosecution was as follows: The deceased and the appellants were pattidars in the village I of Mahe, and there was ill feeling between them on account of the village pattidari.
On 5 3 1951, at about 10 A.M. the deceased was returning from the river to his baithka.
Oil the way, the appellants who were armed with bhalas, sword and lathi, and some others surrounded him at the courtyard of the village school and attacked him.
One Harischandra Singh, who is still absconding, plunged his bhala into the abdomen of the deceased, and the appellants joined in the attack on him.
The deceased ran to his baithka, and from there, he was taken to the police station at Singhia.
There, he made a complaint which has been filed as the first information report, and therein beset out the incidents mentioned above, and implicated the appellants as concerned in the attack.
The deceased was then taken to the hospital, and in view of his precarious condition the doctor recorded his dying declaration.
The deceased was then sent 1045 for treatment to the hospital at Samastipur, but on the way he died.
On the basis of the first information report and on the enquiries made by them, the police charged the appellants under section 302 read with section 34 for murder and under sections 147 and 148 for rioting.
The defence of the appellant was that the deceased was attacked by some unknown ,assailants in his baithka in the early hours of 5 3 1951, and that they were not concerned in the offence.
The Additional Sessions Judge, Darbbanga accepted the evidence of the prosecution, and convicted the appellants under section 302 read with section 34, and sentenced them to transportation for life.
He also convicted them, some under section 147 and the others under section 148, but imposed no separate sentence under those sections.
The appellants took the matter in appeal to the High Court of Patna.
, The learned Judges agreed with the Sessions Judge in his conclusions of fact, but altered the conviction from one under section 302 read with section 34 to one under 'section 326 read with section 149, and the sentence from transportation for life to various terms of imprisonment.
The learned Judges also maintained the conviction of the appellants on the charge of rioting, but awarded no separate sentence therefor.
It is against this judgment that the present appeal is directed.
On behalf of the appellants, it was firstly contended by Mr. Umrigar that the finding of the courts below that the incident took place at the school courtyard and not at the baithka of the deceased was bad, because it was based on inadmissible evidence, viz., Exhibit P 7 and the testimony of P.Ws. 4, 7 and 12.
Exhibit P 7 is a statement of the deceased taken by the police officer subsequent to the lodging of the first information and after the investigation had begun, and its reception would be barred by section 162 of the Code of Criminal Procedure.
But the learned Judges thought that it would be admissible under section 32(1) of the Indian Evidence Act, and the correctness of this view is disputed by the appellants.
But even if Exhibit P 7 is inadmissible in evidence, 1046 that would not assist the appellants, as the learned Judges observed that apart from that document, they would have, on the other evidence, held that the deceased was attacked at the school courtyard.
Then, we come to the evidence of P.Ws. 4, 7 and 12 on which the courts below have relied in accepting the version of the incident as given by the prosecution.
Mr. Umrigar contended that their evidence was inadmissible, because they were examined by the police at the stage of investigation, and their statements were not recorded separately as required by section 161(3) of the Code of Criminal Procedure.
This is what the investigating officer, P.W. 18, deposed with reference to this matter. "The Daffadar produced Sital Singh (P.W. '12), Ram Karan Singh (P.W. 7) and Ramkinker (P.W. 4).
First of all, I examined them separately but recorded their joint statement in respect of common things.
I made a separate record about the identification and the weapons".
The recording of a joint statement of the examination of P.Ws. 4, 7 and 12 is clearly in contravention of section 161(3), and must be disapproved.
But the question is whether that renders the testimony of P.Ws. 4, 7 and 12 in court inadmissible.
Section 161(3) does not say so, and indeed, seeing that the police are not bound to make a record of the statements of witnesses in which case there is admittedly no bar to the reception of their testimony, it would be anomalous if we were to hold that their evidence is inadmissible, because the statements were also reduced to writing but not in the manner provided in the section.
The Indian Evidence Act contains elaborate provisions as to who are competent witnesses and on what matters their evidence is inadmissible.
And on these provisions P.Ws. 4, 7 and 12 are neither incompetent witnesses, nor is their evidence as to the incidents to which they deposed, inadmissible.
In Zahiruddin vs Emperor(1) it was held by the Privy Council that the failure to comply with the provisions of section 162(1) might greatly (1) A.I.R. 1947 P.C. 75.
1047 impair the value of the evidence of the witness, but that would not affect its admissibility.
On the same reasoning, it will follow that the evidence of P.Ws. 4, 7 and 12 is not inadmissible for the reason that their statements had been recorded by P.W. 18 jointly and not separately as required by section 161(3).
In support of his contention that their evidence is inadmissible, Mr. Umrigar relied on the decisions in Baliram Tikaram vs Emperor(1) and Maganlal Radhakishan vs Emperor(2).
In Baliram Tikaram vs Emperor(1), which was a decision under section 162 of the Code of Criminal Procedure the accused had not been furnished with copies of the statements recorded by the police officers under section 161, and it was held that that deprived the accused of a valuable right, and must have caused prejudice to them.
That was the view taken in Viswanath vs Emperor (3) , and no exception can be taken to it.
But the learned Judges went on to observe that the evidence of the witnesses who gave statements at the investigation would itself be inadmissible.
The reason for this opinion was thus stated by them: "How can the evidence be admissible and proper for consideration when the accused is robbed of his statutory means of cross examination and thereby denied the opportunity of effectively cross examining his adverse witnesses? No evidence recorded by the Court, unless it satisfies the requirement of section 138, Evidence Act, can become admissible and proper for consideration.
It would indeed be bold to say that the evidence of a witness is legally admissible against a party even though he at the time it was given had not the full opportunity to cross examine him".
This view was reiterated by the same learned Judges in Maganlal Radhakishan vs Emperor(2), but, for the reasons already given, we are unable to accept this as a correct statement of the law.
We are of the opinion that while the failure to comply with the requirements of section 161(3) might affect the weight to be (1) A.I.R. 1945 Nag.
(2) A.I.R. 1946 Nag.
(3) I.L.R. , 1048 attached to the evidence of the witnesses, it does not render it inadmissible.
That was so held by Harries, C.J. and Bachawat, J. in Bejoy Chand Patra vs The State(1), where this question arose directly for decision, and we are in agreement with this view.
In the present case, the attention of the learned Judges was drawn to the infirmity in the evidence of P.Ws.4, 7 and 12, arising by reason of the failure to observe section 161(3), but they were, nevertheless, prepared to accept it as reliable.
We must accordingly hold that the findings of the courts below are not open to attack on the ground that they were based on inadmissible evidence.
It was next contended that the charge on which the appellants were tried was one under section 302 read with section 34, and that the learned Judges of the High Court erred in convicting them under section 326 read with section 149.
Before the learned Judges the contention that was pressed was that there was no power in the court to substitute section 149 for section 34, but they declined to accept it.
The question has since been considered by this Court in Karnail Singh and others vs The State of Punjab( ') and Willie Slaney 's case( ').
It is conceded by Mr. Umrigar that in view of these decisions, the question is no longer open.
It must be answered adversely to the appellants.
It was finally contended that there had been no proper examination of the appellants under section 342, and that the conviction should accordingly be quashed.
What happened was that when the court commenced its examination under section 342, the appellants stated that they would file written statements.
Those statements were very elaborate and furnished the answer of the appellants to all the points raised in the prosecution evidence.
Mr. Umrigar was unable to suggest any question which could have been put, with reference to which the statements did not contain an answer.
Clearly, the appellants have not been prejudiced.
It is no doubt true that (1) A.I.R. 1950 Cal. 363.
(2) , (3) Criminal Appeal No. 6 of 1955, 1049 section 342 contemplates an 'examination in court) and the practice of filing statements is to be deprecated.
But that is not a ground for interference, unless prejudice is established.
And it is nothing unusual for the accused to prefer filing statements instead of answering questions under section 342 lest they should suffer by inadvertent admissions or by damaging statements.
As no prejudice has been shown, this contention also must be rejected.
In the result, the appeal is dismissed.

summary:
Although the joint recording of statements made by witnesses during an investigation is a contravention of section 161(3) of the Code of Criminal Procedure and must be disapproved, that by itself does not render the testimony given by such witnesses in court inadmissible.
It is, however, for the court to decide whether it will rely on such testimony or attach any weight to it.
Zahiruddin vs Emperor, (A.I.R. , applied.
Baliram Tikaram vs Emperor, (A.I.R. and Magan lal Radhakishan vs Emperor, (A.I.R. , disapproved.
Bejoy Chand Patra vs The State, (A.I.R. , ap proved.
The court has power to substitute a charge under section 149 of the Indian Penal Code for a charge under section 34.
Karnail Singh and others vs The State of Punjab, ([1954] S.C.R. 904)and Willie Slaney 's case, (Criminal Appeal No. 6 of 1955), referred to.
Although section 342 of the Code of Criminal Procedure contem plates oral examination of the accused in court and though the practice of filing written statements is to be deprecated, the fact that the accused filed a statement instead of being examined is no ground for interference unless he is shown to have been prejudiced thereby.
Consequently, in a case where the accused were put up for trial under section 302 read with section 34 of the Indian Penal Code, and the Additional Sessions Judge relying on the evidence of three of the prosecution witnesses whose statements during the investigation were recorded jointly in contravention of section 161(3) of the Code of Criminal Procedure, convicted and sentenced them to transportation for life and the High Court in appeal agreed with the findings of fact, but altered the conviction to one under section 326 read with section 149 of the Indian Penal Code, as also the sentence, their conviction was not liable to be set aside.


judgement:
ON: Criminal Appeal No. 577/76 (Appeal by Special Leave from the judgment and Order dated the 4th Nov. 1976 of the Bombay High Court in Crimi nal Appeal No. 448 of 1973).
V.M. Tarkunde, section V. Tambwekar and Miss M. Tarkunde, for the appellant.
H.R. Khanna and M.N. Shroff, for the respondent.
515 (Goswami, J.
) The Judgment of the Court was delivered by GOSWAMI, J.
The appellant was convicted by the Judicial Magistrate, Udgir, under section 16(1)(a)(i) provi so (i) of the , read with section 2(i)(1) and section 7(i) of the said Act and sentenced to simple imprisonment till rising of the court and to pay a fine of Rs. 500/ , in default rigorous imprisonment for two months.
The appellant 's father who was also charged for the same offence was, however, acquitted.
The charge against the appellant was that he sold chilli powder which was adulterated inasmuch as the percentage of the total ash was more than the permissible limit.
The sample of chilli powder which was seized by the Food Inspec tor on April 13, 1974, contained 37.25% of the total ash against the permissible percentage of 8%.
It was stated in the Analyst 's report that the percentage of extraneous matter which was common salt mixed with the chilli powder was 32.4%.
The learned Magistrate found that the chilli powder was adulterated within the meaning of section 2(i)(1) although the prosecution was on the basis of the article being adulterated within the meaning of section 2(i)(c) of the (briefly the Act).
The State of Maharashtra preferred an appeal against the order of acquittal of the father of the appellant and against the inadequacy of the sentence awarded to the appel lant.
The High Court dismissed the appeal against acquittal of the appellant 's father but allowed the appeal of the State with regard to the inadequacy of the sentence.
The High Court while affirming the conviction of the appellant under section 16(1)(a)(i) read with sections 2(i)(1) and 7(i) of the Act enhanced the sentence to six months ' simple imprisonment and a fine of Rs. 1000/ , in default simple imprisonment for two months.
Hence this appeal by special leave.
Mr. Tarkunde, appearing on behalf of the appellant, submits that the appeal by the State of Maharashtra under section 377(1), Criminal Procedure Code, 1973, was incompe tent in view of the provisions of sub section (2) of that section.
He further submits that the High Court was not at all justified in a case of this nature to interfere with the sentence when the trial court had given adequate reasons for imposing the lesser sentence.
It is also pointed out, more or less as an alternative submission, that the power of the High Court to enhance sentence which was available under section 435/439 Cr.
P.C. of the old Code is replaced by the provision of appeal under section 377 Cr.
P.C. of the new Code.
It is also stated that the High Court 's power of revision, suo motu, long exercised under the old Code is now taken away under the new Code by providing for apppeal against inadequacy of sentence.
The above submission is put forward ex abundanti cautela lest we may not interfere with the sentence imposed by the High Court having regard to the possibility of exercise of pow ers, suo motu, by the High Court for enhancement of sentence assuming the appeal is incompetent on the ground urged by the appellant.
516 We should at once remove the misgiving that the new Code of Criminal Procedure, 1973, has abolished the High Court 's power of enhancement of sentence by exercising revisional jurisdiction, suo motu.
The provision for appeal against inadequacy of sentence by the State Government or 'the Central Government does not lead to such a conclusion.
High Court 's power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extent under section 397 read with section 401 Criminal Procedure Code, 1973, inasmuch as the High Court can "by itself" call for the record of proceedings of any inferior criminal court under its jurisdiction.
The provision of section 401(4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision.
Such a legal bar under section 401(4) does not stand in the way of the High Court 's exercise of power of revision, suo motu, which continues.
as before in the new Code.
Before we proceed further we may set out section 377(1) and (2) Cr.
P.C. with which we are concerned: 377.
(1) "Save as otherwise provided in sub section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sen tence on the ground of its inadequacy.
(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the , or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy".
Mr. Tarkunde emphasised upon the difference of language in section 377(2) and section 378(2) Cr.
In the latter section the word "also" appears making provision for both the State Government the Central Government to appeal against acquittal.
On the other hand it is urged on behalf of the State that the word "also" may be read in section 377(2) Cr.
P.C. in the context of the scheme of the two provisions in section 377 and section 378 Cr.
It is true that section 378(2) follows the pattern of section 417(2) of the old Code and the right to appeal is conferred upon both the State Government and the Central Government in express terms in section 378(2).
It is clear that the legislature has maintained a watertight dichotomy while dealing the matter of appeal against inade quacy of sentence.
We agree that in the absence of a similar word "also" in section 377(2) it is not possible for the court 517 (Goswami, J.) to supply a casus omissus.
The two sections, section 377 and section 378 Cr.
P.C. being situated in such close prox imity, it is not possible to hold that omission of the word "also" in section 377(2) is due to oversight or per incuri am.
Section 377 Cr.
P.C. introduces a new right of appeal which was not earlier available under the old Code.
Under sub section (1) of section 377 Cr.
P.C. the State Government has a right to appeal against inadequacy of sentence in all cases other than those referred to in sub section (2) of that section.
This is made clear under section 377(1) by its opening clause "save as otherwise provided in sub section (2)".
Sub section (2) of section 377, on the other hand, confers a right of appeal on the Central Government against a sentence on the ground of its inadequacy in two types of cases: (1) Those cases where investigation is con ducted by the Delhi Special Police Establish ment constituted under the .
(2) Those other cases which are investi gated by any other agency empowered to make investigation under any Central Act not being the Code of Criminal Procedure.
There is no difficulty about the first type of cases which are investigated by the Delhi Special Police Estab lishment where, certainly, the Central Government is the competent authority to appeal against inadequacy of sen tence.
The controversy centres round the second type of cases viz., those which are investigated by any other agency empowered to make investigation under any Central Act not being the Code of Criminal Procedure.
The Criminal Procedure Code inter alia, provides for investigation of all categories of criminal offences.
The First Schedule of the Code classifies offences under the Indian Penal Code as well as offences against other laws.
Between the above two classifications the entire denotation of criminal offences is exhausted.
It is clear that the Delhi Special Police Establishment also has to comply with the provisions of the Code of Criminal Procedure in ' inves tigation of offences just as the State Police has to do.
By section 3 of the , the Central Government may by notification in the official gazette specify the offences or class of offences which are to be investigated by the Delhi Special Police Establishment.
It is only when such a notification is made by the Central Government that the Delhi Special Police Establishment is empowered to investigate the specified offences.
Similarly if in any other Central Act, not being the Code of Criminal Procedure, a provision is made for empowering a particular agency to make investigation of offences under that Act, then also the Central Government alone will be the competent authority to prefer appeal under section 377(2) Cr.
The true test, therefore, under section 377(2) Cr.
P.C. is whether the offence is investi gated by the 518 Delhi Special Police Establishment or is investigated by any other agency empowered to make investigation under any Central Act other than the Code of Criminal Procedure.
In other words, just like section 3 of the , there should be an express provi sion in the empowering the making of investigation under the Act.
But no such express provision is found in the .
Mr. Tarkunde took us through all the relevant provisions of the and in particu lar rule 9 of the Central Rules to point out that it is a self contained code detailing the requisite manner of inves tigation for the purpose of efficient prosecution of offenders under that Act.
Mere provision of an in built mechanism of some kind of investigation in that Act is not decisive of the matter.
There should be an express provi sion in that Act empowering the Food Inspectors to make investigation of offences under the Act.
It is true that investigation under section 2(h) Cr.
P.C. is an inclusive definition and is of wide import.
It may also be true that some of the powers exercised by the Food Inspectors under section 10 of the Act are included in the investigatory process of the police although the Food Inspectors have no powers of arrest of the offenders unless they refuse to give name and residence or give suspicious name or residence.
This procedure in the Act follows from the fact that on the date of taking a sample of an article, the Food Inspector is not in a position to come to a con clusion whether the article is adulterated within the mean ing of the Act.
It is only on receipt of the Analyst 's report certifying the article to be adulterated that the Food Inspector will be able to submit a report to the Magis trate for taking cognizance of the offence and his report will have to be accompanied also by a written consent of the appropriate authority under section 20 of the Act.
The scheme of the Act is such that the case is instituted on his report and dealt with under the Criminal Procedure Code as a case of which cognizance is taken under section 190(1)(a) of the Criminal Procedure Code.
In the absence of any express provision in the Act in that behalf it is not possible to hold that the Food Inspectors are empowered to make .inves tigation under the Act.
Section 377(2) Cr.
P.C., therefore.
is not attracted and the appeal under section 377(1) Cr.
P.C. at the instance of the State Government is maintain able.
The first submission of the appellant has no force.
With regard to the second and last submission on sen tence Mr. Khanna on behalf of the State submits that this was a case under section 16 for violation of section 2(i)(c) of the Act in which case the Magistrate had no jurisdiction to award a sentence less than six months.
According to counsel, the High Court was right in enhancing the sen tence of the appellant.
We are concerned in this case with the prior to the amendment by Act 34 of 1976.
which 519 (Goswami, J) inter alia, amended section 2(i)(1) and added a sub clause (m) to section 2(i).
It is true.
that under section 16(1)(a)(i) if any person sells any article of food which is adulterated he shall be` punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and a fine which shall not be less than one thousand rupees.
The proviso to that section, however, relieves an offence trader sub clause (i) of clause (a) when inter alia, it is with respect to an article of food which is adulterated under sub clause (1 ) of clause (i) of section 2, from the rigour of the above penal provision and the court may, for any adequate and special reason, impose a sentence of im prisonment for a term of less than six months or a fine of less than one thousand rupees etc.
It is by invoking the above proviso that the trial court sentenced.
the appellant as set out above.
Mr. Khanna submits that we should.
alter the finding of conviction to one for violation of section 2(i)(c) from section 2(i)(1), since, according to him, that will be the proper conviction on the facts of the case.
We are unable to entertain this plea for altering the conviction in such a manner for the purpose of enhancing the sentence under section 377 Cr.
The State did not appeal against the acquittal of the appellant under section 16(1)(a)(i) read with section 2(i)(c) and proceeded on the basis that the article was adulterated within the meaning of section 2(i)(1) as held by the trial court.
This is clear also from the judgment of the High Court.
In an appeal against inade quacy of sentence it is not permissible to alter the convic tion to an aggravated category of offence for which the accused wan not convicted.
While the accused in such an appeal under section 377 Cr.
P.C. can show that he is inno cent of the offence, the prosecution is not entitled to show that he is guilty of a graver offence and on that basis the sentence should be enhanced.
The prosecution will only be able to urge that the sentence is inadequate on the charge as found or even on an altered less graver charge.
The submission of Mr. Khanna is clearly untenable.
Mr. Khanna next submits that this Court should not interfere with the sentence in a case under the as the offence is against society at large affecting the health and wellbeing of the people in general.
We are alive to the seriousness of offences under the .
Courts have to give due recognition to the intent of the legislature in awarding proper sentence including the minimum sentence in appropriate eases described under the Act.
Such offences cannot be treated in a lighthearted manner.
Even so justice has to be done in accordance with law.
The , itself, permits for some leniency in an excepted category of cases as pointed out earlier.
When the legislature itself intends not to visit an offence under the Act with an equal degree of severity under specified circumstances, it is permissible for the courts to give the benefit in suitable cases.
As seen earlier, the provides that when conviction is under section 16(1)(a)(i) for selling an adulterated article coming within the defini tion of section 2(i)(1), the 520 Magistrate, by recording adequate and special reasons, has jurisdiction to award a sentence less than the minimum.
In an appeal under section 377 Cr.
P.C. the High, Court may interfere with the sentence if no reasons for awarding a lesser sentence are recorded by the Magistrate Again, if the reasons recorded by the Magistrate are irrelevant, extrane ous, without materials and grossly inadequate, the High Court will ' be justified in enhancing the sentence.
While dealing with the question of sentence the Magis trate noted that the appellant was a small retail shopkeeper who had only 3 kgs.
of chilli powder in his shop for sale out of which 450 gms. were purchased by the Food Inspector.
He also considered the nature of the offence as disclosed in the report of the Public Analyst.
There is nothing in the evidence to show that any injurious ingredient to health was mixed with the article.
We find that the Magistrate had the jurisdiction under the first proviso to section 16(1) to award less than the minimum sentence in this case by record ing adequate and special reasons.
We are unable to hold that the reasons given by the Magistrate are so grossly inadequate that the High Court was right in interfering with the sentence in this petty case.
We must hasten to add that the matter would have been absolutely different if the article sold contained ingredients injurious to health.
Our attention is drawn to a disquieting feature in the procedure adopted by the learned single Judge (G. N. Vaidya, J. ) in disposing of the appeal.
The learned Judge ignored the decision of another single Judge of the same court (J. M. Gandhi, J.) who had earlier held m a similar case that the appeal by the State was not competent under section 377(1) Cr.
It is true that the decision is pending.
before, this Court in appeal by special leave.
That, howev er, cannot be sufficient reason for the learned Judge to ignore it and observe that it is "unnecessary to keep back this matter till the Supreme Court decides matter".
When there was a decision of a coordinate court, it was open to the learned Judge to differ from it but in that case the only judicial alternative was to refer it to a larger bench and not to dispose of the appeal by taking a contrary view.
Judicial discipline as well as decorum should suggest that as the only course.
In the result the appeal is allowed and the judgment and order of the High Court are set aside.
The appellant shall be discharged from his bail bond.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant and his father were charged section 2(1) (c) of the for adul teration of chilly powder.
The sample of chilli powder which was seized by the Food Inspector on April 13, 1974 contained 37.25% of the total ash against the permissible percentage of 8%.
It was stated in the Analyst 's report that the percentage of extraneous matter which was common salt mixed with the chilli power was 32.4%.
The judicial magistrate, Udgir, found that the chilli powder was adulter ated within the meaning of section 2(i) of the Act and convicted the appellant under section 16(1) (a) (i), proviso I of the r/w section 2(i)(1) and section 7(1) of the said Act and sentenced him to simple impris onment till the rising of the court and to pay a fine of Rs. 500/ and in default rigorous imprisonment for two months.
The appellant 's father was, however, acquitted.
The State of Maharashtra preferred an appeal against the order of acquittal of the father and against the inadequacy of the sentence awarded to the appellant.
The High Court dismissed the appeal against acquittal of the appellant 's father but allowed the appeal of the State with regard to the inadequa cy of the sentence.
Affirming the conviction of the appel lant under section 16(1) (a) (i) r/w sections 2(1)(i) and 7(1) of the Act, the High Court enhanced the sentence to six months ' simple imprisonment and a fine of Rs. 1000/ , in default simple imprisonment for two months.
Allowing the appeal by special leave, the Court, HELD: (1) The new Code of Criminal Procedure, 1973 has not abolished the High Court 's power of enhancement of sentence by exercising revisional jurisdiction suo motu.
The provision for appeal against inadequacy of sentence by the State Government or the Central Government does not lead to such a conclusion.
High Courts power of enhancement of sentence in an appropriate case by exercising suo motu power of revision is still extent section 397 read with section 401 Crimi nal Procedure Code, 1973, inasmuch as the High Court can "by itself" call for the record of proceedings of any inferior criminal court under its jurisdiction.
The provision of section 401 (4) is a bar to a party who does not appeal when appeal lies, but applies to revision.
Such a legal bar under section 401(4) does not stand in the way of the High Courts exercise of power of revision suo motu, which continues as before in the new .Code.
[545H, 546A C] 514 (2) Under sub section (1) of section 377, the State Govern ment has a right to appeal against the inadequacy of sen tence in all cases other than those referred to in sub section (2) of that section.
The true test under section 377(2) Criminal Procedure Code is whether the offence is investi gated by the Delhi Special Police Establishment or is investigated by any other agency empowered to make investi gation under any Central Act other than the Code of Criminal Procedure.
In other words, just like section 3 of the Delhi Special Police Establishment Act, there should be an express provision in an Act empowering the making of investigation under the Act.
No such express provision is found in the .
Mere provision of an in built mechanism of some kind of investigation in that Act is not decisive of the matter.
There should be an express provision in that Act empowering the Food Inspectors to make investigation of offences under the Act.
In the absence of any express provision in the Act in that behalf, it cannot be held that the Food Inspectors are empowered to make investigation under the Act.
Section 377(2) Criminal Proce dure Code, therefore, is not attracted and the appeal under section 377(1), Criminal Procedure Code at the instance of the.
State Government is maintainable.
[517 A, H, 518A, B, C, F] (3) The provides that when conviction is under section 16(1) (a) (i) for selling an adulterated article coming within the definition of section 2(i)(1 ), the Magistrate by recording adequate and special reasons has jurisdiction to award a sentence less than the minimum, [519 H 520 A C] (4) Courts have to give due recognition to the intent of the Legislature in awarding proper sentence including the minimum sentence in appropriate cases described under the Act.
When the Legislature itself intends not to visit an offence under the Act with an equal degree of severity under specified circumstances, it is permissible for the courts to give the benefit in suitable cases.
[519 F G] (5) In an appeal under section 377, Criminal Procedure Code, the High Court may interfere with the sentence, if no rea sons for awarding a lesser sentence are recorded by the Magistrate.
Again if the reasons recorded by the Magistrate are irrelevant, extraneous, without materials and grossly inadequate, the High Court will be justified in enhancing the sentence.
In the instant case the reasons given by the Magistrate were not so grossly inadequate that the High Court could interfere with the sentence in a petty case.
[520 A B, C] (6) In an appeal against inadequacy of sentence it is not permissible to alter a conviction to an aggravated category of offence for which the accused was not convicted.
While the accused in such an appeal under section 377 can show that he is innocent of the offence, the prosecution is not entitled to show that he is guilty of graver offence and that on that basis the sentence should be enhanced.
The prosecution will only be able to urge that the sentence is inadequate on the charge as found or even on an altered less graver charge.
[519 D E] (7) When there is a decision of a co ordinate court, it is open to the judge to differ from it, but in that case,the only judicial alternative is to refer to a larger Bench and not to dispose of the appeal by taking a contrary view.
judicial discipline as well as decorum should suggest that as the only course.
[520 F]


judgement:
: Criminal Appeal No. 126 of 1977.
Appeal by Special Leave from the Judgment and Order dated the 12 1 1976 of the Punjab and Haryana High Court in Crl.
A. No. 583/ 72 R.N. Sachthey and H.S. Marwah for the Appellant.
595 Hardyal Hardy and S.K. Sabbarwal for Respondent.
The Judgment of the Court was delivered by 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 ss.5(2) read with s.5(1)(d) of the Prevention of Corruption Act, 1947 and 161, Penal Code on the sole ground that the sanction for his prosecution had not been accorded by a competent authority.
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, Con tractor on 11 3 1971 as a motive or reward for doing an official act.
The Contractor was at the material time doing the construction of main sewers in Chandigarh Cantonment near Panchkula.
The respondent 's 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 gratifi cation.
He therefore informed the Special Police Establish ment authorities who on 10 11 1971 trapped the accused and allegedly recovered the tainted money from his possession.
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 imprison ment and a fine of Rs. 1,000/ .
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 compe tent authority.
On this short ground, the High Court al lowed Tandon 's appeal, without going into the merits of the case.
At the outset, we may notice the general principles which govern the sanction for prosecution in such cases.
Sub section(1) of section 6 of the Prevention of Corruption Act says: "No court shall take cognizance of an offence punishable under section 161 (or sec.
164) or section 165 of the Indian Penal Code, or under sub section (2) (or sub section (3A) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction of the authorities enumerat ed in clauses (a) (b) and (c) of that section.
" 596 Sub section (2) of the section provides: "Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub section (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) 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.
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).
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 temporarily holding, is a post of Class Iii Services, and the members of this Service are governed by Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short, hereinafter called 1965 Rules).
The 1965 Rules were promulgated on November 20, 1965.
Rule 34 of the 1965 Rules repealed the earlier Rules of 1952 and any notification or orders issued thereunder "in so far as they are inconsistent with (the 1965 Rules)".
One of the provisions of the 1952 Rules, which is relevant for our purpose, and which has substantially been repro duced in the 1965 Rules, is Rule 10.
It reads as under: "10.
All first appointments to Class I and Class II Services shall be made by the Govern ment.
All first appointments to Class III and Class IV services shall be made by the author ities specified in column 3 of Schedule IV in respect of posts mentioned against them or by officers empowered in this behalf by such authorities." (emphasis added).
schedule IV reffered to in the rule ran as follows: "Schedule IV (Vide Rules, 10, 11, 12, 14 and 19).
Posts Appointing Auth Authority em No. orities in respect powered to im of Class III and pose penalties Class IV posts (i),(ii),(iv) (vide rule 10) and (v) of rule 13 for Class II officers (Vide r. 14) 1 to 7 . .
Posts in lower for E in C C. Es.
of the mation under E in C 's Commands.
Branch X X X." 597 The former Rule 10 as recast into Rule 9 of the 1965 Rules reads as below: "9(1) All appointments to Central Civil Services (other than General Civil Service) Class II, Class.
III and Class IV shall be made by the authorities specified in this behalf in the Schedule.
Provided that in respect of Class III and Class IV Civilian Services, or civil ian posts in the Defence Services appointments may be made by officers powered in this behalf by the aforesaid authorities.
(emphasis added) (2) All appointments to the Central Civil Posts,Class II, Class III and Class IV includ ed in the General Central Civil Service shall be made by the authorities specified in this behalf by a general or special order made, by the authorities specified in this behalf in the Schedule.
" It may be noted that both under the old Rule 10 and the Proviso to new Rule 9(1), the appointing authority is compe tent to delegate the power of appointment in respect of Class III Service.
Rule 13 enumerated these penalties which could be im posed upon the servants subject to the Rules: (i) Censure.
(ii) Withholding of increments or promotion.
(iii) Reduction to a lower post or time scale or to a lower stage in a time scale.
(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders (v) Suspension.
(vi) Removal from the civil service of the Government, which does not disqualify from future employment.
(Vii) Dismissal from the civil service of the Government which ordinarily disqualifies from future employment.
(viii) Compulsory retirement . " Rule 14 of 1952 Rules specified who could impose these penalties.
It provided : "14(1) Any of the penalties specified in rule 13 may be imposed on any person subject to these rules by the Government or by the appointing authority.
598 (2) Without prejudice to the provisions of sub rule (1), any of the penalties specified in clauses (i), (ii), (iv) or (v) of rule 13 may be imposed.
(a) . . (b) in the case of members of Class III and IV services by the authority empowered in this behalf by the appointing authority.
Explanation.
In this rule the expression "appointing authority" includes an officer empowered under Rule 10 to make first appoint ments to Class III and Class IV Services.
" Rules 11 and 12 of the 1965 Rules correspond to Rules 13 and 14 of 1952 in all material aspects, excepting two, namely, (1) Suspension has been taken out of the category of penalties, and (2) the Explanation appended to Rule 14 has been omitted because in the 1965 Rules, the subject matter of that Explanation has been made a part of the definition of "Appointing Authority" given in Rule 2(a).
The main submission of Mr. Sachthey learned Counsel for the appellant is that by an order communicated per letter, dated 27 4 1956, made under Rule 10 of the 1956 Rules, (.subsequently reiterated in letter dated 23 1 1963) the Engineer in Chief had empowered all Chief Engineers in Military Engineering Service to make first appointments, inter alia, to posts in Class III Service, and that the operation of the aforesaid order was preserved and contin ued by the saving clause in Rule 34(1) of the 1965 Rules.
On these premises, it is maintained, that the High Court was wrong in holding that the Chief Engineer of the North Western Zone, Chandigarh.
was not the 'appointing authority competent to remove the accused from service.
As against this, Mr. Hardyal Hardy, learned Counsel for the respondent submits that the order, dated 27 4 56, ex pressly delegates the power of making first appointments.
only to the Chief Engineers of the three Commands, then in existence, and to the other authorities specified therein.
It is pointed out that in 1956 when this order was made, there were no Zonal Chief Engineers which came into exist ence on reorganization in December 1962, as a class apart, working under the orerail administrative control of the Chief Engineers of Commands.
The point pressed into argu ments is that a general delegation of the power in favour of Chief Engineers of Commands, as a class, cannot, by any reckoning, amount to a delegation in favour of the Zonal Chief Engineers, also, working under the control of the Chief Engineers of Commands.
Mr. Hardy has further submitted that the letter dated 23 1 1963 has not been issued under the signature of the Engineer in Chief, nor can it, by any stretch of language, be construed as a delegation of the power of appointment under Rule 10.
In the alternative, it is submitted the power delegated by the Engineer in Chief to the Chief Engineers was a qualified one inasmuch as no power was given to them to dismiss 599 or remove a Government servant of Class III Service.
It is maintained that by the aforesaid letter, the Chief Engineers were empowered to impose only minor penalties other than that of dismissal and removal.
It is urged, in view of this restricted delegation in the matter of inflicting.
penalties, it cannot be said that on the principle underly ing Sec.
16 of the General Clauses Act power of appointment will automatically include the power to remove the person appointed from his office.
In reply, Mr. Sachthey has pointed out that the fetter placed on the power given to the Chief Engineers by the letter dated 27 4 56, in the matter of removal or dismissal of Class III servants, operates only in case of persons appointed by the Engineer in Chief, and not where he was appointed by the Chief Engineer of a Command.
It is pointed out that in the instant case, the accused was appointed not by E in C but by the Chief Engineer, Western Command, Simla.
The main question that falls to be considered is whether the E in C 's order communicated through letter, dated 27 4 1956, can be construed as a valid delegation of the power of appointment tO posts in Class III Service to Zonal Chief Engineers, which came into existence on re organization in December, 1962 ? The material part of this letter reads as under: "TO The Chief Engineer, Southern Command, Poona Eastern Command, Lucknow Western Command, Simla X X X Subject: Civilians in DefenCe Services (Classification, Control and Appeal Rules, 1962).
With reference to Rule 10 of the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1962, I hereby authorise the authorities mentioned hereunder to make first appointments to Class III and IV Services to the extent indicated below: Authority Posts (a) Chief Engineers . .
All posts with the excepetion of per (b) CWO, NDES . .
manent appointments to the following categories: (i) Superintendent, B/R Grade I. * * * 2.
Under Rule 14(b) of CDS (CC&A) Rules, 1952 the under mentioned authorities are empowered to impose penalties referred to in Rule 13 ibid, to the extent indicated below : (a) Chief Engineers and Penalties at (i), (ii), (iv) and (v) of Rule 13 on Class III employees in respect of whom E in C is the appoint ing authority," 600 A perusal of this letter will show that it is (among others) addressed to the Chief Engineers, Southern Command, Eastern Command, Lucknow, and Western Command, Simla.
On the date of this letter there were only three Commands; two commands were created subsequently.
There were no Zones or Zonal Chief Engineers at that time.
Therefore, the Chief Engineers to whom the powers have been delegated under this letter could only be the Chief Engineers of the Commands, as a class.
Since the delegation has been to the Chief Engi neers of the Commands, as a class, it will cover the Chief Engineers of these Commands, also, which were subsequently created.
But, the question is will it take in Chief Engi neer of Zones and amount to a delegation of power in their favour, too, on their creation six years later in 1962 ? Answer to this question will depend on whether the Chief Engineers of Zones belong to the same class holding the same rank and exercising same administrative powers and control as the Chief Engineers of Commands ? At the final hearing, we had asked Shri Sachthey, to make available to us the official order, regulations and like material throwing light on this aspect of the problem From the material furnished by him, it appears that the decision to reorganize the Military Engineering Service was taken by the Government in December, 1962.
Pursuant to that deci sion, the Zones were created and Engineering Services in each Zone were placed under the charge of a Chief Engineer, of that Zone.
Chandigarh area was also made North Western Zone, for this purpose.
This reorganisation took effect from January 1, 1963.
The main object of creation of Zonal Chief Engineers as stated in C in C 's letter No. 66161/II/E2A, dated 13 12 1962, was to "effect maximum possible decentralisation and thereby achieve speed and efficiency in the planning and execution of work services.
" As is apparent from the letter dated 22/26 12 1962 from the Engineer in Chief, the Zonal Chief Engineers have to work "under the command and technical control of CEs Com mands for the planning and execution of works.
" E in C 's letter, No. 6161/II/E2A, dated December 13, 1962 addressed to the Chief Engineers, Commands and others, also, makes it clear that under the re organized set up, "C.E. located at each Command H.Q. will be responsible for all engineer matters in the Command, administration and training of engineer troops and for the coordination of works.
Under the Command and technical control of this Chief Engineer there will be number of CEs/CSWE. on zonal basis.
" These two letters unmistakably show that the zonal Chief Engineers are a class apart from the Chief Engineers of Com mands.
Although extensive financial powers have been dele gated to the Zonal Chief Engineers, which are almost the same as that of the Chief Engineers of the Commands, the fact remains that they are under the overall administrative control of the Chief Engineer of the Commands concerned.
601 In this view of the matter the scope of the delegation of the powers made under the letter dated 27 4 1956, must be construed as a delegation only to the Chief Engineers of Commands, as distinguished from the Chief Engineers of Zones which were then not even in embryo.
This takes us to the letter dated January 23, 1963 from the Army H.Qrs., E in C 's Branch.
In the first place, this letter is not signed by the E in C.
It appears to have been signed by some other person "for E in Chief"; secondly it does not purport to have been issued pursuant to any sepa rately passed order of the E in C expressly delegating under Rule 10, the powers of appointment to posts in Class III Service.
The opening sentence of this letter, no doubt, refers to HQ Letters No. 66161/II E2A, dated 8 Dec. 1962, para 4 and even No. of 22 Dec. 1962, which we have already noticed.
There is nothing in them which delegates the powers of appointment to any posts to the Zonal Chief Engi neers.
On the contrary, para 8 of this letter says "All Class III and IV personnel will be provided by the Command CE and will continue to be borne on the strength of that Command for purposes of (a) All documentation (b) Temporary promotion (c) Permanency (d) Retrenchment and reversion (e) Pension progress by the Unit but overall control by the Command CE." (Emphasis added) Mr. Sachthey has placed great stress on para 12 of this letter which says: "The normal powers of Chief Engineer in all matters relating to appointments, punish ments etc.
vest with each Zonal Chief Engi neer in accordance with this HQ letter No. 27304/ELD(2) dated 27th April 1956.
In exer cising these powers it will be necessary to consult CE Command prior to recruitment and replacements.
" The argument advanced on behalf of the appellant is that the very authority that had issued the letter dated April 27, 1956 has construed it as delegating the powers of ap pointment, punishment etc.
to the Zonal CEs.
also, and therefore, the Court should accept that interpretation.
We are unable to accept this argument.
We have already pointed out that this letter, dated 23 1 63, has not been issued under the signature of the same authority from which the order, dated 27 4 56, had emanated.
It does not ex facie show that any order, apart from that dated 27 4 56, had been passed by the Engineer in Chief under Rule 10.
For reasons given earlier, we have no hesitation in holding that the assumption made in Paragraph 12 of this letter ex tracted above, to the effect that the Zonal Chief Engineers were vested with powers of appointments, punishments etc.
in accordance with H.Q. letter dated 27 April 1956 was clearly incorrect, Perhaps, that was why on 14 1 1972, the necessity of making a proper order delegating such powers to Zonal Chief Engineers and others, under Rule 9 was felt by the Engineer in Chief.
602 No other order of the Engineer in Chief made prior to 24 6 1971 under Rule 10 of 1952 Rules or under Rule 9(1) of the 1965 Rules delegating the power of appointment to posts in Class III Services, has been placed before us.
We have therefore no alternative but to hold that on 24 6 1971, Brig.
Naresh Prasad, Zonal Chief Engineer, North Western Zone, Chandigarh, was not competent to remove the accused respondent, Tandon, from the post of Superintendent, B&R Grade I, Chandigarh and as such, the order sanctioning the prosecution of the respondent was bad in law.
In view of this finding, we do not think it necessary to examine the alternative contention advanced by Shri Hardy.
The case fails because there is no valid sanction, as re quired by the law.
Obviously, this does not preclude a fresh prosecution for the same offence but it is a matter for the State, in the circumstances of the case, to consider whether prosecution should be launched against the respond ent or not.
We make this observation only to remove a possible misapprehension.
In the result, the appeal fails and is dismissed.
P.H.P. Appeal dismissed.

summary:
The respondent was convicted for an offence under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947 and section 161 of the I.P.C.
The conviction was set aside by the High Court on the sole ground that the sanction for his prosecution was not accorded by a competent authority.
The respondent was a Civilian in the Defence Services in the rank of temporary Superintendent, Building and oRads Grade I. The prosecution case was that he had accepted illegal gratification of Rs. 300/ from one Brij Bhushan Lal,Contractor, as a motive or reward for doing an official act.
The sanction for the prosecution of the re spondent was accorded by Brig.
Naresh Prasad Chief Engineer, North Western Zone, Chandigarh.
The High Court held that Brig.
Naresh Prasad had no authority under the relevant rules either plenary or dele gated to appoint a person to a post in class III service at the time when he passed the order for sanction of prose cution.
That such a power was delegated to him subsequent ly.
The learned Judge held that the authority was the Chief Engineer, Western Command and not the Zonal Chief Engineer.
Section 6(1) of the Prevention of Corruption Act pro vides that no Court shall take cognizance of the offence in question alleged to have been committed by a public servant except with the previous sanction of the officer enumerated in clauses (a), (b) and (c) of that section.
Sub section 2 of section 6 further provides that where for any reason whatsoever any doubt arises whether the previous sanction as required under sub section (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.
The appellant contended that by an order communicated by letter dated 27 4 1956 (subsequently reiterated in letter dr. 23 1 1963) made under rule 10 the Engineer in Chief had empowered all Chief Engineers in Military Engg.
Service to make first appointments and that the operation of the said order was preserved by the saving clause in rule 34(1) of the 1965 Rules.
The appellant further contended that the fetter placed on the power given to the Chief Engineers in the matter of removal or dismissal of Class III servants operates only in case of persons appointed by the Engineer in Chief and not where he was appointed by the Chief Engi neer of a Command.
In the present case, the respondent was appointed not by Engineer in Chief but by the Chief Engi neer, Western Command.
The respondent contended that the order dated 27 4 1956 expressly delegates the power of making first appointments only to the Chief Engineers of the three commands then in existence and of the 'other departments specified therein.
In 1956, when the order was made there were no zonal Chief Enginers, which 594 came into existence in December, 1962 as a class apart working under the overall administrative control of the Chief Engineers of Commands.
A general delegation of the power in favour of the Chief Engineers of Commands as a class cannot by any reckoning amount to a delegation in favour of the Zonal Engineers also working under the control of the Chief Engineers of Commands.
Secondly, the letter dated 23 1 1963 was not issued under the signature of the Engineer in Chief nor can it be construed as a delegation of the power of appointment under rule 10.
Alternatively, the power delegated by the Engineer in Chief to the Chief Engi neers was a qualified one inasmuch as no power was given to them to dismiss or remove a Government servant of Class III service.
Dismissing the appeal, HELD: (1 ) Unless a different intention appears the power to appoint to an office includes the power to dis miss or remove from that office as provided in section 16 of General Clauses Act.
The post which the respondent was holding is a post of Class III service and the members of the service are governed by Central CiVil Services (Classi fication, Control and Appeal) Rules, 1965.
1965 Rules repeal the earlier 1952 Rules and any notification or orders issued thereunder in so far as they were inconsistent with the 1965 rules.
Under rule 10, appointments to Class III and Class IV Civilian Service are to be made by the officers empowered by the Engineer in Chief.
Thus the appointing authority is competent to delegate the power of appointment.
[596 B, C, G H, 597D] (2) A perusal of the letter dated 27 4 1956 communicat ing the order of the Engineer in Chief shows that it is addressed to the Chief Engineers, Southern Command, Eastern Command and Western Command.
On the date of this letter there were only 3 Commands; two Commands were created subse quently.
There were no Zones or Zonal Chief Engineers at that time.
Therefore, the Chief Engineers to whom the powers have been delegated under this letter could only be the Chief Engineers of the Commands as a class and it would cover Chief Engineers of the Commands which were subsequent ly created.
But it would not include the Chief Engineers of Zone.
Zonal Chief Engineers have, to work under the Command and technical control of Chief Engineers of Com mands.
Zonal Chief Engineers are a class apart from the Chief Engineers of Commands.
They are under the administra tive control of the Chief Engineers of Command.
Thus the delegation is to the Chief Engineers of Commands and not to the Zonal Chief Engineers.
[600 A B, F H 601 A B] (3) The letter dated 23 1 1963 is not signed by the Engineer in Chief.
It appears to have been signed by some other person for Engineer in Chief.
Nor does it purport to have been issued pursuant to any separately passed order of the Engineer in Chief expressly delegating the powers of appointment to posts in Class III service under Rule 10.
There is nothing in the letter to show that the delegation was to the Zonal Chief Engineers.
On the contrary, para 8 of the letter talks of the Command Chief Engineers.
The way in which the Engineer in Chief has construed the letter is not relevant.
[601 G H, 602AB] (4) Brig.
Naresh Prasad, Zonal Chief Engineer was not competent to remove the respondent and as such, the order sanctioning the prosecution of the respondent was bad in law.
[602 C]