CASES REFERRED:
AT PARAS
1. Crl. P. 2546/199 dd 31.3.97 -
H. Munianjanappa v. State
(Ref) 3
2. 2000(5) Kar. L.J 17 -
J.S Sathyanarayana (deceased) by L.Rs v. State by Inspector of Police, Karnataka Lokayukta, Madikeri
(Ref) 3
3. (1999)(B) SCC 501 -
Central Bureau of Investigation v. V.K Sehgal
(Ref) 3
4. (2000) 5 SCC 88 : AIR 2000 SC 870 -
State of M.P v. Shri Ram Singh
(Ref) 3
Sri A.H Bhagawan and Sri A.N Radhakrishna, Advocates for Appellant
Sri H.V Ramesh, HCGP for Respondents
JUDGMENT
Chinnappa, J.:—
The learned Special Judge, Mandya, in Spl. Case No. 37/91 tried the appellant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, (for short ‘the Act’). After analysing the evidence adduced by the prosecution by examining P.Ws 1 to 8, marked Exs. P-1 to P-14 and M.Os 1 to 9 and also the evidence of the appellant as D.W 1 has come to the conclusion that the appellant has committed the offence which was established by the prosecution beyond all reasonable doubt and after hearing both the parties, sentenced the appellant to undergo S.I for a period of 6 months and to pay a fine of Rs. 200/- in default of payment of fine to undergo S.I for a further period of 20 days for the offence punishable under Section 7 and also sentenced to undergo S.I for a period of one year and pay a fine of Rs. 200/- in default to undergo S.I for a further period of 20 days for the offence punishable under Section 13(2) of the Act which is assailed in this appeal by the appellant accused.
2. Heard both sides.
3. Sri A.H Bhagavan the learned Counsel for appellant at the very outset raised the contention that the sanction accorded as per Ex. P-14 is not issued by a competent person and there is no application of mind. Therefore, the appeal deserves to be allowed on that ground itself. In support of that argument, he also placed reliance on the Judgment of this Court in H. Munianjanappa v. State . Crl. P. 2546/199. wherein this Court has held that the Under Secretary to the Government of Karnataka is not a competent authority to issue sanction order and on that ground itself the criminal petition was allowed and the proceedings were quashed. He also placed reliance on a Judgment of this Court in J.S Sathyanarayana (Deceased) By L.Rs v. State by Inspector of Police, Karnataka Lokayukta, Madikeri . 2000 5 Kar L.J 17. wherein this Court has held that existence of valid sanction is prerequisite or condition precedent for the prosecution… it necessarily follows that if the sanction order is held to be bad in law and it will vitiate the entire proceeding. The consequences of quashing of the sanction order would be that the entire proceeding is vitiated and it necessarily follows therefore that the convictions and sentences recorded against the two appellants who were the two accused before the Trial Court will necessarily have to be set aside.
4. It is not in dispute that Ex. P. 14 has been signed by the Under Secretary to the Government Pradeep S. Rajanal who is examined as P.W 8 signed at Ex. P-14(a). In his evidence he has clearly stated that he received the report from the Director of Survey Settlement and Land Records on 16.2.91 with list of documents besides the documents shows in the list. He has referred to those documents in his evidence which he has perused and also the statements of P.Ws 1 to 6 C.Ws 7, 8, etc. and also who were examined by the Lokayukta Police and all other documents and he has put up a note before the higher authorities to prosecute the accused. Thereafter, the Secretary to Government in Revenue Department and the concerned minister gave permission to prosecute the accused. On the basis of this approval, he had put up a draft for issuing Government Order giving permission to prosecute the accused and when the same was approved, he issued the Government Order under the name of the Hon'ble Governor of Karnataka, but under his signature, as concerned under Secretary authorised to sign such G.Os The said G.O was issued on 2.4.91 as per Ex. P-14. From this it is clear that through P.W 8 had signed Ex. P-14 he had signed it only on the authorisation given by the competent authority. It is not that he who has granted sanction to prosecute the appellant but the competent officer has accorded permission. This part of the evidence of P.W 8 has not been demolished by the cross-examination. Under the circumstances, the first argument of the learned Counsel for the appellant that under Secretary is not the competent authority to issue sanction order in this case cannot be accepted and the same is rejected.
5. It is also clear from the evidence and also from the perusal of Ex. P. 14 that there is application of mind by the concerned officers before issuing the sanction order as per Ex. P-14 though it is not specifically mentioned with reference to the documents perused by the concerned officer but the evidence of P.W 8 makes it very clear that these documents were produced before the authority and thereby the authority had occasion to look into those documents and being satisfied granted sanction to prosecute him. Thus there is application of mind to accord sanction.
6. Further it is also necessary to mention that their Lordships of the Supreme Court have held in a decision reported in ((1997) 7 SCC 622 : AIR 1997 SC 3400) that the sanction implies application of mind. It is also held in (2001) SCW 3818 that merely because objection was raised at an early stage is not a ground to hold that there was failure of justice. Over-ruling objection on the ground of sanction does not result in failure of justice. Their Lordships have also further discussed the restriction on the power of the appellate Court to set aside the conviction on the ground of want of valid sanction for prosecution in a decision reported in Central Bureau of Investigation v. V.K Sehgal . 1999 B SCC 501. and have held that scope of interference by appellate or revisional Court with the conviction by the Trial Court for want of valid sanction for prosecution is impermissible. It is further held that absence or invalidity of sanction for the prosecution becomes immaterial once the unchallenged trial had ended in conviction. Effort to save the public servant from frivolous or vindictive or mala fide prosecution becomes meaningless if on trial he is in fact found guilty.
7. While considering Section 465 Cr. PC Their Lordships have held that it debars a Court of appeal or revision from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the sub-section (2) of Section 465 enjoins on the Court a duty to consider whether the accused has raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate Court.
8. It is no doubt true that the appellant has raised a contention before the Trial Court and therefore, the prosecution has examined P.W 8 the Under Secretary who had given detailed evidence as to how the sanction was granted and nothing to indicate that any prejudice is caused to the appellant in granting sanction to prosecute him. Therefore, viewed from any angle in this case, the contention of the learned Counsel in regard to validity, legality, etc. of the sanction order as per with Ex. P. 14 cannot be accepted and is liable to be rejected. Further the Court below considered these objections and rightly held against the appellant.
9. The learned Counsel for the appellant further argued that a case was concocted at the instance of one Puttaswamy who was working in the same office where the appellant was working. It is no doubt true that a suggestion was put to the P.W 6 that an enquiry is going on against the said Puttaswamy on the ground that he had created about 50 documents for his purpose and for the purpose of other 40-50 applicants which suggestion has been specifically denied but not even a piece of paper is produced by the appellant to show that the said Puttaswamy was brain behind this P.W 6 to concoct the case. With this background it is now necessary to refer to the other arguments advanced in this case.
10. The case of the prosecution in a nutshell is that the appellant was working as a surveyor in Survey Department, Mandya and P.W 6 Devegowda had made representations to the Tahsildar in regard to the cart path leading to the property bearing S. No. 63 of Honaganahalli owned by his mother-in-law repeatedly and ultimately the Tahsildar directed the appellant and the Revenue Inspector to go to the spot and conduct a survey to resolve the dispute. Accordingly, the appellant and the Revenue Inspector along with P.W 6 Devegowda went to the spot but the owner of the adjacent land objected for conducting the survey on the ground that the matter was pending before the Deputy Commissioner and also that no notice was issued to him in regard to the survey. Therefore, the appellant could not conduct the survey and returned to the office. Subsequently the said P.W 6 approached him to conduct the survey whereas the appellant demanded that if he paid Rs. 100/- he would take the necessary action. The P.W 6 expressed his difficulties and as the appellant had insisted he went to the Lokayukta on the advice of his Chowdappa. On receipt of the complaint as per Ex. P. 6 the respondent had directed P.W 6 once again to approach and ascertain as to whether he would conduct the survey or not. Accordingly, P.W 6 approached the appellant and the appellant insisted that he should pay Rs. 100/- Under the circumstance, P.W 6 Devegowda reported to the Lokayukta and paid Rs. 100/- to the Lokayukta with the denomination of one currency note of Rs. 50/-; 2 notes of Rs. 20/- and one of Rs. 10/- which were treated with phenolphthalein powder and entrustment mahazars were prepared as per Ex. P-1 and P-2 which were signed by P.W 1 K. Thammegowda and P.W 4 C. Joseph and thereafter, P.W 2. J. Nanjappa was asked to accompany the P.W 6 in whose presence the entrustment mahazar Ex. P-1 was prepared and the test of applying phenolphthalein also was done. P.W 6 accompanied by P.W 2 went to the office and it is stated by P.W 6 that the appellant demanded the money and therefore, he gave the currency notes to the appellant which he had put into his right hip pocket. Immediately as arranged, he gave the signal by scratching his head and the respondents entered and arrested him and seized the currency notes in the presence of panchas. They have also conducted the test of washing his hands, pant pocket, etc. Thereafter, they registered a case against him and after investigation filed charge sheet. From the evidence of P.W 6 it is abundantly clear that as the appellant declined to do the work entrusted to him by the Tahsildar, he was constrained to approach the Lokayukta and the evidence further discloses that the currency notes handed over by P.W 6 were recovered from him which he had kept in his hip pocket. The recovery of notes from the appellant has been fully established and not seriously disputed by the appellant. Under the circumstances, it is for the appellant to explain as to how he came in possession of these notes. It is held by Their Lordships of the Supreme Court in a decision reported in 2000 (8) SCC 22 that onus of proof is on the public servant to show that the amount received by him was not illegal gratification. There is no transaction between the appellant and P.W 6 or any other witness necessitating to pay Rs. 100/- to him.
11. In this case except the interested testimony of D.W 1 the appellant there is absolutely no other evidence to dispel the evidence adduced by the prosecution by examining P.Ws 1, 2, 6 and also the investigating Officer.
12. D.W 1 has stated that P.W 6 is a B.A Graduate and a close friend of Puttaswamy whereas, P.W 6 has clearly admitted that he is an illiterate person and he got even the complaint written from somebody. Even from the perusal of the evidence of DW1.the appellant in this case he made attempts to improve his case by denying that he had gone to the place to survey, the approachment of P.W 6 to complete the task, etc. The evidence is rightly rejected by the Court below. On the other hand, there is overwhelming evidence adduced by the prosecution to substantiate its case.
13. It is no doubt true that there is no written order issued by the Tahsildar directing him to conduct the survey in the presence of the R-1 but the Tahsildar who was examined before Court has categorically stated that he received several representations in connection with the cart-path and ultimately he directed the appellant to go to the spot to survey the property. If it was not his duty he would not have been asked by the Tahsildar to come to the spot. Further, the appellant also was dodging to conduct the survey obviously due to the fact that he was expecting money from P.W 6.
14. His presence on the particular day in office is spoken to by P.W 3 C.N Sanjeevappa the Sheristedar and he has specifically spoken about the fact that the appellant was present in office on that day and the attendance register is produced. The appellant has not denied this fact. The one hundred rupees of different denominations mentioned above were seized from his person under a mahazar and that also has been established. The evidence of the Investigating Officer clearly discloses the manner in which this investigation was conducted. P.W 2 and P.W 4 have no axe to grind against the appellant. They have fully supported the case of the prosecution. They are disinterested persons in this case. It is no doubt true that there are some minor discrepancies which tend to occur in a case of this nature. That itself cannot be a ground to reject the entire evidence of the prosecution. The Court has elaborately discussed the evidence of each witness and has rightly come to the conclusion that their evidence is not tainted with any doubt or they were in any way interested to see that the appellant was convicted in a false case. Under the circumstances, I have no hesitation to hold that the Court has come to the right conclusion that the appellant has committed the offence. At this juncture it is also relevant to refer to the Judgment of the Supreme Court reported in State of Madhya Pradesh v. Shri Ram Singh . 2000 5 SCC 88 wherein Their Lordships have observed while considering the object, scope and purport of the Act in general that procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and decided case under it. The Act was intended to make effective provisions for the prevention of bribe and rampant amongst the public servants. It is a social legislation defined to curb illegal activities of the public servants and is designed to be liberally construed so as to advance its object. Their Lordships have further observed at para 14 as follows:
“We are not satisfied with the finding of the High Court that merely because the order of the Superintendent of Police was in typed proforma that showed the non-application of the mind or could be held to have been passed in a mechanical and casual manner. As noticed earlier the order clearly indicates the name of the accused, the number of FIR, nature of the offence and power of Superintendent of Police permitting him to authorise a junior officer to investigate. The time between the registration of the FIR and authorisation in terms of second proviso to Section 17 shows further the application of mind and the circumstances which weighed with the Superintendent of Police to direct authorisation to order the investigation.”
From this it is clear that in this case, particularly the evidence of PW. 8 with reference to Ex. P. 14 it is clear that there was application of mind and all the materials were looked into by the competent authority while granting sanction. Therefore, this contention also is liable to be rejected.
15. Considering the observations and the principles laid down by Their Lordships of the Supreme Court referred to above, it is abundantly clear that it is a case where this Court has to dismiss the appeal as the materials available on record clearly establish the guilt of the appellant. Coming to the question of sentence also, I am of the firm view that the Court taking into consideration all the facts and circumstances has imposed sentence on the appellant which also does not call for interference.
Therefore, for the reasons stated above, this appeal has no merit and accordingly, it is dismissed.
The appellant is on bail. He shall surrender and serve the sentence imposed on him.