Vishwanath Shivpujan Dubey v. State Of M.P .

JUDGMENT V.K. Agrawal, J.

1. The accused/appellant has been convicted under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act (hereinafter referred to as 'the Act' for short) and under Section 161 of the Indian Penal Code and has been sentenced to undergo R. I. for 1 year and to pay fine of Rs. 500/- by judgment dated 31-12-1992 in Special Case No. 32/1986 by Special Judge, Jabalpur.

2. The case of the prosecution, stated in brief, is that the accused/appellant Vishwanath Prasad Dubey, at the time of incident, i.e., on 20-4-1985 was posted as A.S.I. at P.S. Kotwali, Jabalpur. An offence (Crime No. 193/85) under Section 341 read with Section 34 of the Indian Penal Code was registered against the complainant of this case Madan Mohan (P.W. 6) at Police Station Kotwali, Jabalpur. The accused/appellant was entrusted with the investigation of the said crime. The accused/appellant went to the house of complainant Madan Mohan on 19-4-1985 and told him that he would be arrested and taken into custody and asked Madan Mohan to pay him Rs. 500/-, if the former wished to be released on bail. The complainant Madan Mohan did not pay the above amount to the accused/appellant, whereupon the appellant told Madan Mohan that he would be coming again in the evening and by then the amount as above should be arranged, otherwise he would be arrested.

3. The complainant Madan Mohan thereafter approached the Superintendent of Special Police Establishment, Lokayukt, Jabalpur and submitted an application (Ex.P/6) to him about the incident and the demand as above. The trap was arranged by Special Police Establishment and the accused/appellant was handed over 5 currency notes of Rs. 100/- each, which were smeared with Phenolphthelein Powder. Preliminary Panchnama (Ex.P/7) was prepared. As per plan for the trap, the above currency notes were handed over by the complainant Madan Mohan to appellant and he thereafter gave the pre-arranged signal to the trap party. The trap party arrived on the spot and apprehended the accused/appellant, who was found in possession of the currency notes which were seized from him. Panchnama of trap proceedings (Ex. P/12) was prepared. Other usual formalities of investigation were concluded and after obtaining sanction (Ex. P/5), the charge-sheet was filed against the accused/appellant.

4. The learned trial Court framed charges under section 161 of the indian penal code and under section 5(l)(d) read with section 5(2) of 'the act' against the accused/appellant. He abjured guilt. By the impugned judgment, the charges framed as above were held to be proved, beyond reasonable doubt. The accused/appellant was accordingly convicted and sentenced as has been mentioned above.

5. The learned counsel for the accused/appellant has not challenged the finding regarding demand by the appellant and payment of the tainted money to him by the complainant as also the trap proceedings, but he has submitted that sanction for prosecution has not been duly proved in the case. It has been urged in the above context that document (Ex.P/5) cannot constitute sanction, inasmuch as, the same is not the original order of sanction, but is only a copy thereof. Therefore, it has been urged that as primary evidence of sanction has not been produced in the case, the secondary evidence regarding sanction cannot be taken into consideration. Therefore, the prosecution case cannot succeed in the absence of proper proof of sanction.

6. Section 6 of the Prevention of Corruption Act, 1947, provides that no Court shall take cognisance of an offence under Sections 161, 164, 165 of the Indian Penal Code or under Section 5(2) and 5(3)(a) of the Prevention of Corruption Act against a Public Servant without the previous sanction either from the State or the Central Government or the authority competent to remove the Public Servant from his office as the case may be.

7. Thus, in view of provision as above of section 6 of 'the act', cognisance of offences mentioned in that section, can only be taken by a Court, when sanction for prosecution has been obtained. However Section 6 of the 'the Act' does not provide that the sanction should be obtained in any particular form or that it should necessarily be in writing. In Biswabhushan Naik v. The State of Orissa, AIR 1954 SC 359, which was also a case under Prevention of Corruption Act, 1947 it was observed that it is not necessary for the sanction under the Prevention of Corruption Act that it should be in any particular form or should be in writing or that it should set out facts in respect of which it was given.

8. Therefore, in the instant case, it has to be considered whether it has been proved by satisfactory and reliable evidence that proper sanction for prosecution of appellant, as per requirement of section 6 of 'the act', was duly obtained?

9. Prosecution, in the above context, has examined Mahesh Chandra Soni (P.W. 3), LDC in the Home Department of the Government of Madhya Pradesh. He has stated that the order of sanction (Ex.P/5) bears the signature of S.R. Gupta, Special Secretary. He has also stated that he had been working under Shri S. R. Gupta and is conversant with his signatures. He has stated that Shri S. R. Gupta signed the sanction order (Ex P/5) on 3rd January, 1986, when he was posted in the Home Department. He has further stated that he had brought the office copy of the sanction-order along with him from the office, and that document (Ex.P/5) is its copy.

10. On perusal of document (Ex.P/5), it would appear that the sanction for prosecution of the accused/appellant was thereby given and it is the copy of the original order, which is endorsed to Director, Special Police Establishment, Lokayukt, Jabalpur for information and necessary action and the endorsement as above is again signed by Special Secretary, Shri S.R. Gupta.

11. The submission of learned counsel for the accused/appellant is that the document (Ex.P/5) is not the original order of sanction and no evidence has been adduced as to why the original sanction-order was not produced. It was, therefore, submitted by the learned counsel that in the absence of primary evidence of sanction, i.e., the original order of sanction (Ex.P/5), which is the copy thereof, cannot be read in evidence. It has, therefore, been urged that prosecution has failed to prove that sanction for prosecution of the appellant was duly obtained.

12. As noticed earlier, the statement of Mahesh Chandra Soni (P.W.3) would indicate that he had brought with him the office copy of the sanction. It may also be noticed that the endorsement on the document (Ex.P/5) is also signed by Special Secretary, Shri S.R. Gupta himself, who had accorded sanction. Those signatures have been identified by Mahesh Chandra Soni (P.W. 3). It is common practice in the offices to prepare carbon copies of orders, memos, etc. and Ex.P/5 is also a carbon copy of the order of sanction, which appears to have been prepared along with the original order and signed simultaneously by the authority competent to grant sanction. Since the sanction-order (Ex.P/5) as above also bears the signature of the sanctioning authority, there appears to be no doubt that the sanction for prosecution of the accused/appellant was granted, as has been mentioned therein. The statement of Mahesh Chandra Soni (P.W. 3) that he has brought the office copy with him and which is in accordance with Ex.P/5 has not been challenged in cross- examination by the defence. Therefore, it cannot be doubted that sanction as mentioned in Ex. P/5 was accorded.

13. In Tulsiram and Ors. v. State of U.P., AIR 1963 SC 666, the question as to whether proper sanction was granted came up for consideration of the Apex Court. In that case, the prosecution had produced a letter written by Under Secretary to the Government of U.P., Home Department addressed to the District Magistrate, Kanpur informing him that the Governor has been pleased to grant sanction to the initiation of proceedings against the person mentioned in that order. It was urged in that case that a valid sanction must be a written order signed by the sanctioning authority and that no one can function as a substitute for the sanctioning authority and that, therefore, the communication by letter as above cannot be treated either as a valid sanction or its equivalent. Repelling the above contention, the Apex Court observed as below :-

"Though that document is not the original order made by the Governor or even its copy, it recites a fact and that fact is that the Governor has been pleased to grant sanction to the prosecution of the appellants for certain offences as required by Section 196A of the Code of Criminal Procedure. The document is an official communication emanating from the Home Department and addressed to the District Magistrate at Kanpur. A presumption would, therefore, arise that sanction to which reference has been made in the document, had in fact been accorded. Further, since the communication is an official one, a presumption would also arise that the official act to which reference has been made in the document was regularly performed."

It was accordingly held that the letter, which was placed on record meets the requirement of Section 196A of the Code of Criminal Procedure.

14. Similarly, in State of Rajasthan v. Tara Chand Jain, AIR 1973 SC 2131, the sanction by the Chief Minister was not produced and a witness was examined, who stated that the C.M. had signed the sanction. It was urged in that case that formal order of sanction having not been produced, the prosecution case could not succeed. It was held in that case that sanction for prosecution by the Chief Minister was necessary. It was observed that prosecution has led positive evidence as above that the sanction for prosecution was accorded by the Chief Minister.

15. In the instant case, as noticed earlier, not only the copy of the order of sanction (Ex.P/5) is placed on record, but the same bears the signature of the sanctioning authority on the endorsement thereof. The signatures have been duly proved. The order clearly appears to have been passed after considering the facts relating to the grant of sanction as detail, in the sanction- order itself. In the circumstances, it is clear from the above order as well as from the statement of Mahesh Chandra Soni (P.W. 3) that sanction was granted by the competent authority after due consideration of facts. Moreover, as copy of order of sanction (Ex.P/5) placed on record has been endorsed by Shri S.R. Gupta, Special Secretary in the usual course of discharge of his official duties; hence the sanction accorded as above, shall have to be treated as proper sanction. Therefore, the case of the prosecution would not suffer simply because the 'Original' order of sanction was not produced.

16. It may also be mentioned in the above context that the objection as above regarding non-production of original order of sanction does not appear to have been taken in the trial Court and is raised in this Court for the first time during the hearing of appeal. Since the sanction as above has been duly proved and no prejudice to the accused/appellant has been caused on account of non-production of the original order of sanction, he cannot take advantage of such a plea raised in this Court, for the first time. Accordingly, the contention as above of the learned counsel for the accused/appellant that the prosecution has failed to prove that due sanction was accorded, cannot be accepted.

17. The only other contention raised on behalf of the accused/appellant in this appeal is that in view of the old pendency of the trial and appeal, consideration in the matter of sentence should be shown to him. it has been urged in this connection that the trap in the case was laid on 20-4-1985. Charge-sheet in the trial Court was filed on 13-6-1986 and the impugned judgment was delivered after about 6 1/2 years thereafter on 31-12-1992 and the appeal is pending for about 5 years. It has also been urged that the appellant was aged about 56 years, at the time charge-sheet was filed and is now aged about 70 years and has been out of service for a long period. Relying on Fatte and Ors. v. State of M.P., AIR 1979 SC 1504, it has been submitted by the learned counsel for the appellant that it would not be just and proper to send the appellant to custody.

18. It may be noted in the above connection that under the Prevention of Corruption Act, minimum sentence of imprisonment for one year has been provided. Though, it is true that there is a long lapse of time after the appellant was trapped, but that by itself would not entitle him to be released, after a token imprisonment till rising of the Court, as has been submitted by his learned counsel. It may be noted that in A. Wattiao v. State of Manipur, (1995) 6 SCC 488, in which the appellant/accused was an I.A.S. Officer and was convicted under Section 5(l)(d) of the Prevention of Corruption Act, 1947 read with Section 120B of the Indian Penal Code in which a similar argument was raised. It was observed in that case that the considerations that he was a senior I.A.S. Officer or that he had number of dependants and that he was going to lose his job were irrelevant considerations because in every such case of a public servant, he is bound to lose his job. It was held that delay in trial was of some relevance, but it was also observed that the nature of such a case and the large number of witnesses to be examined makes the trial prolonged and, therefore, the delay in trial for about 5 years was held not a good ground for awarding sentence of imprisonment till rising of the Court and it was held that such a sentence would make a mockery of the whole exercise. In the facts and circumstances of the case, especially the length of time, which elapsed in the trial till the disposal of the case by the Apex Court, a sentence of imprisonment for six months was awarded to the accused/appellant of that case.

19. Similarly, in Satpal Kapoor v. State Of Punjab., AIR 1996 SC 107, the accused/appellant of that case was convicted under Section 5(2) of the Prevention of Corruption Act. It was found that the accused was an angina patient and was suffering from coronary disease, requiring medical attention and was aged about 60 years. A sentence of 4 months' simple imprisonment with sentence of fine was imposed.

20. In the instant case, the accused/appellant was a Police Officer. He asked for and accepted gratification for not arresting the complainant. Though, it is true that he is aged about 70 years and the trap was laid on 20-4- 1985, i.e. more than 13 years back, but the above consideration of long lapse of time, by itself would not justify awarding a token sentence of imprisonment till rising of the Court. Considering the age of the accused/appellant, the time which has elapsed since the incident of his trap, as also the fact that he has since retired from service, the accused/appellant is sentenced to undergo simple imprisonment for 4 (four) months and to pay fine of Rs. 5,000/- (Rupees Five Thousand), in default of which, he shall suffer further simple imprisonment for 2 (two) months.