1. The appellant/accused being aggrieved by the judgment dated 29-7-97 passed in Special Case No. If/89 by the learned 5th Addl. Sessions Judge/Special Judge (C.B.I.), Jabalpur, convicting the appellant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentencing him to undergo R.I. for 2 years under each count and pay fine of Rs. 2,500/- under each count, in default of payment of fine to undergo R.I. for 6 months under each count, has filed this appeal.
2. The prosecution case in brief is that the accused/appellant Ram Swaroop Rathore who was posted as Chargeman Grade-I in the Vehicle Factory, Jabalpur, with the help and assistance of Vijay Kumar Tiwari made a demand from C. Bhatacharya an engineer of M/s. Adwani Orelicon Limited.
3. The accused Ram Swaroop was working as Chargeman Grade-I in the w.i. section of vehicle Factory, Jabalpur. Another accused Vijay Kumar Tiwari (since acquitted) was posted in Examiner section (skilled) and A.M. Section. On 2nd June 1989 the accused V.K. Tiwari went to M/s. Yogesh Trading Company who was dealer of M/s. Adwani Orelicon Ltd. and gave a visiting card and also a written slip containing a message of another accused Ram Swaroop that C. Bhhatacharya should meet the accused Ram Swaroop in Kingsway Bar between 7.00 to 9.00 p.m. The said C. Bhhatacharya went to Kingsway Bar at about 7.20 p.m. where after about 10 minutes accused also came. The accused Ram Swaroop demanded a sum of Rs. 700/- from the said Bhhatacharya for issuing inspection slip. C. Bhhatacharya informed the accused that after discussing the matter with Mr. J.M. Patel, a partner of Yogesh Trading Company, he would inform the accused. On 5-6-89 the said C. Bhattacharya met the accused and agreed to pay the demanded amount of Rs. 700/-. When the amount was asked for, the said C. Bhhatacharya informed the accused Ram Swaroop that as he was not possessed of the money he would pay it later. The accused Ram Swaroop asked the said C. Bhhatacharya to bring the money near the scooter/cycle stand of Vehicle Factory. The said C. Bhhatacharya gave a written report to the Superintendent of Police C.B.I. inter alia submitting that he was not ready and willing to pay the money and was interested in seeing that the accused was caught. The report Ex. P. 14 was lodged on 5-6-89. After receiving the report. C.B.I. Inspector R.K. Shukla asked the said C. Bhhatacharya to bring a sum of Rs. 700/-. In presence of PW.-4 K.K. Sareen and PW.-7 Randhir Kumar Sahni the first information report was verified and thereafter the preliminary Panchnama was prepared, after putting the phenolphthalein powder on the currency notes they were given to C. Bhhatacharya with the instructions that after giving the notes to the accused he should scratch his head. Thereafter C. Bhhatacharya, Som Shekhar, K.K. Sareen PW.4 and PW.7 Randhir Singh went to gate No. 6 of Vehicle Factory, Jabalpur. The said C. Bhhatacharya met the accused Ram Swaroop and gave him a sum of Rs. 700/-. After giving the clue as settled the authorities/police pounced upon the accused, caught him on the spot and recovered the money from the possession of the accused. Thereafter the hands of the accused were washed. The said liquid became pink. The number of the notes were compared with the Panchnama and thereafter Panchnama Ex. P. 17 was prepared on the spot which was signed by C. Bhhatacharya, witnesses and the accused R.S. Rathore. After completing the investigation, necessary sanction was obtained and challan was filed before the competent Court.
4. The learned trial Court was pleased to frame the charges under Sections 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988, read with Section 120B of the I.P.C. against the present appellant, while against accused V.K. Tiwari charges under Section 13(1)(d)/13(2) of the Prevention of Corruption Act and Section 120B, IPC were framed. After recording the evidence and hearing the parties, the learned trial Court acquitted the co-accused V.K. Tiwari and convicted and sentenced the present appellant as referred to above. Being aggrieved by the said conviction and sentence the appellant has preferred this appeal.
5. Shri Surendra Singh, learned counsel for the appellant has submitted that as sanction was not given by the competent authority, the conviction of the appellant is bad and on this short ground the appeal deserves to be allowed. He further submitted that as C. Bhhatacharya and Som Shekhar have not been examined by the prosecution and as factum of demand has not been established, mere recovery is not sufficient to record conviction of the appellant. Referring to the merits of the case he has also submitted that as there are material contradictions in the statement of the witnesses the benefit of doubt ought to have been given to the accused.
6. Shri R.S. Patel, learned counsel for the respondent vehemently opposing the submission of the learned counsel for the appellant, has contended that in view of the language of Section 19 of the Prevention of Corruption Act the question of sanction has become immaterial. He submits that as the accused is unable to show that any prejudice was caused to him, he is not entitled to be acquitted on this ground. He further submitted that from the evidence of the other witnesses it is clearly proved that a demand was made by the accused, a report was lodged by C. Bhhatacharya, preliminary Panchnama was prepared, accused was caught red handed, money was recovered from him and as final Panchnama bear the signatures of number of persons who have testified the same in the Court, therefore, there is no scope to say that the demand is not proved or there are material contradictions in the statement of the witnesses. I have heard the parties at length and have perused the records.
7. So far as the question of sanction is concerned, a perusal of Section 19 of the Prevention of the Corruption Act would be necessary. Section 19 of the Act reads as under :-
19. Previous sanction necessary for prosecution.-
(1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not remoable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the 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.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under Sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation.- For the purposes of this section,-
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
8. Sub-section (1) of Section 19 clearly issues a mandate against every Court that it shall not take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15, except with the previous sanction of a particular authority. The mandate issued under Section 19(1) is final but Section 19(1) is over shadowed by Sub-section (3) of Section 19 which provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. Sub-section 3 further provides that no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice. Sub-section (4) of Section 19 provides that in determining under Sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall not have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. For the purposes of Section 19 an error includes competency of the authority to grant sanction. A fair reading of Section 19 would show that in absence of sanction though a Court cannot take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the Act but notwithstanding anything contained in the Code of Criminal Procedure, 1973, no findings, sentence or order passed by the Special Judge shall be reversed or altered by a Court of appeal unless in absence of legal sanction failure of justice has occasioned. The error in granting sanction would include the competency of the authority to grant sanction. The submission of the learned counsel for the appellant that the sanction was granted by person who was not competent to remove the petitioner as he himself was not the appointing authority on the date of the appointment can straightway be rejected in view of Section 19 of the Prevention of Corruption Act. Learned counsel though submits that the objections regarding valid sanction was raised at the very initial stage but this argument now would not be available to the appellant in view of Section 19(3) read with Section 19(4) of the Prevention of Corruption Act. If the error in granting the sanction includes competency of the authority to grant sanction and such an error would not clothe the appellate Court to set aside any finding, sentence or order passed by the Special Judge, then raising of the objections at the very early or initial stage would be of no assistance to the appellant. The law is clear in its term and puts an end to an objection sought to be raised before the appellate or revisional Court which otherwise could be raised before the trial Court under Section 19(1) of the Act. It may appear to be little fallacious that on one side Section 19(1) forbids a Court from taking cognizance of an offence but at the same time Section 19(3) forbids the appellate Court from reversing or setting aside a finding, sentence or order passed by the Special Judge. But in fact there is no fallacy if Section 19 is read in its true prespective and real spirit. It would clearly appear from the provisions of law that the basic jurisdiction is with the trial Court to decide the question regarding sanction and if the trial Court is satisfied about the competency of the authority to grant sanction then on the question of the absence of, or any error, omission or irregularity should not provide a foundation in favour of the accused to ask for an acquittal.
9. In the matter of State of Orissa v. Mrutunjaya Panda; 1998 Cri LJ 782 (SC), while setting aside the judgment of the Orissa High Court the Supreme Court while appreciating the provision of Section 465 of the Code of Criminal Procedure observed that any error or irregularity in any sanction for the prosecution shall not be a ground for reversing an order of conviction by the appellate Court unless in the opinion of that Court a failure of justice has in fact been occasioned thereby. Section 19(3) is a statutory bar on the powers of the appellate Court. Taking advantage of the Judgment of the Supreme Court in the matter of State of Orissa (supra), I find no difficulty in holding that a person is not entitled to seek acquittal on the ground of absence of, or any error, omission or irregularity in the sanction required under Section 19(1), unless the appellate Court is of the opinion that failure of justice has in fact been occasioned thereby.
10. Learned counsel for the appellant submitted that as the objection was raised at the earliest and initial stage in the proceedings and as the trial Court did not decide the issue right in time, this Court must hold that a prejudice and failure of justice in fact has been occasioned. I am unable to concede to the argument of the learned counsel for the appellant. Prima facie, I am unable to hold that such error, absence or irregularity occasioned a failure of justice. In view of the language of Section 19(3) of the Prevention of Corruption Act, I am unable to hold that the appellant is entitled to press in service, the question of competency of the authority to grant sanction or to say before this Court that the sanction was not given by the competent authority.
11. Section 13 of the Prevention of Corruption Act reads as under :-
13. Criminal misconduct by a public servant.-
(1) A public servant is said to commit the offence of criminal misconduct,-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the persons so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation.- For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.
12. For the purposes of proving a case under Sections 7 and 13 of the Prevention of Corruption Act the prosecution is obliged to prove that there was demand of money which was not legal or in other words that the public servant was demanding illegal gratification in respect of an official act and he in fact received or obtained the money as an illegal gratification, by corrupt or illegal means or by abusing his position as a public servant, or while holding office as a public servant only then a person can be convicted. The recovery dehors the demand would not be sufficient to convict the accused.
13. In the matter of Suraj Mal v. State (Delhi Admn.) AIR 1979 SC 1408 : 1979 Cri LJ 1087, while appreciating the provisions of Section 5(1)(d) of the Prevention of Corruption Act, 1947 the Supreme Court has observed that in a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence regarding demand is not reliable. Similarly in the matter of Suresh Kumar v. State of M.P., 1994 Jab LJ 247 : 1994 Cri LJ 3738 this Court held that in absence of the proof of demand by substantive evidence, mere recovery divorced from the circumstances, under which it was paid is not enough to raise a presumption against the accused.
14. Undisputedly the complaint Ex. P. 14 was made by C. Bhhatacharya. The said C. Bhhatacharya has not been examined by the prosecution. The learned trial Court has observed that number of the summons were issued for C. Bhhatacharya to secure his attendance but every time the Court was informed that his whereabouts were not known. Similarly reports about Som Shekhar were received that he had gone to Dubai. Similarly for witness Ramesh Dhage, the Court was informed that the witness Ramesh Dhage was not traceable. The learned trial Court without appreciating the provisions of law that in absence of the examination of the original complainant - the first information report which is a former statement of the first informant does not stand proved. The person who received the report can only prove that such report was submitted before him but he would not be legally entitled to prove the contents of the documents or the correctness of the statements made in the said report. In my opinion, the Court was not justified in observing that in absence of the examination of the complainant if the facts prove that an offence was committed then the Court is competent to convict the accused for an offence under the Indian Penal Code, therefore, in a case like present accused could be convicted. The said principle may be right in some cases where others can prove commission of offence but in a case where the prosecution is required to prove the fact of demand and acceptance of the money then the demand can only be proved by the person from whom it was made. True it is that the other witnesses have said that in presence of them C. Bhhatacharya stated that the accused was demanding Rs. 700/- but the statement made by C. Bhhatacharya that the accused demanded the money could only be proved by C. Bhhatacharya. The person who received the information either on the basis of the written report or from C. Bhhatacharya cannot say that the information supplied to him was true or correct. The fact of demand can only be proved by the person from whom it was made. In the matter of Suraj Mal (1979 Cri LJ 1087) (supra) the trial Court acquitted one Ram Narain on the ground that there was no sufficient evidence against him. The High Court acquitted the accused Devendra Singh on the ground that the sanction was not valid. The Supreme Court after appreciating the evidence observed that the evidence against the accused before them was shaky and unreliable. In the said case though the money was recovered from the possession of the appellant but the Supreme Court observing that fact of mere recovery of the money divorced from the circumstances under which it was paid was not sufficient to convict the accused when the substantive evidence in the case was not reliable. In the matter of Suresh Kumar (1994 Cri LJ 3738) (supra) this Court observed that even if the complaint was taken to be a genuine document, the same could not be taken as a substantive evidence. This Court also observed that the complaint contained only a former statement of the complainant that the accused had demanded a sum of Rs. 200/- from him for making payment of the last instalment of the loan. This Court also observed that former statement could either be used to corroborate under Section 157 of the Evidence Act or to contradict that evidence under Section 145 of the Evidence Act. The Court observed that in absence of the substantive evidence or deposition of the witnesses given in the Court, it was wrong on the part of the trial Court to base a decision on what was merely a 'former statement' or a witness contained in the complaint.
15. It is trite law that the complaint or the first information report cannot be used as substantive evidence of the truth of the facts stated therein. The statements can only be used to show that the evidence of those witnesses given in the Court was false. The said statement cannot establish that what was stated out of the Court in the said complaint or in the first information report was true. In the matter of Suresh Kumar (1994 Cri LJ 3738) (supra) the Court found that as the complainant Phalwan Singh and other witness Kalyan Singh turned hostile there was no evidence in support of the prosecution story that accused Suresh Kumar demanded a sum of Rs. 200/-. In the case on hands, there is no evidence to prove that the accused demanded the illegal gratification. True it is that the recovery was made from the accused but the fact still remains that the prosecution has failed to prove that any demand was made by the accused.
16. In absence of positive, cogent and clinching evidence about the demand, it would not be possible to hold that the accused made a demand and in furtherance of the demand obtained the money from the complainant.
17. Disagreeing with the trial Court, I hold that the prosecution has failed to prove its case beyond doubt. The appeal deserves to and is accordingly allowed. The accused is acquitted of all the charges.
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