B.J.Shethna:-
(1) This appeal is arising out of the judgment and order of conviction and sentence passed by the leaned special judge, bharuch on 20 - 9 - 1986 in special case no. 3 of 1985 convicting the appellant - accused for the offences punishable under sec. 5 (2) of the prevention of corruption act. 1947 (for short "the act") and sec. 161 of the i. P. C. And sentencing him to suffer r. I. For two years and a fine of rs. 15,000. 00 (rupees fifteen thousand only) in default to further undergo r. I. For one year for the offence punishable under sec. 5 (2) of the act and further sentencing him to suffer r. I. For two years for the offence punishable under sec. 161 of i. P. C. However, substantive sentences of imprisonment are ordered to run concurrently. .
(2) We will first take up the contention of mr. Anandjiwala regarding sanction. Mr. Anandjiwala tried to argue that shri lade, who accorded sanction to prosecute the accused, was not the appointing authority of the accused and, therefore, he could not have accorded sanction to prosecute the accused. There is nothing on record to show that shri lade, who was under secretary and holding the charge of deputy secretary at the time of according sanction, was subordinate to the appointing authority of the accused in fact, no suggestion was made to shri lade or any of the prosecution witnesses that shri lade was not competent to accord sanction. It has become clear from the record that accused is only a class - ill government servant. Hence, it cannot be held that shri lade was not competent to accord sanction. Alternative submission of mr. Anandjiwala that there was no application of mind on the part of shri lade, who accorded sanction and, therefore, sanction should be held. To be bad. He submitted that as per the order dated 2 - 1 - 1985 of the learned single judge of this court, it was the secretary, who ought to have accorded sanction and not shri lade, who was deputy secretary. The papers regarding the application made by the accused to the home minister and the papers regarding re - investigation and the report of a. C. B were neither placed before shri lade nor they were considered by shri lade before according sanciion. The decision was taken by the secretary on 22 - 1 - 1985 to accord sanction to prosecute the accused, the file came back in the office of the secretary from the office of the chief minister only on 30 - 1 - 1985 and before that it was not permissible for shri lade to accord sanction. He had given the sanction simply relying upon report of a. C. B and the same is not permissible in view of the above facts. Thus, the order of sanction suffers from the vice of non - application of mind and, therefore, it should be declared bad and illegal. It is true that on application of the accused the home minister did make endorsement and ordered further investigation. Not only that he specifically ordered not to proceed further in the matter till the final report of reinvestigation was received. But the said report was received in the month of december 1984, which in fact was against the accused it is also true that the learned single judge of this court by his order dated 2 - 1 - 1985 directed the secretary to accord sanction within 15 days from the date of the receipt of the writ of the court. But that does not mean that there was prohibition on any officer other than the secretary, who would be competent to accord sanction, to accord sanction as per the order of this court. It is to be noted that purpose of filing that petition before this court by complainant was to see that the speedy decision be taken for according sanction to prosecute the accused in this case. Therefore, instead of the secretary according sanction, if the dy. Secretary accorded sanction, that would not vitiate the sanction as it is held by us that shri lade was competent to accord sanction. Bare reading of the sanction order exh. 9 clearly shows that before according sanction shri lade, who was holding the charge of the post of dy. Secretary, did consider the report of p. I. Of a. C b. In the case and also considered the relevant papers of the case and he was clearly satisfied that there was a prima facie case against the accused for prosecuting him for demanding and accepting rs. 20,000. 00 by way of illegal gratification from the complainant and, therefore, he accorded sanction. It may also be stated that a specific qusstion was put to shri lade in his cross - examination that he accorded sanction without applying his mind to the facts of the case, which he had specifically denied. In fact, it clearly emerges from the sanction order that before according sanciion he had taken into consideration relevant aspects of the ease and ultimately accorded sanction. Therefore, the submission of mr. Anandjiwala that the sanction order suffers from the vice of non - application of mind has to be rejected and it is rejected. .
(3) Next submission of mr. Anandjiwala is that the prosecution case that the accused demanded and accepted bribe money in presence of panch no. 1, who was completely unknown to him, is not at all believable. Mr. Anandjiwala lias relied upon the judgment of the supreme court in the case of g. V. Nanjundiah v. State (delhi admn.) , reported in air 1987 sc 2402. It is true that in para 2. Of the judgment the supreme court observed that, "it is common sense that a person would not accept bribe in the presence of a stranger" but in this case the accused has not straightway accepted the amount. He first inquired from the complainant about the panch and when the complainant told him that he was none else but his cousin brother and not to be worried about him, only threafter he demanded money from the complainant and accepted the same. The evidence of the complainant on this point has not at all been challenged in the cross - examination by the accused. It may also be stated at this stage that panch witness bachubhai p. W. 2 has also stated in his chiefexamination about the above talk between the complainant and the accused regarding demand and acceptance and on material aspects of the case he has fully supported the complainant. To our utter surprise his evidence has not at all been challenged in cross - examination on this aspect. Therefore, we have no hesitation in coming to the conclusion that the prosecution has proved its case beyond doubt that the accused demanded and accepted rs. 20,000/ - from the complainant in presence of panch no. 1.
" (at this stage it may be stated that when this court was about to rise at 4 - 45 p. M. Mr. Anandjiwala has circulated m. C. A. No. 1464 of 1993 in this appeal, which is filed under sec. 391 of cr. P. C. For permitting the accused to lead the additional evidence in this appeal. It may be stated that the hearing of main appeal commenced on 13 - 4 - 1993 in the first sitting, 14th was the holiday and we heard mr. Anandjiwala yesterday almost for the whole day and also today in the first sitting, and then proceeded with this judgment.)"
Mr. Divetia, learned a. P. P. Has strongly opposed this application on two counts : (i) that it is submitted at a very late stage and in the midst of the judgment after the appeal was fully heard, and (ii) that the application cannot be granted for enabling the accused to establish his defence at this stage. He submitted that it was open to the accused to prove the documents mentioned in this application through the witnesses, who were examined before the court and get it exhibited. He also submitted that in a criminal case like this, the supreme court or for that matter any court, should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution, as held by the supreme court. In the same manner, the accused also cannot be permitted to produce any documents by summoning those witnesses at such a belated stage. We are in complete agreement with the submission made by mr. Divetia. Those documents on record on which he wants to rely in support of his defence could have been brought on record by the accused before the trial court. Ha was represented by an able and a senior advocate in the trial court. The learned judge convicted the accused on 20 - 9 - 1986 and his appeal was admitted on 8 - 10 - 1986 by this court. This appeal was on the board for final hearing since 1 - 3 - 1993, but till yesterday no such application was made. In this application the accused has nowhere stated that the documents, which he wants to produce on record of this appeal, were not available with him and he has recently come in possession of the same. In our opinion, an application for leading additional evidence under sec. 391 of cr. P. C. Filed by the accused of only with a view to further delay the hearing of the case. If this court grants such application at this stage, then there would not be any end to any proceedings. It would be an unending process, to which this court cannot become a party. Under the aforesaid circumstances, it is required to be rejected and it is rejected.
(4) Before concluding the judgment we may state that mr. Anandjiwala tried to read the evidence of the witnesses, who are not of such importance. Therefore, we have not permitted him to read the same as we were fully convinced that the prosscutioa has proved its ease against the accused beyond reasonable doubt from the evidence of the complainant, panch witness bachubhai, i. 0. Shri vaghela and other witnesses. It would be a sheer waste of time of the court, if we permit such things.
(5) In view of above discussion, we do not see any substance in this appeal and, therefore, this appeal fails and it is dismissed. The judgment and order of conviction and sentence passed by the learned spl. Judge, bharuch on 20 - 9 - 1986 in special case no. 3 of 1985 is confirmed. The accused should surrender to custody forthwith.
(6) After we have completed the judgment, mr. Anandjiwala tried to submit a written application. According to him it has been stated in the application that he wanted to read the evidence of certain witnesses, which was not permitted by this court. As stated earlier, we have already considered oral contention of mr. Anandjiwala on this point and rejected the same. We are of the opinion that unending irrelevant oral arguments and mere reading evidence of witnesses not only increase the cost of the litigation but also contribute to the accumulation of arrears of cases and in the interest of expeditious disposal of cases, the same is required to be discouraged. In this case, as stated earlier, the matter was heard by us for a pretty long time for couple of days and as we were satisfied after going through the evidence of material prosecution witnesses that no error was committed by the learned judge in convicting the accused, therefore, we have not permitted mr. Anandjiwala to go on reading the evidence of the witnesses, who are not of any importance in this case. They are at the most, in the nature of supporting witnesses. In corruption cases, mainly three witnesses are important : (i) complainant, (ii) panch, and (iii) investigating officer. Now it is well settled that even if the complainant and the panch turn hostile and do not support the prosecution, conviction can still be based on the sole testimony of investigating officer. In this case, the complainant, panch and 1. 0. - all the three important witnesses have fully supported the prosecution case. Their evidence is found to be trustworthy and reliable by us. Therefore, there was no reason for us to interfere with the order of conviction recorded by the learned judge and, therefore, we have not permitted mr. Anandjiwala to go on reading the evidence of immaterial witnesses.
(7) Mr. Anandjiwala now submitted the affidavit of the accused on the point of sentence and requested this court to reduce the sentence. According to him the sentence imposed by the learned judge is unduly harsh. In support of his submission mr. Anandjiwala has tried to rely upon four unreported judgments of this court and also upon the judgment of the supreme court in the case of b. C. Goswami v. Delhi administration, reported in air 1973 sc 1457. In the affidavit the accused has stated that the incident took place on 4 - 4 - 1983 and ten years have passed in disposal of his appeal and because of the pendency of the appeal, he was under constant mental torture, which has affected his health. Not only he but his wife has also suffered because of his case and she has become a hypo tension patient. In support of his say he has produced medical certificates alongwith this affidavit. Mr. Anandjiwala further pointed out that the accused has received three heart attacks and, therefore, on medical ground also the sentence may be reduced to three months r. I. From two years r. I. And the fine of rs. 15,000. 00 be enhanced to rs. 35,000. 00. This submission on the sentence was made and the affidavit of the accused alongwith the certificates were produced after we have confirmed the order of conviction and sentence. However, in the interest of justice we have permitted mr. Anandjiwala after the judgment was over to argue on the point of sentence. Mr. Divetia, learned a. P. P. , strongly opposed this submission and submitted that in this type of corruption case, where it is proved by the prosecution that the accused demanded and accepted rs. 20,000. 00 no lenient view should be taken by this court and the sentence imposed by the trial court should not be reduced at all. To impose sentence is the discretion of the court and there cannot be any binding decision on the point of sentence. It is equally true that this court in some unrcported cases, which were cited by mr. Anandjiwala, has taken lenient view on the medical ground. But it depends upon the facts of each case. In this case the accused was a divisional accountant class iii servant. He accepted rs. 20,000. 00 bribe from the complainant and that too in the year 198. 3 when the value of rupee was much more. When he was convicted by the learned special judge on 20 - 9 - 1986 and ordered to pay rs. 15,000. 00 immediately on that very day, he deposited the said amount from his salary which was hardly rs. 2,400. 00 when he was under suspension. What does it show ? any further comment is required ? there is a delay of 10 years in disposing of this appeal after the commission of the offence, which took place on 4 - 4 - 1983. This circumstance is also considered alongwith other circumstances by this court in other cases for reducing the sentence. But in our opinion, this fact alone would never be a ground to reduce the sentence. This is the hierarchy of our judicial system that the appeals are heard after a pretty long time. It may be stated that corruption is rampant in our country and it is a social evil and hardly there would be any walk of life where there is no corruption. Therefore, to curb corruption heavy sentence of imprisonment is a dire need of the hour. The minimum sentence prescribed under the act is of one year and maximum is seven years. The learned special judge after considering the entire facts and circumstances of the case, thought it fit to impose the sentence of 2 years r. I. And to pay fine of rs. 15,000. 00. Therefore, in our opinion, it cannot be said that the sentence imposed by the learned judge is in any way harsh, which call for reduction by the hands of this court. In case of romania. V. State of bombay, reported in air 1960 sc 961 the supreme court has observed that, "for a public servant to ba guilty of corruption is a very serious matter and the court should not look upon it with undue leniency". In that case the supreme court held that the sentence imposed by the trial court was not excessive and not interferred with the sentence. In case of meet singh v. State of punjab, reported in air 1980 sc 1141 the supreme court has clarified what reasons would be 'special reasons" for awarding less than the minimum sentence. In our opinion, the reasons set out in the affidavit cannot be said to be special reasons for imposing sentence less than minimum prescribed under the act. In the case of state of gujarat v. Raghunath, reported in air 1985 sc 1092 the supreme court while considering the question of sentence in appeal against the order of acquittal passed by the high court held that long time elapsed since commission of offence (i. E. , nearly 13 years) and that the accused retired from service were not considered special reasons. In that case, the supreme court further observed that corruption has become so rampant in the country and the offence cannot be considered trivial at all. In that case the supreme court further held that, "this is not a case of petty clerk or a peon accepting a small amount as bribe for doing some little favour". The supreme court further held that, "we cannot possibly take a lenient view of the conduct of an income tax officer, who accepts a large amount (rs. 12,500/ - in that case) as a bribe for causing loss to the public revenue". Accordingly, the supreme court held that the sentence imposed by the learned sessions judge was the right sentence.
(8) In view of the above discussion, we do not see any reason to reduce the sentence imposed by the learned judge which is quite just and proper. Accordingly, the order of sentence imposed by the learned judge is also confirmed. (rest of the judgment is not material for the reports.)
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