Criminal Appeal No.345 of 2002

8th September, 2014

Petitioner Counsel: Mr. NEERAJ PATIL
Respondent Counsel: Mr. AVINASH GUPTA

Cases Cited:
Mansuklal Vithaldas Chauhan Vs. State of Gujarat, 1997 Cri.L.J. 4059 [Para 9]

JUDGMENT

JUDGMENT :- This is an appeal filed by the State against the judgment and order of acquittal of the respondent recorded by the learned Special Judge, Wardha, on 18.3.2002 in Special Case No. 6 of 1997.

2. Briefly stated, facts of the case are as under :

(a) In April 1995, the respondent was Sub Divisional Officer and Rent Controller. He was seized of the matter that was filed against the complainant by Vishal Kumar. In this case, one amendment application was pending for adjudication and in order to decide the application in favour of the complainant, as alleged by the complainant, the respondent initially demanded from the complainant an amount of Rs.10,000/- which was reduced to Rs.7,000/-. The complainant agreed to pay the said amount as illegal gratification and payments of Rs.3,000/- and Rs.2,000/- were made as alleged by the complainant on 7.12.1994 and 1.4.1995. These amounts were paid at about 5-45 a.m. when the respondent was on his usual morning walk. The remaining amount of Rs.2,000/- was agreed to be paid shortly. The case was fixed for hearing the arguments on 20.4.1995 and since the respondent, it is alleged, kept on demanding payment of remaining amount on or before that date, and as the complainant was not ready to oblige the respondent, he lodged a complaint against the respondent with Anti Corruption Bureau on 19.4.1995.

(b) The complaint was taken down in writing and it was decided that the trap would be laid to catch the respondent red handed while accepting the remaining amount of Rs.2,000/-. The trap was to be made in the morning of 28.4.1995. Accordingly, the trap was laid in presence of panch no.1 while panch no. 2 stayed away at some distance from the spot of the incident. The respondent was alleged to have made the demand of remaining bribe amount and accordingly it was also paid to him by the complainant in the presence of panch witness no.1. After the signal was given by the complainant, members of the trap party reached near the place where the respondent had gone as a part of his morning walk and the bribe amount was recovered from left side pocket of Nehru shirt worn by him. Fingers of right hand of the respondent were tested and the solution turned violet when the fingers were dipped in the solution. The bribe amount delivered to and accepted by the respondent was seized. Seizure memo and panchanama were prepared. Statements of witnesses were recorded. After completion of investigation, sanction was obtained and thereafter charge-sheet was filed against the respondent.

3. As the respondent pleaded not guilty to the charge framed against him for the offence punishable under Section 7 and 13(2) read with Section 13(1)(d) of The Prevention of Corruption Act, he was tried in accordance with law. After considering the evidence available on record and hearing both the sides the learned Special Judge found that the prosecution failed to prove that the sanction given by the Deputy Secretary to the Government to prosecute the respondent was not valid and, therefore, the learned Special Judge acquitted the respondent of the aforesaid offences by his judgment and order dated 18.3.2022.

4. Being aggrieved by the same the State has preferred the present appeal with the leave of this Court.

5. I have heard Shri Patil, learned Additional Public Prosecutor, for the State and Mr.Gupta, learned counsel for the respondent. I have carefully gone through the judgment and order and also the evidence available on record.

6. It is submitted on behalf of the prosecution that when P.W.8 Debashish Chakraborty admitted that he was not the competent authority to record the sanction, such admission ought to have been considered in the light of his entire evidence. He submits that this witness has also stated that it is the Governor who is the appointing and removing authority and the orders regarding appointment or removal of Government servants of the rank of Class I are issued in the name of the Governor. He further submits that P.W.8 Debashish had studied all the papers that were received from the Investigating Officer and made his detailed noting along with recommendations on the file that was sent to his superior authority and after considering the same that this witness received approval, and accordingly he issued sanction order which was in the name of the Governor. He submits that proper procedure has been followed by P.W.8 Debashish and that merely because the sanction order had not been signed by the Principal Secretary, it would not vitiate the sanction order signed by P.W.8 Debashish in any manner and would not prove fatal to the prosecution case.

7. He has also taken me through the evidence of the complainant as well as other witnesses in support of his argument that the charge framed against the complainant stands proved by the evidence of this witness.

8. Learned counsel for the respondent, on the other hand, submits that it is well settled law that when the prosecution fails to prove that the sanction accorded for prosecuting the accused is not valid in the eyes of law, it vitiates the whole trial of the case against the accused leaving no other option to the Court than to acquit the accused of the charges levelled against him. He has also taken me through, in particular, the evidence of P.W.8 Debashish in support of his argument that P.W.8 Debashish has clearly admitted that he was not the sanctioning authority in this case and that the Principal Secretary, Revenue and Forests, is the head of the department to which the respondent belongs and, therefore, in this case, at least, the sanction should have been signed by the Principal Secretary. The learned counsel has also pointed out from the evidence of Investigating Officer P.W.7 Suresh Kokate as to how even this witness admits that the Secretary to the Government is the competent authority for issuance of sanction regarding prosecution of the Officers of Class I rank. The learned counsel further submits that even on merits of the sanction, it can be said from the clear admissions given by P.W.8 Debashish that there was no application of mind on his part while signing the sanction order. The learned counsel, therefore, submits all these aspects have been rightly considered by the learned Special Judge proving fatal to the prosecution case and acquitting him of the charge made against him.

9. In support, the learned counsel has referred to me the case of Mansuklal Vithaldas Chauhan v. State of Gujarat reported in 1997 Cri.L.J. 4059 in which the Hon'ble Apex Court has laid down that the sanction order must reflect application of mind to the facts placed before the sanctioning authority and if it does not, the sanction cannot be said to be valid in the eyes of law.

10. If one goes through the evidence of Investigating Officer P.W.7 Suresh Kokate and P.W.8 Debashish, the officer signing the sanction order, one would at once notice that P.W.8 Debashish was not the authority competent to accord sanction to prosecute the respondent and that there is confusion as regards who was the author of sanction order produced in evidence. P.W.7 Kokate has admitted that Secretary to the Government was the competent authority for issuing sanction in this case and P.W.8 Debashish has also admitted that he was not the sanctioning authority. He has further admitted that the competent authority for appointment and removal of Class I officers is Governor and orders are issued in the name of the Governor. He has further admitted that Principal Secretary, Revenue and Forests, is Head of the Department of the respondent. If such admissions have been given by both the witnesses, it was expected that the sanction order was at least signed by the Principal Secretary, Revenue and Forest. That is not the case here and, therefore, I am of the view that the learned Special Judge has rightly concluded that the sanction accorded in this case was not valid and it did not vitiate the entire trial of the respondent.

11. Even otherwise, when we consider the merits of the sanction given by P.W.8 Debashish, as rightly submitted by the learned counsel for the respondent, it could be found that there was total non-application of mind on the part of this witness. It can be seen from the admission given in this regard by this witness in his extensive cross-examination conducted on behalf of the respondent. The relevant portion of the admissions given by this witness appear in paragraph 9 and are reproduced as under:

"It is correct to say that I had not ascertained this fact that for deciding the amendment application the bribe was demanded. It is correct to say that I relied on draft sanction order submitted by A.C.B. and signed on it by accepting the same as true and correct. It is not correct to say that I did not apply my mind."

12. It would be clear from the above referred admissions that P.W.8 Debashish, who had signed the sanction order, had not ascertained the root cause of the demand of bribe by the respondent. He also candidly admits that he simply relied on the draft sanction order supplied to him by the Anti Corruption Bureau and he merely put his signature on it accepting this statement as true and correct. It is also seen from the evidence of this witness that the entire papers of the investigation made in this case by the Investigating Officer had not been forwarded to this witness and, therefore, it was quite natural on his part to be not able to ascertain all the material facts of the case. If he had not ascertained the material facts of the case and had merely signed the draft sanction order accepting its contents as true and correct, the sanction signed by him will have to be considered as the one which is devoid of any application of mind on his part, thereby invalidating the sanction given by him. In this regard, I would like to draw support from the observations of the Hon'ble Apex Court on the importance of application of mind while according sanction. The relevant part of the observations appearing in paragraph 19 are reproduced as under :

"19. ...... If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reasons that the discretion of the authority 'not to sanction' was taken away and it was compelled to act mechanically to sanction the prosecution."

13. The learned Special Judge has also considered this aspect of the matter in its right perspective and correctly inferred that sanction to prosecute the respondent would be considered as bad in law. The learned Special Judge has also relied upon several authorities as mentioned in the impugned judgment and order, and rightly so.

14. The view taken by the learned Special Judge is in accordance with law and I see neither any perversity nor arbitrariness in the same. The impugned judgment and order, therefore, need no interference and this appeal deserves to be dismissed.

15. Accordingly, the appeal stands dismissed.

Appeal dismissed.