Bombay High Court
Jagannath Maruti Tekade vs State Of Maharashtra on 22 April, 1991
Equivalent citations: 1992(1)BOMCR255, 1991(1)MHLJ976
JUDGMENT M.F. Saldanha, J.
1. The appellant in this case, at the relevant time working as a clerk under the Executive Magistrate at Nasik, was tried for a corruption charge in Special Case No. 2 of 1982 by the Special Judge, Nasik. The allegation against the accused was to the effect that on 23-6-1982, he is alleged to have demanded and received an amount of Rs. 100/- as illegal gratification from the complainant Madhukar on the basis of an assurance to him that the chapter proceedings which he was facing would be disposed of. The Anti-corruption Police had laid a trap on that day and the complainant along with one panch witness Pawar are alleged to have handed over the marked currency notes which were found in the drawer of the table on which the accused used to work. The incriminating circumstance against the accused was that anthracene powder was found on his thumb and three fingers of his right hand. The accused was charge-sheeted, tried and convicted by the learned Special Judge, both under sections 161 I.P.C. and under section 5(1(d) read with 5(2) of the Prevention of Corruption Act and sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 100/- in default, rigorous imprisonment for one month. It is against this conviction that the present appeal has been preferred.
2. Mr. Vaidya, learned Counsel appearing on behalf of the appellant has taken me through the oral evidence on record which follows the familiar pattern in all corruption cases. He has also referred to the evidence of panch witness Pawar as also the pre-trap panchanama, the post-trap panchanama, the evidence of the Police Officers and the supportive evidence of the Tahsildar and certain other witnesses. This last category of witnesses is not particularly relevant in so far as they essentially establish the recovery of the amount of Rs. 100/- from the drawer of the table of the accused and furthermore, because the accused himself in his defence has contended that the complainant who was a regular Court bird had planted the amount in the drawer. The evidence of these witnesses, therefore, which establishes the recovery from that place, to my mind, is not of much consequence.
3. Mr. Vaidya has, in the first instance, seriously attacked the validity of the sanction order. He contends that sanction is a necessary pre-condition for the validity of a trial under the Prevention of Corruption Act which pre-supposes, in turn, that the sanction order produced before the Court just pass the requisite test of legality. Mr. Vaidya has pointed out that the sanctioning authority in the present case was the Collector and that even though the Collector was cited as a witness, the Collector was not examined and that the prosecution has taken the easy way out by examining a clerk from that office who has gone through the mechanical process of identifying the document. The first necessary ingredient for a valid trial under the Prevention of Corruption Act is a legal, proper, correct and valid sanction order. It is well settled law that the authority who has granted the sanction must indicate to the satisfaction of the Court that he has applied his mind to the facts of the case and granted a valid sanction. This duty is an important one and cannot be loosely complied with nor can it be abdicated as has happened in the present case. The examination of a clerk from the Collector's office is tantamount to the examination of no witness at all because, that clerk is certainly not a competent witness for purposes of deciding the crucial question as to whether the Collector applied his mind to the facts of the case and whether he granted a valid sanction. The law is well settled on this point, that if there is no application of mind, then, the sanction order is vitiated. In the present case, the prosecution is unable to establish that the sanctioning authority has applied his mind and consequently, the same result would have to follow. It has been held by the Supreme Court in the case of Mohd. Ahmed v. State of Andhra Pradesh, (Murtaza Fazal Ali, J., - as he then was), that an invalid sanction order would not only vitiate the trial but it would render the prosecution void ab-initio. In view of this legal position and in view of the fact that the sanction order tendered in the present case cannot even be looked at by the Court as a valid sanction order, the prosecution itself would have to be rendered void ab-initio.
4. Normally, having decided the aforesaid point in favour of the appellant. I would not have considered it necessary to deal with any of the subsequent submissions. Mrs. Ranadive, learned A.P.P. elaborately tried to convince the Court that the application of mind can be gauged from the sanction order itself and that, it was unnecessary to examine the sanctioning authority. That argument, unfortunately, is unacceptable because the Court will have to take judicial notice of the fact that in the Government set-up, the orders are often times drafted out by a department and put up to an authority for signature and, therefore, it would be extremely dangerous to conclude even if the sanction order is correctly or perfectly drafted, that the authority who signed it must have applied his mind in the absence of his deposing before the Court that he had in fact done so.
5. As regards the merits of the case, Mr. Vaidya has assailed the correctness of the prosecution on another ground viz., that, according to him, the prosecution case itself cannot pass the test of plausibility. He has pointed out that it has come on record through detailed cross-examination, that the complainant in this case is a seasoned litigant and a regular Court bird. It was his grievance that on the several dates of hearing when his case was not taken up, that if he did not tip the staff, he was made to wait until 6 O' Clock in the evening when the adjourned date was given. It was this grievance which, according to Mr. Vaidya, prompted the complainant to approach the Anti-corruption Department and having gone there and having been instructed to implicate the accused, it was not at all difficult for him to put the notes in a place where the accused would come in contact with the notes. Mr. Vaidya contends, that had the notes been accepted by the accused, then anthracene powder would have been found on more areas than merely his finger tips and that if the notes were planted in the drawer of his table, the possibility of anthracene powder coming in contact with various objects, files, papers or parts of the table which the accused did touch is very strong. This, however, is in the realm of possibilities.
6. Mrs. Ranadive has pointed out that there is no conclusion possible other than the one against the accused viz., that he accepted the money as otherwise, it was, impossible for the anthracene powder to have come on his hands. Unfortunately, there is one lacuna in the present case, which the prosecution has not explained. The Investigating Officer in his evidence has come out with a statement, that because there was no plug point available in that room, he went to the Tahsildar's room, that he initially explained the facts of the case to the Tahsildar, that the accused and everyone else was taken there and that at a subsequent point of time, the drawer was brought to that room. This considerable time-lag of about 2 1/2 hours and the fact that right through that period, nobody was near the table is something that does not pass the test of suspicion. The accused has pointed out that, according to him, the notes were planted and that while doing so, the anthracene powder must have come on to the drawer of the table and the table itself because, these were touched or handled by the complainant and this is the explanation for the anthracene powder being found on his fingers. In addition to this, it was contended on behalf of the accused that the prosecution case itself is totally absurd for the simple reason that the accused was only a clerk and was not the authority in charge of the chapter case nor did he have any powers to pass orders in favour of the accused. Consequently, the question of the complainant paying the money for having the case disposed of appears to be doubtful. What is of greater importance is the fact that the entire prosecution case with regard to the demand and acceptance proceeds in total silence because, according to the complainant and the panch witness, the accused is alleged to have made certain gestures from which the complainant understood something and that all this strange procedure was resorted to only because of the presence of the other staff members in that particular room. The sum total of this evidence unfortunately runs counter to the instructions which the Investigating Officer gave to the complainant, that he should get the accused to commit in the presence of the panchas that he is asking for the bribe amount and that he should give the bribe amount to the accused in such a way that he is caught with the money. Suffice it to say that there is a total state of confusion with regard to the record and under these circumstances, it would be difficult to hold that the prosecution has proved its case beyond reasonable doubt.
7. Mrs. Ranadive, learned A.P.P. has submitted, that there are very serious complaints regarding corruption even in the courts and by members of the staff of the courts and that, consequently, this Court must take an extremely rigorous view of what has happened in the present case, regardless of the fact that the amount involved might have been only Rs. 100/-. Mrs. Ranadive further submits, that when therefore, a member of the staff has been caught accepting a bribe in relation to a Court case, that no degree of leniency can be shown to that particular accused. There is no doubt about the fact that rigorous steps need to be taken for purposes of controlling, checking and erradicating instances of corruption on the part of staff members in the courts. That does not, however, mean that it is permissible for a Court to indiscriminately convict an accused in the face of a record which does not establish the charge against him beyond doubt. The principles enunciated by Mrs. Ranadive which are undoubtedly salutory ones and with regard to which there can be no dispute are the basis for the learned Special Judge having imposed a relatively heavy sentence against the accused at the conclusion of the trial. Unfortunately, however, in the light of the fact that I have already come to the conclusion that the charge cannot be said to have been proved against the accused, the application of these principles cannot be canvassed in the present case.
8. Mrs. Ranadive, learned A.P.P. has relied on the decision of the Supreme Court the case of Kishanchand and Mangal v. State of Rajasthan. The point canvassed in that case was that there were certain minor discrepancies and infirmities in the prosecution evidence and the question arose as to whether as a result of this, the accused could get the benefit and it could be concluded that the charge against him was not proved. On this facts of the present case, however, the infirmities pointed out by me are neither minor nor insignificant and, therefore, to my mind, the decision in question will not have application to the facts of the present case.
9. In the result, the appeal succeeds. The conviction and sentence imposed against the appellant-accused are set aside. The fine, if paid by him, is directed to be refunded. The bail bond of the accused to stand cancelled. Appeal allowed accordingly.