Murlidhar Agarwal vs The State Ecvonomic Offences ... on 22 February, 2011

[Cites 36, Cited by 0]

Madhya Pradesh High Court

Murlidhar Agarwal vs The State Ecvonomic Offences ... on 22 February, 2011

HIGH COURT OF MADHYA PRADESH : JABALPUR
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Present : Hon. Justice R.C. Mishra
Hon. Justice Smt. Vimla Jain
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Criminal Appeal No.1276/2010
Murlidhar Agarwal, son of Late Shri
Gourishankar Agarwal, aged about 55 years,
Resident of 344, Nav Adarsh Colony,
Garha Road, P.S. Lordganj,
Jabalpur (MP) ... Appellant
vs.
The State of M.P. through State Economic Offences
Investigation Bureau, Distt. Jabalpur ...Respondent
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Shri R.K. Nanhorya and Shri Kunal Dubey, Advocates for
the appellant.
Shri Umesh Pandey, Govt. Adv., for respondent-State.
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&
Criminal Appeal No.1277/2010
(1) B.M. Kapoor, son of Late Shri
Anand Swaroop Kapoor, aged about 64 years,
Resident of LIG B-666,
Dhanwantri Nagar Colony, Jabalpur (MP)
(2) S.N. Sankhere, son of Late Shri Sitaram Sankhere,
aged about 48 years, resident of MIG-4,
Subhash Nagar, Aishbaag Nagar, Bhopal (MP)
(3) D.N. Dubey, son of Late Shri D.C. Dubey,
aged about 62 years, resident of 1394,
Madan Mahal Ward, Jabalpur (MP)
(4) N.K. Dhimole, son of Late Shri L.P. Dhimole,
Aged about 52 years, resident of 131,
Vaishali Nagar, Kotra, Sultanabad, Bhopal (MP)
(5) R.S. Gupta, son of Shri C.L. Gupta,
aged about 59 years, resident of G-4,
Chapara Colony, Seoni,
Permanent address 991/23, Shastri colony,
P.S. Garha, Jabalpur ...Appellants
vs.
The State of M.P. through State Economic Offences
Investigation Bureau, Distt. Jabalpur ...Respondent
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Shri R.K. Nanhorya and Shri Kunal Dubey, Advocates for
the appellants.
:: 2 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10

Shri Umesh Pandey, Govt. Adv., for respondent-State.
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&
Criminal Appeal No.1283/2010
Pawan Kumar Sadhu, son of Late Shri
Jugal Kishore Sadhu, aged about 43 years,
Resident of 45, Shri Krishan Nagar,
Magajpura Road, Distt. Dhar (MP) ...Appellant
vs.
The State of M.P. through State Economic Offences
Investigation Bureau, Distt. Jabalpur ...Respondent
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Shri V.K. Shrivastava, Advocate for the appellant.
Shri Umesh Pandey, Govt. Adv., for respondent-State.
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&
Criminal Appeal No.1297/2010
Sanat Kumar Pathak, aged about 57 years,
son of Late Naval Kishore Pathak, Sub-Engineer,
Hiran Water Resources Deptt., Sub Division
Mahgaon Tola Head Work Jabalpur.
At present Hiran Water Resources Sub Division No.3,
Resident of 1130, Vijay Nagar,
P.S. Gohalpur, Jabalpur ...Appellant
vs.
The State of M.P. through State Economic Offences
Investigation Bureau, Distt. Jabalpur ...Respondent
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Shri A.K. Mishra, Advocate for the appellant.
Shri Umesh Pandey, Govt. Adv., for respondent-State.
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&
Criminal Appeal No.1366/2010
Ramesh Kumar Rawat, son of Shri
Nathuram Rawat, aged about 43 years,
Resident of 331, Nayak Bhawan, Ward No.3,
Sihora, Distt. Jabalpur (MP)
Permanent resident of Gram Pidruwa,
Tahsil Banda, Distt. Sagar (MP) ......Appellant
vs.
The State of M.P. through State Economic Offences
Investigation Bureau, Distt. Jabalpur ...Respondent
------------------------------------------------------------------------------------
Shri R.K. Nanhorya and Shri Kunal Dubey, Advocates for
the appellant.
:: 3 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10

Ashok Kumar Pandey, son of Late Shri
Ramkishor Pandey,aged about 40 years,
Resident of 1580/1-A Nav Nivesh Colony,
Garha, Jabalpur (MP) ...Appellant
vs.
The State of M.P. through State Economic Offences
Investigation Bureau, Distt. Jabalpur ...Respondent
------------------------------------------------------------------------------------
Shri Rajendra Pandey, Advocate for the appellant.
Shri Umesh Pandey, Govt. Adv., for respondent-State.
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&
Criminal Appeal No.1408/10
Abdul Rashid Khan, son of Late Shri
Abdul Zahid Khan, aged about 52 years,
Sub Engineer Hiran Jal Sansadhan
Anubhag Mehgaon Tola Head Work Jabalpur.
Resident of Behind MIG 11 Durga Nagar,
Anand Colony, Adhartal, Jabalpur (MP) ...Appellant
vs.
The State of M.P. through
State Economic Offences Investigation Bureau,
Distt. Jabalpur (MP) ...Respondent
Shri S.K. Shrivastava, Advocate for the appellant.
Shri Umesh Pandey, Govt. Adv., for respondent-State.
Date of Hearing : 19/01/2011
Date of Judgment : 22/02/2011

JUDGMENT

Per R.C. Mishra, J.

These appeals are interlinked, as preferred against a common judgment passed on 7/7/2010 by Special Judge (under the Prevention of Corruption Act, 1988 for Lokayukt cases) (for short "the Act") at Jabalpur in Special Case No. 17/1998 whereby each one of the appellants, though charged :: 4 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 with the offences punishable under Sections 409, 420, 468, 471, 477-A, 120-B of IPC and Section 13(1)(d) read with Section 13(2) of the Act, was convicted under Section 6 of the M.P. Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, 1982 (hereinafter referred to as "the Adhiniyam") and sentenced to pay fine of Rs.1,00,000/- and in default, to suffer imprisonment for 6 months.

2. The proceedings against co-accused Satyanarayan Rai, the then Divisional Accountant, Rajendra Acharya, the then Assistant Engineer, Sub Division Jabalpur, Nirmal Krishnadeo, the then Sub Engineer, Sub Division Sagona and Rajendra Kumar Agwale, the then Assistant Engineer, Sub Division Mehgaon Tola, have abated consequent to their respective deaths.

3. At the relevant point of time, the appellants who, shall be referred to by their respective names only, were working in the following official capacities in the Hiran Water Resources Department, Division Jabalpur.

(i) Brijmohan Kapoor Executive Engineer, Hiran Water Resources Division, Jabalpur

(ii) Satyanarayan Sankhere Sub Engineer, Sub Division Jabalpur

(iii) Murlidhar Agrawal Sub Engineer, Sub Division Jabalpur

(iv) Dinesh Narayan Dubey Sub Engineer, Sub Division Jabalpur

(v) Ramesh Singh Gupta Assistant Engineer, Sub Division Sagona

(vi) Ramesh Kumar Rawat Sub Engineer, Sub Division Sagona

(vii) Ashok Kumar Pandey Sub Engineer, Sub :: 5 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 Division, Sagona

(viii) Abdul Rashid Khan Sub Engineer, Sub Division, Mehgaon Tola

(ix) Sanat Kumar Pathak Sub Engineer, Sub Division, Mehgaon Tola

(x) Narendra Kumar Assistant Engineer, Sub Division No.3, Jabalpur Dhimole

(xi) Pavan Kumar Sadhu Assistant Engineer, Sub Division No.3, Jabalpur It is contextual to note that the term "man-day" means an industrial unit of production equal to the work one person can produce in a day.

4. The prosecution story, in short, may be narrated thus -

(a) While working in the aforesaid official capacities in the Hiran Water Resource Division, during the period from October 1991 to December 1991, the appellants entered into a conspiracy to defraud the State Government by preparing false and fictitious muster rolls purporting to be the record of the man power employed on daily wage basis for repairs to certain irrigation works including Jungle clearance and in pursuance of the conspiracy, as many as 307 such muster rolls were prepared by 34 Sub Engineers including the Sub Engineers named above.

(b) It was upon a complaint (Ex.P/97) made by Mohit Lal Singh, the then President of Pichhda Warg Samaj Party that an enquiry was conducted into the matter by G.K. Shukla (PW43), posted as Inspector in the Jabalpur office of Economic Offences Investigation Bureau into the matter. After due enquiry, he submitted a report (Ex.P/98) indicating that a total amount of Rs.11,69,303.20 was :: 6 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 incurred as expenditure by as many as 34 Sub Engineers on 440724.50 man-days as against sanction of only 140278 man-days by the Superintending Engineer necessitating an expenditure of Rs.3,66,086/- and thus, a total wrongful loss to the extent of Rs.8,03,217.90 was caused to the State Exchequer. In the light of the findings of preliminary enquiry, H.C. Soni (PW37), the then Inspector, Economic Offence Bureau, registered a case in respect of the offences punishable under Sections 13(1)(c) and 13(1)(d)(i)-(ii)-(iii) of the Act and 409, 420, 467, 468, 471, 477A and 120B of the IPC by recording the FIR (Ex.P/89). Its investigation revealed:-

(i) B.M. Kapoor, the Executive Engineer, without prior permission/sanction, approved man-days in excess of the man-days already sanctioned by the competent authority viz. Superintending Engineer. The other appellants, while working as Assistant Engineers and Sub-Engineers in-charge of the annual maintenance of pond, canal falling under various sub divisions, not only engaged casual labours in excess of the man-days sanctioned by the Superintending Engineer but also prepared false muster rolls for justifying payment of amount not sanctioned by the Superintending Engineer and in the process, were also involved in getting false thumb impressions of unidentified labours affixed on the muster rolls. Their respective rolls in making the excess payment of a total amount of Rs.8,03,217.90 may be highlighted thus:-

:: 7 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 Sub Div. Month Propose Recom Sanct San. Execut Total Additi Additio & Posted d mendation ioned ed Amount Amount onal nal Officer Demand man man for man days days Paid man amount days as per days spent the Muster Roll Sub Div. Oct. 18290 10554 5218 132950 11851 295551 6533 162601 Jabalpur 91 ½ 30 paise ½ 30 paise Rajendra Acharya 71 (mr) Nov 18750 8378 - - 8664 229361 8464 229361 91 53 (mr) 10 paise 10 paise Dec 17515 10959 3510 933662 6416 172659 2906 70293 91 43 (mr) 80 paise Sub Div. Oct. 4000 4000 1500 37500 3169 75475 1669 37975 Sagona 91 18 (mr) Ramesh Nov 2480 2480 - - 1620 44200 1620 44260 Chandra 91 Gupta 10 (mr) Dec 2480 2480 - - 1854 50523 1854 50523 91 11 (mr) 50 paise Mehgaon Oct. 3240 3240 610 15250 2373 61931 1763 46681 Tola (upto 91 21 (mr) 60 paise 23.11.91) Nov 2850 1590 840 21000 2048 54328 1208 33328 P.K.Vasu, 91 SDO 23 (mr) 80 paise 80 paise Rajendra Dec 2580 2580 1600 42720 2778 74860 111178 32140 Kumar 91 Aglawe 25 (mr) 50 paise 50 paise SDO Narendra Oct.91 3875 3875 410 10000 831 21236 431 11236 Kumar 9(mr) 25 paise 25 paise Dhimole Nov.91 2569 1590 500 13300 1487 39919 987 26619 SDO 11 (mr) 95 paise 95 paise Dec.91 2569 1690 - - 1829 49195 1829 49195 12 (mr) 90 paise 90 paise 81198 53396 14278 366086 44724 1169503 30446 803217 ½ 90 paise 90 paise 307(mr)

(ii) Satnarayan Rai (since dead), the then Divisional Accountant, also did not raise any objection while clearing the proposals for payment of the aforesaid amount even in absence of the administrative approval or financial sanction by the competent authority and adjusted the excess expenditures in the respective monthly account. Even thereafter, no attempt was made to obtain ex post facto sanction from the competent authority.

:: 8 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10

(c) All the 307 muster rolls in question were forwarded to the State Examiner of Questioned Documents for examination. However, as many as 1860 out of 1941 thumb impressions were found to be blurred and, therefore, not suitable for examination whereas a total amount of Rs.8,03,217.90 was paid against these thumb impressions. The expert namely Ajij-Ul- Hasan also found that a false payment of a total amount of Rs.25,496.70 was made by entering names of certain labourers, who had already performed some other works. These cases were classified as under -

S.No. Paid Muster Roll Fictitious payment Accused Accused Sub No. Engineer Divisional Officer

1. 6183, 6182 4000-00 Satyanarayan Rajendra Acharya Sankhere (Dead)

2. 12576, 12577, 931-00 Murlidhar Rajendra Acharya 6202, 6205, 7415-00 Agrawal (Dead) 6204, 12657, 12655 and 12656

3. 5986, 12272 1500-00 Dinesh Rajendra Acharya Narayan (Dead) Dubey

4. 5462, 13338, 1526-90 Ramesh Ramesh Chandra 12341, 12342 3253-90 Kumar RAwat Gupta

5. 5478 1552-00 Nirmal Ramesh Chandra Krishna Deo Gupta

6. 5447, 5448 2373-00 Ashok Kumar Ramesh Chandra Pandey Gupta

7. 6354 798-00 Abdul Rashid Pradeep Kumar Khan Vasu

8. 11999 500-00 Sanat Kumar Pradeep Kumar Pathak Vasu

9. 12517 771-40 Abdul Rashid Rajendra Kumar Khan Aglave (dead)

10. 6093, 6069 825-40 Pavan Kumar Narendra Kumar Sadhu Dhimole Amount 25496-70

(d) Upon completion of investigation and after obtaining sanction (Ex.P/86) for prosecution of the Executive Engineer and the Assistant Engineers involved and also sanctions (Ex.P/94 & Ex.P/95) for prosecution of the accused Sub-Engineers, charge-sheet was submitted :: 9 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 against the appellants and the co-accused before the Special Court at Jabalpur.

5. On being charged with the offences, the appellants abjured the guilt and pleaded false implication. According to them, the works were actually performed and payments were made to the genuine labourers.

6. To bring home the charges, the prosecution examined as many as 44 witnesses. No evidence was led in defence.

7. Upon consideration of the entire evidence on record, learned trial Judge, for the reasons recorded in the judgment, proceeded to conclude that none of the charges could be established beyond a reasonable doubt. However, he further opined that the evidence on record was sufficient to prove guilt of all the appellants in respect of the offence punishable under Section 6 of the Adhiniyam.

8. Legality and propriety of the impugned convictions have been challenged inter alia on the following grounds -

(i) Even cognizance of the offence under the Adhiniyam could not be taken in view of the specific statutory bar contained in Section 39 of the Adhiniyam.

(ii) The convictions, being in violation of the mandatory provision of sub-Section (4) of Section 222 of the Code of Criminal Procedure (for brevity "the Code"), are not sustainable, as the conditions requisite for initiation of the :: 10 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 proceedings in respect of the offence under the Adhiniyam were not satisfied.

(iii) All the muster rolls, which were subjected to examination by the Handwriting Expert, were not duly seized and sealed.

(iv) Report (Ex.P/101) as to examination of the muster rolls in question was not admissible in evidence under S.293 of the Code without formal proof in view of the fact that it was not prepared by Director of the Finger Print Bureau. Moreover, the report, said to have been authored by Inspector Ajij-Ul-Hasan (since dead) on 25/3/94 could not be admitted in evidence by taking recourse to Section 32(2) of the Evidence Act as it was forwarded through a covering memo dated 2/4/93.

(v) Under the Madhya Pradesh Works Department Manual (for short "PWD Manual"), it is the Executive Engineer, who has the power to sanction the man-days to execute the work in certain conditions and this fact was clearly admitted by a number of prosecution witnesses namely Hiralal Sharma (PW18), Anil Kumar Pathak (PW19), Arun Bade (PW20), P.C. Jain (PW21), M.P. Tiwari (PW27), Sadan Kumar Trivedi (PW31) and Padam Chand Jain (PW39), P.D. Sharma (PW26) and J.C. Sharma (PW29) and P.R.T. Pillai (PW38).

(vi) The evidence that was found to be deficient in respect of the offences of criminal conspiracy, forgery, cheating and criminal breach of trust punishable under the IPC as well as the corresponding mis-conducts :: 11 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 punishable under the Act could not have formed basis of the convictions under challenge.

9. This apart, Shri A.K. Mishra, learned counsel appearing for Sanat Kumar Pathak has contended that he had engaged less number of casual labours for various works carried out under his supervision than those sanctioned by the competent authority for the purposes. Attention has also been invited to the fact that both Kunwari Bai (PW2) and Jera Bai (PW6), whose thumb impressions were found to be shrouded with suspicion, clearly admitted that the wages as entered in the muster roll were actually paid to them through one Munnalal (since dead).

10. In response, learned Govt. Advocate has submitted that the convictions are well founded. According to him, there was no legal impediment in convicting the appellants, who were charged with corresponding major offences falling under various provisions of the IPC and the Act, for a minor offence punishable under Section 6 of the Adhiniyam. For this, reference has been made to the provisions of Section 222 of the Code.

11. These contentions give rise to a short question of law as to whether, conviction under Section 6 of the Adhiniyam could be recorded even in absence of :-

(a) sanction for prosecution of Government servants under Section 197 of the Code for the offence :: 12 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 under the Adhiniyam as referred to in Section 37 thereof.

(b) direction of the Prescribed Authority as contemplated in Proviso to Section 39 of the Adhiniyam for investigation thereinto;

notwithstanding the bar contained in sub-Section (4) of Section 222 of the Code.

12. Before proceeding further, it is necessary to advert to the relevant provisions of Adhiniyam reproduced as under:-

Section 6 : Punishment for preparing false or fictitious muster rolls or measurement books - Whoever, being officer-in-charge of a work in connection with the relief work or any other work intentionally or knowingly

a) prepares a false or fictitious muster roll, or

b) prepares a false or fictitious measurement book, or

c) makes payment for false or fictitious lead or false or fictitious excavation of metal, sand, earth, or

d) incorrectly classifies a strata under excavation for making payment at a higher rate, or

e) pays for no work or inadequate or for fictitious or bogus work, or

f) pays at rate that are grossly inappropriate or makes deliberate overpayments in violation of rules and orders, shall be punished with imprisonment of either description of which may extend to 3 years or with fine or both.

Section 37:Proof of Sanction - The sanction for prosecution of a government servant for an offence under this Act, issued under Section 197 of the Code of Criminal Procedure, 1973 (No.2 of 1974) and purporting to be duly authenticated and sealed :: 13 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 shall be admissible in evidence without formal proof :

Provided that, where the facts constituting the offence do not appear on the face of the sanction, the Court may call the officer authenticating the sanction to give evidence before it.

Section 38:Curability to technical defects in the form of sanction - Any technical defect in the formal sanction granted under Section 197 of the Code of Criminal Procedure, 1973 (No.2 of 1974) for the prosecution of a person employed in connection with the affairs of the State shall not vitiate the trial, unless it is proved that it caused substantial prejudice to the accused.

Section 39:Cognizance of offences - All offences under this Act shall be cognizable [Provided that the Police Officer shall not investigate an offence under this Act except on a direction of the prescribed authority not below the rank of Commissioner of Division on a report admitted by him to such authority] [Provided further that the State Government may, at any time for the purpose of satisfying itself as to the propriety of any order passed by the Commissioner of the Division as prescribed authority either on its own motion or on reference made by the prescribed authority, shall call for and examine the record of any case pending before or disposed by such authority and may pass such order in reference thereto as it thinks fit].

13. Evidence of Harishankar Mishra (PW36), the dealing clerk in the Law Department and Mahendra Kumar Choubey (PW40), the then Executive Engineer in the office of the Chief Engineer, was rightly considered as sufficient to prove that the requisite sanctions under Section 197 of the Code for prosecution in respect of the offences punishable under Sections 420, 467, :: 14 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 468, 471 and 120B of the IPC and those under S.19 of the Act for prosecution regarding the offences punishable under Sections 13(1)(d) read with 13(2) of the Act were granted by competent authorities.

14. Learned counsel for the appellants have strenuously contended that it would not be possible to assume that the sanctions (Ex.P/86, P/94 read with P/95), under Section 197 of the Code and Section 19 of the Act as granted by the Additional Secretary, Department of Law and Legislative Affairs and the Chief Engineer, for prosecution of the appellants in respect of the offences under the IPC as well as under the Act also covered the offence punishable under Section 6 of the Adhiniyam. The reason, in their opinion, is that for granting sanction, outcome of the investigation is required to be placed before the sanctioning authority whereas, in the case on hand, by virtue of the bar enacted in S.39 of the Adhiniyam, no investigation into the offence could be carried out except on direction of the Prescribed Authority not below the rank of Commissioner of Division on a report admitted by him to such authority. To fortify the argument, reliance has been placed on the following decisions of this Court :-

(a) Pushpak Grih Nirman Samiti v. State of M.P. (1996 MPLJ 283)

(b) State of M.P. v. Rajendra Singh Rathor (1996 (2) MPJR 324)

(c) S.P. Kori v. State of M.P. (2001 (2) MPLJ 702) :: 15 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10

15. In Pushpak Grih Nirman Samiti's case (supra), it was held by a Division Bench of this Court that the Collector has no jurisdiction to issue direction to Police to investigate and launch prosecution as such authority has been conferred under Section 39 of the Adhiniyam on the Commissioner only. In Rajendra Singh's case (above), the permission granted by the Commissioner before whom entire record was not placed was rejected by learned Sessions Judge as an invalid sanction and the revision preferred by the State was also dismissed by a single Bench of this Court with the observation that the sanction must show application of mind. While rejecting the revision the Court placed reliance on two earlier decisions rendered in Mohd. Umar v. State of M.P. (Criminal Revision No.8/98 decided on 22/9/88 at Indore and State of M.P. v. Harishankar (1984 MPLJ 234).

16. In S.P. Kori's case (ibid), another Single Bench of this Court has taken the view that the procedure given in Section 39 of the Adhiniyam is mandatory in the sense that the Police officer must place the matter before the Commissioner in case of a District Level officer and take his direction on the basis of material on record to investigate the matter and, therefore, in absence of sanction under Section 39, the Court was not competent to take cognizance of the offence under the Adhiniyam.

17. However, none of these decisions is applicable to the instant case wherein there was no occasion to seek direction of the Prescribed Authority under Section 39 as the investigation was focused at comparatively major offences punishable under :: 16 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 the IPC as well as under the Act including the principal offence of forgery in the muster rolls forming subject matter of the offence under Section 6 of the Adhiniyam. The investigation was conducted by the officers who were competent to investigate into the offences under the IPC as well as under the Act. Thereafter, sanctions to prosecute as contemplated under Section 197 of the Code and Section 19 of the Act were obtained. It is well settled that Section 19 of Act and Section 197 of Code operate in conceptually different fields. In cases covered under the Act, in respect of public servants the sanction is of automatic nature and thus factual aspects are of little or no consequence. Conversely, in a case relatable to Section 197 of the Code, the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus to the discharge of duties. Position is not so in case of Section 19 of the Act (Paul Varghese v. State of Kerala AIR 2007 SC 2618 relied on).

18. The sanctions (Ex.P/86 and P/94) reflect that all the relevant materials were placed before the sanctioning authorities. Although, no objection as to non-application of mind has been raised yet, attention has been invited to an unsuccessful attempt made by the prosecution to withdraw case against similarly placed co-accused Pradeep Kumar Basu, who was the in-charge of Mehgaon Tola, Head Works, Sub Division, only on the ground that no offence was made out. However, there cannot be any doubt whatsoever that allegations as to the preparation of false or fictitious muster rolls would constitute foundation for action not only in respect of the offence of forgery punishable under the IPC but also in regard :: 17 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 to offence under Section 6 of the Adhiniyam. Want of sanction is no bar to prosecute public servant for the offence under the Adhiniyam as it is no part of duty of public servant while discharging his official duties to commit forgery and indulge into conspiracy. (State of Himachal Pradesh v. M. P. Gupta AIR 2004 SC 730 referred to).

19. Section 39 of the Adhiniyam makes all the offences thereunder cognizable but the first proviso thereto contemplates sanction for investigation thereinto inasmuch as it requires that the police officer should obtain a direction of the prescribed authority before proceeding with the investigation. However, as per the allegations in the FIR, the appellants, while doing the main offence of forgery, committed the offence under the Adhiniyam. In this view of the matter, no sanction in the form of the direction for investigation was necessary. This apart, sanction to prosecute some of the accused persons, who happened to be Gazetted Officers, for the offences under the IPC as well as under the Act was accorded by the State Government, which, in the light of the second proviso, is the final authority in the matter of investigation into the an offence under the Adhiniyam. Further, it is well settled that the defect or illegality in investigation, however serious, has no direct bearing on the jurisdiction of the Court to take cognizance (See H.N. Rishbud v. State of Delhi AIR 1955 SC 196).

20. Accordingly, where the State Government really intended to launch prosecution for the offence of preparation of false and fictitious muster rolls, absence of specific direction for investigation or mention of offence under Section 6 of the :: 18 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 Adhiniyam would not assume any significance, provided that the other mandatory pre-conditions for taking cognizance of the offence are satisfied.

21. This takes us to a question, (that has not been raised specifically in the memo of appeal or canvassed before us during the arguments), as to whether the Special Judge could take cognizance of the offence under Section 6 of the Adhiniyam, straightway without the case being committed to him ?

22. In order to answer the question, let us advert to the corresponding provisions contained in Sections 41, 42 and 43 of the Adhiniyam, that read as under : -

Section 41:Offences to be triable by a Court of Sessions -

A person accused of an offence under this Act shall be committed to the Court of Sessions, and an offence under this Act shall be committed to the Court of Sessions, and an offence under this Act shall be triable exclusively by the court.

Section 42:Code of Criminal Procedure to apply

- Save as provided in this Chapter the provisions of the Code of Criminal Procedure, 1973 (No.2 of 1974), shall apply to an offence under this Act:

Provided that if an offence punishable under this Act is also punishable under any other enactment for the time being in force then notwithstanding anything contained in that Act or in the Code of Criminal Procedure 1973 (No.2 of 1974) to the contrary the provisions of Section 39, 40 and 41 of this Act shall apply.

:: 19 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 Section 43 : Provisions not to be derogatory to certain laws - The provisions of this Act shall be in addition to and not in derogation of the provisions of the Prevention of Corruption Act ........or any other law for the time being in force and nothing contained herein shall exempt any person from any proceeding which might apart from the sections under this Act, be instituted against him.

23. A conjoint reading of these provisions would show that the offences under the Adhiniyam are exclusively triable by a Court of Session. In this perspective, legal status of the Court of Special Judge appointed under Sub-Section (1) of Section 3 of the Act has to be examined.

24. The Special Judge enjoys a unique position. He has to be a Sessions Judge or an Additional Sessions Judge under the Code though he acts as a Magistrate for some purposes. Under Section 5(1), he is empowered to take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code, for the trial of warrant cases by Magistrates. Further, as declared by sub-section (3) of Section 5 save as provided in sub-section (1) or sub-section (2), the provisions of the Code, shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session. However, by virtue of sub-Section (4), for the purposes of the provisions contained in Sections 326 and 475 of the Code, a Special Judge shall be deemed to be a Magistrate.

:: 20 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10

25. It is apparent from these provisions that the intention of the legislature in enacting the same was to provide for a speedy trial of offences punishable under the Act. Further sub-section (3) confers jurisdiction upon him to try any offence other than specified in Section (3) with which the accused may, under the Code, be charged at the same trial. However, as indicated already Section 41 of the Adhiniyam provides for committal proceedings. Since it is a provision contrary to the provisions of Section 5(1) of the Act, the Special Court which is essentially a Court of Session could take cognizance of the offence only when the case was committed to it by the Magistrate in accordance with the provisions of the Code read with Section

41. This view also finds support from the provisions of Section 42, as quoted above.

26. In Taylor v. Taylor (1875) 1 Ch D 426), Jessel M. R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule was applied by the Privy Council, in Nazir Ahmed v. Emperor (AIR 1936 PC 253 (2) and later by the Apex Court in several cases including Ramchand Keshav Adhake v. Govind (AIR 1975 SC 915) and A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500).

27. In A.R. Antulay's case (supra), a Constitution Bench had the occasion to deal with a similar aspect of the matter with reference to the provision of the parent statute viz. the Code. It was laid down that :: 21 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 "Section 4(2) provides for offences under other law which may be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure. In other words, Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by Criminal Courts or various designations."

28. Following the ratio laid down in Antulay's case (ibid), the Supreme Court in Vidyadharan v. State of Kerala AIR 2004 SC 536, proceeded to hold that -

(a) Cognizance of the offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, directly by Special Court/Sessions Court without case being committed to it by Magistrate would be illegal.

(b) The Act contemplates only trial to be conducted by Special Court/Sessions Court.

:: 22 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10

29. Drawing analogy from this interpretation, it can easily be concluded that, in view of the interdict of Section 193 of the Code on Court of Session against taking cognizance of any offence as a Court of original jurisdiction, the trial Court could take cognizance of the offence under the Adhiniyam only if the case had been committed to it by a Magistrate. Furthermore, Section 43 of the Adhiniyam can also not be brought in aid for supporting the view that the Special Judge could take cognizance of the offence without the case being committed to his Court for trial, as the provision only relates to the substantive penal law and not to the procedural law governing the cognizance and trial.

30. As indicated already, the main contention advanced on behalf of the respondent-State is that the impugned convictions for a cognate offence were permissible under Section 222 of the Code simply because the appellants, being charged with the principal offence of forgery, were not, in any way, prejudiced at the trial. However, the contention is not acceptable in view of the specific bar contained in sub-section (4) of 222 of the Code. Incidentally, there was no corresponding provision in the old Code of Criminal Procedure and it was the decision in Bashir-ul-haq v. State of West Bengal AIR 1953 SC 293 that paved the way of incorporation of this new provision. In that case, it was held that the provisions of a section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it :: 23 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 does, upon the ground that such latter offence is a minor offence of the same character.

31. Section 238(3) of the old Code was couched in the following terms:

"Nothing in this section shall be deemed to authorize a conviction of any offence referred to in Section 198 or Section 199 when no complaint has been made as required by that section."

32. While suggesting substitution of sub-section (3) of Section 238 by the new sub-section (4) of Section 222, the Law Commission observed in its 41st Report:-

"19.16 While section 238(3) saves the provisions of section 198 and section 199,it is incomplete in that it does not refer to the other analogous sections which also require a complaint or sanction for taking cognizance of particular offences. For example section 195, 196 and 196A also require the complaint of a particular person or authority for the offences dealt with therein; and sections 197 and 197A require the previous sanction of the Government for prosecution in respect of certain offences. It appears to be desirable to make it clear in Section 238, that a conviction for a minor offence is not authorized where the requirements imposed by the law for the initiation of proceedings in respect of the minor offfence have not been complied with".

33. The Parliament accepting the suggestion made by the Law Commission in its 41st Report, amended Section 238 of :: 24 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 the Old Act and incorporated sub-Section 4 in Section 222 which reads as under :-

"Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied."

34. As an obvious consequence, the appellants could not be convicted for the minor offence punishable under Section 6 of the Adhiniyam, cognizance of which could not have been taken by the trial Court without committal.

35. After considering the matter in its entirety, our composite answer to the questions as formulated and mentioned in paragraph nos.11 and 21 (above) is that had the case been committed to the Special Court by a Magistrate, the impugned convictions could have been recorded even in absence of direction of the prescribed authority for investigation and sanction of the competent authority for their prosecution for the offence under the Adhiniyam. In other words, the convictions are not sustainable in law and deserve to be set aside as nullity in view of the fact that the Special Judge had no jurisdiction to take cognizance of the offence under the Adhiniyam.

36. Even otherwise, the convictions cannot be upheld in the light of apparent inner inconsistencies in the findings of fact recorded by the learned trial Judge in paragraph nos.61 and 62 of the judgment. It may be pointed out that the acquittal of the appellants in respect of the offences punishable under the IPC :: 25 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 was primarily based on the findings summed up in paragraph

62. Accordingly, the evidence was not found sufficient to prove, beyond a reasonable doubt, any undue payment of wages or non-payment of wages or non-performance of actual works as shown in the muster-rolls in question. Still, holding that the appellants were guilty of preparing false and fictitious muster-

rolls in violation of relevant rules and guidelines so as to justify over-payment of wages pursuant to engagement of more man power than sanctioned by the competent authority, he proceeded to record the order of conviction. But, a reading together of these findings clearly suggested absence of mens rea, which is an essential ingredient of the offence under the Adhiniyam, on the part of the appellants. Admittedly, no appeal has been preferred by the State against the findings resulting into the order of acquittal.

37. Furthermore, as rightly pointed out by learned counsel, Sub-section (4) of Section 293 only applies to Director of the Finger Print Bureau and, therefore, the report dated 24/3/94 said to have been authored by Ajij-Ul-Hasan and only forwarded by the Director of the Finger Print Bureau, could not be used in evidence as there was nothing on record to show that the notice was given to the appellants under Section 294 to admit the documents or that they had admitted the correctness of the report.

38. For these reasons, firstly, the impugned convictions are not sustainable in law and secondly, even if a contrary view is taken, they would also not be justified on facts as well. As such, :: 26 ::

Criminal Appeal Nos.1276/10,1277/10, 1283/10, 1297/10 1366/10, 1371/10 & 1408/10 learned trial Judge completely misdirected himself in holding the appellants guilty of the offence under the Adhiniyam.

39. Consequently, the appeals stand allowed. The impugned convictions and the consequent sentences of fine are hereby set aside. Instead, the appellants are acquitted of the offence. Fine amounts, if deposited, be refunded.

40. Copy of this judgment be retained in connected appeals.

Appeals allowed.

      (R.C. MISHRA)                                        (SMT.VIMLA JAIN)
        JUDGE                                                   JUDGE
       22/02/2011                                             22/02/2011

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