Gujarat High Court
Babarali Ahmedali Sayed vs The State Of Gujarat on 20 June, 1989
Equivalent citations: 1991CRILJ1269, (1989)2GLR482
Author: M.B. Shah
Bench: M.B. Shah
JUDGMENT M.B. Shah, J.
1. By the judgment and order dated 18th January 1984 the Special Judge, Valsad at Navsari, has convicted the appellant for the offences punishable Under Section 161 of the I.P.C. and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and has ordered him to undergo R.I. for one year and to pay a fine of Rs. 500/-, in default, R.I. for three months.
2. It is the prosecution case that the accused Babarali Ahmedali Saiyad was serving at Vapi in S.T. Corporation, Gujarat, as Depot Manager. The complainant Shankerbhai Kakadiabhai Purohit was working as S.T. Bus Conductor under Vapi Depot. Against him a departmental enquiry for an incident dated 9th November 1982 for not issuing tickets to two Adivasi passengers was pending. For the said incident Traffic Inspector Mr. P.H. Koli checked the S.T. bus at Silvasa on 9th November 1982. The Traffic Inspector found that there were two passengers without ticket. From them he collected the ticket charges and also fine. On the basis of the said incident a report against the complainant, Bus Conductor, was submitted. On the basis of the said report departmental enquiry was being conducted by the appellant. The hearing of the enquiry was fixed on 23rd March 1983 and in the presence of Mr. Koli the statement of the complainant was recorded. The said statement is produced on record at Ex. 13. After this was over, it is the say of the complainant that the accused called him in his office and had asked him what he intends to do. To this the complainant replied that he was innocent and that he had not taken any ticket fare from the passengers, therefore, mercy be shown. Thereafter the accused asked him how much amount he had collected. He thereafter demanded Rs. 400/- so that the complainant would not be required to file appeal against his order. The complainant said that he was a poor man and he would not be able to pay this much amount. Thereafter the accused said that he would wait till the complainant received his monthly pay. 6th April 1983 was the pay day and he had taken his salary at about 11-45 a.m. At that time the accused was in his quarter. He called the complainant and inquired with regard to Rs. 400/-. The complainant replied that he would not be in a position to pay Rs. 400/-. Thereafter the accused said that he should pay Rs. 300/-. On the next day i.e. 7-4-83 between 1-00 to 2-00 p.m. at his quarter otherwise he would give judgment against him. To this the complainant agreed but as he was not willing to pay the amount, he contacted. Anti-corruption Department at Valsad. P.I. Jhala recorded the FIR Ex. 5 on 7-4-83 at about 9-45 a.m. and trap was laid on that very day.
3. P.I. Jhala called two panches in the office in pursuance of the complaint filed by Shankerbhai. Necessary panchnama was prepared. After taking currency notes and treating them by anthracene powder and seeing them under ultra-violet lamp, panch No. 1 was informed to accompany the complainant and was asked to hear the talk between the complainant and the Depot Manager Mr. Saiyad and to see the payment of money. If necessary he may ask the Depot Manager for hiring S.T. bus for going to Nasik. Panch No. 2 was to accompany the raiding party. Panch No. 1 was informed that after the amount is paid, he should give agreed signal of keeping his right hand on head. This part of the panchanama was over at about 12-45 p.m. Thereafter the raiding party proceeded to go at Vapi S.T. Stand. They reached there at about 1-25 p.m. The complainant and panch No. 1 went at the residential quarter of the accused. At that time the accused was applying a lock to his quarter. The complainant had inquired from the accused about his case. At that time the accused inquired from panch No. 1 who he was and why he had been there. To this panch No. 1 stated that he wanted to have S.T. bus for going to Nasik. Panch No. 1 was asked to go to the office and wait there. Panch No. 1, therefore, just moved aside and stood at the corner in such a manner that the accused cannot see him. Thereafter the complainant informed the accused that he had brought Rs. 300/-. The accused, therefore, demanded the said amount of Rs. 300/-. The complainant paid it to the accused. The accused had accepted it by his left hand and kept it in his hand. At that time panch No. 1 again came there to inquire whether he is required to pay hire charges immediately. To this he was informed "go to the office and wait there". Thereafter panch No. 1 went ahead of the complainant and gave the agreed signal. Immediately raid was carried out. P.I. gave his introduction. At that time the accused threw the currency notes on the ground. P.I. Jhala directed one Constable to keep a watch on the currency notes. P.I. Jhala, accused, complainant and panchas thereafter went at the quarter of the accused. The P.I. called for the currency notes and panch No. 1 was directed to compare the Nos. with the Nos. mentioned in the Panchnama. The currency notes were seen under ultra violet lamp and on the notes white shining marks were noticed. Left hand of the accused was seen under ultra violet lamp. On his left hand white shining marks were noticed on the finger tips and on the palm of the accused. Nothing was found on his right hand. Similar marks of anthracene powder were seen on the hand of the complainant and on his bush shirt. Thereafter from the accused case papers pertaining to departmental enquiry against the complainant with regard to the incident of 9th Nov. 1982 were seized after preparing a list of the case papers. Necessary panchnama was prepared at 3-45 p.m.
4. After completing the necessary investigation the accused were prosecuted before the Special Judge, Valsad in Special Case No. 3/ 83. It is the defence of the accused that the say of the complainant that after recording the statement of the complainant on 23-3-83 he had called the complainant and demanded Rs. 400/- is false. It is his further say that on 6-4-83 he had no talk with the complainant. He has admitted that panch No. 1 Manubhai came at his quarter and had inquired for bus for going to Nasik. To that he had told him to come to office. He has denied the say of the complainant that he had demanded Rs. 300/ - and accepted it by his left hand, he admits that after preparing the list the case papers of the pending departmental enquiry against the complainant were seized. It is his say that on 7-4-83 at about 1-30 p.m. the complainant came at the quarter and informed him that one Thakorebhai was not giving him specific assignment and was moving him from place to place. The complainant, therefore, requested the accused to give necessary instructions to Thakorebhai. He, therefore, informed the complainant to come in the office. After the complainant was walking ahead, near Menhdi hedge of his quarter the complainant turned back and tried to place currency notes in his hand. To this attempt the complainant moved his hand and the notes fell down. He inquired from the complainant for what he was paying the amount. The complainant replied that his case was pending. He informed the complainant that his case was over and he is already informed about it. During that time P.I. Jhala and other came there.
5. For proving its case, the prosecution has examined P.W. 1 Shankerbhai Kakadiabhai, the complainant at Ex. 11, P.W. 8 Manubhai Rambhai, panch No. 1, P.W. 3 Babubhai Makanbhai, Clerk of the S.T. Corporation at Vapi Depot, who had produced the necessary papers, P.W. 4 P.H. Koli, Checking Inspector, P.W. 5 Surendra Stivan Ex. 26 who had produced the order sanctioning the prosecution of the accused and P.W. 6 Pravinsinh Jilubha Jhala the investigating officer. The accused has examined P.W. 1 Thakorbhai Somabhai Patel, Clerk in Valsad Division, who has produced the Inward Register and D.W. 2 Vinodhbhai Ramanlal, Junior Assistant at Vapi S.T. Depot. After appreciating the evidence of the aforesaid witnesses and the contentions raised by the defence, the learned Judge arrived at the conclusion that the prosecution has proved its case beyond reasonable doubt and, therefore, convicted the accused for the offences for which he was charged.
6. At the time of hearing of this appeal, learned advocate for the appellant submitted that the prosecution has failed to prove the valid sanction to prosecute the appellant accused and, therefore, the conviction is illegal. On merits he submitted that the learned Judge erred in appreciating the evidence of the complainant and panch No. 1. According to his submission, panch No. 1 is not an independent witness as he is highly interested in the success of trap. He further submitted that the prosecution story that the accused demanded the bribe amount on 23-2-83 and 6-3-83 is unnatural one because the departmental enquiry against the complainant was already decided by the accused. He further submitted that the say of the complainant that the accused gave the amount in his hand and had not kept in his quarter or in his pocket is unnatural and, therefore, it requires to be rejected. He submitted that panch No. 1 is a Govt. servant and he is under constant fear that if he states something contrary to panchnama or his statement before the police, the departmental enquiry would be held against him and, therefore, his evidence cannot be relied upon. As against this, the learned Additional Public Prosecutor appearing on behalf of the respondent submitted that the prosecution has proved its case beyond reasonable doubt and that sanction to prosecute is valid and is properly proved.
7. From the evidence as it stands it is proved and admitted that the appellant accused was conducting a departmental enquiry against the complainant Shankerbhai for the incident of 9th November 1982 for not issuing tickets to 2 passengers on the basis of report made by Traffic Inspector P.H. Koli who checked the bus at Silvasa. It is also proved and not disputed that the complainant had not recovered any fare from the said two Adivasi passengers. The Traffic Inspector recovered the fare and penalty from the said two passengers. On 23-2-83 the accused had recorded the statement of the complainant and P.H. Koli. The statement of the complainant is at Ex. 13. In the said statement it is stated that from Madhuban Colony to Silvasa bus was Express bus and it came to Silvasa only within 10 minutes. During that time he was issuing tickets to the persons. It is his say that he had shouted requesting the passengers to take tickets but the said two passengers had not taken tickets. Finally he had stated that in future he would take care. Ex. 14 is an application before the Depot Manager requesting him to permit the complainant to examine the co-employee L. M. Contractor at the time of hearing of the matter. Ex. 15 is a statement of Mr. P.H. Koli P-.W. 3 Babubhai Makanbhai, who is working as a Clerk in the office of the S.T. Depot at Valsad in the Record Branch, is examined to prove that no final order was passed by the accused Depot Manager against the complainant S.K. Rohit in the departmental case for the incident of 9th November 1982. He has produced the relevant extract as Ex. 21. Item No. 4 of Ex. 21 reveals that with regard to the other case penalty was imposed against the complainant. There is no entry with regard to the incident of 9th November 1982. P.W. 4 P.H. Koli is examined to prove that on 9-11-82 he had checked the bus and made the necessary report. His statement is also recorded by the accused at Ex. 15. The accused has examined D.W. 1 Thakorbhai Somabhai Patel at Ex. 37 to prove the registers at Exs. 21 & 22. He has also examined Vinodbhai Ramanlal who is working as Junior Assistant at Vapi Depot. He was also shown the Default Register Ex. 21 and Exs. 42 and 43 registers. He has stated that according to this register the Default Case No. 377/82 against the complainant was decided on 24-3-83. However, in the cross-examination he has admitted that the said Default Case was not decided on 24-3-83. He has also admitted that till 6-4-83 the said case was not decided. Therefore, it was not included in the Default Register Ex. 21. In spite of the aforesaid evidence, learned advocate for the appellant submitted that as the Default Case No. 377/ 82 against the complainant was already decided on 24th March 1982, there was no question of demanding any amount from the complainant. In our view, as the record stands, it is difficult to accept the contention of the appellant that he had decided the Default Case against the complainant with regard to the incident of 9th November 1982 on 24th March 1983. His own witness D.W. 2 Vinodbhai states that no information was received up to 6th April 1983 that the said case was decided by the accused. Further, it is an admitted act that from the accused the entire case papers pertaining to the Default Case No. 377/82 were seized by preparing a list and they were produced as muddamal Article No. 3. Subsequently the said documents are exhibited. From these documents it is clear that there is no order passed by the accused appellant deciding the aforesaid Default Case. Hence this contention of the learned advocate for the appellant is without any substance. It is true that the statement of the complainant and the statement of Mr. Koli were recorded by the accused. But thereafter he had not passed any final order. From the statement of the complainant which is at Ex. 14 he admits that at the time of the checking the Traffic Inspector had fround two persons without tickets but it is his say that the said two persons had not taken tickets in spite of the fact that he had raised shouts requesting the passengers to take tickets. It is his say that the said two Adivasi passengers had not taken tickets mala fide. In view of the evidence as it is on record, it is proved beyond reasonable doubt that the accused had not passed any final order in the departmental enquiry. There is no cross-examination of the investigating officer that he has not seized along with other case papers the final order in the departmental enquiry passed by the accused. In this view of the matter, the appellant's application for permitting him to lead additional evidence requires to be rejected. His contention that there was no reason to demand bribe amount from the complainant also requires to be rejected. Therefore, it cannot be said that there was no reason for the accused to ask any amount from the complainant.
8. Mr. Shah, learned advocate for the appellant, further submitted that the story of demand of Rs. 400/- on 6th March 1982 requires to be rejected because the appellant was knowing that the complainant had already received salary on 6th March 1983 and if he was really interested in taking any amount from the complainant, he would not have permitted the complainant to go home without insisting for payment of bribe amount. In our view, this cannot be accepted for the simple reason that the accused cannot use force or compel the complainant to part with the money. If the complainant had promised that he would pay it on the next day, then the accused would wait.. It would be difficult to presume that for recovering the bribe amount a person would adopt any compulsive tactics and would not wait for some time.
9. Mr. Shah, learned advocate for the appellant, further submitted that the story of the prosecution witnesses that after accepting the amount of Rs. 300/- the accused had not placed it in his pocket or in his quarter is unnatural and, therefore, it should be discarded. In our view, it would be difficult to draw any inference how the accused would keep the bribe amount. It depends upon his own instinct. His behaviour cannot be visualised. It depends upon his own notion and mood. But it cannot be said that if the accused had kept the amount in his hand, his conduct is unnatural.
10. In our view, the say of the complainant is fully corroborated by the FIR as well as by panch No. 1 and panchnama Ex. 18. No doubt the complainant admits in his cross-examination that against him 8 charge-sheets were submitted by the department and that the accused has conducted departmental enquiry. But that does not mean that there was any personal enmity between the accused and the complainant. As discussed above, the say of the accused that he has already decided the departmental enquiry on 24-3-83 with regard to the incident of 9th November 1982 is not correct. As such the accused admits that on 7-4-83 the complainant met him at his quarter. It also requires to be emphasized that the accused had admitted that panch No. 1 had also been there for making necessary enquiry with regard to hiring of bus for going to Nasik. Panch No. 1 fully corroborates the say of the complainant that the accused demanded Rs. 300/- from the complainant at that time. Merely because panch No. 1 P.W. 2 Manubhai is a Govt. servant, it cannot be said that his evidence requires to be discarded. His evidence is found truthful on all material points. Dealing with the similar type of contention in the case of State of Gujarat v. Raghunath, AIR 1985 SC 1092 : (1985 Cri LJ 1357), the Supreme Court held that the Court is not entitled to reject the evidence of witnesses merely because they are government servants, who, in the course of their duties or even otherwise, might have come into contact with investigating officers. Their evidence cannot be rejected merely because they are called in to associate themselves with the investigation as they happened to be available or it is convenient to call them. There is no need to view their evidence with suspicion. In the present case panch No. 1 is working as statistical Assistant in the District Supply Office. Nothing is pointed out in the cross-examination of this witness as to how he is interested either in the accused or in the complainant or in any way connected with the investigating officer. To one question in the cross-examination he replied that he was required to act in such a manner which is not prejudicial to the interest of the State and that a departmental enquiry could be held against him if he acts against the interest of the State. From this reply it cannot be held that he is interested in false prosecution. To a further question in the cross-examination he replied that if he did not depose as per the panchnama, it was quite probable that the departmental enquiry might be held against him. From this statement Mr. Shah, learned advocate for the appellant, submitted that in view of the apprehension on the part of the witness, the witness was deposing as per the panchnama which was dictated by the investigating officer. In our view, this submission is a far-fetched one. As such the witness has nowhere stated that he was deposing before the Court as per the panchnama only because he was apprehending that departmental enquiry could be initiated against him if he deposed something contrary to panchnama. No inference can be drawn from the said statement that the witness is stating falsehood before the Court. The presence of this witness at the relevant time is also admitted by the accused. However, it is the say of the accused that he had asked the witness to wait in the office for making enquiry for hiring bus for going to Nasik. It is the say of this witness that instead of going at the office, he waited there at some distance and after the accused accepted money, he gave the agreed signal. It is settled law that while appreciating the evidence of a witness the Court should not attach much importance to minor discrepancies which do not shake the basic version of the prosecution and should ignore the errors due to lapse of memory or ignore those statements made by a witness under fear or confusion from imagination on the spur of moment.
11. This principle is reiterated by the Supreme Court in the case of Appabhai v. State of Gujarat, AIR 1988 SC 696 : (1988 Cri LJ 848), and the relevant discussion is as under at page 700 of AIR :
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observations should not be given importance. The errors due to lapse of memory may be given due allowance. The Court, by calling into aid its vast experiences of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When doubt arises in respect of certain facts alleged by such a witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
The Court further referred to the previous judgment of the Supreme Court in the case of Bharwad Bhogibhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 : (1983 Cri LJ 1096), and relied upon the following paragraph at page 756 of AIR :
"A witness though wholly truthful is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -- perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when the all important" probabilities factor" echoes in favour of the version narrated by the witnesses."
Hence, in our view, the learned Judge has rightly appreciated the evidence of the complainant and panch No. 1. It cannot be said that as panch No. 1 is a Government servant, he is interested in telling falsehood before the Court. In our view, he is totally independent and disinterested witness.
12. Further, as per the evidence of these witnesses the marks of anthracene powder were found on the finger tips, the thumb tip and the palm of the left hand of the accused. This also corroborates the say of the prosecution witnesses that the accused kept the currency notes in his left hand. The say of the accused that the complainant tried to place the currency notes in his hand and at that time he gave a push and, therefore, currency notes fell down cannot be accepted as there is no basis for it.
13. With regard to the contention of the learned advocate for the appellant that the prosecution has failed to prove valid sanction to prosecute the accused, it would be necessary to consider sanction order Ex. 28 and the evidence of P.W. 5 Surendra Stivan Ex. 26 who was at the relevant time working as a Section Officer in the office of Gujarat State Road Transport Corporation. It is his say that the Vice Chairman and General Manager of the Gujarat State Road Transport Corporation after going through all the relevant papers had given written sanction to prosecute the accused and he has produced that order at Ex. 28. It is his say that the draft and or relevant papers were placed before the authority. Form for grant of sanction was received from the office of the Anti-Corruption Bureau. He also states that in his presence the General Manager had not read the papers. From this statement, learned advocate for the appellant submitted that as there is no evidence on record to show that the competent authority had read all the papers before giving sanction to prosecute the accused, the sanction order is invalid one. In our view, this submission is without any substance. If we refer to the sanction order Ex. 28, it is clear that on the top of it it has been mentioned that record of investigation of trap case made out by P.I., A.C.B., Valsad, against the accused was read. The order itself provides that the accused is removable from his office by the Vice-Chairman and General Manager, Gujarat State Road Transport Corporation, Ahmedabad. It further provides that it is alleged against him that on 23-3-83 he demanded Rs. 400/- from the complainant as a gratification other than legal remuneration as a motive or reward for showing favour to the complainant in the departmental proceedings being held against him for the charges of non-issuance of tickets to the two passengers. It further recites that on 6-4-83 the accused demanded the said amount and agreed to accept Rs. 300/- from the complainant on 7-4-83. On 7-4-83 he accepted the amount at his residence in the S.T. Depot compound at Vapi. This sanction order is, therefore, perfectly in order. No inference can be drawn that the sanctioning authority had not applied its mind to the facts of the case.
14. Mr. Shah, learned advocate appearing on behalf of the appellant, submitted that there is no evidence on record to show that the competent authority has applied its mind to the facts of the case before granting sanction as the person who has passed the order granting sanction to prosecute the accused is not examined. It is not necessary that for proving the sanction order the sanctioning authority is required to be examined. In the case of State of Rajasthan v. Tarachand, AIR 1973 SC 2131 : (1973 Cri LJ 1396), the Supreme Court has in terms held that where the facts constituting the offence appear on the face of the sanction accorded by the Chief Minister, it is not necessary for the prosecution to lead separate evidence to show that the relevant facts were placed before the sanctioning authority :
"17. The fact that the Chief Minister was competent to accord sanction for the prosecution of the respondent in accordance with the Rules of Business has not been disputed before us but it has been urged that the prosecution has failed to prove that the Chief Minister accorded his sanction after applying his mind to the facts of this case. So far as this aspect of the matter is concerned, we find that the position of law is that the burden of proof that the requisite sanction had been obtained rests upon the prosecution. Such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based. These facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority.
18. The question of sanction was dealt with by the Judicial Committee in the case of Gokulchand Dwarkadas Morarka v. The King, 75 Ind App 30 : AIR 1948 PC 82 : (1949 Cri LJ 261). That case related to a sanction Under Clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943 which provided that no prosecution for the contravention of any of the provisions of the Order would be instituted without the previous sanction of the Provincial Government. The judicial Committee in this context observed (at page 84 of AIR 1948 PC) :
"In their Lordships' view, to comply with the provisions of Clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since Clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority." (Emphasis added)
15. From the aforesaid decision it is crystal clear that if the facts appear on the face of the sanction, then there is no question of proving it by leading evidence of the authority who has accorded sanction to prosecute. No separate evidence is required to be led to show that relevant facts were placed before the authority. If the facts are riot appearing on the face of the sanction, then it can be proved by independent evidence that sanction was accorded after those facts had been placed before the sanctioning authority.
16. Same view is taken in the case of Shiv Rai Delhi Administration, AIR 1968 SC 1419 : (1969 Cri LJ 1). In that case also the Supreme Court followed the aforesaid decision of the Privy Council. The Court held that the Order of Sanction shows on the face of it what were the facts constituting the offence charged and that a prima facie case was made out against the accused. It also further recited that after fully and carefully examining the material before him in regard to the aforesaid allegations in the case, it considered that a prima facie case was made out against the accused. The Court held that the aforesaid sanction order fulfilled the requirements of Section 6 of the Prevention of Corruption Act.
17. Same is the ratio in the case of Madan Mohan v. State of Uttar Pradesh, AIR 1954 SC 637. In that case also the Court held that the burden of proving that the requisite sanction has been obtained rests on the prosecution and such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based. The Court further held that the said facts might appear on the face of the sanction or might be proved by extraneous evidence.
18. Mr. Shah, learned advocate appearing on behalf of the appellant, however relied upon the decision of the Supreme Court in the case of Mohd. Iqbal Ahmed v. State of A.P., AIR 1979 SC 677 : (1979 Cri LJ 633). He submitted that even if the sanction order contains facts constituting the offence, the prosecution must prove that the authority has applied its mind to the facts and thereafter accorded sanction to prosecute. He relied upon the following observations which are as under (at page 679 of AIR 1979 SC) :--
"This document no doubt contains the facts constituting the offence but that does not solve the legal issues, that arise in this case. It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fall because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. In the instant case no evidence has been led either primary or secondary to prove as to what were the contents of the note mentioned in Exibit p-16 which was placed before the Sanctioning Authority. The evidence of P.W. 2 or P.W. 7 is wholly irrelevant because they were not in a position to say as to what were the contents of the note which formed the subject-matter of the sanction by the Standing Committee of the Corporation."
This decision also lays down the same ratio. It in terms states that valid sanction can be proved by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction. In the present case, as discussed above, this has been done. The sanction order Ex. 29 is an eloquent one. It contains facts constituting the offence and that the authority has applied its mind by referring to it. Therefore, once the facts on which the proposed prosecution was to be based appears on the face of the order no further evidence is required to be led by the prosecution.
18A. Lastly Mr. Shah, learned advocate for the appellant, submitted and also filed an application that minimum sentence imposed by the learned Judge be reduced. The learned advocate vehemently submitted that at present the appellant is aged 60 years; he is suffering from Coronary Ischekia, Diabetes, Chronic Reheumatoid Arthritis and, therefore, instead of R.I. a fine may be imposed. Having regard to the age of the accused and the medical certificates which are produced on record to show that the appellant is suffering from heart ailment and that he is a diabetic patient and that he has lost his one eye, the sentence is reduced to six months' R.I. and a fine of Rs. 500/-.
19. In the result, the appeal is partly allowed. The conviction of the appellant for the offences Under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act is confirmed. However, the order passed by the learned Special Judge imposing R.I. for one year for the said offences is modified and it is ordered that the appellant shall undergo sentence of R.I. for six months. The fine of Rs. 500/-imposed by the learned Special Judge and the sentence in default of payment of fine are confirmed. The bail bonds of the appellant accused shall stand cancelled.
20. Mr. Shah, learned advocate for the appellant, prays for time to the appellant to surrender to custody. The appellant is directed to surrender to custody on or before 20th September 1989.