Madras High Court
D. Venkatasan vs The State on 26 September, 1996
Equivalent citations: 1997CRILJ1287
JUDGMENT
1. The above appeal is directed against the Judgment of conviction and sentence rendered by the IX Additional Special Judge, Madras in C.C. No. 7 of 1990 on 26-3-1991, whereunder, the appellant was found guilty for the offence under Section 7(3 Courts) and 13(1)(d)(1) and (2) r/w 13(2) of the Prevention of Corruption Act, and sentenced to undergo rigorous imprisonment for a period of six months each with a fine of Rs. 500/- in default of payment of which to undergo rigorous imprisonment for a period of one month under each count under Section 7, and to undergo rigorous imprisonment for a period of one year with a fine of Rs. 500/- in default of payment of which to undergo further rigorous imprisonment for a period of one month under S. 13(1)(d)(1) and (2) read with 13(2) of the Prevention of Corruption Act and the sentences were ordered to run concurrently.
2. The appellant was working as Sub Inspector of Police, Traffic Investigation Wing, attached to Anna Square Police Station on the relevant day of occurrence in the case.
One Mr. Ayub of Madras working as Accounts Assistant in Climax Agency, Nungambakkam, along with one Vijayaragavan a co-employee happened to travel in an auto-rickshaw from the State Bank Overseas Branch at the first like (sic) beach road to their office at Nungamkkam at about 1 p.m. on 22-7-1989, driven by P.W. 1 Agastih. The auto-rickshaw was bearing the registration mark M.M.R. 599. When they were approaching the Periyar Statue in Anna Salai after crossing Manroe statue, a Maruthi car came in the opposite direction and had a sudden turn towards Gimkhana club and to avoid the head on collision P.W. 1 applied the break of the auto-rickshaw, which became capsized upside down, with the result, both the passengers, P.W. 8 sustained the fracture of the bone in his right hand . This was followed by both the injured being taken to the Government Hospital . After the treatment, P.W. 1 and the driver of the Maruti car were taken to the Anna Square Police Station, where, it was stated that the accused/ appellant herein, had demanded a sum of Rs. 500/- as bribe, to help him in the case, for which P.W. 1 was not agreeable as he was very poor but however, he had agreed for payment of Rs. 400/- and to bring the money P.W. 1 was sent out and the auto-rickshaw and its connected documents were retained in the Police Station itself When P.W. 1 tried to contact P.W. 2 kabali over phone he was not available and therefore, he approached P.W. 5 Thiagarajan at his house and got a sum of Rs. 150/-. Subsequently, P.Ws. 1, 2 and 5 had been to the Anna Square Police Station and took P.W. 1 on bail by giving a sum of Rs. 150/- to the accused by way of bribe. To return the R.C. Book the accused demanded a sum of Rs. 150/-. Then P.W. 1 approached P.W. 7 Perulal Patna, a Pawn Broker, at about 8 p.m. on that day and got a sum of Rs. 350/- by pledging his ring and the pledge receipt was marked as Ex. P. 1. On the next day, i.e. on 23-7-1989, P.W. 1 paid another sum of Rs. 150/- to the accused and consequently, the accused had instructed him to take the auto-rickshaw for brake test with the necessary form. Accordingly, it was taken to the Regional Transport Office, Cheput and Subjected to brake test but however, he was instructed to bring Rs. 100/- the balance at 8 p.m. on the next day after the brake test was over. On 24-7-1089 P.W. 3 Mr. Veerapandi, the Brake Inspector, inspected the vehicle brought by P.W. 1 and issued Ex. P. 5 certificate. P.W. 1 thought of reporting the whole matter to the Vigilance and Anti Corruption Police and consequently took P.W. 5 Mr. Thiagarajan to the Office of the Deputy Superintendent of Vigilance and Anti Corruption Mr. Nallama Naidu, examined as P.W. 12 and narrated the whole thing happened so far. On his instructions, he gave a written complaint to P.W. 13. P.W. 13 on the receipt of the said complaint, verified it with the complainant later registered it in Crime No. 10 of 1989 and took up the case for investigation. The written complaint given by P.W. 1 is Ex. P. 2. As instructed, P.W. 1 went to the Police Station in the evening. In the meanwhile P.W. 13 had requisitioned P.W. 4 Mr. Thanikachalam and another Srinivasan and introduced P.W. 1 to both and appraised them of the complaint received and registered already. He also verified the bribe money brought by P.W. 1, 20 rupee denomination - currencies 5 in number, the numbers of which was taken down in a white paper. Then the phenolpthalein test to be conducted was demonstrated to the witnesses by P.W. 13 by bringing two glass tumblers containing sodium carbonate solutions. P.W. 4 and another Srinivasan were asked to dip their fingers in the solution. There was no change of colour. After smearing phenolpthalein powder on the currency note, P.W. 4 and the other witness were asked to count them and then they were asked to dip their fingers in the sodium carbonate solution. The solution turned pink in colour. A mahazar Ex. P. 4 was prepared for all the incidents happened so far and the same was attested by witnesses. P.W. 1 and P.W. 4 were sent to Anna Square Police Station in an auto rickshaw with a direction of bribe. P.W. 13 along with the party had proceeded to the Anna Square police station but however stopped near the Surangani restaurant in the beach road. P.W. 13 and witness Srinivasan took position in the grass lawn opposite the main entrance of the Anna Square police station about 9 p.m. on that day, on seeing the signal given by P.W. 1 as instructed, P.W. 13 and other witnesses entered the police station, where P.W. 1 pointed out the accused as the person who demanded the money and received the bribe. After having instructed P.W. 1 to wait in the vigilance and Anti Corruption Office by putting a table and chair in the entrance of Anna Square police station. P.W. 13 prepared a sodium carbonate solution and made the accused dip his right hand fingers and the solution turned pink in colour. The contents were duly packed and sealed in a glass tumbler attested by the witnesses, which is M.O. 2 The money found in the left hand of the accused was recovered and it was verified and found tallying with Ex. P. 4 and then P.W. 13 made the accused to dip his left hand fingers in the sodium carbonate solution prepared in another glass tumbler. The solution turned pink in colour. That solution was packed in a glass tumbler and labelled and attested by witness. That is M.O. 3. Then P.W. 13 entered inside the Police Station and recovered the copy of the accident register involved in the instant vase and other documents Ex. P. 6, 14, 15 and 16. Then he prepared Ex. P. 8 mahazar as to what took place in the Police Station and obtained the signatures of the witnesses. He also prepared a rough sketch showing the topography of the scene of crime. He arrested the accused at about 10.30 p.m. on that day and searched the house of the accused in Ice House, where no incriminating material was found. Ex. P. 9 is the search list. He then sent requisition Ex. P. 10 to the Court to send M.O. 2 and M.O. 3 for chemical examination. P.W. 9 Mr. Malayappan despatched M.O. 2 and M.O. 3 for chemical examination under the original of Ex. P. 11 and the Chemical Examiner's report Ex. P. 12 was received in Court. P.W. 6 Kalyanaraman was examined to show that it was under him P.W. 2 Kabali was working on the day of occurrence and that on that day P.W. 2 came and attended the Office. P.W. 10 working as Superintendent in the Office of the Commissioner of Police, Madras, has spoken to the factum of the receipt of the report sent by the Director of Vigilance and Anti Corruption with the entire case file and the case records and the statements recorded from the witnesses and other documents and that he placed everything before the Commissioner of Police Mr. Rajasekaran Nair, for perusal and after having considered the same, a sanction order under Ex. P. 13 was accorded by the authority. P.W. 11 working as Inspector of Police at Anna Square Traffic Investigation Wing during the day of occurrence claims that during the relevant date the accused was working as Sub-Inspector of Police under him. After the investigation was over, P.W. 13 submitted the final report to the Court against the accused for the alleged offence above referred.
3. When the accused/appellant was examined under Section 313(1)(b) of the Code of Criminal Procedure, on the basis of the incriminating circumstances appearing against him in evidence, he has denied his complicity in the crime but however he did not choose to examine any witnesses on his behalf. Two documents Ex. D1 and Ex. D2 respectively dated 21-7-1989 and 9-12-1989 xerox copies of the proceedings of the Commissioner and the Assistant Commissioner were marked on behalf of the accused. But however, it is found that the said documents have no relevancy for the facts of this case, nor any attempt was made to show as to how the said documents acquired any nexus in this case.
4. On a careful consideration of the oral evidence tendered by P.Ws. 1 to 13 and documentary evidence under Ex. P. 1 to Ex. P. 18 with Ex. D1 and Ex. D2 with the material objects marked as M.O. 1 to M.O. 3, the learned trial Judge has found that the prosecution has established the gift of the accused for the offences charged and tried against the accused/appellant, convicted and sentenced him as referred to supra by rendering the impugned judgment. Aggrieved, the appellant has come forward with this appeal. I have heard the Bar against the impugned judgment and the learned Government Advocate for the confirmation of the same.
5. The overall attack projected by Mr. Madangopal learned counsel appearing for the appellant is that the prosecution case as claimed by P.W. 1 and P.W. 4 cannot be believed for the mere reasoning that it lacks every corroboration and substantiation by any other witnesses and that the payments made by P.W. 1 to the accused in two prior occasions had not at all been corroborated by anyone and that in seeing a person of that character to give the bribe to the accused for getting him relieved of the case, his version regarding the payment made on the third occasion has become highly suspicious and in the context of no corroboration, it is quite unsafe to rely upon his evidence. In so far as P.W. 4, the trap witness is concerned, he is only a tutored person, made to speak by the Investigating Officer P.W. 13, as instructed and that therefore, the non-examination or citing any other witness in the Police Station or in the nearby vicinity would make it impossible to believe the prosecution version, particularly, P.W. 1 and P.W. 4 and if the evidence of P.Ws. 1 and 4 were suspected accordingly in the context of no corroboration, then the whole presecution must fail for the very reasoning the concept of demand and compliance of demand by giving the bribe has not at all been established before the Court below and as such, the Court below failed to take note of the same. The second contention raised by the learned counsel is that the verasity of the evidence of P.Ws. 2, 1, 4 and 13 with the actual support of Ex. P. 8 are not at all safe to be accepted for the very reasoning that after recovery of M.O. 1 series and conduct of phenolpthalein test on two occasions by subjecting the fingers of the accused, Ex. P. 8 mahazar was prepared and it was prepared in the presence of witnesses and attested by them but the same does not bear any number of the currencies, M.O. 1 series. This lacuna found out from Ex. P. 8 is very vital according to the learned counsel which even goes to the extent of demolishing the entire prosecution case for the very reasoning that what was recovered from the hands of or the person of the accused at the relevant time and day of occurrence has not at all been proved by the prosecution in the context of the specific numbers of currencies M.O. 1 series has not been noted down in Ex. P. 8. The very explanation given by P.W. 13 whilst he was in the box is liable to be rejected for the reasoning that nothing prevented him to take down the number of M.O. 1 series in Ex. P. 8. Therefore, learned counsel would urge before me that this aspect also totally negatives the prosecution case in full. The third attack by learned counsel against the prosecution is that Ex. P. 13, the sanction order as spoken to by P.W. 10 by itself would reveal that it was passed not in accordance with the laid down principle of law but passed so mechanically without application of its mind by the sanctioning authority. He would contend further that the above said aspect was evident from the fact that a mere report of the Director of Vigilance and Anti Corruption has been perused with the connected records and it is not known what are all they and how he arrived at the positive conclusion of granting sanction to prosecute the accused for the offences charged. A mere perusal of the impugned order under Ex. P. 13 would show that it has been passed so mechanically and certainly not with reference to any of the grounds or materials identified to formulate the grounds for prosecution. On this score also, he would submit that the prosecution case has to fall to the ground, which the learned trial Judge has failed to take note of.
6. Counteracting the said contentions, Mr. Kumaresan, learned Government Advocate would submit that the concept of the demand of bribe on more than one occasion and the compliance of the same by P.W. 1 even in the presence of P.W. 2 and P.W. 5 has been fully established with every corroboration and substantiation by the demonstration of the phenolpthalein test conducted and the chemical examiner's report Ex. P. 12 and with the evidence of P.W. 13 and that therefore the prosecution has established the guilt of the accused/appellant beyond all reasonable doubts. Learned Government Advocate would further contend that the mere omission of noting down the currency number in Ex. P. 8, the recovery mahazar in the scene of crime does not go either to create a suspicion or to controversy the case of the prosecution in the context of the smearing of the Phenolpthalein powder on the currency notes already and the presence of phenolpthalein powder in the hands of the accused and the chemical examiner's report reveals the positive evidence against the accused and even so, P.W. 13 has explained for the omission of the numbers. Regarding the sanction order under Ex. P. 13; learned Government Advocate would submit that it was a valid one, passed after consideration of all the necessary records as claimed by P.W. 10 as evidence aliunde. By so pleading, he would try to justify the impugned judgment rendered by the learned Special Judge.
7. In the context of the above, rival position, circumstances, evidence and materials, the only question that arises for consideration is whether the prosecution has established the guilt of the accused beyond all reasonable doubts and if so, whether the impugned judgment rendered by the trial Judge is correct and valid in law.
8. The facts that the accused/appellant was working as a Sub-Inspector of Police in the Traffic Investigation Wing of the Anna Square Police Station on 22-7-1989 and that P.W. 1 who was driving an auto-rickshaw got himself involved in an accident near Periyar statue at Anna Salai, Madras, at about 1 p.m. on 22-7-1989 and consequently, P.W. 8 and another by name Vijayaraghavan got injured and that after the treatment given to them at the Government General Hospital, the injuried as well as the driver of the Maruthi Car as well as P.W. 1 were all taken to the Anna Square Police Station where the accused was working are not all in dispute or controversy among the parties herein. The prosecution case goes to show that in order to belp the accused in the accident case, namely, P.W. 1, the accused/appellant demanded a sum of Rs. 500/- by way of bribe and that however was reduced to Rs. 400/- on the question of capacity of P.W. 1. P.W. 1 would claim that on the same day itself, he has paid a sum of Rs. 150/- to the accused and then only he was allowed to go outside by retaining the auto-rickeshaw and the R.C. Book and there was a demand by the accused to pay a further sum of Rs. 150/- for the return of the R.C. Book. It was the further claim of P.W. 1 that though he approached his friend by name Kabali working in the Secretariat over phone he could not get in touch with him and therefore approached P.W. 5. Thiagarajan on the evening of 23-7-1989 and got Rs. 150/-. However, he would claim further that by pledging his ring to one Marvadi under Ex. P. 1, he was able to get a sum of Rs. 350/- and out of it the second instalment of Rs. 150/- has also been paid on the next day. With regard to the remaining 100 rupees, it was the case of P.W. 1 that he was entrusted with the auto-rickshaw with a form by the accused to go and subject the same for brake test in the Regional Transport Office and get the certificate and return the same with the balance of bribe money and this accordingly after having completed the brake test and got a certificate under Ex. P. 5, P.W. 1 was determined to lodge a complaint to the Vigilance and Anti Corruption to book the accused under law. Therefore, he approached to Deputy Superintendent of Police Mr. Nallama Naidu, examined as P.W. 12, who after verification instructed P.W. 1 to give a written complaint and when he handed over the same, it was entrusted to P.W. 13 to go ahead and consequently, every arrangement for setting up the trap has been started. The trial Court believed the version of of P.Ws. 1, 2, 4 and 5 on the one hand on the basis of the phenoplthaleintest conducted as claimed by P.W. 13 and the documentary evidence Ex. P. 12. P.W. 1 seems to be a person doing the profession of driving auto-rickshaw for hire and that when he was taking the passengers from beach road to Nungambakkam, he had been following the route of Anna Salai crossing Manreo statue. It was his claim that when he was nearing the Pariyar statue due to the sudden swerve of a Maruthi Car coming in the opposite direction, he applied the brake of his vehicle in order to avoid head on collision, with the result, the auto-rickshaw capsized in full and consequently, both the passengers, P.W.8 and another sustained injury and both were taken to the hospital and treated and from where, they were taken to Anna Square Police along with the auto rickshaw in question.
9. Though the evidence of P.W. 1 in this regard along with P.W. 8, the injured stranger appears to be an acceptable one and the connected records in this case were said to have been recovered by P.W. 13, namely, Ex. P. 6, 14, 15 and 16, prosecution is obviously silent about the fact as to what was the case to be filed against the driver of the Maruthi car who caused the accident and mainly responsible for the entire episode. It is not known whether the driver of the Maruthi car was also booked along with the accused or not. The investigation in this case had not evinced any interest of their own to probe the matter further and the above all, the documents Ex. P. 6, 14, 15 and 16 were all recovered from the table drawer of the accused immediately after the occurrence by P.W. 13. If the case of the prosecution, particularly, P.W. 1 that to belp the accused by not registering any case against him for any offence if the demand of bribe was made, then such of the documents under Ex. P. 6, 14, 15 and 16 would not have been found in the custody of the accused. A case has been registered and the vehicle involved, namely, the auto-rickshaw was subjected to the brake test and the accused/appellant appears to have let. P.W. 1 on bail on the day of the accident itself and the certificate Ex. P. 5 was obtained through P.W. 1 himself. One another obvious factor to be seen in this case is that after having paid the first instalment of Rs. 150/- on 22-7-1989 itself P.W. 1 claims that he was allowed to go out but however, for the purpose of bringing the balance amount on the next day for the return of the R.C. Book and that accordingly P.W. 1 went outside and pledged his ring to a Marvadi and got Rs. 350/- and with that paid the second instalment of Rs. 150/- but however, he failed to get the return of the R.C. Book from the custody of the accused. It is all well to note at this stage that it was not the case of P.W. 1 that even after he paid the amount of Rs. 150/- the second instalment, the accused/appellant dodged to return the R.C. Book or refused to return the R.C. book as promised. The above aspect has not at all been spoken by the prosecution and there was no iota of explanation offered before the trial Court by P.W. 1. On the other hand, according to the prosecution, the Registration Certificate of the auto-rickshaw was still in the hands of the accused/appellant along with Ex. P. 6, 14, 15 and 16.
10. It was only on the third day, namely, after having got the auto-rickshaw with the prescribed form provided by the accused and having subjected the same to the brake test in the Regional Transport Office, elsewhere in the City, the complainant P.W. 1 suddenly felt aggrieved by the demand made by the accused/appellant and thereupon impelled to lodge a complaint to the Vigilance and Anti Corruption Police and consequently, he along with P.W. 5 went and gave a written complaint to P.W. 12. Having paid the bribe on two days consecutively without getting any concession from the accused, the third day P.W. 1 obliged the accused in subjecting his vehicle for the brake test and suddenly thought of lodging complaint as if he is an innocent true man, gives every suspicion over the conduct of P.W. 1.
11. It is also noticed that P.W. 1 is also a driver of an auto- rickshaw running for hire in the City and to angment his profession he has to seek the support and co-operation of the Traffic Police and instead if any driver goes against, it has become quite natural that such person has to face the consequences at the hands of the Traffic Police. It is under these circumstances if the above aspects are viewed meticulously, I am not inclined to attach any credance to the claim of P.W. 1 as a whole for the mere reasoning that P.W. 1 was not compelled to pay the bribe on only one occasion and it is made clear that on two more occasions, he was made to pay and he has paid the bribe even as claimed by him it is noted that he had no money to pay but however he has borrowed add paid. P.W. 2 and P.W. 5 his close associates do not speak about it nor corroborate the evidence of P.W. 1 on this aspect. If to say anything further, the alleged payment of bribe of Rs. 150/- on 22-7-1989 on the first occasion and the further payment of Rs. 150/- on the next day at what time it is not known on the third day of the trap the demand made by the accused and the compliance of the payment by paying the bribe on the day of occurrence cannot at all be believed for the above reasonings added to which, there was actually no substantiation or corroboration by anyone. Even P.W. 2 who accompanied P.W. 1 on the first day along with P.W. 5 and took P.W. 1 on bail claimed that he saw something passed on by P.W. 1 in folded hands to the accused but he is not positive to claim what was paid to him was money and that is the bribe money. Thus, the whole claim of P.W. 1 that he paid the bribe to the accused on two occasions, namely, on 22-7-1989 and 23-7-1989 with no time for both days, remains solitary with no support or substantiation from anybody for the lack of such corroboration or supporting evidence from anyone. I am not inclined to believe his version for the reason that P.W. 1 an auto-rickshaw driver, running the rickshaw for hire solely depending upon the Police and that even when he had no money, he has claimed that he has borrowed and paid the bribe money in the presence of his friends and well wishers, who had lent money but who had not supported in their claim to the said effect.
12. Another reason for disbelieving the claim of P.W. 1 is that he assumes the character of a regular briber and without the positive proof, his evidence is like that of the evidence of an accomplice. It is under these circumstances, the rule of prudence would require me to consider his evidence very meticulously in the context of the settled principle of law by the Apex Court. If the extent of corroboration and the depth and the gradation of the same is looked into, to believe the evidence of P.W. 1, in my considered view, some more substantiation or corroboration has become highly necessary in this case by P.W. 2 and P.W. 5 on the one hand and other Police Officials, who were present in D. 6 Anna Square Police Station at that time. Above all, after considering the whole gamut of the case, I can say without hesitation that there is a grave doubt about the claim of P.W. 1 when P.W. 13 claims that he has recovered Ex. P. 6, 14, 15 and 16 and P. 5 from the custody of the accused/appellant. If really the accused/appellant had intended to oblige P.W. 1 by not filing any case and to allow him to go scotch free, he would not have let P.W. 1 on bail on 22-7-1989 itself nor registered any case nor subjected the vehicle to the brake test nor prepared Ex. P. 6, P. 14, 15 and 16 and get in his custody so as to P.W. 13 recover immediately after the trap was over. The recovery of the said documents by P.W. 13 would go to show that the accused/appellant never intended nor at any time would have thought of obliging the accused (sic) to make any demand for bribe nor to receive any bribe. All the above said aspects have not at all been considered by the learned trial Judge.
13. Coming to the evidence of P.W. 4, 1 may observe that I am at every difficulty to place any credance to his claim regarding his role, for the very reasoning that he is a trap witness, whose services was got requisitioned by P.W. 13 and the whole episode was thrust in his mind. It is noticed that he was present when the first demonstration of the phenolpthalein test was conducted at the Vigilance and Anti Corruption Office in Greams Road, Madras, and that he is also an attestor of Ex. P. 4, which contains she serial numbers of the five currency leaves M.O. 1 series. He had thus been in the acquaintance of P.W. 1. It is also noted that he followed P.W. 13 and his convey but however, he was instructed to follow P.W. 1 to the place of crime. It was the claim of the prosecution that after the recovery of M.O. 1 series from the accused/appellant, phenolpthalein test was conducted, which was found proved positive as against the accused as evidence from Ex. P. 12. P.W. 4 did not claim the noting of the serial numbers of the 5 currency notes M.O. 1 series though he happened to be the attestor of Ex. P. 8, recovery mahazar. He did not claim any number in particular and he has simply narrated what he has been instructed to speak about. The non-mentioning of serial number of M.O. 1 series in Ex. P. 8, in my considered view, would have played a negative role totally inconsistent with the claim of P.W. 4 and P.W. 13 with the result, the validity and genuineness of Ex. P. 8 as well as the oral claim of P.W. 4 and P.W. 13 are subject to serious doubt with reference to its preparation, authorship and contents. It is therefore, under the circumstances. I am at every difficulty to believe the genuineness of Ex. P. 8 and the evidence of P.W. 4 and P.W. 13 to this extent.
14. Having thus seen the evidence of the decoy, namely, P.W. 1 and the trap witness P.W. 4, they have become vulnerable for every suspicion, which the learned trial Judge, appears to have taken very casually and not in accordance with the legal perception. If it was done otherwise, then the benefit would have been given to the accused already.
15. No doubt, regarding the other circumstances, the other witnesses were examined, including the phenolpthalein test conducted by P.W. 13 and other things. Even if it was believed without accepting in the context of rejecting the evidence of P.W. 1 and P.W. 4, and they do not render any support to improve the prosecution case, I feel the traversing of the evidence of other witnesses may not be relevant and would not improve the prosecution case against the accused. Once the evidence of the decoy and the trap witness are rejected, it follows that no case under the Prevention of Corruption Act sustains, for it is well settled that it is highly impossible to convict the accused for the offence under the Prevention of Corruption Act and that too in a trap set up case with the evidence of the bribe giver and the demand. Both these elements are absent in this case. As I have already adverted to, which the trial Court has failed to look into. On this ground alone, the benefit of the doubt arising out of the evidence of P.W. 1 and P.W. 4 and other witnesses must be given to the accused.
16. Regarding the third ground submitted by the learned counsel in respect of Ex. P. 13, the sanction order P.W. 10 have given the evidence aliunde to the extent that the entire file with the statements recorded from the witnesses and other documents were received by him and placed before the then Commissioner of Police and after having perused the same, sanction was accorded under Ex. P. 13. By looking into the very order under Ex. P. 13, it is not possible for me to accept the very claim of P.W. 10 for the very reasoning that the sanctioning authority has not even followed what was stated as mere allegations by the prosecution. To appreciate this point, I have to extract the verbatim contents of Ex. P. 13, which are as hereunder :
"Proceedings of the Commissioner of Police, Madras City Present :- Thiru K. K. Rajasekharan Nair, I.P.S., R.O.C. No. 731/144746/PR(3)/89 dated 11-1-90. Sub : Public Servants - Police Department - Trap Case - Thiru. D. Venkatesan, formerly Sub-Inspector of Police, Traffic Investigation, Triplicane Range, Madras - Sanction for Prosecution Accorded. Ref. : Report of Director, Vigilance and Anti-Corruption, Madras in R.C. No. 83/89/Pol/MCI, dated 27-12-89 with connected records.
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ORDER :
Whereas Tr. D. Venkatesan (No. 3158/Madras City Police) who was working as O.S. Sub-Inspector of Police, Traffic Investigation Triplicane Range is a public servant;
Whereas it is alleged that Tr. D. Venkatesan, pursuant to the demand made by him on 22-7-89 at his Police Station from Tr. P. P. Augustin, driver of auto rickshaw TMR 599, of sum of Rs. 500/- (Rupees Five Hundred only) which he reduced to Rs. 400/- (Rupees Four Hundred only) as gratification, other than legal remuneration as a motive or reward for not taking action against the said P. P. Augustin, and for favouring him in the case in Traffic Investigation Triplicane Range Cr. No. 3357/89 under S. 337, I.P.C. and S. 116 of Motor Vehicles Act, which was being investigated by the said Tr. D. Venkatesan and in which the said Tr. P. P. Augustin was shown as the accused, accepted a sum of Rs. 150/- (Rupees One Hundred and Fifty only) as part payment on 22-7-89 at about 7 p.m. at the Police Station, and then released Tr. P. P. Augustin on bail.
Whereas it is further alleged that pursuant to the aforementioned demand of Rs. 400/- and in the course of the same transaction, Tr. D. Venkatesan, on 23-7-89 at about 2 p.m., at the Police Station, accepted from the said Tr. P. P. Augustin, another sum of Rs. 150/- (Rupees One Hundred and Fifty only) as part payment and then released to Tr. P. P. Augustin the auto rickshaw TMR 599 and its R.C. Book which he had detained on 22-7-89.
Whereas it is further alleged that pursuant to the aforementioned demand, and in the course of the same transaction, Tr. D. Venkatesan, on 24-7-89 at about 8.30 p.m. near his Police Station, accepted the balance amount of Rs. 100/- (Rupees One Hundred only) from the said Tr. P. P. Augustin for returning his driving licence and for favouring him in the case in Cr. No. 3357/89 of Traffic Investigation - Triplicane Range in which the said P. P. Augustin was shown as the accused.
Whereas it is further alleged that between 22-7-89 and 24-7-89, and in the course of the same transaction, Tr. D. Venkatesan, being a Public Servant as aforesaid, by corrupt or illegal means, and by otherwise abusing his position as public servant, obtained for himself from Tr. P. P. Augustin, a total sum of Rs. 400/- in three instalments as pecuniary advantage in the circumstances stated above.
Whereas the said acts of Tr. D. Venkatesan, formerly Sub-Inspector of Police, Traffic Investigation, Triplicane Range constitute offence under S. 7(3) counts and under S. 13(2) r/w S. 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 (Central Act No. 49/1988).
Whereas, I Thiru K. K. Rajasekharan Nair, Commissioner of Police, Madras City, being the authority competent to remove the said Tr. D. Venkatesan from his office, after fully and carefully, examining the materials placed before me in regard to the said allegations and circumstances of the case, I am satisfied that the said Tr. D. Venkatesan, should be prosecuted for the offences aforesaid.
Now, therefore, I do hereby accord sanction required under S. 19(1)(c) of the Prevention of Corruption Act, 1988 (Central Act 49/88) for the prosecution of the said Tr. D. Venkatesan, formerly Sub-Inspector of Police, Traffic Investigation, Triplicane Range, Madras, for the said offences and for taking cognizance of the said offence by a Court of Competent Jurisdiction.
(Sd.) ........... Commissioner of Police."
The conduct of phenolpthalein test and its earlier demonstration, the reference of the recovery mahazar and the report of the chemical examiner and the recovery of the documents by P.W. 13 have not at all been adverted to by the sanctioning authority. It is well settled by the judicial pronouncements that according sanction to prosecute a Government Servant by a Competent Authority under S. 19 of the Prevention of Corruption Act is not a mere mechanical process and an empty formality but it is to be attached with every sacrosanctity in built by the statute itself for the reason that frivolous implications of the public servants, roping in false criminal cases could be avoided and for the said avowed object in mind, legal fiction has been pronounced by the Courts of Law in according sanction for prosecution. The sanctioning authority must apply its mind in full, that would mean that he has to refer all the case records and identify the case and grounds on which the satisfaction was arrived at on the basis of which sanction has to be accorded. Looking Ex. P. 13 on the basis of the above law, I am not inclined to accept the contention of the learned Government Advocate in this regard. Of course, this plea regarding the validity of the sanction order does not appear to have been taken before the trial Court. But while looking into sub-secs. (3) and (4) of S. 19 of the present Act, if the Court is satisfied with the failure of justice in non-performing a mandatory obligation on the part of the authority, then the Court is empowered to look into the same and provide the legal redressal to the aggrieved persons. Keeping in view the said principle, for want of legal sanctity, the sanction accorded under Ex. P. 13 cannot at all be considered to be a valid one in law. In this regard, I am fully constrained to endorse my view with the contentions made by C.J. Madanagopal, learned counsel appearing for the appellant and thereby to say, that Ex. P. 13 is not a valid sanction order so as to take it that the prosecution can be successfully launched against the accused. Once the prosecution fails to prove the genuineness of the sanction order and as a consequence thereof, if any failure of justice is identified to any person, then the presumption or the legal bar provided under sub-secs. (3) and (4) of S. 19 of the Prevention of Corruption Act will not come and do not stand in any way in the verdict to be given in favour of the accused. Having thus considered the whole gamut of the case, the entire adduced legal evidence, rival contentions and established circumstances, I am fully satisfied to hold that the prosecution has failed in its mission of establishing the guilt of the accused beyond all reasonable doubts and this aspect has been totally overlooked by the trial Court in rendering the impugned judgment and that accordingly, this appeal must be sustained and the impugned judgment is liable to be set aside.
17. In the result, for all the foregoing reasonings and findings, the appeal succeeds and accordingly, it is allowed. The conviction and sentence passed by the learned IXth Additional Special Judge, Madras in C.C. No. 7 of 1990 dated 26-3-1991 is set aside in toto. Consequently, the accused/appellant is hereby acquitted. Fine amount paid, if any, is ordered to be refunded to the appellant/accused immediately.
18. Appeal allowed.