Madras High Court
Periyasamy vs Inspector, Vigilance And ... on 24 September, 1992
Equivalent citations: 1994CRILJ753
JUDGMENT
1. The accused in Special Case No. 11 of 1986 on the file of the Special Judge and Chief Judicial Magistrate, Tiruchirappalli is the appellant herein. He was charged for an offence punishable under S. 161, I.P.C. and also under S. 5(2) r/w. S. 5(1)(d) of the Prevention of Corruption Act, 1947.
2. The charge against him is that he demanded a sum of Rs. 300/- as illegal gratification or motive or reward on 21-8-85 at his residence at Karur from one M. Jagannathan for the purpose of recommending the issue of legal heirship certificate on the death of Palanisamy brother of the said Jagannathan to enable him to get the amount of Rs. 15,000/- deposited in the Karur Vysya Bank Limited, Karur in the name of his deceased brother Palanisamy and actually a sum of Rs. 100/- at the first instance and then directed the said Jagannathan to pay the balance of Rs. 200/- within a period of two weeks thereafter and the accused reiterated the demand again on 28-8-85 at Thottakurichi and on 1-9-85 at Karur at his residence he accepted a sum of Rs. 200/- from the said Jagannathan at his residence at Karur on 3-9-85 at 7.30 hours.
3. The second charge against him is that he being a Public Servant by abuse of his official position as such obtained pecuniary advantage of Rs. 100/- on 21-8-85 and the balance of Rs. 200/- on 3-9-85 from the said Jagannathan and thereby committed a criminal misconduct in the discharge of his official duty and thereby committed an offence under S. 5(2) r/w. S. 5(1)(d) of the Prevention of Corruption Act.
4. The prosecution has examined P.Ws. 1 to 8 and market Exs. P-1 to P-18 and M.Os. 1 to 5. The accused has not examined any defence witness on his side.
5. The accused is the revenue Inspector in Karur taluk office. P.W. 1 Jagannathan approached the Tahsildar for the issue of a legal heirship certificate and filed an application for that purpose under Ex. P3 on 20-8-1985. It seems that the Tahsildar told P.W. 1 that he had forwarded the application to the accused for the purpose of verification in the village. Thereafter P.W. 1 Jagannathan approached the accused for that purpose and accused had demanded him to pay a sum of Rs. 300/- for that purpose by way of bribe. P.W. 1 Jagannathan told that he had no money and ultimately he could pay a sum of Rs. 100/- on 21-8-85 and agreed to pay the balance of Rs. 200/- subsequently. It is the case of the prosecution that P.W. 1 had approached the accused on more than one occasion for getting the report from the accused. Finally, P.W. 1 had agreed to pay the balance of Rs. 200/- to the accused and returned. After coming back P.W. 1 thought of trapping the accused, and P.W. 1 was not willing to pay the balance of Rs. 200/-. So he went to the Vigilance and Anti-Corruption Department, Tiruchirappalli on 2-9-85 with an application prepared by him already. Ex. P3 is the said application prepared by him already. Ex. P3 is the said application. Then P.W. 8 Inspector of Police sent for two officers viz. Somasundaram and Gunasekaran, Engineer and clerk respectively for the purpose of the trap. The Inspector P.W. 8 demonstrated the significance of the trap to the witnesses and also to P.W. 1 and accordingly, all to them went to Karur in a car. It is also the case of P.W. 1 that he had paid a sum of Rs. 200/- to the accused in the presence of P.W. 2. Then the Inspector of Police seized the currency notes from the accused under the Mahazar and the accused was subsequently arrested. The suggestion of the accused P.W. 1 is that P.W. 1 wanted to pay a sum of Rs. 200/- towards Flag Day Fund and accordingly P.W. 1 came and paid to him. The case of the accused is that he did not demand any money from P.W. 1 nor had he received a sum of Rs. 200/- from P.W. 1 towards bribe.
6. P.W. 2 Gunasekaran is clerk in the Public Works Department at Trichy and he is the official trap witness. His evidence is that he accompanied P.W. 1 to the house of the accused and there the accused asked him as to whether he had brought money as agreed to earlier. Accordingly, he deposed a sum of Rs. 200/- was paid to the accused and subsequently the Inspector of Police has seized the currency notes in the presence of witnesses and the Inspector prepared the mahazar under Ex. P4 in which P.W. 2 had attested. It was also suggested to this witness that the accused had asked P.W. 1 soon after the latter entered the house, as to whether P.W. 1 had brought the money towards Flag Day Fund. This witness denied the suggestion as incorrect.
7. P.W. 3 Veeraragavan speaks about P.W. 10, a Circular of the Tahsildhar dated 31-7-85 regarding the collection of Flag Day Fund and his further evidence is that as per Ex. P11, the accused is directed to collect a sum of Rs. 300/- towards Flag Day Fund. Ex. P11 is a Circular regarding fixation of Flag Day Fund. His further evidence is that as per Ex. P11 the accused is directed to collect a sum of Rs. 300/- towards Flag Day Fund.
8. P.W. 5 Balakadhiresan is the record clerk in the Taluk Office at Karur. His evidence is that the received Ex. P6 on 14-8-1985 and that he made an official note on the same. According to him P.W. 4 Nallkannu had passed an order directing to issue the legal heirship certificate as requested by P.W. 1 Jagannathan. P.W. 6 is the Assistant in the Office of the Collector at Trichy. He produced the sanction order Ex. P13 dated 9-4-1986 issued by the District Revenue Officer of Trichy. According to him, the District Revenue Officer, Trichy is the competent authority for removing the accused from service. His evidence further shows that the competent authority had perused the report and also other records pertaining to the sanction order. P.W. 7 is the Headclerk in the Chief Judicial Magistrate's Court at Trichy. He received M.Os. 3 to 5 from the Police and he sent them for chemical examination. He received Ex. P16 report dated 20-9-1985. P.W. 8 Jayapal is the Investigating Officer. His evidence is that he received the report Ex. P3 at 2.00 p.m. on 2-9-85 from P.W. 1 and after conducting some investigation secretly and after obtaining permission from the higher official, he registered the case in Cr. No. 1 of 1985 under S. 161, I.P.C. Ex. P17 is the copy of the F.I.R. and then he sent for P.W. 2 Gunasekaran and Somasundaram, Engineer for the purpose of trapping. Then P.W. 8 explained the significance of the phenolphthalein test to the witnesses and accordingly he seized the currency notes under M.O. 1 series and he entrusted them to P.W. 1 Jagannathan and directed them to go to Karur. He also directed P.W. 1 Jagannathan to pay money to the accused if he would ask for the same. Accordingly P.W. 1 along with P.W. 2 Gunasekaran and others went to the house of the accused at Karur and P.W. 1 Jagannathan had paid money as demanded by the accused in the presence of P.W. 2. Then P.W. 8 Jayapal arrested the accused and then he examined some witnesses and recorded their statement. He sent the records to the District Revenue Officer, Trichy and obtained the sanction order Ex. P6 dated 3-6-1986 and thereafter he completed the investigation and then he laid charge sheet on 4-6-1986.
9. The accused when confronted with the evidence of prosecution witnesses under S. 313, Cr.P.C., has stated that the evidence of prosecution witnesses are false and that he is innocent. The accused further stated that he wanted to collect a sum of Rs. 300/- towards Flag Day Fund and that P.W. 1 had paid a sum of Rs. 300/- towards that account and not by way of bribe. There is a suggestion to P.Ws. 1, 2 and 8 regarding the collection of Flag Day Fund. But they have all denied the suggestion as incorrect.
10. The learned trial Judge found the accused guilty under abovesaid provisions of the Act and convicted and sentenced him to undergo R.I. for six months.
11. Aggrieved by the judgment of the lower Court the appeal has been filed now. In this appeal learned counsel for the appellant Mr. K. V. Sridharan contended that the prosecution has not proved the case beyond reasonable doubt against the accused. The evidence of P.Ws. 1, 2 and 8 cannot be relied upon since the accused had only requested P.W. 1 to pay sum of Rs. 200/- towards Flag Day Fund and not by way of bribe. There is evidence of other witnesses in this case that the accused was directed to collect a sum of Rs. 300/- by his Superior under Ex. P11. There is also a Circular of the Tahsildhar regarding collection of Flag Day Fund in Ex. P.10. Therefore, the defence of the accused is that he had not demanded bribe of Rs. 300/- nor had he received a sum of Rs. 100/- towards bribe on the earlier occasion as alleged by the prosecution. It is also strange to see that P.W. 2 was present at the time of demand made by the accused towards bribe. It is also strange to see that P.W. 2 was also present at the time of making payment though he was a stranger to the accused. Normally when the accused officer received a bribe amount from P.W. 1 he would not have received the same in the presence of a third party-stranger like P.W. 2. The normal human conduct would be when a third party like P.W. 2 was present at the time when money was paid to the accused by way of bribe as alleged by the prosecution, the accused officer would have asked P.W. 1 as to who P.W. 2 was. In this case there is no evidence that the accused officer had asked P.W. 1 Jagannathan about the presence of P.W. 2. Therefore the question of payment of bribe as alleged by the prosecution does not arise at all. The case of the defence that he had received a sum of Rs. 200/- only towards Flag Day Fund from P.W. 1 has to be accepted in the circumstances of the case. Therefore the finding of the trial Court that the accused had received a sum of Rs. 100/- on the earlier occasion and subsequently the accused had received a sum of Rs. 200/- towards bribe cannot be accepted.
12. The other contention raised by the learned counsel for the appellant is that the sanction order Ex. P6 is not in accordance with law. In support of his contention he has relied upon various judgments of the Supreme Court and other High Courts. They are as follows :-
(1) in Mohd. Iqbal Ahmed v. State of Andhra Pradesh. "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 fact constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. Any case instituted without proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same; any subsequent fact which may come into existence after the grant of sanction is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government Servants against frivolous prosecutions and must therefore be strictly compiled with before any prosecution can be launched against the public servant concerned. It will not be correct to say that in view of the presumption which is to be drawn under S. 4 even if no facts are mentioned in the resolution of the Sanctioning Authority. It must be presumed that the Sanctioning Authority was satisfied that the prosecution against the accused should be launched on the basis of the presumption that the accused had received a bribe. In the first place, there is no question of the presumption being available to the Sanctioning Authority because at that stage the occasion for drawing a presumption never arises since there is no case in the Court. Secondly, the presumption does not arise automatically but only on proof of certain circumstances, that is to say, where it is proved by evidence in the Court that the money said to have been paid to the accused was actually recovered from his possession. It is only then that the Court may presume the amount received would be deemed to be an illegal gratification. The question of drawing the presumption, therefore, does not arise at this stage. The prosecution cannot be given a chance to produce the materials in the appeal before the Supreme Court to satisfy that the Sanctioning Authority had duly applied its mine to the facts constituting the offence. In a criminal case the Supreme Court or for that matter any Court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution."
(2) In the case of R. S. Nayak v. A. R. Antulay, 1984 Crimes 568 : (1984 Cri LJ 613) the Supreme Court has held that a grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants."
(3) In the case of Bihari Lal Gupta v. The State of Himachal Pradesh, 1984 Crimes II 165 : (1984 Cri LJ 1809) the learned single Judge of Himachal Pradesh relying upon the judgment in the case of Md. Iqbal v. The State of Andhra Pradesh has observed that the validity of the sanction order can be produced in two clauses (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 the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. In the instant case, as observed earlier, the so-called sanction order Ex. P.W. 12/A does not show as to on what material the Sanctioning Authority satisfied itself that a case for sanction was made out and independent of the sanction order no other evidence has been adduced to prove this fact. This sanction order is, therefore, bad in law. The prosecution of the appellant, therefore, being without a valid sanction within the contemplation of the S. 6 of the Act, the entire trial including the conviction and sentence as recorded against the appellant is void ab initio. His conviction, therefore, cannot be sustained."
(4) In the case of Har Bharosey Lal v. State of U.P., 1988 Cri LJ 1122, the learned single Judge of Allahabad High Court has observed as follows (at page 1125) :-
"...... There is no dispute that sanction in this case was accorded by means of the order dated 23-4-1977 Ex. Ka-10, by Sri Yogesh Dayal, Additional Sales Tax Commissioner, U.P., Lucknow, S. 6 of the Prevention of Corruption Act (hereinafter called the Act) provides that cognizance of the offence would be taken by the Court if it is satisfied that such sanction has been accorded by the appropriate authority who was competent to remove the erring official. Nothing has come on the record to show that Sri Yogesh Dayal was competent to remove the appellant. Sri Yogesh Dayal has not been examined by the prosecution. Courts cannot act on surmises and conjectures nor will they be guided by extraneous considerations or matters which are not on record. The grant of sanction is not an idle formality but a solemn and sacrosanct act which provides protection to public servants against frivolous prosecutions. This requirement of law has not been complied with before launching prosecution against the appellant. Even a presumption cannot be drawn automatically but rests on proof of certain circumstances proved by evidence. It is only a Court which can draw a presumption on the basis of the evidence placed before it. Such a presumption does not arise at the stage of granting sanction but only at the stage when the proceedings are launched in Court. In the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh, it was held that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution the entire proceedings are rendered void ab initio. The Supreme Court further went on the stress that the prosecution cannot be given a chance to produce material in the appeal before the Supreme Court to satisfy that the Sanctioning Authority had duly applied its mind to the fact constituting the offence. It was also held "in a criminal case the Supreme Court for that matter any Court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution".
Further even the appellant was not questioned about the fact as to whether Sri Yogesh Dayal Additional Commissioner, Sales Tax, U.P., Lucknow, was the competent authority to remove him from service. It has thus denied the appellant an opportunity to attack the sanction order. The statement of the accused recorded under S. 313, Cr.P.C. has to be given due weight and adequate emphasis. The appellant was not given such an opportunity to decry the validity of a proper sanction. S. 7 of the Criminal Law (Amendment) Act, 1952, which is recited below, provides for trial of the offences by Special Judge in regard to sub-section (1) of S. 6 of the Prevention of Corruption Act :
"7. Cases triable by Special Judges. Notwithstanding anything contained in the Cr.P.C. 1898, or in any other law, the offences specified in sub-section (1) of S. 6 shall be triable by Special Judges only.
(2) Every offence specified in sub-section (1) of S. 6 shall be tried by the Special Judge for the area within which it was committed or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government.
(3) When trying any case, Special Judge may also try any offence, other than an offence specified in S. 6 with which the accused may, under the Cr.P.C., 1898, be charged at the same trial".
From the above it is clear that except where there is a valid sanction the Courts cannot assume jurisdiction to try a case under the Prevention of Corruption Act. Once it is found that there was no valid sanction the assumption of the jurisdiction by the Court below becomes wholly illegal. The prosecution has miserably failed to establish that there was a valid sanction in the instant case. The non-production of any material or the person according the sanction has also mitigated the validity of the sanction order.
13. Ex. P13 is the sanction order issued by the District Revenue Officer in this case. The sanction order Ex. P13 is incorporated herein in verbatim :
"Whereas Tr. N. Periyasamy is employed as Revenue Inspector in Revenue Department, Vangal Firka, Karur Taluk, Tiruchy District and is a public servant.
Whereas it is alleged that Tr. N. Periyasamy, pursuant to a demand of bribe of Rs. 300/- made by him to Tr. M. Jagannathan, S/o. Muniya alias Muniappa Nadar, Anna Nagar, Varapalayam, Vangal Firka, Karur Taluk on 21-8-85 at his residence at Vangal Firka and accepted the said amount of Rs. 300/- in two instalments made up of Rs. 100/- paid by Thiru M. Jagannathan to Tr. N. Periyasamy on the same date and place and the balance amount of Rs. 220/- within a week's time and reiterated the demand again on 28-8-85 at Thottakuruchi and on 1-9-85 at Karur at his residence and accepted a sum of Rs. 200/- from Thiru M. Jagannathan at about 7.30 Hrs. at his residence at Karur on 3-9-85 as gratification other than legal remuneration as a motive or reward for the purpose of recommending the issue of legal heir certificate on the death of Thiru Palanisamy the brother of Thiru M. Jagannathan, to enable him to get the amount of Rs. 15,000/- deposited in the Karur Vysya Bank Karur in the name of his brother Tr. Palanisamy since dead.
Whereas it is further alleged that in the course of the same transaction at about the same date and place Tr. N. Periyasamy being a Public Servant as aforesaid by corrupt or illegal means or by otherwise abusing his official position as a public servant obtained from the said Tr. M. Jagannathan S/o. Muniya alias Muniappa Nadar a sum of Rs. 300/- in two instalments made up of Rs. 100/- on the same date and place and the remaining instalment of Rs. 200/- on 3-9-85 at his residence at Karur at about 7.30 hrs. for himself as pecuniary advantage in the circumstances stated above.
And whereas the acts of Tr. N. Periyasamy constitute offences punishable under S. 161, I.P.C. and S. 5(2) read with S. 5(1)(3) of the Prevention of Corruption Act, 1947 and whereas I Thiru P. Pugalum Perumal being the authority competent to remove the said Thiru N. Periyasamy from office after fully and carefully examining the materials before me in regard to the said allegations and circumstances of the case, am satisfied that Thiru N. Periyasamy should be prosecuted for the offences aforesaid. Now, I do hereby accord sanction under S. 6(1)(c) of the Prevention of Corruption Act, 1947 (Central Act II of 1947) for the prosecution of the said N. Periyasamy, Revenue Inspector, Revenue Department, Vangal Firka, Karur Taluk, Tiruchy District for the said offence and for taking cognizance of the said offences by a Court of competent jurisdiction.
14. On a perusal of Ex. P13 sanction order, the sanction order does not confirm to the ratio decided by the Supreme Court and other High Courts. The sanction order does not reveal that the Sanctioning Authority had perused any records in support of this case. The sanction order does not also show as to how the Sanctioning Authority got himself satisfied with regard to the allegations against the accused. The Sanctioning Authority has not even given any reasons for his satisfaction in the Sanction Order. Therefore, I find that the Sanction Order is not valid and it is not in accordance with law.
15. In the circumstances, the Prosecution has failed to establish the demand and payment of bribe to the accused. In the circumstances, the findings of the trial Court cannot be upheld.
16. The conviction and sentence passed by the trial Court are set aside and the accused is acquitted. In the result, Criminal Appeal is allowed.
17. Appeal allowed.