Madras High Court
Ayyasamy And Another vs State Through The Inspector Of Police ... on 2 August, 1995
Equivalent citations: 1996CRILJ119
JUDGMENT
1. Two police personnel have filed these two appeals against the judgment of conviction and sentence recorded by the learned Chief Judicial Magistrate, Periyar District, Erode, in Spl. C.C. No. 252 of 1987 dated 19-4-1990, convicting both the accused under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, and sentencing them to undergo rigorous imprisonment for a period of two years each and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for a further period of three months. Though the accused were also found guilty for the offence under Section 161 of the Indian Penal Code, no separate sentence was awarded against the appellants.
2. The first appellant/accused by name Ayyasamy was the Sub-Inspector of Police on duty in Kundadam Police Station in Periyar District on 24-8-1986 and the second appellant/accused by name Krishnasamy was the Police Constable and Writer in the said Police Station. While they were discharging their duties in such capacity in Kundadam Police Station, P.W. 1 by name Thiruvengadasamy, a resident of N.G.O. Nagar, Dharapuram, during 1985-86 took a toddy shop and two arrack shops in the auction, bearing numbers 35, 30 and 31 respectively, and thus, he was running the arrack shop number 31 situated in Kommanaickanpatti. On 12-8-1986, at about 6 p.m. since an employee of his arrack shop by name Rajendran was beaten by Annadurai and others and caused heavy damages to the goods and materials kept in his shop and on his report to P.W. 1, he went and verified on the next day and found the damages, went to the Kundadam Police Station, where he found the Head Constable by name Aruldass and on being appraised that the first accused/appellant had gone to Dharapuram, he went there also and informed about his intending complaint. But on his instruction he returned to Kundadam Police Station and lodged the complaint at about 7 p.m. with the Police Station, which is marked as Ex.P. 1 dated 13-8-1986. The first accused/appellant was stated to have promised that he would enquire the matter.
3. Then, again on 22-8-1986 at about 7 p.m. when Rathinasamy and others tried to trespass his shop at Bommanaickanpatti and attempted to commit the same mischief and on getting the said information, P.W. 1, again had been to the Kundadam Police Station but however, he lodged the complaint Ex.P.2 to the second appellant/accused and got the receipt for the same, which was marked as Ex.P. 3. The second complaint dated 23-8-1986 was marked as Ex. P.6 and the receipt dated 23-8-1986 was marked as Ex. P.3. Then on the next day, when P.W. 1 met the first accused/appellant at about 11 a.m. it is said he was demanded to pay a sum of Rs. 300/- to the first accused and a sum of Rs. 200/- to the second accused/appellant, for which, P.W.1 had agreed to bring it out of fear. However, he decided not to give accordingly but to lodge a complaint to the Vigilance and Anti Corruption squad. Consequently, he went to Erode and on the next day at about 6.45 a.m. gave a complaint Ex. P.4 to the then Inspector of Police by name Ramasamy, upon which Ex. P.5, First Information Report was prepared and signed by P.W. 1 followed by the requisitioning of two witnesses viz. P.W. 2 and P.W. 3 from the Electricity Board and Housing Board. They were introduced and Ex. P. 4 was read over to them. The Inspector prepared a solution with a powder and asked P.W. 2 and P.W. 3 to dip their hands in it and there was no change of colour. Later he took two ten rupee notes and smeared a powder on them and gave them to P.W. 2 and P.W. 3 and then asked them to dip their fingers in the solution already prepared and the solution turned pink in colour. When the Inspector asked P.W. 1 whether he had brought the money, P.W. 1 handed over three hundred rupee notes and four fifty rupee notes, which are M.O. 1 series and MD 2 series respectively. The currency notes were sprayed with phenolphthalein powder and kept in a bag, of P.W. 1 with necessary (sic) All the said facts were noted and reduced into writing in a mahazar marked under Ex. P.6 attested by P.Ws. 1, 2 and 3. Then all went to Kundadam in a Jeap with the Police party and then P.W. 1 was instructed to go and hand over the money to both the accused herein, while others remained at a distance at about 12 noon on 25-8-1986. Then the Police party, P.W. 2 and P.W. 3 followed P.W. 1 behind him.
4. Having reached the Police Station, as was asked by the first accused, P.W. 1 took his seat in the Writer room for a period of five minutes and when the second accused asked whether he had brought the money, P.W. 1 took M.O. 2 series and gave it to him, which was received by the second accused/appellant by his right hand and changed the same into his left hand and put the same in his table drawer. This was immediately followed by the first accused/appellant calling P.W. 1 and demanding the money. P.W. 1 gave M.O. 1 series to the first accused, who received it in the right hand and put it in the rear side pocket in the pant. On the receipt of the said money, it was stated that the first accused/appellant had proposed to go for bandobust duty and the second accused would take action upon the complaint. M.O. 3 is the pant pocket cut from the pant of the first accused. Accordingly, the second accused was instructed to take action upon Ex. P.1 and Ex. P.2. Then, P.W. 1 as was instructed, came outside and showed the signal by clearing his face with the kerchief found with him. Then the Inspector Ramasamy along with P.W. 2 and one Head Constable entered into the Police Station along with Inspector Kuppusamy and introduced themselves that they were Vigilance Officers. Then the Inspector Ramasamy along with the party in furtherance of the trap conducted the recovery of the bribe money from the first and second accused M.O. 1 and M.O. 2 series and performed phenolphthalein test and recovered M.Os. under the cover of mahazars and the documents and complaints under Ex. P. 7 attested by witnesses P.Ws. 2 and 3. Ex. P. 1, Ex. P. 2, Ex. P. 8 to Ex. P. 11 were recovered under the cover of mahazar Ex. P. 12. The General Diary (Ex. P. 11) contains the entries for the dates 13-8-1986 (Ex. P. 13), 23-8-1986 (Ex. P. 14), 14-8-1986 (Ex. P. 15), 25-8-1986 (Ex. P-16). Ex. P-8 is the Petition Register of Kundadam Police Station. Ex. P.-9 is the note book of the first accused and Ex. P-10 is the receipt book for the year 1986 of Kundadam Police Station. Inspector Ramasamy along with P.W. 9 with their Police party examined the other witnesses. The house of the accused 1 and 2 were searched in the presence of P.W. 2 by Inspector Ramasamy and a search mahazar was prepared. The accused were arrested and released. Next day all the documents and property were sent to the learned Chief Judicial Magistrate's Court at Erode. Rough sketch prepared on the spot dated 25-8-1985 was marked as Ex. P-21. Inspector Ramaswamy gave requisition Ex. P-18 to the Court for sending the material objects for Chemical Examination and the same were sent to Chemical Examiner under the original of the office copy of letter covered under Ex. P-19 and the Chemical Examiner's Report was marked as Ex. P-20. Necessary sanction from the authorities concerned to launch prosecution has been obtained under Ex. P-19. It appears from the evidence and case records that the phenolphthalein test was conducted for both the accused in the proper way as provided by the rules and law. The chemical mixture which turned pink was also subjected to chemical analysis and it was found to contain sodium carbonate and phenolphthalein in support to the prosecution case. M.O. 1 series is the three hundred rupee denominations involving the first accused in the case and M.O. 2 series is the four fifty rupee denominations involving the second accused into the trouble. M.O. 3 is the cut portion of the back pant pocket of the first accused. M.O. 4 to M.O. 7 are the bottles containing the solution.
5. Of the nine witnesses examined as P.Ws. 1 to 9, P.W.1 is the main witness for the successful completion of the trap set up by P.W. 9 and other Police Officers. P.W. 2 and P.W. 3 are the attestors, independent witnesses, who corroborate and support the case of P.W. 1, P.Ws. 4, 5 and 6 are the Constables attached to the Kundadam Police Station, among whom, P.W. 5 and P.W. 6 were treated as hostile and the evidence of P.W. 4 is not useful in either way for the prosecution of the defence. P.W. 7 is the Office Superintendent attached to the D.I.G. of Police, Western Range, Coimbatore, who speaks to the factum of according sanction by the Deputy Inspector General of Police to prosecute under Ex. P. 17 for the offences referred to above. P.W. 8 is the Head Clerk attached to the Chief Judicial Magistrate's Court, Erode, who speaks to the fact of receipt of Ex. P. 18 and sending the case properties to the Chemical Examiner under Ex. P.-19 and the receipt of the Chemical Examiner's Report under Ex. P-20.
6. Inspector of Police, Vigilance and Anti Corruption Mr. Ramasamy since passed away in the middle of investigation and the whole investigation was done by him with the assistance of P.W. 9, even after his death, the further investigation was done and completed by P.W. 9 and he filed the final report after obtaining the orders from the officers, as provided under S. 6 of the Prevention of Corruption Act (Old Act).
7. When both the accused were examined under S. 313, Cr. P. C. with regard to the incriminating circumstances appearing against them in evidence, they have denied their complicity in the crime, however, the first appellant accused has stated that P.W. 1 used to come to the Police station for obligations and on that score, he had acquaintance with him and that he being a member of the Communist Party demanded him always to oblige and for the reason of his refusal there was some misunderstanding between him and P.W. 1 which resulted in P.W. 1 stopping his visit, to the Police Station and that therefore, he had set up a false case against him. He had stated further that on 25-8-1986 at about 11 a.m. after making the G.D. entry, he left for his house with a view to go to bandobust duty for Aruppukottai by-election, and that while he was in his house, at about 12.30 p.m. on that day, P.W. 1 came and threw some currency notes and ran away and consequently P.W. 1 raised alarm and within a shortwhile P.W. 9, P.W. 2 and another Constable came to his house and enquired about P.W. 1 and as he had narrated the whole thing, P.W. 9 threatened him to do what he was instructed. Accordingly, he was compelled to count the currencies and hand over the cut portion of his pant pocket and so on. Then he was brought to the Police Station and by stating so, he has denied the whole prosecution story and evidence. In a similar way, the second accused also has stated that when he was attending the sentry duty on that day, the Inspector of Police, Vigilance and Anti Corruption came and threatened him to count currency notes and thus, he has denied the whole claim of the prosecution.
8. I have heard the Bar for the appellants and the learned Government Advocate for the respondent against and for the impugned judgment of conviction add sentence rendered by the learned trial Magistrate.
9. Mr. Pandarasamy, learned counsel appearing or the first appellant/accused contended that the very claim of P. W. 1, in its entirety, appears to be very unnatural and basing upon which, it is not safe to place any reliance to convict the accused. He would contend further that though a trap was conducted, however, successfully, but it was not as claimed but it was a stage management, schemed out by the Inspector of Police Mr. Ramasamy, who passed away. But from the money provided by P. W. 1, the whole trap was schemed out and that therefore no corroboration or substantiation of the trap was made available in this case and that was the reason why, the two witnesses P. W. 4 and P. W. 5. the Police Constables attached to the Kundadam Police Station have not supported the prosecution case. Nextly, the learned counsel contended that the sanction accorded to prosecute the case against both the accused/appellants, who are the public servants, is not in accordance with the settled law for the very reasoning that the sanctioning authority while according the sanction has not at all applied its mind and that the very fact was seen from the document itself and that therefore the whole prosecution is vitiated totally.
10. Mr. Krishnan, learned senior counsel appearing on behalf of the second accused/appellant contended that the prosecution has failed to prove the concept of 'demand' in this case as provided by the offences, of which both the accused were charged and looking the whole case in that angle, the fact that M. O. 2 series were recovered from the drawer of the table by the investigation staff itself would belie the case of the prosecution and that the second accused/appellant had not received nor made any demand for bribe. In other respects, learned senior counsel would contend that there was no corroboration or substantiation of the version of P. W. 1 in this regard. It was his further venture to state that the trap set up by the then Investigating Officer Ramasamy looks artificial and superficial and that while recovering the General Diary of the Kundadam Police Station, the Investigating Officer has not looked into the entry made in the General Diary at about 11 a.m. on the day of occurrence and that when this aspect remains untouched for any purpose and in any manner, then it has to be deemed that the prosecution has accepted this documentary evidence, which totally goes to the root of the prosecution case and that the learned trial Magistrate has not at all considered the same. Learned senior counsel would further contend that the prosecution case in its entirety is full of preponderance of improbabilities that would go to the root of the concept of 'naturalness and convincing'. Lastly, he would support the contention of the learned counsel for the first appellant with regard to the sanction as it is totally lacking the legal credence.
11. Mr. A. N. Ranjan, learned Government Advocate appearing for the State on the other hand would controvert every one of the contentions raised by stating that the claim of P. W. 1 coupled with the documentary evidence Ex. P. 1 to P. W. 4 in the context of the full corroboration by P. Ws. 2 and 3, who are the independent and respectable witnesses from Erode, would render support to the prosecution case and therefore, the claim by the Investigating Officer P. W. 9 who was all along assisting the then Investigating Officer, was justifiably accepted by the Court below and that in this manner, the prosecution had established the guilt of both the accused for the offences charged and tried. Learned Government Advocate would further contend that the various entries made in the General Diary of the Kundadam Police Station are self-serving in nature and so much so, it is quite unsafe for giving any significance or importance for the same in the context of the consistent claim made by the other witnesses with the strength of documentary evidence and materials. As regards Ex. P. 17, the sanction order, learned Government Advocate has emphasised that the sanction was accorded only after going through the report submitted by the Director of Vigilance and Anti Corruption which contains all details and that fact merely implies that he has applied his mind in full and it cannot in any way be castigated or assailed. Thus, in short, learned Government Advocate would justify the impugned judgment under this appeal.
12. In the context of the rival contentions and positions and for the various reasonings given by the learned trial Magistrate in the impugned judgment, I have carefully gone through the whole of the legal evidence in its entirety with the documents and the defence theory and the statement given by both the accused. True, P. W. 1 a resident of Dharapuram and owner of an arrack shop has claimed that for an incident happened in his shop on two occasions, he had lodged complaints to the Kundadam Police at the behest of both the accused who were in duty at the Station at that time as evident from Ex. P. 1 to Ex. P. 3. A perusal of Ex. P. 1 to Ex. P. 3 would show that the incidents of attack and damage that happened have been complained of in Ex. P. 1 dated 13-8-1986 and Ex. P. 2 dated 23-8-1986. The occurrence in this case 25-8-1986. On that day, it was the claim of P.W. 1 that the reached the Vigilance and Anti Corruption Police at Erode at about 6.45 a.m. and complained orally which was reduced into writing followed by the other incidents as claimed by the prosecution including the trap. It is noticed that after the completion of the trap recoveries, searches and examination of witnesses including the phenolphalein test and recovery of all documents went on till late in the evening on that day. However, it appears from the records that both the accused were let on bail by the then Inspector of Police himself. It is also noticed that all the materials recovered by then on that day and the case records including the First information Report, mahazar and statement of witness and other records were received by the Court at about 11.45 a.m. on 26-8-1986 as evident from the initials of the Chief Judicial Magistrate, Erode. From the evidence and materials placed before the trial Court, it is seen that she evidence of P. W. 1 has been corroborated by the evidence of P. W. 2 and P. W. 3, Engineers attached to the Housing and Electricity Board at Erode who accompanied the investigating staff through out from the inception and supported the case in full. To this extent, if I may say so, the observation of the trial Court is correct. But the whole matter does not end with this.
13. Ex. P. 12 is the recovery mahazar prepared by the then Inspector of Police Mr. Ramasamy on the date of occurrence itself for the recovery of Ex. P. 1, Ex. P. 2, and Ex. P. 8 to Ex. P. 11. Ex. P. 1 and Ex. P. 2 are the complaints given by P. W. 1 on two occasions one on 13-8-1986 and another on 23-8-1986. Ex. P. 3 is the receipt given by the Police for the receipt of the complaint Ex. P. 2. It was stated to have been recovered from the Kundadam Police Station on 25-8-1986, Ex. P. 8 to Ex. P. 11 are the Petition Register, General Diary Note Book of the first accused, Complaint Receipt Book for the year 1986 and General Diary of the Kundadam Police Station for the period from 22-7-1986 to 25-8-1986 IV Part respectively. A closer scrutiny of Ex. P. 1 to Ex. P. 3 in original shows that the same have reached the Court on 17-6-1987 as evident from the date seal of the learned Magistrate's Court at Erode but certainly not on the date when the other documents were received by the learned Magistrate on 26-8-1986. When all the other documents are found to have been received by the learned Magistrate on 26-8-1986 on the same day, then, it is not known as to why Ex. P. 1 to Ex. P. 3 alone were sent to the Court on 17-6-1987. Significantly, these three documents do not bear any initial or note or endorsement by the receiving Magistrate. Only the date seal alone is there. If it is possible and probable that Ex. P. 1 to Ex. P. 3 were sent to the Court along with other case records, then definitely, we can accept the learned Magistrate could have put his initial, date and the time of receipt on the face of it on par with the other documents and the absence of which shows obviously that the said three documents were not sent to the Court on that day but sent several months later i.e. on 17-6-1987. Therefore, it was made clear from the above aspect that the complaints given by P. W. 1 in writing to the Kundadam Police Station on 13-8-1986 and 29-8-1986 and recovered under Ex. P. 12 is false or not correct at all but however cannot at all be true and the prosecution claim in this regard cannot be accepted for the above said reasonings. It was the definite case of the prosecution that the several documents recovered were dispatched to the Court immediately on 26-8-1986. If that was so, one fails to understand for what reason, the said three documents though specifically referred to under Ex. P. 12 had not been sent to the Court, which in my considered view and opinion creates a grave doubt about the claim and veracity of the oral testimony of P.W. 1 and P.W. 9, the Investigating Officer in this case.
14. It is noticed at this stage that the defence taken by the first appellant/accused was that P. W. 1 had developed an edge against him by stating that he being a member of one of the political parties had been to the Police Station and insisted him several times for obligations and on the refusal of the first accused/appellant he had developed an animosity With him and he had stopped visiting the Station. Further, he has stated that on the day of occurrence, when he had left the Police Station after making the G.D. entry by 11 a.m. and was remaining in his home, by about 12.30 p.m. as a preclude to start his journey to Aruppukottai, P. W. 1 came and threw away certain currencies followed by the Vigilance Officers and on their supremacy, he was obliged. If this statement is taken into consideration with the sending of Ex. P. 1 to Ex. P. 3, of course, very late after a period of nearly a year, it is possible to suspect the very prosecution case itself, with serious doubt and consequently the evidence of P. W. 1 and P. W. 9 are inherented with every surmises and conjectures. Therefore, after having considered the consistent narration, parrot like repeating, I am not satisfied to place reliance upon P. W. 1, the star witness for the trap and P. W. 9. In this regard, I find that there is force in the arguments advanced on behalf of the first accused/appellant. Coming to the second contention that the entries made at about 11 a.m. on 25-8-1986 in the General Diary assumes every significance in this case. It is noticed from the entry Ex. P. 16 that for the purpose of attending bandobust duty in Aruppukottai by-election, the first accused/appellant had handed over charge and left the Station by 11 a.m. and that thereafter another entry has been made by 12 noon. This would clinch the matter that the first accused was not on duty nor in the Police Station at that time. More significant is that the General Diary was recovered by P. W. 9 and the then Investigating Officer but none of the witnesses examined by the prosecution would speak about the entries made in the General Diary above referred to as false or self serving. It is not a scrap of paper written in a separate sheet or a bit of paper by any of the person connected or unconnected with the Police Station or elsewhere. It was duly recovered by the Inspector Mr. Ramasamy and P. W. 9. If he has recovered the General Diary which contains the entry to the above said effect, then one can hardly believe the claim of P. W. 1 on the one hand as well as P. W. 2 and P. W. 3 on the other hand coupled with the evidence of P. W. 3. This General Diary is an exclusive document to be maintained in the Police Station and in which the duties assigned to each of the Police Personnel attached to that Station must necessarily be entered time-wise continuously and accordingly, it is seen that it has been maintained. It is not the case of the prosecution that his entry was false and somebody had made such an entry falsely with a view to help the appellant/accused. The learned trial Magistrate also though referred the same had not at all considered the very importance of the above entry in the General Diary, which is totally inconsistent and directly in conflict with the claim of the prosecution as a whole. In the absence of any Explanation or explanatory circumstances or any evidence regarding the said entry found in the General Diary of the Kundadam Police Station, I have no other go except to give all legal weight and importance to such General Diary, which if done, then the whole prosecution case must necessarily go to the debris, which would ultimately mean that the whole trap claimed by P. Ws. 1 to 3 and 9 is false. In this regard also, the prosecution suffers very heavily for all the blemishes inherent in its very base.
15. No other witnesses were examined but for the examination of P. Ws. 4, 5 and 6, who are supposed to be Police Constables attached to the Kundadam Police Station on the relevant day and time of occurrence. As I have already observed, the evidence of P. W. 4 helps none in this case but P. Ws. 5 and 6 have not supported the prosecution case and hence treated as hostile and even so, nothing has been elicited to accept the case of the prosecution or in support of the prosecution.
16. Lastly, coming to the legal plea taken by the Bar for the appellants, namely, the validity of the sanction accorded under Ex. P. 17 to launch the prosecution, I may observe straight away that the prosecution must necessarily, fail as the sanction accorded is not in accordance with the law. For the purpose of appreciating the contentions above referred to, I have to extract the very abstract of Ex. P. 17, which is as follows :
"Proceedings of the Deputy "Inspector General of Police, Coimbatore Range, Coimbatore-18 Present : Thiru V. Chandrakishore, I.P.S. ...............
Read : Report of the Director, Vigilance and Anti-Corruption, Madras - Re. 69/86/Pol/PD, dated 25-3-87 and connected Materials. ..............
Dated 15-5-87.
ORDER :
Whereas Tvl. M. A. Ayyaswami and P. Krishnaswamy, Public Servants were functioning as Sub-Inspector of Police, Law and Order and Grade A.P.C./Station Writer respectively as Kundadam Police Station during August, 1986.
Whereas it is alleged that on 23-8-86 Thiru Thiruvengadaswamy presented a petition before the said Thiru Krishnaswamy, regarding the assault of his "servant Thiru Sooradevan, by Annadurai and 12 others on 22-8-86, as the said Thiru Ayyaswamy was not in the station then and that Thiru Krishnaswamy gave receipt No. 41/86 to Thiru Thiruvengadaswamy and asked him to wait for Tr. Ayyaswamy and that Thiru Ayyaswamy came at about 3 A.M. and asked Thiru Thiruvengadeswamy to meet him on the next day.
Whereas, it is further alleged that on 24-8-86 Thiru Thiruvengadaswamy met Thiru Ayyaswamy at Kundadam Police Station at about 11.00 A.M. and that at that time Tr. Ayyaswamy demanded a sum of Rs. 300/- as gratification other than legal remuneration from the said Thiruvengadaswamy as a motive or reward for taking action on the petition given by Tr. Thiruvengadaswamy on 23-8-86 and directed him to amount on the next day i.e. 25-8-86 and that as he came out of the Police Station on 24-8-86, Thiru Krishnaswamy also came out of the Police Station and demanded a sum of Rs. 200/- from, Thiruvengadaswamy as a reward for having registered his petition on 23-8-86.
Whereas, it is further alleged that in furtherance of the said demand, on 25-8-86, between 12.10 P.M. and 12.25 P.M. at Kundadam Police Station, the said Tvl. Ayyaswamy and Krishnaswamy, demanded and accepted a sum of Rs. 300/- and Rs. 200/- respectively from Thiruvengadaswamy as gratification other than legal remuneration for the purpose mentioned above.
Whereas it is further alleged that, in the course of the same transaction, on 25-8-86, at Kundadam Police Station. Tvl. Ayyaswamy and Krishnaswamy, being Public Servants, by corrupt or illegal means or otherwise abusing their official position obtained for themselves pecuniary advantage to the extent of Rs. 300/- and Rs. 200/- respectively.
Whereas, the above said acts constitute offences punishable under S. 161, I. P. C. and 5(11)(d) r/w. 5(2) of the Prevention of Corruption Act, 1947.
Whereas, I, Tr. V. Chandrakishore, Dy. Inspector General of Police, being the authority competent to remove the said Tvl. Ayyaswamy and Krishnaswamy from office, am satisfied after fully and carefully perusing the materials placed before me in regard to the said allegations against Tvl. Ayyaswamy and Krishnaswamy, that the said Tvl. Ayyaswamy and Krishnaswamy should be prosecuted before a Court of Law for the said offences.
Now therefore, I, V. Chandrakishore, Deputy Inspector General of Police, Coimbatore Range, do hereby accord sanction under S. 6(1)(c) of the Prevention of Corruption Act, 1947, to prosecute the said Tvl. Ayyaswamy and Krishnaswamy, before a Court of Law for offence under S. 161, I. P. C. and 5(1)(d) r/w. 5(2) of Prevention of Corruption Act, 1947 and for the Court to take cognizance of the said offences.
(Sd/-) .........
15-5-87 Deputy Inspector General of Police, Coimbatore Range.
It is seen from the above contents of Ex. P. 17 that the sanctioning authority, namely, the Deputy Inspector General of Police, Coimbatore Range has merely narrated the abstract of the allegations made against the accused but not with reference to any of the materials, namely F. I. R. or recovery mahazars or complaint or the proceedings with regard to the trap nor any statement of the witnesses or the Chemical Examiner's report but only appears to have perused the Report of the Director of Vigilance and Anti Corruption, Madras. A mere reference of 'Report on the report of the Director, Vigilance and Anti Corruption, Madras in R.C. No. 69/86/Pol/PD Dated 25-3-87 and connected materials' does not show or imply what are all the documents, which have been perused by him to ascertain the prima facie nature of the case against the accused in order to accord sanction or the evidence aliunde. It is therefore clear under the circumstances that the sanctioning authority has not at all applied its mind nor followed the procedures laid down by the case laws in many number of cases by this Court as well as by the Apex Court.
17. It is also noted that the case on hand comes under the purview of S. 6 of the Prevention of Corruption Act, 1947 and not the present Act in which the concept of according sanction has been changed to a considerable extent. Dealing with the scope of S. 6 of the Old Act, I had an occasion while dealing with the said concept in Charles Waker Devadas v. State by the Inspector of Police, LTC., (1993 Mad LW (Crl) 346 and held that the sanctioning authority had not applied its mind but accorded the sanction so casually in a very fascinating manner by referring the allegations only and certainly not with reference to any of the materials relied on or materials placed before him. While doing the said exercise, I have considered and referred the case laws held in Suraj Mal v. State (Delhi Administration) ; Anand Sarup v. State (1988 Crl LJ 756 (Delhi); Mohd. Iqbal Ahmed v. State of A. P. ; Periyasamy v. Inspector, Vigilance and Anti Corruption, Tiruchirapalli (1992 Mad LW (Crl) 582); Har Bharosey Lal v. State of U.P. (1988 Crl LJ 1122 (All)); Indu Bhusan Chatterjee v. The State of W. B. ; State of Rajasthan v. Tarachand and State of Tamil Nadu v. Damodaran . Following the ratios held in the above case laws to the facts of the instant case, I am constrained to hold that the Court cannot act on surmises or conjectures nor will have to 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 provided protection to Public Servants against frivolous prosecutions. This requirement of law has not been complied with before launching prosecution against the appellants. It is thus seen that in according sanction to a prosecution as contemplated under S. 6 of the Prevention of Corruption Act, the sanctioning authority should necessarily apply its mind and get itself satisfied that a case for sanction has been made out, constituting the offences. The prosecution has to prove this 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 facts placed before the Sanctioning Authority and the satisfaction arrived at by it. A case instituted without adopting the above referred legal concept and ingredients must necessarily fall because this being a defect manifest in the prosecution and as such, the entire proceedings are rendered void ab initio. Section 6 of the Prevention of Corruption Act applicable to the facts of the instant case provides that the sanctioning authority must accord the sanction only after identifying the grounds so multifarious or one and if not the evidence aliunde made available or the material to accord sanction, which would necessarily involve to go through all the materials placed before him and not the mere report or mere allegations. It is the well settled principle that the Apex Court as well as the Higher Judicial forum of our country have repeatedly but however very often emphasised the need to follow such procedural mandate provided by the legislature for the reason to give protection to the public servants from frivolous or nefarious transactions and such exercise is seen clearly to be mandated in the Section itself. Therefore, the sanctioning authority has to and must follow the procedure in according the sanction to prosecute the Public Servants. The infraction of the said legal exercise to any extent though may not halt the prosecution at any stage but one cannot deny that it goes to the very root of the prosecution at its very base, which would mean that once the defect is found out, namely, the sanction without application of mind, it is not difficult to say that the prosecution stumbled down to the ground and cannot at all be redeemed. Therefore, it is quite obvious in this case that Ex. P. 17 has been given by the sanctioning authority only by narrating the substratum of the allegations without applying its mind nor even referring any materials or documents placed before it. The evidence of P. W. 7 would not render any help to improve the case of the prosecution. He has not even referred to what are all the documents in detail that have been perused by the sanctioning authority in order to arrive at the satisfaction to accord the sanction. If the matter is viewed and considered, for the above said reasons, in the context that the accused were the Police Officers incharge of a Police Officer, then it has become very imperative and important duty to the sanctioning authority to look into all aspects as provided by law and then only he has to give his findings and a mere reference of a report and repeating all the substratum of the allegations would not in any way, in my respectful view, constitute a valid sanction given in this case. Therefore, I have no hesitation to accept the contentions raised on behalf of the appellants that the sanction accorded in this case is void ab initio and invalid, granted by not following the procedural mandate held by the Courts of law in this country. On this ground alone the whole prosecution case must fail. It is seen that this aspect has been totally overlooked by the trial Magistrate, perhaps for the reason that no plea regarding the said aspect was taken before him. But as was stipulated in the amended Act, particularly in S. 19, S. 6 of the Old Act was not up to the Court namely, that the plea regarding the validity of the sanction is to be taken at the inspection itself but it cannot be allowed to be raised after the trial was over. It is therefore, under the circumstances, having considered the gamut of the case, I am of the firm view for all the reasonings and considerations given above, that the impugned judgment rendered by the trial Court cannot be held as a valid one for the overlooking of the abovesaid aspects and ignoring the basic fabric of the criminal jurisprudence, namely, that the prosecution and the prosecution alone must establish the guilt of the accused beyond all reasonable doubt as provided by the provisions of the previous Act. No other point has been raised before me.
18. In the result, for all the reasonings given above, the appeals stand allowed. Accordingly, the conviction and sentence recorded by the learned Chief Judicial Magistrate, Periyar District at Erode in Spl. C.C. No. 252 of 1987 dated 19-4-1990 is set aside and the appellants are acquitted of all the charges.
Fine amount, if any, paid by the appellants is directed to be refunded to them immediately.
19. Appeal allowed.