Calcutta High Court (Appellete Side)
Narayan Chandra Mondal vs The State Of West Bengal on 9 December, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
(APPELLATE SIDE)
PRESENT :
The Hon'ble Justice Kanchan Chakraborty
C.R.A No. 575 of 2009
Narayan Chandra Mondal
Versus
The State of West Bengal
For the Appellants : Mr. Sekhar Basu
Mr. Subnasish Roy
Mr. Ranadeb Sengupta
Mr. Abhijit Ganguly
For the O.P./State : Mr. Amarta Ghose
Heard On : 14.9.11, 02.11.11, and 16.11.2011
Judgement On :09.12.2011
Kanchan Chakraborty, J:
1) This appeal is directed against the judgement and order dated 27.7.2009
passed by the learned Special Court No. 3 at Bankura, in Special Court
case no. 13 of 2004 arising out of Saltora P.S. case no. 41 of 2003 dated
18.3.2003, thereby convicting the appellant Narayan Chandra Mondal
under Section 7 of the Prevention of Corruption Act, and sentencing him to
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undergo S.I. for six months and to pay a fine of Rs. 1000/-, in default, he
suffered S.I. for a period of one month.
2) On 17.12.2003 the driver of one track being no. W.B. - 37A/2537, owned
by one Sk. Sajiruddin, loaded with sand, was going from Majia towards
Saltora, the appellant Narayan Chandra Mondal, the then B.L. & L.R.O.,
Saltora stopped the said truck at about 4.30 P.M. and took over possession
of the driving license of the driver and demanded Rs. 5000/- from him. On
failure of the driver to meet that demand, the appellant left the place
stating the driver that unless and until he demand is met, the driving
license would not be returned. Sk. Sajiruddin reported the matter to the
S.D.O. and as per instruction of the S.D.O., he met the appellant in his
office on 18.12.2003 and upon bargaining the appellant agreed to take Rs.
2000/- only. As per instruction of the sub-Divisional Officer, Sk.
Sajiruddin paid four currency notes of Rs. 500/- each to the appellant
bearing signature of the S.D.O. Sk. Sajiruddin had given signal as arranged
and the S.D.O. entered into the office and asked the appellant as to why he
had taken bribe of Rs. 2000/-. Initially the appellant denied the allegation
but four currency notes of Rs. 500/- each bearing signature of the S.D.O.
were recovered from his pocket. The matter was informed to Officer-in-
charge, Saltora police station, who then and there appeared in the scene
together with one Deputy Magistrate and written complaint was lodged to
the police station.
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3) The appellant was charged for committing offence under Section 7 of the
Prevention of Corruption Act and as he pleaded not guilty, the trial
commenced against him. In all ten witnesses were examined on behalf of
the prosecution. The Seizure list, statement under Section 164 Cr.P.C. and
F.I.R. were admitted into evidence and marked Exhibits on behalf of the
prosecution. No witness was examined on behalf of the defense.
4) The learned Court upon consideration of the evidence on record, oral and
documentary, found that the prosecution brought home the charge against
the appellant and accordingly passed the order of conviction and sentence
which has been impugned in this appeal.
5) Mr. Sekher Bose, learned Counsel appearing on behalf of the appellant
made four fold contention which is set out below :
i) there are discrepancies in the matter of time and
date of lodging F.I.R, preparing of seizure list and
recovery of the money from the possession of the
appellant;
ii) that there are material discrepancies in the
statement of witnesses touching the very root of the
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prosecution case which the learned Court failed to
consider;
iii) that the main witness Sk. Sajiruddin was declared
hostile and he was not confronted by the prosecution
even his statement was recorded under Section 164
Cr.P.C.
iv) that the prosecution was initiated on sanction to
prosecute the appellant which was neither legal nor
valid and the learned Court failed to take note of that
fact.
6) Mr. Amarta Ghose, learned Counsel appearing on behalf of the
respondent/State fairly conceded to the contention of Mr. Basu and
submitted that the sanction for prosecution does not appear to be proper and valid one. Therefore, the entire prosecution appears to be invalid.
7) Since Mr. Ghose conceded to the contention of Mr. Basu regarding the sanction which touches the very root of the validity and legality of the prosecution, I think that the point is to be taken out first of all.
8) I find myself in agreement with Mr. Basu as well as Mr. Ghose. The Ex.
8, i.e. the sanction order was forwarded by one Assistant Secretary, 5 Government of West Bengal. It is simply a forwarding letter. It appears that the Assistant Secretary had forwarded a copy of sanction order accorded by the Governor by the State through the Deputy Secretary. The Ex. 8 is, in fact, a forwarding letter whereby the sanction order was conveyed. The document is ex facie not admissible in evidence. The Investigating Officer of the case stated that he collected the sanction order in order to file charge-sheet. But, sanction under Section 19 of the Act is required for the purpose of prosecution. The officer signed the order was not the man who sent it upon his signature showing the signature of the officer who accorded sanction as 'SD/-' . Again, neither the Ext. 8 discloses that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was based nor these facts appeared on the face of the sanction and proved by extraneous evidence. In the case in hand, there is no extraneous evidence to the fact that the facts on which the sanction was based placed before the sanctioning authority for his consideration for the purpose of sanctioning prosecution.
9) There cannot be any dispute as to the settled principle of law that sanction for prosecution under Section 19 of the Act, 1988 is to be given by the competent authority. The principles laid down in the decisions of the Hon'ble Apex Court in Madan Mohan Singh Vs. State of Uttar Pradesh (Supra), State of Goa Vs. Babu Thomas (Supra), Dilawar 6 Singh Vs. Parvinder Singh @ Iqbal Singh & Anr. (Supra), Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (Supra), State of Karnatake Vs. Ameerjan (Supra) and Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh (Supra), regarding a valid sanction is consistent. The Hon'ble Apex Court has taken a consistent view to the fact that the sanctioning authority is to apply its mind before according sanction to prosecute and that reference to the facts on which the prosecution is based, must appear on the face of the sanction. This principle of law is well reasoned because until and unless the sanctioning authority is provided with facts and circumstances of the entire matter on which the prosecution is based, the sanctioning authority will not be in a position to apply its mind and consider whether the sanction for prosecution was required or not. Any departure from this settled principle of law renders a sanction to prosecute invalid and entire proceeding basing on that sanction to prosecute obviously would become illegal and invalid. In the instant case, the Ext. 8, I reiterate, was neither given by a competent authority nor it disclosed that facts on which it was based, placed before the authority for consideration. It does not appear on the face of Ext. 8 that materials were placed before the sanctioning authority and the sanctioning authority considered it. There is also no extraneous evidence that material facts constituting the offence were place before the sanctioning authority. Such being the facts and circumstances, I must say that the sanction for prosecution 7 of the appellant was not valid in the eye of law and has rendered the entire proceeding invalid. On that count only, the appeal succeeds.
10) As this Court finds that the entire prosecution is bad in law owing to absence of a valid and legal sanction for proseuction, other points raised by Mr. Basu are not required to be discussed.
11) As a result, the appeal is allowed. The judgement challenged is set aside.
12) No order as to costs.
13) Urgent Photostat certified copy of the judgment, if applied for, be handed over to the parties on compliance of necessary formalities.
(Kanchan Chakraborty,J)