Madras High Court
N.M. Rajendran vs The State on 26 August, 1995
Equivalent citations: 1995CRILJ4195
JUDGMENT
1. This appeal has been filed by the convicted accused, who was the Sub-Inspector of Police (Crimes) attached to Saidapet Police Station, Challenging the correctness and validity of the conviction and sentence recorded by the learned Sessions Judge, Madras Division in C.C. No. 1 of 1991 on 18-12-1992 for the offences under Sections 384 of the Indian Penal Code, Sections 7, 13(2) read with 13(1)(d)(i)(ii) of the Prevention of Corruption Act and whereupon sentenced to rigorous imprisonment for a period of six months under Section 384, I.P.C., rigorous imprisonment for a period of one year and a fine of Rs. 500/- in default to undergo rigorous imprisonment for a period of three months under Section 13(2) read with 13(1)(d)(i)(ii) of the Prevention of Corruption Act. However, no separate sentence was imposed for the offence under Section 7 of the Prevention of Corruption Act and the sentences were ordered to run concurrently.
2. During March 1990 P.W. 2 having a shop at Burma Bazaar in Madras City engaged in the business of fancy goods, Video and audio cassettes and so on, was a resident at Door No. 23, Ayyasamy Pillai Lane in Old Washermanpet, Madras. One Babu examined as P.W. 6 and another Nagarajan were the staff working under him in his shop. On the evening of 17-3-1990 at about 4 p.m. when P.W. 2 returned to his shop after his day's napping from his house, he found his shop locked and on enquiry he came to know that the police headed by the appellant, the Sub-Inspector of Police, Saidapet, along with two police Constables came and took them to the Police Station. Therefore P.W. 2 along with his relative by name Rajendran P.W. 3 had been to the station. When enquired in the Police Station, the appellant questioned him and told him that one accused by name Abdul Nazir had informed him that he had sold V.C.R.'s to P.W. 2 and for which, he replied in the negative. Then it was stated that the accused took P.W. 2 and P.W. 3 along with two police Constables to his house and found one V.C.R. kept upon the T.V. and took it away to the Police Station along with then, Having kept the said V.C.R. in the Police Station, it was alleged that the appellant had demanded a further sum of Rs. 3,000/- for leaving P.W. 2 without any case. As P.W. 2 was not inclined to, he was threatened by the appellant. However, he had given an ultimatum to P.W. 2 that he should bring and pay sum of Rs. 1,500/- on or before 7 p.m. on 20-3-1990 without fail. Having consented to the said demand, P.W. 2 along with P.W. 3 came to his house and arranged for the said amount with great difficulty.
3. As was advised, P.W. 2 having taken money went to the office of the Vigilance and Anti Corruption at Madras at about 4 p.m. on 20-3-1990 and where he met P.W. 14, the Deputy Superintendent of Police, Vigilance and Anti Corruption and narrated the whole story that had happened, which was followed by the summoning of P.W. 16, Inspector of Police by name Vivekanandan by P.W. 14 and was directed to take the complaint in writing to the narration of P.W. 2 and accordingly it was done and that has been marked as Ex.P. 2 signed by P.W. 2 and attested by P.W. 3, As was instructed, both P.W. 2 and P.W. 3, were away for a little and back to the office at 5 p.m. on that day. At that time, P.W. 16 introduced P.W. 4 and P.W. 5 the independent witnesses and on enquiry made by them, he had narrated the whole thing happened so far. Then P.W. 16 brought two glass tumblers and water and asked P.W. 2 and other witnesses to count the currency notes brought by P.W. 2 with fingers and asked P.W. 2 and witnesses to soak their hands in the glass tumblers and it was found that the colour of the water did not change. Thereafter phenolphalein powder was spread over the 15 currency notes above referred and a chemical of sodium earbonate was mixed in the water of the said two tumblers and then again counting was made and test was conducted, the colour of the water turned pink. Then P.W. 16 gave instructions to P.W. 2 as to how he should act thereafter. Accordingly P.W. 2 received all the 15 currencies of hundred rupee denominations after preparing and signing of a mahazar attested by P.W. 4 and 5. On instruction, P.W. 2 and P.W. 3 reached the Saidapet Police Station, in his motor cycle followed by P.W. 16 along with P.W. 4 and 5 and other Police Constables in a jeep. When P.W. 2 reached the Police Station, the appellant/accused instructed him to go and wait for him in the Air Conditioned room of the Metro Hotel. Accordingly, he returned to the place pointed out by the appellant/Accused followed by P.W. 16 and his party.
4. As instructed P.W. 2 and 3 occupied a separate table in the Air Conditioned hall of the Metro Hotel near the Saidapet Police Station followed by P.W. 4 occupying a separate table and P.W. 16 and P.W. 5 in another table in the same air conditioned hall. After a lapse of about 10 minutes, the appellant came and demanded the money from P.W. 2. Accordingly P.W. 2 paid that 15 currency notes of hundred rupees denominations as planned, which was received by the Accused/Appellant with his two hands and kept in his pocket after having counted. This counting was done at the behest of P.W. 2. The moment when he kept the currencies in his pocket, P.W. 2 took a comb and dressed his hair and this being the signaling P.W. 16, P.W. 4 and 5 neared the accused in the same hall. Then P.W. 2 pointing the accused to P.W. 16 said that he was the Sub-Inspector Rajendran. Then, P.W. 2 was instructed to go and wait in the vigilance office and he left that place. At about 1 a.m. on that day (night) P.W. 16 and other witnesses came there and P.W. 16 recorded the statements of P.W. 4 and 5. P.W. 2 identified M.O. 1 series the fifteen currency notes he gave to the appellant on the day of occurrence. M.O. 2 is the V.C.R. with the mark "Sharp', taken by the appellant from his house on the earlier occasion. P.W. 4 and 5, the trap witnesses have corroborated P.W. 1 and spoken to the facts pertaining to the setting of the trap by P.W. 16 and then implementing the same inclusive of preparation of the mahazar, arrest of the accused and so on. After the recovery of the 15 currency, notes M.O. 1 series, a phenolpthalein test was conducted in the presence of P.W. 4 and 5 by P.W. 16 at the Metro Hotel itself and made the accused/appellant soak his fingers in the sodium carbonate solution and the colour changed to pink, samples of which were taken under the cover of mahazar attested by P.W. 4 and 5. The pocket of the accused was also soaked and it also turned pink. Thus the whole trap set up by P.W. 16 and other witnesses was over by 9 p.m. on that day. Then the Police party had been to Saidapet Police Station where M.O. 2 was recovered by P.W. 16 from P.W. 11 from the Police Station under the cover of Ex. P. 6 a mahazar prepared and attested by P.W. 4 and 5. Then the house of the accused was searched under the cover of search list Ex. P. 7 attested by P.W. 4 and 5 but no incriminating material was recovered.
5. P.W. 6 was the body got employed at the shop of P.W. 2, from where he was taken by the appellant to the Saidapet Police Station along with one Nagarajam. P.W. 7 and P.W. 13 are the server and owner of the Metro Hotel respectively, where the dining hall was situate, in which the whole trap proceedings were conducted and the accused was arrested and the currencies were recovered. Both the witnesses claim that the Vigilance Police were present on that day and time along with the accused but however, disowned further details of the happenings on that day.
6. P.W. 8 by name Muthu is a resident of Paraniputhur, Madras running a tea shop and he speaks about the fact that a National V.C.R. with a remote control and video cassettes was pledged to him by one Ravi Kumar about 2-1/2 years prior to his giving evidence but however on enquiry held subsequently by Inspector of police, Kodambakkam Police Station, he handed over the same to the said Inspector since Police had informed him that it was a stolen property and that he was examined by P.W. 16. The recovery was made by the Sub-Inspector examined as P.W. 9 by name Arugadhass. P.W. 10 Dr. C. S. Manonmani, a resident of Door No. 23, IV Main Road, C. I. T. Nagar, Madras, was examined for the purpose to show that a V.C.R. belonging to her of the National Company was stolen away and the said theft was identified on 7-3-1990 by about 7 a.m. and she lodged a complaint in Saidapet Police Station which was registered in Crime Number 337 of 1990 and that two weeks thereafter, the appellant came to her house with two persons and enquired her in regard to his investigation. Subsequently, she came to know that her V.C.R. was recovered and she got this property from the Judicial Magistrate's Court by approaching legally and she was examined by P.W. 16 in this case. P.W. 11 was the Inspector of Police Saidapet Police Station on the day of occurrence and under whom the Appellant/Accused and one Balan were working as Sub-Inspectors. He would say that in big complicated cases, he used to investigate directly and in small cases, he used to depute the Sub-Inspectors to investigate. He would corroborate the evidence of P.W. 10 that a complaint was registered by the Appellant/accused in Saidapet Police Station Crime Number 337 of 1990 under Section 380, I.P.C. and took up the matter for investigation. He would state further that two or three days prior to 20th March 1990, the appellant/accused had recovered a 'Sharp' Mark V.C.R. in connection with the above and kept the same in the police station for safety and that there was no separate property room in the Saidapet Police Station. However, he would claim that he was examined by P.W. 16 at about 11 p.m. on 20-3-1990 and that P.W. 16 seized that 'Sharp' mark V.C.R. M.O. 2, under the cover of mahazar attested by P.W. 4 and 5.
7. P.W. 12, the then Inspector of Police, attached to the Saidapet Police Station, in Crimes Section corroborates the fact that the complaint was registered in Crime No. 337 of 1990 for the offence under Section 380, I.P.C. and on 7-3-1990 onwards, the appellant/accused took up investigation. The appellant/accused arrested Abdul Nazir on 21-3-1990 and forwarded him to judicial custody. However, he was stated that he has recovered nothing from him. Thereafter, on 15-6-1990 he has stated that upon the confession statement given by one Ravi alias Ravikumar to P.W. 9, the case properties concerned in Crime number 337 of 1990 were recovered by P.W. 9 in Kodambakkam Police station Crime No. 115 of 1990 and then transferred the same to Saidapet Police Station and that consequently, the properties were sent to the court, followed by the final report against the said Ravi Kumar for the offence under Section 380 read with 75, I.P.C. From his investigation, Abdul Nazir had not committed any offence and that therefore, he had sent a report to the court accordingly.
8. P.W. 14 the Deputy Superintendent of Police, Vigilance and Anti Corruption on the day of occurrence has testified himself in corroboration of P.W. 2 and P.W. 16 in all. P.W. 15, Head clerk attached to the Judicial Magistrate's Court, Saidapet has spoken to the factum of sending the material objects to the Chemical Examiner with a covering letter, copy of which has been marked under Ex.P. 12, and the receipt of Chemical Examiner's Report under Ex.P. 13, with M.C.'s 3 to 5. P.W. 16 is the investigating officer who corroborates the testimonies of other witnesses and has spoken to the details of the investigation done by him right from the moment of writing down the complaint given by P.W. 2 till he was transferred. P.W. 17 did the further investigation in this case as P.W. 16 was transferred in the middle and he examined further witnesses, particularly, one Mr. Jinnah, a member of the Bar practising on the criminal side and after recording the statements of the witnesses and completing the investigation sent the final report to the court.
9. Upon the incriminating portion of the evidence and circumstances when the accused/appellant was examined by the trial Court under Section 313(1)(b) of the Code of Criminal Procedure, he has denied his complicity in the crime but however has added the following : That the whole case against him was a fictitious one and that on 16-3-1990, the Inspector of Crimes by name Santhanam sent for him and on his appearance, he gave a petition by introducing a person who was there by name Sivagnanam and directed him to make enquiries upon the same. In that petition it was stated that one Abdul Nazir had hired a V.C.P. Deck but however did not return it. Accordingly he had asked Signanam to bring Abdul Nazir the next day. When he enquired, the said Abdul Nazir admitted that he had hired the material but however claimed that he had sold it away to P.W. 2 at his shop. When accused/Appellant intimated the above said fact to P.W. 11 Santhanam, he was instructed to get P.W. 2 and see the matter settled. Accordingly, he along with the said Abdul Nazir had been to the shop of P.W. 2 and there he was informed by Banu and Nagarajan that P.W. 2 had been away. However, he took the two to the Police Station. At about 4 p.m. on that day P.W. 2 and P.W. 3 along with an advocate by name Jinnah came to the Police Station and the advocate enquired about the matter and Abdul Nazir. Then on his advise given for half an hour, P.W. 2 came and admitted that it was true that he purchased the V.C.R.P. from Abdul Nazir and then they wanted to settle the matter. Pursuant, to this, the accused/appellant has suggested to wait for some time for Sivagnanam. On his arrival, P.W. 2, P.W. 3 and advocate Jinnah went out and Sivagnanam and advocate Jinnah came to the appellant's room and informed that they have settled the matter among themselves and that P.W. 2 did not have the V.C.P. belonging to Sivangnanmand instead be given one V.C.R. with a further sum of Rs. 1,500/- through the Advocate Jinnah. When this was put to P.W. 2 and P.W. 3 it was accepted and consequently a sum of Rs. 1,500/- was brought by P.W. 2 on 20-3-1990 as agreed on previous occasion and at about 7 p.m. the said Sivagnanam brought the V.C.R. to the Police Station and at about 8 p.m. P.W. 2, P.W. 3 along with the Advocate Jinnah came there and P.W. 2 gave Rs. 1,500/- to the accused/appellant and stated that that money should be handed over to Sivagnanam after counting and thus the matter was settled. Consequently, he instructed the Advocate to write a compromise memo with the signature of the respective parties. A memo was written accordingly, however, within a shortwhile P.W. 16 along with two of three persons came to the Station and took the said memo and all the papers and the money also from the Sivagnanam. However, he was on duty on 20-3-1990, 21-3-1990, 22-3-1990 and he was served with the suspension order on 23-3-1990. He feigned knowledged of anyother thing.
10. Thiru Sivagnanam was examined on behalf of the defence as D.W. 1 and through whom Ex.D. 1 the xerox copy of the complaint given by him has been marked. He would state that he was a resident of Saidapet for a long period and running an Audio and video shop and that shop belongs to his sister's daughter and that about 2 1/2 years prior to his examination, he gave one "Funai" V.C.P. on hire of Rupees 60/- per 24 hours to one Abdul Nazir on 13-3-90 at about 1 p.m. but however he did not return the same. He searched for him and came to know that he had vacated his house and so he filed a complaint on 16-3-1990 against the said person to P.W. 11. On his direction, the complaint given by him was given to the accused/appellant and he was enquired in the Station. On 17-3-1990 at about 5 p.m. when he went to the Saidapet Police Station, he found two persons talking with the accused and one among who was an Advocate, which he came to know from his talk and another was that Abdul Nazir and they told that the "Funai" V.C.P. had been sold away and instead offered a V.C.R. After a lapse of sometime, a V.C.R. bearing the "Sharp" mark was shown to D.W. 1 and considering the price of the same in the context that his "Funai" V.C.P. was a brand new one and its value was Rs. 8,500/- and the one shown to him was an old one worth Rs. 5,000/- to Rs. 6000/- he demanded more money of Rs. 3,000/- barring the above V.C.R. to have a total settlement. As was suggested by the persons who were present there, he had agreed to receive Rs. 1500/- with the "Sharp" mark V.C.R. in place of his "Funai" V.C.P. A receipt was written and given to him but get the money of Rs. 1,500/- he was directed to come at about 7 p.m. on 20-3-1990.
11. He has claimed further that at about 7 p.m. on 20-3-1990 when he had been to the Saidapet Police Station he found three persons along with the accused/appellant and that at that time a sum of Rs. 1,500/- was given to the Advocate who in turn gave it to the accused/appellant for counting and handing it over to him and when the said amount was taken, he gave a separate receipt. As he had been directed to produce the V.C.R. on 20-3-1990 he produced it on that day. He was directed to give a peti withdrawing his complaint and he did so. At that time, 4 to 5 persons came to that room and recovered everything from the accused/appellant and from him. Thus in short, the oral testimony of D.W. 1 with his copy of the complaint marked as Ex.D. 1 would fully support and corroborate the claim of the accused/appellant given during his examination under Section 313(1)(h), Cr.P.C.
12. On recording the oral and documentary evidence through P.Ws. 1 to 17 and D.W. 1 and marking Ex. P. 1 to Ex. P. 17 on behalf of the prosecution and Ex.D. 1 on behalf of the defence and marking M.Os. 1 to 6, in the light of the rival contentions and after having considered in an elaborate and detailed manner the learned trial Judge has rejected the defence case, accepted the version of the prosecution and found that the guilt of the accused has been established beyond the realm of doubt and accordingly, convicted and sentenced the accused/appellant as mentioned supra. Aggrieved, the appellant has come forward with this appeal.
13. I have heard the Bar for the appellant/accused as well as the learned Government Advocate for and against the impugned judgment rendered by the trial Court. Mr. Madana Gopal learned counsel appearing for the appellant would dwell his attack on the following points while challenging the correctness and legality of the impugned judgment;
1) That the Court below failed to see that the evidence of P. Ws. 2 and 3 on the one hand with regard to the preparation of Ex. P. 2 conflicts with the evidence of P.W. 14 and P.W. 16 and that therefore, there was a grave doubt about the genuineness of Ex.P.2, which the court below has taken very lightly and casually with the serious prejudice to the accused and that however it caused a shadow and suspicion over the persistent claims of P.Ws. 2 and 3 as well as the investigating officers;
2) That the case of the prosecution is bereft of any probabilities for the very reasoning that M.O.2 "Sharp" mark V.C.R. was recovered and not the "Funai" mark V.C.P. and that the said aspect since controvert the very claim of the prosecution in the context of the evidence of D.W. 1, there arose a serious lacuna in the prosecution case;
3) The claim of the investigating officers as well as P.W. 2, 3, 4 and 5 of taking seats in the Air Conditioned hall of Metro Hotel is clearly unnatural in claiming that while (sic) of them were there, the accused/appellant who was the Sub-Inspector of Police, had come there for the purpose of receiving the bribe and then on the payment of the alleged bribe, P.W. 2 signalled to P.W. 16 by dressing his hair with a comb in his pocket and that this shows the very tutoring of P.W. 2 and 3 to speak like that and that the Court below had failed to take note of such unnaturalness in the case;
4) That the trap set up and pleaded by P.Ws. 14 and 16 with the help of P.W. 3 and P.W. 4 cannot at all be believed for the reason that it has been done subsequently at the behest of P.W. 16 by recovering the amount and all materials, papers from the accused/appellant and the witnesses and thus in whole, the prosecution case is vulnerable by the creation of suspicion and improbabilities;
5) That Ex.P. 1, the sanction order given by the Commissioner of Police, in this case to launch the criminal prosecution against this accused/appellant under Section 19 of the Prevention of Corruption Act, 1988 is not valid in law and that for the said reason alone, the prosecution is vitiated and the court below had virtually failed to take note of it; and lastly,
6) The circumstances under which the money had happened to be in the hands of the accused/appellant has been clearly explained by and behalf of the accused/appellant, fully corroborated by P.W. 11 and D.W. 1 and this vital aspect has not been properly assessed in evaluating the prosecution case and if so done, this would have a thrust upon the prosecution case in toto, which could have resulted in the rejection of the prosecution case.
14. Per contra, Mr. A. N. Rajan, learned Government Advocate would contend that the sanction accorded by the Commissioner of Police under Ex.P. 1 in this case is a valid one for the reasoning that it has been accorded by the Commissioner of Police after going through the report of the Directorate of Vigilance and Anti Corruption, which to contains all the matters in full and that therefore, the sanction given by the authority is on all the four the resultant factor of its application of mind and as such, it is deemed to be valid in law. As regards the other points on factual aspects, learned Government Advocate would submit that there may be slight deviation of inconsistency between the claim of P.W. 2 on the one hand and P.Ws. 14 and 16 on the other hand. But however while reducing the facts to the narration of P.W. 2 it was admitted that P.W. 16 as instructed by P.W. 14 has taken down in writing and got the signature of P.W. 2 as attested by P.W. 3. According to him therefore this inconsistency even if admitted may not go anywhere nearer to the root of the controversy. With regard to the other contentions, the distinction between the difference of materials referred to by D.W. 1 and the material object M.O. 2 recovered is a different one, there was no say on behalf of the prosecution. However, it was claimed that the material object recovered by P.W. 11 and kept in the Police Station was recovered by P.W. 16 on the night of the day of occurrence in this case. Learned Government Advocate would controvert the other contentions advanced on behalf of the appellant that there was a vital distinction between the place of occurrence claimed viz. in the Police Station as well as in the Air Conditioned hall of the Metro Hotel, by stating that the same has been clearly discussed and considered by the trial Court and that in this context, there cannot be any doubt or shadow created. In short, it was contended that the prosecution had established the guilt of the accused beyond the realm of doubt as rightly and justifiably and perhaps correctly observed by the trial Court in this case.
15. On all the above points, I have heard the Bar for the respective parties very elaborately. The facts that the accused/appellant was working as Sub-Inspector of Police, (Crimes), attached to the Saidapet Police Station on the relevant time and day of occurrence and that pursuant to the complaint given by one Sivagnanam under Ex.D. 1 to P.W. 11 on his instruction, the accused/appellant enquired that matter and consequently he had been to the shop of P.W. 2 and took P.W. 6 and one Nagarajan from the shop of P.W. 2 on the evening of 20th March 1990 to the Saidapet Police Station on the information given by the said Abdul Nazir that he had sold away the material to P.W. 2 are not in controversy and the prosecution case to the said extent was admitted by the accused/appellant while answering the questions put to him under Section 313(1)(b) of the Code of Criminal Procedure. Corroboration to the above said statement given by the accused comes through the evidence given by P.W. 11 in this case. P.W. 11 is not an independent or an ordinary witness. He is an Inspector of Police attached to Saidapet Police Station in Crimes Section under whom the accused/appellant was working. In the evidence of P.W. 11 is taken for consideration in the context of the statement of the accused/appellant and the evidence of D.W. 1, it has been clinchingly proved that there was a complaint given by D.W. 1 and as instructed by P.W. 11, the accused/appellant was investigating the case by examining Abdul Nazir and D.W. 1 and in connection thereto, he had been to the shop of P.W. 2 and took P.W. 6 and one Nagarajan prior to the occurrence. It is also noticed that if D.W. 1 would have given such a complaint as spoken to by P.W. 11 and claimed by D.W. 1, the prosecution ought to have filed the said complaint into the court for the proper adjudication of the matter on hand but however, it has not been done so and the said complaint has been suppressed. In this context, the contention raised by Mr. Madanagopal, learned counsel for the appellant has a tilting force when he submits that if the complaint in original had been produced by the prosecution from the Saidapet Police Station, it would have thrown every light upon the true facts of the case and that the prosecution has burked the same with the mala fide intention in order to mulct the accused/appellant with criminal liability. However, the fact remains that M.O. 2 recovered under the cover of mahazar from the Saidapet Police Station on 20-3-1990 by P.W. 16 was a 'SHARP V.C.R.' and not a V.C.P. of FUNAI origin. This aspect would go to prove a long hallow in the prosecution case. If a 'FUNAI' V.C.P. is found missing or had not been returned by the person who has taken it then, how a different material M.O. 2 was found recovered from the Police Station by P.W. 16 to corroborate or attribute motive to the accused/appellant to commit such an offence ? It is a mystery still that the whole case has been harped upon the basis of M.O. 2, different material. As was rightly pointed out by the learned counsel for the appellant, in so far as the motive is concerned, the backdrop spoken to clearly by the prosecution witnesses in the context of the definite, categoric stand of the defence, there emerges a serious doubt in the prosecution case.
16. Coming to the first two contentions raised by the learned counsel for the appellant, while considering the place, time and circumstances when P.W. 2 evidently reached the office of the Directorate of Vigilance and Anti Corruption and met P.W. 14 for the purpose of narrating the whole thing that happened so far and to his direction, P.W. 16 took everything in writing to the dictation of P.W. 2, attested by P.W. 3, I am not inclined to attach any importance for the deviation if any, or inconsistency if any between the evidence of P.W. 2 on the one hand and P.W. 14 and P.W. 16 on the other hand. Therefore, for the said reasonings, I am not inclined to accept the above said contentions. Coming to the actual place of occurrence, namely, the trap set up by P.W. 16 and implementation is concerned, it is noted that the venue place is the Air Conditioned hall of the Metro Hotel situated in Mount Road near Saidapet Police Station at about 8 p.m. on 20-3-1990 as spoken to by P.W. 7 and P.W. 13. A rough sketch Ex.P. 15 alone has been filed in this case. No observation mahazar was prepared by P.W. 16. It is the consistent claim of P.W. 2 to P.W. 5, 7, 13 and 16 that the recovery and arrest of the accused/appellant was made within Air Conditioned hall of the said metro Hotel. Prior to that, except the accused, P.W. 2, 3, 4, 5 and P.W. 16 and five persons had already been there and occupied their respective tables in the Air Conditioned dining hall. It is noticed at this juncture that P.W. 16 is not an ordinary person but the Inspector of Police attached to the Vigilance and Anti Corruption Department, a person in authority, who was found evidently occupying a side by table to the table where P.W. 2 and P.W. 3 were sitting against each other. P.W. 4 was also found in another side table and that P.W. 4 ordered some snacks also for P.W. 2 and 3. It was claimed that at that moment, the accused/appellant came and asked P.W. 2 as to whether he had brought the money. On giving the answer in the affirmative, it was claimed, that the accused/appellant demanded the payment of Rs. 1,500/- followed by the payment of the said 15 currency notes of hundred rupee denomination to the accused/appellants as decided already. If this was the fact, then one could expect that every thing has happened upon the eyes and nose of P.W. 16 for the reason that he was sitting there itself in a different table. Under the circumstances, I feel, with great constraint, that there exists no need to all for P.W. 2 to take a comb from his pocket and dress his hair as a positive signal to P.W. 16 to approach the accused/appellant, arrest him and recover the money. Thus, the very claim of the prosecution appears to be very superfluous and imaginary, not at all possible for any moment. If an Officer of the rank of Inspector piloted the whole scheme of trap and was sitting at the very nose of those people, watching the entire episode, where exists the need for signaling by P.W. 2 to such an Officer. This aspect has not at all been considered by the learned trial Judge.
17. True, the money of Rs. 1,500/- in 15 hundred rupee denominations were admittedly recovered from the hands of the accused/appellant on the night of 20-3-1990 in the Saidapet Police Station. Adequate explanation has been projected by the accused/appellant to prove the circumstances under which he had the currencies at that time, given by one Advocate by name Jinnah on behalf of P.W. 2. It is not as if the name of the member of the Bar has merely been referred to in this case. It was the consistent claim on the one hand to be noted that the accused/appellant as well as D.W. 1 have claimed the presence of the said Advocate in the Saidapet Police Station on more than one occasion and mediated the whole matter as a result on which, an agreement was so arrived at among themselves and consequently, M.O. 2 was agreed to be taken by the complainant D.W. 1 apart from the payment of Rs. 1,500/- payable by P.W. 2 on the day of occurrence. The evidence of D.W. 1 has not been discredited nor shattered by the cross-examination by and on behalf of the prosecution. Therefore, I have no other go except to believe their version in toto. If the accused/appellant and D.W. 1 persistently took the stand of the presence of the Advocate by name Jinnah and the mediation effected by the learned counsel among the parties herein, then, in my considered view, that aspect goes to the very root of the controversy in the prosecution case. It is under the above circumstances, the prosecution ought to have and must have examined the said Jinnah to give evidence thereon. It is not as if he has not been examined by the investigating officer or not cited. P.W. 17 the Investigation Officer who said the final report on completion of investigation has examined the member of the Bar and recorded his statement. Above all, he has been cited as Witness No. 19 in the memo of evidence in the charge-sheet. Under the circumstances referred to above, the non-examination of the said Advocate witness is not only vital but also demolished the whole edifice of the prosecution case to the debris for the very reasoning that the complainant and his grievance has been settled and as a part of settlement some amount has been passed through the accused/appellant, when in fact the defence claimed even the writing of the receipts in token of the said settlement. If all these things are noted, I feel that there existed no need for the accused/appellant either to demand any bribe or to accept any money.
18. It was represented by the Bar that since the prosecution had suspended with the examination of the said Advocate witness accused/appellant has cited him as one of his witness on his side and consequently, summons were issued to the said witness but however, the summons issued to him to appear before the trial Court and give evidence was not served for the obvious reasons known to. The grievance of the Bar projected on behalf of the appellant on this score cannot be brushed aside and cannot be treated so casually, which has its own impact upon the prosecution case. The observation made by the learned trial Judge that examination of any prosecution witness is the prerogative right of the prosecution is not correct in the context of the matter projected above. However, on consideration of the whole matter and the established circumstances, I feel that the evidence of the Advocate Jinnah, learned member of the Bar is very very vital and important in this case and the absence of the same and non-examination of the said witness totally demolishes the prosecution case as a whole. The reasoning for non-examination of the said witness though examined by the Investigating Officer and cited as a witness, though discretionary for the prosecution, is obvious in this case, to conceal the real facts, which conclusion of this Court is inevitable and cannot be dispensed with for any moment.
19. Lastly, coming to the question of the validity of the sanction granted by the Commissioner of Police, under Ex.P. 1, as spoken to by P.W. 1, I may straightway observe following the decision held in Charles Waker Devadas v. State by The Inspector of Police, 1993 Mad LW (Cri) 346, that the sanctioning authority has not applied its mind but casually accorded the sanction by referring the mere allegations only, which is not conducive to the established canons of law.
20. The attack dwelt by Mr. Madana Gopal learned counsel appearing for the appellant - on the question of according sanction under Ex.P. 1 was very strenuous for the reason that according to him, the sanctioning authority has not at all applied its mind with regard to the basic ingredients to be followed in doing so. Referring the case laws held in Suraj Mal v. State (Delhi Administration), 1980 Mad LJ (Cri) 73 : (1979 Cri LJ 1087)(SC); Anand Sarup v. State, 1988 Cri LJ 756 (Delhi); Mohd. Iqbal Ahmed v. State of A.P., ; Periyasamy v. Inspector, Vigilance and Anti Corruption, Tiruchirapalli, 1992 Mad LW (Cri) 582; Har Bharosey Lal v. State of U.P., 1989 Cri LJ 1122 (All); Indu Bhusan Chatterjee v. State of W.B., ; State of Rajasthan v. Tarachand, and State of Tamil Nadu v. Damodaran, , I had my preference to add, apart from the ratioa held therein in the above citations, that under Section 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. Though a report of the Director of Vigilance and Anti Corruption with a particular reference number has been referred in the column of reference and in paragraph six, full and careful examination of the materials placed before the sanctioning authority was referred to, it is manifest and apparent that it is not known what are all the documents that have been relied upon by the Sanctioning Authority to arrive at the satisfaction and what are all the grounds of satisfaction are totally absent in this case. Above all, evidence aliunde involved in this case prostrating the facts leading to the offences before the Sanctioning Authority and his perusal of the same is also absent totally in this case. In short, I would like to add that the sanctioning authority has not applied its mind with refrence to the evidence leading to the facts constituting the offence committed by the appellant herein and thereupon, he has accorded the sanction. Thus it is seen that the according of sanction is not idle formality but a solemn and sacrosanct act following the consideration of all the materials placed before him not to be guided by extraneous considerations, which alone provides the protection to public servants against frivolous prosecutions and litigations. This requirement of law is necessarily incumbent upon the investigating agency, to be complied with, before launching prosecution against the person accused of the offence under the Act.
21, However, as regards the above established position of law, learned Government Advocate Mr. A. N. Rajan has taken strenuous effort in persuading me to the position of law as now found in Section 19 of the Prevention of Corruption Act, 1988, which embodies the duty of according sanction provided under Section 6 of the Old Act. It reads as follows :
"19. Previous sanction necessary for prosecution. - (1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, .....
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -
(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under Sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could any should have been raised at any earlier stage in the proceedings.
Explanation - For the purposes of this section, -
"(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
A casual reading of sub-section (3 and 4) of Section 19 with the explanation provided therefor, provides the guiding factors to accord sanction as has been clearly spelt out under Sub-sections (1) and (2). This would mean however that the burden of proof is clearly on the prosecution to show that the sanction accorded in a given case is valid in law and such burden includes proof that the sanctioning authority has accorded the sanction with reference to the facts to which the proposed prosecution was to be based and that in this context, it has become essential for all the facts which were relied on to be referred on the face of the sanction, or it might be proved by independent evidence that the sanction was accorded for prosecution after those facts had been placed before the sanctioning authority. It is also to be noted that mere identification of an error or omission or irregularity in according the sanction by sanctioning authority is not enough but however, that identification must result in the failure of justice to the aggrieved person and if that was so, then the amended section as a whole above referred to, clearly demonstrates that the sanction accorded in whatever form must be held as not valid in law. What is meant by error as explained in the said provision is inclusive and mutually exclusive to be decided by the Court on the basis of its discretion. The objection of the sanction required to be accorded under this Section cannot be taken so lightly in view of the decision held by the Supreme Court in R. S. Nayak v. A. R. Antulay, . In short to say, it is the common case that the sanction to be accorded before launching prosecution against a public servant is required to be made by the sanctioning authority with the application of mind, to safeguard the interests of public servants from the pilferages and false allegations and stage managed prosecution cases against such people. Keeping in view, all the above said legal ratios to the facts of the instant case, if the sanction accorded under Ex.P. 1 by the Commissioner of Police against this appellant is perused, I am well fortified by the reasonings to say that the sanction accorded is not a valid one and not the resultant factor of application of mind by the sanctioning authority, which has resulted in great failure of justice to the accused in this case, clearly spelt out in sub-sections (3) and (4) of section 19.
22. Extracting the proceedings in Ex.P. 1 has become absolutely necessary to dispose of the case in its proper perspective, which runs as follows :-
"PROCEEDINGS OF THE COMMISSIONER OF POLICE, MADRAS 600 008.
Present : THIRU K. K. RAJASEKHARAN NAIR, I.P.S.Rc. No. 187/057582/P.R.II(3)/90 Dated 28-11-1990.
Sub : Public Servants - Thiru N. M. Rajendran Formerly Sub-Inspector of Police, (Crimes) J. 1 Saidapet Crime Police Station, Madras-15 Sanction for prosecution - Accorded.
Ref : Directorate Report No. RC. No. 26/90/POL/ MCI dated 16-11-90 and Connected records.
-------------------------
ORDER Whereas Thiru N. M. Rajendran, who worked as Sub-Inspector of Police (Crimes) J. 1 Saidapet "(Crime) Police Station, Madras-15 is a Public Servant :
Whereas it is alleged that on 17-3-90, in the evening at the house of Thiru Ramasamy son of Muthuswamy, at 21, Appasamy Pillai Lane, Washermanpet, Madras, Thiru N. M. Rajendran, committed extortion by putting in fear the said Thiru Ramasamy that he would be implicated in a false case for receiving of stolen property and dishonestly induced him to deliver to Thiru N. M. Rajendran a 'Sharp' VCR worth Rs. 4,800/- belonging to the said Ramaswamy.
Whereas it is further alleged that in the course of the same transaction, Thiru N. M. Rajendran, being a public servant pursuant to the demand made by him to the said Thiru Ramasamy on 17-3-80 evening, of a sum of Rs. 3,000/- and to his reducing the demand to Rs. 1,500/- accepted the said sum of Rs. 1,500/- from the said Thiru Ramasamy on 20-3-90 at about 8 p.m. at Hotel Metro 12 Flower street, Anna Salai, Saidapet, Madras, as gratification other than legal remuneration as a motive or reward for not involving the said Ramasamy in a case of receiving of stolen property in connection with a case under investigation by Thiru N. M. Rajendran in J. 1 Saidapet Crime Police Station Crime No. 337/90 u/S. 380, I.P.C.
Whereas it is further alleged that in the course of the same transaction, on 17-3-90 and on 20-3-90 Thiru N. M. Rajendran being a Public Servant, by corrupt and illegal means and by abusing his position as public servant obtained from the said Thiru Ramasamy a valuable thing, to wit, a 'SHARP' VCR worth Rs. 4800/- belonging to him, for being shown falsely as the stolen property recovered in J. 1 Saidapet Crime Police Station Cr. No. 337/90 u/S. 380, I.P.C. in which Dr. C. S. Manonmani, of Madras-35 was the complainant and also obtained for himself the said sum of Rs. 1,500/- as pecuniary advantage in the circumstances stated above.
Whereas the aforesaid acts of Thiru N. M. Rajendran constitute the offence punishable under Section 384, T.I.C. Section 7 and Section 13(2) r/w 13(1)(d)(i) and (ii) of prevention of Corruption Act, 1988, (Central Act 49 of 1988).
"And whereas I Thiru K. K. Rajasekaran Nair, I.I.S. Commissioner of Police, Madras, the authority competent to remove the said Thiru N. M. Rajendran, formerly Sub-Inspector of Police (Crime) J. 1 Saidapet Crime Police Station, Madras-15 from office, after fully and carefully examining the materials placed before me in regard to the said allegations and circumstances of the case, am satisfied that Thiru N. M. Rajendran should be prosecuted for the aforesaid offence.
Now therefore under Section 19(1)(c) of the Prevention of Corruption Act, 1988 (Central Act, 49 of 1988) I do hereby accord sanction for the prosecution of the said Thiru N. M. Rajendran, Formerly Sub-Inspector of Police (Crimes) J. 1 Saidapet Crime Police Station, Madras-15 for the said offences, and for taking cognizance of the said offence by a Court of Competent Jurisdiction."
It appears from the perusal of the above Ex.P. 1 that such of the documents and materials placed before him in detail with reference to its date, name and other particulars have not been mentioned. What has been referred to in said Ex.P. 1 was the Directorate Report No. RC No. 26/90/POL/MCI dated 16-11-90 and connected records. From the last three paragraphs of Ex.P. 1, in and by which sanction has been accorded, it is not known as to what the documents he has relied upon and what are all the materials placed before him and what are all the grounds upon which he was satisfied and what are the materials carefully examined by the sanctioning authority, are all totally missing in this Ex.P. 1. In spite of this Court had observed repeatedly in very many number of cases that the exercise of the power by the competent authority under Section 19 of the Act is not only a mandate but also a duty attached with every sacrosanctity in order to give protection to the public servants from not implicating them falsely, I am rather perturbed to see that time and again the observations of the courts of law are not being observed or adhered to by the Officers concerned. However, under the circumstances, enough for me at this stage to hold after having fully considered, that the sanction accorded under Ex.P. 1 in this case against the accused is not valid in law but however has resulted in total failure of justice to the accused as spelt out in the above section of law.
23. It was the endeavor of the learned Government Advocate to refer the following case laws :- For the proposition that to discharge the onus lies upon the accused when the money in question was found in his hands, Union of India v. Dr. J. M. Almedia, 1977 Cri LJ (NOC) 71 (Goa) was relied on, followed by a case held between Thangaraj v. State by Inspector of Police, 1993 Mad LJ (Cri) 745 wherein, a learned single Judge of this Court has held as follows :-
"It is well settled law that the sanction order need not mention the particulars of all the documents perused by sanctioning authority."
In Raja Singh v. State, 1995 Cri LJ 955 (Mad), a learned single Judge has refered as follows :-
"The Sanctioning Authority should apply its mind to the facts alleged and only after being satisfied that the sanction was a necessity, the sanction order should be signed. In this case, even though the sanctioning authority, who accorded sanction was not examined as a witness, the sanction order gives the details of the records and his statement about perusal of the records before granting sanction. In the sanction order at the top, under the caption 'reference' it was mentioned that detailed investigation report and connected records were placed before him. Therefore, the detailed investigation report and the connected records were sent to the sanctioning authority for his perusal. The said authority has stated in his order that he, after fully and carefully examining the materials placed before him with regard to the allegations and the circumstances of the case, was satisfied that this appellant should be prosecuted in Court of law."
Lastly, a case law held between M. W. Mohiuddin v. State of Maharashtra, 1955 SCC (Cri) 545 was relied on by the learned Government Advocate, Supreme Court has discussed and confined the scope of the legal concept 'obtains the pecuniary advantage' in this case. In the context of the 'competent authority' defined under Section 19 of the Prevention of Corruption Act, 1988, before the learned single Judges of this Court, in the case laws referred to above, a reading of the reported cases, clinches the fact that the above said facts were not canvassed even on the basis of clause (3) and (4) of Section 19 of the Prevention of Corruption Act, 1988, and perhaps that was the reason why the learned Judges, with great respect, have not adverted their mind to the basis ingredients to be taken note of as spelt out by the earlier Supreme Court decisions. Nevertheless, for all the reasonings given above, since I had the occasion to consider the scope and object of sanction accorded either under Section 6 of the Old Act or under Section 19 of the New Act, I had observed the law to be made applicable in this case is as was held in Charles Walker Devadas v. State by The Inspector of Police, 1993 Mad LW (Cri) 346. For the said reasons, after having thus considered, in am constrained to hold that there was no valid sanction accorded by the Commissioner of Police in this case and what has been granted him is not valid in law and that therefore, the whole prosecution case is vitiated. Lastly, M.O. 2 was seen to have been recovered from P.W. 2 by the accused/appellant as spoken to by P.W. 2 and D.W. 1 and corroborated by P.W. 11 till it was recovered by P.W. 16 at about 11 p.m. on 20-3-1990 at Saidapet Police Station under the cover of Mahazar attested by P.W. 4 and P.W. 5. This fact would show clearly that the defence theory and explanation projected by and on behalf of the accused was true and as such, it is convincing and can be accepted. Even otherwise, the prosecution has not provided any interaction between the recovery of a 'SHARP' mark VCR instead of a 'FUNAI' VCP for the reasons that it was nobody's complaint that a 'SHARP' VCR has been taken away and accordingly it has been recovered and kept in the Police Station unlawfully by the accused/appellant. Therefore, having considered the whole gamut of this case and the legal evidence adduced with all the materials, I am of the firm view that the prosecution has not only failed to prove the guilt of the accused beyond the realm of doubt even for the offence under Section 384, I.P.C. but also for the offences under the Prevention of Corruption Act and thus the prosecution seems to have deliberately failed to establish the guilt of the accused. It is also possible to have the phenolpthalein test demonstrated with the currencies recovered in the presence of P.Ws. 3 and 5. But however, that does not mean, that M.O. 1 series was the bribe money obtained by the accused as clearly spelt out under the Act. It is therefore, under the above context and established circumstances and for all the reasonings aforesaid, I have totally endorsed my view with the submissions made by the learned counsel for the appellant and I am not able to countenance the strenuous contentions advanced by the learned Government Advocate.
24. In the result, the appeal succeeds. Consequently, the Judgment of conviction and sentence recorded by the learned Sessions Judge, Madras in C.C. No. 1 of 1991 dated 18-12-1992 is set aside. Fine amount if any paid already by the accused/appellant is ordered to be refunded to him immediately.
25. Appeal allowed.