Madras High Court
Murugesan vs State Rep. By on 8 October, 2010
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/10/2010 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Appeal(MD)No.260 of 2007 Murugesan ... Appellant/Accused Vs. State rep. By The Inspector of Police, Vigilance and Anti Corruption Department, Nagercoil, Kanyuakumari District in Cr.No.12/02 ... Respondent/Complainant PRAYER Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure, against the judgment passed in Spl.Case No.6/03 by the learned chief Judicial Magistrate-cum-Special Judge, Nagercoil, dated 18.05.2007 and set aside the same and acquit the appellant/accused from of all charges levelled against him. !For Appellants ... Mr. Gopala Krishna Lakshmana Raju, Senior Counsel for Mr.R.Venkateswaran ^For Respondent ... Mr. P.Rajendran Govt.Advocate (Crl.Side) :JUDGMENT
P.W.2 was working as Office Assistant in Government High School in Ezhakaram in Kanyakumari District from 2001. The accused was working as Assistant in the Sub-Treasury, Nagercoil. Bill Nos.9/2002-03 and 18/2002-03 were presented before the Sub-Treasury at Nagercoil and the accused demanded a bribe of Rs.500/- from P.W.2 for passing the bills. Hence, P.W.2, who was reluctant to pay the amount to him, laid a complaint, Ex.P.4. On 26.06.2002 he (P.W.2) along with P.W.5 one Ramana, working as Junior Assistant in the School met the accused in the office about passing of the Bill. He asked them to come on 26.02.2006 at 10.30 a.m., to get the Demand Draft. Hence, P.W.2 on 26.02.2006, at about 11.00 a.m., took three bills, and entrusted them with the Treasury. The accused told that before 5.30 p.m., on the same day, P.W.2 had to pay Rs.500/-, upon which he would arrange to pass both the bills and give Demand Draft and if the amount was not paid, no progress would be shown. P.W.2 agreed. He reached his house and took Rs.500/- and while proceeding to the Treasury, he entertained an idea that for getting discharge of official duties he had to pay and he did not want to pay the bribe. Thereafter, he went to the Vigilance and Anti-corruption Department in Vetturnimadam, at Nagercoil informed the same to the Inspector of Police and laid a complaint Ex.P.4 at 12.30 p.m.
2.On receipt of the complaint, the Inspector of Police, P.W.9, lodged the First Information Report, Ex.B.20 and issued a copy to P.W.2, on acknowledgment. He sent the complaint and the First Information Report to the Chief Judicial Magistrate Court, Nagercoil. He sent requisition to the Executive Engineer, Fisheries, at Chinnamuttam and the Joint Registrar of Co-operative Societies, Nagercoil and they sent officials belonging to 'C' or "B" Grade for being as witnesses, on 26.06.2002 at about 3.05 p.m. One Chandran, working as Senior Inspector in the Office of the Joint Registrar of Co-operative Societies, Nagercoil, and one Krishna Iyer, working as Junior Assistant in the Fisheries Department came as witness.
3. Both of them were introduced to P.W.2 by P.W.9. Both the witnesses were requested to read the First Information Report and they also ascertained the facts with P.W.2. P.W.2 asked to give Rs.500/- to Krishna Iyer. He counted and placed them on the table. P.W.9 directed the Head Constable Natarajan to prepare Sodium Carbonate Solution and asked Krishna Iyer to dip his right hand fingers. On he doing so, there was no change. Then the Head Constable was directed by P.W.9, to apply Phenolphthalein Powder over the currency notes and thereafter, he asked Krishna Iyer to take the amount and count it. He did so. Then he asked Krishna Iyer to dip his fingers in the Sodium Carbonate Solution and on doing so, it turned to pink. P.W.9 explained the significance of the Phenolphthalein test to the witnesses. Then he asked the Head Constable to take the currency notes and to keep them in the left side shirt pocket of P.W.2. He had done so.
4. P.W.9 asked P.W.2 to go to Sub Treasury and meet the accused and to pay the amount, only if the accused is demanded and if the accused received the amount, P.W.9 directed P.W. to come out and show signal by changing his wrist watch from left hand to right hand. He also requested Chandran to accompany P.W.2 to go to the Sub Treasury and watch the events. P.W.9 also prepared the Mahazar in his office between 3.15 p.m. and 4.10 p.m., in which, P.W.2, witnesses and Sub Inspector of Police, Gnanasampandam put their signatures. Mahazar is Ex.P6, in which the numbers of the currency notes were written. The Sodium Carbonate Solution was destroyed and all of them washed their hands. In a Government vehicle, at about 4.20 p.m., they proceeded to Sub Treasury and stopped the vehicle near a Church. While P.W.9 and his party were waiting near Taluk Office, both P.W.2 and P.W.3 Chandran went inside the Treasury.
5. At about 5.30 p.m., P.W.2, came out from the Sub Treasury and showed the pre-arranged signal by changing the wrist watch from his left hand to right hand. Immediately, P.W.9, his police party and Krishna Iyer entered into the Sub-Treasury. P.W.9 introduced himself and also the witnesses to the accused and he asked P.Ws.2 & 3, what happened. P.W.2 told that the accused asked the money about passing of the bills and he took the money from his shirt pocket and gave it to the accused, who received by his left hand and kept the same into his left shirt pocket and then he came and showed the signal.
6. P.W.9 directed preparation of Sodium Carbonate Solution and asked accused to dip his left hand fingers and he, on doing so, the solution colour changed to pink. The accused accepted the receipt of money and when he was asked by P.W.9, the accused produced the money from the left side pocket. P.W.9 compared the numbers in the currency notes and the numbers, which they wrote in the Mahazar, in his office. He also asked the witnesses to compare the numbers. The numbers tallied. P.W.9 arranged another shirt for accused and asked him to remove his shirt. Again the Sodium Carbonate Solution was prepared in another glass and left pocket portion of the shirt of the accused was dipped in the solution and its colour turned to pink. Both the bottles were packed and sealed by P.W.9 and signatures of P.W.9 and those of witnesses and the Sub-Inspector were obtained in a paper and pasted on the bottles. P.W.9 also asked the accused to produce the Bill Nos.9 and 18. The accused produced only Bill.No.9. On enquiry, he told that the bill No.18 was not traced. The currency notes, Sodium Carbonate Solution bottles numbered as 1 and 2 and the Bill NO.9 were seized by P.W.9 under mahazar Ex.P.11. He gave a requisition to the Assistant Treasury Officer and obtained MTC 70 Register and attendance Register. He arrested the accused on 26.02.2002 at about 7.00 p.m., in the Treasury Office. He also prepared an observation Mahazar Ex.P.12 and drew rough sketch Ex.P.21. He sent prior intimation to the Chief Judicial Magistrate, Nagercoil, that he is going to search the house of the accused, which is Ex.P.22. In the search of house of the accused, no material was traced. A search report was prepared and a copy of the same was given to the accused. He sent the accused to judicial custody on 27.06.2003 at 10.00 a.m., he also sent the case properties in Form 95 to the Court.
7. P.W.10, another Inspector of Police, took up the case for further investigation. He examined witnesses and recorded their statements. He gave requisition to the Court to despatch the case properties to the Forensic Science Laboratory. P.W.8, Head Clerk in the Chief Judicial Magistrate speaks about the receipt for request from the Police and despatch of the case properties to the Forensic Science Laboratory with a covering letter of the Court. The receipt of the Sodium Carbonate Solution and the shirt after analysis, Ex.P.10 was sent from the Forensic Science Laboratory, Chennai. It shows that the water test was passed for Sodium Carbonate and also test for Phenolphthalein showed positively. P.W.10 also examined the Police personnel. P.W.9 sent a report to the Director of Anti-corruption Department. He perused the Service particulars of the accused and ascertained the particulars as to his superior, who is competent to remove the accused from service. He also got sanction from him in Ex.P.1. On completion of investigation, he laid a charge against the accused on 22.10.2002.
8. After the witnesses were examined, the accused was questioned under Section 313 of Cr.P.C., as to the incriminating materials available against him in the prosecution evidence. He says that he is innocent and the bills were audited and thereafter it reached Vasudevan Pillai and that the Office Order No.2/02 was written by him on 25.06.2002. He told the Treasury Officer that he was on the duty dealing with the cash and hence, the duty pertaining to bills need not be given to him and hence, he did not sign the Office Order. The Superior Officer used to direct the subordinates to write the Office Order and the persons, who wrote it, would put his initials. He did not put his initials though he got the knowledge of the Office Order. Vasudevan Pillai should have sent the bills to the Audit Section. As per the practice followed in the Sub Treasury, the bills of the Schools were not dealt with. It is further stated by him as follows:-
**gpy; ek;gh; 18I 19/06/2002 md;W ve;j thpirapy; ,Ue;jnjh mnj thpirapy; cjtpf; fy;tp mjpfhhpapd; nkiIapnyna ,Ue;Js;sJ/ mjid ,d;!;bgf;lh; jpU/!;gh;brd;uhId;uha; mth;fsplk; cjtp mjpfhhp rkh;g;gpj;jhh;/ ,th; Vw;fdnt jpU/ukzd; ehah; kw;Wk; mfpnyc;& fhy";brd;w cjtp gapw;rp Mrphpah; VHfuk; muR cah;epiyg;gs;sp jpUkjp/rrpfyh mth;fsplk; mth; jk; fzf;F Kyk; fpilf;f ntz;oa muRg; gzpg;gphpt[fs; gy Mapuf;fzf;fhd U:gha;fis y";rkhf bgw;Wf; bfhz;L mg;go bra;atpy;iy (N.C) jf;f rkaj;jpy; mtUf;Ff; bfhLf;fhjgo ukzd; ehaUk;. mfpnyRk; Tl;lhf nrh;e;J vd;id y";rk; th';fpajhf jpUkjp/rrpfyhtplk; Twp ,e;j y";r tHf;fpy; vd;id khl;otpl;Ls;sdh;. cz;ikapy; VHfuk; muR cah;epiyg; gs;sp gl;oay; vd; gphpitr; rhh;e;jjhf me;j y";rg; gzj;ij mth;fshy; jpUg;gpf; bfhLf;f Koahky; elj;jg;gl;l y";r tHf;fpd; ehlfk; jhd; ,J/ cz;ikapy; ukzDk;. mfpnyRk; jhd; Kjy; Fw;wthsp/ RrpfyhFkhhp kw;Wk; nfhyg;gid rhl;rpahf nrh;f;ftpy;iy. ehd; Fw;wthsp ,y;iy.**
9. The accused examined two witnesses on his side. He has not marked any documents. On analyzing the evidence on record the learned Chief Judicial Magistrate, Nagercoil, found the accused guilty under Section 7, 13(2) r/w Section 13(1)(d) and sentenced to the accused to undergo R.I. for two years for each offence and to pay a fine of Rs.5,000/- for each offence in default to undergo R.I. for six months each. The sentences were directed to run concurrently. Assailing the above said judgment, the accused is before this Court in this appeal.
10. Point for Consideration:
Whether the Prosecution has brought home the guilt of the accused beyond all reasonable doubt on the basis of the charges framed against him?
Point:
11. P.W.2 was working as Office Assistant in Government High School, Ezhagaram, Nagercoil. The accused at the time of occurrence was working as Selection Grade Accountant/Assistant in the Sub-Treasury at Nagercoil. Both P.W.2 and P.W.5 who are working as Office Assistant and Junior Assistant in the above said school used to present the bills for any claim pertaining to the school before the Sub-Treasury at Nagercoil. At the relevant point of time Bill Nos.19/2002-2003 to 23/2002-2003 were presented alongwith Bill Nos.9/2002-2003 and 18/2002-2003 by them in the Sub-Treasury and demand drafts for 5 bills from Bill Nos.19/2002-2003 to 23/2002-2003 were obtained by them. It is the evidence of P.W.2 that he asked the demand draft for bill Nos.9 and 18 for which he told him to come on 26.06.2002 at about 10.30 a.m. and receive it. Both of them went to Sub-Treasury on 26.06.2002 at about 11.00 a.m. And they presented Bill Nos.24 to 26/2002-2003 and P.W.5 obtained token for them. He asked P.W.2 to know about the issue of demand drafts for Bill Nos.9 and 18 from the accused. After some time, P.W.2 asked the accused to issue demand drafts, for which the accused demanded Rs.500/- as bribe and to come to office at 5.30 p.m. on the same day with the money. He also added that if he did not pay any amount nothing will move towards the bills.
12. P.W.2 came to his house, took Rs.500/- and came to Sub-Treasury. He thought why he should pay bribe for routine official transaction and thus proceeded to the Anti Corruption Wing and laid complaint Ex.P.4. He set the law in motion by lodging the complaint. Thereafter as narrated in the earlier paragraphs, the investigation officer took steps to organise trap on the accused and caught him after he received money.
13. As far as P.W.3 is concerned, he is an independent witness working as Senior Inspector in Joint Registrar of Co-operative Societies at Nagercoil. On intimation to his superior, the investigation officer secured the presence of P.W.3 to be a witness in this case. He has nothing to do with any of the prosecution witnesses nor their superiors. Pertinent it is to note that no motive was attributed against him. He is entirely a strange individual to the accused. He has no interest to depose against the accused. He has graphically narrated about his presence in the Anti Corruption Wing, the pre-arrangement regarding preparation of Phenolphthalein solution and test as explained by the investigation officer, his visit to the sub-treasury with P.W.2, the demand of Rs.500/- by the accused from P.W.2, payment of Rs.500/- by P.W.2 to the accused, showing pre-arranged signal by P.W.2 to the investigation officer, the entering of the investigation officer as well as his party into the sub-treasury office, enquiry of accused by the investigation officer, phenolphthalein test performed by the investigation officer upon the accused, preparation of samples of pink colour solution of phenolphthalein, recovery of Ex.P.7, Bill No.9 produced by the accused from the almirah on the west of his seat, recovery of Ex.P.8 Bill No.18 from the sub-treasury officer on request by the investigation officer and Ex.P.9, M.T.C.70 and Attendance Register of Sub-treasury office etc., and preparation of Exs.P.11 and P.12 Mahazar, Observation Mahazar by the investigation officer. He also witnessed the search of residence of the accused by the Investigation Officer. He signed Search Lists Ex.P.13 and Ex.P.14. His evidence in the chief could not be shattered in his cross examination. His evidence is natural and convincing. There is no ground to reject his oral account. His evidence duly corroborates the version of P.W.2 in the matter of demand and receipt of bribe money by the accused and the attending events annexed to the said affairs.
14. P.W.5 in the morning on 26.06.2002 accompanied P.W.2 to the treasury office. In his cross examination, he would say that he did not ask the accused on 26.06.2002 about the bills sent from the school. However, he asked him on the same day two demand drafts, for which he did not reply. Even though he has not mentioned in his chief examination that he met the accused when he went to sub-treasury office with P.W.2, in the cross examination he has come out with a version that he asked the accused about the two demand drafts. From his evidence, it appears that he did not ask the accused about the bills, but about the issue of demand drafts. He also adds that both the bill Nos.9 and 18 were passed on 24.07.2002 and demand drafts were issued therefor on 26.7.2002. His evidence would lend support to the evidence of P.W.2 that on 26.06.2002 the accused was looking after the affairs of the bills presented by the school.
15. P.W.4 was working as Sub-Treasury Officer in the Sub-Treasury, Nagercoil during the relevant period, who says that when she assumed duty on 20.6.2002 as such, the staff of the office by name Bagavathi Ammal, Sasikala kumari and Paramathai were on leave and hence the bills in the office got stagnated and hence she distributed the bills to other available staff by means of passing an Office Order No.2 on 25.06.2002, that as per the said Office Order, the bills from the Government schools situate of Ezhagaram and Soorangudi were to be attended by the accused, was working in A4 section, that the file containing Office Order is Ex.P.14, that bill Nos.19 to 23/2002-2003 were passed, entered into M.T.C.70 and demand drafts for them were issued on 25.06.2002, that Bill No.9/2002-2003 was passed on 20.06.2002 and came to her table and on scrutiny she found the head of account (HOA) wrong and other entries were also not in order and hence she audited it and returned it on the same day, that the above said bills were to be passed by the accused who was A4 Clerk and that she produced the records required by the police.
16. In the officer order, below the note, the initials of the staff belonging to sections A3, A5 and A6 are available. But against A4 the initials of the accused are not found. But P.W.4 states that the office note itself was written by the accused himself on her instructions and at the end of the note the accused has put side initials on the left side of her signature. It is admitted by the accused in his response to questions under Section 313 Cr.P.C. She says that is false to suggest that there is no document to show that the accused accepted the duty of attending to the bills from Ezhagaram school. The suggestion is not tenable, because accused himself has written the office note on instructions from P.W.4. Hence it is far-fetched contention that he did not know about the allotment of duty as to the bills from Ezhagaram school.
17. P.W.6 is accountant in the sub-treasury. She says about the transmission of bill No.18 from her to the accused. She deposes that Bill No.18 was to be attended by one Sasikalakumari, the other accountant, who was on Earned Leave and as per the Order of the Sub-treasury officer the bill No.18 was transmitted to A4 section and hence she gave the gratuity authorisation Ex.P.16 pertaining to the Bill No.18 to the accused. Her evidence shows that Bill No.18 was handed over to the accused.
18. In the back drop of above said factual scenario, the Court has to see whether accused attended to the duty as regards passing of bill from Ezhagaram school, from the evidence of P.W.4 and P.W.6. By virtue of office order of P.W.4, Ezhagaram School bills were transmitted to the accused who knew very well about the office order and he attended to the bills.
19. Mr. Gopala Krishna Lakshmana Raju, learned Senior Counsel appearing for the appellant would raise so many questions, indicating various parts of evidence adduced by the prosecution witnesses. When P.W.2 has nothing to do with the bill, his natural conduct would have been, to inform the alleged payment to his superiors but he did not so. It is true that P.W.2 was not monetarily benefitted by the passing of the bills. But he was deputed to get the demand drafts from the concerned official. His evidence as supported by P.W.3 would go to show that the accused demanded money from him and received from him. Phenolphthalein test has proved the versions of P.W.2 and P.W.3 in this regard.
20. The another limb of contention on behalf of the appellant is that the Vigilance D.S.P. was present in the occurrence place at the time of recovery, but he was not examined before the Court. In view of examination of P.W.3 even if the Vigilance D.S.P. was not examined, it would not affect the prosecution case.
21. It is also contended that the office order was not signed by the appellant and hence it could not be construed that he knew the direction of his senior and he took up the bills pertaining to Ezhagaram school. As adverted to supra, the fact remains that the appellant himself has written the office order as evident from his initials in the office order which has not been denied by him. Hence this contention could not be countenanced.
22. It is also argued that Bill No.9 is alleged to have been produced by the appellant and it is to be seen whether the almirah from where it is stated to have been taken by the appellant was ear-marked for the appellant. It is in evidence that by the side of the seat of the appellant, the almirah was there and from it he produced bill No.9. It shows that even if it is not covered by evidence whether the almirah was meant for the appellant, it is proved that he produced bill No.9.
23. It is stated that the appellant was not passing officer for Bill no.9 and 18 and one Vasudevan Pillai and P.W.4 are passing officials among whom Vasudevan Pillai was not examined, that Vasudevan Pillai passed Bill No.9, then it went to P.W.4 for approval, which was found defective and returned as per evidence. But it is not P.W.4 who was the passing officer. P.W.4 is specific about the allotment of duty of attending the bills to the appellant with respect to Ezhagaram school. In the cross examination she says that on 25.6.2002 Vasudevan Pillai was dealing with the bills regarding Ezhagaram school, who was looking after A5 section. Even though her evidence goes like this, in Ex.P.14 Office Order, it is shown the Junior Assistant Vasudevan Pillai had to attend the bills received from the following offices:
1.Children Development Office
2. Vertinary Hospital Office
3. Ayurveda Hospital office, Tirupathi Saram, Idalakudi
5. Judicial Magistrate No.1 Court, Nagercoil.
24. The office order further indicates that the appellant had to lookafter the bills from Government High School, Ezhagaram and Government Higher Secondary School, Mela Surangudi. The Office Order was to take effect from 25.06.2002. It was issued on 26.06.2002. In view of the above, even if it is stated by P.W.4 that Vasudevan Pillai was looking after the bills regarding Ezhagaram Government School, on the same day they have directed to be transmitted to the appellant. P.W.2 has not stated that he met the accused on 25.06.2002. He says that he, alongwith P.W.5, met the appellant in the morning on 26.06.2002. Hence, the examination of Vasudevan Pillai is not essential.
25. In the light of the detailed discussion taken above, I am of the considered view that the appellant demanded and received bribe of Rs.500/- from P.W.1. The learned Senior Counsel for the appellant placed reliance upon the decision of the Supreme Court reported in 2006 (46) AIC 716 (SC) [State Inspector of Police, Visakapatnam v. S.S. Karri] in which it is held as follows:-
"16. The approach of the learned Special Judge to say the least, was not correct. When a statutory functionary passes an order, that too authorising a person to carry out a public function like investigation into an offence, an order in writing was required to be passed. A statutory functionary must act in a manner laid down in the statute. Issuance of an oral direction is not contemplated under the Act. Such a concept is unknown in Administrative Law. The statutory functionaries are enjoined with a duty to pass written orders."
In the present case, it has not been shown that the superiors of the appellant have violated the principles relating to administrative law.
26. He also cites a decision of a Single Judge of Orissa High Court reported in 2004 CRI.L.J 2225 [Khyamasagar Baina v. State] wherein it is observed that in the like cases, it is necessary that there should be motive for showing favour by the accused coupled with the fact that the recipient of such bribe or gratification has an authority or right to show any favour in the course of discharging his official duty. As already stated, Ex.P.14 has authorised the appellant to deal with the bills from Ezhagaram High School, the oral evidence on record would show that for discharging his official duty he demanded and received illegal gratification.
27. It is the bottomline contention of the learned Senior Counsel that the sanction accorded by P.W.1 for prosecuting the appellant is bad in law for the reason that at the relevant point of time he was holding the additional charge of Treasury Officer in the District Treasury, Nagarcoil. But as per Ex.P.3 Column No.13 in the proforma, with respect to the particulars of service of the superiors of the appellant, the authority competent to appoint or remove him from services is Commissioner of Treasury and Accounts Department, Chennai. But P.W.1 has specifically stated that the appellant was working as Selection Grade Accountant under the Treasury Officer who is competent to remove staff upto the category of accountant. In the cross examination he has stated that in Ex.P.3, it is stated that the other competent authority to appoint and remove the appellant is the Commissioner of Treasury and Accounts Department, Chennai. But the Treasury Officer has got power to remove him. He denied the suggestion that only Commissioner of Treasury and Accounts Department, Chennai, is competent to appoint or remove the appellant. In Ex.P.1-sanction proceedings also P.W.1 has mentioned specifically that he, as Treasury Officer, being the authority competent to remove the appellant from the office. In view of the above definite evidence adduced by P.W.1, that he is the authority competent to remove the appellant from service, it has to be concluded that he is the competent authority to grant sanction for prosecution of the appellant.
28. Even if it is taken that the sanction proceedings Ex.P.1 suffers from defect or infirmity on the reason that P.W.1 is not the authority competent to pass such order then, Section 19 (3)(a) of the Prevention of Corruption Act, 1988, would come to play. The section goes thus:-
"19.Previous sanction necessary for prosecution:-
(1) ... ... ... ...
(2) ... ... ... ...
(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."
29. The analogues provision available in Cr.P.C. is Section 465 which reads as follows:
465. Finding or sentence when reversible by reason of error, omission or irregularity:-
(1) subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
30. The learned Senior Counsel placed much reliance upon a decision reported in 2006 (2) L.W. Crl. 789 [T.C. Loganathan v. State], in which this Court has referred to various judgments of Supreme Court and reached a conclusion that the authority who accorded sanction is not competent for that purpose is not competent to grant sanction and as such this is a fundamental error which invalidated the cognizance taken by the learned Judge, which vitiates the entire proceedings. The following are the decisions referred to in the said judgment:-
1. 1999 SCC (Crl) 1494 [Central bureau of Investigation v. V.K.Sehgal and another]
2. (2005) 8 SCC 130 [State of Goa v. Babu Thomas]
3. 1991 (3) SCC 655 [K. Veeraswami v. Union of India and others]
4. 1971 (1) SCC 411 = AIR 1971 SC 1547 [Bk.
Sardari Lal v. Union of India]
5. (1997) 7 SCC 622 [Mansukhlal Vithaldas Chuhan v. State of Gujarat]
6. (2005) 4 SCC 512 [K. Kalimuthu v. State by DSP]
31. In V.K.Sehgal's case the Supreme Court analysed this subject with regard to Section 465 Cr.P.C and Section 19 (3) (a) of Prevention of Corruption Act, 1988. In this case the Apex Court has held as follows:
"10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. ... ... ..."
"11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure."
"17. It is a further inroad into the powers of the appellate court over and above the trammel contained in Section 465 of the Code which has been dealt with supra. Under Section 19(3)(a) no order of conviction and sentence can be reversed or altered by a court of appeal or revision even "on the ground of the absence of sanction" unless in the opinion of that court a failure of justice has been occasioned thereby. By adding the explanation the said embargo is further widened to the effect that even if the sanction was granted by an authority who was not strictly competent to accord such sanction, then also the appellate as well as revisional courts are debarred from interfering with the conviction and sentence merely on that ground."
32. Following the decision of the Supreme Court, it is to be held that even if the objection as to the validity of sanction was taken in the trial stage and if the case ends in conviction, the judicial filtering process is over on completion of trial and further contention on this objection is of no avail and that even if sanction was granted by an authority was not strictly competent to accord such sanction, the appellate court is debarred from interfering with the conviction and sentence merely on that ground. In the said appeal before the Supreme Court, the High Court order was set aside and the conviction and sentence passed on the accused who was charged under the provisions of Prevention of Corruption Act, and remitted the case to the High Court for fresh disposal in accordance with law. The said principles are squarely applicable to the facts of the present case. The Special Judge has found the accused guilty under the provisions of Prevention of Corruption Act. The competency of the authority viz., P.W.1 to accord sanction on behalf of the appellant while he was in the box in his cross examination. But however, the case has to see its logical end. The trial court has rejected the plea of the appellant, got satisfied with the sanction order and proceeded to convict and sentence the accused. In this circumstance under Section 19(3)(a) of the Prevention of Corruption Act 1988, this Court cannot reverse nor alter the conviction or sentence on this ground. There is no material on record that by means of grant of sanction order, any failure of justice has occasioned. No such failure of justice has occurred in this case.
33. In BabuThomas case, after the charge sheet was laid before the sub- Court, the accused disputed as to the cognizance taken by the Sub-Court. In that case first sanction order was granted on 2.1.1995 by the Company Secretary under Section 19 of the Prevention of Corruption Act, 1988. But the authority competent to appoint and remove the staff from his office is Board of Directors. Subsequently, on 7.9.1997 the second sanction order was issued under the signatures of the Chairman and Managing Director who is competent to appoint and remove him. The second sanction order was granted with retrospective effect from 14.09.1994 after the cognizance was taken by the Court on 29.5.1995. Taking of cognizance was challenged before the Supreme Court. The Supreme Court after referring to earlier two decisions, has observed that the cognizance is taken by the Special Judge on 29.5.1995 is invalid since no sanction order was in force on that date authorising him to take cognizance and described that the same is a fundamental error which invalidates the cognizance as without jurisdiction. The Supreme Court directed the competent authority to issue a fresh sanction order by an authority competent under rules and proceed afresh against the respondent from the stage of taking cognizance of the offence and in accordance with law.
34. In para 11 of the above said judgment, it is mentioned that the evidence is yet to start. Hence the trial has not started in that case. But in the present case on hand, trial was over and the case ended in conviction. The stage of questioning about the taking cognizance of the offence was over prior to the completion of trial. Hence, this case stands in a different putting. In the present case, the principles laid down in the case of V.K. Sehgal have to be followed.
35. In Babu Thomas case, the Supreme Court has referred to two decisions of the Supreme Court. They are as follows:
1. (2004) 7 SCC 763 [ State v. T. Venkatesh Murthy]
2. (1973) 2 SCC 213 [ Durga Dass v. State of H.P.]
36. In Venkatesh Murthy's case the Apex Court has observed as under:
"7. A combined reading of sub-sections (3) and (4) makes the position clear that notwithstanding anything contained in the Code no finding, sentence and 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."
37. In the case of Durga Dass, it has been held by the Apex Court that even presuming that there is irregularity in investigation the trial or conviction will not be vitiated in absence of evidence that accused had been prejudiced. As far as the case on hand is concerned, the above said V.K. Sehgal and Venkatesh Murthy cases are applicable.
38. In the case of K. Veerasamy above, the Supreme Court has discussed the questions relating to the applicability of Section 5 and 6 of The Prevention of Corruption Act. In this decision, the competency of the sanctioning authority is not under the discussion. In Sardari Lal's case, it is held that the executive function statutorily conferred on the President is not delegable. In Mansukhlal's case, it is held as follows:
"The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty."
39. In K. Kalimuthu's case, it is held that protection given under Section 197 of Cr.P.C. is to protect responsible public servant against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants.
40. As adverted to supra, the prosecution has succeeded in proving the charge against the accused beyond reasonable doubt. As far as the validity of sanction is concerned, as stated above, P.W.1 was competent to remove the appellant from the office and even if there is any doubt as to his competency, then Section 19(3)(a) of the Prevention of Corruption Act would play a vital role after the passing of judgment of conviction and sentence upon the appellant. This Court is debarred from interfering with the conviction and sentence passed by the Special Judge on the ground of error or irregularity in the sanction order.
41. The learned senior counsel argued that Section 13(1)(e) of the Prevention of Corruption Act deals with the penalty to be imposed upon a public servant against whom the charges were framed, when it is established that if any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. In this case, except the trap, search of the house of the appellant has not proved any detection of assets which are disproportionate to the known sources of income of appellant. Even though in the concluding portion of the trial Court Judgment in paragraph 32, it has been mentioned that the accused is found guilty under Section 7 and 13(2) r/w 13(1)(<) of the Act. It should be under Section 13(2) r/w 13(1)(d). The charge has been framed against the accused by the Special Judge under Section 7 and 13(2) r/w 13(1)(d). It appears that due to typographical error instead of (d), the letter (<) has been typed. There is no charge under Section 13(1)(e). It should have been as, "under Section 7 and 13(2) r/w 13(1)(d)." Hence, this Court does not find any infirmity in the concluding portion of the judgment.
42. On an indepth study of the evidence, exhibits and other circumstances on record, following the decisions of the Supreme Court, it is held that the prosecution has brought home the guilt of the accused beyond all reasonable doubt and charges framed against him have been established and proved. This Court does not find any infirmity either legally or factually in the judgment of conviction and sentence passed by the Court below. The conviction and sentences are confirmed. The appeal fails.
43. In the result, the Criminal Appeal is dismissed. The trial Court is directed to issue warrant to commit the appellant/accused to prison to suffer the remaining portion of sentence. The disposal of the case properties shall be in accordance with the directions of the trial Court.
ggs To The chief Judicial Magistrate-cum-Special Judge, Nagercoil.