Andhra HC (Pre-Telangana)
Mohd. Jaffrullah Khan vs State on 26 April, 2000
Equivalent citations: 2000(4)ALD665, 2000(2)ALD(CRI)71
JUDGMENT
1. These two appeals arise out of the judgment dated 14-9-1999 in CC No.3 of 1994 on the file of learned Additional Special Judge for SPE and ACS Cases-cum-V-Additional Chief Judge, City Civil Court, Hyderabad, and hence they are disposed of by this common judgment.
2. Accused No.1 (A1) is the appellant in Criminal Appeal No.1629 of 1999. He was convicted by the trial Court for the offence under Section 7 of the Prevention of Corruption Act, 1988 (Act No.49 of 1988) (for short 'the Act') and he was sentenced to undergo rigorous imprisonment for a period of one year and also to pay fine of Rs.1,000/- in default to suffer simple imprisonment for a period of three months; and he is also convicted and sentenced to undergo rigorous imprisonment for a period of one year for the charge under Section 13(1)(d)(1) read with Section 13(2) of the Act sentencing him to pay a fine of Rs.1,000/- in default suffer simple imprisonment for a period of three months and that both the sentences were directed to run concurrently.
3. Criminal Appeal No.1618 of 1999 was filed by the accused No.2 aggrieved by the conviction and sentence awarded under Section 12 of the Act in CC No.3 of 1994. He was sentenced to undergo rigorous imprisonment for a period of one year and also to pay fine of Rs.1,000/- in default to undergo simple imprisonment for a period of three months.
4. A1 was working as Mandal Revenue Officer, Makthal Mandal, Mahabubnagar district, while A2 was working as Head Assistant in the office of the Mandal Revenue Officer, Makthal Mandal. It is the case of the prosecution that both the accused are the public servants within the meaning of Section 2(c) of the Act, that accused No.1 committed offences under Sections 7, 11 and 13(2) read with Section 13(1)(d)(1) and (ii) of the Act, while accused No.2 committed the offence under Section 12 of the Act. It is stated that One Eshwari Lingappa (PW1) filed representation before the MRO (AI) for restoration of possession of certain agricultural lands claiming to be protected tenant. Al was understood to have initiated enquiry and demanded bribe of Rs.3,000/- for passing favourable orders. PW1 reported the matter to the ACS, who laid trap on 29-7-1993. On the said date, at about 6.00 p.m., accused No.l came to the office and when PWI met him, accused No.l directed that the amount to be handed over to accused No.2. Thereafter, Al obtained the money from A2. At that point of time, the trap took place. The tainted currency notes were seized and the hands of Al and A2, including right hand pant pocket of Al were subjected to sodium carbonate solution test, which proved positive. Therefore, charge-sheet was laid by the Inspector of Police, ACB Hyderabad Range, Hyderabad, alleging that the accused have committed the offences referred to above.
5. The prosecution examined four witnesses-PWs.l to 4 and got marked Exs.Pl to P12; and the defence examined one witness as DW1 and got marked Ex.Dl. MOs.1 to 9 were got marked for the prosecution.
6. Learned trial Court, after considering the evidence, recorded the finding that the prosecution has proved the guilt of the accused No.l, beyond reasonable doubt and, therefore, inflicted punishment as stated supra. Learned Judge recorded the finding that accused No.2 also committed the offence and accordingly he was also imposed with the punishment as stated above.
7. The judgment was pronounced by the trial Court on 14-9-1999, against which, the present appeals have been preferred by the appellants-accused.
8. Learned Counsel appearing for the appellant-accused No.l Mr. N. Sreedhar Reddy, apart from submitting the arguments on the merits of the case has urged a formidable ground to the effect that the sanction order-Ex.PI 1 as required under Section 19 of the Act was not legally proved and, therefore, the Court has no jurisdiction to take cognizance of the offences levelled against the appellant. Hence he submits that the entire trial gets vitiated on account of the invalid sanction order issued by the authorities. He submits that sanction order Ex.PI 1 was introduced through the investigating officer and it was not inducted into evidence by the person who signed it, nor by the person who had seen it, nor the person who had acquaintance with the signature of the authority. It was also stated that the name of the officer, who signed and sanction order, was not mentioned and no notification was produced authorising such a person to issue or grant permission under Section 19 of the Act. He relies on the judgment of the learned single Judge of this Court in CBI/ SPE, Hyderabad v. P. Muthuraman, 1996 Crl. LJ 3638.
9. On the other hand, learned Counsel appearing for the ACB Mr. G. Pedda Babu, submits that a mere defect in the sanction order-Ex.Pl 1 would not vitiate the trial, especially when the accused were found guilty of the charges levelled against them and it would not be appropriate for the learned Counsel for the appellants to urge this point at this juncture before this Court. He relies on the decision of the Supreme Court in Central Bureau of Investigation v. V.K. Sehgal and another, 1999 (8) Supreme 490.
10. The question that falls for consideration is as to the admissibility of the sanction order-Ex.P11 issued under Section 19 of the Act.
11. For proper appreciation of the case, it is necessary to extract Section 19 of the Act, which reads thus :
"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 wilh the affairs of a State and is no: 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 subsection (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 subsection (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 proceeding 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 and should have been raised at any earlier stage in the proceedings.
12. Interpretation of Section 19 of the Act arose before the learned single Judge of this Court in C.B.I./SPE, Hyderabad v. P. Muthwaman, 1996 Crl. LJ 3638 (supra). After referring to various judgments the learned single Judge has observed as follows :
"14. For the reasons stated in the preceding paragraph, I reach the conclusion that the signature on the sanction should be proved either by the sanctioning authority or by his subordinate officer or clerk who lias seen the sanctioning authority signing the sanction order or who is acquainted with the signature of the sanctioning authority. Merely filing the order purported to be the sanction order alleged to have been signed by the competent authority, does not discharge the burden of the prosecution in proving the sanction according to law."
13. In respect of the provisions of sub-section 3(a) of Section 19 of the Act, the learned single Judge also dealt with at Paragraph 17, which reads as follows :
"For the reasons stated above, the case of Gurdeo Singh 1956, Crl. LJ 102, (Pepsu) (supra), is of no help to the prosecution. The lower Court has not recorded a finding that the sanction order Ex.P13 is a valid sanction order. The provisions of sub-section (3)(a) of Section 19 of the Prevention of Corruption Act are not attracted for the simple reason that it provides that 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. The lower Court has acquitted the accused and its finding, sentence or order is not to be reversed or altered on the ground of absence of any error or omission or irregularity in the sanction order Ex.P13. Since the prosecution has not legally proved the sanction order Ex.P13, the question of challenging the same during the trial cannot be said to have arisen and it cannot be said that the respondent-accused had any occasion to challenge the same. Had the sanctioning authority or the clerk been examined and had they proved the signature on the sanction order stating that the signatory was the competent authority to sanction prosecution and that fact was not challenged in cross-examination, the things would have been different. The Investigating Officer, who has neither claimed nor would claim to have been acquainted with the signature of N.R. Khanna, was not competent to prove the sanction order Ex.P13 and, therefore, the question of challenging his statement in the cross-examination does not arise. Under these circumstances, in my opinion, a failure of justice has in fact been occasioned by not proving the sanction order according to law."
14. The case on hand stands on the similar footing. The name of the Officer, who signed the sanction order-Ex.P11 was not mentioned and neither the person, who signed the sanction order, was examined before the trial Court, nor the person, who has seen the sanctioning authority signing the sanction order, nor the person who is acquainted with the signature of the sanctioning authority, were examined by the prosecution in this case. The very purpose of Section 19 of the Act is to protect the public servants from frivolous or vindictive prosecutions. For that purpose Section 19 of the Act is provided, whereunder before sanction is granted by the authority concerned, he shall peruse the concerned documents and come to a definite conclusion that it is a case for prosecution or otherwise. So, therefore, if such an application of mind is lacking, it will be a futile exercise if the sanction order is passed in a normal routine manner.
15. In the case relied on by the learned Counsel for ACB, in Central Bureau of Investigation v. V.K. Sehgal and another, 1999 (8) Supreme 490 (supra), the public servant was prosecuted when the Prevention of Corruption Act, 1947 was in force and when it readies for trail of the case, the Prevention of Corruption Act, 1988 came into force. It is not relevant for the purpose of deciding the case on hand. The Supreme Court observed at Para 10 of the judgment 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. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate Court. In Kalpnath Rai v. State through CBI, , this Court has observed in paragraph 29 thus;
"Sub-section (2) of Section 465 of the Code is not a carte blanche for rendering all trials vitiated on the ground of the irregularity of sanction if objection thereto was raised at the first instance itself. The sub-section only says that 'the Court shall have regard to the fact' that objection has been raised at the earlier stage in the proceedings. It is only one of the considerations to be weighed but it does not mean that if objection was raised at the earlier stage, for that very reason the irregularity in the sanction would spoil the prosecution and transmute the proceedings into a void trial.
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 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 (he 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."
16. In the case dealt with by the Supreme Court, no objection was taken at any point of time by the accused concerned about the validity or otherwise of the sanction order. In the instant case, such an issue was raised. But what has to be seen is that whether failure of justice is caused on account of the defective or incompetent sanction order. That is the main criteria to be applied. Section 19(3)(a) of the Act provides that no finding of sentence passed by the Special Judge shall be reversed in a Court by appeal or revision unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. Therefore, mere technical omissions would not vitiate the trial, but is subject to the finding of the Court that the failure of justice had been caused. With reference to the material available on record and also the observations of the learned single Judge of this Court, in the case referred to supra, it has to be seen in the present case that only the investigating officer has introduced the sanction order-Ex.P11 and that there was no scope for the accused to cross-examine the concerned witness. If the appropriate witness had come into witness box, the things would have been different, as observed by the learned single Judge of this Court, in the case supra. Therefore, under those circumstances, it is to be necessarily held that the facts referred in the judgment of the Supreme Court are quite different and are not applicable to the facts of the present case. As already indicated in preceding paragraphs, the very intention of introducing Section 19 of the Act is to protect the innocent public servants. Therefore, it enjoins upon the authorities to consider whether it is a fit case for prosecution or not. If the power is not used in a fair and proper manner, the very purpose of engrafting protective statutory umbrella, would be defeated. Under those circumstances, I am of the considered opinion that the failure of justice had occasioned in the instant case by not proving the sanction order Ex.Pl 1 according to law. It is also to be noted that the burden lies on the prosecution to establish that the sanction order-Ex.P11 was issued by the competent authority and by the person authorised to issue such order and no witness from the department of the Government deposed to these facts. The name of the Officer, who signed Ex.P11 was not noted nor the notification authorising such officer to exercise that power, was filed. Under those circumstances, it cannot be said that the prejudice was not caused to the case of Al. Accordingly, the entire trial proceeded against accused No. 1 is vitiated., Therefore, without going into the merits of the case, I have to necessarily hold that the prosecution has failed to establish the sanction order-Ex.Pl 1 for proceeding with the matter. When once it is found that there is no proper sanction order for prosecution, the further proceedings held by the learned Special Judge becomes incompetent and without jurisdiction. Accordingly it has to be held that accused No.I is not found to be guilty of any of the charges framed against him. Accordingly the accused No.I is acquitted of the charges levelled against him. The judgment of the trial Court is set aside. His bail bonds shall stand cancelled. The fine amount, if any, paid shall be refunded to the accused No.1.
17. Coming to accused No.2, the charge framed against him is that he has committed an offence under Section 12 of the Act, i.e., abetment. Learned Counsel for accused No.2 submits that the finding of the trial Court that accused No.2 has committed abetment of offence is wholly without any basis and contrary to the evidence on record. Under Section 107 of the Indian Penal Code, it should contain three independent ingredients and according to the prosecution accused No.2 falls within the third ingredient viz., intentionally aids by an act or by illegal omission the doing of that thing. But in the instant case, there is no evidence to establish that accused No.2 intentionally aided the commission of offence. Learned Counsel takes me to the cross-examination of PW3. PW3 stated in the cross-examination as follows:
"The complaint was given against the AO1 only. The role of the AO2 was only handing over of the amount to AO1. As per the instructions of the MRO only he received the amount from PW1 and handed over the same to the MRO. There is no demand from AO2 at any time to pay the amount."
On questions put by the Court, the witness-PW3 stated as follows :
"I thought that the AO2 must have knowledge that the amount was the bribe amount and for receiving the amount and handing over the same to the MRO, I cited him as the accused in this case."
18. Thus, it is clear that accused No.2 had no role to play in this process. As per the evidence on record, the complainant-PW1, when approached accused No.1, accused No.l directed PW1 to hand-over the money to accused No.2 and on such directions, the money was handedover to accused No.2 and thereafter the money was handed over back to accused No.l by accused No.2. What is required to be considered is whether accused No.2 has knowledge that he is a party to the transaction and knew well that he is receiving the bribe amount. From the evidence of PW3, it can safely be concluded that accused No.2 had no knowledge of the bribe amount in this case. His name did not figure in the complaint. More over the trial Court, on erroneous consideration, has given undue weight to the statements recorded by the police under Section 161 of the Code of Criminal Procedure and the statement recorded by the learned Magistrate under Section 164 of the Code of Criminal Procedure. It has now been held by a Division Bench of this Court in P. Raj Kumar and others v. State of Andhra Pradesh, 1999 (2) ALD (Crl) 696 (AP), that the statements did not form substantive piece of evidence and they cannot be relied on for finding the accused guilty of the offence. The Division Bench has categorically held that the statement recorded by the learned Magistrate under Section 164 of the Code of Criminal Procedure, is a public document and it is not necessary to summon the learned Magistrate by process. Learned Sessions Judge treated the statement recorded under Section 164 ofthe Code of Criminal Procedure as a substantive evidence and marked as exhibits. As a matter of fact, the same cannot be used as substantive piece of evidence, but the statements can only be used for the purpose of contradiction by the defence and by the prosecution for corroboration. Therefore, the reliance placed on by the learned trial Judge on the statements recorded under Sections 161 and 164 ofthe Code of Criminal Procedure is wholly erroneous and contrary to law as laid down by the Division Bench of this Court in P. Raj Kumar and others v. State of Andhra Pradesh, 1999 (2) ALD (Crl.) 696 (AP) (supra). As already observed that there is no iota of evidence that accused No.2 had knowledge of Ihe transaction and that he was instrumental in the transaction or was aiding the process of transfer of bribe amount. The prosecution has failed to establish that the accused No.2 had knowledge of the transaction, which is one of the primary ingredients to hold that the charge is proved against the accused No.2 under Section 12 of the Act. The failure to establish ingredients under Section 107 of the Indian Penal Code would lead to the conclusion that the abetment has not been established. Under these circumstances, I have to necessarily hold that the finding of the trial Court that the offence of abetment under Section 12 ofthe Act has been established, is totally misconceived and contrary to the evidence on record. Accordingly, I am constrained to set aside the said finding and consequently the conviction and sentence recorded against accused No.2 are set aside. Accused No.2 is acquitted of the charge levelled against him. His bait bonds shall stand cancelled. The fine amount, if any, paid shall be refunded to accused No.2.
19. Accordingly, both the appeals are allowed.