Calcutta High Court (Appellete Side)
Conducting The Trap. Constable Ananda ... vs Unknown on 6 May, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
11. C.R.A. 753 of 2004.
In Re: Tushar Kanti Chakraborty.
...Petitioner.
Mr. Sekhar Basu,
Mr. Subhasish Roy. ....For the Petitioner.
Mr. Debabrata Roy. ....For the State.
This appeal is directed against the judgment and order
dated 8th December, 2004 and 10th December, 2004 passed by the
learned Judge, 2nd Special Court, Hooghly in Special Court Case No.4
of 1998 whereby convicting the appellant for committing offence
punishable under Section 13 (1) (a) of the Prevention of Corruption
Act, 1988 and sentencing him to suffer rigorous imprisonment for two
years and to pay a fine of Rs.5,000/- (Rupees five thousand), in
default, to suffer rigorous imprisonment for a further period of three
months.
A short reference to the factual aspect of the prosecution
case in the Trial Court is required to be given. Shri Ajoy Kr. Nand, the
S.D.P.O., Arambag upon receiving several complaints against the
appellant who was posted as the Sub Registrar, Goghat Registry
Office, at the relevant point of time, that he was in a habit of taking
illegal gratification, arranged for a trap. Accordingly, on 8th
December, 1998, he called on Shri R. N. Halder, Officer-in-charge,
Goghat Police Station and Shri N. Barik, Sub Inspector of Police,
Arambag Police Station to be the witnesses of search and help him in
the matter of conducting the trap. Constable Ananda Santra was also
called on for the purpose of giving tainted money to the appellant.
According to the plan, Ananda Santra had been to the ejlash of the
Sub Registrar, appellant and handed over tainted money of
Rs.1,000/- (Rupees one thousand) to him. Immediately, thereafter
Ajoy Nand together with his associates entered into the ejlash of the
appellant, disclosed their identity and in presence of witnesses
searched the appellant and his table. Mr. Nand recovered the tainted
currency notes from the drawer of the table wherein the appellant is
working inside his ejlash. He was arrested then and there and
accordingly, an F.I.R. was lodged by Mr. Nand in Goghat Police
Station and on the basis of said F.I.R., Goghat Police Station Case
No.130 of 1998 dated 8th December, 1998 was started under Section
13 (1) (a) of the Prevention of Corruption Act, 1988.
The learned Trial Court framed charges under Section 409
of Indian Penal Code and Section 13 (1) (a) of the Prevention of
Corruption Act, 1988 against the appellant. The appellant pleaded
his innocence to the charges so framed against him by the Court and
accordingly, the trial commenced.
In all, 14 witnesses were examined on behalf of the
prosecution. Necessary sanction under Section 6 of the Act, 1988
was obtained which was admitted into evidence and marked as
Ext.7. The recovered tainted notes used in trap were produced in
Court and marked material exhibits. The seizure lists were also
admitted into evidence and marked exhibit. The F.I.R. was marked
as Ext.4. No witness was examined on behalf of the appellant in the
trial. The learned Trial Court upon consideration of the evidence on
record, oral and documentary, found the appellant not guilty to the
charge under Section 409 of the Indian Penal Code, but held that he
committed the offence punishable under Section 13 (1) (a) of the
Prevention of Corruption Act, 1988 and recorded his conviction and
sentence under challenge.
The appellant, being dissatisfied with and aggrieved by the
judgment and order impugned, has preferred this appeal on many
fold grounds, mainly on;
a) that the sanction for prosecution (Ext.7) not being
a valid sanction, the entire prosecution was invalid which
the learned Trial Court did not take care;
b) that the learned Trial Court has failed to take note
of the fact that the prosecution failed to establish that the
demand and the receipt of gratification;
c) that the learned Trial Court failed to consider the
discrepancies on material points involved in the trial and
recorded conviction without proper appreciation of the
evidence on record.
The point to be decided in this appeal is whether the
judgment and order under challenge are sustainable in law.
Mr. Sekhar Basu, learned Senior Counsel appearing on
behalf of the appellant contends that the prosecution has failed to
establish that there was any demand of gratification by the
appellant. Mere recovery of money in question is not sufficient
enough to establish the offence punishable under Section 13 (1) (a) of
the Act, 1988. In support of his contention, Mr. Basu refers to a
decision of the Hon'ble Apex Court in Banarsi Dass Vs. State of
Haryana, reported in (2010) 2 C. Cr. LR. (SC) 1.
Mr. Basu contends further that a mere perusal of the Ext.7,
i.e., the sanction for prosecution discloses that there was no
application of mind by the sanctioning authority and that the
sanctioning authority was not the competent authority to sanction
prosecution against the appellant. In support of his contention, he
also refers to the following decisions of the Hon'ble Apex Court:-
1) Madan Mohan Singh Vs. State of Uttar Pradesh,
reported in A.I.R. 1954 SC 637;
2) State of Goa Vs. Babu Thomas, reported in
(2005) 8 SCC 130;
3) Dilawar Singh Vs. Parvinder Singh @ Iqbal
Singh & Anr, reported in 2006 Crl. L. J. 145;
4) Mansukhlal Vithaldas Chauhann Vs. State of
Gujarat, reported in 1997 SCC (Crl.) 1120;
5) Mohd. Iqbal Ahmed Vs. State of Andhra
Pradesh, reported in (1979) 4 SCC 172 and
6) State of Karnataka Vs. Ameerjan, reported in
(2008) 1 SCC (Crl.) 130.
Mr. Debabrata Roy, learned Counsel appearing on behalf
of the respondent/State fairly concedes to the contention of Mr.
Basu and submits that the sanction for prosecution does not appear to be proper and valid one. Therefore, the entire prosecution appears to be invalid. Mr. Roy, however, contends that when the prosecution established that tainted money was recovered from the possession of the appellant, the burden shifts on the appellant under Section 20 of the Act to establish that he did not obtain that money by way of gratification.
As regards first contention of Mr. Basu is concerned, I find myself in agreement with him. The Ext. 7, i.e., the sanction for prosecution does not appear to be valid at all. Neither the Ext.7 discloses that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was based nor these facts appeared on the face of the sanction and proved by extraneous evidence. In the case in hand, there is no extraneous evidence to the fact that the facts on which the sanction was based placed before the sanctioning authority for his consideration for the purpose of sanctioning prosecution.
There cannot be any dispute as to the settled principle of law that sanction for prosecution under Section 19 of the Act, 1988 is to be given by the competent authority. In the instant case, Deputy Secretary to the Government of West Bengal appears to had given sanction to prosecute the appellant on the basis of one order passed by Superintendent of Police, District Intelligence Branch, Hooghly. The Deputy Secretary to the Government of West Bengal cannot be said to be the sanctioning authority. The principles laid down in the decisions of the Hon'ble Apex Court in Madan Mohan Singh Vs. State of Uttar Pradesh (Supra), State of Goa Vs. Babu Thomas (Supra), Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh & Anr. (Supra), Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (Supra), State of Karnataka Vs. Ameerjan, (Supra) and Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh (Supra), regarding a valid sanction is consistent. The Hon'ble Apex Court has taken a consistent view to the fact that the sanctioning authority is to apply its mind before according sanction to prosecute and that reference to the facts on which the prosecution is based, must appear on the face of the sanction. This principle of law is well reasoned because until and unless the sanctioning authority is provided with facts and circumstances of the entire matter on which the prosecution is based, the sanctioning authority will not be in a position to apply its mind and consider whether the sanction for prosecution was required or not. Any departure from this settled principle of law renders a sanction to prosecute invalid and entire proceeding basing on that sanction to prosecute obviously would become illegal and invalid. In the instant case, the Ext.7, I reiterate, was neither given by a competent authority nor it disclosed that facts on which it was based, placed before the authority for consideration. It does not appear on the face of Ext.7 that materials were placed before the sanctioning authority and the sanctioning authority considered it. There is also no extraneous evidence that material facts constituting the offence were placed before the sanctioning authority. Such being the facts and circumstances, I must say that the sanction for prosecution of the appellant was not valid in the eye of law and has rendered the entire proceeding invalid. On that count only, the appeal succeeds.
I have carefully gone through the evidence of the P.W.4 who was used in that alleged trap organised by the S.D.P.O., Mr. Nand. P.W.4 has stated that he went to the office of the appellant on the relevant date and time and handed over the tainted notes of one thousand rupees to the appellant while the appellant was working on the dias of his Court. Neither he had stated him anything nor the appellant asked him anything. The appellant took the money. The P.W.4 and the appellant were not known to each other prior to that date. The appellant did not demand the money from him, at least no such evidence is forthcoming. Whether the appellant took that money as a gratification or not is a question which ought to have been considered by the learned Trial Court. Question of presumption under Section 20 of the Act arises only when a payment of gratification is proved.
A reference of decision of the Hon'ble Apex Court in M. Narsinga Rao Vs. State of Andhra Pradesh, reported in (2001) 1 SCC 691 can well be given in this regard. What is paid should not always amounted to gratification. When money paid amounted to gratification only, presumption under Section 20 of the Act arises and accordingly, burden shifts on the accused.
In this case, the prosecution has failed to establish that the money alleged to have paid by the P.W.4 to the appellant was actually gratification or bribe. Therefore, question of raising presumption under Section 20 of the Act and shifting of burden to establish that the money found having his sources otherwise than gratification, does not arise in this case. The fact that P.W.4 had no work at all in the office of the Sub Registrar, Goghat on the relevant date has been established. He had no reason to pay money to the appellant going to the dias of his Court without introducing himself and without telling for the purpose of giving money. The P.W.4 has stated categorically that the appellant did not ask him any question also. The entire fact appears to be peculiar and cannot be accepted. When an unknown man comes to an officer like Sub Registrar and pays money inside his Court room without introducing himself, without stating the purpose and the Sub Registrar accepts that money without asking any question, the question automatically comes in is what is the purpose of payment and receiving of the money. No doubt, therefore, the prosecution made out no case to the fact that the appellant demanded gratification from the P.W.4. If so, it is not understood that how the learned Trial Court came to a conclusion that the appellant was habituated in taking bribes. This conclusion of the learned Trial Court does not appear to be sound and correct in the backgrounds of the facts and circumstance of the case.
Banarasi Dass Vs. State of Haryana (Supra), the Hon'ble Apex Court observed;
" It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard. So far as it satisfies the essentials of a complete chain duly supported by appropriate evidence......"
The Hon'ble Court observed further;
" To constitute an offence under Section 161 of the I.P.C. it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5(1)(d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused. In the case of M. K. Harshan V. State of Kerala, (1996) 11 SCC 720, this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under:
".......It is in this context the Courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW-1. Since PW-1's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW-1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the Act, particularly when the version of the accused appears to be probable."
The Apex Court in C. M. Girish Babu Vs. C.B.I., Cochin, High Court of Kerala, reported in (2009) 3 SCC 779 was pleased to follow the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case.
In Suraj Mal Vs. State (Delhi Administration), reported in (1979) 4 SCC 725, the Hon'ble Court was pleased to hold that mere recovery by itself cannot prove the charge of prosecution against the accused in absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money.
I find much substance in the last point raised by Mr. Basu. There are discrepancies in the evidence of witnesses on material points like the payment and acceptance of money, drafting a petition for presentation before the appellant, manner in which of the seizure was conducted, signal alleged to had been given, person conducted search and seizure of the appellant and the place of preparing seizure list. I would like to mention here that in a case like this where an officer of Government is prosecuted touching not only his honour and dignity of the office he is attached to, prosecution should establish the case beyond all reasonable doubt and, at the same time, the learned Trial Court also scrutinise the evidence properly, carefully and with caution so that any suspicion arising out of the case can be removed. Any kind of suspicion in a case of like nature is having great bearing on the prosecution case and its veracity. In the instant case, there are many loose ends in the prosecution case. There are contradictions and inconsistencies in the evidence which altogether is enough to raise suspicion as to the veracity of the prosecution case. The learned Trial Court ought to have dealt with the case more seriously, sincerely and with caution. I must say that the learned Court failed to appreciate the evidence in its proper perspective and came to an incorrect conclusion. As such, the judgment and order impugned cannot be allowed to stand. The appeal is allowed.
Accordingly, the judgment and order impugned is set aside. The appellant is found not guilty to the charge and be acquitted therefrom. He be discharged from the bail bond, if any.
( Kanchan Chakraborty, J. )