Madhya Pradesh High Court
Gopal Shivhare vs The State Of Madhya Pradesh on 31 July, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 Cr.A. No.5460/2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 31st OF JULY, 2024
CRIMINAL APPEAL No. 5460 of 2018
GOPAL SHIVHARE
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Gaurav Tiwari - counsel for appellant.
Shri Amit Dave, Proxy counsel on behalf of Shri Abhijeet Awasthi, counsel for
the respondent.
Reserved on : 25/07/2024
Pronounced on : 31/07/2024
JUDGMENT
This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the Judgment and Sentence dated 18-7-2018 passed by Special Judge, S.P.E. (Lokayukt), Bhopal in Special Case No. SC LOK 26/2015, by which the appellant has been convicted and sentenced for the following offences :
S.No. Offence under Sentence
Section
1. 7 of Prevention of R.I. for 1 year and fine of Rs.1,000/-.
Corruption Act In default imprisonment of 3 months R.I.
2. 13(1)(d) read with R.I. for 4 years and fine of Rs.1,000/-.
Section 13(2) In default imprisonment of 6 months
Prevention of R.I.
Corruption Act
All the sentences to run concurrently.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 31-07-2024
15:59:38
2 Cr.A. No.5460/2018
2. According to the prosecution case, the Appellant was working as Public Relation Officer, M.P. Tourism Department, Hotel Palash, Bhopal. The Appellant was presenting officer in a departmental enquiry, which was pending against the complainant Praveen Dubey, and co-accused T.R. Tank was the Enquiry Officer. The Appellant demanded an amount of Rs. 1 lac to drop the departmental enquiry from the complainant for himself as well as on behalf of co-accused T.R. Tank. The complainant Praveen made a complaint to the S.P.E. (Lokayukt) about the demand of illegal gratification and accordingly after verifying the correctness of the allegations made in the complaint, trap was laid by the S.P.E. (Lokayukt) and the Appellant was caught red handed and ill-gotten amount of Rs.25,000/- was also seized from the possession of the Appellant.
3. The prosecution after obtaining sanction for prosecution, filed a charge sheet against the Appellant under Sections 7, 12, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and also filed a charge sheet against the co-accused T.R. Tank for offence under Sections 7, 12, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and under Section 120-B of IPC.
4. The Appellant and co-accused abjured their guilt and pleaded not guilty.
5. The prosecution examined Praveen Kumar Dubey (P.W.1), Jai Kumar (P.W.2), Umesh Kumar Jhala (P.W.3), Avinash Gajrani (P.W.4), V.K. Bhartiya (P.W.5), Fazal Mohd. (P.W.6), Dr. Vinod Kumar Deshmukh (P.W.7), Smt. Neeta Choubey (P.W.8), Laxmipati Chaturvedi (P.W.9), Ashwini Sharma (P.W.10), Umesh Kumar Tiwari (P.W.11), Ratnesh Bhargava (P.W.12), V.K. Singh (P.W.13) and Saidutt Bohare (P.W.14).
6. The Appellant examined Vijay Suryavanshi (D.W.1) in his defence.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 3 Cr.A. No.5460/20187. The Trial Court after hearing the prosecution as well as the accused persons, acquitted the co-accused T.R. Tank and convicted the Appellant for the offences mentioned above.
8. It appears that the acquittal of co-accused T.R. Tank has not been challenged by the State.
9. Challenging the judgment and sentence passed by the Trial Court, it is submitted by Counsel for the Appellant that the sanction for prosecution was not granted after due application of mind and secondly, the appellant was merely a presenting officer, and he had no authority to get the departmental enquiry closed or dropped, therefore, there was no reason for the appellant to either demand the illegal gratification or to accept the same.
10. Per contra, it is submitted by Counsel for the State that the competency of the accused to pass a favorable order is not a sine qua non, but the impression in the mind of the bribe giver is important. The appellant was the presenting officer who was presenting the case against the complainant and therefore, if the complainant was given an impression that the appellant can get the departmental enquiry dropped or closed, then it cannot be said that there was no reason for the appellant to make such a demand. Further the tainted money was seized from the possession of the Appellant and in view of presumption under Section 20 of Prevention of Corruption Act, the burden is on the appellant to prove his innocence.
11. Heard the learned Counsel for the parties.
Whether conviction of the Appellant can be reversed on the question of sanction for prosecution ?
12. The prosecution has examined V.K. Bhartiya (P.W.5) to prove the sanction for prosecution, granted by the Managing Director of M.P. Tourism, Ex. P.54. This witness has identified the signatures of the sanctioning Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 4 Cr.A. No.5460/2018 authority and this witness had also brought the original file pertaining to grant of sanction for prosecution. This witness was not cross-examined in detail. No question with regard to the contents of the original file were asked.
13. Now the next question for consideration is that whether an employee posted in the office of the sanctioning authority can prove the sanction order or not? and ;
14. Whether the Appellate Court can alter or reverse the order of conviction on the ground of error, omission or irregularity in order of sanction for prosecution?
Section 19(3) of Prevention of Corruption Act reads as under :
Section 19. Previous sanction necessary for prosecution ................
(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.
15. From plain reading of Section 19(3) of Prevention of Corruption Act, it is clear that no finding, sentence, or order passed by a Special Judge shall Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 5 Cr.A. No.5460/2018 be reversed or altered by a Court in appeal unless in the opinion of the Appellate Court, a failure of justice has occasioned thereby.
16. The word "failure of justice" is of utmost importance. The Supreme Court in the case of State of M.P. v. Bhooraji, reported in (2001) 7 SCC 679 has held as under :
14. We have to examine Section 465(1) of the Code in the above context. It is extracted below:
"465. (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 enquiry 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."
15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.
16. What is meant by "a failure of justice" occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani v. State of Karnataka thus: (SCC p. 585, para 23) "23. We often hear about 'failure of justice' and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression 'failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 6 Cr.A. No.5460/2018 Investments Ltd. v. Deptt. of the Environment). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage."
17. It is well established principle of law that an order of sanction can also be proved by examining a witness who can identify the signatures of the sanctioning authority.
18. The Supreme Court in the case of Mohd. Iqbal Ahmed Vs. State of A.P. reported in AIR 1979 SC 677 has held as under :
3....It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done 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 the facts placed before the Sanctioning Authority and the satisfaction arrived at by it.
19. The Supreme Court in the case of State of Maharashtra v. Mahesh G. Jain, reported in (2013) 8 SCC 119 has held as under :
14. From the aforesaid authorities the following principles can be culled out:
14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. 14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 7 Cr.A. No.5460/2018 satisfaction that relevant facts would constitute the offence. 14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in 13 appeal over the sanction order.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity.
****
20. At this stage, we think it apposite to state that while sanctity attached to an order of sanction should never be forgotten but simultaneously the rampant corruption in society has to be kept in view. It has come to the notice of this Court how adjournments are sought in a maladroit manner to linger the trial and how at every stage ingenious efforts are made to assail every interim order. It is the duty of the court that the matters are appropriately dealt with on proper understanding of law of the land. Minor irregularities or technicalities are not to be given Everestine status. It should be borne in mind that historically corruption is a disquiet disease for healthy governance. It has the potentiality to stifle the progress of a civilised society. It ushers in an atmosphere of distrust. Corruption fundamentally is perversion and infectious and an individual perversity can become a social evil. We have said so as we are of the convinced view that in these kind of matters there has to be reflection of promptitude, abhorrence for procrastination, real understanding of the law and to further remain alive to differentiate between hypertechnical contentions and the acceptable legal proponements.
20. The Supreme Court in the case of Nanjappa Vs. State of Karnataka reported in (2015) 14 SCC 186 has held as under :
23. Having said that there are two aspects which we must immediately advert to. The first relates to the effect of subsection (3) to Section 19, which starts with a non obstante clause. Also relevant to the same aspect would be Section 465 CrPC which we have extracted earlier.Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 8 Cr.A. No.5460/2018
23.1. It was argued on behalf of the State with considerable tenacity worthy of a better cause, that in terms of Section 19(3), any error, omission or irregularity in the order sanctioning prosecution of an accused was of no consequence so long as there was no failure of justice resulting from such error, omission or irregularity. It was contended that in terms of Explanation to Section 4, "error includes competence of the authority to grant sanction". The argument is on the face of it attractive but does not, in our opinion, stand closer scrutiny. 23.2. A careful reading of sub-section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order suffers from an error, omission or irregularity, unless of course the court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such error, omission or irregularity. Sub-section (3), in other words, simply forbids interference with an order passed by the Special Judge in appeal, confirmation or revisional proceedings on the ground that the sanction is bad save and except, in cases where the appellate or revisional court finds that failure of justice has occurred by such invalidity. What is noteworthy is that sub-section (3) has no application to proceedings before the Special Judge, who is free to pass an order discharging the accused, if he is of the opinion that a valid order sanctioning prosecution of the accused had not been produced as required under Section 19(1).
23.3. Sub-section (3), in our opinion, postulates a prohibition against a higher court reversing an order passed by the Special Judge on the ground of any defect, omission or irregularity in the order of sanction. It does not forbid a Special Judge from passing an order at whatever stage of the proceedings holding that the prosecution is not maintainable for want of a valid order sanctioning the same.
23.4. The language employed in sub-section (3) is, in our opinion, clear and unambiguous. This is, in our opinion, sufficiently evident even from the language employed in subsection (4) according to which the appellate or the revisional court shall, while examining whether the error, omission or 15 irregularity in the sanction had occasioned in any failure of Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 9 Cr.A. No.5460/2018 justice, have regard to the fact whether the objection could and should have been raised at an early stage. Suffice it to say, that a conjoint reading of sub-sections 19(3) and (4) leaves no manner of doubt that the said provisions envisage a challenge to the validity of the order of sanction or the validity of the proceedings including finding, sentence or order passed by the Special Judge in appeal or revision before a higher court and not before the Special Judge trying the accused.
23.5. The rationale underlying the provision obviously is that if the trial has proceeded to conclusion and resulted in a finding or sentence, the same should not be lightly interfered with by the appellate or the revisional court simply because there was some omission, error or irregularity in the order sanctioning the prosecution under Section 19(1). Failure of justice is, what the appellate or revisional court would in such cases look for. And while examining whether any such failure had indeed taken place, the Court concerned would also keep in mind whether the objection touching the error, omission or irregularity in the sanction could or should have been raised at an earlier stage of the proceedings meaning thereby whether the same could and should have been raised at the trial stage instead of being urged in appeal or revision.
21. The Supreme Court in the case of State of Rajasthan Vs. Tarachandreported in AIR 1973 SC 2131 has held as under :
17. The fact that the Chief Minister was competent to accord sanction for the prosecution of the respondent in accordance with the Rules of Business has not been disputed before us but it has been urged that the prosecution has failed to prove that the Chief Minister accorded his sanction after applying his mind to the facts of this case. So far as this aspect of the matter is concerned, we find that the position of law is that the burden of proof that the requisite sanction had been obtained rests upon the prosecution.
Such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based. These facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 10 Cr.A. No.5460/201818. The question of sanction was dealt with by the Judicial Committee in the case of GokulchandDwarkadasMorarka v. The King, 75 Ind App 30 = (AIR 1948 PC 82). That case related to a sanction under cl. 23 of the Cotton Cloth and Yarn (Control) Order. 1943 which provided that no prosecution for the contravention of any of the provisions of the Order would be instituted without the previous sanction of the Provincial Government. The Judicial Committee in this context observed:
"In their Lordships' view, to comply with the provisions of cl. 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since cl. 23 does not require the sanction to be in any particular form nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority." The principle laid down above holds good for the purpose of sanction under Section 6 of the Prevention of Corruption Act (see Madan Mohan Singh v. State of Uttar Pradesh, AIR 1954 SC 637). Let us now apply the principle laid down above to the facts of the present case. It is no doubt true that no independent evidence was led by the prosecution to prove that 17 the relevant facts had been placed before the Chief Minister before he accorded sanction but that fact, in our opinion, introduces, no fatal infirmity in the case. Sanction P-34 has been reproduced earlier in this judgment and it is manifest from its perusal that the facts constituting the offence have been referred to on the face of the sanction. As such, it was not necessary to lead separate evidence to show that the relevant facts were placed before the Chief Minister. The evidence of Umraomal shows that the formal sanction P-34 filed in the Court bears the signature of Shri R. D. Thapar, Special Secretary to the Government. The fact that the Chief Minister signed the sanction for the prosecution on the file and not the formal sanction produced in the Court makes no material difference. It is, in our opinion, proved on the record that the sanction for the prosecution of the accused had been accorded by the competent authority after it had duly applied its mind to the facts of the case.
26. Thus, a sanction order can be proved by examining the witness who can identify the signatures of the sanctioning Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 11 Cr.A. No.5460/2018 authority, and from the contents of the sanction order, it can be ascertained as to whether the sanctioning authority had applied its mind or not?
22. The Counsel for the Appellant did not point out any prejudice which was caused to him warranting reversal of judgment of conviction. Furthermore, the Counsel for the Appellant also did not point out the lapses in the sanction order. Accordingly, in absence of any material to show that the sanction for prosecution was issued without due application of mind and further in absence of any failure of justice, this Court is of considered opinion, that the judgment of conviction cannot be interfered with on the ground of sanction for prosecution.
Competency/incompetency of the accused to pass a favorable order
23. Whether the accused had a competence or not cannot be an important aspect. The impression in the mind of the bribe-giver that the accused would be of some help is sufficient. The Supreme Court in the case of Chaturdas Bhagwandas Patel v. State of Gujarat, reported in (1976) 3 SCC 46 has held as under :
21. The proof of the foregoing facts was sufficient to establish the charge under Section 161 of the Penal Code. The mere fact that no case of abduction or of any other offence had been registered against Ghanshamsinh in the police station or that no complaint had been made against him to the police by any person in respect of the commission of an offence, could not take the act of the appellant in demanding and accepting the gratification from Ghanshamsinh out of the mischief of Section 161 of the Penal Code. The section does not require that the public servant must, in fact, be in a position to do the official act, favour or service at the time of the demand or receipt of the gratification. To constitute an offence under this section, it is enough if the public servant who accepts the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver "with any other public servant" and the giver gives the gratification under that belief. It is further immaterial if the public Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 12 Cr.A. No.5460/2018 servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing. This is clear from the last explanation appended to Section 161, according to which, a person who receives a gratification as a motive for doing what he does not intend to do, was a reward for doing what he has not done, comes within the 44 purview of the words "a motive or reward for doing". The point is further clarified by Illustration (c) under this section.
Thus, even if it is assumed that the representation made by the appellant regarding the charge of abduction of Bai Sati against Ghanshamsinh was, in fact, false, this will not enable him to get out of the tentacles of Section 161, although the same act of the appellant may amount to the offence of cheating, also (see Mahesh Prasad v. State of U.P.; DhaneshwarNarainSaxena v. Delhi Admn.).
24. The Supreme Court in the case of Ram Sarup Gupta Vs. Delhi Administration decided on 30-10-1968 in Cr.A. No. 215 of 1966 has held as under :
6. As regards the second point it has already been held by this court in Shiv Raj Singh v. Delhi Administration, Cr. A. 124 of 1966 decided on 1-5-68, that when a public servant is charged under Section 161 of the Indian Penal Code and it is alleged that illegal gratification was taken by him for doing or procuring an official act it is not necessary for the court to consider whether or not the accused public servant was capable of doing or intended to do such an act.
25. The Rajasthan High Court in the case of State of Rajasthan Vs. Mohd. Habib decided on 30-5-1972 in D.B. Cr.A. No. 447/1969 has held as under :
16. In the State vs. Sadhu Charan (ll) it was held that--
"The fact that the public servant is functus officio when money is offered to him as a bribe would not by itself and as a matter of law, he sufficient to negative the offence under sec. 161." It was further observed that--Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 13 Cr.A. No.5460/2018
"The gist of the offence is not that there was at the time an official act to be procured capable of being performed by the taker of the bribe or by another public servant with whom he is intended to exercise his influence but that the extra legal gratification is obtained as a motive or reward for doing official acts, that is for doing what may be or is believed or held out to be official conduct. The stress in the section is not so much on the performance of the official act itself, or on its being capable of performance but on the nature of the act as being official. This is meant to exclude from its purview acts which were totally unconnected with any official conduct and which may be attributable purely to the private capacity of the bribe taker or of the other public servant The emphasis is on the gratification offered being a motive or reward for official conduct (inclusive of that which is believed or held out to be so )"
This Orissa case was also referred to by their Lordships of the Supreme Court in Mahadev vs. State of Bom.(9) and the reasonings contained therein were approved--
17. In this connection reference may also be made to the last explanation to sec. 161 I.P.C. which reads as under--
"A motive or reward for doing.--A person who receives a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, comes within these words."
Illustration (c) to the section is as follows--
"A, a public servant, induces Z erroneously to believe that As influence with the Government has obtained a title for Z and thus induces Z to give a money as a reward for this service. A has committed the offence defined in this section."
18. From the explanation and the illustration referred to above it appears to us that it is not necessary in order to constitute an offence under sec. 161 that the act for doing which the bribe is given should actually be performed or that the public servant should be capable and competent of performing it. It is sufficient if a representation is made that it will be performed and a public Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 14 Cr.A. No.5460/2018 servant obtaining a bribe by making such representation will be guilty of the offence punishable under this section even if he had no intention to perform that act. It can be argued with plausibility that a representation by a person that he will do an act impliedly includes a representation that it is within his power to do that act and it is immaterial whether the act which is the consideration for the bribe is or is not within the power of the public servant.
26. The Punjab and Haryana High Court in the case of Pargat Singh Vs. State of Punjab decided on 8-3-2006 inCr.A. No. 246 of 2001 has held as under :
16. There is no evidence that the complainant had spent the first instalment for repaying loan of a tractor to the bank. The complainant in his cross- examination admitted that he had taken loan of Rs. 1,75,000/- from State Bank of Patiala Branch Khaura for getting a tractor and he had become defaulter in the payment of instalments. The complainant admitted in cross-examination that he had not given any certificate to the House Federation, Samana regarding the utilisation of his first instalment. Further, he admitted that he had not given any site plan or details of construction raised with the help of the first instalment. The Ld. Counsel for the appellant argued that when the complainant had not produced before the appellant the Utilisation Certificate and the site plan, the appellant was not capable of moving the file of the complainant, recommending for the release of second instalment. Hence, the version of the complainant is concocted that the appellant demanded and accepted the bribe money from him. In fact, the complainant was annoyed with the appellant and he made out a false case against him. The complainant himself was at fault in not producing Utilisation Certificate and the site plan. The contention of the Ld. Counsel for the appellant is not tenable. Even if the complainant did not produce these documents before the appellant, he committed an offence in demanding and accepting illegal gratification from the complainant. The appellant cannot find an escape contending that he was not capable of favouring the complainant for want of aforesaid documents. When a public servant is charged under Section 7 of the Act and it is alleged that he accepted the illegal gratification for doing or procuring an official act, it is not necessary for the Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 15 Cr.A. No.5460/2018 prosecution to prove whether or not the accused public servant was capable of doing or intended to do such an act.
(Underline supplied)
27. Thus, whether the accused was capable of showing any favour to the bribe giver is not of very importance, but the important thing is that whether the accused had induced the bribe giver to give illegal gratification by making demand of the same or not? The impression in the mind of the bribe giver is more important.
28. If the facts of the present case are considered, then it is clear that the Appellant was the presenting officer in a departmental enquiry which was pending against the complainant. The Appellant demanded Rs.1 lac for getting the departmental enquiry closed. It was the appellant who was required to put forward the case of department in the departmental enquiry. Thus, any inducement by the appellant, that he would get the departmental enquiry closed, would be sufficient to persuade the complainant to give illegal gratification. Thus, whether the appellant was capable of dropping the departmental enquiry or not is not material.
29. No other argument is advanced by the Counsel for the Appellant.
30. In absence of any challenge to the demand made by the Appellant, recovery of tainted money from the possession of the appellant, coupled with the presumption as provided under Section 20 of Prevention of Corruption Act, this Court is of the considered opinion, that the prosecution has successfully proved the guilt of the appellant beyond reasonable doubt. The demand and acceptance of Rs.25,000/- is proved against the Appellant. Accordingly, the conviction of the Appellant for offence under Sections 7, 13(1) read with Section 13(2) of Prevention of Corruption Act, is hereby affirmed.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38 16 Cr.A. No.5460/201831. So far as the sentence awarded by the Trial Court is concerned, it is suffice to mention here that corruption is a menace to the civil society and unfortunately is spreading like a cancer and stringent punishment is required so that no public officer may think of getting involved in corruption. Under these circumstances, the Rigorous Imprisonment of 1 year and 4 years awarded by the Trial Court for offence under Section 7 as well as under
Section 13(1) read with Section 13(2) of Prevention of Corruption Act, respectively do not require any interference.
32. Accordingly, the Judgment and Sentence dated 18-7-2018 passed by Special Judge, S.P.E. (Lokayukt), Bhopal in Special Case No. SC LOK 26/2015 is hereby affirmed.
33. The Appellant is on bail. His bail bonds are hereby cancelled. The Appellant is directed to surrender before the Trial Court latest by 30th of August, 2024 for undergoing the remaining jail sentence. In case if the appellant fails to surrender before the Trial Court on or before due date, then Trial Court shall be free to issue warrant of arrest for securing his presence for undergoing the jail sentence.
34. Office is directed to send a copy of this Judgment to the Trial Court along with the record of the Trial Court, for necessary information and compliance.
35. The Appeal fails and is hereby Dismissed.
(G.S. AHLUWALIA) JUDGE Arun* Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 31-07-2024 15:59:38