Bombay High Court
Vishwanath Mahadev Karkhanis vs State Of Maharashtra on 11 April, 1991
Equivalent citations: 1991(2)BOMCR565, 1991CRILJ3146, 1991(2)MHLJ1040
JUDGMENT
1. The appellant in this case, a senior retired Railway clerk, came to be charge-sheeted by the Central Bureau of Investigation in Special Case No. 27 of 1978 along with four of his colleagues. The five accused stood charged with having committed an offence of conspiracy punishable under section 120B of the Indian Penal Code. The learned Special Judge, Bombay, framed as many as 12 charges, some of them relating to abuse of position and securing gain, being offences under the Prevention of Corruption Act; charges relating to cheating of the Western Railway as also offences relating to fabrication of records. The charges are being summarily dealt with by me because on a prima facie scrutiny of the 12 charges, it is noticed that several of these charges were wholly unnecessary in so far as there is a repetition of the same charges which are all overlapping. There are reasons, however, why the technical errors or procedural errors involved in this case, though of consequence and being ones of a substantial nature, are not the only heads that are being considered because, to my mind, the consequences of this prosecution being extremely serious and far-reaching to the concerned employees, it is essential that the case be dealt with also on merits so that a complete and final decision can be arrived at.
2. Briefly stated, the Prosecution alleged that between the period October, 1973 and December, 1975, the five accused persons who had dealt with the refunds in relation to unused or partially used tickets had entered into a criminal conspiracy, the object of which was to secure for themselves pecuniary gain by misuse of their positions. It was alleged that Accused No. 1 was the sanctioning authority and the four accused were clerks in his department dealing with issues relating to these refunds and that in certain cases though refunds were, in fact, shown that the amounts did not reach the passengers. Unfortunately, though the record of the case is voluminous and though a prestigious investigating authority, such as the Central Bureau of Investigation, was entrusted with the investigation of this case, I am constrained to observe that the combined efforts of the C.B.I. and the Railway have only succeeded in making a mountain out of a mole-hill. After the immense labour which the investigating authority seems to have gone through, the charge which emerges is that accused No. 2 was responsible for an amount totalling only Rs. 408-36 ps.; accused No. 3 was responsible for an amount for Rs. 303-20 ps., accused No. 4 was responsible for an amount of Rs. 223-10 ps. and accused No. 5 was responsible for an even more insignificant amount of Rs. 69-50 ps. For this trivial amount aggregating hardly to a thousand rupees, the Railways instead of so much as holding an enquiry of their own which, if held, would have demonstrated that there was virtually no case against the five employees, took the easy way out of lodging a complaint with the C.B.I. This authority, in its turn, adopted its favourite modus operandi of starting with a conspiracy charge and alleging that everything that took place was in furtherance of that conspiracy. The learned special Judge has, after a protracted trial, come to the conclusion that accused No. 1 was entitled to an acquittal; whereas accused Nos. 2 to 5 have been convicted under almost all the charges except charge No. 12 which related to fabrication of documents. It is true that the learned Special Judge has taken a lenient view and has imposed very light sentences and fines in this case. As far as this appellant is concerned, after 38 years of service with the Railways as a clerk, the man had retired from service, at which time faced with a prosecution of the present type he appears to have suffered a nervous breakdown and landed in the Mental Hospital for treatment. At the time when the judgment was pronounced, therefore, his case was separated and after his discharge from the Mental Hospital, when he appeared before the Court, the learned Special Judge passed a separate order which is the subject-matter of the present appeal. By this order, the learned Special Judge imposed an extremely light sentence of one day and a fine of Rs. 15/- and Rs. 10/- respectively, but the consequences of this conviction were so totally ruinous to the appellant that, among other things, I am informed at the Bar that it resulted in a second nervous breakdown and the appellant was re-admitted to the Mental Hospital. Regardless, therefore, of the lightness of the sentence, having regard to the consequences that it has on the appellant by way of stigma and the fact that he stands to lose very seriously as far as his terminal benefits are concerned, Mr. Nakhwa on his behalf insisted on challenging the very basis of the conviction itself and, to my mind, with considerable justification.
3. Adverting at this stage, it is necessary for me to deal with another very exceptional and unusual feature that arose in the present case. Original accused No. 2 one Shrinarayan Harnarayan Suri had challenged his conviction under the main judgment by way of Criminal Appeal No. 447 of 1983. The present appeal was directed to be heard along with that appeal. When these two appeals were called out for hearing in the third week of March, 1991, I found that the learned advocate appearing for original accused No. 2 was not present before the Court. The appellant was present in person and informed the Court that he was so totally ruined and impoverished as a result of the action taken by the Railways against him pursuant to his conviction that he was unable to pay his lawyer's fees and, consequently, that in all sense of humility he had told his lawyer that the Counsel need not appear. Another equally painful event occurred when the remaining two accused who had been reduced to an even more pitiable economic condition informed this Court that they were unable to raise any funds to file an appeal challenging the judgment, but orally prayed that the Court should have mercy on their condition and should treat their oral request as an appeal and that the same should be heard along with the main appeal. Even at this stage, they were not in a position to engage a lawyer to study their cases and to argue their cases. Had they filed even formal appeals earlier and had they requested the State for legal aid, such assistance would have been made available. The curious but unprecedented position that I was faced with was as to whether the oral requests conveyed by original accused Nos. 4 and 5 should be treated as an appeal and the delay condoned and their cases considered along with the other cases of accused Nos. 2 and 3. The High Courts and the Supreme Court have over the last few years observed, while exercising inherent powers, that it is the duty of the Court while administering justice to consider pleas for legal redress even if not prosecuted in the prescribed form and to take suo motu notice of their pleas and to act on them. Normally, this Court would not have entertained an appeal of this type, particularly when it is not in writing and is grossly delayed. I have, however, passed a separate order setting out the exceptional situation prevalent in this case which required an exceptional order. In this view of the matter, the pleas advanced by accused Nos. 4 and 5 shall technically be treated as Criminal Appeals Nos. 182(A) and 182(B) of 1984 in which the delay shall stand condoned and those two appeals shall be treated as having been heard along with this appeal and disposed of. It is true that this Court is not exercising its jurisdiction under Article 226 of the Constitution of India in making this order, but the powers of this Court under section 482 of the Code of Criminal Procedure, 1973 are virtually parallel powers to those under Article 226 of the Constitution. Section 482 of the Code of Criminal Procedure reads as follows :-
"S. 482. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
For the purposes of securing the ends of justice, it is necessary that this Court should in very exceptional situations, such as the present one, dispense with the procedural formalities as I have done in treating the appeals of accused Nos. 4 and 5 as appeals to be heard along with the appeals of the remaining accused. One of the reasons for my adopting this unusual and perhaps hitherto unprecedented course of action is that the record of this case is voluminous and that at the present juncture I have before me Counsel appearing on behalf of accused Nos. 2 and 3 who is ready with the appeal as also Mr. Lambay, the learned Additional Public Prosecutor, who has studied the brief and is ready to go on with it. The interests of justice will require that the appeals which were filed in the year 1983 and 1984 should not, under any circumstances, be adjourned as prejudice would be caused to those appellants. The only course open, therefore, was to appoint Mr. Nakhwa as amicus curiae to appear on behalf of original accused Nos. 2, 4 and 5, for which his professional charges shall be paid by the State and to grant a reasonable adjournment of a short duration so that Mr. Nakhwa, who has studied the entire record also from the point of view of original accused Nos. 2, 4 and 5, can make his submissions. By following such a procedure, I am conscious of the fact that considerable amount of judicial time is being saved and that the disposal of the entire group of appeals is being expeditiously achieved. Had this not been done, the appeals of accused Nos. 4 and 5, even if entertained, would have to be separately heard at some future distant point of time entailing a re-hearing of the whole case. If at all the accused are to succeed, it must be during their lifetime and at a point of time when they can derive the benefits of their success - that is what ultimately justice is all about. I have passed a separate order appointing Mr. Nakhwa as amicus curiae also on behalf of original accused Nos. 2, 4 and 5 and the office shall act on the basis of that order. I would like to commend Mr. Nakhwa for having readily accepted the suggestion of the Court and to have at a short notice studied the voluminous record and got ready with the appeals within the little time available to him.
4. In the light of the above position, original accused Nos. 2, 3, 4 and 5 have challenged the validity of their conviction by the learned special Judge. The first ground on which Mr. Nakhwa has attacked the Prosecution evidence is on the ground that the sanction order is defective. He has, however, proceeded his main line of attack against the sanction order by a subsidiary argument which is rather rare in a Prosecution of the present type. Mr. Nakhwa has submitted that under Section 4 of the Prevention of Corruption Act, which is the main gravamen of the charges against the present appellants, that the starting point of the Prosecution is a presumption that is liable to be drawn against them by virtue of their status as public servants. Sub-section (3) of Section 4 of the Prevention of Corruption Act reads as follows :-
"(3) Notwithstanding anything contained in sub-sections (1) and (2), the Court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trival that no inference of corruption may fairly be drawn."
Mr. Nakhwa has submitted that the spirit behind the induction of this provision is that in those of the cases where the act complained about is so trivial or where the harm alleged is so negligible, that no presumption can be drawn against a public servant and ipso facto, according to him, that no Prosecution can, therefore, be based on such trivial material. This provision, namely, sub-section (3) of Section 4 of the Prevention of Corruption Act, is, undoubtedly, a parallel provision to the one that is embodied in Section 95 of the Indian Penal Code, wherein the Courts have repeatedly taken the view that if the act complained about is so insignificant that judicial time should not be wasted by bringing such cases to Court, Mr. Nakhwa has submitted, and rightly so, that in the present case assuming without admitting that in the circumstances alleged some minor loss has occurred, but the amount being so small, it was always open to the authorities to have taken disciplinary action by imposing a minor penalty on the accused and that the Railways were certainly wrong in utilising the machinery of the C.B.I. and the Special Court in a case of the present type. There is complete justification to this grievance.
5. This, however, may not be sufficient to attack the validity of the Prosecution even though it may speak volumes regarding the inadvisability of the same. Proceeding further from this premise, however, Mr. Nakhwa has raised a more substantial attack to the Prosecution by pointing out that the sanction orders in this case (Exhibits 15 and 17) suffer a from total non-application of mind and render the entire Prosecution void ab initio. Mr. Nakhwa has relied on a host of authorities which it is un-necessary to reproduce in respect of his contention that where the sanction order betrays non-application of mind that it would vitiate the entire proceeding. The second sanction order (Exhibit 17) has been attacked by Mr. Nakhwa on an additional ground, namely, that it is signed by the Secretary to the General Manager, Western Railway, who in turn is most certainly not the authority competent to sanction the Prosecution. Even as regards Exhibit 15 on the basis of the ratio of the decision in the case of Sailendranath v. State of Bihar, 1968 Cri LJ 1484 : (AIR 1968 SC 1292), and the observations of Hegde, J. at paragraph (15) of that judgment, Mr. Nakhwa pointed out that under the Railway Establishment Code and the relevant rules, that neither of the two authorities could have validly sanctioned the prosecutions against these accused. Apart from this attack, which was not canvassed before the trial Court and which according to Mr. Lambay should not be permitted before this Court, there is considerable substance on an examination of the sanction orders with regard to the main challenge regarding the non-application of mind. I shall refer to only one of the decisions, a judgment of S. Murtaza Fazal Ali, J. in the case of Mohd. Ahmed v. State of A.P., , wherein the learned Judge has very clearly held that where the reading of the sanction order indicates that there was no proper application of mind that the Prosecution is rendered void ab initio.
6. There is a certain class of cases which requires prior sanction before a Court can take cognizance of the offences in question. The object of prescribing this procedure was because the Legislature in its wisdom recorded that the decision as to whether to prosecute or not should not be left to the whims, fancies and caprices of the subordinate officers of a Government Department and, therefore, it becomes necessary that an officer of sufficient rank and status was required to scan, scrutinize and carefully examine the material against the concerned accused and after evaluating as to whether or not there was sufficient ground to proceed that he was required to grant the sanction. The object behind this procedure was a salutary one, namely, that the concerned accused who in the present case were senior public servants should not be exposed to the trauma and travails of a Prosecution unless there was full justification for that. Where the authority concerned abdicates its responsibility by acting mechanically or where the sanction is obtained from an authority below the requisite rank as laid down by law the pre-condition for the Prosecution itself being wanting, the entire trial gets vitiated.
7. In the present case, it is pointed out that these issues were vehemently canvassed before the learned Special Judge, who has dealt with the submissions at page 567 of the Paper-Book. Unfortunately, though the learned Special Judge has taken note of the serious infirmities and of the fact that it would render the Prosecution illegal, he has for some curious and totally unintelligible reasons recorded the finding that, according to him, the sanction is merely irregular and that even though such an irregularity connotes a defect that may not go to the root of the case and which is curable and that such a finding could never have been arrived at in the light of the well-settled position in law.
8. Mr. Lambay, the learned Additional Public Prosecutor, has submitted that the reading of the sanction order will undisputedly indicate that the authorities who granted sanction have applied their mind to the facts of the case. He has taken me carefully through the parts of the sanction order from which be submitted that Mr. Nakhwa's charge that the sanctioning authority has acted mechanically and has taken out one mode of the usual cyclostyled type of orders as unfair and unwarranted. Mr. Lambay stated that record fully justified the conclusion that the accused before the Court were prima facie responsible for the acts with which they stood charged and that it is evident that the Railways had held at least a prima facie enquiry and that it was very much in the public interest that a fraud of this type should be investigated into and that the guilty be put on trial. The general sentiments expressed by Mr. Lambay are correct and laudable, but the facts of the present case are so grossly inadequate as related to the sanction order that I have no hesitation in holding that both the sanction orders were bad and that, consequently, the trial itself is vitiated and that it was void ab initio.
9. Mr. Nakhwa has requested this Court, regardless of the invalidity of the sanction order, to go through the entire evidence and to decide the entire case on merits because Mr. Nakhwa has pointed out to me that if this is not done the Railway Authorities will immediately take up the technical plea and they will correct the sanction order and commence a re-trial or that on the basis that the acquittal was of a technical nature that the Railway Authorities will commence an unending departmental enquiry which would probably consume the entire life span of the accused. There is some substance in this grievance and I have, therefore, agreed to consider the case also on merits which to my mind is equally necessary. This is a case where a large number of documents have been tendered in evidence. The entire set of charges against the accused, including the conspiracy charge, basically rest on the documentary evidence. To that extent, the first necessary ingredient is that the incriminating documents in question which are attributed to the accused must be held to have been proved. This proof involves the identity and proof of the handwriting and more importantly identity and proof of the signatures. As far as both these aspects are concerned, it is pointed out by Mr. Nakhwa that there is a serious lacuna in the present investigation. He stated that there was no difficulty whatsoever for the C.B.I. to have obtained admitted handwritings and signatures of the accused which was for some reason never done. At a very late stage, obviously after the investigation was more or less complete, it did apparently occur to the concerned authorities that it was necessary to fix the identity of the documents and their nexus with the concerned accused who had been placed on trial. For this purpose, the prosecution adopted a wholly unsatisfactory procedure and a strange one. A host of witnesses have been summoned, all of whom fall into two broad categories. They are all persons who have retired from the services of the Western Railway several years earlier. The first category of these witnesses claim that they knew the particular accused in so far as they were working with them in the department. The second category of witnesses claims that at some point of time or the other, the concerned accused were subordinates to them. This makes little difference because these persons admitted that they have retired from service several years earlier and it was demonstrated by Mr. Nakhwa that one of these persons has retired in the year 1971 and that he is solemnly deposing in evidence in the year 1983. The time frame is more or less common in the case of the witnesses and it is quite amazing that all of them uniformly depose in evidence that they do recall that during the years that they were in service, they had occasion to see the handwriting and signatures of a concerned accused and that their eye-sight and memory is so precise and so sharp and so reliable that they are able to tell the Court that the handwriting and signatures on documents shown to them in Court belonged to a particular accused. Mercifully, the learned Special Judge himself, in the judgment, has realised the weakness of evidence of this type, but the learned Special Judge has got over it by following an equally unsatisfactory procedure. The learned Special Judge states that he has conveniently resolved the entire challenge of the defence under this head by taking out the Vakalatnamas that were filed by the accused before the Court and has satisfied himself from the signatures appearing thereon that the documents were signed by the accused. It is quite true that in a given case for the purposes of satisfying itself the Court may even look at the admitted signatures on a Vakalatnama or documents filed before the Court for the purpose of resolving a minor controversy. In the present case, however, the lacuna was far more substantial in so far as the Prosecution had not discharged the basic burden cast on it and that lacuna, to my mind, could not have been cured by the learned Special Judge coming to the assistance of the Prosecution by stating that the infirmities pointed out by the defence have been undone through the comparison of the signature on the Vakalatnamas before the Court, which still leave out the handwritings.
10. Mr. Lambay, the learned Additional Public Prosecutor, has stoutly defended the procedure adopted by the Prosecution by pointing out that under S. 73 of the Evidence Act, it is quite permissible for a witness to identify a handwriting and signatures with which he is familiar. Mr. Lambay has also pointed out that if at all there was any shadow of doubt, as an additional precaution and safety measure that the learned Special Judge has resolved the controversy by making a comparison with the Vakalatnamas that were filed in the Court. Unfortunately, this submission is unacceptable in so far as it would be a dangerous precedent to permit identification and proof of this type, and in the present case, it suffers from an inherent weakness that makes the method of proof wholly unsatisfactory. To this extent, the lacuna pointed out by Mr. Nakhwa with regard to the entire set of documents proved by the Prosecution by this method will have to be upheld and it will have to be, consequently, held that none of the documents in question can be said to have been proved.
11. Regardless of this aspect of the matter, the next submission canvassed by Mr. Nakhwa is that the entire set of charges framed against the Accused proceeded on the footing that the refunds in question had not reached the passengers who had applied for there. Mr. Nakhwa has drawn my attention to the evidence of Kishorchandra Karwa (P.W. 9), Vinod Mody (P.W. 10) and Devendra Shah (P.W. 12) as an indication of the fact that there was such a high degree of confusion prevailing at the relevant time for a variety of reasons which the learned Special Judge has reproduced in the judgment, that the Prosecution has wrongly alleged that the Accused were responsible for the non-receipt of the refunds. Even in those of the cases where they have brought witnesses forward to say that the refunds are not received, it was demonstrated by the defence in the course of the cross-examination that these very witnesses have admitted that the refunds were received by other persons on their behalf. What the learned Special Judge appears to have overlooked while convicting the Accused is the all important fact that as far as the refunds within Greater Bombay are concerned that it was open to the concerned persons to authorise an agent on their behalf to collect the refunds and that this has, in fact, happened, as has been demonstrated in evidence. The fact that some of the passengers themselves have not come to collect the refunds does not mean that the refunds were not received on their behalf. Secondly, as far as the refunds in respect of the places outside Bombay are concerned, the Railways had the practice of despatching the same by money order and the evidence in respect of the non-receipt of these amounts has not been demonstrated. Mr. Nakhwa has pointed out that certain specific names have been adduced as persons who according to the Prosecution have not received the refunds and the names of the passengers are Moya, Talwar, Kappor, Diwan and Ashok Kumar. These persons have not even been examined by the Prosecution and on the basis of secondary evidence, a finding has been recorded that the refunds have not been made to them. In this state of the record, this finding cannot, under any circumstances, be upheld and will have to be set aside. It is not possible to accept the submissions canvassed by Mr. Lambay, the learned Additional Public Prosecutor, who has tried to cover up for this lacuna by stating that if the record established a particular fact then the oral evidence was unnecessary. I have already pointed out as to how totally unreliable and unacceptable the documentary evidence is. In this view of the matter, there can be no question of falling back on a record of that type.
12. The main charge against the Accused was a charge of conspiracy. Unlike cases where it is alleged that the Accused acted in furtherance of common intention or where abatement is alleged, in the case of a criminal conspiracy, it is the prime necessity that the Prosecution establishes that there was a meeting of minds, that a preconceived plan was hatched to do illegal acts and that the Accused acted in furtherance of that plan. It is necessary for the Prosecution to demonstrate from tangible evidence the hatching of the conspiracy, the nature of the conspiracy and the acts done in furtherance of that conspiracy. In the present case, the Prosecution evidence with regard to all these three necessary ingredients is blissfully absent. The argument advanced before the Trial Court and the argument which was very strenuously canvassed by Mr. Lambay before this Court was that conspiracy will always have to be inferred from the facts and circumstances. This argument is faultless, but the difficulty in the present case is that both the facts and circumstances are non-existent. The learned Special Judge has virtually by-passed this important aspect of law in the judgment and has drifted to the conclusion that merely because different acts which formed part of the offence are attributed to different Accused, and all of whom were working in the same department, that one can safely come to the conclusion that they were acting in furtherance of a criminal conspiracy. If this reasoning were to be accepted, almost any employee in a department who performs one of a series of acts or a chain of transactions would become liable for a criminal conspiracy. The reasoning is unfortunately faulty and the conspiracy charge will, therefore, have to go.
13. While dealing with the conspiracy charge, Mr. Nakhwa made a serious grievance with regard to the approach adopted by the learned Special Judge. The learned Special Judge at page 585 of the paper Book has recorded that there were huge arrears of refund claims that had accumulated due to the Indo-Pak war in 1971 (though we are here concerned with the year 1973), that for some time there was no A.C.S. and there was nobody to sanction the claims; that there were floods in Surat and Baroda (though I do not understand how these calamities are relevant) in the year 1972 and there was a locomen strike in 1973 and a railwaymen strike in the year 1974; that there were about 15,000 claims to be dealt with by the end of the year 1973 and that there were 7,500 letters in connection with the claims. The learned Special Judge has also recorded that no additional staff was provided for clearing these arrears and that accused No. 2 along with accused No. 5 were asked to work overtime along with nine clerks and two Daftaries on honorarium basis, after office hours in the year 1973-74. In this state of general pressure and pandemonium, the learned Special Judge has exonerated accused No. 1 by stating that in a situation of the present type if anything had gone wrong, criminality cannot be attributed to that accused, but that the Court will have to accept it as an inevitable error. All that Mr. Nakhwa has requested from this Court is that the same standard of uniformity be applied when dealing with the cases of the remaining four accused who were similarly placed and who have faced the same pressure of work in the very same department. Mr. Nakhwa is right in submitting that the Court must adopt a uniform approach when dealing with the persons particularly when they are facing a conspiracy charge and there is a common offence attributed to all of them. In this view of the matter, having regard to these circumstances, the only conclusion and the correct one would be that even if certain things had gone wrong or certain errors had been committed that they were because of the situation prevailing of that time and not because of any dishonest intention or any criminal motive or act on the part of these appellants.
14. Before parting with this case, it is necessary for me to place on record my appreciation for the efforts put in by the two learned Counsel, Mr. Nakhwa and Mr. Lambay, both of whom have done an admirable job, in dealing with this voluminous record. Apart from the documentary evidence, this case did involve several intricate points of law and both the learned Counsel have very ably assisted this Court for which they deserve to be commended. For the special efforts and labour put in by the learned Additional Public Prosecutor, Mr. Lambay. I recommend that the State of Maharashtra should consider the payment of special fees to him quantified at the scale applicable to Special counsel for conducting cases before the High Court.
15. In the result, this appeal succeeds. The conviction and sentence imposed on this appellant by the learned Special Judge are set aside. the fine imposed on the appellant is directed to be refunded. The bail bond executed by the appellant is cancelled. The appeal is allowed accordingly.
16. Appeal allowed.