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Delhi District Court

State vs . Daya Kishan Gaur on 25 May, 2010

      IN THE COURT OF SH. RAKESH SIDDHARTHA,
     SPECIAL JUDGE (PC-ACT)-06, TIS HAZARI, DELHI

CC NO. 168/09
Case ID No. 02401R0013282000

STATE           Vs.      DAYA KISHAN GAUR
                         S/o. Sh. Ram Chandra Gaur,
                         R/o H-135, DDA Flats, Ashok Vihar,
                         Phase - I, New Delhi

                         FIR NO. :           26/98
                         U/S     :           7/13 POC ACT

                         Date of Institution  : 11.02.2000
                         Judgment reserved on : 24.05.2010
                         Judgment delivered on : 25.05.2010

JUDGMENT

1. On 20.07.1998, a complaint was lodged by Sardar Gurmeet Singh with Inspector P. S. Patwal, Raid Officer in the presence of Mahinder Pal Singh, panch witness against the accused Daya Kishan Gaur for demanding Rs.10,000/- as bribe for processing the election of Co-operative Society.

2. The complainant produced 20 GC notes in the denomination of Rs. 500/- each. The numbers of those GC notes were recorded by the Raid officer, after getting the same checked by panch witness. Phenolphthalein powder was applied and right hand of panch witness was got touched with the tainted GC notes and thereafter right hand wash of panch witness was taken in colorless solution of sodium carbonate which turned pink. The panch witness and complainant were apprised of the consequences CC No. 168/09 Page No.1/13 of touching the phenolphthalein powder coated GC notes, stating that whosoever would touch or keep the tainted GC notes in his pocket, the hand wash or pocket wash, if taken in colorless solution of sodium carbonate, would turn pink.

3. Thereafter, pink colour solution was thrown away. Raiding party washed their hands with soap and clean water. The Raid Officer handed over the treated GC notes to the complainant, in the presence of panch witness, who kept the same in the left pocket of his shirt.

4. The complainant was instructed to keep the panch witness in close proximity so that he would be able to hear and observe the transaction with the accused Daya Kishan Gaur and complainant was further instructed to give the bribe money to accused only on his specific demand. Panch witness was also instructed to raise his right hand over his head to give the signal to the raiding party, once the accused had accepted the bribe.

5. At about 11:50 am, complainant alongwith panch witness, RO Insp. P. S. Patwal, IO Insp. G. L. Mehta and other members of raiding party left AC Branch for Registrar Office, Parliament Street, in a Government vehicle and at about 12:40 pm, raiding team reached there. The Government vehicle was left near PS Parliament Street and IO Inspector G. L. Mehta remained in that vehicle alongwith the driver. Complainant and panch witness were again reminded about the instructions given to them earlier and were directed to proceed to the Registrar Office while the members of the raiding party followed them keeping a reasonable distance CC No. 168/09 Page No.2/13 and took their suitable positions.

6. At about 2:00 pm, panch witness gave predetermined signal to the raiding party, at which Raid Officer along with raiding team rushed to the office of Registrar and reached in room no. 19 where the complainant, panch witness and the accused Daya Kishan Gaur were present. Some persons were also sitting there. The complainant told the Raid Officer that the accused Daya Kishan Gaur had demanded and accepted Rs.10,000/- from him, as bribe.

7. Raid Officer Insp. P.S. Patwal disclosed his identity as an AC Branch official to the accused and challenged him that the accused had taken Rs.10,000/- from the complainant as bribe. The panch witness told the Raid Officer that the accused had accepted the bribe money with his right hand and kept the same in the right pocket of his pant. The Raid officer offered the accused to take search of the members of raiding party including himself (Raid Officer) before taking the search of accused but the accused declined to do so. Thereafter on the directions of the Raid officer, panch witness recovered the bribe money of Rs. 10,000/- from the right pocket of pant of the accused. The serial number of the recovered GC notes were tallied with the numbers recorded in pre raid report and the same were taken in possession vide seizure memo.

8. The right hand wash of accused Daya Kishan Gaur was taken in the colorless solution of sodium carbonate which turned pink. The same was transferred in two empty clean glass bottles CC No. 168/09 Page No.3/13 and sealed with the seal of PSP. Thereafter, the wash of right pocket of the pant of accused Daya Kishan Gaur was also taken in the colorless solution of sodium carbonate and the solution turned pink. The same was transferred in two empty clean glass bottles and sealed with the seal of PSP. Thereafter the said pant was converted into sealed pullanda with the seal of PSP.

9. Sealed bottles containing right hand wash, wash of right pocket of pant of accused alongwith sealed pullanda containing the same pant and sample seal were taken in possession vide seizure memo. The accused was arrested. Thereafter Raid Officer prepared post raid report.

10. At about 3:40 pm, IO Insp. G. L. Mehta was called to the spot and exhibits / case property as well as accused persons and copy of raid report and related documents were handed over to him for investigation.

11. The case was registered and charge-sheet filed. Charges were framed.

12. As per the charge, accused Daya Kishan Gaur, while being employed as an Assistant Registrar of Co-operative Societies and as such a public servant and while being posted as such at Parliament Street office of the Registrar of Co-operative Societies he demanded and accepted a sum of Rs. 10,000/- on 20.07.1998 in his office from one Gurmeet Singh as an illegal gratification as a motive or reward for showing favour to him in exercise of his official functions viz for getting conducted early elections in CC No. 168/09 Page No.4/13 respect of the Managing Committee of Hindustan Co-operative Housing Society Ltd. without de-freezing the waiting list of members, and thereby committed an offence punishable u/s 7 of the Prevention of Corruption Act, 1988.

13. Secondly, that the accused Daya Kishan Gaur on the abovesaid date, time and place accepted / obtained pecuniary advantage of Rs. 10,000/- from the aforesaid complainant Gurmeet Singh by corrupt or illegal means or by otherwise abusing his position as such public servant and thereby he committed an offence of criminal misconduct as specified u/s 13(1) (d) and punishable u/s 13(2) of the Prevention of Corruption Act, 1988.

14. Accused pleaded not guilty and claimed trial.

15. In order to prove its case, the prosecution examined 13 witnesses to substantiate the charge while the accused had examined 4 witnesses in his defence.

16. Before we delve into the complicity or culpability of the accused in the commission of offence, it is imperative to determine whether the requisite sanction u/s 19 of the POC Act had been sought and was accorded. For the purpose PW1 Sh. Umesh Sehgal was examined who has testified that on the relevant day i.e., 01.12.1999 the witness was Chief Secretary, Govt. of Delhi and he had received documents relating to the trap laid against accused Daya Kishan Gaur working as Assistant Registrar of Cooperative Society of Parliament Street, New Delhi. On the perusal of the record and after applying his mind and on being satisfied the CC No. 168/09 Page No.5/13 witness had accorded sanction to prosecute the accused Daya Kishan Gaur as providing u/s 19 of POC Act. The such sanction is Ex.PW1/A on which the signature of the witness had been appended at point A. The witness was cross-examined by the accused wherein the witness has admitted that the post of Assistant Registrar is in the cadre of DANIC. The witness had been challenged as to his authority as well as his competence to accord sanction. It is also suggested that the sanction had been accorded without due application of mind.

17. The grant of sanction is not an ideal formality but is a sacrosanct duty. Hon'ble Supreme Court in Ram Kishan Prajapati Vs. State of U.P., (2000) 10 SCC-43 has stressed that the person according sanction should be a competent person and a sanction accorded by the person, not competent to grant, cannot be held to be a valid sanction. This fact has not been challenged by the prosecution.

18. In regard to the sanction, the Hon'ble Supreme court has time and again stressed that it is incumbent on the prosecution to prove that a valid sanction had been accorded by the Sanctioning Authority after it was satisfied that a case for sanction had 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 the facts placed before the Sanctioning Authority and the satisfaction arrived at by it.

CC No. 168/09 Page No.6/13

19. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the court has to see is whether or not the Sanctioning Authority at the time of giving sanction was competent to accord sanction and whether it had applied its mind. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.

20. The Supreme Court further in (1997) 7 SCC 622, Mansukhlal Vithaldas Chauhan Vs. State of Gujarat has stressed on the ingredients that go into grant of sanction. Here is a case the court first has to determine that the person against whom sanction sought falls within the description of "public servant" as defined in the section 21 of the IPC. Once the person against whom the prosecution is to be launched is found to be covered by the definition of "public servant" and the requirement to that extent is satisfied, the next question whether he is to be prosecuted or not is considered by the authority, which was competent to remove that person from the office on the date on which the offence was committed. This rule is a departure from the normal rule under which the relevant date is the date of taking cognizance, as laid down by the Hon'ble Supreme Court in R.S. Nayak Vs. A.R. Antulay.

CC No. 168/09 Page No.7/13

21. In the Gokulchand Dwarkadas Morarka Vs. King it was pointed out that :

"The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government has an absolute discretion to grant or withhold its sanction. It is not concerned merely to see that the evidence disclose a prima facie case against the persons sought to be prosecuted. It can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds to regard a prosecution as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or adequately discharge the obligation of deciding to give or withhold a sanction without a knowledge of the facts of the case."

22. In Basdeo Agarawalla Vs. Emperor, it was pointed out that sanction, under the Act, is not intended to be, nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness.

23. The Hon'ble Supreme Court in State through Anti- Corruption Bureau, Govt. of Maharashtra Vs. Krishanchand Khushalchand Jagtiani while considering the provisions of sanction 6 of the Act held that one of the guiding principles for Sanctioning Authority would be the public interest and, therefore, the protection available under Section 6 cannot be said to be absolute.

CC No. 168/09 Page No.8/13

24. Sanction lifts the bar for prosecution. It is sacrosanct act which affords protection to government servants against frivolous prosecutions. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. The validity of the sanction would, therefore, depend upon the material placed before the Sanctioning Authority and the fact that all the relevant facts, material and evidence have been considered by the Sanctioning Authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the Sanctioning Authority had considered the evidence and other material, placed before it. This fact can also be established by the extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the Sanctioning Authority.

25. Since the validity of "sanction" depends on the application of mind by the Sanctioning Authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever was under an obligation or compulsion or constraint to CC No. 168/09 Page No.9/13 grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.

26. The Hon'ble Delhi High Court in the case of Bhisham Kumar Vs. State 1999 (iii) AD (Delhi) 177, has also applied the test as prescribed in the enunciation of the Hon'ble Supreme Court in the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh 1979 Chandigarh Criminal Cases 113 (SC) and view taken by the Supreme Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622 (supra).

27. The law regarding the sanction is strict in its requirement that is to say that there has to be a valid sanction before trial can commence. Where the sanction has been accorded by a person who was not competent to accord the said sanction the same has been held not to be a valid sanction or for that matter where sanction has been accorded without application of mind. The same has also been held not to be a valid sanction. The criteria laid down for the grant of sanction has to fall within the four corners of the requirement of the sanction and any deviation or any omission would vitiate the trial. A trial without a valid sanction where one is necessary has been held to be a trial without jurisdiction by the court as has been held in S.N. Bose Vs. State of Bihar (AIR 1968 Supreme Court) 1292, with the dictum that a trial without a valid sanction renders the proceedings ab initio void but the terminus a quo for a valid sanction is the trial when the court is held upon to take cognizance of the offence.

CC No. 168/09 Page No.10/13

28. Section 19(3) over shadow Section 19(1) as it determines the competence of sanctioning authority i.e. to say the primary consideration is miscarriage of justice and where it is so determined that the authority which had granted sanction was not competent to do so would definitely amounts to miscarriage of justice. Though the terminology used in this Section is that "The previous sanction shall denote a valid competent and lawful sanction. It does not imply a sanction issued by a person not competent to grant sanction on the relevant day i.e. the date of taking cognizance (P.A. Mohandass Vs. State of Kerala, 2004 SC 1176).

29. The requirement of existence of a sanction cannot be given a narrow interpretation namely that one cognizance is taken the sanction or its absence become irrelevance in a way this amount to invoking hypallage logic. If cognizance itself cannot be taken in the absence of sanction and impact strictly speaking if there did not exist any valid sanction it cannot be said that the cognizance of the offence was taken by itself and as such cannot cured the detach in this regard. Hence the prosecution of the accused shall stand vitiated. (Narsimachari Vs. State Inspector Police A.C. Branch Bureau, Qubdapah District, 2003 Criminal Law Journal 3315).

30. Granting of a sanction u/s 19 of Prevention of Corruption Act is not a mere formality, it is necessary that all the facts, on which the proposed prosecution is based must be put before the Sanctioning Authority and the burden of proving the same is squarely on the shoulder of the prosecution. If any material CC No. 168/09 Page No.11/13 facts which go to the root of the whole matter and investigation are not brought to the knowledge of the Sanctioning Authority it cannot be said that the Sanctioning Authority applied his mind before granting sanction for prosecution.

31. The bare reading of section 19 of the POC Act would indicate that it aims at preventing harassment and vexatious prosecution of a public servant. It assures that an honest public servant would not be in a position to oblige everyone and may have therefore incurred pleasure of many of them. This displeasure may even result in vexation and malicious prosecution for offence relating to discharge of his official duties. The legislation therefore thought of providing a reasonable protection to public servant in the discharge of his official duties so that they can continue performing their duties and obligations undeterred by vexation and unnecessary prosecution (Jaswant Singh Vs. State of Punjab, 1958 Supreme Court, AIR Page no. 124).

32. The grant of proper sanction by a competent authority is a sine quo non for taking cognizance of the offence. It is desirable that the question, as regards sanction, may be determined at an early stage. It is also not within the jurisdiction of this court to require sanction by the prosecution but it only prosecutes after the sanction has been accorded and in the absence of the same, it cannot call for one.

33. Accordingly, coming to the case in hand, a valid sanction cannot be said to be present in as much as the Sanctioning Authority had no jurisdiction or the competence to accord sanction CC No. 168/09 Page No.12/13 as has been observed that the accused was in the cadre of DANIC service and the appointing authority of the said service was the Lt. Governor as the National Capital Region is a Union Territory of which the Executive head is the Lt. Governor and as such the sanctioning authority cannot be of any less status than Lt. Governor. A sanction could have been accorded in the name of the Lt. Governor but it cannot be said that the Chief Secretary was competent to accord sanction to an official of DANIC service in his own right. The letter purporting to be sanction was issued with fore knowledge that the person so according sanction that he was not competent to accord sanction as on the relevant date he was not competent to appoint the said delinquent official. This has been admitted by PW1 Sh. Umesh Sehgal that the accused was of the cadre of DANIC service and as per the service conditions the appointing authority was the Lt. Governor. The notification of the appointment of accused in the said Cadre to the post of Assistant Registrar Co operative Society was by the Lt. Governor and hence the sanctioning authority cannot be of the status below it. As no valid and competent sanction manifests, the jurisdiction of this court is therefore ousted for the trial. Hence the entire proceedings are vitiated as there is no valid sanction. The accused is consequently discharged. His surety and bail bond also stand discharged. File be consigned to record room.

Announced in the open court on 25th May, 2010.

(RAKESH SIDDHARTHA) SPECIAL JUDGE (PC-ACT)-06 TIS HAZARI, DELHI CC No. 168/09 Page No.13/13 CC No. 104/09 State Vs. Daya Kishan Gaur 25.05.2010.

Present : Sh. Rakesh Kumar, Chief PP for the State Accused on bail with counsel Sh. R. S. Singhal.

Vide separate judgment passed, accused is discharged. His surety be also discharged.

File be consigned to Record Room.

(RAKESH SIDDHARTHA) SPECIAL JUDGE (PC-ACT)-06 TIS HAZARI, DELHI CC No. 168/09 Page No.14/13