Madras High Court
K. Sivanandam vs State, Rep. By The Inspector Of Police, ... on 26 October, 2006
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
JUDGMENT S. Ashok Kumar, J.
1. Aggrieved over the conviction under Section 7 of the Prevention of Corruption Act, to undergo 6 months imprisonment and to pay a fine of Rs. 500/=, in default to undergo 2 months imprisonment and under Section 13(2) red with Section 13(1)(d) of the Prevention of Corruption Act to under go one year imprisonment and to pay a fine of Rs. 1000/= in default to undergo three months imprisonment and both sentences to run concurrently, the sole accused has preferred this Criminal Appeal.
2. The brief facts of the case are as follows:
(a) The accused Sivanandam was working as a Junior Telecom Officer (JTO) in BSNL. P.W.2 who was earlier residing at Mariamman Kovil Street, Korattur, Madras-80, shifted his residence to No. 90/7, Samipillai Street, Choolai, Chennai-112. He wanted to shift his Telephone functioning at the previous residence to his new place of residence and therefore he gave an application Ex.P.3 on 27.5.1996 to shift his telephone. Since the telephone was not shifted till 5.7.1996 on 9.7.1996 P.W.1 and requested her to give connection to his telephone and in his presence she talked with some officers over phone and gave instructions. Even thereafter the telephone was not shifted. Therefore P.W.2 went to the Office and met one Narasimman who told that it the the accused Sivanandam is the concerned JTO and he asked him to meet him in the next morning. Accordingly on 16.7.1996 he went to the office and met the accused. The accused told him that it would cost Rs. 1500/= to shift the telephone to the new residence. But P.W.2 told him that he can give Rs. 500/=. On the same day the accused came with three other persons and gave telephone connection in his house and asked P.W.2s wife as to whether her husband (P.W.2) gave Rs. 500/=. Since she stated that P.W.2 did not give any money he asked to tell P.W.2 to come and see him in the office next day.
(b) On 18.7.1996, P.W.2 gave Ex.P.4 complaint before the CBI. P.W.5 Inspector of Police, CBI. P.W.5, Inspector of Police, CBI was called by the Superintendent of Police, CBI at 12.30 p.m., on the same day and introduced him P.W.2 The Superintendent of Police also handed over the complaint Ex.P.4 to P.W.5 and instructed him to take necessary action. P.W.5 verified the genuineness of the complaint and registered a case in R.C. No. 42(A)/96 against the accused Sivanandam at 1.30 pm., under Section 7 of the Prevention of Corruption Act. The FIR is Ex.P.13. After obtaining the willingness of P.W.2 for to cooperate with them in laying the trap on the accused he send P.w.2 to bring money. In the meantime, he arranged two independent witnesses namely Mr. Ananda Pillai, Assistant Enforcement Director, Enforcement Directorate, Shastri Bhawan, Madras and one Mr. V. Ramachandran, Clerk, Canara Bank, Teynampet Branch, Chennai. At 2.45 pm., P.W.2 came to the CBI Office. The independent witnesses were also present at that time. They assembled at 3.00 pm., in the room of P.W.5 and Mr. Ramasamy, DSP, Mr. Natarajan, Inspector, Mr. P.K. Nair, Inspector, Mr. Kasim, Head constable, Mr. Anbu Constable and Mr. Kabilan, Constable were also present. After demonstration, P.W.5 draw Ex.P.5 endorsement mahazar. He instructed P.W.2 not to touch the notes till demanded by the accused. He also directed P.W.3 Ramachndran to accompany P.W.2 to his residence and asked him to over hear the conversation and see that the transaction is taking place between the accused and P.W.2. he also directed him to come to come to the bedroom of the P.W.2, complainant and to inform the trap members regarding the acceptance of bribe money by the accused. P.W.5 also directed the other trap team members and other independent witness to be with him in the bed room o the complainant and to wait for the signal from P.W.3. The trap members carried suit case containing the sodium carbonate powder, stationery items, sealing wax, metal seal, candle, glass tumblers, etc., They left a bottle containing Phenolphthalein powder at the office itself. Already the complainant and P.W.3 left to the trap place and later the other trap team members left the office by 4.30 and reached the residence of the complainant by 5.30 pm., They took position in the bed room and waited for the pre arranged signal. At about 6.10 p.m., the accused came to the residence of the complainant and he asked him to sit and also asked whether he will take Coffee. Thereafter the Coffee offered by P.W.2 was taken by the accused. Then the accused gave him the new telephone number and then he demanded the bribe amount. P.W.2, complainant took out the currency notes from the pocket and counted them and handed over the notes to him. The accused received the currency notes with his right hand. The the complainant asked the accused whether he should pay any bribe to other persons also? For that the accused told him that he has to give, but this is separate account and that is another separate account. P.W.3 who was along with the complainant knocked the door of the bedroom and immediately the trap members opened the door and came out. The two constables who came out of the room catch hold of the wrist of the accused. P.W.3 showed his identity and asked the accused whether he received the bribe amount. The accused admitted to him the receipt of the bribe money.
(c) Then P.W.5 told him that he was under arrest and asked him to to keep the notes and diary in which it was kept in the stool and also asked him to raise his hands. Then P.W.5 directed Kasim, Head Constable to prepare a sodium carbonate solution in a clean glass tumbler using sodium carbonate powder and clean water. The solution was colourless. Then P.W.5 directed the accused to wash his right hand fingers by dipping in the said solution. He did so. Then the colour of the solution changed into pink colour. The said solution was preserved in a clean glass bottle and it was sealed and marked as A. Signatures of two independent witnesses were also obtained in the label of the bottle pasted on it for the purpose of identification. P.W.5 thereafter asked the Head Constable to prepare another sodium carbonate solution in another cleanglass in the above said manner. The solution was colourless. Even after dipping of the left hand fingers of the accused, the colour did not change. the said solution was collecte din a clear glass bottle and labelled, sealed and marked as B and signatures of the independent witnesses were also obtained. Then P.W.5 instructed the accused to hand over the bribe money kept in the stool to P.W.3, Ramachandran, the independent witness. The accused did so. Then P.W.3 and Ananda Pillai verified the number of notes and they found tallied with the numbers mentioned in the entrustment mahazar. They also found the denomination of hundred rupee notes tallied with the entrustment mahazar. Thereafter P.W.5 conducted a search in the house of the accused in the presence of the said independent witnesses and seized electricity bills, insurance policy, currency notes of Rs. 800/= a diary and a paper containing the telephone numbers and advice note numbers. The search list is Ex.P.8. All the seized items were produced before the court on 19.7.1996 and a requisition was given for sending the bottles containing the hand wash solution of the accused to Tamil Nadu Forensic Sciences Laboratory. The report received there from is Ex.P.16. P.W.6, took up further investigation, got sanction order from P.W.1 and examined the Forensic Laboratory witnesses and laid the final report against the accused for offences under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act.
(d) Before the Principal Special Court (for CBI Cases) at Madras, on behalf of the prosecution, P.Ws 1 to 6 were examined and Ex.1 to P.17 and M.Os 1 to 3 were marked. On behalf of the accused D.W.1 to D.W.4 were marked and Exs.D.1 to D.4 were marked.
(e) When the accused was questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances appearing in the evidence of the prosecution witnesses as against the accused, the accused denied the same as false. He also filed a written statement which reads as follows:
1) During 1995 when I was promoted to Group B services by Dept. of Telecommunication of New Delhi, I filed a case in CAT, Madras to render justices against improper transfers. So the administrative authorities of Chennai telephones got angry and for waiting to take revenge on me. They could not find any fault in my day to day work. In meantime the decoy approached them for shifting of his telephone from Korattur to Choolai.
2) When I met DGM (N/E) at her chamber on 11.7.1996 they asked me to a lot the cable pair for decoy's telephone to be shifted to his new address and also said suitable instruction were already given to Narashiman on 9.7.1996. During my discussion with Narashiman on 12.7.1996 I informed him about more than 100 lines were kept pending for want of cable pair and also at present I was busy in clearing the major cable fault. Narashman suggested me to clear all the pending lines in Swami Pillai St., where decoy's house located. The work was taken up along with the other work. The work was taken up and it was completed on 16.7.1996. The telephone No. 587790 was installed at decoy's house. When the cable serves Choolai area became faulty due to electric shock nearly 400 lines became faulty in choolai area. When the decoy contacted some officers, they instructed to register a complaint with ACB of CBI and also asked him to cooperate in trapping me in corruption case, otherwise this telephone will not work properly. ON a false complaint, I was asked to test the cable pair in DB box at Swami piillai street where the decoy's house located. When I was testing the lines the decoy came to me and requested to test the telephone at his residence. I went to his house along with him. It was done satisfactorily. He requested me to have a Coffee considering as his guest. I denied it because I am a diabetic patient. He compelled me to have a coffee and while I was taking coffee he asked me to hand over some money which he promised to pay the money who has done wiring. I refused it an when I started to move out he tried to thrust the money in my right hand in which I had my official diary. By puling my hand from him, he dropped the money on the stool kept before him. I rushed up to the exit.
When Saleem cam out along with his trap team, surrounded me. Two constables caught hold of my hands. Saleem, introduces himself and charged me that I was under arrest because of my demand of bribe. I got shocked and denied the charge but it was unheard. They brought me near the chair where I was sitting. He asked me to keep the diary which was in my right hand on the stool and to take the money which was lying on the stool. Hence, I handed over it to them. He directed me to raise my hands. The constables were asked to prepare the solution and the solution test was taken on my both hands then they prepared the magazar. I was under giddiness. I was not able to resist much physically and mentally. My denial of charges was not recorded in mahazar. After trap is over they took me to my house along with my cycle.
They searched my house and recovered electricity bills, insurance's policy for investigation purposes. When they left my house, I was taken to local clinic for treatment as I feared that I was food poisoned by the decoy's coffee. Later I took treatment under CGHS Hospital. Later I came to know the decoy has informed Narashiman over phone about my trap, which was done successfully. Till 26.7.1996 his telephone was not put through as they promised. Again he made complaint to CBI. On instruction from CBI, Narashiman sent jumper sheet to exchange and the line was put through.
I submit that neither I demanded bribe nor accepted the same."
(f) On a consideration of the oral and documentary evidence adduced on behalf of both sides, the learned Principal Special Judge, (CBI cases) Chennai came to the conclusion that the accused has committed the offence punishable under Section 7 and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act and inflicted the punishments as mentioned earlier. Aggrieved over the said conviction and sentence, the accused has preferred this appeal.
3. Mr. Somasundaram, learned Counsel appearing for the appellant/accused strenuously challenged the conviction of the accused on the following facts: (i) The sanction order Ex.P.1 is invalid, since the same was not given by an authority who has he power to remove the accused from office and also on the fact that the authority being herself stood as a witness for the prosecution. (ii) The trap was not successful as expected by P.W.5 and that is why both the hands of the accused were caught by the Police constables so that the Phenolphthalein powder can be soiled in the hands of the accused. (iii) The report of the Forensic Laboratory falsifies the version of the prosecution with regard to the presence of the Phenolphthalein Powder in the hands of the accused.
4. Per contra, Mr. N. Chandransekaran, learned Special Public Prosecutor for CBI would contend that even a defective sanction could not be a ground for rejection of the prosecution case under the Prevention of Corruption Act.
5. With regard to the first contention that the sanction is defective, under Section 19 of the Prevention of Corruption Act to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction by the concerned Government either State or Central, the sanction by an authority shall have the competency to remove him from service.
6. In this case, P.W.1, Mrs. Kalavathy has granted Ex.P.1 sanction to prosecute the accused. As regards the power or authority to appoint as well as dismiss the accused, the same is strongly disputed by the accused. According to the accused he was promoted to the Group B Telecom Engineering Service and was posted at Mumbai, but he wanted posting at Madras and was awaiting for transfer to Madras. When P.W.1 was confronted with this fact she has stated that she did not know the representation made by the accused when he was promoted to Group B service. When Ex.D.1 proceedings dated 13.9.1996 was shown to her, she admitted the posting of the accused at Mumbai on promotion as Sub Divisional Engineer. According to the accused it is only the Member, Telecommunications Commission, is the competent authority to remove a person who is employed in the Group of B. This is fortified as seen from the Serial No. 9 of Part-II of Group B services of the Schedule to Central Civil Services Rules.
7. In this respect, P.W.4, Commercial Officer working in the Telephones Department in his cross examination has admitted as follows:
Accused Sivanandam got promotion as Group-B Officer in the Telecom Engineering Service in December 1994. Sivandndam and 49 others filed Original Petition before the Central Administrative Tribunal, Chennai, challenging the date of posting. That application was dismissed by the Tribunal. I am not aware of Dharna conducted by Sivandndam and others before the A.E. Office. I am not aware of the Dharna conducted before the CGM office at Purssawalkkam. I am aware Sivanandam was the member of JTEA Engineers Telecom Office. I am not aware of the displeasure of superior officers due to the Union activities of Sivanandam.
8. From the evidence of P.W.4, it is clear that even in December 1994, the accused was promoted as Group B Officer in the same Department. But the accused and 49 others filed the Original Petition before the Central Administrative Tribunal, challenging the date of posting and therefore he did not joint in the place of posting at Mumbai. However, it is the undisputed fact that at the time of occurrence, i.e., on 16.7.1996 the date on which the alleged demand was made and on 18.7.1996, the date of alleged trap, the accused was already promoted as Sub Divisional Officer which is in Group B services. Thus only the Member of the Telecommunications Commission has the competency to remove a Group B officer from Telecommunication Engineering Service. But as far as P.W.1 who gave the sanction order Ex.P.1, she was only a Deputy General Manager of Telephones Department. It is so unfortunate that a perusal of the sanction order given by her would show that there is no date.
9. Another important aspect is that P.W.1 herself was a prosecution witness against the accused in this case. She was earlier examined by P.W.6 on 14.8.1996 and her statement under Section 161 Cr.P.C., was recorded. She was also cited as a witness retarding the transaction that took place in the office of the Telephones Department regarding the instructions to shift the telephone from the earlier residence of P.W.2 to the present residence. P.W.1 also admitted that before granting sanction she has not received a copy of the Forensic Sciences Laboratory report. In Ex.P.1 sanction order itself she has stated that she has perused copies of statement of witnesses like P.w.2, 3 and others and her own statement, which would show that she was already a witness in the case against the accused regarding the transactions that took place in the office of the Telephones Department. Her statement was recorded under Section 161 Cr.P.C., by P.W.6. But, unfortunately she herself was also the sanctioning authority. There are several other officers in the same cadre as Deputy General Manager (Administration), Deputy General Manager (Commercial) etc, Even assuming that the accused was only a JTO, any other officer of her rank could have granted the sanction order. But P.W.1 herself being a witness to the case was also the sanctioning authority. Her own admission that she has not received the report sent by the Forensic Sciences Laboratory would clearly show that she has not applied her mind properly with regard to the papers submitted by CBI, because there is a lot of contradictions between the report of the Forensic Sciences Laboratory and the versions of the prosecution which will be dealt with in the later part of this judgment. This would only shows that she has simply signed the sanction order mechanically without application of mind.
10. A finding, sentence or order passed by the Special Judge shall not be reversed or altered by a Court of Appeal on the ground of absence of, or any error, omission or irregularity in the sanction order required under Sub-section (1) of Section 19, unless in the opinion of that court a failure of justice has in fact been occasioned thereby. As per Section 19(4) of the Prevention of Corruption Act, any error, omission or irregularity in sanction.
11. Sub-section (4) of Section 19 of the Prevention of Corruption Act reads as follows:
(4) In determining under Sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation-- For the purposes of this Section,--
(a) error includes competency of the authority to grant sanction;
xxx xxx xxx xxx
12. Relying upon Sub sections (3) and (4) of Section 19 of the Act, Mr. N.Chandrasekaran, learned Special Public Prosecutor would contend that an error or irregularity in the order of sanction should not be a ground to reverse or alter a judgment of the trial court unless failure of justice has occasioned thereby, of course the explanation (a) to Sub-section (4) includes an error in competency of the authority to grant such sanction. Even if the competency of P.W.1 regarding sanction to prosecute the accused is conceded, the failure of justice occasioned due to the irregular sanction cannot be denied. This is a case in which P.W.1, sanctioning authority herself was a witness whose statement was recorded under Section 161 Cr.P.C., by P.W.6. In Ex.P.1 sanction order itself she has stated that she ha perused he statement of witnesses, including her own. If that is so, it would amount to sitting on appeal against one's own judgment. Being herself as a witness, P.W.1 could not have been a sanctioning authority and therefore it naturally occasions failure of justice. Therefore even though Ex.P.1 sanction order need not be held against the prosecution as contemplated under Sub-section (4)(a) of Section 19 of the Prevention of Corruption Act, in the opinion of the Court a failure of justice has in fact been occasioned because of the irregularity of the sanction given by P.W.1. Therefore on this ground, the benefit must go to the accused.
13. In this respect it would be useful to refer to the decision in State of Goa v. Babu Thomas reported in 2005 (6) Supreme Today page 547, wherein their Lordships of the Hon'ble Supreme Court held as follows:
12. As already noticed, the sanction order is not a mere irregularity, error or omission. The first sanction order dated 2.1.1995 was issued by an authority that was not a competent authority to have issued such order under the Rules. The second sanction order dated 7.9.1997 was also issued by an authority, which was not competent to issue the same under the relevant rules, apart from the fact that the same was issued retrospectively w.e.f. 14.9.1994, which is bad. The congnizance was taken by the Special Judge on 29.5.195. Therefore, when the Special Judge took cognizance on 29.5.1995, there was no sanction order under the law authorising him to take cognizance. This is a fundamental error which invalidates the cognizance as without jurisdiction.
14. From the above decision, it is clear that granting of sanction to prosecute the Government Servants cannot be said to be a mere formality and it must be a conscious act of the sanctioning authority. In this case the sanctioning authority has given sanction without seeing the Report of the Forensic Science Laboratory. If the said report has been taken note of, the major contradiction in the report and the evidence of the prosecution witnesses could have been considered and any officer would have hesitated to grant sanction.
15. According to P.Ws 3 and 5 even before the Sodium Carbonate Solution test as to the presence of phenolphthalein powder was conducted, both the hands of the accused were caught hold of by the Police and the accused was arrested only subsequently after conducting such test. Even for arrest, under Section 46 of the Code of Criminal Procedure, the hands need not be caught hold of. If the Police wanted to arrest the accused, it is enough if they simply inform the arrest or symbolically touch the body of the accused. Section 46 of the Code of Criminal Procedure deals as to how arrest should be made. It reads as follows:
46. ARREST HOW MADE:-- (1) In making an arrest the Police Officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such Police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
16. Section 46 Cr.P.C., does not say that the Police who arrest the accused must catch hold of the hands of the accused. It is enough if they simply touch the body and inform the arrest. Therefore, at this juncture it is not clear what is the necessity for the police officers to catch hold of both the hands of the accused even before conducting the Sodium Carbonate Solution test. Neither there is legal necessity nor any reason to catch hold both the hands of the accused. The only reason for catching hold of the hands of the accused must be to soil the hands of the accused with phenolphthalein powder.
17. Furthermore, according to the prosecution, when the right hand fingers of the accused were dipped in the Sodium Carbonate Solution, the solution turned pink and the bottle was marked as "A" and when the left hand fingers were dipped in the solution in the another glass tumbler, there was no change in the colour of the solution. The said bottle was marked as "B". When both the bottles were sent to Forensic Science Laboratory at the requisition of the prosecution, it is the result of the Forensic Science Laboratory under Ex.P.16 that the bottle labelled as "A" contained a pale pink turbid liquid and the bottle marked as "B" also contained a very pale pink turbid liquid and the result was that both the bottles tested positive for phenolphthalein powder and Sodium Carbonate was detected in both the items. According to P.Ws 2, 3 and 5 the accused received the money only with his right hand and did not touch the money with the left hand. Therefore, when his left hand fingers were tested with the sodium carbonate solution, it did not turn pink. Therefore the bottle labelled as "B" was containing the colourless liquid. But, what was received in the Forensic Science Laboratory was a pale pink coloured liquid which tested positive for phenolphthalein powder. Therefore it shows a great doubt whether the bottles seized and labelled at the time of occurrence were actually sent to the Forensic Science Laboratory or some other bottles were sent. The court has to believe only one version either the version of the prosecution witnesses or the scientific report. A scientific proof does not give falsehood, whereas the witnesses can utter falsehood. If the scientific version is believed, then both the hands of the accused should have been soiled with phenolphthalein powder and tested positive when the test was conducted at the time of sodium carbonate solution test. But the evidence of the prosecution witnesses is not so. Therefore, this would show that the prosecution witnesses have not come forward with truth.
18. The occurrence has taken place in the house P.W.2, complainant where the trap was laid. The reason for the the accused to be present in the house of P.W.2, is that he received a call from someone asking to come to the house of the complainant to attend to some repair and that is why he went there. The above fact is also spoken to by D.W.1 an employee of the Chennai Telephones. If the work was already completed, it is unbelievable that the accused would have demanded the money after completion of the work.
19. In Ram Samugh Mourya v. State of M.P. reported in 2002 (II) Current Criminal Reports 169, the Madhya Pradesh High Court held as follows:
17. In the present case, the purpose for which the money was demanded as illegal gratification by the appellant, was already served much prior to the alleged demand of Rs. 100/= to the appellant for releasing the complainant and his son Mohan. Complainant Rajaram was also given notice for appearance before the Court for filing the charge sheet, in the circumstances, it would be difficult to believe that the appellant was demanding money for the work which had already been done. If the money was not paid by the complainant, after his release on surety Deokaran (PW5), was never called and asked for the payment of money because as per the proosecution case, on his assurance, complainant Rajaram and his son were released on bail. This fact is also tilting belance of innocence in favour of the appellant.
18. For the foregoing reasons and legal and factual position as discussed above, the appellant is entitled to get the benefit of doubt. Accordingly, the judgment and order of conviction passed by the Trial Court is, hereby set aside. The appellant is on bail. His bail bonds stand cancelled.
20. According to the prosecution, P.W.2 has deposed that only before trap the accused gave him the telephone number of the telephone installed in his house. But a perusal of the record would show that the telephone number of the complainant is mentioned in his complaint itself. If it is so, the complaint and the FIR might have been prepared much later and have been actually ante timed.
21. Since the sanction to prosecute the accused is not according to law and evidence regarding the trap is unbelievable, the accused is entitled to be acquitted. In the result, the Criminal Appeal is allowed. The accused is acquitted of the charges. Consequently, bail bond if any executed by the accused shall stand cancelled. Fine, if paid, shall be refunded.