Jharkhand High Court
(Against The Judgment Of Conviction And ... vs The State Of Jharkhand Through C.B.I. ... on 6 July, 2020
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr.App(SJ)1766 of 2003
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.1766 of 2003
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(Against the Judgment of conviction and Order of Sentence dated 20.11.2003 passed by learned 4th Additional Sessions Judge-Cum-Special Judge, C.B.I., Dhanbad in R.C. Case No.26A/94 D)
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Md. Wakil son of Late Gulab Hussain, residing at Quarter no.85/H, New Station Railway Colony, Dhanbad, P.O. and P.S. Dhanbad, District Dhanbad .... .... .... Appellant Versus The State of Jharkhand through C.B.I. (Central Bureau of Investigation) .... .... .... Respondent
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For the Appellant : Mr. A. K. Kashyap, Sr. Advocate
For the C.B.I. : Mr. Rohit Sinha, J.C. to A.S.G.I.
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PRESENT
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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
C.A.V. ON 29.05.2020 PRONOUNCED ON 06.07.2020
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Anil Kumar Choudhary, J. Heard the parties through video conferencing.
2. The appellant has preferred this appeal being aggrieved by the Judgment of conviction and Order of Sentence dated 20.11.2003 passed by learned 4th Additional Sessions Judge-Cum-Special Judge, C.B.I., Dhanbad in R.C. Case No.26A/94 D whereby and where under the learned court below has held the accused-appellant guilty of having committed offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs.500/- and in default to undergo simple imprisonment of six months and further sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/- for the offence punishable under Section 13 (2) of the Prevention of Corruption Act, 1988 and in default to undergo simple imprisonment of six months.
3. The case of the prosecution in brief is that the complainant Basudev Yadav was working as a substitute porter at Garhwa Railway Station and 1 Cr.App(SJ)1766 of 2003 whenever any permanent porter goes on leave, the complainant used to work in his place and accordingly, he used to receive his salary. The accused-appellant was working there as a head clerk in pay bill section and was preparing the salary of the complainant. It is alleged that the accused-appellant used to demand illegal money, some days prior to making the complaint and upon the complainant not paying the money; he used to reduce the number of days for which the complainant worked. On 26.09.1994 when the complainant approached the accused-appellant, the accused-appellant demanded Rs.500/- from him and told that if the complainant does not pay him the money, in future he will continue to prepare his salary bill at a reduced rate. As the complainant did not want to give money, he filed the complaint addressed to the S.P., C.B.I. Dhanbad. The inspector of C.B.I. Dhanbad Sri A. K. Jha verified the facts of the complaint and submitted his report; on the same day i.e. on 26.09.1994. In course of verification, the inspector of C.B.I. accompanied the complainant to the D.R.M. Office, Dhanbad where the complainant approached the accused-appellant who was the dealing clerk of the pay bill section attached to the senior D.P.O. Dhanbad and requested for not deducting his salary. The accused-appellant demanded Rs.500/- for doing this favour. The said inspector of C.B.I. verified the identification of the accused-appellant from which it was found that the accused-appellant was the head clerk of the pay bill section dealing with transportation staffs of Garhwa Railway Station. It is also the case of the prosecution that the accused-appellant prepared the bill of the complainant up to April 1994 on the basis of attendance register which was forwarded by the Station Master and prepared less salary bill of the complainant; for the month of May 1994. Pre-trap formalities were prepared for apprehending the accused-appellant red handed while receiving the bribe amount and the team was prepared including independent witnesses. On 27.09.1994 at 10:00 A.M., the members of the team assembled along with two independent witnesses and were introduced to each other and the contents of the complaint was read over to all the assembled persons and phenolphthalein powder was applied on one paper and the witness Bal 2 Cr.App(SJ)1766 of 2003 Kishun Sharma was told to touch the said paper and the palm of the said witness was immersed in Sodium Carbonate solution, after which the colour of the solution Sodium Carbonate changed to Pink. The complainant had brought Rs.500/- consisting of five notes each of Rs.100/- and phenolphthalein powder was applied to each of the said notes. The said notes were handed over to the complainant with the instruction that he will hand over the same to the accused-appellant only if the accused-appellant demands the amount. A preliminary memorandum was prepared and all the members of the trap team along with independent witnesses as well as the complainant reached the office of the D.R.M. of Eastern Railways. The complainant Basudev Yadav and the shadow witness Om Prakash Sharma went to the office of the accused- appellant. The accused-appellant stopped his work on seeing the complainant and told the complainant to wait outside. The complainant and the shadow witness Om Prakash Sharma waited at the corridor. After sometime, the accused-appellant came out from the hall and met the complainant. The accused-appellant asked the complainant as to whether he has brought the money after which the complainant told the accused- appellant that as the accused-appellant demanded Rs.500/-, hence, with much difficulty, he has arranged the same. At this the accused-appellant told the complainant to hand over the same quickly as there was too much rush in the office on that day. Thereafter the complainant asked the accused-appellant as to what will happen to his work. On this the accused-appellant told the complainant to go back and from that day onwards salary for 31 days will be made in respect of the complainant. Thereafter, the complainant with his right hand brought out Rs.500/- kept in the top pocket of his shirt and handed over the same to the accused- appellant. The accused-appellant received the said notes in his right hand and counted the same using both of his hands and kept the said money in his right hand.
4. It is the case of the prosecution that this occurrence was seen by the shadow witness and the shadow witness also heard the conversation between the complainant and the accused-appellant. After the accused-
3Cr.App(SJ)1766 of 2003 appellant received the illegal gratification amount, the complainant gave signal at which the members of raiding party along with independent witnesses rushed there and Sri N.M.P. Sinha, Inspector; C.B.I. challenged the accused-appellant regarding the demand and acceptance of Rs.500/- by the accused-appellant. At this, the accused-appellant became nervous and confessed his guilt. It is also the case of the prosecution that the left and right hands of the accused-appellant were caught hold of by the Inspector- T. J. Ghosh and A. K. Jha respectively and witness Bal Kishun Sharma seized the said Rs.500/- from the hands of the accused-appellant. The numbers of the currency notes were same as mentioned in the preliminary memorandum. The recovered Rs.500/- was kept in an envelope and it was sealed. All the members of the trap team signed over the envelope. Thereafter, the accused-appellant was taken to the Chamber of Senior D.P.O.- Sri H.P. Singh and independent witnesses Bal Kishun Sharma, Om Prakash Sharma as well as the officers of the C.B.I. were present in the chamber of H.P. Singh. Both the hands of the accused- appellant were put inside Sodium Carbonate solution. The milky white colour of the said Sodium Carbonate solution turned pink. The solution was kept in two different bottles and was sealed. All the persons signed over the seal. Sri H.P. Singh, the independent witnesses, the complainant and the members of the C.B.I. team also signed over the same. The recovery memorandum was prepared mentioning the details about the recovered articles and all the members of the raiding party, both the independent witnesses and Sri H.P. Singh signed the recovery memorandum. A copy of the recovery memorandum was handed over to the accused-appellant. The solution in which the hand of the accused- appellant was washed and upon the same, the colour of which turned pink; was sent for chemical examination to Central Forensic Science Laboratory and report was received from the expert of Central Forensic Science Laboratory that Sodium Carbonate and sodium phenolphthalein were present in those bottles.
5. After completion of the investigation, charge-sheet was submitted upon obtaining the sanction for prosecution from the competent officer 4 Cr.App(SJ)1766 of 2003 and separate charges for the offences punishable under Section 7 and Section 13 (1) (d) of the Prevention of Corruption Act were framed against the accused-appellant to which he pleaded not guilty and claimed to be tried. In support of its case, the prosecution altogether examined ten witnesses, while two witnesses were examined by the defence.
6. P.W.9- Basudev Yadav is the complainant himself. He has stated that he was working in Garhwa Town Railway Station in the year 1994 as a substitute porter. The accused-appellant used to deal with the payment of his bills from Dhanbad Division. On 26.09.1994 the P.W.9 had gone to the D.R.M. Office and enquired from the accused-appellant as to why the accused-appellant has not prepared his payment for the entire period for the duty of the complainant as substitute; upon which the accused- appellant told that he wants Rs.500/- and only upon such payment the full bill of the complainant will be prepared. The complainant did not have the money. Hence, he told the accused-appellant that he will arrange the money and will give it to him and then the complainant went to the office of C.B.I. at Koyla Bhawan and met the inspector of C.B.I.- Sri A. K. Jha (P.W.4) and narrated his grievance to the P.W.4. The complainant identified his signature on the said complaint; which was marked Ext.2/69. The P.W.9 again stated that after submission of his complaint in the C.B.I. office, the P.W.2 and P.W.9 went to the D.R.M. Office. On 26.09.1994 in the office of DRM, the P.W.9 asked the accused-appellant as to why his full bill is not being prepared though he performs his duty, upon which the accused-appellant replied that such preparation of bill will be made until Rs.500/- is paid to him and upon payment of the said amount; bill for full payment will be prepared. The P.W.9 told the accused-appellant that he will arrange the money and from there the P.W.9 went to his home. On 27.09.1994 he again reached the C.B.I. Office with the money. By then 12 other persons were assembled at C.B.I. Office for going to the office of D.R.M. The numbers of the currency notes were noted down. Before that powder was applied on them. The P.W.9 also identified his signatures put in the C.B.I. Office which were marked Ext. 2/70 to 2/73. The P.W.9 along with the P.W.2 went near the accused-
5Cr.App(SJ)1766 of 2003 appellant. The accused-appellant told that there is heavy rush and to wait. The P.W.9 waited for 10-15 minutes at the door and then the accused- appellant called him and took him near his chair. The P.W.2 also went there along with P.W9. The accused-appellant enquired as to whether the complainant has brought the money. The P.W.9 stated that he has brought money but what will happen to him. The accused-appellant stated that alright, after payment of money by the complainant, full payment of 31 days will be made. Thereafter the P.W.9 paid the money. The accused- appellant counted the money using both his hands. The P.W.9 signaled by scratching his head and on receiving the signal all the officers of C.B.I. reached and enquired from the accused-appellant as to whether he has taken Rs.500/- and the accused-appellant admitted that he has taken the said money. Thereafter the C.B.I. officers enquired from the P.W.2 as to where the money was and the P.W.2 stated that the accused-appellant has kept the money in his hand. Bal Kishun Sharma recovered the money from the hand of the accused-appellant. The numbers of the currency notes were tallied and then the currency notes were kept in an envelope and sealed. The P.W.9 identified the currency notes which were marked material object III to III/4. The C.B.I. officers took the accused-appellant into the chamber of Senior D.P.O. and informed the Senior D.P.O. about the accused-appellant having been trapped red-handed while taking bribe of Rs.500/- from the complainant. Both the hands of the accused-appellant were immersed in two glass tumblers having water and the colour of water turned pink. The water from glass tumblers was poured in two bottles. The bottles were sealed with cloth and packed. The P.W.9 identified the two bottles which were marked material object I/1 and I/2. The water which P.W.9 referred was in fact, a solution. In his cross- examination, the P.W.9 stated in para-15 that on being promoted, a substitute porter becomes a porter and he has been promoted. Upon promotion he was posted at Bhawnathpur. His attendance used to be prepared at Garhwa Town. He was not getting money for C.L. and C.R. The bill for C.L. and C.R. are given to a permanent porter. About 100-200 tables and chairs are there in the hall. The persons standing in the corridor 6 Cr.App(SJ)1766 of 2003 cannot see inside the hall. The accused-appellant did not keep the money in his shirt or pant and he was apprehended by the team while holding the money in his hand. None of the person present in the hall became a witness. In May 1994, the attendance for 30 days of the P.W.9 was prepared but bill for 8 days was prepared as 22 days' C.L. was shown which was erroneous. Though the P.W.9 was an eye witness and has categorically as well as in detail has stated about the demand, acceptance and recovery of the bribe amount, as already stated above, yet there is absolutely no cross examination of him on any material part of his testimony regarding demand, acceptance and recovery of the bribe amount by the appellant-accused.
7. P.W.2- Om Prakash Sharma is the shadow witness of the case. He has stated about the pre-trap memorandum prepared on 27.09.1994. He has further stated that the P.W.9 brought Rs.500/-. Powder was applied upon the same. Thereafter, the currency notes were returned to the P.W.9 to be handed over to the accused-appellant. He has stated about the preparation of pre-trap memorandum and the procedures of the same. Upon reaching the D.R.M. Office, Railway, Dhanbad they saw that the accused-appellant was in his office and working on his table. First the P.W.9 went to the accused-appellant. The P.W.2 and Bal Kishun Sharma followed the P.W.9. When the P.W.9 reached near the accused-appellant, the accused-appellant asked whether the P.W.9 has brought the money. The P.W.9 answered that he has brought the money. Thereafter the accused-appellant instructed the P.W.9 to go outside and wait at which the complainant went outside and stopped at the corridor of the main entrance. The P.W.2 and Bal Kishun Sharma were near the accused- appellant. About half an hour after that, the accused-appellant came out from his office to the corridor and demanded money from the P.W.9 upon which the P.W.9 handed over the money to the accused-appellant and enquired as to what will happen to the work of P.W.9. The accused- appellant took the money by his right hand and counted by using both his hands. At this, a signal was given and the C.B.I. personnel arrived and caught hold of the wrist of both the hands of the accused-appellant. After 7 Cr.App(SJ)1766 of 2003 counting, the accused-appellant kept the money in his right hand. The C.B.I. officers challenged him by saying that he has taken bribe. The accused-appellant became nervous. Thereafter, the accused-appellant was taken to the chamber of D.P.O. There, Bal Kishun Sharma was told to recover the money from the hand of the accused-appellant which was recovered by Bal Kishun Sharma. Thereafter the numbers of general currency notes were tallied with the number which was earlier recorded by the C.B.I. Officer and the numbers tallied. Thereafter, they recovered general currency notes and kept in the sealed envelope on which the P.W.2 also signed. Solution was prepared in two glass tumblers. In one of the glass, the left hand and in the other glass, the right hand of the accused-appellant was immersed and the colour of the solution in both the glass tumblers turned pink. The solution thereafter was kept in separate bottles and were sealed upon which the P.W.2 also put his signature. The P.W.2 identified both the bottles which were marked Ext. I/1 and I/2 respectively. He also identified his signature on the bottles. The envelope in which the currency notes were kept on being proved by the P.W.2 was marked material Ext. II/1 which was opened in court in presence of P.W.2 from which Rs.500/- consisting five notes of Rs.100/- denomination were found. He also identified the currency notes which were marked material Ext. III to III/4. The numbers of currency notes were same as mentioned in the pre trap memorandum. The accused- appellant was identified by the P.W.2 in court. In his cross-examination, P.W.2 stated that the accused-appellant kept the currency notes after counting the same in his pocket, where after he was apprehended. The C.B.I. officers who caught hold of the accused-appellant knew that the currency notes were in his pocket but they did not bring out the money from his pocket. There was no rush near the accused-appellant or nearby the tables of the accused-appellant on the date of occurrence. In para-17, he has stated that the accused-appellant himself brought out the money from his pocket and handed it over to B.K. Sharma. It is pertinent to mention here that the testimony of the P.W. 2 remained unchallenged regarding demand and acceptance of the illegal gratification as he has not 8 Cr.App(SJ)1766 of 2003 been cross examined in this respect. P.W.2 was recalled on behalf of the prosecution for further examination-in-chief wherein he deposed that he stated before the C.B.I. officers that the appellant accused received Rs.500/- in his right hand and counted the same using both of his hands and kept the same in his right hand.
8. P.W.3-Bal Kishun Sharma is another independent witness. He has stated in detail about his going to C.B.I. Office on 27.09.1994 and pre-trap preparations were made in the C.B.I. Office. He reached the D.R.M. office with the raiding party. The accused-appellant was in his office. After sometime, the accused-appellant came out from his office and the P.W.9 went to meet him. The P.W.2 was following the P.W.9. The accused- appellant enquired from the P.W.9 as to whether he has brought the money. P.W.9 answered in affirmative having brought the money. The accused-appellant demanded the money and the P.W.9 gave him the money. The accused-appellant received the said money in his right hand and counted the same by using both his hands. At this, the P.W.2 and P.W.9 signaled; upon which the other persons reached there and caught hold of the wrist of both hands of the accused-appellant and challenged the accused-appellant that he has taken the money, upon which the accused-appellant admitted that he has taken money and his face became pale and he became nervous. P.W.3 took money from the hands of the accused-appellant. It was in total Rs.500/-. The numbers of currency notes tallied with the number of currency notes listed earlier. The currency notes were kept in an envelope and were sealed. P.W.3 also signed over the same. He has also stated about the hands of the accused-appellant being immersed in two glass tumblers containing solution and the colour of the solution turning into pink. In his cross-examination, he has stated that he heard the conversation between the P.W.9 and the accused- appellant on the date of occurrence. The conversation took place in his presence. The P.W.2 was near them at that time. The conversation between the accused-appellant and the P.W.9 took place at the place where the accused-appellant was working. Nothing has been elicited in the cross examination of the P.W. 3 to discard or discredit his testimony.
9Cr.App(SJ)1766 of 2003 Moreover, there is no cross examination of the P.W.3 in respect of his evidence regarding demand and acceptance of the illegal gratification.
9. P.W.4- Ajay Kumar Jha is the officer of C.B.I. who verified the complaint. He has stated about the verification work being entrusted to him. The P.W.4 further stated that he did the verification in the D.R.M. Office, Dhanbad on 26.09.1994 and submitted his verification report in the evening on that day. On being proved by him, the verification report was marked Ext.3. He also stated about the pre-trap preparation being made and observation of the required procedure on 27.09.1994. The P.W.9 had brought Rs.500/- and phenolphthalein powder was applied on the same and then the same was given to the P.W.9 with the instruction that only upon being demanded, the P.W.9 will hand over the same to the accused- appellant; otherwise not. The P.W.4 prepared a preliminary memorandum regarding the entire proceeding. The P.W.4 also went to the D.R.M. Office, Dhanbad and the P.W.1 was sent to meet the accused-appellant. The members of the raiding team took their respective position. The accused- appellant was working sitting in his office on his chair. On seeing the P.W.1, the accused-appellant came near him and talked with him. Thereafter, the P.W.9 brought out Rs.500/- kept in his pocket and handed over to the accused-appellant which was taken by the accused-appellant and counted and thereafter, the accused-appellant kept the same in the pocket of his full pant. At that time, the P.W.4 and others went running to the spot. In the meanwhile, the accused-appellant took out the money from the pocket of his full pant and again the accused-appellant was keeping said money in his hand. The P.W.4 and inspector T.J. Ghosh respectively caught hold of one wrist each of the accused-appellant. Sri N.M.P. Sinha- P.W.10 challenged the accused-appellant; at which the accused-appellant became nervous and did not reply. On being enquired, the accused-appellant did not give any statement in his defence. The P.W.3 recovered the said money from the accused-appellant. The same tallied with the number of the currency notes mentioned in the memorandum. The accused-appellant was arrested. Thereafter, the accused-appellant was taken to the chamber of his controlling officer 10 Cr.App(SJ)1766 of 2003 being the senior divisional personnel officer namely Sri H.P. Singh, where the recovered money was kept in an envelope and was sealed. He also identified the currency notes being the material object nos. III to III/4. Sodium Carbonate solution was prepared in one glass and the right hand of the accused-appellant was immersed in the same; by which the colour of the solution turned pink and again similar solution was prepared in which the left hand of the accused-appellant was immersed and the colour also changed to pink. The solution in two glass tumblers were kept in two separate bottles and sealed. The office table of the accused-appellant was also searched and memorandum of recovery was prepared. The P.W.4 identified the accused-appellant in the court. In his cross-examination he has stated the attendance of the P.W.9 used to be made at Garhwa Railway Station where he used to be a substitute porter and on the basis of attendance particulars, the pay of the P.W.9 used to be prepared. The accused-appellant was apprehended inside the hall. About 10 persons were working in the hall, at which the accused-appellant was apprehended. At this place, the accused-appellant received the money, counted and kept in his pocket. After the trap, they took the accused- appellant to the chamber of Senior Divisional Personnel Officer which was adjacent to the hall. The P.W.3 also went there and at that time, the money was in the hand of the P.W.3. Though the P.W. 4 described in detail about the occurrence yet he was not cross-examined regarding demand and acceptance of the illegal gratification.
10. P.W.10- Nripendra Mohan Prasad Sinha is the investigating officer of the case. He has stated that he registered the F.I.R. of the case on the direction of the Superintendent of Police. On being proved by him, the F.I.R. has been marked Ext.7. He has also stated about the formalities done by him regarding the preparation for the trap by arranging the independent witnesses from B.C.C.L. office and other pre-trap formalities. He has also stated about the preparation of the preliminary report. In two vehicles, the P.W.2 along with other members of the trap members reached near the office of the Senior Division Personnel Officer of Eastern Railways, Dhanbad. The P.W.9- complainant along with the P.W.2, as per 11 Cr.App(SJ)1766 of 2003 the direction of the P.W.10 went near the table of the accused-appellant and on seeing the P.W.9, the accused-appellant told him to wait outside the office hall. Thereafter the P.W.9 waited in the corridor outside the hall. After half an hour, the accused-appellant came to the corridor and met the P.W.9. The P.W. 2 was near him. The accused-appellant demanded Rs.500/- from the P.W.9 at which the P.W.9 brought out tainted notes of Rs.500/-from the pocket of his shirt and handed over to the accused- appellant. The accused-appellant received the same by his right hand and counted the notes by using both his hands and after that he was holding the money in his right hand. On the P.W.9 asking as to what will happen to his work, the accused-appellant told him to go and assured that from that day onwards pay for 31 days will be prepared for the P.W.9. After conversation and acceptance of the illegal gratification amount was over, the P.W.9 signaled at which the members of the trap team reached there and challenged him by asking that the P.W.9 has given Rs.500/- bribe money to the accused-appellant to prepare his salary. At the time of being challenged, the accused-appellant was holding the bribe money in his right hand. The P.W.3, recovered the notes of Rs.500/- from the accused- appellant. Thereafter, the P.W.10 took the accused-appellant to his custody. He was taken to the office of H.P. Singh- Senior D.P.O. for the proceedings. The P.W.10 disclosed his identity to H.P. Singh and stated about the accused-appellant having received bribe money from the P.W.9. The accused-appellant was caught red-handed while taking bribe money from the P.W.9. The P.W.10 requested H.P. Singh to remain present during the post trap formalities. The P.W.10 has also stated about both the hand of the accused-appellant being washed with Sodium Carbonate solution and the colour of the said solution turning pink. He has also stated about the solution being kept in separate bottles and sealed and he also identified the relevant material objects. He has also stated about the bribe amount being kept in an envelope and sealed. The personal search of the accused-appellant was also done. On the instruction of the P.W.10, the P.W.4 prepared the search list, a copy of which was given to the accused-appellant. A post-trap memorandum was also prepared, a copy 12 Cr.App(SJ)1766 of 2003 of which was also given to the accused-appellant. During the course of the investigation, the P.W.10 seized the documents relating to the case. In his cross-examination, P.W.10 has stated that he has also made the relevant entry in the diary. A copy of the F.I.R. was also given to the accused- appellant. The P.W.10 was both the member of the raiding party as well as the investigating officer of the case. The P.W.10 obtained sanction for prosecution of the accused-appellant from Vinita Jain. He did not see the bribe money in the hand of the accused-appellant before the hand of the accused-appellant was caught hold by the P.W.4. The complainant used to work as substitute porter at Garhwa Railway Station. Substitute porter is sent when the vacancy is created because of permanent porter going on leave. It is pertinent to mention here that there was no cross-examination of the P.W.10 as well regarding the major material portion of his deposition.
11. P.W.1- Jay Narayan Jha is a formal witness. He typed the sanction order for prosecution of the accused-appellant issued by Vinita Jain, Division Personnel Officer and on being proved by him, the sanction order has been marked Ext. 1, without objection. In his cross-examination, he has stated that he does not have any personal knowledge about the facts of the case. It is pertinent to mention here that the defence did not put any question to the P.W. 1 regarding the competency of Vinita Jain, the Division Personnel Officer, to accord sanction for prosecution of the accused-appellant.
12. P.W.5- Harendra Prasad Singh, was the Senior Divisional Personnel Officer in the D.R.M. Office, Dhanbad on the date of occurrence. He has stated that at the relevant time, the accused-appellant used to be the pay bill clerk. On 27.09.1994, the C.B.I. Officers, brought the accused-appellant before him in his chamber and informed the P.W.5 that the accused- appellant has been apprehended while taking bribe, hence, he was brought before the P.W.5 and they washed the hands of the accused- appellant in front of the P.W.5. Each of the hands of the accused-appellant was immersed in the liquid and the colour of the liquid turned pink. The liquid was kept in separate bottles and sealed and the P.W.5 also signed 13 Cr.App(SJ)1766 of 2003 over the same. The currency notes were not recovered in his presence. The C.B.I. Officers sealed the envelope in presence of the P.W.5 in which the currency notes were kept in front of the P.W.5. The P.W.5 also signed on the said envelope. In his cross-examination he has stated that he has no knowledge as to what kind of water was brought in the glass. It is pertinent to mention here that the defence did not put any question to the P.W. 5 regarding the competency of Vinita Jain- the Division Personnel Officer, to accord sanction for prosecution of the accused-appellant nor any question relating thereto was asked to him, though he being the Senior Division Personnel Officer, was expected to have knowledge about the same.
13. P.W.6- John Murmu was the Assistant Personal Officer in the D.R.M. Office, Dhanbad on the date of occurrence. He was the in-charge of the pay bill section. The accused-appellant used to work in the pay bill transportation section and used to prepare the pay bill of the staffs of Garhwa Railway Station. Pay bill of Basudev Yadav- substitute porter at Garhwa Railway Station used to be prepared by the accused-appellant. The attendance sheet of the substitute porter used to come to the pay bill section of the D.R.M. Office under the signature of the concerned station master of the Railway Station. He described in detail the procedure of preparation of pay bill of the employees. He has also stated about the number of days for which the complainant worked as per the attendance sheet. In his cross-examination, the P.W.6 has stated that substitutes are not engaged if an employee remains on leave or rests. The substitute is not entitled for bills being prepared for his C.L period or the rest period. The complainant never complained about the preparation of bills for a period lesser than the period for which he worked. From 26.07.1994 to 05.08.1994, the complainant worked at Miral Gram Railway Station and he worked there also from 13.08.1994 to 25.08.1994. Basudev Yadav was made permanent in the year 1992. Once a porter becomes permanent porter, he is not sent as a substitute. It is pertinent to mention here that the defence did not put any question to the P.W. 6 regarding the competency of Vinita Jain- the Division Personnel Officer, to accord sanction for prosecution of 14 Cr.App(SJ)1766 of 2003 the accused-appellant nor any question relating thereto was asked to him, though like P.W5, he was also a responsible officer working in personnel department of Railways, hence was expected to have knowledge about the competency of the officer for according sanction for prosecution.
14. P.W.7- Bimlendu Das is a Senior Scientific Officer of the Central Forensic Science Laboratory, Kolkata. He has stated that on 24.10.1994 three sealed bottles were received by the C.F.S.L., Kolkata. The bottles contained pink colour liquid with white sediment milk. On chemical examination by the P.W.7, Sodium Carbonate could be detected in each of the said bottles. On being proved by him, the report of the P.W.7 has been marked Ext.5. All the bottles were separately sealed and the seals of the C.B.I. were put upon each of the bottles.
15. P.W.8- Moti Das was the Assistant Personal Officer, Eastern Railways posted at D.R.M. Office, Dhanbad on the date of occurrence. He dealt with the file of the substitute porter Basudev Yadav (complainant). He further stated that Basudev Yadav joined as substitute porter on 01.12.1989. Basudev Yadav worked from 01.12.1989 to 30.03.1990 against the day-to-day work vacancy. He further stated that as per the Disciplinary Appeal Rule, the D.P.O. is the disciplinary officer of the accused-appellant. In his cross-examination, the P.W.8 has stated that he cannot say why after transfer order Basudev Yadav was not relieved. It is pertinent to mention here that the defence did not put any question to the P.W. 8 regarding competency of Vinita Jain- the Division Personnel Officer, to accord sanction for prosecution of the accused-appellant nor any question relating thereto was asked to him, though like P.W5 and 6, he was also a responsible officer working in personnel department of Railways, hence was expected to have knowledge about the competency of the person according sanction for prosecution more so when he has deposed about the D.P.O. being the disciplinary officer of the accused- appellant.
16. After completion of the evidence of the prosecution, the statement of the accused-appellant was recorded under Section 313 Cr.P.C. In his statement recorded under Section 313 Cr.P.C., the accused-appellant 15 Cr.App(SJ)1766 of 2003 denied the evidence put forth by the prosecution against him implicating him with this case. In his defence he has stated that Basudev Yadav was appointed in permanent post in Bhawnathpur Station in the year 1992. He used to work in Garhwa Station as a substitute till the year 1994 by misusing the circulars of Section 65, hence, the accused-appellant used to cut his pay. Therefore, it was stated by the accused-appellant that Basudev Yadav falsely implicated the accused-appellant in this case.
17. In his defence, the accused-appellant also examined two witnesses. D.W.1- Suresh Prasad Singh has stated that Basudev Yadav used to come to their department but he never told to prepare his bill. The accused- appellant has been falsely implicated in this case and D.W. -1 has not seen any occurrence in which the accused-appellant was apprehended in the office. In his cross-examination he has stated that he has not received any notice to adduce evidence in the court.
18. D.W.2- Ram Sunder Prasad Singh has stated that he and the accused-appellant used to work in the same section. He has further stated that the accused-appellant made deduction in the salary of Basudev Yadav and gave the said money to the other porter of Meral Gram Station. The accused-appellant properly made the deduction. The accused- appellant was taken by the C.B.I. Officers after catching hold of him. Upon the D.W.2 and others reaching there, the C.B.I. Officers told them to remain in the section. In his cross-examination, the D.W.2 has stated that when the D.W.1 deposed in the court, he was also present inside the court and heard the deposition of the D.W.1. He cannot produce any document to show that he was also present in the section along with the accused- appellant on the date of occurrence.
19. The learned trial court, after considering the evidence in the record, held that the evidence put forth by the prosecution is sufficient to establish the fact that the accused-appellant demanded bribe and was caught red-handed while taking the bribe and the money has been recovered from him. Hence, he convicted and sentenced the accused- appellant as already indicated above.
20. At the time of hearing, it was submitted by Mr. A. K. Kashyap, the 16 Cr.App(SJ)1766 of 2003 learned senior counsel appearing for the accused-appellant that the impugned judgment of conviction and order of sentence is bad in law and fact and is against the weight of evidence in the record. It is next submitted by the learned senior counsel for accused-appellant that the prosecution witnesses have deposed contradictory to each other on the point of the place, where the alleged bribe amount was accepted by the accused-appellant, as when some of the witnesses stated that it was in the hall, while others have stated that it was in the corridor. It is then submitted that this discrepancy in the evidence put forth by different prosecution witnesses creates a doubt about the prosecution case. It is further submitted that the sanction for prosecution of the accused- appellant was not granted by the competent authority and the learned trial court failed to appreciate the same and because of this reason, the accused-appellant is entitled to be acquitted. It is then submitted that as the P.W.10 being the investigating officer as well as the member of the trap team, also registered the F.I.R., and thus was a highly interested witness and the P.W.10 ought not have investigated the case. Learned senior counsel for the accused-appellant drew attention of this court to the testimony of the P.W.2 and claimed that he has stated that the officers of the C.B.I. have not recovered any money from the accused-appellant and submitted that this creates doubt over the prosecution story. It is next submitted that the original complaint has not been exhibited entirely and only the signature of the complainant- Basudev Yadav thereon has been exhibited and the author of the original complaint has not been examined and withheld from the witness box. It is also submitted that there is discrepancy in the testimonies of the witnesses regarding where the bribe money was kept by the accused-appellant as some witnesses have stated that he kept the same in his shirt or while others have stated that he kept the same in his pant pocket and yet others have stated that all along he was holding the money in his right hand.
21. The learned senior counsel for the accused-appellant relied upon the judgment of Hon'ble Supreme Court of India in the case of Balakrishnan Ravi Menon Vs. Union of India reported in 2007 (1) SCC 17 Cr.App(SJ)1766 of 2003 45 wherein the Hon'ble Supreme Court of India has held as under in para:-6
6. "Further, under Section 19 of the PC Act, sanction is to be given by the Government or the authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. The question of obtaining sanction would arise in a case where the offence has been committed by a public servant who is holding the office and by misusing or abusing the powers of the office, he has committed the offence. The word "office" repeatedly used in Section 19 would mean the "office" which the public servant misuses or abuses by corrupt motive for which he is to be prosecuted. ... ... ... ...."
And submitted that sanction for prosecution is to be given by the Government or the Authority which would have been competent to remove the public servant from his office, at the time the offence was alleged to have been committed. But in this case the sanction of prosecution of the accused appellant has not been given by the authority who would have been competent to remove the accused-appellant from his office at the time of commission of the alleged offence.
22. Learned senior counsel for the accused-appellant further relied upon the judgment of Hon'ble Supreme Court of India in the case of K. Devassia Vs. State of Kerela reported in 2006 (10) SCC 447 wherein the Hon'ble Supreme Court of India has acquitted the appellants of that appeal of the charges, upon sanction for prosecution being granted by the Secretary (Vigilance) prior to the said authority of granting sanction being vested upon it, relying upon its own judgment in the case of P.A. Mohandas Vs. State of Kerela reported in 2003 (9) SCC 504. Learned senior counsel for the accused-appellant further relied upon the judgment of Hon'ble Supreme Court of India in the case of State of Karnataka Vs. Ameer Jan reported in 2007 SAR Criminal 845 Appeal (Criminal) 766 of 2001 wherein the Hon'ble Supreme Court of India has held as under in para-13 and 14:-
13. Our attention, however, was drawn to a recent decision of this Court in Prakash Singh Badal and Another v. State of Punjab and Others [(2007) 1 SCC 1] by Mr. Hegde to contend that having regard to Sub-sections (3) and (4) of Section 19 of the Act, only because an order of sanction contains certain irregularities, the court would not set aside an order of conviction.
In Prakash Singh Badal (supra), the question which arose for consideration before this Court was as to whether an order of sanction is required to be passed in terms 18 Cr.App(SJ)1766 of 2003 of Section 197 of the Code of Criminal Procedure in relation to an accused who has ceased to be a public servant. It was in that context a question arose before this Court as to whether the act alleged to be performed under the colour of office is for the benefit of the officer or for his own pleasure. In the context of question as to whether the public servant concerned should receive continuous protection, it was opined:
"29. The effect of sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In sub-section (3) the stress is on "failure of justice"
and that too "in the opinion of the court". In sub-section (4), the stress is on raising the plea at the appropriate time.
Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of jurisdiction as observed in para 95 of Narasimha Rao case 2. Sub-section (3)( c ) of Section 19 reduces the rigor of prohibition. In Section 6(2) of the old Act [Section 19(2) of the Act] question relates to doubt about authority to grant sanction and not whether sanction is necessary."
Prakash Singh Badal (supra), therefore, is not an authority for the proposition that even when an order of sanction is held to be wholly invalid inter alia on the premise that the order is a nullity having been suffering from the vice of total non-application of mind. We, therefore, are of the opinion that the said decision cannot be said to have any application in the instant case.
14. We may notice that in Sankaran Moitra v. Sadhna Das & Anr. [(2006) 4 SCC 584 : JT 2006 (4) SC 34], the Majority, albeit in the context of Section 197 of the Code of Criminal Procedure, opined:
"22. Learned counsel for the complainant argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of this Court earlier cited, clearly indicate that a prosecution hit by that provision cannot be launched without the sanction contemplated. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. We cannot therefore accede to the request to postpone a decision on this question." (Emphasis Supplied) And submitted the sanction for prosecution of the accused- appellant is bad in law.
23. It is further submitted by learned senior counsel appearing for the accused-appellant that the issue of sanction being not accorded by a competent authority was agitated before the trial court by the accused- appellant but the learned trial court failed to appreciate the same. Learned senior counsel appearing for the accused-appellant relied upon the judgment of Hon'ble Supreme Court of India in the case of Shamnsaheb M. Multtani vs. State of Karnataka reported in 2001 (1) Eastern Criminal 19 Cr.App(SJ)1766 of 2003 Cases 199 (SC) wherein the Hon'ble Supreme Court of India has held as under in paragraph- 19:-
"19. One of the cardinal principles of natural justice is that no man should be condemned without being heard, ("Audi alterum partem"). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice."(Emphasis given by me) And submitted that according of sanction of prosecution by any incompetent authority has occasioned failure of justice to the accused- appellant.
24. Learned senior counsel appearing for the accused-appellant further relied upon the judgment of Hon'ble Supreme Court of India in the case of State of Madhya Pradesh vs. Bhooraji and Others reported in 2001 (3) Eastern Criminal Cases 129 (SC) and submitted that therein the Hon'ble Supreme Court has expressed failure of justice as an etymological chameleon. It is next submitted that failure of justice has been occasioned to the accused-appellant for the following reasons:-
(a) Sanctioning authority is not the competent authority to grant sanction as per Section 19(1)(c) of the Prevention of Corruption Act and Section 19(4) Explanation (b).
(b) Sanctioning authority has not been examined as a witness during the course of trial.
(c) No documentary evidence has been produced by the prosecution to show that Vinita Jain was competent authority to remove the public servant from his service as required under Section 19(c) of the Prevention of Corruption Act.
(d) Accused has challenged the competency of the sanctioning authority during the course of trial itself; even then the prosecution has not produced the sanctioning authority as the witness. Section 19 of the Prevention of Corruption Act itself prescribes that no court shall take cognizance except with the previous sanction, hence, without valid 20 Cr.App(SJ)1766 of 2003 sanction; the cognizance of the offence is prohibited mandatorily by the court of law.
(e) The question of sanction for prosecution is not a mere formality rather it goes to the root of the case and this is the shield to save the public servant from the false accusation.
(f) The competent authority to grant sanction alone would know the entire nature of function discharged by the accused.
(g) The prosecution is itself bad in law from its very inception, as the prosecution cannot be initiated, except that the sanction accorded by the competent authority.
Hence, it is submitted that the accused-appellant is entitled to be acquitted on these grounds.
25. Learned senior counsel for the accused-appellant further relied upon the judgment of Hon'ble Supreme Court of India in the case of C. Sukumaran vs. State of Kerela reported in (2015) 11 SCC 314, wherein the Hon'ble Supreme Court of India has held that as there was no evidence regarding demand for illegal gratification on the part of the accused in that case, hence no offence punishable under Section 7 of the Prevention of Corruption Act was made out in that case and under such facts of the case the Hon'ble Supreme Court held that the question of acceptance of illegal gratification from the complainant under the provisions of Section 13(1)(d) of the act also does not arise, in that case. Learned senior counsel for the accused-appellant further submits that the complainant has lodged this false complaint in order to receive illegal amount in the name of dues of his salary, though he was not entitled to get the claim legally. Learned senior counsel for the accused-appellant next submits that the accused-appellant had to face the rigors of the criminal trial since 1994 and is an old man of 74 years, suffering from several ailments, hence a lenient view be taken in the matter of sentence, in case his conviction is upheld. In this respect the learned senior counsel for the accused-appellant relied upon the judgment of Hon'ble Supreme Court of India in the case of Gurjant Singh Vs. State of Punjab reported in (2015) 8 SCC 650 paragraph- 15 and 16 of which read as under:-
21Cr.App(SJ)1766 of 2003
15. The learned counsel for the appellant submitted that the sentence awarded by the trial court is harsh, and the same may at least be reduced to the period already undergone by the appellant. It is further submitted by him that the sentence of imprisonment awarded by the trial court is much more than the minimum sentence prescribed under law as it stood in 2003. It is relevant to mention here that the minimum sentence under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 has been enhanced by Act 1 of 2014 with effect from 16-1-2014, but the incident in question relates to the period prior to the said date. Considering the facts and circumstances of the case, we are of the view that the sentence of rigorous imprisonment for a period of two years and a fine of rupees one lakh would meet the ends of justice in the present case.
16. Accordingly, the sentence of imprisonment is reduced from a period of three years to a period of two years without interfering with the sentence of fine recorded by the trial court. With this modification in the sentence, the appeal stands disposed of."
26. Responding to the citations of judgments relied upon by the prosecution, learned senior counsel for the accused-appellant submitted that in the case of State of Gujarat vs. Navinbhai Chandrakant Joshi reported in 2018 (9) SCC 242 wherein the Hon'ble Supreme Court has laid down the principles relating to the trap cases as under in paragraphs- 8 and 11:-
8. It is well settled that to establish the offence under Sections 7 and 13(1)(d) of the Act, particularly those relating to the trap cases, the prosecution has to establish the existence of demand as well as acceptance by the public servant. In B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] , it was held as under: (SCC p. 58, para 7) "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [C.M. Sharma v. State of A.P., (2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] ."
11. So far as the presumption raised under Section 20 of the Act for the offence under Section 7 of the Act is concerned, it is settled law that the presumption raised under Section 20 of the Act is a rebuttable presumption, and that the burden placed on the accused for rebutting the presumption is one of preponderance of probabilities. In C.M. Girish Babu v. CBI [C.M. Girish Babu v.
CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] , this Court held as under: (SCC p. 786, paras 21-22) "21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. ...
22Cr.App(SJ)1766 of 2003
22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt."
Since it is established that the accused was possessing the bribe money, it was for them to explain that how the bribe money has been received by them and if he fails to offer any satisfactory explanation, it will be presumed that he has accepted the bribe. (Emphasis Supplied) That as in the instant case the evidence regarding acceptance of bribe is not of unimpeachable character because of the discrepancies in evidence in this respect, hence the ratio of State of Gujarat vs. Navinbhai Chandrakant Joshi (supra) is not applicable in the facts of the instant case. Learned senior counsel for the accused-appellant further submits that in the case of State of Gujarat vs. Navinbhai Chandrakant Joshi (supra) there was no major contradiction on the point of demand, acceptance and recovery of bribe money. Therefore, it is submitted that the presumption under Section 20 of the Prevention of Corruption Act has not arisen in the instant case in the absence of the discharge of the initial burden cast upon the prosecution for drawing up of such a presumption.
27. Regarding the judgment of Hon'ble Supreme Court of India in the case of Vinod Kumar Garg Vs. State (Government of National Capital Territory of Delhi) (2020) 2 SCC 88 relied upon by the respondent wherein in paragraphs-16, 17, 25, 27 and 28, Hon'ble Supreme Court of India has held as under:-
16. "On the said aspect, we would now refer to Section 20 of the Act which reads as under:
"20. Presumption where public servant accepts gratification other than legal remuneration.--(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) or sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration 23 Cr.App(SJ)1766 of 2003 which he knows to be inadequate.
(2) Where in any trial of an offence punishable under Section 12 or under clause
(b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(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 trivial that no interference of corruption may fairly be drawn."
The statutory presumption under Section 20 of the Act can be confuted by bringing on record some evidence, either direct or circumstantial, that the money was accepted other than for the motive or the reward under Section 7 of the Act. The standard required for rebutting the presumption is tested on the anvil of preponderance of probabilities which is a threshold of a lower degree than proof beyond all reasonable doubt.
17. In the case at hand, the condition precedent to drawing such a legal presumption that the accused has demanded and was paid the bribe money has been proved and established by the incriminating material on record. Thus, the presumption under Section 20 of the Act becomes applicable for the offence committed by the appellant under Section 7 of the Act. The appellant was found in possession of the bribe money and no reasonable explanation is forthcoming that may rebut the presumption. Further, the recovery of the money from the pocket of the appellant has also been proved without doubt. We, therefore, hold that money was demanded and accepted not as a legal remuneration but as a motive or reward to provide electricity connection to Nand Lal (PW 2) for the shed.
25. On the said aspect, the later decision of this Court in State of Maharashtra v. Mahesh G. Jain [State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119 :
(2014) 1 SCC (Cri) 515 : (2014) 1 SCC (L&S) 85] has referred to several decisions to expound on the following principles of law governing the validity of 24 Cr.App(SJ)1766 of 2003 sanction: (SCC pp. 126-27, para 14) "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 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 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."
27. The last contention of the appellant is predicated on Section 17 of the Act and the fact that the investigation in the present case was not conducted by the police officer by the rank and status of the Deputy Superintendent of Police or equal, but by Inspector Rohtash Singh (PW 5) and Inspector Shobhan Singh (PW 7). The contention has to be rejected for the reason that while this lapse would be an irregularity and unless the irregularity has resulted in causing prejudice, the conviction will not be vitiated and bad in law. The appellant has not alleged or even argued that any prejudice was caused and suffered because the investigation was conducted by the police officer of the rank of Inspector, namely, Rohtash Singh (PW 5) and Shobhan Singh (PW 7).
28. This Court in Ashok Tshering Bhutia v. State of Sikkim [Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402 : (2011) 2 SCC (Cri) 258 : (2011) 2 25 Cr.App(SJ)1766 of 2003 SCC (L&S) 697] referring to the earlier precedents has observed that a defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial."
The learned senior counsel for the accused-appellant submitted that in that case, the prosecution examined the competent authority who had accorded sanction for prosecution as a witness to show that he was competent to grant sanction but in the instant case, no cogent or reliable evidence has been placed before the trial court that Vinita Jain who accorded the sanction, was the competent authority to grant sanction.
28. Learned senior counsel for the accused-appellant further submits that in the case of C.M. Girish Babu Vs. C.B.I., Cochin, High Court of Kerala (2009) 3 SCC 779, the Hon'ble Supreme Court of India has settled the principle of law regarding the presumption under Section 20 of the Prevention of Corruption Act and has held as under in paragraph-21 and 22:-
"21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the court that the prosecution has proved that the accused received the amount towards gratification.
22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.
"4. ... It is well established that where the burden of an issue lies 26 Cr.App(SJ)1766 of 2003 upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4(1) of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt."(Emphasis Supplied) The Learned senior counsel for the accused-appellant further submitted that in the case of V. Sejappa v. State reported in (2016) 12 SCC 150 also the Hon'ble Supreme Court of India reiterated the settled principles of law regarding presumption under Section 20 of the Prevention of Corruption Act as under in paragraph-18:-
18. It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of money was not enough to draw the presumption under Section 20 of the Act.
The Learned senior counsel for the accused-appellant then submitted that in this case, the accused-appellant has succeeded in discharging his burden of rebutting the presumption set in under section 20 of the Prevention of Corruption Act, 1988, by way of cross-examination of the witnesses of the prosecution, which has proved a preponderance of probability in his favour.
29. It is then submitted by learned senior counsel for the accused-
27Cr.App(SJ)1766 of 2003 appellant that as the prosecution has failed to establish the essential ingredients of the charges framed against the accused-appellant by cogent evidence, hence that the appeal be allowed and the appellant be acquitted of the charges and in case the conviction of the appellant is uphold by this Court, then lenient view may be taken in the matter of sentence and the sentence be modified accordingly.
30. Mr. Rohit Sinha, learned counsel for the C.B.I. on the other hand, defended the impugned judgment and submitted that there is absolutely no challenge to any portion of the material parts of the evidence put forth by the prosecution through the witnesses examined by it regarding the essential ingredients of the offence punishable under Section 7 and 13 of the Prevention of Corruption Act, 1988, the essential ingredients of which being
(i) demand of bribe,
(ii) acceptance of bribe and
(iii)recovery of bribe amount.
It is further submitted by Mr. Sinha that the testimony of none of the prosecution witnesses has been impeached in any manner in their respective cross examination or otherwise and their testimonies are of unimpeachable in character and trustworthy. It is further submitted that the sanction for the prosecution has been marked without any objection by the accused-appellant, upon being proved by the P.W.1. In the cross- examination of the P.W.1- who proved the sanction for prosecution document (Exhibit-1), no question was put to him to even remotely give any indication that it is also a defence of the accused-appellant, that the person who has sanctioned the prosecution of the accused-appellant, was not competent to accord such sanction; in order give rise to the requirement for the prosecution to adduce more evidence in this respect. It is then submitted that rather the line of cross-examination of the P.W. 1, was to indicate that the person who accorded sanction for prosecution has not applied her mind for the same, which defence however later on the accused-appellant abandoned obviously there being no merit in such defence. It is next submitted that in the absence of any cross-examination 28 Cr.App(SJ)1766 of 2003 of any of the witnesses regarding the competency of the person to accord the sanction for prosecution, thereby leaving the prosecution the scope for putting forth more evidence, on this aspect, it is not open for the appellant to agitate the validity of the sanction at the appellate stage. Mr. Sinha further drew the attention of this Court towards Section 19 (3) (a) of the Prevention of Corruption Act which reads as under:-
(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;
and submitted that in the absence of any material to establish that failure of justice having been occasioned to the accused-appellant by any error, omission or irregularity in the sanction for prosecution as required under Section 19 (1) of the Prevention of Corruption Act, 1988, this Court shall not reverse the findings of the trial court.
31. It is further submitted by Mr. Sinha that corruption and bribery by a government servant has become a menace, hence, no leniency should be shown to the accused of these offences in the matter of sentence. It is next submitted that though the Senior Divisional Personnel Officer of the Railways, has been examined as a witness in this case but there is no cross-examination of him regarding the competency of the Divisional Personnel Officer to accord sanction to the prosecution. Hence, no fault should be found with the prosecution and the benefit of doubt should not be given to the accused-appellant and he should not be acquitted of the charges. It is next submitted that the witnesses examined in this case have categorically stated that the complainant was working as a substitute porter, hence, a flip here or a departure there by any witness; keeping in view that the witnesses were being examined about 6-7 years after the occurrence is but natural and is rather the proof of the fact that they are not tutored witnesses hence the same is certainly not a ground to disbelieve their testimonies. In support of his contention, Mr. Sinha, learned counsel for the C.B.I. relied upon the judgment of Vinod Kumar 29 Cr.App(SJ)1766 of 2003 Garg Vs. State (Government of National Territory of Delhi) (supra) and State of Gujrat vs. Navinbhai Chandrakant Joshi (supra) and submitted that in the case of Vinod Kumar Garg Vs. State (Government of National Territory of Delhi) (supra), Hon'ble Supreme Court of India has interalia held as under in paragraph-14, :-
14. "The contradictions that have crept in the testimonies of Nand Lal (PW 2) and Hemant Kumar (PW 3) noticed above and on the question of the total amount demanded or whether Nand Lal (PW 2) had earlier paid Rs 500 are immaterial and inconsequential as it is indisputable that the bribe was demanded and taken by the appellant on 3-8-1994 at about 10.30 a.m. The variations as highlighted lose significance in view of the proven facts on the recovery of bribe money from the pant pocket of the appellant, on which depositions of Nand Lal (PW 2), Hemant Kumar (PW 3) and Rohtash Singh (PW 5) are identical and not at variance. The money recovered was the currency notes that were treated and noted in the pre-raid proceedings vide Ext. PW 2/G. The aspect of demand and payment of the bribe has been examined and dealt with above. The contradictions as pointed out to us and noted are insignificant when juxtaposed with the vivid and eloquent narration of incriminating facts proved and established beyond doubt and debate. It would be sound to be cognitive of the time gap between the date of occurrence, 3-8-1994, and the dates when the testimony of Nand Lal (PW
2) was recorded, 9-7-1999 and 14-9-1999, and that Hemant Kumar's (PW 3) testimony was recorded on 18-12-2000 and 30-1-2001. Given the time gap of five to six years, minor contradictions on some details are bound to occur and are natural. The witnesses are not required to recollect and narrate the entire version with photographic memory notwithstanding the hiatus and passage of time.
Picayune variations do not in any way negate and contradict the main and core incriminatory evidence of the demand of bribe, reason why the bribe was demanded and the actual taking of the bribe that was paid, which are the ingredients of the offence under Sections 7 and 13 of the Act, that as noticed above and hereinafter, have been proved and established beyond reasonable doubt. Documents prepared contemporaneously noticed above affirm the primary and ocular evidence. We, therefore, find no good ground and reason to upset and set aside the findings recorded by the trial court that have been upheld by the High Court. Relevant in this context would be to refer to the judgment of this Court in State of U.P. v. G.K. Ghosh wherein it was held that in a case involving an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, it may be safe to accept the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence, there is circumstantial evidence which is consistent with the guilt of the accused and inconsistent with his innocence, there should be no difficulty in upholding the conviction. (Emphasis Supplied) And submitted that if the witnesses are examined five to six years after the occurrence as in this case minor contradictions on some details are bound to occur and are natural and further submitted that the present 30 Cr.App(SJ)1766 of 2003 appeal, therefore, is without any merit be dismissed and conviction and sentence of the appellant be uphold.
32. Having heard the submissions made at the Bar and after going through the evidence in the record, I find that in the cross-examination of the material prosecution witnesses who have stated about the occurrence being the P.W.-9- the complainant, P.W.2- shadow witness, P.W.3- independent witness who recovered the bribe amount, P.W.4- who is the inspector of C.B.I. who made the verification, P.W.10 who was the investigating officer of the case as well as the eye witness to the occurrence, their testimony on most of the material particulars have remained unchallenged in the absence of any question being put to them. Their testimony has not been challenged in their respective cross- examination so far as their deposition in respect of demand of bribe amount by the accused-appellant, acceptance of the same and recovery of the bribe amount from the accused-appellant.
33. It is a settled principle of law that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue and without this, it is not possible to impeach his credibility. The Hon'ble Supreme Court in the case of Laxmibai (Dead) Thr. LRs. & Anr. vs. Bhagwantbuva (Dead) Thr. LRs. & Ors. reported in AIR 2013 (SC) 1204 in para-31 in this respect held as under :-
31. "Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as 31 Cr.App(SJ)1766 of 2003 regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226 : (1993 AIR SCW 3675); State of U.P. v. Nahar Singh (dead) & Ors., AIR 1998 SC 1328 : (1998 AIR SCW 1200); Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207 : (2001 AIR SCW 3042); and Sunil Kumar & Anr. v.
State of Rajasthan, AIR 2005 SC 1096) : (2005 AIR SCW 589)."(Emphasis given by me)
34. It is significant to mention here that there are instances galore where the Hon'ble Supreme Court of India has held that in the absence of cross- examination of a witness, the evidence of such witness remains unchallenged and ought to be believed. In the case of State of U.P v. Nahar Singh (AIR 1998 SC 1328) the Hon'ble Supreme Court of India in paragraph no. 13 and 14 held as under :
"13. It may be noted here that that part of the statement of PW-1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence of PW-1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned :
(1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
14. The oft quoted observation of Lord Herschell, L.C. in Browne v. Dunn, (1893) 6 The Reports 67, clearly elucidates the principle underlying those provisions. It reads thus:
"I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses."
This aspect was unfortunately missed by the High Court when it came to the conclusion that explanation for the delay is not at all convincing. This reason is, therefore, far from convincing."(Emphasis given by me) 32 Cr.App(SJ)1766 of 2003
35. The law relating to admission of a document without objection has been settled by the Hon'ble Supreme Court of India in the case R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple reported in 2003 (8) SCC 752 wherein the Hon'ble Supreme Court of India has held as under in paragraph-20 :-
20. "The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise.
Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of 33 Cr.App(SJ)1766 of 2003 admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.(Emphasis Supplied by me)
36. Hon'ble Supreme Court of India has reiterated the settled principles of law regarding the presumption as envisaged under section 20 of the Prevention of Corruption Act, 1988 and the manner of rebuttal of the same in the case of Gurjant Singh Vs. State of Punjab reported in (2015) 8 SCC 650 para-13 and 14 of which read as under:-
13. "In Narendra Champaklal Trivedi v. State of Gujarat [(2012) 7 SCC 80 : (2013) 1 SCC (Cri) 963 : (2012) 2 SCC (L&S) 343] , this Court, in almost similar facts, has observed as under: (SCC p. 88, para 22) "22. In the case at hand, the money was recovered from the pockets of the appellant-accused. A presumption under Section 20 of the Act becomes obligatory. It is a presumption of law and casts an obligation on the court to apply it in every case brought under Section 7 of the Act. The said presumption is a rebuttable one. In the present case, the explanation offered by the appellant-
accused has not been accepted and rightly so. There is no evidence on the base of which it can be said that the presumption has been rebutted."
14. In Mukut Bihari v. State of Rajasthan [(2012) 11 SCC 642 : (2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136] , referring to various cases, this Court has made the following observations: (SCC p. 646, para 13) "13. This Court in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] , after considering various judgments of this Court including Panalal Damodar Rathi v. State of Maharashtra [(1979) 4 SCC 526 : 1980 SCC (Cri) 121] and Meena v. State of Maharashtra [(2000) 5 SCC 21 : 2000 SCC (Cri) 878] held that acceptance of the submission of the accused that the complainant's version required corroboration in all circumstances, in abstract would encourage the bribe-taker to receive illegal gratification in privacy and then insist for corroboration in case of the prosecution. Law cannot countenance such situation. Thus, it is not necessary that the evidence of a reliable witness is necessary to be corroborated by another witness, as such evidence stands corroborated from the other material on record."
37. So, keeping in view the aforesaid settled principle of law and the 34 Cr.App(SJ)1766 of 2003 facts as discussed above, it can very well be said that the credibility of the testimonies of the P.W.-9- the complainant, P.W.2- shadow witness, P.W.3- independent witness who recovered the bribe amount, P.W.4- who is the inspector of C.B.I. who made the verification, P.W.10 who was the investigating officer of the case as well as the eye witness to the occurrence are unimpeachable. So far as their testimonies regarding demand, acceptance and recovery of bribe money is concerned, because of the failure of the accused-appellant to challenge any material portion, their testimony in their respective cross-examinations and thereby not providing them the opportunity to furnish proper explanation about the portion of their testimony, sought to be impeached by the accused- appellant. Thus, these unchallenged portions of the testimony of the prosecution witnesses can be treated to be true.
38. So far as the evidence regarding the sanction for prosecution is concerned, that the sanction of prosecution has itself been produced in the court and marked Ext.1 without any objection by the accused-appellant. It is a settled principle of law that non-examination of person who has accorded the sanction is not fatal when the sanction of the prosecution is itself placed in the trial court and has been marked an exhibit without any objection as has been held by the Hon'ble Supreme Court of India in the case of C.B.I. Hyderabad vs. Edwin Devasahayam reported in AIR 2007 SC 2507.
39. So far as the discrepancy of evidence regarding the place where the conversation took place between the accused-appellant and the complainant and at which place the money was recovered and also the discrepancy of evidence regarding whether or not the accused-appellant after accepting the bribe money kept the same in his pocket is concerned, it is pertinent to mention here that the witnesses were examined about six years after the occurrence. When the witnesses were examined after so long a time after the occurrence, such witnesses are not expected to recollect and narrate the entire version with photographic memory, notwithstanding the hiatus and passage of time as has been held by Hon'ble Supreme Court of India in the case of Vinod Kumar Garg Vs. 35 Cr.App(SJ)1766 of 2003 State (Government of National Territory of Delhi) (supra). Such witnesses are not expected to give the exact description of a place, as it is common knowledge that ordinary people who are not interested in the subject matter of a criminal prosecution; are not expected to have razor sharp memory about an occurrence which took place several years ago. So, this Court is of the considered view that such discrepancy in the testimonies of the prosecution witnesses are certainly not fatal for the case of the prosecution more so, when their testimony regarding the fact of demand, acceptance and recovery has not seriously been challenged in their respective cross-examination and thus the prosecution having discharged the initial burden of drawing up the presumption under section 20 of the Prevention of Corruption Act, 1988, though the accused charged with the offence could have rebutted it; either through the cross- examination of the witnesses cited against him or by adducing reliable defence evidence., as has been held by the Hon'ble Supreme Court of India in the case of C.M.Girish Babu V. C.B.I.(supra) yet as already indicated above; the accused-appellant has neither put any question to any of the prosecution witnesses to even remotely suggest as what is his explanation for being in possession of the tainted money nor the two witnesses examined by him in his defence have even whispered a word about such explanation of the accused-appellant possessing the tainted money. Thus this court has no hesitation in holding that the accused- appellant has failed to disprove the presumption. Hence the said presumption sticks thus it can be held that the prosecution has proved that the accused received the amount towards gratification. Thus, this Court is of the considered view that the evidence in the record is sufficient enough to establish the essential ingredients of the demand, acceptance and recovery which is sufficient enough to establish the charge for the offence punishable under Section 7 and 13 of the Prevention of Corruption Act.
40. So far as the contention of the accused-appellant regarding invalidity in the sanction of prosecution is concerned, upon being proved by the P.W.1, the sanction for prosecution has been marked Ext.1 without 36 Cr.App(SJ)1766 of 2003 objection and as already mentioned above neither the P.W.1 nor the other prosecution witnesses who were in the personnel department of the DRM office of the Eastern Railways, being the P.W. 5, 6 and 8 and thereby they were expected to have knowledge about the competent authority, have been cross-examined on the point of competence of the Divisional Personnel Officer, to accord the sanction for prosecution of the accused- appellant. Though the accused-appellant has also examined two witnesses in his defence but they have not even whispered a word about the incompetence of the Divisional Personnel Officer to accord sanction for prosecution of an employee like the accused-appellant. It is needless to mention that the person competent to sanction for prosecution of the accused-appellant- who is a lowly placed public servant in Indian Railways is a fact, which required to be proved by evidence. Exhibit-1- which is the sanction of prosecution of the accused-appellant reveals that the Divisional Personnel Officer has sanctioned the said prosecution obviously meaning thereby she is competent to issue the sanction for prosecution of the accused-appellant. At the cost repetition it needs to be emphasized that as already indicated above, neither the P.W. 1 who proved the sanction for prosecution (Exhibit-1) nor the other Officers of the Personnel Department of the Indian Railways being the P.W. 5, 6 or 8 have been put any question as to somebody else than the Divisional Personnel Officer is competent to accord sanction for prosecution of the accused-appellant. Nor any such evidence has been adduced on behalf of the accused-appellant to suggest as to who else than the Divisional Personnel Officer is competent to accord such sanction for prosecution. Further it is a settled principle of law that the appellate court cannot set aside the conviction of an accused on the ground of any 'error' in sanction for prosecution which includes the incompetence of the authority who sanctioned prosecution of an accused, unless in the opinion of the appellate court "failure of justice", has in fact, been occasioned by such 'error' in sanction for prosecution. The Hon'ble Supreme Court of India in the case of State by Police Inspector Vs. T. Venkatesh Murthy reported in AIR 2004 SC 5117 has held as under in paragraph-7 and 11:-
37Cr.App(SJ)1766 of 2003
7. "A combined reading of sub-sections (3) and (4) make the position clear that notwithstanding anything contained in the Code no finding, sentence and 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.
11. The expression "failure of justice" 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 Investments Ltd. v. Deptt. Of Environment (1977) 1 All ER 813: 1978 AC 359). The criminal Court, particularly the superior Court should make a close examination to ascertain whether there was really a failure of justice or it is only a camouflage. ..."
41. In the case of State of Bihar and Others vs. Rajmangal Ram reported in AIR 2014 SC 1674, the Hon'ble Supreme Court of India has held as under in paragraphs-7 and 8:-
7. "In a situation where under both the enactments any error, omission or irregularity in the sanction, which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred, it is difficult to see how at the intermediary stage a criminal prosecution can be nullified or interdicted on account of any such error, omission or irregularity in the sanction order without arriving at the satisfaction that a failure of justice has also been occasioned. This is what was decided by this Court in State by Police Inspector v. T. Venkatesh Murthy wherein it has been inter alia observed that:
"14. ... Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice."
8. The above view also found reiteration in Prakash Singh Badal v. State of Punjab and others wherein it was, inter alia, held that mere omission, error or irregularity in sanction is not to be considered fatal unless it has resulted in failure of justice. In Prakash Singh Badal (supra) it was further held that Section 19(1) of the PC Act is a matter of procedure and does not go to the root of jurisdiction. On the same line is the decision of this Court in R. Venkatkrishnan v. Central Bureau of Investigation. In fact, a three-Judge Bench in State of Madhya Pradesh v. Virender Kumar Tripathi while considering an identical issue, namely, the validity of the grant of sanction by the Additional Secretary of the Department of Law and Legislative Affairs of the Government of Madhya Pradesh instead of the authority in the parent department, this Court held that in view of Section 19(3) of the PC Act, interdicting a criminal proceeding mid- course on ground of invalidity of the sanction order will not be appropriate unless the court can also reach the conclusion that failure of justice had been occasioned by any such error, omission or irregularity in the sanction. It was further held that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and the evidence is led (Para 10 of the report)."
38Cr.App(SJ)1766 of 2003
42. In the case of C.B.I. vs. V. K. Sehgal and Another reported in AIR 1999 SC 3706, the Hon'ble Supreme Court of India has held as under in paragraphs-16 and 17:-
16. "Thus the powers of appeal and revision of the High Court conferred by the Code of Criminal Procedure shall be "subject to the provisions of" the 1988 Act. It is worthwhile to notice that a trammel has been imposed on a court of appeal and revision under Section 19(3)(a) of the 1988 Act. It reads thus:
(only the material portion is extracted):
"Notwithstanding anything contained in the Code of Criminal Procedure, 1973:- 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;
Explanation.--for the purposes of this section,--
(a) error includes competency of the authority to grant sanction."
17. It is a further inroad into the powers of the appellate court over and above the trammel contained in Section 465 of the Code which has been dealt with supra. Under Section 19(3)(a) no order of conviction and sentence can be reversed or altered by a court of appeal or revision even "on the ground of the absence of sanction" unless in the opinion of that court a failure of justice has been occasioned thereby. By adding the explanation the said embargo is further widened to the effect that even if the sanction was granted by an authority who was not strictly competent to accord such sanction, then also the appellate as well as revisional courts are debarred from interfering with the conviction and sentence merely on that ground."
43. In the case of State of Orissa vs. Mrutunjaya Panda reported in AIR 1998 SC 715 the Hon'ble Supreme Court of India has held as under in paragraph-2:-
2. "On perusal of the impugned judgment we find that the High Court's attention was not drawn to the provisions of Section 465 of the Code of Criminal Procedure which expressly lays down, inter alia, that any error or irregularity in any sanction for the prosecution shall not be a ground for reversing an order of conviction by the appellate court unless in the opinion of that court a failure of justice has in fact been occasioned thereby. The section further lays down that in determining whether any error or irregularity in any sanction for the prosecution 39 Cr.App(SJ)1766 of 2003 has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage of the proceedings. In view of the above provisions the High Court was required to decide, after recording a finding that there was some error or irregularity in the sanction, whether such error or irregularity occasioned a failure of justice and further whether such objection regarding the validity of the sanction was raised in the trial court. Admittedly, the above point was not raised in the trial court nor do we find anything on record from which it can be said that the error or irregularity in the sanction (even if we assume that the finding of the High Court in this regard is correct) did occasion any failure of justice. In that view of the matter it must be said that the High Court was not at all justified in acquitting the respondent on the ground that there was no valid sanction to prosecute him.
Since on facts, the concurrent findings of the courts below are based on proper appreciation of evidence and supported by cogent reasons the judgment of the High Court has got to be reversed."(Emphasis supplied by me)
44. It is pertinent to mention here that there is no evidence in the record in this case, as already indicated above, that the accused-appellant has not produced any material in the record regarding the incompetence of the Divisional Personnel Officer to sanction the prosecution of the accused- appellant. There is no evidence in the record as to whether the accused- appellant continued to be a public servant at the time of cognizance being taken in this case. As the accused-appellant did not raise the ground of his defence, about the incompetency of the Divisional Personnel Officer to accord sanction for his prosecution by way of cross examination of the prosecution witnesses or by adducing any evidence in this respect by examining defence witnesses hence there was no occasion for more evidence to be put forth, in this respect by the prosecution. It is crystal clear that for the first time, at the time of hearing of final argument the accused-appellant raised the plea that there is error in the sanction for prosecution on the ground that the Divisional Personnel Officer is not the competent person to accord such sanction for prosecution. There is no evidence in the record as to anybody else than the Divisional Personnel Officer is the appointing authority of the accused-appellant. Thus this court has no hesitation in holding that the materials in the record are insufficient to come to a finding that there was some error or irregularity in the sanction for prosecution and such error or irregularity has occasioned a "failure of justice" to the accused-appellant. Hence the accused-appellant is not entitled to any relief on account of the 40 Cr.App(SJ)1766 of 2003 shortcomings of the sanction of his prosecution as contended by him.
45. Under such circumstances, this Court is of the considered view that the evidence in the record is sufficient to establish the charge for the offence punishable under Section 7 and 13 of the Prevention of Corruption Act. Accordingly the conviction of the accused-appellant- Md. Wakil for the said offences as made by the learned trial court vide the impugned judgment is confirmed.
46. So far the sentence is concerned the occurrence of this case took place on 27.09.1994 as has been held in the case of Gurjant Singh Vs. State of Punjab (supra) as incident in question relates to the period prior to 16-1-2014 with effect from which date the minimum sentence under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 has been enhanced by Act 1 of 2014, hence the statutory minimum sentence applicable will be one year for the offence punishable under section 13 of the Prevention of Corruption Act, 1988 as the same stood prior to 16-1- 2014 and the minimum sentence for the offence punishable under section 7 of the Prevention of Corruption Act, 1988 applicable will be six months. The accused-appellant is now aged 74 years. It is submitted that he is not keeping good health. The occurrence took place more than two decades now causing immense trauma and mental incarceration and anguish to the accused-appellant it will be proper to modify the sentence by reducing the substantive sentence to one year each of the offences under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 to run concurrently. But the fine amount appears to be proper.
47. Accordingly, the substantive sentence of imprisonment of the accused-appellant is reduced from a period of two years to a period of one year without interfering with the sentence of fine recorded by the trial court. With this modification in the sentence, the appeal stands disposed of.
48. The accused-appellant- Md. Wakil is directed to surrender before the learned court below within four weeks from the date of this judgment to serve out the sentence failing which the trial court is directed to take all coercive steps against him for undergoing the sentence.
41Cr.App(SJ)1766 of 2003
49. Let the lower court records along with a copy of this judgment be sent to the learned court below forthwith.
(Anil Kumar Choudhary, J.) In the High Court of Jharkhand, Ranchi Dated 06/07/2020 AFR/ Animesh 42