Andhra HC (Pre-Telangana)
Central Bureau Of Investigation/Spe ... vs P. Muthuraman on 13 March, 1996
Equivalent citations: 1996(1)ALD(CRI)597, 1996(2)ALT(CRI)126, 1996CRILJ3638
JUDGMENT
1. This appeal has been preferred by the State against the acquittal of the respondent-accused recorded by the Special Judge for C.B.I. Cases, Hyderabad in C.C. No. 1 of 1992 dated 31-12-1992 in respect of an offence of demanding and taking bribe said to have been committed by the respondent on 27-3-1991.
2. The case of the prosecution in brief is that the accused-respondent was an Upper Division Clerk in the office of the Assistant Garrison Engineer (E & M) Establishment Section at Golconda, Hyderabad during the period from June 1988 to March 1991. It was his duty to deal with the official correspondence of all the employees working under A.G.E. (Electrical and Mechanical), Golconda. The complainant who was working as Pump House Operator under the A.G.E. (E & M), Golconda applied for the final withdrawal from his G.P.F. in the month of February 1991. His application was allowed and the G.P.F. was sanctioned by C.W.F., Secunderabad. The papers were sent to the respondent for preparation of the contingent bill for final withdrawal of his G.P.F. On 25-3-1991, the respondent demanded an amount of Rs. 200/- as illegal gratification from the complainant S. Govind for preparation of the contingent bill as also covering letter. The complainant did not want to bribe the respondent and, therefore, on 26-3-1991, he lodged a complaint with the C.B.I., Hyderabad. A trap was laid on 27-3-1991. The complainant handed over notes of different denominations amounting to Rs. 200/-. Phenolphthelein powder was sprayed on the notes and instructions were given to the complainant as also to the mediators. The amount of bribe of Rs. 200/- was paid to the respondent by the complainant on his demand and the respondent kept the marked notes in the pocket of his shirt. A signal was given and the raiding party reached the spot and caught the respondent red handed. The marked notes were recovered from the respondent and were seized. His hands were dipped in the solution of Sodium Carbonate which turned pink. Sanction for the prosecution of the accused was obtained under Section 19(1)(c) of the Prevention of Corruption Act, 1988 for prosecuting the respondent-accused under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (in short 'the Prevention of Corruption Act'). The accused was charge-sheeted under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act. The charges framed under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act were framed against the respondent who abjured his guilt. His defence was that the complainant obtained a loan of Rs. 200/- from him and later on, the amount was repaid to him.
3. The trial Judge, on an appreciation of the evidence on record, reached the conclusion that the prosecution failed to establish that the complainant had paid bribe of Rs. 200/- to the respondent on demand. But, actually, it was repayment of loan which was taken from the accused-respondent on an earlier occasion. Holding so, the trial Judge acquitted him of the charges levelled against him.
4. Being aggrieved by the judgment and acquittal, the State has preferred this appeal.
5. At the time of hearing the arguments of the Public Prosecutor, it has been brought to my notice that the sanction to prosecute the respondent under Section 19 of the Prevention of Corruption Act was marked as Ex. P-13 at the instance of the Investigating Officer PW-11 though one Sri N. R. Khanna, Major General, Chief Engineer, Southern Command Engineers Branch, Pune and R. S. Pai were listed as witnesses to prove the sanction order. But, these persons were not examined and were given up by the prosecution.
6. The main question that falls for determination in this criminal appeal is whether the sanction order Ex. P.-13 can be said to be validly proved by the prosecution ?
7. Relying on a decision in State v. Gurdeo Singh, 1956 Cri LJ 102 : (AIR 1956 Pepsu 11) it has been urged by the learned Public Prosecutor on behalf of the appellant-State that the document containing the sanction falls within the definition of 'public document' in Section 74 of the Evidence Act and its certified copy can be produced in proof of its contents and it can, therefore, be proved as provided for in Section 77 of the Evidence Act by the production of a certified copy or the original. When therefore the original sanction itself is presented with the chargesheet, no formal proof of it is necessary.
8. In the case of Gurdeo Singh, (1956 Cri LJ 102) (Pepsu) (supra), the appointment of Sardar Prem Kumar as District Magistrate, Bhatinda was duly notified in the Pepsu Official Gazette and, therefore, it was observed that the Court was bound to take judicial notice of the District Magistrate's posting name and signature by virtue of Section 57(7) of the Evidence Act which lays down that the Court shall take judicial notice of the accession to offence names, titles, functions and signatures of the persons for the time being any public office in any part of British India when the fact of their appointment to such office is notified in any official Gazette particularly when Section 56 of the Act provides that a fact which the Court will take judicial notice, need not be proved Under these circumstances, it was found in this case that it was obvious that under the law the prosecution in the present case was not required to prove the District Magistrate's signature on the sanction Section 74 describes the public documents and it sub-section (I)(iii) includes within their ambit documents forming the acts or records of the acts of public officers etc. and the District Magistrate is surely such an officer.
9. In the case on hand, the sanction order Ex. P-13 does not bear the seal of the person who has signed the sanction order that is to say of the Major General, Chief Engineer. No notification has been brought to my notice wherein the appointment of Sri N. R. Khanna has been notified as the Chief Engineer, Southern Command, Pune. The applicability of Section 57(7) is contingent on the exhibition of the Gazette containing the notification of the appointment of the officer whose signature is in question.
10. For the foregoing reasons, it is difficult to take judicial notice of the fact that Sri N. R. Khanna, Major General was the Chief Engineer of the Southern Command, Pune and that the sanction order Ex. P-13 bears his signature.
11. A Division Bench of the Calcutta High Court in S. & R. of Legal Affairs v. Moazzem Hossain, AIR 1947 Cal 318 : (1947 (48) Cri LJ 815) held that in case where the Legislature has provided for a sanction as a condition precedent to a criminal prosecution, such sanction must be strictly proved and no prosecution can be undertaken unless the necessary sanction is duly proved. In this case, in an attempt to prove the signature of the District Magistrate on the sanction order, neither the District Magistrate was examined nor there was any evidence of any other person available to prove the signature of the District Magistrate and, therefore, it has been held in this case that the prosecution had relied upon a piece of paper which purported to have contained the sanction granted by the District Magistrate, but the sanction remained to be duly proved. This judgment of a Division Bench of Calcutta High Court was referred with approval and was relied upon by a Division Bench of Madhya Bharat 50 : (1950 Cri LJ 226) wherein it was held that mere production of a document is not sufficient, but it is necessary to prove the sanction by examining the sanctioning authority.
12. In Md. Iqbal Ahmed v. State of A.P., , it was held that it is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways : either by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction or by adducing evidence aliunde to show the facts placed before the sanctioning authority and the satisfaction arrived at by it.
13. In State of Rajasthan v. Tarachand, , it was held that the burden of proof that the requisite sanction had been obtained rests upon the prosecution such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based. In this case, Umraomal (PW-29) was examined and he stated in cross-examination that the Chief Minister has signed the sanction. This witness was working as Office Superintendent and, therefore, it was presumed that he was familiar with the signature of the Chief Minister in the ordinary course of business. He had also proved the signature of R. D. Thapar, Special Secretary to the Government in the formal sanction Ex. P-34. Under these circumstances, the Supreme Court found that the prosecution has proved that the sanction for prosecution of the accused was accorded by the competent authority.
14. For the reasons stated in the preceding paragraph, I reach the conclusion that the signature on the sanction should be proved either by the sanctioning authority or by his subordinate officer or clerk who has seen the sanctioning authority signing the sanction order or who is acquainted with the signature of the sanctioning authority. Merely filing the order purported to be the sanction order alleged to have been signed by the competent authority, does not discharge the burden of the prosecution in proving the sanction according to law.
15. When once the signature on the sanction order is proved, then the further question arises for consideration is whether the sanction was accorded after applying its mind to the facts of the case by the competent authority or not ?
16. If the sanction order is a speaking order, then a the matter ends there; otherwise, evidence should be adduced to prove that the sanctioning authority had perused the material before according sanction which may not be in a particular form.
17. For the reasons stated above, the case of Gurdeo Singh, (1956 Cri LJ 102) (Pepsu) (supra) is of no help to the prosecution. The lower Court has not recorded a finding that the sanction order Ex. P-13 is a valid sanction order. The provisions of sub-section 3(a) of Section 19 of the Prevention of Corruption Act are not attracted for the simple reason that it provides that 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. The lower court has acquitted the accused and its finding, sentence or order is not to be reversed or altered on the ground of absence of any error or omission or irregularity in the sanction order Ex. P-13. Since the prosecution has not legally proved the sanction order Ex. P-13, the question of challenging the same during the trial cannot be said to have arisen and it cannot be said that the respondent accused had any occasion to challenge the same. Had the sanctioning authority or the Clerk been examined and had they proved the signature on the sanction order stating that the signatory was the competent authority to sanction prosecution and that fact was not challenged in cross-examination, the things would have been different. The Investigating Officer who has neither claimed not would claim to have been acquainted with the signature of N. R. Khanna, was not competent to prove the sanction order Ex. P-13 and, therefore, the question of challenging his statement in the cross-examination does not arise. Under these circumstances, in my opinion, a failure of justice has in fact been occasioned by not proving the sanction order according to law.
18. For the foregoing reasons, the appeal against acquittal is liable to be rejected on this count only.
19. In the result, the appeal against acquittal fails and is hereby dismissed.
20. Appeal dismissed.