Delhi High Court
Bhisham Kumar vs State on 8 January, 1999
Equivalent citations: 1999IIIAD(DELHI)177, 79(1999)DLT14, 1999(49)DRJ732
ORDER Vijender Jain, J.
1. This appeal has been filed against the order of Special Judge dated 30th November, 1979 charging the appellant under Section 161 of the Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. The appellant was awarded two years rigorous imprisonment and a fine of Rs.100/= under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and two years rigorous imprisonment and a fine of Rs.100/= under Section 161 of the Indian Penal Code.
2. Mr. Sandeep Sethi, learned counsel appearing for the appellant, has assailed the judgment and the order of conviction on the ground that the sanction order was not proper. Learned counsel has further contended that the authority to grant sanction has not taken into consideration the material available with the Department. He has contended that the authority has exercised the power to grant sanction in a mechanical manner without applying its mind. Mr.Sethi has contended that the sanction order dated 28.7.1979 is on the basis that Rs.100/= gratification was taken by the appellant from one Mohd.Hussain for issuance of a Pacca ration card and facility of kerosine oil and coal on the ration card whereas it was within the knowledge of the department that the Pacca ration card has been issued to said Mohd.Hussain on 2.3.1979. In this regard, Mr.Sethi has invited the attention of this Court to the statement of 'DW4', which is at page315 of the Trial Court records, who has stated that: ".....I have brought the first diary register Part Second. There is an entry at serial No.20 dated 28th of Feb.79 regarding the delivery of the card and verification. The same is in the hand of the accused. By this I mean that the verification was favourable to Mohd.Hussain. The ration card is handed over to the applicant, or a member of his family. This ration card was delivered to Mohd.Hussain on 2nd March, 79. The true photo stat copy of the application is Ex.DW4/A. I have seen the ration Card Ex.P3. It is a pacca ration card. I have brought Master Register in which entries of kacha as well as pacca ration cards are made..........."
3. It was further stated in the said deposition that : "In the Department the officers have to work in accordance with the instructions that are issued from time to time. I have seen the instructions relating to Kerosene oil Ex.DW4/B and relating to coal Ex.DW4/C. They are correct copies of the original instructions. If a particular person holding a ration card wants coal or kerosene the stamp for both coal and kerosene will be put by the concerned shopkeeper of coal or kerosene."
4. Even as per the statement of PW4, who was the sanctioning authority, and his statement at page245 of Trial Court record, in crossexamination PW4 has admitted that : "...........There was a draft sanction order on the file which could have been prepared by my Department.........I only went through the office file and the record of the case sent by the Anti Corruption Branch but I did not enquire if pacca ration card had been issued to Mohd.Hussain before according the sanction."
5. In support of his contentions, learned counsel for the appellant has cited the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh 1979 Chandigarh Criminal Cases 113 (SC), in which the Supreme Court, while considering grant of sanctioned, held : "........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 (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence atinude to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio......"
6. Similar view has been taken by the Supreme Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622, in which it is held : "The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority."
7. On the other hand, Mr.Pawan Behl, learned counsel appearing for the respondentState, has contended that it was pursuant to the raid conducted by the raiding party and the recovery of 100 ruppe note from the appellant was made and appellant was prosecuted and sentenced.
8. In view of the law laid down regarding grant of sanction and the parameters within which the sanctioning authority has to take into consideration the relevant facts and in view of the deposition of PW4 as well as DW4, on the short point that the sanctioning authority has not taken into consideration the entire material before granting sanction, sanction itself is vitiated and has vitiated the whole trial. On this short score alone, the appeal is allowed. The judgment passed by the Special Judge is set aside and the appellant is acquitted. The bail bonds of the appellant be discharged.