State Of Gujarat vs Dahyabhai Bhikhbhai ... on 21 July, 2014

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Gujarat High Court

State Of Gujarat vs Dahyabhai Bhikhbhai ... on 21 July, 2014

1. The present appeal is filed by the appellant-State under section 378(1)(3) of the Code of Criminal Procedure, 1973 being aggrieved and dissatisfied with the judgment and order dated 27-5-1998 passed by the learned Special Judge, Nadiad, in Special ACB Case No.15 of 1993 whereby the accused has been acquitted of the charges levelled against him.

2. Short facts of the prosecution case are that the respondent- original accused was discharging his official duty as Factory Inspector in Nadiad Branch of Kheda District. It was alleged that before seven months of the complaint dated 3-1-1991, the accused came to his factory and told that if no case is to be taken against his factory, he should be paid Rs.500/-. The complainant paid the said amount and no case was taken. Two months thereafter, the accused again came to his factory demanding Rs.700/- as Rs.500/- paid was very less and for the same, he initiated some cases against the complainant. When the complainant went to his office, the accused demanded Rs.700/- from him. Thereafter, on the complainant approaching the accused with Rs.700/- on 1-1-1991, the accused demanded Rs.1000/- not to take any case against his factory for one year. As the complainant was ready to pay, the accused asked the complainant to come on Friday at 2.00 p.m. with the Visit Book and Rs.1000/-. As the complainant did not want to pay the said amount, he approached ACB Ahmedabad main office and met Police Inspector, Shri V.K.Amaliyar on 3-1-1991. The complainant was asked to remain present on the next day i.e. on 4-1-1991 in the morning at 10.30 in Dabhan Village, Opposite Resham Hotel, Near Swaminarayan Petrol Pump on the highway leading to Nadiad. The complaint of the complainant at Ex.33 was taken on 3-1-1991 at 4.30 p.m. After making arrangements for two Page 2 of 10 R/CR.A/872/1998 JUDGMENT panchas on 4-1-1991, ACB raiding party officials reached at the pre-decided place where the complainant was also present. The complaint was read over to the complainant and panchas. The complainant then handed over ten currency notes of the denomination of Rs.100/- to the raiding party. After noting down the numbers of those notes, anthracene powder was applied on those notes. Thereafter, primary panchnama was drawn there and upon following all necessary formalities, complainant, panchas and the raiding party reached the office of the accused. The complainant and panch No.1 went to the office of accused. The accused asked the complainant whether he has brought the visit book and the money or not. The complainant answered them in affirmative. The complainant then handed over the anthracene powdered currency notes to the accused. Upon receiving the said notes by the accused, panch No.1 went outside and gave the agreed signal to the other members of raiding party as mentioned in panchnama Ex.28. Immediately upon this, P.I., Shri Amaliyar and panch No.2 came to the cabin of the accused. Shri Amaliyar gave his introduction to the accused and after drawing necessary panchnama, the accused was caught red-handed with the anthracene powdered currency notes. Statement of the accused was taken and the accused and the complainant were taken to ACB office at Nadiad where complaint was registered. At the end of investigation and on the basis of materials collected against the accused, a charge sheet was filed against the accused before the Special Court where it was numbered as ACB Case No.15 of 1993. Thereafter, charge was framed against the accused. The said charge was read over and explained to the accused. The accused pleaded not guilty to the said charge and claimed to be tried.

2.1 In order to prove the charge against the accused, the Page 3 of 10 R/CR.A/872/1998 JUDGMENT prosecution has examined 6 witnesses and also produced documentary evidence numbering 14. Upon filing closing pursis by the prosecution, further statement of the accused under Sec.313 of the Code of Criminal Procedure was recorded in which, the accused denied all the charges. 2.2 At the end of trial, after hearing the learned advocates appearing for the prosecution and the defence, the learned Special Judge, Nadiad, vide judgment and order dated 27-5- 1998 passed in Special ACB Case No.15 of 1993 acquitted the accused of all the charges levelled against them, which is giving rise to the present appeal.

3. I have heard learned Addl. Public Prosecutor, Mr.K.L.Pandya and learned advocate, Mr.K.B.Anandjiwala for the respondent-accused.

4. Learned Addl. Public Prosecutor, Mr.K.L.Pandya, drawing attention of this Court towards paragraph No.8 more particularly the bottom portion of the said para of impugned judgment and order, submitted that it is clear that vide Exh.36 the sanction dated 28-6-1993 was already placed on record and the Court has already taken cognizance of the said sanction and hence, once cognizance of the sanction which has come on record has been taken by the Court, it is immaterial whether the sanction dated 19-5-1994 issued by the Secretary is forthcoming on the record or not. 4.1 Drawing further attention of this Court on the appointment letter dated 16-8-1972 at Exh.14, learned APP submitted that the appointment order to the respondent- accused herein was issued by the Government and the Under Secretary, who is an Officer of the Government, has issued the sanction dated 28-6-1993 and therefore, as it has been rightly issued, sanction dated 19-5-1994 has no relevance to the present case.

4.2      In this connection, he placed reliance on paragraph No.10


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of a decision of Hon'ble Apex Court in the case of Dinesh Kumar v. Chairman, Airport Authority of India and Anr. reported in AIR 2012 SC page 858 which reads as under:

"10. The provisions contained in Sections 19(1),(2),(3) and (4) of the P.C. Act came up for consideration before this Court in Parkash Singh Badal and another (AIR 2007 SC 1274). In paras 47 and 48 of the judgment, the Court held as follows:

"47: The sanctioning authority is not required to separately specify each of the offences against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalised guidelines in that regard.

48: The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial.""

5. Learned advocate, Mr.Anandjiwala, relying on a decision rendered by the Hon'ble Apex Court in the case of State Inspector of Police, Visakhapatnam Vs. Surya Sankaram Karri reported in (2006) 7 SCC page 172 more particularly paragraph Nos.25 and 26, submitted that it is the settled legal position that grant of proper sanction by the competent authority is a sine qua non for taking cognizance of the offence and when sanction is granted by a person not authorized by law, same being without jurisdiction would be a nullity. Head note (C) of the said decision reads as under:

"(C) Prevention of Corruption Act (49 of 1988) , S.19 -

     CORRUPTION -       SANCTION FOR PROSECUTION -


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        R/CR.A/872/1998                               JUDGMENT

Sanction for prosecution - Competent authority -

Respondent-accused, Assistant Station Master tried for offence u/S.13(1)(e) - Sanction granted by Senior Divisional Operational Manager who was not competent to remove respondent from service - Sanction being without jurisdiction is invalid. (Para 26) "

5.1 He also relied on another decision of Hon'ble Apex Court in the case of P.A.Mohandas Vs,. State of Kerala reported in 2004 SCC (Cri) page 1176 wherein it has been held at head note as under:

"Prevention of Corruption Act, 1988--S.19--lack of sanction--appellant prosecuted under the provisions of the Act--High Court refused to entertain the plea of lack of sanction for prosecution by the competent authority on the ground that it would tantamount to review of the earlier order and the Court does not possess the power to review the earlier order--the case of appellant is that the secretary (Vigilance) was authorised to grant sanction only on 23.4.1994 and there is no order of the State Government making secretary competent to accord sanction prior to the said date--under S.19 of the Act, no Court can take cognizance of an offence punishable under S.7, 10, 11, 13 & 15, except with previous sanction of competent authority--held, sanction in the present case was given prior to the aforesaid date--the date on which the sanction appears to have been given, the authority concerned had no jurisdiction--therefore, there is an embargo on Court's power to take cognizance for non- compliance of S.19 of the Act--proceeding quashed accordingly--appeals disposed of."

5.2 Referring to the impugned order, Mr.Anandjiwala submitted that issue namely, issue No.1 as to whether sanction at Exh.36 to file charge sheet against the accused was legal or not has been answered in negative by the learned trial Judge by dealing with the said issue in paras 8, 9 and 10 of the impugned judgment.

6. I have considered the above referred rival submissions made by learned advocates for the respective parties so far as the Page 6 of 10 R/CR.A/872/1998 JUDGMENT issue No.1 regarding the sanction is concerned.

7. It is clear from the deposition of Mr.Abdul Razak Babu, P.W.No.4, who has been examined at Exh.35, that after issuance of sanction dated 28-6-1993 by the Under Secretary namely, Mr.Dhiraj D.Solanki, which is placed on record at Exh.36, the same was reconsidered by the Government as is admitted by said witness and the Secretary has issued another sanction dated 19-5-1994 for filing the charge sheet against the respondent accused.

8. It is pertinent to note that after the above referred aspect came on record, no re-examination was done by the concerned APP at the court below nor has the Court below thought it fit to put any query related to sanction dated 19-5- 1994. The best course, in my view, available would have been to request the Court to withdraw the charge sheet incorporating the sanction dated 28-6-1993 with a permission to file a fresh charge sheet incorporating sanction issued by the Secretary dated 19-5-1994. However, the same has not been done and therefore, the prosecution has miserably failed to prove by any cogent evidence that the Under Secretary, who issued sanction Exh.36, was a competent authority. Record also shows that after issuance of sanction dated 28-6-1993 by the Under Secretary, the Deputy Secretary has put his initials at the place which was corrected and thereafter the Secretary has reconsidered the issue in question and issued another sanction dated 19-5- 1994. However, as stated hereinabove, though the attention of all concerned was drawn in the cross-examination by the defense side that subsequent sanction issued by the Secretary dated 19-5-1994 is lying on the file which was brought by the concerned witness, still, however, no effort has been made by the prosecution to establish the said aspect, as discussed hereinabove.

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R/CR.A/872/1998 JUDGMENT

9. A submission has been made by learned APP that when the charge sheet was filed in the year 1993, sanction dated 19-5- 1994 was not born and hence, considering the fact that sanction was issued by the Government official i.e. the Under Secretary, who is the competent authority, the trial Court did not consider the same in its right perspective.

10. I do not find any merit and substance in the said submission more particularly because the prosecution has failed to prove that sanction at Exh.36 issued by the Under Secretary was competent enough to remove the respondent- original accused. Moreover, it is clear from page No.169, which is a copy of the appointment letter, that the said appointment letter was issued by the order of the Governor, i.e. the highest official of the State. Further, as it appeared to the Secretary that the earlier sanction issued was not by the competent authority, he has issued a second sanction reconsidering the earlier sanction for the reasons best known to him.

11. It is required to be noted that the principles governing and regulating the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very clearly explained by the Hon'ble Apex Court in number of decisions. In the case of State of Goa V. Sanjay Thakran & Anr. reported in (2007)3 SCC 75, it has been held by the Hon'ble Apex Court In para 16 as under:

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would Page 8 of 10 R/CR.A/872/1998 JUDGMENT upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

12. Same view has been taken by the Apex Court in State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589.

13. I have gone through the impugned judgment and order passed by the trial court together with oral as well as documentary evidence and also considered submissions made by learned APP in light of the principles laid down by the Hon'ble Apex Court in the aforesaid reported decisions.

14. It appears that the trial court, on an elaborate discussion of the entire oral and documentary evidence in true perspective, has come to the conclusion that prosecution has failed to prove any of the charges levelled against him and consequently acquitted the accused. In the entirety of the facts and circumstances narrated hereinabove, this Court is of the opinion that the trial court was completely justified in acquitting the accused of the charges levelled against him. The said findings recorded by the trial court are absolutely just and proper and no illegality or infirmity has been committed by it in the said findings and therefore, I do not find it necessary to interfere with the same.

15. Learned Addl. Public Prosecutor is not in a position to show any evidence to take a view contrary to the view taken by the trial court or that the approach of the trial court is vitiated by some manifest illegality or that the decision is Page 9 of 10 R/CR.A/872/1998 JUDGMENT perverse or that the trial court has ignored the material evidence on record.

16. Under the above circumstances, appeal is required to be dismissed and is accordingly dismissed. Notice is discharged. Bail bond, if any, stands cancelled.

17. Registry is directed to send back the records and proceedings forthwith.

(G.B.SHAH, J.) RADHAN Page 10 of 10

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