Delhi District Court
State vs . Daya Chand on 30 November, 2010
IN THE COURT OF SH. RAKESH SIDDHARTHA,
SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI
Unique Case ID No. 02401R1066912006
CC No. 163/09
STATE Vs. DAYA CHAND
S/o Sh. Singh Ram,
R/o A18, MCD Flats,
Sri Niwaspuri, New Delhi.
FIR No. : 24/05
U/s : 7 & 13 (1) (d) & 13 (2) of POC Act r/w
Sections 419 & 420 IPC
PS : AC Branch
Date of institution : 17.11.2006
Judgment reserved on : 11.11.2010
Judgment delivered on : 30.11.2010
JUDGMENT
1. A complaint had been filed by Sh. KL Shukla, Asstt.
Commissioner, Central zone, MCD through a letter sent to DCP AC Branch against Daya Chand who had impersonated and had accepted Rs.10,000/ from Shailender Goel and Neeraj Goel. It was in pursuance to the complaint filed by Shailender Goel and Neeraj Goel that the accused Daya Chand had held himself out to be Area Health Inspector and he could procure licence for State Vs Daya Chand Page No. 1/14 running the shop by the complainants Neeraj Goel and Shailender Goel.
2. As per the case of the prosecution, the accused presented himself to Shailender Goel and held himself out to be Area Health Inspector who could procure licence for the complainant Surender Goel provided he paid licence fee and over the said amount a certain amount towards gratification. The accused also invited the complainant to introduce other people who required such licences. Neeraj Goel who was a friend of complainant Shailender Goel was also running a shop without a licence and had sought the accused to procure a licence for him. The accused is stated to have asked for Rs. 5300/ for the said licence. When the licence were not forthcoming the complainant approach the MCD office where they learnt that accused was not infact Bhanwar Singh or Tanwar Singh as the accused had held himself out to be but infact he was a Safai Karamchari by the name of Daya Chand.
3. Complaint was lodged and a personal hearing was given to the accused where the accused is stated to have conceded to his guilt. On the basis of the said fact a complaint was lodged with the AC Branch and investigation was handed over Insp. Sunder Dev of AC Branch.
4. On completion of investigation charge sheet was filed. Charge was framed.
State Vs Daya Chand Page No. 2/14
5. As per charge, on 23.12.2004, accused Daya Chand while posted as Safai Karamchari in MCD, Central Zone, Delhi impersonated as Area Health Inspector of MCD before the complainants Shailender Goel and Neeraj Goel and induced them to deliver a total amount of Rs. 10,600/ to him for helping them in obtaining trade licences and in pursuance to said inducement, accused took Rs. 10,600/ from them and thereby he committed an offence punishable u/s 419 and 420 IPC.
6. Secondly, on the abovesaid date, accused Daya Chand while posted as above and as such being a public servant demanded and accepted bribe of Rs. 10,600/ i.e. Rs. 5,300/ each, other than legal remuneration, from complainant Shailender Goel and Neeraj Goel for helping them in obtaining their trade licence from MCD, and thereby he committed an offence punishable u/s 7 of Prevention of Corruption Act, 1988.
7. Thirdly, on the abovesaid date, accused being employed as above obtained bribe of Rs. 5400/ each from the abovenamed complainants as a pecuniary advantage for himself by corrupt or illegal means or otherwise by abusing his position as such public servant and thereby he committed an offence of criminal misconduct as specified u/s 13 (1) (d) punishable u/s 13 (2) of Prevention of Corruption Act, 1988 State Vs Daya Chand Page No. 3/14
8. Accused pleaded not guilty and claimed trial.
9. The prosecution had examined 16 witnesses to substantiate the charge while the accused examined 1 witness in his defence.
10. I have heard the arguments on behalf of the prosecution wherein Sh. Abdul Aleem, Addl. PP has stated that the complaint lodged and the admission of the acceptance of amount by the complainants, has proven the case against the accused beyond reasonable doubt and as such he should be held guilty.
11. Sh. N. D. Pancholi, Ld. Counsel for accused has, however, stressed the point that the prosecution has failed to prove the demand in as much as the fact that no recovery has been effected. The demand, if at all, is not admissible in law. The counsel has also stated that the sanction, accorded for the prosecution of the accused, is not a valid sanction as such the trial of the accused is vitiated.
12. Before we delve into the culpability of the accused of the offence committed, it has to be determined whether the prosecution was competent to prosecute the accused.
13. For the said purpose PW11 Gyan Bharti, Addl. Commissioner, State Vs Daya Chand Page No. 4/14 Trade and Taxes, Govt. of Delhi was examined who has testified that on 03.11.06 the witness was posted as Deputy Commissioner, Central Zone, MCD when a request was received from AC Branch along with copy of FIR, seizure memo, raid report, statement recorded u/s 161 Cr.PC, report of FSL for grant of sanction u/s 19 of POC Act, 1988 to prosecute accused Daya Chand.
14. The witness has testified that he had gone through the documents placed before him carefully and had applied his mind. After examining the facts and circumstances of the case, he was of the view that the accused should be prosecuted in this case and he had accorded sanction u/s 19 of POC act to prosecute the accused vide order Ex.PW9/A, on which the signatures of the witness are appended. The witness has denied that he had accorded the sanction mechanically.
15. The sanction to prosecute the accused is a sacrosanct function of competent authority and is sine quo non for prosecution of a government employee.
16. Hon'ble Supreme Court in Ram Kishan Prajapati Vs. State of U.P., (2000) 10 SCC43 has stressed that the person according sanction should be a competent person and a sanction accorded by person, not competent to grant, cannot be held to be a valid sanction. This fact has not State Vs Daya Chand Page No. 5/14 been challenged by the prosecution.
17. In regard to the sanction, the Hon'ble Supreme court has time and again stressed that it is incumbent on the prosecution to prove that a valid sanction had been accorded by the Sanctioning Authority, after it was satisfied that a case for sanction had 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 aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it.
18. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the court has to see is whether or not the Sanctioning Authority, at the time of giving sanction, was competent to accord sanction and whether it had applied its mind. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
19. The Supreme Court further in Mansukhlal Vithaldas Chauhan State Vs Daya Chand Page No. 6/14 Vs. State of Gujarat, (1997) 7 SCC 622 has stressed on the ingredients that go into grant of sanction. Here is a case the court first has to determine that the person against whom sanction sought falls within the description of "public servant" as defined in the section 21 of the IPC. Once the person, against whom the prosecution is to be launched, is found to be covered by the definition of "public servant" and the requirement to that extent is satisfied, the next question whether he is to be prosecuted or not is considered by the authority, which was competent to remove that person from the office on the date on which the offence was committed. This rule is a departure from the normal rule under which the relevant date is the date of taking cognizance, as laid down by the Hon'ble Supreme Court in R.S. Nayak Vs. A.R. Antulay, (1984), 2 SCC 183.
20. In the Gokulchand Dwarkadas Morarka Vs. King, AIR 1948, PC 82 it was pointed out that :
"The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government has an absolute discretion to grant or withhold its sanction. It is not concerned merely to see that the evidence disclose a prima facie case against the persons sought to be prosecuted. It can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds to regard State Vs Daya Chand Page No. 7/14 a prosecution as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or adequately discharge the obligation of deciding to give or withhold a sanction without a knowledge of the facts of the case."
21. In Basdeo Agarawala Vs. Emperor, AIR 1945, F.C. it was pointed out that sanction, under the Act, is not intended to be, nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness.
22. The Hon'ble Supreme Court in State through AntiCorruption Bureau, Govt. of Maharashtra Vs. Krishanchand Khubchand Jagtiani, 1992 Cr.LJ, 1071 while considering the provisions of sanction 6 of the Act held that one of the guiding principles for Sanctioning Authority would be the public interest and, therefore, the protection available under Section 6 cannot be said to be absolute.
23. Sanction lifts the bar for prosecution. It is sacrosanct act which affords protection to government servants against frivolous prosecutions. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. State Vs Daya Chand Page No. 8/14 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 the extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the Sanctioning Authority.
24. Since the validity of "sanction" depends on the application of mind by the Sanctioning Authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the State Vs Daya Chand Page No. 9/14 discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
25. The Hon'ble Delhi High Court in the case of Bhisham Kumar Vs. State, 1999 (iii) AD (Delhi) 177, has also applied the test as prescribed in the enunciation of the Hon'ble Supreme Court in the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, 1979 Chandigarh Criminal Cases 113 (SC) and view taken by the Supreme Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622 (supra).
26. The law regarding the sanction is strict in its requirement that is to say that there has to be a valid sanction before trial can commence. Where the sanction has been accorded by a person who was not competent to accord the said sanction the same has been held not to be a valid sanction or for that matter where sanction has been accorded without application of mind. The same has also been held not to be a valid sanction. The criteria laid down for the grant of sanction has to fall within the four corners of the requirement of the sanction and any deviation or any omission would vitiate the trial. A trial without a valid sanction where one is necessary has been held to be a trial without jurisdiction by the court as has been held in S.N. Bose Vs. State of Bihar, (AIR 1968 Supreme Court) 1292, with the dictum that a trial without a valid sanction renders the proceedings ab initio void but State Vs Daya Chand Page No. 10/14 the terminus a quo for a valid sanction is the trial when the court is held upon to take cognizance of the offence.
27. Section 19(3) overshadows Section 19(1) as it determines the competence of sanctioning authority i.e. to say the primary consideration is miscarriage of justice and where it is so determined that the authority which had granted sanction was not competent to do so would definitely amounts to miscarriage of justice. Though the terminology used in this Section is that "The previous sanction shall denote a valid competent and lawful sanction. It does not imply a sanction issued by a person not competent to grant sanction on the relevant day i.e. the date of taking cognizance (P.A. Mohandass Vs. State of Kerala, 2004 SC 1176).
28. The requirement of existence of a sanction cannot be given a narrow interpretation namely that once cognizance is taken the sanction or its absence become irrelevance in a way this amount to invoking hypallage logic. If cognizance itself cannot be taken in the absence of sanction and impact strictly speaking if there did not exist any valid sanction it cannot be said that the cognizance of the offence was taken by itself and as such cannot cured the detach in this regard. Hence the prosecution of the accused shall stand vitiated. (Narsimachari Vs. State Inspector Police A.C. Branch Bureau, Qubdapah District, 2003 Crl. LJ 3315).
State Vs Daya Chand Page No. 11/14
29. Granting of a sanction u/s 19 of Prevention of Corruption Act is not a mere formality, it is necessary that all the facts, on which the proposed prosecution is based must be put before the Sanctioning Authority and the burden of proving the same is squarely on the shoulder of the prosecution. If any material facts which go to the root of the whole matter and investigation are not brought to the knowledge of the Sanctioning Authority it cannot be said that the Sanctioning Authority applied his mind before granting sanction for prosecution.
30. The bare reading of section 19 of the POC Act would indicate that it aims at preventing harassment and vexatious prosecution of a public servant. It assures that an honest public servant should not be in a position to oblige everyone and on denial, may have to incur displeasure of some of them. This displeasure may even result in vexation and malicious prosecution for offence relating to discharge of his official duties. The legislation therefore thought of providing a reasonable protection to public servant in the discharge of his official duties so that they can continue performing their duties and obligations undeterred by vexation and unnecessary prosecution (Jaswant Singh Vs. State of Punjab, 1958 Supreme Court, AIR Page no. 124).
31. The grant of proper sanction by a competent authority is a sine quo non for taking cognizance of the offence. It is desirable that the State Vs Daya Chand Page No. 12/14 question, as regards sanction, may be determined at an early stage. It is also not within the jurisdiction of this court to require sanction by the prosecution but it only prosecutes after the sanction has been accorded and in the absence of the same, it cannot call for one.
32. As regards the testimony of PW11 is concerned, the same requires minute scrutiny despite the fact that the counsel for accused has only taken a perfunctory defence that the witness had accorded sanction in a mechanical way.
33. In view of the said defence, what it circumscribes, has to be determined i.e. Did the sanctioning authority apply his mind and in doing so did he peruse the documents. The evidence led by the prosecution does not give the said impression as the witness PW11 Gyanesh Bharti has stated that he had gone through the raid report which is factually not commensurate with the case of the prosecution as the case in hand does not involve any raid whatsoever but finds its genesis from a complaint lodged by Shailendra Goel and Neeraj Goel respectively. When there was no raid, there cannot be raid report.
34. Another point that goes to show that the sanctioning authority did not apply its mind, as testified, is that the sanctioning authority had gone through the FSL report to grant the sanction.
State Vs Daya Chand Page No. 13/14
35. This is a case which does not involve currency notes which were used in a raid and the same were coated with chemical requiring analysis from scientific laboratory nor is it a case where recovery of the GC notes were effected.
36. This is a case where a complaint had been lodged by aforesaid Shailendra Goel and Neeraj Goel and on the basis of the said complaint, the accused was enquired, who is stated to have admitted his guilt and subsequently his wife is stated to have returned the amount. Nowhere the requirement of chemical analysis was found. Hence, there was no FSL report whatsoever. But it still finds mention in the testimony of PW11.
37. The sanctioning authority PW11 had testified that he had gone through the raid report and FSL report, is somewhat beyond the purview of this case and it can be said that there was any application of mind and when it manifests that the said application is lacking, there cannot be a valid sanction.
File be consigned to record room.
Announced in the open court today on 30th November, 2010. (RAKESH SIDDHARTHA) SPECIAL JUDGE (PCACT)06 TIS HAZARI, DELHI State Vs Daya Chand Page No. 14/14