Orissa High Court
Niranjan Khatua vs State Of Orissa on 16 May, 1990
Equivalent citations: 1990CRILJ2790
JUDGMENT V. Gopalaswamy, J.
1. This appeal is preferred by the accused appellant against the judgment dated 15-1-1983 passed by the Special Judge, Vigilance, Sambalpur, convicting him under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and sentencing him thereunder to undergo rigorous imprisonment for a period of one month and to pay a fine of Rs. 500/ -, in defaut to undergo rigorous imprisonment for a further period of two months and further convicting him under Section 161, I.P.C. without imposing any separate sentence thereunder.
2. The prosecution case may be briefly stated as follows:
The appellant was serving as a Lower Division Clerk in the office of the Employment Exchange, Dhenkanal, during the relevant period. The complainant (P.W. 4) got himself registered in the Employment Exchange. In January, 1979 some posts of labourers fell vacant in the Spinning Mill at Talbarkoti and the date of interview for filling up those posts was fixed on 30th April, 1979. The complainant was anxious to get one of those posts and so on 17-4-1979 he approached the accused for the issue of a call card when the accused had demanded of him to pay him a sum of Rs. 10/- for issuing the call card and when the complainant feeling aggrieved by the demand of the bribe reported the matter to the Superintendent of Police, Vigilance, Sambalpur on 18-4-1978 and the complainant's report against the accused was treated as the F.I.R. (Ext. 6) in the case. On the basis of the F.I.R. as directed by the S.P., Vigilance, R. N. Mohapatra, the Inspector of Vigilance, took up the investigation of the case and decided to lay a trap for catching the accused redhanded. On the morning of 19-4-1979 the Vigilance Officers, namely, P.Ws. 2, 3 and 6 and the Magistrate P.W. 1 assembled in the D.I.B. Office, Dhenkanal, and the complainant and the accompanying witness P.W. 5 also came there. In the presence of the others, the complainant stated the facts of the case and produced Rs. 20/- comprising of two five rupees notes and one ten rupee note (M.Os. V, VI and VII) which he proposed to give as a bribe to the accused for issuing two call cards, one for him and the other for Pramod Kumar Sahu. The three currency notes were treated with phenolphthalein powder and then given to the complainant with instructions to pay the same to the accused on his demand. The I.O. drew up the preparation report Ext. 1 stating about all the preliminary steps taken for trapping the accused. As earlier decided, the complainant and the accompanying witness P.W. 6 proceeded ahead to the office of the accused and the other members of the trap party including one Rabinarayan, L.D.C., Judicial Section of the Collectorate, and the D.S.P., Vigilance, followed them and took up their position near the Employment Exchange Office and waited for the prearranged signal from P.W. 5. As soon as the accused saw the complainant, he came out of his room on to the verandah of the office and then demanded the bribe amount from the complainant when the complainant gave him the three tainted currency notes stating that he wanted to have his call card as well as the call card of Pramod Kumar Sahu. The accused received the three currency notes and kept them in his pant pocket and soon thereafter P.W. 5 gave the prearranged signal to the other members of the trap party and on seeing the signal all of them rushed into the room of the accused and then the I. C., disclosing his identity, charged the accused that he accepted the bribe amount. Then the hand wash and the pocket wash of the accused with sodium carbonate solution were taken when the solution turned pink. The accused produced the tainted currency notes from his left side pant pocket and the same were seized, by the I.O. under the seizure list Ext. 2. The Magistrate found that the numbers on the G.C. notes recovered from the accused tallied with the numbers earlier noted by him on a chit at the preparatory stage of the trap. On completion of the invetigation, after obtaining the necessary sanction for prosecuting the accused, the charge-sheet was submitted.
3. The accused pleaded that he never demanded any bribe from the complainant at any time. According to him, the complainant as well as some of the vigilance officers had approached the accused for registration of the names of several candidates, even without their complying with the necessary formalities and as he was not prepared to go out of the way to register their names, they bore grudge against him and foisted this false case. D. W. 1 was examined by the accused in support of his plea.
4. The prosecution has examined in all six witnesses to prove its case. P.W. 1 is the Revenue Officer-cum-Executive Magistrate, Dhenkanal, and P.W. 3 is an Inspector of Vigilance, Sambalpur, and they were the members of the trap party. P.W. 2, S.I. of Vigilance, took an active part at the preparatory stage of laying the trap, but he did not accompany the raiding party. P.W. 4 is the decoy and P.W. 5 is the accompanying witness who claims to have witnessed the acceptance of the bribe by the accused. P.W. 6 is the I.O. in the case.
5. At the outset it would be appropriate to consider the prosecution evidence regarding the demand and acceptance of the bribe by the accused. It is only the complainant P.W. 4 and the accompanying witness P.W. 5 who have deposed on this aspect. According to the complainant, on 19-4-1979 he proposed to give the bribe amount of Rs. 20/- to the accused for obtaining from him his call card as well as the call card of Pramod Sahu. The evidence of P.W. 4 shows that he and Madhab Jena (P.W. 5) went to the room of the accused in the Employment Exchange office and found the accused sitting in his room and as soon as the accused saw him (P.W. 4), he came out of his room and as they were on the verandah the accused demanded the bribe amount from him and then he (P.W. 4) paid him the entire sum of Rs. 20/ - telling him that he required not only his call card but also the call card of Pramod Sahu and the accused received the amount from him and kept it in his pant pocket.
In Panalal D. Rathi v. State of Maharashtra, AIR 1979 SC 1191 : (1979 Cri LJ 936), their Lordships of the Supreme Court observed thus (Para 8):--
"......After introduction of Setion 165-A of the I.P.C. making the person who offers bribe guilty of abatement of bribery the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon.
In Gulab Mahmood A. Malek v. State of Gujarat, AIR 1980 SC 1558 : (1980 Cri LJ 1096), it was observed by the Supreme Court as follows (para 6):
"... ... ...the complainant is in the nature of an accomplice, his story prima facie is suspect."
So in the present case the prosecution has examined P.W. 5 as an independent witness to corroborate the above evidence of the complainant (P.W. 4) on the material aspect that as the accused demanded of the complainant to pay him the bribe, the latter paid him the bribe.
6. The evidence of P.W. 5 in chief-examination shows that he and the complainant went to the office of the accused and as soon as the accused saw the complainant, he came out of the office on to the verandah and when the accused enquired from the complainant if he had brought Rs. 10/- for taking the call card, the complainant replied in the affirmative and further told the accused that he had brought Rs. 10/- from Pramod Kumar Sahu also and he wanted two call cards and then as demanded by the accused the complainant gave the three notes to the accused who kept them in his left side pant pocket. It is in the evidence of P.W. 5 that thereafter he came out to the gate of the office and gave the prearranged signal by raising the napkin when the other members of the trap party came to the office room of the accused. So admittedly the other members of the trap party are not witnesses to the actual giving of the bribe amount and the acceptance of the same by the accused. In cross-examination P.W. 5 stated, that the room where the accused sits and the verandah are intervened by another room and while one goes from the verandah to the room of the accused, he has to pass through an intervening room and that intervening room is used by the outsiders for taking rest. P.W. 5 further stated that the complainant paid the bribe amount to the accused in that intervening room in his presence. It is in the evidence of P.W. 5 that at the time when the bribe amount was paid there were many other persons in that room, of whom he knew Raghunath Nayak, Narayan Nayak and Rabinarayan Dalai. P.W. 5 deposed in cross-examination that he was at a distance of about 5 to 6 cubits from the complainant and the accused, when the payment took place, and there were no persons standing between him and them, and the other persons were at a distance of 2 to 3 cubits from them. P.W. 5 admitted in cross-examination that the conversation between the complainant and the accused was in a low voice and it could be heard by a person at a distance of 2 to 3 cubits. So in view of his own admission, he (P.W. 5) could not have over-heard the conversation that took place between the accused and the complainant at the relevant time as he was at a distance of about 5 to 6 cubits from them. The evidence of P.W. 5 in cross-examination that the bribe amount was paid in the intervening room falsifies the version of the complainant that the bribe amount was paid on the verandah. That apart, it is highly improbable that on seeing the complainant, the accused would be leaving his seat and, after crossing the intervening room, would go the verandah with the complainant for accepting the bribe, as outsiders are always bound to be present on the verandah and in fact, it is in the evidence of the complainant that some other persons were present on the verandah when the accused accepted the bribe amount from him. So, on such a material aspect as the place where the bribe amount was demanded and accepted, the prosecution version is materially contradictory.
7. The evidence of P.W. 4 shows that after the accused accepted the bribe amount, he entered his room and started writing the call card and while the accused was so writing out the call card, the members of the raiding party entered into the room. It is in his evidence that one police officer seized the call card which the accused was writing. It is the complainant's case that for issuing him the call card the bribe amount was paid to the accused. So if the accused was really writing the call card of the complainant at the time the raiding party rushed into his room, then it would have greatly probabilised the truth of the prosecution story. But peculiarly enough no such call card, either partly written, or fully written, by the accused is proved in the case and there is no explanation from the side of the prosecution for withholding such an important piece of evidence. So it is reasonable to draw an adverse inference against "the prosecution on this score.
8. It is in the evidence of P.W. 5 that when the complainant paid the bribe amount to the accused in the intervening room, many other persons including Raghunath Nayak, Narayan Nayak and Rabinarayan Dalai were also present in that room. It is highly improbable that the accused would have accepted the bribe amount in the presence of so many others. In any event, there is no explanation from the side of the prosecution as to why any of the persons, named by P.W. 5 as the persons present at the time of occurrence, was not examined by the prosecution. Failure to examine independent witnesses present when bribe was offered and accepted may prove fatal to the prosecution case. (See Gulam Mahmood Malek's case (1980 Cri LJ 1096) (SC) (supra).) So, in the facts of the present case, non-examination of the other independent witnesses who were stated to be present at the time when the bribe was allegedly offered and accepted is another circumstance which goes against the prosecution.
9. It is the common practice in a trap case that an independent witness would be accompanying the decoy, to witness the actual offer and acceptance of the bribe and to overhear the conversation that -takes place between the accused and the complainant at the relevant time. So such a witness must be really independent so that his evidence can be safely relied on. The decoy is a highly interested witness and so a person closely associated with him is likely to share his interestedness and so no useful purpose would be served by making such a person as the accompanying witness. The proposition that it is always necessary to associate really independent and respectable witnesses in a trap party to inspire confidence in the mind of the Court needs no emphasis. (See Raghubir Singh v. State of Punjab, AIR 1976 SC 91 : (1976 Cri LJ 172)). The I.O., P.W. 6 is aware of this position. P.W. 6 made an attempt to impress upon the Court that the accompanying witness Madhabananda Jena (P.W. 5) is an independent witness as he was picked up by him at random, when he (P. W. 6) stated in his evidence that he picked up P. W. 5 on 19-4-1979 from a hotel and took him to the D.I.B. Office. P.W. 6 stated in cross-examination that he had no previous acquaintance with P.W. 5 and he picked him up at about 8.15 a.m. and on his questioning P.W. 5 if he would be a witness in a Vigilance case, the latter agreed to it. The complainant (P.W. 4) stated in his chief-examination that on the relevant morning, from his village he reached Dhenkanal at about 9 a.m. and Madhabananda Jena (P.W. 5) had come with him from his village. So the above evidence of P.W. 4 falsifies the version of the I.O. that he picked up Madhabananda Jena at about 8.15 a.m., as according to P.W. 4, he and Madhabananda Jena reached Dhenkanal only at about 9 a.m. P.W. 5 admitted in cross-examination that Pramod has married his sister. Hence, from the evidence it is seen that P.W. 5 belongs to the same village as that of the complainant and he also came with the complainant to Dhenkanal on the relevant morning and Pramod Kumar Sahu (on whose behalf the complainant claims to have paid a bribe of Rs. 10/- to the accused) has married his sister. So P.W. 5 is a highly interested witness and the evidence of the I.O. that he picked him (P.W. 5) at random and made him join the trap party cannot be accepted as true.
10. It cannot be overlooked that the statement of the accompanying witness Madhabananda Jena (P.W. 5) was recorded under Section 164, Cr. P.C. As observed by the Supreme Court in Balak Ram v. State of Uttar Pradesh, AIR 1974 SC 2165 : (1974 Cri LJ 1486), such a witness feels tied to his previous statement given on oath and has but a theoretical freedom to depart from his earlier version. A prosecution for perjury could be the price of that freedom*. So, that is another reason why the evidence of the accompanying witness (P.W. 5) must be approached with caution. This tying up process was done by P.W. 1 when he recorded the statement of P.W. 5 under Section 164, Cr. P.C. P.W.1, the Magistrate was asked to participate in the trap party, so that he would be an independent witness to the trap. In my view, as P.W. 1, the Magistrate, is himself a witness in the case, it was not proper on his part to have recorded the statement of P.W. 5 under Section 164, Cr. P.C. and this is a circumstance which reveals his zeal in the case.
11. It is necessary to consider the evidence regarding the circumstances which led to the alleged trapping of the accused on 19-4-1979 at the instance of the complainant. The complainant alleges that he paid the bribe amount of Rs. 20/- to the accused for issuing two call cards, one for him and the other for Pramod Kumar Sahu for securing a job in the spinning mill. It is not in dispute that registration of a person in the employment exchange is a condition precedent before issuing a call card to him. In chief-examination P.W. 4 claims that he got his name registered in the employment exchange in January, 1979 and the accused was the clerk who registered his name. In cross-examination P.W. 4 stated that he does not remember the year, month and the date of registration of his name in the employment exchange. There is no reliable evidence from the side of the prosecution to prove that the complainant was actually registered in the employment exchange. His registration card is neither produced nor proved in the case. In chief-examination P.W. 4 stated "on the 17th of a month" he approached the accused for the call card and the accused had told him that he was charging Rs. 10/ - for each card and so, he does not specifically state as to in which month or on which date he approached the accused for the call card. P.W. 4 deposed in cross-examination that he came to the Employment Exchange Office for about 10 to 12 times in connection with the registration of his name and enquired regarding the call cards and that on those occasions he had no talk with the accused and he was making inquiries only from the peon and he knew before hand that for call cards bribe amount has to be paid and he had, therefore, decided that he would obtain a call card on payment of bribe. The above evidence reads that he had his own prior knowledge regarding the mode of getting a call card and on the basis of that knowledge he thought of paying a bribe to get the call card, on his own accord, and there is nothing in that evidence to suggest that the accused had demanded of him any bribe to issue the call card. In the cross-examination P. W. 4 contradicted himself when he stated in the first instance that on 17th April, 1979 he did not come to the Employment Exchange Office and subsequently again stated that he, Biranchi Sethi and Promod Sahu came to the Employment Exchange Office at about 10 a.m. on 17-4-1979 and at that time the accused refused to issue the call card unless the bribe amount was paid. So according to P.W. 4, Biranchi Sethi and Pramod Sahu were also present at the time the accused allegedly had made the demand for payment of bribe to issue the call card, but the said Biranchi Sethi and Pramod Sahu were not examined as witnesses to prove that the accused did make such demand for payment of a bribe for issuing the call card. In view of the nature of the evidence of the complainant regarding the alleged demand made by the accused for the issue of a call card, without independent corroboration, his evidence on this aspect cannot be safely relied on. The non-examination of Biranchi Sethi and Pramod Sahu creates a serious doubt about the truth of the testimony of P.W. 4 that the accused made an illegal demand from him on 17-4-1979. So there is no reliable evidence to show that there was a prior demand made by the accused for the payment of the bribe in question in pursuance of which the complainant had allegedly paid the bribe on the relevant day. Once there is no reliable evidence to prove the prior demand it is a circumstance which very much weighs against the prosecution. (See G. V. Nanjundiah v. State (Delhi Administration), AIR 1987 SC 2402 : (1988 Cri LJ 152)).
12. The prosecution evidence as to how the complainant secured Rs. 20/- which he had allegedly paid to the accused is not free from suspicion. The evidence of the complainant shows that on 17-4-1979 as the accused had demanded the bribe of Rs. 10/-for the call card, he was annoyed at it and decided to take action against him and as he had no money with him, with the help of a constable, he managed to get a free lift in a truck from Dhenkanal to Sambalpur and reached there at about mid-night. It is in his evidence that with the Vigilance Officer he reached Dhenkanal at about 8 p.m. on 18-4-1979 and on that night he went to his village. He stated that he secured a loan of Rs. 20/-from Biranchi Sethi of his village and came to Dhenkanal for payment of the said amount to the accused as bribe. The version in the F.I.R. is discrepant in that according to the F.I.R. the complainant had borrowed only Rs. 10/-from Biranchi Sethi and the balance sum of Rs. 10/- was given to him by Pramod Sahu. The evidence of the I.O. P.W. 6 shows that he left Sambalpur for Dhenkanal on 18-4-1979 at about 4 p.m. and reached Dhenkanal at about 12 O' clock in the night and he stayed in the I.B. and the complainant also stayed with him and the complainant was all along with him. P.W. 6 stated in chief-examination that on 19-4-1979 at about 7 a.m. the Magistrate, the complainant and they (the Vigilance Officials) assembled in the D.I.B. office. So the evidence of P.W. 6 discloses that the complainant was all along with him and so the complainant's version that he went to his village on the night of 18-4-1979 and came back to Dhenkanal with Rs. 20/- cannot be believed to be true. At the time the complainant left for Sambalpur admittedly he had no money and as he was all along with the I.O. there was no scope for him to go to his village and get the money as alleged by him and so the defence version that the sum of Rs. 20/ - in question was given to the complainant by the I.O. sounds probable and true.
In Rama Krishna v. State of Delhi, AIR 1956 SC 476 : (1956 Cri LJ 837), the Supreme Court made the following observations as regards the propriety of the police supplying bribe money to bring about the taking of a bribe by a public servant (para 11):
"The detection of crime may become difficult if intending offenders, especially in cases of corruption are not furnished opportunities for the display of their inclinations and activities. Where matters go further and the police authorities themselves supply the money to be given as a brive, severe condemnation of the method is merited, as in Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322 : (1954 Cri LJ 910)."
But then, as explained by the Supreme Court in Ramanlal Mohanlal Pandya v. State of Bombay, AIR 1960 SC 961 : (1960 Cri LJ 1380) (para 5):
"It does not seem to be the law that if the money given as bribe is provided by a particular officer of the police then the evidence of all the witnesses becomes evidence of accomplices and must be looked at with suspicion."
In the present case, the fact that the money given as bribe was provided by the Vigilance reveals their over zealousness to trap the accused and this is a factor which should be kept in mind while assessing the prosecution evidence in the case.
13. The other members of the trap party were waiting outside the Employment Exchange Office to receive the pre-arranged signal from P.W. 5 and on receiving such signal they rushed into the room of the accused. According to the prosecution it was in the presence of those trap witnesses the three tainted currency notes (M.Os. V, VI and VII) were recovered from the possession of the accused. L. Mohapatra, D.S.P., Vigilance, was also a member of the trap party and he was present at the time of the alleged recovery of the tainted currency notes from the pocket of the accused. But peculiarly enough though he was the D.S.P., Vigilance, he was not examined as a witness in the case and there is no explanation from the side of the prosecution for such non-examination. Likewise one Rabinarayan, a Clerk in the Judicial Section of Dhenkanal Collectorate, an independent witness, was also a member of the trap party and witnessed the alleged recovery of the tainted currency notes from the possession of the accused. But he too was not examined as a witness by the prosecution, and there is no explanation from the side of the prosecution for such non-examination. P.W. 1 is the Executive Magistrate who was another member of the trap party. It is in the evidence of P.W. 1 that he noted the numbers of the three currency notes (M.Os. V, VI and VII) in a separate chit. He stated that Rabinarayan Mohanty (Clerk of the Dhenkanal Collectorate) also noted the numbers of the three currency notes in a paper. It is in the evidence of P.W. 1 that after the recovery of the three currency notes the numbers of the notes were compared with the numbers in the notes kept by him and Rabinarayan and those numbers tallied. But the chit kept by P.W. 1 and Rabinarayan containing the numbers of the notes were not produced before the Court and the said Rabinarayan, as earlier stated, was not even examined as a witness in the case. So the non-examination of these material witnesses who had actually seen the alleged recovery of the currency notes from the accused is another circumstance which goes very much against the prosecution and more so as there is no explanation from the side of the prosecution for such non-examination.
14. P.W. 4 has stated that the accused had received the bribe money of Rs. 20/- from him and kept it in his pant pocket and he does not state as to in which of the side pockets of the pant, whether right or left, the accused kept the bribe money. P.W. 5 stated that the accused kept the bribe money in his left side pant pocket. P.W. 4 is the person, who gave the tainted money to the accused and P.W. 5 witnessed the acceptance of the money by the accused, but both P. Ws. 4 and 5 do not say as to with which hand the accused received the money or whether he received the money with both the hands, before the money was kept in the left side pant pocket. P.Ws. 1, 3, 5 and 6 state that the three tainted currency notes (M.Os. V, VI and VII) were recovered from the left side pant pocket of the accused. There is nothing in the evidence to show that the accused was in the habit of using his left hand more commonly than his right hand. So the submission of the learned counsel for the appellant that if the accused had received the money with one of his hands, then it is more probable that he might have used his right hand, is not without force. If the accused had received the currency notes with his right hand, it is normally expected of him that he would have put that currency notes more conveniently in his right side pant pocket. If the accused had received the currency notes from the complainant, it is also quite likely that he would have handled the currency notes with both his hands to find out the amount before putting the currency notes in the left side pant pocket. P.W. 3 is the Inspector of Police, Vigilance. The evidence of P.W. 3 in cross-examination shows that both the hands of the accused were washed with sodium carbonate solution, but the hand wash of one of the hands turned pink in colour and he admitted in cross-examination that he does not presently remember as to the hand-wash of which of the hands turned pink in colour. The complainant (P.W. 4) stated in cross-examination that he does not remember presently as to the hand-wash of which of the hands of the accused was taken. In trap cases of the present nature, it is proper that the hand-wash of each of the hands of the accused should be taken separately and the resulting solutions should also be preserved separately in separate bottles. The I.O. has stated that the hand-wash of the accused was taken, but he has not clearly stated as to the hand-wash of which of the hands of the accused was taken. As earlier found the evidence of P.W. 3 shows that the accused had not handled the currency notes with both his hands, otherwise the hand-wash of each of the hands with sodium carborate solution would have turned the solution pink in colour. In the peculiar facts of the present case the question as to with which of the hands the accused had received the currency notes is of considerable importance, but unfortunately the evidence in the case does not give any answer to the question. So this lacuna in the prosecution evidence assumes considerable significance in view of the defence plea that the tainted currency notes were planted in the left side pant pocket. Because after such planting if the accused were to touch his left side pant pocket even unconsciously with his left hand, the hand-wash of that hand with sodium carbonate solutaion is likely to give a pink coloured solution.
The using of currency notes tainted with phenolphthalein powder for trapping the accused is a scientific and technical method of establishing the passing of tainted currency notes from one person to the other. It is for this reason that the prosecution is required to establish all the aspects of the technical proof with great care. (See Moti Ram Jai Singh Pawar v. State of Maharashtra, (1985) 2 Crimes 18 (Bom)).
In the present case no proper care was taken in duly adopting the scientific method of investigation and the manner in which the tests were conducted with sodium carbonate solution is such that it did not give any' positive indication to show that the defence plea that the notes were planted in his pant pocket is not true.
15. Salim Khan Sardar Khan v. State of Gujarat, (1985) 2 Crimes 729 : (1985 Cri LJ 1901), is a case where the police constable was prosecuted for having accepted Rs. 50/- in the form of five ten rupees currency notes in a trap, for doing the favour of allowing the parking of the taxi plied by the informant in a prohibited (no parking) area near the bus- stand. The trial Court believing the possibility of planting, acquitted the accused while /the High Court reversed the acquittal in appeal, being of the view that the accused, a policeman in service, would have known if the currency notes were inserted into his pocket by some other persons. While reversing this finding of the High Court and acquitting the accused, the Supreme Court observed thus (at p. 1902 of Cri. L.J.):
"... Very clever people who are young and agile are often victimised by pick-pockets and only when their valuables have been lost the fact is noticed by them. The process here is the reverse one. Instead of the pocket being picked, currency notes have been inserted into into."
The above observations of the Supreme Court are relevant in the facts of the present case also. In the present case the prosecution, evidence suffers from so many serious infirmities as pointed out above that the same lends support to the defence plea that the notes were planted in the pant pocket.
16. From the evidence of the I.O. it is seen that he had ascertained from the Employment Exchange Officer that the accused was entrusted with the registration work. The I.O. admitted in cross-examination that he did not ascertain as to who was issuing the call cards and this reveals that the investigation in the case is quite superficial. Hence, there is no reliable evidence to show that the accused was in charge of the duty of issuing the call cards. According to the complainant, the accused was dealing with the registration of unemployed persons. So unless the accused was actually in charge of the duty of issuing the call cards, it is highly improbable that he would have demanded the complainant to pay him a bribe for the issuing of a call card. Out of the twenty rupees given to the accused as bribe, ten rupees is supposed to be the bribe for the issue of a call card for Pramod Sahu. So the said Pramod Sahu is the most competent person to say if at all the accused had demanded of him to pay the bribe for the issuing of a call card. But then the said Pramod Sahu was not examined as a witness on the side of the prosecution. So from his non-examination an adverse inference can be drawn against the prosecution.
On a careful consideration of the prosecution evidence and the probabilities of the case, I find that the prosecution has failed to prove that the accused had ever demanded of the complainant or Pramod Kumar Sahu to pay him the illegal gratification for the purpose of issuing call cards in their names. Merely because the currency notes in question were recovered from the pant pocket of the accused, that, by itself, cannot prove either the payment of the bribe to the accused or the voluntary acceptance of the Money by him. In a case of bribe, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. (See Suraj Mal v. State (Delhi Administration), AIR 1979 SC 1408 : (1979 Cri LJ 1087)).
17. Apart from the fact that the prosecution case has no merits, it must fail on the technical ground that there is no valid sanction for initiating the prosecution against the accused. An order of sanction for prosecuting the accused, who was a public servant, was required under Section 6(1) of the Prevention of Corruption Act. The sanction so accorded must be the previous sanction prior to the date of taking of cognizance of the case by the Special Judge. In this case, after the close of the prosecution case on 13-8-1982, the Court at the instance of the prosecution had straightway marked the sanction order as Ext. 7, in spite of the objection from the side of the accused. The sanction order was marked as Ext. 7 with objection on 20-9-1982. On a perusal of Ext. 7 it is seen that it does not bear any date and the sanctioning authority has merely put his initials, which it is difficult to decipher. It is well-known that 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 prosecution and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned. (See Mohd. Iqbal Ahmed v. State of Andhra Pradesh, AIR 1979 SC 677 : (1979 Cri LJ 633)). A mere look at the sanction order would show that the sanctioning authority has not attached any sanctity to the sanction order when he did not bother to give his signature or put the date in the sanction order. The burden of proving that the requisite sanction has been obtained rests on the prosecution. It is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority. (See Madanmohan Singh v. State of Uttar Pradesh, AIR 1954 SC 637 : (1954 Cri LJ 1656) and Mohd. Iqbal Ahmed v. State of Andhra Pradesh (1979 Cri LJ 633) (supra)). No witness was examined to state on oath that Ext. 7 was the sanction order given by the appropriate authority after due application of mind to the facts and circumstances of the case. Hence, I find that there is no reliable evidence to show that there is a valid sanction to prosecute the accused and on that score also, the prosecution case must fail.
18. The trial Court's approach to the evidence in the case is not superficial and it overlooked the salient features in the case. So it would be a travesty of justice if the order of the trial Court convicting and sentencing the accused is allowed to stand. On a careful analysis of the evidence on record, as discussed above, I find that the prosecution has miserably failed to prove its case against the accused on merits. The prosecution has not been able to prove that there is a valid sanction for prosecuting the accused. So on both the counts the accused is entitled to an acquittal.
19. In the result, I find the accused-appellant not guilty of any of the charges levelled against him. Hence I hereby set aside the trial Court's order of conviction passed under Section 161, I.P.C., as well as the order of conviction and sentence passed against him under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and accordingly allow the appeal.