State
Inspector of Police Visakhapatnam Vs. Surya Sankaram Karri [2006] Insc
520 (24 August 2006)
S.B.
Sinha & Dalveer Bhandari S.B. Sinha, J.
The
State is in appeal before us impugning the judgment and order dated 31st
October, 2003 passed in favour of the respondent herein by the High Court of
Judicature of Andhra Pradesh at Hyderabad whereby and where under a judgment of
conviction and sentence passed as against the respondent under Section 13(2) of
the Prevention of Corruption Act, 1988 ('the Act', for short) and sentencing
him to undergo Rigorous Imprisonment for 3 years and to pay a fine of Rs.4 lakhs
and in default to suffer Simple Imprisonment for one year, was set aside.
The
respondent was an Assistant Station Master. He was working in the South Eastern
Railway, Vizianagaram, Andhra Pradesh from 16.12.1961 to February, 1984. He was
promoted to the post of Commercial Inspector and was working in that capacity
from February, 1984 to July, 1986 and as Senior Commercial Inspector from July,
1986 to December, 1993. He was later promoted as Chief Commercial Inspector and
was working in the said capacity from December, 1993. His wife, Smt. K.S. Satyeswari,
who examined herself as D.W.1, was an income tax assessee. All the three sons
of the respondent had been working. A raid was conducted in his house and also
in the houses of his sons. Some incriminating documents were allegedly
recovered.
During
investigation, not only the statement of the respondent, but also that of his
wife and three sons were recorded by the Investigating Officer. The
investigation was admittedly carried on by P.W.41 Shri K. Biswal and P.W.42 Shri
N. Vishnu. Sanction of prosecution was accorded by P.W. 37 Shri Debaraj Panda,
the then Senior Divisional Commercial Manager, South-Eastern Railway.
The
check period under consideration was 1.1.1986 to 9.8.1994. The prosecution
proceeded on the basis that whereas the total income of the respondent and his
family members was Rs.6,73,203.69p. including loans and advances during the
aforesaid check period, the respondent and his family members had expended
Rs.3,31,068.75p.; and acquired assets both movable and immovable worth
Rs.11,66,873.84p. during the said period. It was also alleged that respondent
was in possession of assets and pecuniary resources in his own name as also in
the name of his wife to the tune of Rs.6,54,738.90p., which was
disproportionate to his known sources of income as on 9.8.1994.
Before
the learned Special Judge the respondent examined defence witnesses, including
his wife (D.W.1), his three sons, namely, Shri Karri Satyanarayana Sarma
(D.W.2), Shri K. Srinivas (D.W.3), Shri K. Rama Sarma (D.W.4) and one Engineer,
D.W.5 Shri A. Sridhar, who submitted his report in regard to valuation of
respondent's house.
The learned
Special Judge in his judgment, inter alia, opined that the sons of the
respondent, other than his eldest son, did not make any contribution from their
salaries. Reliance was placed on the valuation report submitted by the Engineer
of the Income Tax Department, P.W.36 in preference to the Valuer appointed by
accused, i.e., D.W.5. The High Court, however, by reason of the impugned
judgment, inter alia, held that keeping in view the societal norms prevailing
in India, vis-`-vis, the developed countries, the sons of appellant presumably
make substantial contribution from their income to their parents.
The
High Court also relied upon a large number of decisions of this Court in coming
to the conclusion that if a reasonable margin of 10% is accorded, the respondent
cannot be said to have failed to have proved in showing means for acquiring
assets held and possessed by him as also by his wife.
Mr. A.
Sharan, learned Additional Solicitor General appearing on behalf of the
appellant in support of this appeal would submit that –
-
The wife of the
respondent-D.W.1, having categorically stated that only the eldest son, namely,
D.W.2 had been making contributions to the family, the learned Special Judge
must be held to have arrived at a correct finding of fact that other sons of
the respondent having been residing separately had not been making any such
contribution.
-
The rental
income of Rs.88,318/- disclosed in the income tax return filed by D.W.1, was
reckoned twice by the High Court and if the said sum is taken into
consideration towards the income of the respondent, the High Court must be held
to have committed an error in holding that the assets held by the respondent
were marginally higher than the known sources of income.
-
The learned
Special Judge having assigned sufficient and cogent reasons to accept the
report of the Engineer appointed by the prosecution, the same should not have
been reversed by the High Court.
-
The High Court
also committed an error in calculating the household expenditure of the respondent.
Mr.
A.T.M. Ranga Ramanujam, learned Senior Counsel appearing on behalf of the
respondent, however, submitted :
-
The learned
Special Judge committed a manifest error in so far as he failed to take into
consideration that the investigation carried out by the P.Ws. 41 and 42 was
wholly illegal having not been carried out under the authorization of the
Superintendent of Police; and
-
No document
having been brought on the records to show that P.W.37 Shri Debaraj Panda was
delegated with the power to accord sanction of prosecution as against the
respondent, the same was vitiated in law.
Although,
we have strong reservation in regard to the manner in which the High Court
dealt with the entire appeal, but we are satisfied that the investigation
carried out by the Investigating Officers was wholly unfair.
We,
for the reasons stated hereinafter, are also of the opinion that the P.W.37
could not be said to have been delegated with the power of according sanction
of prosecuting the respondent.
The
Prevention of Corruption Act was enacted to consolidate and amend the law
relating to prevention of corruption and for matters connected therewith. The
Act is a Special statute. It contains special procedure not only in regard to
the manner in which the complaint is to be filed, but also the mode and manner
in which the investigation into an offence thereunder is required to be carried
out. It provides for trial by Special Judges appointed for the said purposes.
Section
26 of the Act lays down that the powers of the Special Judges.
He has
a power to try summarily under Section 6. Section 13 provides for criminal
misconduct by a public servant. The fact that respondent is a public servant is
not in dispute. Section 13(e) specifies criminal misconduct of a public servant
where, an accused himself or any person on his behalf, is in possession or has,
at any time during the period of his office, been in possession for which the
public servant cannot satisfactorily account, of pecuniary resources or
property disproportionate to his known sources of income.
Provisions
of the 1988 Act, no doubt, like the 1947 Act seek to protect public servant
from a vexatious prosecution. Section 17 provides for investigation by a person
authorized in this behalf. The said provision contains a non-obstante clause.
It makes investigation only by police officer of the ranks specified therein to
be imperative in character. The second proviso appended to Section 17 of the
Act provides that an offence referred to in clause (e) of sub-Section (1) of
Section 13, shall not be investigated without the order of a police officer not
below the rank of a Superintendent of Police. Authorization by a Superintendent
of Police in favour of an officer so as to enable him to carry out
investigation in terms of section 17 of the Act is a statutory one. The power
to grant such sanction has been conferred upon the authorities not below the
rank of Superintendent of Police. The proviso uses a negative expression. It
also uses the expression "shall". Ex-facie it is mandatory in
character. When the authority of a person to carry out investigation is
questioned on the ground that he did not fulfil the statutory requirements laid
down therefor in terms of the second proviso, the burden, undoubtedly, was on
the prosecution to prove the same.
It has
not been disputed before us that the Investigating Officer, P.W.41, did not
produce any record to show that he had been so authorized. Shri K. Biswal, the
Investigating Officer, while examining himself as P.W.41, admitted that he had
not filed any authorization letter stating :
"I
have received the specific authorisation from S.P., C.B.I., to register a case
but I have not filed the said authorisation letter." No explanation has
been offered therefor. Even no attempt was made to bring the said document on
record at a later stage.
Although
a specific contention was raised in that behalf on behalf of respondent, the
learned Special Judge negatived the same holding :
"It
is contended that P.Ws. 41 and 42 failed to produce orders of the
Superintendent of Police, C.B.I., Visakhapatnam which are mandatory under the second proviso to section 17
of the Prevention of Corruption Act, for any Inspector of Police to take up
investigation into an offence under Section 13(1)(e) of the Act. No doubt, the
prosecution did not file the orders of the Superintendent of Police, C.B.I., Visakhapatnam in this regard. But, P.W.41 deposed
that he registered this case and issued Ex.P-54 F.I.R. on the instructions of
Superintendent of Police, C.B.I., Visakhapatnam. In the cross-examination, he deposed that he received
specific authorization from the Superintendent of Police, C.B.I, Visakhapatnam to register the case. Ex.P-54
F.I.R.
which
was forwarded to this Court by the Superintendent of Police, C.B.I./S.P.E., Visakhapatnam, shows that P.W.41 deposed that as
per the orders of the Superintendent of Police, C.B.I., Visakhapatnam, he took up investigation in this
case. Though it is contended by the defence counsel that the orders of the
Superintendent of Police authorizing P.Ws. 41 and 42 to investigate into this
case were not filed into court, there is absolutely no cross-examination of P.Ws.
41 and 42 to investigate into this case inspite of there did not in fact give
any such orders authorizing P.Ws. 41 and 42 to investigate into this case inspite
of there being lengthy cross-examination of those witnesses." The approach
of the learned Special Judge, to say the least, was not correct. When a
statutory functionary passes an order, that too authorizing a person to carry
out a public function like investigation into an offence, an order in writing
was required to be passed. A statutory functionary must act in a manner laid
down in the statute. Issuance of an oral direction is not contemplated under
the Act. Such a concept is unknown in Administrative Law. The statutory
functionaries are enjoined with a duty to pass written orders.
Submission
of the learned Additional Solicitor General was that the respondent did not
further cross-examine the said witnesses to the effect that no such order in
writing was passed, and thus, he cannot be said to have been prejudiced in any
manner whatsoever. We do not agree.
It is
now well settled that when a document being in possession of a public
functionary, who is under a statutory obligation to produce the same before the
court of law, fails and/or neglects to produce the same, an adverse inference
may be drawn against him. The learned Special Judge in the aforementioned
situation was enjoined with a duty to draw an adverse inference. He did not
consider the question from the point of view of statutory requirements, but
took into consideration factors, which were not germane.
Illegality
apart, the manner in which the investigation was conducted, is condemnable. The
least that a court of law would expect from the prosecution is that the
investigation would be a fair one. It would not only be carried out from the
stand of the prosecution, but also the defence, particularly, in view of the
fact that the onus of proof may shift to the accused at a later stage. The
evidence of P.W.41 raises doubts about his bona fide. Why he did not examine
important witnesses and as to why he had not taken into consideration the
relevant documentary evidence has not been explained. He did not even care to
ascertain the correctness or otherwise of the status of both of the respondent
and his wife before the Income Tax Department. Above all, he did not produce
before the Court the statements made by the appellant, his wife and those of
his sons, although they were relevant. Had the statements of D.W.3 and D.W.4
been produced before, the learned Special Judge might not have opined that the
sons of the respondent, other than D.W.2, did not make any contribution to
their parents at all. If such statements were made by the said witnesses before
the Investigating Officer, omission on the part of D.W.1, the wife of the
respondent, to state the same before the Special Judge might have taken a back
seat and the statements of other sons of the respondent, namely, D.W.3 and
D.W.4 might not have been ignored by the learned Special Judge.
The
courts are obliged to go into the question of prejudice of the accused when the
main investigation is concluded without a valid sanction.
{See
State of Andhra Pradesh vs. P.V. Narayana [(1971) 1 SCC 483
: AIR 1971 SC 811]. } It is true that only on the basis of the illegal
investigation a proceeding may not be quashed unless miscarriage of justice is
shown, but, in this case, as we have noticed hereinbefore, the respondent had suffered
miscarriage of justice as the investigation made by P.W.41 was not fair.
The
learned Trial Judge furthermore also committed a serious error in so far as he
failed to take into consideration that Shri Debaraj Panda, who examined himself
as P.W.37, being a Senior Divisional Operations Manager, was not competent to
accord sanction for prosecution of the respondent herein. He, in his evidence,
accepted that under the Rules he was not the competent authority to remove him
from service. However, he stated that he had been delegated with power of
removing the Chief Commercial Inspector of the Headquarter of South-Eastern
Railway. He also stated :
"It
is not true to suggest that only General Manager and Divisional Railway Manager
are the competent persons to remove the accused from service and also to accord
sanction to prosecute him. It is not true to suggest that I am not competent to
remove the accused from service and also accorded sanction to prosecute him.
The delegation of powers in respect of certain officers by the Head quarters,
South Eastern Railway are available in a Booklet called as "Delegation of
Powers" on Establishment matter." The purported delegation of power
had never seen the light of the day. No reliance thereupon could have been
placed to arrive at a finding that the said witness was authorized to accord
sanction. The learned Special Judge did not apply his mind to these aspects of
the matter at all.
This
question came for consideration before this Court in Sailendra Nath Bose vs.
State of Bihar [AIR 1968 SC 1292], wherein it was
categorically held :
"P.W.
I deposed that the appellant was a Class III officer and that he could have
been appointed or dismissed by the Deputy Agent Personnel who is subordinate to
him. Therefore he (P.W. 1) was competent to grant previous sanction under
Section 6(1) of the Prevention of Corruption Act. P.W. 1's assertion that the
appellant could have been removed from his office either by the Deputy Agent
Personnel or by himself was challenged in his cross-examination. The trial court
as well as the High Court have relied on the oral evidence of P.W. 1 in coming
to the conclusion that the sanction granted is valid. In our opinion those
courts erred in relying on oral evidence in deciding the validity of the sanction
granted. Hence, we asked the learned counsel for the respondent to satisfy us
with reference to the rules on the subject that P.W. 1 was competent to remove
the appellant from his office. For this purpose we granted him several
adjournments. Though our attention has now been invited to some rules, those
rules do not establish that P.W. 1 was competent to grant the sanction in
question.
As per
Rule 134 of the Indian Railway Establishment Code, published in 1959,
authorities competent to make first appointment to non-gazetted posts in the
Indian Railways are the General Manager, the Chief Administrative Officer or
lower authority to whom he may delegate power. There is no evidence to show
that this power has been delegated to the heads of the department. No provision
in the Indian Railway Establishment Code, 1959 prescribing the authorities
competent to remove from office a class III officer was brought to our notice.
But the prefatory note to Vol. I of the Code says, "The revised Chapter
XVII and revised Appendices I and XII will be printed later for inclusion in
this edition. Till such times these are printed, the rules and provisions
contained in Chapter XVII and Appendices IV and XVIII in the 1951 Edition
(Re-print) as amended from time to time shall continue to apply." In State
of Karnataka through CBI vs. C. Nagarajaswamy
[(2005) 8 SCC 370], it was held :
"Grant
of proper sanction by a competent authority is a sine qua non for taking
cognizance of the offence. It is desirable that the question as regard sanction
may be determined at an early stage." When a sanction is granted by a
person not authorized in law, the same being without jurisdiction, would be a
nullity.
For
the reasons aforementioned, we are of the opinion that the impugned judgment need
not be interfered with. The appeal is, accordingly, dismissed.
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