Kootha Perumal VS State
Transport Inspector of Police, Vigilance & Anti Corruption
JUDGMENT
SURINDER SINGH
NIJJAR, J.
1.
This
appeal is directed against the judgment of the Madras High Court, Madurai Bench
dated 7th March, 2007 in Criminal Appeal (MD) No.821 of 1999 by which the High
Court affirmed the conviction and sentence recorded by the learned Special
Judge-cum-Additional District Judge-cum- Chief Judicial Magistrate, Pudukottai in
Spl.C.C.No.1 of 1994. By the aforesaid judgment, the Special Judge convicted
the appellant for offences punishable under Section 7 and 13(2) read with Section
13(1)(d) of the Prevention of Corruption Act, 1988 (in short `the Act') and sentenced
him to undergo one year rigorous imprisonment and to pay a fine of Rs.500/-, in
default of payment to undergo three months rigorous imprisonment and convicted
him for the offence under Section 7 of the Act and sentenced him to undergo six
months rigorous imprisonment and to pay a fine of Rs.300/-, in default of
payment to undergo one month rigorous imprisonment.
2.
The
prosecution case, briefly stated, is as follows: The prosecution case as narrated
by PW2, the complainant, has been extensively noticed by the trial court as
also by the High Court. For the purposes of this appeal, we may very briefly
touch upon on the relevant facts. The complainant PW2, Nayinar Mohammed, is a resident
of Pudukottai. His father is the owner of house property at door No.36, Mamundi
Madam, Adappan Vayal, Pudukottai. Since his father was seriously ill, he needed
Rs.75,000/- for his treatment. He approached a financial institution for a
loan. The institution asked him to furnish property certificate and
Municipality Tax Extract of the house owned by his father. He gave a petition
through his friend Noorul Ameen on 17th August,1993, with the requisite Rs.15/-
court stamp affixed on the same (Ex.P3). His friend paid Rs.15/- to the Municipality
and obtained a challan Ex.P4. PW4, who was the writer in the record room, knew
the accused and made the necessary entry in the ledger at page No.40on 19th
August, 1994. The application of the complainant was given as No.C.A.2650 of
1993. Similar entry was made with regard to payment of Rs.15/- on 17th August,1993
by the cashier of Pudukottai Municipality (PW6).The payment was made through
challan No.6789 (Ex.P4).Govindrajan, PW5, was a Junior Assistant in the Municipality
compared the copy of the tax extractNo.2650 with the original and found the
same to be correct and put his signature. Ex.P7 is the signature of the
aforesaid Junior Assistant.
3.
When
the complainant enquired about the progress of the petition, the appellant informed
him that the file will only come to him on 23rd August, 1993. He demanded a sum
of Rs.50/- as a bribe from the complainant for delivery of the tax extract
which, according to him, was ready for delivery. On that date, the complainant
did not have any money. In any event, he was not inclined to give any bribe to
the appellant. He, therefore, made a written complaint to the Inspector(PW8)
Anti Corruption, Rajagopalapuram. The complaint is Ex.P5. A case was duly
registered by PW8 as CrimeNo.4 of 1993 under Section 7 of the Act. The First Information
Report (Ex.P10) was duly signed by the complainant. Thereafter, another Inspector
in Anti Corruption, Pudukottai recorded the statements of PW2 and PW3 on 24th August,
1993. Similarly the statements of PWs.4, 5, 6 and 7 were also recorded. Information
about the registration of the FIR was duly sent to the higher officials.
4.
Subsequently,
a trap was arranged, wherein one Sridhar (PW4) who was working as a Junior
Assistant in Pudukottai Public Works Department and one Balakrishnan, Junior
Assistant from Water Supply and Drainage Board were engaged as trap witnesses.
The FIR was got duly verified from the witnesses. Thereafter, the complainant
produced five ten rupees notes totalingRs.50/- (M.O.1). The notes were duly
treated with Phenolphthalein Power. A demonstration was also given to the
complainant as to how the hands of anybody who receives the aforesaid currency
when washed in water would turn red. Thereafter, PW8, the Inspector, instructed
the complainant to go to the office of the appellant and hand over the amount.
5.
On
directions of the police, the complainant along with the trap witnesses went to
the office of the appellant on 23rd August, 1993. He was directed to hand over
the money to the appellant and to give a signal by folding his shirt. At about
3.15 to 3.30 p.m., the complainant and PW4 Sridhar went to the Municipality by
cycle, they were followed by other jeep.
6.
At
about 4 p.m. PWs.2 and 3 entered into the office of the appellant and met him.
The appellant received the amount and put it in his pocket. At 1610 hrs., the witness
came out from the office and gave the necessary signal by folding his shirt, as
directed by PW8.
7.
On
receipt of the signal, PW8 along with the other witnesses and police party went
inside the office of the appellant. They introduced themselves. The appellant was
found to be nervous and sweating. PW9 prepared the Sodium Carbonate mixture in
two glass tumblers and asked the appellant to dip his two fingers separately
into the mixture. The mixture turned light red. The mixture was poured into a
bottle and duly labeled `R' (M.O.3).Another sample was similarly prepared with
label `N' and marked (M.O.2).
8.
He
thereafter asked the appellant about the money he has received from PW2 and the
appellant took the currency notes M.O.1 from his pocket and presented it before
PW8. On comparison, the numbers in the said currency notes recovered from the
appellant tallied with the numbers mentioned in the mahazar Ex.P7. The appellant
was thereafter asked to remove his shirt (M.O.5). The pocket of the shirt was
also subjected to Sodium Carbonate mixture test, and the solution turned into
light red colour. The solution was duly sealed in a separate bottle as M.O.4
and given the label `S'. The bottle was duly signed by PW8.
9.
On
completion of certain other formalities, the appellant was arrested and released
from bail at 1930 hrs. On completion of the entire investigation, the appellant
was duly put on trial.
10.
The
trial court convicted the appellant and sentenced him as noticed above.
Aggrieved by the judgment of the trial court, the appellant challenged the same
before the High Court in appeal. The High Court upon a detailed consideration
of the evidence affirmed the findings recorded by the trial court.
Consequently, the conviction and the sentence were confirmed. Hence the present
appeal.
11.
We
have heard the learned counsel for the parties.
12.
Learned
counsel for the appellant submitted that the entire proceedings were vitiated,
as previous sanction to prosecute the appellant was not legally obtained as required
under Section 19 of the Act. The second issue raised by the appellant is that
there was no demand of bribe made by the appellant. Thus the conviction recorded
by the courts below is perverse and deserves to be set aside.
13.
We
may first consider the issue as to whether sanction was duly obtained prior to
the prosecution of the appellant. It is the case of the appellant that the order
for sanction of the prosecution produced in this case is signed by the
Municipal Commissioner of Pudukottai. According to him, a perusal of the same would
show that it suffers from non application of mind. According to the learned
counsel, the sanction order must disclose that the sanctioning authority has
duly applied its mind and the same must be stated in the sanction order. In
support of this submission, learned counsel has relied on a judgment of this
Court in the case of Jaswant Singh Vs. State of Punjab1. Undoubtedly, in the
aforesaid judgment, this court observed as follows :-
"The 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; Basdeo Agarwala v. King Emperor (1945) F.C.R. 93. The
object of the provision for sanctions is that the authority giving the sanction
should be able to consider for itself the evidence before it comes to a
conclusion that the prosecution in the circumstances be sanctioned or
forbidden. In Gokulchand Dwarkadas Morarka v. The King (1948) L.R. 75 I.A. 30
the Judicial Committee of the Privy Council also took a similar view when it
observed :1 [AIR 1958 SC 124]
"In their
Lordships' view, to comply with the provisions of clause 23 it must be proved
that the sanction was given in respect of the facts constituting the offence
charged. It is plainly desirable that the facts should be referred to on the
face of the sanction, but this is not essential, since clause 23 does not
require the sanction to be in any particular form, nor even to be in writing.
But if the facts constituting the offence charged are not shown on the face of
the sanction, the prosecution must prove by extraneous evidence that those
facts were plakhed before the sanctioning authority. The sanction to prosecute
is an important matter; it constitutes a condition precedent to the institution
of the prosecution and the Government have an absolute discretion to grant or
withhold their sanction." It should be clear from the form of the sanction
that the sanctioning authority considered the evidence before it and after a
consideration of all the circumstances of the case sanctioned the prosecution, and
therefore unless the matter can be proved by other evidence, in the sanction
itself the facts should be referred to indicate that the sanctioning authority had
applied its mind to the facts and circumstances of the case. In Yusofalli Mulla
Noorbhoy v. The King (1949) L.R. 76 I.A. 158 it was held that a valid sanction
on separate charges of hoarding and profiteering was essential to give the
Court jurisdiction to try the charge. Without such sanction the prosecution
would be a nullity and the trial without jurisdiction."
14.
Keeping
in view the aforesaid statement of law, it would not be possible to conclude
that the sanction order in the present case was not valid. Ex.P2 with the
present appeal is the copy of the sanction order. A perusal of the same would
show that the sanctioning authority has adverted to all the necessary facts
which have been actually proved by the prosecution in the trial. Upon examination
of the material facts, the sanctioning authority has certified that it is the
authority competent to remove the appellant from the office. It is specifically
stated that the statements of the witnesses have been duly examined. Sanction
order also states that the other materials such as copy of the FIR as well as
other official documents such as the different mahazars were carefully examined.
Upon examination of the statements of the witnesses as also the material on
record, the sanctioning authority has duly recorded its satisfaction that the appellant
should be prosecuted for the offences, as noticed above. We, therefore, find no
merit in the submissions of the learned counsel that the sanctioning order to
prosecute the appellant was not legal.
15.
We
may also notice here that although the issue with regard to the illegality
attaching to the order of sanction was raised before the trial court, it was
not raised before the High Court. The trial court, on examination of the issue,
also negated the submission of the appellant about any illegality attaching to the
sanction order. Even though we do not have the benefit of the opinion of the
High Court as the appellant has not raised issue with regard to the illegality
of the sanction order before the High Court, we are satisfied that the sanction
order has been issued in according with law.
16.
Learned
counsel for the appellant secondly submitted that the judgment recorded by both
the courts below is contrary to the evidence on record. We have examined the
entire issue. We are of the considered opinion that the trial court as well as
the High Court have analyzed the entire evidence and clearly held that a demand
was definitely made by the appellant for delivery of the tax certificate. The
trial court as well as the High Court have made a reference to the evidence
given byPWs.2 and 3 who have categorically stated that the demand was made by
the appellant. No other point was urged before us.
17.
We
may notice that the entire trap have been meticulously orchestrated by the
prosecution authority. We are unable to discern any arbitrariness or inconsistencies
in the concurrent findings recorded by the courts below. We find no merit in
this appeal. The appeal is dismissed.
...................................J.
[B.Sudershan Reddy]
...................................J.
[Surinder Singh Nijjar]
New
Delhi;
December
15, 2010.
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