STATE OF H. P. v. WAZIRA RAM — 1985 DIGILAW 27 (HP)

JUDGEMENT R. S. Thakur, J.: - This appeal is directed against the order of the learned Special Judge, Mandi, dt. May 10, 1978, whereby the respondent Wazira Ram (hereinafter referred to as the accused), was acquitted of the offences in respect of which he was tried by him under S. 409 of the I.P.C. and S. 5(2) of the Prevention of Corruption Act (hereinafter referred to as the Act). 2. The accused was challaned before the Special Judge by the Anti-Corruption Unit, Mandi, under the aforesaid offences. The prosecution case was that the accused, in February 1973, was working as Tehsil Jamadar in Tehsil Chachiot, District Mandi. On Feb. 12, 1973 one Ganga Ram Lambardar, came to the Tehsil with an amount of Rs. 1240/- which he had collected as land-revenue for Kharif crop of the year 1972 in the capacity of lambardar, for depositing the same in the Tehsil treasury Chachiot. Since the Vasal Waki Navis in the said treasury, Sunder Singh, was on leave on that day, the said Ganga Ram could not deposit the amount in the treasury as the same was to be deposited after the said Vasal Waki Navis had prepared the treasury challan in respect of the said amount. Since Lambardar Ganga Ram came from a distant village, in order to avoid coming to the Tehsil headquarters again with the amount, he handed over this amount of Rs. 1240/- on Feb. 12, 1973 to the accused on the accused giving an undertaking that he would deposit this amount of Rs. 1240/- in the Tehsil Treasury on behalf of said Ganga Ram. The accused also passed a receipt for the said amount in favour of said Ganga Ram after scribing and signing the same in his own hand. 3. The accused, however, failed to deposit this amount in the treasury as undertaken by him but appropriated the same for his own use. Later on, the Tehsil officials finding that Lambardar Ganga Ram had failed to deposit the land revenue collected by him on due date, issued a notice to the said Lambardar in response whereof he remained present before the Tahsildar, Chachiot, Sh. Inder Singh, and asserted that he had handed over this amount to the accused on Feb. 12, 1973, against a receipt for depositing in the treasury and he also made an application (Ex. Inder Singh, and asserted that he had handed over this amount to the accused on Feb. 12, 1973, against a receipt for depositing in the treasury and he also made an application (Ex. PB) in this behalf after getting it scribed by the petition-writer, Hem Prabha. On this, the Tehsildar Sh. Inder Singh called the accused and enquired from him whether he had received the amount of Rs. 1240/- from the said Ganga Ram for depositing in the treasury and, if so, why the said amount was not deposited in the treasury. The accused made an admission before the Tahsildar that he had received the amount from the said Ganga Ram but had failed to deposit the same in the treasury as he had appropriated the same to his own use and undertook to deposit the said amount in the treasury. The accused, however, failed to do so despite the undertaking and in fact ran away from Chachiot which was his place of posting as Tehsil Jamadar. It was thereafter that this case was registered against the accused. 4. At the commencement of the hearing before the learned Special Judge, the accused was charge-sheeted for the offences to which he pleaded not guilty and claimed trial. 5. The prosecution, with a view to bringing home the offences to the accused, examined 14 witnesses. The learned Special Judge, however, disposed of the case mainly on a preliminary point, namely that the Prosecution had failed to prove that a valid sanction was accorded in this case to prosecute the accused under S. 6 of the Act by the competent authority after full application of its mind to the facts of the case as brought-forth by the investigating agency incriminatory to the accused and consequently acquitted the accused. 6. We have heard the learned counsel for the parties and have also gone through the record of the case carefully and, for reasons to be recorded presently, the appeal deserves to be accepted. 7. The first question that arises for determination is whether the finding of the lower Court on the point that there was no valid sanction in consonance with the provisions of S. 6 of the Act is sustainable? The relevant portion of the finding of the lower Court in this behalf is reproduced hereunder: "I have myself perused the sanctioning order (Ex. PW 9/B). The relevant portion of the finding of the lower Court in this behalf is reproduced hereunder: "I have myself perused the sanctioning order (Ex. PW 9/B). It does not appear from it that all the relevant papers collected by the investigating agency were placed before the Deputy Commissioner, Mandi. It is not clear as to on what facts the sanctioning authority came to the conclusion that the accused should be prosecuted under S. 5(2) of the Prevention of Corruption Act. The sanction order indicates that it was passed in a cursory manner by the concerned authority without applying its mind to the facts of case in order to form an independent opinion as to whether or not the sanction should be accorded to prosecute the accused. The prosecution has also not cared to examine Sh. C. D. Parsheera the then Deputy Commissioner to prove whether he passed the sanctioning order after applying his mind to the evidence collected by the investigating agency against the accused. In the absence of these facts I hold that the sanction is invalid." The relevant sanction-order is Ex. PW9/B on the record of the case. In order to appreciate the above finding of the learned Special Judge, it would be proper to reproduce the same which is as under: - "Whereas it is alleged that Sh. Wazira Ram while functioning as Jamadar on 19-2-1973 had committed criminal breach of the trust of Rs. 1240/- entrusted to him by Sh. Ganga Ram Lambardar for depositing the same in the Tehsil treasury, Chachiot as revenue collection for the kharif crop for the year 1972 as the treasurer was not available on that date in the tehsil and Sh. Wazira Ram Jamadar had given a receipt to Sh. Ganga Ram in token of the receipt of the said amount. And whereas the said acts constitute an offence punishable under S. 409 of the I.P.C. and S. 5(2) read with S. 5(1)(c) of the Prevention of Corruption Act, 1947 (Act II of 1947). And whereas, I, C. D. Parsheera, Deputy Commissioner, Mandi District, Mandi, being the authority competent to remove the said Wazira Ram Jamadar from office, after fully and carefully examining the material before me as contained in police file of case FIR No. 2 dt. And whereas, I, C. D. Parsheera, Deputy Commissioner, Mandi District, Mandi, being the authority competent to remove the said Wazira Ram Jamadar from office, after fully and carefully examining the material before me as contained in police file of case FIR No. 2 dt. 15-2-1974 under S. 409, I.P.C. and S. 5(2), P. C. Act, P. S. Central Zone, A. C. U. Mandi and challan papers of the aforesaid case in regard to the said allegations and the circumstances of the case consider that the said Wazira Ram Jamadar should be prosecuted in a Court of law for the said offences. Now, therefore, I do hereby accord sanction under S.6(1)(c) of the Prevention of Corruption Act, 1947, (Act No. II of 1947) for the prosecution of the said Sh. Wazira Ram Jamadar for the said offence and any other offences punishable under other provisions of law in respect of the acts aforesaid and for the taking of cognizance of the said offences by a Court of competent jurisdiction." In view of this detailed sanction-order of the competent authority, namely, the Deputy Commissioner, Mandi district, we fail to understand as to how the learned Special Judge came to the conclusion that this order is a cursory one and does not disclose that same was made by the competent authority after full application of his mind to the facts of this case. The order clearly sets out in nut shell the entire prosecution case against the accused, namely: (i) that the accused was functioning as Jamadar in Tehsil, Chachiot on 12-2-1973 when he received an amount of Rs. 1240/- being revenue collection for kharif crop of the year 1972 from Ganga Ram Lambardar for, depositing the same in Tehsil Treasury at Chachiot: (ii) that at the time of receiving this amount for depositing in the treasury he executed a receipt in respect of the said amount in favour of Sh. 1240/- being revenue collection for kharif crop of the year 1972 from Ganga Ram Lambardar for, depositing the same in Tehsil Treasury at Chachiot: (ii) that at the time of receiving this amount for depositing in the treasury he executed a receipt in respect of the said amount in favour of Sh. Ganga Ram: (iii) That he failed to deposit the said amount in the treasury and committed a criminal breach of trust in respect of the said amount and proceeds to record: that the competent authority, that is, the Deputy Commissioner, Mandi, was according the required sanction after duly and carefully examining the circumstances of the case and the material as placed before him by the prosecuting agency concerned in the shape of police file and challan papers in respect of the case against the accused being F.I.R. No. 2 dt. 19-2-1974 under S. 409, IPC and S. 5(2) of the Act and after being satisfied that the accused was required to be prosecuted in a Court of law for the said offences. No doubt, as the trial Court has also observed, the sanctioning authority, namely, the then Deputy Commissioner, Mandi, Shri C. D. Parsheera, did not himself step into the witness-box to state that he accorded this sanction after full application of his mind to the facts of the case but, in our opinion this was of no consequence. It is on record that Shri Nand Lal (PW 9), who was at that time working as Assistant in the office of the Deputy Commissioner, Mandi, has categorically stated in his statement dt. 28-1-1977 that sanction for prosecution of the accused was accorded by the Deputy Commissioner, Mandi, Shri C. D. Parsheera, with whose handwriting and signatures he was well conversant and that the sanctioning order (Ex. PW 9/B) contained his signatures. We are firmly of the view that this statement was sufficient in proof of this sanction order and that it was not necessary that the sanctioning authority himself should have stepped into the witness-box to reiterate the relevant facts which have been stated in the sanction order (Ex. PW9/B). In State of Rajasthan v. Tara Chand Jain, AIR 1973 SC 2131 : (1973 Cri LJ 1396) a somewhat similar question arose for determination in light of a comparable fact-situation. In that case, the sanction order which was in dispute read as follows: - "No. F19(33) Apptt. PW9/B). In State of Rajasthan v. Tara Chand Jain, AIR 1973 SC 2131 : (1973 Cri LJ 1396) a somewhat similar question arose for determination in light of a comparable fact-situation. In that case, the sanction order which was in dispute read as follows: - "No. F19(33) Apptt. (a)/60/Group III Jaipur, the 6th October, 1960. Whereas, it has been brought to the notice of the Governor of Rajasthan that Shri Tara Chand Jain, RAS s/o Sh. Kesar Lal Jain resident of Panch Batti Baxhi Bhawan, Jaipur City, and posted at Barmer as Sub-Divisional Magistrate has accepted or obtained Rs. 500/- for himself from Shri Hazi Ali Mohammed s/o Sh. Mari Musalman resident of village Siyar, District Barmer accused in case No. 82 of 1959 and No. 462 of 1969 State v. Shri Hazi Ali Mohammed, under S. 3/6 Indian Passport Rules and State v. Hazi Ali Mohammed, under S. 13/11 Rajasthan Religious Buildings and Places Act respectively pending in his Court on 30-3-1960 at his residence at Barmer, as gratification other than legal remuneration as a motive or reward for showing favour to him in the exercise of his official functions by extending a proviso to decide the cases in his favour or by corrupt and illegal means or by otherwise abusing his position as a public servant has obtained for himself pecuniary advantage in the form of G. C. notes of Rs. 500/- in discharge of his duty and which gratification of Rs. 500/- was also recovered from his possession by the Deputy Superintendent of Police, Anti Corruption Sh. Nand Singh in the presence of Motbir Witnesses, complainants and police party, and which acts of said Sub-Divisional Magistrate are punishable under S. 161, I.P.C. and S. 5(1)(d)(2) of P. C. Act, 1947. And whereas it has also been brought to the notice of Governor of Rajasthan that Sh. Tara Chand Jain RAS, Sub-Divisional Magistrate. Barmer has habitually accepted or obtained the following amounts from the following persons in cases against them in his Court, as gratification (other than legal remuneration) as a motive or reward such as is mentioned in S. 161 of the Indian Penal Code. Tara Chand Jain RAS, Sub-Divisional Magistrate. Barmer has habitually accepted or obtained the following amounts from the following persons in cases against them in his Court, as gratification (other than legal remuneration) as a motive or reward such as is mentioned in S. 161 of the Indian Penal Code. XXX XXX XXX And whereas from the perusal of the facts on the record of this case placed before the Governor of Rajasthan he is satisfied that there are reasonable grounds to believe that Shri Tara Chand Jain, Sub-Divisional Magistrate, has committed the offence within the meaning of S. 161, I.P.C. and has also committed the offence of criminal misconduct in the discharge of his duties falling under Ss. 5(1)(a) and 5(1)(d) read with 5(2) of P.C. Act (II of 1947), on the basis of facts stated above. And whereas there is no other ground whatsoever to refuse or withhold the sanction for the prosecution of Shri Tara Chand Jain. Now, therefore, in pursuance of S. 6(i) of the Prevention of Corruption Act, 1947, the Governor of Rajasthan being the competent authority to remove Shri Tara Chand Jain from his office do hereby accords sanction for the prosecution of the said Sh. Tara Chand for the offences under S. 161, I.P.C. and S. 5(2) read with Ss. 5(1)(a) and 5(1)(d) of P.C. Act, 1947 (No. II of 1947) or any other offence or offences which may be found to have been committed by Shri Tara Chand Jain in this connection. By order of the Governor (A)Sd/-(B) (R. D. Thapar) I.A.S. Special Secretary to the Government." 8. Although the aforesaid sanction was in the name of the Governor and it was duly authenticated by Shri R. D. Thapar, Special Secretary to the Government, it was proved on record that the sanction was in fact accorded by the Chief Minister of Rajasthan. The Chief Minister, however, had not stepped into the witness-box to prove the sanction and the prosecution had examined one Umraomal, a Section Officer, Appointment, A-III Department, Government of Rajasthan, who had stated that the sanction (supra) bore the signature of Sh. R. D. Thapar, Special Secretary in the Appointment (A-III) Department. 9. The Chief Minister, however, had not stepped into the witness-box to prove the sanction and the prosecution had examined one Umraomal, a Section Officer, Appointment, A-III Department, Government of Rajasthan, who had stated that the sanction (supra) bore the signature of Sh. R. D. Thapar, Special Secretary in the Appointment (A-III) Department. 9. Against the aforesaid background, the Supreme Court held that the sanction should be shown to have been given by the competent authority after appreciating the facts constituting the offence charged and all those facts should be either apparent on the face of the order itself or, in case it is not so, the prosecution should adduce evidence in proof of the fact that those facts were placed before the sanctioning authority and the sanction was accorded by it after full application of its mind. 10. In view of the sanction order cited (supra) their Lordships were of the opinion that since the order on the face of it disclosed all the facts constituting the offence, there was no need for the prosecution to adduce independent evidence to prove that the relevant facts had been placed before the Chief Minister before he accorded the sanction. The relevant portion of the judgment may be reproduced as under: - "it is no doubt true that no independent evidence was led by the prosecution to prove that the relevant facts had been placed before the Chief Minister before he accorded sanction but that fact, in our opinion, introduces no fatal infirmity in the case. Sanction P-34 has been reproduced earlier in this judgment and it is manifest from its perusal that the facts constituting the offence have been referred to on the face of the sanction. As such it was not necessary to lead separate evidence to show that the relevant facts were placed before the Chief Minister. The evidence of Umraomal shows that the formal sanction P.34 filed in the Court bears the signature of Sh. R. D. Thapar, Special Secretary to the Government. The fact that the Chief Minister signed the sanction for the prosecution on the file and not the formal sanction produced in the Court makes no material difference. The evidence of Umraomal shows that the formal sanction P.34 filed in the Court bears the signature of Sh. R. D. Thapar, Special Secretary to the Government. The fact that the Chief Minister signed the sanction for the prosecution on the file and not the formal sanction produced in the Court makes no material difference. It is, in our opinion, proved on the record that the sanction for the prosecution of the accused had been accorded by the competent authority after it had duly applied its mind to the facts of the case." It may be noted that the prosecution in the present case on the point in question is on a much better footing. The sanction order bears the signature of the sanctioning authority, that is, the Deputy Commissioner, Mandi, which signatures have been duly proved by his office Assistant Sh. Nand Lal (PW 9) and the sanction order, as we have already observed, contains all the salient features constituting the offence of which the accused stands charged. Under the circumstances, the answer to the poser as set out earlier with regard to the finding of the Court below qua the validity of this sanction order is obviously in the negative and consequently, the finding of the lower Court on this point cannot be sustained. 11. Now, in the ordinary course, we would have remanded this case to the lower Court for giving its findings after proper appreciation of the material evidence as the lower Court has failed to decide the case on merits. However as this case has been hanging fire since 11-3-1976, on which date it was instituted in the lower Court, we do not think it would be just, proper and expedient to give it any longer lease of life. We have, therefore, decided to dispose it of on merits. The provisions of sub-s. (a) of S. 386 of the Cr. P. C. fully empower this Court to do so. [In Paras 12 to 26, their Lordships appraised the evidence on record and continued as follows. ] 26A. In view of the facts stated above, the offence of criminal breach of trust is proved against the accused under the first part of S. 405, I.P.C., namely, that he was entrusted with this amount of Rs. [In Paras 12 to 26, their Lordships appraised the evidence on record and continued as follows. ] 26A. In view of the facts stated above, the offence of criminal breach of trust is proved against the accused under the first part of S. 405, I.P.C., namely, that he was entrusted with this amount of Rs. 1240/- by Ganga Ram for depositing in the Chachiot sub-treasury on his behalf and he then dishonestly misappropriated or converted this money to his own use. 27. The learned counsel for the accused has also contended, as in fact the trend of the defence in cross-examination also shows, that since it was no part of the official duties of the accused to accept this type of money, namely, revenue collection, from the Lambardars to be deposited in the sub-treasury. Lambardar Ganga Ram wrongly paid this amount to the accused and as such no criminal offence, much less an offence under S. 409, I.P.C., can be said to nave been made out against the accused. We do not agree with this contention. The requirement of law is that a person should be a public servant and in that capacity he should receive property or dominion over property in the form of entrustment and in that situation it becomes his bounden duty to discharge that trust in the manner undertaken by him or at least to deal with that property in an honest manner, and if he acts in violation of those directions or dishonestly misappropriates the same, he is guilty of the offence even if that entrustment was made to him under an erroneous assumption. In Supdt. and Remembrancer of Legal Affairs W. B. v. S. K. Roy, AIR 1974 SC 794 : (1974 Cri LJ 678) the Supreme Court has held as follows:- "..........There are, however, two distinct parts involved in the commission of the offence of criminal breach of trust. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The Second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. In the case of an offence by a public servant punishable under S. 409, I.P.C. the acquisition of dominion or control over the property must also be in the capacity of a public servant. The Second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. In the case of an offence by a public servant punishable under S. 409, I.P.C. the acquisition of dominion or control over the property must also be in the capacity of a public servant. This is not the same thing as having the authority, as a public servant, to get the control or dominion over property annexed with an obligation. The gravamen of the offence is the dishonest misappropriation of the money or property which comes into the possession or under the control of a public servant who has the ostensible authority to receive it even though technically speaking, from the point of view of the distribution of departmental duties under internal rules of an office, it may not be within the scope of his authority or duty to accept the money. .........It could not be contended that even a mistaken receipt of money in official capacity does not create an obligation upon the receiver as a public servant. We think that it is enough if the payment is made by a person dealing with a public servant in his capacity as a public servant even if it is made on an erroneous assumption which the public servant converted does nothing to remove. S. 409, Indian Penal Code seems to us to be meant for the protection, among others of those dealing with public servants purporting to have the authority to act in a certain way in exercise of their official capacities. A legal defect in the scope of the ostensible authority of a public servant does not prevent an entrustment to or an obligation to be fastened upon a public servant in his capacity as a public servant if the facts of the case established as they do in the case before us, the required nexus or connection between acts which create the obligation and the capacity." 28. In that case a public servant in his capacity as Superintendent of Pak Unit of Hindusthan Co-operative Insurance Society in Calcutta (a unit of L.I.C.) although not authorised to do so, directly realised premiums in cash from some Pakistani policy holders and misappropriated the amounts after making false entries in the relevant registers. In that case a public servant in his capacity as Superintendent of Pak Unit of Hindusthan Co-operative Insurance Society in Calcutta (a unit of L.I.C.) although not authorised to do so, directly realised premiums in cash from some Pakistani policy holders and misappropriated the amounts after making false entries in the relevant registers. On these facts the accused was found guilty of an offence punishable under S. 409 of the I.P.C. 29. In our opinion, the decision in S. K. Roys case provides a complete answer to the contention raised by the learned counsel for the accused. 30. In view of the above discussion, we come to the conclusion that the offence under S. 409, I.P.C. has been brought home to the accused beyond all reasonable doubt. Once it is held that the accused is guilty of the offence under S. 409, I.P.C., it follows as a necessary legal corollary that he is also guilty of criminal misconduct under the provisions of Cl. (c) of sub-sec. (1) of S. 5 of the Act which is punishable under sub-sec. (2) thereof. We, therefore, hold the accused guilty under S. 409, I.P.C. and S. 5(2) of the Act and convict him thereunder. The accused will now be heard on the question of sentence. Appeal allowed.