Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 340 (GAU)

Tirtha Nath Das v. State of Assam

2005-04-28

AFTAB H.SAIKIA

body2005
JUDGMENT A.H. Saikia, J. 1. Heard Mr. M. Choudhury, learned senior counsel, assisted by Mr. D. Talukdar and Mr. N. Ahmed, learned counsel appearing for the appellant. Also heard Mr. K. Monir, learned PP, Assam. 2. This criminal appeal has been directed against the judgment and order dated 26.11.1996 passed by the learned Special Judge, Assam in Special Case No. 25(A) of 1990 convicting the appellant under Section 7 of the Prevention of Corruption Act, 1988 (for short the 'Act') and consequently sentencing him to undergo simple imprisonment for six months and to pay fine of Rs. 500 only, in default of payment of fine to further imprisonment for ten days. 3. The brief facts of the prosecution case are that the appellant while working as Record Assistant in the record room in the establishment of Deputy Commissioner, Barpeta, on 13.2.1989, P.W. 2, Abhay Kumar Bothra and P.W. 3, Ganesh Ch. Das went to the record room to make a request to the appellant to send the case records to the court. The appellant demanded a bribe of Rs. 100 from them to concede to their request. Both of them reported the matter to the then Deputy Commissioner, Barpeta who directed to lay a trap and accordingly one Executive Magistrate alongwith a Police Officer were deputed with one hundred rupee note duly initialed by the Deputy Commissioner himself to offer the same to the appellant by the P.W.2. When the accused accepted the said note of hundred rupee on being, offered by P.W. 2, the Executive Magistrate and Police Officer caught hold the appellant and seized the hundred rupee note so bribed. An FIR was lodged against the appellant and investigation was started. On completion of the investigation, the charge sheet was submitted against the appellant under Section of the Act. 4. The prosecution examined as many as 10 witnesses including the P.W. 2 and P.W. 3 being eye witnesses when defence case was of total denial. Learned Special Judge, on consideration of the deposition of the witnesses as well on close perusal of the documents and the materials available on record, found the appellant guilty of the offence and accordingly convicted and sentenced him as mentioned above. 5. Mr. Learned Special Judge, on consideration of the deposition of the witnesses as well on close perusal of the documents and the materials available on record, found the appellant guilty of the offence and accordingly convicted and sentenced him as mentioned above. 5. Mr. Choudhury, learned senior counsel, assailing the impugned judgment and order, has advanced three-fold arguments, firstly, the prosecution has failed to prove the acceptance of the alleged bribe and as such essential ingredient of Section 7 of the Act was not fulfilled, secondly the sanctioning authority acted most mechanically and with total non-application of mind in granting previous sanction for taking cognizance of the offence and as such the said sanction was not a sanction as required under Section 19 of the Act and thirdly and finally the investigation was conducted by an officer not being competent to investigate the incident as prescribed by Section 17 of the Act. 6. Arguing the first point, it is contended by the learned senior counsel that though demand was made by the appellant, he never accepted such currency note. To reinforce his submission, he has referred to the deposition of P.W. 2 and P.W. 3 and also the seizure list which, was accepted as Exhbt. 4. 7. P.W. 2 deposed in examination-in-chief that when the records of two mutation cases were required to be produced before the Deputy Commissioner, Barpeta, he alongwith P.W. 3 went to the record room and requested the appellant to send the record to the concerned court but the appellant demanded hundred rupees for finding out the record and hence they met the Deputy Commissioner in his Official Chamber and informed the incident of such demand of bribe. Then the Deputy Commissioner collected two numbers of hundred rupee currency note and put his signature in one of the currency note and handed over to P.W. 3 to give the same to the appellant with further instruction to Executive Magistrate and Police Officer to observe such incident. He was asked to stand near the door when the Police Officer and the Executive Magistrate remained on the Verandah and the P.W. 3 went to the record room and offered hundred rupee note. P.W 2 having given signal to the Executive Magistrate and the Police Officer, both of them caught hold the arm of the accused with the currency note in his hand. P.W 2 having given signal to the Executive Magistrate and the Police Officer, both of them caught hold the arm of the accused with the currency note in his hand. Then the appellant came out from the room and threw away the currency from the verandah and the Police Officer took up the currency note from the verandah. 8. In cross, this witness stated that he did not know if the currency note was in a crumble state or was in the original state while it was thrown in the verandah by the appellant. He categorically stated that the currency not was thrown by the appellant from the verandah and the same fell in the court yard. It was also specifically deposed that he did not informed the Deputy Commissioner about such incident but only to one Khandekar, Advocate. It has come in his cross that he made a request to the appellant only to send the records on the advise of the advocate. 9. P.W. 3 in his deposition said that he alongwith the P.W. 2 went to the court room and P.W. 2 requested the appellant to send the records from the record room to the trial court. At this stage, the appellant informed P.W. 2 that the records could be sent only when 100 rupees was paid to him. He himself narrated the incident to the Deputy Commissioner in the Office Chamber. Thereafter, the Deputy Commissioner telephoned to police. With those Officer he alongwith P.W. 2 went again to the record room. When P.W. 2 remained near the door, he went inside the record room and handed over the 100 rupee note which was signed by the Deputy Commissioner only to hand over to the appellant who accepted the same and kept at his hand. Immediately, thereafter, the Magistrate and the Police Officer entered the record room and they caught hold of the appellant and taken out from the room. At this stage, the accused threw away the currency note while standing in verandah and the police took up the currency note and again it was put in the hand of the accused and then he was taken to the office chamber of the Deputy Commissioner. In his cross, this witness stated that the Deputy Commissioner, Magistrate and P.W. 2 and himself discussed about the matter. In his cross, this witness stated that the Deputy Commissioner, Magistrate and P.W. 2 and himself discussed about the matter. According to him, he did not state before the Investigating Officer that one Police Officer picked up the currency note from the court yard and put in the hand of the appellant. 10. From the deposition of above two witnesses, it appears that there was contradiction writ large. When P.W. 2 in his cross categorically stated that he did not inform the Deputy Commissioner and he reported the matter only to one Advocate, Khandekar, P.W. 3 deposed that he, P.W. 2, the Magistrate and the Deputy Commissioner were discussing the matter in the office room and the Deputy Commissioner handed over the signed note only to P.W. 2 directing him to offer the same to the appellant. On the other hand, from Exhbt. 4, seizure list, it appears that the currency note was seized by one N. Bora, a Sub-Inspector of Barpeta Police Station from the appellant when he attempted to throw the note outside while the evidence of P.Ws. 2 and 3 clearly indicate that the currency note was thrown from the verandah to the court yard. 11. In view of the above contradictions in the evidence, it can be said that the prosecution has failed to prove that the currency note was ever accepted by the appellant. Decision of an Apex Court in a case of G. V. Nanjundiah v. State (Delhi Administration) reported in 1987 SC 2402 has been referred to. The Apex Court in the said case in paragraphs 27 and 28 held that since the factum of acceptance of bribe was not properly established from the testimony of the evidence, the guilt of an accused under the Act was not proved. I am in full agreement to the submission of Mr. Choudhury on this point and is of the firm opinion that the acceptance of bribe was not fully proved by the prosecution and as such one of the ingredient of Section 7 was not satisfied in order to rope the appellant into the offence, under Section 7 of the Act. 12. Advancing his second argument Mr. Choudhury has submitted that while sanctioning authority granted sanction, he did not discuss the facts as required under the law. 12. Advancing his second argument Mr. Choudhury has submitted that while sanctioning authority granted sanction, he did not discuss the facts as required under the law. That apart, the sanction was granted only under Section 161 IPC read with Section 5(2) of the Act when Section 161 of IPC was already repealed by the Amending Act. More interestingly, the competent authority exercised his power quoting Section 197 Cr PC which has no applicability under this Act. Hence, the sanction order which was exhibited as Exhbt. 6' has no leg to stand. According to learned senior counsel when the Exhbt. 6' was issued on 16.3.1989, Section 161 IPC has already repealed. Such action has clearly reflected that the competent authority acted mechanically and without any application of mind. That being so, this sanction order cannot be said to be sanction order under Section 19 of the Act. 13. It is further submitted on behalf of the appellant that as required by law when facts have not been discussed in the sanction order, the sanctioning authority ought to have been examined but in the instant case, he was not examined and as such the sanction was not properly obtained which has greatly prejudiced the appellant and the same amounts to failure of justice. On this point he relies on a decision of the Apex Court reported in AIR 1979 SC 667 (Md. Iqbal Ahmed v. State of Andhra Pradesh). In para 3 of the above judgment, the Apex Court has held as, follows : "... It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has 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 that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficult (six-defect) in the prosecution, the entire proceedings are rendered void ab initio...." 14. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficult (six-defect) in the prosecution, the entire proceedings are rendered void ab initio...." 14. For the sake of convenience the sanctioning order dated 16.3.1989 may be extracted as under : "GOVERNMENT OF ASSAM OFFICE OF THE DISTRICT MAGISTRATE; BARPETA ORDER Whereas it appears from the report of the Superintendent of Police, Barpeta, Assam submitted vide his Memo No. V/IV-31/89/656 dated 4.3.1989 that Shri Tirtha Nath Das, UDA, D.C.'s Office, Barpeta had obtained a sum of Rs. 100 (rupees one hundred) only from Shri Abhoy Kr. Bothra as illegal gratification for the purposes of production of the records of a Mutation Case. And whereas a prima facie case vide Barpeta RS. case No. 93/89 Under Section 161 IPC RW Section (2) Prevention of Corruption Act has been registered and investigated; and I consider that the person should be prosecuted in a court of law. Now, therefore, in exercise of the powers conferred under Section 197(1)(b) Cr.P.C. and Section 6(1)(b) Prevention of Corruption Act I, Shri S. Sabhlok, IAS, District Magistrate, Barpeta do accord sanction for prosecution of Shri Tirtha Nath Das, UDA under Section 161 IPC RW 5(2) Prevention of Corruption Act by a court of competent jurisdiction. District Magistrate, Barpeta. Memo No. BPE/1/89/17 Dated Barpeta the 16th March, 1899." 15. A bare perusal of the above sanctioning order clearly shows that the same does not contain the facts constituting the offence and non-application of mind is apparent on the face of the order itself. That being so, in view of the Md. Iqbal's case (supra) and on close scrutiny of the sanctioning order, this court has no hesitation to hold that the same was passed most mechanically and without application of mind which has resulted failure of justice prejudicing the appellant and the same is not in conformity with Section 19 of the Act. 16. Finally, so far investigation by the competent authority as required by Section 17 is concerned, the deposition of P.W. 4, Mr. 16. Finally, so far investigation by the competent authority as required by Section 17 is concerned, the deposition of P.W. 4, Mr. S.N. Barman, D.S.P., clearly reveals that initially the investigation was entrusted to one Nanda Bora, Sub-Inspector, admittedly, not being competent authority to investigate such offence and later on the authority being aware of the provision of law entrusted him, i.e., P.W. 4 to re-investigate the matter but in his evidence, P.W. 4 clearly stated that though he was entrusted with the matter, he did not record any statement of the witnesses and he simply made ditto of the statements recorded by the earlier Sub-Inspector. Prima facie such investigation hits Section 17. which contains the list of persons validly authorised for investigation of offences under the Act. Therefore, it can be firmly held that the investigation was conducted not by the officer so authorised under Section 17 of the Act. 17. In view of the above observation and discussion, this court is of the view that the prosecution has failed to prove the instant case against the appellant beyond reasonable doubt. Hence, impugned judgment and conviction is hereby set aside and quashed. 18. In the result, the appeal succeeds and stands allowed. Send down the L.C.Rs. forthwith. Appeal allowed.