Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 937 (MP)

Rajesh Singh v. State of M. P.

2006-08-01

RAKESH SAKSENA

body2006
JUDGMENT 1. Appellant has filed this appeal against the judgment dated 15.1.1992 passed by Special Judge, Rewa, in Special Criminal Case No. 7/86 convicting the appellant under section 161 of IPC and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and sentencing him to rigorous imprisonment for 2 years and rigorous imprisonment for 5 years with fine of Rs.1,000/- on each count respectively. Sentences directed to run concurrently. 2. Brief facts of the case are that the appellant was posted as Assistant Surgeon in Gandhi Memorial Hospital, Rewa. On 10.6.1985 Asgar Ali and Jebunnisa were sent to him for medical examination as a medico legal case. It is said that appellant demanded Rs.200/- as bribe for sending correct medical report to police. When complainant Shakil Khan (PW3) came to know about the demand of bribe by the appellant, he went to him and asked him to send the report as it is. Appellant repeated his demand of money from him also. Shakil Khan agreed to pay Rs.200/- to him in the afternoon of 11.6.1985. On 11.6.1985 Shakil Khan went to office of Lokayukta, Rewa, and submitted a written report (Ex.P-8). R.N. Singh, Dy. SP and R.B. Singh, Inspector, SPE, Rewa, arranged a trap. They called witnesses B.D. Singh and Iqbal Ahmed to the Lokayukta office and read over the complaint made by Shakil Khan. They obtained two hundred rupee notes from the complainant and noted their numbers in primary panchnama (Ex.P-2). Notes were treated with phenolphthalein powder and were kept in the pocket of the complainant. He was instructed to hand over the aforesaid notes to accused without touching earlier and to give a signal after the money was received by him. A demonstration was also carried out to show that if phenolphthalein powder is dissolved in sodium carbonate solution, the solution would turn pink. All this preparation was recorded in Ex.P-2. Trap party comprised of Dy. SP, R.N. Singh, Inspector R.B. Singh, Inspector K.K. Shrivastava, Head Constable Satyadeo, Constable Sadhulal, Constable Jamadar Singh, Constable Raj Bahoran, Gajraj Prasad shadow witness Iqbal Ahmed and complainant Shakil Khan proceeded to GM Hospital and reached there by 3:30 p.m. At about 3:45 p.m. complainant gave a signal. Trap party reached at the room where complainant told them that he had given money to appellant, who handed over money to another person sitting by his side. Trap party reached at the room where complainant told them that he had given money to appellant, who handed over money to another person sitting by his side. Inspector R.B. Singh and Dy. SP, R.N. Singh asked about money from Ravi Datt and washed the hands of the appellant by the sodium carbonate solution which turned pink. That solution was seized in a bottle. Thereafter the hands of other person, viz., Ravi Datt, who had kept the notes in his pocket, were washed by sodium carbonate solution whereby solution turned pink. The solutions were seized. Hands of complainant Shakil Khan were also washed in the solution and solution was seized. Two hundred rupee notes were recovered from the pocket of Ravi Datt and their numbers were tallied with the numbers mentioned in the primary panchnama. On finding the numbers same, the notes were seized vide seizure memo Ex.P-4. Panchanama of trap (Ex.P-7) was prepared at the spot. Sealed bottles of solution were seized vide seizure memo Ex.P-9. Casualty Registers were seized vide seizure memo Ex.P-12 and P-15. Bottles of solution were sent for chemical analysis to FSL Sagar and their reports were obtained. After the aforesaid proceedings a Dehati Nalishi Report Ex.P-13 was recorded, on the basis of which first information report Ex.P-16 was registered by SPE Bhopal. After obtaining the sanction Ex.P-1 from and in the name of Governor by Chief Secretary, M.P. Government, charge-sheet was filed. 3. During trial, defence of the accused was that Shakil Khan had come to him and asked him to give report about the injuries of Asgar Khan mentioning more serious injuries, as according to him, he (accused) had described injuries of the opposite party as dangerous to life. On his saying that he would give injury report according to injuries actually received by the injured, Shakil Khan got annoyed and told that he will see him. According to him, injuries of both the parties were not dangerous. He had made entry in the MLC register and had also prepared the report. He had got injured Jebunnisa admitted in the hospital. According to him, on the day of incident he was taking pergolax tablets which had main ingredient of phenolphthalein, because of his touching pergolax tablets the sodium carbonate solution might have turned pink. According to him, he was falsely implicated. 4. Prosecution, to substantiate its case, examined 9 witnesses before the Court. According to him, on the day of incident he was taking pergolax tablets which had main ingredient of phenolphthalein, because of his touching pergolax tablets the sodium carbonate solution might have turned pink. According to him, he was falsely implicated. 4. Prosecution, to substantiate its case, examined 9 witnesses before the Court. PW 1 H. K. Rathore, Assistant in the Health Department, proved the sanction. PW2 B.D. Singh, Assistant Registrar, Cooperative Society was examined as Panch Witness, PW3 Shakil Khan, complainant, PW6 Iqbal Ahmed, shadow witness, PW4 Chhedilal, Constable, PW5 Jamadar Singh, Constable, PW7 R.N. Singh Dy. SP and PW8 R.B. Singh were examined as witnesses of trap and investigation. PW9 R.R. Malviya, Dy. SP proved the signatures of Dy. SP, N.S. Rajawat, who had died. PW2 B.D. Singh, the only independent witness in the case, did not support the prosecution case at the trial and as such was declared hostile. 5. Relying upon the evidence of aforesaid prosecution witnesses, learned trial Court held the appellant guilty and convicted him as mentioned earlier. 6. Learned counsel for the appellant submitted that the prosecution has not been able to prove that appellant made demand of illegal gratification from the complainant. The evidence of trap witnesses is contradictory and unreliable. Except PW2 B.D. Singh, Assistant Registrar, Cooperative Society, all other witnesses are either interested witnesses or police witnesses. B.D. Singh did not support the prosecution story at the trial Court. The evidence of complainant, in the absence of independent corroboration is not sufficient for holding the appellant guilty. Besides aforesaid grounds, learned counsel submitted that the sanction produced in the present case is not a valid sanction. It has neither been proved properly nor it reflects application of mind. According to him, the sanction order has not even been signed by the sanctioning authority and it does not reveal that what material and documents were considered by the authority before according sanction. He submitted that the prosecution against the appellant was not maintainable for want of a valid and proper sanction. On the other hand, learned counsel for the State submitted that the evidence adduced by prosecution was enough to hold the appellant guilty of the offence. The evidence of complainant was reliable and was corroborated by other witnesses who participated in the trap. On the other hand, learned counsel for the State submitted that the evidence adduced by prosecution was enough to hold the appellant guilty of the offence. The evidence of complainant was reliable and was corroborated by other witnesses who participated in the trap. He further submitted that sanction was amply proved by PW 1 R.K. Rathore who categorically deposed that it was signed by the authority. 7. After hearing learned counsel for both the parties and perusing the sanction order Ex.P-1, I am of the opinion that this appeal deserves to be allowed on the sole ground of sanction for the prosecution suffering with total non-application of mind and not being a proper sanction. 8. Perusal of Ex.P-1, the sanction order shows that the Govt. of Madhya Pradesh as the competent authority to remove the appellant from the Govt. service issued the order of sanction in the name and by the order of Governor. Chief Secretary, P.K. Lahiri simply authenticated the order of sanction which was issued in the name of Governor of M.P. The order of sanction was issued by the State in discharge of its statutory functions in terms of section 6 of the Act. The order of sanction was an executive action of State. PW 1 H.K. Rathore proved the signature of Shri P.K. Lahiri the Secretary. In the similar circumstances apex Court in State of V.K. Narsimhachari [AIR 2006 SC 628], held the order of sanction to be a public document which can be proved in terms of sections 76 to 78 of the Evidence Act. Thus, the argument of learned counsel for the appellant that the sanction order has not been proved is not acceptable. 9. Perusal of the statement of H.K. Rathore PW 1, Assistant in the Department of Health, however, reveals that he was not the person who presented the case file before the sanctioning authority. He was only conversant with the signature of the Secretary. He was unable to say whether the file produced before the sanctioning authority contained the statements of witnesses or not, the reason being that the file was presented by his predecessor who had been transferred. The trial Court observed that the file which was with the witness contained an original draft or sanction which was not signed. The witness was unable to say as to who had prepared the said draft. The trial Court observed that the file which was with the witness contained an original draft or sanction which was not signed. The witness was unable to say as to who had prepared the said draft. Trial Court took the aforesaid document on record, though did not mark it as an exhibit. The perusal of the aforesaid document which is available in B-Part of the case file shows that the sanction order Ex.P-1 is the verbatim reproduction of the contents of the said draft. In such a situation, the person who presented the file before the sanctioning authority should have been examined before the Court, who could have thrown light about the material produced for consideration before the authority. In the absence of the evidence of the aforesaid presenting officer or the authority himself who accorded sanction, it cannot be held to have been established that the sanction for the prosecution was accorded after due application of mind and consideration of the material relevant for grant of sanction. On perusal of the contents of Ex.-1 it is seen that in the sanction order though it was mentioned that the sanction was accorded after careful examination of documents produced in relation to charges, but it merely narrated the allegations about facts found by the Investigating Officer in the investigation without mentioning as to what material and documents were considered by himself. In view of the above, it appears that sanctioning authority did not follow the procedure required for according the sanction to prosecute which goes to the very root of the prosecution and mean that the sanction was accorded without application of mind. 10. Learned counsel for the appellant referred to a Single Bench decision of Madras High Court Ayya Sami and another v. State reported in 1996 CrLJ 119 , wherein, under similar circumstances validity of sanction was examined. Relevant part of it is quoted below : "17. It is also noted that the case on hand comes under the purview of S.6 of the Prevention of Corruption Act, 1947 and not the present Act in which the concept of according sanction has been changed to a considerable extent. Relevant part of it is quoted below : "17. It is also noted that the case on hand comes under the purview of S.6 of the Prevention of Corruption Act, 1947 and not the present Act in which the concept of according sanction has been changed to a considerable extent. Dealing with the scope of S.6 of the old Act, I had an occasion while dealing with the said concept in Charles Waker Devadas v. State by the Inspector of Police, LTC [1993 Mad LW (Cr) 346] and held that the sanctioning authority had not applied its mind but accorded the sanction so casually in a very fascinating manner by referring the allegations only and certainly not with reference to any of the materials relied on or materials placed before him. While doing the said exercise, I have considered and referred the case laws held in Suraj Mal v. State (Delhi Administration) [1980 MLJ (Cr) 73= AIR 1979 SC 1408 =1979 Cr LJ 1087 (SC)]; Anand Sarup v. State [1988 Cr LJ 756 (Delhi)]; Mohd. Iqbal Ahmed v. State of A.P. [ AIR 1979 SC 677 ]; Periyasamy v. Inspector, Vigilance and Anti Corruption, Tiruchirapalli [1992 Mad LW (Cr) 582]; Har Bharosey Lal v. State of U.P. [ 1988 CrLJ 1122 (All.)]; Indu Bhusan Chatterjee v. The State of W.B. [ AIR 1958 SC 148 = 1958 CrLJ 279 ]; State of Rajasthan v. Tarachand [ AIR 1973 SC 2131 = 1973 CrLJ 1396 ] and State of Tamil Nadu v. Damodaran [ 1992 CrLJ 522 = AIR 1992 SC 563 =1992 AIR SCW 180 (SC)]. Following the ratios held in the above case laws to the facts of the instant case, I am constrained to hold that the Court cannot act on surmises or conjectures nor will have to be guided by extraneous consideration or matters which are not on record. The grant of sanction is not an idle formality but a solemn and sacrosanct act which provided protection to Public Servants against frivolous prosecutions. This requirement of law has not been complied with before launching prosecution against the appellants. It is thus seen that in according sanction to a prosecution as contemplated under S. 6 of the Prevention of Corruption Act, the sanctioning authority should necessarily apply its mind and get itself satisfied that a case for sanction has been made out, constituting the offence. It is thus seen that in according sanction to a prosecution as contemplated under S. 6 of the Prevention of Corruption Act, the sanctioning authority should necessarily apply its mind and get itself satisfied that a case for sanction has been made out, constituting the offence. The prosecution has to prove this 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 facts placed before the Sanctioning Authority and the satisfaction arrived at by it. A case instituted without adopting the above referred legal concept and ingredients must necessarily fall because this being a defect manifest in the prosecution and as such, the entire proceedings are rendered void ab initio. Section 6 of the Prevention of Corruption Act applicable to the facts of the instant case provides that the sanctioning authority must accord the sanction only after identifying the grounds so multifarious or one and if not the evidence aliunde made available or the material to accord sanction, which would necessarily involve to go through all the materials placed before him and not the mere report or mere allegations. It is the well settled principle that the apex Court as well as the Higher Judicial forum or our country have repeatedly but however very often emphasised the need to follow such procedural mandate provided by the legislature for the reason to give protection to the public servants from frivolous or nefarious transactions and such exercise is seen clearly to be mandated in the section itself. Therefore, the sanctioning authority has to and must follow the procedure in according to the sanction to prosecute the Public Servants. The infraction of the said legal exercise to any extent though may not halt the prosecution at any stage but one cannot deny that it goes to the very root of the prosecution as its very base, which would mean that once the defect is found out, namely, the sanction without application of mind, it is not difficult to say that the prosecution stumbled down to the ground and cannot at all be redeemed." 11. In view of the above discussion it can be said that for the sanction to be valid it must be proved that the sanction was given in respect of the facts constituting the offence charged. In view of the above discussion it can be said that for the sanction to be valid it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of sanction. However, it is necessary that the material, the statement of witnesses, documents and FIR etc. should be placed before the sanctioning authority for due appreciation of the correct situation. It is the duty of the prosecution to prove by extraneous evidence that those facts were placed before the sanctioning authority if it is not reflected in the sanction order that the authority while according sanction applied its mind to the material and the facts constituting the offence. The sanction to prosecute is an important matter. It constitutes a condition precedent to the institution of the prosecution. In the absence of evidence that the evidence and materials were placed before the officer from whom the sanction was sought, it cannot be held that the sanction was accorded after proper application of mind. Thus, in my opinion, in the present case it cannot be held to be a valid sanction. 12. Learned counsel for the State submitted that in view of the provisions of sub-section (3) of section 19 of the Prevention of Corruption Act, 1988 no finding, sentence or orders passed by a Special Judge shall be reversed or altered by a Court in appeal or revision on the ground of absence of, or any error, omission or irregularity in the sanction unless it has occasioned the failure of justice. 13. Learned counsel for appellant placing reliance on the ratio of lagan M. Sheshadri v. State of Tamil Nadu [ 2002 CrLJ 2982 (SC)], submitted that when the offence was committed, the 1947 Act was in operation. Charges were framed under the provisions of old Act. Even the competent authority accorded sanction in exercise of powers u/s 6(1) of 1947 Act. Therefore, provisions of sub-section (3) of section 19 of the 1988 Act has no application. 14. Learned counsel for the State submitted that according of sanction is a procedural matter. Therefore, the provisions of 1988 Act would have retrospective effect. Even the competent authority accorded sanction in exercise of powers u/s 6(1) of 1947 Act. Therefore, provisions of sub-section (3) of section 19 of the 1988 Act has no application. 14. Learned counsel for the State submitted that according of sanction is a procedural matter. Therefore, the provisions of 1988 Act would have retrospective effect. As to this, learned counsel for the appellant placing reliance on a decision of Bombay High Court in Sukhdev Singh Jamwal v. State of Maharashtra reported in 2004 CrLJ 4338 submitted that the sanction is the outcome of application of mind of the sanctioning authority and if the sanctioning authority comes to conclusion and grants sanction to prosecute the appellant under the old Act, prosecution cannot be permitted to argue that the sanction should be taken as one under new Act. He submitted that right of accused that he cannot be prosecuted without a valid sanction from the competent authority, is a valuable right of which he cannot be deprived by the incorporation of a different provision in new Act. In Sukhdev Singh's case (supra) it was considered : "16. Therefore, it is clear that this is a case where the sanctioning authority clearly and specially admits that the sanction was accorded under the old Act of 1947. If that is so, reference to the new Act of 1988 to the sanction is of no help because the sanction is the outcome of application of mind of the sanctioning authority and if the sanctioning authority on applying it's mind comes to a conclusion and grants sanction to prosecute the appellant under the old Act, the prosecution cannot be permitted to argue that the sanction should be taken as one under the new Act. The Act of giving sanction is not an Act mechanical or steriotype act, and, therefore, sanction under the Act of 1947 cannot be taken or treated as sanction under the new Act of 1988." 15. Being in full agreement with the view taken by the Bombay High Court, adopting the same reasoning, I hold that the provision of section 19(3) of the 1988 Act shall not apply in the facts of the present case. 16. In view of the above, this Court need not go into the findings of the merits of the prosecution. Being in full agreement with the view taken by the Bombay High Court, adopting the same reasoning, I hold that the provision of section 19(3) of the 1988 Act shall not apply in the facts of the present case. 16. In view of the above, this Court need not go into the findings of the merits of the prosecution. Apex Court in State of T.N. v. M.M. Rajendran [ (1998)9 SCC 268 ] held : ".....Even if such report is a detailed one, such report cannot be held to be the complete record required to be considered for sanction on application of mind to the relevant materials on record. Therefore, it cannot be held that the view taken by the High Court that there was no proper sanction in the instant case is without any basis. It, however, appear to us that the sanction had not been accorded for which the criminal case could have been initiated against the respondent, there was no occasion either for the trial Court or for the appeal Court to consider the prosecution case on merits. Therefore, the High Court need not have made the finding on merit about the prosecution case. We make it clear that finding made by the Courts on the merits of the case will stand expunged and will not be taken into consideration in future. In our view the High Court should have passed the appropriate order by dropping the proceedings and not entering into the question of merits after which had come to the finding that the proceeding was not maintainable for want of sanction." 17. In view of the above proposition of law, I am of the opinion, that since the sanction of the prosecution accorded by the authority is not found to be a valid sanction by this Court, on this ground alone, the prosecution case must fail. 18. In the result, for the reasons given above, this appeal is allowed, the conviction and sentence of the appellant recorded by the trial Court is set aside and the criminal proceeding of the case against him are dropped. Appeal is accordingly disposed of.