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2013 DIGILAW 698 (GAU)

State of Assam v. Anowar Hussain

2013-09-24

I.A.ANSARI

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. With the help of this appeal, preferred under Section 378 of Code of Criminal Procedure, the State has put to challenge the correctness, legality and validity of the judgment and order, dated 09.04.2009, passed, in Special Case No. 1(A)/2005, by the learned Special Judge, Kamrup, Guwahati, acquitting the accused-respondent of the charge, which had been framed against him under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act, 1988'), by extending to the accused-respondent benefit of doubt. I have heard Mr. D. Das, learned Addl. Public Prosecutor, Assam, appearing on behalf of the appellant, and Mr. N.J. Das, learned counsel, appearing for the accused-respondent. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) H.L. Steel Private Limited, Sivasagar, which is a company registered under the Companies Act, 1956, and hereinafter referred to as 'the Company', used to collect scrap materials from various organizations/agencies, one of such organizations being Oil & Natural Gas Commission (popularly known as 'ONGC'), for the purpose of selling the same, eventually, to rolling mills, which manufacture rods. The accused-respondent, an engineer in ONGC, used to issue gate pass for carrying out the scrap materials from the ONGC's scrap yard, this scrap yard being surrounded by high walls. Though the Company had purchased scrap materials from ONGC, accused-respondent demanded from PW 3, an employee of the Company, a sum of Rs. 50,000/- for issuing gate pass in order to enable the Company lift the scrap materials. On the instructions of the Company, PW 3 visited PW 2, the then Deputy Commissioner, Sivasagar, who assured PW 3 that the culprit would be brought to book. (ii) Pursuant to a trap, which was laid to catch hold of the accused red handed, PW 3 handed over, on behalf of the Company, a sum of Rs. 10,000/- to PW 2, who, in turn, put her signature on a currency note of Rs. 500/- denomination. PW 2 also asked PW 1, an Executive Magistrate, to lay the trap and handed over the said signed currency note of Rs. 10,000/- to PW 2, who, in turn, put her signature on a currency note of Rs. 500/- denomination. PW 2 also asked PW 1, an Executive Magistrate, to lay the trap and handed over the said signed currency note of Rs. 500/- denomination to PW 1, who, accompanied by a police party, went to the scrap yard aforementioned and while PW 1 and the members of the raiding party remained outside, PW 3, accompanied by PW 5, who, too, was an employee of the Company, went inside the said scrap yard. PW 5, then, handed over an envelope, containing the said sum of Rs. 10,000/-, to the accused-respondent The said sum of Rs. 10,000/- included the currency note of Rs. 500/- denomination, which had been signed by PW 2 as the Deputy Commissioner of the district concerned. The accused accepted the said money and issued requisite gate pass. Thereafter, PW 3 and PW 5 came out of the scrap yard and, on coming out, PW 3 signaled towards the accused as the person, who had received the money. PW 1 and the accompanying police personnel, then, searched the wearing apparels of the accused and found, in the breast pocket of his shirt, the said envelope, containing Rs. 10,000/-, including the said signed currency note of Rs. 500/- denomination. While the money, including the said signed currency note of Rs. 500/- denomination, was seized by seizure list, which is Ext. 2, the shirt, which the accused was wearing at the relevant point of time, was seized by another seizure list, which is Ext. 4. (iii) Thereafter, PW 1 lodged an Ejahar at Sivasagar Police Station. Based on the said Ejahar and treating the same as First Information Report (in short, 'FIR'), Sivasagar Police Station Case No. 150/2003, under Section 7 of the PC Act, 1988, was registered against the accused. Having obtained sanction from PW 10, Manager, ONGC, for prosecution of the accused under the said penal provisions, the police, on completion of investigation, laid accordingly a charge-sheet against the accused seeking his prosecution under Section 7 of the PC Act, 1988. 3. At the trial, when a charge, under Sections 7 of the PC Act, 1988, was framed against the accused, he pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 15(fifteen) witnesses. 3. At the trial, when a charge, under Sections 7 of the PC Act, 1988, was framed against the accused, he pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 15(fifteen) witnesses. The accused was, then, examined under Section 313 Cr.P.C. and, in his examination, aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of total denial. The defence declined to adduce any evidence. 5. Having, however, found the accused not guilty of the offence, which he stood charged with, the learned trial Court acquitted him accordingly by according him benefit of doubt Aggrieved by the decision, so reached, the State, as already indicated above, has preferred this appeal. 6. While considering the present appeal, it needs to be noted that the scope of the appellate Court, in an appeal, arising out of acquittal, is distinct and different from the scope of an appellate court's power in an appeal arising out of conviction of an accused. The material distinction between the two is that it is possible for an appellate Court, while sitting in an appeal, arising out of conviction of an accused, to take a view, which is reasonable, but different from the view, which the trial Court may have taken; whereas a Court, while sitting in an appeal, arising out of acquittal, cannot take a view different from the decision of the Court, which has acquitted the accused, unless the appellate Court has reasons to take a view that the conclusion, which the Court, while acquitting the accused, had reached, is completely irrational or is based on a total misreading of the evidence on record leading to miscarriage of justice or is perverse in the sense that the finding of acquittal has been reached contrary to the weight of the evidence on record or on a misconception of law. 7. In short, thus, interference with the judgment of acquittal is possible only when the view, which the Court, while acquitting an accused has taken, is found to be wholly irrational and unacceptable. When two views were possible on the basis of the evidence on record, it is permissible for a Court, while sitting in an appeal, arising out of conviction, to take a view different from the one, which may have been taken by the trial Court. When two views were possible on the basis of the evidence on record, it is permissible for a Court, while sitting in an appeal, arising out of conviction, to take a view different from the one, which may have been taken by the trial Court. On the other hand, while sitting on an appeal against acquittal, a Court would not interfere with the finding of acquittal if there were, on the basis of the evidence on record, two views reasonably possible. Interference, with a finding of acquittal, is permissible only when the conclusion, which has been reached by the trial Court, while acquitting an accused, is such, which a rational mind cannot agree to, or where the conclusion, as regards acquittal, was reached by ignoring the evidence on record or wholly contrary to the evidence on record or on misconception of law or on the basis of inadmissible pieces of evidence and/or the law relevant thereto. 8. What is also of immense importance to note, while considering an appeal against the acquittal, is that an accused is presumed to be innocent until he is proved to be guilty and an order of acquittal bolsters this presumption and strengthens thereby the case of the accused that he is innocent. (See Bhajan Singh @ Harbhajan Singh & Ors. Vs. State of Haryana, reported in (2011) 7 SCC 421 , Pabitar Singh Vs. State of Bihar ( AIR 1972 SC 1899 ), Tota Singh & Anr. Vs. State of Punjab, reported in (1987) 2 SCC 529 , and Ram Swaroop Vs. State of Rajasthan, reported in (2004) 13 SCC 134 ). 9. Bearing in mind the scope of the appellate Court's power to interfere with judgment of acquittal, when I revert to the case at hand, what attracts the attention, most prominently, is that it has been admitted by PW 10, who is a retired employee of ONGC, that he was not the competent authority to accord sanction for prosecution of the accused, though he (PW 10) was the one, who had given the sanction for prosecution of the accused. 10. What is also imperative to note is that one of the grounds for acquittal of the accused-respondent by the learned trial Court is that the prosecution of the accused was without a valid sanction from a competent authority. 11. 10. What is also imperative to note is that one of the grounds for acquittal of the accused-respondent by the learned trial Court is that the prosecution of the accused was without a valid sanction from a competent authority. 11. The question, therefore, is whether granting of sanction by a person, who is not competent or authorized to accord sanction, would ipso facto make the trial without jurisdiction and vitiate the finding of guilt or innocence if reached by a trial Court in such a case? 12. My quest for an answer to the above question brings me to Section 19 of the PC Act, 1988, which, being relevant, is reproduced below: 19. Previous sanction necessary for prosecution (1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Criminal Procedure Code, 1973,- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in. (3) Notwithstanding anything contained in the Criminal Procedure Code, 1973,- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in. the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no Court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.-For the purposes of this section,- (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature. (Emphasis added) 13. From a bare reading of Sub-Section (1) of Section 19 of the PC Act, 1988, it becomes clear that no Court shall take cognizance of an offence under, amongst others, Section 7 of the PC Act, 1988, except with a previous sanction of the authority competent to remove the accused from his office. 14. Ordinarily, when a Court is debarred from taking cognizance of an offence without previous sanction, it logically follows that the holding of the trial without previous sanction, where sanction is necessary, would render the trial a nullity in the eyes of law. 15. 14. Ordinarily, when a Court is debarred from taking cognizance of an offence without previous sanction, it logically follows that the holding of the trial without previous sanction, where sanction is necessary, would render the trial a nullity in the eyes of law. 15. What is, however, important to note is that Sub-Section (1) of Section 465 Cr.P.C. makes it clear that no finding or sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of, amongst others, any error, omission or irregularity in any sanction for prosecution unless the Court is of the opinion that failure of justice has, in fact, been occasioned thereby. 16. In other words, unless an error or irregularity, in granting of sanction, causes, in the opinion of the court, failure of justice, the finding of the trial court cannot be interfered with by court of appeal, confirmation or revision. 17. On the other hand, Section 19 of the PC Act, 1988, conveys a proposition of law, which is distinct and different from the provisions embodied in Section 465 CrPC inasmuch as Sub-Section (3) of Section 19 lays down that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-Section (1), unless, in the opinion of that Court, a failure of justice has, in fact, been occasioned thereby This means that absence of error, omission or irregularity, in the sanction, shall not ipso facto vitiate the trial unless such error, omission or irregularity has resulted in the failure of justice. 18. 18. The Explanation to Sub-Section (4) of Section 19 of the PC Act, 1988, makes it further clear that 'error' includes competency of the authority to grant sanction, which shows that even if the sanction is granted by an authority, which is, otherwise, not competent to grant sanction, trial of an accused, on the basis of such a sanction, would not enable the court of appeal, confirmation or revision to interfere or reverse the finding, sentence or order passed by a Special Judge unless the Court of appeal, confirmation or revision is of the opinion that failure of justice has, in fact, been occasioned by granting of sanction by an authority, who was not competent to grant sanction. 19. Mr. N.J. Das, learned counsel, has, however, referred to the cases of State of Goa Vs. Babu Thomas, reported in (2005) 8 SCC 130 , and Abhay Sing Chautala Vs. Central Bureau of Investigation, reported in (2011) 7 SCC 14), wherein the Supreme Court has interfered with the outcome of trial on the ground of omission to grant sanction by a competent authority. In the case of Babu Thomas (supra), the Supreme Court has clearly held to the effect that when cognizance is taken by a Special Judge, where there is no sanction, where sanction is required, then, the act of taking of cognizance will be a fundamental error, which would invalidate the cognizance resulting into a trial without jurisdiction. To the same effect is the law laid down in State Inspector of Police, Vishakhapatnam Vs. Surya Sankaram Karri, reported in (2006) 7 SCC 172 , wherein the Court has held, in paragraph 26 of its decision, that when sanction is granted by a person not authorized in law, the trial, being without jurisdiction, would be nullity. 20. Notwithstanding the fact that the decision, in Surya Sankaram Karri (supra), does not take note of the provisions embodied in Section 19 as a whole, particularly, Sub-Sections (3) and (4) thereof, judicial discipline binds this Court to follow, and adhere to, the decisions rendered in Babu Thomas (supra) and Abhay Sing Chautala (supra). 21. 20. Notwithstanding the fact that the decision, in Surya Sankaram Karri (supra), does not take note of the provisions embodied in Section 19 as a whole, particularly, Sub-Sections (3) and (4) thereof, judicial discipline binds this Court to follow, and adhere to, the decisions rendered in Babu Thomas (supra) and Abhay Sing Chautala (supra). 21. Situated thus, this Court holds that due to admitted position on record that PW 10, who had granted sanction, was not the authority competent to grant sanction, the very taking of cognizance by the learned Special Judge was without jurisdiction and, in consequence thereof, the trial of the accused was nothing, but nullity in the eyes of law. 22. Coming to the factual aspects of the appeal, let me determine if the learned trial Court's decision, that the prosecution had failed to prove its case beyond reasonable doubt against the accused-respondent, is a correct conclusion and sustainable in law? 23. While considering the question posed above, one cannot avoid noticing that though the present case is one, wherein a trap was claimed to have been laid to apprehend the accused-respondent, who had allegedly demanded a sum of Rs. 50,000/- in order to issue gate pass, it is of utmost importance to note that no contemporary document, which is commonly known as Pre-Trap Memorandum, was prepared in the present case. What is also curious to note and has remained unanswered by the evidence on record is as to why a sum of Rs. 10,000/- was decided to be offered to the accused-respondent, while he had demanded Rs. 50,000/- to issue the gate pass, particularly, when no negotiation, in this regard, is claimed to have taken place between the accused-respondent and PW 1, on the one hand, and PW 3 and PW 5, on the other, both employees of the Company. 24. Be that as it may, a bundle, containing a sum of Rs. 10,000/-, was allegedly handed over by PW 3, an employee of the Company, to PW 2, the then Deputy Commissioner of Sivasagar, and PW 2, then, allegedly put her signature on one of the currency notes, which was of Rs. 500/- denomination. 25. Coupled with the above, the alleged demand for Rs. 10,000/-, was allegedly handed over by PW 3, an employee of the Company, to PW 2, the then Deputy Commissioner of Sivasagar, and PW 2, then, allegedly put her signature on one of the currency notes, which was of Rs. 500/- denomination. 25. Coupled with the above, the alleged demand for Rs. 50,000/- was raised by accused-respondent, when PW 3 had contacted the accused-respondent in order to obtain gate pass; but, strangely enough, the money was handed over by PW 5, a Manager of the Company, to the accused-respondent. 26. What is interesting to note is that, while PW 3 claims that the money, which had been handed over to the accused-respondent, was kept by the accused-respondent in the pocket of his shirt, PW 5, who had allegedly handed over the money, in question, to the accused-respondent, claims that the accused-respondent put the money in the pocket of his trouser. 27. It is, thus, clearly noticeable that though PW 5 and PW 3 were claimed to have been together at the relevant point of time, their evidence as to where the money was kept by the accused-respondent is wholly inconsistent and irreconcilable. 28. What is also of immense importance to note is that the transaction, in question, had, admittedly, not been seen by PW 1, the said Executive Magistrate, and/or any member of the police party, which had accompanied PW 1, and, according to the evidence of PW 1, the money was recovered from the shirt's pocket of the accused-respondent and the same was seized. Amazingly enough, neither PW 3 nor PW 5, who had been involved from the beginning to the end, was a witness to the seizure of the money, the Seizure list, in this regard, being Ext. 2. Similarly, the shirt, in question, was allegedly seized by another seizure list, which is Ext. 4. To Ext. 4, too, neither PW 3 nor PW 5 was a witness. Far from this, the witnesses to the seizure of money were other than PW 3 and PW 5. In fact, the witnesses to the seizure list of money (i.e., Ext. 2) were PW 1, PW 8 and PW 9. All these independent witnesses have clearly deposed that they know nothing about the occurrence. The evidence of the witnesses to the seizure list, in question, do not, therefore, strengthen the case of the prosecution against the accused-respondent. 29. In fact, the witnesses to the seizure list of money (i.e., Ext. 2) were PW 1, PW 8 and PW 9. All these independent witnesses have clearly deposed that they know nothing about the occurrence. The evidence of the witnesses to the seizure list, in question, do not, therefore, strengthen the case of the prosecution against the accused-respondent. 29. Broadly consistent with the seizure of money, PW 6 and PW 7 have been examined by the prosecution as witnesses to the alleged seizure of the shirt of the accused-respondent. The evidence of PW 6 is that he was not even aware of the seizure list. In fact, PW 7 has deposed that he does not know the contents of Ext. 4 nor does he know anything about the occurrence. 30. PW 4 is yet another alleged witness to the seizure of the shirt of the accused-respondent. This witness's evidence is that on 15.05.2003, he happened to visit Sivasagar Police Station, where his cousins were detained by the police, and, on being asked by the police, he put his signature on Ext. 4. In his cross-examination, PW 4 has clarified that he merely signed on the seizure list (Ext. 4) and that he has no personal knowledge about the fact of the case. 31. Situated thus, it is abundantly clear that the prosecution could not adduce any credible and convincing evidence as regards the seizure of money from the wearing apparels of the accused-respondent. 32. In the face of the evidence discussed above, the trial Court cannot be said to be wholly incorrect in coming to the conclusion, which he did, that the prosecution had failed to prove its case beyond reasonable doubt and the accused was, therefore, entitled to be accorded benefit of doubt. 33. In an appeal, arising out of acquittal, the appellate court cannot interfere with the acquittal of an accused unless the appellate court takes the view that the conclusion, reached by the trial Court, was on misreading of evidence, or on incorrect proposition of law, or in consideration of inadmissible evidence, or wholly against the weight of the evidence on record. Such is not the case at hand. 34. The conclusion, which the learned trial Court has reached, is, in the facts and attending circumstances of the present case, as discernible from the evidence on record, reasonable and tenable. Such is not the case at hand. 34. The conclusion, which the learned trial Court has reached, is, in the facts and attending circumstances of the present case, as discernible from the evidence on record, reasonable and tenable. In such circumstances, interference with the acquittal of the accused-respondent is neither permissible nor desirable. 35. In the result and for the reasons discussed above, this appeal fails and the same shall accordingly stand dismissed. Send back the LCR.