Section
Vinod Kumar Garg Vs. State (Govt. of National Capital Territory of Delhi)
[Criminal Appeal No. 1781 of 2009]
Sanjiv Khanna, J.
1.The impugned judgment
dated 7th January 2009 passed by the
High Court of Delhi upholds conviction of Vinod Kumar Garg (the appellant,
for short) under Sections 7 and 13 of the Prevention of Corruption Act, 1988
(the Act, for short) imposed by the Special Judge, Delhi vide judgement dated
27th March 2002. The appellant
has been sentenced to undergo rigorous imprisonment for one and a half years,
and fine of Rs. 1,000/- for each offence and in default of payment to undergo
simple imprisonment for three months on both counts separately. The sentences
have been directed to run concurrently.
2. Challenging the conviction,
the learned senior advocate for the appellant submits that there are major
contradictions on material aspects in the testimonies of the complainant Nand
Lal (PW-2) and the panch witness Hemant Kumar (PW-3). Nand Lal (PW-2) in his
court testimony recorded on 9th July 1999 had denied to having paid any money to the appellant prior to lodging of
the complaint, but in his complaint (Exhibit PW-2/A) dated 2nd August 1994, Nand Lal
(PW-2) had alleged that he had fifteen days back paid Rs. 500/- to the
appellant. Further, Nand Lal (PW-2) in his examination-in-chief on hand-wash
had claimed that it was taken and perhaps polythene bag was also washed, but in
his crossexamination PW-2 had accepted that hand-wash of the appellant was not
taken. Similarly, Hemant Kumar (PW-3) had contradicted the version in his
examination that the pant wash of the accused was taken at the
Anti-Corruption Branch, as in his crossexamination Hemant Kumar (PW-3) had
accepted the suggestion that the hand-wash and pocket wash were not taken after
the appellant was apprehended.
Inspector Rohtash Singh (PW-5) who had conducted
the raid has admitted that he had not taken the hand-wash or the pant wash of
the appellant from which the polythene packet containing the bribe money was allegedly
seized. Further, the testimonies of Nand Lal (PW-2) and Hemant Kumar (PW-3)
reveal a major dichotomy on the amount that the appellant had allegedly
demanded as bribe. In his crossexamination Nand Lal (PW-2) had denied the
suggestion that the appellant had asked for Rs. 2,000/- to be paid separately
by Nand Lal (PW-2) and Hemant Kumar (PW-3) as the two were partners, contrary
to the version given by Hemant Kumar (PW-3) who had deposed that the appellant
had told them in the gallery that each of them should pay Rs. 2,000/-. There is
a contradiction in the testimony of Nand Lal
(PW-2) and Hemant Kumar (PW-3) as to the place where the allegedly bribe money
was asked and paid to the appellant.
As per Nand Lal (PW-2) the bribe was asked
and paid in the garment shop, whereas Hemant Kumar (PW-3) has denied that the
payment took place inside the cloth shop. Drawing our attention to the version
of Nand Lal (PW-2), it was submitted that Hemant Kumar (PW-3) was not an
eyewitness or a panch witness to the demand and payment of alleged bribe money.
In view of the irreconcilable versions of the two witnesses, the appellant is
entitled to benefit of doubt. Further, there is no evidence or document to show
that Nand Lal (PW-2) was the tenant in the shed for which the appellant had
statedly asked for bribe money to provide the electricity meter. Anil Ahuja
(PW-6), the owner of the shed has not supported the case of the prosecution and had contradicted the
claim made by Nand Lal (PW-2) in his complaint (Exhibit PW-2/A).
3. On the question of
demand and payment of bribe for performance of public duty or forbearance to
perform such duty, we would read the testimonies of the complainant – Nand Lal
(PW-2), panch witness – Hemant Kumar (PW-3), and the Inspector of Anti- Corruption
Branch – Rohtash Singh (PW-5) in unison. Nand Lal (PW-2) has deposed having
visited the DESU office and his meeting with Inspector Yadav for installation
of electricity meter in the shed for a fan and a light. Nand Lal (PW-2) after
shifting his goods etc. to the shed had again visited the DESU Office and
learnt that Inspector Yadav had been transferred. Nand Lal (PW-2) had met his
successor-the appellant, who had asked him to move an application for providing
a meter for the electricity connection.
The appellant had also stated that
electricity could be provided without meter for which Nand Lal (PW-2) was asked
to pay bribe of Rs.2,000/-. Thereupon, Nand Lal (PW-2) had expressed his
inability to pay Rs.2,000/- in lumpsum but he could pay the bribe amount in
instalments of Rs.500/- each, which the appellant had agreed and accepted.
Thereafter, Nand Lal (PW-2) had visited the Anti-Corruption Branch and lodged
his complaint on 2nd
August 1994 vide Exhibit PW-2/A that was signed by him at Point A. Both Hemant Kumar (PW-3)
and Inspector Rohtash Singh (PW-5) have in seriatim confirmed the
relevant ensuing events. Nand Lal (PW-2), Hemant Kumar (PW-3) and Rohtash Singh
(PW-5) have affirmed that Nand Lal (PW-2) had produced five currency notes of
Rs.100/- each, the serial numbers of which were duly recorded and the notes
were sprinkled with powder.
The three had then along with other members of the
raiding team proceeded to the DESU office but the appellant had asked Nand Lal
(PW-2) to come on the next day, as the work would not be done on 2nd August 1994. On 3rd August 1994, Nand Lal
(PW-2) had again visited the Anti-Corruption Branch office where Hemant Kumar (PW-3)
and Rohtash Singh (PW-5) were present. The currency notes were again subjected
to chemical treatment and the raiding party had proceeded to the DESU office.
Nand Lal (PW-2) and Hemant Kumar (PW-3) had met the appellant, who had then asked
Nand Lal (PW-2) to wait on the appellants scooter parked outside the office.
After some time, the appellant came out of the office. He started the scooter
and they drove for about 50 yards with Nand Lal (PW-2) sitting on the pillion
seat. Nand Lal (PW-2) in his deposition has stated that he had asked the
appellant to stop the scooter as the third person – Hemant Kumar (PW-3) was also
accompanying them.
4. Thereafter, there is
divergence in the version given by Nand Lal (PW-2) on one side and the version
given by Hemant Kumar (PW- 3) and Rohtash Singh (PW-5). Nand Lal (PW-2) has
testified that the appellant after stopping the scooter went inside a garment shop.
He had then asked Nand Lal (PW-2) to come inside. Nand Lal (PW-2) proceeded
inside. The appellant had then demanded money from Nand Lal (PW-2) – “lao, paise do. The appellant had procured
one polythene bag and Nand Lal (PW-2) was asked to put the money in the
polythene bag and thereafter put the polythene bag in the appellants pocket.
Nand Lal (PW-2) had suggested that he would give money in the presence of the
other person, i.e., Hemant Kumar (PW-3), which suggestion was not accepted by
the appellant.
Nand Lal (PW-2) is, however, categoric that he had as directed
put the money in the pocket of the pant of the appellant. Thereafter, Nand Lal
(PW-2) went outside and gave signal to the witness Hemant Kumar (PW-3) who
started to move towards him. The appellant came out of the shop. Nand Lal
(PW-2) also accepts that Hemant Kumar (PW-3) had given signal to the raiding
team who reached the spot and had caught hold of the appellant. From the pant
pocket of the appellant, a polythene bag containing the currency notes was
seized. Thus, Nand Lal (PW-2) accepts that bribe was demanded and paid and that
the tainted bribe money was recovered from the appellant by Rohtash Singh (PW-5)
in his presence and in the presence of Hemant Kumar (PW-3).
5. Hemant Kumar (PW-3) has
on the other hand unfailingly affirmed that he had joined the raiding team as
panch witness and that Nand Lal (PW-2) had recorded his statement/complaint
vide Exhibit PW-2/A. Hemant Kumar (PW-3) has deposed as to the five currency
notes of Rs. 100/- each given by the complainant to the Anti-Corruption Branch
office on which phenolphthalein powder was coated. Instructions were given. On
2nd August 1994 at about 10:00 -10:30 a.m., the
raiding team had visited the DESU office but the appellant had asked Nand Lal
(PW-2) to come on the next day. On 3 rd August 1994 at 9:30 a.m. Hemant Kumar (PW-3) had visited the
Anti-Corruption Branch office. Nand Lal (PW-2) was present and the entire
exercise of powdering the currency notes etc. was repeated. Hemant Kumar (PW-3)
and Nand Lal (PW-2) along with the raiding team had reached the DESU office at
about 10:00 a.m.
The appellant took Nand Lal (PW-2) outside the DESU office and
they drove away on the scooter. Hemant Kumar (PW-3) had followed them on foot.
The scooter was driven to a distance of about 50 yards from the DESU office.
Thereupon, the appellant and Nand Lal (PW-2) had proceeded near a cloth shop
where Nand Lal (PW-2) had handed
over the tainted money to the appellant after placing it in a polythene bag in
his presence. The appellant had kept the polythene bag with the currency notes
in the right-side pant pocket of the appellant. The raiding party arrived at
the spot and recovered the notes from the right-side pocket of the pant of the
appellant. The notes were tallied with the numbers already noted and the same
were seized by Exhibit PW-2/C. Thereupon, the
appellant-accused was taken to the Anti-Corruption Branch.
6. The two testimonies of
Nand Lal (PW-2) and Hemant Kumar (PW-3) on visit by the raiding team to the
DESU office on 2nd
August 1994
when the appellant had asked Nand Lal (PW-2) to come on the next day; that on 3rd August 1994 Nand Lal (PW-2)
and Hemant Kumar (PW-3) along with the raiding team had accordingly again
visited the DESU office; that the appellant and Nand Lal (PW-2) had travelled
on the scooter for a short distance; and that Hemant Kumar (PW-3) had followed
them on foot, are affirmed by Inspector Rohtash Singh (PW-5) who has also identically deposed, albeit he was not the person who
had initially interacted with the appellant at the DESU office.
7. On the succeeding
events, Rohtash Singh (PW-5) in his testimony has affirmed the narration of
facts as stated by Hemant Kumar (PW-3). Hemant Kumar (PW-3) gave a signal and
accordingly members of the raiding team had reached the spot and apprehended
the appellant. Rohtash Singh (PW-5) had then disclosed his identity to the
appellant and had challenged him that the appellant had accepted the bribe
money from Nand Lal (PW-2). Rohtash Singh (PW-5) had offered for his search,
but it was refused by the appellant. The appellant was searched and polythene bag containing
five Rs.100/- currency notes was recovered from the right-side pant pocket of
the appellant. The five notes were marked P-3 to P-7 and were seized vide
seizure memo PW-2/C. The numbers on the currency notes were tallied with the
pre-raid report and were found to be the same.
8. Even if we are to accept
the version of Nand Lal (PW-2), the appellant had asked for the bribe money
that was paid to the appellant and at best at that time Hemant Kumar (PW-3) was
not physically present inside the shop and was standing outside the shop. Nand
Lal (PW-2) in his examination-in-chief has stated that the appellant had
demanded money from him saying – “Lao paise do. Thereafter, Rs. 500/-
were paid as bribe by Nand Lal (PW-2 to the appellant in a
polythene bag which was put in the appellants pant pocket as was directed by
the appellant. The presence of Hemant Kumar (PW-3) in the immediate vicinity remains
unchallenged. In either case, we do not think that this deviation and
incongruity between the depositions by Nand Lal (PW-2) and Hemant Kumar (PW-3)
should result in the acquittal of the appellant.
These deviations between the
testimonies of Nand Lal (PW-2) and Hemant Kumar (PW-3) does not mean that the demand
and payment of bribe, the trap and seizure of the bribe paid is not proved. The
testimony of Rohtash Singh (PW-5) bolsters our findings. Rohtash Singh (PW-5) has
deposed about the recovery of bribe money on lines similar to the version of
Nand Lal (PW-2) and Hemant Kumar (PW-3). It appears that Nand Lal (PW-2) had
either tried to help the appellant but was unable do so in view of the
documentary evidence in the form of his written complaint – Exhibit PW-2/A
signed by him at point A and other documents prepared at the
spot with his signature, or because of the time gap had forgotten some facts.
On the first aspect relating to the contemporaneous documents, we would refer
to the crossexamination of Nand Lal (PW-2) by the Additional Public Prosecutor
on 14th September 1999 which reads
as under:
“I cannot say whether
the numbers of the said GC notes were found to be same which were mentioned in the
pre-raid report. It is wrong that I am not intentionally disclosing this fact.
It is correct that seizure memo of GC notes were prepared in my presence which
is Ex. PW 2/C which bears my signature at point A. It is correct that GC notes
Ex. P3 to P7 are the same which were recovered from the possession of the
accused and were seized vide memo Ex. PW 2/C. It is correct that said polythene
bag was got washed in colourless solution of sodium carbonate and that solution
had turned pink and that solution was transferred into two bottles and the bottles
were properly sealed and labeled. Bottles are Ex. P1 and P2 which bears my signatures
on each bottle at point A. Polythene bag wash Ex. P1 and P2 were taken into
possession vide seizure memo Ex.PW 2/D which bears my signatures at point A. Polythene bag
is Ex. P8 which bears my signature at point A. Polythene bag Ex. P8 was taken into
possession vide memo Ex. PW 2/F which bears my signature at point A.
9. Turning to the question
of washing the polythene bag, the handwash and the pant wash of the appellant, Rohtash
Singh (PW-5) has stated that phenolphthalein powder was applied to the currency
notes and after the appellant was detained the polythene packet was washed and
the wash was transferred to the bottles marked P1 and P2 which were taken into
possession vide Exhibit PW-2/D. The polythene bag was also seized vide Exhibit
PW-2/E. Raid memo proceedings were marked as Exhibit PW-2/G and post-raid
proceedings as Exhibit PW-2/K. The aforesaid exhibits, i.e. P1 and P2 and the
papers prepared have been accepted and proved in evidence by Nand Lal (PW-2)
and Hemant Kumar (PW-3).
10. Regarding the
hand-wash, Nand Lal (PW-2) could not recollect full facts and had stated that
as far as he could remember, the appellant had given his hand-wash and the
polythene bag was also washed. Nand Lal (PW-2) had identified his signature on
the bottles containing the wash of the polythene bag and also the signature on
the papers prepared. Hemant Kumar (PW-3) had stated that the pant wash was not
done. We would observe that ex facie the hand wash and the pant
wash were not done as the coated money was put in the polythene b ag. Polythene
bag was washed and the wash kept in the bottles as has been deposed by Rohtash
Singh (PW-5). Minor discrepancy and inability of Nand Lal (PW-2) and Hemant
Kumar (PW-3) to remember the exact details of whether or not the handwash or
pant wash was done would not justify acquittal of the appellant.
11. The contradictions that
have crept in the testimonies of Nand Lal (PW-2) and Hemant Kumar (PW-3)
noticed above and on the question of the total amount demanded or whether Nand
Lal (PW-2) had earlier paid Rs.500/- are immaterial and inconsequential as it
is indisputable that the bribe was demanded and taken by the appellant on 3rd August 1994 at about 10:30
a.m. The variations as highlighted lose significance in view of the proven
facts on the recovery of bribe money
from the pant pocket of the appellant, on which depositions of Nand Lal (PW-2),
Hemant Kumar (PW-3) and Rohtash Singh (PW-5) are identical and not at variance.
The money recovered was the currency notes that were treated and noted in the
pre-raid proceedings vide Exhibit PW-2/G.
The aspect of demand and payment of
the bribe has been examined and dealt with above. The contradictions as pointed
out to us and noted are insignificant
when juxtaposed with the vivid and eloquent narration of incriminating facts
proved and established beyond doubt and debate. It would be sound to be
cognitive of the time gap between the date of occurrence, 3rd August 1994, and the dates
when the testimony of Nand Lal (PW-2) was recorded, 9th July 1999 and 14th September 1999, and that
Hemant Kumars (PW-3) testimony was recorded on 18th December 2000 and 30th January 2001. Given the
time gap of five to six years, minor contradictions on some details are bound
to occur and are natural. The witnesses are not required to recollect and
narrate the entire version with photographic memory notwithstanding the hiatus
and passage of time. Picayune variations do not in any way negate and
contradict the main and core incriminatory evidence of the demand of bribe,
reason why the bribe was demanded and the actual taking of the bribe that was
paid, which are the ingredients of the offence under Sections 7 and 13 of the
Act, that as noticed above and hereinafter, have been proved and established
beyond reasonable doubt.
Documents prepared contemporaneously noticed above
affirm the primary and ocular evidence. We, therefore, find no good ground and
reason to upset and set aside the findings recorded by the trial court that
have been upheld by the High Court. Relevant in this context would be to refer
to the judgment of this Court in State of U.P. v. Dr. G.K. Ghosh1 wherein it was held that in
a case involving an offence of demanding and accepting illegal gratification,
depending on the circumstances of the case, it may be safe to accept the
prosecution version on the basis of the oral evidence
of the complainant and the official witnesses even if the trap witnesses turn
hostile or are found not to be independent. When besides such evidence, there
is circumstantial evidence which is consistent with the guilt of the accused
and inconsistent with his innocence, there should be no difficulty in upholding
the conviction.
12. On the question of
reason for the demand and payment of the bribe, the complainant Nand Lal (PW-2)
is categoric that he had taken industrial shed in DSIDC area, Welcome Colony,
Seelam Pur, Delhi on hire from one Anil Ahuja. The shed did not have an electricity
meter. Anil Ahuja, who had appeared as PW-6, had denied having given the said
shed on rent and was declared hostile. The testimony of PW-6 is, however,
highly doubtful and not trustworthy, for he had
failed and avoided to answer the question from whom he had purchased the shed.
The fact that the shed did not have an electricity connection as deposed to by
Nand Lal (PW-2) has not been challenged. Nand Lal (PW-2) in his cross-examination
had specifically denied the suggestion that he has not taken the shed on
hire/rent. Interestingly, in the crossexamination one of the suggestions put to
Nand Lal (PW-2) was that he had given an
application for electricity connection to the predecessor of the appellant and
not to the appellant, thus, suggesting that Nand Lal (PW-2) wanted installation
of an electricity meter for the shed. We would, therefore, reject the contention
of the appellant that Nand Lal (PW-2) had falsely deposed that he had taken the
industrial shed on hire which did not have an electricity connection. The
deposition of Nand Lal (PW-2) that he wanted an electricity connection to be
installed in the shed should be accepted.
13. On the said aspect, we
would now refer to Section 20 of the Act which reads as under:
“20. Presumption where
public servant accepts gratification other than legal remuneration
(1) Where, in any trial of
an offence punishable under Section 7 or Section 11 or clause (a) or clause (b)
or subsection (1) of Section 13 it is proved that an accused person has
accepted or obtained or has agreed to accept or attempted to obtain for
himself, or for any other person, any gratification (other than legal
remuneration) or any valuable thing from any person, it shall be presumed, unless
the contrary is proved, that he accepted or obtained or agreed to accept or
attempted to obtain that gratification or that valuable thing, as the case may
be, as a motive or reward such as is mentioned in Section 7 or, as the case may
be, without consideration or for a consideration which he knows to be
inadequate.
(2) Where in any trial of
an offence punishable under Section 12 or under clause (b) of Section 14, it is
proved that any gratification (other than legal remuneration) or any valuable
thing has been given or offered to be given or attempted to be given by an
accused person, it shall be presumed, unless the contrary is proved, that he
gave or offered to give or attempted to give that gratification or that valuable thing, as the
case may be, as a motive or reward such as is mentioned in Section 7, or, as
the case may be, without consideration or for a consideration which he knows to
be inadequate.
(3) Notwithstanding
anything contained in sub-sections (1) and (2), the court may decline to draw
the presumption referred to in either of the said sub-sections, if the
gratification or thing aforesaid is, in its opinion, so trivial that no
interference of corruption may fairly be drawn. The statutory presumption
under Section 20 of the Act can be confuted by bringing on record some
evidence, either direct or circumstantial, that the money was accepted other
than for the motive or the reward under Section 7 of the Act. The standard required
for rebutting the presumption is tested on the anvil of preponderance of
probabilities which is a threshold of a lower degree than proof beyond all
reasonable doubt.
14. In the case at hand,
the condition precedent to drawing such a legal presumption that the accused
has demanded and was paid the bribe money has been proved and established by
the incriminating material on record. Thus, the presumption under Section 20 of
the Act becomes applicable for the offence committed by the appellant under
Section 7 of the Act. The appellant was found in possession of the bribe money
and no reasonable explanation is forthcoming that may rebut the presumption.
Further, the recovery of the money from the pocket of the appellant has also
been proved without doubt. We, therefore, hold that money was demanded and
accepted not as a legal remuneration but as a motive or reward to provide
electricity connection to Nand Lal (PW-2) for the shed.
15. Pertinent in this
regard would be the statement made by the appellant under Section 313 of the
Code of Criminal Procedure, 1973 (the Code, for short) wherein in response to
most of the questions, the appellant had expressed his inability to answer or denied
the evidence proved. The appellant had accepted his arrest but had debunked the
case as false and the CFSL report (Exhibit PW-4/A) as biased and motivated. In
response to the last question, the appellant had
alleged that Nand Lal (PW-2) and Hemant Kumar (PW-3) had not supported the prosecution
case and that he was innocent as he had never demanded or accepted any money as
bribe.
16. We would now turn our
attention to the two technical objections taken by the appellant in respect of
the sanction order and the validity of investigation. In the present case,
Navin Chawla (PW-1) had issued and granted sanction for prosecution of the
appellant. He had deposed that the appellant was working as an inspector in DESU
and he was the competent officer to remove him. He had, after carefully
examining the allegations contained in the material placed before him, granted
the sanction for prosecution vide order Exhibit PW-1/A. Paragraphs 1 and 2 of
the sanction order Exhibit PW-1/A read:
“Whereas it is alleged that
Sh. Vinod Kumar Garg while functioning as Inspector, DESU (now DVB) Office Seelam
Pur, Delhi, a public servant in the discharge of this official duty demanded
Rs. 2,000/- as illegal gratification from Sh. Nand Lal S/o Shri Megh Raj r/o H.N.
341/20, Mangal Sain Building, Bagh Kare Khan, Delhi-110007 in consideration for
installing an electric meter at shop No. A-2 DSIDC Welcome Colony, Seelam Pur,
Delhi, without proper formalities. Sh. Vinod Kumar Garg, Inspector, DESU (now
DVB) office Seelam Pur, Delhi, demanded, accepted and obtained Rs. 500/-
(second instalment) as illegal gratification from the complaint. xx xx xx Whereas
I, Navin Chawla, Chairman, D.V.B., New Delhi being the authority competent to
remove Sh. Vinod Kumar Garg, DVB Office Seelam Pur, Delhi from office/services
after fully and carefully examining the material before me in regard to the
said allegation and circumstances of the case consider the said Inspector, Vinod
Kumar Garg, DVB Office Seelam Put, Delhi be prosecuted in the Court of Law for
the said offence/offences.
17. Relevant portion of
Navin Chawlas (PW-1) examination-in-chief and the entire cross-examination
read as under:
“After fully and carefully
examining the allegation contained in the material placed before me and the circumstances
of the case I granted sanction for prosecution of Vinod Kumar Garg vide my
order Ex.PW 1/A. This order bears my signature at point A. Cross-Examination
“I had received a request
for grant of sanction from the Anti-Corruption Branch. I had received along
with the report of the I.O. calendars (sic kalandra) of oral and documentary evidence. It is
correct that in this case, I had not received copies of statements of witnesses
recorded u/s. 161 P.C. (sic Cr.P.C) or the seizure memos regarding the seizure of the bribe
money. I had not received any copy of the report of the C.F.S.L. I had also
received a format of the sanction order. I did not verify from the records of
DESU whether the complainant had applied for an electric connection. I did not
verify whether the complaint was a tenant or allottee of D.S.I.D.C. shed. In
fact, I had granted the sanction only on the basis of the report of the IO and calendars
(sic
kalandra)
of oral and documentary evidence furnished by the Anti-Corruption Branch.
Navin Chawla (PW-1) was
specifically cross-examined and questioned whether “he had received the copy of
the statement of the witnesses recorded under Section 161 of the Code or the C.F.S.L
report. It is obvious that he had not asked for and received these reports or
the statements under Section 161 of the Code. Navin Chawla (PW-1) in his
cross-examination was, however, clear and categoric that he had received the
report of the Investigating Officer along with the kalandra of oral and documentary
evidence. The witness it is apparent may not be familiar with the statements
under Section 161 of the Code etc., but he had certainly examined and
considered the relevant material in the form of oral and documentary evidence
that were a part and parcel of the kalandra. We have to read the crossexamination of
Navin Chawla (PW-1) in entirety and not in piecemeal.
18. The appellant has
relied upon the judgments of this Court in Mohd. Iqbal Ahmed v. State of A.P.2 and State of
Karnataka v.
Ameerjan3 to challenge the sanction
order. In Mohd.
Iqbal Ahmed (supra)
it was observed that a valid sanction is the one that is granted by the
Sanctioning Authority after being satisfied that a case for sanction is made
out constituting the offence. It is important to be mindful of the observations
made by the Court as reproduced below:
“3. what the Court has
to see is whether or not the Sanctioning Authority at the time of giving
sanction was aware of the facts constituting the offence and applied its mind
for the same.
Similarly, in Ameerjan (supra), it was observed:
“10. Ordinarily, before
passing an order of sanction, the entire records containing the materials collected
against the accused should be placed before the sanctioning authority. In the
event, the order of sanction does not indicate application of mind as (sic to) the materials placed
before the said authority before the order of sanction was passed, the same may
be produced before the court to show materials had in fact been produced. Therefore, what the law
requires is the application of mind by the Sanctioning Authority on the
material placed before it to satisfy itself of prima facie case that would constitute
the offence. On the said aspect, the later decision of this Court in State of Maharashtra
v. Mahesh G. Jain4 has referred to several decisions
to expound on the following principles of law governing the validity of
sanction:
“14.1. It is incumbent on
the prosecution to prove that the valid sanction has been granted by the
sanctioning authority after being satisfied that a case for sanction has been
made out.
14.2. The sanction order
may expressly show that the sanctioning authority has perused the material
placed before it and, after consideration of the circumstances, has granted
sanction for prosecution.
14.3. The prosecution may
prove by adducing the evidence that the material was placed before the sanctioning
authority and its satisfaction was arrived at upon perusal of the material placed
before it.
14.4. Grant of sanction is
only an administrative function and the sanctioning authority is required to prima
facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of
material placed before the sanctioning authority cannot be gone into by the
court as it does not sit in
appeal over the sanction order.
14.6. If the sanctioning
authority has perused all the materials placed before it and some of them have
not been proved that would not vitiate the order of sanction.
14.7. The order of sanction
is a prerequisite as it is intended to provide a safeguard to a public servant against
frivolous and vexatious litigants, but simultaneously an order of sanction
should not be construed in a pedantic manner and there should not be a hypertechnical
approach to test its validity. The contention of the appellant, therefore, fails
and isrejected.
19. The last contention of
the appellant is predicated on Section 17 of the Act and the fact that the
investigation in the present case was not conducted by the police officer by
the rank and status of the Deputy Superintendent of Police or equal, but by
Inspector Rohtash Singh (PW-5) and Inspector Shobhan Singh (PW-7). The contention
has to be rejected for the reason that while this lapse would be an
irregularity and unless the irregularity has resulted in causing prejudice, the
conviction will not be vitiated and bad in law. The appellant has not alleged
or even argued that any prejudice was caused and suffered because the
investigation was conducted by the police officer of the rank of Inspector,
namely Rohtash Singh (PW-5) and Shobhan Singh (PW-7).
20. This Court in Ashok Tshering
Bhutia v.
State
of Sikkim5
referring to
the earlier precedents has observed that a defect or irregularity in
investigation however serious, would have no direct bearing on the competence
or rocedure relating to cognizance or trial. Where the cognizance of the case
has already been taken and the case has proceeded to termination, the invalidity
of the precedent investigation does not vitiate the result, unless amiscarriage of justice has
been caused thereby. Similar is the position with regard to the validity of the
sanction. A mere error, omission or irregularity in sanction is not considered
to be fatal unless it has resulted in a failure of justice or has been
occasioned thereby. Section 19(1) of the Act is matter of procedure and does not
go to the root of the jurisdiction and once the cognizance has been taken by
the court under the Code, it cannot be said that aninvalid police report is
the foundation of jurisdiction of the court to take cognizance and for that
matter the trial.
21. For the foregoing
reasons, we dismiss the present appeal and uphold the conviction of the
appellant under Sections 7 and 13 of the Act and the sentences as imposed. The
appellant would surrender within a period of four weeks from today to undergo
the remaining sentence. On failure to surrender, coercive steps would be taken
by the trial court. All pending applications are also disposed of.
………………………………..J.
(INDU MALHOTRA)
………………………………….J.
(SANJIV KHANNA)
NEW DELHI;
NOVEMBER 27, 2019
Criminal Appeal
No. 1781 of 2009
1 (1984) 1 SCC 254
2 (1979) 4 SCC 172
3 (2007) 11 SCC 273
4 (2013) 8 SCC 119
5 (2011) 4 SCC 402
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