Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.297 of 2002 =========================================================== Rajeshwar Yadav, son of Late Soman Yadav, resident of Mohalla M/3, Officers‟ Flat, New Punaichak, Patna, P.S. Shastri Nagar, District- Patna. .... .... Appellant/s Versus 1. State Of Bihar 2. The Union of India, through C.B.I. Patna Opposite parties.... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Chittaranjan Sinha, Sr. Advocate & Mr. Nityanand Mishra, Advocate. For the Respondent/s : Mr. Bipin Kumar Sinha (SCCBI) =========================================================== CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA ORAL JUDGMENT Date: 19-08-2013 This is an appeal preferred by the solitary appellant against his conviction for the offence under sections 7 and 13 (2) read with section 13 (1) © of Prevention of Corruption Act, 1988 hereinafter said as Act and sentenced to undergo R.I. for two years for each of the offences. However, sentences will run concurrently as awarded by the Special Judge, C.B.I., South Bihar, Patna in Special Case No. 83 of 1992, R.C. No. 38 (A) of 1992 on 11th June, 2002. 2. The prosecution case, in short, is that one U.S. Sharma, proprietor of M/S U.S. Steel Industries Pvt. Ltd, Phulwarisharif, Patna P.W. 8 applied for telephone connection and after preparation of advice and deposit of money etc. as per demand notes telephone connections were installed for which the appellant, Junior Telecom Officer approached and demanded Rs. 1,000/- for each connection in addition to what has already been officially deposited, as a gratification. Since the same was not acceptable complaint, Exhibit 7, by an Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 2 employee R.N. Sharma (not examined) was lodged with the S.P. C.B.I. (Not examined) after initial verification and report Ext. 6 a team of officials including independent witnesses called from the Branch of State Bank of India was arranged for trap and demonstration was made by P.W. 12 before the Team and they were instructed properly what to do. Required currency notes were also made ready after pouring phenolphthalein powder and as per pre-trap memorandum Ext 9 everything was arranged and the team proceeded and when the appellant accepted after due conversation Rs.1,000/- as agreed for installation of one connection, first he was taken into custody got from his office to C.B.I. Office, recovery, seizure and other legal other formalities as per recovery memo Ext 11 were prepared, obtaining sanction etc. charge sheet was submitted. 3. During trial the prosecution examined altogether 12 witnesses besides producing a good number of documentary evidence such as:- Ext.1- Signature on Advice note. Ext.2 & 2/1- Advice Note. Ext.3- Sanction order. Ext.4- Advice No. 313 Mark „X‟ for identification- Photo copy of advice notes dated 17.10.92. Mark „Y‟ for identification- Letter dt. 11.11.92 of Ram Narayan Sharma. Mark „Y/1‟ for identification- Letter dt. 11.11.92 of Prabeen Kumar Ext.5- Signature of Sri Sita Ram on bottal No. 507A. Ext.5/1- Signature of Sri Sita Ram on sealed envelop of piece of Paper. Ext.5/2- Signature of Sri Sita Ram on sealed envelop of Phenolphthalein Exts. 5/3 to 5/6- Signature of Sri Sita Ram on preliminary memorandum Ext. 5/7- Signature of Sri Sita Ram on sealed envelop of Rs. 1000/- Ext.5/8- Signature of Sri Sita Ram on bottal of left hand wash. Ext. 5/9- Signature of Sri Sita Ram on bottal of shirt wash. Ext. 5/10- Signature of Sri Sita Ram on sealed envelop of shirt. Ext. 5/11- Signature of Sri Sita Ram on sealed envelop of Carbonate powder. Ext. 5/12- Signature of Sri Sita Ram on sealed envelop of Rs. 840/-. Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 3 Ext. 5/13- Signature of Sri Sita Ram on sealed envelop of Rs. 300/- Ext. 5/14 to Ext. 5/17- Signature of Sri Sita Ram on memo of recovery. Ext. 2/2- Advice Note. Ext. 5/18- Signature of Sri Krishna Choudhary Ext. 6- Verification report. Mark Z to Z/2 for identification- Demand Note. Ext. 7- Complaint. Ext. 8- Expert report. Ext. 5/19- Signature of Sri M.K.Sinha on envelop of piece of paper. Ext. 5/20- Signature of Sri M.K. Sinha on D/W bottal. Ext. 5/21- Signature of Sri M.K. Sinha on envelop of powder use. Ext. 5/22 to 5/25- Signature of Sri M.K. Sinha on preliminary Memorandum. Ext. 5/26- Signature of Sri Mahendra Kr. Sinha on envelop of tainted amount Rs. 1000/-. Ext. 5/27- Signature of Sri Mahendra Kr. Sinha on envelop of money of Rs. 840/-. Ext. 5/28- Signature of Sri M.K. Sinha on envelop of recorded money of Rs. 300/-. Ext. 5/29- Signature of Sri M.K. Sinha on Right hand wash bottal. Ext. 5/30- Signature of Sri M.K. Sinha on left hand wash bottal; Ext. 5/31- Signature of Sri M.K. Sinha on pocket wash bottal. Ext. 5/32- Signature of Sri M.K. Sinha on envelop of shirt. Ext. 5/33- Signature of Sri M.K. Sinha on envelop of sodium Carbonate powder. Ext. 5/34 to 5/37- Signature of Sri M.K. Sinha on recovery memorandum. Ext. 5/38- Signature of Sri M.K. Sinha on search list. Ext. 5/39- Signature of Sri Sita Ram on search list. Ext. 5/40- Signature of Sri M.K. Sinha on search list. Ext. 5/41- Signature of Sri Sita Ram on search list. Ext. 9- Preliminary report. Ext. 5/42- Signature of J.P. Mishra on Phenolphthalein powder Envelop. Ext. 5/43- Signature on piece of paper demonstration. Ext. 5/44- Signature of J.P. Mishra on Demonstration wash bottal. Ext. 5/45- Signature of J.P. Mishra on G.C. Note envelop. Ext. 5/46- L.H.Wash Bottal Signature of J.P. Mishra. Ext. 5/47- R.H. Wash Bottal Signature J.P. Mishra. Ext. 5/48- Shirt pocket wash bottal signature J.P. Mishra. Ext. 5/49- Signature J.P. Mishra on Sodium Carbonate envelop. Ext. 5/50 to 5/51- Signature J.P. Mishra on personal search G.C. note two envelop. Ext.5/52 to 5/55- Signature of J.P. Mishra on Recovery of Memorandum. Ext. 10- F.I.R. Ext. 5/56 to 5/59- Signature of Nagendra Prasasd on preliminary Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 4 Memorandum. Ext. 5/60 to 5/63- Signature of R.N. Sharma on Preliminary Memorandum (Complainant). Ext. 5/64 to 5/65- Signature of Nagendra Prasasd and R.N. Sharma on G.C. Note envelop. Ext. 5/66 to 5/67- Signature of Nagendra Pd. On Personal search G.C. Note two envelop of Rs. 840 and 300. Ext. 5/68 to 5/69- Signature of R.N. Sharma on personal search G.C. Note envelops two. Ext. 5/70 to 5/75- Signature of Nagendra Pd. And R.N. Sharma on R.H.W. Bottals & H.N. Bottal and shirt wash Bottal. Ext. 5/76 to 5/77- Signature of Nagendra Pd. And R.N. Sharma Ext. 5/78 to 5/79- Signature of Nagendra Pd. And R.N. Sharma on sodium carbonate envelop. Ext. 11- Recovery Memorandum. Ext. 5/80 to 5/87- Signature of Nagendra Pd. Snd R.N. Sharma on Recovery Memorandum. Ext.12 to 12/1- Search List two sheets. Ext. 5/88 to 5/89- Signature on phenolphthalein envelop of Nagendra Pd. And R.N. Sharma. Ext. 5/90 to 5/91- Demonstration piece of paper; Signature of N. Pd and R.N. Sharma. Ext. 5/92 to 5/93- D.W. writing signature Nagendra Pd. And R.N. Sharma. 4. In defence there is one witness but no documentary evidence. And on consideration of the materials available the trial court convicted and sentenced the appellant in the manner aforesaid. 5. During course of argument it is contended on behalf of the appellant that before proceeding against the appellant sanction from the competent authority was not obtained for no reason explained. Recovery and seizure etc. were not made at the place where the appellant was allegedly trapped. The complainant inspite of having full control and knowledge of his present address has not been examined and out of two independent witnesses one has not identified the appellant in dock and no attempt was made to get the appellant identified from another. The verifier P.W 6 clearly denied visiting office of the appellant, but ignoring all such aspects including false implication of the
Legal Reasoning
Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 5 appellant at the instance of employer of the complainant who was annoyed with the appellant on his refusal to otherwise oblige. 6. Contra, learned counsel representing C.B.I. tried to support findings of the court below for the reasons mentioned therein and further submitted that once acceptance of money (gratification) is proved/ admitted presumption of taking gratification and corrupt practice is to be presumed and it is for the person apprehended to explain how and from where such amount was lying or found with him, whereas, in the instant case no such presumption is rebutted and in that event recovery and preparation of seizure memo etc. at the office of C.B.I. not at the place of recovery which often used to be done under compelling circumstances like present case do not dilute the allegation established. 7. Out of twelve prosecution witnesses, P.W.1 Shipahi Ram, a regular Mazdoor in Telephone Department has come to say that he has been working since 1979 and at the relevant time received 16 advice notes from the appellant against the receipt issued wherein Nos. 312 and 313 were also there and is proved his signature as Ext. I and at such advice notes Exts. 2 and 2/1. In cross- examination he says that the appellant starts his work at the office near old secretariat and about 12.30 noon comes to main office and after completing work again goes back to other office. 8. P.W. 2 Lakshman Prasad, another formal witness typed sanction order on 12.2.1993 i.e. order of General Manager Telephones, Patna, Ext. 3, wherein in last but one paragraph there is clear mentioned of the fact that the order giver is competent authority to remove the appellant from office. But nothing is produced on behalf of the appellant to show that the said General Manager, Telephones A.K. Sexena was not competent to accord sanction for Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 6 prosecution as required U/S 19 of the Act which reads as such:- “19. Previous for prosecution:- (1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction- sanction necessary (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; ©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 Code of Criminal procedure, 1973 (2 of 1974),- (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 proceeding under this Act on any other ground and no court shall exercise the powers or revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceeding. (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 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; Patna High Court CR. APP (SJ) No.297 of 2002 dt.19-08-2013 7 (b)a required sanction 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.” Hence, the decision cited and relied upon by the Bar in the case