Rajeshwar Yadav v. State Of Bihar & Ors

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 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 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