High Court
Case Details
Crl.A. 119/2007 BEFORE THE HON’BLE DR.(MRS.) JUSTICE INDIRA SHAH JUDGMENT & ORDER (CAV) The judgment and order dated 09-05-2007 passed by the learned Special Ju dge, Assam, Guwahati, in Special Case No.19 (A) 2003, convicting the accused-app ellant under Section 13(1)(e) of the Prevention of Corruption Act, 1988 and sent encing him thereby to undergo rigorous imprisonment for 2 years with fine of Rs. 10000/- in default, further imprisonment for 6 months have been put to challenge in this appeal.
Legal Reasoning
2]. I have heard Mr. A. Bhattacherjee, learned Amicus Curiae for the appella nt and Mr. B.J. Dutta, learned Addl. Public Prosecutor appearing on behalf of th e Opp. Party/State of Assam. 3]. The prosecution case, in brief, is that: The appellant, Md. Habibur Rahman, joined his service as Master R oll skilled worker in the Department of Assam Seeds Corporation Limited in the y ear 1984. He served as Field Assistant, Field Officer from 1989 to August, 1999 . He was in-charge of Morigaon Sale Point from 1997 to August 1999 and was drawi ng net monthly pay of Rs.4500/-. He acquired assets and properties worth of more than Rs.8.00 lakhs and deposited Rs.13,62,257/- in his personal account in the Assam Co-operative Apex Bank Ltd. At Morigaon Branch in between 26-05-1994 to 20 -01-1999. He also deposited Rs.18,63,000/- in his S.B. Account at Canara Bank, Fancy Bazar Branch, Guwahati during the period from 03-01-1996 to 09-12-1998. A case was initiated on the basis of an FIR lodged by Mr. Kamaleshwar Dutta, Dy . Superintendent of Police, Vigilance and Anti Corruption, Assam with the Office r-in-Charge of ACB, Police Station, Assam, Guwahati as ACB P.S. Case No. 14/2001 under Section 13(2) of the Prevention of Corruption Act, 1988 (in short, ’PC Ac t’). 4]. The investigation of the case was carried out by Mr. Sarat Kalita, Inspe ctor, Vigilance and Anti Corruption, Assam. On completion of investigation, cha rge sheet under Section 13(2) read with Section 13(1)(e) of the PC Act was laid against the accused-appellant. The accused-appellant pleaded not guilty to the c harge framed against him under Section 13(1)(e) of the PC Act and claimed to be tried. 5]. It was alleged in the charge that the accused acquired houses, movable and immovable properties worth of Rs.38,97,467/- during the period in between Au gust, 1989 to February, 2000, which were disproportionate to his known sources o f income. During trial, altogether 17 witnesses were examined by the prose 6] cution. PW.1, Sri Kamaleshwar Dutta, working as DSP Vigilance and Anti Corrupti on, Assam, deposed that on the basis of inquiry report of Vigilance and Anti Cor ruption, he lodged the FIR against the accused appellant. PW.2, Sri Munindra Na th Sarma, Inspector of Vigilance and Anti Corruption, Assam, exhibited the decla ration of assets acquired by the accused, income tax statement of the accused, e xpenditure statement of the accused, the statement of family maintenance of the accused and the salary statement submitted by the accused. He also exhibited th e proforma of movable and immovable properties including the land, houses, Bank balance, credit insurance policies standing in the name of the accused and his w ife. PW-3, Mr. Tapan Kumar Ghosh, Senior Manager of Canara Bank, Fancy Bazar 7]. Branch, Guwahati exhibited Bank statement pertaining to SB Account of the accuse d for the period from 03-01-1996 to 28-07-1999. PW.5 Sri Shankar Shetty, Senior Manager of Vijaya Bank, Fancy Bazar Branch, Guwahati exhibited the joint bank s tatement in the name of the accused and his wife. He also exhibited the stateme nt of loan account in the name of the accused and his wife. 8]. PW.7, Mr. Asish Kr. Das, Branch Manager, Viyaya Bank, Fancy Bazar, also testified that police seized some documents from his bank pertaining to the acc used. Similarly, other witnesses testified their signatures on the various docu ments seized by the police. 9]. It appears from the Ext. 4 that proforma of movable properties submitted by the accused that the accused and his wife owned and possessed- (1) a plot of land measuring 15 lechas of land at Santipur Hillside a rea, which was purchased by him on 04-05-1987 worth Rs.12,000/-; (2) 13 lechas of land at Santipur Maszid Road, Guwahati, purch ased by him on 13-05-1997 at a cost of Rs.65,000/-; (3) 2 kathas of land at Durgasarabar, Guwahati purchased by him on 23-11-1991 at Rs.11,000/-; and apart from the accused possessed one 4 rooms house at Santipur hillside area and the value of the house worth Rs.55,000/-. The accused has also two other h ouses in the name of his wife, value of which was assessed at Rs.40,000/-. 10]. The accused has deposited a sum of Rs.50,000/- on 03-01-1996 i n his SB Account in Canara Bank. Again he deposited a sum of Rs. 1,50,000/- in t he aforesaid Bank on 01-08-1997. He deposited Rs.1,00,000/- on 28-10-1997 and a gain on 22-01-1998, he deposited Rs.2,30,000/- in his Account. Then, again depos ited Rs.2,00,000/- on 21-02-1998 and Rs.75,000/- on 01-08-1998. Again deposited Rs.75,000/- on 12-09-1998 and Rs.1,90,000/- on 22-09-1998. Then again Rs.2,00,0 00/- on 07-10-1998 and Rs.40,000/- on 21-02-1998 and Rs.2,00,000/- on 09-12-1998 . 11]. The accused appellant deposited in Viyaya Bank as follows: On 04-10-1999, he deposited Rs.75,733/- On 07-10-1999, he deposited Rs.43,619/- On 10-12-1999, he deposited Rs.67,996/- On 24-02-1998, he deposited Rs.50,000/- On 06-11-1998, he deposited Rs.50,000/- On 04-02-1999, he deposited Rs.30,000/- On 05-05-1999, he deposited Rs.13,000/- On 21-09-1999, he deposited Rs. 6,500/- On 28-10-1999, he deposited Rs.30,000/- The accused deposited Rs.13,70,725.70 in the Assam Co-operative Ape 12]. x Bank Limited. 13]. The basic pay of the accused in the year 1985 was Rs.490/- and his gross salary was Rs.784/-. During the year 1999, the basic pay of the accused w as Rs.1,835/- and he used to get Rs.4,235/- as his monthly net pay. While worki ng as in-charge of Morigaon Sale Point from 1997 to 1999, he had been receiving salary of Rs.4,500/- per month and during that period he had deposited Rs.13,62, 257/- in the Assam Co-operative Apex Bank in his account at Morigaon Branch. He also deposited Rs.18,63,000/- at Canara Bank, Fancy Bazar, Guwahti during 03-01 -1996 to 09-12-1998. Thus, apparently, it appears that the accused acquired asse ts and properties which were disproportionate to his known sources of income. 14]. It is submitted by the learned Amicus Curiae for the appellant that while calculating the income and assets of the accused, the income of his wife was not considered, although, she was income tax assessee. That apart, the prop erties and bank accounts kept in joint account of the accused along with his wif e was calculated as income of the accused. Moreover, the sanction for prosecutio n was accorded without any application of mind. PW.13, the Managing Director of Assam Seeds Corporation accorded th 15]. e sanction for prosecution of the accused. He, in his cross-examination, clearl y admitted that the sanction order i.e. Ext. 23 was not drafted in his office an d simply put his signature thereon. He did not even peruse the documents and re cords mentioned in Ext.23. He further admitted that there is a Board of Directo rs, is the Supreme Authority in respect of appointment and removal of all employ ees. In the matter of according prosecution sanction, the approval of Board was necessary. The sanction was not approved by the Board of Directors. He also st ated that he had no personal knowledge about Ext. 23. 16]. In the cited case of State Inspector of Police, Vishakhapatnam Vs . Surya Sankaram Karri, reported in (2006) 7 SCC 172, it was held that grant for proper sanction by a Competent Authority is a sine-quo-non for taking cognizanc e of the offence. When a sanction is granted by a person not authorized in law, the same being without jurisdiction would be a nullity. 17]. Thus, PW.13 admitted that he is not a Competent Authority to remove the accused. He further admitted that he accorded the sanction without application Section 19 of the PC Act, 1988 reads as under:- of mind. Therefore, there was no valid sanction to prosecute the accused. 18]. (cid:28)19. Previous sanction necessary for prosecution (1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and15 alleged to have been committed by a public servant, except with th e previous sanction,-(a) in the case of a person who is employed in connection w ith the affairs of the Union and is not removable from his office save by or wit h 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 r emovable from his office save by or with the sanction of the State Government, o f that Government; (c) in the case of any other person, of the authority compete nt 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) sho uld be given by the Central Government or the State Government or any other auth ority, such sanction shall be given by that Government or authority which would have been competent tore move the public servant from his office at the time whe n the offence was alleged to have been committed.(3) Notwithstanding anything co ntained in the code of Criminal Procedure, 1973,-(a) no finding, sentence or ord er 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 erro r, 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 int erlocutory order passed in any inquiry, trial, appeal or other proceedings.(4) I n determining under sub-section (3) whether the absence of, or any error, omissi on 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.-Fo r the purposes of this section,-(a) error includes competency of the authority t o grant sanction;(b) a sanction required for prosecution includes reference to a ny requirement that the prosecution shall be at the instance of a specified auth ority or with the sanction of a specified person or any requirement of a similar nature. 19]. It appears from the evidence of PW.17 that some of the properties of the accused were purchased by father-in-law of the accused. Some of the prop erties were in the name of wife of the accused received by her from her father. The car as well as some of Bank accounts were in the joint name of the accused and his wife. Some assets such as riksaws and other gifts were shown to be recei ved by the wife of the accused at the time of her marriage. The expenditures wi th regard to the education of the children of the accused were mentioned without investigation. PW.17 admitted in his cross-examination that he did not personal ly investigate the expenditure with regard to the education of children of the a ccused. He also admitted that the wife of the accused is an income tax assessee but her income and expenditure were not shown in the charge sheet. 20]. In view of the aforesaid evidence and for the want of necessary san ction, the conviction and sentence passed against the accused are liable to be s et aside and accordingly, it is set aside. 21].
Decision
The appeal is allowed. The accused-appellant shall be acquitted and released forthwith. Send down the LCR along with a copy of this judgment and o rder to the court below. JUDGE