BAIL SLIPCRL. A.195/2001 & Ors. v. State of Kerala)

of Police and Ex.P.15 is the complaint. Then P.W.10, Inspector of Police registered the case in Crime No.12/AC/98/CL and Ex.P.47 is the First Information Report. Then P.W.10 arranged for the witnesses.P.W.3 and another person came there and they were introduced toP.W.

They were all explained about the Phenolphthalein test. Thephenolphthalein currency notes were handed over to P.W.1. P.W.3 wasalso instructed to accompany P.W.1 and watch the transaction. P.W.1was also instructed to give signal after paying the amount ondemand. The entrustment mahazar Ex.P.16 was prepared on 29.12.1998.P.W.1 stayed in the office of P.W.10. On the next day, i.e., on30.12.1998 at 6.30a.m., P.Ws.1,3,10 and others went to the house ofthe accused. At that time, three more persons were standing outsidethe house of the accused. At about 8.00a.m., P.Ws.1 and 3 wentinside the house of the accused. The accused was writing somethingelse and he asked P.W.1 whether he brought the money. As P.W.1 saidthat he had brought the money, the accused demanded the money to bepaid and P.W.1 gave M.O.1 series Rs.2000/- and the accused receivingthe money in his hand, kept it inside a book which was on the sofa. Then P.W.1 came out of the house and gave the prearranged signal bywearing the towel around the head as a turban. Then immediatelyP.W.10 and others rushed to the house of the accused. P.W.10introduced himself and others. P.W.1 was sent out side. SodiumCabonate solution was prepared. The accused was asked to dip hisright hand finger and it turned pink. As the accused was questionedwith regard to the money, he handed over the money taking out fromthe book M.O.4. The other documents were seized by P.W.10. Therecovery mahazar also was prepared. The accused also signed afterreceived a copy of the recovery mahazar. The house of the accusedwas searched. Subsequently the investigation was handed over toP.W.12, Deputy Superintendent of Police. P.W.12 examined thewitnesses and on completing the investigation, laid the final report.

In order to prove the case, prosecution has examined 12witnesses, marked 32 exhibits and produced five material objects. When the accused was questioned under Section 313 Cr.P.C., withregard to the incriminating materials available against him, hedenied the complicity.

The accused had stated that he was not present on 25.12.1998in his house. As he refused to register the readiness without the Survey number being changed, P.W.1 was enimical towards him and hehad further stated that the money was thrusted in his hand and as heprevented it, the money was scattered on the ground.

On the side of the defence, the accused also examined twowitnesses. D.W.1 who is also an agriculturist, had stated that theaccused and the said Murugesan came and inspected the land of P.W.1. https://hcservices.ecourts.gov.in/hcservices/ D.W.2 who is the Junior Engineer at Veppur Power Station, had statedthat on 26.12.1998, the Chief Engineer visited their Office and theaccused was present on that day from 7.00a.m., to 5.45p.m., at VeppurPower Station. The trial Court after considering the evidenceconvicted the accused.

The learned Senior Counsel Mr.S.Ashok Kumar submitted thatP.W.1 tried to hoodwink the appellant by showing the Survey FieldNo.44/7 of that village as Survey No.44/14 and pestered the appellantto register the readiness, but as the accused advised P.W.1 tocomply all the necessary requirements of sinking the bore-well inS.No.44/7 and to submit a fresh application and thereby P.W.1 who hadto incur more expenditure was infuriated and therefore wanted to takerevenge on the accused and therefore given a false complaint againstthe accused. The learned Senior Counsel further submitted that thedemand said to have been made by the accused himself is false, sincethe accused was present at Veppur power station from 7.00a.m to5.45p.m., as per the evidence of D.W.2. As per the evidence ofP.W.4 the Executive Engineer that the readiness certificate for the Survey No.44/7 could be issued only after it was verified by P.W.4and the process had to be done. The fact of registering readinesswas not at all necessary as per the evidence of P.W.4 and therefore, the alleged demand by the accused is only false.

The learned Senior Counsel further submitted that theexplanation given by the accused for the Phenolphthalein test whichanswered positively that P.W.1 had thrusted the money in the handsof the accused and as it was prevented, the currency notes fell onthe ground and subsequently the money had been placed in the book byP.W.1 is probable in the circumstances of the case.

The learned Senior Counsel vehemently contended that thesanction accorded by P.W.2 is invalid and P.W.2 was incompetentauthority to grant sanction. P.W.2 is only Superintending Engineerand it was only the Chief Executive Engineer who had appointed theaccused for the post. He had also submitted that though theprosecution relied on Ex.P.13, according to which the SuperintendingEngineer can appoint the Junior Engineer, the accused was appointedonly by the Chief Engineer and he also relied on the copy of the Government Order which was filed along with an application by theappellant for taking additional evidence, numbered as Crl.M.P.No.48of 2008. As the accused being appointed by the Chief Engineer, asper Article 311 of the Constitution of India, only the appointingauthority is the removing authority and as such, he only can grantsanction. He also submitted that as the sanction is invalid in thiscase, taking cognizance of the case itself affected and the trial isvitiated and on that score alone, the accused has to be acquitted. https://hcservices.ecourts.gov.in/hcservices/

The learned Senior Counsel also placed reliance on thefollowing decisions:a. (2006) 3 SCC (Crl.) 577 (K.Devassia v. State of Kerala), b. (2004) SCC (Crl.) 1176 (P.A.Mohandas v. State of Kerala)c. (2004) SCC (Crl.) 1213 (Manoranjan Prasad Choudhary v. State of Bihar)d. 2005 SCC (Crl.) 1995 (State of Goa v. Babu Thomas)e. 2006(1) SCC (Crl.) 47 (State of Karnataka v. C.Nagarajaswamy)f. 2006 Crl.L.J 4598 (Inspector of Police, Visakhapatnam v. SuryaSankararam Karri)

The learned Government Advocate submitted that as per theevidence of P.W.1, though the readiness has to be registered for theS.No.44/14, as P.W.1 wanted that to be changed to S.No.44/7, he hadapproached the accused and the accused also collected a sum ofRs.50/- and issued certificate and also he inspected the field. Onlyin that process, he had demanded the bribe amount. The earlier demandis also corroborated by P.W.11 and the demand on the date of trap isalso corroborated by the evidence of P.W.3. The acceptance of themoney by the accused is proved by the phenolphthalein test. Thelearned Government Advocate further submitted that the version of thedefence that P.W.1 thrusted the money in the hands of the accused ishighly improbable, since after conducting the phenolphthalein test,P.W.1 took the money from the book M.O.4 and handed it over to the Officer.

The learned Government Advocate further submitted that as perEx.P.13 sanction granted is valid and also submitted even otherwiseas per Section 19(3)(a) Cr.P.C unless a prejudice is shown, it wouldnot affect the prosecution case. He also relied on the decision ofthe Honourable Supreme Court reported in 1999 SCC (Crl.) 1494(Central Bureau of Investigation v. State of Haryana) and 2004 SCC(Crl.) 2140 (State by Police Inspector v. T.Venkatesh Murthy)

This Court considered the submissions made by both partiesand perused the records.

As per the charge against the accused, the demand was madeby the accused only in respect of giving service connection toS.No.44/7. As per the evidence of P.W.1, though originally he hadapplied for service connection in S.No.44/14 and readiness of P.W.1had to be registered, at that stage, P.W.1 wanted the serviceconnection in S.No.44/7. It appears from the materials availablefrom the prosecution case if the same seniority has to be maintained, the Survey number has to be changed. Of course, as per the evidenceof P.W.4, the Executive Engineer, the application has to be forwardedonly from the Junior Engineer through the Assistant Engineer to him https://hcservices.ecourts.gov.in/hcservices/ and prior to forwarding it, it must be inspected as to whether thereis a bore-well in the said land. It is possible to change the surveynumber in the records registered already. Ex.P.10, the applicationfor electricity connection to S.No.44/7, dated 23.11.1998 had beengiven to the accused and the other connected necessary documents werealso made ready by P.W.1.

With regard to the occurrence on the date of trap, P.W.1 hadstated that as he entered into the house of the accused, he demandedthe money and he paid it. The accused receiving it kept in a bookM.O.4. This evidence is also corroborated by the evidence ofindependent witness P.W.3 who had accompanied P.W.1. Thephenolphthalein test being conducted, it proved positive as thesolution turned pink. But the accused had given a different versionstating that P.W.1 had thrusted the money in his hands and he hadthrown the currency notes away. But P.W.1 picked them up and kept inthe book. Though a suggestion is put to that effect to P.W.1, ithad been denied by him. https://hcservices.ecourts.gov.in/hcservices/

While questioning the accused under Section 313 Cr.P.C., theaccused had only stated that the money was thrusted in his hand andas he prevented it, the currency scattered on the ground, but he hadnot stated that P.W.1 picked up those currency notes and kept it inthe book. Admittedly the currency notes were available in the book, when the trap laying officer entered the house. According to thelearned Government Advocate, that the accused was not wearing shirtand was only with bunion and as such he could not keep the money inthe pocket and he kept it in the book after receiving it. This Courtfinds that the version of the accused is highly improbable and it isnot supported by any material. As the acceptance of the amount bythe accused is proved by the prosecution, the presumption under Section 20 of the Prevention of Corruption Act comes into effect. The accused had been unable to rebut the presumption with anymaterials.

With regard to the next contention of the appellant thatEx.P.17 sanction to prosecute has not been given by the competentauthority. It is to be seen whether P.W.2 who is the SuperintendingEngineer is competent person to give sanction Ex.P.17. P.W.2 hadstated that he has got power to appoint and remove the JuniorEngineers. As per Ex.P.30, the amendment made on 01.08.1998, the Superintending Engineer is the appointing authority for JuniorEngineer I-Grade also. On the basis of Ex.P.30, the prosecution hasbeen under the impression that P.W.2 has power to remove the accusedand he has granted sanction Ex.P.17. At the same time, in the ordercopy served to the accused, the accused who was Junior Engineer ofII-Grade was selected for promotion as Junior Engineer of the I-Gradeon temporary basis by the Chief Executive Engineer. The copy of itis filed along with an application under Section 391 Cr.P.C to takefurther evidence.

As per Article 311 of the Constitution of India, only theappointing authority is competent authority to remove him from theoffice. Accepting for a moment, the Chief Engineer is the appointingauthority and as competent authority to remove the accused from theoffice, whether the sanction granted by P.W.2, the SuperintendingEngineer would affect the prosecution case and whether it wouldvitiate the trial is the point for determination.

Section 19(3)(a) of the Prevention of Corruption Act is asfollows: "19. Previous sanction necessary for prosecution: (1)....... (2)...... (3)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-(a) no finding, sentence or order passed by a specialJudge 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 sanctionrequired under sub-section(1), unless in the opinion ofthat court, a failure of justice has in fact beenoccasioned thereby;........................" https://hcservices.ecourts.gov.in/hcservices/ Admittedly, this defence had not shown any prejudice being causedto the accused as sanction being granted by P.W.2, so as to concludethat failure of justice has been occasioned.

In the decision of the Honourable Supreme Court inP.A.Mohandas v. State of Kerala reported in (2004 SCC (Crl) 1176),it has been held as follows: "3........ The sanction in the present case wasgiven prior to the aforesaid date. The date on which thesanction appears to have been given, the authorityconcerned had no jurisdiction and, therefore, there is anembargo on the court's power to take cognizance for non-compliance of Section 19 of the Act. We accordinglyquash the proceeding.4. The appeals stand disposed of accordingly. "

In Manoranjan Prasad Choudhary v. State of Bihar (2004 SCC(Crl.) 1213), it has been held "since there is no sanction of thecompetent authority, the proceedings is vitiated. We accordingly setaside the impugned order and quash the proceedings. Needless tomention, if appropriate sanction is received from the competentauthority, the matter can be proceeded against. The SLP standsdisposed of accordingly. "

In the decision of the Honourable Supreme Court in State of Goa vs. Babu Thomas (2005 SCC (Cri.) 1995), wherein it has been heldas follows: "11. ................... According to the counselfor the appellant no failure of justice has occasionedmerely because there was an error, omission orirregularity in the sanction required because evidence isyet to start and in that view the High Court has notconsidered this aspect of the matter and it is a fit caseto intervene by this Court. We are unable to accept thiscontention of the counsel. The present is not the casewhere there has been mere irregularity, error or omissionin the order of sanction as required under sub-section(1) of Section 19 of the Act. It goes to the root of theprosecution case. Sub-section (1) of Section 19 clearlyprohibits that the Court shall not take cognizance of anoffence punishable under Sections 7,10,11,13 and 15alleged to have been committed by a public servant, except with the previous sanction as stated in clauses(a),(b) and (c).12. As already noticed, the sanction order is not amere irregularity, error or omission. The first sanction https://hcservices.ecourts.gov.in/hcservices/ order dated 02.01.1995 was issued by an authority thatwas not a competent authority to have issued such orderunder the Rules. The second sanction order dated07.09.1997 was also issued by an authority, which was notcompetent to issue the same under the relevant rules, apart from the fact that the same was issuedretrospectively w.e.f.14-09-1994, which is bad. Thecognizance was taken by the Special Judge on 29.05.1995.Therefore, when the Special Judge took cognizance on29.05.1995, there was no sanction order under the lawauthorising him to take cognizance. This is afundamental error which invalidates the cognizance aswithout jurisdiction. "

In the decision of the Honourable Supreme court in K.Devassiavs. State of Kerela reported in (2006 SCC (Crl.) 577), wherein it isobserved as follows: "2. In the present case, the sole appellant has challengedhis conviction and pointed out that the Secretary(Vigilance), who accorded sanction, was not authorised togrant sanction. In this connection, reliance has beenplaced upon the judgment of this Court in P.A.Mohandas v.State of Kerala (2003) 9 SCC 504), in which it has beenlaid down that for the first time Secretary (Vigilance) wasauthorised to accord sanction on 23.04.1994 and prior tothat he was not competent to accord sanction. In thepresent case, the sanction is said to have been granted bythe Secretary (Vigilance) prior to 23.4.1994, therefore, the impugned orders are fit to be set aside on this groundalone.3. Accordingly, the appeal is allowed, the impugnedorders are set aside and the appellant is acquitted of thecharges. The appellant, who is on bail, is discharged fromthe liability of bail bonds. "

The learned counsel for the appellant also relied on aJudgment of the Honourable Supreme Court in State rep. by the Inspector of Police, Visakhapatnam v. Surya Sankaram Karri reportedin (2006 Crl.L.J 4598), wherein in it has been held as follows: "

When a sanction is granted by a person notauthorized in law, the same being without jurisdiction, would be a nullity. "25. As per the decision reported in 2004 SCC (Crl) 1176(P.A.Mohandas v. State of Kerala), the case was quashed for noncompliance of Section 19 before the trial was completed. Similarlyin the case of Manorajan Prasad Choudhary v. State of Bihar (2004 https://hcservices.ecourts.gov.in/hcservices/ SCC (Crl.) 1213), proceedings was quashed for a sanction by theincompetent authority, but it was observed that matter can beproceeded against if appropriate sanction is received from thecompetent authority.26. In the decision reported in 2005 SCC (Crl.) 1995 (State of Goa v. Babu Thomas), prior to completion of trial issue was decidedand infact it was permitted to issue a fresh sanction by a competentauthority and to proceed afresh against the accused from the stage oftaking cognizance of the offence.

With regard to the decision reported in 2006 Crl L J 4598(State by the Inspector of Police, Visakapatnam v. Surya SankaramKarri), it does not deal with the sanction under Section 19 of the Prevention of Corruption Act. Under Section 17 of the Act it dealswith regard to failure of authorisation of the Superintendent of Police for the investigation carried out by the investigatingofficers.

In the decision of the Honourable Supreme Court in CentralBureau of Investigation reported in 1999 SCC (Crl.) 1494.( V.K.Sehgal and another v. State of Haryana), it is observed asfollows: "It is further inroad into the powers of the appellatecourt over and above the trammel contained in Section 465of the Code which has been dealt with supra. Under Section19(3)(a) no order of conviction and sentence can bereversed or altered by a court of appeal or revision even"on the ground of the absence of sanction" unless in theopinion of that court a failure of justice has beenoccasioned thereby. By adding the explanation the saidembargo is further widened to the effect that even if thesanction was granted by an authority who was not strictlycompetent to accord such sanction, then also the appellateas well as revisional courts are debarred from interferingwith the conviction and sentence merely on that ground. "

In the decision reported in 2004 SCC (Crl.) 2140 (State by Police Inspector v. T.Venkatesh Murthy), it has been held as follows: "14. In the instant case neither the trial court northe High Court appear to have kept in view the requirementsof sub-section (3) relating to question regarding "failureof justice". Merely because there is any omission, errorin irregularity in the matter of according sanction, thatdoes not affect the validity of the proceeding unless thecourt records the satisfaction that such error, omission orirregularity has resulted in failure of justice. The same https://hcservices.ecourts.gov.in/hcservices/ logic also applies to the appellate or revisional court. The requirement of sub-section (4) about raising the issueat the earliest stage has not been also considered. Unfortunately, the High Court by a practically non-reasonedorder, confirmed the order passed by the learned trialJudge. The orders are, therefore, indefensible. We setaside the said orders. It "would be appropriate to requirethe trial court to record findings in terms of clause (b)of sub-section (3) and sub-section (4) of Section 19."

In view of the decision rendered by the Honourable SupremeCourt cited above, the accused cannot be acquitted as per Section 19(3)(a) of the Prevention of Corruption Act and especially, when nofailure of justice has occasioned in the case.

With regard to the decision of the Honourable Supreme Courtreported in (2006) 3 SCC (Crl.) 577 (K.Devassia v. State of Kerala),it does not deal with Section 19(3)(a) of the Prevention of Corruption Act and no reference is also made with regard to theearlier decisions of the Honourable Supreme Court cited supra whichhas dealt with Section 19(3)(a).

For the above said reasons, it is held that on the ground ofinvalidity of sanction as per Section 19(3)(a) of the Prevention of Corruption Act, this Court is unable to reverse the conviction.

In the result, the conviction imposed on the appellant isconfirmed, but the sentence of imprisonment is reduced to a minimumperiod of one year rigorous imprisonment. With the abovemodification, the appeal is dismissed. Consequently Crl.M.P.No.48 of2008 also is dismissed. The trial Court is directed to secure theaccused to serve the remaining period of sentence. Sd/-Asst. Registrar/true copy/Sub Asst. RegistrarksrTo1. The Special Judge, Additional District and Session Judge cum Chief Judicial Magistrate, Cuddalore, Cuddalore District. https://hcservices.ecourts.gov.in/hcservices/

-do- thro' Principal Sessions Judge, Cuddalore,3.The Deputy Superintendent of Police Vigilence and Anti Corruption Cuddalore4. The Public Prosecutor High Court, Madras. Criminal Appeal No.195 of 2001KGK (CO)SMK/31.7.08