provisions of the Prevention of Corruption Act and, therefore, it is the
duty of the prosecution to prove beyond reasonable doubt that the
sanction accorded by the competent Authority is valid in the eye of
law. If the validity of the sanction is not proved, as held in the cases of
Madan Mohan Singh, Mohd Iqbal Ahmed and Ameer Jan (supra), the
prosecution case must fail.
10. For proving a sanction to be valid, it is necessary that the
prosecution brings on record a proof that the Sanctioning Authority
had given the sanction in reference to the facts on which the proposed
prosecution was to be based and these facts may appear on the face of
the sanction or may be proved by extraneous evidence. Where it is not
done, the sanction would have to be found as defective and it must be
enphasised that an invalid sanction cannot be considered to be
conferring jurisdiction upon the Court to try the case. The Hon'ble
Apex Court in the case of Madan Mohan Singh (supra) has laid down
the law in this regard and the relevant observations as appearing in
paragraph8 are reproduced as under.:
“The other point raised by the learned counsel for the
appellant seems to us however to be of considerable
substances. As the Privy Council pointed out in the case
of 'Gokul Chand Dwarkadas v. The King', AIR 1948 PC
82 at p. 84 (A)the burden of proving that the requisite
sanction has been obtained rests on the prosecution and
such burden includes proof that the sanctioning
authority had given the sanction in reference to the facts
on which the proposed prosecution was to be based; and
these facts might appear on the face of the sanction or
might be proved by extraneous evidence. In the present
case the facts constituting the offence do not appear on
the face of the letter Ex. P. 10. It was consequently
incumbent upon the prosecution to prove by other
evidence that the material facts constituting the offence
were placed before the sanctioning authority. They they
did not attempt to do.”
11. In the case of Mohd. Iqbal Ahmed (supra) the Hon'ble Apex
Court has held that it is incumbent on the prosecution to prove that a
valid sanction is granted by the Sanctioning Authority after satisfying
itself that a case for sanction has been made out constituting the
offence and this should be done in any of the two ways; either by
producing the original sanction which itself contains the facts
constituting the offence and the grounds of satisfaction or by adducing
evidence to show that facts were placed before the Sanctioning
Authority and the satisfaction was arrived at by it by considering those
facts. The Hon'ble Apex Court also held that any case instituted
without a proper sanction must fail because this being a manifest
defect in the prosecution, the entire proceedings are rendered void ab
initio.
12. Same principle of law has been reiterated in the recent case
of State of Karnataka Vs. Ameer Jan (supra) by the Hon'ble Apex Court.
The Hon'ble Apex Court has emphasized upon the application of mind
on the part of the Sanctioning Authority and this can be seen only by
demonstrating that the facts necessary for constituting the alleged
offences were placed before the Sanctioning Authority and were
appropriately considered by it while according the sanction.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 494 OF 2006
Rajesh Roopchand Motghare Vs State of Maharashtra,
CORAM : S. B. SHUKRE, J.
DATED : 30th SEPT., 2014.
Citation: 2016 ALLMR(CRI)2668
1. This is an appeal preferred against the judgment and order
passed on 28/8/2006 thereby convicting the appellant of the offences
punishable under Section 7 and Section 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, 1988.
2. Briefly stated, the facts of the case are as under.:
On 20/8/2002 the appellant was working as Peon with
Nagpur Municipal Corporation and was posted to octroi check post
No.10, Wadi. In the afternoon of 20/8/2002, Dilipservant of the
complainantVilas, was passing by the octroi check post on a
motorcycle and at that time he was carrying with him two VCDs. As it
appeared to the appellant that those VCDs were new, octroi was
required to be paid upon them for taking them within the limits of city
of Nagpur and, therefore, the appellant stopped the motorcycle of the
appellant. He enquired with Dilip and on being convinced that these
two goods were liable to be levied with octroi, he detained the goods.
Dilip gave information of detention of goods to the complainant and,
therefore, the complainant almost immediately arrived at the octroi
post. A further enquiry was made with the complainant and on being
not satisfied with the answers given by the complainant, the appellant
told the complainant that he would have to pay the octroi duty on the
goods. The octroi duty that was to be paid by the complainant was
calculated to be at Rs.2,000/. The complainant even then tried to
reason out with the appellant saying that the goods had already been
sold earlier to two customers and were being taken to Nagpur for the
purpose of carrying out repairs and, therefore, he was not liable to pay
any octroi duty on them. This explanation was not accepted by the
appellant. But, at the same time, the appellant assured to help the
complainant, and therefore, he told them that if an amount of
Rs.1,000/ was paid as a bribe, the goods would be released by him
without any levy of octroi duty. After some negotiation, the
complainant agreed to pay the amount and on 20/8/2002 he paid an
amount of Rs.100/ to the appellant and agreed to pay remaining
amount of Rs.900/ on the next day.
The complainant decided to not pay the further amount of
bribe to the appellant and, therefore, he went to the office of the Anti
Corruption Bureau on the same day i.e. on 20/8/2002 and lodged his
complaint against the appellant. The complaint was reduced into
writing and it was decided to lay a trap for the appellantaccused.
Panch witnesses were summoned, procedure of the trap was explained
to the complainant and the panch witnesses and the demonstration
was also given to them.
On 21/8/2002 the complainant along with panch No.1 met
the appellant and asked about release of the goods detained by him.
The appellant asked the complainant as to whether he had brought
the remaining bribe amount and on being given an affirmative answer,
the appellant demanded payment of the same to him. Accordingly, the
amount was paid to the appellant and thereafter signal was given to
the members of the raiding party, who were waiting at some distance
for getting the signal denoting acceptance of the bribe amount by the
appellant. The members of the raiding party immediately came to the
spot where the amount of bribe was allegedly accepted and
apprehended the appellant. The appellant had kept the bribe amount
in the pocket of his trouser. It was seized by the Investigating Officer
after following the procedure. The pair of trousers worn by the
appellant was seized. Panchanama was drawn, statements of
witnesses were recorded and after completion of the investigation, a
chargesheet was filed against the appellant. The appellant was
charged with the aforestated offences to which he pleaded not guilty
and claimed to be tried. He was tried by the Special Court, in
accordance with law. The learned Judge of the Special Court, after
considering the evidence available on record and the arguments of
both the sides, found the appellant guilty of both the offences and,
therefore, by his judgment and order impugned herein, convicted the
appellant for the said offences and sentenced him to suffer rigorous
imprisonment for one year each and also to pay fine of Rs.500/ for
each of the offences with default sentence of three months. Not
satisfied with the same, the appellant is before this Court in this
appeal.
3. I have heard Shri Gandhi, learned Counsel for the appellant
and Smt. Deshmukh, learned A.P.P. for the respondentState. I have
carefully perused the impugned judgment and order and also record of
the case.
4. It is submitted by the learned Counsel for the appellant that
this case stands on a defective sanction and, therefore, the entire case
of the prosecution must fail as being void ab initio. He submits that
the sanction accorded by the General Body of the Nagpur Municipal
Corporation vide its resolution No.78 (Exh.47) nowhere discloses that
the facts necessary for constituting the offences alleged against the
appellant were placed before the General Body, were considered by
the General Body and the General Body was satisfied that a case was
made out for giving of sanction as the facts placed before it indicated
prima facie involvement of the appellant in the offences alleged
against him. In other words, learned Counsel for the appellant further
submits, there was no application of mind to the facts of the case by
the General Body and as such sanction given is invalid and, therefore,
on this count alone, the appellant deserves to be acquitted. In support,
he placed his reliance upon the cases of (1) Madan Mohan Singh Vs.
State of U.P. AIR 1954 SC 637 (2) Mohd. Iqbal Ahmed Vs. State of
Andhra Pradesh – AIR 1979 SC 677, and (3) State of Karnataka Vs.
Ameer Jan – 2007 (4) Crimes 22 (SC).
5. The learned Counsel for the appellant also submits that
there has been no reliable evidence brought on record by the
prosecution proving beyond reasonable doubt the making of demand
of the bribe amount by the appellant and acceptance of the bribe
amount by the appellant as a gratification other than legal
remuneration and as a motive or reward for doing the favour to the
complainant in exercise of his official functions. He also submits that
there is also no evidence proving beyond reasonable doubt that the
appellant has accepted any illegal gratification or pecuniary advantage
for doing some official work. He points out from the evidence of the
complainant Vilas (P.W.1), Dilip Wankhede (P.W.5) and panch
witness Prashant Jibhkate (P.W.3) that these witnesses have stated
consistently that no amount was demanded by the appellant for
himself and that when he received the amount, he started preparing a
form so as to give a legal protection to the goods initially detained by
the employees of the Nagpur Municipal Corporation at octroi check
post so that while carrying them further, no problem or obstruction
from anybody would be faced by the complainant and this evidence
would show that the offences punishable under Sections 7 or 13 (1)(d)
read with Section 13(2) of the Prevention of Corruption Act are not
proved beyond reasonable doubt by the prosecution.
6. Mrs. Deshmukh, learned A.P.P. for the State has submitted
that the evidence of Manukumar Shrivastav (P.W.8), the then
Commissioner of the Nagpur Municipal Corporation, would show that
General Body was the competent Authority and that he had placed the
proposal for according of sanction before it, which was discussed by
the General Body and then only sanction was accorded by it. She
further submits that the evidence of this witness sufficiently establishes
the fact that General Body applied its mind to the proposal placed
before it and therefore sanction is not invalid or defective. She further
submits that it is not within the domain of the Court to consider the
adequacy or otherwise of the material placed before the Sanctioning
Authority and as long as there is some evidence indicating that the
material was placed before it, it would not open to the Court to declare
the sanction as invalid only on that ground. In support, she placed
reliance upon the law laid down by the Hon'ble Apex Court in the case
of State of Maharashtra through C.B.I. Vs. Mahesh G. Jain reported in
2013 AIR SCW 3174.
7. Learned A.P.P. further submits that the complainant has
initially supported the prosecution case and has also stated that when
the demand of bribe amount of Rs.900/ was made by the appellant,
the complainant gave that amount to the appellant, which was
accepted and kept in the pant pocket by the appellant. She further
submits that once the acceptance is proved, the presumption would
follow and it would be that the amount was accepted as an illegal
gratification or as a remuneration other than legal and as a motive or
reward for doing favour to the complainant in exercise of official
functions. Then, she further submits, the Investigating Officer has also
stated that the complaint was lodged by the complainant and amount
has been duly recovered from the possession of the appellant and as
there has been no probable explanation given by the appellant as to
how the amount was recovered from his possession, the trial Court has
rightly concluded by holding that the presumption raised against the
appellant has not been rebutted by the appellant. She, therefore,
supports very strongly the impugned judgment and order.
8. Upon going through the evidence brought on record by the
prosecution and also considering the law relied upon by both the sides,
I am of the view that there is great substance in the argument
canvassed before me by the appellant and no merit in the argument of
the learned Additional Public Prosecutor for the State.
9. A valid sanction is foundation of a case instituted under the
provisions of the Prevention of Corruption Act and, therefore, it is the
duty of the prosecution to prove beyond reasonable doubt that the
sanction accorded by the competent Authority is valid in the eye of
law. If the validity of the sanction is not proved, as held in the cases of
Madan Mohan Singh, Mohd Iqbal Ahmed and Ameer Jan (supra), the
prosecution case must fail.
10. For proving a sanction to be valid, it is necessary that the
prosecution brings on record a proof that the Sanctioning Authority
had given the sanction in reference to the facts on which the proposed
prosecution was to be based and these facts may appear on the face of
the sanction or may be proved by extraneous evidence. Where it is not
done, the sanction would have to be found as defective and it must be
enphasised that an invalid sanction cannot be considered to be
conferring jurisdiction upon the Court to try the case. The Hon'ble
Apex Court in the case of Madan Mohan Singh (supra) has laid down
the law in this regard and the relevant observations as appearing in
paragraph8 are reproduced as under.:
“The other point raised by the learned counsel for the
appellant seems to us however to be of considerable
substances. As the Privy Council pointed out in the case
of 'Gokul Chand Dwarkadas v. The King', AIR 1948 PC
82 at p. 84 (A)the burden of proving that the requisite
sanction has been obtained rests on the prosecution and
such burden includes proof that the sanctioning
authority had given the sanction in reference to the facts
on which the proposed prosecution was to be based; and
these facts might appear on the face of the sanction or
might be proved by extraneous evidence. In the present
case the facts constituting the offence do not appear on
the face of the letter Ex. P. 10. It was consequently
incumbent upon the prosecution to prove by other
evidence that the material facts constituting the offence
were placed before the sanctioning authority. They they
did not attempt to do.”
11. In the case of Mohd. Iqbal Ahmed (supra) the Hon'ble Apex
Court has held that it is incumbent on the prosecution to prove that a
valid sanction is granted by the Sanctioning Authority after satisfying
itself that a case for sanction has been made out constituting the
offence and this should be done in any of the two ways; either by
producing the original sanction which itself contains the facts
constituting the offence and the grounds of satisfaction or by adducing
evidence to show that facts were placed before the Sanctioning
Authority and the satisfaction was arrived at by it by considering those
facts. The Hon'ble Apex Court also held that any case instituted
without a proper sanction must fail because this being a manifest
defect in the prosecution, the entire proceedings are rendered void ab
initio.
12. Same principle of law has been reiterated in the recent case
of State of Karnataka Vs. Ameer Jan (supra) by the Hon'ble Apex Court.
The Hon'ble Apex Court has emphasized upon the application of mind
on the part of the Sanctioning Authority and this can be seen only by
demonstrating that the facts necessary for constituting the alleged
offences were placed before the Sanctioning Authority and were
appropriately considered by it while according the sanction.
13. Now, in the light of these observations, it would be
necessary for us to examine whether there was any application of
mind on the part of the General Body, the competent Authority, who
would accord sanction to a ClassIV employee that the appellant was at
the relevant time, and whether necessary facts were placed before it
for its consideration. The evidence of P.W.8 Manukumar Shrivastav is
extremely important in this regard. It is seen from his evidence that he
has not stated anywhere that necessary facts were placed before the
members of the General Body and were considered by all the members
of the General Body. He only says that he put up the proposal
regarding according of sanction before the General Body in its meeting
held on 27/12/2002 and the proposal was discussed by the members
of the House and then the proposal was passed by an unanimous
resolution No.17 according sanction of prosecution of the appellant.
Except for the statement regarding putting up of the proposal, there is
nothing on record indicating that all the relevant facts were placed
before the General Body for its consideration. It has not been
elaborated or clarified by this witness as to what kind of proposal was
prepared by him, which facts did it contain and whether the copies of
the proposal were given to each of the members of the General Body.
He has also not stated that the facts stated in the proposal were
considered by each and every member of the General Body and then
only sanction by unanimous resolution was accorded by it. It is
obvious that there is no proof brought on record by the prosecution
showing that all the relevant facts necessary to prima facie make out
the offences as alleged against the appellant were placed before the
General Body and, therefore, it has to be held that there was no
application of mind on the part of the General Body in according
sanction.
14. In the case of State of Maharashtra Vs. Mahesh G. Jain
(supra) also the Hon'ble Apex Court has held that the authority must
be primafacie satisfied that the facts alleged constitute offence. It is
also held in this case that the Court cannot go into the question of
adequacy of material placed before the Sanctioning Authority. In the
instant case, there is absolutely no proof brought on record by the
prosecution that relevant facts were placed before the Sanctioning
Authority and if that proof is not there on record, there would be no
question of dealing with adequacy or inadequacy of the material
placed before the Sanctioning Authority. Therefore, this case does not
render any assistance to the prosecution case and rather it appears to
be helpful to the case of the appellant.
15. In view of the above discussion, I find that in this case there
has been no valid sanction given by the competent Authority i.e. the
General Body of the Nagpur Municipal Corporation and if that is so,
the whole case of the prosecution must fail. In the absence of any
valid sanction of the Competent Authority, the Court would have no
authority in law to prosecute and try the appellant for the offences
punishable under Section 7 and 13 (2) read with Section 13(1) (d) of
the Prevention of Corruption Act and on this count itself, as rightly
submitted by the learned Counsel for the appellant, the appellant
would be entitled to be acquitted. It is seen from the impugned
judgment that this aspect of the case, which is material and which goes
to the very foundation of the prosecution case, has not been
considered at all by the learned Special Judge and, therefore, the
impugned judgment and order deserve to be quashed and set aside.
16. Assuming just for the sake of argument, that there was a
valid sanction accorded by the competent Authority, still the
prosecution case appears to have doubtful nature. This can be clearly
seen from the evidence of complainant P.W.1 Vilas (Exh.7) and
panch No.1 P.W.3 Prashant (Exh.19).
17. Although, the complaint was made by P.W.1 Vilas against
the appellant alleging that he demanded bribe amount of Rs.1,000/ to
not levy octroi on the goods seized by him and release them without
payment of octroi, the complainant P.W.1 Vilas as well as panch No.1
P.W.3 Prashant do not support the allegations made in the complaint.
P.W. 1 Vilas was declared hostile witness and even his extensive crossexamination
taken on behalf of prosecution by the learned A.P.P. did
not yield any favourable results for the prosecution case. In his crossexamination
PW 1Vilas maintained his stand that on 20/8/2002 an
amount of Rs.100/ paid to the appellant was paid, not by him, but by
his employees and on 21/8/2006, it were the employees of the Corporation
who had directed him to give balance amount of Rs.900/ to the
appellant and that the appellant demanded the payment of the said
amount as per the directions of 23 other employees of the
Corporation. In his crossexamination taken on behalf of the appellant
also, the complainant maintained the same version by saying that other
employees had asked him if he had brought the amount. He also
stated that after the payment was made by him, the process of preparing
the form was commenced and the employees of the Nagpur Municipal
Corporation told him that they were giving duly prepared form to
him so that while taking away the goods, he would not face any difficulty,
in case the goods were checked by flying squad of the Corporation.
Even P.W.3 Prashant, Panch No.1 has admitted in his crossexamination
taken on behalf of the appellant that the appellant never
demanded any amount as bribe and that the appellant had told the
Police Officer that he did not commit any wrong and he was only
filling up the form.
18. Such evidence of the complainant as well as Panch No.1, an
independent witness, creates a doubt about the demand made by the
appellant as an illegal remuneration for showing favour to the
appellant. The admissions given by both these witnesses create a reasonable
probability that the amount of Rs.900/ may have been
accepted by the appellant as octroi duty and that was the reason why
necessary form was being filled up by the appellant after receipt of the
amount of Rs.900/ from the complainant. No doubt, tainted currency
notes totalling to an amount of Rs.900/ have been recovered from the
possession of the appellant and apparently it would show that the
appellant had accepted the amount of Rs.900/ described by the
prosecution as the bribe. There is also presumption under Section 20
of the Prevention of Corruption Act, 1988 that once acceptance is
proved, it would be presumed that the amount is accepted as an illegal
gratification or illegal remuneration or towards pecuniary advantage
for doing the official work. But this presumption is rebuttable and it
stands rebutted by the facts brought on record through the admissions
given by the material witnesses of the prosecution, which are discussed
earlier. The presumption stands rebutted in a reasonable manner for
the reason that the possibility that the amount of Rs.900/ may have
been demanded by other employees of the Corporation and the
appellant, who was merely a Peon, having acted merely on the
directions given by other employees, is not ruled out. The appellant
was also directed to prepare the necessary form and the appellant may
not have been actually aware of what went on between the
complainant and the other employees. When the possibilities of the
demand not being made by the appellant and the appellant receiving
the amount under an impression that it was for legal purpose of issuing
the necessary form have not been ruled out, it has to be said that
the presumption under Section 20 is rebutted by the law of probability.
In any case, this is a case wherein two views are possible and so the
one that favours the accused, as held in the case of State of Maharashtra
Vs. Dnyaneshwar Laxman Rao Wankhede– 2009 ALL MR (Cri)
3127 (S. C.), must prevail. Therefore, I am of the view that this is a fit
case for giving benefit of doubt to the appellant on merits of the case
as well. So, the appellant deserves to be acquitted of the offences
with which he has been charged herein by allowing this appeal.
In the result, the impugned judgment and order are hereby
quashed and set aside.
The appellant is acquitted of the offences punishable under
Section 7 and Section 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act, 1988.
His bail bonds stand discharged.
Fine amount paid by the appellant be refunded to the
appellant.
JUDGE
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