Balmukand vs State of M.P.

S.K. Dubey, J.—This is an appeal against the conviction of the Appellant/accused u/s 161, Indian Penal Code, and Section 5(1)(d) and (2) of the Prevention of Corruption Act, 1947 (for short, the ''Act''), and sentence of two years rigorous imprisonment and a fine of Rs. 1,000/- and, in default, to further undergo six months'' imprisonment, recorded by the Additional Sessions Judge, Sheopur Kalan, District Morena, in Special Criminal Case No. 3/1985, decided on 2.4.1987.

Brief facts leading to the case are thus; The Appellant was an Assistant District Inspector of Schools (for short, ''ADI'') and was posted at Karahal; private students were allowed to appear in examinations of Class Vth through Informal Institutions; PW.2 Moharsingh and PW 3 Harendrasingh Chouhan were respectively Assistant Teacher and Teacher of Semalda Haveli and Mayapur. Informal Institutions, who used to get from Government Rs. 50/- as an incentive per private student, it was necessary for the private student to declare his date of birth as also the fact that he is not a regular student and appearing as a private candidate. Therefore, to get the amount of incentive PW.2 Moharsingh and PW 3. Harendrasingh used to take interest to see that the forms of such students are cleared and they are allowed to appear in the examination. PW.2 and PW.3 sent the forms of the private candidates of their institutions in February 1984; on scrutiny some were rejected by the Appellant. Hence, the two teachers approached the District Education Officer, a superior officer of the ADI, who granted special permission on 5.4.1984 for appearing such students in the examinations which were going to begin from 11.4.1984.

The prosecution alleged that for allowing the students the Appellant demanded Rs. 200/- as bribe from PW.2 and PW.3 on 9.4.1984; PW. 2 and PW. 3 gave Rs. 100/- at the residence of Jagdish Kumar, the Head Master of the school (the co-accused who was acquitted by the trial Court) and agreed to pay the balance amount on the next day at the residence of PW. 2. Thereafter, PW.2 and P.W. 3 filed a written complaint (Ext. P/3) to the Additional Collector, Pukhraj Maru (PW.5) of demand of bribe by the Appellant stating therein that the permission granted by the District Education Officer is not being recognised by the Appellant and a threat has been given that the Appellant will not allow the students, if the amount is not paid on 10.4.1984.

PW. 5 and PW. 9 laid a trap on 10.4.1984; for that PW. 5 and PW. 9 initiated two notes of Rs. 20/- and six notes of Rs. 10/- each (Articles A to H), but the Appellant on 10.4.1984 did not reach the place to take the amount of gratification. The examination began on 11.4.1984 at 7.00 a.m., in which all the students including those who got the special permission from District Education Officer, appeared. It is alleged that the Appellant threatened to with-hold the result; hence, the balance amount of Rs. 100/- was given by PW. 2 and PW. 3 near a flour mill of one Siddiqui Mohammad (P.W. 1); there, on receipt, the notes were given by the Appellant to co-accused Jagdish, who put them in his pocket. At this juncture, PW. 2 gave an indication by scratching his head, to PW. 9 Gayaprasad Mishra of the trap party, who was nearby, came and made a search of both the accused; from the pocket of co-accused Jugdish Rs. 540.30 p. including the notes (Articles A to H) were received a list of 24 students (Ext. P/5) was also recovered. In the presence of ''panchas'' PW. 1 Siddique Mohammad and PW. 7 Jugraj, a seizure memo (Ext. P/8), seizing notes (Articles A to H) was prepared. Nothing was recovered from the Appellant. A ''panchanama'' was also prepared by PW. 5 and PW. 9 at the spot, P.W. 9 Gayaprasad Mishra lodged a first information report (Ext. P/13) at Police Station Sheopur, where a case at crime No. 78/1984 u/s 161, IPC, and Section 5(1)(d) and (2) of the Act was registered against both the accused. After completing the investigation and obtaining sanction (Ext. P/10), signed by Upendra Nath Sahane (not examined) to prosecute the Appellant, ''challan'' was filed against both the accused.

During trial, the prosecution examined PW. 1 Siddique Mohammad, PW. 2 Moharsingh, PW. 3 Harendrasingh, PW. 4 Dilipsingh, PW. 5 Pukhraj Maru, the then Additional Collector, PW.6 Kailash Narain, PW. 7 Jugraj, PW. 8 Tejbali Dubey and PW. 9 Gayaprasad Mishra, the then SDO (P). P-W. 1 and PW. 7 did not support the prosecution. The Appellant denied the charges and raised of false implication because of enmity of the two teachers PW. 2 and PW. 3 as the Appellant was discharging his functions honestly by scrutinising the forms, resulting in loss of Rs. 50/- per form to the teacher. A plea of ''alibi'' was also raised by saying that at the time of trap, he was taking his meals in a hotel, from where he was called and his signatures were obtained; DW. 1 Mahesh was examined to prove that in between 11.00 a.m. and 12 noon on 11.4.1984 the Appellant was taking his meals in his hotel.

The trial Court, alter evaluating the evidence, convicted the Appellant and acquitted co-accused Jagdish, holding that though the notes were recovered from his pocket, which were given by the Appellants, no demand of bribe was made by Jagdish, nor he was authorised to grant permission to allow students in the examinations.

Shri B.L. Bhargava, counsel for the Appellant, and Shri C.S. Dixit, Deputy Govt. Advocate for the State, were heard. Records perused.

The Appellant''s counsel placing reliance on AIR 1948 82 (Privy Council); Madan Mohan Singh Vs. State of Uttar Pradesh, ; Jaswant Singh Vs. The State of Punjab, ; P.C. Joshi and Another Vs. The State of Uttar Pradesh, attacked on the validity of the sanction (Ext. P/10) to prosecute. It contended that the sanction was granted mechanically, which does not disclose the facts constituting the offence and the applicability of mind of the sanctioning authority. Though no particular form, or design or set of words has been prescribed for a valid sanction, the sanctioning authority is required to go through all relevant material placed before it to form an opinion that the fact are such which constitute the offence. The sanction must reflect that there was a deliberate decision of the sanctioning authority for ordering prosecution, if it is not reflected from the order, the prosecution must prove the same by extraneous evidence.

The Act was intended to suppress bribery and corruption in public administration and it contains stringent provisions. Section 4 of the Act raises presumption, unless the contrary is proved by the accused in respect of offence punishable u/s 161 and 163, IPC, or all the offences referred to in Clause (a) to Clause (d) of Sub-section (1) of Section 5 of the Act. Section 6 prescribes a condition precedent that the Court should not take cognizance of an offence without previous sanction of the competent authority, without which a public servant cannot be prosecuted for offences specified in the section.

In case of K. Veeraswami Vs. Union of India (UOI) and Others, the Apex Court in para 28 has observed that the competent authority has to examine independently and impartially the material on record to form his own opinion whether the offence alleged is frivolous or vexatious. The competent authority may refuse sanction for prosecution if the offence alleged has no material to support or it is frivolous or intended to harrase the honest officer. But he is duty bound to grant sanction if the material collected lends credence to the offence complained of. When a public servant is prosecuted for an offence, which challanges his honesty and integrity, the issue in such a case is not only between the prosecutor and the offender, but the State is also vitally concerned with it as affectes the morale of public servants and also the administrative interest of the State. The discretion to prosecute public servant is taken away from the prosecuting agency and is vested in the authority which is competent to remove the public servant. The authority competent to remove the public servant would he in a better position than the prosecuting agency to assess the material collected in a dispassionate and reasonable manner and determine whether sanction for prosecution of a public servant deserves to be granted or not.

In case of P.C. Joshi v. State of U.P. (supra) the Apex Court ruled that mere production of a document which sets out the names of the persons to be prosecuted and the provisions of the statute alleged to be contravened and purporting to bear the signature of an officer competent to grant the sanction where such sanction is a condition precedent to the exercise of jurisdiction, does not invest the Court with jurisdiction to try the offence. If the facts which constitute the charge, do not appear on the face of the sanction, it must be established by extraneous evidence that these facts were placed before the authority competent to grant sanction and that the authority applied his mind to those facts before giving sanction.

The prosecution has proved the sanction (Ext. P/10) signed by one Upendra Nath Sahane, who was not the sanctioning authority, by examining the sanctioning authority PW. 8 Tejbali Dubey, who also produced the note-sheet (Ext. P/9). Both the documents are quoted verbatim:

Ext. P/9

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A look to Ext.P/10 shows that it does not give any indication that before grant of sanction the sanctioning authority applied its mind. The authority granted sanction on mere asking by a Head Constable of Police; a note-sheet was then prepared which was approved by P W8, who deposed at the trial that a letter (Ext. P/8) dated 6.8.1985 from District Education Officer for grant of sanction and wireless message received from SDO (P). The Constable who came with the case diary, wanted that the sanction to prosecute be given; hence, on satisfying from the case Diary, sanction was given by him on the note-sheet (Ext. P/9).

Neither from the sanction nor from the note-sheet, it appears that before grant of sanction, PW8, had examined the facts and the material collected in the case diary. Even PW.8 has not stated that before approval of sanction he was satisfied prima facie that there was material for constituting the offence. The extraneous evidence produced does not also disclose that the sanctioning authority was satisfied that the material collected lends credence to the offence complained of.

It is settled that grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servant against frivolous prosecution and must, therefore, be strictly applied with, before any prosecution can be launched against a public servant; therefore, from the sanction and extraneous evidence produced, it is not proved that the sanctioning authority was satisfied that the prosecution against the accused should be launched, because of the Appellant receiving a bribe. In the circumstances, the prosecution launched was without valid sanction and, therefore, the cognizance taken by the Special Judge was completely without jurisdiction; hence, the prosecution has to be quashed. For that I place reliance on Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, The appeal is entitled to succeed on this point alone; but I consider it proper to record my decision on merits of the case also.

On merits, in my opinion, the prosecution has failed to prove the case. Admittedly, against acquittal of Jagdish, co-accused from whom the notes were seized, the State has not preferred any appeal. Even assuming for agrument''s sake that the notes were given to the Appellant by PW2. and PW.3 and the Appellant, in turn, gave to co-accused Jagdish the question whether the Appellant had any motive to lake the bribe or whether there was any occasion for him to take bribe, has to be examined. The overall assessment of the matter discloses that the prosecution story was not true. The reason for giving bribe was for obtaining permission of the Appellant to allow students to appear in the examination, which was refused by him. PW. 2 and PW. 3 on refusal to grant permission by the Appellant, obtained special permission on 5.4.1984 from the superior officer. The students appeared in the examinations. Therefore, the story which was not in the complaint (Ext. P/3) was developed during trial that the Appellant threatened to withhold the result. Besides, if the Appellant had agreed to take bribe, he would have reached the agreed place, date and time, but he did not do so. As PW. 2 and PW. 3 wanted to any-how implicate the Appellant, it is stated that after the examinations were over, while on way, the notes were given to Appellant, who gave to co-accused Jagdish, who put the same in his packet. If the Appellant received and handled the notes, it was incumbent upon the prosecution to prove the fact by positive evidence by way of phenolphihalcein that, which is the surest test to detect the handling of notes, as said by the Apex Court in case of Raghbir Singh Vs. State of Punjab, "where a trap is laid for public servant, it is desirable that the market currency notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the Court does not have to depend on oral evidence which is sometimes of a dubious character for the purpose of deciding the fate of the public servant."

No doubt, there is a presumption u/s 4 of the Act which a person, accused of the offence u/s 5 of the Act, has to discharge. A public officer has no right to demand any bribe; but when he is hauled up before a Criminal Court to answer a charge of having taken illegal gratification, the question whether any motive for payment or acceptance of bribe at all existed, is certainly a relevant and a material fact for consideration. What has to be proved in an offence u/s 161, IPC, is the essence of obtaining or acceptance by a public servant, of a gratification other than legal remuneration as a motive or reward for doing or forbearing to do an official act or for showing or forbearing to show any favour or disfavour to any person or for rendering; any service or disservice to him. See Madan Mohan Singh Vs. State of Uttar Pradesh,

In the present case, there is no proof of motive for payment or acceptance of bribe, as much earlier to the alleged demand of bribe by the Appellant for granting the permission for appearing in the examination to those students, whose forms were rejected, special permission was already granted by the District Education Officer on 5.4.1984, and in pursuance of that, the students appeared in the examinations. Therefore, even if it is presumed that the amount was taken by the Appellant and given to Jagdish, the co-accused, mere recovery of money, divorced from the circumstances under which it is paid, is not sufficient to hold the Appellant guilty, as there was no occasion whatsoever for the Appellant to demand or receive the amount as bribe. Such a presumption, even though the plea of ''alibi'' taken by the Appellant, of not being present at the place of trap, as he was taking meals in a hotel at the time of trap, is ignored, will not arise, because the evidence led by PW. 2 and PW.3 was of interested witnesses .and discrepant to the complaint, which goes to the root of the matter and, if properly noticed, would lead in Court to discard the prosecution, particularly in the absence of chemical process of the powder treatment, Even if it be accepted for argument''s sake, that the burden to prove an issue lies upon the accused u/s 4(1) of the Act, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case, as is one by a party in civil proceedings. It is not necessary that he should establish his case by the test of proof beyond a reasonable doubt. As soon as he succeeds in doing so, the burden is shifted to the prosecution, which still has to discharge its original onus that never shifts, i.e., that of establishing on the whole case of guilt of the accused beyond a reasonable doubt. See V.D. Jhangan Vs. State of Uttar Pradesh, ; Suraj Mal Vs. State (Delhi Administration), and Man Singh Vs. Delhi Administration,

In the circumstances, ordinarily, in such type of cases powder treatment is made, but the prosecution has not explained or placed any material on record to show why such a process was not followed in the present case, though the trap is said to have been arranged by experienced people like Additional Collector and SDO (P). It does not; appeal to reason that the officers were not aware of the powder treatment, which is in, vogue in the country for about four decades. If such powder treatment had been made, the passing of the bribe and handling of the notes would not have been difficult to be proved. Therefore, the story about the place and the manner of taking bribe is opposed to natural human conduct. That is what has been said by the Apex Court in case of Khilli Ram Vs. State of Rajasthan,

In the result, the appeal is allowed. The conviction of the Appellant u/s 161 IPC, and Section 5(1)(d) and (i) of the Act and the sentences passed thereunder are set aside, and the Appellant is acquitted. He is on bail. His bail bonds are discharged. The fine, if deposited, be refunded to the Appellant.