Bhurey Singh vs State of U.P.

Virendra Saran, J.—Bhurey Singh has filed this appeal against the judgment and order dated 971981 passed by Sri Iqramul Ban, Special Judge Bijnor in Special Trial No. 18 of 1980. The learned Special Judge has convicted the appellant under Section 161 I. P. C. and Section 5(2) of the Prevention of Corruption Act and has sentenced him to undergo R. I. for one year and to pay a fine of Rs. 200 on each of the two counts. In default of payment of fine the appellant has been ordered to suffer further six month R I on each of the two counts. The substantive sentences have been ordered to run concurrently.

According to the prosecution the appellant was posted as a tubewell operator on the State Tubewell No. 404 BG belonging to the Irrigation Department. Faqira Singh father of Ghasita Singh complainant had 14 acres of land in Village Kachpura. P. S, Kotwali City, district Bijnor. The village fell in the command area of the tubewell of the appellant. One fourth of the land was being cultivated by Balbir Singh father of Faqira Singh and the rest of the land was cultivated by Faqira Singh himself. In the Kharif season of 1387 F. there was paddy crop in an area of 6 bighas and sugarcane crop in the rest of the area. The paddy crop had been irrigated 7 times from the said tubewell while the sugarcane crop was irrigated only once. About (6 days prior to this occurrence the appellant had handed over two receipts in respect of the irrigation dues to Faqira Singh and Balbir Singh. The irrigation charges with which Balbir Singh debited was Rs. 200 and the irrigation charges against Faqira Singh were Rs. 300, On 19111977 appellant Bhuray Singh contacted Ghasita Singh and told him that the Government has decided to grant remission of 50% of the irrigation charges ia respect of Kharif season of 1 87 F. and that the appellant had to submit a report in this respect. Faqira Singh requested the appellant to make a report in respect of his land since the crop in his land had dried up. The remission was to be granted by the State Government as the area had been declared to be drought hit. The appellant made a demand of illegal gratification as consideration of his making the report, Ghasita Singh expressed his unability saying that he was a poor man He also requested for the receipts of the PLEWA irrigation for the Rabi season. The appellent demanded Re. 1 per kachha bigha which came to Rs. 65 in all. Ghasita Singh agreed to pay Rs. 100 to the appellant after three or four days and to pay Rs. 65 more after sometime. Ghasita Singh, however, could not reconcile himself and he made a complaint (Ext Ka1) on 21111979 to the District Magistrate, Bijnor. He approached Sri S. D. Tyagi Inspect r Vigilance with his application and both of them went to the residence of the District Magistrate and it was decided that a trap may be laid. Accordingly two currency notes of Rs. 50 Sri S. D. Tyagi, Inspector Vigilance accompanied by Ghasita Singh went to the village. Two public witnesses namely, Ramejhnd Naresh were procured with the help of the police constable Sri G. D. Tyagi along with this witnesses and the two constables and Ghasita Singh assembled in the Rathkahana of Ghasita Singh. There was a window in the northern wall of the Bathkhana which had its opening in the veraadah of Ghasita Singh. The currency notes were created with phenolphtholein powder and returned to Ghasita Singh for being paid in bribe vide Ext. ka4. The planks of the window were so arranged that thsy cover the Rathkhana but giving opportunity to the witnesses to see things in the verandah. At the direction of Sri S. D. Tyagi, Ghasita Singh sat in the verandah and sent his nephew and called tho appellant who arrived at about 330 p.m. and sat on a cot south of Ghasita Singh. On the asking of the appellant Ghasita Singh passed the two currency notes of Rs. 50 each to the appellant who h^!d them in his right hand, Gnasita Singh gave an assurance to the appellant for the payment of the rest Rs. 65 and requested him to make the necessary report. The appellant told Ghasita Singh that he would do so provided the balance of Rs. 65 were paid within 4 or 5 days. Thereupon Sri S. D. Tyagi and the witnesses came out of their hiding and caught hold of the appellant. The two currency notes of Rs. 50 each were recovered from the hands of the appellant. Their numbers were the same as noted in the memo Ext. Ka4. The hands of the appellant were dipped in a solution of sodium carbonate and the colour of the same turned pink. All these articles were preserved separately and sealed. A receipt book and Rs. 740 cash and a key were also recovered from possession of the appellant. Sri Tyagi prepared the recovery memos of all the recovered articles.

On the above allegations, the appellant was sent up for trial. The learned special Judge, Bijnor has convicted and sentenced the appellant as mentioned earlier. Feeling aggrieved the appellant has filed the present appeal in this Court.

I have heard Sri Rishi Ram on behalf of the appellant and the learned State Counsel.

The learned counsel for the appellant has raised a short question. He has argued that the sanction granted by the Executive Engineer (Ext. Ka10) is invalid. Learned counsel has drawn my attention to the fact that the sanction is dated 3071980 in which it was mentioned that the same was being granted after perusing the case diary and other papers. Learned counsel has further argued that on 30719SO the case diary was not available to the Executive Engineer and it was sent to him on 481980. Learned counsel for the appellant has referred to the statement of the PW 5 Bharat Lal Sharan, the Investigating Officer, who has clearly stated that he went to the Executive Engineer on 281980 and showed the case diary and other relevant papers to the Executive Engineer who after being satisfied granted the sanction to prosecute the appellant. There is no crossexamination on this point and the public prosecutor did not re examine the Investigating Officer on the point. Thus when the case diary was made available to Sri Raj Kumar Singh, the Executive Engineer on 281980 there was no question of the same being perused by him on 3071980.

I have gone through the original sanction order. It is a typed written paper in which neither the letter number nor the date was typed. The letter number and the date has been separately filled in with ink. The ink of the date and the signatures of the Executive Engineer is of a different colour. It is not known who has filled the date in Ext. Ka i 0. It appears that a type written sanction order was placed before Sri Raj Kumar Singh who signed it on 3071980, and it further appears that it was not on the dictation of Sri Raj Kumar Singh but the paper came to him from some other source which he signed without applying his own mind. The grant of sanction is not an idle formality and the sanctioning authority should apply its mind before granting sanction. In Jaswant Singh v. State of Punjab, AIR 1958 SC 18 and P. C. Joshi v. State or U. P., A!R 1981 SC 387. It has been observed that the sanctioning authority must apply its mind to the facts and the circumstances of the case and only then the sanction would be valid. In the premise I hold that the sanction in the present cape is bad in law as it has not been accorded after application of mind. The entirs prosecution is vitiated on this ground.

In the result, this appeal is allowed. The conviction and sentence of the appellant passed by the learned Special Judge, Bijnor is set aside. The appellant is on bail. He need not surrender. His bail bonds are discharged.