Ganga Kumar Shrivastava vs The State of Bihar

P.K. Deb, J.—This appeal has been preferred against the judgment and order dated 10.3.1989 passed by the then Special Judge (Vigilance North Bihar, Patna) in Special Case No. 6 of 1985 convicting the accused-Appellants u/s 161 of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act and sentencing him to undergo R.I. for one year each under each count but sentences were ordered to run concurrently.

The prosecution case in brief is that on 25.6.1985 Harendra Kumar Singh (P.W.6) filed an application (Ext. 8) alleging that Assistant Engineer(Supply) of the Electricity Board, Sitamarhi III had been demanding bribe of Rs. 500/ - for giving electric line for 5 H.P. motor for agricultural work and he had, under pressure, already given Rs. 100/ - on 11.6.1985. It was further alleged that Assistant Sub-Inspector of police Mundrika Choudhary (P.W.3) was directed on 25.6.1985 to verify the information and according to the verifier the informant again paid Rs. 100/ - as bribe to Ganga Kumar Shrivastava the accused Appellant and he went to his residence after taking the money. Further allegation is that the accused-Appellant had demanded the balance amount on 28.6.1985 in the morning hours and thus Ganga Kumar Shrivastava by demanding bribe for doing the lawful work had committed offence u/s 161 of the Indian Penal Code read with Section 5(11) of the Prevention of Corruption Act.

On the basis of such information the vigilance had decided to conduct a raid and as such the amount of Rs. 150/ - (one hundred rupee note and another fifty rupees note) was endorsed and a memorandum was prepared with number etc. Further prosecution case is that the informant (P.W.6) along with watcher Mundrika Chaudhary (P.W.5) and other members of the raiding party proceeded for the residence of the accused-Appellant in the early morning hours on 28.6.1985. The raiding party stayed away from entering the residence and kept themselves hidden looking forward for getting signals for the watcher at the time of taking or giving of the bribe. The watcher and the informant entered inside the residence of the Appellant. The informant came out with a flying shirt. The watcher and the informant were made to sit in the outer room by the father of the Appellant before hand and on call by the father, the Appellant came and sat with the watcher and the informant. When the bribe was demanded by the Appellant and the same was paid to the Appellant and the same was kept in the pocket of the flying shirt and the watcher in the meantime went out and gave signal by spitting, which was decided earlier, whereupon the raiding party arrived and caught hold of the Appellant and recovered the bribe money in presence of two independent witnesses, namely, Kaushal Kishore Singh (P.W.2) and Ram Dayal Singh(P.W.12) and search and seizure list (Ext. 3) was prepared over which the signature of the Appellant was taken which was marked as Ext. 2. After interrogation the Appellant was taken to the custody and after investigation chargesheet was submitted under the said Sections of the Penal proviso.

For and on behalf of the prosecution as many as 13 prosecution witnesses have been examined. Out of whom P.W.1 is B.S. Mistri, P.W.3 D.K. Das, P.W.4 Vanjanand Singh and P.W.10 K.K. Verma are the members of the raiding party. P.W.4 was simply tendered from the side of the prosecution. Mundrika Chaudhary (P.W.5) is the watcher. P.W.2 Kaushal Kishore Singh and P.W.12 Ram Dayal Singh are the witnesses of search and seizure. P.W.2 Kaushal Kishore Singh did not support the prosecution story and he was declared hostile and his statement before the investigating officer was confronted. P.W.7 Prabhunath Roy and P.W.9 Rajendra Prasad are the witnesses who proved the sanction. P.W.8 Narayan Choudhary proved the writing and signature of Sri R.C.P. Sinha, Chief Engineer in the despatch memo (Ext. 9, 2/3, 10 and 11), P.W.11 Madan Prasad is the Assistant Engineer attached to Executive Engineer. He proved several exhibits including Ext. 16 to 22 and Ext. B series and Ext. C series. P.W.13 Arjun Jha proved Exts. 24, 25 and 26 and D/1 and P.W.6 Harendra Singh is the informant himself. Arjun Jha was not a chargesheeted witness and it appears that he proved formally some documents only.

The defence case is the denial of the prosecution story. According to the defence, accused-Appellant has been falsely implicated in the case as at his instance the informant was prosecuted for a charge of theft of electricity and that delay in supply of electricity line to the motor of the informant was not due to the fault of the Appellant, it was due to official proceeding. The defence side also produced Satyanarayal Lal as D.W.1, who happened to be the Head Clerk of the B.S.E.B. Sitamarhi. Ext. E is the casual leave application of the Appellant dated 25.6.1985. The application for casual leave was for the period from 25.6.1985 to 26.6.1985. He also proved Ext. F monthly service connection report of the month of June, 1985. Ext. G is the report of the Junior Engineer dated 22.6.1985 about giving connection to P.W.6, Ext. H is the certificate of local Mukhia about electric connection to P.W.6, Ext. I work order dated 11.6.85 regarding giving connections to P.W.6, Ext. J is the inspection report about inspection held on 2.7.85, Ext. K is the report of Ramdeo Rai, Head Lineman to, Executive Engineer dated 9.7.85, Ext. L, L/1, L/3 and M are the steps regarding augmentation of transfer to higher capacity. One Harendra Choudhary was examined as court witness No. 1 who proved Ext. C/1 and C/2.

It is an admitted fact that the Appellant had filed a case of theft of electricity against the informant on 11.4.1985. The informant had explained that such case was filed for pressurising the informant to pay the bribe to the Appellant.

After consideration of evidence on record, learned court below found that the prosecution case has been established beyond all reasonable doubts and the defence is only an after-thought one and some papers have been manufactured for the purpose of creating the defence case and as such the conviction has been arrived at including sentences as mentioned above.

Sri R.B. Mahto, senior advocate appearing for and on behalf of the accused Appellant has assailed the impugned judgment on the point of sanction. First submission is that sanction in the present case has not been proved legally as is appearing from the evidence of P.W.9 the sanctioning authority has not been produced from the side of the prosecution side and the sanction order does not disclose the application of mind of the sanctioning authority. The evidence of P.W.9 in this respect has been referred to together with the sanction order which has been marked as Ext. 12 and also the ordersheet of the case dt. 24.5.1988. Mr. B.P. Pandey, senior advocate of P.P. Vigilance has refuted the submissions of Mr. Mahto referring to the same documents as mentioned above.

It has become settled principle of law as enunciated by the Privy Council as reported in 1948 (PC) 82 Gokulchand Dwarka Das Morarka v. The King to the effect that facts in respect of which sanction is being given should either be referred to on the face of sanction or it must be proved by extraneous evidence that were placed before the sanctioning authority. Sanction not doing this is invalid and the defect cannot be cured and the criminal case must fail. Thus it is clear by principles enunciated that if the sanction order itself reveals of application of mind by the sanctioning authority or to the effect that all papers relating to the prosecution has been placed before him and on perusal of the same he was satisfied and then sanction was given then extraneous evidence not necessary to prove that the sanctioning authority had applied his mind in accordance with the sanction. The first paragraph of the sanction order reads as follows:

Whereas on perusal of the S.P., C.I.D. (Special Cell Vigilance Wing)''s letter No. 165/confidential dated 16.7.1985 together with its enclosures in respect of Vigilance P.S. case No. 10/85 dated 28.6.85 u/s 161 of the I.P.C. and Section 52(11) of the P.C. Act, the Board is satisfied that a prima facie case is made out against Sri Ganga Kumar Srivastava Assistant Electric Engineer, Electricity Supply Sub-Division No. 2, Sitamarhi, for his prosecution u/s 161 of the I.P.C. and Section 52(11) of the P.C. Act.

The sanction order Ext. 12 has been signed by the Secretary of the Board and he signed as such, by order of the Bihar State Electricity Board. So the wording of the sanction order, as mentioned above, it is clear that confidential letter of the Special Cell along with its enclosures i.e. the findings of investigation etc. were placed before the Board and then on being satisfied of those documents the Board approved sanction of the prosecution of the accused Appellant and then the sanction order was signed by the Secretary of the Board on being prepared in his office. Thus on the face of the sanction order it can not be said that the sanctioning authority had not applied its mind rather the sanctioning authority on the face of it as revealed, did apply its mind. It is true that whatever documents were placed before the Board for the purpose of sanction had not been produced in the court and as such, P.W.9 was recalled for the purpose but then also the same was not produced. In this connection, the evidence of P.W.9 is required to be reiterated. He stated that he was Section Officer in a department of the Board and he received the letters of the Superintendent of Police with its enclosures containing prosecution report and those were sent to the Board for the purpose of sanction. The sanction order was typed and prepared by another person and then the same was signed by the Secretary of the Board. Later on he was called for as a court witness for the purpose of bringing those records which were placed before the court but those records were not brought although he was examined as court witness. That the letter of the Superintendent of Police containing the prosecution report and other enclosures and documents were sent to BSEB, are also found in the evidence of P.W.10 the investigating officer. Thus it cannot be said that although the documents which were placed before the Board had not come on record but there is evidence in respect of the sanction order (Ext. 12) to the effect that all papers and documents including the prosecution report have been sent by the Vigilance Department to the Board and P.W.9 had placed those documents in a file before the Board for the purpose of sanction and that the Board was satisfied on perusal of those documents and papers and then accorded sanction.

It appears that at the argument stage another prayer was made from the prosecution side to recall the investigating officer for the purpose of proving the enclosures of the sanction order. By order dated 24.5.1988 the Special Judge observed that as already opportunity was given to P.W.9 to prove the enclosures of the sanction order, further opportunity cannot be given to the investigating officer and as such the prayer was rejected. By this alone it cannot be said that there was no application of mind by the Board and that no enclosures were ever sent by the Board. It was never challenged from the side of the accused-Appellant to P.W.9 or to the investigating officer P.W.10 that documents were never sent and placed before the sanctioning authority for the purpose of perusal before according sanction. The evidence on record proves primarily that all papers were placed before the sanctioning authority for the purpose of according of sanction and then the sanction was accorded. Only because the enclosures were not brought on record, the unchallenged evidence of P.W.9 and P.W.10 and the wordings of Ext. 12 cannot be disbelieved.

Mr. Mahto, learned senior counsel, submitted that when the papers relating to sanction had not been proved then the whole sanction order is bad and the prosecution must fail. He has referred to the judgment of the Apex Court as reported in 1979 (SC) 677 Md. Iqbal Ahmad v. State of Andhra Pradesh. It was held mat how the sanctioning authority was satisfied must be proved to the hilt and if the original sanction order has not been produced and the same did not contain the facts constituting the offence and the grounds of satisfaction then the sanction order should be rejected holding that the sanctioning authority did not apply its mind and the whole prosecution case must fail. Reference was made to Section 6 of the Prevention of Corruption Act, 1947. The facts are almost the same as that of taking of bribe of Rs. 125/ - by the accused in that case. He has also referred to another judgment of the Apex Court as reported in 1958 (SC) 124. Jaswant Singh v. State of Punjab. In that case sanction was for fault of taking of bribe of Rs. 50/ - only but the charge was framed of taking of bribe habitually and the conviction was there as an habitual bribe taker and it was held that in view of the charge and conviction the sanction order is irregular and illegal. That case also refers to Section 6 of the old Act. A drastic change has been made in the amendment Act of Prevention of Corruption in the year 1988. Previous Section 6 has now come up as Section 19. Sub-Section 3 of the present Section was not there earlier. The present Sub-Section 3(a) runs as follows:

Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no finding, sentence or order 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.

In the present case nowhere in the records it appears that the sanction order has been challenged in any way whatsoever. Before this appellate court also no submission has been made as to how non-production of enclosures of the sanction has caused prejudice to the accused-Appellant and that there was failure of justice. There might be some sort of omission from the side of the prosecution for non-production of the enclosures with the sanction order but that omission alone will not be fatal to the prosecution case unless it could be shown that any prejudice has been caused to the accused lending thereby failure of justice. All the judgments of the Apex Court related to previous Section 6 regarding sanction of the Prevention of Corruption Act. Because of such judgments practically the amended provisions of sanction have been enumerated in the new Act u/s 19 as mentioned above. There was application of mind by the sanctioning authority as is revealed from the sanction order itself and the documents which were referred to in the sanction order were proved by the evidence deposed by P.W.9 and P.W.10 and when the same remained unchallenged and when no prejudice has been caused from the side of the accused-Appellant either in the trial court or before this appellate court and from the record itself there is no scope to infer that there was any failure of justice then, in my opinion, argument regarding the sanction has got no force.

On factual aspect practically no argument has been made by the senior advocate Mr. Mahto as if he was confident that the appeal is bound to be allowed on the sanction ground itself and for non-submission of the factual aspect it can be legally inferred that the Appellant has got no say regarding the factual aspect of the case proved against him. That the informant Harendra prayed for an electric connection for his motor is an admitted fact. That the accused-Appellant was responsible for giving connection is also not denied. That there was delay in providing connections to the informant is also not denied. Only plea was taken to the effect that the Appellant was not responsible for the delay. An attempt was made by the Appellant to the effect that he had given the line earlier but the documents proved that the line was given much lately. When the case was detected, attempts from the side of the accused-Appellant by preparation of some documents could not be proved or there is no semblance or probability of the earlier connections being given when the documents of the Board proved that the connection was given in the month of July only. According to the informant, he gave Rs. 100/ - before he lodged information and afterwards also another Rs. 100/ - was paid in presence of the watcher Mundrika and that fact has also been proved by the watcher. The 3rd payment of bribe of Rs. 150/ - was detected by the raiding party. A plea was taken to the effect that in the outer room where the occurrence of taking and giving of bribery took place the flying shirt of the Appellant was already hung on a peck meaning thereby the Appellant had admitted the position that from the pocket of the flying shirt the amount was seized. Although one of the seizure witness has become hostile, the other witnesses supported the same but by such admission alone from the side of the accused- Appellant it could be proved that the amount was recovered from the pocket of the flying shirt. In an outer room a shirt can be kept hung on a peck with money is not believable and when there is overwhelming evidence that money was paid with endorsed amount to the Appellant and the said endorsed amount could be recovered from his flying shirt proves the evidence in details regarding the factum as I totally agree with the observations and inference drawn on the individual evidence of the witnesses by learned Special Judge otherwise the same will only be reiteration and when from the side of the Appellant facts regarding the case has not been argued. It is submitted from the side of the accused-Appellant that possibility of the false implication of the accused-Appellant cannot totally be brushed aside when admittedly the informant was prosecuted at the initiation of the accused-Appellant for theft of electricity. Explanation has been given from the side of the informant regarding that original prosecution and also regarding its compounding. On independent scrutiny of the materials on record I find and hold that the learned Sessions Judge has rightly decided that the prosecution could be able to prove the guilt of the accused-Appellant beyond all reasonable doubt. Sentence awarded is also there commensurate with the gravity of the offence.

In the result, the appeal is dismissed having no force in it. The accused- Appellant is hereby directed to surrender before the trial court within four weeks next from this date to serve the sentence. In default, all coercive steps shall be taken by the Special Judge to bring the accused-Appellant into book for serving the sentence.