Jangi Ram vs State of J. and K.

G.D. Sharma, J.—This is an appeal against the judgment and order dated 8-9-80 passed by the learned Special Judge, Anti-Corruption,

Jammu whereby the appellant herein has been convicted for the commission of offence falling u/s 5(2) read with Section 5(1)(d) of the Prevention

of Corruption Act, 2006 and sentenced to undergo rigorous imprisonment for a period of two years and payment of fine of Rs. 5000/-. In default

of payment of fine he has to undergo further imprisonment for a period of two months. The judgment and order has been challenged on the

following grounds :-

(i) The sanction for the prosecution of appellant is bad in the eye of law as it has been accorded in a mechanical manner.

(ii) That there was no occasion to demand the amount of alleged recovered money from the complainant and the evidence of such demand is

wanting in this case. There is also no evidence about the acceptance of the alleged recovered amount.

(iii) Regarding the alleged recovery of tainted money the evidence is of contradictory nature which cannot be believed.

The factual matrix of the case is that the appellant in July 1976 was posted as Patwari in Patwar Halqa Magowali Teh. RS Pora. The

complainant Shri Dhanna Ram was stated to be residing with his aunt Mst. Toti Devi who during her lifetime had made a will in his favour. That the

complainant Dhanna Ram had been cultivating the land since the year 1965 and appellant demanded Rs. 500/- from him as bribe in case he had to

remain in possession thereof. The demand was made after the death of said Mst. Toti Devi. The bribe amount settled between the parties was Rs.

200/-. The complainant is stated to have made application (EXPDW-1/1) in the Anti-Corrpution Organisation and on the basis of this information,

a raid was conducted and a sum of Rs. 200/-which was tainted with P. Powder was recovered along with other amount which was lying in his

pocket. After this recovery, the investigation was conducted and final report was submitted. The learned Judge vide his order dated March 31,

1977 discharged the accused on the plea that sanction for prosecution was accorded by Addl. Deputy Commissioner, Jammu who was not

competent to do so. Thereafter, the prosecution obtained fresh sanction (EXPDW-1/1) from the Deputy Commissioner, Jammu. After the

conclusion of the investigation, the final report was submitted and the learned trial Judge convicted and sentenced the appellant as stated above.

It has been pleaded by the counsel for the appellant that sanction for prosecution was accorded in a mechanical manner without making any

subjective satisfaction because in both the sanctions the words ""I am satisfied"" are missing. The 2nd sanction EXPDW-1/1 is a carbon copy of the

previous sanction and that also shows that Deputy Commissioner had not applied his mind. He has only erased words ""Additional Deputy

Commissioner"" from the pro forma of sanction EXPDW-1/1. The sanction is not an idle formality but a sacrosanct rjtual which has to be

performed after application of mind and the deliberation. The prosecution has not led any evidence to prove that sanction was accorded in

accordance with law but appellant has examined Mohd. Abas DW who was working as Patwari in the office of Deputy Commissioner, Jammu

who has stated that sanction was accorded without receiving a letter from any authority. Thus, the order of sanction is illegal and no conviction can

be based thereon. In support of this contention he has cited the case of Periyasamy Vs. Inspector, Vigilance and Anti-corruption Department,

Tiruchirappalli, , Gian Chand v. State 1989 KLJ 175.

There was no occasion for demanding any, jmoney. The report made by the complainant only states that appellant had threatened him for being

dispossessed and in case he had to remain in possession, he was required to give him the bribe money. The charges framed against him are that the

land was allotted in favour of Mst. Toti Devi and in order to keep the allotment in-tact and to make him Head of the family of the allottees' family,

this illegalgratification was demanded. The cbmplainantin his examination-in-chief has stated that appellant had put his hands in the canal water with

notes, but in cross-examinationtie has stated that BSF had caught hold of the appellant from the arm's and recovered that money from him. There

is no evidence that the appellant had demanded the money in the presence of anybody. In cross-examination, he has admitted that his aunt Mst.

Toti had willed away for property in favour of her grandson and daughter-in-law and in the revenue record an entry for attesting a mutation on the

basis of said will was entered by his predecessor. Similarly, the other entry of being a tenant stood already recorded before taking the charge and

under these circumstances, how it could even be thought that the appellant could do some helpful act for the complainant. He has admitted that two

Girdawaris were attested by the appellant in his favour without making any demand for illegal gratification. How it was possible to make any

demand at the time of third girdawari entry. He has stated that 200 Rupees were paid and yet remaining amount was to be paid, but this fact has

not been stated in the FIR.

It is further contended that this was a trap case where the complainant was present and there could be corroborative independent evidence too

on the spot. The production of such evidence was necessitated in view of the law laid down in Panalal Damodar Rathi Vs. State of Maharashtra, ,

Lachman Dass Vs. State of Punjab, . Lastly, it has been contended that in order to constitute an offence u/s 5(2)(b) read with Section 5(1)(d) of

the Act, three basic ingredients of the offence are required to be proved by the prosecution and they are, demand, acceptance and recovery.

Nanak Singh, PW was cited by the prosecution as witness in whose presence demand for bribe was made, but in the Court he has not supported

the complainant. Rajinder Kumar is a witness regarding the recovery as it is stated that raid was made in his presence who is not a dependable

witness as according to his own admission Mr. A. C. Gupta Dy/SP who had conducted the raid was his acquaintance and he previously had also

associated him with the raid which was conducted against Baz Mohd. He has contradicted the complainant when he has stated that money was

recovered by a constable from the canal. He denied that any money was paid in his presence by the complainant to the appellant. Regarding the

recovery; the shadow witness Devi Dayal constable has contradicted the complainant as he has stated that when the appellant had seen a jeep of

the police, he left his cycle on the road and set down on the bank of the Canal. Dy. SP caught him from the arm and took out two notes and they

were shown to the witness. He has admitted the presence of Nanak Singh, but he too had contradicted him.

The first question which has to be considered is whether the sanction EXPDW-1/1 is in accordance with the provisions of law or not. In the

case of Periyasamy Vs. Inspector, Vigilance and Anti-corruption Department, Tiruchirappalli, it has been held that where sanctioning authority

does not disclose the satisfaction about the allegations as well as not assigning reasons for satisfaction, the order of sanction is invalid. In the case

of Gian Chand v. State (supra) the learned single. Judge of this Court has held that Section 6 of the Act prohibits prosecution of a Government

servant for offences u/s 5(2) of the said Act and under Sections 161 and 165 Cr. P.C. without proper sanction. The sanction is not to be treated

as an idle formality or a mechanical act of statutory competent to grant it. The prosecution is bound to show that before sanctioning the prosecution

the authority had really applied its mind to all the facts by which the offence was sought to be proved against the accused. This should normally

appear from the order of the sanction. But if it does not so appear then the prosecution may prove by producing the facts on which the prosecution

is to be launched. The facts upon which the accused is to be prosecuted must appear on the face of the sanction and, if they do not, it must be

proved by the prosecution by examining evidence 'aliunde' that the necessary facts were placed before the sanctioning authority concerned on

consideration of those facts.

Adverting to the facts of the present case, it is found that Deputy Commissioner had not perused any fact and applied his mind. He simply has

not erased words ""Additional Deputy Commissioner"" from the pro forma of sanction and then put his signatures at the relevant place. Mohd. Abas,

DW who is an official of his office has stated from the record that sanction was accorded without receiving any letter from any authority. On these

facts, it can be said that the appellant herein was prosecuted on the basis of sanction which was not validly granted by the competent authority and

this defect is sufficient to vitiate the conviction and sentence.

It is a settled law by the apex Court in Panalal Damodar Rathi Vs. State of Maharashtra, that,complainant is in no better position than

accomplice after introduction of Section 165A and corroboration in material particulars is required. In the present case, there is no evidence of

clinching nature wjiich corroborates the testimony of the complainant. Rather, independent witnesses have contradicted him in material particulars

so far as ingredients of the offence in question regarding demand, acceptance and recovery of the bribe amount are concerned...

Viewing the case op the observations which have been made above, it can be said that appellant had been convicted in the absence of cogent

and convincing evidence which had failed to bring home the ingredients of the offence against the appellant. In this view of the matter, the appeal is

accepted and the conviction and sentence of the appellant is set aside and he is acquitted of the charge.