N.M. Rajendran vs State

N. Arumugham, J.—This appeal has been filed by the convicted accused, who was the Sub Inspector of Police (Crimes) attached to

Saidapet Police Station, Challenging the correctness and validity of the conviction and sentence recorded by the learned Session Judge, Madras

Division in C.C.No.1 of 1991 on 18.12.1992 for the offences u/s 384 of the Indian Penal Code, and Sections 7,13 (2) read with 13(l)(d)(i)(ii) of

the Prevention of Corruption Act and whereupon sentenced to rigorous imprisonment for a period of six months u/s 384 I.P.C., rigorous

imprisonment for a period of one year and a fine of Rs.500/- in default to undergo rigorous'' imprisonment for a period of three months u/s 13(2)

read with 13(l)(d)(i)(ii) of the Prevention of Corruption Act. However, no separate sentence was imposed for the offence u/s 7 of the Prevention

of Corruption Act and the sentence were ordered to run concurrently.

During March 1990 P.W. 2 having a shop at Burma Bazaar in Madras City engaged in the business of fancy goods, video and audio cassettes

and so on, was a resident at Door No. 23, Ayyasamy Pillai Lane in Old Washermanpet, Madras. One Babu examined as P.W. 6 and another

Nagarajan were the staff working under him in his shop. On the evening of 17.3.1990 at about 4 P.M. when P.W. 2 returned to his shop after his

day''s napping from his house, he found his shop locked and on enquiry he came to know that the police headed by the appellant, the Sub

Inspector of Police, Saidapet, along with two Police Constables came and took them to the Police Station. Therefore P.W. 2 along with his

relative by name Rajendran P.W. 3 had been to the station. When enquired in the Police Station, the appellant questioned him and told him that

one accused by name Abdul Nazir had informed him that he had sold V.C.R''s to P.W. 2 and for which, he replied in the negative. Then it was

stated that the accused took P.W. 2 and P.W. 3 along with two Police Constables to his house and found one V.C.R kept upon the T.V. and

took it away to the Police Station along with them, Having kept the said V.C.R. in the Police Station, it was alleged that the appellant had

demanded a further sum of Rs.3,000/- for leaving P.W. 2 without any case. As. P.W. -2 was not inclined to, he was threatened by the appellant.

However, he had given an ultimatum to P.W. 2 that he should bring and pay a sum of Rs. 1,500/- on or before 7 p.m. on 20.3.1990 without fail.

Having consented to the said demand, P.W. 2 along with P.W. 3 came to his house and arranged for the said amount with great difficulty.

As was advised, P.W. 2 having taken money went to the office of the Vigilance and Anti Corruption at Madras at about 4 p.m. on 20.3.1990

where he met P.W. 14, the Deputy Superintendent of Police, Vigilance and Anti Corruption and narrated the whole story that had happened,

which was followed by the summoning of P.W. 16, Inspector of Police by name Vivekanandan by P.W. 14 and was directed to take the

complaint in writing to the narration of P.W. 2 and accordingly it was done and that has been marked as Ex. P.2 signed by P.W. 2 and attested by

P.W. 3. As was instructed, both P.W. 2 and P.W. 3, were away for a little and back to the office at 5 p.m. on that day. At that time, P.W. 16

introduced P.W. 4 and P.W. 5 the independent witnesses and on enquiry made by them, he had narrated the whole thing happened so far. Then

P.W. 16 brought two glass tumblers and water and asked P.W. 2 and other witnesses to count the currency notes brought by P.W. 2 with fingers

and asked P.W. 2 and witnesses to soak their hands in the glass tumblers and it was found that the colour of the water did not change. Thereafter

phenolpthalein powder was spread over the 15 currency notes above referred and a chemical of sodium carbonate was mixed in the water of the

said two tumblers and then again counting was made and test was conducted, the colour of the water turned pink. Then P.W. 16 gave instructions

to P.W. 2 as to how he should act thereafter. Accordingly P.W. 2 received all the 15 currencies of hundred rupee denominations after preparing

and signing of a mahazar attested by P.Ws.4 and 5. On instruction, P.W. 2 and P.W. 3 reached the Saidapet Police Station, in his motor cycle

followed by P.W. 16 along with P.Ws.4 and 5 and other Police Constables in a jeep. When P.W. 2 reached the Police Station, the

appellant/accused instructed him to go and wait for him in the Air Conditioned room of the Metro Hotel. Accordingly, he returned to the place

pointed out by the appellant/Accused followed by P.W. 16 and his party.

As instructed P.Ws.2 and 3 occupied a separate table in the Air Conditioned hall of the Metro Hotel near Saidapet Police Station followed by

P.W. 4 occupying a separate table and P.W. 16 and P.W. 5 in another table in the same air conditioned hall. After a lapse of about 10 minutes,

the appellant came and demanded the money from P.W. 2. Accordingly P.W. 2 paid those 15 currency notes of hundred rupees denominations as

planned, which were received by the Accused/Appellant with his two hands and kept in his pocket after having counted. This counting was done at

the behest of P.W. 2. The moment when he kept the currencies in his pocket, P.W. 2 took a comb and dressed his hair and this being the

signalling P.W. 16, P.Ws.4 and 5 neared the accused in the same hall. Then, P.W. 2 pointing the accused to P.W. 16 said that he was the Sub

Inspector Rajendran. Then, P.W. 2 was instructed to go and wait in the vigilance office and he left that place. At about 1 a.m. on that day (night)

P.W. 16 and other witnesses came there and P.W. 16 recorded the statements of P.Ws.4 and 5. P.W. 2 identified M.O.I series the fifteen

currency notes he gave to the appellant on the day of occurrence. M.O.2 is the V.C.R. with the mark ""Sharp"", taken by the appellant from his

house on the earlier occasion. P.Ws.4 and 5, the trap witnesses have corroborated P.W. 1 and spoken to the facts pertaining to the setting of the

trap by P.W. 16 and then implementing the same inclusive of preparation of the mahazar, arrest of the accused and so on. After the recovery of the

15 currency notes M.O.I series, a phenolpthalein test was conducted in the presence of P.Ws.4 and 5 by P.W. 16 at the Metro Hotel itself and

P.W. 16 made the accused/appellant soak his fingers in the sodium carbonate solution and the colour changed to pink, samples of which were

taken under the cover of mahazar attested by P.W. 4 and 5. The pocket of the accused was also soaked and it also turned pink. Thus the whole

trap set up by P.W. 16 and other witnesses was over by 9 p.m. on that day. Then the Police party had been to Saidapet Police Station where

M.O.2 was recovered by P.W. 16 for P.W. 11 from the Police Station under the cover of Ex. P.6 a mahazar prepared and attested by P.Ws.4

and 5. Then the house of the accused was searched under the cover of search list Ex. P.7 attested by P.Ws.4 and 5 but no incriminating material

was recovered.

P.W. 6 was the boy employed at the shop of P.W. 2, from where he was taken by the appellant to the Saidapet Police Station along with one

Nagarajan, P.W. 7 and P.W. 13 are the server and owner of the Metro Hotel respectively, where the dining hall was situate, in which the whole

trap proceedings were conducted and the accused was arrested and the currencies were recovered. Both the witnesses claim that the Vigilance

Police were present on that day and time along with the accused but however, disowned further details of the happenings on that day.

P.W. 8 by name Muthu is a resident of Paraniputhur, Madras running a tea shop and he speaks about the fact that a National V.C.R. with a

remote control and video cassettes was pledged to him by one Ravi Kumar about 2-1/2 years prior to his giving evidence but however on enquiry

held subsequently by Inspector of Police, Kodambakkam Police Station, he handed over the same to the said Inspector since Police had informed

him that it was a stolen property and that he was examined by P.W. 16. The recovery was made by the Sub Inspector examined as P.W. 9 by

name Arogyadhass. P.W. 10 Dr. C.S. Manonmani, a resident of Door No. 23, IV Main Road, C.I.T. Nagar, Madras, was examined for the

purpose to show that a V.C.R. belonging to her of the National Company was stolen away and the said theft was identified on 7.3.1990 by about

7 a.m. and she lodged a complaint in Saidapet Police Station which was registered in Crime Number 337 of 1990 and that two weeks thereafter,

the appellant came to her house with two persons and enquired her in regard to his investigation. Subsequently, she came to know that her V.C.R.

was recovered and she got this property from the Judicial Magistrate''s Court by approaching legally and she was examined by P.W. 16 in this

case. P.W. 11 was the Inspector of Police Saidapet Police Station on the day of occurrence and under whom the Appellant/Accused and one

Balan were working as Sub Inspectors. He would say that in big complicated, cases, he used to investigate directly and in small cases, he used to

depute the Sub Inspectors to investigate. He would corroborate the evidence of P.W. 10 that a complaint was registered by the

Appellant/Accused in Saidapet Police Station Crime Number 337 of 1990 u/s 380 I.P.C. and took up the matter for investigation. He would state

further that two or three days prior to 20th March 1990, the appellant/accused had recovered a ''Sharp'' Mark V.C.R. in connection with the

above and kept the same in the police station for safety and that there was no separate property room in the Saidapet Police Station However, he

would claim that he was examined by P.W. 16 at about 11 p.m. on 20.3.1990 and that P.W. 16 Seized that ''Sharp'' mark V.C.R. M.O.2, under

the cover of mahazar attested by P.Ws.4 and 5.

P.W. 12, the then Inspector of Police attached to the Saidapet Police Station, in Crimes Section corroborates the fact that the complaint was

registered in Crime No. 337 of 1990 for the offence u/s 380, I.P.C. and on 7.3.1990 onwards, the appellant/accused took up investigation. The

appellant/accused arrested Abdul Nazir on 21.3.1990 and forwarded him to judicial custody. However, he was stated that he has recovered

nothing from him. Therefore, on 15.6.1990 he has stated that upon the confession statement given by one Ravi alias Ravikumar to P.W. 9, the

case properties concerned in Crime Number 337 of 1990 were recovered by P.W. 9 in Kodambakkam Police Station Crime No. 115 of 1990

and then transferred the same to Saidapet Police Station and that consequently, the properties were sent to the court, followed by the final report

against the said Ravikumar for the offence u/s 380 read with 75, I.P.C. From his investigation Abdul Nazir had not committed any offence and that

therefore, he had sent a report to the Court accordingly.

P.W. 14 the Deputy Superintendent of Police, Vigilance and Anti Corruption on the day of occurrence has testified himself in corroboration of

P.W. 2 and P.W. 16 in all. P.W. 15, Head clerk attached to the Judicial Magistrate''s Court, Saidapet has spoken to the factum of sending the

material objects to the Chemical Examiner with a covering letter, copy of which has been marked under Ex. P. 12, and the receipt of Chemical

Examiner''s Report under Ex. P.13, with M.O.''s 3 to 5. P.W. 16 is the investigating officer who corroborates the testimonies of other witnesses

and has spoken to the details of the investigation done by him right from the moment of writing down the complaint given by P.W. 2 till he was

transferred. P.W. 17 did the further investigation in this case as P.W. 16 was transferred in the middle and he examined further witnesses,

particularly, one Mr. Jinnah, a member of the Bar practising on the criminal side and after recording the statements of the witnesses and completing

the investigation sent the final report to the court.

Upon the incriminating portion of the evidence and circumstances when the accused/appellant was examined by the Trial court u/s 313(l)(b) of

the Code of Criminal Procedure, he has denied his complicity in the crime but however has added the following: That the whole case against him

was a fictitious one and that on 16.3.1990, the Inspector of Crimes by name Santhanam sent for him and on his appearance, he gave a-petition by

introducing a person who was there by name Sivagnanam and directed him to make enquiries upon the same. In that petition it was stated that one

Abdul Nazir had hired a V.C.P.Deck but however did not return it. Accordingly he had asked Sivagnanam to bring Abdul Nazir the next day.

When he enquired, the said Abdul Nazir admitted that he had hired the material but however claimed that he had sold it away to P.W. 2 at his

shop. When accused/appellant intimated the above said fact to P.W. 11 Santhanam, he was instructed to get P.W. 2 and see the matter settled.

Accordingly, he along with the said Abdul Nazir has been to shop of P.W. 2 and there he was informed by Banu and Nagarajac that P.W. 2 has

been away. However, he took the two to the Police Station. At about 4 p.m. on that day P.W. 2 and P.W. 3 along with an advocate by name

Jinnah came to the Police Station and the advocate enquired about the matter and Abdul Nazir. Then on his advice given for half an hour, P.W. 2

came and admitted that it was true that he purchased the V.C.R. from Abdul Nazir and then they wanted to settle the matter. Pursuant, to this, the

accused/appellant has suggested to wait for some time for Sivagnanam. On his arrival, P.W. 2, P.W. 3 and advocate Jinnah went out and

Sivagnanam and advocate Jinnah came to the appellant''s room and informed that they have settled the matter among themselves and that P.W. 2

did not have the V.C.P. belonging to Sivagnanam and instead he would given one V.C.R. with a further sum of Rs. 1,500/- through the Advocate

Jinnah. When this was put to P.W. 2 and P.W. 3 it was accepted and consequently a sum of Rs. 1,500/- was brought by P.W. 2 on 20.3.1990 as

agreed on previous occasion and at about 7 p.m. the said Sivagnanam brought the V.C.R. to the Police Station and at about 8 p.m. P.W. 2, P.W.

3 along with the Advocate Jinnah came there and P.W. 2 gave Rs. 1,500/- to the accused/appellant and stated that money should be handed over

to Sivagnanam after counting and thus the matter was settled. Consequently, he instructed the Advocate to write a compromise memo with the

signature of the respective parties. A memo was written accordingly. However, within a shortwhile P.W. 16 along with two of three persons came

to the Station and took the said memo and all the papers and the money also from the Sivagnanam. However, he was on duty on 20.3.1990,

21.3.1990, 22.3.1990 and he was served with the suspension order on 23.3.1990. He feigned knowledge of any other thing.

Thiru Sivagnanam was examined on behalf of the defence as D.W.I and through whom Ex. D.1 the xerox copy of the complaint given by him

has been marked. He would state that he was resident of Saidapet for a long period and running an Audio and Video shop and that shop belongs

to his sister''s daughter and that about 2 1/2 years prior to his examination, he gave one ""Funai"" V.C.P. on hire of Rs.60/- per 24 hours to one

Abdul Nazir on 13.3.90 at about 1 p.m. but however he did not return the same. He searched for him and came to know that he had vacated his

house and so he filed a complaint on 16.3.1990 against the said person to P.W. 11. On his direction, the complaint given by him was given to the

accused/appellant and he was enquired in the Station. On 17.3.1990 at about 5 p.m. when he went to the Saidapet Police Station, he found two

persons talking with the accused and one among whose was an Advocate, which he came to know from his talk and another was that Abdul Nazir

and they told that the ""Funai"" V.C.R. has been sold away and instead offered a V.C.R. After a lapse of sometime, a V.C.R. bearing the ""Sharp

mark was shown to D.W.1 and considering the price of the same in the context that his ""Funai"" V.C.P. was a brand new one and its value was

Rs.8,500/- and the one shown to him was an old one worth Rs.5,000/- to Rs. 6,000/- he demanded more money of Rs.3,000/- barring the above

V.C.R. to have a total settlement. As was suggested by the persons who were present there, he had agreed to receive Rs. 1,500/- with the

''""Sharp"" mark V.C.R. in place of his ""Funai"" V.C.P. A receipt was written and given to him but get the money of Rs. 1,500/- he was directed to

come at about 7 p.m. on 20.3.1990.

He has claimed further that at about 7 p.m. on 20.3.1990 when he had been to the Saidapet Police Station he found three persons along with

the accused/appellant and that at that time a sum of Rs. 1,500/- was given to the Advocate who in turn give it to the accused/appellant for counting

and handing it over to him and when the said amount was taken, he gave a separate receipt. As he had been directed to produce the V.C.R. on

20-3-1990 he produced it on that day. He was directed to give a petition withdrawing his complaint and he did so. At that time, 4 to 5 persons

came to that room and recovered everything from the accused/appellant and from him. Thus, in short, that oral testimony of D.W.I with his copy of

the complaint marked as Ex. D.1 would fully support and corroborate the claim of the accused/appellant given during his examination u/s 313 (l)(h)

Cr.P.C.

On recording the oral and documentary evidence through P.Ws.1 to 17 and D.W.1 and marking Ex. P.1 to Ex. P.17 on behalf of the

prosecution and Ex. D.1 on behalf the defence and marking M.Os. 1 to 6, in the light of the rival contentions and after having considered in an

elaborate and detailed manner, the learned trail Judge has rejected the defence case, accepted the version of the prosecution and found that the

guilt of the accused has been established beyond the realm of doubt and accordingly, convicted and sentenced the accused/appellant as mentioned

supra. Aggrieved, that appellant has come forward with this appeal.

I have heard the Bar for the appellant/accused as Well as the learned Government Advocate for and against the impugned judgment rendered

by the trial court. Mr. Madana Gopal Learned Counsel appearing for the appellant would dwell his attack on the following points while challenging

the correctness and legality of the impugned judgment:

1) That the Court below failed to see mat the evidence of P.Ws.2 and 3 on the one hand with regard to the preparation of Ex. P.2 conflicts with

the evidence of P.W. 14 and P.W. 16 and that the before, mere was a grave doubt about the genuineness of Ex. P.2, which the court below has

taken very lightly and casually with the serious prejudice to the accused and that however it caused a shadow and suspicion over the persistent

claims of P.Ws. 2 and 3 as well as the investigating officers;

2) That the case of the prosecution is bereft of any probabilities for the very reasoning that M.O.2 ""Sharp"" mark V.C.R. was recovered and not

the ""Funai"" mark V.C.P. and that the said aspect since controvert the very claim of the prosecution in the context of the evidence of D.W.I, there

arose a serious lacuna in the prosecution case:

3) The claim of the investigating officers as well as P.Ws. 2, 3, 4 and 5 of taking seats in the Air Conditioned hall of Metro Hotel is clearly

unnatural in claiming that while of them were there, the accused/appellant who was the Sub Inspector of Police, had come there for the purpose of

receiving the bride and then on the payment of the alleged bride, P.W. 2 signalled to P.W. 16 by dressing his hair with a comb in his pocket and

that this shows the very tutoring of P.Ws.2 and 3 to speak like that and that the Court below had failed to take note of such unnaturalness in the

case;

4) That the trap set up and pleaded by P.Ws. 14 and 16 with the help of P.W. 3 and P.W. 4 cannot at all be believed for the reason that it has

been done subsequently at the behest of P.W. 16 by recovering the amount and all materials, papers from the accused/appellant and the witnesses

and thus in whole, the prosecution case is vulnerable by the creation of suspicion and improbabilities;

5) That Ex. P.1 the sanction order given by the Commissioner of Police, in this case to launch the criminal prosecution against this

accused/appellant u/s 19 of the Prevention of Corruption Act, 1988 is not valid in law and that for the said reason alone, the prosecution is vitiated

and the court below had virtually failed to take note of it; and lastly,

6) The circumstances under which the money had happened to be in the hands of the accused/appellant has been clearly explained by and behalf

of the accused/appellant, fully corroborated by P.W. 11 and D.W.I and this vital aspect has not been properly assessed in evaluating the

prosecution case and if so done, this would have a trust upon the prosecution case into, which could have resulted in the rejection of the

prosecution case.

Per contra, Mr. A.N. Rajan, learned Government Advocate would contend that the sanction accorded by the Commissioner of Police under

Ex. P.1 in this case is a valid one for the reasoning that it has been accorded by the Commissioner of Police after going through the report of the

Directorate of Vigilance and Anti Corruption, which contains all the matters in full and that therefore, the sanction given by the authority is on all the

fours the resultant factor of its application of mind and as such, it is deemed to be valid in law. As regards the other points on factual aspects,

learned Government Advocate would submit that there may be slight deviation of inconsistency between the claim of P.W. 2 on the one hand and

P.Ws.14 and 16 on the other hand. But however while reducing the facts to the narration of P.W. 2 it was admitted that P.W. 16 as instructed by

P.W. 14 has taken down in writing and got the signature of P.W. 2 as attested by P.W. 3. According to him therefore this inconsistency even if

admitted may not go anywhere nearer to the root of the controversy. With regard to the other contentions, the distinction between the difference of

materials referred to be D.W.1 and the material object M.O.2 recovered is a different one, there was no say on behalf of the prosecution.

However, it was claimed that the material object recovered by P.W. 11 and kept in the Police Station was recovered by P.W. 16 on the night of

the day on occurrence in this case. Learned Government Advocate would controvert the other contentions advanced on behalf of the appellant

that there was a vital distinction between the place of occurrence claimed viz. in the Police Station as well as in the Air Conditioned hall of the

Metro Hotel, by stating that the same has been clearly discussed and considered by the trial Court and that in this context, there cannot be any

doubt or shadow created. In short, it was contended that the prosecution had established the guilt of the accused beyond the realm of doubt as

rightly and justifiably and perhaps correctly observed by the trial Court in this case.

On all the above points, I have heard the Bar for the respective parties very elaborately. The facts that the accused/appellant was working as

Sub Inspector of Police, (Crimes), attached to the Saidapet Police Station on the relevant time and day of occurrence and mat pursuant to the

complaint given by one Sivagnanam under Ex. D.1 to P.W. 11 on his instruction, the accused/appellant enquired that matter and consequently he

had been to the shop of P.W. 2 and took P.W. 6 and one Nagarajan from the shop of P.W. 2 on the evening of 20th March, 1990 to the

Saidapet Police Station on the information given by the said Abdul Nazir that he had sold away the material to P.W. 2 are not in controversy and

the prosecution case to the said extent was admitted by the accused/appellant while answering the questions put to him u/s 313(l)(b) of the Code

of Criminal Procedure. Corroboration to the abovesaid statement given by the accused comes through the evidence given by P.W. 11 in this case.

P.W. 11 is not an independent or an ordinary witness. He is an Inspector of Police attached to Saidapet Police Station in Crimes Section under

whom the accused/appellant was working. If the evidence of P.W. 11 is taken for consideration in the context of the statement of the

accused/appellant along with the evidence of D.W.1, it has been clinchingly proved that there was a complaint given by D.W.1 and as instructed

by P.W. 11, the accused/appellant was investigating the case by examining Abdul Nazir and D.W.1 and in connection thereto, he had been to the

shop of P.W. 2 and took P.W. 6 and one Nagarajan prior to the occurrence. It is also noticed that if D.W.1 would have given such a complaint as

spoken to by P.W. 11 and claimed by D.W.I, the prosecution ought to have filed the said complaint into the court for the proper adjudication of

the matter on hand but however, it has not been done so and the said complaint has been suppressed. In this context, the contention raised by Mr.

Madanagopal, Learned Counsel for the appellant has a tilting force when he submits that if the complaint in original had been produced by the

prosecution from the Saidapet Police Station, it would have thrown every light upon the true facts of the case and that the prosecution has burked

the same with the mala fide intention in order to mulct the accused/appellant with criminal liability. However, the fact remains that M.O.2 recovered

under the cover of mahazar from the Saidapet Police Station on 20.3.1990 by P.W. 16 was a ''Sharp V.C.R.'' and not a V.C.P. of Funai origin.

This aspect would go to prove a long hallow in the prosecution case. If a ''Funai'' V.C.P. is found missing or had not been returned by the person

who has taken it then, how a different material M.O.2 was found recovered from the Police Station by P.W. 16 to corroborate or attribute motive

to the accused/appellant to commit such an offence? It is a mystery still that the whole case has been harped upon the basis of M.O.2, different

material. As was rightly pointed out by the Learned Counsel for the appellant, in so far as the motive is concerned, the backdrop spoken to clearly

by the prosecution witnesses in the context of the definite, categoric stand of the defence, there emerges a serious doubt in the prosecution case.

Coming to the first two contentions raised by the Learned Counsel for the appellant, while considering the place, time and circumstances when

P.W. 2 evidently reached the office of the Directorate of Vigilance and Anti Corruption and met P.W. 14 for the purpose of narrating the whole

thing that happened so far and to his direction, P.W. 16 took everything in writing to the dictation of P.W. 2, attested by P.W. 3, I am not inclined

to attach any importance for the deviation if any, or inconsistency if any between the evidence of P.W. 2 on the one hand and P.W. 14 and P.W.

16 on the other hand. Therefore, for the said reasonings, I am not inclined to accept the abovesaid contentions. Coming to the actual place of

occurrence/namely, the trap set up by P.W. 16 and implemented, is concerned, it is noted that the venue is the Air Conditioned hall of the Metro

Hotel situated in Mount Road near Saidapet Police Station at about 8 p.m. on 20.3.1990 as spoken to by P.W. 7 and P.W. 13. A rough sketch

Ex. P.15 alone has been filed in this case. No observation mahazar was prepared by P.W. 16. It is the consistent claim of P.W. 2 to P.Ws.5, 7,

13 and 16 that the recovery and arrest of the accused/appellant was made within Air Conditioned hall of the said Metro Hotel. Prior to that,

except the accused, P.Ws.2, 3, 4, 5 and P.W. 16 and five persons had already been there and occupied their respective tables in the Air

Conditioned dinning hall. It is noticed at this juncture that P.W. 16 is not an ordinary person but the Inspector of Police attached to the Vigilance

and Anti Corruption Department, a person in authority, who was found evidently occupying a side by table to the table where P.Ws.2 and P.W. 3

were sitting against each other. '' P.W. 4 was also found in another side table and that P.W. 4 ordered some snakes also for P.W. 2 and 3. It was

claimed that at that moment, the accused/appellant came and asked P.W. 2 as to whether he had brought the money. On giving the answer in the

affirmative, it was claimed, that the accused/appellant demanded the payment of Rs. 1,500/- followed by the payment of the said 15 currency

notes of hundred rupee denomination to the accused/appellant as decided already. If this was the fact, then one could except that every thing has

happened upon the eyes and nose of P.W. 16 for the reason that he was sitting there itself in a different table. Under the circumstances, I feel, with

great constraint, that there exists no need at all for P.W. 2 to take a comb from his pocket and dress his hair as a positive signal to P.W. 16 to

approach the accused/appellant, arrest him and recover the money. Thus, the very claim of the prosecution appears to be very superfluous and

imaginary, not at all possible for any moment. If an officer of the rank of Inspector piloted the whole scheme of trap and was sitting at the very

nose of those people, watching the entire episode, where exists the need for signalling by P.W. 2 to such an Officer? This aspect has not at all been

considered by the learned trial Judge.

True, the money of Rs. 1,500/- in 15 hundred rupee denominations were admittedly recovered from the hands of the accused/appellant on the

night of 20.3.1990 in the Saidapet Police Station. Adequate explanation has been projected by the accused/appellant to prove the circumstances

under which he had the currencies at that time, given by one Advocate by name Jinnah on behalf of P.W. 2. It is not as if the name of the member

of the Bar has merely been referred to in this case. It was the consistent claim on the one hand to be noted that the accused/appellant as well as

D.W.I have claimed the presence of the said Advocate in the Saidapet Police Station on more than one occasion and mediated the whole matter

and as a result of which, an agreement was so arrived at among themselves and consequently, M.0.2 was agreed to be taken by the complainant

D.W.I apart from the payment of Rs. 1,500/- payable by P.W. 2 on the day of occurrence. The evidence of D.W.I has not been discredited nor

shattered by the Cross- examination by and on behalf of the prosecution. Therefore, I have no other go except to believe their version in toto. If

the accused/appellant and D.W.1 persistently took the stand of the presence of the Advocate by name Jinnah and the mediation effected by the

Learned Counsel among the parties herein, then, in my considered view, that aspect goes to the very root of the controversy in the prosecution

case. It is under the above circumstances, the prosecution ought to have and must have examined the said Jinnah to give evidence thereon. It is not

as if he has not been examined by the investigation officer or not cited. P.W. 17 the Investigating Officer who laid the final report on completion of

investigation has examined the member of the Bar and recorded his statement. Above all, he has been cited as witness No. 19 in the memo of

evidence in the charge-sheet. Under the circumstances referred to above, the non-examination of the said Advocate witness is not only vital but

also has demolished the whole edifice of the prosecution case to the debris for the very reasoning that the complainant and his grievance has been

settled and as a part of settlement, some amount has been passed through the accused/appellant, when in fact the defence claimed even the writing

of the receipts in token of the said settlement. If all these things are noted, I feel that there existed no need for the accused/appellant either to

demand any bribe or to accept any money.

It was represented by the Bar that since the prosecution had dispensed with the examination of the said Advocate witness, accused/appellant

has cited him as one of his witness on his side and consequently, summons were issued to the said witness but however, the summons issued to him

to appear before the trial Court and give evidence was not served for the obvious reasons known to. The grievance of the Bar projected on behalf

of the appellant on this score cannot be brushed aside and cannot be treated so casually, which it has its own impact upon the prosecution case.

The observation made by the learned trial Judge that examination of any prosecution witness is the prerogative of the prosecution is not correct in

the context of the matter projected above. However, on consideration of the whole matter and the established circumstances, I feel that the

evidence of the Advocate Jinnah, learned member of the Bar is very very vital and important in this case and the absence of the same and non-

examination of the said witness totally demolished the prosecution case as a whole. The reasoning for non-examination of the said witness though

examined by the Investigating Officer and cited as a witness, though discretionary for the prosecution, is obvious in this case, to conceal the real

facts, which conclusion of this Court is inevitable and cannot be dispensed with for any moment.

Lastly, coming to the question of the validity of the sanction granted by the Commissioner of Police, under Ex. P.1, as spoken to by P.W. 1, I

may straight away observe following the decision held in Charles Waker Devadas v. State, by the Inspector Of Police, etc. (1993 L.W.(Crl.) 346)

that the sanctioning authority has not applied its mind but casually accorded the sanction by referring the mere allegations only, which is not

conducive to the established canons of law.

The attack dwelt by Mr. Madana Gopal Learned Counsel appearing for the appellant on the question of according sanction under Ex. P.1 was

very strenuous for the reason that according to him, the sanctioning authority has not at all applied its mind with regard to the basic ingredients to

be followed in doing so. Referring the case laws hold in Suraj Mal v. State (Delhi Administration) (1980 M.L.J.(Crl.) 73 (S.C); Anand Sarup v.

State (1988 Crl.L.J.756); Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, ; Periyasamy v. Inspector, Vigilance And Anti Corruption,

Tiruchirapalli ( 1992 L.W. (Crl.)582); Har Bharose Lal v. The State of U.P., 1988 Cri.LJ. 1122; Indu Bhusan Chatterjee Vs. The State of West

Bengal, ; The State of Rajasthan Vs. Tarachand Jain, and State of Tamil Nadu v. Damodaran (1992 Crl.L.J.522 (S.C.) I had my preference to

add, apart from the ratios held therein in the above citations, that u/s 6 of Prevention of Corruption Act, the sanctioning authority should necessarily

apply its mind and get itself satisfied that a case for sanction has been made out constituting the offences. The prosecution has to prove this in two

ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by

adducing evidence aliunde to show that facts placed before the Sanctioning Authority and the satisfaction arrived at by it. A case'' instituted without

adopting the above referred legal concept and ingredients must necessarily fail because this being a defect manifest in the prosecution and as such,

the entire proceedings are rendered void ab initio. Though a report of the Director of Vigilance and Anti Corruption with a particular reference

number has been referred in the column of reference and in paragraph six, fell and careful examination of the materials placed before the

sanctioning authority was referred to, it is manifest and apparent that it is not known what are all the documents that have been relied upon by the

Sanctioning Authority to arive at the satisfaction and what are all the ground of satisfaction are totally absent in this case. Above all, evidence

aliunde involved in this case frustrating the facts leading to the offence before the Sanctioning Authority and his perusal of the same is also absent

totally in this case. In short, I would like to add that the sanctioning authority has not applied its mind with reference to the evidence leading to the

facts constituting the offence committed by the appellant herein and thereupon, he has accorded the sanction. Thus it is seen that the according of

sanction is not an idle formality but a solemn and sacrosanct act following the consideration of all the materials placed before him, not to be guided

by extraneous considerations, which alone provides the protection to public servants against frivolous prosecutions and ltitgations. This requirement

of law is necessarily incumbent upon the investigating agency, to be complied with, before launching prosecution against the person accused of the

offence under the Act.

However, as regards the above established position of law, learned Government Advocate Mr. A.N. Rajan has taken strenuous effort in

persuading me to the position of law as now found in Section 19 of the Prevention of Corruption Act, 1988, which embodies the duty of according

sanction provided u/s 6 of the Old Act. It reads as follows:

Previous sanction necessary for prosecution.- (1) No court shall take cognizance of an offence punishable under Ss. 7,10,11,13, and 15

alleged to have been committed by a public servant, except with the previous sanction, ...

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the

sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the

sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

2). Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-Section (1) should be given by

the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would

have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

3). Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),___

(a) 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;

(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority,

unless it is satisfied that such error, omission or irregularity has resulted in failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any

interlocutory order passed in any inquiry, trial, appeal or other proceedings.

4) In determining under Sub-Section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted

in a failure of justice the Court shall have regard to the fact whether the objection could any should have been raised at any earlier stage in the

proceedings.

Explanation- For the purposes of this section, -

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or

with the sanction of a specified person or any requirement of a similar nature.

A casual reading of sub section (3) and (4) of Section 19 with the Explanation provided therefor, provides the guiding factors to accord sanction

as has been clearly spelt out under Sub Sections (1) and (2). This would mean however that the burden of proof is clearly on the prosecution to

show that the sanction accorded in a given case is valid in law and such burden includes proof that the sanctioning authority has accorded the

sanction with reference to the facts to which the proposed prosecution was to be based and that in this context, it has become essential for all the

facts which were relied on to be referred on the face of the sanction, or it might be proved by independent evidence that the sanction was

accorded for prosecution after those facts had been placed before the sanctioning authority. It is also to be noted that mere identification of an

error or omission or irregularity in according the sanction by sanctioning authority is not enough but however, that identification must result in the

failure of justice to the aggrieved person and if that was so, then the amended section as a whole above referred to, clearly demonstrates that the

sanction accorded in whatever form must be held as not valid in law. What is meant by error as explained in the said provision is inclusive and

mutually exclusive to be decided by the Court on the basis of its discretion. The objection of the sanction required to be accorded under this

Section cannot be taken so lightly in view of the decision held by the Supreme Court in R.S. Nayak Vs. A.R. Antulay, . In short to say, it is the

common case that the sanction to be accorded before launching prosecution against a public servant is required to be made by the sanctioning

authority with the application of mind, to safeguard the interests of public servants from the pilferages and false allegations and stage managed

prosecution cases against such people. Keeping in view, all the above-said legal ratios to the facts of the instant case, if the sanction accorded

under Ex. P.1 by the Commissioner of Police against this appellant is perused, I am well fortified by the reasonings to say that the sanction

accorded is not a valid one and not the resultant factor of application of mind by the sanctioning authority, which has resulted in great failure of

justice to the accused in this case, as clearly spelt out in sub Sections (3) and (4) of Section 19.

Extracting the proceedings in Ex. P.1 has become absolutely necessary to dispose of the case in its proper perspective, which runs as follows:-

Proceedings of the Commissioner of Police, Madras 600 008.

Present: Thiru K.K. Rajasekharan Nair, I.P.S.,

Rc. No. 187/057582/P.R.II(3)/90 Dated 28.11.1990.

Sub: Public Servants - Thiru N.M. Rajendran, Formerly Sub Inspector of Police, (Crimes) J.I Saidapet Crime Police Station, Madras-15 Sanction

for Prosecution - Accorded.

Ref: Directorate Report No. RC.No.26/90/POL/MCI dated 16.11.90 and Connected records.

ORDER: Whereas Thiru N.M. Rajendran, who worked as Sub-Inspector of Police (Crimes) J.1 Saidapet Police Station, Madras-15 is a Public

Servant:

Whereas it is alleged that on 17.3.90, in the evening at the house of Thiru Ramasamy son of Muthuswamy, at 21, Appasamy Pillai Lane,

Washermanpet, Madras, Thiru N.M. Rajendran, committed extortion by putting in fear the said Thiru Ramasamy that he would be implicated in a

false case of receiving of stolen property and dishonestly induced him to deliver to Thiru N.M. Rajendran a ''Sharp'' VCR worth Rs.4,800/-

belonging to the said Ramasamy.

Whereas it is further alleged that in the course of the same transaction, Thiru N.M. Rajendran, being a public servant pursuant to the demand made

by him to the said Thiru Ramasamy on 17.3.90 evening, of a sum of Rs.3,000/- and to his reducing the demand to Rs. 1,500/- accepted the said

sum of Rs. 1,500/- from the said Thiru Ramasamy on 20.3.90 at about 8 p.m. at Metro Hotel 12 Flower Street, Anna Salai, Saidapet, Madras, as

gratification other than legal remuneration as a motive or reward for not involving the said Ramasamy in a case of receiving of stolen property in

connection with a case under investigation by Thiru N.M. Rajendran in J.1 Saidapet Crime Police Station Crime No. 337/90 u/s. 380, I.P.C.

Whereas it is further alleged that in the course of the same transaction, on 17.3.90 and on 20.3.90 Thiru N.M. Rajendran being a Public Servant,

by corrupt and illegal means and by abusing his position as public servant obtained from the said Thiru Ramasamy a valuable thing, to wit, a

''Sharp'' VCR worth Rs.4,800/- belonging to him, for being shown falsely as the stolen property recovered in J. 1 Saidapet Crime Police Station

Cr. No. 337/90 u/s. 380 I.P.C. in which Dr.C.S. Manonmani, of Madras-35 was the complainant and also obtained for himself the said sum of

Rs. 1,500/- as pecuniary advantage in the circumstances stated above.

Whereas the aforesaid acts of Thiru N.M. Rajendran constitute the offence punishable u/s 384, I.P.C. Sec.7 and Section 13(2) r/w. 13 (1) (d) (i)

and (ii) of Prevention of Corruption Act, 1988 (Central Act 49 of 1988).

And whereas I Thiru K.K. Rajasekaran Nair, I.P.S. Commissioner of Police, Madras, the authority competent to remove the said Thiru N.M.

Rajendran, formerly Sub Inspector of Police (Crime) J.1 Saidapet Crime Police Station, Madras-15 from office, after fully and carefully examining

the materials placed before me in regard to the said allegations and circumstances of the case, -am satisfied that Thiru N.M. Rajendran should be

prosecuted for the aforesaid offence.

Now therefore u/s 19 (1)(c) of the Prevention of Corruption Act, 1988 (Central Act, 49 of 1988) I do hereby accord sanction for the prosecution

of the said Thiru N.M. Rajendran, Formerly Sub Inspector of Police (Crimes) J.1 Saidapet Crime Police Station, Madras-15 for the said offences,

and for taking cognizance of the said offence by a Court of Competent Jurisdiction.

It appears from the perusal of the above Ex. P.1 that such of the documents and materials placed before him in detail with reference to its date,

name and other particulars have not been mentioned. What has been referred to in the said Ex. P.1 was the Directorate Report No.

Rc.No.26/90/POL/MCT dated 16.11.90 and connected records. From the last three paragraphs of Ex. P.1, in and by which sanction has been

accorded, it is not known as to what are the documents he has relied upon and what are all the materials placed before him and what are all the

grounds upon which he was satisfied and what are the materials carefully examined by the sanctioning authority, are all totally missing in this Ex.

P.1. In spite of this, courts had observed repeatedly in very many number of cases that the exercise of the power by the competent authority u/s 19

of the Act is not only a mandate but also a duty attached with every sacrosanctity in order to give protection to the public servants from not

implicating them falsely, I am rather perturbed to see that time and again the observations of the courts of law are not being observed or adhered to

by the Officers concerned. However, under the circumstances, enough for me at this stage to hold after having fully considered, that the sanctioned

accorded under Ex. P.1 in this case against the accused is not valid in law but however has resulted in total failure of justice to the accused as spelt

out in the above section of Law.

It was the endeavour of the learned Government Advocate to refer the following case laws:- For the proposition that to discharge the onus lies

upon the accused when the money is question was found in his hands, Union of India v. Dr. J.M. Almeida (1977 CRL L.J. (NOC) 71) was relied

on, followed by a case held between Thangaraj v. State by Inspector of Police ((1993) M.L.J. (Crl.) 745) wherein, a learned Single Judge of this

Court has held as follows:-

It is well settled law mat the sanction order need not mention the particulars of all the documents perused by sanctioning authority.

In Raja Singh v. State (1995 Cri. L.J. 955), a learned Single Judge has referred as follows:-

The Sanctioning Authority should apply its mind to the facts alleged and only after being satisfied that the sanction was a necessity, the sanction

order should be signed. In this case, even though the sanctioning authority, who accorded sanction was not examined as a witness, the sanction

order gives the details of the records and his statement about perusal of the records before granting sanction. In the sanction order at the top,

under the capition ''reference'' it was mentioned that detailed investigation report and connected records were placed before him. Therefore, the

detailed investigation report and the connected records were sent to the sanctioning authority for his perusal. The said authority has stated in his

order that he after fully and carefully examining the materials placed before him with regard to the allegations and the circumstances of the case,

was satisfied that this appellant should be prosecuted in Court of Law.

Lastly, a case, law held between M.W. Mohiuddin v. State of Maharashtra (1995 SCC (Crl.) 546 was relied on by the learned Government

Advocate, Supreme Court has discussed and confined the scope of the legal concept ''obtains the pecuniary advantage'' in this case. In the context

of the ''competent authority'' defined u/s 19 of the Prevention of Corruption Act, 1988, before the learned Single Judge 6f this Court, in the case

laws referred to above, a reading of the reported cases, clinches the fact that the above-said facts were not canvassed even on the basis of clauses

(3) and (4) of section 19 of the Prevention of Corruption Act, 1988, and perhaps that was the reason why the learned Judges, with great respect,

have not adverted their mind to the basic ingredients to be taken note of as spelt out by the earlier Supreme Court decisions. Nevertheless, for all

the reasonings given above, since I had the occasion to consider the scope and object of the sanction accorded either u/s 6 of the Old Act or

under sectionl9 of the New Act, I had observed the law to be made applicable in this case is as was held in Charles Walker Devadas v. State by

the Inspector of Police, etc. (1993 L.W. (Crl.) 346) For the said reasons, after having thus considered, I am constrained to hold that there was no

valid sanction accorded by the Commissioner of Police in this case and what has been granted to him is not valid in law and that therefore, the

whole prosecution case is vitiated. Lastly, M.0.2 was seen to have been recovered from P.W. 2 by the accused/appellant as spoken to by P.W. 2

and D.W.1 and corroborated by P.W. 11 till it was recovered by P.W. 16 at about 11 P.M. on 20.3.1990 at Saidapet Police Station under the

cover of Mahazar attested by P.W. 4 and P.W. 5 This fact would show clearly that the defence theory and explanation projected by and on behalf

of the accused was true and as such, it is convincing and can be accepted. Even otherwise, the prosecution has not provided any interaction

between the recovery of a ''Sharp'' mark V.C.R. instead of ''Funai'' VCP for the reasons that it was nobody''s complaint that a ''Sharp'' VCR has

been taken away and accordingly it has been recovered and kept in the Police Station unlawfully by the accused/appellant. Therefore, having

considered the whole gamut of this case and the legal evidence adduced with all the materials, I am of the firm view that the prosecution has not

only failed to prove the guilt of the accused beyond the realm of doubt even for the offence u/s 384, I.P.C. but also for the offences under the

Prevention of Corruption Act and thus the prosecution seems to have deliberately failed to establish the guilt of the accused. It is also possible to

have the phenolpthalein test demonstrated with the currencies recovered in the presence of P.Ws. 3 and 5. But however, that does not mean, that

M.O.I series was the bribe money obtained by the accused as clearly spelt out under the Act. It is therefore, under the above context and

established circumstances and for all the reasonings aforesaid, I have totally endorsed my view with the submissions made by the Learned Counsel

for the appellant and I am not able to countenance the strenuous contentions advanced by the learned Government Advocate.

In the result, the appeal succeeds. Consequently, the Judgment of conviction and sentence recorded by the learned Sessions Judge, Madras in

C.C. No. l of 1991 dated 18.12.1992 is set aside. Fine amount if any paid already by the accused/appellant is ordered to be refunded to him

immediately.