State vs Himatlal Motilal

Baxi, J.—The State has preferred this appeal against the order of the First Class Magistrate, Junagadh, acquitting the respondent of the

offence of taking illegal gratification punishable u/s 161, I.P.C.

The respondent is a superannuated police head clerk of the Bombay Province. He was in the employment of the Junagadh State prior to its

integration with the Saurashtra State. After its integration, the respondent was re-employed as head clerk in the office of the District Superintendent

of Police for a period of one year under the sanction of Government conveyed by its order No. 13-1 (H) dated 14.12.1949. The case for the

prosecution was that the respondent accepted Rs. 100/- as illegal gratification from one Nathubhai Mulubhai of Malta Hatina as a motive or

reward for rendering service to the said Nathubhai in assisting him to obtain restoration of arms which Nathubhai had surrendered to the

Government. According to the prosecution Nathubhai had surrendered his sword and pistol under orders of the Government and his licence was

cancelled. He wanted restoration of these arms and therefore approached the respondent who demanded Rs. 100/- as consideration for helping

him in getting back the arms. Nathubhai then went away promising to return with the money. He was however unwilling to pay anything to the

respondent and reported the matter to the authorities. A trap was accordingly arranged and the respondent was actually caught taking a currency

note of Rs. 100/- from Nathubhai on the public road near the Post Office. This was on 29.3.1950.

On 30.3.1950, a warrant for the respondent''s arrest was obtained from the learned Magistrate before whom he was produced after being

arrested and the Magistrate released him on bail. After completing the investigation the Police sent a charge sheet to the Magistrate on 18.5.1950.

Along With the charge sheet, a copy of an order signed by Mr. Pathak for the Inspector-General of Police suspending the respondent from service

was filed. (Exh. 29 and Exh. 40). An endorsement below this order signed by the Deputy Superintendent of Police, Special Branch, Rajkot,

purported to accord sanction for the respondent''s prosecution as required by Section 6 of the Prevention of Corruption Act, 1947. It appears that

the prosecution entertained some doubt about the validity of this sanction. The Inspector General of Police therefore moved the Government to

accord sanction for the respondent''s prosecution by his express letter No. S/IGP/6025 of 1950 dated 23.6.1950 (Exh. 61). Sanction for the

respondent''s prosecution was therefore accorded by the order of the Government dated 15th July 1950 (Exh. 64). This order has been signed by

Mr. Section M. Dalai, Deputy Secretary, Home Department.

After receiving the sanction from the Government the learned Magistrate commenced to record prosecution evidence and framed a charge against

the respondent u/s 161, I.P.C. Witnesses were recalled for cross-examination at the instance of the respondent but on the day fixed for their

cross-examination the respondent submitted an application to the learned Magistrate stating that the proceedings of the learned Magistrate rejected

this contention and should be quashed as he had taken cognizance of the offence before receiving the sanction. The learned Magistrate rejected the

contention and ordered that the trial should be proceeded with. Against this order, the respondent applied in revision to the Sessions Judge without

success. He then approached this Court in revision against the learned Magistrate''s order. In this revision, In addition to the contentions raised

before the learned Magistrate the validity of the order of the Government dated 15.7.1950 (Exh. 64) sanctioning the respondent''s prosecution was

called into question on the ground that it did not mention the particulars of the offence with which he was charged. This Court held that the learned

Magistrate took cognizance of the offence on 18.5.1950 when he received the charge-sheet and took actual cognizance of the same. On this date,

there was no valid sanction to prosecute the respondent as required by Section 6 of the Prevention of Corruption Act as the Government''s

sanction Ex. 64 was received on 15.7.1950 after the learned Magistrate had taken cognizance of the offence. But as the sanction was received

while the proceedings were still pending, the respondent was not prejudiced and the defect could be cured u/s 537, Cr.P.C. It was further held

that the sanction would be a valid sanction if the facts on which the sanction was based were placed before the sanctioning authority and the

sanction was granted by that authority after applying its mind to these facts. The sanction of the Government produced in this case on the face of it

did not mention these facts. But as the learned Advocate General stated before the Bench that the prosecution was in a position to produce

extraneous evidence that these facts were placed before Mr. Dalai, the case was sent back to the learned Magistrate with a direction that the

prosecution should be given an opportunity to adduce evidence on the point.

Thereafter, the prosecution examined Hardatt Mohanlal (Exh. 66) the Superintendent, Special Branch, in the Home Department and produced

certain papers from the office of the Home Department. The learned Magistrate recorded the rest of the evidence and after hearing arguments

acquitted the respondent holding that though the prosecution had proved that the respondent had accepted Rs. 100/- from Nathubhai, it was not

proved that he had accepted them as a motive or reward for rendering service to him. On the question of the validity of the sanction, he held that

the prosecution had not proved that the facts upon, which the sanction was based were placed before Mr. Dalai who gave the sanction, but the

defect was nevertheless cured u/s 537, Criminal P.C.. The present appeal is against this order.

The learned Advocate General submitted that the learned Magistrate erred in holding that the facts upon which the prosecution was based were

not placed before Mr. Dalai. He further submitted that assuming that these facts were not so placed, the validity of the sanction could not be

questioned. On merits, he urged that the respondent had failed to prove the defence which he had set up viz., that the complainant attempted to

pay the amount to him as a Vadhava on the occasion of the sacred thread ceremony of his grandson. He therefore submitted that the learned

Magistrate''s order deserved to be set aside.

We shall first take up the question whether the prosecution has proved that the facts as which the prosecution was based were placed before

Mr. Dalai. (After discussion of the evidence his Lordship proceeded:). The prosecution was given an opportunity to prove that these facts were

brought to the notice of Mr. Dalal before he sanctioned the respondent''s prosecution and they have failed to do so and it is not possible to draw

any inference in favour of the prosecution. We must therefore hold that the facts on which the respondent''s prosecution has been founded are not

proved to have been placed before Mr. Dalal before he gave the sanction.

The learned Advocate General, however, argued that the I.G.P.''s express letter (Ex. 61) which stated that ""the respondent was caught red-

handed for accepting illegal gratification"" expressed essential facts sufficient to establish correlation between, the sanction and the offence of which

the Court was required to take cognizance. We do not agree. The letter does no more than state what offence under the I.P.C. was committed by

the respondent. He next submitted that even if the I.G.P.''s letter did not state the particulars of the offence the sanction was not invalidated thereby

and referred to the decision of � Biswabhusan Naik Vs. The State, , in support of his contention.

In that case, the accused was prosecuted u/s 5(2), Prevention of Corruption Act, 1947 for the, offence of criminal misconduct and the sanction for

his prosecution mentioned the section of the Prevention of Corruption Act only under which he was to be prosecuted. But the letter of the District

Magistrate upon which the Government granted the sanction, and which was proved to have been placed before the sanctioning authority

mentioned two facts against the accused viz., (i) that according to his information the accused in the course of his visit to mills in the Balasore

District as Inspector of Factories had been collecting heavy sums as illegal gratification from the managers or the proprietors of the mills under

threat of mischief to the mill owners and (ii) on the 3rd October a heavy sum of Rs. 3148/- had been seized from his possession. It was held that

the sanction for prosecution should be taken to be in respect of these matters. The first of them indicated that what the sanctioning authority had In

view was the particular factual ingredient of the offence u/s 5(2) set out in Section 5(a) viz., habitual acceptance of illegal gratification. The second

matter indicated that it had in mind the ingredients of the offence constituted by the fact of the unexplained possession of pecuniary resources

disproportionate to the known sources of income of the accused. In this view of the learned District Magistrate''s letter, the learned Judges field

that the prosecution had established sufficient co-relation between the sanction and the essential facts of the offence of which cognizance was to be

taken. In that case the various instances of bribe-taking were not referred to in the District Magistrate''s letter. But as regards this aspect,

Jagannadha Das C.J. observed as follows: (p. 307)

It is true that the various instances of the bribery are not referred to in the District Magistrate''s letter and indeed could not have been. But it is to

be remembered that the prosecution in this case is not ""for specific offences u/s 161 I.P.C."" (Underline mine herein """") but only for the offence of

criminal misconduct under Sub-section (2) of Section 5. The instances of bribe-taking adduced in this case are only evidence of one of the

essential factual ingredients of the offence, viz., habitual bribe-taking.

I have already said that the validity of the sanction cannot be questioned on the ground that the evidence or the particulars are not indicated in the

sanction. The sanction, therefore, in the present case cannot be said to have been vitiated by the absence of such particulars. I have, in fact, held in

an earlier portion of the Judgment that the absence of these particulars even in the charge in this case, cannot be held to have vitiated the trial.

I have therefore, no doubt, that taking the order of sanction with the letter of the District Magistrate the Court which has been asked to take

cognizance of the offence in this case had enough material before it to be satisfied that the offence which it was to take cognizance of, had been

sanctioned viz., the offence of criminal misconduct with the two factual constituents or ingredients viz., (1) habitual bribe-taking, and (2)

unexplained and disproportionate possession of pecuniary resources by a public servant. The sanction, in this case, is therefore perfectly valid.

In a charge of criminal misconduct by a public servant in the discharge of his duty by habitual acceptance of illegal gratification the instances of

bribe-taking would no doubt constitute evidence of the offence and it may not be necessary to bring to the notice of the sanctioning authority

particular instance of bribe-taking; but it cannot be said that the same principle applies where the accused is charged with accepting illegal

gratification from a specified person on a specified occasion. In such a case the factual constituent of the offence is the instance itself and therefore

the necessity of placing essential facts constituting the offence for which the respondent is to be prosecuted cannot be dispensed with on the

authority of the above case. It may be mentioned that this point had been already decided in the revision by this Court and the case was sent back

to enable the prosecution to prove by extraneous evidence that these facts were placed before the Deputy Home Secretary. In view of that order,

we do not think that we would be Justified in departing from the view already expressed by this Court in this case.

The learned Magistrate, while holding that the facts constituting the offence were not placed before Mr. Dalal and, consequently, the sanction

was not in accordance with law, held that as the respondent had not been prejudiced thereby, the defect in the validity of the sanction was cured

by Section 537, Cr.P.C. This is not a correct statement of law. Section 6 of the Prevention of Corruption Act prohibits the Court from taking

cognizance of an offence punishable u/s 161, I.P.C., except with the previous sanction of the authorities mentioned in that section. If in spite of this

prohibition, the Court takes cognizance of the offence in the absence of the sanction and if the proper sanction is subsequently obtained, while the

proceedings are not yet over, the irregularity may be cured u/s 537, Cr.P.C., and that was the view expressed in the previous revision in this case.

But if the whole trial is completed in the absence of a proper sanction then the trial is vitiated as having taken place in contravention of Section 6 of

the Act. We, therefore, hold that as the respondent''s prosecution has not been validly sanctioned, he cannot be convicted.

The above finding is sufficient to dispose of the appeal; but the appeal was argued on merits and we shall briefly deal with the merits also.

The learned Magistrate held that while it was proved that the respondent had received Rs. 100/- from Nathubhai, it was not proved beyond

doubt that he had accepted the sum as a motive or reward for rendering service as a public servant and consequently the charge was not proved

against him. He came to the above conclusion after considering fully the evidence led by both sides and we do not think that we would be justified

in reversing his finding. The arms of which Nathubhai wanted restoration were an old pistol and a blunt sword. They were intrinsically worth very

little and it is not likely that he would pay Rs. 100/- for getting back these useless arms. The learned Advocate General however argued that

though the arms themselves might not be of any use, Nathubhai could replace them by purchasing more efficient arms if his licence for possessing

the old arms was restored. Nathubhai however already obtained a licence for a 12 bore gun and cartridges and he might not find it difficult to

obtain a new licence if he wished to purchase a new pistol or a sword particularly because he held a licence which he had to surrender under

orders of the Government under a political exigency viz., transference of the Government of the State to the Dominion of India. Moreover if as the

prosecution suggests, the respondent had actually demanded the money and if Nathubhai wanted to entrap him, he would have brought Rs. 100/-

with him from his home instead of getting them from the police officer.

It is also on record that the Police Inspector Mr. Jethva had some reason for bearing grudge against the respondent for failing to prevent the

transfer of his brother from Porbandar to Junagath. This consideration too weighed with the Magistrate who thought that in these circumstances the

prosecution might well have been actuated by personal motives. The learned Magistrate observes that Nathubhai was a man of some influence with

the police authorities and had been able to secure a licence for the gun and cartridges without the intervention of the respondent and it was not

probable that he would sees the respondent''s assistance in the matter of restoration of old arms particularly when the latter did not deal with the

work relating to arms and ammunition in the office. There was a sacred thread ceremony at the respondent''s house at about this time and it is the

respondent''s case that this amount was tendered to him by Nathubhai as a Vadhava on the occasion, while according to Nathubhai the amount

was offered because the respondent demanded it as a bribe. On this point there is only the word of Nathubhai against that of the respondent and

we do not think that in view of the circumstances mentioned above, the learned Magistrate''s refusal to accept the complainant''s version at its face

value was not reasonable. In � Surajpal Singh and Others Vs. The State, , the Supreme Court observed:

It is well established that in an appeal u/s 417 the High Court has full power to review the evidence upon which the order of acquittal was founded,

but it is equally well-settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial Court, and the findings

of the trial Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and

compelling reasons.

The prosecution has not been able to make out any such reasons for reversing the learned Magistrate''s finding which is consequently confirmed. In

the result therefore the appeal must fail and it is ordered to be dismissed.

Shah C.J.

I agree.