State of Gujarat vs Rameshchandra M. Mehta

Z.K. Saiyed, J.

1.0 The present appeal, u/s 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 19.08.1987 passed by the learned Special Judge, Kutch at Bhuj, in Special Case No. 4 of 1984 whereby the respondent - accused has been acquitted from the charges leveled against him.

2.0 The brief facts of the prosecution case are as under:

2.1 It is the case of the prosecution that the respondent - accused had been charged for the offences punishable u/s 161 I.P. Code read with Section 5(1)(d) & 5(2) of Prevention of Corruption Act, 1947 (old Act) (for short ''P.C. Act). It is alleged that on or about 18.10.1983 the accused and Kotwal Siddiq visited the ''PAI'' field of the informant situated in village Bhimpar village falling within the revenue jurisdiction of Talati Mothala. It is alleged that at that time the accused had threatened the complainant - informant for illegally constructing a well and fixing the machine thereon and ultimately demanded Rs. 1000/- as bribe. Thereafter on 25.10.1983 the informant, his brother and Ramji and Sadhu Shambhuram had been to Mothala village and again there the accused repeatedly demanded Rs. 1000/- from the complainant - informant for preparing papers about the well. Ultimately, thereafter the said demand have been reduced to Rs. 500/- and at that time Rs. 200/- has been paid and it was mutually agreed that remaining amount of Rs. 300/- will be paid at Bhimpar on 31.10.2003 at Ram Mandir. Thereafter, on 30.10.2003 the complainant approached the A.C.B. Office at Bhuj and narrated the facts before the concerned Officer about demand of bribe by Talati-cum-Mantri. The complaint was filed and in presence of two panchas an amount was produced by the original complainant before the Trapping Officer and anthracene powder applied on the amount and articles were produced before the panchas and after drawing the panchnama, the members of raiding party along with panchas reached to the place and then in presence of panchas the accused demanded Rs. 300/- which was given by the complainant to the accused. On receipt of the said amount by the complainant, signal was given to the raiding party and then the trapping officer reached the place and search was made out in presence of both the panchas and the amount of bribery was recovered from the possession of the present respondent - accused. Then again the particles of anthracene powder as well as ultra-violet lamp were applied to the body of the present respondent - accused and during that particles presence of anthracene powder was found and thereafter the trapped amount was recovered after drawing the panchnama and the numbers of notes were also mentioned in the panchnama. Then the statement of panch and other witnesses were recorded and after collecting the material evidence of the witnesses the papers were sent to the Appointing Authority of respondent - accused to issue necessary sanction for prosecution against the accused. The sanction was given by the appointing Authority to the ACB and then the charge-sheet was filed before the learned Special Judge. Then the cognizance was taken by the learned Special Judge.

2.2 Thereafter the charge was framed against the accused - respondents. The accused pleaded not guilty to the charge and claimed to be tried. Thereafter, the trial was conducted against the respondents. The prosecution has examined seven witnesses and also produced and relied upon several documents to prove the case against the respondents - accused. On behalf of defence witness Dhara Ganga Lambharia was examined at Exh.31. Thereafter, the statement of accused u/s 313 Cr.P.C. was recorded. After considering the oral as well as documentary evidence and after hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge has acquitted the accused from the offences alleged against him. Before the learned Special Judge the question was with regard to legality of sanction and after considering the legality of sanction the learned Judge has acquitted the accused.

2.3 Being aggrieved by and dissatisfied with the Judgment and Order dated 19.08.1987 passed by the learned Special Judge, Kutch at Bhuj, in Special Case No. 4 of 1984, the appellant - State has filed this Appeal.

3.0 Heard learned APP Mr. Kodekar on behalf of appellant - State and learned Advocate Mr. K.B. Anandjiwala on behalfof respondent - accused. It was contended by learned APP that the judgment and order of the Special Judge is against the provisions of law; the learned Special Judge has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondent. Learned APP has also taken this Court through the oral as well as the entire documentary evidence. Learned Advocate Mr. Anandjiwala for the respondent - accused has supported the Judgment of the Court below. He has contended that the learned Judge has not committed any error in his Judgment. He has contended that sanction is mandatory and the prosecution has failed to prove that sanction was granted without application of mind. He has contended that the sanctioning Authority was not examined by the prosecution and non-examination of sanctioning Authority is fatal to the prosecution case. He has also contended that the contents of sanction was also not proved in light of the provisions of Evidence Act.

4.0 Heard both the learned Advocates. We have gone through the Judgment of the trial Court. We have also perused the reasons assigned by the learned Special Judge. It is true that the amount was recovered from the respondent - accused during the trap. It is also true that from the contents of panchnama it was established that the amount was recovered from the respondent - accused, but, as per the provision of Section 6 of P.C. Act, 1947 (old Act) sanction is prescribed in law. The object of the provision for sanction is that the authority giving the sanction should be able to consider for itself the evidence, before it sanction or forbids the prosecution. It is clear from the form of the sanction that the sanctioning authority considered the evidence before it and after consideration of all the circumstances of the case sanctioned the prosecution and, therefore, unless it is proved otherwise, sanction itself indicates that the sanctioning authority had applied its mind to the facts and circumstances of the case.

4.1 The Act, no doubt, does not prescribe any particular form of sanction, but sanction to prosecute a particular person for an offence implies - (i) full knowledge of the facts upon which he/she is sought to be prosecuted, and (ii) a deliberate decision of the sanctioning authority that he may be prosecuted. These two things are necessary to be proved before it can be said that a particular order amounts to sanction for prosecution. Furthermore, it is necessary that sanction should be given after all materials having been collected against accused so that the sanctioning authority can consider the material upon which prosecution is to be launched.

5.0 In the present case the prosecution has examined the clerk from the office of Sanctioning Authority. We have perused the oral evidence of clerk. He has deposed before the learned Special Judge that sanctioning report of the Director of ACB was produced before the sanctioning Authority and the Sanctioning Authority has simply instructed to prepare the sanction order and the sanction was prepared and it was signed by the Sanctioning Authority. We have perused the papers produced by the prosecution as well as gone through the observation made by the learned Special Judge. We found that the prosecution has not examined the Sanctioning Authority, but simply examined the clerk of his office. As per the provision of the Act the sanction is required to be proved by oral evidence. It appears that the Sanctioning Authority has not applied his mind and simply signed the sanction. Sanction is an important aspect for the prosecution and when it is found that the sanction was given by the Authority without application of mind, in our view, the learned Judge has not committed any wrong in not believing the case of the prosecution and only on this point the Appeal is required to be dismissed.

6.0 At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court against an order of acquittal passed by the trial Court have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala and Another, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:

In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgement of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.

6.1 Further, in the case of Chandrappa and Others Vs. State of Karnataka, the Apex Court laid down the following principles:

From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

[1] An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

[3] Various expressions, such as, ''substantial and compelling reasons'', ''good and sufficient grounds'', ''very strong circumstances'', ''distorted conclusions'', ''glaring mistakes'', etc. are not intended to curtain extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language'' to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

[4] An appellate court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

6.2 Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

6.3 Even in a recent decision of the Apex Court in the case of State of Goa v. Sanjay Thakran and Anr. Reported in (2007) 3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:

From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.

6.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh v. Ram Veer Singh and Ors. reported in AIR 2007 SCW 5553 and in Girja Prasad (Dead) by LRs v. State of MP reported in AIR 2007 SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.

6.5 It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgement or to give fresh reasoning, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy Alias Vemareddy and Another, wherein it is held as under:

This court has observed in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.

6.5 Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.

7.0 We have gone through the judgment and order passed by the trial court. We have also perused the oral as well as documentary evidence led before the trial court and also considered the submissions made by learned Advocate for the appellant. The trial court has clearly recorded a finding that sanction from the sanctioning authority is mandatory and the prosecution has failed to examine the sanctioning Authority. Apart from that the prosecution has not proved its case beyond reasonable doubt. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt. Mr. Kodekar learned APP is not in a position to show any evidence to take a contrary view of the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the trial court has ignored the material evidence on record.

8.0 In above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges leveled against him. We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the court below and hence find no reasons to interfere with the same. Hence the appeal is hereby dismissed.

9.0 In view of above the Appeal is dismissed. The judgment and order dated 19.08.1987 passed by the learned Special Judge, Kutch at Bhuj, in Special Case No. 4 of 1984 acquitting the respondent-accused is hereby confirmed. Bail bonds, if any, shall stand cancelled.