.^s^\ -V .;.' !';•.(„-iigafe, ..^^ "^ '-^ ^.'^, l'ii.lfc HiGH_CQURT OF CHHATTISGAR-! AT BiLA-SPUR Crirninaj Appeai No. 673 of 1990 App^LLAMTS £~^i t iLu fanddalj'*^£'~J h'unnu Rs.m G^wsdo NON APPLICANT tateofiWadhvaPradesi !P » 1= i-UOIt;! FOR PRONOUNCE1VSENT ON L> -9-2008 SdA;, , T. P. Sharma Judge ^^A^ H1GH COURT OF CHHATTISGARH AT BILASPUR [SB: Hon'bie Mr.T.P.Sharma.J.I Crimjna! Appeal No. S73 of 199Q Ghunnu Ram Gawade, aged about 35 years, son of Manihar Gawade, R/o vi!!age Baioda, Police Station, Daiii Rajhara, Clerk and Reader, Tehsiidar, Navagarh, DistrictDurg (M.P.) VERSUS State of Madhya Pradesh through Special Poiice Estabisihment, Lokayukt Karyaiaya, Raipur, M.P. Shri V.G. Tamaskar learned counsel for the appeliant. Ms. Sangita Mishra Panel La'Ayer for the rsspondenfc'State. :R SECTION 374(2) OF THE CODE OF CRiMiNAL PROCEDURE JUDGMENT (o ^1.9.2008) This appea! is directed against the judgment of conviction and order of sentencs dated 11.07.1990 passed by Additional Sessions Judge/Specia! Judge, Durg, in Specia! Case No. 1/1988 whereby the appeilant has been convicted for the offence punishable under section 5 (2) of the Prevention of Corruption Act, 1947 (forshortthe "Acf) and section 161 ofthe indian Pena! Code and sentenced to undergo rigorous imprisonment for one year and pay fine of Rs. 500/- in defautt of pavment of fine to furthsr undergo R1 for thres months u/s 5(2) of the Act and to undergo Rl for one year u/s 1 61>1 !PC. 2. The judgment of the tria! Court is challenged on the ground that wlthout there being any proof of motive or reward and acceptance or recovery of the alleged i!!egal gratiflcation in breach of rnandatory provisions of Section 5 (A) (1) of the Act, learned Specia! Judge has committed an iiiegality in convictlng and sentencing the accused/appellant as mentioned above. 3. Heard Shri V.G. Tamaskar learned counse! for the accused/appellant and Ms. Sangita Mishra, Panel Lav/yer for the respondent/State and perused the material avaiiabie on record including thejudgment Impugned. 4. Case of the prosecution in short is that on 16.7.1986 accused/appellant was posted as cierk in the office of Tahsildar, Navagarh. Another sccused Gotiia! \vas pos+sd as peon in the sams office. Co-accused Jaieshwar was carrying out th9 '/rork of Arj! Nsvis 'in the premises of Tshsii Office. Co-accused Lakhanial is the brother of accused Jaiesi'war. Compiainant Chandan Das vr'as an agriculturist .'esiding in viilage Manpur. As he was in need of Rin Pustika reSating to his !and, he produced the requi'ed certificate before the Naib Tehsiidar, Navagarh. On the basis of said certificate the Naib Tehsiidar directed for issuance of Rin Pustika to complainant Chandan Das. Compiainant Chandan Das went to the accused/appe'iant for coliscting the Rin Pustika where compiainant produced the sasd certificate Ex. P-1 before the accused/appellant. On receiving the certificate, accused/appellant asked the complainant as to how much money did he brino wlth him. When the complainant said that he was having ',vith him the cost of the Rin Pustika which was Rs. 21-, the accused/appeSiant toid hiti that the Rin Pustika wouid not be g'vsn for Rs. 21- and he would get the Rin Pustika after paylng Rs. 60,'-, and returned the said certlficate to him. 5. Complsinant came back to his viSlage to arrange the money asked for but on being advised by the vi'iagers that the Rin Pustika is provided for Rs. 21-, hs went to the office of LoKayuki, Raipur and flled the v^ritSen complaint Ex. P-2. Superintendent of Polsce posted in the office of Lokayukt after receiving the complaint directed Shri B.D. Dhananjay who was posted as inspector of Poilce in the LokayuS<t office to investigate the matter. He a'so provided the complaint Ex. P-2 to the complainant for hls satisfaction. Thereafter, he calied Panch witness Sursndra Kumar Saxena (PW-5) who ~s- read over the contents of Ex. P-2. The complainant told him that he did not want to give the bribe on that day to the accused/appellant and requested for taking action against him. On being asked, he produced six currency notes of ten denomination number of which were taken down in the preiiminary Panchnama Ex. P-1 and applied a layer of phenoiphthalein powder thereon and kept the same in the.pocket of the shirt of the comp!ainant. They a!so asked the compisinant not to shake hand with anyone and give the said currency notes to the accused/appeliant on demand being made by him and while giving the money he shou'd give the signal to them by keeping his hand over his head.- Reaction of phenolphthalein powder and sodium carbonate was demonstrated. Preiiminary Panchnama Ex. P-3 was prepared. T'ne compiainant and the trap party proceeded for the spot. Comp!ainant went to Tehsil office and after coming backafter some time, informedthe trap party that the accused/appellant had gone to his house which is situated nearithe Tehsil office. Trap party sent the complainant io the housej of accused/appellant and whsn he was going there, co-accused Gotilai met him on the way and both of them went to the house of accused/appellant wh|ere accused/appellant demanded money from the complainant. When complainant gave money i.e. the six currency notes of 10 denomination asked for by the accused/appeltant, he counted it and asked Ch&ndan Das to remain present there. Accused/appeliant and co-accused Goti!al went inside the room, discussed the matter and after some time they came^ out. Accused/appeilant told the complainant to go to Afji Naws along with Gptilal. Complainant and co-accused Gotilal went to Arji Navis namely Jalesljiwar. While going to Arj'i Navis, complainant informed the trap party about his giving money to the accused/appeilant. Trap party went to the house of jthe accused/appeliant and oninquiry, he admitted that he had taken money the complainant but given it to co-accused Gotilal. After some time eo- accused Gotilal and Jaleshwar also came there with Rin Pustika. AftertakiRg from 0 C. ry -L/- search ofGotila!, two currency notss of 10 denornination v/ere recovered from the pocket of his full pant and one rupee coin and a currency note of two denomination were recovered from the pocket of his s''lrt. Accused Got'la! inforrned that he gave Rs. 401- to the brother of Arji Navls Jaleshwar name'y Lakhanla! but the same were not recovered frorn any of the accussd persons. Fuil pant of accused Gotiial v/as seized vide Ex. P-10. Hands of acc^sed Ja'eshwar, Lakhaniat and Ghunuram - the oresent wers washed with Sodiym Carbonate soiution which turned pink. Panchnama Ex. P-11 was p'epared. Reaister reaardina issuance of Rin Pustika was seised vide Ex. P- Certificate Ex. P-1 wss ssized vide Ex. P-4. Statements of 1:h° witness under section 161 of ths Coc'e of Crimmal Procedurs were r&cordad, se!2 articies were sent for chemica! examination to Forensic Science Laborato: Raipu'r vide Ex. P-14 and on examinatlon of the same presence of p'nenolphtha!ein po'wder and sodium carbonate soiution on theseizsd arcales was confirmed vide report Ex. P-16. Sanction to prosecute the accusedi'appel'ant Vi'as obtained vide Ex. P-9. After compietio" o? investigation c'narge sheet was filed againstthe accused/appeliant 6, I" order to prove the gullt of the accused/appsSSant the prosecutlon has examined six wltnesses. Statement of the accused/appel'ant v»"as recorded under sectlon 313 of the Code of Criminal Procedure in which he denled ths materiai appearing against him In prosecution evidence and pteaded his innocence and false implication in the case. 7. After affording opportunity of hearing to the parties les'-ned Specie! Judge convicted and sentenced the accused/appeliant as mentioned above snd acquitted co-accused Goti'al, Jaisshwar and Lakhanla! of the charges ieveled againstthem. 8. It is argued on behalf of ths accused/appeiiant that the cnms I" question is invsstigated by Shri 3.D. Dhanaryay, Poiice Inspector, posted in ^ (-- »«»» ^ 1 s%jsl"rfy ~l"i^s-s~w-;-ffy' s- % Lokayukt Office, who was not authorized by the State Government as required under Section 5{A)(1) of the Act of 1947, Entire investigation conductsd by the Poiice Inspector beiow the rank of Deputy Superintendent of Poiice is i!!egal. !t is further argued that the prosecution has not proved the motive of the appellant and six currency notes of 10 denomination said to be given by the complainant were not recoversd from his possession. Trap has been conducted after office hours and t'nat time the accused/appeliant was not discharging his officia! duty. Rin Pustika was required to be prepared by he Naib Tehsildar who is competent to provide the sarne and not by the cls>'k. Therefore. the accused/aDDeliant cannot be said to have misused his official position. Lastly he argued that the accused/appellant is facsng tr'a! since 1938 and after a lapse of 20 years for aSlegedly taking the bribe of Rs. 60./-, no purpose wiii be served in sending hirn to jai!. Reliance has been placed on behaif of the accused.'appellant on the decision of Supreme Court in th.e rnatter of State of Almer (Now Raisthan) V. Shiviilal in v/hich it has been he!d by the Apex Court that a government teacher taking money for procuring job in Rai'ways is not a misconduct in t'ne discharge of his duty. Further reiiance is placed on the decision of the Apex Court In the matter of Stats of Goa V. Babu Thomas ' in which it is held that sanction accorded by fhe officer not competent to accord sanction. Reiiance is placed on the decision of the Apex Court in the inatter of State V; Narasimhacharv 's in which it has been held thst sanction authenticated by Secretary to State Government in the name of governor is a public document and can be proved in terms of sections 76 to 78 of the Evidence Act. it is further heid that the alleaed dsmand of bribe after signature on the documsnt by the final authority for Vi/hich demand is made creates suspicion a'oout the demand of bribe. Further rel.'ance is placed on the decision of the Apex Court 1 AIR 1959 SC 847 2 2C05 Cri.L.J. 4379 '2QQ6Cri.L.J.518 6— in the matter of State. inspector of Pollce, VisakhaDatnam v. Surva Sankaram Karri in which it has been held that Investlgation authorized by Superintendent of Poiice has to be in wriSing. Issuance of an orai direction is not contemplated under the Act and Investigation by such officer is not fair, and it is illegal. Yet reiiance is piacsd on the decision of the A.pex Court in the matter of V._VenkataSubbarao V. State represented bv instsector of Police.A.P. in which it has been he!d that presumption under section 20 of the Act of 1988 cannot be raised in the absence.of any proof of demand of bribe. !n the absence of demand of bribe and recover/ of money.from the house of the applicant cast doubt upon the story of the prosecution." 10. On the other hand the impugned judgment is supported on behaff of the respondent. 11. This is a case of criminal misconduct of demand of il!egai gratification other than lega! remuneratior! as a motivs or re'ward by the public seroant by abusing his officia! positlon and in such cases the prosecution is required to establish the following essential ingredients: accused was a public ser/ant at the time of cornmisslon of offence; accused has misused or abused his officiai posltion; accused demanded 'ISega' grafification other than iegal remuneration as motive or reward; accused accepted or received such gratification; offence is investigated by a competent authority under section 5 (a) of the Act of 1947 or section 17 of the Act of1988; Va!id sanction was accorded by the Centrai Government or the State government or the authority competent to remove such public officer from his office after subjective satisfaction. (i) ('") (iii) ("/) (V) (vi) 4 2006 Cri.LJ. 4598 ' ao"5) 13 scc 305 7— ^^ 12. In order to establish the contention ofthe parties, ! have examinsd the materiai available on record inciuding the oral as weli as documentary' evidence adduced by the prosecution. 13. It is not disputed that at the time of incident i.e. on 15.7.1386 and 16.7.1986 the appeilant was posted as Clerk in Tehsil Office, Navagaon. According to the case of the prosecution complainant Chandan Das was In need of Rin Pustika, therefore, he contacted the appellant for the same. On being contacted, appeliant demanded iliegal gratification from the complainant for issuance of Rin Pustika. Trap party was constituted, complainant along with trap party went to Tehsil office on 16.7.1986 vi/here appellant vi?as not present and then they went to the house of the appeljant. On perusal of the materiai collected by the prosecution it is reveaied that the appeilant who was a publte sen/ant at the time of commission of offence was in his house and the alleged demand and acceptance of iilegal gratffication for preparation and supply of the Rin Pustika by him or his office or the officiai authority, was made in his house itself. 14. For the demand and acceptance of iliegai gratjfication by a pubiic sen/ant by abusing his official position, it is not necessary that such demand and acceptance should be in the office or during office hours. Prosecution is required to establish the fact that it was in connection with the officiai work and the public sen/ant has misused or abused his officiai position. In the matter of State of Ajmer v. Shivajilal (supra), the accused was not authorized to procure a job for a person in raiiways, running shed therefors, he has not committed misconduct in discharge of his duty. 15. For reconsideratlon of the case of State of Ajmsr (supra), a iarger bench consisting of five judges was constituted and whiie dealing with crimina] misconduct by public sen/ant in the matter of Dhanneshwar Narain Saxena V. Deihi Administration ° it has been held that it is not necessary to constitute the offence under ciause (d) of Section 5 of the Act that pubiic servant must do something in connection with his own duty and thereby obtain any vaiuable thing or pecuniaiy advantage. It is equally wrong to say that if a public sen/ant were to take money from a third person, by corrupt or iliegai means or otherwise abuslng his ofriciai position, in order to corrupt some other pubiic servant, without there being any question of his misconducting himseif in the discharge of his ov/n duty, he has not committed an offence under S. 5 (1) (d). it is aiso erroneous to hoid that the essence of an offence under S. 5 (2) read with S. 5(1) (d) js thatthe public sewant shouid do something in the discharge of his ovi/n duty and thereby obtain a valuable thing or pecuniary advantage. It is necessary that an accused person under Ci. (d) of S. 5(1) of the Pfeventson of Corruption Act while misconducting himself, should have done in the discharge of duty and thereby obtain any valuable thing or pecuniary advantage. If a public sen/ant takes money from third pariy by corrupt or iilegal means or otherwise abusing his off'iciai position, in order to corrupt some other public sen/ant he comrnits offence under S. 5 (1)(d) read -with 5(2) of the Prevention of Corruption Act. In the matter of Datoat Sjngh and another v. State of Raisthan ' it has been heid by the Apex Court that the acts complained of need not be in discharge of officialduties. 16 in the instant case the appellant was posted as a clerk in Tehsi. Offlce under the control of Tehsiidar. It was aiso the duty' of Tehsiidar to ensure issuance of Rin Pustika to the farmers. The purpose for which the il!egai gratification was demanded is not so remote with the duty of the appeilant. Even if it is so, thsn to constitute crimina! misconduct under ciause (d) of Section 5 of the Act of 1947, the oniy thing necessary' is that v.'hether pubiic SAiRSC1962 195 'AIR1969SC17 -^ — servant abused his official position or not. The law relating to misconduct and misuse of official position has been vi/ell explained by the Apex Court in the case of Dhaneshwar Narain Saxena (supra). 17. The sscond question for consideration Is whether the investigation conducted by the Police Officer below the rank of Dy. S.P. is iliegal. Placing reiiance in the matter of V. Venkata Subbarao (supra) It is submitted on behalf of the appellant that the entire investigation has beenconducted by the Inspector of Police B.D. Dhananjay who was below the rank of Dy. S.P. and he was not authorised by the State Governmenl under section 5 (1) (A) of the Actof1947. 18. The third point raised by the appellant in this appeai is the competency of the officer to investigate the offence. Hsre in this cas®the offence against the appellant was investigated &y the Poiice Inspector B.D. Dhananjay (PW- 6). He has stated in his statement that he was directed by the Superintendent of Police to investigate the matter and he has fited the document Ex. P-2 which shows that he was authorized by the Superintendent of Police to invesiigate the offence against the appeiiant punishable under section 5 of the Act of 1947. Section 5-A of the Act of 1947 envisages thai Dy. Superintendentof Police or the poiice officer not beiow the rank of an Inspector of Police authorized by the State Government, is competent to investigate the offence. Section 5-Aof the Act of 1947 reads as under: "5-A. Snvestigat'mn mto Cases under this Act :- (1) Notwifhstanding anything contain.ed irs the Code of Ciiininai ProceduiB, 1898 (5 of 1898), no potice ofRcer belcw the rank: (a) in the case of the Delhi Speci'al Police Establishment, of an Snspector of Police; (b) in the presidency tow/ns of Calcutta and Madras, of an Assistant Commissioner of Police : (c) in the presidency town of Bombay, ofa Superintsnctent of Police; and 7o (d) elsewhere, ofa Deputy Superintendent of Poiice, shal! investigate any oftence punishatsle uncter Section 161. Section 165 or Section 165-A of the Indian Penal Cocte (45 of 186Q)or under Section 5 of this Act without the order of a Presidency Magistrate or a Magistrate or the First Class, as the case may be, or make any arrest therefore witiTouta warrant; Provided that if a poiice Offfcer not beiow the rank of an inspector ofPoiice is authorised by the State Government in this behalf by general or special order, he may also snvestigate any such offence without the order of a Pres'idency Magistrate or a Magistrate of the First Ciass, as the case may be or make arrest therefore withiout a warrant; Prow'ded further thaf an offence referred to in ciauae (e) of Sub- section (1) of Section 5 shail not be investigated without the order of a solice officer not below the rank of a Suoerintencknt of Poiice. (2) Sffrom information received or otheiwise, a police oSficer has reason to suspact the commission ofan offence vi/hich he is empcwered to investigate under sub-section (1) and considers that for the purpose of investigation or inquiry into such offsnce, it is necessary to inspect any bankers' books, t'nen noMithstanding anything contained in any law for the time besng in force, he may inspect bankers' books 'sn so far as they reSate to the accounts of the person, suspected to have committed that offence or of any other person suspected to be holding money on behalfofsuch person, and take orcause tobe taken certifiecj coples of the refevant entrias therefrom, and the bank concsrned sha!! be bound fo assist the police officer in the exerdse of hss powers under this sub-section : Provided that no po'vvw under fhis sub-section in relation to the , accounts of any person shait be exercjsed by a police officer 'oelow the rank of a Superintendent of Police, unless 'ne is specialiy authorissd in ttiis behaif by a Poiice OSficer of or above the rank of a Supenntendent ofPolice." 18. tnjhe case of V. VenKata Subbarao V. State represented by insptsctor of Police, A.P (supra) investigation was conducted by the officer not authorised under section 17 of the Act of 1988 (identicai provisions like section 5-A of the Act of 1947). The investigating officer has stated that he was authorised by the Superintendent of Poiice but he faiied to produce any such authorizanon, and the manner in which the investigation was conducted was condemnable and raised doubt about his bona fides. He has not examined important witnesses and not taken into consideration the documentary evidenca. After taking into consideration the factum of conciemnabte investigation and absence of the document pertaining to authorization, the Apex Court has heid that serious prejudice has been caused to the accused/appellant. Therefore, investigation was iiiega!. 19. In the matter of State of Andhra Pradesh v. P.V. Naravana 8 in which whsie deaiing with the provisions of Section 5 (1) of ths Act of 1947 it has been heid by the Apex Court that in case of iiiegai investigation the court is required to see whether it has resulted in prejudice to the accused. in the matter of State of Chhattisgarh V. Harmahendra Sinflh Gandhi (Criminai Appeal No. 843 of 2001 decided on 21.9.2005L it has been held by the Apex Court that a defect or illegaiity in investigation, however serious, has no direct bearing on the competence or the procedure reiating to cognizance or trial. Whiie dealing with the provisions of Section 5-A of the Act of 1947 in the matter of H.N. Rishbud and another V. State of Deihi in which it has been held by the Apex Court that investigation by unauthorized person does not by itseif is rendered iiiegal uniess serious prejudice caused to the accused or party is shown and it does not affect the competence or jurisdiction of t'ne Court. Relying on the decision in the matter of H.N. Rishbud (supra) it has been held by the Apex Court In the matter of Munnaial (In ail appeaisLv. State of Uttar Pradesh (in all appeaisi that Investigation m violation of the provision is iiiega!. Triai is however not vitiated in absence of miscarriage of 81971(1)SCC483 ''AIR1955SC196 '•°AIR1964SC28 2-- justice. 1 do not nnd force in the contention of the iearned counsel for the appellant. 20. ln the instant case the accused/appeilant has not taken any such defence or objection at the time of trial or at the stage of appeal. Moreover, B.D. Dhananjay (PW-6) has specificaiiy stated that he was directed by the Superintendent of Police to investigate the matter and accordingiy, after receiving the complalnt, he conducted preliminary inquiry and arter satisfying himseif proceeded for trap and undertook the investigation of the offence. No irreguiarity in the investigation has been shown by the defence which renders it unfair, condemnabie or otherwise iiiegal. 21. In the light of aforesaid iegal position, the defect or iiiegaiity of investigation, if any, does not affect the competency of the trial unless it results in serious prejudice to the accused. 22. According of sanction Is an officiat act of the authority- v/ho accords sanction and the Court may presume the fact that judicial and official acts have been regulariy performed in terms of clause (e) of Section 114 of the Evidence Act. Sanction order is a oubiic document within the meanin of Section 74 of the Evidence Act and it may be proved on its production. This should be done in two ways; (i) by producing the original sanction vvhich itseif contains the facts constituting the offence and the grounds of satisfaction and (ii) by adducing evidence aliunde to show the racts piaced before the Sanctioning Authority and the satisfaction arrived at by it. In the matter of State of Goa (supra) it is held that the sanction accorded by the authority not competent to accord it, is no sanction. In the matter of State V. K. Narasimhachary (supra) it has been held that sanction order is a pubiic document ynder section 74 and it cannot be asked to be proved as per S. 47 of the Evidence Act and authenticationof the signature on the sanction order is sufficient to prove the same. ]n the matter of IVSohd. Sabat Aahmed v. State •12- of Andhra Pradesh in which it has been held by the Apex