1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 165 of 2000 Decided on December 6, 2010 ________________________________________________________________ State of H.P. …Appellant. Versus Jaswant Singh Banyal ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? No. For the appellant: Mr. R.K.Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondent: Mr. Arvind Sharma, Advocate. Justice Sanjay Karol,J. For an offence, which is alleged to have been committed on 21.12.1989, accused was put to trial. In terms of judgment dated 27.9.1999 passed by Special Judge, Una in Sessions Case No. 1 of 1997, titled as State of H.P. vs. Sjaswant Singh Banyal, accused stands acquitted of the charged offences. 2. It is the case of the prosecution, that on 21.12.1989, accused cheated the complainants. He dishonestly induced them to give him amounts varying from 20 to 35 each on the pretext that in lieu of the same accused would issue licences to them for setting up of their “Rehris”. In all, accused is alleged to have dishonestly and fraudulently misappropriated total amount of `870/-. On the basis of the 2 complaint, FIR No.156 of 1989 (Ex.PA) dated 21.12.1989 was registered with Police Station Amb, under Sections 420, 465, 471, 468 and 409 IPC and 13(2) of Prevention of Corruption Act (for short the Act). The investigation was carried out by Sh.Nardev Singh (PW.28), who was below the rank of an Inspector of Police. Investigation revealed that accused was posted as a Block Medical Officer at Amlehar, in the month of December 1989. He issued licences on receipt of excess payment to the shop keepers at Amb. With the completion of investigation, challan was presented in the Court for trial. 3. Accused was charged for having committed offences punishable under Sections 420 IPC and 13(I) (c) punishable under Section 13(2) of the Prevention of Corruption Act, to which he did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined 31 witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded. 5. The Court below acquitted the accused of the charged offence, hence the present appeal. 6. From the record, it is apparent that licences Ex.P-2, P-2/1 to Ex.P-2/28 stand issued by the accused to various persons. The trial court has come to the conclusion that payments were in fact received by the accused. There is no challenge to these findings by anyone. 7. However, we find that trial court acquitted the accused on two counts. Firstly, it held that there was violation 3 of the provisions of Prevention of Corruption Act, inasmuch as, the investigation was carried out by an officer below the rank of Dy.S.P which was in breach of Section 17 of the Act. The provisions of the statute are evidently clear. 8. In this case, investigation was carried out by an Inspector. The Apex Court in Vishakha Patnam Vs. Surya Sankaram Karri, 2006 (7) SCC 172, has held as under:- “Provisions of the 1988 Act, no doubt, like the 1947 Act seek to protect public servant from a vexatious prosecution. Section 17 provides for investigation by a person authorized in this behalf. The said provision contains a non obstante clause. It makes investigation only by police officers of the ranks specified therein to be imperative in character. The second proviso appended to Section 17 of the Act provides that an offence referred to in clause (e) of Sub-section (1) of Section 13, shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. Authorization by a Superintendent of Police in favour of an officer so as to enable him to carry out investigation in terms of Section 17 of the Act is a statutory one. The power to grant such sanction has been conferred upon the authorities not below the rank of a Superintendent of Police. The proviso uses a negative expression. It also uses the expression “shall”. Ex facie it is mandatory in character. When the authority of a person to carry out investigation is questioned on the ground that he did not fulfill the statutory requirements laid down therefor in terms of the second proviso, the burden, undoubtedly, was on the prosecution to prove the same. It has not been 4 disputed before us that the investigating officer, PW.41, did not produce any record to show that he had been so authorized. Shri K. Biswal, the Investigating Officer, while examining himself as PW.41, admitted that he had not filed any authorization letter stating.” 9. In the instant case, nothing has been shown from which it could be even inferred that investigation was carried out by an officer of the rank of Dy.S.P, as is required under Section 17 (c) of the Act. Hence, we find no error in the findings returned by the court below on this count. 10. Court also acquitted the accused on the ground that the sanction (Ex.PJ) accorded by the authorities and proved by Pawan Mankotia (PW.7) was not in accordance with law for the reason that order does not state that record was perused by the Sanctioning Authority nor has the witness deposed that the authority had applied its mind. We are afraid, reason adopted by the court below is felicitous. We have ourselves perused order dated 4.7.1995 according sanction to prosecute the respondent. It is a two page reasoned order. It is quite apparent that authority has applied its mind. Witness was also not cross-examined in the court on this point. 11. The Apex Court in Mansukh Lal Vithal Das Chauhan Vs. State of Gujarat, 1997(7) SCC 622, has held that validation of the sanction would depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been 5 considered or not by the authority. Consideration implies application of mind. However, if it shown that the Sanctioning Authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction then the order would be bad. Now in the instant case, there is nothing on record to even remotely suggest this fact. Consequently, reasoning adopted by the court below, on the second point, is erroneous and perverse and not borne out from the record. 12. However, the fact that investigation was not carried out in accordance with law. Accused is entitled to the benefit arising therefrom. Consequently, we find no ground to interfere in the present appeal. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge December 6, 2010 (Sanjay Karol) (Purohit) Judge