w £7 h; IN THE KIGH COURT 03’ MADmIA PEsH AT JAaALPUR. 5 i [ ‘ 1 _ CRmmAL APPEAL ne.Q°?$ 9F a9. §m§g $5,?mda (twig-g5 1': ‘ Appellaqtg. 1. Lalmani Singh'son 0f late Ramlakhan $ingh agea about 5% years, occupation of Assistant Engineer: {irrigation Department) / resident of 614, Bimlalaya. Sunéer wager. e 1 Raimlro 2. mAaand Reééy son of P.P.Reddy. aged 35 years} Sub-Engineer (IrrigaEion Departmeat) resideat of 9/4, Irrigation Colony, Geédam nastar. // Ramesh chand son of Radhacharan Das aged " , 1' 3a wags/This keeper Irrigatioa Departmenkmg resident of Baremkela District Raigarh. /‘ _ / -VQtSu3-' Resynaeng.‘ The Stato o£ Maahya Praaesh‘ through the Folice Statioa sariya District Raigarh." camnm. Awrsm. mm: smcmxou 374 2) (a) or THE com: at , my CRIMINAL PROCEDURE o" (a / ?3k HIGH COURT OF CHHATTIsGARH AT BILASPU? > Cr. Appeal No.425/1989 Lalmani Singh & fwo o‘l’hers Vs. Smfe of Madhya Pmdesh (now Sfafe of Chha‘rfisgarh) I ’Pos+ for-Orders : 21¢ 07.2006 Sdl- Dilip Raosaheb Deshmukh Judge a I: HIGH COURT OF CHHATTISGARH AT BELA$PUR a Qafare: Hon’we $hri Jus?ice Dilip Raesahab Deshréukh Criminai Agbeai Nc.425/1989 Laimani Singh & Two whers Vs. u ~ S‘krfe of Madhycx émdesh (now S'm‘re of Chha‘rfisgarh) Shri Kishore Bhaduri, !eamed Counse‘ for- The appeihm’ No.1. Shri R.K.C.Tiwari, §earned Senior- Counsei wifh 5hr} Avinush K. Mishm; for fhe appeiiarnis No.2 & 3. Shri MRS. Bha‘mL, Pane! Lawyer for The 5+m‘e. 3' U D 6 M E N T (beiivered on This iwkd‘ay of July 200$) This appeal 55 direcfed againsf The judgmem‘ oa'l'ed 20m Aprii 1989 delivered by Shri R. S. Rusia in Sessions Case No. $9/86 whereby 'Ehe appeilanfs were convicfad unoer 5ec1'ion 6 of fhe MP. Vinirdishf Bhrash‘i' Aacharan Nivamn Adhiniyam 1982 (hereinaffer referred 1'0 as ”me Adhiniyam‘) and under Secfion 467 1P.C. and; serrfenced “ro rigorous imprisonmenf for one year for each. offence. 9 Sen’rences were ordered To run concurren‘rly. o 2. I1- i$ no? dispufed rho? in The year 1983 in Dis‘rricf Raigcnrh, irrigofion Sub-Division, Boramkeb, consi’rucfion of Kinkomani camk was in progress under fhe relief work. A? ‘rhe reievan‘r fime, appeiiom‘r Lairnoni Singi‘i wos fhe’ $Erb—Divisional Officer, agpeiianf PfuReddi was fhe 5ub—Engineer and appeiianf Ramesh Chandra Vishnov was The Timekeeper in The above menfioned reiief work. If is also no? dispui‘ed Thaf as par musk!" roii Ex.P.15, paymeni's for The work done were made f0 fhe Headman of 1-ha gang under-faking fhe work. 3. Briefiy S‘mfed fhe prosecufion sfor‘y is fha‘f ‘(her'e was a compia'mf regar6ing less paymenfs made “r0 'i'he kibourers from 1.1.1983 1'0 6.1.1983 in' The afaresaid reiief work. 5hri Pmbha‘? Parasar, Addii‘icmcd Colkecfer, Eaigar‘h P.W.18 enqmred En‘ro The so‘zmlain? and found fhé'l' iess wages were paid f0 The inbourers and submH-fed enquiry repor‘r Ex.P.95 men?ionirig “rha'? be-i'ween The periw 1.1.1983 fa 6.1.83 labourers Baimm (P.W.4}, Mo‘rilai (P.W.5), Bashmbh and Lambodar; (P.W.8) had received iess paymenfs. If wa5 aiso menfioned ‘ihai' in ihe musier' mil, fhe name of Ramadhar a chiid aged 6 year-s, who was The son of Sai‘na (Rift/.6), was faiseiy mem’ioned ahhough he had no? worked. A repori’ was sen? by The Coiiec‘far 1’0 The Pciice Sfa’rion Saria, Dish-ici' Raigar‘h vide Ex.P.96. Oh 1'he basis of This report an offence unaer Seci‘ion 6(A) éi (8): of fhe Adhiniyam was regisfer‘ed and invesi‘iga‘l'ion was conducfed. Musfer Roli Ex.P.1§ and reievam' paper's were seized. On examinaiion by ihe Addifionai STaTe Examiner of QuesTioned DocumenTs, iT was opined vide Ex.P.‘5i' Thai The musTer- roil Ex.P.15 had been prepared by The appeilcm‘i‘s. SancTion To prosecuTe The appeiianTs undei‘ ”Section 37 of The Adhiniyam was soughT from The STaTe GovernmenT vide Ex.P.5. AfTer compieTion of invesTiga-Tion, The appeiianTs were prosecuTea‘. u 4. The appeiianTs abjured The guiiT, pleaded innocence and led no evidence in defence._ The prosecuTion examined as many as; 2O ‘ wiTnesses. Reiying upon The evidence ied by The prosecuTion, The iearned Triai Judge heid ThaT iT was noT esTabiished by The prosecuTion ThaT The appellanTs had paid iess wages, as per musTer roii ieie e i... i ‘ExPi‘i #0 ’rhe bbour'ers. However, The Ieamed 'fr-id Judge heid fha‘r if was es‘mbiishzd Tha‘i‘ Ramadhar' P.W.7', a chiid, had never worked in The relief wgrk arid ye? his name found men‘rian in Thé mus’rar roii 3w’hich dear‘y proved we? ‘rhe mus’rer‘ roil Ex.P.15 was a forgeci I document I? o§so he‘é fine? requisi‘re sonc‘i'im under Sedion 37 of ‘me Adhiniyom as oiso umier Secfion 197 Cr.P.C. had been ob‘mined by w‘he prosecufion. On fhese premises, fhe learned Trial Cour? convic‘l'ed “and senfenced The appélkam‘s, as shown in paragraph - i. 5 5hri P.K.C.Tiwari, iearned Senior Counsei and 5hri Kishore Bhaduri, learned counsei for The appeilan‘l's argued iha'? The convic‘l'ion of 1‘rhe appeiian‘is was bad in law since There was a clear vioiaiion of . $ec‘i‘ion 39 of fhe Adhiniyam inasmuch as The requisi‘i'e permission from an aufhorify no? below The rank of The Commissioner of a Division for invesfigafing info The offence aileged was no-‘r sought If was also urged fhaf ‘rhe sancfion fo prosecui’e fhe apaellanfs under $ecfion 37 of fhe Adhiniyam was nei'iher duly aufhenficafed nor sealed and, 'i'herefore, required formal proof. No evidence was led by The prosecuTion To show ThaT The sancfion EX..P5 had been signed by The compefen‘i' au‘i'horify. On fhese oremisesi iT was urged fhaT The appellanTs were enTiTled To be acquiTTed. 1T was also urged ThaT The facT ThaT The paymenTs under The relief woefk were Task based and were made To The Headman of The Gangman working in The relief work was admiTTea‘ by B.P.Kashyap P.W.3 andwas also borne ouT from The musTer roll Ex.P.15. IT, Therefore, could noT be ruled ouT ThaT The name of Ramadhag son of SaTna was recorded as per names given by The Headman of The Gang. IT was furTher urged ThaT The prosecuTion had suppressed The very genesis of The enTire invesTigaTion by noT filing The complainT, if any, relaTing To less paymenT To labourers in ‘irhe reiie‘f work which was suggesfive of fhe facT Thm' fhe appeiian‘ts were faisely implica‘i‘ed. On ‘fhe ofher handi 5hri MRS. Bh‘c‘t‘ia whHe arguing in supper? of The impugned judgmem' con'i'ended ‘i'ha'l' fhe fac‘r fhai‘ The signa’rures of The officer signing The sancfion order Ex.P.5 haé no'r been formaiiy proved was merely a Technical defecf which under Seciion 38 of The Adhiniyam did no'i' vi‘i'ia're‘ fhe ’rrial. Regarding 1‘he viola‘i‘ion of SecTion 39 of The Adhiniyom, i'? was submiffed 'i'hcn‘ insjeod of fhe Commissioner, The Coiiecfor had iodged fhe firs? informafion repor'i' wi‘rh The poiice. \ a 6. Having heard fhe rivai confenfions, I have perused The record. The confen'i'ion of The leorned counsei for The appellan'i's ThoT The very genesis of The iniTiaTion of enquiry and invesTigoTion Le. The comoiainT by The iobourers was suppressed by The prosecuTion has merit No such complainT was filed aiThough Shri RN. Parasar admiTTed in paragraph 1 ThaT he had received The compiainT Through The Commissioner, $ilaspur Division. Non-filing of such a maTeriai documenf which formed The very genesis for enquiry and invesTigaTion jusTifies an adverse inference being drawn againsT The prosecuTion. ‘ 9 7. So far as The charge of paymenT of less wages To The labourers in The relief work during aforesaid period is concerned, The learned Trial Judge has righTly held in paragraph 6 ThaT The same was noT esTablished by The prosecuTion. The documenTs Ex.P.3 and EX.P.10 filed by The prosecuTion clearly show ThaT The paymenTs were Task based and were‘noT To=.b.e paid on fixed raTe. In This regard, no evidence was led by The prosecuTion To show ThaT There were any irregulariTies relaTing To paymenT of wages on Task basis. The finding of fhe iear‘ned ‘h‘iai Judge fha'l' The prosecufion has faiied "ro esmbi§sh Wm? less paym'en‘rs were made 1'0 fhe inbour‘ers Thus hoids grwnd. 8. So far as menfioning fhe name of Ramadhczr, son of Same, in The mus-fer roli Ex.P.15 Es concerned, Ramadhar P.W.7 apparenfly a child sfafed i'ha‘l' he never worked in The reiief wcrk and did no? know fhe appelkanfs. Su’ma P.W.6, his fa'l'her, sm‘red he had worked in +he reiief work and had recefved wages. Musfer roii Ex.P.15 shows ‘i’ha? paymenf was made To The Headman of ‘l'he Gang Le. Si'faram. However, 1his maferiai wi‘rness was nei‘rher examined nor cH'ed by 'I'he prosecu‘rion. Sifaram, The Headman wouid alone be able To Telf as To in whaT manner The names of The labourers came To be recorded in The musTer roii. The possibiiiTy ThaT a bona Tide misTake and an uninTenTionai error had occurred due To misrepresenTaTion of names by The labourers could Therefore noT be ruled ouT. More so because iT is noT a case where such errors have occurred aT a large scale. IT is The soliTary insTance ThaT wages are shown To have been paid To Ramadhar, son of SaTna. Age of The person i.e. Ramodhar, son of SaTna To whom wages were disbursed is also noT shown in The musTer " roll. Order Ex.P.5 also does noT show ThaT sancTion for prosecuTion for non-paymenT of wages To any labourer, much Lesss Ramadhar, had been accorded. . 9. IT is Thus perTinenT To noTe ThaT The sancTion order Ex.P.5 does noT reveal a case of non—paymenT of wages. IT clearly shows a case of less paymenT of wagesii’vhich charge The learned Trial Judge has righTly held To be noT esTablished by The prosecuTion. ‘In view of The above lacunae in The sancTion for prosecuTion vide Ex.P.5, The charge K.“c N reinfmg To non-paymen‘i' of wages +0 Ramadhar, son of Sama (P.W.6) can a¥so m? i’o be held To be proved. Coming fa The argtimen'rs reia‘l’ing To ?he absence of formal proof of smcfion for prosecufEon of fhe appeilanfs for offence under fhe Adhiniyom, i'r would be usefui f0 quofe Secfion 37 and 38 of The Adhiniyam which read as under: “37. Woof of sancfion.- The sancfion for prosecufion of a governmenf servaqf for an offence under This Acf, issued “under Secfion 197 of The Code of Criminai Procedure, 19?3 (No.2 of 1974). and purporfing 1'0 be duiy nufhenfica’red and seaied, shod! be odmissibie in evidence wifhouf formoi proof: Provid‘ed fho‘r, where fhe focfs cons‘riiru‘ring fhe offence do nofoppeor on The face of fhe sancfion, The Cour? may cal! ’the officer aufhenfica'ring fhe sancfion f0 give evidence before if. 38. Cumbiiify fo fechnicoi defec'fs in fhe form of sonofion.— Any fechnicoi defecf in fhe formai 'sonofion gronfed under secfion 19? of fhe Code of Criminal Procedure, 1973 fNoZ of 1974) for fhe prosecufion of o person’employed in connecfion wifh fhe affairs of fhe‘Sfafe shall nof vifiofe fhe friai, uniess if is proved Tho? i1- coused subsmnfiul prejudice fo fhe accused." 1i). On perusal of Ex.P.5 dafed 1.10.1985 if appears fha‘i' if was ‘ neifher duly authenfica‘red nor sealed.’ Therefore, under Secfion 37 3 of fhe Adhiniyam, fhe documenf purporfing fo beia sancfion for prosecufion of a Governmenf servant for an offence under The Adhiniynm was noT admissible in evidence wiThouT formai proof. A formai proof of sancfion means fhaT iT mus? be proved by The prosecufion ThaT The officer granTing The sancTion had fhe auThoriTy (I‘fo sign The sancfion ordenand fhaT The sanc’rion order was oci‘uoliv signed by such officer. No such evidence was ied by The prosecufion. lnvesTigaTing Officer MSSandhu, S.H.O. P.S. Saria FAA/$3 did nof/, w ,\., N“i s‘mm as To who had signed fhe sanci'ian crder and in wha? capaci‘i’y. He merely s'ronfed ’rha? he obmined sancfion order- fr'om Bhopa‘i Vida EX.P.5. Thus, no 'forma'E proof, as required under Eaw, 1’0 prove a sand-ion for prosecufion was adduced by The prosecufQon. EWher The prosecu‘i'ion ough‘r f0 have coiied ‘rhe officer signing 'i‘he sancfion order Ex.P.5 in evidence or shouid have of ieas'i coiled some officer workirlg in ‘E'he Depar‘imenf who was conversani' wi‘i‘h The signdfures of “rhe Oif‘icer who had signed’ fhe sand-ion order. Unless There is evidence To show The auThoriTy of The Officer To Sign The sancTion order and oiso To show Thm‘ such officer did ocTuoiiy sign The sunoTion order, iir cannoT‘ besoid ThoT The prosecuTion had adduced formai proof of The sancTion for prosecuTion of The appeiian'i's. I om of The considered opinion ThoT iT is no'i' a mere Technical defecT under SecTion 38 of The Adhiniyom which shoii noT viTioTe The Triai. ~ . 11. The sancTion order aiso does noT show The very basis on which The oppeiionTs were soughT To be prosecuTed i.e. for making paymenT of wages To a ficTiTious person i.e. Ramadhar, son of Sa'i‘na P.W.6 and does noT show in any manner Tha‘i' paymenfs were noT made To The iabourers on Task basis. IT also does noT reveai The manner in which iT was found Tha‘l’ The paymeni‘s made To The labourers a? The raTe of Rs.6.§9 were noT Task based. The sancTion order merely menTions ThaT less paymen‘i's were made To 17 labourers aT The raTe of Rs.é.50 insTead of R5100 which charge The iearned Trial Judge has found To be noT esTablished from The evidence. Thus, if The sancTion order did noT reveal The very basis on which The prosecuTion led evidence dg’ainsT The appellanTs To prove The charges; The Triai CourT oughT To have calied The Officer auThenTicaTing The sancTion To give evidence before iT, as required under The proviso To SecTion 37 of The g. [i ~.-\ Adhiniycxm. This is a serious iacunae which has caused subsfanfia! , nreiuciice r v To f‘ne accused and fhereby vi'riafed fhe Trial. If is qThus dear thu'r non—compliance of Secfions 37 of The Adhiniyam siearly vifia‘l’es The prosecm'ion of +he appellan'i's under Secfion 6 of ‘fhe Adhiniyam and 467 of ‘rhe I.P.C. 12. I wouid now proceed f0 deal wi+h 1'he argumen‘rs reia‘ring f0 vioia‘rion of $ec+ion 39 of fhe ’Adhiniyam. I‘l’ wouid be usefui ‘m quo'i'e of secgoin 39 of fhe Adhiniyam as if sfood in fhe year 1991: “3.9. Cognizance of offences. ——- AH offences under ‘rhis Ac'i shali be cognizabie : Provided ‘Hnaf fhe Police Officer shai! no? invesiiga‘ie on offence under fhis Acf excep‘f on a direcfion of the prescribed aufhori‘ry no? below fhe rank of fi‘ie Commissioner of Division on a repor‘i‘ submi‘i'i‘ed by him f0 such au‘i'hor-ify. Provided fur'i'her Thm' 'i'he Sm‘re Governmenf may, of any ‘l'ime for fhe purpose of sa’risfying ifseif as f0 fhe proprie’l‘y of any order passed by The Commissioner of The Division as prescribed oufhori‘ry ei'l'her on i'i's own mo‘rion or on reference made by fhe prescribed aui'hori‘ry, shali cali for and examine The record of any case pending before or disposed by such aufhorify and may pass such order in reference fherefo as if fhinks fit” e H‘- Thusi a Poiice Officer, before invesi’igafing ‘i'he offence, is required fo make a repor‘r and ob‘rain direction from an aufhorify which shail no? be below fhe rank of fhe Commissioner of Division, “(o invesfigai’e an offence under The Adhiniyam. In fhe insfam‘ ease, if is noT in dispufe Tha‘r The invesjjgaTion commenced on The reporf Ex..°.96 of trhe ColiecTor. DirecTion from a prescribed auThorify no? below The rank of The Commissioner of The Division was noT soughT and a repori‘ i3. n;a J \O of enquiry was czEso no‘i’ submif'l'ed by The Poiice Officer 1'0 can Aufhorify no? beiow i'he rank of fhe Comméssioner of Division before commencing invesi'iga‘i'ion. In ‘E‘his case, fhe Coiiecfor, Rcigarh dearly ac’red wifhou‘r jurisdici‘ion in ciirecfing The 5H0. Bammkeia 1’0 inveS‘i'igm‘e info "r‘ne repom‘ EX.P,95 of fhe Addifienal Coiieci’or RKParaSar. The S.H.O. P.$. Bammkeia, af‘i‘er conducfing a preiiminar‘y enquiry ini’o ‘the firs-f informa‘iion repor‘i serif by ‘Hne Ceiiecfor, ough‘r ‘i'o haxeksough‘r a direct-ion of’ ‘rhe prescribed gufhorify n0? beiow ‘rhe rank 0f: ‘I‘he Commissioner of a Divisiori ‘i’o invesfiga'i‘e fhe affence under fh‘e Adhiniycim. No‘rhing o‘F Thai surf was done in fhis case. If fine Coilec‘ror had informed fhe Poiice Officer vide Ex.P.96i i‘i’ was incumben? on fine 5.H.O. RS. Baromkelo To have enquired in‘i‘o The reporf and 1‘0 have submiffed a reporf 1’0 an au'i'hori'ry no'i' beiow ’rhe rank of fhe Commissioner of a Division for permission To invesi’igo‘i'e inio fhe offence under fhe Adhiniyam. The ieorned 1min! Judgei on perusal of ihe documen'? Ex.P.5 purporfing To be a sancfion for prosecui‘ion, issued by fhe Modhya Pmdesh Governmen‘r heid rho? The requisi‘re sancfion as required under Sec‘l'ion 37 of *ihe Adhiniyom ané also under Sec‘i'ion 197 Cr.P.C. had been obfained for prosecui'ion of fhe appeiianfs. The iearned friol Judge compiefeiy ignored fhe mando‘rory provisions of Section 39 of The Adhiniyam‘h compliance of which was a prerequisi'i‘e for conducfing an invesfigofion info on alleged offence under fhe Adhiniyom. In fl'ie insfanf case, fhe requiremenf of Secfion 39 of fhe Adhiniyam was nof complied wifh} which vifiafes The prosecu‘i‘ion of fhe oppellanfs. ~i-\ 14. Having fhus considered The evidence ied by The prosecufion in ifs enfirefy, l om of The considered opinion ThoT fhe conviction of The appeilanfs under Secfion 6 of The Adhniyam and also under Secfion f i 10 467 of The I.P.C. and f'rse senfence awarded i'hereunder- is Habie f0 be E $e1' aside. 15: in fine result The appeal is aiiowed. ConvicTion of ‘?he appeiian‘m Lmder- 5ec‘rion 6 of The Adhniyam and aiso under SecTion 467 of Tha 1.9.6. and The senTence awarded Thereunder- is seT aside. Th /L,” appellanTs are acquiTTed. Sdl- ; Diup Raosaheb Deshmukh . Judge ’ \ “‘ 1L4 .07200é ‘