IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 337 of 2001 Date of decision: 09.07.2008 State of H.P. ... Appellant Versus Sunil Dutt … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Ms. Shubh Mahajan, Deputy Advocate General. For the respondent: Mr. Bimal Gupta with Mr. Karan Singh Kanwar, Advocates. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. against the judgment of the Court of learned Special Judge, Sirmaur District at Nahan, dated 19.12.2000,vide which the respondent was acquitted of the charge framed against him under Section 13(2) of the Prevention of Corruption Act. Briefly stated the facts of the case are that at the relevant time respondent was posted as Junior Engineer, H.P.S.E.B. at Jamta in 1997 and was dealing with the electricity matters of the area. One Roop Singh was running a flour mill (Chakki) in village Dhagera within the jurisdiction of respondent. The electric meter of the Chakki stopped 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 working in July/August, 1997. An application was filed by Roop Singh in September, 1997 for replacement of the meter. It was also replaced on 5.12.1997. However, it was alleged that respondent has demanded Rs.300/- from said Roop Singh as illegal gratification at the time of replacement of the meter, which was not paid to the respondent. Thereafter, it was alleged that on different dates including on 17.12.1997, the respondent demanded a sum of Rs.800/- as illegal gratification lest he will have to pay the arrears of electric consumption to a sum of Rs.1300/- in full. The said Roop Singh told his son Joginder Singh about the demand and he visited the respondent who stated that Rs.800/- will have to be paid and Joginder Singh promised to pay a sum of Rs.600/- on 17.12.1997. It is further case of the prosecution that money was not paid but the said Joginder Singh contacted Vigilance Department who registered the case. Joginder Singh also produced four currency notes of hundred rupee denomination and four currency notes of fifty rupees denomination to Inspector Sant Ram. Notes were treated with phenolphthalein powder and Joginder Singh was told the manner in which he should hand over the treated currency notes to the respondent on demand. Demonstration was given to him as to how hand wash will be taken which will become pinkish. A shadow witness Prithi Singh was also sent alongwith PW-1 Joginder Singh when the money was paid to the respondent. The said Joginder Singh went to the office of respondent who asked him to wait. After he came out of his office, Joginder Singh and Prithvi Singh followed him on way. The amount was paid to the respondent and thereafter, the police party 3 apprehended the respondent who recovered the notes from his pocket and his hand wash was taken and the case was registered. On completion of the investigation and after obtaining the sanction from the Sanctioning Authority, the challan was filed before the learned trial Court who tried the respondent leading to his acquittal. I have heard the learned counsel for the parties and have gone through the record. The first point raised by the learned Deputy Advocate General was that there was valid sanction accorded in favour of the respondent for his prosecution and, therefore, the findings of the learned trial Court that there was no valid sanction are not based upon correct appreciation of evidence and law and as such, those findings are liable to be reversed. In coming to its conclusion that the sanction in question was not valid, the learned trial Court had given two reasons to hold so. Firstly, that the facts constituting the offence were not given in the sanction order and secondly the date when the sanction was accorded by the Chief Engineer is not mentioned in the sanction order. The learned trial Court had relied upon the decision of this Court in State of Himachal Pradesh Vs. Tej Ram, reported in 1990(3) Recent Criminal Reports 283. It is the same as State of Himachal Pradesh Vs. Tej Ram, 1989(2) Shimla Law Cases 9. A perusal of this decision shows that the learned Single Judge of this Court had observed that the sanction order does not indicate the precise date of the month of December, 1982 when the Sanctioning Authority signed it. Reliance was also placed upon the decision of the Apex Court in the said 4 judgment as well by the learned trial Court in Major Som Nath Vs. Union of India and another, AIR 1971 Supreme Court 1910. A perusal of this decision shows that it was observed by the Apex Court that no evidence has been led either primary or secondary to prove as to what was the contents of note mentioned in Ext. P-16 which was placed before the Sanctioning Authority. The note referred to above was the only primary evidence. A perusal of this judgment shows that either the sanction order should specify the facts or some evidence should be led by the prosecution to prove as to what were the contents of the consolidated report of the investigation report to which reference has been made by the Sanctioning Officer. Coming to the facts of the case in the light of two decisions, the sanction order has been proved in evidence as Ext.PH from the statement of PW-8 R.C. Gupta, Chief Engineer. The relevant part of the sanction order reads as under: “Whereas it is prima-facie disclosed that Er. Sunil Dutt Kohal, Junior Engineer(Elect.) while working in Elect. Division, HPSEB Nahan abused his official position as public servant by entering into a criminal conspiracy to accept bribe from Sh. Joginder Singh amounting to Rs.600/- (Rs. Six hundred) only.” It is, therefore, clear that the facts constituting offence have not been mentioned in the order and the next para simply shows that Sanctioning Officer had mentioned that after careful examining the material before him in regard to the allegations and circumstances of the case, he granted the sanction to prosecute the 5 respondent. I am unable to understand as to how the world criminal conspiracy was used that the respondent had entered into a criminal conspiracy when there are no allegations that any other person was also a party to this conspiracy to accept the bribe money. There is no date mentioned by the Chief Engineer PW-8 R.C. Gupta when he accorded the sanction and the date 12.11.1999 mentioned is in the hand of the official who may have drafted this sanction order but the signatures of the Chief Enineer is with different pen and no date has been mentioned. Thus, the sanction order does not disclose the facts of the case. Therefore, it is clear that the facts were not proved to have been produced before the sanctioning authority. Coming to the evidence, if any, produced by the prosecution that complete record was produced before him, PW-8 R.C. Gupta has simply stated that after going through the investigation record and applying my mind and satisfying himself for the prosecution of the accused in this case, he issued the sanction order. No witness has been examined to show as to which of the record was produced before the Sanctioning Authority before he applied his mind. From the above discussion, it is clear that there is no evidence led by the prosecution to show that all the facts were placed before the Sanctioning Authority before he granted the sanction and, therefore, applying above two decisions, the learned trial Court had rightly come to the conclusion that the sanction order is invalid one. Coming to the facts of the case, it is in evidence that apart from PW-1 Joginder Singh, the raiding party had included one shadow witness, namely, PW-2 Prithvi Singh. However, when these 6 witnesses were examined, PW-1 Joginder Singh has stated that he went to the office of respondent who asked him to wait for sometime and followed him when he left the office. Only independent witness who was associated, namely, PW-2 Prithvi Singh has come up with different version that directly he was asked to follow Joginder Singh to the bazaar and when the money is offered he was asked to signal. He does not state that he went to the office of respondent alongwith PW-1 and the respondent asked them to wait and when he went towards bazaar, they followed him. He has come up with another version that they directly went to bazaar where the accused met them. He stated that Joginder Singh gave signal by placing his hand on the head and the police party came and caught respondent from both the arms. He has clearly stated that treated currency were lying on the floor adjacent to the shop of Janta Boot House and so many people had gathered there. He nowhere stated that the money was paid by PW-1 Joginder Singh and was kept by the respondent in his pocket and after the police party apprehended him, these were recovered from his pocket. His statement is very clear that no notes were given in his presence or were taken by the respondent and these were lying on the floor in front of the shop of Janta Boot House in the bazaar. Therefore, he has come up with different version and has not supported the statement of PW-1 in regard to the money having been paid by him to respondent, kept by the respondent in his pocket and the subsequent recovery. The learned trial Court had also observed keeping in view the evidence that the possibility cannot be ruled out that PW-1 Joginder Singh may have shaken hands with the respondent after touching the treated notes. 7 It is also in the evidence of PW-9 Roop Singh that he had not made any complaint to any of the authorities of the department about the respondent demanding Rs.300/-. However, he has disclosed this fact to Jagat Singh, Member Panchayat when the money was earlier demanded by the respondent who has not been examined to prove that any demand was made by the respondent. A perusal of the evidence led by the prosecution shows that no witness has further stated apart from the complainant and his son that the respondent had demanded the money at any time from the complainant or his son. Thus, there is no independent evidence to prove that any demand was made by the accused. Moreover, the learned trial Court had also referred to contradictions that an application was submitted by the complainant Ext. P-10 on 1.9.1997 and there was no question of any demand having been made in the months of July/August, 1997 as stated by the complainant. A plea has also been raised during the course of arguments that the Junior Engineer was not competent to hold that no payment is to be made for arrears for which reference has been made by the learned trial Court to the statements of the witnesses of the department examined, namely, PW-3 Smt. Salochna and PW-5 V.K. Attri, XEN of the department. Thus this fact stands established that even if the respondent had demanded the money to settle the account, he was not competent to settle the account and in case any money had been accepted by him, the complainant would have been after him as to how he had taken the money when he was not competent to clear the arrears. The demand could have been raised by the respondent, if 8 any, for getting the arrears cleared and in case he was not competent or had no right to waive of from the superior officers, he could not have demanded the money and as such, this point also goes in favour of the accused. On a detailed examination of the prosecution evidence, it is clear that there are various contradictions and infirmities in the statements of the prosecution witnesses and there is no independent evidence to prove the demand made by the respondent on different dates as well as there is no independent evidence on record that any money was accepted by the respondent which was ultimately recovered from his possession. The solitary statement of PW-1 Joginder Singh in regard to the demand of the money and subsequent recovery cannot be said to be sufficient to prove the case of the prosecution in the absence of independent corroboration. On above examination of the record of the case and the judgment recorded by the learned trial Court, it is clear that findings recorded by the learned trial Court cannot be said to be perverse calling for an interference by this Court and as such, there is no merit in the appeal filed by the State of H.P. and the same is dismissed accordingly. The bail bonds furnished by the respondent stands discharged forthwith. ( V.K. Ahuja ) July 09, 2008 Judge (BSS) 9