IHHGEICK”TRIWOFWCHHLATTTSGHHKHLATWBHMASPUW riminal Appeal No. 35 of Ku. Rampyari Ba apard i Khe APPELLANT Versus RST EPONDEN State of Mady ha Pradeh s Sd/- 'T.P. Sharma Judge K ! C 1991 Post for ronouncement of order on 8 2010; IGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 35 of 1991 Bai Khapa‘rde, Chhinta res1dent and Pollce Station Gariaband, District Raipur, APPELLANTé Rampyari daughter Khaparde, aged about 34 years, occupatmn Gariaband, RESPONDENT State of Madhya Pradesh. T xv EAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. ‘iI x (SB :Hon’ble Mr. T.P.Sharma, J.) Present:- Shri Ranbir Singh Marhas, Advocate for the appellant. Shri R.R. Sinha, P.L. for the State/respondent. JUDGEMENT (Passed on 4/08/2010) Challenge 1n the appeal 1s to the Judgment of conv1ct10n and order of sentence dated 7/1/91 passed by learned 4th Additional Sessions Judge 85 Special Judge, 4 Raipur in. Special Criminal Case No. 10/88 whereby and Where under after holding appellant guilty for demanding and accepting illegal gratification other than legal remuneration and in habit of demanding and accepting illegal gratification, convicted the appellant under Section 161 of the Indian Penal Code and under Section 5(1)(D) read with Section 5(2) of the Prevention of Corruption Act, 1957 (in short ‘the Act of 1957) and sentenced simple imprisonment for l year/simple imprisonment for 1 year and fine of Rs. 500/-, in default of ,H W‘, ‘ v “W i requ1s1t10ned ' Sodlum Carbonate were demonstrated to the trap party . Complamant D1amond Slngh produced 4 currency note of Rs. 100/— numbers -Were recorded 1n the prlmary Panchnama, same were treated w1th the Phenolphthalem payment of fme/amo'unt additional simple imprisonment for 3 months Conv1ct10n 1s 1mpugned on the ground that W1thout any 1ota, ‘ I of ev1dence that present appellant Who was pub11c servant has demandmg and acceptlng lllegal grat1f1cat1on other than legal remuneratmn by mlsusmg her post Court below has ' conv1cted and sentenced the appellant. as aforementloned and thereby commltted an 111ega11ty ‘ As per case of the prosecutlon, appellant was pubhc servant and was workmg 1n Mahlla Panchayat SamaJ Seva .zr Sangathan at Garlaband On 20/8/86 PW9 complalnant Dlamond Smgh was 1n need for reglstratwn of NavyuVak Sangathan, he contacted w1th the appellant for reg15trat10n ’ of h1s organlzatlon Appellant demanded Rs 400/ for such 'reglstratlon and spec1f1ca11y told that 1f he 1s not 1n pos1t10n ' e to pay Rs 400/ then he may go Complamant D1amond 1!, '7‘ Superlntendent of Pohce Lokayukt Orgamza’uon Vlde Ex P— ’Smgh SDO Forest and PW6 Ku Urmlla Jahanabadl were react1on of Phenolphthaleln Powder and 1 1V r \V‘ ' '12 Trap party was const1tuted Panch w1tnesses PW8 P S ' Slngh was not ready to g1ve br1be, he made a complamt to H I R: p 'VfiOWder and kept in‘the pocket of complainant: and he was d1rected that not to shake hands Wlth any person and not to ' '- touch the currency notes before g1v1ng the same to the appellant He was also d1rected to glve s1gnal after g1v1ng the ' br1be money to the appellant Pr1mary panchnama v1de Ex P—1 was prepared Trap party ‘ proceeded for spot Complamant PW9 D1amond Smgh went to the office of appellant but appellant was not present there, other offic1a1s 1nformed h1m that she had gone to her house I __ :then complainant Went to the house of the appellant where if _ she demanded br1be then complamant took out the currency notes kept by the trap party 1n h1s pocket and gave the .l ' same to appellant whlch she recelved 1n to her hands ,. H thereafter complamant gave s1gnal to the trap party Trap party entered mto the house of appellant After mtroducmg themselves, they 1nterrogated the appellant Hands of ‘- appellant were washed With the Sodlum Carbonate Solutlon, vwhlch turned Into p1nk colour Belng asked appellant told - I that she had kept money 1n her purse kept 1n Alm1rah She ’ also confessed 1n wr1t1ng v1de Ex P—14 and she produced Rs a 400/ by takmg out the same for her Alm1rah Numbers of currency notes were tallled w1th the prunary panchnama I and selzed from the appellant v1de Ex P-15 Currency notes l were also washed w1th the solutlon of Sodlum Carbonate, 'V- wh1ch turned rnto- p1nk colour; Fmal panchnama was ,ra, s ¢ u. K zl. WV ’ prepared V1de Ex P—18 Ex P—16 Organlzatmn form was > se1zed 1n V1de Ex P—17 from the appellant Her postmg order was obtamed V1de Ex P—22 Dehatt Nallsht was recorded . ' ‘v1de Ex P—23 Flrst Informat1on Report was lodged V1de Ex p P 24 Other documents were se1zed sealed solutlon was sent ' » for chemlcal exammatwn Spot map Was prepared Presence 'of Phenolphthalem Powder and Sod1um Carbonate were ‘ ‘conflrmed on the hand wash solut1on of the appellant and wash1ng solutlon of currency notes V1de Ex P—10 Mater1alw v; ' collected durlng the mvestlgatmn were sent to Sanctlonlng / . Authorlty who accorded sanctlon V1de Ex P-3 Statements of the mtnesses were recorded under Sect10n a 161 of the Code of Cnmmal Procedure, 1973 (1n short ‘the ,Code’) After compleuon of the 1nvest1gat10n charge sheet was filed before the learned 4‘11 Add1t10nal Sessmns Judge 8a Spec1a1 Judge,Ra1pur t . / Q p . ” 1 e In order to prove the gullt of the appellant/accused " prosecuuon exammed as many as 10 VVltnesses Accused H was exammed under Sectlon 313 of the Code where she I ' denied the circumstances appearmg agamst her, mnocency and false unphcatmn 1s claJmed _ Appellant has taken spec1f1c defence that from 6/8/86 work relatmg to orgamzatlon cons1st1ng of male members were j allotted to another officer DWI S KD Dadsena She was only‘dealing with the work relating to female organlzatlon. l n, Il. @ ,. u‘ ‘ p On' ‘18/8/86' she. was on tour along with DW2 Chaitibai l Jalchhatrl On the date of 1nc1dent 1 e 20/8/86 she was on ’ casual leave she had already applled for casual leave v1de ‘ Ex P 2 Wh1ch has been se1zed v1de EX P—l At the ’ume of j alleged trap, she was present 1n her house where ’complamant PW9 Dramond Smgh came, at that t1me . t >Sumant1nba1 and Nlrmala were present She had ne1ther‘ V demanded nor accepted the bnbe PW9 Dlamond Slngh l’ I. A 5 m1ght have kept the money 1n her Almlrah Her hands were ' washed but hand wash solutlon d1d not change _ Appellant has exammed defence Wltnesses DW1 S K D ‘ Dadsena DW2 Cha1t1ba1 Jalchhatn 85 DW3 N1rma1a DW1 " S KD Dadsena has deposed 1n h1s ev1dence that he was deahng w1th the cases of orgamzatwn of male member Smce . . :6/8/86 pr1or to takmg of h1s charge, appellant was ‘- t tour Wlth her and they were at Vlllage Nagabooda DW3 I N1rmala has deposed 1n h1s ev1dence that at the t1me of trap, one person came to the house of appellant He knocked the door then she opened the door, that person requested appellant that he 1s requlred to go Bhopal for reg1strat1on purpose and requested to keep Rs 400/- wh1ch he was V i havmg Appellant told h1m that she 1s gomg 1n tour and went - 1ns1de her room then the person came 1ns1de the room After 1!. vedlscharglng such duty DW2 Cha1t1ba1 Jalchhatn has ”deposed m her ewdence that on 18/8/86 appellant was 1n . r . ,. r n -. 1r w I opemng the Alm1rah and the purse of the appellant he kept, i ' I currency notes and paper 1n the purse of appellant and kept ‘.1n Alm1rah thereafter, four-five persons 1nclud1ng one )Woman came to the house of appellant VIBy adducmg‘afor‘esimd defence W1tnesses, appellant has. v V ‘ V taken defence that on the date of incident. alleged work. was ' ' allotted to one DWI S.K,.D3. Dadsena.‘ On 18/8/86; she was not present in the, offlce therefore; it'was not possible for . complalnant to contact VVlth the appellant on the date of 1nc1dent Complamant PW9 D1amond Slngh came to the z house of appellant and he hlmself has kept Rs. 400/-. 1n the l' « I purse of appellant‘and kept mthe Almirahfof appellant w1th l knowledge to Impllcate falsely appellant After affordmg an opportumty of heanng to the part1es learned 4th Addltlonal Sess1ons Judge 83 Spec1al Judge, Ra1pur has conv1cted and sentenced the appellant as aforemenuoned Shrl Ranblr Slngh Marhas, learned counsel for the appellant " .and Shr1 RR Slnha PL for the State/respondent are Iv I heard Judgment 1mpugned and record of Courts below a perused 12f ’. although on the date of 1nc1dent appellant was posted as pubhc servant but on that day, she was on leave She was V {not dlschargln'g .Qffic1al duty even she was not entrusted w1th v. r m , xx. l Learned counsel for the appellant vehemently argued that 'V I: I '[L K V A {’101‘ Y _ ‘1‘1.> ' /’ . . 13. k.. k“?w . / I the duty of such regstratlon of organlzatlon Appellant has nelther demanded nor accepted 111ega1 grat1f1cat1on other A than legal remuneratlon Complamant h1mself has thrusted ' ' Rs 400/— in the purse of appellant and kept 1n Alm1rah~of 'the appellant mthout her knowledge Appellant has not ‘ comm1tted any offence even otherw1se appellant 1s a woman, at present shehas aged about 6O years.. Agam sendmg her 1n Jall W111 not serve any purpose On the other hand learned counsel for the State/respondent ' opposed the appeal and submlts that prosecutlon has proved 1ts case beyond all shadow of doubts The ev1dence of complalnant and w1tnesses are suff1c1ent for drawmg an mference that appellant has demanded and accepted lllegal grat1f1cat1on other than legal remuneranon In order to apprec1ate the arguments advanced on behalf of ‘14.. ‘ the partles, I have exammed the ev1dence adduced on behalf J ‘ of the prosecutlon In the present case, 1n order to sustam the conv1ctlon of the ' appellant under Secnon 161 of the Indlan Penal Code and under Sectlon 5(1)(D) read W1th Sectlon 5(2) of the Act of 1957 prosecutlon has requ1red to proof the followmg 1n1t1al '15. mgredlents of‘the offence that - (i)r Appellant 1s a pub11c servant r (ii) Appellant 1s 1n hablt of demandmg and ' accepting bribe. ‘ “w ’ 1" 1 1" saii) _ (iv) aw " (vi) ’ ' possess1on of the appellant after apphcatlon of h1s mmd .1 As regard the accord of sanctlon 1s concerned prosecutmn has examlned PW2 E B Bharunde who has proved the ' .I sanctlon accorded by the then Pr1nc1pa1 Secretary, Rural V Development Department Smt N1rma1a Buch V1de Ex P 3 f Defence has cross exammed th1s w1tness 1n deta11 1n whlch >PW2 E B Bharunde has spec1f1cally deposed that Secretary ' has s1gned on the document V1de Ex P—3 The order accorded sanct1on for prosecutlon the order reveals that ‘ proved facts by the prosecutlon 1n Para-5 reveals that after careful exammatmn of the records placed before her, she ‘ . had accorded sanct10n Nothmg has suggested by defence to th1s ‘Wltness Sanct10n for prosecutmn 1s sme—quo -non for I tak1ng cogmzance of offence under the Prov1s1ons of the Act 2 of 1957 Sanctlon 1s a pubhc duty, sanct1on order ls a publlc ‘ document and 1t can be proved by producmg the or1g1nal document contamlng the detalls of the case On 20/8/86 appellant thas demanded illegal. other than Ilegal gratiflcation. of? Rs. 400/— remuneration, . ’ Appellant has misused her offlceig I The amount 6f illegal gratificatiOn was found in Sanctlon Authorlty has accord the sanctlon @ 17. While dealing with the question of proving of sanction the Apex Court in the matter of Mohd. Iqbal Ahmed v. State of Andhra Pradeshl has held that it is incumbent on thew prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied ‘that a case for sanction has been made out consisting that offence. This should be done in two'ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before“, ¢ n the Sanctioning Authority and the satisfaction arrived at by it. 18‘ matter of State of Tamil Nadu 1). Damodaran2 has held that the prosecution is required to place all relevant material before Sanctioning Authority for according sanction and Sanctioning Authority is required to accord sanction after“ applying his mind. 19. In the present case, prosecution has proved the original sanction order containing all the details of the case and the fact that Sanction Authority has considered the material placed before her and on the basis of such material, she found the case for accord of sanction thereafter, she has While dealing with the same question the Apex Court in the 1 AIR 1979 SC 677 2 AIR 1992 SC 563 10 acCorded’ sanétion. ’ sanction accorded by the Sanction Authority is a valid sanction sustainable under the law As regard the demand and acceptance of bmbe and other ‘1ngred1ents of the offence are concerned PW9 D1amond Smgh has deposed m hls ev1dence that for the purpose of . - reg1stratlon of orgamzatmn he made w1th the appellantr ‘ Appellant demanded Rs 450/ and gave reg1strat1on form Belng asked she told that she was requlred to glve ‘money persons Working at his office and to the persons' working 'at‘ Bhopal She was not ready to reglster the orgamzatlon ’ -'w1thout rece1v1ng the bmbe therefore she came to Ralpur t and made a complamt of V1g11ance Department Trap party was constltuted w1tnesses were requ1s1t1oned Reactlons of chem1cals were demonstrated. He produced 4 currency notes of Rs 100/» which were‘treated With the poWder and kept in h1s pocket Trap party proceeded for spot a PW9 Dlamond Slngh has further deposed that he went to the office of the appellant but she was not present there other officers 1nformed that she had gone to her house then . complamant went to the house of appellant where she g ~ demandmg money then he gave Rs 400/ kept 1n h1s pocket gven by the trap party whlch the appellant rece1ved He gave ’s1gna1 then trap party came m51de the house of appellant After Introduced themselves the post trap party proceedmg - ' i was ' conducted, hands of . appellant were. washed 1nto u‘ r . l l . * v ‘ >‘ r Sodlum Carbonate Solutlon, whlch turned 1nto pmk colour ' Belng asked appellant told that she has kept the currencyv I ‘ I notes 1n the Alrnlrah She took out the currency notes from the Almlrah and numbers were telllng and selzed EVIdence of complamant PW9 D1amond Smgh has been l I‘ substantlally corroborated by the ev1dence of PW6 Ku *Urm11a Jahanabad1 and PW8 P S S1ngh SDO Forest I ’ .prosecut1on w1tnesses of the case PW7 M C Sharma, Pollce p Inspector and PWIO Amb1ka Prasad Dubey, Sub Inspector, Vlnvestlgated the offence In the present case, defence has / also " examined 'DWI ‘SKD Dadsena DW2' Chaltlball ,Jalchhatrl and DW3 Nlrmala DWI S KD Dadsena has . i deposed 1n h1s ev1dence that at the t1me of 1nc1dent he was. mtroduced w1th the duty of reglstratlon of orgamzatmn ‘ cons1st1ng male members DW2 Cha1t1ba1 Jalchhatn has V, deposed that on 18/8/86 appellant was 1n tour along wrthw { '- 1_her In her cross exam1nat10n she has admltted that on 18/8/86 at 11 A M appellant came to her then they proceeded for tour and they were at Nagabooda between 12 at noon to 4 PM She has proved the s1gnature of the ' f reglster artlcle A~4 DW3 Nlrmala has spec1f1cally deposed ; that on the date of 1nc1dent 1 e 20/8/86 one person came to the house of appellant He knocked the door then she ‘ ‘ opened the door that person told the appellant that he 1s : gomg to Bhopal for reg1strat1on purpose and requested the r f . ‘ lV‘ appellant to keep Rs 400/ then appellant told hlm that she W111 go 1n tour and she went 1n31de her room Thereafter, that person entered mto room of appellant and after opemng her l Almlrah kept the money 1n the Purse of appellant thereafter ‘ some persons came In her cross examlnatlon she has/ stated that appellant has not touched the currency notes. ‘ ' Application of the appellant Ex. P—2 has been seized vide Ex. P-l which revealsvthat she had applied for causal leave from 20/8/86 to 22/8/86 on account of her 111 health but as per ev1dence of DW3 N1rma1a appellant told that person that ,I’ ‘ she W111 go 1n tour 23. As per ev1dence of the prosecut10n w1tnesses hands of it appellant was washed w1th the solut10n of Sodlum Carbonate wh1ch 1s turned mto pmk colour Chem1cal report Ex.‘ P—lO 'reveals that Sod1um Carbonate and V 'Phenolphthalem power were found 1n the hand wash .solutlon of the appellant wh1ch shows that she had touched ‘ the carbonates As per defence w1tnesses, complalnant was ' ’ not fam111ar to her but as per her defence ev1dence that ,, r. , person entered 1nto the room of appellant and after opemng > Almlrah he kept the money 1n her purse but they have not - ‘ objected and not shouted They have not lodged any report - PW9 Dlamond S1ngh has spec1f1ca11y adm1tted 1n h1s cross— z r ‘ exammatlon 1n Paras—12 8a 13 that on 18/8/86 appellant 13 1l” ’,~ . was present inllher‘offlce‘ wher¢ he’ 'Contacted' .with thg appellant I. 24'} In the present case, ev1dence adduced on behalf of the. l Vprosecutlon and als0 by defence clearly estabhshes the factw ' that money was found 1n Almlrah of appellant and p I IPhenolphthalem chenncal was found 1n hand wash solutlon ' , of the appellant Complamant PW9 D1amond S1ngh was V present 1n the house of appellant at the t1me of such, .‘ f ' .1n01dent and complamant has glven Rs 400/— to the p l“ . XV I ‘ ' appellant on her demand Appellant has not offered any ' explanatlon that why she had rece1ved Rs 400/ The -_ i emdence of prosecutlon Witnesses are suffiCIent for draw1ng an mference that appellant has demanded and accepted Rs. I I “ 400/ L for which she Was entitled which shoWS that she has - . ' demanded and accepted 111ega1 gratlflcatlon other then legal t . V 14’ r (a:t . v ‘l a t I g remunerauon by abusmg her office 25.: After apprec1at1ng the ev1dence avallable on record learned ' 4th Add1t1onal Sess1ons Judge 8a Spec1al Jude Ralpur has a conv1cted the appellant under Sectlon 161 of the Indlan Penal Code and Secuon 5(1)(D) read Wlth Sectlon 5(2) of the - Act of 1957 and sentenced Srmple Impnsonment for l year, ’ ‘Slmple Imprlsonment for 1 year and fine of Rs 500/— 1n .., 1" r1. ,1 default of payment of fme amount Add1tlona1 Slmple Imprlsonment for 3 months Present appellant 1s fac1ng z prosecutlon smce 1988 for about 22 years Cons1der1ng the p ,l ’\ pm- 11" 14 3 j/x aforesaid circumstances ’the sentencé required , to ‘ recons1derat10n Consequently, crumnal appeal 1s partly allowed Conv1ct1on of the appellant under Sectmn 161 of the Indlan Penal Code and Sect1on 5 (1)(D) read W1th Sect10n 5(2),“ of the Act of 1957 are hereby mamtamed but 1n stead of sentence of s1mp1e 1mpr1sonment for 1 year and s1mp1e 1mpr1sonment for 1 year; appellant '1s sentenced for s1mple j ‘1mpr1sonment for 6 months and s1mp1e 1mpr1sonment for 6 - months and f1ne of Rs 500/- 1n default of payment of fine amount addltlonal s1mp1e 1mpr1sonment for 3 ‘months. ball She shall 1mmed1ately surrender herself I' Appellant 1s 1n before the 4th Add1t1ona1 Sess1on Judge 85 Speclal Judge for sentence 1mposed upon her. v ’Ralpur servmg remammg upon . Sd/- ’T.P. Sharma ‘ (1&1; Judge