CRA No.541-SB of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.541-SB of 2000 Date of decision : 14.12.2010 Rajpal Arya ...Appellant Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. J S Bedi, Advocate, for the appellant. Mr. Pradeep Virk, DAG, Haryana. JITENDRA CHAUHAN, J. (ORAL) 1. The appellant has come in appeal against the judgment of conviction and order of sentence dated 29.5.2000/30.5.2000, whereby he was convicted under Section 13(1)(e) of the Prevention of Corruption Act (for short, the ‘Act’), and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 20,000/- or in default of payment of fine, to further undergo rigorous imprisonment for a period of six months. 2. Brief facts of the case leading to filing of the present appeal may be noticed. On the basis of the complaint, Ex.PB, sent by DSP, State Vigilance Bureau, Karnal, investigation was started against Nihal Singh, Superintending Engineer, Public Works Department (Building and Roads), as per letters dated 9.3.1990 and 13.3.1990. The enquiry was entrusted by CRA No.541-SB of 2000 -2- Superintendent of Police, State Vigilance Bureau, Hissar Section. In that complaint, it was also reported that the accused-appellant, R.P. Arya, Sub Divisional Engineer, had also earned huge amount by indulging in corrupt practices in connivance with said Nihal Singh and constructed a house and purchased a car with that ill-earned money. During the enquiry, it was found that the accused-appellant purchased Plot No.81, Sector 14, Sonepat, on 9.10.1981 for ` 21,000/- and raised construction over that plot during the period from May, 1983 to December, 1984. The value of this house was assessed to the tune of ` 3,40,000/- by Shri P C Gupta, Executive Engineer, Vigilance Department, Chandigarh, and after giving concession of 15%, the value was finally assessed to the tune of ` 2,94,100/-. The accused- appellant had withdrawn ` 32,000/- from his GPF. He borrowed ` 55,000/- in May, 1983 and December, 1983, from his maternal uncle Sadhu Ram Gupta, his uncle Sumer Chand, his cousin Ramesh Kumar, his father Parshotam, his mother Kamla Devi, his uncle Hukam Chand Gupta, his maternal grand mother Ramanti Devi and sister Kusum Lata for which permission was granted to him to obtain the loan vide letter dated 4.1.1985 by the Chief Engineer, PWD (B&R), Chandigarh. Those persons paid ` 55,000/- to him through drafts and, therefore, the payment was deemed to be correct. During the investigation, R.P. Arya stated that major part of the construction work was complete by the month of December, 1984 and small work was done thereafter also. He also produced the bills pertaining to the years 1985 and 1986, vide which, he purchased building material from Sonepat. On the basis of those bills, it was presumed that he might have continued minor construction during those years. It is also reported that CRA No.541-SB of 2000 -3- accused R.P. Arya joined as SDE in PWD Department in the month of August, 1971, and before joining this department, he worked as SDE with Irrigation Department from the month of June, 1970 to the month of July, 1971. His total salary upto the month of August, 1986 came to ` 2,72,400/-. If savings are presumed to the tune of 40%, his income comes to ` 1,08,960/-. The accused also obtained ` 10,000/- from the Department in the month of March, 1986 for the construction of the house. He also received ` 7,500/- vide cheque dated 27.2.1984, which was deposited by him as a security. He also received ` 17,700/- in the year 1984-85 on account of encashment of National Savings Certificates (NSC). The accused also told that his wife Suman Bala used to earn ` 2,000/- to ` 10,000/- per month by way of knitting but he could not produce any cogent evidence to prove this fact. The accused told that he incurred a sum of ` 55,000/- in the year 1991-92 on the building but he did not submit the bills and draft regarding this. Due to this reason, this amount could not be included as expenditure for construction thereon. The cost of the plot was not added in the assessment of the price of the house. It was also reported that the accused purchased land measuring 8 kanals 6 marlas in the hilly area of Melwa Maharajpur, District Faridabad, vide sale deed dated 2.9.1981 for ` 10,900/-. The total money used by the accused-R.P. Arya for construction of the house and purchase of land came to ` 3,25,100/-. But his total income as per his known sources came to ` 2,31,160/-. In this way, he failed to account for ` 93,900/- and the same might have been earned by illegal means. During investigation, it was also found that he got ` 10,000/- CRA No.541-SB of 2000 -4- from a person, which he deposited with Modern Automobile, Ambala, to purchase a car, but he did not receive the delivery of the car and sold the same to that person. After receiving necessary sanction, a case was registered against him for the offence punishable under Section 13(1)(e) of the Prevention of Corruption Act, 1988, vide FIR, Ex.PB/1. The assessment report submitted by XEN, State Vigilance Bureau, is Ex.PA, along with Annexures Ex.PA/1, Ex.PA/2 and Ex.PA/4, regarding cost of construction etc., Certificate, Ex.PC, along with details, Ex.PC/1 to Ex.PC/13, was issued regarding the salary withdrawn by the accused from 28.6.1970 to 31.8.1991. The Commissioner and Secretary to the Government of State of Haryana, PWD, gave permission to prosecute the accused vide sanction order Ex.PD dated 26.6.1998. It was mentioned therein that the accused could not account for ` 23,000/- from his known sources of income and constructed a house at Sonepat. However, the order is silent about the land purchased at Mewla Maharajpur. His property statements Ex.PF to Ex.PP, were also taken into possession. Statements of the witnesses were recorded. After the completion of necessary investigation, the challan was filed in the Court for the trial of the accused. 3. Thereafter the accused was charged under Section 13(1)(e) of the Act for having disproportionate sources of income which he could not account for a sum of ` 2,31,160 and a sum of ` 93,900/-, to which the accused pleaded not guilty. 4. In order to prove its case, the prosecution examined as many as 10 witnesses, namely, P.C. Gupta as PW1; Mohinder Singh Malik, DSP, State Vigilance Bureau, as PW2; Inspector (Retd.) Basheshar Lal as PW3; CRA No.541-SB of 2000 -5- Gian Chand Taneja, Deputy Superintendent, as PW4; Radhey Sham, Record Keeper, Haryana Urban Development Agency Sonepat (HUDA), as PW5; Shri Balbir Singh, Assistant, O/o Commissioner and Secretary, PWD (B&R), Government of Haryana, as PW6; Sukhbir Singh, Clerk, O/o SDM Ballabgarh, as PW7, Ram Kumar, DSP, CID Panchkula, as PW8; Sat Parkash, DSP, Jhajjar, as PW9; and V N Kaushik, Assistant, Haryana PWD (B&R), Chandigarh, as PW10. 5. In his statement under Section 313 Cr.P.C., the appellant pleaded innocence. In defence, he examined his wife, Suman Arya, as DW1 and Hira Lal Mukhija as DW2. 6. After hearing learned counsel for the parties and appreciating the material evidence on record, convicted and sentenced the appellant for the offence and term as indicated at the outset of this judgment. 7. Leaned counsel has submitted that initially, the sanction in the matter was declined. However, the sanction was subsequently granted on account of the fact that the appellant was caught red-handed in another case bearing FIR No.4 dated 9.7.1997. Learned counsel has submitted that it was on account of his being caught red-handed, the sanction has been granted on the same facts. He has pointed out that the appellant already stands acquitted in the case FIR No.4 dated 9.7.1997 vide judgment dated 12.2.2002. Learned counsel, thus, submits that review of the sanction order is not permissible on the same material. 8. Learned counsel has further submitted that the income/savings of his wife have not been calculated and added to the income of the appellant though the appellant had filed the same with the department. He has further submitted that there is a difference between the amount as CRA No.541-SB of 2000 -6- indicated in the charge-sheet dated 31.03.1999 and the sanction order dated 26.6.1998. He has submitted that as per the charge-sheet, the amount is ` 93,900/- whereas, according to the sanction order, the amount is ` 23,000/-. The learned counsel contends that the difference of amount as indicated above, itself goes to show the non-application of mind by the sanctioning authority before granting the sanction, after heaving earlier declined the same. 9. The learned counsel has also referred to Section 17 of the Act and has contended that as per the mandate of this Section, investigation has to be conducted by the official being authorized in writing by the Superintendent of Police. The learned counsel emphatically submits that in the instant case, there is no such authorization in the name of the Investigating Officer. 10. Learned counsel has further referred to Ex.PF and Ex.D1, the amount of which comes to ` 19,183/- were not included in the income by the prosecution as upto August, 1986. Similarly, the amount coming from other sources as narrated in Ex.PF to Ex.PP, Ex.D1 to D4 and Ex.DG were not included as income of his wife, Mrs. Suman Arya, from the date of marriage, i.e., 17.2.1972 till August, 1986. This has caused great prejudice to the case of the appellant. 11. On the other hand, learned counsel for the State has prayed for maintaining the judgment and order of the learned trial Court. He has very fairly admitted the fact that the investigation in the instant case has not been properly conducted. 12. I have heard learned counsel for the parties and perused the record. CRA No.541-SB of 2000 -7- 13. It is evident from the record that the competent authority refused sanction to prosecute the appellant in the first instance. This fact is admitted by Balbir Singh, Assistant, Office of the Commissioner and Secretary, PWD (B&R), PW6. No fresh incriminating material had been brought to the notice of the sanctioning authority nor the sanctioning authority has given any cogent reason for reviewing its earlier order. The fact of registration of the FIR appears to have weighed in the mind of the sanctioning authority, which is not permissible under law, particularly when the appellant stands acquitted in said FIR No.4 dated 09.07.1997 as noticed in para 7. Hon’ble the Supreme Court in Crl. Appeal No.2353 of 2010 titled as State of Himachal Pradesh Vs. Nishant Sareen, has observed as under:- “12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be CRA No.541-SB of 2000 -8- reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course. 13. Insofar as the present case is concerned, it is not even the case of the appellant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent order dated March 15, 2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible”. 14. From the statement of V N Kaushik, Assistant, Haryana PWD (B&R), Chandigarh, PW10, it is reflected that the details of the personal saving of the wife of the appellant, who is the only child of her parents and CRA No.541-SB of 2000 -9- engaged in knitting of sweaters, has not been included. As per the chart, Ex.D2, the grand total of savings is ` 42,032/- out of which a computerized knitting machine for ` 4,815/- was purchased and accordingly, the wife of the appellant had net savings of ` 37,217/-. In the same manner, from the returns filed by the appellant, an income of ` 19,183/- has not been included towards the income of the appellant as indicated in Ex.PF and Ex.D1. 15. The appellant has been charged for accumulating disproportionate assets for ` 23,000/-. If the figure in Ex.D2 and DG are taken together, then the appellant has far excess earnings than the amount for which he has been charged. 16. In this context, it is relevant to note that the Investigating Officer, DSP Satya Prakash, PW9, has admitted that he has not inspected the record and calculated the figures. In the absence of calculations done by the Investigating Officer and there being no other evidence on record, the fact of disproportionate property to the extent of ` 23,000/- itself stands demolished. 17. There is no authorization in terms of Section 17 Cr.P.C., which mandates that the investigation has to be conducted by the official being authorizied in writing by the Superintendent of Police. Section 17 Cr.P.C. reads as under:- CRA No.541-SB of 2000 -10- “17. Persons authorised to investigate Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank,- (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973, of an Assistant Commissioner of Police; (c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant: Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant: Provided further that an offence referred to in clause (e) of sub-section (1) of section 13 shall not be investigated without the older of a police officer not below the rank of a Superintendent of Police.” CRA No.541-SB of 2000 -11- 18. In State Inspector of Police, Vishakhapatnam Vs. Surya Sankaram Karri, (2006) 3 SCC (Cri) 225, Hon’ble the Supreme Court has held as under:- “13. 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 officer 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 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 fulfil 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 disputed before us that the Investigating Officer, CRA No.541-SB of 2000 -12- P.W.41, did not produce any record to show that he had been so authorized. Shri K. Biswal, the Investigating Officer, while examining himself as P.W.41, admitted that he had not filed any authorization letter stating : "I have received the specific authorisation from S.P., C.B.I., to register a case but I have not filed the said authorisation letter." 14. No explanation has been offered therefor. Even no attempt was made to bring the said document on record at a later stage.” 19. This is one of the cases where the sanctioning authority and the Investigating Officer have taken a very casual approach in the matter and appears to be not alive to the sensitivity and the repercussions of these kind of cases faced by the employees who suffer stigma apart from other ancillary losses. The instant case could be proved or disproved on facts. The prosecution has not calculated the entire income of the appellant and his wife, for the reasons best known to it. If the prosecution had done this exercise, which is obligatory under law, then this eventuality of reviewing the charge-sheet would not have arisen. Secondly, the Investigating Officer, in the instant case, has failed in performing his duty vigilantly as was expected from him. 20. In the facts and circumstances of this case, it is manifestly clears that the sources of the appellant are far beyond the amount mentioned in the charge-sheet. So the prosecution has failed to prove charge against the appellant. CRA No.541-SB of 2000 -13- 21. Resultantly, the present appeal is allowed. The judgment and order dated 29/30.5.2000, passed by the learned trial Court is hereby set aside and he is acquitted of the charge framed against him. His bail bonds shall stand discharged. ( JITENDRA CHAUHAN ) 14.12.2010 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No