R.C. Mishra, J.@mdashThe Judgment of the Court was delivered by :-This appeal has been preferred against the judgment-dated 11.04.2000
passed by the Special Judge [under the Prevention of Corruption Act, 1988 (for CBI cases)] [hereinafter referred to as ''the Act''] at Jabalpur in
Special Case No. 14/1998 whereby the appellant was convicted and sentenced as under -
Convicted under SectionSentenced to
7 of the Act undergo R.I. for 2 years and to pay fine
of Rs.2000/- and in default, to suffer R.I.
for 3 months.
13(1)(d) read with undergo R.I. for 2 years and to pay fine
of
13(2) of the Act Rs.2000/- and in default, to suffer R.I.
for 3 months.
with the direction that the jail sentences shall run concurrently.
2. Prosecution story, in short, may be narrated thus -
(i) At the relevant point of time, the appellant was posted as Accounts Clerk in the Office of DRM (Divisional Railway Manager), Jabalpur
whereas complainant Moti Singh (PW5) had superannuated on 31.05.1997 from the post of Record Keeper in the Personal Department of the
same office. The appellant was dealing with the application moved by Moti Singh for grant of Death Cum Retirement Gratuity (DCRG). However,
on 19.08.1997, as the complainant approached the appellant for assistance, he demanded a sum of Rs.200/- as illegal gratification for forwarding
the claim to the competent authority for sanction and also asked to pay the money on 26.08.1997.
(ii) Not being inclined to pay the bribe, Moti Singh made a complaint in writing (Ex.P-3) before S.P. (CBI) Jabalpur, who registered a case by
recording an FIR (Ex.P-10) and entrusted the investigation to Inspector Dhirendra Kumar (PW7).
(iii) Dhirendra Kumar observed the pre-trap formalities in presence of panch witnesses namely J.P. Chaudhary (PW6), an officer of the Union
Bank of India and Keshav Panda (PW4), an officer of the Maharashtra Bank. The Inspector took into possession four currency notes each in the
denomination of Rs.50/- produced by the complainant and got the same treated with phenolphthalein powder and placed in the pocket of the shirt
worn by the complainant, who was further directed not to touch the tainted money and to give signal by scratching his head by left hand only after
handing over the same to the appellant.
(iv) At about 4.30 p.m., the trap party comprising Dhirendra Kumar & other officials of CBI, panch witnesses and the complainant reached the
DRM office. As per plan, the complainant along with J.P. Choudhary, the shadow witness, went inside the Settlement Office situated on the first
floor where the appellant was found sitting on a chair. On seeing the complainant, the appellant asked him to accompany downstairs. J.P.
Choudhary followed the appellant and the complainant upto the backside of the DRM office where on being asked to pay the amount, complainant
Moti Singh took out the tainted money from his shirt pocket and handed over the same to the appellant who, in turn, kept the money in the left
pocket of his trousers and entered into the Raj Bhasha Anubhag (Official Language Section).
(v) The complainant then gave the appointed signal and immediately thereafter, the Inspector along with panch witnesses rushed to Raj Bhasha
Anubhag and brought the appellant out of it by holding his hands. Panch witness Keshav Panda recovered the tainted currency notes from the left
pocket of the appellant''s trousers. These notes were counted by him and their numbers were also tallied with the relevant details recorded in the
pre-trap panchnama (Ex.P-4). Hands of the appellant, left pocket of his trousers and right hand of the complainant were washed with the solution
of Sodium Carbonate and the corresponding parts turned pink. Samples of the resultant solutions were kept in separate bottles and sealed. These
samples were forwarded to FSL, New Delhi wherefrom a positive report (Ex.P-11) suggesting presence of Phenolphthalein in the solutions was
received.
3. Upon completion of the investigation, sanction for appellant''s prosecution was obtained from Sharad Bhatia (PW1), the then Chief Accounts
Officer, Jabalpur.
4. The appellant pleaded false implication and asserted that he had no authority to deal with the DCRG claim preferred by the complainant Moti
Singh (PW5). In the cross examination of the complainant, it was suggested that in fact, he had handed over the money to the appellant by way of
a loan. Validity of sanction (Ex.P-1) granted by Sharad Bhatia (PW1) was also questioned on a variety of grounds.
5. The prosecution sought to prove the charges by examining as many as 7 witnesses including R.S. Rawat (PW2) and Anita Patel (PW3),
respectively the then Section Officer in Pension Branch and Head Clerk in DRM office. No evidence was led in defence.
6. Legality and propriety of the convictions have been challenged inter alia on the following grounds -
(i) Invalidity of the sanction for the appellant''s prosecution.
(ii) Want of authority to deal with the complainant''s DCRG claim.
(iii) Non-maintainability of the application for payment of the DCRG in view of the fact that, admittedly, the complainant Moti Singh had not
vacated the railway quarter allotted to him.
(iv) Absence of evidence as to demand of bribe.
(v) Contradictions in the testimony of the investigating officer Dhirendra Kumar (PW7) and the panch witnesses namely Keshav Panda (PW4) and
J.P. Choudhary who, according to the appellant, were the pocket witnesses of the CBI.
(vi) Establishment of probability of the defence in the light of-
(a) admission made by the complainant that the amount in question was given by him as a loan to the appellant
(b) inability of the panch witnesses to hear the conversation preceding passing of tainted money.
(c) Supportive testimony of panch witness J.P. Choudhary (PW6) reflecting that the appellant, after being trapped, asserted that he had taken the
money as a loan from the complainant.
In response, learned counsel for the CBI, while making reference to the incriminating pieces of evidence on record, has submitted that the
convictions are well merited. Inviting attention to the provisions of Section 19(3)(a) of the Act, he has further contended that even if it is assumed
that the sanction suffered from any defect, the impugned convictions cannot be set aside.
7. Before proceeding further to deal with the appeal, it is necessary to decide I. A. No.5725/2011, which is an application preferred by the
appellant to take additional documents indicating that (a) the appellant was appointed by Financial Advisor and Chief Accounts Officer (FA &
CAO), Central Railway on compassionate ground and (b) he is handicapped to the extent of 40%.
8. However, the prayer for exercise of inherent powers preserved in Section 482 of the Criminal Procedure Code is not entertainable in view of
availability of specific provision for the purpose, in the form of Section 391 thereof. Accordingly, it is to be ascertained as to whether the additional
documentary evidence would be necessary for a just decision of this appeal.
9. As explained by the Supreme Court in Central Bureau of Investigation Vs. V.K. Sehgal and another,
Under the Act there is a special provision regarding appeal and revision which is incorporated in S. 27. Thus the powers of appeal and revision of
the High Court conferred by the Code of Criminal Procedure shall be ""subject to the provisions of "" the 1988 Act. It is worthwhile to notice that a
trammel has been imposed on a Court of appeal and revision under S. 19(3)(a) of the 1988 Act. It is a further inroad into the powers of the
appellate Court over and above the trammel contained in S. 465 of the Code. Under S. 19(3)(a) of 1988 Act no order of conviction and sentence
can be reversed or altered by a Court of appeal or revision even ""on the ground of the absence of sanction"" unless in the opinion of that Court a
failure of justice has been occasioned thereby. By adding the Explanation the said embargo is further widened to the effect that even if the sanction
was granted by an authority who was not strictly competent to accord such sanction, then also the appellate as well as revisional Courts are
debarred from interfering with the conviction and sentence merely on that ground.
10. In this view of the matter, the documents referred to in the I.A. do not assume any significance. It is, accordingly, rejected.
11. In order to appreciate their merits in a proper perspective, rival contentions may be dealt with under the following sub-heads -
SANCTION FOR PROSECUTION
12. Learned counsel for the appellant has termed the sanction (Ex.P-1) for his prosecution as invalid for the reasons that it was granted by the
authority subordinate to the appointing authority and further that the same was granted mechanically and without application of mind.
13. To strengthen the objection as to competence of Sharad Bhatia (PW1), attention has been invited to the admission made by him to the effect
that by way of letter (Ex.D-1), he had informed the Inspector of CBI that the authority competent to remove the appellant from his present post
was FA & CAO whereas he was holding the post of Divisional Accounts Officer. However, in his cross examination, he further explained that by
a subsequent communication, he was informed by the department that he was equivalent in rank to the appointing authority and was, therefore,
empowered to remove the appellant from the service. But, for the reasons best known to him or the public prosecutor in-charge of the case, the
supportive documents brought by him were not tendered in evidence. As such, the explanation remained unsubstantiated.
14. Placing reliance on a decision of the Apex Court in Krishna Kumar Vs. Divisional Assistant Electrical Engineer and Others, , leaned counsel
has submitted that even if the explanation given by Sharad Bhatia is taken at its face value, the subsequent delegation of power to him as the
Divisional Accounts Officer would not confer power to remove the appellant, who was appointed by FA& CAO before the delegation. According
to him, Divisional Accounts Officer did not cease to be subordinate in rank to the FA & CAO merely because the latter''s power to make
appointments to certain posts has been delegated to him. The other ruling cited by learned counsel on this aspect of the matter is Mahesh Prasad
Vs. The State of Uttar Pradesh, which is an authority for the proposition that the removal must be by very same authority, who made the
appointment or by his direct superior.
15. For rejecting the aforesaid contention, learned trial Judge had taken recourse to Rules 102 and 104 of the Accounts Code Part I and as well
as clause (c) of sub-Section (1) of Section 19 of the Act. For a ready reference, these provisions may be reproduced thus -
RULES
102. Gazetted Officers of the Accounts Department -
The head of the Accounts Department of a Railway Administration is known as the Financial Adviser & Chief Accounts Officer. Below him are
the Additional Financial Adviser and Chief Accounts Officer, the Deputy Chief Account Officers, Senior Accounts Officers, Junior Accounts
Officers, and Assistant Accounts Officers, located in the Headquarters Office or attached to the Divisions, Workshops; Stores Depots and
Construction Projects of the railway. The size of the organisation may very depending on the nature and volume of work in the Accounts
Department of each Railway Administration. For the sake of brevity, all Accounts Officers of a railway, including the head of the Accounts
Department, are referred to hereafter as ""Accounts Officer(s)"". Where, however, it is necessary to refer particularly to the head of the Accounts
Department of a railway the term ""Financial Adviser and Chief Accounts Officer"" has been used. The term ""Accounts"" has, in some places, been
used to denote the Accounts Department.
104. The Divisional/Senior Divisional Accounts Officer in a Division, the Workshop Accounts Officer in a Workshop and the Stores Accounts
Officer attached to the Stores Depot will function as Financial Advisers to their respective Executive Officers under the Overall guidance of the
Financial Adviser and Chief Accounts Officer.
SECTION
19. Previous sanction necessary for prosecution.-(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15
alleged to have been committed by a public servant, except with the previous sanction,-
(a)...
(b)...
(c) in the case of any other person, of the authority competent to remove him from his office.
16. In the light of these provisions, learned trial Judge rightly took the view that Sharad Bhatia, being the officer to remove the appellant from the
post at the time when the offences were allegedly committed, was competent to accord sanction for prosecution.
17. On these facts, the decision in the case of Sailendranath Bose v. State of Bihar AIR 1968 SC 1292 is of no avail to the petitioner as in that
case, the sanctioning authority viz. Chief Medical Officer was not competent to remove the accused Assistant Medical Officer from service.
18. To buttress the contention that the sanction (Ex.P-1) was granted without application of mind and in a mechanical manner, he has invited
attention to the following facts -
(i) The words ""satisfaction"" did not find place in the sanction order.
(ii) Names of the witnesses and the documents were not referred to.
(iii) Although, Sharad Bhatia deposed that he had gone through all the relevant documents yet, this fact was not mentioned in the covering memo.
(iv) There was absolutely no need to annex the bio-data (Ex.D-1 A) that contained an inconsistent statement to the effect that only FA & CAO
was competent to remove the appellant from his post.
(v) Admittedly, Sharad Bhatia, after getting the draft sanction, as forwarded by the CBI, vetted by the legal department, had not preferred to make
any change therein.
Further, in support of the argument that the sanction suffered from non-application of mind, attention has also been invited to the decision of the
Bombay High Court in N.P. Lotlikar Vs. C.B.I. and another,
19. However, the mere fact that the sanction order was drafted by the investigating agency, was not sufficient to vitiate the sanction (See. Indu
Bhusan Chatterjee Vs. The State of West Bengal, . In this regard, it would also be useful to quote the following observations made by a Division
Bench of Gujarat High Court in Nareshkumar Kikabhai Tandel Vs. State of Gujarat,
there is no law which requires the Sanctioning Authority to draft the sanction himself. It is for him to decide whether a public servant who is
appointed by him and who is liable to be dismsised by him is required to be prosecuted and the sanction is required to be given or not. At that time
he has to apply his mind to the facts which are brought to him. It may be by precise concise statement, it may be that all prosecution papers,
statements, panchnamas, complaint etc. may be placed before him and he may go through the same and if he is satisfied that the sanction is
required to be given that sanction order could be drafted by any one in the office, even by a Law Officer kept for that purpose. The Sanctioning
Authority thereafter is only required to go through that order, fully satisfy himself that what has been stated is according to what he wanted and if he
finds it all right he could sign it and that would be a perfect legal sanction.
20. Similar view was taken in State of Tamil Nadu Vs. Damodaran, wherein the Director of Vigilance and Anti Corruption had enclosed model
sanction orders so as to enable the Revenue Divisional Officer to draft sanction order in those lines. Accordingly, it was held that sanction, based
on all relevant materials placed before Sanctioning Authority, was perfectly valid. Reference may also be made to the following observations made
by a Constitution Bench in R.S. Pandit Vs. State of Bihar, with reference to requirements of sanction as contemplated in Section 6 of the
Prevention of Corruption Act, 1947 that corresponds to Section 19 of the Act of 1988 -
Section 6 of the Act also does not require the sanction to be given in a particular form. The principle expressed by Privy Council in ( AIR 1948 82
(Privy Council) namely that the sanction should be given in respect of the facts constituting the offence charged equally applies to the sanction u/s 6
of the Act. In the present case all the facts constituting the offence of misconduct with which the appellant was charged were placed before the
Government. The second principle, namely, that the facts should be referred to on the face of the sanction and if they do not so appear, the
prosecution must prove them by extraneous evidence, is certainly sound having regard to the purpose of the requirements of a sanction.
21. Thus, viewed from any angle, the sanction for prosecution of the appellant could not be held to be invalid. Even if a contrary view is taken, the
validity of the consequent proceedings would remain unaffected as none of the defects, as pointed out by learned counsel for the appellant, has
occasioned a failure of justice as contemplated in sub-section (3) of Section 19 of the Act (See. State by Police Inspector Vs. Sri T. Venkatesh
Murthy,
WANT OF AUTHORITY TO DEAL WITH CLAIM APPLICATION
22. Regarding competence of the appellant to deal with the application pertaining to DCRG claim, Head Clerk Anita Patel (PW3) has submitted
that it was she, who had prepared the letter (Ex.P-2) for clearance of DCRG on 28.07.1997 i.e. before the incident in question. Thus, it was
established that at the relevant point of time, the DCRG claim was pending. Besides this, R.S. Rawat (PW2), the then Senior Section Officer in the
Pension Branch, also came forward to state that as Accounts Clerk, the appellant was under a duty to deal with the DCRG claim including the
claim preferred by the complainant which was received on 04.08.1997 i.e. 21 days before the date of trap along with the letter (Ex.P-2). This
witness categorically denied the suggestion that the appellant was not at all concerned with DCRG claim preferred by the complainant. According
to him, as per distribution memo (Ex.D-3), pension cases were allotted to Smt. Tara Gupta who, at the relevant point of time, had gone for training
and as such, the work assigned to her was being looked after by the appellant. Further, contents of the complaint (Ex.P-3) made by Moti Singh,
who was not a stranger to the appellant, clearly reflected that he was well aware of the functioning of the accounts department and the duties
assigned to the appellant.
23. All this evidence clearly suggested that duty to process DCRG claim put forward by the complainant was assigned to the appellant. The fact
that the complainant was not entitled to have the claim passed before vacation of railway quarter allotted to him was of no consequence.
24. This apart, the contention that the appellant was not authorized to deal with the claim application is also misconceived in view of the
explanation (d) appended to Section 7 of the Act (which corresponds to the last explanation appended to Section 161 of the IPC [omitted by
Prevention of Corruption Act, 1988, S. 31 ]) that reads as under -
A motive or reward for doing."" A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a
position to do, or has not done, comes within this expression.
ABSENCE OF EVIDENCE AS TO DEMAND OF BRIBE
25. Even though, the complainant Moti Singh (PW5) reiterated the circumstances leading to making of compliant (Ex.P-3) relating to the demand
of bribe yet, he further clarified that it was made not against any particular clerk but against the working environment of the Accounts Section. In
such a situation, he was declared hostile but in the cross-examination, he substantially corroborated the following facts-
(a) he had submitted the complaint and also handed over four currency notes, each in the denomination of Rs.50/- to Inspector Dhirendra Kumar
(PW7).
(b) Currency notes given by him to the Inspector were recovered from the pocket of the trousers worn by the appellant.
(c) His right hand as well as both the hands of the appellant and the trousers'' pocket were washed with the solution that had turned pink.
26. It is true that, in his cross-examination by learned defence counsel, the complainant clearly accepted the suggestion that the amount recovered
from the appellant''s possession had been advanced by him as loan but his non-supportive evidence as to demand did not assume significance
simply because, for arriving at the conclusion as to whether all the ingredients of the offence viz. demand, acceptance and recovery of the amount
of illegal gratification have been satisfied or not, the Court has to take into consideration the facts and circumstances brought on record in their
entirety (See. Hazari Lal Vs. State (Delhi Administration),
27. Further, Inspector Dhirendra Kumar (PW7) not only reiterated the contents of pre-trap panchnama (Ex.P-4) but also supported the
circumstances culminating in recovery of tainted currency notes from the left pocket of appellant''s trousers as reflected in the post-trap panchnama
(Ex.P-5). Nothing could be elicited in his cross-examination so as to suggest that he was, in any way, interested in securing conviction of the
appellant on absolutely false grounds. His evidence could not be rejected solely on the ground that he was concerned with the success of the trap.
28. Learned counsel for the appellant has strongly relied upon the decision rendered in Ram Prakash Arora Vs. State of Punjab, where
notwithstanding recovery of the two-marked ten rupee currency notes the accused was acquitted in a bribery charge. But, in that case, recovery of
the currency notes, which was denied by the accused, assumed great importance and the fact that the same could not be established by reliable
and independent search witness was considered by the Supreme court as one of the serious infirmities whereas the case in hand is not such a case.
29. Testimony of inspector Dhirendra Kumar drew ample support from the statements of the panch witnesses viz. Keshav Panda (PW4) and J.P.
Choudhary (PW6) and admissions made by these panch witnesses that they had also witnessed trap proceedings in other CBI cases were also not
sufficient to dub them to be accomplices per se or even as interested witnesses Madurai Coats Ltd. Vs. The Workmen of Madurai Coats Ltd.
represented by the Secretary and Others, relied on). The decision in Hira Lal Vs. The State of Haryana, relates to a case wherein a person had
appeared as prosecution witness four to five times in police cases pertaining to a particular police station, is also not applicable to the facts of the
present case. Moreover, evidence of Inspector Dhirendra Kumar and the panch witnesses Keshav Panda and J.P. Choudhary did not suffer from
any serious infirmity with regard to circumstances leading to the trap.
30. Learned Special Judge, therefore, did not commit any illegality in holding that an amount of Rs.200/- was demanded by the appellant as illegal
gratification for processing the complainant''s DCRG claim.
PROBABILITY OF THE DEFENCE
31. In the light of the defence that the appellant had received the amount in question from the complainant by way of a loan, the matter lies in a very
narrow compass. The core question, therefore, is as to whether the appellant has been able to rebut the presumption u/s 20(1) of the Act.
32. As pointed out already, no evidence was adduced in defence. Highlighting the admissions made by complainant Moti Singh that his relations
with the appellant had always remained cordial and that he used to render financial assistance to the appellant, learned counsel has strenuously
contended that mere recovery of money was not sufficient to give rise to the statutory presumption u/s 20(1) of the Act. Attention has also been
invited to the statement of J.P. Choudhary (PW6) that the appellant had claimed to have received the amount as a hand loan advanced by the
complainant. However, fact of the matter is that this witness categorically stated that during the post-trap proceedings which continued for a
considerable period of 21/2 hours, the complainant had not supported the theory of hand loan.
33. Learned counsel still contended that the appellant was not required to prove the explanation for receiving the money beyond a reasonable
doubt. To fortify the contention, strong reliance has been placed on the decision of the Apex Court in Suraj Mal Vs. State (Delhi Administration),
However, the very undisputed fact that the tainted currency notes reached the hands of the accused, served as a sufficient corroboration to the
evidence relating to trap (See. Madhukar Bhaskarrao Joshi Vs. State of Maharashtra,
34. The ratio laid down in Suraj Mal''s case (supra) is that in a case of bribery, mere recovery of money divorced from the circumstances under
which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. However, in the instant case, quite
apart from the admission, there is clear, cogent and creditworthy evidence to show that the appellant had accepted the tainted money from the
complainant. In State of Andhra Pradesh Vs. V. Vasudeva Rao, , while distinguishing the decision in Suraj Mal''s case, the Supreme Court laid
down the under-mentioned guiding principles for invoking the statutory presumption in a trap case -
(a) the expressions ""may presume "" and ""shall presume "" are defined in Section 4 of the Indian Evidence Act, 1872 (in short ""the Evidence Act"").
The presumptions falling under the former category are compendiously known as ""factual presumptions"" or ""discretionary presumptions"" and those
falling under the latter as ""legal presumptions"" or ""compulsory presumptions"". When the expression ""shall be presumed"" is employed in Section 4(1)
of the Act, (that corresponds to Section 20(1) of the Act) it must have the same import of compulsion.
(b) When the sub-section deals with legal presumption, it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed
that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc. if the condition envisaged in the
former part of the section is satisfied. The only condition for drawing such a legal presumption u/s 4 is that during trial it should be proved that the
accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct
evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of
the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.
(c) Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is
only applying a process of intelligent reasoning, which the mind of a prudent man would do under similar circumstances. Presumption is not the final
conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule
indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such
inference is either disproved or dispelled.
35. Accordingly, the defence was rightly rejected by learned trial Judge as inherently improbable in view of the background facts and
circumstances leading to the trap. In this regard, the following illuminating observations made by the Supreme Court in Madhukar Bhaskarrao
Joshi''s case (above) may usefully be quoted -
the premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said
premise is established the inference to be drawn is that the said gratification was accepted ""as motive or reward"" for doing or forbearing to do any
official act.
36. For these reasons, none of the contentions raised against legality and propriety of the convictions under challenge deserves acceptance.
37. This brings us to the question of sentence. Taking into consideration the nature of allegations found proved, social impact of the crime and
other relevant circumstances of the case, interests of justice would be met if the terms of custodial sentences are reduced to one year, which is the
minimum prescribed for the offence u/s 13(1)(d) read with S. 13(2) of the Act.
38. In the result, the appeal is allowed in part. The impugned convictions and the fine sentences are hereby affirmed. However, the terms of
consequent sentences of imprisonment are reduced from 2 years to 1 year with a further direction that the sentences shall run concurrently.
39. Appellant is on bail. He is directed to surrender to his bail bonds before the trial Court on or before 19th July 2011 for being committed to
custody for undergoing remaining part of the sentence.
