Kootha Perumal vs State Tr.Insp.Of Police Vig.& Anti Corpn

Supreme Court15 December 2010Surinder Singh Nijjar · B.Sudershan Reddy

SCC(2011) 1 SCC 491
Neutral2010 INSC 883
AIRAIR 2011 SC 356
SCR[2010] 14 SCR 864

Ratio decidendi

The rule this decision rests on

A sanction to prosecute under the Prevention of Corruption Act must be obtained from a competent sanctioning authority, and the sanction order satisfies the legal requirement if it shows that the sanctioning authority has examined the evidence and material on record and has duly applied its mind to the facts and circumstances before concluding that prosecution should be sanctioned, though these facts need not all appear on the face of the sanction if they can be proved by extraneous evidence. In a prosecution under the Prevention of Corruption Act for demanding and accepting gratification, the offence is established by evidence that the accused made a demand for gratification and received money in acceptance thereof, and the concurrent findings of the trial court and High Court on these factual matters will not be disturbed on appeal unless shown to be perverse.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

REPORTABLE

IN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1923 OF 2008

Kootha Perumal ..Appellant

VERSUS

State Tr. Inspector ofPolice, Vigilance & Anti Corruption ..Respondent

JUDGMENT

SURINDER SINGH NIJJAR, J.

1. This appeal is directed against the judgment of the

Madras High Court, Madurai Bench dated 7th

March, 2007 in Criminal Appeal (MD) No.821 of

1999 by which the High Court affirmed the

conviction and sentence recorded by the learned

Special Judge-cum-Additional District Judge-cum-

Chief Judicial Magistrate, Pudukottai in

Spl.C.C.No.1 of 1994. By the aforesaid judgment,

the Special Judge convicted the appellant for

1offences punishable under Section 7 and 13(2) read

with Section 13(1)(d) of the Prevention of

Corruption Act, 1988 (in short `the Act') and

sentenced him to undergo one year rigorous

imprisonment and to pay a fine of Rs.500/-, in

default of payment to undergo three months

rigorous imprisonment and convicted him for the

offence under Section 7 of the Act and sentenced

him to undergo six months rigorous imprisonment

and to pay a fine of Rs.300/-, in default of payment

to undergo one month rigorous imprisonment.

2. The prosecution case, briefly stated, is as follows :

The prosecution case as narrated by PW2, the

complainant, has been extensively noticed by the trial

court as also by the High Court. For the purposes of this

appeal, we may very briefly touch upon on the relevant

facts. The complainant PW2, Nayinar Mohammed, is a

resident of Pudukottai. His father is the owner of house

property at door No.36, Mamundi Madam, Adappan

2Vayal, Pudukottai. Since his father was seriously ill, he

needed Rs.75,000/- for his treatment. He approached a

financial institution for a loan. The institution asked him

to furnish property certificate and Municipality Tax

Extract of the house owned by his father. He gave a

petition through his friend Noorul Ameen on 17th August,

1993, with the requisite Rs.15/- court stamp affixed on

the same (Ex.P3). His friend paid Rs.15/- to the

Municipality and obtained a challan Ex.P4. PW4, who

was the writer in the record room, knew the accused and

made the necessary entry in the ledger at page No.40

on 19th August, 1994. The application of the complainant

was given as No.C.A.2650 of 1993. Similar entry was

made with regard to payment of Rs.15/- on 17th August,

1993 by the cashier of Pudukottai Municipality (PW6).

The payment was made through challan No.6789 (Ex.P4).

Govindrajan, PW5, was a Junior Assistant in the

Municipality compared the copy of the tax extract

No.2650 with the original and found the same to be

correct and put his signature. Ex.P7 is the signature of

3the aforesaid Junior Assistant.

3. When the complainant enquired about the progress

of the petition, the appellant informed him that the file

will only come to him on 23rd August, 1993. He

demanded a sum of Rs.50/- as a bribe from the

complainant for delivery of the tax extract which,

according to him, was ready for delivery. On that date,

the complainant did not have any money. In any event,

he was not inclined to give any bribe to the appellant.

He, therefore, made a written complaint to the Inspector

(PW8) Anti Corruption, Rajagopalapuram. The complaint

is Ex.P5. A case was duly registered by PW8 as Crime

No.4 of 1993 under Section 7 of the Act. The First

Information Report (Ex.P10) was duly signed by the

complainant. Thereafter, another Inspector in Anti

Corruption, Pudukottai recorded the statements

of PW2 and PW3 on 24th August, 1993. Similarly the

statements of PWs.4, 5, 6 and 7 were also recorded.

Information about the registration of the FIR was duly

sent to the higher officials.

4. Subsequently, a trap was arranged, wherein one

Sridhar (PW4) who was working as a Junior Assistant in

Pudukottai Public Works Department and one

Balakrishnan, Junior Assistant from Water Supply and

Drainage Board were engaged as trap witnesses. The FIR

was got duly verified from the witnesses. Thereafter, the

complainant produced five ten rupees notes totaling

Rs.50/- (M.O.1). The notes were duly treated with

Phenolphthalein Power. A demonstration was also given

to the complainant as to how the hands of anybody who

receives the aforesaid currency when washed in water

would turn red. Thereafter, PW8, the Inspector,

instructed the complainant to go to the office of the

appellant and hand over the amount.

5. On directions of the police, the complainant along

with the trap witnesses went to the office of the appellant

on 23rd August, 1993. He was directed to hand over the

money to the appellant and to give a signal by folding his

shirt. At about 3.15 to 3.30 p.m., the complainant and

5PW4 Sridhar went to the Municipality by cycle, they were

followed by other jeep.

6. At about 4 p.m. PWs.2 and 3 entered into the office

of the appellant and met him. The appellant received the

amount and put it in his pocket. At 1610 hrs., the

witness came out from the office and gave the necessary

signal by folding his shirt, as directed by PW8.

7. On receipt of the signal, PW8 along with the other

witnesses and police party went inside the office of the

appellant. They introduced themselves. The appellant

was found to be nervous and sweating. PW9 prepared the

Sodium Carbonate mixture in two glass tumblers and

asked the appellant to dip his two fingers separately into

the mixture. The mixture turned light red. The mixture

was poured into a bottle and duly labeled `R' (M.O.3).

Another sample was similarly prepared with label `N' and

marked (M.O.2).

8. He thereafter asked the appellant about the money

he has received from PW2 and the appellant took the

currency notes M.O.1 from his pocket and presented it

before PW8. On comparison, the numbers in the said

currency notes recovered from the appellant tallied with

the numbers mentioned in the mahazar Ex.P7. The

appellant was thereafter asked to remove his shirt

(M.O.5). The pocket of the shirt was also subjected to

Sodium Carbonate mixture test, and the solution turned

into light red colour. The solution was duly sealed in a

separate bottle as M.O.4 and given the label `S'. The

bottle was duly signed by PW8.

9. On completion of certain other formalities, the

appellant was arrested and released from bail

at 1930 hrs. On completion of the entire investigation,

the appellant was duly put on trial.

10. The trial court convicted the appellant and

sentenced him as noticed above. Aggrieved by the

7judgment of the trial court, the appellant challenged the

same before the High Court in appeal. The High Court

upon a detailed consideration of the evidence affirmed

the findings recorded by the trial court. Consequently,

the conviction and the sentence were confirmed. Hence

the present appeal.

11. We have heard the learned counsel for the parties.

12. Learned counsel for the appellant submitted that

the entire proceedings were vitiated, as previous sanction

to prosecute the appellant was not legally obtained as

required under Section 19 of the Act. The second issue

raised by the appellant is that there was no demand of

bribe made by the appellant. Thus the conviction

recorded by the courts below is perverse and deserves to

be set aside.

13. We may first consider the issue as to whether

sanction was duly obtained prior to the prosecution of

8 the appellant. It is the case of the appellant that the

order for sanction of the prosecution produced in this

case is signed by the Municipal Commissioner of

Pudukottai. According to him, a perusal of the same

would show that it suffers from non application of mind.

According to the learned counsel, the sanction order

must disclose that the sanctioning authority has duly

applied its mind and the same must be stated in the

sanction order. In support of this submission, learned

counsel has relied on a judgment of this Court in the

case of Jaswant Singh Vs. State of Punjab1.

Undoubtedly, in the aforesaid judgment, this court

observed as follows :-

"The sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness; Basdeo Agarwala v. King Emperor (1945) F.C.R. 93. The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. In Gokulchand Dwarkadas Morarka v. The King (1948) L.R. 75 I.A. 30 the Judicial Committee of the Privy Council also took a similar view when it observed : 1

[AIR 1958 SC 124]

9 "In their Lordships' view, to comply with the provisions of clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were plakhed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction."

It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. In Yusofalli Mulla Noorbhoy v. The King (1949) L.R. 76 I.A. 158 it was held that a valid sanction on separate charges of hoarding and profiteering was essential to give the Court jurisdiction to try the charge. Without such sanction the prosecution would be a nullity and the trial without jurisdiction."

14. Keeping in view the aforesaid statement of law, it

would not be possible to conclude that the sanction order

10 in the present case was not valid. Ex.P2 with the present

appeal is the copy of the sanction order. A perusal of the

same would show that the sanctioning authority has

adverted to all the necessary facts which have been

actually proved by the prosecution in the trial. Upon

examination of the material facts, the sanctioning

authority has certified that it is the authority competent

to remove the appellant from the office. It is specifically

stated that the statements of the witnesses have been

duly examined. Sanction order also states that the other

materials such as copy of the FIR as well as other official

documents such as the different mahazars were carefully

examined. Upon examination of the statements of the

witnesses as also the material on record, the sanctioning

authority has duly recorded its satisfaction that the

appellant should be prosecuted for the offences, as

noticed above. We, therefore, find no merit in the

submissions of the learned counsel that the sanctioning

order to prosecute the appellant was not legal.

15. We may also notice here that although the issue

with regard to the illegality attaching to the order of

sanction was raised before the trial court, it was not

raised before the High Court. The trial court, on

examination of the issue, also negated the submission of

the appellant about any illegality attaching to the

sanction order. Even though we do not have the benefit

of the opinion of the High Court as the appellant has not

raised issue with regard to the illegality of the sanction

order before the High Court, we are satisfied that the

sanction order has been issued in according with law.

16. Learned counsel for the appellant secondly

submitted that the judgment recorded by both the courts

below is contrary to the evidence on record. We have

examined the entire issue. We are of the considered

opinion that the trial court as well as the High Court

have analyzed the entire evidence and clearly held that a

demand was definitely made by the appellant for delivery

of the tax certificate. The trial court as well as the High

12 Court have made a reference to the evidence given by

PWs.2 and 3 who have categorically stated that the

demand was made by the appellant. No other point was

urged before us.

17. We may notice that the entire trap have been

meticulously orchestrated by the prosecution authority.

We are unable to discern any arbitrariness or

inconsistencies in the concurrent findings recorded by

the courts below. We find no merit in this appeal. The

appeal is dismissed.

...................................J. [B.Sudershan Reddy]

...................................J. [Surinder Singh Nijjar] New Delhi;

December 15, 2010.

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