State Of M.P vs Harishankar Bhagwan Pd. Tripathi

acquittal passed by the First Additional Sessions 2

Judge and Special Judge, Shahdol, in Special Case

No.5/87, acquitting the Respondents in respect of

offences punishable under Section 161 of the Indian

Penal Code (I.P.C.) and Section 5(1)(d) read with

Section 5(2) of the Prevention of Corruption Act,

1947, hereinafter referred to as the "1947 Act".

3. According to the prosecution case, the

complainant, Ramavtar, submitted an application in

the Office of the District Excise Officer, Shahdol,

for a licence to collect Mahua. At that time,

Ghanshyamdas @ G.D. Sharma had been serving as

Special Inspector, Excise and the sole Respondent

herein, Harishankar Bhagwan Pd. Tripathi, was

serving as a Clerk in the said establishment. The

complainant, Ramavtar, claimed to have deposited a

sum of Rs.200/- for the licence fee in the State

Bank and upon inquiry from the said Ghanshyamdas,

he allegedly demanded a sum of Rs.2000/- from the 3

complainant as illegal gratification for getting

the licence. Eventually, a written complaint was

made by Ramavtar to the Lokayukt (Rewa) of the

Special Police, Rewa, which was received by the

Deputy Superintendent of Police on 04.06.1986.

4. At this juncture, it may be noted that

Ghanshyamdas, who had been made the Respondent No.1

in the Special Leave Petition, died during the

pendency of the petition and the proceedings

against him have, therefore, abated.

5. Once the written complaint was made, the Office

of the Special Police Establishment arranged for a

trap and 20 currency notes of Rs.100/- denomination

each were treated with phenolphthalein powder and

were kept in the right pocket of the kurta worn by

Ramavtar. He was directed to hand over the treated

currency notes to Ghanshyamdas and was also 4

cautioned against touching the currency notes

before they were handed over to Ghanshyamdas.

6. According to the prosecution case, the notes in

question were handed over by the complainant,

Ramavtar, to Ghanshyamdas, who kept 18 of the notes

with himself, while giving two of the notes to the

sole Respondent, Harishankar. Immediately

thereafter, on being given a pre-arranged signal,

the trap party came inside and apprehended both the

Respondents. Their hands were washed with a

solution of Sodium Carbonate, upon which the water

turned pink in colour. A charge-sheet was

submitted before the Special Judge, who, after

going through the charge-sheet, framed charges

against the accused punishable under Section 161

I.P.C. and also Section 5(1)(d) read with Section

5(2) of the Prevention of Corruption Act, 1947.

The trial Judge acquitted the Respondents not on 5

the ground that the prosecution had failed to prove

its case, but upon holding that the sanction which

had been accorded for the prosecution of the

accused, was improper and had been given without

application of mind. Though, the learned Special

Judge found the trap to have been proved, he

acquitted the Respondents on the ground that the

sanction to prosecute the accused had been granted

without application of mind.

7. Aggrieved by the judgment of acquittal passed

by the learned Special Judge, the prosecuting

agencies filed Criminal Appeal No.294 of 1994

before the Jabalpur Bench of the Madhya Pradesh

High Court, which, by its judgment and order dated

31st March, 2008, reiterated the findings of the

trial Court and dismissed the appeal upon holding

that the sanction accorded by the State Government

under Section 6 of the Act suffered from non- 6

application of mind, since in the sanction order

only the facts of the prosecution case had been

mentioned and no reason had been given for

according sanction in regard thereto. In the

absence of a valid sanction, the High Court dropped

the proceedings against Ghanshyamdas, against whom

the appeal has abated. As far as the sole

Respondent, Harishankar Bhagwan Prasad Tripathi, is

concerned, the High Court held that in the absence

of any demand made by the said Respondent, the

provisions of Section 5(1)(d) of the 1947 Act were

not attracted and even the recovery of Rs.200/-

from Harishankar was not sufficient to hold him

guilty of the charges levelled against him. The

High Court, accordingly, dismissed the appeal as

against the sole Respondent, Harishankar.

8. Ms. Vibha Datta Makhija, learned Advocate

appearing for the Appellant, State of Madhya 7

Pradesh, took us to the order dated 9th February,

1987, according sanction under Section 6(1)(c) of

the Prevention of Corruption Act, 1947, to initiate

prosecution against Ghanshyamdas and Harishankar

for the offences punishable under Section 161

I.P.C. and Section 5(1)(d) read with Section 5(2)

of the Prevention of Corruption Act, 1947, and the

other Acts for the time being in force in this

connection. Learned counsel pointed out that the

facts of the case, as would appear from the records

maintained by the Office of the Lokayukt, had been

clearly set out and a satisfaction was also arrived

at from the facts as recorded and from the perusal

thereof, that prosecution was required to be

initiated against both the accused in a Court of

law. Ms. Makhija submitted that the trial Court

had wrongly held that no valid sanction for

prosecution had been proved, inasmuch as, the same 8

was proved by Shri R.N. Singh, the Superintendent

of Police, Lokayukt Office (PW-5). Ms. Makhija

submitted that the learned Courts below had erred

in acquitting the Respondents only on the said

ground after having found them to be guilty of the

offence with which they had been charged.

9. Placing reliance on the judgment of this Court

in State of Maharashtra vs. Ishwar Piraji Kalpatri

& Ors. [(1996) 1 SCC 542], Ms. Makhija submitted

that this Court had held that while according

sanction there was nothing in law which required a

statement to be made by the Sanctioning Officer

that he had personally scrutinized the file and had

arrived at the required satisfaction. The statement

made by the Sanctioning Authority that it had fully

examined the material before it and after

considering all the facts and circumstances

discussed therein was satisfied that a prima facie 9

case was made out against the accused person and

that it was necessary in the interest of justice to

prosecute him in the Court, indicated that the

material on record had been examined by the officer

concerned who had applied his mind before according

sanction. Reference was also made to the decision

of this Court in C.S. Krishnamurthy vs. State of

Karnataka [(2005) 4 SCC 81], where in a similar

situation where grant of sanction had been

questioned, this Court held that the sanction order

should speak for itself and in case the facts do

not so appear, it must be proved by leading

evidence that all the particulars were placed

before the Sanctioning Authority for due

application of mind. If the sanction order itself

is eloquent enough, then in that case only formal

evidence has to be led by the Sanctioning Authority

or any other evidence to prove that the sanction 10

had been accorded by a competent person upon due

application of mind.

10. Ms. Makhija submitted that having regard to the

above, the sanction order was sufficiently clear to

indicate that the Sanctioning Authority had applied

its mind to the records of the office of the

Lokayukt while granting sanction for prosecuting

the two accused persons.

11. In view of the death of the Respondent No.1,

Ghanshyamdas, during the pendency of the appeal,

Ms. Makhija's submissions were opposed on behalf of

the remaining Respondent, Harishankar Bhagwan

Prasad Tripathi, and the submissions made before

the trial Court as well as the High Court, were

reiterated by Mr. Kuldip Singh, learned Advocate.

In addition, it was once again emphasized that the

sole Respondent had not made any demand for illegal 11

gratification, nor was any evidence led by the

prosecution to make out such a case against him.

On the other hand, except for the fact that a sum

of Rs.200/- from out of the treated notes had been

recovered from his possession, there is nothing

else to indicate that he was in any case involved

in the conspiracy to obtain bribe for grant of

excise licence. Learned counsel urged that in such

circumstances, the sole Respondent had been rightly

acquitted by the Courts below.

12. Having carefully considered the submissions

made on behalf of the respective parties, we are

unable to agree with the reasoning of both the

learned Special Judge as also the High Court in

dismissing the case of the prosecution on the

ground that proper sanction had not been obtained

to prosecute the accused persons. Both the Courts

have come to an erroneous finding that although the 12

trap which had been laid had been proved, the

circumstances in which a sum of Rs.200/- was

recovered from the sole Respondent, had not been

properly considered. No attempt has been made by

the defence to explain as to how the tainted

currency came to be in the possession of the sole

Respondent, except for the statement that the same

had been handed over to him by Ghanshyamdas.

Unless there was an understanding between the sole

Respondent and Ghanshyamdas, since deceased, there

can be no reason for Ghanshyamdas to have given the

sole Respondent a part of the money which he had

received by way of illegal gratification.

13. Even with regard to the grant of sanction, it

is quite clear that the records of the Lokayukt's

Office had been examined by the Principal

Secretary, Government of Madhya Pradesh, while

granting such sanction for prosecution. As has 13

been indicated by this Court in Ishwar Piraji

Kalpatri's case (supra), while granting sanction

the officer concerned is not required to indicate

that he had personally scrutinized the file and had

arrived at the satisfaction for granting sanction.

The narration of events granting sanction for

prosecution clearly indicates the case and the

reason for grant of such sanction. In the present

case also the order granting sanction does not, in

our view, suffer from any infirmity which prompted

the Courts below to acquit the accused persons.

14. This appeal, accordingly, succeeds. The order

of the learned Special Judge, Shahdol, dated 19th

May, 1993 in Special Case No. No.5/87, acquitting

the accused of the charges framed against them

under Section 161 I.P.C. and Section 5(1)(d) read

with Section 5(2) of the 1947 Act and the judgment

of the Madhya Pradesh High Court dated 31st March, 14

2008 in Criminal Appeal No.294 of 1994 are hereby

set aside. The appeal is, therefore, allowed and

the matter is remitted to the learned Special

Judge, Shahdol, for passing appropriate orders on

the merits of the case.

................................................J. (ALTAMAS KABIR)

................................................J. (A.K. PATNAIK) New Delhi Dated: 13.08.2010