K. Bhimiah, J.
1. This appeal is directed against the judgment passed by the Special Judge, Bellary, in Special Case No. 1 of 1974, convicting the appellant (to be hereinafter referred to as the 'Accused') for an offence under Section 5(1)(d) of the Prevention of Corruption Act (to be hereinafter referred to as the 'Act') read with Section 161 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- in default, to suffer rigorous imprisonment for three months.
2. The Accused was tried by the Special Judge on the following charge, which reads thus:
That you, on the 4th day of January, 1973, were working as Sub-Inspector of Police, Hospet Rural, that you were then a public servant and in your capacity as such, you accepted for yourself by corrupt means Rs. 500/- as illegal gratification from one B. Hulugappa, son of Nagappa, on a promise that you would not involve the said Hulugappa as an accused in Crime No. 72 of 1972 of Haspet Rural Police Station, and thereby committed criminal misconduct, an offence punishable under Section 5(1)(d) of the Prevention of Corruption Act, 1947, read with Section 161 of the Indian Penal Code....
3. Briefly the prosecution case is that the Accused was working as Sub-Inspector of Police in Hospet Rural Police Station. P.W. 11 Hulugappa is a resideat of a village called Ananthasayana Gudi, which is situate about 11/2 miles away from Hospet town, and within the jurisdiction of Hospet Rural Police Station, P.W. 11 is an agriculturist by profession. On a certain day in the month of October 1972, the Accused met P.W. 11 near the railway gate at Ananthasayana Gudi and gave him a ticket : for Rs. 50/- in connection with the celebration of All India Children's Day. P.W. 11 had no money and hence he told him that he would pay within two or three days. On 29-10-1972 there was a wrestling match in a maidan near Bellary Toll gate in Hospet town. The Accused met P.W. 11 in the wrestling match and asked him to come to the Rural Police Station at Hospet, P.W. 11 went and met the Accused at about 6 p.m. or 630 p.m. The Accused asked P. W 11 to pay him the amount of Rs. 50/- P.W. 11 paid him one currency note of 100 rupee denomination. The Accused asked P. W, 11 to see him the next day. On 30-10-1972 P.W. 11 went to the Hospet Rural Police Station at 8 a.m. or 8-30 a.m. At that time four persons, viz., Pompapathi, Mahaboob Sab, Imam Sab and Nagabhusana, were present in the Police Station, The accused told P.W. 11 that he had information that he (P. W, 11) was involved in the cheating case of Ananthasayana Gudi. P.W. 11 told him that he had nothing to do with the cheating case and that it may be inquired into. At that time, Pampapathi, the brother of fambanna, was also in the Police Station. Then the Accused told P.W. 11 that the four persons named above had been detained in the Police Station, as they were involved in the cheating case of Ananthasayana Gudi, and if they agree to pay Rs. 2,000/- each, as illegal gratification for their release, he would release them, and he wanted P.W. 11 to stand as surety for them and later arrange to collect the money from those persons and pay to him, otherwise, he (P.W. 11) would also be involved in that cheating case. P.W. 11 and P.W. 12 Meti Jambanna held consultations with those four persons and agreed to stand as surety for the release of those persons and assured the accused that they would collect the amount, as promised and pay to him. The accused released those four persons. P.W. 11 collected Rupees 1,960/- from Pompapathi, Rupees 1,700/- from Mahaboob Sab, Rs. 300/- from his own pocket and went to pay an amount of Rs. 3,960/- to the Accised. The Accused refused to receive that amount in piecemeal and asked P.W. 11 to get the entire amount of Rs. 8000/- and pay it to him in a lamp sum. On 31-10-1972 P.W. 11 met the Accused who asked him to take promissory notes from those persons who had not paid the amount and to pay the amount from his own pocket. Accordingly, P.W. 11 after obtaining the promissory notes from two persons, viz., Nagabhushana and Imamsab for Rs. 2,000/- each paid the entire amount to the Accused. The promissory notes were ante dated. On 3-11-1972 the accused secured P.W. 11 and brought him to Bellary. With his help, he got one Abdulla identified. The Accused took Abdulla and his driver, Bhakta, to Hospet. Three days thereafter, P. Ws. 11 and 12 accompanied the Accused to Bangalore where one Jani Sait paid Rs. 4,000/- to the Accused and promised to pay the remaining amount of Rs. 6,000/-. On 28-12-1972 P.W. 11 was proceeding towards Kampli on a motor cycle. The Accused came from the opposite direction on a motor cycle and met him (P.W. 11) at about 8 a.m. The Accused asked P.W. 11 to go to Hospet Rural Police Station and see him there. P.W. 11 pleaded his inability. Then the Accused asked him at least to come up to Kamalapur out post, Both of them went to Kamalapur out-post. There the Accused asked the constables to detain P.W. 11 and produce him before him in the Hospet Rural Police Station and went away to Hospet, P.W. 11 asked the police constables to take him to Hospet Rural Police Station. The constables had no conveyance. Therefore, they asked P.W. 11 himself to go and meet the Sub-Inspector (the Accused) in the Hospet Rural Police Station. They also warned P.W. 11 that he should not fail to meet the accused, as they would take action against them. P.W. 11 went to the Hospet Rural Police Station at about 10 a.m. The Accused called him to his chambers and told him that he (P.W. 11) had cheated one of his relations from Ilkal and had secured Rupees 10,000/- from them and that the party had sent a message to the G.I.D.Police at Belgaum and the C.I.D. Police were expected to arrive at Hospet. The Accused told P.W. 11 that he had obtained Rs. 5,000/- out of Rs. 10,000/- P.W. 11 denied the allegation. But the Accused detained P. W.11 in the police station near jamedar's seat, and was not allowed to stir out of the police station. The Accused again called P.W. 11 and told him that he should either face the prosecution or pay Rs. 5,000/-. It is alleged that in the evening the Accused assaulted P.W. 11 in the police station at about 10 p.m. He called him to his house and told him that all along he had maintained good relations with him and that it was not proper on his part to refuse to pay the amount which he had received from Ilkal party. He asked P.W. 11 to agree to pay him the money so that he might release him. P.W. 11 was detained for two days in the police station and ultimately P.W. 11 agreed to pay the money. He was released. On 30-12-1972 two constables went to call P.W. 11 at 6 a. m, P.W. 11 told them that he would meet the Accused after taking bath. He went to the police station at 9 a.m. and informed the Accused that his master had gone out of the village and that he could not get the money and assured the Accused that he would pay the money within three or four days. The Accused told him that he was under orders of transfer to Raichur and that P.W. 11 should, on any account, pay him the money within 5-1-1973 and that if he failed to do so, he would detain him in the police station and ultimately finish him, P.W. 11 agreed to pay the amount of Rs. 5,000/- to the Accused before 5-1-1973. P.W. 11 was allowed to go. On 30-12-1972 P.W. 11 went to Koppal and informed Mr. Veerupakshappa, a Member of the Legislative Assembly from Koppal, of the entire matter and sought his assistance. Mr. Veerupakshappa prepared an affidavit of P.W. 11, got it sworn before the Sheristedar in the Taluk Office at Koppal, and gave him a letter addressed to Mr. Dharam Rao Afzalpurkar, a Member of the Parliament from Gulbarga. A complaint was also got prepared and Veerupakshappa asked P.W. 11 to go to Gulbarga and hand over the complaint, affidavit and the letter to Mr. Dharam Rao Afzalpurkar. On 2-1-1973 P.W. 11 went to Gulbarga, met Dharam Rao Afzalpurkar and handed over the papers to him. Dharam Rao Afzalpurkar contacted the Deputy Inspector General of Police, P. W, 2 Mr. B.N. Garudaclxar, on phone and talked to him about P. W, ll's complaint P.W. 2 asked him to send P.W. 11 to him. P.W. 11 went and met P.W. 2 at Gulbarga and handed over the papers, Exts. P. 2 to P. 4, and complained to him that the Accused was demanding illegal gratification from Mm and threatening him that if he did not pay the amount, he (the accused) would involve him (P.W. 11) in a cheating case. P.W. 2 told P.W. 11 that he himself would go to Hospet and inquire into the matter and asked P.W. 11 to meet him on 3-1-1973 near Indira Bhavan cross. P.W. 11 waited there, but he could not meet P.W. 2 in the cross. At about 8.30 a.m. on 4-1-1973 P.W. 11 learnt that P.W. 2 was in the tourist home. He went and met P.W. 2 in the tourist home. P.W. 2 and P.W. 4 K, Srinivasa Alva, Superintendent of Police, Special Investigation Agency, Gulbarga, were present in the tourist home. P.W. 2 asked him whether he had brought the money. P.W. 11 told him that he had brought Rs. 500/-. P.W. 2 secured panchayatdars P.W. 7 Sekharaya P.W. 8 Ethirajahu Naklu and another person; received five currency notes of Rs. 100/- denomination each and showed the five currency notes to the panehayatdars, They were signed by P.W. 2 4, 7 and 8 and also one Khandeppa. The currency notes were handed over to P.W. 11 with instructions that he should offer the amount to the Accused if the Accused demanded. A panchanama, Ex. P. 5, was drawn up in this respect P.W. 11 went to the Hospet Rural Police Station and learnt that the Accused was not in the Police Station, He sent the sentry to bring the Accused to the police station. The Accused came to the police station, met P.W. 11 and asked him whether he had brought the money. P.W. 11 told him that he had brought the money and the Accused asked him to give the money to him. P.W. 11 gave five marked currency notes of hundred rupee denomination near an ahnirah. The accused took the currency notes and kept them in his right hand pant pocket Within a short time thereafter, P. Ws. 2, 4, 7 and 8 came to the police station. They got themselves searched and entered the office of the Accused P.W. 2 asked the Accused to take out all the contents in his pockets and place them on the table. Accordingly, the Accused took out all the things that were in his pant pockets and shirt pockets. He also produced a handker chief and five currency notes of hundred rupee denomination from his right side pant pocket He produced certain other currency notes which were in his shirt pocket and put them all on the table. These witnesses found the five signed currency notes produced by the Accused. P.W. 11 was. present there and when he was questioned he stated that he offered those signed notes when the Accused demanded bribe. A panchanaxna was drawn up as per Ex. P. 5A. Thereafter, P.W. 2 sent for the Deputy Superintendent of Police, Shivanna Gouda, P.W. 13, and gave a complaint, Ex. P. 6, against the Accused, P.W. 13 registered a case against the Accused for offences under Section 161, I.P.C. and Section 5(1)(d) and (c) of the Act in Crime No. 4 of 1973 of Hospet Town Police Station. He prepared the first information report and sent it to the Court of First Class Magistrate at Hospet and also to his official superiors. He produced the panchanama and the seized articles before the Magistrate and obtained permission to retain them for the purpose of investigation. P.W. 13 made a requisition to the First Class Magistrate at Hospet seeking sanction to investigate into the case The First Class Magistrate at Hospet accorded him permission and authorised him to investigate into the case. On 5-1-1973 P.W. 13 arrested the Accused and released him on bail. He examined several witnesses on different dates and got the sketch of the scene of offence drawn up. He wrote to Government through his official superiors to accord sanction for launching prosecution against the Accused and sent the case records along with the requisition. Government on 7-12-1973 accorded sanction to prosecute the Accused for offences under Section 161 I.P.C. and Section 5(1)(d) and (c) of the Act. On 23-1-1974 he submitted the charge sheet against the Accused to the Court of Special Judge at Bellary for the aforesaid offences. The case was registered in the Special Judge's Court in Special Case No. 1 of 1974. After going through the relevant papers, the learned Special Judge framed the charge already quoted above. It was read over and explained to the Accused. The Accused pleaded not guilty and claimed to be tried. Thereafter, 13 witnesses were examined for the prosecution to substantiate the charge against the Accused and 13 documents were marked. The statement of the Accused was recorded and no defence witness was examined.
4. Defence is one of denial. He stated that all the prosecution witnesses had falsely deposed against him. He further denied that he received five currency notes, M. Os. 1 to 5, from P.W. 11 : He has also denied that M. Os. 1 to 5 were found with him when he was searched in the police station, The Accused has stated that there was some transaction between himself and P.W. 11 in the third week of December 1972, regarding the sale of his motor cycle to P.W. 11 and in that connection, P.W. 11 had agreed to pay Rs. 500/- as advance, and that the Accused had told P.W. 11 that if the Government did not permit him to sell the motor cycle, he would return the advance amount with interest thereon. He has further stated that since he had registered a case in Crime No. 72 of 1972 against some persons who had been involved in a cheating case, in respect of doubling of currency notes, P.W. 11 had conspired with those persons and had filed a false complaint against him. He asserted that he was innocent and that he had not committed any offence.
5. The learned Special Kludge after assessing and appreciating the evidence produced by the prosecution found that the Accused was guilty of criminal misconduct thereby punishable under Section 5(1)(d) of the Act read with Section 161, I.P.C. and convicted and sentenced him as aforesaid.
6. Mr. A. Shamanna, learned advocate appearing for the Accused, firstly contended that the permission granted by the First Class Magistrate, Hospet, as per Ex. P. 12-A is not a speaking order, and, therefore, it was not a valid permission granted as required under Section 5-A of the Act. Secondly he contended that there is no sanction at all as required under Section 6 of the Act. Ex. P. 13, according to him, is only a communication of sanction and it did not contain the order of the Government according sanction for the prosecution of the Accused. Thirdly he contended that the evidence produced by the prosecution in connection with the acceptance of an illegal gratification of Rs. 8,000/- in respect of four persons alleged to have been detained by the Accused is irrelevant and inadmissible, and, therefore, he urged that the learned Special Judge is in error in relying upon such evidence while determining the guilt of the Accused for offences under Section 161 I.P.C. and Section 5(1)(d) of the Act. Fourthly he contended that the learned Special Judge is in error in raising the presumption under Section 5(1)(d) of the Act in determining the guilt of the Accused, Fifthly he contended that the evidence produced by the prosecution in respect of Ilkal affair is an after-thought and improvement in the prosecution case which was not found in the charge framed against the Accused, and the Accused was not liable to be convicted in respect of the allegations relating to Ilkal episode. Lastly he contended that the prosecution has miserably failed to establish the charge framed against the Accused in the course of the trial in the case.
7. The learned Government Pleader commended the evidence produced by the prosecution in support of the charge. He contended that the permission and sanction accorded by the First Class Magistrate and the Government have been in accordance with law. He fairly conceded that the evidence produced by the prosecution with regard to the incident connected with the alleged acceptance of bribe of Rs. 8,000/- is irrelevant and inadmissible in the case and no conviction could be based upon such evidence. However, he maintained that the prosecution has produced satisfactory evidence to show that the Accused threatened P.W. 11 to involve him in a cheating case in connection with Ilkal affair. He urged that the learned Special Judge has considered the evidence produced by the prosecution in respect of the charge against the Accused and that the findings given by the learned Special Judge and the conviction based upon such evidence do not call for interference by this Court. He also urged that any defect in the permission granted by the First Class Magistrate to investigate into the case is a curable defect and he maintained that the sanction accorded by the Government is valid and that it cannot be assailed.
8. Section 5-A (1)(d) of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898, no Police Officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under Section 161, Section 165 or Section 165-A of the Indian Penal Code or under Section 5 of this Act without the order of a Presidency Magistrate or a Magistrate of the First Class, as the case may be, or make any arrest therefor without a warrant.
9. It is clear from the above provisions that any officer below the rank of a Deputy Superintendent of Police is not entitled to investigate into the case of an offence under Section 161, I.P.C. or under Section 5 of the Act without the order of a Presidency Magistrate or a Magistrate of the First Class. P.W. 13 was holding a substantive post of a Police Inspector and was holding an independent charge of the office of Deputy Superintendent of Police in Hospet at the time when he conducted the investigation into this case on 5-1-1973. He, therefore, applied to the Magistrate as per Ex. P. 12. Later the First Class Magistrate granted permission to investigate into the case in Crime No. 4 of 1973 for offences under Section 16.1 I.P.C. and under Section 5(1)(d) and (c) of the Act as per Ex. P. 12-A.
10. The contention of Mr. Shamanna is that the order granting permission is not a speaking order and that the First Class Magistrate has not applied his mind to the facts of the case, and, therefore, he contended that the permission granted is not valid in law. In support of this contention, he relied upon the decision of the Supreme Court in State of Madhya Pradesh v. Mubarak Ali. : 1959CriLJ920 . In paragraph (6) of the judgment Subba Rao J., speaking for the Court, has observed as follows:.In that application the Sub-Inspector stated that he had been deputed to investigate the case and therefore permission might be given to him to do so under Section 5-A of the Act. On that application, the Magistrate passed the order 'permission given'. Neither the application nor the order made thereon discloses that any material was placed before the Magistrate on the basis of which he gave the permission. Ex facie it appears to us, just like it appeared to the High Court, that the Magistrate did not realise the significance of his order giving permission, but only mechanically issued the order on the basis of the application which did not disclose any reason, presumably because he thought that what was required was only a formal compliance with the provisions of the section. A request was made before the High Court that an opportunity should be given to the prosecution to enable them to produce the necessary evidence to support the order of the Magistrate. But the learned Judge of the High Court rightly did not accede to that belated request. We therefore, without any hesitation, agree with the High Court that the provisions of Section 5A of the Act have not been strictly complied with in this case.
11. In view of the principle of law enunciated by the Supreme Court it must be said that the order passed by the First Class Magistrate as per Ex. P. 12A does not strictly comply with the provisions of Section 5A of the Act The learned Government Pleader, however, contended that if there is any irregularity in the permission granted by the First Class Magistrate, it is a curable one which would not vitiate the trial. In support of this contention, he relied upon the decision of the Supreme Court in Khandu Sonu Dhobi v. State of Maharashtra AIR 1979 SC 958 : 1972 Cri LJ 593 wherein it has been held, in paragraph (11) of the judgment, as follows:. It is well established that where cognizance of a case has, in fact, been taken by the court on a police report following investigation conducted in breach of provisions of Section 5-A of the Prevention of Corruption Act, the result of the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. The underlying reason for the above dictum is that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the court to try the accused. Where, therefore, the trial of the case has proceeded to termination, the invalidity of the preceding investigation would not vitiate the conviction of the accused as a result of the trial unless the illegality in the investigation has caused prejudice to the accused.
12. Mr. Shamanna has not been able to show that the invalidity of the preceding investigation has brought about any miscarriage of justice. Therefore, though there is failure to strictly comply with the provisions of Section 5-A of the Act, the trial of the Accused has not been vitiated.
13. The next important contention of Mr. Shamanna is that the sanction accorded by the Government as per Ex. P. 13 is not a sanction at all as required under Section 6 of the Act. Section 6 of the Act reads thus:
6. (1) No court shall take cognisance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code, or under Sub-section (2) or subsection (3A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction.
(a)xx xx xx
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government.
(c)x x x x x x x
(2)x x x x x x x
(the other provisions of this section are omitted as unnecessary.)
14. It is not disputed that the Accused was employed in the police force in the State of Karnataka. It is also not disputed that he was not removable from his office except with the sanction of the State Government. Therefore, previous sanction of the State Government was necessary for the prosecution of the Accused in the case. The sanction, as contained in Ex. P. 13, reads thus:. With reference to your letter No. CRM. 2/BE(H)/73 dated Nil November 1973, on the above subject, I am directed to communicate the sanction of Government to prosecute the Police Sub-Inspector, Sri K.B. Mulla, now under suspension with effect from 4-1-1973, for the offences punishable under Section 161, I.P.G. and Section 5(1)(a), (d)(e) of the Prevention of Corruption Act.
The entire records and G.D. file sent under your letter No. CRM/2/BE(H)/73 dated 28-9-1973, are returned herewith, the receipt of which may please be acknowledged.
Action taken in the matter may be intimated to Government in due course.
15. Mr. Shamanna urged that Ex. P. 13 is only a communication of the sanction of Government and the prosecution has failed to produce the order of sanction which is prerequisite for the court to take cognisance of the charge. He urged that the provisions of Section 6 of the Act are not complied with and Ex. P. 13 cannot be taken notice of. He relied upon three decisions, one of Orissa High Court and two of the Supreme Court. In the decision of the Orissa High Court la State v. Biswanath Naik : AIR1952Ori220 just as in this case, only the communication of the sanction was produced before the Court. While dealing with that question, the Division Bench has observed, in paragraph (6) of the judgment, as follows:
(6) Learned Counsel for the appellant while supporting the grounds on which the learned Sessions Judge on appeal held the sanction to be invalid, has urged that the defect as regards the sanction in this case is much more fundamental. He points out that the letter Ex. 40 relied upon by the prosecution is not and does not purport to be itself the order of sanction of the Provincial Government, but is merely a letter intimating that the sanction of the Government has been granted. He further urges that in any case, if this letter Ex. 40 is intended to be. the only order of sanction, it is not in the requisite legal form and cannot therefore be taken notice of. After having considered the arguments on both sides, On this part of the case fully, we come to the conclusion that the argument of the learned Counsel for the defence must prevail. As has been stated already the previous sanction of the Provincial Government is a prerequisite for the Court taking cognizance of the present charge. Therefore, what has to be placed before the court is proof of that very order granting sanction and not proof of the fact that sanction had been granted. The sanction of the Provincial Government is an executive act of the said Government. The requirement being a statutory one, it must be given in the manner and expressed in the form authorized by the statutory provisions or regulations and no other.
16. I am in respectful agreement with the principle of law enunciated in. the above decision regarding the proof relating to the order of sanction.
17. In the instant case, according to the above decision, Ex. P. 13 is only a communication intimating sanction of Government and not proof of the fact that sanction was granted. Sanction is a prerequisite for the Court for taking cognisance of the offence against the Accused. It is totally absent in this case.
18. Mr. Shamanna relied upon two decisions of the Supreme Court as to the effect of want of proper sanction. In the decision in State of Rajasthan v. Tarachand Jain : 1973CriLJ1396 , while quoting the order of sanction issued by the Government of Rajasthan in paragraph (2), the Supreme Court has observed in paragraph (18) of the judgment as follows:
18. The question of sanction was dealt with by the Judicial Committee in the case of Gokulchand Dwarkadas Morarka v. The King . That case related to a sanction under Clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943 which provided that no prosecution for the contravention of any of the provisions of the Order would be instituted without the previous sanction of the Provincial Government. The Judicial Committee in this context observed:
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 placed before the sanctioning authority.The principle laid down above holds good for the purpose of sanction under Section 6 of the Prevention of Corruption Act (see Madan Mohan Singh v. State of Uttar Pradesh : AIR1954SC637 ). Let us now apply the principle laid down above to the facts of the present case. It is no doubt true that no independent evidence was led by the prosecution to prove that the relevant facts had been placed before the Chief Minister before he accorded sanction but that fact, in our opinion, introduces, no fatal infirmity in the case. Sanction P-34 has been reproduced earlier in this judgment and it is manifest from its perusal that the facts constituting the offence have been referred to on the face of the sanction. As such, it was not necessary to lead separate evidence to show that the relevant facts were placed before the Chief Minister. The evidence of Umraomal shows that the formal sanction P-34 filed in the court bears the signature of Sri R.D. Thapar, Special Secretary to the Government. The fact that the Chief Minister signed the sanction for the prosecution on the file and not the formal section produced in the Court makes no material difference. It is, in our opinion, proved on the record that the sanction for the prosecution of the accused had been accorded by the competent authority after it had duly applied its mind to the facts of the case.
19. It is clear from the decision of the Supreme Court that principle of law laid down by the Judicial Committee in has been held good for the purpose of sanction under Section 6 of the Act. No particular form of sanction is laid down in Section 6 of the Act. 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 placed before the sanctioning authority since the sanction is given in respect of the offence charged. The facts constituting the offence charged are not shown in Ex. P. 13. No extraneous evidence that those facts were, in fact, placed before the sanctioning authority is adduced by the prosecution in this case.
20. However, the learned Government Pleader contended that Ex. P. 13 refers to the entire records and CD file sent by P.W. 13 to the Government through the Inspector General of Police, State of Karnataka, and relied upon the subject stated therein. He urged that the sanctioning authority had the entire records and the case diary in the case, and, therefore, there is sufficient compliance with the provisions of Section 6 of the Act. It is not possible to accept his contention. The document authorising sanction should reveal, on the face of it, the facts of the case to which the sanctioning authority applied its mind. Such is not the case in Ex. P. 13, It was open to the prosecution to adduce extraneous evidence to show that the facts of the case had been placed before the sanctioning authority. The prosecution, in this case, has failed to examine the Under Secretary to Government, Home Department, under whose signature Ex. P. 33 was sent to the Inspector General of Police State of Karnataka, communicating the sanction of Government to prosecute the accused in this case. Nor have they produced the letter No. CRM. 2/BE(H)/73 dated nil November 1973, to show that it contained all the facts of the case to enable the sanctioning authority to apply its mind before passing the order of sanction. As rightly contended by Mr. Shamanna, Ex. P. 13 is only a letter communicating the sanction of Government and it cannot be said that Ex. P. 13 is the order of sanction. There is no sanction for the prosecution of the Accused proved in this case.
21. What is the effect of want of sanction of an infirmity for the prosecution of the Accused is laid down by the Supreme Court in Raghubir Singh v. State of Haryana : 1974CriLJ1062 . In paragraph (6) of the judgment, the Supreme Court has observed as follows:
6. Two decisions were pressed before us by Shri Frank Anthony. The first, Vinayak, V; Joshi v. State is easily distinguishable. There, a Divisional Medical Officer who was of equal status with a Divisional Personnel Officer granted sanction but he had no delegation of powers of appointment which only the latter enjoyed. Mere equality of official status with a delegate cannot clothe the other officer with delegated powers and so in that decision it was held that the Medical Officer's sanction was incompetent, there being no delegation in his favour. The other ruling of the Rajasthan High Court, Sudarshanlal Bajaj v. S.P. Agarwala AIR 1966 Raj 37 has no application whatsoever. In these circumstances, we have no hesitation in rejecting the plea of the illegality of the sanction. Counsel is certainly right that if there is infirmity in the sanction, the prosecution must fail....
22. In view of the ratio of the decision of the Supreme Court, the effect of want of proper sanction in the instant case is that the prosecution case must fail.
23. Now turning to the merits of the case it is necessary to examine whether the prosecution has satisfactorily established the charge as framed against the accused. The gravamen of the charge against the Accused is that he in the capacity of a public servant accepted by corrupt means Rs. 500/- as illegal gratification from P.W. 11 on the promise that he would not involve him (P.W. 11) as an accused in Crime No. 72 of 1972 of Hospet Rural Police Station, and thereby he was guilty of criminal misconduct for offence punishable under Section 5(1)(d) of the Act read with Section 161, I.P.C
24. In order to substantiate this charge the prosecution has adduced evidence to prove that on a prior occasion the accused had accepted illegal gratification in connection with the release of four persons, namely, Pompapathy, Mahboob Sab, Imamsab and Nagabhushana. It is the prosecution case that Ananthasayana Gudi case was registered on 5-11-1972! The alleged acceptance of bribe by the accused with the help of P.W. 11 was prior to 3-11-1972. Therefore, Mr. Shamanna contended that the evidence produced by the prosecution with regard to the alleged acceptance of previous bribes by the accused is wholly irrelevant and inadmissible in the case. This Court, dealing with a similar point in M.M. Gandhi v. State of Mysore AIR 1960 Mys 111 : 1960 Cri LJ 934, has, in paragraph (4) of the judgment observed as follows:.We are of the view that it would not be correct to say that the evidence relating to the previous incidents either formed the foundation for the subsequent incident of 7-4-1955 or would be relevant for showing that the taking of the bribe on 7-4-1955 had developed through various stages. In the case of Om Prakash v. State of U.P. : 1957CriLJ575 , the Supreme Court while pointing out the distinction between Sections 5(1)(a) and 5(1)(b) of the Prevention of Corruption Act on the one hand, and Sections 161 and 162 of the Penal Code on the other, has Stated at page 464, that while a course of conduct can be proved when a person is arraigned under Sections 5(1)(a) and 5(1)(b), such a course of conduct is impossible to be let in evidence when an offence under Sections 161 and 162 is being enquired into or tried.
Nor would it be correct to take the view that the evidence in regard to the previous bribes is in the nature of introductory evidence forming a background to the later incident which alone is the subject-matter of the charge. In somewhat similar circumstances, the Bombay High Court refrained from referring to the previous events which formed the background for the later incident to which alone the charge related. (Vide para 6 of Ramchand Tolaram v. The State : AIR1956Bom287 Evidence in regard to previous incidents not mentioned in the charge, has the danger of creating prejudice against the accused, while it is no proof of the particular offence which is the subject-matter of the charge.
26. In view of the decision of this Court the evidence relating to previous incidents did not form the foundation for the subsequent incident, nor they were relevant for showing that the acceptance of bribe on 5-1-1973 had developed through various stages. It is impermissible to let in such a course of conduct when an accused is tried for offences under Sections 161, 162, I.P.C and Sections 5(1)(d) of the Act, especially when the previous incidents are not mentioned in the charge although it is permissible when the accused is tried for offences under Section 5(1)(b) and (c) of the Act. Therefore, the evidence of P. Ws. 11 and 12 to prove that the accused accepted bribe prior to the registration of the case in Ananthasayana Gudi cheating case is irrelevant and it cannot be looked into, while considering the charge framed against the accused in the trial of this case. 26. In the charge, as already stated above, it is stated that the accused accepted illegal gratification of Rs. 500/- on the promises that he would not involve P.W. 11 in Crime No. 72 of 1972 of Hospet Rural Police Station, This Crime No. 72 of 1972 related to Ananthasayana Gudi cheating case and was registered on 5-11-1972 on a complaint made. The evidence produced by the prosecution shows that Pompapathi, Mahaboobsab, Imamsab except Nagabhushana, were not the accused in that case. Actually, the accused in that crime were Abdulla, Anwar, Bhaktavathsalam and Nagabhushana. The prosecution has not produced any evidence to show that P.W. 11 was alleged to have been involved in the cheating case of Ananthasayana Gudi at any stage of the investigation of the case in Crime No. 72 of 1972, and that the accused had promised that P.W. 11 would not be involved in that case. P.W. 11 has not stated in his affidavit Ex. P. 4, nor in his complaint Ex. P. 3, that the accused ever threatened or tried to involve him (P.W. 11) in Crime No. 72 of 1972 and secure illegal gratification from him. Even in the complaint Ext. P. 6 filed by P.W. 2 there is no reference to Crime No. 72 of 1972 that any attempt was ever made by the accused to involve P.W. 11 in that case. In the evidence produced by the prosecution, the material relating to the acceptance of previous bribe has been brought on record and there is no evidence to show that the accused ever tried to involve P.W. 11 in Crime No. 72 of 1972, or that he gave any assurance to him that he would not involve P.W. 11 in the crime if a gratification of either Rs. 500/- or Rupees 5,000/- was given to him. Crime No. 72 of 1972 was registered on 5-11-1972 and the question of involving P.W. 11 in that case did not arise before the end of October 1972.
27. The prosecution at the stage of trial, after realising the mistake with regard to the evidence collected against the accused about the previous acceptance of bribe, has shifted its stand by introducing evidence of another case known as Ilkal cheating case'. Firstly, there is no reference to Ilkal cheating case in the charge framed against the accused, nor Ilkal cheating case was the subject-matter of Crime No. 72 of 1972 of Hospet Rural Police Station. For the first time, at the trial, P.W. 11 has been made to give evidence in respect of Ilkal case. P.W. 11 has stated that the accused told him that he had information that he had secured Rs. 10,000/- from his relation at Ilkal for doubling currency notes and that he (P.W. 11) took Rs. 5,000/- and gave another Rs. 5,000/- to one Abdulla of Bangalore and thus cheated a relation of the accused. He has further stated that the Accused told him that he (P.W. 11) should give that amount to the accused, or otherwise, the accused would put up a case against him (P.W. 11) and keep him under custody. P.W. 11 told the accused that he had not done so and that he might call the concerned person and ask him about it in his presence. The accused told him that he had sent a jeep to Ilkal to get the concerned party and had sent message to the C.I.D. Police at Belgaum and they would arrive at any time, and so saying, the accused detained P.W. 11 near the Jamedar's seat in the Police station and was not allowed to go out. He has furtheron stated that he was detained on 28th and 29th December 1972 and he was released only when he agreed to pay the sum of Rs. 5,000/-. P.W. 11 was again sent for on 30-12-1972 through a constable and he went and met the accused after taking bath and told him that his master was not at home and that he would secure the money in about three or four days time and pay. Thereafter, he went to Koppal, met one Veerupakshappa, M.L.A, took a letter from him as per Ex. P. 2, got Exts. P. 3 and P. 4 prepared at Koppal, proceeded to Gulbarga and met Mr. Dharam Rao Afzalpurkar, a Member of Parliament, who sent P.W. 11 to P.W. 2 at Gulbarga. As already stated, in none of these exhibits there is any reference to Ilkal affair by P.W. 11. But, a new case has been made out by the prosecution against the accused at the trial. P.W. 11 has stated thus in the course of his cross-examination:. I do not remember whether I told the D.I.G. (P.W. 2) that the accused had detained him on 29-12-1972. I did not tell the Dy. S.P. (P.W. 13) that the accused asked me to pay Rs. 5,000/- as bribe in connection with Ilkal matter. I have not told about the Ilkal matter to the D.I.G. (P.W. 2) mentioning that the accused demanded Ms. 5,000/- as bribe, I have not mentioned in Ext P. 4 that the accused asked me to pay him Rs. 5000/- in connection with a definite propose.
28. These answers elicited in his cross-examination clearly reveal that his evidence relating to Ilkal affair is an after-thought and an improvement in the prosecution case just to involve the accused somehow or the other. The learned Special Judge while dealing with Ilkal affair has observed in paragraph (28) of the; judgment thus:.It was also the contention of the defence that Ilkal affair had absolutely nothing to do and was a got-up story. It may be that Ilkal affair may be a myth. But the fact remains that the accused wanted to say something to P.W. 11 to put him under fear and extract some money from him. That was why the accused told P.W. 11 that he had learnt that P.W. 11 had cheated some man of Ilkal and had knocked off money and Ilkal man had complained to the C.I.D. Police at Belgaum and Belgaum Police were expected to arrive to investigate into the matter. These were all matters invented by the accused only to put P.W. 11 under fear, so that he may pay him some money.
29. The learned Special Judge thinks that Ilkal case is a myth. But, at the same time, he concludes that the fact remains that the accused wanted to say something to P.W. 11 to put him under fear and extract some money from him and it was the intention of the Accused. These conclusions reached by the Special Judge, I should say, are the result of want of proper judicial scrutiny of the evidence of P.W. 11 and other evidence in the case with reference to the charge against the accused. These conclusions are not warranted by the state of evidence in the case. They are beside the charge for which the accused was tried and there is total absence of charge in respect of Ilkal affair, Therefore, the accused cannot be punished for a case which was not set out in the charge and which projected at the stage of the trial. Thus, there is absolutely no evidence at all produced by the prosecution to prove the charge as framed against the accused. There is not an iota of evidence to show that the accused, at any stage, had demanded illegal gratification to show favour to P.W. 11 by not involving him in Crime No. 72 of 1972. Therefore, the prosecution has miserably failed to prove the charge framed against the Accused.
30. The learned Government Pleader, however, contended that the prosecution has produced clinching evidence to show that the accused accepted five signed hundred rupee currency notes from P.W. 11 and that evidence by itself, is sufficient to prove the charge for an offence under Section 5(1)(d) of the Act. It is not possible to accept his contention. The definite charge against the Accused is that he accepted the bribe of Rs. 500/- on a promise that he would not involve P.W. 11 in Crime No. 72 of 1972.
31. According to the prosecution, the Accused as a Sub-Inspector of Police, abused his position and by corrupt and illegal means obtained pecuniary advantage for himself of Rs. 500/- from P.W. 11 only to show a favour in not involving P. W, 11 in Crime No. 72 of 1972. When the prosecution has failed to prove that part of the case, the fact that five hundred rupee signed currency notes were recovered from the possession of the Accused, cannot, by itself, establish an offence under Section 5(1)(d) of the Act. It is in the evidence of P.W. 2 that when five hundred rupee currency notes were recovered from the Accused, the Accused gave an explanation that he had taken a loan from P.W. 11. In the course of his statement under Section 311 Criminal P.C., he has also stated that P.W. 11 had agreed to buy his motorcycle and that he was to give him an advance of Rs. 500/- which would be returned to P.W. 11 with interest thereon if the Government had not accorded permission for the sale of his motor cycle to P.W. 11. Even assuming that the Accused received five hundred rupee currency notes from P.W. 11 in the Police Station, that cannot be attributed to his having received any pecuniary advantage from P.W. 11 by corrupt or illegal means or otherwise abusing his position as a public servant, The explanation offered by the Accused cannot be rejected as unreasonable. Since the prosecution has failed to prove the case against the Accused, his explanation accords with the circumstances stated by the Accused for the presence of five hundred rupee currency notes in his pant pocket.
32. P.W. 11 appears to be an unreliable and untrustworthy witness. On a careful reading of his evidence, one gets the impression that he was hand in glove with persons who were indulging in currency cheating case. The accused might have been hard on such persons. Possibility of P.W. 11 conspiring with those who were involved in cheating cases and filing of a false complaint against the Accused cannot be ruled out, especially in View of the fact that the Accused completed investigation in Ananthasayana Gudi cheating case with promptitude before he handed over charge on 5-1-1973 having registered it on 5-11-1972.
33. Even assuming that the prosecution has proved that the Accused did receive Rs. 500/- from P.W. 11 a presumption under Section 4, with reference to an offence under Section 5(1)(d) of the Act, cannot be raised as Section 5(1)(d) is completely excluded from the provisions of Section 4 of the Act. Viewed from any angle, it is not possible to come to the conclusion that the prosecution has brought home the guilt to the Accused. The learned Special Judge has been carried away by the evidence of previous bribe and has wrongly accepted the evidence relating to the Ilkal affairs, while reaching the conclusion that the Accused is guilty of an offence punishable under Section 5(1)(d) of the Act read with Section 161 I.P.C. The conviction and sentence passed against the Accused, are. therefore, not sustainable.
34. For the reasons stated above, this appeal is allowed; the conviction and sentence passed against the Accused by the Special Judge, Bellary, in Special case No. 1 of 1974, are hereby set aside; and the Accused is acquitted. His bail bond, if any, stands discharged.