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Md. Tafazul Rahman Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1985CriLJ1971
AppellantMd. Tafazul Rahman
RespondentState of Orissa
Cases ReferredBaikunthanath Mohanty v. State of Orissa
Excerpt:
.....both oral and documentary, as well as the indisputed facts, the only conclusion that can be arrived at is that the intention of the appellant in accepting the sum of rs. therefore, he clearly committed an offence of forgery by falsely making part of a document with the intent that p. the aforesaid act came clearly within the meaning of section 463, punishable under section 465 i. 16. i have perused the relevant papers and after being satisfied i have given the sanction order. 10, the superintending engineer quoted above clearly discloses non-application of mind. it is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after he was satisfied that a case for sanction has-been made constituting the offence. any case without a..........10, the superintending engineer quoted above clearly discloses non-application of mind. when he gave evidence he did not remember as to on the basis and on consideration of which material documents he gave sanction for prosecution. on the other hand, it discloses that he was asked to sign the draft sanction order (ext. 16) and he did so. it was expected of p.w. 14, the inspector of vigilance who submitted charge-sheet against the appellant and obtained the sanction order from p.w. 10 to have stated the material documents which were placed before p.w. 10 for obtaining the sanction order. unfortunately except a general statement that all materials were placed before the superintending engineer he did not state the details thereof. such evidence will give rise to the only conclusion.....
Judgment:

K.P. Mohapatra, J.

1. In this appeal challenge is to the Order passed by the learned Special Judge (Vigilance), Sambalpur convicting the appellant under Sections 161,465 and 477A of the Indian Penal Code ('I.P.C.' for short) and under Section 5(2). read with Section 5(l)(d) of the Prevention of Corruption Act (hereinafter referred to as the 'Act') and sentencing him to undergo rigorous imprisonment for one year for each offence with a further direction that the sentences shall run concurrently.

2. The prosecution case may be stated in brief. The appellant was a public servant employed as the Stenographer of the Superintending Engineer, P.W.D. (R & B), Sambalpur. P.W. 12 Manoranjan Patnaik was a Contractor who had submitted an application in the office of the Superintending Engineer for registration as a 'D' class Contractor. On 3-8-1976 he met the appellant and made a specific request for registration because, the appellant was dealing with such matters. The appellant told that a sum of Rs. 50A would have to be deposited under challan as application fee and accordingly P.W. 12 gave a sum of Rs. 50A to the appellant for the said purpose. He also gave another sum of Rs. 5A to him for despatching the registration order in his Rourkela address. On 10-8-1976 P.W. 12 again came down to Sambalpur and met the appellant. The appellant told him that the registration certificate was ready for delivery and on payment of a bribe of Rs. 120A to him the same would be delivered. On 11-8-1976 P.W. 12 reported the above incident to the Superintendent of Police (Vigilance), Sambalpur and made a report (Ext. 17). The report was treated as F.I.R. and a trap was arranged. In accordance thereof P.W. 12 met the appellant while he was coming from his residence to the office. The appellant demanded the bribe of Rs. 120A whereupon P.W. 12 delivered to the appellant two 50 rupee G.C. notes and two 10 rupee G.C. notes which had earlier been treated with phenojphthalein powder. The appellant received the G.C. notes and kept them in his shirt pocket. At that time, on pre-arranged signal, the raiding party consisting of two independent persons Mangaturam Sarma (P.W. 5), Jagajivan Parmal (P.W. 7) and the Vigilance Officers led by the Investigating Officer (P.W. 13) appeared at the scene and demanded the currency notes which the appellant had just accepted from P.W. 12. The appellant produced the same and on production thereof the G.C. notes (M.Os. II to V) were seized by seizure list (Ext. 10). The hands and the shirt pocket of the appellant were washed with sodium carbonate solution and on account of the effect of the phenolphthalein powder the solution became pink. The appellant became nervous. In course of investigation, the specimen writings of the appellant were sent for examination by the Government Handwriting Expert in order to determine whether the name of P.W. 12 had been interpolated in the certificate of registration (Ext. 6). It was found that the appellant had interpolated the name of P.W. 12 in Ext. 6 although the Superintending Engineer had not passed any order for registering P.W. 12 as a 'D' class Contractor. After close of investigation, all material documents were placed before the Superintending Engineer (P.W. 10) who by order (Ext. 16) sanctioned prosecution of the appellant. Thereafter charge-sheet was submitted in this case.

3. The appellant denied the charges brought against him and pleaded that despite his protests and against his will, P.W. 12' forcibly gave the G.C. notes and at that point of time the members of the raiding party appeared at the scene and demanded the G.C. notes. He stoutly denied that he had accepted the amount of Rs. 120/- as illegal gratification from P.W. 12. The learned Special Judge (Vigilance) believed the prosecution case, disbelieved the appellant's defence and found that the appellant had demanded illegal gratification of Rs. 120/- from P.W. 12 and accepted the said amount from him as such. He had further committed forgery of official records. Accordingly he found that the appellant guilty of the charges framed, convicted him thereunder and imposed the sentence as already referred to above.

4. The following facts are not disputed. The appellant was a public servant and was employed at the relevant time as the Stenographer to the Superintending Engineer, P.W.D. (R & B), Sambalpur. He was entrusted with the work of registration of 'D' Class Contractors. On 11-8-1976 the G.C. notes (M.Os. II of V) were recovered from his shirt .pocket on being given by P.W. 12. Soon thereafter the hands and the shirt pocket of the appellant were washed; with sodium carbonate solution and the solution became pink, because, while arranging the trap phenolphthalein powder was applied to the G.C. notes. The name of P.W. 12 was written by the appellant in his own handwriting in the registration certificate (Ext. 6).

4A. Learned Counsel appearing for the appellant raised two contentions. First, the appellant did not demand a bribe nor did he accept the sum of Rs. 1207- from P.W. 12 as illegal gratification; As a matter of fact P.W.' 12 forcibly gave the sum of Rs. 120/- despite the appellant's protest and against his will. Second, the sanction order (Ext. 16) was invalid and so the trial was vitiated. It is necessary to examine these contentions with reference to the evidence on record.

5. The first point for consideration is whether the appellant received the. sum of Rs. 120/- from P.W. 12 as illegal gratification. In this connection the evidence of P.W. 12 is important. He stated that when he first met the appellant on 3-8-1976 he gave a sum of Rs. 50/- for deposit by challan and another sum of Rs. 5/- for sending the registration certificate to his Rourkela address. On that day the appellant demanded bribe of Rs. 120/- saying that in all such cases he collected a sum of Rs. 1207- from intending Contractors. On 10-8-1976 P.W. 12 again met the appellant who told him that on payment of Rs. 1207- as illegal gratification the registration certificate would be given to him. It seems P.W. 12 was exasperated because of demand of illegal gratification and hence he brought the matter to the notice of the officers of the Vigilance Department who laid the trap for catching hold of the appellant in the act of receiving illegal gratification. In accordance with the trap programme, on 11-8-1976, P.W. 12 came to the office of the Superintending Engineer, P.W.D. (R & B), Sambalpur and learnt that the appellant had gone to his quarters. P.W. 12 ascertained the location of the quarters and proceeded towards the same. On the way he stood near a Pan shop and found the appellant coming towards the office in a bicycle. When the appellant saw P.W. 12, he got down and both of them met. Thereafter they proceeded towards the office. On the way the appellant demanded the sum of Rs. 120/- and so P.W. 12 handed over the sum to him. The appellant counted the money and kept the same in the chest pocket of his shirt. Thereafter, P.W. 12 gave the pre-arranged signal, whereupon, the raiding party and the witnesses arrived at the scene of the occurrence and demanded the sum of Rs. 120/- from the appellant who produced the same, P.W. 4 was the Inspector of Vigilance at the relevant time and had taken an active part in laying the trap. He gave a vivid description as to the preparations made which it is unnecessary to repeat because of the undisputed facts and stated that on receiving the signal from P.W. 12 the members of the raiding party approached the appellant and demanded the sum of Rs. 120/- which had just been paid to him by P.W. 12. The appellant, according to his evidence, became nervous, brought out the sum of Rs. 120/- from his pocket and handed over the same to the Investigating Officer (P.W. 13). Thereafter the hands and the shirt pocket of the appellant were washed with sodium carbonate solution and the solution became pink. There is nothing in his evidence to indicate that the appellant gave out that the sum of Rs. 120/- was thrust upon him by P.W. 12 despite his protests. P.Ws. 5 and 7 were the two independent witnesses who were present when the raiding party approached the appellant and demanded the sum of Rs. 120/- from him. Both of them did not strictly support the prosecution case and were declared hostile. Both of them,, however, stated that the Vigilance Officers asked the appellant to produce the contents of his pockets, whereupon, the appellant brought the sum of Rs. 1207- in G.C. notes which on verification were found to be the very notes used in the trap. P.W. 5 stated that at the time of detection the appellant did not become nervous whereas, P.W, 7 made a specific statement that the appellant gave out that P.W. 12 gave the sum of Rs. 120/- by force and so saying brought out Rs. 120/- from his shirt pocket and gave the same to the Investigating Officer (P.W. 13). It is pertinent to note that even if the appellant did not give any symptom of nervousness at the time of detection it was immaterial. Nervousness is a peculiar psychological phase and all people are not afflicted by it on specific occasions. There are people who get nervous on account of anxiety and various other reasons. But there are hard core people who do not become nervous and maintain their balance even if they face the worst of disasters. Even if the appellant, according to P.W. 5, did not become nervous, such psychological condition cannot aid his case. The statement of P.W. 7 that P.W. 12 forcibly gave Rs. 120/- to the appellant has not found any support whatsoever. Even P.W. 5 who turned hostile did not state that the appellant made any utterance of that sort. P.W. 13, the Investigating Officer corroborated the statement of the aforesaid witnesses with regard to payment and recovery of the sum of Rs. 120/- from the appellant.

Apart from the fact that there is no corroboration to the statement of P.W. 7 that P.W. 12 gave the sum of Rs. 120/- to the appellant despite his protest, the conduct of the appellant will show that he voluntarily accepted the amount from P.W. 12. If he had no intention to accept the same, he would not have kept the amount in his shirt pocket. He would have immediately either returned the amount to P.W. 12 or would have thrown the same on the ground. The reaction of an honest officer at such a juncture can be imagined. The appellant, however, did nothing of the sort and meekly kept the amount in his shirt pocket. In such circumstances, in view of the specific evidence on record, it is impossible to believe and accept the defence of the appellant that P.W. 12 thrust the amount of Rs. 120/- upon him.

Except P.W. 12 no other witness stated that prior to 11-8-1976 or on the same day the appellant demanded bribe from P.W. 12 for grant and delivery of the registration certificate. For proof of this aspect reliance can be placed on the evidence of P.W. 12 himself, as well as, the official records proved in this case. So far as the evidence of P.W. 12 is concerned there is no ground to discard the same. Prior to 3-8-1976 he did not know the appellant. He picked up acquaintance with him only on that day in connection with registration of his name as a 'D' class contractor. He had no axe to grind against the appellant. Ordinarily he was not interested to bring trouble to the appellant. The fact that the appellant demanded bribe of Rs. 1207- exasperated him. Otherwise he would not have approached the officers of the Vigilance Department. He was previously a Contractor of Rourkela and the sum of Rs. 120/- was not a big amount. He could have paid the amount to the appellant who in due course would have, managed to secure a registration certificate for him. But P.W. 12 felt otherwise and acted in a manner befitting an honest citizen to fight against bribery and corruption. In the above perspective, the evidence of P.W. 12 can be safely relied upon.

The entire file relating to registration of 'D' class Contractors was produced. Ext. 8 series were the notes put up before the Superintending Engineer for registration of 'D' class Contractors. There was no office note nor any order registering P.W. 12 as a 'P' class Contractor. His case was not taken up till 2-8-1976 as would be apparent from Exts. 8/3,8/4 and 8/5. Exts. 8/3, 8/4 and 8/5 related to the registration of one Jhuria Pradhan as a 'D' Class Contractor. After the order was passed, Ext. 6, the certificate of registration was prepared in the name of Jhuria Pradhan. The name of P.W. 12 was, however, interpolated in Ext. 6 so as to show that he was also registered as 'D' class Contractor along with Juria Pradhan. The writing of the name of P.W. 12 in Ext. 6 seems clearly interpolated. P.W. 6, the Government Examiner of questioned documents examined the writing marked Ext. 6/2 '0' for identification) in comparison with the specimen writings of the appellant and gave his opinion in the report (Exts. 9 and 10) to the effect that the name of P.W. 12 was interpolated and was in the handwriting of the appellant. P.W. 9 was the Personal Assistant of the Superintending Engineer, P.W.D. (R & B), Sambalpur at the relevant time. His evidence is of importance. He stated that the appellant was dealing with the files relating to registration of Contractors. He was the checking officer and was endorsing the files, to the Superintending Engineer. He knew the handwriting of the appellant. Ext. 6 related to Juria Pradhan. The name of P.W. 12 was subsequently inserted in Ext. 6 and was in the handwriting of the appellant. In answer to question No, 12 of his statement under Section 313 of the Criminal P.C., the appellant admitted that the handwriting marked 'Q' in Ext. 6 was of his own. From the aforesaid evidence it is clear that Ext. 6, the certificate of registration was meant for Juria Pradhan, but the appellant interpolated and wrote the name of P.W. 12 below the name of Juria Pradhan. The intention of doing so was patently clear. The appellant attempted to show P.W. 12 as a 'D' class Contractor although no order had been passed to the effect by the Superintending Engineer. The intention of doing so was to show undue favour in return of receipt of illegal gratification.

On consideration of the aforesaid evidence both oral and documentary, as well as the indisputed facts, the only conclusion that can be arrived at is that the intention of the appellant in accepting the sum of Rs. 120/- from P.W. 12 was far from honest. The amount was not thrust upon him. He had demanded and accepted the sum of Rs. 120/- as illegal gratification. The finding of the learned Special Judge in this regard is, therefore, affirmed. Thus the case against the appellant under Section 5(l)(d) of the Act and under Section 161, I.P.C. was established.

6. On consideration of Ext. 8 series and Ext. 6 coupled with the evidence of P.W. 9 it has been found in para 5 that the case of P.W. 12 for registration as a 'D' class Contractor had not yet been considered and no order had been passed by the Superintending Engineer directing that a certificate of registration should be issued in favour of P.W. 12, As a matter of fact, the case of P.W. 12 was not at all dealt with. When the case of Juria Pradhan was considered, an order was passed registering him as a 'D' class Contractor by Exts. 8/3, 8/4 and 8/5. In pursuance of the said order, the registration certificate (Ext. 6) was meant to be issued to Juria Pradhan alone. But the appellant in his own handwriting interpolated the name of P.W. 12 below the name of Juria Pradhan in Ext. 6 with the intent to show that P.W. 12 was also registered as a 'D' class Contractor which was not a fact. The intention of the appellant in doing so was not honest. Since he had already made arrangement with P.W. 12 to receive an illegal gratification of Rs. 120/-, he attempted and in fact succeeded in interpolating the name of P.W. 12 in Ext. 6 along with Juria Pradhan. Therefore, he clearly committed an offence of forgery by falsely making part of a document with the intent that P.W. 12 could claim that he was a 'D' class Contractor. The aforesaid act came clearly within the meaning of Section 463, punishable under Section 465 I.P.C.

7. The charge against the appellant for falsification of accounts under Section 477A, I.P.C. was, however, not established. The prosecution did not prove any books of accounts to show that the appellant falsified accounts. As a matter of fact he was not in charge of accounts of the office of the Superintending Engineer. The charge framed by the learned Special Judge under Section 477A, I.P.C. did not specify the nature of the accounts which were falsified or forged by the appellant. In such circumstances, the learned Special Judge committed an error in convicting the appellant for the offence under Section 477A, I.P.C. The appellant is entitled to the benefit of the finding that a case under Section 477A, I.P.C. was not proved against him. '

8. The second question for consideration is whether the order of sanction (Ext. 16) was -in accordance with law. According to the learned Counsel appearing for the appellant, the sanctioning authority, namely, the Superintending Engineer P.W.D (R & B), Northern Circle/Sambalpur did not apply his mind before giving sanction for prosecution under Section 6 of the Prevention of Corruption Act. Therefore, the entire proceeding was vitiated and on this account alone the appellant is entitled to an acquittal. In support of this contention reliance has been placed in (1985) 1 Orissa LR 263 : 1985 Cri LJ 563, Baikunthanath Mohanty v. State of Orissa, and an unreported decision of this Court in Criminal Appeal No. 94 of 1980, Madhusudan Pani v. State of Orissa, decided on 26-7-1985. The learned Additional Standing Counsel urged that from the evidence on record it will be apparent that the sanctioning authority had applied his mind before according sanction for prosecution of the appellant. He relied upon a decision reported in : 1958CriLJ279 , Indu Bhusan Chatterjee v. State of West Bengal.

9. The sanction order (Ext. 16) is reproduced below for easy reference.

'Whereas it is alleged that Md. Tafzul Rahman while functioning is Steno to the Superintending Engineer, P. V.D. (R & B), Sambalpur in 1976 had demanded Rs. 120/- from one Manoranjan Patnaik of Rourkela as illegal gratification when on 3-8-76 the said Manoranjan Patnaik submitted application for a 'D' class Contractors' Registration certificate, repeated the demand when the said Manoranjan Patnaik approached him on 10-8-76 for issue of the certificate and on 11-8-76 again demanded Rs. 120/- from the said Manoranjan Patnaik for delivery of the certificate and accepted the said amount of Rs. 120/- from the said Manoranjan Patnaik in presence of witnesses, in a trap laid by Vigilance when he was caught red-handed with documents by means of interpolation with a view to issue such Registration Certificate without the knowledge of the Superintending Engineer.

And whereas, the said acts constitute offences punishable under Sections 161,465,477A of the Indian Penal Code, 1860 and Section 5(2) read with Section 5(1)(i)(d) of the Prevention of Corruption Act, 1947.

And whereas, I Shri Premananda Misra, Superintending Engineer, Northern Circle, Sambalpur being the authority competent to remove the said Md. Tafzul Rahman from office,' after fully and carefully examining the materials before me in regard to the said allegation of accepting illegal gratifications and the circumstances of the case, consider that the said Md. Tafzul Rahman should be prosecuted in a court of law for the said offences.

Now, therefore, I do hereby accord sanction under Section 6(l)(c) of the Prevention of Corruption Act, 1947 for the prosecution of the said Md. Tafzul Rahman for the said offences and any other offences punishable under other provisions of law in respect of the acts aforesaid and for the taking of cognizance of the said offences by Court of competent jurisdiction.

P.W. 10 was the Superintending Engineer, P.W.D. (R & B.), Sambalpur who accorded sanction for prosecution of the appellant under Ext. 16. He stated that the appellant was his Stenographer in the year 1976 and was in charge of registration of Contractors. Regarding sanction it is relevant to quote what he stated in his evidence. In chief examination he stated:.I do not remember if the file relating to Manoranjan Patnaik was put up before me. I have passed the sanction order for prosecution of the accused Ext. 16. I have perused the relevant papers and after being satisfied I have given the sanction order.

In cross-examination he stated:

The Vigilance department has given this draft Ext. 16 to me and I do not remember what papers they had put up before me for sanction order.

P.W. 14 was an Inspector of Vigilance. Regarding sanction he stated in his chief examination as follows:.I produced all the materials before the S.E. for sanction order with reference to the S.P's. report.

In cross-examination he stated:.I myself submitted the record to S.E. for obtaining the sanction order. I have not mentioned the details of the paper which I submitted to the S.E. for obtaining the sanction order. I have not submitted covering letter with the records to the S.E.

The aforesaid evidence gives rise to a peculiar situation. Ext. 16 shows that it was a draft sanction order. It is not known what happened to the final sanction order. It was not produced .nor proved in the trial court. The details of material documents which might have been produced before P.W. 10, the Superintending Engineer and sanctioning authority which he might have taken into consideration have not been stated in the sanction order (Ext. 16). It does not appear from it that the statement of P.W. 12 who was the most material witness was placed before him and he had perused the same before according sanction. The evidence of P.W. 10, the Superintending Engineer quoted above clearly discloses non-application of mind. When he gave evidence he did not remember as to on the basis and on consideration of which material documents he gave sanction for prosecution. On the other hand, it discloses that he was asked to sign the draft sanction order (Ext. 16) and he did so. It was expected of P.W. 14, the Inspector of Vigilance who submitted charge-sheet against the appellant and obtained the sanction order from P.W. 10 to have stated the material documents which were placed before P.W. 10 for obtaining the sanction order. Unfortunately except a general statement that all materials were placed before the Superintending Engineer he did not state the details thereof. Such evidence will give rise to the only conclusion which I have drawn and that is, non-application of mind of the sanctioning authority before according sanction for prosecution of the case. It is settled principle of law that Section 6 of the Act is of mandatory character. It is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after he was satisfied that a case for sanction has-been made constituting the offence. This should be done in two ways : either (i) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (ii) by adducing evidence aliunde to show that the facts placed before the sanctioning authority and the satisfaction arrived by it. Any case without a proper sanction must fail because, this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. The policy underlying Section 6 is that there should not be unnecessary harassment of a public servant. The above view is supported by a large number of authorities, such as 1971 SCC 1126 : 1971 Cri LJ 1422, Major Somnath v. Union of India : 1979CriLJ633 , Mohd. Iqbal Ahmed v. State of Andhra Pradesh : 1984CriLJ613 , R.S. Nayak v. A.R. Antulay (1981) 52 Cut LT 197 : 1982 Cri LJ 961, Republic of India v. Khagendranath Jha (1983) 56 Cut LT 288, Md. Sabir Hussain v. State of Orissa, to name a few. In the decision cited by the learned Additional Standing Counsel reported in : 1958CriLJ279 (supra) the same principle as referred to above was laid down, but a distinction was made with reference to the peculiar facts of that case and it was held that the sanctioning authority had applied his mind before according sanction. Therefore, this case decided on the peculiar facts of its own does not help the prosecution in this case having its own peculiar facts.

10. In consideration of the fact that the sanction order (Ext. 16) was defective and not in accordance with law, the prosecution of the appellant for the offence under Section 5(1)(d) of the Prevention of corrruption Act was ab initio void. On the ration the decision reported in (1984) 58 Cut Rajib Lochan Pradhan v. State and (1985) 1 Orissa LR 263 : 1985 Cri LJ 563, Baikunthanath Mohanty v. State of Orissa, the charges against the appellant for offences under Sections 161 and 465, I.P.C. must also fail. Be it stated that it has already been found that the charge against the appellant under Section 477A I.P.C. was not established.

11. Before parting with the case I deem it appropriate to observe that the Prevention of Corruption Act has made effective provisions for prevention and eradication of bribery and corruption. The appropriate authority must have to give sanction for prosecution after due application of mind on the basis of materials placed before him by the investigating agency. Many cases of bribery and corruption brought against public servants though otherwise true and duly established have ended unsuccessfully on the ground that in the absence of valid sanction orders the entire proceedings are void ab initio. It is strange that despite such repeated pronouncements, on account of absence of due care, caution and consideration, sanction orders are still found to have been passed mechanically and without application of mind on the part of the sanctioning authorities. Such an attitude undoubtedly does not advance the provisions of the Prevention of Corruption Act.

12. For the reasons stated above, the appeal is allowed and the order of conviction and sentence is reversed. The appellant is acquitted of all charges. He is set at liberty. The bail bond is cancelled.


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