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Amar Singh Vs. the State of Himachal Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1976CriLJ1627
AppellantAmar Singh
RespondentThe State of Himachal Pradesh
Cases ReferredGokal Chand Dawarkadas v. King
Excerpt:
- chet ram thakur, j.1. this appeal has been filed by shri amar singh, patwari who has since been convicted under section 161 ipc read with section 5 (2) of the prevention of corruption act and sentenced to one year's imprisonment on each of both the counts and also sentenced to pay a fine of rs. 500/- on each count. both these sentences of imprisonment are ordered to run concurrently.2. the appellant was a patwari of halqua (circle) kamlab in tehsil hamirpur and shri madan lal (pw 4) a resident of village pakhorl had gone on the 15th of january, 1974 to obtain a copy of their village-common-land in respect of some land which however, is not mentioned in the complaint. according to the complainant, the appellant did not give him the copy and demanded rs. 15/- as illegal gratification......
Judgment:

Chet Ram Thakur, J.

1. This appeal has been filed by Shri Amar Singh, patwari who has since been convicted under Section 161 IPC read with Section 5 (2) of the Prevention of Corruption Act and sentenced to one year's imprisonment on each of both the counts and also sentenced to pay a fine of Rs. 500/- on each count. Both these sentences of imprisonment are ordered to run concurrently.

2. The appellant was a patwari of Halqua (Circle) Kamlab in Tehsil Hamirpur and Shri Madan Lal (PW 4) a resident of village Pakhorl had gone on the 15th of January, 1974 to obtain a copy of their village-common-land in respect of some land which however, is not mentioned in the complaint. According to the complainant, the appellant did not give him the copy and demanded Rs. 15/- as illegal gratification. However, he promised to pay him the same after a few days. The complainant made a report Ex. PJ to the Deputy Commissioner on 17-1-1974 in this behalf and the District Magistrate passed an order Ex. PJ/1 on 17-1-1974 to the following effect:

G.A. and Dy. S.P. should lay a trap.' Thereafter, it appears that a trap was laid as planned and two currency notes one of the denomination of Rs. 10/- and the other of denomination of Rs. 5/- were duly initialled by Shri I. C. Malhotra, (PW 3) who also joined the raid. Later on when the notes were alleged to have been passed over, the patwari left the patwarkhana. A signal had been given by Madan Lal about the money having been passed over, to Shri I. C. Malhotra, Hardyal Singh and others who were lying in an ambush. They shouted out to the accused appellant who was on the higher side of the ridge to stop and not to proceed further. PW 3 and PW 6 were on the lower side of the ridge and according to them the appellant took out some papers from his pocket and he placed them hastily in a Thela or a bag which according to PW 6, was being carried by the appellant under his arm-pit and was placed on a rock by him on the path where he was asked to stop. When the police and the other members of the raiding party reached the spot, it is stated that the person of the accused was searched and Rs. 15/- were recovered from his pocket but they were not the currency notes which bore the initials of PW 3. The police and other members of the raiding party picked up the Thela lying nearby and from the fold of that Thela, money fell down on the ground and it was found that the money in all was Rs. 75/-, which also included two currency notes one of Rs. 10/- and the other one of Rs. 5/- bearing the initials of Shri I. C. Malhotra PW 3 and therefore, according to the police they had recovered money which had been passed on and accepted by the appellant as illegal gratification from Shri Madan Lal PW 4. A memo was accordingly prepared and later on the accused was challaned and a charge-sheet was framed by the learned Special Judge but it was reported that the case property that is, the two currency notes alleged to have been passed over as illegal gratification, as demanded by the appellant were missing from the police Malkhana. Efforts were made to find out the same but the same could not be found and, therefore, the trial commenced. The learned Special Judge on the conclusion of the trial, found the accused guilty of the charges and as a result thereof, he convicted and sentenced the accused as already stated above.

3. The learned Counsel for the appellant has argued amongst other points, one of the points that the sanction obtained in this case is invalid and as such the trial was without jurisdiction. In view of this, I need not refer to the other points if it is found that the sanction is invalid as that point goes to the very root of the case.

4. I have seen the report Ex. PJ which is made by the complainant Shri. Madan Lal PW 4 to the Deputy Commissioner, Hamirpur. The application starts as:

I had gone to the patwari Karaur Patwar on Jan. 15, 1974 to get a copy of record of our village-common-land. The patwari concerned did not give the same to me and demanded Rs. 15/- as illegal gratification.

And the report Ex. PJ/3 is also the reproduction of this very complaint Ex. PJ. But the document Ex. PC mentions the recovery to have been made on the personal search of patwari Amar Singh, Halqua Kamlah. Now the document Ex. PK which is a copy of the application made by Shri Hardyal Singh, Dy. S. P. (PW 6) for obtaining sanction for prosecution, shows that he had obtained the sanction for the prosecution of patwari Halqa Karaur. He has not mentioned the name of any person as to who was that man who was at the relevant time posted in Halqa Karaur who was to be prosecuted under the provisions of Section 161 read with Section 5 (2) of the Prevention of Corruption Act. Further in the concluding portion of para 3, he had stated: 'search of Jholla of Shri Amar Singh patwari was also taken and recovered Rs. 76/- including the two currency notes which were earlier initialled by Shri I. C. Malhotra'. But here also he has not mentioned the circle. No doubt in the concluding portion he has stated that Amar Singh patwari Halqa Kamlah had committed an offence and sanction was sought under Section 6 of the aforesaid Act for the prosecution. Therefore, this sanction order in the first instance states that Madan Lal had gone to patwari Halqa (Karaur) on 15th of January, 1974 but later on he says, 'Amar Singh patwari Halqa Kamlah.' The sanction order Ex. PK/1 reads as under:

I have gone through the record of the case. After considering the whole matter, I hereby accord sanction to prosecute the accused in the court of law

Sd/- Distt. Collector,

Hamirpui. dt. 22-4-1974.

5. Under Section 6 of the Prevention of Corruption Act, sanction is a condition precedent to the institution of the prosecution. According to the prosecution, they had obtained the sanction but the sanction has got to be a valid sanction. It has been held in Gokal Chand Dawarkadas v. King AIR 1948 PC 82 : 49 Cri LJ 261 that it must be proved that the sanction was given in respect of the facts constituting the offence charged. These facts must include the name of the person who gives or is asked to give the alleged money for the purpose of illegal gratification and unless it is satisfied under Section 161, no offence can be committed. Sanction has got to be given after the authority competent to do so has fully acquainted itself with the facts and makes an order after applying its mind. In the instant case as would have been noticed the order passed by the competent authority is a mechanical and fourtine type of order which shows that the same had been made without applying his mind and without acquainting himself with facts of the case fully and properly. I have already mentioned above that the complaint made is about the patwari Karaur without making a mention of the name and it is a common case between the parties that the present appellant at the relevant time was not a patwari of Karaur patwar circle but he was a patwari of Kamalah patwar circle. It is also further clear from the statement of PW-1 that Karaur and Kamlah are two different patwar circles and according to the witness on the relevant date, Besri Lal was the patwari of Karaur whereas the accused patwari had the charge of Kamlah circle. Therefore, it is evident that the complaint as also the report were both in respect of the patwari whosoever he was of Karaur patwari circle. The application for sanction also in the beginning talks about the patwari of Karaur circle. However, in the end it had been stated 'Shri Amar Singh patwari'' but it appears that the sanction had also not been obtained nor accorded after fully acquainting himself with the facts and application of his mind. The order is quite cryptic. It could be understood if the facts in the application for sanction had been clearly and without any ambiguity stated that the sanction was required to prosecute Shri Amar Singh patwari who was posted in Kamlah circle and about whom there was a complaint made. Therefore, in these circumstances in my view, even if the sanction is there, that is not a valid sanction granted by the authority. If this sanction is invalid then it would fellow that the learned Special Judge had no jurisdiction to take cognizance of the case. In these circumstances, the trial is vitiated as being without any valid sanction. In these circumstances, the only result is that the appeal is allowed and the conviction and sentences are set aside as being vitiated, and the prosecution may if so advised obtain a proper sanction for the prosecution of the case but presently there being no valid sanction, the conviction cannot stand. The appeal, therefore, is allowed and the orders of conviction and sentence are set aside.


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