JUDGMENT
1. The appellant who at the relevant time i.e., on 19-2-1992 was working as a First Division Clerk in the Office of the Registrar of Firms and Co-operative Societies, Bangalore District, is alleged to have demanded illegal gratification from the complainant-P.W. 3 of a sum of Rs. 300/- for showing favour in relation to the issuance of a registration certificate. The complainant approached the Lokayuktha Police who arranged for a trap and it is alleged that the complainant accompanied by P.W. 1 went to the office of the accused some time in the afternoon and that pursuant
to the earlier demand, the accused asked the complainant whether he had brought the money. The complainant is alleged to have handed it over to the accused who received it in his left-hand and thereafter put it into the drawer of his table. The complainant gave the pre-arranged signal whereupon the raiding party apprehended the accused. The three currency notes of Rs. 100/- each which had been treated with anthracene powder were recovered from the drawer of the accused and it is alleged that when lime water was poured on his hands, that it gave off a pinkish colour. Even though the colouration was extremely faint the C.E. Report indicated traces of the chemical and consequently, the Trial Court accepted the position that the hands of the accused were found smeared with the powder. The Trial Court also accepted the prosecution evidence and convicted the accused for the offence punishable under Section 7 of the Prevention of Corruption Act and awarded him a sentence of one year R.I., and a fine of Rs. 1,000/- in default to undergo S.I. for 3 months and he was also convicted of an offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and was sentenced to pay a fine of Rs. 1,000/- for the said offence and in default to undergo S.I. for a period of 3 months. The present appeal is directed against this conviction and sentence.
2. At the hearing of the appeal, Mr. Devaraju, learned Counsel who appears on behalf of the appellant along with Smt. Veena Antin have submitted that the evidence in this case does not conclusively make out the charges and it was their effort to focus on the infirmities and inconsistencies in the present case. In the first instance, after referring to the oral evidence of P.W. 1, P.W. 3 and P.W, 5, what is contended is that there is a discrepancy with regard to the time factor. It is true that the complainant originally contends that the initial demand was made at about 11.45 a.m. and that he proceeded to the Lokayukta Police thereafter and from the evidence of the remaining witnesses, it does appear that the time at which they were sent for and the preliminary formalities, completed does not tally. The appellant’s learned Counsel vehemently submitted that this is a serious infirmity insofar as it affects the credibility of the witnesses. The learned Public Prosecutor and very rightly so, pointed out to the Court that the exact time when the witnesses were sent for etc., are incidental details which do not materially affect their substantive evidence which deals with the basic facts of the case viz., the trap and to this extent I am in agreement with the learned Public Prosecutor that even if the witnesses have faulted slightly with regard to the statement of the exact time that this is inconsequential and would not affect their credibility or veracity as far as the narration of the main incident is concerned.
3. The next substantial head of attack was with regard to the aspect of recovery of the three currency notes which had undoubtedly been treated with powder. Firstly, what was submitted was that if the accused received the notes in his left-hand and opened the drawer with his right-hand, that at the very highest, the powder would have been found on his left-hand and that there is virtually no explanation for the fact that the bottle containing the lime wash of the right-hand also revealed
traces of the powder. What is submitted is that it is clear that the prosecuting authorities were not careful with regard to the type of bottles that were used, the manner in which the treated liquid was filled into each of the bottle etc., and that consequently the benefit of doubt must go to the accused. Again, in my considered view, this aspect of the case cannot override the rest of the evidence which does substantially indicate that on the date in question the recovery did take place and how the powder could have got onto the two hands of the accused does not require very much speculation because one cannot rule out the possibility that the notes were shifted from one hand to the other before lodging them in the drawer. To my mind, this aspect of the evidence cannot assist the accused to any substantial extent.
4. The other main head of challenge was with regard to the evidence of P.Ws. 1, 2, 3 and 7 and it was pointed out that P.W. 1 stated that it was the Investigating Officer-P.W. 7 who took the notes out of the drawer, whereas P.W. 2 states that it was the accused who produced them, P.W. 3 states that it was P.W. 7 who took charge of the records and the money, whereas the Investigating Officer-P.W. 7 states that it was P.W. 2 who removed the notes from the drawer. What was contended was that the prosecution has virtually put forward as many as four divergent versions with regard to the recovery of the notes and consequently, that the recovery evidence must be rejected in its totality. I have carefully considered the impact of this submission in the light of the evidence on record. What I find is that there is total consistency with regard to the fact that the marked currency which had travelled via the complainant, as per the evidence of P.Ws. 1 and 3, to the accused and then to the drawer of his table and it was in fact recovered from there” and the entire raging dispute is with regard to who took the notes out from the drawer of the table. Under the law, once the evidence indicates that the three currency notes had been received by the accused and were recovered from the drawer of the table where he was working and coupled with the fact that the powder was detected on his hands, this being the main evidence on which the prosecution is relying, if there is divergence with regard to who exactly took the notes out from the drawer of the table, in my considered view, those infirmities which undoubtedly are infirmities, would not totally be destructive of the main evidence.
5. The appellant’s learned Counsel then presented a very substantial challenge to the legality and validity of the sanction order. Relying on a string of decisions which I do not need to refer to or reproduce because, the law on the point is very well-settled, what was submitted was that a valid sanction order is really the corner-stone on which the entire edifice of the prosecution rests and that if the sanction order is defective, then the conviction would be vitiated. I do not dispute the correctness of this legal proposition and proceeding from there, the learned Counsel referred in detail to the evidence of P.W. 8, who is the sanctioning authority. Undoubtedly, he has issued the sanction to prosecute and the original sanction order signed by him is Ex. P. 9. Ex. P. 9 follows a general proforma but, what the appellant’s learned Counsel was quick to point out is that the sanction order even as far as the references in the
title are concerned or in the preamble, does not refer to the fact that the sanctioning authority had occasion to peruse the records relating to the case. The order itself is very explicit insofar as it refers to a letter dated 19-6-1992 from the Inspector General of Police and that the sanction order was issued on the basis of that letter. I need to observe that the sanctioning authority was asked in cross-examination as to who had drafted out the sanction order and he has stated that it was prepared under his directions and that he thereafter approved it and signed it. In my considered view, this situation is dangerously close to a grave procedural irregularity. It is well-settled law that the sanctioning authority has to apply its mind to the facts of the case and if the case warrants sanction to prosecute then the sanction has to be accorded. This order is almost on par with a quasi-judicial order and it is a little difficult to condone a situation whereby in typical bureaucratic fashion, somebody in the department possibly the lower division clerk drafts out the order, puts it up for signature and the authority signs it. The risk involved in this procedure is two-fold. Firstly, that the sanction order may not contain the requisite legal ingredients as has happened in the present case and the second being that if a simple sanction order which is hardly running into a page and a half is required to be drafted by somebody else in the office one does not really understand as to whether the superior authority had really applied its mind to the case or not. The Courts have repeatedly frowned upon sanction orders being accorded mechanically and if procedures of this type are followed, as indicated by me earlier, it would come dangerously close to the sanction orders being vitiated on this ground alone.
6. What is pointed out to the Court from the evidence on record is that P.W. 8 has undoubtedly stated in his examination-in-chief that the records were received and that,
“… I examined the report of the investigation and after satisfying myself that there is prima facie case to prosecute the accused I accorded sanction.. ..”.
While it is contended on behalf of the appellants that this statement is inherently false and that it has been made in a desperate attempt to get over the infirmities in the sanction order by covering up for them and contending that the authority has done its duty by applying its mind; the learned Public Prosecutor has vehemently submitted that even if the sanction order does not in so many words mention, that the authority had perused the records, that he has stated so in examination-in-chief and that this is sufficient compliance with the requirements of law. The other submission canvassed by the learned Public Prosecutor was that in a simple trap case of the present type, where the investigation has been completed and a report has been submitted by a responsible officer to the Inspector General who in turn having satisfied himself that this is a fit case for prosecution, forwards it to the sanctioning authority for accord of sanction, that the case has passed through two responsible scrutiny stages if the report indicates a good enough case, that the sanctioning authority is within its rights to act on this basis. To my
mind, there are risks involved in accepting this argument though it is not totally incorrect. The reason for it is because when the law requires the sanctioning authority to independently assess the material and decide as to whether these facts make out a good enough case for a prosecution, it pre-supposes several factors, the first being that a prima facie criminal case has been made out and that there is enough material on record to sustain the prosecution charges. This can only be ascertained through a quick perusal of the records and not a mere examination of the report. There could be instances when a report is cursory or a rough summary of the case which may or may not be totally accurate and the sanctioning authority is therefore duty-bound to examine the file also. The additional reason for this view is because there is an entirely different aspect of the law which applies to cases of this category insofar as the Courts have now held that if the amount involved is relatively small if it is a single isolated instance and there is no evidence of habitual bribe taking or assets disproportionate to the known sources of income, that the sanctioning authority will have to carefully evaluate as to whether the interest of justice will not be adequately served by taking disciplinary action rather than by burdening the Courts with full-fledged prosecutions in a case of relatively trivial facts. These are all areas of deep seated evaluation which can only be truly justified through a proper perusal of the records. I am unable to accept the submission put forward by the learned Public Prosecutor that the reference to the receipt of the records is sufficient to get over the basic infirmity in the sanction order wherein the authority is quick to state that he acted only on the basis of the letter from the Inspector General of Police. The principal reason for this is because the evidence of P.W. 8 refers to the receipt of records but, even in his evidence he has not indicated anywhere that he so much examined them. In order to be doubly sure, I have carefully examined the evidence of the Investigation Officer-P.W. 7 which is quite clear when he states that he had only submitted his report and there is no reference to the records having accompanied that report. It is very important for the responsible officers, particularly in cases of this type while substantiating the prosecution case through their evidence, to realise that there are several essential ingredients of law which are condition precedent and if any of these are wanting that it can be destructive of the prosecution case itself. In the present instance, the only conclusion that emerges is that the sanction order-Ex. P. 9 was issued on the basis of the letter from the Inspector General of Police even though the authority-P.W. 8 has tried to improve the case slightly in the evidence before the Court which is still not good enough. The concept of application of mind which is the basic requirement and which is condition precedent for the accord of a valid sanction pre-supposes the fact that the authority has examined the facts which can only be verified from the documents and records and that the authority has also applied its mind to the legal aspects and it is after a total consideration that a valid sanction order can be issued. Sanction orders that are issued mechanically or arbitrarily do not pass the test of judicial scrutiny. It is equally well-settled law that an order has got to be total and complete in
itself and that a Court perusing the order should be able to conclude from the wording and the tenor of that order that there has been due application of mind. If there are doubts that arise in the mind of the Court, as in the present case, or if the sanction order itself is inherently defective, both as far as the procedure adopted and the wording of the order, then there is no option except for a Court to discard such a sanction order on the ground that it does not conform to the requirements of law. That precisely is the position in the present case and consequently I am left with no option except to hold that the hopelessly defective sanction order Ex. P. 9 in this case will have to be quashed.
7. The inevitable consequences of the quashing of the sanction order would mean that the conviction is vitiated. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant by the Trial Court are both set aside. It is directed that the fine, if paid, shall be refunded to the accused appellant. If the appellant is on bail, his bail bond to stand cancelled forthwith.
8. This Court needs to bring it to the notice of the Lokayuktha Police that if the administration is at all serious about coming to grips with corruption in the State that it will have to concentrate on the more serious cases particularly where large amounts of money are involved and where the real “big fish” have been eating into the economy of this country. The Courts are overcrowded with corruption cases relating to petty incidents and there is not a single instance where the corruption at the higher levels has been tackled. The question that is looming large in the public mind is as to whether it is only the clerks and the peons and the subordinate staff who are occasionally trapped and that there is a kind of immunity as far as the higher levels of corruption are concerned or whether those cases hardly ever reach the Courts. The Lokayuktha Police were exclusively set up to combat corruption and if that objective is to be achieved, it is the real corruption at the really damaging levels that will have to be effectively combated. Under the Prevention of Corruption Act, the possession of assets disproportionate to the known source of income is an offence. Why is it that no investigation along these lines is undertaken in any of the trap cases? In the present instance, the accused is alleged to have demanded and received a bribe of Rs. 300/- and the Court does not know whether this was a single isolated instance or whether he was habitually doing it because an investigation into the background of the accused and more importantly, the assets has not been done. The entire complexion of the case would have changed if such an investigation had been undertaken and the department will hereinafter ensure that a thorough investigation is done along these lines in every case of corruption that it investigates.
9. It is a prerequisite of law under the Prevention of Corruption Act that the sanctioning authority namely the State Government or its designated officer has to examine the case and decide as to whether a prosecution should be sanctioned. The reason for this is because there may be instances where a prosecution is unjustified and in the decision in Om prakash Shankarlal Sharma v State of Maharashtra, I have, as
early as in 1993 laid down that where the incident is a petty one and where it is a single isolated instance a prosecution would be unjustified because the Government has the power to impose sufficiently serious penalties through a disciplinary proceeding. Not only would this result in speedy punishment but more importantly, the special Courts which are today hopelessly overburdened with the number of petty cases would then be able to concentrate on rendering speedy justice by hearing and disposing of the bigger and more important cases. This is one of the primary functions of the sanctioning authority which has been totally and completely overlooked. The department shall take note of this and shall bring it to the notice of each of the sanctioning authorities and place the observations of this Court before the concerned officer in every case.
10. With monotonous regularity, the present case included, the function of examining as to whether sanction should be accorded or not is being dealt with in the most routine, cavalier and irresponsible manner. Where the sanctioning authority does not examine the record and where the sanctioning authority does not apply its mind and furthermore, where the sanction order itself is defective the entire prosecution gets vitiated. The present case is a classic instance where the evidence has conclusively established the charges but where the entire prosecution has been vitiated because of total non-application of mind on the part of the sanctioning authority and a defective sanction order results. In effect, the prosecuting authority, through such a state of affairs, has ensured the acquittal of the accused in a case which should have ended in a conviction. The department will take very serious note of the observations of this Court and ensure that no such lapses occur in even a single case in future.
11. The appeal accordingly succeeds and stands disposed of.