JUDGMENT
S. Shamsul Hasan, J.
1. The appellant has been convicted under Section 161 of the Indian Penal Code and under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and has been sentenced to undergo rigorous imprisonment for two years under each count, the two sentences are to run concurrently.
2. The prosecution case, shortly stated, is that the appellant demanded a bribe of Rs. 1100/- from Shyam Behari Tewari (P. W. 4) for assisting him in keeping him out of a case in which one Chhabila Gond, who had been arrested, was said to have named Shyam Behari Tewary. Rs. 1000/- was paid first and while Rs. 100/- was being paid the appellant was arrested after a trap was laid by the Vigilance Department. It is said that after Rs. 100/- was paid to the appellant, he tucked the two 50 rupees notes into the fold of his lungi. On being apprehended, he shouted at the constables at the Than a to pull the Lungi, which was done, and the two notes of 50 rupees each fell out and were thereafter recovered; from the ground in his office.
3. P. W. 4 lodged a written report before the Joint Secretary, Vigilance Department, on 27-10-77, stating that the appellant was demanding bribe. The Joint Secretary. Vigilance Department directed one Shivanand Tewary (P. W. 2), an Inspector of the Vigilance Department, admittedly a relation of P. W. 4, to verify the report. On 28-10-77 the appellant is said to have made a fresh demand for Rs. 100/- from P. W. 4 in presence of P. W. 2 and he was told that the money would be paid on 31-10-77. On 29-10-77 P. W. 2 submitted his report (Ext. 3). A trap was, accordingly, organised, and, as stated above, Rupees 100/- was recovered. A formal F. I. R. (Ext. B) was lodged and the two reports, one dated 27-10-77 and 29-10-77, were annexed to the said F. I. R. It may be stated here that the formal F. I. R. does not contain any report in regard to the incident of 4-11-77, when the money alleged to have been paid and alleged to have been recovered from the appellant.
4. The first submission made by learned Counsel for the appellant was that there is no legal sanction in this case. After examining this question I am inclined to accept the submission of learned Counsel for the appellant for the reasons, to be stated hereafter, that there is no legal sanction in this case and the appellant is entitled to be acquitted on that ground alone. The alleged sanction is Ext. 12, The signature on the forwarding memo No. 364 dated 16-3-78 to the Deputy Secretary, Cabinet (Vigilance) Department, is Ext. 11, which is said to be that of the Deputy Inspector-General of Police, Eastern Range, Chapra, who accorded the sanction. The sanction that has been filed in this case is not the original sanction but a copy that was sent under memo No. 364 dated 16-3-78 to the Deputy Secretary, Cabinet (Vigilance) Department P. W. 13 has been examined to say that, he took the dictation and typed the sanction. He has admitted that this is only a copy of the original. P. W. 12 has proved the signature of the Deputy Inspector General of Police, No foundation has been laid for the admission of a copy as secondary evidence in absence of the original sanction. The sanction order does not contain the signature of any one. The only signature that the sanction order (Ext. 12) contains is below the forwarding memo No. 364, D/- 16-3-78, said to be that of the Deputy Inspector-General of Police, which has been marked Ext. 11, Further, the said forwarding memo appears to have been issued from Patna. No explanation has been given why the memo was not issued from Chapra, where the Deputy Inspector-General of Police is said to have accorded the sanction.
5. In the aforesaid situation, undoubtedly no sanction order has been proved in this case. This situation has been admitted by learned Counsel for the State also. Further, it appears from the order sheet of 13-2-1979 that the sanction order was produced in the trial court on that date for the first time. It is also admitted that no sanction order was produced before the Court taking cognizance after charge-sheet. In this situation, I have no hesitation in holding that the entire prosecution of the appellant is vitiated for want of a duly proved sanction order as required by law.
6. Coming to the merit of the case, it may be mentioned here that there is no Fardbeyan with regard to the incident of 4-11-77 when Rs. 100/- is said to have been actually paid and recovered, The entire investigation was on the basis of the two earlier reports made by P. Ws. 4 and 2, as mentioned above, and the absence of the Fardbeyan with regard to the incident of 4-11-77 when the alleged occurrence of the payment of the bribe of Rs. 100/- and its recovery is said to have taken place, makes the entire proceeding of 4-11-77, in the present case, i.e. the trap’ extremely doubtful. Further, I may state here that the trial court in regard to the demand and payment of Rs. 100/- has come to the following finding:
…In absence of any support of this story of payment of Rs. 1000/- to the I.O., this part of the prosecution story suffers from infirmity and does not inspire confidence….
Once this story disappears, its effect on the payment and recovery of Rs. 100/-is far reaching, particularly when it will appear hereafter that of the recovery itself is doubtful. The seizure list prepared by the Deputy Superintendent of Police on 4-11-77, has been marked Ext. 5, in column 2 whereof it is mentioned as follows:
Notes (mentioned in the margin) recovered from the south facing thana Sirista floor of the Thana building in the western side near the exit.
(Underline has been given by me to lay emphasis)
There is a note, however, by the Special Magistrate-cum-Assistant Secretary, Vigilance Department, Patna, Camp-Darauli, who conducted the raid, to the following effect:
G.C. Notes at mark were recovered from the ground toward right side of table in front of accused after those G. C. notes fell down from the folds of Lungi, which the accused was wearing and which was snatched by constables of P. S. obstructing the raiding party in discharge of its duties. SI. 3 marked (sic) was also seized and seizure list prepared in my presence.
P. W. 3, the Magistrate, has admitted that he wrote the aforesaid endorsements subsequently. These endorsements render the recovery of the notes, as alleged by the prosecution, extremely unreliable. If the notes were recovered near the exist, the entire complexion of the recovery changes from an act of criminality of the appellant to an act of plantation by the prosecution witnesses.
7. It will be appropriate to state here that P. Ws. 4 and 11 are brothers and they are responsible for the initiation of the entire proceeding and P. W, 2, who represented the Department from the initial stage of the proceeding, is also admittedly related to P. Ws. 4 and 11. The fact that so many interested persons were involved highlights the effect of differing endorsements on the seizure list with regard to the place from where the notes were actually seized. The initial demand was verified by P. W. 2, who is admittedly a relation of P. W. 4, and the payment of Rupees 1000/- not being proved completely renders the entire prosecution case unacceptable.
8. I may also state here that the prosecution allegation that when the appellant was apprehended, he shouted to the constables in the Thana to pull his lungi which was done, and the tucked notes fell on the ground, has also not been, in my view, effectively proved due to non-examination of those constables or absence of evidence indicating that those constables have been proceeded against for assisting the accused and obstructing investigation.
9. Another circumstance of importance is the non-user of phenolphthalein powder. The notes were not (sic) allegation that the notes were handed over to the appellant could not be effectively proved, The decision of the Supreme Court in the case of Raghubir Singh v. State of Punjab completely supports the submission of learned Counsel for the appellant in most of its aspects.
10. In view of what I have stated above, it is not necessary for me to deal with the evidence of the other trap witnesses with regard to the payment and recovery of notes as practically all of them are connected with the department.
11. In the result, I have no hesitaAP800132.bjction in holding that the prosecution has failed to prove the demand and payment of the bribe to the appellant and the entire prosecution stands vitiated due to the absence of legal sanction. The appeal is, therefore, allowed and the appellant is acquitted of all the charges levelled against him.