JUDGMENT
A.N. Dikshita, J.
1. This is an appeal by Har Bharosey Lal against the judgment and order dated 20-2-1979 passed by the Special Judge, (II Addl. District and Sessions Judge) Budaun, convicting him under Section 161, I.P.C. and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and sentencing him to one year’s R.I. on each count.
2. The prosecution story, in brief, is as follows: – At the relevant time the appellant was working as Head Clerk in the Sales Tax Office, Budaun. The complainant Mohd. Yusuf who had purchased some machines from Punjab needed sales tax Form No. 32 for transporting the machines to the State of U.P. According to the prosecution this form is issued free of costs by the Sales Tax Department. Mohd. Yusuf approached the appellant for issue of Form No. 32. The appellant demanded Rs. 25/- as bribe for issuing the form. Ultimately the appellant agreed to issue the form on payment of Rs. 10/- as illegal gratification. Mohd. Yusuf made a complaint dated 12-8-1975, Ex. Ka-4, to the District Magistrate, Budaun, alleging that the appellant was demanding a bribe of Rs. 10/- for Form No. 32 Thereupon Sri Satya Pal Singh, Deputy Superintendent of Police was directed to lay a trap. He took a currency note of Rs. 10/- from the complainant and after signing and noting its number in the complaint of Mohd. Yusuf gave it back to him for being given to the appellant as bribe. According to the instructions of Sri Satya Pal Singh the complainant reached the Sales Tax Office at about 4.15 p.m. the same day and gave the said signed note of Rs. 10/- to the appellant and requested him to issue Form No. 32. The appellant was still not agreeable to issue the form and demanded Rs. 15/- instead of Rs. 10/-. The complainant then paid him Rs. 15/- and took Form No. 32 from the appellant. Thereupon the complainant came out of the Sales Tax Office and according to the arranged programme gave a signal of the payment of bribe towards the police party. Sri Satya Pal Singh along with the police and two public witnesses then entered the office and informing the appellant of his having accepted the bribe from Mohd. Yusuf took a search. Asa result of the search of the appellant’s person a five rupee note and one rupee note were recovered from his pocket while one signed ten rupee note and a five rupee note were recovered from the drawer of the appellant’s table. Separate recovery memos were prepared by the Station Officer, Kotwali, Budaun, at the direction of Sri Satya Pal Singh regarding the notes recovered from the pocket of the appellant, from his drawer and regarding Form No. 32 which was taken possession of from Mohd. Yusuf.
3. A report of the incident was lodged by Sri Satya Pal Singh, Deputy Superintendent of Police at P.S. Kotwalion 12-8-1975 at 6.40 p.m. A case under Section 161, I.P.C. and Section 5(2) of the Prevention of Corruption Act (for short the Act) was registered against the appellant.
4. At the direction of the District Magistrate, Budaun, the investigation of the case was entrusted to Sri Wajid Ali Khan, Circle Inspector (Crimes), Budaun, who after completing it submitted a charge-sheet against the appellant.
5. The permission for the prosecution of the appellant was accorded by Sri Yogeshwar Dayal, Additional Commissioner, Sales Tax, U.P., Lucknow, vide order dated 234-1977.
6. In all four witnesses were examined by the prosecution. Mohd. Yusuf, P.W. 2, was examined to prove the demand and acceptance of the bribe by the appellant. Sri Satya Pal Singh, P.W. 3, was produced to depose about the trap. Sri Wajid Ali Khan, P.W. 4, was examined to depose about the investigation of the case while Rajendra Kumar, P.W. 1, stated about the preparation of the report by him at the dictation of Sri Satya Pal Singh, P.W. 3.
7. The appellant pleaded not guilty and stated that he had been falsely implicated in the case by the complainant Mohd. Yusuf due to enmity as on a note being submitted by the appellant a notice was issued against the complainant by the Sales Tax Officer. He also stated that Form 32 was issued by him to the complainant on 11-8-1975 and not on 12-8-1975 as alleged by the prosecution. He also stated that he was attending the Sales Tax Officer and was not present at his seat when the search is alleged to have been made. According to the appellant he was taken into custody by the police when he came back to his seat after attending the Sales Tax Officer. To prove his case and the procedure for issuing Form 32 the appellant produced six defence witnesses. The Court examined Sri A.D. Sharma, Incharge, Sales Tax Office, Budaun to prove the procedure for issuing Form 32.
8. The learned Special Judge, Budaun, after considering the evidence on record led by both sides and believing the prosecution had come to the conclusion that the prosecution had succeeded in establishing its case against the appellant. He, accordingly, convicted and sentenced the appellant as aforesaid.
9. I have heard the learned Counsel for the appellant as well as the learned State Counsel. learned Counsel for the appellant has submitted that in order to achieve the conviction of the appellant the prosecution had to establish two things, firstly that the appellant had accepted the bribe of Rs. 15/- from Mohd. Yusuf and secondly that there was a valid sanction for the prosecution of the appellant accorded by the competent authority. According to the learned Counsel the prosecution has failed to prove either of the two and consequently the appellant is entitled to acquittal. learned Counsel also submitted that the two public witnesses who are alleged to have accompanied the trap party have not been examined by the prosecution and this too casts a doubt about the truthfulness of the prosecution story.
10. The submissions of the learned Counsel for the appellant have force. Mohd. Yusuf, P.W. 2 is the solitary witness who deposed about the demand and payment of bribe to the appellant. In his examination-in-chief this witness has given out the prosecution story in the same manner as already mentioned above. He however, admitted in his cross-examination that there were other clerks also present in the room of the appellant at the time he went to give the bribe but neither they noticed him talking and bargaining with the appellant nor they saw him giving the bribe to the appellant. This statement on the face of it appears to be untrue. The appellant is said to have not been agreeable to issue form No. 32 on payment of Rs. 10/- only. As a natural consequence thereafter the complainant must have made efforts to persuade the appellant to accept only Rs. 10/- as agreed by him earlier particularly in view of the fact that the complainant had only one signed note of Rs. 10/- with him and had been instructed to give it to the appellant and this was bound to have taken some time. The version of this witness that in spite of all this the attention of none who had their seats there was attracted seems to be utterly false. The complainant has further admitted that he had applied for the issue of Form No. 32 through the clerk of Sri Kishori Lal, Advocate. He also admitted that he was an illiterate person and could only sign and that it was for the first time that he had made an application for issue of Form No. 32. He also admitted that before this he had never seen Form No. 32. From this it follows that the complainant was not aware of the procedure and the manner in which form No. 32 could be obtained and was bound to depend upon the person through whom he made the application. Yet he went all alone on the day of incident to receive the form is not easily understandable. The complainant also admitted that he did not make any complaint regarding the demand of bribe to the departmental authorities. In para 8 of his statement in cross-examination at one place the complainant stated that on 8th Aug. 1975 when for the first time he went to the Sales Tax Office to make an application for issue of Form No. 32 the appellant had demanded Rs. 25/- as bribe. In the same continuation the complainant stated at another place that when he went to the Sales Tax Office on 8th and made the application for issue of Form No. 32 with Sri Hari Om, clerk of Sri Kishori Lal, Advocate, there was no talk for payment of bribe. The two statements made by the complainant in the same breath are not reconcilable. This witness, therefore, cannot be implicitly relied upon and has not been able to prove that the appellant was guilty of demanding or accepting bribe.
11. The link evidence of recovery of Rs. 15/- from the drawer of the appellant’s table furnished by Sri Satya Pal Singh, P.W. 3, also does not improve the prosecution case, This witness stated that he made the search and recovered Rs. 15/- from the drawer of the appellant’s table. The possibility that somebody or the complainant himself surreptitiously might have kept the said notes in the appellant’s drawer cannot be ruled out. If the recovery of the signed note was not made from the person of the appellant but was made from his drawer, much more clinching evidence was required to have been furnished by the prosecution which is lacking in this case. The actual passing of the bribe was not witnessed by this witness as he was standing outside the office. He has admitted that according to his plan he was not at a place from where he could either see the appellant accepting the bribe or could overhear the talks between the appellant and the complainant. The evidence of this witness is also not sufficient to prove the prosecution case against the appellant.
12. The evidence of Rajendra Kumar, P.W. 1, who took down the report of the incident at the dictation of Sri Satya Pal Singh, P.W. 3 and the evidence of Wajid Ali Khan, P.W. 4 the investigating officer being of formal nature need not be examined in detail as they do not prove the actual passing of bribe money to the appellant. The evidence of Sri A.D. Sharma, C.W.I, also need not be examined in detail as he only stated regarding the procedure for obtaining Form No. 32 and in view of the above discussions it is not necessary to go into that procedural formalities which are not helpful to either side.
13. It has already been stated above that no public witness was examined in this case even though the prosecution alleged that two public witnesses accompanied the trap party. The non-production of such witnesses also casts a doubt about the truthfulness of the prosecution version.
14. Pursuant to the above discussions it has to be held that as regards the incident proper of accepting bribe by the appellant the prosecution has failed to prove its case on merits and the appellant is entitled to acquittal.
15. Before, however, parting with the case I would like to mention that in this case the prosecution has also failed to prove a valid sanction accorded by an authority competent under the law to do so for the prosecution of the appellant.
16. There is no dispute that sanction in this case was accorded by means of the order dated 23-4-1977 Ex.Ka-10, by Sri Yogesh Dayal, Additional Sales Tax Commissioner, U.P., Lucknow, Section 6 of the Prevention of Corruption Act (hereinafter called the Act) provides that cognizance of the offence would be taken by the court if it is satisfied that such sanction has been accorded by the appropriate authority who was competent to remove the erring official. Nothing has comeon the record to show that Sri Yogesh Dayal was competent to remove the appellant. Sri Yogesh Dayal has not been examined by the prosecution. Courts cannot act on surmises and conjectures nor will they be guided by extraneous considerations or matters which are not on record. The grant of sanction is not an idle formality but a solemn and sacrosanct act which provides protection to public servants against frivolous prosecutions. This requirement of law has not been complied with before launching prosecution against the appellant. Even a presumption cannot be drawn automatically but rests on proof of certain circumstances proved by evidence. It is only a Court which can draw a presumption: on the basis of the evidence placed before it. Such a presumption does not arise at the stage of granting sanction but only at the stage when the proceedings are launched in Court. In the case of Mohd. Iqbal Ahmed v. State of Andhra Pradesh it was held that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution the entire proceedings are rendered void ab initiQ. The Supreme Court further went on to stress that the prosecution cannot be given a chance to produce material in the appeal before the Supreme Court to satisfy that the sanctioning authority had duly applied its mind to the facts constituting the offence. It was also held “in a criminal case i the Supreme Court for that matter any Court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution.”
17. Further even the appellant was not questioned about the fact as to whether Sri Yogesh Dayal, Additional Commissioner, Sales Tax, U.P., Lucknow, was the competent authority to remove him from service. It has thus denied the appellant an opportunity to attack the sanction order. The statement of the accused recorded under Section 313, Cr.P.C. has to be given due weight and adequate emphasis. The appellant was not given such an opportunity to decry the validity of a proper sanction. Section 7 of the Criminal Law (Amendment) Act, 1952, which is recited below, provides for trial of the offences by Special Judge in regard to Sub-section (1) of Section 6 of the Prevention of Corruption Act:
7. Cases triable by Special Judges.
Notwithstanding anything contained in the Cr.P.C. 1898, or in any other law, the offences specified in Sub-section (1) of Section 6 shall be triable by Special Judges only.
(2) Every offence specified in Sub-section (1) of Section 6 shall be tried by the Special Judge for the area within which it was committed or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State ‘ Government.
(3) When trying any case, Special Judge may also try any offence, other than an offence specified in Section 6 with which the accused may, under the Cr.P.C. 1898, be charged at the same trial.
From the above it is clear that except where there is a valid sanction the Courts cannot assume jurisdiction to try a case under the Prevention of Corruption Act. Once it is found that there was no valid sanction the assumption of the jurisdiction by the Court below becomes wholly illegal. The prosecution has miserably failed to establish that there was a valid sanction in the instant case. The non-production of any material or the person according the sanction has also mitigated the validity of the sanction order.
18. Time and again it has been stressed that this requirement of law has to be adequately and strictly complied with but in spite of this emphasis the authorities have failed to recognise such requirement and have acted idly except signing on the dotted lines.
19. Another aspect of according sanction has also to be taken into consideration that the person according such sanction has objectively applied his mind. A duty is cast on such person to examine the merits of the case before according sanction. In the instant case Sri Yogesh Dayal who accorded the sanction in his order has just mentioned that he has perused the records and considered them. This does not disclose the application of mind. Sanction is not only a formality but it is the objective appreciation of the material on record. True, it may not be possible to discuss in detail the merits of the case in the sanction order but at the same time the order should reveal that there was prima facie evidence which prompted the authority to accord sanction. The mind of the authority must be disclosed and the basis on which sanction is accorded has to be precisely recorded. Law does not contemplate a subjective requirement. It is inherent that there is an objective satisfaction gained from the material which has compelled the authority to grant such sanction.
20. In the instant case neither the prosecution has proved to the hilt the guilt of the accused nor a valid sanction.
21. The appellant at the time of the incident in 1975 was about 51 years old. He was about 54 years at the time when his statement under Section 313, Cr.P.C. was recorded. It is not known whether he is undergoing the rigor of the judgment and order appealed against. In view of the prosecution having failed to prove its case against the appellant he is entitled to be deemed in service with all its benefits till the date of his superannuation.
22. In the result the appeal succeeds and is allowed. The conviction and sentences of the appellant are set aside. The appellant is on bail and he need not surrender. The bail bonds are discharged.