Harekrushna Patnaik vs State Of Orissa on 31 July, 1990

Orissa High Court
Harekrushna Patnaik vs State Of Orissa on 31 July, 1990
Equivalent citations: 1991 CriLJ 462
Author: L Rath
Bench: L Rath


L. Rath, J.

1. The appellant having been convicted under Section 5(1)(c) read with Section 5(2) and under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act as also under Section 471, I.P.C. and sentenced to pay a fine of Rs. 9,000/- in default to undergo R.I. for six months under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and to undergo R.I. for one year on each count under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act and under Section 471, I.P.C., and although convicted also under Sections 403/468, I.P.C. though no separate sentence has been awarded under the two sections, has preferred this appeal.

2. The indictment of the petitioner was that he while working as an L. D. Clerk in the office of the Executive Engineer (R & B), Dhenkanal Division, Dhenkanal forged letters of authority in the name of the Executive Engineer during the period from May, 1973 to March, 1974 and took delivery of stationery articles worth Rs. 8501.06 from the Orissa Government Press, Khapuria, Cuttack on the strength of those letters of authority but did not account for the articles in the office. The F.I.R. was lodged by the Inspector of Vigilance on 20-2-75 on the basis of which investigation was started and on completion of investigation and obtaining the sanction for prosecution, the petitioner was made to stand the trial.

3. The learned Special (Vigilance) on an analysis of the evidence held the sanction to be valid, the trial to be not vitiated under Section 219, Cr. P.C., the signatures appearing Exts.7/24 to 7/35 on the letters of authority to be in the hand of the appellant which conclusion he reached on the evidence of the handwriting expert and his report, and that the appellant had received the articles in question from the Orissa Government Press on the basis of the forged letters but had not accounted for the same.

4. Mr. Misra, learned counsel for the appellant, had placed the evidence before me in extenso. The evidence overwhelmingly proves the guilt of the appellant and there is no escape from the conclusion reached by the learned Special Judge. Mr. Misra also does not seriously challenge the findings on merit. It is not necessary in view of the decision reported in AIR 1981 SC 1417 : 1981 Cri LJ 1019 (State of Karnataka v. Hemareddy and Anr.) to reiterate the evidence as general concensus is reached with the conclusion of the learned Special Judge. However, Mr. Misra has strenuously contended the sanction for prosecution to be invalid and has further argued that since the appellant was made to give his specimen writing, signatures and initials by the Magistrate P.W. 8 who had no jurisdiction to so direct, the evidence in respect of the same must be held to be nullity and cannot be relied upon to base a conviction of the appellant.

5. So far as the first submission is concerned, Mr. Misra has placed reliance on the, order of sanction. Ext. 40, and the evidence of P.W. 15 the sanctioning authority as also P.W. 10, the I.O. The relevant extract of the sanction order is as follows :–

“Whereas it is alleged that Shri Harekrishna Pattanaik while functioning as Lower Division Clerk in the office of the Executive Engineer, Dhenkanal (R & B) Division, Dhenkanal from 14-4-64 took delivery of papers, stationeries, etc. amounting to Rs. 8501.60P. by producing false letters of authorisation in the name of the Executive Engineer, Dhenkanal (R & B) Division on 12 occasions dating the period from 8-5-73 to 19-2-74 in the office of the Government Press, Khapuria, Madhupatna, Cuttack and did not make over the articles in the office of the E. E., Dhenkanal (R & B) Division nor accounted for the same and misappropriated the cost of papers and the stationery articles or the cost thereof.

And whereas the said acts constitute offences punishable under Section 5(2), P.C. Act read with Section 5(1)(c) of the said Act/409/458/471, Indian Penal Code of 1860.

And whereas I Shri B. N. Das, Superintending Engineer, Eastern Circle (R & B) Balasore being the authority competent to remove the said Shri Harekrishna Pattanaik from office after fully and carefully examining all the materials placed before me in regard to the said allegation and the circumstances of the case, consider that said Harekrishna Pattanaik should be prosecuted in a Court of Law for the said offence.

Now, therefore, I do hereby accord sanction under Section 5(1)(c) P.C. Act, 1947 for the prosecution of the said Harekrishna Pattanaik for the said offences and any other offence punishable under other provision of law in respect of the acts aforesaid and for taking of cognizance of the said offences by a Court of competent jurisdiction.”

It was the evidence of P.W. 16 that before according sanction he perused the detailed investigation report submitted by the S. P. (Vigilance), Sambalpur and was satisfied that the accused should be prosecuted under the Sections mentioned above and accordingly issued the sanction order. In the cross-examination he stated that he had also perused the records of the departmental enquiry before issuing the sanction order. P.W. 10, the Investigating Officer, stated that on 5-1-78 he produced all the relevant records before the sanctioning authority who perused the same on the very day and issued the sanction order. On such facts it is the submission of Mr. Misra that since the sanctioning authority himself stated to have accorded the sanction only on the basis of the investigation report of the S. P. (Vigilance) but the report was not produced, the contents thereof are not known. There was no primary or secondary evidence regarding the contents of the report and hence it is not known whether the sanctioning authority applied his mind to the facts constituting the offences and therefore the sanction must be held to be net valid in law. The submission needs a detailed examination.

6. The law is now far too well settled that in according sanction, the exercise made by the sanctioning authority is not a mere formality but is a solemn act and that it must appear in the case that before according the sanction he had applied his mind to the facts constituting the offence and only on appreciation of such facts concluded that the officer was one who should be prosecuted for the offences. The facts constituting the offence are not mere allegations against an officer but the facts which appear against him, i.e. the statements of persons or the materials on record on consideration of which the sanctioning authority reaches the conclusion of according sanction. If the sanction order itself does not spell out the facts constituting the offence considered by the sanctioning authority, the prosecution must establish by evidence that such facts were before the authority before the sanction was accorded. It is thus necessary for the Courts to be in a position to know that all the relevant materials constituting the offence were before the sanctioning authority to which he applied his mind. But while this is so, there is neither any form in which the sanction is to be granted nor is there any requirement that the actual evidence sought to be produced against the accused must also be placed before the sanctioning authority. This is clear from 1954 Cri LJ 1002 : AIR 1954 SC 359 (Biswabhusan Naik v. State of Orissa) where the order of sanction merely stated that sanction was being accorded by the Governor for prosecution of the officer concerned under Section 5(2) of the Act. In evidence it was proved that the facts to which the sanction related were placed before the sanctioning authority. Without going into other facts it was noted by their Lordships that the letter of the District Magistrate asking for sanction was enough to show the facts on which the sanction was based. The letter narrated the allegations against the officer, the steps taken to verify the truth of the allegations and the outcome of that. The Court held that the sanction was not required to be in any particular form or even in writing and the sanctioning authority having been apprised of all the facts constituting the offence from the letter of the District Magistrate, the accord of sanction on the basis of that was valid. In 1969 Cri LJ 1 : (AIR 1968 SC 1419 (Shiv Raj Singh v. Delhi Administration) where the sanction order stated to have been given after fully and carefully examining the materials before the sanctioning authority in respect of the allegations and it was in the evidence of P.W. 9, the Sub-Inspector, that all the papers relating to the case were sent to the D.I.G., but could not say as to what were the papers so sent because they were in a sealed cover, the Court held that the sanction was valid. It was observed in 1979 Cri LJ 633 : (AIR 1979 SC 677) (Mohd. Iqbal Ahmed v. State of Andhra Pradesh) where the sanction had been given on the basis of a note of the Commissioner of the Municipal Corporation but the note was not produced and its contents were not known, the sanction was held to be invalid because it could not be said that the facts constituting the offence were before the sanctioning authority. Basing on this decision and some other citations it is the submission of Mr. Misra that since admittedly the evidence of P.W. 16 is that he had perused only the investigation report of the S.P. (Vigilance) in according the sanction and in the evidence the contents of the investigation report was not proved to know whether proper facts constituting the offences were before the sanctioning authority, the sanction cannot be said to withstand the test of law.

7. So far as the investigation report of the S.P. (Vigilance) is concerned, it was made in accordance with the provisions of the Orissa Police Manual. Under Rule 49 of the Orissa Police Manual, the Superintendents have the authority to take the investigation out of the hands of their subordinates and in particular they are required to investigate all types of cases enumerated in appendix 3 of the Manual, all cases presenting difficulty, and all case in which the conduct of the subordinate police is in any way unsatisfactory. Under Rule 47-A, important cases have been defined to include any cases relating to an offence which is a special report case as per appendix 3, or any other case triable exclusively by Courts of Session. Under Rule 48(e) all officers supervising a case or testing a complicated investigation are to mention the fact in their diaries and shall prepare daily in P.M. No. 7-A in triplicate a detailed note of their proceedings including orders issued to the Investigating Officers. One copy of the note is to be sent to the Superintendent of Police and the Superintendent or the Additional Superintendent shall prepare a supervisory note when considered necessary to do so.

8. A reference to the different provisions of the Police Manual as above is for the purpose to show that an investigation report of the S.P. is necessarily in connection with the investigation carried out by himself or his subordinates and as is well known, this contains the summary of the investigation made, the evidence appearing against the accused and the conclusions reached. The conclusion may be either in favour of the accused or against him, but all the same it discloses the summary of the investigation and hence when the sanctioning authority peruses the detailed investigation report, he necessarily apprises himself of the facts constituting the offence and only after satisfying himself that such facts warrant prosecution of the officer concerned, accords the sanction. Thus, while it is of course ideal and as a matter of propriety such report, if forms the basis of the sanction, should be placed in the evidence, yet the absence of that would not necessarily warrant a conclusion that the facts constituting the offence were not before the sanctioning authority when it accorded the sanction.

9. In that view of the matter, I would hold that the sanction in the case was valid. The submission of Mr. Misra in this regard must accordingly fail.

10. The next submission is based on the evidence of P.W. 8 and P.W. 10. P.W. 8 is the Magistrate who stated that the appellant was produced before him on 11-10-76 while he was the S.D.J.M., Dhenkanal and he had taken the specimen writings, signatures and initials of the appellant. P.W. 10 also likewise stated that he had produced the appellant before the S.D.J.M. for taking his specimen writings, signatures and initials and he had sent such specimens along with the admitted and disputed writings, signatures and initials to the handwriting expert for his comparison and opinion. It is the submission of Mr. Misra that since the charge sheet was submitted on 16-1-78, the specimen signatures, etc. of the appellant were taken by P.W. 8 during the investigation when the case was not before him as a Court and he had no powers to take such specimens. He has drawn my attention to Section 73 of the Evidence Act which authorises a Court to direct any person present in Court to give his specimen writing and submits that such power is exercisable by a Magistrate only when he functions as a Court, but during investigation the matter was not pending before him and therefore no resort could have been taken by him to compel the appellant to give his specimen writings, signatures or initials. Reliance was placed by him on 1972 (2) CWR 1332 (Srikant Rout v. State of Orissa) and 1980 All LJ 350 : (AIR 1980 SC 791) (State of U.P. v. Ram Babu Misra) to contend that since the action of P.W. 8 was without jurisdiction, such writings, etc. obtained from the appellant are to be kept out of consideration and the report of the expert on the basis of such admitted writings cannot be taken into consideration and that the evidence with regard to that must be scrapped.

11. While there is no dispute regarding the legal position under Section 73 of the Evidence Act that a Magistrate has no authority to direct an accused to give his specimen writings, signatures, etc. unless the matter was pending before him in any proceedings, yet the submission of Mr. Misra does not avail the appellant. In both the decisions cited by him the directions issued by the Magistrate were challenged before the Court and were quashed. In the present case, not only signatures were obtained, but they had been sent to the expert who has given his opinion. The expert also appeared as a witness. There is no procedure in law to write off any evidence which has been validly led in a case. It was open to the appellant to challenge the orders of the Magistrate, if he was aggrieved, before the proper forum. But whatever illegality might have been committed by the Magistrate during the investigation, yet it would in no way vitiate the trial before the Special Judge or do away with the evidence that has been led before him. In the context it is to be remembered that Article 20(3) of the Constitution of India while holding out a guarantee that no person accused of any offence is to be compelled to be a witness against himself, affords no protection against furnishing any evidence as was decided in 1961 All LJ 936 : (AIR 1961 SC 1808) (State of Bombay v. Kathi Kalu Oghad). It was specifically held in that case that an accused person, when he is giving his specimen handwriting or impressions of his fingers, or palm or foot, does not furnish evidence against himself within the meaning of Article 20(3) of the Constitution. Thus obtaining of such specimen writings, signatures, etc. from the accused during investigation by the investigating agency does not amount to testimony on compulsion.

12. In that view of the matter, this submission of Mr. Misra must fail.

13. Even though the appeal does not succeed on the submissions made, yet there is one factor in the case which makes the appellant entitled to relief from his conviction under Section 5(1)(d) of the Prevention of Corruption Act. The order of sanction is only with respect to prosecution under Section 5(1)(c) read with Section 5(2) of the P.C. Act and not under Section 5(1)(d). The very evidence of P.W. 16 also discloses such fact. In that view of the matter, it must be held that there is no sanction for prosecution of the appellant under Section 5(1)(d) of the P.C. Act and hence his conviction and sentence under that section must be set aside, which is so done.

14. In the result, the appeal is partly allowed to the extent indicated above.

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