{"id":131360,"date":"2006-08-24T00:00:00","date_gmt":"2006-08-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-inspector-of-police-vs-surya-sankaram-karri-on-24-august-2006"},"modified":"2019-01-31T21:55:00","modified_gmt":"2019-01-31T16:25:00","slug":"state-inspector-of-police-vs-surya-sankaram-karri-on-24-august-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-inspector-of-police-vs-surya-sankaram-karri-on-24-august-2006","title":{"rendered":"State Inspector Of Police &#8230; vs Surya Sankaram Karri on 24 August, 2006"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">State Inspector Of Police &#8230; vs Surya Sankaram Karri on 24 August, 2006<\/div>\n<div class=\"doc_author\">Author: S Sinha<\/div>\n<div class=\"doc_bench\">Bench: S.B. Sinha, Dalveer Bhandari<\/div>\n<pre>           CASE NO.:\nAppeal (crl.)  1335 of 2004\n\nPETITIONER:\nState Inspector of Police Visakhapatnam\n\nRESPONDENT:\nSurya Sankaram Karri\n\nDATE OF JUDGMENT: 24\/08\/2006\n\nBENCH:\nS.B. Sinha &amp; Dalveer Bhandari\n\nJUDGMENT:\n<\/pre>\n<p>J U D G M E N T<\/p>\n<p>S.B. Sinha, J.\n<\/p>\n<p>The State is in appeal before us impugning the judgment and order<br \/>\ndated 31st October, 2003 passed in favour of the respondent herein by the<br \/>\nHigh Court of Judicature of Andhra Pradesh at Hyderabad whereby and<br \/>\nwhereunder a judgment of conviction and sentence passed as against the<br \/>\nrespondent under Section 13(2) of the Prevention of Corruption Act, 1988<br \/>\n(&#8216;the Act&#8217;, for short) and sentencing him to undergo Rigorous Imprisonment<br \/>\nfor 3 years and to pay a fine of Rs.4 lakhs and in default to suffer Simple<br \/>\nImprisonment for one year, was set aside.\n<\/p>\n<p>The respondent was an Assistant Station Master.  He was working in<br \/>\nthe South Eastern Railway, Vizianagaram, Andhra Pradesh from 16.12.1961<br \/>\nto February, 1984.  He was promoted to the post of Commercial Inspector<br \/>\nand was working in that capacity from February, 1984 to July, 1986 and as<br \/>\nSenior Commercial Inspector from July, 1986 to December, 1993.  He was<br \/>\nlater promoted as Chief Commercial Inspector and was working in the said<br \/>\ncapacity from December, 1993.  His wife, Smt. K.S. Satyeswari, who<br \/>\nexamined herself as D.W.1, was an income tax assessee.  All the three sons<br \/>\nof the respondent had been working.  A raid was conducted in his house and<br \/>\nalso in the houses of his sons.  Some incriminating documents were<br \/>\nallegedly recovered.\n<\/p>\n<p>During investigation, not only the statement of the respondent, but<br \/>\nalso that of his wife and three sons were recorded by the Investigating<br \/>\nOfficer.  The investigation was admittedly carried on by P.W.41  Shri K.<br \/>\nBiswal and P.W.42  Shri N. Vishnu.  Sanction of prosecution was accorded<br \/>\nby P.W. 37  Shri Debaraj Panda, the then Senior Divisional Commercial<br \/>\nManager, South-Eastern Railway.\n<\/p>\n<p>The check period under consideration was 1.1.1986 to 9.8.1994.  The<br \/>\nprosecution proceeded on the basis that whereas the total income of the<br \/>\nrespondent and his family members was Rs.6,73,203.69p. including loans<br \/>\nand advances during the aforesaid check period, the respondent and his<br \/>\nfamily members had expended Rs.3,31,068.75p.; and acquired assets both<br \/>\nmovable and immovable worth Rs.11,66,873.84p. during the said period.  It<br \/>\nwas also alleged that respondent was in possession of assets and pecuniary<br \/>\nresources in his own name as also in the name of his wife to the tune of<br \/>\nRs.6,54,738.90p., which was disproportionate to his known sources of<br \/>\nincome as on 9.8.1994.\n<\/p>\n<p>Before the learned Special Judge the respondent examined defence<br \/>\nwitnesses, including his wife (D.W.1), his three sons, namely, Shri Karri<br \/>\nSatyanarayana Sarma (D.W.2), Shri K. Srinivas (D.W.3), Shri K. Rama<br \/>\nSarma (D.W.4) and one Engineer, D.W.5  Shri A. Sridhar, who submitted<br \/>\nhis report in regard to valuation of respondent&#8217;s house.\n<\/p>\n<p>The learned Special Judge in his judgment, inter alia, opined that the<br \/>\nsons of the respondent, other than his eldest son, did not make any<br \/>\ncontribution from their salaries.  Reliance was placed on the valuation report<br \/>\nsubmitted by the Engineer of the Income Tax Department, P.W.36 in<br \/>\npreference to the Valuer appointed by accused, i.e., D.W.5.  The High Court,<br \/>\nhowever, by reason of the impugned judgment, inter alia, held that keeping<br \/>\nin view the societal norms prevailing in India, vis-`-vis, the developed<br \/>\ncountries, the sons of appellant presumably make substantial contribution<br \/>\nfrom their income to their parents.\n<\/p>\n<p>The High Court also relied upon a large number of decisions of this<br \/>\nCourt in coming to the conclusion that if a reasonable margin of 10% is<br \/>\naccorded, the respondent cannot be said to have failed to have proved in<br \/>\nshowing means for acquiring assets held and possessed by him as also by his<br \/>\nwife.\n<\/p>\n<p>Mr. A. Sharan, learned Additional Solicitor General appearing on<br \/>\nbehalf of the appellant in support of this appeal would submit that &#8211;\n<\/p>\n<p>i) \tThe wife of the respondent-D.W.1, having categorically stated<br \/>\nthat only the eldest son, namely, D.W.2 had been making contributions to<br \/>\nthe family, the learned Special Judge must be held to have arrived at a<br \/>\ncorrect finding of fact that other sons of the respondent having been residing<br \/>\nseparately had not been making any such contribution.\n<\/p>\n<p>ii)\tThe rental income of Rs.88,318\/- disclosed in the income tax<br \/>\nreturn filed by D.W.1, was reckoned twice by the High Court and if the said<br \/>\nsum is taken into consideration towards the income of the respondent, the<br \/>\nHigh Court must be held to have committed an error in holding that the<br \/>\nassets held by the respondent were marginally higher than the known<br \/>\nsources of income.\n<\/p>\n<p>iii)\tThe learned Special Judge having assigned sufficient and<br \/>\ncogent reasons to accept the report of the Engineer appointed by the<br \/>\nprosecution, the same should not have been reversed by the High Court.\n<\/p>\n<p>iv)\tThe High Court also committed an error in calculating the<br \/>\nhousehold expenditure of the respondent.\n<\/p>\n<p>Mr. A.T.M. Ranga Ramanujam, learned Senior Counsel appearing on<br \/>\nbehalf of the respondent, however, submitted :\n<\/p>\n<p>(i) \tThe learned Special Judge committed a manifest error in so far<br \/>\nas he failed to take into consideration that the investigation carried out by the<br \/>\nP.Ws. 41 and 42 was wholly illegal having not been carried out under the<br \/>\nauthorization of the Superintendent of Police; and<\/p>\n<p>(ii)\tNo document having been brought on the records to show that<br \/>\nP.W.37  Shri Debaraj Panda was delegated with the power to accord<br \/>\nsanction of prosecution as against the respondent, the same was vitiated in<br \/>\nlaw.\n<\/p>\n<p>Although, we have strong reservation in regard to the manner in<br \/>\nwhich the High Court dealt with the entire appeal, but we are satisfied that<br \/>\nthe investigation carried out by the Investigating Officers was wholly unfair.<br \/>\nWe, for the reasons stated hereinafter, are also of the opinion that the P.W.37<br \/>\ncould not be said to have been delegated with the power of according<br \/>\nsanction of prosecuting the respondent.\n<\/p>\n<p>The Prevention of Corruption Act was enacted to consolidate and<br \/>\namend the law relating to prevention of corruption and for matters connected<br \/>\ntherewith.  The Act is a Special statute. It contains special procedure not<br \/>\nonly in regard to the manner in which the complaint is to be filed, but also<br \/>\nthe mode and manner in which the investigation into an offence thereunder<br \/>\nis required to be carried out.  It provides for trial by Special Judges<br \/>\nappointed for the said purposes.\n<\/p>\n<p>Section 26 of the Act lays down that the powers of the Special Judges.<br \/>\nHe has a power to try summarily under Section 6.  Section 13 provides for<br \/>\ncriminal misconduct by a public servant.  The fact that respondent is a public<br \/>\nservant is not in dispute.  Section 13(e) specifies criminal misconduct of a<br \/>\npublic servant where, an accused himself or any person on his behalf, is in<br \/>\npossession or has, at any time during the period of his office, been in<br \/>\npossession for which the public servant cannot satisfactorily account, of<br \/>\npecuniary resources or property disproportionate to his known sources of<br \/>\nincome.\n<\/p>\n<p>Provisions of the 1988 Act, no doubt, like the 1947 Act seek to protect<br \/>\npublic servant from a vexatious prosecution.  Section 17 provides for<br \/>\ninvestigation by a person authorized in this behalf.  The said provision<br \/>\ncontains a non-obstante clause.  It makes investigation only by police officer<br \/>\nof the ranks specified therein to be imperative in character.  The second<br \/>\nproviso appended to Section 17 of the Act provides that an offence referred<br \/>\nto in clause (e) of sub-Section (1) of Section 13, shall not be investigated<br \/>\nwithout the order of a police officer not below the rank of a Superintendent<br \/>\nof Police.  Authorization by a Superintendent of Police in favour of an<br \/>\nofficer so as to enable him to carry out investigation in terms of section 17 of<br \/>\nthe Act is a statutory one.  The power to grant such sanction has been<br \/>\nconferred upon the authorities not below the rank of Superintendent of<br \/>\nPolice.  The proviso uses a negative expression.  It also uses the expression<br \/>\n&#8220;shall&#8221;.  Ex-facie it is mandatory in character.  When the authority of a<br \/>\nperson to carry out investigation is questioned on the ground that he did not<br \/>\nfulfil the statutory requirements laid down therefor in terms of the second<br \/>\nproviso, the burden, undoubtedly, was on the prosecution to prove the same.<br \/>\nIt has not been disputed before us that the Investigating Officer, P.W.41, did<br \/>\nnot produce any record to show that he had been so authorized.  Shri K.<br \/>\nBiswal, the Investigating Officer, while examining himself as P.W.41,<br \/>\nadmitted that he had not filed any authorization letter stating :\n<\/p>\n<p>&#8220;I have received the specific authorisation from<br \/>\nS.P., C.B.I., to register a case but I have not filed the said<br \/>\nauthorisation letter.&#8221;\n<\/p>\n<p>No explanation has been offered therefor.  Even no attempt was made<br \/>\nto bring the said document on record at a later stage.\n<\/p>\n<p>Although a specific contention was raised in that behalf on behalf of<br \/>\nrespondent, the learned Special Judge negatived the same holding :\n<\/p>\n<p>&#8220;It is contended that P.Ws. 41 and 42 failed to<br \/>\nproduce orders of the Superintendent of Police, C.B.I.,<br \/>\nVisakhapatnam which are mandatory under the second<br \/>\nproviso to section 17 of the Prevention of Corruption<br \/>\nAct, for any Inspector of Police to take up investigation<br \/>\ninto an offence under Section 13(1)(e) of the Act.  No<br \/>\ndoubt, the prosecution did not file the orders of the<br \/>\nSuperintendent of Police, C.B.I., Visakhapatnam in this<br \/>\nregard.  But, P.W.41 deposed that he registered this case<br \/>\nand issued Ex.P-54 F.I.R. on the instructions of<br \/>\nSuperintendent of Police, C.B.I., Visakhapatnam.  In the<br \/>\ncross-examination, he deposed that he received specific<br \/>\nauthorization from the Superintendent of Police, C.B.I,<br \/>\nVisakhapatnam to register the case.  Ex.P-54 F.I.R.<br \/>\nwhich was forwarded to this Court by the Superintendent<br \/>\nof Police, C.B.I.\/S.P.E., Visakhapatnam, shows that<br \/>\nP.W.41 deposed that as per the orders of the<br \/>\nSuperintendent of Police, C.B.I., Visakhapatnam, he took<br \/>\nup investigation in this case.  Though it is contended by<br \/>\nthe defence counsel that the orders of the Superintendent<br \/>\nof Police authorizing P.Ws. 41 and 42 to investigate into<br \/>\nthis case were not filed into court, there is absolutely no<br \/>\ncross-examination of P.Ws. 41 and 42 to investigate into<br \/>\nthis case inspite of there did not in fact give any such<br \/>\norders authorizing P.Ws. 41 and 42 to investigate into<br \/>\nthis case inspite of there being lengthy cross-examination<br \/>\nof those witnesses.&#8221;\n<\/p>\n<p>The approach of the learned Special Judge, to say the least, was not<br \/>\ncorrect.  When a statutory functionary passes an order, that too authorizing a<br \/>\nperson to carry out a public function like investigation into an offence, an<br \/>\norder in writing was required to be passed.  A statutory functionary must act<br \/>\nin a manner laid down in the statute.  Issuance of an oral direction is not<br \/>\ncontemplated under the Act.  Such a concept is unknown in Administrative<br \/>\nLaw.  The statutory functionaries are enjoined with a duty to pass written<br \/>\norders.\n<\/p>\n<p>Submission of the learned Additional Solicitor General was that the<br \/>\nrespondent did not further cross-examine the said witnesses to the effect that<br \/>\nno such order in writing was passed, and thus, he cannot be said to have<br \/>\nbeen prejudiced in any manner whatsoever.  We do not agree.\n<\/p>\n<p> It is now well settled that when a document being in possession of a<br \/>\npublic functionary, who is under a statutory obligation to produce the same<br \/>\nbefore the court of law, fails and\/or neglects to produce the same, an adverse<br \/>\ninference may be drawn against him.  The learned Special Judge in the<br \/>\naforementioned situation was enjoined with a duty to draw an adverse<br \/>\ninference.  He did not consider the question from the point of view of<br \/>\nstatutory requirements, but took into consideration factors, which were not<br \/>\ngermane.\n<\/p>\n<p>     Illegality apart, the manner in which the investigation was<br \/>\nconducted, is condemnable. The least that a court of law would expect from<br \/>\nthe prosecution is that the investigation would be a fair one.  It would not<br \/>\nonly be carried out from the stand of the prosecution, but also the defence,<br \/>\nparticularly, in view of the fact that the onus of proof may shift to the<br \/>\naccused at a later stage.  The evidence of P.W.41 raises doubts about his<br \/>\nbona fide.  Why he did not examine important witnesses and as to why he<br \/>\nhad not taken into consideration the relevant documentary evidence has not<br \/>\nbeen explained.   He did not even care to ascertain the correctness or<br \/>\notherwise of the status of both of the respondent and his wife before the<br \/>\nIncome Tax Department.  Above all, he did not produce before the Court the<br \/>\nstatements made by the appellant, his wife and those of his sons, although<br \/>\nthey were relevant.  Had the statements of D.W.3 and D.W.4 been produced<br \/>\nbefore, the learned Special Judge might not have opined that the sons of the<br \/>\nrespondent, other than D.W.2, did not make any contribution to their parents<br \/>\nat all.  If such statements were made by the said witnesses before the<br \/>\nInvestigating Officer, omission on the part of D.W.1, the wife of the<br \/>\nrespondent, to state the same before the Special Judge might have taken a<br \/>\nback seat and the statements of other sons of the respondent, namely, D.W.3<br \/>\nand D.W.4 might not have been ignored by the learned Special Judge.\n<\/p>\n<p>The courts are obliged to go into the question of prejudice of the<br \/>\naccused when the main investigation is concluded without a valid sanction.<br \/>\n{<a href=\"\/doc\/993806\/\">See State of Andhra Pradesh vs. P.V. Narayana<\/a> [(1971) 1 SCC 483 :<br \/>\nAIR 1971 SC 811]. } <\/p>\n<p>It is true that only on the basis of the illegal investigation a proceeding<br \/>\nmay not be quashed unless miscarriage of justice is shown, but, in this case,<br \/>\nas we have noticed hereinbefore, the respondent had suffered miscarriage of<br \/>\njustice as the investigation made by P.W.41 was not fair.\n<\/p>\n<p>The learned Trial Judge furthermore also committed a serious error in<br \/>\nso far as he failed to take into consideration that Shri Debaraj Panda, who<br \/>\nexamined himself as P.W.37, being a Senior Divisional Operations Manager,<br \/>\nwas not competent to accord sanction for prosecution of the respondent<br \/>\nherein.  He, in his evidence, accepted that under the Rules he was not the<br \/>\ncompetent authority to remove him from service.  However, he stated that he<br \/>\nhad been delegated with power of removing the Chief Commercial Inspector<br \/>\nof the Headquarter of South-Eastern Railway.  He also stated :\n<\/p>\n<p>&#8220;It is not true to suggest that only General<br \/>\nManager and Divisional Railway Manager are the<br \/>\ncompetent persons to remove the accused from service<br \/>\nand also to accord sanction to prosecute him.  It is not<br \/>\ntrue to suggest that I am not competent to remove the<br \/>\naccused from service and also accorded sanction to<br \/>\nprosecute him.  The delegation of powers in respect of<br \/>\ncertain officers by the Head quarters, South Eastern<br \/>\nRailway are available in a Booklet called as &#8220;Delegation<br \/>\nof Powers&#8221; on Establishment matter.&#8221;\n<\/p>\n<p> The purported delegation of power had never seen the light of the<br \/>\nday.  No reliance thereupon could have been placed to arrive at a finding that<br \/>\nthe said witness was authorized to accord sanction.  The learned Special<br \/>\nJudge did not apply his mind to these aspects of the matter at all.\n<\/p>\n<p>This question came for consideration before this Court in Sailendra<br \/>\nNath Bose vs. State of Bihar [AIR 1968 SC 1292], wherein it was<br \/>\ncategorically held :\n<\/p>\n<p>&#8220;P.W. I deposed that the appellant was a Class III<br \/>\nofficer and that he could have been appointed or<br \/>\ndismissed by the Deputy Agent Personnel who is<br \/>\nsubordinate to him. Therefore he (P.W. 1) was competent<br \/>\nto grant previous sanction under Section 6(1) of the<br \/>\nPrevention of Corruption Act. P.W. 1&#8217;s assertion that the<br \/>\nappellant could have been removed from his office either<br \/>\nby the Deputy Agent Personnel or by himself was<br \/>\nchallenged in his cross-examination. The trial court as<br \/>\nwell as the High Court have relied on the oral evidence of<br \/>\nP.W. 1 in coming to the conclusion that the sanction<br \/>\ngranted is valid. In our opinion those courts erred in<br \/>\nrelying on oral evidence in deciding the validity of the<br \/>\nsanction granted. Hence, we asked the learned counsel<br \/>\nfor the respondent to satisfy us with reference to the rules<br \/>\non the subject that P.W. 1 was competent to remove the<br \/>\nappellant from his office. For this purpose we granted<br \/>\nhim several adjournments. Though our attention has now<br \/>\nbeen invited to some rules, those rules do not establish<br \/>\nthat P.W. 1 was competent to grant the sanction in<br \/>\nquestion.\n<\/p>\n<p>As per Rule 134 of the Indian Railway<br \/>\nEstablishment Code, published in 1959, authorities<br \/>\ncompetent to make first appointment to non-gazetted<br \/>\nposts in the Indian Railways are the General Manager,<br \/>\nthe Chief Administrative Officer or lower authority to<br \/>\nwhom he may delegate power. There is no evidence to<br \/>\nshow that this power has been delegated to the heads of<br \/>\nthe department. No provision in the Indian Railway<br \/>\nEstablishment Code, 1959 prescribing the authorities<br \/>\ncompetent to remove from office a class III officer was<br \/>\nbrought to our notice. But the prefatory note to Vol. I of<br \/>\nthe Code says, &#8220;The revised Chapter XVII and revised<br \/>\nAppendices I and XII will be printed later for inclusion in<br \/>\nthis edition. Till such times these are printed, the rules<br \/>\nand provisions contained in Chapter XVII and<br \/>\nAppendices IV and XVIII in the 1951 Edition (Re-print)<br \/>\nas amended from time to time shall continue to apply.&#8221;\n<\/p>\n<p>  In State of Karnataka through <a href=\"\/doc\/1317279\/\">CBI vs. C. Nagarajaswamy<\/a><br \/>\n[(2005) 8 SCC 370], it was held :\n<\/p>\n<p>&#8220;Grant of proper sanction by a competent authority<br \/>\nis a sine qua non for taking cognizance of the offence. It<br \/>\nis desirable that the question as regard sanction may be<br \/>\ndetermined at an early stage.&#8221;\n<\/p>\n<p>\tWhen a sanction is granted by a person not authorized in law, the<br \/>\nsame being without jurisdiction, would be a nullity.\n<\/p>\n<p>\tFor the reasons aforementioned, we are of the opinion that the<br \/>\nimpugned judgment need not be interfered with.  The appeal is, accordingly,<br \/>\ndismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India State Inspector Of Police &#8230; vs Surya Sankaram Karri on 24 August, 2006 Author: S Sinha Bench: S.B. Sinha, Dalveer Bhandari CASE NO.: Appeal (crl.) 1335 of 2004 PETITIONER: State Inspector of Police Visakhapatnam RESPONDENT: Surya Sankaram Karri DATE OF JUDGMENT: 24\/08\/2006 BENCH: S.B. Sinha &amp; Dalveer Bhandari JUDGMENT: J U [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-131360","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>State Inspector Of Police ... vs Surya Sankaram Karri on 24 August, 2006 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-inspector-of-police-vs-surya-sankaram-karri-on-24-august-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Inspector Of Police ... vs Surya Sankaram Karri on 24 August, 2006 - Free Judgements of Supreme Court &amp; 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