Full Judgment Text
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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 & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
S.B. Sinha, J.
The State is in appeal before us impugning the judgment and order
dated 31st October, 2003 passed in favour of the respondent herein by the
High Court of Judicature of Andhra Pradesh at Hyderabad whereby and
whereunder a judgment of conviction and sentence passed as against the
respondent under Section 13(2) of the Prevention of Corruption Act, 1988
(’the Act’, for short) and sentencing him to undergo Rigorous Imprisonment
for 3 years and to pay a fine of Rs.4 lakhs and in default to suffer Simple
Imprisonment for one year, was set aside.
The respondent was an Assistant Station Master. He was working in
the South Eastern Railway, Vizianagaram, Andhra Pradesh from 16.12.1961
to February, 1984. He was promoted to the post of Commercial Inspector
and was working in that capacity from February, 1984 to July, 1986 and as
Senior Commercial Inspector from July, 1986 to December, 1993. He was
later promoted as Chief Commercial Inspector and was working in the said
capacity from December, 1993. His wife, Smt. K.S. Satyeswari, who
examined herself as D.W.1, was an income tax assessee. All the three sons
of the respondent had been working. A raid was conducted in his house and
also in the houses of his sons. Some incriminating documents were
allegedly recovered.
During investigation, not only the statement of the respondent, but
also that of his wife and three sons were recorded by the Investigating
Officer. The investigation was admittedly carried on by P.W.41 \026 Shri K.
Biswal and P.W.42 \026 Shri N. Vishnu. Sanction of prosecution was accorded
by P.W. 37 \026 Shri Debaraj Panda, the then Senior Divisional Commercial
Manager, South-Eastern Railway.
The check period under consideration was 1.1.1986 to 9.8.1994. The
prosecution proceeded on the basis that whereas the total income of the
respondent and his family members was Rs.6,73,203.69p. including loans
and advances during the aforesaid check period, the respondent and his
family members had expended Rs.3,31,068.75p.; and acquired assets both
movable and immovable worth Rs.11,66,873.84p. during the said period. It
was also alleged that respondent was in possession of assets and pecuniary
resources in his own name as also in the name of his wife to the tune of
Rs.6,54,738.90p., which was disproportionate to his known sources of
income as on 9.8.1994.
Before the learned Special Judge the respondent examined defence
witnesses, including his wife (D.W.1), his three sons, namely, Shri Karri
Satyanarayana Sarma (D.W.2), Shri K. Srinivas (D.W.3), Shri K. Rama
Sarma (D.W.4) and one Engineer, D.W.5 \026 Shri A. Sridhar, who submitted
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his report in regard to valuation of respondent’s house.
The learned Special Judge in his judgment, inter alia, opined that the
sons of the respondent, other than his eldest son, did not make any
contribution from their salaries. Reliance was placed on the valuation report
submitted by the Engineer of the Income Tax Department, P.W.36 in
preference to the Valuer appointed by accused, i.e., D.W.5. The High Court,
however, by reason of the impugned judgment, inter alia, held that keeping
in view the societal norms prevailing in India, vis-‘-vis, the developed
countries, the sons of appellant presumably make substantial contribution
from their income to their parents.
The High Court also relied upon a large number of decisions of this
Court in coming to the conclusion that if a reasonable margin of 10% is
accorded, the respondent cannot be said to have failed to have proved in
showing means for acquiring assets held and possessed by him as also by his
wife.
Mr. A. Sharan, learned Additional Solicitor General appearing on
behalf of the appellant in support of this appeal would submit that -
i) The wife of the respondent-D.W.1, having categorically stated
that only the eldest son, namely, D.W.2 had been making contributions to
the family, the learned Special Judge must be held to have arrived at a
correct finding of fact that other sons of the respondent having been residing
separately had not been making any such contribution.
ii) The rental income of Rs.88,318/- disclosed in the income tax
return filed by D.W.1, was reckoned twice by the High Court and if the said
sum is taken into consideration towards the income of the respondent, the
High Court must be held to have committed an error in holding that the
assets held by the respondent were marginally higher than the known
sources of income.
iii) The learned Special Judge having assigned sufficient and
cogent reasons to accept the report of the Engineer appointed by the
prosecution, the same should not have been reversed by the High Court.
iv) The High Court also committed an error in calculating the
household expenditure of the respondent.
Mr. A.T.M. Ranga Ramanujam, learned Senior Counsel appearing on
behalf of the respondent, however, submitted :
(i) The learned Special Judge committed a manifest error in so far
as he failed to take into consideration that the investigation carried out by the
P.Ws. 41 and 42 was wholly illegal having not been carried out under the
authorization of the Superintendent of Police; and
(ii) No document having been brought on the records to show that
P.W.37 \026 Shri Debaraj Panda was delegated with the power to accord
sanction of prosecution as against the respondent, the same was vitiated in
law.
Although, we have strong reservation in regard to the manner in
which the High Court dealt with the entire appeal, but we are satisfied that
the investigation carried out by the Investigating Officers was wholly unfair.
We, for the reasons stated hereinafter, are also of the opinion that the P.W.37
could not be said to have been delegated with the power of according
sanction of prosecuting the respondent.
The Prevention of Corruption Act was enacted to consolidate and
amend the law relating to prevention of corruption and for matters connected
therewith. The Act is a Special statute. It contains special procedure not
only in regard to the manner in which the complaint is to be filed, but also
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the mode and manner in which the investigation into an offence thereunder
is required to be carried out. It provides for trial by Special Judges
appointed for the said purposes.
Section 26 of the Act lays down that the powers of the Special Judges.
He has a power to try summarily under Section 6. Section 13 provides for
criminal misconduct by a public servant. The fact that respondent is a public
servant is not in dispute. Section 13(e) specifies criminal misconduct of a
public servant where, an accused himself or any person on his behalf, is in
possession or has, at any time during the period of his office, been in
possession for which the public servant cannot satisfactorily account, of
pecuniary resources or property disproportionate to his known sources of
income.
Provisions of the 1988 Act, no doubt, like the 1947 Act seek to protect
public servant from a vexatious prosecution. Section 17 provides for
investigation by a person authorized in this behalf. The said provision
contains a non-obstante clause. It makes investigation only by police officer
of the ranks specified therein to be imperative in character. The second
proviso appended to Section 17 of the Act provides that an offence referred
to in clause (e) of sub-Section (1) of Section 13, shall not be investigated
without the order of a police officer not below the rank of a Superintendent
of Police. Authorization by a Superintendent of Police in favour of an
officer so as to enable him to carry out investigation in terms of section 17 of
the Act is a statutory one. The power to grant such sanction has been
conferred upon the authorities not below the rank of Superintendent of
Police. The proviso uses a negative expression. It also uses the expression
"shall". Ex-facie it is mandatory in character. When the authority of a
person to carry out investigation is questioned on the ground that he did not
fulfil the statutory requirements laid down therefor in terms of the second
proviso, the burden, undoubtedly, was on the prosecution to prove the same.
It has not been disputed before us that the Investigating Officer, P.W.41, did
not produce any record to show that he had been so authorized. Shri K.
Biswal, the Investigating Officer, while examining himself as P.W.41,
admitted that he had not filed any authorization letter stating :
"I have received the specific authorisation from
S.P., C.B.I., to register a case but I have not filed the said
authorisation letter."
No explanation has been offered therefor. Even no attempt was made
to bring the said document on record at a later stage.
Although a specific contention was raised in that behalf on behalf of
respondent, the learned Special Judge negatived the same holding :
"It is contended that P.Ws. 41 and 42 failed to
produce orders of the Superintendent of Police, C.B.I.,
Visakhapatnam which are mandatory under the second
proviso to section 17 of the Prevention of Corruption
Act, for any Inspector of Police to take up investigation
into an offence under Section 13(1)(e) of the Act. No
doubt, the prosecution did not file the orders of the
Superintendent of Police, C.B.I., Visakhapatnam in this
regard. But, P.W.41 deposed that he registered this case
and issued Ex.P-54 F.I.R. on the instructions of
Superintendent of Police, C.B.I., Visakhapatnam. In the
cross-examination, he deposed that he received specific
authorization from the Superintendent of Police, C.B.I,
Visakhapatnam to register the case. Ex.P-54 F.I.R.
which was forwarded to this Court by the Superintendent
of Police, C.B.I./S.P.E., Visakhapatnam, shows that
P.W.41 deposed that as per the orders of the
Superintendent of Police, C.B.I., Visakhapatnam, he took
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up investigation in this case. Though it is contended by
the defence counsel that the orders of the Superintendent
of Police authorizing P.Ws. 41 and 42 to investigate into
this case were not filed into court, there is absolutely no
cross-examination of P.Ws. 41 and 42 to investigate into
this case inspite of there did not in fact give any such
orders authorizing P.Ws. 41 and 42 to investigate into
this case inspite of there being lengthy cross-examination
of those witnesses."
The approach of the learned Special Judge, to say the least, was not
correct. When a statutory functionary passes an order, that too authorizing a
person to carry out a public function like investigation into an offence, an
order in writing was required to be passed. A statutory functionary must act
in a manner laid down in the statute. Issuance of an oral direction is not
contemplated under the Act. Such a concept is unknown in Administrative
Law. The statutory functionaries are enjoined with a duty to pass written
orders.
Submission of the learned Additional Solicitor General was that the
respondent did not further cross-examine the said witnesses to the effect that
no such order in writing was passed, and thus, he cannot be said to have
been prejudiced in any manner whatsoever. We do not agree.
It is now well settled that when a document being in possession of a
public functionary, who is under a statutory obligation to produce the same
before the court of law, fails and/or neglects to produce the same, an adverse
inference may be drawn against him. The learned Special Judge in the
aforementioned situation was enjoined with a duty to draw an adverse
inference. He did not consider the question from the point of view of
statutory requirements, but took into consideration factors, which were not
germane.
Illegality apart, the manner in which the investigation was
conducted, is condemnable. The least that a court of law would expect from
the prosecution is that the investigation would be a fair one. It would not
only be carried out from the stand of the prosecution, but also the defence,
particularly, in view of the fact that the onus of proof may shift to the
accused at a later stage. The evidence of P.W.41 raises doubts about his
bona fide. Why he did not examine important witnesses and as to why he
had not taken into consideration the relevant documentary evidence has not
been explained. He did not even care to ascertain the correctness or
otherwise of the status of both of the respondent and his wife before the
Income Tax Department. Above all, he did not produce before the Court the
statements made by the appellant, his wife and those of his sons, although
they were relevant. Had the statements of D.W.3 and D.W.4 been produced
before, the learned Special Judge might not have opined that the sons of the
respondent, other than D.W.2, did not make any contribution to their parents
at all. If such statements were made by the said witnesses before the
Investigating Officer, omission on the part of D.W.1, the wife of the
respondent, to state the same before the Special Judge might have taken a
back seat and the statements of other sons of the respondent, namely, D.W.3
and D.W.4 might not have been ignored by the learned Special Judge.
The courts are obliged to go into the question of prejudice of the
accused when the main investigation is concluded without a valid sanction.
{See State of Andhra Pradesh vs. P.V. Narayana [(1971) 1 SCC 483 :
AIR 1971 SC 811]. }
It is true that only on the basis of the illegal investigation a proceeding
may not be quashed unless miscarriage of justice is shown, but, in this case,
as we have noticed hereinbefore, the respondent had suffered miscarriage of
justice as the investigation made by P.W.41 was not fair.
The learned Trial Judge furthermore also committed a serious error in
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so far as he failed to take into consideration that Shri Debaraj Panda, who
examined himself as P.W.37, being a Senior Divisional Operations Manager,
was not competent to accord sanction for prosecution of the respondent
herein. He, in his evidence, accepted that under the Rules he was not the
competent authority to remove him from service. However, he stated that he
had been delegated with power of removing the Chief Commercial Inspector
of the Headquarter of South-Eastern Railway. He also stated :
"It is not true to suggest that only General
Manager and Divisional Railway Manager are the
competent persons to remove the accused from service
and also to accord sanction to prosecute him. It is not
true to suggest that I am not competent to remove the
accused from service and also accorded sanction to
prosecute him. The delegation of powers in respect of
certain officers by the Head quarters, South Eastern
Railway are available in a Booklet called as "Delegation
of Powers" on Establishment matter."
The purported delegation of power had never seen the light of the
day. No reliance thereupon could have been placed to arrive at a finding that
the said witness was authorized to accord sanction. The learned Special
Judge did not apply his mind to these aspects of the matter at all.
This question came for consideration before this Court in Sailendra
Nath Bose vs. State of Bihar [AIR 1968 SC 1292], wherein it was
categorically held :
"P.W. I deposed that the appellant was a Class III
officer and that he could have been appointed or
dismissed by the Deputy Agent Personnel who is
subordinate to him. Therefore he (P.W. 1) was competent
to grant previous sanction under Section 6(1) of the
Prevention of Corruption Act. P.W. 1’s assertion that the
appellant could have been removed from his office either
by the Deputy Agent Personnel or by himself was
challenged in his cross-examination. The trial court as
well as the High Court have relied on the oral evidence of
P.W. 1 in coming to the conclusion that the sanction
granted is valid. In our opinion those courts erred in
relying on oral evidence in deciding the validity of the
sanction granted. Hence, we asked the learned counsel
for the respondent to satisfy us with reference to the rules
on the subject that P.W. 1 was competent to remove the
appellant from his office. For this purpose we granted
him several adjournments. Though our attention has now
been invited to some rules, those rules do not establish
that P.W. 1 was competent to grant the sanction in
question.
As per Rule 134 of the Indian Railway
Establishment Code, published in 1959, authorities
competent to make first appointment to non-gazetted
posts in the Indian Railways are the General Manager,
the Chief Administrative Officer or lower authority to
whom he may delegate power. There is no evidence to
show that this power has been delegated to the heads of
the department. No provision in the Indian Railway
Establishment Code, 1959 prescribing the authorities
competent to remove from office a class III officer was
brought to our notice. But the prefatory note to Vol. I of
the Code says, "The revised Chapter XVII and revised
Appendices I and XII will be printed later for inclusion in
this edition. Till such times these are printed, the rules
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and provisions contained in Chapter XVII and
Appendices IV and XVIII in the 1951 Edition (Re-print)
as amended from time to time shall continue to apply."
In State of Karnataka through CBI vs. C. Nagarajaswamy
[(2005) 8 SCC 370], it was held :
"Grant of proper sanction by a competent authority
is a sine qua non for taking cognizance of the offence. It
is desirable that the question as regard sanction may be
determined at an early stage."
When a sanction is granted by a person not authorized in law, the
same being without jurisdiction, would be a nullity.
For the reasons aforementioned, we are of the opinion that the
impugned judgment need not be interfered with. The appeal is, accordingly,
dismissed.