Full Judgment Text
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CASE NO.:
Appeal (crl.) 462 of 2005
PETITIONER:
C.S. Krishnamurthy
RESPONDENT:
State of Karnataka.
DATE OF JUDGMENT: 29/03/2005
BENCH:
P. VENKATARAMA REDDI & A.K. MATHUR
JUDGMENT:
J U D G M E N T
(Arising out of SLP(Crl.) No.4330/2004)
A.K. MATHUR, J.
Leave granted.
This appeal is directed against an order passed by learned
Single Judge of the High Court of Karnataka at Bangalore in Criminal
Appeal No. 608 of 1998 whereby learned Single Judge by his order
dated June 10, 2004 has allowed the appeal of State and set aside
the order of the XXI Additional Sessions Judge and Special Judge
for CBI at Bangalore City whereby he acquitted the appellant
accused under Section 5(2) read with Section 5(1)(e) of the
Prevention of Corruption Act 1947 on the ground of sanction being
invalid in CC No. 131/1990 dated 20th March, 1998.
Brief facts necessary for disposal of this appeal are that the
accused Sri C.S. Krishnamurthy, Technical Supervisor, Bangalore
Telephones, Bangalore was charge-sheeted for the offence under
Section 5(2) read with Section 5(1) (e) of the Prevention of
Corruption Act 1947 (hereinafter referred to as the "Act") alleging that
during the period from May 25, 1964 to June 27, 1986 he acquired
assets disproportionate to his known source of income. On 27th
June, 1986 he was in possession of movables and immovable assets
worth Rs.4,01,454.58 disproportionate to his known source of
income and did not give any satisfactory account. The CBI,
Bangalore City, after completion of the investigation filed charge
sheet against the accused. The charges were framed against the
accused and prosecution examined 56 witnesses and marked
exhibits P-1 to P.124. The statement of the accused was recorded
under Section 313 Cr.P.C. The accused filed the written
explanation. However, he did not choose to lead any defence
evidence. The learned Special Judge after hearing the parties
framed following questions which read as under:-
"1. Whether the sanction order is valid?
2. Whether the prosecution proves beyond all reasonable
doubt that the accused being Technician and then
Technical Supervisor in Bangalore Telephones, being a
public servant during the period from 25.5.1964 to
27.6.1986 acquired assets which were disproportionate
to his known sources of income as on 27.6.1986 as the
accused was in possession of movables and immovable
assets worth Rs. 4,01,454.58 Ps. Which were
disproportionate to his known source of income for
which he could not give satisfactory account?
3. Whether the prosecution has proved beyond all
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reasonable doubt that the accused has committed the
offence under Section 5(1)(e) of the Prevention of
Corruption Act, 1947, punishable under Section 5(2) of
the said Act?
4. What order? "
Learned Special Judge acquitted the accused and held that
there was no proper sanction. Learned Special Judge held that
the prosecution has failed to prove the valid Sanction under
Exhibit P-83 and therefore, prosecution is without jurisdiction and
he acquitted the accused of all charges. Aggrieved against the
order, an appeal was presented by the CBI to the High Court.
Learned Single Judge of the High Court of Karnataka, after
examining the evidence came to the conclusion that the sanction
accorded by the prosecution is valid and set aside the order of the
learned Sessions Judge and remitted the matter back to the
Special Judge, CBI, Bangalore to register the case and to decide
the matter afresh after hearing both the parties. Aggrieved against
this order of the learned Single Judge, the present appeal has
been preferred by the accused.
We heard both the learned counsel for the parties and perused
the record. Whole case depends upon the sanction. Whether the
sanction granted by the authority is a valid sanction or not? In
order to appreciate this controversy, we reproduce the sanction
order which reads as under:-
"SANCTION ORDER
Whereas it is alleged that Shri C.S. Krishnamurthy
while functioning as Technician and then as Technical
Supervisor, Bangalore Telephones, Bangalore, during
the period between 25.5.1964 to 25.6.1986, and, as on
27.6.1986 he was found in possession of
assets/properties/pecuniary resources to the tune of Rs.
4,01,454.58 Ps. Which are disproportionate to his known
source of income suggesting that the said Sri. C.S.
Krishnamurthy acquired the said assets by questionable
means and/or from dubious sources and for which he
cannot render any satisfactory account/explanation.
Whereas the above said allegation is based on the
following facts and circumstances:-
Shri C.S. Krishnamurthy joined the Telephone
Department as Telephone Mechanic on 25.5.1964. He
was promoted as Technical Supervisor and was
working with Bangalore Telephone.
Whereas it has been made to appear that the total
income earned by the said Shri C.S. Krishmurthy from
all known sources between the period 25.5.1964 to
27.6.1986 is Rs. 7, 91,534.93Ps. The income was
from salary, GPF advances, the Rental income, the
interest amount received from Bank accounts, the loan
amount received from LIC towards house constructions,
the dividend income, interest amount and gain in
respect of chits received from Navyodaya
Sahakara Bank, Vyyalikaval House Building, Co-
operative Society, Vishalam Chit Funds and Reliance
Industries, loan received from friends and family
members, gain towards sale of scooter/car, sale
proceeds of jewellery and income received by family
members.
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Whereas it has been made to appear that the total
expenditure incurred by the said Shri C.S.
Krishnamurthy in the above said period from 25.5.1964
to 25.6.1986 was Rs. 2,41,382.85Ps.
Whereas it has been, made to appear that the total
assets both movable and immovable acquired by the
said Shri C.S. Krishnamurthy during the check period
from 25.5.1964 to 27.6.1986 amounted to Rs.
9,51,606.66Ps.
Whereas it has been made to appear that the said
Shri C.S.Krishnamurthy during the entire period of his
service as a public servant have likely savings to the
tune of Rs. 5,50,152.08ps. only against which has had
been found in possession of total assets both movable
and immovable to the tune of Rs. 9,51,606.66 ps. The
extent of disproportionate assets possessed by Shri
C.S. Krishnamurthy as on 27.6.1986 comes to Rs.
4,01,454.58 Ps..
Whereas the said acts constitute offence punishable
under Section 5(2) r/2 5(1)(e) of the Prevention of
Corruption Act, 1947, (Act II of 1947).
And whereas, I, V. Partha Sarthy being the
authority competent to remove Shri C.S. Krishnamurthy
from office after fully and carefully examining the
materials placed before me in regard to the said
allegations and circumstances of this case, consider
that the said Shri C.S. Krishnamurthy should be
prosecuted in a Court of Law for the said offences.
Now, therefore, I V. Partha Sarthy do hereby
accord sanction under Section 6(1) ) of the Prevention
of Corruption Act 1947 (Act II of 1947) for the
Prosecution of the said Shri C.S. Krishnamurthy for the
said offences and any other offences punishable under
other provisions of Law in respect of the said offences
by a Court of competent jurisdiction."
This sanction order was proved by Mr. V. Parthasarthy, Deputy
General Manager of Bangalore Telecom as PW-40, he was
competent authority to accord sanction and he accorded the
sanction for prosecution of accused for the alleged offence on 28th
February, 1990 as per Ex.P. 83. He deposed that S.P. CBI sent
a report against the accused and he perused the report and
accorded the sanction as per Ex.P.83. He deposed that he was
satisfied that there was a case for prosecuting the accused for the
alleged offence. He admitted that he received a draft sanction
order and a draft sanction order was also examined by vigilance
cell and then it was put up before him. He also deposed that
before according sanction he discussed the matter with the
vigilance cell. He also admitted that he was not a law man,
therefore, he discussed the legal implication with a legally qualified
officer in the vigilance cell. He has denied the suggestion that he
did not apply his mind in according sanction. It is no doubt true
that the sanction is necessary for every prosecution of public
servant, this safeguard is against the frivolous prosecution against
public servant from harassment. But, the sanction should not be
taken as a shield to protect corrupt and dishonest public servant.
In the present case, a perusal of the sanction order itself shows
that Shri C.S. Krishnamurthy’s income from all known sources
between the period from May 25, 1964 to June 27, 1986 was Rs.
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7,91,534.93 that income was from salary, GPF advances, rental
income, interest amount from bank accounts and loan amount
received from LIC towards house constructions, the dividend
income, interest amount and gain in respect of chits received from
Navyodaya Sahakra Bank, Vyyalikaval House Building Co-operative
Society, Vishalam Chit Funds and Reliance Industries loan received
from friends and family members, gain towards sale of scooter/car,
sale proceeds of jewellery and income received by family members
and the total expenditure incurred by the accused during these
period is Rs.2,41,382.85 and the total assets acquired by the
accused both movable and immovable from May 25, 1964 to June
27, 1986 is Rs. 9,51,606.66 ps. Therefore, the accused has to
account for difference between the two. The sanction itself shows
that there is something to be accounted by the accused. When the
sanction itself is very expressive, then in that case, the argument
that particular material was not properly placed before the
sanctioning authority for according sanction and sanctioning
authority has not applied its mind becomes unsustainable. When
sanction order itself is eloquent enough, then in that case only
formal evidence has to be produced by the sanctioning authority or
by any other evidence that the sanction was accorded by a
competent person with due application of mind. In the present
case the learned additional sessions Judge took a very narrow
view that all the papers were not placed before the Court to show
that there was proper application of mind by the sanctioning
authority. The view taken by learned Special Judge was not correct
and the learned Single Judge correctly set aside the order. In this
connection we may refer to a three Judge Bench decision of this
Court reported in [1958] SCR 999 INDU BHUSAN CHATTERJEE
Vs. THE STATE OF WEST BENGAL in which a similar argument
was raised that a sanctioning authority did not apply his mind to
the facts of the case but merely perused the draft prepared by the
Police and did not investigate the truth of the offence. The learned
Judges after perusing the sanction order read with the evidence of
Mr. Bokil held that there was a valid sanction accorded by a
competent person. In this case, the accused was charged under
Section 161 of the Indian Penal Code and Section 5(2) of the
Prevention of Corruption Act. The accused was paid a sum of Rs.
100/- in marked currency as illegal gratification at Coffee House for
clearing some claims entrusted to him and same was found in his
possession. Sanction for prosecution of the appellant was sought
from PW-5. Mr.Bokil as a competent authority to grant sanction,
he came in witness box and he deposed that he accorded sanction
for prosecution after proper application of mind. On these facts the
learned Judges observed that Ext. 6 on face of it disclosed a valid
sanction for prosecution. In the sanction order it was disclosed
that accused had accepted a bribe of Rs. 100/- for clearing claim
cases and he was trapped. Though sanctioning authority who came
in witness box could not answer some questions in cross
examination, yet this Court held that sanction itself is eloquent
read with evidence of sanctioning authority and same is valid. In
the present case, the facts contained in the sanction order read
with evidence of sanctioning authority makes it clear that sanction
was properly accorded and is valid.
In this connection, a reference was made to a decision of the
Constitution Bench in the case of R.S.Pandit vs. State of Bihar
reported in [1963] Supp. 2 SCR 652 wherein their Lordships after
referring to a decision of the Privy Council in the case of Gokulchand
Dwarkadas Morarka v. The King [ AIR 1948 PC 83] observed as
under:
" Section 6 of the Act also does not
require the sanction to be given in a particular
form. The principle expressed by the Privy
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Council, namely that the sanction should be
given in respect of the facts constituting the
offence charged equally applies to the sanction
under S.6 of the Act. In the present case all the
facts constituting the offence of misconduct with
which the appellant was charged were placed
before the Government. The second principle,
namely, that the facts should be referred to on
the face of the sanction and if they do not so
appear, the prosecution must prove them by
extraneous evidence, is certainly sound having
regard to the purpose of the requirements of a
sanction."
Therefore, the ratio is sanction order should speak for itself and
in case the facts do not so appear, it should be proved by leading
evidence that all the particulars were placed before the sanctioning
authority for due application of mind. In case the sanction speaks for
itself then the satisfaction of the sanctioning authority is apparent by
reading the order. In the present case, the sanction order speaks for
itself that the incumbent has to account for the assets
disproportionate to his known source of income. That is contained in
the sanction order itself. More so, as pointed out, the sanctioning
authority has come in the witness box as witness No.40 and has
deposed about his application of mind and after going through the
report of the Superintendent of Police, CBI and after discussing the
matter with his legal department, he accorded sanction. It is not a
case that the sanction is lacking in the present case. The view taken
by the Additional Sessions Judge is not correct and the view taken by
learned Single Judge of the High Court is justified.
In the case of Balaram Swain v. State of Orissa reported in
1991 Supp. (1) SCC 510 the High Court reversed the finding of the
trial court that the sanctioning authority has not applied its mind on
the materials placed before him. It was observed in para 9 that the
sanctioning authority , namely, PW 4 has stated on oath that he
perused the consolidated report of the vigilance and fully applied his
mind and thereafter issued the sanction. The admission of PW-7 in
that case that the entire record was not looked into, was held to be
not fatal to the sanction. The finding of the High Court was affirmed
by Apex Court. Likewise, P.W.40, i.e. the sanctioning authority in the
present case, has gone through the report of the Superintendent of
Police and after discussing the matter with the legal department has
accorded sanction. That is enough to show that there is due
application of mind in the present case.
Our attention was invited to another decision of this Court. In
the case of Mansukhlal Vithaldas Chauhan vs. State of Gujarat
reported in (1997) 7 SCC 622, wherein sanction was quashed
because sanction for prosecution was given under the direction of the
High Court, therefore, it was held that it was not independent
application of mind by sanctioning authority as such sanction was
invalid. In this case, sanctioning authority who was supposed to
apply its mind for granting sanction was denuded of its power
because of the direction given by the High Court. Therefore, this case
does not help the appellant.
Similarly, our attention was invited to a decision of this Court
In the case of State of T.N. vs. M.M.Rajendran reported in (1998) 9
SCC 268. In this case, sanction was accorded by the City
Commissioner of Police, Madras. On that basis the trial commenced.
The High Court found that all the relevant materials including the
statements recorded by the Investigating Officer was not placed for
consideration before the City Commissioner of Police, Madras
because only a report of the Vigilance Department was placed before
him. The High Court came to the finding that although the Personal
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Assistant to the City Commissioner of Police, Madras has deposed
that proper sanction was accorded by the City Commissioner of
Police after going though the detailed report of vigilance, but the
statements recorded during the investigation was not placed before
sanctioning authority and therefore, there was no proper application
of mind by sanctioning authority, as such sanction was invalid. But
in the present case, the sanction order itself discloses the facts that
the incumbent is being prosecuted under the provisions of the
Prevention of Corruption Act for accumulating moveable and
immovable assets worth Rs.4,01,454.58 paise which is
disproportionate to his known source of income and he has failed to
give satisfactory account for the same. In the present case, facts
mentioned in sanction order are eloquent for constituting prima facie
offence under Section 5(2) read with Section 5(1)(e) of the Act.
Therefore, there is due application of mind by sanctioning authority
and the sanction is valid.
Learned counsel for appellant submitted that offence was
alleged to have been committed in 1986, now after lapse of almost
19 years would it be advisable to proceed with the matter. It is a
matter of corruption and we cannot give any latitude in such matters.
Therefore, under these circumstances, we are of opinion that
the view taken by learned Single Judge of the High Court appears to
be justified and there is no ground to interfere in the present appeal.
Accordingly, the appeal is dismissed. However, nothing said herein
or the High Court excepting on the point of sanction should influence
the trial court’s decision on merits.
The adverse observations made against the trial Judge are deleted.