ASHOK TSHERING BHUTIA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order dated 11.12.2002 passed by the High Court of Sikkim at Gangtok in Criminal Appeal No. 4 of 2002, upholding the judgment and order dated 30.5.2002, passed by the Special Judge, Prevention of Corruption Act, Gangtok in Criminal Case No. 4 of 1997, convicting the Appellant for the offences punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter called as PC Act 1988) and awarding him the sentence of 3 years RI and a fine of Rs. 10,000/-, in default thereof, to undergo a further RI for six months.

(2.) Facts and circumstances giving rise to appeal are as under:

(3.) Shri V.A. Bobde, learned senior counsel appearing for the Appellant, has raised a large number of issues contending inter-alia that the FIR could not have been lodged without the written order/direction of the Superintendent of Police. The FIR had been lodged in flagrant violation of statutory requirements. The question of putting the criminal law into motion could not arise. Executive action has not only been taken irresponsibly, it tantamounts to abuse of power. The courts below not only ought to have disapproved of it but should have refused to act upon it. The police authorities cannot be permitted to take advantage of an abuse of power. Sanction could not have been accorded without considering the contents of Ex.D-4; no preliminary enquiry had been conducted against the Appellant, as required by various judicial pronouncements of this Court. The documents very heavily relied upon by the prosecution had never been proved in spite of remand of the case for that purpose. Remand even for limited purpose to prove the documents was impermissible as it is tantamount to giving an opportunity to the prosecution to fill up any lacunae in its case. The procedural error committed by the prosecution is not curable. Therefore, the entire prosecution proceedings stood vitiated. More so, the evidence adduced by the Appellant in defence regarding the income from his rented premises had been discarded on flimsy grounds e.g. that the tenants had not shown their income and expenditure while filling up the income tax returns, nor had the tenants produced the rent receipts or on the basis that there was some discrepancy between the income derived from the tenants and the amounts shown from other sources while submitting the Ext. D-4.