MOHAMMAD IQBAL AHMED Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) In this appeal by special leave the appellant has been convicted under S. 161 I. P. C. and S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act and sentenced to rigorous imprisonment for one year and a fine of Rs. 250 on each count.

(2.) The appellant had been convicted by Special Judge but on appeal by the State to the High Court the High Court reversed the judgment of acquittal and convicted the appellant as indicated above. According to the prosecution the appellant is said to have struck a bargain for taking a bribe of Rs. 125 which he received on the 15th of July, 1968 in the presence of P. Ws. 1 and 3. On receiving the signal the raiding party appeared on the scene and the hand of the accused was dipped in water containing phenolphthalein solution which showed that he touched the notes. The defence of the appellant was that the never demanded any bribe and that the notes were thrust into his pocket. It is not necessary for us to dwell on the merits of the case because, in our opinion, the appeal must succeed on a short point of law, raised by Mr. A. N. Mulla, learned counsel for the appellant. It was argued that the sanction under S. 6 of the Prevention of Corruption Act produced in this case does not reveal the facts constituting the offence and, therefore, there is no evidence to show on what materials the sanctioning authority applied its mind and granted the sanction. The Resolution of the Standing Committee granting the sanction is Exh. P-16 and is dated 31-3-1969 and runs as follows:-

(3.) A perusal of the Resolution of the Sanctioning Authority clearly shows that no facts on the basis of which the prosecution was to be sanctioned against the appellant are mentioned in the sanction nor does this document contain any ground on which the satisfaction of the Sanctioning Authority was based and its mind applied. This document merely mentions that the sanction has been given on the basis of a note of the Commissioner, Municipal Corporation which appears to have been placed before the Committee. It is obvious, therefore, that this note, if any, must have come into existence either on 31-3-1969 or at any date prior to this. The prosecution could have proved the facts constituting the offence which were placed before the Sanctioning Authority by producing the note at the trial. But no such thing has been done. What the prosecution did was merely to examine two witnesses P. Ws. 2 and 7. P. W. 2 has produced the order implementing the Resolution of the Sanctioning Authority which is Exhibit P-10 and is dated 21st April 1969, that is to say after the sanction was given. This document no doubt contains the facts constituting the offence but that does not solve the legal issues, that arise in this case. It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficult (sic-defect) in the prosecution, the entire proceedings are rendered void ab initio. In the instant case no evidence has been led either primary or secondary to prove as to what were the contents of the note mentioned in Exhibit P-16 which was placed before the Sanctioning Authority. The evidence of P. W. 2 or P. W. 7 is wholly irrelevant because they were not in a position to say as to what were the contents of the note which formed the subject-matter of the sanction by the Standing Committee of the Corporation. The note referred to above was the only primary evidence for this purpose. Mr. Rao vehemently argued that although the Resolution, Exh. P-16 does not mention the facts, the Court should presume the facts on the basis of the evidence given by P. W. 2 and the order implementing sanction which mentions these facts. This argument is wholly untenable because what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecution and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.