K M KUMARASWAMY Vs. STATE

JUDGEMENT

(1.) A rather interesting position in law has emerged in this case as will be set out presently. The accused at the relevant time was working as Village Accountant of Veeradevanapura Group Panchayat in Nanjungud Taluk and it is alleged that on 28-3-1985 he demanded and accepted illegal gratification of Rs. 450/- in consideration for change of khata. This was a case in which the accused is alleged to have demanded Rs. 500/- for doing the job from PW-2 Sundaramma. According to the complainant, she was doing coolie work and she told the accused that she is so poor that it is impossible for her to produce that amount of money and the accused flatly refused to relent. Thereafter, her brother is supposed to have met the accused again and paid him Rs. 50/- with a promise that he would bring the remaining amount on 28-3-1985. A complaint was lodged with the anti-corruption police and a trap was laid, the currency notes were treated with phenolphthalein powder and, the amount was finally tendered to the accused after he demanded it. Not only were the currency notes recovered from his possession but the prosecution further alleges that the limewater with which his hands were tested turned pink as a sign of his having come in contact with the powder. On completion of the investigation, the accused was charged with having committed an offence under S. 5 (1) (d) of the Prevention of Corruption Act and was put up for trial. The learned trial Judge found the accused guilty, convicted him and sentenced him to R. I. for two years and to pay a fine of Rs. 1,000/- in default. S. I. for three months. The present appeal is directed against that conviction.

(2.) THIS appeal has had a relatively long innings before the High Court because, the appellant's learned Counsel raised a preliminary objection, which though seemingly technical, has very far reaching consequences. What was pointed out to the High Court was that this being a case under the Prevention of Corruption Act, that it could only be heard by a Special Judge, duly notified and appointed by the State Government. The then Special Judge presiding over the Court in Mysore had been elevated to the High Court and consequently, the case was heard and decided by his successor Judge P. T. Patil. The objection raised was that the judicial officer presiding over the special Court had not been duly notified and appointed as a Special Judge as on the date of the decision. This Court called for the relevant notification from the Sessions Court at Mysore but the same was not forthcoming and neither could the Law Department of the State Government produce the notification. The record will indicate that this Court gave the Government more than adequate time on several dates of hearing to produce either the notification or the copy of the Gazette but that neither was forthcoming. Thereafter, this Court passed an order which was communicated to the State Government that if the notification copy was not produced before the next date of hearing, that the High Court would proceed on the footing that there was no such notification in existence and would pass consequential orders. The Government was unable to produce any such notification and consequently, this Court passed an order that the plea raised by the defence to the effect that the learned Special Judge who presided over the Special Court was not duly notified and appointed as a Special Judge and that the court would then consider the consequences of such a situation.

(3.) I have heard the appellant's learned counsel and the learned Additional State Public Prosecutor both as regards this aspect of the case as also on merits. It was necessary to examine all aspects of the record before deciding on the correct course of action in such a situation. In the light of the position that emerges viz. , that the learned trial judge was not duly notified as a Special Judge as on the date of the decision, the decision of the trial Court gets immediately vitiated. This is not a curable procedural irregularity but, something that is very basic and something that goes to the root of the matter because the bottom line is that the case has been decided by a Court which had no jurisdiction to hear and decide such a proceeding. Under the circumstances, there is no option left to this Court other than to quash and set aside the conviction and sentence. The difficult question is as to whether or not in such a situation, a re-trial should be ordered.