MANSUKHLAL VITHALDAS CHAUHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Appeal is arising out of the judgment and order of conviction and sentence passed by the leaned Special Judge, Bharuch on 20-9-1986 in Special Case No. 3 of 1985 convicting the appellant-accused for the offences punishable under Sec. 5(2) of the Prevention of Corruption Act. 1947 (for short "the Act") and Sec. 161 of the I.P.C. and sentencing him to suffer R.I. for two years and a fine of Rs. 15,000.00(rupees fifteen thousand only) in default to further undergo R.I. for one year for the offence punishable under Sec. 5(2) of the Act and further sentencing him to suffer R.I. for two years for the offence punishable under Sec. 161 of I.P.C. However, substantive sentences of imprisonment are ordered to run concurrently. .... ..... .... ....

(2.) We will first take up the contention of Mr. Anandjiwala regarding sanction. Mr. Anandjiwala tried to argue that Shri Lade, who accorded sanction to prosecute the accused, was not the appointing authority of the accused and, therefore, he could not have accorded sanction to prosecute the accused. There is nothing on record to show that Shri Lade, who was Under Secretary and holding the charge of Deputy Secretary at the time of according sanction, was subordinate to the appointing authority of the accused In fact, no suggestion was made to Shri Lade or any of the prosecution witnesses that Shri Lade was not competent to accord sanction. It has become clear from the record that accused is only a Class-Ill Government servant. Hence, it cannot be held that Shri Lade was not competent to accord sanction. Alternative submission of Mr. Anandjiwala that there was no application of mind on the part of Shri Lade, who accorded sanction and, therefore, sanction should be held. to be bad. He submitted that as per the order dated 2-1-1985 of the learned single Judge of this Court, it was the Secretary, who ought to have accorded sanction and not Shri Lade, who was Deputy Secretary. The papers regarding the application made by the accused to the Home Minister and the papers regarding re-investigation and the report of A.C.B were neither placed before Shri Lade nor they were considered by Shri Lade before according sanciion. The decision was taken by the Secretary on 22-1-1985 to accord sanction to prosecute the accused, the file came back in the office of the Secretary from the office of the Chief Minister only on 30-1-1985 and before that it was not permissible for Shri Lade to accord sanction. He had given the sanction simply relying upon report of A.C.B and the same is not permissible in view of the above facts. Thus, the order of sanction suffers from the vice of non-application of mind and, therefore, it should be declared bad and illegal. It is true that on application of the accused the Home Minister did make endorsement and ordered further investigation. Not only that he specifically ordered not to proceed further in the matter till the final report of reinvestigation was received. But the said report was received in the month of December 1984, which in fact was against the accused It is also true that the learned single Judge of this Court by his order dated 2-1-1985 directed the Secretary to accord sanction within 15 days from the date of the receipt of the writ of the Court. But that does not mean that there was prohibition on any officer other than the Secretary, who would be competent to accord sanction, to accord sanction as per the order of this Court. It is to be noted that purpose of filing that petition before this Court by complainant was to see that the speedy decision be taken for according sanction to prosecute the accused in this case. Therefore, instead of the Secretary according sanction, if the Dy. Secretary accorded sanction, that would not vitiate the sanction as it is held by us that Shri Lade was competent to accord sanction. Bare reading of the sanction order Exh. 9 clearly shows that before according sanction Shri Lade, who was holding the charge of the post of Dy. Secretary, did consider the report of P.I. of A.C B. in the case and also considered the relevant papers of the case and he was clearly satisfied that there was a prima facie case against the accused for prosecuting him for demanding and accepting Rs. 20,000.00 by way of illegal gratification from the complainant and, therefore, he accorded sanction. It may also be stated that a specific qusstion was put to Shri Lade in his cross-examination that he accorded sanction without applying his mind to the facts of the case, which he had specifically denied. In fact, it clearly emerges from the sanction order that before according sanciion he had taken into consideration relevant aspects of the ease and ultimately accorded sanction. Therefore, the submission of Mr. Anandjiwala that the sanction order suffers from the vice of non-application of mind has to be rejected and it is rejected. .... .... .... .... .... ....

(3.) Next submission of Mr. Anandjiwala is that the prosecution case that the accused demanded and accepted bribe money in presence of panch No. 1, who was completely unknown to him, is not at all believable. Mr. Anandjiwala lias relied upon the judgment of the Supreme Court in the case of G. V. Nanjundiah v. State (Delhi Admn.), reported in AIR 1987 SC 2402. It is true that in para 2. of the judgment the Supreme Court observed that, "it is common sense that a person would not accept bribe in the presence of a stranger" But in this case the accused has not straightway accepted the amount. He first inquired from the complainant about the panch and when the complainant told him that he was none else but his cousin brother and not to be worried about him, only threafter he demanded money from the complainant and accepted the same. The evidence of the complainant on this point has not at all been challenged in the cross-examination by the accused. It may also be stated at this stage that panch witness Bachubhai P. W. 2 has also stated in his chiefexamination about the above talk between the complainant and the accused regarding demand and acceptance and on material aspects of the case he has fully supported the complainant. To our utter surprise his evidence has not at all been challenged in cross-examination on this aspect. Therefore, we have no hesitation in coming to the conclusion that the prosecution has proved its case beyond doubt that the accused demanded and accepted Rs. 20,000/ - from the complainant in presence of panch No. 1.