JAGANNATH MARUTI TEKADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant in this case, at the relevant time working as a clerk under the Executive Magistrate at Nasik, was tried for a corruption charge in Special Case No. 2 of 1982 by the Special Judge, Nasik. The allegation against the accused was to the effect that on 23-6-1982, he is alleged to have demanded and received an amount of Rs. 100/- as illegal gratification from the complainant Madhukar on the basis of an assurance to him that the chapter proceedings which he was facing would be disposed of. The Anti-corruption Police had laid a trap on that day and the complainant along with one panch witness Pawar are alleged to have handed over the marked currency notes which were found in the drawer of the table on which the accused used to work. The incriminating circumstance against the accused was that anthracene powder was found on his thumb and three fingers of his right hand. The accused was charge-sheeted, tried and convicted by the learned Special Judge, both under sections 161 I. P. C. and under section 5 (1 (d) read with 5 (2) of the Prevention of Corruption Act and sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 100/- in default, rigorous imprisonment for one month. It is against this conviction that the present appeal has been preferred.

(2.) MR. Vaidya, learned Counsel appearing on behalf of the appellant has taken me through the oral evidence on record which follows the familiar pattern in all corruption cases. He has also referred to the evidence of panch witness Pawar as also the pre-trap panchanama, the post-trap panchanama, the evidence of the Police Officers and the supportive evidence of the Tahsildar and certain other witnesses. This last category of witnesses is not particularly relevant in so far as they essentially establish the recovery of the amount of Rs. 100/- from the drawer of the table of the accused and furthermore, because the accused himself in his defence has contended that the complainant who was a regular Court bird had planted the amount in the drawer. The evidence of these witnesses, therefore, which establishes the recovery from that place, to my mind, is not of much consequence.

(3.) MR. Vaidya has, in the first instance, seriously attacked the validity of the sanction order. He contends that sanction is a necessary pre-condition for the validity of a trial under the Prevention of Corruption Act which pre-supposes, in turn, that the sanction order produced before the Court just pass the requisite test of legality. Mr. Vaidya has pointed out that the sanctioning authority in the present case was the Collector and that even though the Collector was cited as a witness, the Collector was not examined and that the prosecution has taken the easy way out by examining a clerk from that office who has gone through the mechanical process of identifying the document. The first necessary ingredient for a valid trial under the Prevention of Corruption Act is a legal, proper, correct and valid sanction order. It is well settled law that the authority who has granted the sanction must indicate to the satisfaction of the Court that he has applied his mind to the facts of the case and granted a valid sanction. This duty is an important one and cannot be loosely complied with nor can it be abdicated as has happened in the present case. The examination of a clerk from the Collectors office is tantamount to the examination of no witness at all because, that clerk is certainly not a competent witness for purposes of deciding the crucial question as to whether the Collector applied his mind to the facts of the case and whether he granted a valid sanction. The law is well settled on this point, that if there is no application of mind, then, the sanction order is vitiated. In the present case, the prosecution is unable to establish that the sanctioning authority has applied his mind and consequently, the same result would have to follow. It has been held by the Supreme Court in the case of (Mohd. Ahmed v. State of Andhra Pradesh) reported in (1979)4 Supreme Court Cases page 172 (Murtaza Fazal Ali, J. , - as he then was), that an invalid sanction order would not only vitiate the trial but it would render the prosecution void ab-initio. In view of this legal position and in view of the fact that the sanction order tendered in the present case cannot even be looked at by the Court as a valid sanction order, the prosecution itself would have to be rendered void ab-initio.