SUNDERLAL SHIVANA Vs. STATE

JUDGEMENT

(1.) The learned Single Judge has referred the following question for opinion of the Full Bench :-

(2.) At the relevant time, the appellant was working as Naib-Tahsildar and was posted at Raipur, his appointing authority being the State Government, Naib-Tahsildar comes within the administrative control and supervision of the revenue department. While so posted there, it is alleged that the appellant demanded bribe of Rs. 300/- for settling encroachment case of the complainant, who had constructed a Tapra by encroaching on the Nazul land and was running a hotel there. It is said that the complainant paid Rs. 200/- to the Naib Tahsildar on 23-9-1979 and expressed his inability to pay any further sum, which did not satisfy the appellant, who was giving him threats every now and then and demanding the balance amount of Rs. 100/-, otherwise, he would throw out the complainant's Tapra by dismantling it. The complainant, therefore, met him on 31-10-1979 and again expressed his inability to pay any further amount, but the appellant insisted on payment, otherwise, he threatened to take immediate action against him. The complainant, therefore, paid Rs. 25/- to him and promised to pay the balance amount of Rs. 75/- in the evening. The appellant asked him to bring the amount at his residence in the evening. In the meantime, the appellant approached the Special Police Establishment of the Vigilance Commission at Raipur, and a trap was arranged. Marked currency notes of Rs. 75/- smeared with phenol phthalein powder were given to the complainant for handing over to the appellant. In the evening, the complainant went and handed over the amount of Rs. 75/- to the appellant, which the appellant kept in the pocket of his trousers. The complainant gave signal to the raiding party. Currency notes of Rs. 75/- were recovered from the appellant and on his hands and trousers traces of phenol phthalein were detected, after they were dipped in water. On completing the investigation, the prosecution applied for sanction from the State Government for prosecution of the appellant. The order granting sanction was issued on 3-12-1981, signed by the Deputy Secretary, Law and Legislative Affairs Department, in the name and under the order of the Governor. It may be mentioned here that the actual sanction has been given by the Cabinet Minister of the Law and Legislative Affairs Department on 16-11-1981 and thereafter the aforesaid order was issued. It is a detailed order. After finding a prima facie case, sanction has been given for the prosecution of the appellant for the offences under S.5(1)(d) read with S.5(2) of the Prevention of Corruption Act, 1947, and S.161, I.P.C., by invoking powers under S.6(1)(b) and (c) of the Prevention of Corruption Act, and S.197(1)(b), Cr.P.C. Accordingly, the appellant was charge-sheeted for the offences and ultimately he has been convicted by the learned Special Judge for the aforesaid offences and sentenced to rigorous imprisonment for 18 months and fine of Rs. 500/-, or, in default, further rigorous imprisonment for six months on the first count and R.I. for one year on the second count, both substantive sentence to run concurrently. Against the conviction, the present appeal has been filed and when the matter was listed before the learned single Judge objection was taken by the appellant's counsel that it was only that authority who alone was competent to remove the appellant from service, who could give sanction and the sanction has not been given by the disciplinary authority in the revenue department, but by the Law and Legislative Affairs Department, Government of Madhya Pradesh, as required by Sub-Sec. (2) of S.6 of the Prevention of Corruption Act. In support, learned counsel for the appellant relies on a Division Bench decision in State of M.P. v. Shiv Prasad, Criminal Appeal No. 453 of 1983, decided on 6-3-1986. The learned single Judge was of the view that the validity of sanction, which is accorded under Sub-Sec. (1) of S.6 being not as an ex post facto requirement, cannot be decided with reference to Sub-Sec. (2), which contains merely prescription for the sanctioning authority to know its bounds.

(3.) The relevant portion of S.6 of the Prevention of Corruption Act is quoted hereunder :-