AN ARTICLE ON CRIMINAL AND SERVICE JURISPRUDENCE

SOME REFLECTIONS IN CRIMINAL AND SERVICE JURISPRUDENCE : SANCTION TO PROSECUTE A PUBLIC SERVANT UNDER PREVENTION OF CORRUPTION ACT, SANCTION ACCORDED BY AN INCOMPETENT AUTHORITY, ITS CONSEQUENCE AND LEGAL PERSPECTIVE : AN APEX JUDICIAL DICTUM

AJAYA KUMAR SAMANTARAY,DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),SHRAM BHAWAN ,JAGJIVAN NAGAR,DHANBAD : 826003 

PRELUDE : In this appeal by special leave, the counsel for the appellant advanced the following contentions : 

(1) the investigation conducted in this case was without the authority of law,

(2) the nature of the onus under s. 4 of the Prevention of Corruption Act has been wrongly construed by the High Court as well as the trial court, and 

(3) the sanction granted under S. 6 of the Prevention of Corruption Act is invalid in law as the authority who granted the same had no competence to do so. 

Let us see as to how the above contentions were addressed by the Hon'ble Supreme Court:

THE CASE-LAW :

S. N. BOSE vrs STATE OF BIHAR on 26 March, 1968 [AIR 1968 SC 1292 = [1968] 3 SCR 563] DoJ : 26 March, 1968

FACTS OF THE CASE :

      One, Dr S N Bose, the appellant in this case, was an assistant medical officer in the Railway Hospital at Gaya in the year 1964. PW 4 Doman Ram was a khalasi working under the inspector of works, Eastern Railway, Gaya. On March 2, 1964, as he was suffering from dysentery and stomach pain he was sent to the appellant along with a sick note for treatment. The case of PW 4 was that when he went to the appellant for treatment the appellant demanded and received, from him Rs. 2 as illegal gratification for treating him. Thereafter he was. treated by the appellant on the 5th, 7th. 9th and 12th of that month. By the 12th he had completely recovered and, therefore he wanted to rejoin duty and for that purpose he requested the appellant to give him a fitness certificate. For issuing him that certificate the appellant demanded Rs. 5 as bribe and he further told PW 4 that unless he paid him the said sum by March 14, 1964, he (appellant) would remove PW 4's name from, the sick list. After this talk, when PW 4 was going out of the hospital he met a person by name Babu.- He complained to Babu about the behavior of the appellant. The said person told him that he would meet him again on March 14, 1964, but on March 14 Mr. A. C. Das PW 17, Inspector of Special Police Establishment met PW 4 in his house and ascertained from him all that had happened. Thereafter PW 4 met PW 17 again at the railway station as desired by the latter. From there both of them went to the district Dak bungalow where PW 17 recorded the complaint of PW 4. The same day PW 17 obtained from the First Class Magistrate an order under s. 5A of the Prevention of Corruption Act. Thereafter, PW 4 produced before PW 17 a five-rupee currency note in the presence of panch witnesses. PW 17 noted the number of the currency note in question, prepared a memorandum in respect of the same, got it attested by the panch witnesses and thereafter returned the said currency note to PW 4 to be given to the appellant in case he made any further demand for bribe. After these preliminaries were over PW 4 went to the appellant along with the panch witnesses. There when PW 4 asked for the certificate, the appellant repeated his earlier demand. Then PW 4 gave him the currency note in question. This was seen by the panch witnesses. Immediately signal was given to PW 17 who came to the hospital and. asked the appellant to produce the five rupee note received by him from PW 4. At this stage the appellant became extremely nervous. He admitted that PW 4 had paid him Rs. 5 but that according to him was a return of the loan given to him by the appellant. He produced the currency note in question. After investigation the appellant was charged under s. 161 IPC and s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act. The plea of the appellant was that PW 4 and his wife were doing odd jobs in his house; PW 4 was a drunkard and hence was always in need; he used to often borrow from him (appellant); he had borrowed Rs. 5/- from him some. days prior to the date of the trap and he returned that amount on that day. The appellant examined some witnesses in support of that plea.

The trial court as well as the High Court accepted the prosecution evidence; rejected the defence version and convicted the appellant both under s. 161, IPC as will as s. 5(2) of the Prevention of Corruption Act. They have given good reasons in support of the findings of fact reached by them.

As the Hon'ble Apex Court did not go into questions of fact except under exceptional circumstances, the Counsel for the Appellant primarily confined himself to the legal issues arising in the case.

THE CONTENTIONS URGED :

 (I) that the investigation held in this case was without the authority of law and hence the appellant is entitled to be acquitted.

(II) that in view of s. 5A of the Prevention of Corruption Act, PW 17 who was only an Inspector of police could not have investigated the case without the prior permission of a magistrate of the first class; on March 12, 1964 he merely applied for and obtained from a first class magistrate permission to lay a trap; the permission to, investigate the case was obtained by him only on the 21st but by that time the entire investigation was over; hence there was no valid investigation.

(iii) that the application made by PW 17 on the 12th was under s. 5A of the Prevention of Corruption Act .Therein, it is true, he had only asked for permission to lay a trap. It must be remembered that the permission given was one under s. 5A.

(iv) that permission under that provision is a permission to investigate the case. Laying the trap is a part of the investigation. It is so laid down by the Hon'ble Apex Court in State of Madhya Pradesh vrs. Mubarak Ali,[1959] 2 S.C.R.201.

(v) that an investigation is one and indivisible.All steps taken by PW 17 to ascertain the truth of the complaint made by PW 4 alleging that the appellant was attempting to obtain bribe from him, come within the expression 'investigation' under s. 4(1) of the Code of Criminal Procedure. 'Investigation' includes all the proceedings under the Code for the collection of evidence conducted by a police officer or any person (other than a magistrate) who is authorised by a magistrate in this behalf.

(vi) that the scope of the expression 'investigate' found in S. 5A of the Prevention of Corruption Act was explained by this Court in H. N. Rishbud and Inder Singh vrs. State of Delhi, [1955] 1 S.C.R. 1150 and State of Uttar Pradesh vrs. Bhagwant Kishore Joshi, A.I.R. 1964 S.C. 221. Section 5A does not contemplate two sanctions, one for laying the trap, and another for further investigation. Once an order under that provision is made that order covers the entire, investigation. A permission given under that provision enables the officer concerned not only to lay a trap but also to hold further investigation.

(vii) that there is no doubt that PW 17 was under a mistaken impression that he should obtain two permissions, one for laying the trap and another for investigating the case. Evidently because of that he applied for a second permission Rome days after the trap was laid. But that permission was wholly superfluous and the same does not affect the validity of the earlier order. Hence there is no basis for the contention that any portion of the investigation in this case was done without the authority of law.

 (viii) that before granting the permission the learned magistrate did not apply his mind to the question whether there was any need for granting the sanction. Before permitting PW 17 he should, have first ascertained whether any officer of the rank of Deputy Superintendent or above was not immediately available to investigate the case, and whether there was any other reason for departing from the normal rule laid down by the legislature, namely, that cases of this nature should be investigated by officers of the rank of Deputy Superintendent of Police or above. It was further contended on behalf of the appellant that the earned magistrate made the order casually he gave no reason in support of his order and hence the permission granted does not meet the requirements of the law.

(ix) that the object of the legislature in enacting S. 5A was to see that the investigation of offenses punishable under ss. 161, 165 or 165A, IPC as well as those under S. 5 of the Prevention of Corruption Act should be done ordinarily by officers of the rank of deputy superintendent or above.

(x) that  Section 5A also provides for an alternative procedure. An officer below the rank of Deputy Superintendent of Police can investigate those offenses if he obtains the previous permission of a first-class magistrate.

(xi) that the legislature proceeded on the basis that except for good reasons the magistrate would not accord permission for officers below the rank of a Deputy Superintendent to investigate those offenses. But exigencies of administrative convenience may require that some of those cases have to be investigated by officers below the rank of Deputy Superintendents. For that reason it was provided that in such circumstances the permission of a Magistrate of the first class should be obtained.

(xii) that the Hon'ble Apex Court has laid down in State of Madhya Pradesh vrs. Mubarak Ali, [1959] 2 S.C.R. 201, that the statutory safeguards under S. 5A must strictly be complied with for they are conceived in public interest and were provided as a guarantee against frivolous and vexatious proceedings.

(xiii) that a Magistrate, can not surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at the stage of granting permission. He must also be satisfied that there is reason owing to exigencies of the administrative convenience to entrust a subordinate officer with the investigation. It is further observed therein that it is desirable that the order giving the permission should ordinarily on the face of it disclose the reasons for giving permission. The order giving permission under s. 5A in this case does not give any reason.

(xiv) that on the application submitted by PW 17 the learned Magistrate merely ordered "Permission granted". PW 17 did not mention in his application any special reason for permitting him to investigate the case unless we consider the statement in the application "Today is the date fixed for issuing the fit certificate after receiving a bribe money of Rs. 5 from him" as impliedly a ground in support of his application.

(xv) that it is surprising that even after the Hon'ble Apex Court pointed out the significance of s. 5A in several decisions there are still some Magistrates and Police Officers who continue to act in a casual manner. It is obvious that they are ignorant of the decisions of the Apex Court. But the legality of the investigation held in this case does not appear to have been challenged in the trial court.

      On hearing the above submissions, the Hon'ble Apex Court stated that the charge leveled against the appellant is established by satisfactory evidence and therefore all that it has now to see is whether the accused was prejudiced by the fact that investigation of this case was made by an officer below the rank of a Deputy Superintendent, as laid down by this Court in Munnalal vrs. State of Uttar Pradesh, AIR 1964 SC 28 and State of Uttar Pradesh vrs. Bhagwant Kishore Joshi, AIR 1964 SC 221. No prejudice was pleaded much less established An illegality committed in the course of an investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceed to termination the invalidity of the preceding investigation does not vitiate "the result unless the miscarriage of justice has been caused thereby [ see Rishbud and Inder Singh vrs. State of Delhi, [1955] 1 S.C.R. 1150 ]

      The Hon'ble Apex Court next took up the question as to the scope of s. 4 of the Prevention of Corruption Act. As mentioned earlier, the appellant admits the fact that he received a sum of Rs. 5 from PW 4 on March 14, 1964. Once that fact is admitted by him, the court has to presume unless the contrary is proved by the appellant that he accepted the sum in question as a motive or reward for issuing the fit certificate. Mr. Mookherjea's contention was that the presumption in question does not arise unless the prosecution proves that the amount in question was paid as a bribe. He urged that the presumption under s. 4 arises only when the prosecution proves that the Appellant had received "any gratification (other than legal remuneration) or any valuable thing from any person". He laid stress on the Word gratification' and according to him the word 'gratification' can only mean something that is given as a corrupt reward. If this contention of Mr. Mookherjea is correct then the presumption in question would become absolutely useless. It is not necessary to go into this question in any great detail as the question is no more res Integra. In C.I. Emden vrs. State of U.P., [1960] 2 S.C.R. 592,  this Court held that the "presumption under s. 4 arose when it was shown that the accused had received the stated amount and that the, said amount was not legal remuneration. The word 'gratification' in s. 4(1) was given its literal dictionary meaning of satisfaction of appetite or desire; it could not be construed to mean money paid by way of a bribe." The Court further observed "If the word 'gratification' is construed to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the raising of the presumption."

Technically it may no doubt be suggested that the object which the statutory presumption serves on, this construction is that the court may then presume that the money was paid by way of a bribe as a motive or reward as required by s. 161 of the Code. In our opinion this could not have been the intention of the Legislature in prescribing the statutory presumption under s. 4 (1). In the context the Hon'ble Apex Court noticed no justification for not giving the word 'gratification' its literal dictionary meaning.

THE OTHER CONSIDERATION WHICH SUPPORTS THE ABOVE CONSTRUCTION :

      The presumption has also to be raised when it is shown that the accused person has received valuable thing. This causes his reference to the offence punishable under s. 165 of the Code; and there is no doubt that one of the essential ingredients of the said offence is that the valuable things should have been received by the accused without consideration or for a not be suggested that the relevant clause in s. 4(1) which deals with the acceptance of any valuable thing should be interpreted to impose upon the prosecution an obligation to prove not only that the valuable thing has been received by the accused but that it has been received by him without consideration or for a consideration which he knows to be inadequate. The plain meaning of this clause undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused without anything more. If that is the true position in respect of the construction of this part of s. 4(1) it would be unreasonable to hold that the word 'gratification' in the same clause imports the necessity to prove not only the payment of money but the incriminating character of the said payment. It is true that the Legislature might have used the word 'money' or 'consideration' as has been done by the relevant section of the English statute; but if the dictionary meaning of the word 'gratification' fits in with the scheme of the section and leads to the same result as the meaning of the word 'valuable thing' mentioned in the same clause, the Hon'ble Court stated, it sees no justification for adding any clause to qualify the word 'gratification'; the view for which the appellant contends in effect amounts to adding a qualifying clause to describe gratification.

The same view was taken by the Hon'ble Court in Dhanvantrai Balwantrai Desai vrs. State of Maharashtra, AIR 1964 SC 575 : [1963] SCR Supl. (1) 485 and again in V. D. Jhangan vrs. State of Uttar Pradesh, AIR 1966 SC 1762: [1966] 3 SCR 736 .

      It was next contended that to discharge the burden placed on the appellant under s. 4 all that he has to do is to offer a reasonable explanation, the burden placed on him by s. 4(1) being somewhat analogous to that 'Placed on an accused under s. 114 of the Evidence Act.

On the above contention the Hon'ble Apex Court stated, this branch of the law is also well settled by the decisions of this Court. Section 114 of the Evidence Act provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Under that provision the court is not bound to draw any presumption of fact. 'It is within its discretion to draw a presumption or not. But under s. 4(1) the court is bound to draw the presumption mentioned therein. ' The presumption in question will hold good unless the accused proves the contrary. In other words, the burden of proving the contrary is squarely placed on the accused. A fact is said to be when after Considering the matters before it the court either believes it to exist or considers its existence was so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists. The proof given by the accused must satisfy the aforementioned conditions. If it does not satisfy those conditions then he cannot be said to, have proved the contrary. In Dhanvantrai Balwantrai vrs. State of Maharashtra (supra) the Apex Court considered the nature of the proof required to be given by the accused under s. 4 (1). Therein the Hon'ble Court held that the burden resting on the accused person in such a case would not be as light as that placed on him under s. 114 of the Evidence Act and the same cannot be held to be discharged merely by reason of the fact that the explanation offered by him is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in that provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. The same view was taken by this Court in V. D. Jhangan vrs. State of Uttar Pradesh (supra). But at the same time it was mentioned in that decision that the burden resting on the accused will be satisfied if the accused person establishes his case by a preponderance of probability and it is not necessary for him to establish his case by the test of proof beyond reasonable doubt. In other words, the, nature of the burden placed on him is not the same as that placed on prosecution which must not only prove its case but prove it beyond reasonable doubt. In the instant case the evidence adduced by the appellant in support of his plea was not accepted by the trial court as well as the High Court. Hence it must be held that he had not discharged the burden placed on him by law.

THE LAST POINT OF CONTENTIONS : AUTHORITY SANCTIONING THE PROSECUTION

The Hon'ble Court further stated, the above takes it to the last point urged by the Counsel for the Appellant, namely, that the sanction to prosecute granted by PW 1, the Chief Medical officer under s. 6(1) of the Prevention of Corruption Act is invalid as he was not the authority competent to remove the appellant from his office and hence the prosecution is vitiated. Section 6(1), to the extent it is material for our present purpose, reads :

"No court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code, or Under sub-section (2) or sub-section 3A of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,

(a)...........................

(b)...........................

(c) in the case of any other person, of the authority competent to remove him from his office."

REFERENCE TO SOME DECISIONS ON COMPETENCY TO SANCTION PROSECUTION :

      The Hon'ble Apex Court has laid down in R. R. Chari vrs. State of U.P., AIR 1951 SC 207 : [1951] SCR 312 as well as in several other decisions that no court can validly take cognizance of any of the offenses mentioned in s. 6 (1) of the Prevention of Corruption Act without the previous sanction of the authority competent to remove from office the accused. Without a valid sanction the court had no jurisdiction to try the case. Hence, if the sanction accorded in this case is invalid then the appellant is entitled to be acquitted.

DEPOSITION OF PW 1 :

      P.W. 1 deposed that the appellant was a class III officer and that he could have been appointed or dismissed by the Deputy Agent Personnel who is subordinate to him. Therefore he (P.W. 1) was competent to grant previous sanction under S. 6 (1) of the Prevention of Corruption Act,1947. P.W. 1's assertion was that the appellant could have been removed from his office either by the Deputy Agent Personnel or by himself was challenged in his cross-examination. The trial court as well as the High Court had relied on the oral evidence of P.W. 1 in coming to the conclusion that the sanction granted is valid. But according to the Hon'ble those courts erred in relying on oral evidence in deciding the validity of the sanction granted. Hence, the counsel for the respondent was asked to satisfy the Hon'ble Court with reference to the rules on the subject that P.W. 1 was competent to remove the appellant from his office. For this purpose several adjournments were granted. Though the attention of the Hon'ble Court was invited to some rules, those rules did not establish that P.W. 1 was competent to grant the sanction in question

CONTENTION ADVANCED BY THE APPELLANT :

      It was contended on behalf of the appellant that he was a gazetted officer and therefore he could be removed only by the Railway Board. This contention did not appear to be correct.

REFERENCE TO RAIWAY CODE/ESTABLISHMENT MANUAL :

      As seen from the Government of India, Ministry of Railways publication under the title "authorised scales of pay", the appellant was a class III officer. From that publication it was further seen that only class I and II officers are designated as gazetted officers. In support of his contention that he was a gazetted officer, the appellant relied on the Railway Board's letter No. PC/60/PS-5/MH3 dated 2nd March 1962. Paragraph 4 of that letter, the only relevant paragraph for the o present purpose, says that an assistant surgeon after five years service shall hold the honorary gazetted rank and shall be entitled to the usual privileges granted to gazetted officers in matters such as passes, allotment of quarters. This letter merely indicates that the officers mentioned therein are entitled to certain privileges which were ordinarily available to gazetted officers. The Hon'ble Court stated, it is unable to read that letter as raising the rank of the appellant to that of a gazetted officer. Therefore the Hon'ble Court proceeded on the basis that the appellant was a non-gazetted officer. But the question still remained whether P.W. 1 was competent to remove him from service. In view of Appendix VIII of the Indian Railways Establishment Code Vol. III (4th re-print, dated 26-7-1962), it was revealed that P.W. 1 was the head of the department to which the appellant belonged. The next question was whether the head of his department was competent to remove the appellant from his service.

RULE 134 OF INDIAN RAI;WAYS ESTABLISHMENT CODE,1959 :

      As per Rule 134 of the Indian Railway Establishment Code, published in 1959, authorities competent to make first appointment to non-gazetted posts in the Indian Railways are the General Manager, the Chief Administrative Officer or lower authority to whom he may delegate power. There was no evidence to show that this power had been delegated to the heads of the department. No provision in the Indian Railway Establishment Code 1959 prescribing the authorities competent to remove from office a class III officer was brought to the notice of the Court. But the prefatory note to Vol. I of the Code says, "The revised Chapter XVII and revised Appendices I and XII will be printed later for inclusion in this edition. Till such times these are printed, the rules and provisions contained in Chapter XVII and Appendices IV and XVIII in the 1951 Edition (Reprint) as, amended from time to time shall continue to apply."

In 1961 new rules relating to discipline and appeal of railway servants other than employed in the railway protection force have been published. Rule 1701 says, "Without prejudice to the provisions of any law, for the time being in force, relating to the conduct of Government servants, or to the rules made under section 47 (e) of the Indian Railways Act, 1890 (9 of 1890), the conduct of railway servants shall be governed by the rules contained in Appendix Vlll." Our attention has not been invited to any rules made under s. 47 (e) of the Indian Railways Act, 1890 or any other statutory rules. Hence we are proceeding on the basis that the aforementioned r. 1701 governs the present case. Rule 1705 says that the authorities who are competent to place a railway servant under suspension and to impose penalties on him are specified- in the Schedules I, II and III appended to the Rules. Rule 1707 sets out the various punishments that may be imposed on a railway servant which includes removal from service as well as dismissal from service. Schedule I deals with railway servants employed in the Railway Board's office, the Research, Design and Standard Organisation, the Railway Staff College, Baroda, the Advanced Permanent Way Training School, Poona, the Railway Service Commission, the Railway Rates Tribunal, the Railway Liaison Office and all other railway offices which are not enumerated above. Schedule I does not apply to the case of railway servants employed in the zonal railways. As regards them, provision is made in Sch. III. From that Schedule it is seen that though a head of the Department can impose on Class III officers censure as well as some other punishments detailed therein, he is not competent to impose on them the punishment of removal from service, compulsory retirement or dismissal from service. Those punishments, as seen from the Schedule, can be imposed on them only by the appointing authority or any other higher authority.

THE CONLCUSION :

      P.W. 1 was not shown to be the appointing authority. On the material before the Court, it (the Court) stated, it is not possible to come to the conclusion that P.W. 1 was competent to grant sanction under s. 6 (1) of the Prevention of Corruption Act.

THE VERDICT :

1.The appeal was allowed.

2. The conviction of the appellant was set aside.