(1.) This revision, by the State, is directed against the order dated 24-2-1998 passed in Criminal Appeal No. 1/1997 by the First Additional Sessions Judge (Special Judge), Khandwa, whereby he has discharged the accused/non-applicant of the offence under Section 7, 13(1) read with Section 13 (2) of the Prevention of Corruption Act, 1988.
(2.) According to the prosecution case, the non-applicant was posted as clerk, Grade I, in the Land Record Section of the Office of Collector, Khandwa. In that Section one Shaila Pare was posted as Clerk, Grade II. On 11-9-1996 Shaila Pare made an oral complaint to Shri S. K. Vashisth, Collector Khandwa, against the non-applicant that he is demanding Rs. 200/- as illegal gratification to process her application for the withdrawal of Rs. 40,000/- from her General Provident Fund Account. Shri Vashisth, in order to verify her complaint, himself signed two currency notes of Rs. 100/- each in front of other officers and gave the same to her. Shaila Pare went to the non- applicant and gave the amount to him. Thereafter, she returned to the chamber of Shri Vashisth and informed him in front of other officers that the non-applicant has accepted the amount. Shri Vashisth immediately sent for the non-applicant. The non-applicant was searched before Shri Vashisth and other officers. During the search the currency notes of Rs. 100/- each, which were signed by Shri Vashisth, were recovered from the possession of non-applicant. A Panchnama of the recovery was prepared. Shri Vashisth, in the capacity of Collector Khandwa, by his memo dated 12-9-1996 informed the Superintendent of Police, Khandwa, about the incident and asked him to register a criminal case against the non-applicant. Shri Vashisth also sent the Panchnama of the articles recovered from the non-applicant and the statement of Shaila Pare for further proceedings. City Superintendent of Police, Khandwa, recorded the first information report at Police Station Kotwali on the basis of written information sent by Collector Shri Vashisth. City Superintendent of Police, Khandwa, thereafter investigated the incident. During investigation he recorded the statements of P. C. Nadiwal Office Superintendent, Collectorate: J. P. Parihar, District Planning Officer; S. S. Rathore, Deputy Collector; Kedar Sharma, Additional Collector; Deepak Saxena, Deputy Collector; Shri Vashisth, Collector and complainant Shaila Pare. He also seized the documents regarding withdrawal of General Provident Fund amount from the account of Shaila Para. The non-applicant was arrested on 2-10-1996. Shri Vashisth, in the capacity of Collector, was the appointing authority of non-applicant. But since he himself was a witness of the incident, in all fairness, it was thought proper to apply for sanction for prosecuition of the non-applicant before a superior officer. Consequently, the request for sanction made by the Superintendent of Police, Khandwa, was forwarded by Shri Vashisth to the Commissioner, Indore Division. Commissioner, Indore Division, by his letter dated 31-9-1997 accorded the sanction for the prosecution of non-applicant. Thereafter, charge sheet was filed against the non-applicant for offences under Sections 7, 13 (1) read with Section 13 (2) of the Prevention of Corruption Act, 1988.
(3.) On 4-9-1997 the non-applicant filed an application for his discharge of the offences. The Special Court by the impugned order allowed the application and discharged the non-applicant on the grounds : (A) the incident of acceptance of bribe by the non-applicant was investigated by the Collector which is not permissible under law. and (B) Commissioner, Indore Division, accorded the sanction mechanically merely on the letter of Collector and not on the request of Police.
(4.) After hearing the learned counsel for the parties and having gone through the challan papers, I am of the considered view that the impugned order deserves to be set aside as the same is indefensible.
(5.) The Special Judge fell into error in holding that the investigation in this case was done by Collector Shri Vashisth. The investigation, in fact, was done by the City Superintendent of Police who is admittedly a competent authority under Section 17 of the Prevention of Corruption Act, 1988 to investigate an offence punishable under the Act. There is no prohibition in the Code of Criminal Procedure that a person who gets information of the commission of an offence cannot make an enquiry to find out truthfulness of the information before informing the police. Collector Shri Vashisth had only verified the truthfulness of the allegation made by his staff Shaila Pare against his another staff, the non-applicant, regarding his unlawful demand of Rs. 200/- for performing his official duty and when the collector found the allegation to be true, he sent the information in writing to the Superintendent of Police, Khandwa, for registration of crime and investigation. City Superintendent of Police, Khandwa, recorded the first information report on the basis of written information sent by Collector Shri Vashisth and thereafter investigated the incident. City Superintendent of Police, Khandwa, recorded the statement of Collector Shri Vashisih and also the statements of all the officers of the ranks of Deputy Collector, Additional Collector and District Planning Officer who were presenting the Officer of Collector and had witnesses the incident. All of them, including Shaila Pare, stated that the non-applicant accepted Rs. 200/- as bribe for processing the application of Shaila Pare for the withdrawal of amount from her General Provident Fund Account. In the absence of any material to disbelieve their statements against the non-applicant, City Superintendent of Police, Khandwa, applied for sanction for the prosecution of non-applicant through the Superintendent of Police, Khandwa. Thus, it is clear that the entire investigation of the case, right from the recording of first information report upto the preparation of charge sheet, was done by the City Superintendent of Police and the Collector had merely sent the information regarding the misconduct of non-applicant to the police for investigation. The trial Court also committed an Illegality in placing reliance on the judgment rendered by the Supreme Court in the State of Madhya Pradesh v. Mubarak All, AIR 1959 SC 707 : (1959 Cri LJ 920). In that case the investigation was done by an officer, other than the designated officer, without seeking prior permission of the Magistrate and, therefore, a fresh investigation was ordered. The facts of the present case are altogether different from the case of Mubarak Ali.
(6.) As regards sanction accorded by the Commissioner, the trial Court wrongly held that it was granted merely on the letter of Collector Shri Vashisth. As already stated above Shri Vashisth, in the capacity of Collector, was the appointing authority of the non-applicant but since he himself was a witness, in all fairness, it was thought proper to apply for sanction before a superior officer. Consequently, a request for sanction made by Superintendent of Police, Khandwa was for warded by Collector Shri Vashisth to the Commissioner along with the case diary. From the sanction order of the Commissioner, it is apparent that he took note of this special circumstance under which he was requested for sanction. It is also apparent that the first information report and other papers were placed before him while he granted the sanction. The Supreme Court in a recent decision rendered in State by Police Inspector v. T. Venkatesh Murthy, AIR 2004 SC 5117 has held that merely because there is any omission, error or Irregularity in the matter of according sanction that does not affect the validity of the proceeding unless the Court records the satisfaction that such
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error, omission or irregularity has resulted in "failure of justice" a requirement of Sub-section (3) of Section 19 of the Act. There is no finding of the trial Court that sanction accorded by the Commissioner has resulted into any failure of justice to the non-applicant. In tact, with the material on record, I am of the view that there was neither (sic) nor there could have been any failure of justice on the prosecution of non-applicant. (7.) In view of the aforesaid, I deem it proper to set aside the impugned order. Consequently, it is directed that the trial Court shall now frame the charges and proceed with the trial of the case and conclude the same expeditiously. 'The non-applicant is directed to appeal before the trial Court on 28-3-2005. The record of the case be returned forthwith to the trial Court. The revision is allowed. Revision allowed.