Madan Mohan Arora vs State
1987 Latest Caselaw 96 Del

JUDGMENT

Malik Sharief-ud-din, J.

(1) The appellant was convicted and sentenced to undergo rigorous imprisonment for one year under section 161 Indian Penal Code and to rigorous imprisonment for one year and fine of Rs. 200.00 or in default of payment of fine to further rigorous imprisonment for two months, under section 5(2) read with section 5(l)(d) of the Prevention of Corruption Act, 1947. The substantive sentences of imprisonment were ordered to run concurrently. The judgment was passed by learned Special Judge, Delhi, on 31.3.1976.

(2) Staling briefly, the facts are that the appellant on the relevant date i.e. 6.7.74 was serving as Sub Post Master at the Daryaganj Post Office Delhi and in his capacity as public servant he was alleged to have accepted from one Shahid Parvez, a Sub Editor of 'Rubi' magazine and 'Pakiza', a sum of Rs. 100.00 at the office of 'Rubi' magazine at 18 Ansari Road, Delhi. This was allegedly accepted by him as gratification other than the legal remuneration for acceptance of the magazines for dispatch. It was further alleged that the appellant as a public servant, by corrupt and illegal means and by abusing his official position as public servant obtained from Shahid Parvez pecuniary advantage to the tune of Rs.100.00 In this way, according to the allegations the petitioner had indulged in the commission of an offence under section 161 Indian Penal Code read with section 5(l)(d) and section 5(2) of the Prevention of Corruption Act 1947.

(3) It may be stated that on a complaint lodged by the complainant the appellant was trapped by Cbi and the tainted money was allegedly recovered from his person. The trial court thus believed the prosecution evidence and passed the order of conviction and sentence.

(4) On 17.5.85 on an application Cr.M.709/85 this court passed an order directing the trial court to record additional evidence of the appellant to show that the Senior Superintendent Post Office Mr. Lobu, who had accorded sanction for prosecution of the appellant under section 6 of the Prevention of Corruption Act. was not authorised to do so. This court directed the trial court to record evidence and not to record any finding and remit the record to High Court.

(5) In pursuance of this order the trial court examined Shri P.E. Lobo, Senior Superintendent, Post Offices who was re-called for cross-examination by the appellant. Mr. D.C. Mathur, learned counsel for the appellant has taken me through the statement of this witness in which he has clearly stated that he is junior in rank to that of the Director Postal Services and that according to the Post and Telegraph Manual, Volume II1, it is the Director Postal Services who is the appointing authority of the Sub Post Master. In his testimony he has further admitted as under : "ALONG with that draft of the sanction order I had also received a D.O. from D.N. Adwani Vigilance Officer dated 7th of February 1975. Copy of that letter is Ex.PW4/D3. In view of this letter Ex. Public Witness 4/D3 I did not go through the entire file as I felt that I was duty bound to send back the sanction order after signing the same. I also did not go through the file because I felt that the Vigilance department had already gone through the record and had satisfied itself. Of course I had gone through the papers sent to me. I had gone through those papers and studied.

(6) Mr. Mathur on the basis of the evidence has urged that this is a case in which the appellant has been prosecuted without proper legal sanction. In support of his contention he has urged that P.E. Lobo, Senior Superintendent, Post Office undoubtedly was not competent to accord sanction as be was not the appointing authority. This contention of D.C. Mathur finds support from the testimony of P.E. Lobo recorded as additional evidence.

(7) Mr. Mathur has alternatively urged that assuming though not granting, that Mr P E Lobo was competent to grant sanction for prosecution, the sanction also suffers the infirmity of being not in accordance with the requirements of law. To support his contention he has again invited my attention to the aforesaid quoted portion of this testimony in which he has clearly admitted that he has not gone through the record and has only signed the sanction as it was placed before him by the Vigilance Department.

(8) I find myself in complete agreement with the contention urged. In the first place the sanction for prosecution has been accorded by an Officer not competent to do so. The sanction also suffers from the vice of total non- application of mind and it is no sanction in the eyes of law. Since the appeal is to be allowed on this legal ground, it is not necessary for me to advert to the merits. The appeal is allowed and the conviction and sentence of the appellant is set aside.