Madras High Court
Maheswaran vs The Inspector Of Police on 15 May, 2025
Crl.A(MD)No.31 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 05.12.2024
Pronounced On 15.05.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A.(MD)No.31 of 2018
Maheswaran ... Appellant
vs.
The Inspector of Police,
Vigilance and Anti Corruption,
Madurai.
(Crime No.10/2007) ... Respondent
PRAYER: Criminal Appeal has been filed under Section 374 of
Criminal Procedure Code to call for the records relating to the
judgment of conviction passed in Spl.Case.No.41 of 2011 by the
learned Special Judge for Prevention of Corruption Act Cases,
Madurai dated 28.12.2018 and set aside the same.
For Appellant :Mr.K.P.Narayanakumar
For Respondent :Mr.R.Meenakshi Sundaram
Additional Government Pleader
*****
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Crl.A(MD)No.31 of 2018
JUDGMENT
This Criminal Appeal has been filed against the conviction
and sentence imposed against the appellant in Spl.C.C.No.41 of
2011 by judgment dated 28.12.2017, by the Special Court for trial
of cases under Prevention of Corruption Act, Madurai.
2.The accused in Special C.C.No.41 of 2011, on the file
learned Judge, Special Court for Trial of Cases under Prevention
of Corruption Act, Madurai District filed this Criminal Appeal
challenging the following conviction and sentence imposed on
him by virtue of the impugned judgment dated 28.12.2017 in
Special case No.41 of 2011, by the learned Judge, Special Court for
Trial of Cases under Prevention of Corruption Act, Madurai.
Sl.N Offence Punishable Sentence of Imprisonment and
o under Section fine
1 7 of PC Act 2 years of Imprisonment and
to pay a fine of Rs.1500/-, in
default, to undergo 3 months
simple imprisonment.
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2 13(1)(d)r/w13(2) of 2 years of Imprisonment and
PC Act to pay a fine of Rs.1500/-, in
default, to undergo 3 months
simple imprisonment.
3.The appellant was the Village Administrative Officer of
the Revenue village, Kuravadi. P.W.2's father died on 18.05.2007.
Thereafter, he approached the appellant to include his name in the
Patta Pass book and delete the name of other persons and hence,
he made an application, and requested the appellant to pursue the
application submitted by him before the Tashildar office, for
which, the appellant initially demanded Rs.1500, and
subsequently on various dates, P.W.2 approached the appellant,
and then he reduced the same to Rs.1,000/- and out of the said Rs.
1,000/- he demanded Rs.600/- as initial amount and directed him
to give Rs.400/- after including his name in the Patta Pass book.
Therefore, P.W.2 gave the complaint before the vigilance
Detachment, Madurai and the trap proceeding was initiated and
on 04.10.2007, the appellant reiterated the said demand and
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accepted the said bribe amount of Rs.600/- from P.W.2 in the
presence of the official witness P.W.3. The trap laying officer, after
initiating the above trap, arrested the accused and collected the
materials and remanded the accused and properties. Thereafter,
investigation was conducted by the investigating officer/P.W.13
and he filed the final report before the Special Court and the same
was taken on file and in C.C.No.41 of 2011 and after trial, learned
trial judge convicted the appellant for the alleged offence and
imposed the sentence of imprisonment as stated above.
Challenging the same, the appellant filed this appeal.
4.The learned counsel for the appellant made the following
submission:
4.1. The demand was not proved in accordance with law. As
per the evidence of P.W.2, he along with one Jayakumar,
approached the appellant and the appellant made the demand.
The said witness was not examined by the prosecution and hence,
the demand was not proved as there is no corroborative evidence.
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4.2.The learned counsel further submitted that the evidence
of P.W.2 that the appellant demanded the bribe amount is not
proved in accordance with law. There was no corroborative
evidence to prove his version about reducing the amount from Rs.
1500 to Rs.1000 and further agreement to pay initial bribe amount
of Rs.600/- and balance bribe amount of Rs.400/- later. Hence he
seeks for acquittal.
4.3.The learned counsel further submitted that the
sanctioning authority has not accorded sanction with due
application of mind. He admitted that the investigating officer
approached him with the draft sanction order on 15.09.2008 along
with the documents. On the same day itself, he signed the
sanction order and hence, there was no application of mind.
4.4.The learned counsel further submitted that the
sanctioning proceeding is dated 25-09-2008, whereas, the
signature of the sanctioning authority is dated 15-09-2008 and
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hence, the said discrepancy was not explained by the prosecution
and even by P.W.1 sanctioning authority. In the said
circumstances the learned counsel for appellant submitted that
sanction was accorded mechanically without application of mind
and sanction is sacrosanct act and without proper sanction the
cognizance taken by the Court against the appellant is illegal and
the conviction and sentence imposed against him also is illegal.
Therefore, he seeks for acquittal.
4.5.The learned counsel for the appellant further submitted
that lot of infirmities and inconsistencies are found in the evidence
of P.W.2 and P.W.3 relating to the receipt of the bribe amount.
P.W.3 was not present in the scene of occurrence. As per the
evidence of P.W.2 defacto complainant, he did not enter into the
office of the appellant and he hid himself near the veranda and
hence, he submitted that P.W.3 had no chance of overhearing the
conversation that took place between P.W.2 and the appellant and
he had no chance to see the receipt of bribe amount.
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4.6.In the said circumstances, he pleaded that there was no
corroboration between P.W.2 and P.W.3 in respect of the appellant
reiterating the demand amount to change the patta in the name of
P.W.2 and receiving the said amount as initial bribe. Hence, he
seeks for acquittal.
4.7.The learner counsel further submitted that the evidence
of the prosecution witness P.W.2 is that on the date of the
occurrence he saw D.W.2. The said D.W.2 was the retired Village
Administrative Officer of nearby village. The said D.W.2 clearly
deposed about P.W.2 handing over the amount towards the kist
arrears of one Kalyani Thevar, namely, the father of D.W.3. Hence,
the amount was received as kist arrears of Kalyani Thevar and the
same was falsely stated as bribe amount for change of patta for
changing the name of P.W.2. The appellant's defence that he
received the amount towards arrears of land tax of Kalyani
Thevar is amply proved as per the theory of preponderance of
probabilities. In the said circumstances, the learned trial Judge
failed to consider the defence.
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4.8.The learned counsel for the appellant further submitted
that during the course of the departmental proceedings, the said
Kalyani Thevar was examined on the side of the appellant and he
specifically gave a statement that he handed over Rs.600 towards
arrears of the land tax for his land to P.W.2 and asked to give the
said amount to the appellant. During the course of the trial, he
was not available. But, the statement made during the
departmental enquiry is admissible under the Indian Evidence
Act, and the said statement corroborated with the evidence of
D.W.2 and D.W.2's presence also was admitted by P.W.2.
Therefore, the defence was clearly proved by preponderance of
probability. Therefore, he seeks for acquittal.
4.9.According to the evidence of P.W.2, he has not produced
the relevant documents to change the patta. In the said
circumstances, the accused has no authority to issue the patta and
not even recommend issuance of patta to the Tahsildar office. In
the charge, it is stated that to change the patta in his name, he
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demanded money. He has no authority to change the patta. Either
the Tahsildar or the Deputy Tahsildar alone has got power to
change the patta. In the said circumstances, the demand was false
and acceptance as tax towards the arrears of the land tax of the
Kalyani Thevar is probable one. In support of his contentions, he
relied the following submissions:
(i) In the case of State of Andra Pradesh vs. T.Venkateswara
Rao reported in AIR 2004 SC 1728
(ii)In the case of T.K.Ramesh Kumar vs. State through
Police Inspector, Bangalore reported in (2015) 15 SCC 629
(iii)In the case of K.Shanthamma vs. The State of Telangana
in Crl.A.No.261 of 2022.
and hence, he seeks for the acquittal.
5.The learned Additional Public Prosecutor, on instructions,
and also upon perusal of the records and the impugned judgment,
submitted that in this case acceptance of the amount was admitted
by the appellant. But the appellant gave the explanation with the
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concocted version that the said amount was received towards the
land tax arrears of the one Kalyani Thevar. The said plea of
Kalyani Thevar was disbelieved by the disciplinary authorities
and the enquiry officer accepted the evidence of the independent
official witnesses and gave a finding that charge against him that
he demanded and accepted the bribe amount from P.W.2 for the
change of patta was proved. Hence, the statement of the appellant
that the amount was received towards land tax arrears for
“Kalyani Thevar land” is stage managed one.
5.1.The learned Additional Public Prosecutor further
submitted that the said plea of the defence that the appellant
received the amount towards the arrears of land tax of Kalyani
Thevar is also false and the same was demonstrated through the
document relied by the defence itself that the arrears as on date of
the trap was Rs.874/- and the case of the Kalyani Thevar that he
handed over Rs.600/- is unbelievable and the said circumstance
itself shows that in order to help the appellant, Kalyani Thevar
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gave this statement. It is admitted fact that the Kalyani Thevar is a
close relative of the appellant. In the said circumstances, the
theory of the acceptance of the amount towards the tax arrears for
the land of Kalyani Thevar was rightly rejected by the learned
Trial Judge and no material was adduced before this Court and no
circumstance was demonstrated before this Court to set aside the
said finding of the learned Trial Judge.
5.2.The learned Additional Public Prosecutor further
submitted that P.W.2 approached the appellant on various dates
in his office. The appellant earlier demanded Rs.1,500/- and
subsequently reduced it to Rs.1,000/- and asked to hand over Rs.
600/- as initial bribe amount, and asked to pay the balance
amount subsequently. The said evidence of P.W.2 was reiterated
at the time of the receipt of the bribe amount on the date of the
trap. The said evidence was overheard and seen by P.W.3 the
official witness who was standing just outside the office room of
the appellant. The said evidence of P.W.3 was no way scattered
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during the course of the cross examination of the appellant. In the
said circumstances, the prosecution clearly proved the demand. It
is not necessary to prove every demand. The person who
accompanied the complainant on the first day of demand need not
be examined. The non-examination of the said witness no way
affected the prosecution case of demand and acceptance which are
clearly proved through the evidence of remaining witnesses. In
the said circumstances, the demand and acceptance is clearly
proved in this case and he seeks to confirm the conviction and
sentence imposed against the appellant. The Learned Public
Prosecutor further submitted that there is some variation in the
date relating to the grant of sanction in the sanction order. But,
P.W.1 came into witness box and deposed about according of
sanction and the sanction order reveals the application of mind. In
the said circumstances, the appellant's argument that the there is a
variation in the date of sanction order is immaterial. The witnesses
are being examined after number of years in the vigilance cases
and hence, due to the lapse of time, these type of variations and
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the contradictions between the witnesses is quite natural. Hence,
the Supreme Court in the judgment in the case of Vinod Kumar
Garg v. State (NCT of Delhi) reported in 2020 (2) SCC 88 in
paragraph No.14, has reiterated the principle that the court has to
look into the entire evidence without minding the minor
contradictions and the immaterial infirmities.
5.3.The Additional Public Prosecutor also submitted that
even if there is some variation on the date of the sanction order it
is not a ground to set aside the conviction going by the provisions
of Section 465 Cr.P.C., and Section 19 of the Prevention of
Corruption Act, 1988. The learned Additional Public Prosecutor
also submitted that in a similar situation where the investigation
officer had approached the sanctioning authority with a model
sanction order and raised the plea of non-application of mind, the
Hon'ble Supreme Court rejected the said plea and held that when
the sanctioning authority came to the box stated that he applied
the mind and the sanction order also speaks of application of
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mind, the sanction order can be accepted. The court is duty bound
to see the compliance of Section 19 of the Prevention of
Corruption Act. In the said circumstances, he seeks to confirm the
conviction and sentence.
6. This Court considered the rival submissions made by the
learned counsel appearing on either side and perused the
materials available on record and also the precedents relied upon
by them.
7. The question in this case is whether the prosecution has
established the case beyond reasonable doubt against the
appellant and the Learned trial judge's conviction and sentence
can be sustained or not?
8. This is a brief discussion on facts:
Appellant herein was working as a village administrative
officer in the village called Kuravadi. P.W.2 is the resident of the
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said village. His father died on 18.05.2007. Therefore, he made an
application before the Tahsildar office to change name of his
father in the Patta pass bookand include his name and thereafter
he approached the village administrative officer, namely,
appellant to give the Patta by changing the name of the father and
also to delete the names of Nallamal, Pappamal and
Panjavarnathamal. When P.W.2 approached the appellant on a
day in the month of June at 10.15 am, the appellant demanded a
sum of Rs.1,500/-. Thereafter, on 28.09.2007 at 10.15 am, when he
again approached the appellant in his office he reduced the same
to Rs.1,000/- and asked to pay Rs.600/- as a initial bribe amount
and 400 rupees after the completion of the Patta transfer process
work. Subsequently, P.W.2 approached the appellant on
04.10.2007 at 10.25 pm and he also reiterated the said demand.
Therefore, he gave a complaint before the vigilance office and
P.W.9/Inspector of Police attached with the vigilance department
who received the complaint and verified the genuineness of the
complaint and also upon verification of the fact whether the
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appellant brought the trap amount, registered the case in Crime
No.10 of 2007 under section 7 and 13(2) r/w 13(1) (d) of PC Act,
1988. After registration of the case, he asked the official witnesses
to participate in the trap proceedings. As per direction of the TLO,
P.W.3 and another official witness Jayakumar came to the
vigilance office. The said official witness read over the contents of
the FIR to P.W.2. P.W.2 affirmed the same and also he stated that
the bribe amount was brought by him. After that, P.W.9
demonstrated the phenolphthalein test over the money brought
by P.W.2. Thereafter, Vigilance Constable smeared the
phenolphthalein powder on the amount brought by P.W.2 and
P.W.9 asked P.W.2 to hand over the money if the appellant is
reiterated the demand, and P.W.3 was directed to observe the
proceedings taking place between P.W.2 and the appellant. With
this narration of events P.W.9 prepared the entrustment mahazar,
by noting the numbers of the amount brought by P.W.2 in the
entrustment mahazar and specifically directed to hand over the
money, if the appellant demanded and upon receipt of the money,
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he instructed him to give the signal. Thereafter, P.W.9 and P.W.2
and P.W.3 and their team reached the office of the appellant. At
that time, the appellant had gone to attend the meeting at
Tahsildar office and hence, he was asked to wait for some time in
the said office. After he returned from the meeting at Tahsildar's
office, the appellant reiterated the demand and accepted the
amount and the same was overheard and seen by P.W.3.
Thereafter, P.W.2 gave the signal to P.W.9 and P.W.9 and his
team entered into the office and conducted the phenolphthalein
test in the hands of the appellant and the said wash turned into
pink and immediately, P.W.9 enquired about the receipt of the
bribe amount and the appellant disclosed the place of the amount
and thereafter, P.W.9/TLO completed the search proceedings and
arrested the appellant and prepared the recovery Mahazar in the
presence of the official witnesses and also the Trap Laying Officer
met P.W.10 before entering into the office and P.W.10 also stated
that he gave the amount of Rs.1,000/-. to get the transfer of Patta.
In the said circumstances, the appellant was arrested and brought
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to the vigilance office and then was remanded to the judicial
custody. Thereafter, P.W.13 conducted the investigation by
examining number of witnesses and collected the documents and
also obtained the expert opinion and sanction order from P.W.1
and filed the final report before the Court below and the same was
taken on file in Spl.Case.No.41 of 2011.
9. After appearance of the accused, copies of records were
furnished to him under Section 207 Cr.P.C. The learned Special
Judge, on perusal of records and on hearing both sides and being
satisfied that there existed a prima facie case against the
accused/appellant, framed charges under Sections 7 and 13(1)
r/w 13(2) of Prevention of Corruption Act 1988 and the same
were read over and explained to him and on being questioned, the
accused/appellant denied the charges and pleaded not guilty and
stood for trial.
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10. The prosecution, in order to prove its case, had examined
13 witnesses as P.W.1 to P.W.13 and exhibited 32 documents as
Ex.P.1 to Ex.P.32 and marked five material objects as M.O.1 to
M.O.5. On the side of the appellant, he examined 3 witnesses as
D.W.1 to D.W.3 and exhibited 2 documents as Ex.D1 and Ex.D2.
11.The learned Trial Judge after completion of the
examination of the prosecution witnesses questioned the
appellant under Section 313 of Cr.P.C., by putting incriminating
materials available against him in the prosecution evidence and
the appellant denied them as false and gave an explanation that
the amount was received towards the tax arrears fro the land of
one Kalyani Thevar and hence, he never demanded and received
the amount from P.W.2 as bribe. The learned trial judge, after
considering the same, convicted the appellant as stated above.
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12.Proof of demand:
P.W.2 clearly deposed about his meeting with the appellant
in the month of June 2007 and subsequently, on 25.09.2007 and
also on 04.10.2007. It is true that on earlier occasion, he
approached the Village Administrative Officer along with his
friend Jayapandi. But, subsequently, he alone met the Village
Administrative Officer and the Village Administrative Officer
repeatedly demanded bribe to change and give patta in his name
and initially, he demanded Rs.1500/-. Subsequently, he reduced
to Rs.1000/- and also asked to pay Rs.600/- as advance and the
remaining amount after the completion of patta transfer work..
The appellant also accepted the receipt of the amount. The only
contention of the appellant is that the demand was not proved.
This Court perused the evidence of P.W.2 and also the evidence of
P.W.3. P.W.2 clearly deposed about the demand made in the
month of June 2007 and subsequent demand was made on
25.09.2007 and also on 04.10.2007. It is not necessary to produce
any corroborative evidence for each demand. When the appellant
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reiterated the demand on the date of the trap in the presence of
P.W.3 and P.W.3 clearly deposed about the reiteration of demand
on the date of the trap by overhearing the conversation that took
place between the appellant and P.W.2, this Court without any
hesitation holds that the prosecution clearly proved the demand.
The non-examination of the one Jayapandi who is said to have
accompanied P.W.2 does not affect the prosecution case. When
P.W.2 and independent official witness P.W.3 clearly deposed
about the reiteration of demand on the date of the trap and there
is corroboration between the evidence of P.W.2 and P.W.3 relating
to the reiteration of demand on 4.10.2007. So this Court holds that
the prosecution clearly proved the demand as required under law.
13.The acceptance of the amount.
It is the admitted case of the appellant that he had received
the amount.
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13.1.The Hon'ble Constitution Bench of the Supreme Court
in the case of Dhanvantrai Balwantrai Desai v. State of
Maharashtra [1963 Supp (1) SCR 485 has held as follows:
“Therefore, the Court has no choice in the matter,
once it is established that the accused person has
received a sum of money which was not due to
him as a legal remuneration. Of course, it is open
to that person to show that though that money
was not due to him as legal remuneration, it was
legally due to him in some other manner or that
he had received it under a transaction or an
arrangement which was lawful. The burden
resting on the accused person in such a case
would not be as light as it is where a presumption
is raised under Section 114 of the Evidence Act
and cannot be held to be discharged merely by
reason of the fact that the explanation offered by
the accused 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 this provision make it clear that
the presumption has to be rebutted by ‘proof’ and
not by a bare explanation which is merely
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plausible. A fact is said to be proved when its
existence is directly established or when upon the
material before it the Court finds its existence to
be so probable that a reasonable man would act on
the supposition that it exists. Unless, therefore,
the explanation is supported by proof, the
presumption created by the provision cannot be
said to be rebutted.
***
Something more than raising a reasonable
probability, is required for rebutting a
presumption of law. The bare word of the
appellant is not enough and it was necessary for
him to show that upon the established practice his
explanation was so probable that a prudent man
ought, in the circumstances, to have accepted it.”
13.2. The Hon'ble Supreme Court in the following
judgments has held that if the defence was projected at the time of
proceedings under Section 313 of Cr.P.C., without disclosing the
same at the time of the trap, Courts should be slow in accepting
the same unless the defence is established through evidence.
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13.2.1.In the case of State of Maharashtra v. Rashid
B.Mulani, reported in (2006) 1 SCC 407 has held as follows:
10. ... courts are wary of accepting belated
explanations given for the first time in the statement
under Section 313 and not at the first available
opportunity.
13.2.2.In the case of A. Abdul Kaffar v. State of Kerala,
reported in (2004) 9 SCC 333 has held as follows:
6... The very fact that he failed to mention this to the IO
at the first available opportunity, shows that this
defence is not genuine....
13.3.The only explanation given by the appellant is that he
received the amount towards the land tax arrears of one Kalyani
Thevar. The said Kalyani Thevar also gave a statement before the
disciplinary proceedings in favour of the appellant. But, as rightly
pointed out by the learned Additional Public Prosecutor, the said
statement was not accepted by the disciplinary authority.
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Admittedly, the appellant is a close relative of the said Kalyani
Thevar. Therefore, the argument of the learned Additional Public
Prosecutor that in order to help the appellant, the said Kalyani
Thevar gave the statement before the disciplinary authorities as if
he handed over the money to P.W.2 to remit the same to the
Village Administrative Officer deserves to be accepted. It is true
that as argued by the learned Counsel for the appellant that
village administrative officers also have the duty of collecting the
tax amount directly, since they have close nexus with the village
people. But in this case, the stand of the appellant that he received
the amount towards the land tax arrears of one Kalyani Thevar
cannot be accepted for various reasons. One reason is that as on
the date of payment of the arrears of Kalyani Thevar was more
than a sum of Rs.700/-. As per the version of the Kalyani Thevar,
he handed over a sum of Rs.600/- only and undertook to give the
remaining amount on some other day. D.W.3 is the own son and
he belonged to a political party and instead of sending the amount
through him, the story that tax amount was sent through P.W.2 is
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unbelievable. Apart from that, the amount was more than Rs.
700/- as the arrears tax. In the said circumstances, the amount of
Rs.600/- was handed over to P.W.2 to be paid to the accused and
the same was paid towards the arrears of Kalyani Thevar is not
only false and this explanation is after thought in order to escape
from the case. During the recovery proceedings, when the Trap
Laying Officer, questioned about the bribe amount in the custody
of the appellant, the appellant has not furnished any explanation.
In the said circumstances, the after thought explanation cannot be
accepted. In such type of cases, this Court is duty bound to
appreciate the defence whether it is true or not. In view of the
above discussion, this Court holds that the defence was stage
managed one and the same was not proved in accordance with
law. This Court holds that this defence is false.
14.Inconsistency and Immaterial contradiction:-
The learned counsel for the appellant submitted that there is
inconsistency and contradiction between the evidence of P.W.2
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and P.W.3. In view of the said contradiction, the prosecution case
is liable to be rejected. This Court perused the evidence of P.W.2
and P.W.3. P.W.2 and P.W.3 cogently deposed about the
reiteration of the demand and acceptance of the bribe amount.
P.W.3 has no motive against the appellant to implicate him falsely
in the trap proceeding. No circumstances were demonstrated
before this Court to show any motive on the part of P.W.3. In the
said circumstances, his evidence that the accused received the
amount as bribe is acceptable one.
15. Sanction
The learned counsel submitted that the sanction was not
given in accordance with law. He perused the model sanction
order and hence, sanctioning authority has not applied his mind
and granted sanction in a mechanical manner. According to the
learned counsel for the appellant, sanction is a sacrosanct act and
the sanctioning authority is duty-bound to apply his mind
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independently and grant sanction and hence, he seeks for
acquittal.
15.1. Before Further elaboration on submission of Appellant
regarding non application mind while according sanction, this
Court has a duty to find out the meaning of “sanction” and
precedents relating to the according of sanction. The word
‘sanction’ has not been defined in the Code of Criminal Procedure.
Dictionary Meaning
Webster's Third New Explicit permission or recognition by
Internal Dictionary one in authority that gives validity to
the act of another person or body;
something that authorizes, confirms,
or countenances.
The New Lexicon Webster's Explicit permission given by some one
Dictionary in authority.
The Concise Oxford Encouragement given to an action
Dictionary. etc., by custom or tradition; express
permission, confirmation or
ratification of a law etc; authorize,
countenance, or agree to (an action
etc.)
Stroud's Judicial Dictionary Sanction not only means prior
approval; generally it also means
ratification.
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Words and Phrases— The verb ‘sanction’ has a distinct
shade of meaning from ‘authorize’ and
means to assent, concur, confirm or
ratify. The word conveys the idea of
sacredness or of authority.
The Law Lexicon by Prior approval or ratification.
Ramanath Iyer
Rameshwar Bhartia Vs. State Sanction is in the nature of
of Assam reported in 1952 2 permission.
SCC 203, the Hon'ble
Supreme Court has stated
that
15.2.In Om Prakash v. State of U.P., reported in 2001 SCC
OnLine All 818 at page 1248. Hon'ble Mr.Justice G.P.Mathur (as
he then was) made detailed discussion on this aspect and finally
has held that
6..... The word ‘sanction’ has been used as a “verb”
and therefore it will mean to assent, to concur or
approval.
15.3. Therefore, in the considered opinion of this Court,
sanction is the independent application of mind by the of
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sanctioning authority over the materials forwarded by the
investigating agency to prosecute the accused before the Court of
law under the penal provision constituting the offence.
15.4.The Hon'ble Supreme Court in State of Maharashtra v.
Mahesh G. Jain, (2013) 8 SCC 119 after considering the earlier
various decisions of the Hon'ble Supreme Court reported in AIR
1958 SC 124, AIR 1979 SC 677, 1995 (6) SCC 225, 2005 (4) SCC 81,
2006 (12) SCC 749, 2007 (11) SCC 273 and 2011 (1) SCC 491 has
expounded the following detailed principles of law governing the
validity of sanction:
“14.1. It is incumbent on the prosecution to
prove that the valid sanction has been granted by the
sanctioning authority after being satisfied that a case
for sanction has been made out.
14.2.The sanction order may expressly show that
the sanctioning authority has perused the material placed
before it and, after consideration of the circumstances,
has granted sanction for prosecution.
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14.3.The prosecution may prove by adducing the
evidence that the material was placed before the
sanctioning authority and its satisfaction was arrived at
upon perusal of the material placed before it.
14.4.Grant of sanction is only an administrative
function and the sanctioning authority is required to
prima facie reach the satisfaction that relevant facts
would constitute the offence.
14.5.The adequacy of material placed before the
sanctioning authority cannot be gone into by the court as
it does not sit in appeal over the sanction order.
14.6.If the sanctioning authority has perused all
the materials placed before it and some of them have not
been proved that would not vitiate the order of sanction.
14.7.The order of sanction is a prerequisite as it is
intended to provide a safeguard to a public servant
against frivolous and vexatious litigants, but
simultaneously an order of sanction should not be
construed in a pedantic manner and there should not be
a hyper technical approach to test its validity.”
15.5. In this case P.W.13, after collecting the material
documents and recording the statements of the witnesses
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recorded under Section 161 of Cr.P.C, produced the same before
P.W.1 seeking to accord sanction. P.W.1 after considering the
documents and applying his mind granted sanction under Ex.P1.
The material portion of the sanction order is as follows:
“Whereas it is further reported that after
having seen the prearranged signal given by the
complainant, the Inspector of Police
Tr.Manimaran, rushed to the spot along with the
other official witness Tr.Jayakumar and conducted
penolphthalein test on both the hands of the
V.A.O., the test proved positive and recovered the
tainted money of Rs.600/- from the V.A.O and
phenolphthalein test was done on the left side
shirt pocket of the V.A.O., it also found positive.
Then the V.A.O., was arrested on the same day on
04.10.2007 at about 05.45 pm for having
demanded and accepted illegal gratification from
the complainant.
Whereas it is further reported that the
aforesaid acts of the V.A.O., constitutes the
offences punishable under Section 7 and 1392)
r/w 13(1)(d) of the Prevention of Corruption Act,
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1988.
Whereas the Director of Vigilance and
Anti-Corruption has sought sanction for the
prosecution of the said V.A.O.
Whereas I, Tr.R.Appavoo, Revenue
Divisional Officer, Usilampatti Taluk, Madurai
District, being the competent authority to remove
the said Tr.K.Maheswaran, V.A.O, from service
after fully and carefully examining the materials
placed before me, such as copy of FIR in Cr.No.
10/2007 of Madurai V & AC Unit, Mahazars,
rough sketch, statements of witnesses and of
Tr.K.Maheswaran and connected records and in
the circumstances of the case, am satisfied that the
above said Tr.K.Maheswaran, V.A.O.,
Kuravakudi and additional charge of Kodikulam
Village, Usilampatti Taluk, Madurai District
should be prosecuted before a Court of law for the
said offence.
Now, therefore, in exercise of Powers
conferred under Section 19(1)(c) of Prevention of
Corruption Act, 1988, I do hereby accord
sanction for the prosecution of the said
Tr.K.Maheswaran, V.A.O., Kuravakudi and
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additional charge of Kodikulam village,
Usilampatti Taluk, Madurai District for the
above said offences and for taking cognizance of
the said offences by a Court of competent
jurisdiction.”
15.6.The sanctioning authority has been examined as P.W.1
and he also deposed before the Court that he accorded sanction
under Ex.P1 after applying his mind in the following words:
,J rk;ke;jkhf vd;id ghh;j;J
Ma;thsh; Nehpy; Mtzq;fis nfhLj;jhh;.
Mtzq;fis midj;Jk; ghprPyid nra;Njd;.
25.09.2008 Njjpapl;l vjphp kPJ tof;F njhlu
Coy; jLg;Gr; rl;lk; gphpT 7 kw;Wk; 13(2)
c , 13(1)(b) d; fPo; ehd; ,irthiz
toq;fpNdd;. vjphpia gzpapypUe;J ePf;Fk;
mjpfhuk; vdf;F cs;s fhuzj;jpdhy; Coy;
jLg;G rl;lk; 19(1)(rp) apd; gb tof;F njhlu
ehd; ,irthiz toq;fpNdd;.
me;j ,irthiz m.rh.M.1 MFk;.
15.7. From the above, this Court finds that the sanction order
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itself is eloquent about the fact that the accused had demanded
and accepted the bribe amount. The sanctioning authority also
came into the witness box and he deposed that he accorded
sanction for prosecution after proper application of mind.
Therefore, this Court finds that the sanctioning authority has
applied his mind to the fact that the appellant made a demand
and accepted illegal gratification.
16. Further, Section 19 of the Prevention of Corruption Act
1988 and Section 465 of Cr.P.C., specifically state that the
conviction cannot be set aside on the ground that there was an
error in granting sanction unless accused established failure of
justice. For better appreciation, the relevant portion of the Sections
are extracted as follows:
Section 19 of the Prevention of Under Section 465 of Cr.P.C.
Corruption act 1988
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19.3...(3) Notwithstanding anything 465. Finding or sentence when reversible by reason of
contained in the Code of Criminal error, omission or irregularity.—(1) Subject to the
Procedure, 1973 (2 of 1974),— provisions hereinbefore contained, no finding, sentence
(a) no finding, sentence or order passed or order passed by a court of competent jurisdiction shall
by a Special Judge shall be reversed or be reversed or altered by a court of appeal, confirmation
altered by a court in appeal, or revision on account of any error, omission or
confirmation or revision on the ground irregularity in the complaint, summons, warrant,
of the absence of, or any error, omission proclamation, order, judgment or other proceedings
or irregularity in, the sanction required before or during trial or in any inquiry or other
under sub-section (1), unless in the proceedings under this Code, or any error, or
opinion of that court, a failure of justice irregularity in any sanction for the prosecution, unless in
has in fact been occasioned thereby; the opinion of that court, a failure of justice has in fact
been occasioned thereby.
16.1.The Hon'ble Supreme Court has held as follows in
State v. T.Venkatesh Murthy, reported in (2004) 7 SCC 763 at page
765,
“14. In the instant case neither the trial court
nor the High Court appear to have kept in view the
requirements of sub-section (3) relating to question
regarding “failure of justice”. 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 error, omission or irregularity
has resulted in failure of justice.”
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16.2.In State of M.P. v. Virender Kumar Tripathi, (2009) 15
SCC 533 at page 536 it is observed:
9. Further, the High Court has failed to consider the
effect of Section 19(3) of the Act. The said provision
makes it clear that no finding, sentence or order passed
by a Special Judge shall be reversed or altered by a
court of appeal on the ground of absence of/or any
error, omission or irregularity in sanction required
under sub-section (1) of Section 19 unless in the
opinion of the court a failure of justice has in fact been
occasioned thereby.
16.3.The Hon'ble Supreme Court in Tshering
Bhutia v. State of Sikkim [Ashok Tshering
Bhutia v. State of Sikkim, (2011) 4 SCC 402 referring
to the earlier precedents has observed that
...A mere error, omission or irregularity in sanction is
not considered to be fatal unless it has resulted in a
failure of justice or has been occasioned thereby...
16.3.These two foundational facts to prosecute the
appellants under Section 7 and 13(1)(d) r/w 13(2) and 12 of the
Prevention of Corruption Act 1988 are found in the sanctioning
order/Ex.P1 and in P.W.1's deposition. Further, in the case of
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State of Bihar v. P.P. Sharma, reported in AIR 1991 SC 1260, the
Hon'ble Supreme Court has held as follows:
When the Government accorded sanction,
Section 114(e) of the Evidence Act raises
presumption that the official acts have been
regularly performed. The burden is heavier on the
accused to establish the contra to rebut that
statutory presumption.
17.In this case also as discussed above, the sanctioning
authority accorded sanction by applying his mind and hence, the
presumption under Section 114(e) of the Indian Evidence Act
comes into play that the sanctioning authority properly
discharged his duty. The accused is duty bound to establish the
contra to rebut that statutory presumption and also has to establish the
failure of justice. In this case, the accused never established both.
18.The similar contention of perusal of the model sanction
order was raised earlier before the Hon'ble Supreme Court in the
case of C.S. Krishnamurthy v. State of Karnataka, reported in
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(2005) 4 SCC 81 and the Hon'ble Supreme Court declined to
accept the same and has observed as follows:
7. This sanction order was proved by Mr V.
Parthasarthy, Deputy General Manager of Bangalore
Telecom as PW 40, he was competent authority to accord
sanction and he accorded the sanction for prosecution of
the accused for the alleged offence on 28-2-1990 as per
Ext. P-83. He deposed that SP, CBI sent a report against
the accused and he perused the report and accorded the
sanction as per Ext. P-83. He deposed that he was
satisfied that there was a case for prosecuting the accused
for the alleged offence. He admitted that he received a
draft sanction order and a draft sanction order was also
examined by the Vigilance Cell and then it was put up
before him. He also deposed that before according
sanction he discussed the matter with the Vigilance Cell.
He also admitted that he was not a law man, therefore, he
discussed the legal implication with a legally qualified
officer in the Vigilance Cell. He has denied the
suggestion that he did not apply his mind in according
sanction. It is no doubt true that sanction is necessary for
every prosecution of public servant, this safeguard is
against the frivolous prosecution against public servant
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(sic) from harassment. But, the sanction should not be
taken as a shield to protect corrupt and dishonest public
servant. In the present case, a perusal of the sanction
order itself shows that Shri C.S. Krishnamurthy's
income from all known sources between the period from
25-5-1964 to 27-6-1986 was Rs 7,91,534.93. That
income was from salary, GPF advances, rental income,
interest amount from bank accounts and loan amount
received from LIC towards house constructions, the
dividend income, interest amount and gain in respect of
chits received from Navyodaya Sahakara Bank,
Vyyalikaval House Building Cooperative Society,
Vishalam Chit Funds and Reliance Industries, loan
received from friends and family members, gain towards
sale of scooter/car, sale proceeds of jewellery and income
received by family members and the total expenditure
incurred by the accused during this period is Rs
2,41,382.85 and the total assets acquired by the accused
both movable and immovable from 25-5-1964 to
27-6-1986 is Rs 9,51,606.66p. Therefore, the accused has
to account for difference between the two. The sanction
itself shows that there is something to be accounted for by
the accused. When the sanction itself is very expressive,
then in that case, the argument that particular material
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was not properly placed before the sanctioning authority
for according sanction and the sanctioning authority has
not applied its mind becomes unsustainable. When
sanction order itself is eloquent enough, then in that case
only formal evidence has to be produced by the
sanctioning authority or by any other evidence that the
sanction was accorded by a competent person with due
application of mind.
19.Therefore, as rightly argued by the learned Additional
Public Prosecutor, the sanctioning authority, even though
received the model sanction order to peruse the same is not a
ground to show that he has not applied his mind while according
the sanction. According to P.W.1, he deposed that he looked into
the material produced by the investigating officer and he was
prima facie satisfied that there was a case for prosecuting the
accused for the offences under Section 7 and 13(1)(d) of PC Act,
1988. The sanction order also, contains the material discussion
about the according of sanction with application of mind. Ex.P1
also narrates the events about demand and acceptance on the part
of the appellant.
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20. The witnesses were examined after a long time and
hence, there are some immaterial contradictions and discrepancies
between the witnesses. Much reliance was placed on the
discrepancy of the date of sanctioning order. The learned Public
Prosecutor relied the following portion of the order to reject the
claim of such discrepancy.
20.1.The Hon'ble Supreme Court in the case of the Vinod
Kumar Garg v. State (NCT of Delhi) reported in 2020 (2) SCC 88
clearly stated as follows:-
14... Given the time gap of five to six years,
minor contradictions on some details are bound to
occur and are natural. The witnesses are not
required to recollect and narrate the entire version
with photographic memory notwithstanding the
hiatus and passage of time. Picayune variations do
not in any way negate and contradict the main and
core incriminatory evidence of the demand of bribe,
reason why the bribe was demanded and the actual
taking of the bribe that was paid, which are the
ingredients of the offence under Sections 7 and 13 of
the Act, that as noticed above and hereinafter, have
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been proved and established beyond reasonable
doubt. Documents prepared contemporaneously
noticed above affirm the primary and ocular
evidence. We, therefore, find no good ground and
reason to upset and set aside the findings recorded
by the trial court that have been upheld by the High
Court...
21.From the above judgment of the Hon'ble Supreme relied
by the learned Additional Public Prosecutor, this Court finds that
contradiction in the evidence of P.W.1/ sanctioning authority
relating to the date of issuance of sanction is immaterial one and
in all circumstances, the case of the appellant that the sanction
was not accorded as per law is not legally correct.
22.The entire evidence of P.W.2 and P.W.3 is cogent and
trustworthy. Apart from that, the appellant has taken a false
defence. According to the appellant, he received the amount
towards the tax arrears of Kalyani Thevar. This Court has already
made a detailed discussion in this aspect and held that the said
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defence is false one. In view of the above discussion, this Court
finds no merits in the appeal and the appeal is liable to be
dismissed.
23. Considering the age of the appellant and considering
that the litigation is pending for many years and also taking into
account his age related illness, this Court is inclined to modify the
sentence of imprisonment alone imposed on the
appellant/accused by the learned trial judge.
24. Accordingly, this Criminal Appeal is partly allowed on
the following terms:
(i)the conviction passed against the appellant for the offence
under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of
Corruption Act in Special Case No.41 of 2011, by the learned
Special Judge, Special Court for trial of Prevention of Corruption
Act Cases, Madurai vide judgment dated 28.12.2018 is hereby
confirmed.
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(ii) the sentence of imprisonment to undergo two years
imprisonment and a fine of Rs.1,500/-, in default, to undergo 3
months imprisonment for the offence under Section 7 of the
Prevention of Corruption Act; and to undergo two years
imprisonment and a fine of Rs.1,500/-, in default, to undergo 3
months simple imprisonment for the offence under Section 13(1)
(d) r/w 13(2) of the Prevention of Corruption Act
is modified into
“to undergo one year imprisonment for the offence under Section
7 of the Prevention of Corruption Act; and to undergo one year
imprisonment for the offence under Section 13(1)(d) r/w 13(2) of the
Prevention of Corruption Act and the said sentences are to run
concurrently and the judgment relating to the fine amount is hereby
confirmed” and the said sentences are to run concurrently and the
judgment relating to the fine amount is hereby confirmed”.
(iii)The period if already undergone by the appellant is
ordered to be set off under Section 428 of Cr.P.C.
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(iv)The Bail bond executed by the appellant herein is hereby
cancelled and the Court below is hereby directed to take steps to
secure the appellant to undergo the remaining period of sentence
of imprisonment.
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25. List this case on 27.06.2025 under the caption for
“reporting compliance”.
15.05.2025
Index :Yes / No
Internet :Yes / No
NCC :Yes / No
sbn
To
1.The Special Court
for Trial of Cases under Prevention of Corruption Act,
Madurai.
2.The Inspector of Police,
Vigilance and Anti Corruption,
Madurai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Record Section (Criminal)
Madurai Bench of Madras High Court, Madurai.
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K.K.RAMAKRISHNAN, J.
sbn
15.05.2025
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