Telangana High Court
B.Jamuna Bai, Mbbs, Deo, vs State Rep By Inspector Of Police , on 27 June, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No. 270 OF 2007
Between:
B.Jamuna Bai ... Appellant
And
The State, rep. by Inspector of Police,
ACB, Warangal Range ... Respondent/
DATE OF JUDGMENT PRONOUNCED: 27.06.2024
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.A. No. 270 OF 2007
% Dated 27.06.2024
# B.Jamuna Bai ... Appellant
And
$ The State, rep. by Inspector of Police,
ACB, Warangal Range ... Respondent
! Counsel for the Appellant: Sri T.Niranjan Reddy, Senior Counsel
For Sri Ch.Siddartha Sarma
^ Counsel for the Respondents: Sri Sridhar Chikyala
Special Public Prosecutor
>HEAD NOTE:
? Cases referred
1. (2014)14 SCC 295
2. (1997) 7 Supreme Court Cases 622
3. (1976) 4 Supreme Court Cases 233
4. AIR 1958 Supreme Court 124
5. AIR 1966 SC 1762
6. AIR 1999 Supreme Court 3706
3
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.270 OF 2007
JUDGMENT:
1. The appellant was convicted for the offence under Sections 7
and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 and
sentenced to undergo rigorous imprisonment for a period of one
year under both counts, vide judgment in C.C.No.15 of 2002 dated
28.02.2007 passed by the Principal Special Judge for SPE & ACB
Cases, City Civil Court, Hyderabad. Aggrieved by the same,
present appeal is filed.
2. The appellant, while working as Assistant Civil Surgeon in the
Government Area Hospital, Mahaboobabad was entrapped by the
ACB on the basis of complaint of P.W.1. The grievance of the
defacto complainant/P.W.1 is that in the year 1999, his mother was
suffering from stomach pain for which reason, she was taken to the
hospital and the appellant had prescribed certain medicines. Tests
were conducted and the appellant had attended on to the mother of
P.W.1 on 30.09.1999 and 13.10.1999. Appellant advised for
removal of uterus of mother and for the operation, demanded an
amount of Rs.2,500/- as expenditure on 13.10.1999. They
expressed their inability. However, P.W.1's mother was again taken
to the hospital on 20.08.2000. The appellant demanded the said
amount. However, asked to arrange for an amount of Rs.1,600/-
and directed to pay the amount of Rs.1,600/- on 05.09.2000 on
which date, operation would be conducted.
3. Aggrieved by the said demand made on 20.08.2000, P.W.1
approached the ACB office and filed Ex.P3 complaint on
02.09.2000. Having taken the complaint, the DSP/P.W.11 asked
P.W.1 to come on 05.09.2000 on which date trap was arranged. The
trap party gathered in the office of the DSP around 7.00 a.m on the
said date. The formalities required before proceeding to trap were
followed and pre-trap proceedings were drafted which is Ex.P9. The
mother of P.W.1 was also present during the pre-trap proceedings.
The trap party reached the government hospital around 10.45 a.m.
The appellant was in the operation theatre and she came out
around 12.00 noon. When P.W.1 and her mother met the appellant,
she prescribed the mother to undergo blood and urine test. After
the test was undertaken in a private lab, both P.W.1, his mother
along with P.W.2, who was a police constable and part of trap party
met the appellant. Appellant then asked whether Rs.1,600/- was
brought. P.W.1 took the amount from his shirt pocket and handed
over to the appellant. She counted the amount and wrote the name
of the mother on a small slip by mentioning the numerical number
16. The said amount was kept in her small black colour bag. The
said slip on which 16 was written which is Ex.P6 was inserted in
between the currency notes. Thereafter, another slip Ex.P7 was
handed over directing to take the mother of P.W.1 to the
Government Hospital and admit her in the said hospital. P.W.1
came out and gave the pre-arranged signal to the trap party that
there was demand and acceptance of bribe.
4. The trap party entered into the hospital and questioned
whether the appellant had received any amount from P.W.1. Test
was conducted on both the hands and both the hands turned
positive for sodium carbonate test solution reflecting that the
currency notes were handled by the appellant. The currency notes
were then handed over by appellant from her leather bag. In
between the amount, Ex.P6 slip was also found. There was other
currency also in the said bag which was seized by the trap party.
During the course of the post-trap proceedings, the appellant,
complainant and others were examined and relevant documents
were also seized. Post-trap proceedings were drafted which is
Ex.P11 after conclusion of proceedings.
5. Investigation was handed over to the Inspector/P.W.12 who
concluded investigation and filed charge sheet for the offence under
Sections 7 and 13(1)(d) r/w Section 13(2) of the Act. Learned
Special Judge having taken cognizance of the offence, framed
charges for the said offences and examined P.Ws.1 to 12 and
marked Exs.P1 to P17 on behalf of the prosecution and MOs.1 to 9
were also placed on record during trial.
6. On the basis of the evidence of P.Ws.1, 2 and other
circumstantial evidence, the learned Special Judge found that
demand was made by the appellant, pursuant to which, the amount
was accepted on the date of trap for the purpose of performing
surgery on the mother of P.W.1 at the government hospital,
Mahabubabad. Accordingly, the appellant was convicted.
7. Sri T.Niranjan Reddy, learned Senior Counsel appearing for
the appellant would submit that at the earliest point of time, during
the post-trap proceedings, when questioned by the DSP, the
appellant explained that the said money was taken to meet the
expenditure for the operation. The said explanation was in fact
corroborated by P.W.7, who was working as anesthetist and stated
that whenever an operation was conducted on the patients in the
Government Hospital, Mahaboobabad, the appellant used to pay
Rs.400/- towards remuneration for each case. P.W.9 was also
another Doctor who stated that he had instructed the appellant to
arrange private anesthetist for giving anesthesia to the patients who
undergo major operation as there was no post of anesthetist in the
said hospital. Both the witnesses have stated regarding the reason
for collecting the amount is that it was done to meet the surgery
expenditure, since all the facilities required for surgery were not
available in the hospital. In fact, P.Ws.7 and 9 had stated so during
the course of their examination under Section 161 Cr.P.C before the
Investigating Officer.
8. Learned Senior Counsel further argued that the sanction
Ex.P16 was mechanically granted for prosecuting the appellant
without considering the material on record. It is apparent from
Ex.P16 that the entire material in the case was not submitted to the
sanctioning authority. If at all Section 161 Cr.P.C statements of
P.Ws.7 and 9 were looked into by the sanctioning authority,
sanction would not have been granted. Prejudice was caused on
account of the investigating agency not providing the entire material
to the sanctioning authority at the time of seeking sanction for
prosecution.
9. Learned Senior Counsel relied on the judgment of the Hon'ble
Supreme Court in the case of Central Bureau of Investigation v.
Ashok Kumar Aggarwal (2014)14 SCC 295) wherein it is held as
follows:
"13. The prosecution has to satisfy the court that at the time of sending
the matter for grant of sanction by the competent authority, adequate
material for such grant was made available to the said authority. This
may also be evident from the sanction order, in case it is extremely
comprehensive, as all the facts and circumstances of the case may be
spelt out in the sanction order. However, in every individual case, the
court has to find out whether there has been an application of mind on
the part of the sanctioning authority concerned on the material placed
before it. It is so necessary for the reason that there is an obligation on
the sanctioning authority to discharge its duty to give or withhold
sanction only after having full knowledge of the material facts of the
case. Grant of sanction is not a mere formality. Therefore, the
provisions in regard to the sanction must be observed with complete
strictness keeping in mind the public interest and the protection
available to the accused against whom the sanction is sought."
10. Learned Senior Counsel also relied on the judgment in the
cases of: i) Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) 7
Supreme Court Cases 622; ii) Sri Rabindra Kumar Dey v. State of
Orissa ((1976) 4 Supreme Court Cases 233; iii) Jaswant Singh v.
State of Punjab (AIR 1958 Supreme Court 124).
11. Learned Senior Counsel submits that grant of sanction is not
an ideal formality but a solemn and sacrosanct act. Unless the
sanctioning authority applies its mind before granting sanction on
the entire material that was placed by the prosecution, it cannot be
said that it is a valid sanction.
12. Learned Senior counsel also relied on the judgment in the case
of V.D.Jhingan v. State of Uttar Pradesh (AIR 1966 SC 1762),
wherein the Hon'ble Supreme Court held that if the appellant
discharges the onus of proof lying on him by preponderance of
probability, the same would suffice. Initially it is for the prosecution
to prove the case beyond reasonable doubt.
13. On the other hand, learned Special Public Prosecutor
appearing for ACB relied on the judgment in the case of CBI v.
V.K.Sehgal (AIR 1999 Supreme Court 3706). In the said judgment,
the Hon'ble Supreme Court held referring to Section 19(3)(a) of the
Prevention of Corruption Act that any conviction and sentence
cannot be altered or reversed only on the ground of absence of
sanction or want of competency of authority who granted sanction.
Learned counsel further submitted that P.W.1, complainant and
P.W.2, accompanying witnesses had stated that there was demand
of Rs.1,600/- for the purpose of operation and the amount was also
recovered. The appellant having accepted that Rs.1,600/- was
taken from P.W.1, there is a presumption under Section 19 of the
Act and the appellant had failed to rebut the said presumption by
admissible evidence. In the said circumstances, conviction of the
appellant cannot be interfered with.
14. Firstly, adverting to the grounds raised by the learned Senior
Counsel regarding sanction that the entire material was not placed
before the sanctioning authority and sanction was given
mechanically without application of mind, has to be dealt with.
P.W.10 was working as Assistant Secretary, who stated that the
concerned file of appellant was received in the department on
23.08.2001. The said file contained final report, preliminary report,
FIR, mediators report and the entire file was placed before the
Assistant Secretary, then the Joint Secretary and thereafter before
the Special Chief Secretary. The material papers were considered
and the material was referred to Ministry of Health and the Health
Minister approved the sanction orders against the appellant. Ex.P16
is the original G.O which bears the signature of the Special
Secretary. The Special Chief Secretary had signed on the G.O after
that it was also referred to the law department. From a reading of
Ex.P16, the sanction order gives the details of the complainant's
case in brief and also that the appellant was trapped. The test on
both hands turning positive and recovery of tainted currency from
her possession is also stated in the sanction order.
15. The main argument of the learned Senior Counsel is that
Section 161 Cr.P.C statements of P.Ws.7 and 9 were not placed
before the sanctioning authority. As seen from the evidence of
P.W.10, there is no cross-examination to the said effect. P.W.10 had
given the details of the material considered by the sanctioning
authority before granting sanction. The argument of the learned
Senior Counsel that the sanctioning authority would have arrived at
a different conclusion if the statements of P.Ws.7 and 9 were placed
before the sanctioning authority is on the basis of assumption. An
assumption that the sanctioning authority would have been
influenced by the statements under Section 161 Cr.P.C, cannot
form basis to suggest in any manner that the entire material was
not placed before the sanctioning authority. There is no specific
reference to Section 161 Cr.P.C statements of P.Ws.7 and 9, in the
sanction order and so also there is no reference specifically to any
of the documents furnished to the Authority. However, in view of
the sanctioning authority considering the facts of the case that
prima facie case was made out to prosecute the appellant for the
offence under Prevention of Corruption Act, had granted sanction, it
cannot be said that any irregularity or illegality was committed. It is
the law that Section 161 Cr.P.C statements cannot be signed by the
witness and such statements can only be used for the purpose of
confronting and contradicting a witness during trial.
16. For the sake of convenience, Section 19(3)(a) of the Prevention
of Corruption Act,1988 reads as follows:
"19(3)(a):
No finding, sentence or order passed by a special Judge shall
be reversed or altered by a Court in appeal, confirmation or revision
on the ground of the absence of, or any error, omission or irregularity
in, the sanction required under sub-section (1), unless in the opinion
of that Court, a failure of Justice has, in fact, been occasioned
thereby;"
17. Sub-Section (2) of Section 465 of Cr.P.C reads as follows:
"In determining whether any error, omission or irregularity
in any proceeding under this Code, or any error, or irregularity
in any sanction for the prosecution has occasioned a failure of
justice, the Court shall have regard to the fact whether the
objection could and should have been raised at an earlier stage
in the proceedings."
18. I do not find that any prejudice was caused to the appellant
even accepting for a moment that Section 161 Cr.P.C statements of
P.Ws.7 and 9 were not placed before the sanctioning authority.
What fell for consideration with the sanctioning authority is
whether a prima facie case was made out against the appellant, as
seen from the wording and facts stated in the sanction order. The
sanctioning authority would only consider whether prima facie case
was made out before granting sanction. However, it is the duty of
the trial Court to assess and adjudicate upon the claims and
counter claims made before the trial Court by the prosecution and
the defence. Accordingly, the ground of non application of mind by
the Sanctioning Authority on account of assumptions of not
furnishing the entire material to the sanctioning authority and the
sanctioning authority would have refused to grant sanction if P.W.7
and P.W.9's Section 161 Cr.P.C statements were considered, has no
legs to stand. The sanctioning authority is not expected to embark
on an exercise of marshalling facts to ascertain the probability or
correctness of complaint. It is not stated by P.Ws.7 and 9 that they
asked appellant to collect Rs.1,600/- from the complainant. In the
present facts, the argument regarding an invalid sanction or that
sanction would not have been given is negatived.
19. Admittedly, the appellant when questioned during the post-
trap proceedings, her spontaneous reply was that she received
Rs.1,600/- from the complainant for admitting his mother in the
Government Hospital for operation and the said amount of
Rs.1,600/- would be used for purchasing medicines and part of the
amount has to be paid to the anesthetist. It has to be seen whether
the said explanation spontaneously given at the earliest point of
time and subsequently defence taken during the course of trial
explaining the receipt of the amount can be accepted. P.W.7 stated
in his chief examination as follows:
"I am retired from service as Civil Surgeon at M.G.M. Warangal in
the year 2005. Earlier I worked as Professor in Anesthetist. I worked
as Civil Asst.Surgeon at M.G.M Warangal from 1992 to 2003. I know
AO Dr.Jamuna Bai. I used to attend Government Civil Hospital,
Mahabubabad as Anesthetist whenever operation was conducted on
the patients at the said hospital and AO used to pay Rs.400/- to me
towards remuneration for each case. ACB officials examined me and
recorded my statement."
Similarly, P.W.9 stated in his chief examination as follows:
"I am retired from service as Government Civil Surgeon.
Previously I worked as District Coordinator of Hospital service at
Jangam in Warangal District from 01.02.00 to 31.06.02. I know the
AO who worked as Women Assistant Surgeon, Area Hospital,
Mahabubabad in Warangal District. On 05.07.00 I gave instructions
to AO for arranging private anesthetist for giving anesthetia to the
patients who undergo major operation at the said area hospital
Mahabubabad as there was no post of anesthetist in the said
hospital. ACB Inspector examined me and recorded my statement in
this case."
20. The said version of P.Ws.7 and 9 was elicited by prosecution
in chief examination and also during investigation. The version that
P.W.7/anesthetist received Rs.400/- for remuneration in each case
and P.W.9, who was the District Coordinator of the Hospital had
instructed the appellant to arrange private anesthetist as there was
no post of anesthetist is in tandum with the defence of appellant.
Apparently, when the services of outside Doctor are sought during
operation, the expenditure had to be borne by the patient and the
appellant cannot pay on behalf of the patients. It is not the case of
prosecution that the Government Hospital at Mahabubabad was
totally equipped with Doctors, medicines and other paraphernalia
required for conducting operations. No investigation is done to
disprove the explanation given by the appellant at the earliest
instance, to show that what is stated regarding expenditure being
incurred during operation, for medicines and payment to outside
Doctors, is incorrect.
21. In fact, the prosecution witness P.W.9 stated that the
appellant was asked to take the services of an outside anesthetist
since no anesthetist was working in the hospital. P.W.7 anesthetist
stated that he used to receive Rs.400/- towards his services in
every case. In the present circumstances, when the prosecution
case itself is that the facilities required for operation were not
completely provided in the hospital and outside help was sought in
the form of anesthetist and procuring medicines, explanation of the
appellant for collecting Rs.1,600/- has been probablised during
trial. The presumption that is raised against the appellant has been
clearly explained and burden discharged by the appellant in view of
the foregoing discussion.
22. In view of the same, the judgment of the trial Court in
C.C.No.15 of 2002 dated 28.02.2007 passed by the Principal
Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, is
hereby set aside. Since the appellant is on bail, her bail bonds shall
stand cancelled.
23. Accordingly, Criminal Appeal is allowed.
__________________
K.SURENDER, J
Date: 27.06.2024
Note: LR copy to be marked.
B/o.kvs
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.270 of 2007
Date: 27.06.2024
kvs
