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CASE NO.: Appeal (crl.)  1009 of 2002

PETITIONER: State, C.B.I., Hyderabad

RESPONDENT: Edwin Devasahayam

DATE OF JUDGMENT: 13/07/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      This appeal is directed against the judgment rendered by  a learned Single Judge of the Andhra Pradesh High Court,  directing acquittal of the respondent (hereinafter described as  ’accused’). The Trial Court, i.e., Special Judge for C.B.I. Cases,  Hyderabad in Calendar Case No.80 of 1996, had held the  respondent guilty of offence punishable under Section 7 of the  Prevention of Corruption Act, 1988 (in short ’the Act’), while   directing his acquittal in respect of the offence punishable  under Section 13(2) read with Section 13(1)(d) of the Act.  He  was sentenced to undergo rigorous imprisonment for six  months and also to pay a fine of Rs.1,000/- with default  stipulation.    

2.      The prosecution version, as unfolded during trial, is as  follows:

       The accused herein is a public servant.  He demanded a  sum of Rs.300/- from PW-1, a Traveling Ticket Examiner in  South Central Railway on 11.1.1995 and accepted the same  on 16.1.1995 at 5.40 p.m.                  PW-1 was working as TTE in South Central Railway and  the accused was working as Assistant Commercial Manager,  Ticket Checking Division.  He was the controlling authority of  PW-1, who joined in Railway service in the year 1981 as Clerk  in Hubli Division.  In the year 1989-1990 he was promoted as  Ticket Collector. The performance of PW-1 was not  satisfactory.  Therefore, he was repatriated to Hubli Division.  However, the accused cancelled those orders. The accused was  not granting leave to PW-1. During January 1995, PW-1 went  to the accused with an application to grant leave for 10 days.   Then the accused asked whether he has taken the charge- sheet issued against him.  Thereupon, PW-1 replied that it was  not served on him but he collected the same from the Chief  Ticket Inspector’s office. Ex. P.1 is the charge sheet dated  10.1.1995.

       After receiving the charge sheet, PW-1 went to the office  of the accused and explained him orally about the charges  leveled against him.  The accused told PW-1 that he was  prepared to grant leave if he gives explanation to the charges  in writing immediately.  PW-1 refused to give explanation  immediately.  The leave application given by PW-1 was torn

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away by the accused stating that he would pass the orders of  repatriation.

       On 12.1.1995 PW-1 met the accused and asked for  cancellation of repatriation orders and also for leave.  Then the  accused allegedly demanded a sum of Rs.300/- as  consideration for the work. PW-1 left the office of the accused  saying that he will get the money.

       On 14.1.1995 PW-1 was present at Sankranti Mela  organized by Rail Nilayam. The accused was also posted there.   In the Mela the accused asked PW-1 whether he brought full  money. PW-1 replied that since the banks were closed, he  could not get the money and that he would pay the money  after the banks reopen.

       On 16.1.1995 PW-1 went to PW-8, the CBI Inspector.  On  the basis of the complaint given by PW-1, he registered the  case in R.C. 2 (a)/95, Hyderabad against the accused.  Ex.  P.14 is the FIR.  PW-8 took up further investigation. He  mobilized two persons to act as mediators for the trap.  On  16.1.1995, he prepared first mediators report Ex. P.5 in the  presence of trap party which included the mediator PW-2 and  other CBI officers.  PW-2 was instructed to accompany PW-1  to give a signal by wiping the face when the accused accepts  the money.

       The trap party proceeded to the office of the accused at  about 5 p.m.  At about 5.25 p.m., PWs. 1 and 2 entered into  the office of the accused where the other members of the trap  party stood outside the office.  At about 5.40 p.m. PW-2 came  out of the office and gave pre-arranged signal.  The entire trap  party entered into the office.  PW-8 questioned the accused  who told him that money was kept in the left side shirt pocket.   When questioned by the trap party, the accused told them that  the money was returned as hand loan taken by PW-1 from him  on 15.1.1995 in the presence of PW-3.  After complying with  all formalities, the second mediator’s report Ex. P-7 was  prepared.  PW-8 seized M.Os. 1 to 5 and other documents  during the trap. PW-8 investigated into the matter and thus on  completion of investigation, the charge sheet was filed.                              3.      After investigation, charge sheet was filed.  The defence of  the accused was of total denial and, therefore, the trial was  conducted. On behalf of the prosecution, 8 witnesses were  examined and certain documents were exhibited as exhibits  P.1 to P.14.  On behalf of the accused one witness was  examined.  On consideration of the evidence on record, the  trial court, as noted above, found the respondent-accused  guilty.  The trial court did not find any substance in the stand  of the accused that there was defect in the sanction accorded.   It was urged that the Secretary Railway Board/Director could  not have signed/issued the order of sanction. The trial court  held that the Secretary was competent to sign/issue the order.   It was also the stand of the accused that since the Secretary  was not examined to prove the sanction order, therefore, it  was fatal to the prosecution.  This plea was also not accepted  by the trial court.  It was noted that PW-7, who was well  conversant with the Secretary’s signature, and had knowledge  of the sanction order (Exhibit P.13) had been examined.  He  was the then Joint Director (Vigilance) of the Railway Board. A  categorical finding was recorded that the Railway Board which  was the authority to accord sanction had, in fact, accorded  sanction under Section 19(1) of the Act for prosecution of the  accused.  The entire record along with self-contained note was

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put up by the Secretary and the Member (Traffic) Board  approved the same.  One Member of the Board was competent  to give sanction. The trial court noted that a reading of the  sanction order prima facie shows that there has been  application of mind and all the relevant materials have been  examined by the concerned officer.  The trial court also noted  that non-examination of the sanctioning authority is not fatal  when the sanction order contained details showing application  of mind by the concerned authority.  The non-examination of  the Secretary of the Railway Board was held to be not  vulnerable. On merits also, the trial court found that the  accusations against the respondent have been established.  In  the appeal filed, it was contended by the accused that the  entire file had not been placed before the Board and the  evidence of PW-7 established the same.  The High Court noted  that with reference to the materials on record it was satisfied  that the accused was guilty of accepting the bribe and was  liable to be punished for offence punishable under Section 7 of  the Act, but on technical ground that the entire record was not  placed before the Railway Board or its President, the sanction  was held to be defective.                         4.      Learned counsel for the appellant submitted that the  High Court having accepted that materials on record are  sufficient to establish the accusations, should not have  interfered with the well-reasoned order of the trial court  holding the accused guilty.  The issue relating to sanction was  examined at length by the trial court.  It was held that the  Secretary was authorized to sign/issue the order.  The Board  alone was competent to accord sanction.  PW-7 had in  categorical terms stated that it was not necessary for the  entire Board to sit and take a decision and only the Member  (Traffic) was the competent authority who could have and had,  in fact, accorded sanction for prosecution. It was also  specifically stated that one Member of the Board can sit as the  Board as per the Board’s Rules.  There was no material before  the High Court to come to the conclusion that the entire  record was not placed before the Board.  On the contrary, with  reference to the evidence of PW-7 and the materials on record  the trial court had held that all relevant records were placed  before the Board. Learned counsel for the respondent  submitted that PW-7 had accepted that he had not produced  the rules authorizing the Secretary to sign the sanction order.   It was also submitted that if the sanction itself is defective, the  trial is vitiated.              

5.      It is to be noted that before the trial court the stand of  the respondent was in relation to the authority of the  Secretary to sign the sanction order.  The trial court, after  analyzing the materials on record, came to hold that the  Secretary had the authority.  Before the trial court there was  no plea raised that the relevant records were not placed before  the Board. The plea relating to lack of authority of the  Secretary appears to have been given up before the High Court  and what seems to have been urged is that the relevant  records were not placed before the Board.  The trial court had  categorically noted that all the relevant records were placed by  the Secretary before the Member (Traffic). Without indicating  any basis for the conclusion that records were not placed for  consideration, the High Court could not have drawn an  adverse conclusion that the relevant records were not  produced before the Board.                       

6.      Though learned counsel for the respondent urged that  nothing was shown to substantiate the stand that Member

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(Traffic) could act as the Board, the same has no substance. In  the re-examination, PW-7 has categorically stated that it was  not necessary for the entire Board to sit and, as per the  Board’s Rules, the Member (Traffic) was authorized and  competent to accord sanction.  There was no cross- examination. Provisions contained in Section 19(3) of the Act  also need to be noted.  The principles relating to alleged defect  in sanction have been highlighted by this Court in Central  Bureau of Investigation v. V.K. Sehgal and Anr. (1999 (8) SCC  501) and Shankerbhai Laljibhai Rot v. State of Gujarat  (2004  (13) SCC 487).  Learned counsel for the respondent has placed  great emphasis in State Inspector of Police, Vishakhapatnam   v. Surva Sankaram Karri (2006 (7) SCC 172) more particularly  in paragraphs 25 and 26 thereof.  There is no quarrel with the  principles laid down in that decision. But, on facts of the  present case, it has not been shown that there was any defect  in the sanction and the High Court was not justified in taking  a contrary view.  This being the position, the order of the High  Court is unsustainable and is set aside and that of the trial  court is restored.                     7.      The appeal is allowed accordingly.