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CASE NO.: Appeal (crl.)  462 of 2005

PETITIONER: C.S. Krishnamurthy                                

RESPONDENT: State of Karnataka.                                 

DATE OF JUDGMENT: 29/03/2005

BENCH: P. VENKATARAMA REDDI & A.K. MATHUR

JUDGMENT: J U D G M E N T  (Arising out of SLP(Crl.) No.4330/2004)

A.K. MATHUR, J.

       Leave granted.         This appeal is directed against an order passed by learned  Single Judge of the High Court of Karnataka at Bangalore in Criminal  Appeal No. 608 of 1998 whereby  learned Single Judge by his order  dated June 10, 2004  has allowed the appeal  of State  and set aside  the order  of the XXI Additional Sessions Judge and Special Judge   for CBI  at Bangalore City whereby he acquitted  the  appellant  accused under Section  5(2) read with Section 5(1)(e)  of the  Prevention of Corruption Act 1947 on the ground of sanction being  invalid  in CC No. 131/1990  dated  20th March,  1998.         Brief facts necessary for disposal of this appeal are that the  accused Sri C.S. Krishnamurthy,  Technical Supervisor, Bangalore  Telephones, Bangalore was charge-sheeted for the offence under  Section 5(2) read with Section 5(1) (e)  of the Prevention of  Corruption Act 1947 (hereinafter referred to as the "Act")  alleging that  during the period from  May 25, 1964 to  June 27, 1986  he acquired  assets disproportionate to his known source of income.  On 27th   June, 1986 he was in possession of movables and immovable assets  worth  Rs.4,01,454.58 disproportionate to his known source of  income  and did not give any satisfactory account.  The CBI,   Bangalore City,  after completion of the investigation filed charge  sheet against the accused.   The charges were framed  against the  accused  and  prosecution  examined 56 witnesses and marked   exhibits P-1 to P.124.   The statement of the accused was recorded  under Section 313 Cr.P.C.   The accused filed the written  explanation.   However,  he did not choose to lead any defence  evidence.  The learned Special Judge after hearing the  parties  framed  following  questions which read as under:-

"1. Whether the sanction order is valid?

2.      Whether the prosecution proves beyond all reasonable  doubt that the accused being Technician and then  Technical Supervisor in Bangalore Telephones, being a  public servant during the period from 25.5.1964 to  27.6.1986 acquired assets which were disproportionate  to his known sources of income as on 27.6.1986 as the  accused was in possession of movables and immovable  assets worth Rs. 4,01,454.58 Ps. Which were  disproportionate to his known source of income for  which he could not give satisfactory account?

3.      Whether the prosecution has proved beyond all

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reasonable doubt that the accused has committed the  offence under Section 5(1)(e) of the Prevention of  Corruption Act, 1947, punishable under Section 5(2) of  the said Act?    

4.      What order? "

Learned Special Judge acquitted the accused and held that  there was no proper sanction.   Learned Special  Judge held that    the prosecution  has failed to prove  the valid Sanction  under  Exhibit P-83 and therefore,  prosecution is without  jurisdiction and  he  acquitted the accused of all charges.  Aggrieved against the  order, an appeal was presented by the CBI to the High Court.         Learned Single Judge of the High Court of Karnataka, after  examining the evidence  came to the conclusion  that the sanction  accorded by the  prosecution is valid and set aside the order of the  learned Sessions Judge and remitted the matter back to the   Special Judge, CBI, Bangalore  to register the case and  to decide  the matter afresh after hearing both the parties.  Aggrieved against  this order  of the learned Single Judge,  the present appeal has  been preferred by the accused. We heard both the learned counsel for the parties and  perused   the record. Whole case depends upon the  sanction. Whether   the  sanction granted by the authority is  a valid sanction or not?   In  order to appreciate this  controversy,  we reproduce the sanction  order  which reads as under:- "SANCTION ORDER

Whereas it is alleged that Shri C.S. Krishnamurthy  while functioning as Technician and then as Technical  Supervisor, Bangalore Telephones, Bangalore, during  the period  between 25.5.1964 to 25.6.1986, and, as on  27.6.1986 he was found in possession of  assets/properties/pecuniary resources to the tune of Rs.  4,01,454.58 Ps. Which are disproportionate to his known  source of  income suggesting that the said Sri. C.S.  Krishnamurthy acquired the said assets by questionable  means and/or from dubious sources and for which he  cannot render any satisfactory account/explanation.

 Whereas the above said allegation is based on the  following facts and circumstances:-

Shri C.S. Krishnamurthy joined the Telephone  Department as Telephone Mechanic on 25.5.1964.  He  was promoted as Technical Supervisor  and was  working with Bangalore Telephone.

Whereas it has been made to appear that the total  income earned by the said Shri C.S. Krishmurthy from  all known sources between the period 25.5.1964 to  27.6.1986 is Rs.  7, 91,534.93Ps.   The income was  from salary, GPF advances, the Rental income, the  interest amount received from Bank accounts,  the 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, Co- operative 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.

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Whereas it has been made to appear that the total  expenditure incurred by the said Shri C.S.  Krishnamurthy in the above said period  from 25.5.1964  to 25.6.1986 was  Rs.  2,41,382.85Ps.  

Whereas it has been, made to appear that the total  assets both movable and immovable acquired by the  said Shri C.S. Krishnamurthy during the check period  from  25.5.1964  to  27.6.1986 amounted to Rs.  9,51,606.66Ps.

Whereas it has been made to appear that the said  Shri C.S.Krishnamurthy during the entire period of his  service as a public servant have likely savings to the  tune of Rs. 5,50,152.08ps. only against which has had  been found in possession of total assets both movable  and immovable to the tune of Rs. 9,51,606.66 ps.  The  extent of disproportionate assets possessed by Shri  C.S. Krishnamurthy as on 27.6.1986 comes to Rs.  4,01,454.58 Ps..

Whereas the said acts constitute offence punishable  under Section 5(2) r/2  5(1)(e) of the Prevention of   Corruption Act, 1947, (Act II of 1947).

And whereas, I,  V. Partha Sarthy being the   authority competent to remove Shri C.S. Krishnamurthy  from office after fully and carefully examining the   materials placed before me in regard to the said  allegations and circumstances of this case,  consider  that the said Shri C.S. Krishnamurthy should be  prosecuted in a Court of Law for the said offences.

Now,  therefore, I V. Partha Sarthy do hereby  accord sanction under Section 6(1) )  of the Prevention  of Corruption Act 1947  (Act II of  1947) for the  Prosecution of the said Shri C.S. Krishnamurthy for the  said offences and any other offences punishable under  other provisions of Law in  respect of the said offences  by a Court of competent jurisdiction."

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 accused for the alleged offence on  28th  February,  1990 as per Ex.P. 83.   He deposed that  S.P. CBI   sent  a report against the accused and  he  perused the report and  accorded the sanction as per Ex.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  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 the sanction is  necessary for every  prosecution of public   servant,  this safeguard is against the frivolous prosecution against   public servant 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 May 25, 1964 to  June  27, 1986   was  Rs.

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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 Sahakra Bank, Vyyalikaval House Building Co-operative  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 these  period is Rs.2,41,382.85 and the total assets acquired by the  accused both movable and immovable from May 25, 1964 to June  27, 1986 is Rs.  9,51,606.66 ps.    Therefore, the accused  has to  account for difference between the two.  The sanction itself shows  that there is something to be accounted by the accused. When the  sanction itself is  very expressive,  then in that case,  the argument  that particular material was not properly placed before the  sanctioning authority for according  sanction and 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.  In the present  case the learned  additional sessions Judge took a very narrow   view that all the papers were  not placed before the Court to show  that there was proper application of mind by the sanctioning  authority.  The view taken by learned Special Judge was not correct  and the learned Single Judge correctly set aside the order.   In this  connection we may refer to a three Judge Bench decision of this  Court  reported in [1958] SCR 999 INDU  BHUSAN CHATTERJEE  Vs.  THE STATE OF  WEST BENGAL in which a similar argument  was raised  that a sanctioning authority did not apply his mind to   the  facts of the case but merely perused  the draft prepared by the  Police and did not investigate the truth of the offence.  The learned  Judges after perusing the sanction order  read with the evidence of   Mr. Bokil held that there was a valid sanction accorded by a  competent person.  In this case, the accused was charged under  Section 161 of the Indian Penal Code and Section 5(2) of the  Prevention of Corruption Act.  The accused was paid a sum of Rs.  100/-  in marked currency as illegal gratification  at Coffee House for  clearing some claims entrusted to him   and same   was found in his  possession. Sanction for prosecution of the  appellant was sought   from PW-5.  Mr.Bokil  as a  competent authority  to  grant sanction,  he came  in witness box and he deposed that he accorded sanction  for  prosecution after proper application of mind.  On these facts the  learned Judges observed that  Ext. 6  on  face of it disclosed a valid  sanction for prosecution.    In  the sanction order it was disclosed  that accused had accepted a  bribe of Rs. 100/- for clearing claim  cases and he was trapped.  Though sanctioning authority who came  in witness box could not answer some questions in cross  examination,  yet this Court held that  sanction  itself is eloquent  read with evidence of sanctioning authority and same is valid.   In  the present case,  the facts contained in the sanction order read  with evidence of sanctioning authority makes it clear that sanction  was properly accorded  and is valid.  

       In this connection, a reference was made to a decision of the  Constitution Bench in the case of R.S.Pandit vs. State of Bihar  reported in [1963] Supp. 2 SCR 652 wherein their Lordships after  referring to a decision of the Privy Council in the case of Gokulchand  Dwarkadas Morarka v. The King [ AIR 1948 PC 83] observed as  under:

               " Section 6 of the Act also does not  require the sanction to be given in a particular  form. The principle expressed by the Privy

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Council, namely that the sanction should be  given in respect of the facts constituting the  offence charged equally applies to the sanction  under S.6 of the Act. In the present case all the  facts constituting the offence of misconduct with  which the appellant was charged were placed  before the Government. The second principle,  namely, that the facts should be referred to on  the face of the sanction and if they do not so  appear, the prosecution must prove them by  extraneous evidence, is certainly sound having  regard to the purpose of the requirements of a  sanction."

Therefore, the ratio is sanction order should speak for itself and  in case the facts do not so appear, it should be proved by leading  evidence that all the particulars were placed before the sanctioning  authority for  due application of mind. In case the sanction speaks for  itself then the satisfaction of the sanctioning authority is apparent by  reading the order.  In the present case, the sanction order speaks for  itself that the incumbent has to account for the assets  disproportionate to his known source of income. That is contained in  the sanction order itself.  More so, as pointed out, the sanctioning  authority has come in  the witness box as witness No.40 and has  deposed about his  application of mind and after going through the  report of the Superintendent of Police, CBI  and after discussing the  matter with his legal department, he accorded sanction. It is not a  case that the sanction is lacking in the present case. The view taken  by the Additional Sessions Judge is not correct and the view taken by   learned Single Judge of the High Court is  justified.

       In the case of Balaram Swain v. State of Orissa reported in   1991 Supp. (1) SCC 510 the High Court reversed the finding of the  trial court that the sanctioning authority has not applied its mind on  the materials placed before him. It was observed in para 9 that the  sanctioning authority , namely, PW 4 has stated on oath that he  perused the consolidated report of the vigilance and fully applied his  mind and thereafter issued the sanction.  The admission of PW-7 in   that case that the entire record was not looked into,  was held to be  not fatal to the sanction. The finding of the High Court  was affirmed  by Apex Court. Likewise, P.W.40, i.e. the sanctioning authority in the  present case, has gone through the report of the Superintendent of  Police and after discussing the matter with the legal department has  accorded sanction. That is enough to show that there is due  application of mind in the present case.

       Our attention was invited to another decision of this Court. In  the case of Mansukhlal Vithaldas Chauhan  vs. State of Gujarat  reported in (1997) 7 SCC 622, wherein sanction was quashed  because sanction for prosecution was given under the direction of the  High Court, therefore, it was held that it was not independent  application  of mind by sanctioning authority as such sanction was   invalid.  In this case, sanctioning authority who was supposed to  apply its mind for granting sanction was denuded of its power  because of the direction given by the High Court. Therefore, this case  does not help the appellant.         Similarly, our attention was invited to a decision of this Court  In the case of State of T.N. vs. M.M.Rajendran reported in (1998) 9  SCC 268. In this case, sanction was accorded by the City  Commissioner of Police, Madras. On that basis the trial commenced.  The High Court found that all the relevant materials including the  statements recorded by the Investigating Officer was not  placed for  consideration before  the City Commissioner of Police, Madras   because only a report of the Vigilance Department was placed before  him. The High Court  came to the finding that although the Personal

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Assistant to the City Commissioner of Police, Madras has deposed    that proper sanction was accorded by the City Commissioner of  Police after  going though  the detailed report of vigilance,  but the  statements  recorded during the investigation was not placed before  sanctioning authority and  therefore,  there was no proper application  of mind by sanctioning authority,   as such sanction was invalid.   But  in the present case,  the sanction order itself discloses the facts that  the incumbent is being prosecuted under the provisions of the  Prevention of Corruption Act for accumulating moveable and  immovable assets worth Rs.4,01,454.58 paise which is   disproportionate to his known source of income and  he has failed to  give satisfactory  account for the same.  In the present case,  facts  mentioned in sanction order are eloquent for  constituting  prima facie  offence under Section 5(2) read with Section 5(1)(e) of the Act.  Therefore, there is  due application of mind by sanctioning authority  and the sanction is valid.          Learned counsel for appellant submitted that  offence was  alleged  to have been committed in  1986,  now  after lapse of almost  19 years would it be advisable to proceed with the matter.  It is  a  matter of corruption and we cannot  give any  latitude in such matters.          Therefore, under these circumstances, we are of opinion that  the view taken by learned Single Judge of the High Court appears to  be justified and there is no ground to interfere in the present appeal.  Accordingly, the appeal is dismissed.  However, nothing said herein  or the High Court excepting  on the point of sanction should influence  the trial court’s decision on merits.    The adverse observations made against the  trial Judge are deleted.