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PETITIONER: MOHD. IQBAL, AHMAD

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT18/01/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1979 AIR  677            1979 SCR  (2)1007  1979 SCC  (4) 172  CITATOR INFO :  R          1984 SC 684  (19,23)  F          1991 SC 279  (6)

ACT:      Prevention of  Corruption  Act,s.  5(2)  read  with  s. 5(1)(d)-Case instituties     without proper  sanction-Effect of-Proof  of   valid  sanction-How   could  be  established- Sanction-Its importance  in prosecutions-Facts  coming  into existence subsequently-If could be relevant-Presumption that sanctioning  authority   was  satisfied   that  the  accused received bribe-When  could  arise-If  prosecution  could  be given  a  chance  at  appellate  stage  to  prove  that  the sanctioning authority had applied its mind before giving the sanction.

HEADNOTE:      The appellant  who was charged with an offence under s. 5(2) read with s.5(1)(d) of the Prevention of Corruption Act was acquitted  by the  Special Judge.  But the High Court on appeal by  the State,  reversed the  judgment of  he Special Judge and convicted him.      In appeal  to this  Court it was contended on behalf of the appellant  that there  was no  evidence to  show on what materials the  sanctioning authority applied its mind before granting the  sanction under  s.6 of  the  Act.  The  entire proceedings are void ab initio.      Allowing the appeal. ^      HELD: 1  (a). The  prosecution  of  the  appellant  was without valid  sanction and,  therefore, cognizance taken by the Special Judge was without jurisdiction. [1011 G]      (b) Any  case instituted  without proper  sanction must fail  because   this  being   a  manifest   defect  in   the prosecution, the  entire proceedings  are rendered  void  ab initio. It  is incumbent  on the prosecution to prove that a valid sanction had been granted by the sanctioning authority after it  was satisfied  that  a  case  had  been  made  out constituting the  offence. This  should be done in two ways: either (i)  by producing  the original sanction which itself contains the  facts constituting the offence and the grounds of sutisfaction or (ii) by adducing evidence aliunde showing the facts  placed before  the authority and the satisfaction

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arrived at by it. [1010 B-D]      In the  present case  no  evidence,  either  primay  or secondary, had  been led  to prove  the contents of the note placed  before   the  sanctioning  authority  nor  were  the witnesses examined  in a  position to  state the contents of the note.      2(a). The  grant of  sanction is  not an idle formality but a  solemn and sacrosanct act which affords protection to government servanats against frivolous prosecutions and must therefore be  strictly complied  with before any prosecution could be launched against public servants. [1010G]      (b) There is no force in the argument of the State that the Court  should presume the facts on the basis of evidence given by one of the witnesses and the order implementing the sanction mentioning those facts. What the Court 1008 has to  see is  whether or  not the sanctioning authority at the time  of giving  the sanction  was aware  of  the  facts constituting the  offence and applied its mind for the same. Any  subsequent   fact  coming   into  existence  after  the resolution had been passed is wholly irrelevant. [1010 F]      (c) There is equally no force in the State’s contention that even  if no  facts were  mentioned in the resolution it must  be   presumed  that   the  sanctioning  authority  was satisfied that the accused had received a bribe. There is no question of  a presumption being available .o the sactioning authority because  at that  stage the occasion for drawing a presumption never  arises since  there is  no  case  in  the Court. [1011 B]      (d) The  presumption does  not arise  automatically but only on proof of certain circumstances that is to say, where it is  proved by  evidence in  Court that  the money said to have been  paid to  the accused  was actually recovered from his possession.  It is  only then that the Court may presume the amount  received  would  be  deemed  to  be  an  illegal gratification. The  question of  sanction arises  before the proceedings come  to the Court and the question of drawing a presumption does not arise at this stage. [1011 C]      (e) The prosecution cannot be given a chance to produce any material  before the  court at  the appellate  stage  to satisfy that the sanctioninf authority  had duly applied its mind before  giving the  sanction. The  prosecution had been afforded a  full and complete opportunity at the trial stage to produce  whatever material  it liked and it had chosen to examine two  witnesses; but for reasons best known to it, it did not  produce the note which formed the subject matter of resolution of the sanctioning authority. [1011 E]      (f) In  a criminal case this Court would not ordinarily direct fresh  evidence to fill up a lacuna deliberately left by the  prosecution. The  liberty  of  the  subject  was  in jeopardy and  it cannot  be allowed to put in jeopardy again at the  instance of the prosecution which failed to avail of the opportunity afforded to it. [1011 J]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 194 of 1973.      Appeal by  Special Leave  from the  Judgment and  Order dated 3-4-1973  of the Andhra Pradesh High Court in Criminal Appeal No. 703/71.      .A. N. Mulla and A. Subba Rao for the Appellant.      G. Narayana Rao for the Respondent.      The Judgment of the Court was delivered by

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    FAZAL ALL,  J.-In this  appeal  by  special  leave  the appellant has  been convicted  under section  161 I.P.C. and section 5(2)  read with section 5(1)(d) of the Prevention of Corruption Act  and sentenced  to rigorous  imprisonment for one year and a fine of Rs. 250/- on each count. 1009      The appellant  had been  convicted by Special Judge but on appeal  by the  State to  the High  Court the  High Court reversed  the   judgment  of  acquittal  and  convicted  the appellant as  indicated above.  According to the prosecution the appellant  is said to have struck a bargain for taking a bribe of  Rs. 125/-  which he  received on the 15th of July, 1968 in  the presence  of P.Ws.  1 and  3. On  receiving the signal the  raiding party appeared on the scene and the hand of the  accused was dipped in water containing phenopthelien solution which showed that he touched the notes. The defence of the  appellant was  that he  never demanded any bribe and that the  notes were  thrust into  his  pocket.  It  is  not necessary for us to dwell on the merits of the case because, in our  opinion, the appeal must succeed on a short point of law, raised  by Mr.  A. N.  Mulla, learned  counsel for  the appellant. It  was argued  that the sanction under section 6 of the  Prevention of  Corruption Act  produced in this case does not  reveal the  facts constituting  the  offence  and, therefore, there  is no  evidence to  show on what materials the sanctioning  authority applied  its mind and granted the sanction. The Resolution of the Standing Committee  granting the sanction  is Exh.  P-16 and is dated 31-3-1969, and runs as follows:           "As per  note  of  the  Commissioner,  M.C.H.  the      Standing Committee  unanimously  accords  sanction  for      prosecution of  Sri Mohd.  Iqbal Ahmed (in the scale of      110-180)  Section  Officer  of  Town  Planning  Section      (Under  suspensions)  in  a  competent  Court  for  the      offence mentioned  in  the  note  of  the  Commissioner      M.C.H.,  dated   18-1-1969  so   as   to   enable   the      Commissioner to  sign the prosecution order and send it      to the  Director,  Anti-Corruption  Bureau  for  taking      further action at the earliest".      A  perusal   of  the   Resolution  of  the  Sanctioning Authority clearly  shows that no facts on the basis of which the prosecution  was to  be sanctioned against the appellant are mentioned in the sanction nor does this document contain any ground  on which  the satisfaction  of  the  Sanctioning Authority was  based and  its mind  applied.  This  document merely mentions  that the  sanction has  been given  on  the basis of  a note  of the Commissioner, Municipal Corporation which appears  to have  been placed before the Committee. It is obvious,  therefore, that  this note,  if any,  must have come into existence either on 31-3-1969 or at any date prior to  this.  The  prosecution  could  have  proved  the  facts constituting the  offence which  were    placed  before  the Sanctioning Authority by producing the note at 1010 the trial.  But no  such  thing  has  been  done.  What  the prosecution did  was merely to examine two witnesses P.Ws. 2 and 7.  P.W. 2  has  produced  the  order  implementing  the Resolution of the Sanction ing Authority which is Exhibit P- 10 and  is dated  21st April, 1969, that is to say after the sanction was  given. This  document no  doubt  contains  the facts constituting  the offence  but that does not solve the legal issues that arise in this case. It is incumbent on the prosecution to  prove that a valid sanction has been granted by the  Sanctioning Authority  after it was satisfied that a case  for  sanction  has  been  made  out  constituting  the

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offence. This  should be  done in  two ways;  either (1)  by producing the  original sanction  which itself  contains the facts  constituting   the  offence   and  the   grounds   of satisfaction and  (2) by  adducing evidence  aliunde to show that the  facts placed  before the Sanctioning Authority and the satisfaction  arrived at  by it. It is well settled that any case  instituted without  a proper  sanction  must  fail because this being a manifest difficulty in the prosecution, the entire  proceedings are  rendered void ab initio. In the instant case  no evidence  has been  led either  primary  or secondary to  prove as to what were the contents of the note mentioned in  Exhibit  P-16  which  was  placed  before  the Sanctioning Authority.  The evidence  of P.W. 2 or P.W. 7 is wholly irrelevant because they were not in a position to say as to  what were  the contents  of the note which formed the subject matter  of the sanction by the Standing Committee of the Corporation.  The note  referred to  above was  the only primary evidence for this purpose. Mr. Rao vehemently argued that although the Resolution, Exh. P-16 does not mention the facts, the  Court should  presume the  facts on the basis of the evidence  given by  P.W. 2  and the  order  implementing sanction which mentions these facts. This argument is wholly untenable because  what the  Court has  to see is whether or not the Sanctioning Authority at the time of giving sanction was aware  of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence  after the  resolution granting  sanction has been passed,  is wholly irrelevant. The grant of sanction is not an  idle formality  or an  acrimonious  exercise  but  a solemn  and  sacrosanct  act  which  affords  protection  to government servants  against frivolous prosecutions and must therefore be  strictly complied  with before any prosecution can be launched against the public servant concerned.      It was  next contended  by Mr.  Rao that in view of the presumption which  is to  be drawn  under section  4 of  the Prevention  of   Corruption  Act,  even  if,  no  facts  are mentioned in the Resolution of 1011 the Sanctioning  Authority it  must  be  presumed  that  the Sanctioning Authority  was satisfied  that  the  prosecution against the appellant should be launched on the basis of the presumpion that  the accused  had received a bribe. With due respects to  the learned  counsel, this argument seems to be wholly mis-conceived.  In  the  first  place,  there  is  no question  of   the  presumption   being  available   to  the Sanctioning Authority because at that stage the occasion for drawing a presumption never arises since there is no case in the  Court.   Secondly,  the   presumption  does  not  arise automatically but  only on  proof of  certain circumstances, that is  to say, where it is proved by evidence in the Court that the  money said  to have  been paid  to the accused was actually recovered from his possession. It is only then that the Court may presume the amount received would be deemed to be an  illegal gratification.  So far  as  the  question  of sanction is  concerned this  arises before  the  proceedings come  to   the  Court   and  the  question  of  drawing  the presumption,  therefore,  does  not  arise  at  this  stage. Lastly, it  was submitted by Mr. Rao that he should be given a chance  to produce  the  materials  before  the  Court  to satisfy that  the Sanctioning Authority had duly applied its mind to the facts constituting the offence. We are, however, unable to  accede to  this prayer  which has  been made at a very late  stage. The  prosecution had  been afforded a full and complete  opportunity at  the  trial  stage  to  produce whatever material  it liked and it had chosen to examine two

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witnesses but  for reasons  best known to it did not produce the note  which formed  the subject matter of the Resolution of the  Sanctioning Authority-Exh.  P-16. It is well settled that in  a criminal  case this  Court or for that matter any court should not ordinarily direct fresh evidence to fill up a lacuna delibrately left by the prosecution. The liberty of the subject  was put in jeopardy and it cannot be allowed to put in  jeopardy again  at the  instance of  the prosecution which failed to avail of the opportunity afforded to it.      For these reasons, therefore, we are satisfied that the present prosecution  was launched without any valid sanction and, therefore,  the cognizance  taken by  the Special Judge was  completely   without  jurisdiction.   The   appeal   is accordingly allowed.  The judgment  of the High Court is set aside and  convictions and sentences passed on the appellant are quashed.  The appellant  will now be discharged from his bail bonds. P.B.R.                                       Appeal allowed. 1012