KOOTHA PERUMALversusSTATE TR. INSPECTOR OF POLICE, VIGILANCE & ANTI CORRUPTION

                   [2010] 14 (ADDL.) S.C.R. 864


A                    KOOTHA PERUMAL
                              v.
    STATE TR. INSPECTOR OF POLICE, VIGILANCE & ANTI
                        CORRUPTION
             . Criminal Appeal No.1923 of 2008
B
                       DECEMBER 15, 2010
       [B.SUDERSHAN REDDY AND SURINDER SINGH
                     NIJJAR, JJ.]

c       Prevention of Corruption Act, 1988:

         ss. 7 and 13(2) rlw s. 13(1}{d) and 19- Demand of illegal
    gratification - Trap laid - Accused caught red handed -
    Conviction by trial court - Affirmed by High Court - Pleas that
0   the sanction order was not legally obtained and that there was
    no demand of bribe made by accused - HELD: The
    sanctioning authority adverted to all necessary facts and duly
    recorded its satisfaction that the accused should be
    prosecuted - Both the courts below analysed the entire
E   evidence and clearly held that a demand was definitely made
    by the accused - No arbitrariness/inconsistencies discernible
    in the concurrent findings recorded by the courts below.

       The prosecution case was that' the appellant
  demanded Rs.50/- from the complainant for delivery of the
F municipality tax certificate in respect of the house of his
  father. The complainant complained to the Inspector,
  Anti-corruption. A trap was laid. The appellant was caught
  with the phenolphalein powder treated currency notes.
  The chemical test was positive. The trial court convicted
G the appellant of the offences charged. The High Court
  affirmed the conviction.

        In the instant appeal filed by the accused, it was
    contended for the appellant that the entire proceedings
H                                864
KOOTHA PERUMAL v. STATE TR. INSP. OF POLICE, VIG. 865
            & ANTI CORRUPTION
were vitiated as previous sanction to prosecute him was        A
not legally obtained as required u/s 19 of the Act; and that
there was no demand of bribe made by the appellant.

    Dismissing the appeal, the Court

    HELD:                                                      B

     1. It canot be said that the sanction order in the
instant case was not valid. A perusal of the sanction
order would show that the sanctioning authority has
adverted to all the necessary facts which have been            c
actually proved by the prosecution in the trial. Upon
examination of the material facts, the sanctioning
authority has certified that it is the authority competent
to remove the appellant from the office. It is specifically
stated that the statements of the witnesses have been          D
duly examined. Sanction order also states that other
materials such as copy of the FIR as well as other official
documents such as the different mahazars were carefully
examined. Upon examination of the statements of the
witnesses as also the material on record, the sanctioning
authority has duly recorded its satisfaction that the
appellant should be prosecuted. [para 14] [871-F-H; 872-
A-B]

    Jaswant Singh Vs. State of Punjab 1958 SCR 762 =AIR
1958 SC 124 - referred to.                                     F.
     2. The trial court as well as the High Court have
analyzed the entire evidence and clearly held that a
demand was definitely made by the appellant for delivery
of the tax certificate. Both the courts have made a            G
reference to the evidence given by PWs.2 and 3 who              '
have categorically stated that the demand was made by
the appellant. The entire trap has been meticulously
orchestrated by the prosecution authority. No
arbitrariness or inconsistencies are discernible in the
                                                               H
•




        866    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


    A concurrent findings recorded by the courts below. [para
        16-17] [872-E-G]

                               Case Law Reference:
              1958 SCR 762              referred to           para 13
    B
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
        No. 1923 of 2008.

            From the Judgment & Order dated 07 .03.2007 of the High
        Court of Madras, Madurai Bench in Criminal Appeal (MD) No.
    C   821 of 1999.

              S. Mahendran for the Appellant.

              S. Thananjayan for the Respondent.
    D         The Judgment of the Court was delivered by

           SURINDER SINGH NIJJAR, J. 1. This appeal is directed
      against the judgment of the Madras High Court, Madurai Bench
      dated 7th March, 2007 in Criminal Appeal (MD) No.821 of
    E 1999 by which the High Court affirmed the conviction and
      sentence recorded by the leiirned Special Judge-cum-
      Additional District Judge-cum-Chief Judicial Magistrate,
      Pudukottai in Spl.C.C.No.1 of 1994. By the aforesaid judgment,
      the Special Judge convicted the appellant for offences
    F punishable under Section 7 and 13(2) read with Section
      13(1 )(d) of the Prevention of Corruption Act, 1988 (in short 'the
      Act') and sentenced him to undergo one year rigorous
      imprisonment and to pay a fine of Rs.500/-, in default of
      payment to undergo three mor1ths rigorous imprisonment and
    G convicted him for the offence under Section 7 of the Act and
      sentenced him to undergo six months rigorous imprisonment
      and to pay a fine of Rs.300/-, in default of payment to undergo
      one month rigorous imprisonment.

              2. The prosecution case, briefly stated, is as follows :
    H
KOOTHA PERUMAL v. STATE TR. INSP. OF POLICE, VIG. 867
  & ANTI CORRUPTION [SURINDER SINGH NIJJAR, J.]

     The prosecution case as narrated by PVv2, the                A
complainant, has been extensively noticed by the trial court as
also by the High Court. For the purposes of this appeal, we may
very briefly touch upon on the relevant facts. The complainant
PW2, Nayinar Mohammed, is a resident of Pudukottai. His
father is the owner of house property at door No.36, Mamundi      B
Madam, Adappan Vayal, Pudukottai. Since hi& father was
seriously ill, he needed Rs.75,000/- for his treatment. He
approached a financial institution for a loan. The institution
asked him to furnish property certificate and Municipality Tax
Extract of the house owned by his father. He gave a petition      c
through his friend Noorul Ameen on 17th August, 1993, with the
requisite Rs.15/- court stamp affixed on the same (Ex.P3). His
friend paid Rs.15/- to the Municipality and obtained a challan
Ex.P4. PW4, who was the writer in the record room, knew the
accused and made the necessary entry in the ledger at page        0
No.40 on 19th August, 1994. The application of the complainant
was given as No.C.A.2650 of 1993. Similar entry was made
with regard to payment of Rs.15/- on 17th August, 1993 by the
cashier of Pudukottai Municipality (PW6). The payment was
made through challan No.6789 (Ex.P4). Govindrajan, PW5, was
a Junior Assistant in the Municipality compared the copy of the   E
tax extract No.2650 with the original and found the same to be
correct and put his signature. Ex.P7 is the signature of the
aforesaid Junior Assistant..
     3. When the complainant enquired about the progress of F
the petition, the appellant informed him that the file will only
come to him on 23rd August, 1993. He demanded a sum of
Rs.50/- as a bribe from the complainant for delivery of the tax
extract which, according to him, was ready for delivery. On that
date, the complainant did not have any money. In any event, he G
was not inclined to give any bribe to the appellant. He,
therefore, made a written complaint to the Inspector (PW8) Anti ·
Corruption, Rajagopalapuram. The complaint is Ex.P5. Acase .
was duly registered by PW8 as Crime No.4 of 1993 under
Section 7 of the Act. The First Information Report (Ex.P10) was · H
    868    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   duly signed by the complainant. Thereafter, another Inspector
    in Anti Corruption, Pudukottai recorded the statements of PW2
    and PW3 on 24th. August, 1993. Similarly the statements of
    PWs.4, 5, 6 and 7 were also recorded. Information about the
    registration of the FIR was duly sent to the higher officials.
B        4. Subsequently, a trap was arranged, wherein one Sridhar
    (PW4) who·was working as a Junior Assistant in Pudukottai
    Public Works Department and one Balakrishnan, Junior
    Assistant from Water Supply and Drainage Board were
    engaged as trap witnesses. The FIR was got duly verified from
C   the witnesses. Thereafter, the complainant produced five ten
    rupees notes totaling Rs.50/- (M.0.1 ). The notes were duly
    treated with Phenolphthalein Powder. A demonstration was
    also given to the complainant as to how the hands of anybody
    who receives the aforesaid currency when washed in water
D   would turn red. Thereafter, PW8, the Inspector, instructed the
    complainant to go to the office of the appellant and hand over
    the amount.
         5. On directions of the police, the complainant along with
E   the trap witnesses went to the office of the appellant on 23rd
    August, 1993. He was directed to hand over the money to the
    appellant and to give a signal by folding his shirt. At about 3.15
    to 3.30 p.m., the complainant and PW4 Sridhar went to the
    Municipality by cycle, they were followed by other jeep.
F        6. At about 4 p.m. PWs.2 and 3 entered into the office of
    the appellant and met him. The appellant received the amount
    and put it in his pocket. At 1610 hrs., the witness came out from
    the office and gave the necessary signal by folding his shirt,
    as directed by PW8.
G       7. On receipt of the signal, PW8 along with the other
    witnesses and police party went inside the office of the
    appellant. They introduced themselves. The appellant was
    found to be nervous and sweating. PW9 prepared the Sodium
    Carbonate mixture in two glass tumblers and asked the
H   appellant to dip his two fingers separately into the mixture. The
KOOTHA PERUMAL v. STATE TR. INSP. OF POLICE, VIG. 869
  & ANTI CORRUPTION [SURINDER SINGH NIJJAR, J.]

mixture turned light red. The mixture was poured into a bottle      A
and duly labeled 'R' (M.0.3). Another sample was similarly
prepared with label 'N' and marked (M.0.2).

     8. He thereafter asked the appellant about the money he
has received from PW2. and the appellant took the currency
                                                                    8
notes M.0.1 from his pocket and presented it before PW8. On
comparison, the numbers in the said currency notes recovered
from the appellant tallied with the numbers mentioned in the
mahazar Ex.P7. The appellant was thereafter asked to remove
his shirt (M.0.5). The pocket of the shirt was also subjected to
Sodium Carbonate mixture test, and the solution turned into light   C
red colour. The solution was duly sealed in a separate bottle
as M.0.4 and given the label 'S'. The bottle was duly signed
by PW8.

     9. On completion of certain other formalities, the appellant   D
was arrested and released from bail at 1930 hrs. On completion
of the entire investigation, the appellant was duly put on trial.

     10. The trial court convicted the appellant and sentenced
him as noticed above. Aggrieved by the judgment of the trial        E
court, the appellant challenged the same before the High Court
in appeal. The High Court upon a detailed consideration of the
evidence affirmed the findings recorded by the trial court.
Consequently, the conviction and the sentence were confirmed.
Hence the present appeal.
                                                                    F
     11. We have heard the learned counsel for the parties.

     12. Learned counsel for the appellant submitted that the
entire proceedings were vitiated, as previous sanction to
prosecute the appellant was not legally obtained as required        G
under Section 19 of the Act. The second issue raised by the
appellant is that there was no demand of bribe made by the
appellant. Thus the conviction recorded by the courts below is
perverse and deserves to be set aside.

    13. We may first consider the issue as to whether sanction      H
    870     SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.

A  was duly obtained prior to the prosecution of the appellant. It
   is the case of the appellant that the order for sanction of the
  .prosecution produced in this case is signed by the Municipal
   Commissioner of Pudukottai. According to him, a perusal of
   the same would show that it suffers from non application of
B mind. According to the learned counsel, the sanction order must
   disclose that the sanctioning authority has duly applied its mind
   and the same must be stated in the sanction order. In support
   of this submission, learned counsel has relied on a judgment
   of this Court in the case of Jaswant SingfJ Vs. State of Punjab 1.
c  Undoubtedly, in the aforesaid judgment, t1:1is court observed as
   follows:-

                  "The sanction under the Act is not intended to be
                  nor is an automatic formality and it is essential that
                  the provisions in regard to sanction should be
D                 observed with complete strictness; Basdeo
                  Agarwala v. King Emperor (1945) F.C.R. 93. The
                  object of the provision for sanctions is that the
                  authority giving the sanction should be able to
                  consider for itself the evidence before it comes to
E                 a conclusion that the prosecution in the
                  circumstances be sanctioned or forbidden. In
                  Gokulchand Dwarkadas Morarka v. The King
                  (1948) LR. 75 I.A. 30 the Judicial Committee of the
                  Privy Council also took a similar view when it
F                 observed :

                  "In their Lordships' view, to comply with the
                  provisions of clause 23 it must be proved that the
                  sanction was given if) respect of the facts
                  constituting the offence charged. It is plainly
G
                  desirable that the facts should be referred to on the
                  face of the sanction, but this is not essential, since
                  clause 23 does not require the sanction to be in any
                  particular form, nor even to be in writing. But if the

H   1.   [Air 1958 SC 124)
 KOOTHA PERUMAL v. STATE TR. INSP. OF POLICE, VIG. 871
   & ANTI CORRUPTION [SURINDER SINGH NIJJAR, J.]

            facts constituting the offence charged are not shown      A
            on the face of the sanction, the prosecution must
            prove by extraneous evidence that those facts were
            plakhed before the sanctioning authority. The
            sanction to prosecute is an important matter; it
            constitutes a condition precedent to the institution      B
            of the prosecution and the Government have an
            absolute discretion to grant or withhold their
            sanction."

    It should be clear from the form of the sanction that the         c   I

    sanctioning authority considered the evidence before it
    and after a consideration of all the circumstances of the
    case sanctioned the prosecution, and therefore unless the
    matter can be proved by other evidence, in the sanction
    itself the facts should be referred to indicate that the
    sanctioning authority had applied its mind to the facts and       D
    circumstances of the case. In Yusofalli Mui/a Noorbhoy
    v. The King ( 1949) L. R. 76 I.A. 158 it was held that a valid
    sanction on separate charges of hoarding and profiteering
    was essential to give the Court jurisdiction to try the charge.
    Without such sanction the prosecution would be a nullity          E
    and the trial without jurisdiction."

     14. Keeping in view the aforesaid statement of law, it would
not be possible to conclude that the sanction order in the
present case was not valid. Ex.P2 with the present appeal is          F
the copy of the sanction order. A perusal of the same would
show that the sanctioning authority has adverted to all the
necessary facts which have been actually proved by the
prosecution in the trial. Upon examination of the material facts,
the sanctioning authority has certified that it is the authority      G
competent to remove the appellant from the office. It is
specifically stated that the statements of the witnesses have
been duly examined. Sanction order also states that the other
materials such as copy of the FIR as well as other official
documents such as the different mahazars were carefully
                                                                      H
    872    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   examined. Upon examination of the statements of the witnesses
    as also the material on record, the sanctioning authority has
    duly recorded its satisfaction that the appellant should be
    prosecuted for the offences, as noticed above. We, therefore,
    find no merit in the submissions of the learned counsel that the
B   sanctioning order to prosecute the appellant was not legal.

         15. We may also notice here that although the issue with
    regard to the illegality attaching to the order of sanction was
    raised before the trial court, it was not raised before the High
C   Court. The trial court, on examination of the issue, also negated
    the submission of the appellant about any illegality attaching to
    the sanction order. Even though we do not have the benefit of
    the opinion of the High Court as the appellant has not raised
    issue with regard to the illegality of the sanction· order before
    the High Court, we are satisfied that the sanction order has
0   been issued in according with law.

          16. Learned counsel for the appellant secondly submitted
    that the judgment recorded by both the courts below is contrary
    to the evidence on record. We have examined the entire issue.
E   We are of the considered opinion that the trial court as well as
    the High Court have analyzed the entire evidence and clearly
    held that a demand was definitely made by the appellant for
    delivery of the tax certificate. The trial court as well as the High
    Court have made a reference to the evidence given by PWs.2
F   and 3 who have categorically stated that the demand was made
    by the appellant. No other point was urged .before us.

         17. We may notice that the entire trap have been
    meticulously orchestrated by the prosecution authority. We are
    unable to discern any arbitrariness or inconsistencies in the
G   concurrent findings recorded by the courts below. We find no
    merit in this appeal. The appeal is dismissed.

    R.P.                                          Appeal dismissed.