H.G. Mishra, J.

1. This is an appeal by the accused-appellant against his conviction and sentence awarded by the Special Judge (Additional Sessions Judge), Shivpuri, in Sessions Trial No. 1 of 1977 under Sec. 161 I. P. C. and Sec. 5(1) (a) and (b) read with Sec, 2 of the Prevention of Corruption Act, 1947, (hereinafter referred to as the Act), sentencing him to one years rigorous imprisonment in respect of each of the aforesaid offences and imposing a fine of Rs. 100/- only, in default of payment of which three months rigorous imprisonment is to be undergone.

2. The Prosecution case, briefly stated, is as under :--

Pyarelal (P. W 1), Ramcharan (P. W. 2), Gajanlal (P. W. 7), Chatura, Gulla, Rammu, Angid and others used to work as labourers on road in the National Park. Shivpuri. At the relevant time, accused-appellant Madhusudan Prasad Gupta was time keeper in the said National Park. Accused was sent on deputation to the aforesaid post vide order (Ex. P. 4) dated 14/3/1965 from the post of Time-keeper in Pichhore sub-Division in P. W. D. (Block No. 1), Pichhore to the aforesaid post in the Forest Department by orders of the then Executive Engineer, Shri S. M. Shrivastava. Pyarelal (P.W. 1), Ramcharan (P. W. 1), Gajanlal (P. W. 7) along with certain other persons approached Shri Atul Sinha, Collector and District Magistrate, Shivpuri (P. W. 3), with a complaint (Ex. P 1) which was signed by Pyarelal, Ramcharan, Gajanlal and others against the accused-appellant Madhu Sudan Prasad Gupta to the affect that he akes from each one of them by way of bribe Rs. 5/- per month on the threat of either not taking them on work or marking them absent for 2-3 days. In the said complaint, it was also stated that they have collected Rs. 50 for being given as bribe to the accused-appellant. On receipt of this complaint, the District Magistrate, Shivpuri marked it to the Superintendent of police, Shivpuri, On 3/9/1976 with the endorsement (C to C)" for necessary action. I have signed nine notes of denominations 10/-, 5/-2/- and 1/- given to complainant.

3. On being approached, Shri J. C. Johri, D.S.P, (H. Q) Shivpuri (P. W. 8) marked the application to Shri R. S. Margekar (P. W. 10), D S.P. (Administrative) with the following endorsement :

Please take necessary legal action". Thereafter, Pyarelal and other persons approached R, S. Margekar (P. W. 10) and presented the application (Ex. P. 1) to him and nanded over three notes of Rs. 10/- each, three notes of Rs. 5/- each, two notes of Rs. 2/- each and one note of Rs. 1/-, bearing the following numbers :--

Notes of 10/-

(1) No. G/78-

676282

(2) No. G/78-

786824

(3) No. G/78-

676229

Notes of Rs. 5/-

(1) No. C/13-

062536

(2) No. C/71-

589197

(3) No. C/71-

691395

Notes of Rs. 2/-

(1) No. T/36-

409704

(2) No. W/30-

519619

Note of Rs. 1/-

(1) No. K/38-

893119 G.

seizure memo was prepared at 10. OC hours on 3/6/1976, which is Ex. P. 2 by Shri R. S. Margeka (P. W 10). He directed Pyarelal and the aforesaid persons to contact him at 8 A. M. on 4/9/1976. Thereafter, at 8 A. M. on 4/9/1976, Pyarelal, Gajanlal, Ramcharan contacted R. S. Margekar (P. W. 10) and told him that their other colleagues having gone on their work have not come--Pyarelal informed him that the accused-appellant was at that time at his residence. Thereupon R. S. Margekar (P W. 10) handed over the aforesaid notes bearing signatures of the District Magistrate. Shivpuri dated 3/9/1976 to Pyarelal and asked him to raise his hand after the aforesaid money was given by him and accepted by the accused-appellant He further told him that they will be waiting in the lane outside the house of the accused. Accordingly, Pyarelal went inside the house of the accused-appellant and gave the aforesaid signal by raising hand after the said notes were handed over by him to the accused-appellant by way of bribe On signal being given by Pyarelal. R. S. Margekar (P. W. 10) in presence of Govind Singh (P. W. 9), and Kamarlal went inside the house of the accused and disclosed his identity. After giving and taking witnesses search, Shri Margekar took search of the accused-appellant and recovered the aforesaid notes from right side pocket of his pant (Art. P. 1), which the accused-appellant was putting on at that time. Seizure memo (Ex. P. 13) was prepared by Shri R. S. Margekar (P. W. 10). The room where the accused was sitting and where from the notes were recovered, as stated above, is shown at serial No. 3 in the spot map. The accused was arrested on the spot vide arrest memo (Ex. P. 13). Thereafter, after obtaining sanction (Ex. P. 17) from the Executive Engineer, P. W. D. (P and R). Shivpuri, which was sent to the Police vide Ex. P. 18 vide letter No. 84 dated 4/1/1977 the case was challaned vide Ex. P. 16 in the Court of Special Judge (Additional Sessions Judge, Shivpuri).

4. The accused-appellant abjured his guilt and took the plea that Pyarelal, Ramcharan, Gajanlal and others used to cut and take away wood from the National Park. The Accused-appellant had complained against them in that behalf. Accordingly, they had harboured ill-will against him and on that account they have falsely implicated him in the case.

5. After trial, learned Special Judge has convicted the accused-appellant under Sec. 161 I. P. C. and Sec, 5(1) (a) and (b) read with Sec. 2 of the Act, and sentenced him to one years rigorous imprisonment for each of the offences and imposed a fine of Rs. 100/- in default whereof he was to further undergo rigorous imprisonment for three months, Substantive sentences have been directed to run concurrently and the period in which the sccused remained in judicial custody has been directed to be deducted from the aforesaid sentence. Aggrieved by this conviction and sentence, the accused-appellant has preferred this appeal.

6 In this appeal Shri N. P. Mittal, learned counsel for the accused-appellant, contended that (i) there is no valid sanction: (ii) that habitual acceptance and/or obtaining of illegal gratification is not proved: (iii) that there is no reliable evidence regarding the alleged recovery of the Notes from the person of the accused-appellant; and (iv) that there is no reliable and cogent evidence to sustain the conviction of the accused appellant either under See, 161 I. P. C. or under Sec. 5 (1) (a) and (b) read with Sec. 2 of the Act.

Shri Mahi Pal Singh Bhadoria, learned Panel Lawyer or for the State, submitted that none of the aforesaid contentions has any force and that the conviction and sentence deserve to be maintained.

7. Having heard the learned counsel for the parties, I have come to the conclusion that the appeal deserves to be allowed,

8. In Mohd. Iqbal Ahmed v. State of M. P. AIR 979 SC 677, it has been held that--

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 constituing the offence. This should be done in two way; either (1) by producing the origins sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. Any case instisuted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. 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, any subsequent fact which may come into existence after the grant of sanction 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 srrvant concerned.

(Emphasis supplied by me).

Now, I proceed to examine the present case in the light of the aforesaid principles. In the instant case, K. D. Kathuria (P. W. 4) is the Sanctioning Authority, He was Executive Engineer at the relevant time. He has granted Sanction (Ex. P. 17) dated 4/1/77, which reads as under :--



The aforesaid sanction consists of two parts, viz. (i) narration of facts, and, (ii) expression of satisfaction. Now satisfaction of the Sanctioning Authority is not expected to be illusory, but is expected to be outcome of application of judicious mind. At an earlier occasion when approached by the Investigating agency Shri K. D. Kathuria (P. W. 4) had granted sanction evidenced by-Ex. D. 6 on 6/12/76 which neither contained statement of facts constituting the offences nor contained any ground for satisfaction. Accordingly, the investigating agency approached him again for grant of sanction. The sanction which he granted for the second time is Ex. P. 17, reproduced above. In his cross examination (para 4) of his deposition, K. D. Kathuria (P. W. 4) has stated that the facts relating to the case were orally stated by some police Officer whose name he is unable to state. It was on the basis of that oral narration of facts and on the basis of letter of the police No. B/5085 dated 5/11/76 (Ex. D. 7) sent by the Superitendent of police, Shivpuri, that he had granted the aforesaid sanction. He has further clearly admitted that except Ex. D. 7 and the aforesaid oral information no other documents were placed before him at the time when he accorded the sanction (Ex. P. 17). No doubt, it is true that it is open to the prosecution to adopt any of the methods laid down by the Supreme Court, in order to prove that a valid sanction has been granted in the matter by the Sanctioning Authority. But, in the instant case it appears that the prosecution has resorted to both the methods to prove grant of the valid sanction in the matter, inasmuch as the prosecution did not feel satisfied with production of the Sanction (Ex. P. 17), but also produced evidence aliunde by examining the Sanctioning Authority, K B. Kathuria as P. W. 4, Accordingly, if from the aforesaid facts brought out in the cross-examination of K. D. Kathuria (P. W. 4), it appears that the act of grant of the saction was considered by him to be mere an idle formality or an acrimonious exercise and not a solemn and sacrosanct act, the prosecution cannot escape the consequences following from leading such evidence. As such, the satisfaction appears to be wholly illusory and expression with regard to the satisfaction contained in Ex. P 17 appears to be merely mechanical, more so, because the factual part of Ex. P. 17 is virtually paraphrase of the letter of the Superintendent of Police (Ex. P. 7). Thus the validity of the sanction (Ex. P, 17) stands considerably shaken, rather destroyed by the testimony of the Sanctioning Authority, K, D. Kathuria (P. W. 4) himself.

9. At this stage, Shri Mahipal Singh Bhadoria, Panel Lawyer for the State, tried to persuade this Court to raise a presumption of the regularity in the matter of grant of sanction with the aid of Sec. 11 (sic). Evidence Act, read with its Illustration (e). In the first place, there is no question of such 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, no such presumption can be available in view of the facts stated by K. D. Kathuria (P. W. 4, in para 4 of his statement, as staled above Accordingly, the sanction Ex. P. 17) cannot be regarded to be a valid sanction according to the principles laid down in Mohd. Iqbal Ahmads case (supra).

10. Even otherwise, if the saction (Ex P. 17) be assumed to be avalid sanction on merits, the conviction of the accused-appellant can not be sustained in view of the following considerations as will be clear from the discussion of the evidence led by the prosecution in the case. In order to constitute an offence of criminal misconduct falling within Sec. 5(1)(a) and (b) of the Prevention of Corruption Act, 1947, inter alia it has to be proved that the accused habitually accepts or obtains any illegal gratification other than legal remuneration as a motive or reward such as mentioned in section 161 of the Indian Penal Code. The word habitually means usually, generally or according to custom. It does not refer to the frequency of occasions but rather to the invariability of practice. Accordingly, the word habitually (occurring in Sec. 5(1) (a) and (b) of the Act has to be regarded not to refer an isolated act of criminal misconduct but to indicate persistancy in doing the acts of accepting or obtaining of illegal gratification. In order to prove this ingredient of the offence the prosecution has led evidence to the effect that for the last two months Pyarelal (P. W. 1) used to collect Rs. 5/- each from Ramcharan (PW 2), Gajanlal (PW 7) and seven other persons and used to add his own Rs. 5/- and given total Rs. 50/- for two months preceding the occurrence. It has been admitted by Pyarelal (PW 1) in para 6 of his statement that merely oral complaint was made of the aforesaid fact to the Range Officer. However, the Range Officer, Mahesh Prakash Sharma as P. W. 6 has stated in his cross-examination that on such complaint was ever made to him by Pyarelal (P. W. 1) or any one of these persons. It may be that after collecting money from 9 other persons Pyarelal (P.W. 1) might have pocketed it himself. There is no evidence worth reliance to the effect that the money so collected was paid to the accused applicant. Thus one of the essential ingredients, namely, habitually accepts or obtains illegal gratification is not duly proved.

11. Even if all the facts preceding the actual laying of the trap are regarded to be proved by legal evidence, the point which is pivotal in the case is : proof of acceptance of illegal gratification by and recovery of Notes (Art. 2 to 10) from the accused-appellant Nothing substantial turns on the facts that (i) Pyarelal (P.W.1) and others approached the District Magistrate, Shivpuri, with complaint (Ex. P. 1) dated 3-9-76; and that (ii) the District Magistrate put an endorsement c to c directing the Superintendent of Police, Shivpuri, to take necessary action; and that (iii) the D. S. P. (H. Q.) who was acting as S. P. in turn directed them to D.S.P. (Adm.) R. S. Margekar (P.W. 10). On the crucial question with regard to the alleged recovery of the notes from the pant which the accused-appellant was putting on, it is stated by Govind Singh (P. W. 9) in para 3 of his deposition that when the Search Officer R. S. Margekar (P. W. 10) entered the house of the accused he had not given his search and taken search of the witnesses before entering the house. The actual words are :--



Pyarelal as P W. 1 has also stated likewise in para 9 of his deposition. R. S. Margekar (P. W 10) D.S.P., of course, states to the effect that he had given and taken search, but his testimony appears to be an outcome of an urge to see that the trap laid by him succeeds. From the evidence afforded by Pyarelal (P. W. 1) and Govind Singh (P. W. 9) it is clear that the Search Officer did not convince the witnesses that he was empty handed. Accordingly, the possibility of planting of the notes (Art. 2 to 10) cannot be ruled out. As such, the recovery of the Notes from the person of the accused-appellant appears to be surrounded by a cloud of suspicion and the factum of recovery is shaken, moreso, because the evidence led by the prosecution on the point as to who entered the house of the accused appellant at the time of the alleged recovery is also materially discrepant. Pyarelal (P W 1) in para 8 states that Gaganlal (P. W. 7) and Rameharan (P. W. 2) entered the house of the accused-appellant with him, whereas Rameharan (P. W. 2) in para 5 states that Gaganlal (P.W. 7) and he did not enter into the house of the accused-appellant at the aforesaid time. Gaganlal (P.W. 7) in para 3 also states that he remained outside. Thus the testimony of Pyarelal (P W. 1) stands contradicted by the evidence afforded by Ramcharan (P.W. 2) and Gaganlal (P.W. 7) Furthermore, R. S. Margekar (P.W. 10) in para 3 of his deposition states that seizure memo regarding the Notes (Art. 2 to 10) and seizure memo regarding the pant (Ex P. 12) were prepared on the spot whereas Govind Singh (P.W. 9) does not support it on the point and contradicts by stating in para 3 of his deposition that seizure memos Ex. P. 11 and P. 12 were drawn up in police Kotwali. Thus the factum of recovery of the Notes (Art. 2 to 10) from the person of the accused-appellant was not proved by reliable and cogent or legal evidence It appears that Pyarelal (P.W. 1), Rameharan (P.W. 2) Gaganlal (P.W. 7) and seven other complainants used to take away wood from the National Park forest clandestively, and the accused-appellant used to object in their doing so. This fact has been admitted by Pyarelal (P.W. 1) in para 10 of his deposition and by Rameharan (P.W. 2) in para 6 and Gaganlal (P.W. 7 in para 5. It appears that feeling annoyed by this conduct of the accused-appellant, the complainant party has contrived to implicate him falsely in this case. Thus the guilt has not been brought home to the accused-appellant by evidence worthy of credence. The ingredients of offence punishable under Sec. 161 of the Indian Penal Code and/or that punishable under Sec. 5 (1) (a) & (b) of the Act have not been established in the case. Accordingly, the finding of guilt of the accused-appellant recorded by the Courts below cannot be sustained.

12. In view of the aforesaid discussion, the appeal deserves to be allowed and is hereby allowed. The conviction and sentence awarded to the aceused-appellant are hereby set aside and he is acquitted. The disposal of the Notes (Art. 2 to 10) will be as per directions contained in para 18 of the impugned judgment.