Judgment:
A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment of conviction and order of sentence dated 2-9-1997 passed by learned V Additional Sessions Judge and Special Judge (CBI), Jabalpur in Special Case No. 01/88, convicting the deceased-appellant under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act, 1947 (in short 'the Act') and thereby sentencing him to suffer rigorous imprisonment of two years and fine of Rs. 30,000/- (Rs. Thirty Thousand), in default of payment of fine amount, further R.I. of six months, this appeal has been preferred by him under Section 374(2) of the Code of Criminal Procedure, 1973.
2. It would be relevant to mention here that Motilal Shrivastava was prosecuted and convicted under Section 5(1)(e) read with Section 5(2) of the Act. After conviction, this appeal was preferred by the accused/appellant. During the pendency of this appeal, accused/appellant died on 10th July, 1998 and the present appellants who are his legal representatives have been brought on record and they have been permitted to prosecute this appeal.
3. In brief the case of prosecution is that deceased-appellant was serving on the post of Senior Clerk (Stores) in the office of Divisional Railway Manager, Jabalpur. He joined the services as Ladder Man on 19-5-1961. During the period between 19-5-1961 and 29-12-1986 he was posted under Divisional Railway Manager, Jabalpur. It is the further case of prosecution that deceased-appellant for the period between May, 1961 and December, 1986 as a public servant acquired assets movable and immovable in his own name and in the name of his wife and relatives which were found to be disproportionate to the known sources of his income and for which he could not submit satisfactory account. The disproportionate asset was found to be Rs. 2,72,050/-.
4. After the investigation was over and sanction to prosecute the deceased-appellant was obtained a charge-sheet was submitted in the Special Court. The learned Special Judge on the basis of allegations made in the charge-sheet framed charge punishable under Section 5(1)(e) read with Section 5(2) of the Act which he denied and requested for trial.
5. The explanation in the defence which the deceased-appellant offered in his statement recorded under Section 313, Cr. P.C. is that some of the immovable property was bought by his wife from her own income.
6. The prosecution examined its witnesses and deceased-appellant also in his defence examined some witnesses.
7. Learned Special Judge on the basis of oral and documentary evidence placed on record came to hold that the charge levelled against the deceased-appellant is proved and eventually convicted him and passed the sentence which I have mentioned herein-above.
8. In this manner the deceased-appellant has preferred this appeal assailing the impugned judgment of conviction and order of sentence passed by learned Special Judge.
9. Apart from merit of the case, Shri A. S. Raizada, learned Counsel appearing for the appellants submitted that sanction to prosecute the deceased-appellant accorded under Section 6 of the Act is not in consonance with the law and because the sanction is invalid, therefore, deceased-appellant was illegally convicted. The contention of learned Counsel is that the deceased-appellant was an employee of the Union of India, being an employee of the Railways, therefore, the sanction should have been accorded by the Central Government. His another contention is that being serving on the post of Senior Clerk (Mechanical) in the Railways his services could have been terminated only by the Divisional Railway Manager and not by Senior Divisional Mechanical Engineer (Power) who is lower in two grades to the Divisional Railway Manager. The sanction order has not been validly accorded and, therefore, in absence of valid sanction order there cannot be any conviction.
10. On the other hand, Shri Jayant Neekhra, learned Counsel appearing for the respondent argued in support of the impugned judgment and has submitted that sanction order is in consonance with the law and for no rhyme or reason it can be said to be an invalid sanction order. Further it has been contended that the Act of 1947 has been repealed by the Prevention of Corruption Act, 1988 which came into force from 9th September, 1988 and according to Section 19(3) of the Act of 1988 no finding, sentence or order passed by a special Judge could be reversed or altered by a Court of appeal on the ground of any error, omission or irregularity in the sanction required under Sub-section (1) of Section 19 unless in the opinion of that Court, a failure of justice had occasioned to the accused. By inviting my attention the word 'error' it has been submitted that this has been explained in the explanation to Section 19, according to which error includes competency of the authority to grant sanction and, therefore, even if for some reason or the other sanction order was found to be defective or even invalid the impugned judgment cannot be set aside. Further it has been contended by the learned Counsel that the deceased-appellant has been found in possession during the period of his office, disproportionate assets to his known source of income as envisaged under Section 5(1)(e) of the Act and, therefore, learned Special Judge has rightly convicted him. Further it has been contended by the learned Counsel that the learned Special Judge has assigned cogent reasons for holding that the deceased-appellant acquired disproportionate assets without any known source of his income of Rs. 2,72,050/-. It has also been contended by the learned Counsel that the question of invalidity of the sanction order ought to have been raised before the learned Special Judge.
11. Having heard the learned Counsel for the parties, I am of the view that this appear deserves to be allowed.
12. So far as the objection of learned Counsel for the respondents in respect of raising objection in regard to the validity of the sanction order before the learned Special Judge is concerned, suffice it to say that this objection was taker} by the deceased-appellant right from the very beginning. Not only this, he has also filed objection before the learned Special Judge which was rejected against which he filed Criminal Revision No. 220 of 1997 before the Court and this Court vide order dated 8-3-1997 disposed of the said revision by passing following order:
Having heard Mr. Ajay Shanker Raizada, learned Counsel for the petitioner and Mr. O.P. Namdeo, learned Counsel for the CBI, I am of the considered view that the learned Special Judge should have dealt with this matter in a greater detail. Delay cannot be a ground for non-acceptance of the submission with regard to the matter of sanction. Quite apart from that the question of sanction should have been raised and dealt with during the trial of the case. While not disturbing or unsetting the impugned order, I grant leave to the petitioner/accused to raise all his contentions with regard to sanction at the time of trial and the learned Special Judge shall deal with the same without being influenced by his previous order.
Learned Counsel for the CBI also assures to this Court that he would satisfy the Special Judge with regard to grant of sanction.
With the aforesaid observations and direction the Criminal Revision is disposed of.
Thereafter this objection was taken-up for consideration by learned Special Judge vide order dated 3-7-1997 and was rejected. In this regard order-sheet dated 3-7-1997 of learned Special Judge may be seen. Thus it cannot be said that the said objection was not raised before learned Special Judge and the argument raised on this point by learned Counsel for the respondent is hereby rejected. Even otherwise because the point of sanction goes to the root of the matter, therefore, there is no bar in raising said objection in the appeal because under criminal jurisprudence, the appeal is the continuation of trial.
13. On going through the sanction order dated 27-11-1987 it is revealed that the same has been passed by one Mr. Maheep Kapur, Senior Divisional Mechanical Engineer (Power), Central Railway, Jabalpur. Nowhere from the sanction order it is revealed that the same has been passed either by the Central Government or the Union of India. Admittedly the deceased-appellant was serving on the post of Senior Clerk (Mechanical) in the office of the D.R.M., Central Railway, Jabalpur and was an employee of Union of India and if that would be the position, under Section 6(1)(a) of the Act the sanction order ought to have been issued by the Central Government. Part V of the Constitution speaks about 'The Union' and Chapter I of Part V speaks about 'The Executive'. Article 53 of the Constitution speaks about 'Executive power of the Union' according to this provision the executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. Further Article 77 speaks about 'Conduct of business of the Government of India' which reads thus:
77, Conduct of business of the Government of India.- (1) All executive action of the Government of India shall be expressed to be taken in the name of the President.
(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order of instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.
(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.
According to the aforesaid Article all executive action of the Government of India shall be expressed to be taken in the name of the President and further orders and other instruments are required to be executed in the name of the President as may be prescribed in rules.
14. In order to ascertain whether the sanction order has been validly issued, it would be apposite to quote the entire sanction order which reads thus:
WHEREAS, it is alleged that Sri Motilal Srivastava, Senior Clerk (Mechanical) while functioning as a Stores Clerk, in the Office of the D.R.M. Central Railway, Jabalpur, during the period May 1961 to December, 1986 committed criminal misconduct inasmuch as he was found as on 3rd March, 1987 to be in possession of assets/properties to the tune of Rs. 3,77,923.75 which are disproportionate to the known sources of his income, suggesting that the said Shri Motilal Srivastava acquired the said assets by questionable means/and or from dubious sources and for which he cannot render any satisfactory account/explanation.
AND WHEREAS, it has been made to appear that the total income of the said Shri Motilal Srivastava during the period 19-5-61 to 31-12-86 from all known sources was Rs. 2,55,754.25 as per Statement 'A'.
AND WHEREAS, the total expenditure incurred by the said Shri Motilal Srivastava during the period June, 1961 to December, 1986 has been calculated to Rs. 1,14,528.00 as per Statement 'B'.
AND WHEREAS, it has been made to appear that in March, 1987, the total assets, moveable and immoveable of the said Shri Motilal Shrivastava, either in his own name or in the name of his wife worth Rs. 5,19,150.00 as per State 'C'.
AND WHEREAS, it has been made to appear that the said Shri Motilal Srivastava, during the aforesaid period of service as a public servant had likely saving to the extent of only 1,41,226.25 and thus he was in possession of disproportionate assets, as on March, 1987, to the extent of Rs. 3,77,923.75 (Rs. 5,19,150.00 minus Rs. 1,41,226.25)
(Assets) (Likely savings.)AND WHEREAS, it has been made to appear that the said Shri Motilal Srivastava cannot satisfactorily account for being found in possession of the said disproportionate assets as on March, 1987.
AND WHEREAS, the said acts constitute an offence punishable under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 (Act II of 1947).
AND WHEREAS, I, Maheep Kapur, Senior Divisional Mechanical Engineer (Power), Central Railway, Jabalpur being the Authority competent to remove the said Shri Motilal Srivastava, from service, after fully and carefully, examining the materials before me, i.e. original documents as per Annexure-I and Statement of witnesses as per Annexure II in regard to the said allegations and the circumstances of the case consider that the said Shri Motilal Srivastava should be prosecuted in a Court of Law for the said offences.
NOW THEREFORE, I Maheep Kapur, Senior Divisional Mechanical Engineer (Power), Central Railway, Jabalpur do hereby accord sanction under Section 6(1)(c) of the Prevention of Corruption Act, 1947.
(Act II of 1947) for the prosecution of the said Shri Motilal Shrivastava for the said offence or for any other offences punishable under other provisions of law in respect of cognizance of the said offence by a Court of competent jurisdiction.
Encl. : 1. Statement A, B & C2. Annexures I & II(Maheep Kapur)Senior Divisional Mechanical Engineer(Power)Central Railway,Jabalpur.(Signature and Designation ofCompetent Authority and Seal)On going through the sanction order it cannot be said that the same has been issued by the Central Government. On the other hand it is gathered that the same has been issued by Maheep Kapur, Senior Mechanical Engineer (Power), Central Railway, Jabalpur. Henceforth it cannot be said that the sanction order which has been accorded is in consonance to Section 6(1)(a) of the Act of 1947 and therefore according to met it is not a valid sanction order.
15. Apart from this, deceased-appellant was serving on the post of Senior Clerk (Mechanical) in Railways and was removable from his services by Divisional Railway Manager and not by Senior Divisional Mechanical Engineer (Power) who had issued the sanction order. Admittedly, Senior Divisional Mechanical Engineer (Power), is blow the rank of Divisional Railway Manager and for this additional reason also the sanction order cannot be said to be a valid sanction.
16. I do not find any merit in the contention of Shri Neekhraa, learned Counsel for the respondent that the objection in respect to the validity of sanction cannot be challenged in view of Section 19(3) of the Act of 1988. The alleged offence is said to have been committed when the old Act was in force and the conviction is also under the old Act. The charge under Section 5(1)(e) read with Section 5(2) of the old Act was framed against the deceased-appellant. The charge-sheet was filed on 14-12-1987 when the old Act was in force. Since the sanction has not been found to be valid sanction, I am of the view that conviction of the deceased-appellant is bad in law.
17. Resultantly, this appeal succeeds and is hereby allowed.
18. The impugned judgment of conviction and order of sentence passed against deceased-appellant is hereby set aside and the deceased-appellant is acquitted from all the charges framed against him.
19. The fine amount, if deposited, be refunded to the present appellants.