Judgment:
S.C. Mohapatra, J.
1. Accused joined State Government Service as Assistant inspector of Supplies in 1959 and was promoted as Inspector of Supplies. While he was posted at Marshaghai in Cuttak district, information, was received that he has possessed pecuniary resources and property which is disproportionate to his known sources of income. Accordingly, he was charge-sheeted after investigation to face trial of the offence under Section 5(1)(e) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the Act'). Cognizance was taken by the learned Special Judge who found accused to be in possession of pecuniary resources and property beyond his known sources of income. But such disproportion having been found to be less than 8% of the income, accused was acquitted. In this appeal the said acquittal is assailed.
2. Mr. Debasis Das, learned Additional Government Advocate submitted that accused being a public servant, possession of pecuniary resources by him or on his behalf of at any time during his continuance as public servant which is found to be disproportionate to his known sources of income would attract punishment for criminal misconduct under Section 5(1)(e) of the Act. It is submitted that accused submitted his property statement in 1968. If the same is accepted, his income for subsequent period would not justify his purchase of immovable property and deposit of huge amounts in his name, in name of his wife and minor children. Therefore, in absence of any explanation of the source at the time of purchase of landed properties or deposits accused is guilty. Trial court not having considered evidence adduced in this light the judgment is vulnerable. Mr. Das relying upon the property statement submitted in 1968 submitted that his salary thereafter, average income from landed properties and the amount of Rs. 12,000/- received by his wife at the time of their marriage as reflected in the property statement would not be sufficient to justify the purchase of land and deposits. Thus, the offence has been made out.
3. Mr. S.K. Mund, learned Counsel for the accused-respondent submitted that the check period is between August, 1959 and end of 1974. Charge was that as on 4-2-1976 he has pecuniary resources and property for the period between August 1959 and 1974 to be disproportionate. Therefore, in absence of specific charge in respect of disproportionate asset within a definite period, as suggested by learned Additional Government Advocate, accused has not been given opportunity to explain the same and in case the same is bifurcated in this appeal, accused would be prejudiced. Mr. Mund submitted that sanction under Section 6 of the Act in this case being invalid accused is also entitled to acquittal. Added to it, Mr. Mund submitted that there being evidence in this case that wife of accused had independent sources of income, deposits in her name and in names of their children should not be treated to be pecuniary resources of accused in possession or on his behalf by his wife and children. However, the said question would not be important since prosecution has not proved the deposits by legal evidence as the copies of the Post Office ledger produced are not certified copies as required under the Bankers' Evidence Act.
4. There being no dispute that accused was a public servant during the period for which he has been charged, it is to be examined there was valid sanction since Section 6 of the Act is mandatory in nature and no cognizance can be taken of an offence in absence of valid sanction of prosecution against the accused.
5. There is no dispute that Collector, Cuttack was the sanctioning authority when the sanction for prosecution was made since he was posted at Marshaghai. A sanction to be valid is to be given by the competent authority by application of mind to the facts constituting the offence. Whether sanction has been given by application of mind is to be determined by Court on the facts and circumstances of each case. If the Court is satisfied that by the time cognizance was taken, prosecution of the accused had been validly sanctioned, it would take cognizance and proceed with the trial. If it is subsequently found that sanction is invalid, all steps taken from the stage of cognizance would be vitiated since cognizance is sine qua non for any trial of offence. Therefore, Court taking cognizance ought to examine at that stage whether there is valid sanction and it is desirable that the same is reflected in the order-sheet.
6. In this case, on perusal of the sanction order cognizance was taken by learned Special Judge on 29-6-1979. Sanction order has been marked as Ext. 38. If, the sanction order alone would have been proved, possibly Court would not have been in a position to find out the defects in it since it was clearly mentioned therein '... after carefully examining the materials and the consolidation report of investigation placed before me and applying my mind in regard to the said acquisition, facts and circumstances of the case.... ' When an officer in the rank of Collector has written the same, there would have been no doubt about the correctness of the order. This sanction order was forwarded by Collector to Deputy Secretary to Government with reference to letter dated 12-1-1979 with a forwarding letter (Ext. 38/1). Prosecution chose to examine the Collector who gave the sanction as P.W. 17. He stated that on 4-11-1978 the consolidated report of the investigating authority was received in his office on 4-11-1978 from Deputy Secretary. This prompted me to find out the nature of letter from Deputy Secretary dated 12-1-1979. Since the entire file of the office of Collector was produced, I looked into the same. A perusal of the same would show that there was no other material before the Collector except the consolidated report of investigation. Thus, the sanction order (Ext. 38) contained facts which are not correct. Since officer in rank of Collector could not have normally committed the mistake in an order of sanction on which the future of a public servant depends, I went through the entire file of the Collector. Facts are revealing. File begins with confidential letter No. 580 dated 4-3-1976 of Assistant Inspector General of Police (Vigilance). Office note on it indicates that property statement of the accused are required to be exhibited, Assistant Inspector General of Police was to be intimated that property statement in Balasore and Keonjhar might have been submitted there. Long thereafter, letter dated 3-11-1978 was received in office of Collector on 4-11-1978. It was dealt with by office on 21-11-1978 when note was placed before C.S.O. who in his turn submitted the following note to the Collector:--
P 12/C from Deputy Secretary, P & S (Vig.) Deptt. requesting to accord sanction to prosecute Sri Bharat Charan Rout, I/S may kindly be seen. The offence is for acquiring assets disproportionate to the income of Sri Rout and hence triable under Section 5(2) read with Section 5(1)(e) of the P.C. Act O/C and P/C of sanction order is placed for signature.
Collector merely put his signature in the note sheet on 15-12-1978 approving the note of Civil Supplies Officer. When office found that the sanction order was not signed it put up a note to C.S.O. on basis of order of Collector dated 15-12-1978 as stated earlier that the office copy, final copy and third copy of the sanction order put up are to be signed by Collector indicating that Collector is to sign the draft sanction order along with other two copies by giving the date 15-12-1978. Civil Supplies Officer submitted note for signature by the Collector along with forwarding letter to Deputy Secretary. Collector signed the draft sanction order and forwarding letter on 31-12-1978 which was sent to Deputy Secretary. On receipt of the same, Deputy Secretary sent back the Draft Sanction order singed which was sent to him on 12-1-1978. It was dealt with by the office on 13-2-1978 and on being placed before the Collector, Ext. 38 was signed and sent as stated earlier. Therefore, I am of the firm view that Collector had not applied his mind. If mind would have been applied the word 'materials' could not have been mentioned. Though deficiency in the order Ext. 38 can be supplemented by oral evidence and record of the Collector, such oral evidence does not improve the matter and record does not disclose any other material. It is true that perusal of consolidated report of investigation to give sanction is adequate as has been held by the Division Bench in the decision reported in (1988) 66 Cut LT 634 : (1988 Cri LJ 461 (Bhagabat Nath v. State of Orissa). File of the Collector does not disclose that he perused the same. Assertion of Collector in oral evidence would not be sufficient in the present case in view of the circumstances indicated above. Thus, sanction is invalid not being on application of mind of Collector and cognizance is thus quashed. All proceedings thereafter are without jurisdiction of the learned Special Judge.
7. Invalidity of sanction vitiates cognizance but not the initiation of prosecution. If a fresh valid sanction is given if the same is required on the date cognizance is to be taken afresh since there is no limitation for cognizance under Section 5(1)(e) of the Act, learned Special Judge would consider the same. Since absence of sanction cannot be a ground of acquittal of the accused, the appeal cannot be dismissed on that ground if on merits prosecution has been able to make out a case even though such evidence has been adduced in a case where cognizance was not valid.
8. As I find, submission of learned Additional Government Advocate that purchase of land in 1972 and 1973 and deposits during that period have not been explained. Accused did not challenge the admissibility of the certified copies of ledger (Ext. 7 series) in the trial court on ground that the requirement of the Bankers' Evidence Act have not been complied with. If it would have been raised, possibly prosecution could have cured the defect or satisfied the Court that the same being copies of public documents are admissible under the Evidence Act, if such an explanation could have been given. Accused should get chance to explain the affidavit filed by him in Sainik School where his salary alone is reflected to be his income and income of his wife. If the same goes unexplained, sources of income of wife may become doubtful. Learned Special Judge has committed mistake in taking into account the sale of gold ornaments at Tata to be a source of income to acquire the assets without further explanation of accused. If I dismiss the appeal for want of valid sanction there would be failure of justice. There should be fresh trial of the accused.
9. I am conscious that 18 years after, I am directing the accused who had been acquitted to face the trial afresh. If society is to be protected, individuals who are public servants and allegations of disproportionate assets are made against them, are to acquit themselves of the charges. If this is not done such officials though might be guilty, may escape the trials and society may not have confidence in the judicial system. Rigidity in this respect should be more where the officers are of higher rank and status in life. In respect of public servants of the lowest rank, a Court may take a liberal view of the matter in case of long delay and decide not to allow further trial.
10. In result, judgment of the trial court is set aside and the proceeding is brought to the stage where cognizance is to be taken. Trial court is directed to proceed from that stage. No observation in the judgment on merit should be utilised.