Bhawani Singh, J.
1. This appeal has been preferred by the State of Himachal Pradesh against the order of acquittal passed by the learned Special Judge, Mandi Division, Mandi, in Corruption Case No. 1 of 1983, on September 25, 1984, acquitting the accused for offences under Section 16, I.P.C. read with Section 5(2), Prevention of Corruption Act.
2. The case of the prosecution, in brief, is that Chint Ram, a resident of village Malthehar had applied for the grant of Nautor land in March, 1981. In accordance with the procedure and practice, the application went down to the accused who was the Patwari of Patwar Circle, Malthehar.
It is further alleged that Shri Chint Ram gave Rs. 150/ - to the accused in order to get a favourable report under the impression that it was customary remuneration of the Patwari. Shri Chint Ram when failed to get a favourable report, contacted the accused again in 1982, the accused then demanded a sum of Rs. 100/- as a gratification. Shri Chint Ram had no money and in order to pay the same, he approached one Ramu for the amount, who agreed to pay the same in the presence of Gobind Ram, Pradhan of the village.
3. In this way, on April 29, 1982, both Chint Ram and Ramu went to Gobind Ram and thereafter all of them went to Mandi to report the matter to the Anti-Corruption Unit. A report was registered and Shri Chint Ram produced currency notes of Rs. 100/- of Rs. 50/-, Rs. 20/- and three notes of Rs. 10/-denominations intended to be given to the accused as gratification. Documents in this regard were prepared and completed and thereafter Phenolphthalein powder was sprinkled over these notes and then handed over to Shri Chint Ram with a direction to pay the sum to the accused. A raiding party consisting of policemen, Chint Ram, Gobind Ram and Ramu, went to village Malthehar. On way, at Ner Chowk, two witnesses, namely, Narotam and Dharam Singh were also joined in the raiding party. Narotam Ram was to act as a shadow witness. As instructed, Chint Ram and Narotam went to the accused in his office at Malthehar and handed over the treated notes to the accused. A signal was given to the police as instructed, the Inspector Anti-Corruption Unit along with others came there but the accused was not found in the Patwarkhana. It went to his quarter situate nearby and the currency notes were recovered from the person of the accused. His 2 hands were washed with clean water and the water treated with Sodium Carbonate powder was collected in bottles. Other papers like Roznamcha, application/ papers of Shri Chint Ram were also taken possession of. After completing the formalities, a challan under Section 161, I.P.C. and Section 5(1)(d) punishable under Section 5(1)(2) of the Prevention of Corruption Act was initiated against the accused. The trial ended in the acquittal of the accused. Hence this appeal.
4. Before the respective contentions of the learned counsel appearing for the parties are examined, it is necessary to know the object of the Prevention of Corruption Act, 1947 legislated by the Parliament. In this respect the observations of K. Subba Rao, J., as he then was, while speaking for the Court, reported in AIR 1963 SC 1116 : (1963 (2) Cri LJ 186), M. Narayanan Nambiar v. State of Kerala, are as follow:
'(9) The preamble indicates that the Act was passed as it was expedient to make more effective provisions for the prevention of bribery and corruption. The long title as well as the preamble indicate that the Act was passed to put down the said social evil i.e. bribery and corruption by public servant. Bribery is form of corruption. The fact that in addition to the word 'bribery' the word 'corruption' is used shows that the legislation was intended to combat also other evil in addition to bribery. The existing law i.e. Penal Code was found insufficient to eradicate or even to control the growing evil of bribery and corruption corroding the public service of our country. The provisions broadly include the existing offences under Sections 161 and 165 of the I.P.C. committed by public servants and enact a new rule of presumptive evidence against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some extent it overlaps on the pre-existing offences and enacts a rebuttable presumption contrary to the well known principles of Criminal Jurisprudence. It also aims to protect honest public servants from harassment by prescribing that the investigation against them could be made only by police officials of particular status and by making the sanction of the Government or other appropriate officer a pre-condition for their prosecution. As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object, i.e. to prevent corruption among public servants and to prevent harassment of the honest among them.'
5. Therefore, it is most essential to strike a balance between the object with which this legislation was enacted and the fact that honest and innocent, public servants are not harassed.
6. The first point argued by Shri L. S. Panta, learned Deputy Advocate General, appearing for the State of Himachal Pradesh, relates to the fact that the accused demanded bribery from Chint Ram (P.W. 1) and the treated currency notes were recovered from the person of the accused. These notes, the counsel argued, were of Shri Chint Ram (P.W. 1). Therefore, he contended that in accordance with the presumption under Section 4 of the Prevention of Corruption Act it is to be presumed that the accused obtained the money from Shri Chint Ram (P.W. 1) by corrupt means as illegal gratification and hence liable for offences under Section 161, I.P.C. read with Section 5(1)(d) of the Prevention of Corruption Act.
7. Shri Bhagat Ram Sharma, learned counsel appearing for the accused, on the other hand, contended that demand of illegal gratification on the part of the accused is fundamental for establishing a case against the accused and absence of it or like evidence on this aspect will indicate the innocence of the accused and demolition of the prosecution case altogether.
8. Section 5 of the Act, so far as the same is relevant, is reproduced as under:
'5. Criminal misconduct. (1) A public servant is said to commit the offence of criminal misconduct.. .. ..
(a) to (c) xx xx xx(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or.... xx xx xx
9. The word 'obtains' has been the subject-matter of dispute before the Courts on a number of occasions. Reference can be made to (1983) 2 Chand LR 192 Tarlok Singh v. The State of Punjab 1981 Chand L (Cri) R 159 Ram Parkash v. The State of Punjab, Chand L (Cri) R 539 (Mohinder Singh v. The State of Punjab and (1984) 1 Chand L (Cri) R 281 wherein it has been held that demand of bribe has to be proved by the prosecution as an independent fact. To the same effect are the observations in AIR 1956 SC 476 : (1956 Cri LJ 837), Ram Krishan v. State of Delhi, wherein Justice Chandrasakhara Aiyar, J., speaking for the Court, said in para-9 as under:
'The word 'obtains', on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver.'
10. It is contended by the learned Deputy Advocate-General that there is no word 'demand' in Section 161, I.P.C. or Section 5(1)(d) of the Prevention of Corruption Act. Therefore, he argues, that demand on the part of the accused is not an essential element of the offence. What is necessary, the learned counsel contends, is 'obtains' and, therefore, there is no requirement to prove the demand as an independent fact as contended by the learned counsel for the accused. Reference is made to AIR 1963 SC 1116 : (1963 Cri LJ 186), M. Narayanan Nambiar v. State of Kerala. It is not possible to appreciate this argument of the learned Deputy Advocate-General. In case this argument is accepted, the result may be catastrophic and anyone may come forward to levy an allegation of corruption or bribery against a Government servant by just pushing money into his pocket or throwing the same at his table and without even telling him the cause of it. The word 'obtains', therefore, has been intentionally used by the Legislature and it has a definite meaning. Therefore, before anyone can be proceeded against under these provisions, it is necessary to prove that it was as a result of demand that money was passed on. Passing of money is a consequence of the demand. Cases cannot be eliminated where the initiative to pass the money is taken by a person and the accused pockets the same without raising any objection to its receipt. Therefore, if the present case is examined in the light of this position, it can be safely concluded that the accused did not demand the money for giving a favourable report to Shri Chint Ram (P.W. 1).
11. Reference to the statement of various witnesses on this fact indicates that these witnesses have made conflicting versions. Shri Chint Ram (P.W. 1) narrates in his complaint (Ex.P.A.) that the accused had met him on the same day in the morning and demanded gratification. At that time, he states, he was with Govind Ram and Ramu but at the same time he stated that the accused had met him the last evening when he was not with Govind Ram or Ramu. The complainant Shri Chint Ram (P.W. 1), therefore, is not at all clear about this essential fact of demand of bribery by the accused. Ramu (P.W. 6), and Govind (P.W. 8) have also denied the factum of their meeting the accused in the morning. Under these circumstances, therefore, there is no cogent and convincing evidence to prove the demand aspect of the case against the accused.
12. The second part of the story deals with the passing of the currency notes to the accused on 29-4-1982. None of the witnesses cited by the prosecution have stated that the accused had demanded any such amount at that stage; only thing they state is that the currency notes were handed over to the accused who put them in his pockets. Here also, there is a contradiction in their statements when Shri Chint Ram (P.W. 1) states that on receiving the currency notes, the accused put one note of Rs. 50/ - in the pocket of his pant and rest of the treated notes were put in the pocket of the shirt. They are also not clear as to what type of garments the accused was wearing at that particular time which indicates that the alleged currency notes were not received and kept in the way the prosecution alleges. Clear cut evidence on this aspect is essential as washing of the pockets of these garments of the accused was also essential like the washing of his hands in view of the specific defence of the accused that he neither demanded this amount nor received it nor kept it in his pockets; rather the same were placed before him which he placed on the table of the owner of the shop (Shri Bhupinder). Naturally, he picked up the notes with his hands as indicated by the water with which his hands were washed but washing of the pockets of the garments would have definitely indicated that the notes were accepted and kept by the accused in his pockets. The recovery of the treated currency notes by the prosecution becomes all the more doubtful if reference is made to ex. P.G (it shows nothing was recovered at the spot) and Ex. PC (it shows that the currency notes were recovered). One cannot be convinced by the prosecution version on this aspect and the same has to be rejected as rightly held by the learned Special Judge.
13. Shri Bhagat, Ram Sharma, learned counsel appearing for the accused, further contended that the material witnesses in this case -- Narotam and Dharam Singh are relations of Chint Ram (P. W. 1). It is the duty of the prosecution, to join independent and disinterested persons in the raiding party. There is force in this submission of the learned counsel for the accused. The prosecution could have easily, while on way to the place of the accused, included independent, disinterested and reputable persons of the area and locality for evidencing the trap. Need of such a course on the part of the officers concerned in such cases has been stressed in AIR 1976 SC 91 : (1976 Cri LJ 172), Raghbir Singh v. State of Punjab, wherein it has been observed as under (para 8):
'We must take this opportunity of impressing on the officers functioning in the anti-corruption department to insist on observing this safeguard as zealously and scrupulously as possible for the protection of public servants against whom a trap may have to be laid. They must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. We cannot, in the present case, rely on the evidence of Jagdish Ram and Arjun Das for the purpose of holding that a sum of Rs. 50/- was paid by Jagdish Raj to the appellant by way of bribe'.
The same view has been taken in 1978 Cri App R(SC) 181, Jai Ram Lakhe v. State of Punjab and 1980 Cri LJ 1330 (SC) Hari Obula Reddi v. State of Andhra Pradesh. Requirement of such a course is all the more fundamental in corruption cases where trap has been laid in view of 1979 Cri LR (SC) 574 : (1979 Cri LJ 936), Panalal Damodar Rathi v. State of Maharashtra, (1983) 2 Chand LR 192 (Tarlok Singh v. State of Punjab and 1981 Cri LJ 653 (Bom) Doma v. The State of Maharashtra.
14. In the absence of any reason by the prosecution for not including independent, disinterested and reputed witnesses in the raiding party, therefore, indicates that the incident has not taken place in the manner as the prosecution has contended. It further throws doubt on the whole case and the result is that the explanation given by the accused appears to be more sound and convincing.
15. The learned counsel for the accused has lastly raised two further contentions. One relating to the grant of sanction by the Deputy Commissioner, Mandi (Ex.PJ) and the other relating to the conduct of the accused in sitting over the file of the complainant Shri Chint Ram (P.W. 1) for a long time as asserted by the learned counsel for the State. On the first point, it is contended that the grant of sanction is invalid. The Deputy Commissioner, it is contended, has mechanically given the same without application of mind. Reference to the sanction order (Ex.PJ) was made and on the basis of the same the learned counsel contended that the sanctioning authority has just signed the same without caring to even mention the facts of the case which, according to the learned counsel, is most important in the light of the decision of the Supreme Court in AIR 1971 SC 1910 : (1971 Cri LJ 1422), Som Nath v. Union of India, wherein it was observed as under (para 6):
'For a sanction to be valid it must be established that the sanction was given in respect of the facts constituting the offence with which the accused is proposed to be charged. Though it is desirable that the facts should be referred to in the sanction itself nonetheless if they do not appear on the face of it the prosecution must establish aliunde by evidence that those facts were placed before the sanctioning authorities, it is therefore necessary to first examine the order of sanction to ascertain on what facts it has been accorded.'
16. Reference has also been made to 1984 (2) Crimes 183 (B. K. Kutty v. State) wherein the learned Judges of the High Court of Orissa, following AIR 1971 SC 1910 : (1971 Cri LJ 1422) Som Nath v. Union of India (supra), observed as under:
'It has been laid down by the Supreme Court in AIR 1979 SC 677: (1979 Cri LJ 533) (supra) that 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 prosecution and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned. In the instant case, no evidence has been adduced by the prosecution to prove as to what were the contents of the consolidated report and the investigation report to which reference has been made by P.W. 4 In AIR 1979 SC 677 : (1979 Cri LJ 533) (supra), no evidence had been led to prove as to what were the contents of the note mentioned in Ex. P. 16 which was placed before the sanctioning authority. The Supreme Court held :--'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 Ex.P. 16 does not mention the facts, the Court should presume that 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....'
17. I am in respectful agreement with these observations and the contention of the learned counsel has a great force. The order of sanction (Ex.PJ), if seen in the light of these judgments, is invalid. It does not indicate even the precise date of the month of December, 1982 when the sanctioning authority signed it. The explanation given by the sanctioning authority in his statement does not satisfy the judicial conscience as grant of sanction is a very serious matter.
18. When once the prosecution has failed to prove the case against the accused on the fundamental aspect, reference to the conduct of the accused for sitting over the file of the complainant Shri Chint Ram (P.W. 1) is of little consequence. However, the explanation given by the accused on this aspect of the matter is convincing and no inference against the accused can be drawn more; particularly, in view of the fact that the same was to be processed in a particular manner and a favourable report had long back been given by him on this application the findings drawn by the learned Special Judge on the basis of the evidence before him are perfectly justified and the same are confirmed.
19. In view of the aforesaid discussion, the appeal fails and is accordingly dismissed. The personal bond and surety bond, if any, executed by the accused at any stage of the case are hereby discharged.