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Judgment
N. Arumugham, J.—Two police personnel have filed these two appeals against the judgment of conviction and sentence recorded by the
learned Chief judicial Magistrate, Periyar District, Erode, in Spl. CC. No. 252 of 1987 dated 19.4.1990, convicting both the accused under S.
5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947, and sentencing them to undergo rigorous imprisonment for a period of two
years each and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for a further period of three months. Though the accused
were also found guilty for the offence under S. 161 of the Indian Penal Code, no separate sentence was awarded against the appellants.
The first appellant/accused by name Ayyasamy was the Sub Inspector of Police on duty in Kunda Dam Police station in Periyar District on
24.8.1986 and the second appellant/accused by name Krishnasamy was the Police Constable and writer in the said Police Station. While they
were discharging their duties in such capacity in Kunda Dam Police Station, P.W.1 by name Thiruvengadasamy, a resident of N.G.O. Nagar,
Dharapuram during 1985-86 took a toddy shop and two arrack shops in the auction, bearing the number 35 and 30 and 31 respectively, and thus,
he was running the arrack shop number 31 situated in Kommanaickanpatti. On 12.8.1986, at about 6 p.m. since an employee of his arrack shop
by name Rajendran was beaten by Annadurai and others and caused heavy damage to the goods and materials kept in his shop and on his report
to P.W.1, he went and verified on the next day and found the damage, went to the Kunda Dam Police Station, where he found the Head
Constable by name Aruldass and on being apprised that the first accused/appellant had gone to Dharapuram, he went there also and informed
about his intending complaint. But on his instruction, he returned to Kunda Dam Police Station and lodged the complaint at about 7 p.m. with the
Police Station, which is marked as Ex.P. 1 dated 13.8.1986. The first accused/appellant was stated to have promised that he would enquire the
matter.
Then, again on 22.8.1986 at about 7 p.m. when Rathinasamy and others tried to trespass his shop at Bommanaickanpatti and attempted to
commit the same mischief and on getting the said information, P.W.1, again had been to the Kunda Dam Police Station but however, he lodged the
complaint Ex.P.2 to the second appellant/accused and got the receipt for the same, which was marked as Ex.P.3. The second complaint dated
23.8.1986 was marked as Ex.P.2 and the receipt dated 23.8.1986 was marked as Ex.P.3. Then on the next day, when P.W.1 met the first
accused/appellant at about 11 a.m. it is said he was demanded to pay a sum of Rs. 300/- to the first accused and a sum of Rs. 200/- to the second
accused/appellant, for which, P.W.1 had agreed to bring it out of fear. However, he decided not to give accordingly but to lodge a complaint to
the Vigilance and Anti Corruption squad. Consequently, he went to Erode and on the next day at about 6.45 a.m. gave a complaint Ex.P.4 to the
then Inspector of Police by name Ramasamy, upon which Ex.P.5, First Information Report was prepared and signed by P.W.I followed by the
requisitioning of two witnesses viz. P.W.2 and P.W.3 from the Electricity Board and Housing Board. They were introduced and Ex.P.4 was read
over to them. The Inspector prepared a solution with a powder and asked P.W.2 and P.W.3 to dip their hands in it and there was no change of
colour. Later he took two ten rupee notes and smeared a powder on them and gave them to P.W.2 and P.W.3 and then asked them to dip their
fingers in the solution already prepared and the solution turned pink in colour. When the Inspector asked P.W.1 whether he had brought the
money, P.W.1 handed over three hundred rupee notes and four fifty rupee notes, which are M.O.1 series and MD 2 series respectively. The
currency notes were sprayed with phenolphthalein powder and kept in a bag of P.W. 1 with necessary instruction. All the said facts were noted
and reduced into writing in a mahazar marked under Ex.P.6 attested by P. Ws. 1, 2 and 3. Then all went to Kunda Dam in a Jeep with the Policy
party and then P.W.1 was instructed to go and hand over the money to both the accused herein, while others remained at a distance at about 12
noon on 25.8.1986. Then the Police Party, P.W.2 and P.W.3 followed P.W.1 behind him.
Having reached the Police Station, as was asked by the first accused, P.W.1 took his seat in the Writer room for a period of five minutes and
when the second accused asked whether he had brought the money, P.W.1 took M.O.2 series and gave it to him, which was received by the
second accused/appellant by his right hand and changed the same into his left hand and put the same in his table drawer. This was immediately
followed by the first accused/appellant calling P.W.1 and demanding the money. P.W.1 gave M.O.1 series to the first accused, who received it in
the right hand and put it in the rear side pocket in the pant. On the receipt of the said money, it was stated that the first accused/appellant had
proposed to go for bandobust duty and the second accused would take action upon the complaint. M.O.3 is the pant pocket cut from the pant of
the first accused. Accordingly, the second accused was instructed to take action upon Ex. P.l and Ex. P.2. Then, P.W.1 as was instructed, came
outside and showed the signal by clearing his face with the kerchief found with him. Then the Inspector Ramasamy along with P.W.2 and one
Head Constable entered into the Police Station along with Inspector Kuppusamy and introduced themselves that they were Vigilance officers.
Then the Inspector Ramasaniy along with the party in furtherance of the trap conducted the recovery of the bribe money from the first and second
accused M.O.1 and M.O.2 series and performed phenolphthalein test and recovered M. Os. under the cover of mahazars and the documents and
complaints under Ex.P.7 attested be witnesses P. Ws.2 and 3. Ex.P.1, Ex. P. 2, Ex.P.8 to Ex.P.l 1 were recovered under the cover of mahazar
Ex.P. 12. The General Diary (Ex. P. 11) contains the entries for the dates 13.8.1986 (Ex.P.13), 23.8.1986 (Ex.P.14), 14.8.1986 (Ex.P.15),
25.8.1986 (Ex.P. 16). Ex.P.8 is the Petition Register of Kunda Dam Police Station. Ex.P.9 is the note book of the first accused and Ex.P.10 is the
receipt book for the year 1986 of Kunda Dam Police Station. Inspector Ramasaniy along with P.W.9 with their Police party examined the other
witnesses. The house of the accused 1 and 2 were searched in the presence of P.W.2 by Inspector Ramasaniy and a search mahazar was
prepared. The accused were arrested and released. Next day all the documents and property were sent to the learned Chief Judicial Magistrate''s
Court at Erode. Rough sketch prepared on the spot dated 25.8.1985 was marked as Ex.P.21. Inspector Ramasaniy gave requisition Ex.P.18 to
the Court for sending the material objects for Chemical Examination and the same were sent to Chemical Examiner under the original of the office
copy of letter covered under Ex.P.19 and the Chemical Examiner''s Report was marked as Ex.P.20. Necessary sanction from the authorities
concerned to launch prosecution has been obtained under Ex.P.17. It appears from the evidence and case records that the phenolphthalein test
was conducted for both the accused in the proper way as provided by the rules and law. The chemical mixture which turned pink was also
subjected to chemical analysis and it was found to contain sodium carbonate and phenolphthalein in support of the prosecution case. M.O.1 series
is the three hundred rupee denominations involving the first accused in the case and M.O.2 series is the four fifty rupee denominations involving the
second accused into the trouble. M.O.3 is the cut portion of the back pant pocket of the first accused. M.O.4 to M.O.7 are the bottle containing
the solution.
Of the nine witnesses examined as P. Ws. 1 to 9, P.W.I is the main witness for the successful completion of the trap set up by P.W.9 and other
Police Officers. P.W.2 and P.W.3 are the attesters, independent witnesses, who corroborate and support the case of P.W. 1, P.W.4,5 and 6 are
the Constables attached to the Kunda Dam Police Station, among whom, P.W.5 and P.W.6 were treated as hostile and the evidence of P.W.4 is
not useful in either way for the prosecution or the defence P.W.7 is the Office Superintendent attached to the D.I.G of Police, Western Range,
Coimbatore, who speaks to the factum of according sanction by the Deputy Inspector General of Police to prosecute under Ex.P.17 for the
offences referred to above. P.W.8 is the Head Clerk attached to the Chief Judicial Magistrate''s Court, Erode, who speaks to the fact of receipt of
Ex.P.18 and sending the case properties to the Chemical Examiner under Ex.P.19 and the receipt of the Chemical Examiner''s Report under
Ex.P.20.
Inspector of Police, Vigilance and Anti Corruption Mr. Ramasamy since passed away in the middle of investigation and the whole investigation
was done by him with the assistance of P.W.9, even after his death, the further investigation was done and completed by P.W.9 and he filed the
final report after obtaining the orders from the officers, as provided u/s 6 of the prevention of Corruption Act (Old Act).
When both the accused were examined under S. 313 Code of Criminal Procedure with regard to the incriminating circumstances appearing
against them in evidence, they have denied their complicity in the crime, however, the first Appellant/accused has stated that P.W.1 used to come
to the Police Station for obligations and on that score, he had acquaintance with him and that he being a member of the Communist Party
demanded him always to oblige and for the reason of his refusal there was some misunderstanding between him and P.W.1 which resulted in
P.W.1 stopping his visit, to the Police Station and that therefore, he had set up a false case against him. He had stated further that on 25.8.1986 at
about 11 a.m. after making the G.D entry, he left for his house with a view to go to bandobust duty for Aruppukottai by-election, and that while he
was in house, at about 12.30 p.m. on that day, P.W.1 came and threw some currency notes and ran away and consequently P.W.1 raised alarm
and within a short-while P.W.9, P.W.2 and another Constable came to his house and enquired about P.W.1 and as he had narrated the whole
thing, P.W.9 threatened him to do what he was instructed. Accordingly, he was compelled to count the currencies and hand over the cut portion of
his pant pocket and so on. Then he was brought to the Police Station and by stating so, he has denied the whole prosecution story and evidence.
In a similar way, the second accused also has stated that when he was attending the sentry duty on that day, the Inspector of Police, Vigilance and
Anti Corruption came and threatened him to count currency notes and thus, he has denied the whole claim of the prosecution.
I have heard the Bar for the appellants and the learned Government Advocate for the respondent against and for the impugned judgment of
conviction and sentence rendered by the learned trial Magistrate.
Mr. Pandarasamy, learned counsel appearing for the respondent/accused contended that the very claim of P.W.1, in its entirety, appears to be
very unnatural and basing upon which, it is not safe to place any reliance to convict the accused. He would contend further that though a trap was
conducted, however, successfully, but it was not as claimed but it was a stage managed, schemed out by the Inspector of Police Mr. Ramasamy,
who passed away. But from the money provided by P.W.1, the whole trap was schemed out and that therefore no corroboration or substantiation
of the trap was made available in this case and that was the reason why, the two witnesses P.W.4 and P.W.5, the Police Constables attached to
the Kunda Dam Police Station have not supported the prosecution case. Nextly, the learned Counsel contended that the sanction accorded to
prosecute the case against both the accused/appellants, who are the public servants, is not in accordance with the settled law for the very reasoning
that the Sanctioning Authority while according the sanction has not at all applied his mind and that the very fact was seen from the document itself
and that therefore the whole prosecution is vitiated totally.
Mr. Krishnan, learned Senior Counsel appearing on behalf of the second accused/appellant contended that the prosecution has failed to prove
the concept of ''demand'' in this case as provided by the offences, of which both the accused were charged and looking the whole case in that
angle, the fact that M.O.2 series were recovered from the drawer of the table by the investigation staff itself would believe the case of the
prosecution and that the second accused/appellant had not received nor made any demand for bribe. In other respects, learned Senior Counsel
would contend that there was no corroboration or substantiation of the version of P.W.1 in this regard. It was his further venture to state that the
trap set up by the then Investigating Officer Ramasamy looks artificial and superficial and that while recovering the General Diary of the Kunda
Dam Police Station, the Investigating Officer has not looked into the entry made in the General Diary at about 11 a.m. on the day of occurrence
and that when this aspect remains untouched for any purpose and in any manner, then it has to be deemed that the prosecution has accepted this
documentary evidence, which totally goes to the root of the prosecution case and that the learned trial magistrate has not at all considered the
same. Learned Senior Counsel would further contend that the prosecution case in its entirety is full of preponderance of improbabilities that would
go to the root of the concept of ''naturalness and convincing'', Lastly, he would support the first appellant with regard to the sanction as it is totally
lacking the legal credence.
Mr. A.N. Rajan, learned Government Advocate appearing for the State on the other hand would controvert every one of the contentions
raised by stating that the claim of P.W.1 coupled with the documentary evidence Ex.P.1 to P.21 in the context of the full corroboration by P. Ws.2
and 3, who are the independent and respectable witnesses from Erode, would render support to the prosecution case and therefore, the claim by
the Investigating Officer P.W.9 who was all along assisting the then Investigating Officer, was justifiably accepted by the Court below and that in
this manner, the prosecution and established the guilt of both the accused for the offences charged and tried. Learned Government Advocate
would further contend that the various entries made in the General Diary of the Kunda Dam Police Station are self-serving in nature and so much
so, it is quite unsafe for giving any significance or importance for the same in the context of the consistent claim made by the other witnesses with
the strength of documentary evidence and materials. As regards Ex.P.17, the sanction order, learned Government Advocate has emphasised that
the sanction was accorded only after going through the report submitted by the Director of Vigilance and Anti corruption which contains all details
and that fact merely implies that he has applied his mind in full and it cannot in any way be castigated or assailed. Thus, in short, learned
Government Advocate would justify the impugned judgment under this appeal.
In the context of the rival contentions and positions and for the various reasoning given by the learned trial magistrate in the impugned
judgment, I have carefully gone through the whole of the legal evidence in its entirety with the documents and the defence theory and the statement
given by both the accused. True, P.W.1, a resident of Dharapuram and owner of an arrack shop has claimed that for an incident that happened in
his shop on two occasions, he had lodged complaints to the Kunda Dam Police at the behest of both the accused who were in duty at the Station
at that time as evident from Ex.P.1 to Ex.P.3. A perusal of Ex.P.1 to Ex.P.3 would show that the incidents of attack and damage that happened
have been complained of in Ex.P.1 dated 13.8.1986 and Ex.P.2 dated 23.8.1986. The occurrence in this case was on 25.8.1986. On that day, it
was the claim of P.W.1 that he reached the Vigilance and Anti Corruption Police at Erode at about 6.45 a.m. and complained orally which was
reduced into writing followed by the other incidents as claimed by the prosecution including the trap. It is noticed that after the completion of the
trap recoveries, searches and examination of witnesses including the phenolphthalein test and recovery of all documents went on till late in the
evening on that day. However, it appears from the records that both the accused were let on bail by the then Inspector of Police himself. It is also
noticed that all the materials recovered by then on that day and the case records including the First Information Report, mahazar and statement of
witnesses and other records were received by the Court at about 11.45 a.m. on 26.8.1986 as evident from the initials of the Chief Judicial
Magistrate, Erode From the evidence and materials placed before the trial Court, it is seen that the evidence of P.W.1 has been corroborated by
the evidence of P.W.2 and P.W.3, Engineers attached to the Housing and Electricity Board at Erode who accompanied the investigating staff
through out from the inception and supported the case in full. To this extent, if I may say so, the observation of the trial Court is correct. But the
whole matter does not end with this.
Ex.P.12 is the recovery mahazar prepared by the then Inspector of Police Mr. Ramasamy on the dale of occurrence itself for the recovery of
Ex.P.1, Ex.P.2 and Ex.P.8 to Ex.P.11. Ex.P.1 and Ex.P.2 are the complaints given by P.W.1 on two occasions one on 13.8.1986 and another on
23.8.1986. Ex.P.3 is the receipt given by the Police for the receipt of the complaint Ex.P.2. It was stated to have been recovered from the Kunda
Dam Police Station on 25.8.1986. ExP.8 to Ex.P.11 are the Petition Register, General Diary Note book of the first accused, Complaint Receipt
Book for the year 1986 and General Diary of the Kunda Dam Police Station for the period from 22.7.1986 to 25.8.1986 IV Part respectively. A
closer scrutiny of Ex.P.1 to Ex.P.3 in original shows that the same have reached the Court on 17.6.1987 as evident from the date seal of the
learned Magistrate''s Court at Erode but certainly not on the date when the other documents were received by the learned Magistrate on
26.8.1986. When all the other documents are found to have been received by the learned Magistrate on 26.8.1986 on the same day, then, it is not
known as to why Ex.P.1 to Ex.P.3 alone were sent to the Court on 17.6.1987. Significantly, these three documents do not bear any initial or note
or endorsement by the receiving Magistrate. Only the date seal alone is there. If it is possible and probable that Ex.P.l to Ex.P.3 were sent to the
Court along with other case records, then definitely, we can except the learned Magistrate could have put his initial, date and the time of receipt on
the face of it on par with the other documents and the absence of which shows obviously that the said three documents were not sent to the Court
on that day but sent several months later i.e. on 17.6.1987. Therefore, it was made clear from the above aspect that the complaints given by
P.W.1 in writing to the Kunda Dam Police Station on 13.8.1986 and 23.8.1986 and recovered under Ex.P.12 is false or not correct at all but
however cannot at all be true and the prosecution claim in this regard cannot be accepted for the above said reasoning. It was the definite case of
the prosecution that the several documents recovered were dispatched to the Court immediately on 26.8.1986. If that was so, one fails to
understand for what reason, the said three documents though specifically referred to under Ex.P.12 have not been sent to the Court, which in my
considered view and opinion creates a grave doubt about the claim and veracity of the oral testimony of P.W.1 and P.W.9, the Investigating
Officer in this case.
It is noticed at this stage that the defence taken by the first appellant/accused was that P.W.1 had developed and edge against him by stating
that he being a member of one of the political parties had been to the Police Station and insisted him several times for obligations and on the refusal
of the first accused/appellant he had developed an animosity with him and he had stopped visiting the station. Further, he has stated that on the day
of occurrence, when he had left the Police Station after making the G.D entry by 11 a.m. and was remaining in his home, by about 12.30 p.m. as a
prelude to start his journey to Aruppukottai, P.W.1 came and threw away certain currencies followed by the Vigilance Officers and on their
supremacy, he was obliged. If this statement is taken into consideration with the sending of Ex.P.1 to Ex.P.3, of course, very late after a period of
nearly a year, it is possible to suspect the very prosecution case itself with serious doubt and consequently the evidence of P.W.1 and P.W.9 are
inherent with overt surmises and conjectures. Therefore, after having considered the consistent narration, parrot like repeating, I am not satisfied to
place reliance upon P.W.1, the star witness for the trap and P.W.9. In this regard, I find that there is force in the arguments advanced of the first
accused/appellant. Coming to the second contention that die entries made at about 11 a.m. on 25.8.1986 in the General Diary assumes every
significance in this case. It is noticed from the entry Ex.P. 16 that for the purpose of attending bandobust duty in Aruppukottai by-election, the first
accused/appellant had handed over charge and left the station by 11 a.m. and that thereafter another entry has been made by 12 noon. This would
clinch the matter that the first accused was not on duty nor in the Police Station at that time. More significant is that the General Diary was
recovered by P.W.9 and the then Investigating Officer but none of the witnesses examined by the prosecution would speak about the entries made
in the General Diary above referred to as false or self serving. It is not a scrap of paper written in a separate sheet or a bit of paper by any of the
person connected or unconnected with the Police Station or elsewhere. It was duly recovered by the Inspector Mr. Ramasamy and P.W.9. If he
has recovered the General Diary which contains the entry to the above said effect, then one can hardly believe the claim of P.W.1 on the one hand
as well as P.W.2 and P.W.3 on the other hand coupled with the evidence of P.W.3. This General Diary is an exclusive document to be maintained
in the Police Station and in which the duties assigned to each of the police personnel attached to that Station must necessarily be entered time-wise
continuously and accordingly, it is seen that it has been maintained. It is not the case of the prosecution that this entry was false and somebody had
made such an entry falsely with a view to help the appellant/accused. The learned trial Magistrate also though referred the same had not at all
considered the very importance of the above entry in the General Diary, which is totally inconsistent and directly in conflict with the claim of the
prosecution as a whole. In the absence of any explanation or explanatory circumstances or any evidence regarding the said entry found in the
General Diary of the Kunda Dam Police Station, I have no other go except to give all legal weight and importance to such General Diary, which if
done, then the whole prosecution case must necessarily go to the debris, which would ultimately mean that the whole trap claimed by P. Ws. 1 to 3
and 9 is false. In this regard also, the prosecution suffers very heavily for all the blemishes inherent in its very base.
No other witnesses were examined but for the examination of P. Ws. 4, 5 and 6, who are supposed to be Police Constables attached to the
Kunda Dam Police Station on the relevant day and time of occurrence. As I have already observed, the evidence of P.W.4 helps none in this case
but P. Ws.5 and 6 have not supported the prosecution case and hence treated as hostile and even so, nothing has been elicited to accept the case
of the prosecution or in support of the prosecution.
Lastly, coming to the legal plea taken by the Bar for the appellants, namely, the validity of the sanction accorded under Ex.P.17 to launch the
prosecution, I may observe straight away that the prosecution must necessarily fail as the sanction accorded is not in accordance with the law. For
the purpose of appreciating the contentions above referred to, I have to extract the very abstract of Ex.P.17, which is as follows:
Proceedings of the Deputy Inspector General of Police, Coimbatore Range, Coimbatore-18
Present: Thiru V. Chandrakishore; I.P.S.
. . .
Read: Report of the Director, Vigilance and Anti - Corruption Madras - Rc.69/86/Pol/PD, dated 25.3.87 and connected Materials.
. . .
Dated: 15.5.87
ORDER:
Whereas Tvl. M.A. Ayyaswami and P. Krishnasway, Public Servants were functioning as Sub-Inspector of Police, Law and Order and Grade
I.P.C./Station Writer respectively as Kunda Dam Police Station during August 1986.
Whereas it is alleged that on 23.8.96 Thiru Thiruvengadaswamy presented a petition before the said Thiru Krishnaswamy, regarding the assault of
his Servant Thiru Sooradevan, by Annadurai and 12 others on 22.8.86, as the said Thiru Ayyaswamy was not in the station then and that Thiru
Krishnaswamy gave receipt No. 41/86 to Thiru Thiruvengadaswamy and asked him to wait for Thiru. Ayyaswamy and that Thiru Ayyaswamy
came at about 3 p.m. and asked Thiru Thiruvengadaswamy to meet him on the next day.
Whereas, it is further alleged that on 24.8.86 Thiru Thiruvengadaswamy met Thiru Ayyaswamy at Kunda Dam Police Station at about 11.00 a.m.
and that at that time Thiru Ayyaswamy demanded a sum of Rs. 300/- as gratification other than legal remuneration from the said
Thiruvengadaswamy as a motive or reward for taking action on the petition given by Thiru Thiruvengaswamy on 23.8.86 and directed him to come
on the next day i.e. 25.8.86 and that, as he came out of the Police Station on 24.8.86, Thiru Krishnaswamy also came out of the Police Station
and demanded a sum of Rs. 200/- from Thiruvengaswamy as a reward for having registered his petition on 23.8.86.
Whereas, it is further alleged that in furtherance of the said demand, on 25.8.86, between 12.10 P.M. and 12.25 p.m. at Kunda Dam Police
Station, the said Tvl. Ayyaswamy and Krishnaswamy, demanded and accepted a sum of Rs. 300/- and Rs. 200/- respectively from
Thiruvengadaswamy as gratification other than legal remuneration for the purpose mentioned above.
Whereas it is further alleged that, in the course of the same transaction, on 25.8.86, at Kunda Dam Police Station, Tvl. Ayyaswamy and
Krishnaswamy, being Public Servants, by a corrupt or illegal means or otherwise abusing their official position obtained for themselves pecuniary
advantage to the extent of Rs. 300/- and Rs. 200/- respectively.
Whereas, the above said acts constitute offences punishable u/s 161 Indian Penal Code. and 5(11)(d) r/w 5(2) of the Prevention of Corruption
Act, 1947.
Whereas I, Thiru.V. Chandrakishore, Dy. Inspector General of Police, being the authority competent to remove the said Tvl. Ayyaswamy and
Krishnaswamy from office, am satisfied after fully and carefully perusing the materials placed before me in regard to the said allegations against Tvl.
Ayyaswamy and Krishnaswamy, that the said Tvl. Ayyaswamy and Krishnaswamy should be prosecuted before a Court of Law for the said
offences.
Now therefore, I, V. Chandrakishore, Deputy Inspector General of police, Coimbatore Range, do hereby accord sanction u/s 6(1)(c) of the
Prevention of Corruption Act 1947, to prosecute the said Tvl. Ayyaswamy and Krishnaswamy, before a Court of Law for offence u/s 161 I.P.C.
and 5(1)(d) r/w 5(2) of Prevention of Corruption Act 1947 and for the Court to take cognizance of the said offences.
(So/-.)
15.5.87
Deputy Inspector General of police,
Coimbatore Range.
It is seen from the above contents of Ex.P.17 that the Sanctioning Authority, namely, the Deputy Inspector General of Police, Coimbatore Range
has merely narrated the abstract of the allegations made against the accused but not with reference to any of the materials, namely F.I.R or
recovery mahazars or complaint or the proceedings with regard to the trap nor any statement of the witnesses or the Chemical Examiner''s report
but only appears to have perused the Report of the Director of Vigilance and Anti Corruption, Madras. A mere reference of ''Report of the
Director, Vigilance and Anti Corruption, Madras in R.C. No. 69/86/Pol/PD dated 25.3.1987 and connected materials'' does not show or imply
what are all the documents which have been perused by him to ascertain in the prima facie nature of the case against the accused in order to
accord sanction or the evidence, aliunde. It is therefore clear under the circumstances that the Sanctioning Authority has not at all applied its mind
nor followed the procedures laid down by the case law in many number of cases by this Court as well as by the Apex Court.
It is also noted that the case on hand comes under the purview of Section 6 of the Prevention of Corruption Act, 1947 and not the present Act
in which the concept of according sanction has been changed to a considerable extent. Dealing with the scope of Section 6 of the old Act, I had an
occasion while dealing with the said concept in Charles Waker Devadas v. State by The Inspector of Police, etc (1993 L.W.(Crl.) 346 and held
that the sanctioning authority had not applied its mind but accorded the sanction so casually in a very fascinating manner by referring the allegations
only and certainly not with reference to any of the materials relied on or materials placed before him. While doing the said exercise, I have
considered and referred the case law held in Suraj Mal v. State (Delhi Administration) (1980 M.L.J. (Crl.) 73 (S.C) ; Anand Sarup v. State (1988
Cri.L.J. 756 ); Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, ; Periyasamy v. Inspector, Vigilance and Anti Corruption, Tiruchirapalli ( 1992
L.W.(Crl.) 582 ); Har Bharosey Lal Vs. State of U.P., ; Indu Bhusan Chatterjee Vs. The State of West Bengal, ; State of Rajasthan v. Tarachand
( AIR 1973 S.C 2183 ) and State of Tamil Nadu Vs. Damodaran, . Following the ratios held in the above case law to the facts of the instant case,
I am constrained to hold that the Court cannot act on surmises or conjectures nor will have to be guided by extraneous considerations or matters
which are not on record. The grant of sanction is not an idle formality but a solemn and sacrosanct act which provides protection to public servants
against frivolous prosecutions. This requirement of law has not been complied with before launching prosecution against the appellants. It is thus
seen that in according sanction to a prosecution as contemplated u/s 6 of the Prevention of Corruption Act, the Sanctioning Authority should
necessarily apply its mind and get itself satisfied that a case for sanction has been made out, constituting the offences. The prosecution has to prove
this in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction
and (2) by adducing evidence aliunde to show that facts placed before the Sanctioning Authority and the satisfaction arrived at by it. A case
instituted without adopting the above referred legal concept and ingredients must necessarily fall because this being a defect manifest in the
prosecution and as such, the entire proceedings are rendered void ab initio. Section 6 of the Prevention of Corruption Act applicable to the facts of
the instant case provides that the Sanctioning Authority must accord the sanction only after identifying the grounds so multifarious or one and if not
the evidence aliunde made available or the material to accord sanction, which would necessarily involve to go through all the materials placed
before him and not the mere report or mere allegations. It is the well settled principle that the Apex Court as well as the Higher Judicial forum of
our country have repeatedly but however very often emphasised the need to follow such procedural mandate provided by the legislature for the
reason to eive protection to the public servants from frivolous or nefarious transactions and such exercise is seen clearly to be mandated in the
section itself. Therefore, the Sanctioning Authority has to and must follow the procedure in according the sanction to prosecute the public servants.
The infraction of the said legal exercise to any extent though may not halt the prosecution at any stage but one cannot deny that it goes to the very
foot of the prosecution at its very base, which would mean that once the defect is found out, namely, the sanction without application of mind, it is
not difficult to say that the prosecution tumbled down to the ground and cannot at all be redeemed. Therefore, it is quite obvious in this case that
Ex.P.17 has been given by the Sanctioning Authority only by narrating the substratum of the allegations without applying its mind nor even referring
any materials or documents placed before it. The evidence of P.W.7 would not render any help to improve the case of the prosecution. He has not
even referred to what are all the documentation detail that have been perused by the Sanctioning Authority in order to arrive at the satisfaction to
accord the sanction. If the matter is viewed and considered, for the above said reasons, in the context that the accused were the police officers
incharge of a Police Station, then it has become very imperative and important duty to the Sanctioning Authority to look into all aspects as
provided by law and then only he has to give his findings and a mere reference of a report and repeating all the substratum of the allegations would
not in any way, in my respectful view, constitute a valid sanction given in this case. Therefore, I have no hesitation to accept the contentions raised
on behalf of the appellants that the sanction accorded in this case is void ab initio and invalid, granted by not following the procedural mandate held
by the courts of law in this country. On this ground alone the whole prosecution case must fail. It is seen that this aspect has been totally
overlooked by the trial Magistrate, perhaps for the reason that no plea regarding the said aspect was taken before him. But as was stipulated in the
amended Act, particularly in S. 19, S. 6 of the old Act was not up to the Court namely, that the plea regarding the validity of the sanction is to be
taken at the inceptions itself but it cannot be allowed to be raised after the trial was over. It is therefore, under the circumstances, having
considered the gamut of the case, I am of the firm view for all the reasoning and considerations given above, that the impugned judgment rendered
by the trial Court cannot be held as a valid one for the overlooking of the above said aspects and ignoring the basic fabric of the criminal
jurisprudence, namely, that the prosecution and the prosecution alone must establish the guilt of the accused beyond all reasonable doubt as
provided by the provisions of the previous Act. No other point has been raised before me.
In the result, for all the reasoning given above, the appeals stand allowed. Accordingly, the conviction and sentence recorded by the learned
Chief Judicial Magistrate, Periyar District at Erode in Spl.CC. No. 252 of 1987 dated 19-4-1990 is set aside and the appellants are acquitted of
all the charges. Fine amount, if any, paid by the appellants is directed to be refunded to them immediately.