Radharaman Agarwal vs State of M.P.

A.K. Mishra, J.

Appellant aggrieved by his conviction u/s 10 of the M.P. Vinirdishta Bhrast Acharan Nivaran Adhiniyam, 1982 and sentence to undergo 2 years R.I. and fine of Rs. 2,000/- (in default of payment of fine, R.I. for 6 months), has filed the present appeal.

The appellant was holding the post of Sub-Engineer in the Public Works Department (PWD) of the Government of Madhya Pradesh. The appellant in the capacity of Sub-Engineer was incharge of repairs of Raigarh-Sarangarh road in the year 1983. On 11-5-1983 in the night 50 drums of Bitumen were unloaded for the purpose of repair which were removed by the accused/appellant in the intervening night of 16th/17th May, 1983. Another 50 drums of Bitumen were unloaded by the side of the road. The accused/appellant illegally removed them also. Thus in all 100 drums of Bitumen were removed, there substantial loss was caused to the Government. In all 5 accused persons were put to trial. However, 4 of them, were acquitted by the trial Court on the ground of want of sanction to prosecute. The other accused persons put to trial were Ramlal, a time-keeper in the PWD, Om Prakash, owner of the truck whose truck was employed under Radha Raman Agrawal in the PWD. Two sons of the accused Jagat Narayan Agarwal and Jai Narayan Agrawal were also tried. At the relevant time, Satye Prakash Sahu was the SDO in the PWD and Shri S.P. Mishra was holding the post of Executive Engineer. It was not disputed that accused/appellant was incharge of the Raigarh-Sarangarh road. From the store of PWD Sarangarh on 11-5-1983, 100 drums of Bitumen was delivered which was loaded in two trucks and was unloaded at Raigarh-Sarangarh road where the repair work was to be done. One truck belonged to accused On Prakash which was driven by Nirmal Singh and the other truck belonged to the accused/appellant Radha Raman. The matter of illegal removal of 100 drums of Bitumen was enquired into by Shri S.P. Mishra, Executive Engineer, who found 100 drums of Bitumen were illegally removed by accused/appellant was mainly responsible for it. The report was sent to the Superintending Engineer, who in turn, reported the matter to the Collector, Raigarh. The Collector, Raigarh exercising the powers u/s 39 of the M.P. Vinirdishta Bhrashta Acharan Niwaran Adhiniyam, 1982 directed investigation under the said Act u/s 39 and pursuant thereto an FIR was registered on 9-7-1983 and the offence was enquired into. During the investigation, stock register, dispatch register, daily account stock issue register were seized and two toll tax receipts of crossing of two trucks from Mahandi barrier were seized. The receipts related to the two trucks in which 100 drums of Bitumen were illegally taken away. The deposition of witnesses were recorded. Sonu used to do patching work of the road and Jugal Singh is watchman of PWD store.

The accused abjured the guilt and contended that he was innocent and he was falsely implicated in the case. The learned counsel for the appellant submitted that the Collector was not competent to sanction the prosecution under M.P. Vinirdishta Bhrastha Acharan Nivaran Adhiniyam. The Commissioner was competent to order investigation. Thus the entire proceedings are void against the appellant. He has further contended that the sanction was mechanically accorded, it deserves to be quashed. It is further submitted that the work was done and 100 drums of Bitumen was used in the work. Hence the appellant could not be convicted for the offence. It is further submitted by the learned counsel for the appellant that the appellant has been falsely implicated in the offence.

The first submission of the learned counsel for the appellant that the Collector was not competent to sanction the prosecution may be examined. Shri A.K. Singh has been examined as PW - 14. He has deposed that during the period from March, 1983 to June 1984, he was the Collector and District Magistrate. On receipt of the complaint about the theft of Bitumen, he sent a communication to the S.P. Raigarh on 27-6-1983 for investigation in offence, which is marked as Ex. P-22. The Collector, Raigarh had ordered the investigation into the offence pursuant to the report of enquiry sent to him by Super intending Engineer, PWD. In the report of inquiry, it was found that 100 drums of bitumen were illegally removed, which were meant and issued for road repairs by incharge himself. The Collector had looked into enquiry report. It has been further recorded that the accused/appellant was prima facie found guilty in the preliminary enquiry and the Collector had given order to investigate on the basis of the report of Superintending Engineer dated 30-5-1983 and the enquiry report of the Executive Engineer dated 28-5-1983. The Collector had also considered various statements of witnesses recorded in enquiry before ordering investigation of offence. The Collector had recorded the finding that he was satisfied on the basis of the documents and material collected in enquiry by the Department of P.W.D. that the offence punishable u/s 10 of the said Act is made out. Collector has made a report in writing to the police. On that case was registered and investigation was started by police. Unamended section 39 of the M.P. Vinirdishta Bhrastha Acharan Nivaran Adhiniyam, 1982 (No. 15 of 1982) runs as under:--

Cognizance of offences. -- No Court shall take cognizance of and no police officer shall register a case, inquire into or investigate an offence under this Ordinance against any person unless a report in writing is made by such an officer of the State Government as it may, by a notification, specify:

Provided that no such report shall be made against a member of judicial service of State save with the prior concurrence of the High Court.

Collector was notified to be competent authority u/s 39 of Ordinance No. 15/82 vide notification of 10 September, 1982 as authority competent to make report with respect of officer of the rank below the rank of district level officer. Collector had acted on report of Executive Engineer and Supdt. Engineer before passing order Ex. P-22.

Section 39 was amended on 5-9-1984 by Amendment Act No. 50/84. Amended section 39 runs as under:--

Cognizance of offences. -- All offences under this Act shall be cognizable:

[Provided that the Police Officer shall not investigate an offence under this Act except on a direction of the prescribed authority not below the rank of Commissioner of Division on a report admitted by him to such authority.]

[Provided further that the State Government may, at any time for the purpose of satisfying itself as to the propriety of any order passed by the Commissioner of the Division as prescribed authority either on its own motion or on reference made by the prescribed authority, shall call for and examine the report of any case pending before or disposed by such authority and may pass such order in reference thereto as it thinks fit.]

In the present case, investigation was ordered by the Collector on 9-7-1983 when the unamended provisions were in force and the Collector was competent to order the investigation as per Govt, notification. Thus, the submission of the learned counsel appearing for the accused appellant that Collector was not having the jurisdiction to order/sanction the investigation is unsustainable and devoid of substance.

The other submission raised by learned counsel for the appellant assailing the validity of the sanction is that the Collector had not applied the mind and had mechanically ordered investigation is also equally fallacious. A bare reading of order shows that the Collector has looked into the enquiry report submitted before him. The Collector has applied his mind to the statements of the various witnesses, namely, Jugru Singh, Store clerk, R.L. Katakwar, Chowkidar, Kariram Gangman, Sonu son of Bahua, Samapal, H.P. Thakur, Mahanadi river watchman Ayodhya Prasad. The Collector has further recorded finding that a prima facie case u/s 10 of the M.P. Vinirdisht Bhrast Acharan Adhiniyma, was clearly made out. The Collector has ordered the investigation to be made. The Collector has further recorded the satisfaction that Radha Raman Agrawal accused appears to be prima facie quilty and material indicated complicity of some more persons satisfying himself fully the Collector has ordered that the case u/s 10 of the Act is made out and accordingly ordered the investigation. Thus, the order of sanction on the face of it shows that the sanctioning authority has perused the papers. The Court has to accept averments made in the order as they stand. Correctness or otherwise of material to order proceedings is not for the Court to determine. The sanction was proper. The Collector has ordered the proceedings for investigation under the Vinirdishta Bhrasht Achran Adhiniyam. The difference between sanction for prosecution and sanction to proceedings was considered by the Supreme Court in the case of Ram Kumar Vs. State of Haryana, as under:--

Two safeguards are provided in regard to prosecution of members of the Armed Forces or of the forces charged with the maintenance of Public order sought to be prosecuted for use of excessive force in the discharge or purported discharge of their duty:

(1) They cannot be ''prosecuted'' without obtaining a sanction to prosecute from the appropriate Government (Section 132 of the Code of Criminal Procedure).

(2) No Court can take "cognizance" of an offence against such an official in the absence of the previous sanction of the appropriate Government. (See section 197 of Criminal Procedure Code).

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We are afraid, the High Court has overlooked the scope, purpose and character of sanction u/s 132 of Criminal Procedure Code on the one hand and section 197, Criminal Procedure Code on the other. Six significant points of difference need to be highlighted:--

(1) The two sanctions are addressed to altogether different persons. While sanction u/s 132 is addressed to the intending complainant, sanction u/s 197 is addressed to the Magistrate presiding over a Court.

(2) The two sanctions serve two altogether different purposes. While the sanction u/s 132 clothes the intending complainant with authority to institute a complaint and set the machinery of the criminal Court in motion, the sanction u/s 197 clothes the Court with the jurisdiction to take cognizance of the offence. Without the former, the intending complainant cannot trigger the proceedings, without the latter the Magistrate cannot have seisin over the matter or act in the matter.

(3) The absence of sanction in each case visits different persons with different consequences. Absence of the former disables the intending complainant whereas absence of the latter disables the Court.

(4) The disability operates in two different spheres. Want of sanction u/s 132 renders the complaint invalid. Want of sanction u/s 197 vitiates all the proceedings in the Court. For want of the former, the complainant cannot complain for want of the latter the Court cannot try the case.

(5) The sanctioning authority has to address itself to different questions. In regard to a sanction u/s 132, Criminal Procedure Code the question to be answered 13 whether the intending complainant is a suitable person to be authorised for prosecuting the matter in good faith. In regard to the sanction u/s 197 the question to be answered is which particular Court should be empowered to try the case. So also in granting sanction u/s 197 the sanctioning authority has to consider whether or not to exercise the powers u/s 197(4) to specify the person by whom, the manner in which, and the offence or offences for which" the concerned public servant should be tried and "the Court before which the tribal is to be held." The authority seized of the matter in the context of sanction u/s 132 does not have to address himself to these questions and in fact has no competence in this behalf.

(6) One is an authority to an individual to ''prosecute'' the alleged of - fencer, the other is an authority to ''try'' the alleged offender.

What is required u/s 39 of the Vinirdishta Bhrasta Acharan Adhiniyam is sanction to investigate the offence prior to amendment of section 39 in 1984. It may be seen that words used were for cognizance by the Court and to investigate the case only where report in writing was made by an officer notified by Government.

There is no quarrel with the proposition that "there must be application of mind" as held in AIR 1948 82 (Privy Council) . The ratio was assumed by Supreme Court in Major Som Nath Vs. Union of India (UOI) and Another, . Sanction u/s 39 is not an empty formality. The sanction must show that it was shown in respect to facts constituting the offence to be charged. The facts should be referred in the order. The Collector has referred to the material as well as to the facts of the case. Thus, order of Collector with stand touch stone of law enunciated in State of Bihar and Another Vs. P.P. Sharma, IAS and Another, .

It is apparent from order of Collector that Collector has assessed the situation independently and was not swayed away by enquiry report of executive engineer. He had before him enough material to order/sanction investigation. The sanction is not an ''automatic formality'' as laid down in Jaswant Singh Vs. The State of Punjab, . Sanction in present case was not cyclostyle one. The appropriate authorities prima facie sanction is a procedural safeguard before actual investigation/prosecution starts.

The Collector has applied the mind and looked into the matter. The Collector has further referred to the statements collected during the course of enquiry, applied the mind to the report submitted to the Collector. The preliminary report submitted to the Collector is that the offence u/s 10 of the Act is made out, hence the investigation should be made, in case the reasons mentioned are sufficient to order the prosecution. The order has not been passed in mechanical manner as submitted by the learned counsel. Thus, the alternative submission raised by the learned counsel for the appellant regarding the infirmity in the sanction sans merit.

The last submission raised by the learned counsel for the appellant is that the offence is not made out. The evidence led by the prosecution is three fold, Jugal Singh (PW 4) is watchman in the store of PWD office who was working for the last 16-17 years in the PWD. He has deposed that in the year in the summer season, two trucks, one belonging to accused Om Prakash and another belonging to Radha Raman Agrawal, the appellant, came to the store of Sarangarh PWD office. At the request of Shri R.R. Agrawal, he opened the gate. The workmen loaded 50 drums of Bitumen in each of the trucks. In the meanwhile, appellant Radha Raman came there in connection with loading work. The store clerk Resham Lal inquired from Jugalsingh whether the entry of the material loaded on the trucks dispatched from the store has been made or not. He also told that only 50 drills of Bitumen was to be given to R.R. Agrawal and another 50 drums was kept to be handed over to Sub-Engineer Shri Mishra. On that R.R. Agarwal stated that he had already spoken to Shri Mishra. Therefore, Jugal (PW 4) agreed to give 50 drums of co altar to R.R. Agrawal. He deposed that 8 days prior to this incident, R.R. Agrawal took another lot of 50 drums of Bitumen. When the work of Raigarh-Chandrapur road was going on, accused took delivery of 150 drums of Bitumen from store. He deposed that entries were made in the register.

Sewak Matiyas Tandi (PW 5) a IInd grade clerk in the PWD Sarangarh, deposed that in the month of May, 1983 drums of Bitumen were being loaded in the trucks. He had not counted the drums. He made the entry on being asked by the watchman Jugal Singh. He had made an entry that 50 drums of Bitumen were loaded in the Truck No. ZRM 1075 and another 50 drums of Bitumen were loaded in the truck No. CPL 6353. Entry was made in a copy Article ''A'', entry on ''A'' to ''A'' portion was made on 11-5-1983. The drivers of both the trucks had signed the entry in copy Article ''A'' at page 55. Out of them Nirmalsingh driver has been examined as PW 6. He was the driver of the truck of accused Om Prakash. He has deposed that the truck in question was employed in connection with the work of R.R. Agrawal, Overseer. In the summer season 50 drums of Bitumen were loaded in his truck No. 6353, the entry of which was made at page 55 of the Article ''A''. He deposed that at the request of R.R. Agrawal, he unloaded the drums at Hirri road. Manoharlal (PW 12) has deposed that on 6-6- 1983, a truck No. CPL 6353 and its permit (Ex. P-12) was siezed and which were later on handed over on supurdnama under the Court order. He has further deposed that on 23-6-1983 a truck No. ZRM 1075 and its documents were seized vide P-15 from Jagat Narayan son of accused R.R. Agarwal as truck was owned by him, which was handed over on supurdnama to Jagat Narayan Agrawal. Thus the ownership of the truck No. ZRM 1075 is clearly established which belongs to the son of accused/appellant. It is clearly established that on 11-5-1983, 100 drums of Bitumen were issued to R.R. Agrawal. He obtained it and he had transported them in truck No. ZRM 1075 which belonged to his son and 50 drums of Bitumen were taken in Truck CPL 6353 and there is entry of the same in concerning copy Article ''A'' in portion ''A'' to ''A''.

Second set of evidence adduced in case by prosecution consists of PWD employee Kunjram (PW 1) who was working as Watchman in the PWD office at the relevant time. He has deposed that in the construction of Sarangarh road, the accused/appellant was incharge and the time keeper was Harihar Prasad Thakur. He has deposed that 100 drums of Bitumen was brought in two trucks. At that time, R.R. Agrawal and his son Jai Narayan both were present. He has further deposed that in the night, on the same day at about 9-10 P.M. Jai Narayan came in a truck and R.R. Agrawal also came. He was on motor-cycle. R.R. Agrawal got loaded 50 drums of Bitumen in the truck and took the truck towards Chandrapur. Thus fifty drums were removed, thereafter next day he went out for few days. Subsequently, on coming back he found that remaining 50 drums were also stolen away. He had denied the suggestion that 100 drums of Bitumen was not unloaded. Sonu (PW2) was on duty of patching work, in the Public Works Deptt. He also deposed that for the work in question 100 drums of Bitumen were brought by R.R. Agarwal to the site. 50 drums were taken away by Kunjram truck and remaining 50 drums were taken away by R.R. Agrawal towards Chandrapur. The truck was of R.R. Agrawal, who came on motor-cycle. Harihar Prasad Thakur has been examined as PW 3. He has deposed that on 12-5-1983 at about 11 a.m. when he was on the duty, watchman Sonu came and told that in the night, R.R. Agrawal took away one truck; loaded 50 drums of Bitumen. This fact was informed to the Sub Division Officer of Public Works Deptt. He deposed that there were 100 drums of Bitumen on site. On 12-5-1983, 50 drums were missing and he found on 17-5-1983, that other 50 drums were also not available on site which fact was informed by him to the S.D.O. Nirmal Singh has been examined as PW6. He has deposed that he had taken away 50 drums of Bitumen from the site at the instructions/behest of R.R. Agrawal to Korba along with him. Jai Narayan son of R.R. Agrawal had also accompanied him on said truck from site to Korba. On reaching Korba, Jai Narayan in turn took drop at his house. Another son Jagat Narayan then accompanied him, who got unloaded the same 50 drums of Bitumen at the side of the road at Korba. The empty truck was then taken to Sarangarh. On the barriers on way to Korba, the toll tax was paid by Jai Narayan son of R.R. Agrawal. In the cross examination, the witness has deposed that he had not disclosed the name of Jai Narayan at barrier but he disclosed that he was the son of Radha Raman Agrawal. He has deposed that R.R. Agrawal was the incharge of the work at disputed site. Omprakash Sharma was the contractor of the PWD, in relation to the work of Saraipali road. Accused R.R. Agrawal had asked him to provide labourers for loading and unloading and he accordingly had asked the Time-keeper to get the work of loading and unloading done. He has further deposed that it was wrong to suggest that R.R. Agrawal had not asked to provide for labourers. Satya Prakash Sahu has been examined as PW 10. He deposed that he was holding the post of S.D.O. from 1981 to 1983. He has deposed that according to the indent the coaltar used to be given to R.R. Agrawal.

Shri S.S. Mishra has been examined as PW 11. He has deposed that he was holding the post of Executive Engineer from 29-6-1981 to 12-3-1985. Sarangarh division was under his control. R.R. Agrawal the appellant/accused was Sub-Engineer at Sarangarh in 1953. The Raigarh-Sarangarh road construction took place at the distance of 42 Kms. The drums issued for work were removed from site, they were stolen. An enquiry was made by him about the theft of drums. On enquiry he found only 6 drums available and work was done of the distance of about 1/2 Km only. There were no empty drums available at site. He made an enquiry from accused R.R. Agrawal but he could not account for the missing drums. He had further deposed that along with S.D.O. he went to Sarangarh Godown where he found 73 drums whereas there should have been 50 drums. Thus, 23 drums were found in excess. On enquiry from the store-keeper he told that as per indent, the material was not taken out, therefore, there were excess drums in the store. The store clerk was maintaining copy, the Article ''A'', in which the receipt and the despatch of the material from store used to be noted. According to this copy, 170 drums of Bitumen were issued to accused R.R. Agrawal during 4-5-1983 to 24-5-1983. On enquiry into material utilized by accused, there was no account of 100 drums of Bitumen. On enquiry, it was found that 50 drums were taken through the Mahanadi bridge barrier on truck No. CPL 6353 on 11-5-1983 and on 16th/17th May, 1983, another truck load of 50 drums of bitumen were taken on truck No. 1075. The son of the accused/appellant R.R. Agrawal was on the truck. He deposed that a report of removal of drums was sent in writing by him to S.P. Raigarh on 26-5-1983. It is clear that 73 drums were found in the store, whereas there should have been only 50 drums 23 drums were found in excess. It is also established that out of 100 drums one truck load of 50 drums was taken by the son of the appellant/accused R.R. Agrawal. It is also found that out of 170 drums of bitumen issued to him he could not account for 100 drums in the stock, and 100 drums were missing.

A.N. Mishra has been examined as PW 13. He deposed that he was posted as incharge of the police station, Sarangarh from June, 1983 to September, 1983. He deposed that on 9-7-1983, pursuant to the order of the Collector, he registered a crime No. 121/83 u/s 10 of the M.P. Vinirdishta Bhrasta Acharan Adhiniyam, 1982. The Collector had issued the order as contained in Ex. P-22. He seized a copy from S.P. Mishra, Assistant Engineer. (Ex. P-19) in which there was an entry of delivery of 100 drums in two lot of 50 drums each of bitumen. He deposed that he seized two receipt books of toll tax on 26-7-1983 from A.K. Sarkar as per Ex. P-20, in which there is mention that on 11-5-1983, 50 drums each total 100 drums of Bitumen were taken away on truck No. JRM 1075 and CPL 6353. He deposed that two receipt on book indicate that from Chandrapur barrier on 11-5-1983, a receipt of Rs. 20/- was issued for truck No. 1075 on 16-5-1983 on which drums of bitumen were transported. Two receipts corroborate the evidence of other witness. The seizure memo is Ex. P-20 and has been proved by the witness. From Reshamlal on 12-7-1983 seizure of stock register, one despatch register and daily account register vide Ex. P-21 was made in which there is clear entry as to how many drums of bitumen and the dates when they were issued to R.R. Agrawal.

There is overwhelming evidence to prove that it was the accused R.R. Agrawal who had removed the drums of bitumen. Thus, he was guilty of the offence u/s 10 of the M.P. Vinirdishta Bhrasta Acharan Adhiniyam, 1982.

The case reflects unfortunate situation where the material issued to the incharge of the road repair work, Shri R.R. Agrawal, was not used by him in the said work. A public wrong was done. The public has a right, as they pay tax, to have useful roads which is one of the basic amenities for moving freely. Such type of offences are highly derogatory to the public cause which must be dealt with severely. Only few of such cases are brought before the Court. Here, the department itself has taken care to enquire into the matter which is the only redeeming feature of the present case.

However, the accused/ appellant has died during the pendency of the appeal. The appeal has been perused by his legal representatives.

In the result, the appeal fails and is dismissed being without merit. The conviction and sentence are upheld. So far as the sentence is concerned, the accused/appellant is no more available to suffer it.