Rakesh Dixit vs State of Punjab

A.P. Chowdhri, J.—Rakesh Dixit (34) at the time of his conviction in 1984) appellant was convicted under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act by the Special Judge, Jalandhar, by order dated December 3, 1984. He was awarded rigorous imprisonment for one year under the first count and a similar imprisonment for one year under the second count along with a fine if Rs. 500/. In default of payment of fine, he was further sentenced to six months rigorous imprisonment. The substantive sentences under the two courts were made concurrent.

The accused was dealing Auditor of Artillery Regiment stationed at Ludhiana. The Pay and Accounts office of the said Regiment was at Mathura where the accused was posted. He came to Ludhiana on December 1,1981, and stayed in the Regimental Complex for three days. He started Collecting money from the Jawans, whose pay and allowances were outstanding, on the undertaking that he would have their accounts updated and have the outstanding amount paid to them. This activity of the accused came to the notice of the Officer Commanding Major D.N. Sharma. After satisfying himself about the truth of the allegation, he informed Dy. S.P. Vigilance, Ludhiana, by sending a letter dated December 3,1981, through Lt S.P. Yadav (later promoted Captain). Inspector Surjit Rai PW16 alongwith Inspector Mela Ram and an independent witness Parkash Singh PW3 came to the Regimental Headquarter. Havaldar Bhuwan Chand PW7 was made a decoy witness. L/Naik Lachhman Singh PW13 was to act as shadow witness and 10 currency notes of Rs. 10/ each were handed over to the decoy witness to be passed on to the accused on demand . The shadow witness was asked to signal the waiting raiding party. The notes were treated with phenolphthalein powder. Inspector Surjit Rai gave a demonstration to the witnesses about the effect of phenolphthalein powder coming in touch with a weak solution of sodium carbonate. Necessary memos. were prepared. Accordingly the decoy and the shadow witness went. On demand made by the accused Havaldar Bhuwan Chand passed on the said currency notes to the accused. THe shadow witness gave the prearranged signal and the raid was conducted and the incriminating notes recovered from the accused. The accused was made to dip his hand in a solution of sodium carbonate which turned pink. The solution which had thus become pink was preserved in a bottle, which was sealed. The accused was challaned dafter obtaining sanction for prosecution from the Controller General of Defence Accounts.

At the trial, the prosecution examined 17 witnesses. These included Major D.N. Sharma PW1, independent witness Parkash Singh PW3, Capt S.P. Yadav PW6 Havaldar Bhuwan Chand PW7 and L/Naik Lachdman Singh PW 13, besides the Investigating Officer inspector Surjit Rai PW16. The witnesses supported the version set out above.

The plea of the accused was one of denial and false implication on account of enmity with the P.Ws. He examined A/R Lachhmi Narain, Accounts Officer (Administration as DW1).

On a consideration of the evidence, the learned Special Judge accepted the prosecution case, rejected the defence plea and convicted and sentenced the accused, as already stated. Hence this appeal.

Mr. R.S. Ghai, learned Counsel for the appellant, has put forward two contentions. Firstly, he contended that the prosecution failed to prove a valid sanction for the prosecution of the accused. His second submission is that the accused was likely to the removed from service if the conviction is maintained. The occurrence took place in 1998. The accused had been convicted far back in 1984. During the pendency of the appeal he had been on bail and sending him back to jail would cause great hardship to the appellant and members of his family. Learned counsel, therefore, strenuously contended that the appellant may be considered for release on probation.

I have given anxious consideration to the contentions of the learned counsel.

The contention that there was no application of mind in granting the sanction for prosecution of the accused is based on the evidence of Accounts Officer (Administration) DW1, who stated that the sanction order passed by the Controller General of Defence Accounts in the present case was a copy of the draft sanction order received from the office of Superintendent of Police CBI (Special Police Establishment), Government of India. The contention is that instead of the Controller General of Defence Accounts applying his own independent mind has issued the sanction order as drafted by the aforesaid police authorities and, therefore, the sanction was not valid. Reliance was placed on Mohd. Iqbal Ahmed v. State of Andhra Pradesh, AIR 1979 SC 677 and Indu Bhusan Chatterjee v. The State, AIR 1995 Calcutta 430. There is no dispute that the competent authority is required to apply its mind to the facts and circumstances of each case before granting or withholding the sanction. In the present case, there is ample evidence to show that the competent authority applied its mind at the time of grant of the sanction. The prosecution examined Janaki Ram Subramaniam, PW9, PA to the Controller General of Defence Accounts. He stated that the record of this case was submitted by the CBI for the purpose of obtaining sanction for the prosecution of the accused. The competent authority had gone through the record and thereafter he had issued the sanction order. He identified the signature of Shri R. Venktaraman, Controller General of Defence Accounts with whom he was working as P.A. The mere fact that the draft of the sanction order, which was ultimately signed by the competent authority, had been submitted by the police authorities, does not indicate that there was no application of mind. It is well known fact that secretarial working is that a draft is put up by the junior officer to the senior officer and if the drafed is approved, it is signed and finally issued. Submission of the draft is only for the assistance of the officer and no one can insist that every officer must draft all orders by himself without obtaining aid of his juniors and assistants. In this view of the matter, there is no force in the contention of the learned counsel for the appellant.

With regard to the second submission, I am unable to extend to the appellant the benefit of the Probation of Offenders Act in view of the express provision contained in Section 18 of the Probation of Offenders Act inter alia laying down that nothing contained in the said Act shall affect the provision of subSection (2) of Section 5 of the Prevention of Corruption Act,1947 (See State of Gujrat v. V.A. Chauhan, AIR 1983 S.C. 359).

In the result, the appeal fails and the same is dismissed. The appellant shall surrender in terms of his bail bond, failing which he shall be got arrested to undergo the sentence.