Partly allowed

Sekharan.K. v. State of Kerala

Kerala HC18 Oct 2016CRL.A/463/2009

Case brief

AI extract

What is this about?

In this criminal appeal against conviction for corruption, the Kerala High Court upheld the conviction but found the original sentence excessive. The Court dismissed the challenge regarding the competency of the sanctioning authority as no failure of justice occurred. It reduced the rigorous imprisonment to simple imprisonment and a reduced fine, holding concurrent terms.

What did the court decide?

Conviction maintained; Sentence modified to simple imprisonment for one year and fine of ₹1,000/- running concurrently; set off of time already undergone allowed.

Sekharan.K. Vs State of Kerala — Corruption | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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TUESDAY, THE 18TH DAY OF OCTOBER 2016/26TH ASWINA, 1938

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CRL.A.No. 463 of 2009 ( )

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CC 64/2004 OF ENQUIRY COMMISSION & SPECIAL COURT, THIRUVANANTHAPURAM.

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APPELLANT/ACCUSED NO.1:

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SEKHARAN.K., FORMER FOOD INSPECTOR, KILIMANOOR, THIRUVANANTHAPURAM.

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BY ADVS.SRI.SANTHOSH SUBRAMANIAN

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SRI.E.A.THANKAPPAN

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SRI.S.SREEKUMAR(NORTH PARAVUR) SRI.P.B.AJOY

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SRI.SHERRY J. THOMAS

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RESPONDENT(S)/COMPLAINANT:

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1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, OFFICE OF THE DIRECTOR GENERAL OF PROSECUTION, ADVOCATE GENERAL OFFICE, NEAR HIGH COURT OF KERALA, ERNAKULAM.

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2. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE & ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM.

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BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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[CR]

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B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 463 of 2009 ............................................................... Dated this the 18^th day of October, 2016

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J U D G M E N T

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The appellant is the accused in C.C.No.64 of 2004 of the Court of Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram, who stands convicted under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988(hereinafter referred to as the ' P.C.Act ') and sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹5,000/-, in default, to undergo rigorous imprisonment for six more months under Section 7 of the P.C. Act and further

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sentenced to undergo rigorous imprisonment for two years and to pay a fine of ₹5,000/- in default, to undergo rigorous imprisonment for six more months under Section 13(2) read with Section 13(1)(d) of the P.C. Act.

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The accused was a public servant employed as Food Inspector of Kilimanoor Circle during 2002. The prosecution case is that he abused his official position and demanded an amount of ₹2,500/- on 21.10.2002 from PW1 as gratification other than legal remuneration as a motive for not initiating legal action under the provisions of the Prevention Food Adulteration Act against PW1. According to the prosecution, the accused reduced the amount of illegal gratification from ₹2,500/- to ₹2,000/- and accepted an amount of ₹1,000/- on 24.10.2002 as part of the gratification amount. It is further alleged that the accused on 31.10.2002 at 2.05 p.m. demanded and accepted the balance amount of ₹1,000/- at Cochin Bakery at Kilimanoor from PW1 and thereby committed the offences punishable under Sections

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7 and 13(2) read with Section 13(1)(d) of the P.C. Act.

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Initially, PW1 had preferred Ext.P4 complaint before PW7 on 29.10.2002 by complaining that the accused had demanded an amount of ₹2,500/- as illegal gratification from him for dropping the proceedings which the accused wanted to initiate under the Prevention of Food Adulteration Act against PW1. On 24.10.2002, the accused had accepted an amount of ₹1,000/- as part of the said illegal gratification at the shop of PW1. It was further complained of in Ext.P4 that PW1 had sought for a week's time for the payment of the balance amount of ₹1,000/- and then the accused had agreed to appear at the Bakery of PW1 on Wednesday or Thursday. On 29.10.2002 at 4 p.m., PW7 recorded Ext.P3 First Information Statement furnished by PW1, on the basis of which, PW7 registered the crime. It seems that PW1 has narrated the entire events in detail in Ext.P3.

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A trap was arranged and a demonstration was

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conducted in the presence of PW1, PW2 and CW3. PW1 produced a currency note of ₹500/- and five currency notes of ₹100/-. The said currency notes were smeared with phenolphthalein powder and the same were put in the shirt pocket of PW1. PW1, accompanied by PW2, CW3 and PW7 went near the shop of PW1. When the accused approached the shop PW1 gave the first signal. Then CW3 and PW2 went near the shop and they came to the shop as if they were customers. On reaching the shop, the accused himself occupied on a stool and gave a signal to PW1 to make the payment. Then PW1 asked as to whether the accused was demanding water. Then the accused openly demanded the balance payment to be made. The currency notes tainted with phenolphthalein powder were immediately handed over to the accused by PW1. The accused on accepting the currency notes with his right hand, thrust it into his right pocket of his pants. Immediately, PW1 gave the second signal. Swiftly, PW7 along with PW2, CW3 and other

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officers surrounded the accused. The accused became perplexed, when he was made known the fact that PW7 and other officers were from the Vigilance.

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The right hand wash of the accused proved positive to phenolphthalein test and the water became pink. The currency notes accepted by the accused from PW1, the numbers of which were already noted by PW7, were seized and recovered from the right pocket of his pants, and the said pocket also turned positive to phenolphthalein test. PW7 conducted the investigation and obtained sanction for prosecution under Section 19 of the P.C.Act from PW3. The final report was filed. The court below took cognizance of the offences punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the P.C. Act.

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On the side of prosecution, PWs.1 to 7 were examined, Exts.P1 to P21 were marked, and MO1 to MO6 were identified. On the side of the accused, DWs.1 to 3 were examined, and Exts.D1 series to D12 were marked.

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The court below found the appellant guilty of the offences punishable under Sections 7 and 13(2) read with

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Section 13(1)(d), convicted him thereunder and sentenced him as aforesaid.

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Heard the learned counsel for the appellant and the learned Senior Public Prosecutor .

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The learned counsel for the appellant has

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vehemently canvassed the following arguments.

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(1) There is no sufficient proof for demand in this case and the evidences regarding demand are contradictory.

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(2) This is a case wherein some shop owners had deliberately dragged the accused in to a false case like this.

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(3) This is a case wherein PW1 had deliberately thrust currency notes tainted with phenolphthalein powder into the pants' pocket of the accused in order to trap the accused unnecessarily in a false case like this.

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(4) The accused wanted to purchase timber for windows and door for which he was keeping

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with him Ext.P6 yellow paper in which the dimensions of timber were shown.

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(5) PW1 had offered the accused that he would make arrangements for the purchase of the said timber for reasonable price from one of the friends of PW1.

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(6) There is no proper sanction in this case and that PW3 was not competent to pass the sanction order. PW3 is not the appointing authority and therefore, he was not the sanctioning authority.

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(7). Even though the question relating to sanction has not been challenged before the court below or that has not been taken up in the appeal petition, being a question of law, still this Court is competent to decide the said question.

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Per contra , the learned Senior Public Prosecutor

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has argued that the present proceedings being an appeal, the question regarding want of sanction or any error in sanction cannot be taken up as a ground to canvass for an acquittal, unless and until it is proved to the satisfaction of the court that there has occasioned a failure of justice on

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account of such want of sanction or error in sanction. It has also been argued that the testimony of PW3 regarding his competency to issue the sanction order stands unchallenged and therefore, the said question cannot be raised at present.

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Ext.P4 is the first complaint preferred in writing by PW1 before PW7. PW6 is the brother-in-law of PW1. PW6 was helping PW1 in the bakery business. In Ext.P4, it has been clearly alleged that the accused had demanded an amount of ₹2,500/- and finally PW1 had no other go than to agree to pay an amount of ₹2,000/-. On 24.10.2002 at noon, the accused appeared at the Bakery and obtained an amount of ₹1,000/- being the part payment. PW1 and PW6 have clearly stated with regard to the said payment and the acceptance by the accused. Over and above it, the said payment was entered in Ext.P2 register kept at the Bakery. That entry in Ext.P2 regarding the said payment was made on 24.10.2002 itself in the hand writing of PW6. Of course,

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the genuineness of Ext.P2 is seriously challenged by the learned counsel for the appellant. The learned counsel for the appellant has pointed out that at the very first moment Ext.P2 was not available to the investigating officer. According to PW1, when the said book was demanded at first by PW7, the key of the drawer in which Ext.P2 was kept was not available with him and therefore, he could not give it. Same is the version regarding that aspect by PW6 also. In Ext.P2 there is an entry regarding the payment of ₹1,000/- shown as expenses on 24.10.2002 by noting down as “food 1000”.

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The demand at present to be considered is not with regard to the alleged demand prior to 24.10.2002 or the demand and acceptance allegedly made on 24.10.2002; whereas the demand at present to be considered is the demand allegedly made at the time when the accused had allegedly accepted the balance amount of ₹1000/- from PW1 at the time of trap. Therefore, the questions regarding

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the earlier demands need not be considered at present.

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In Ext.P3, PW1 has narrated all the events in

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detail. According to him, on an earlier occasion also the accused had accepted an amount of ₹200/- from PW1 on his visit at the bakery. The said incident also does not assume much importance for want of further evidence apart from the deposition of PW1 and the contents of Ext.P3 on that aspect. According to PW1, dissatisfied and irritated with the demand of squeezing money from him by the accused, he had chosen to approach the Vigilance, and consequently he approached PW7 and preferred Ext.P4. PW7 recorded Ext.P3 in detail from PW1 and consequently, the crime was registered.

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PW7 arranged the laying of trap. According to PW1, when the accused had approached the shop, he gave the first signal as arranged for the trap. On seeing the first signal, PW2 and CW3 advanced to the shop and they appeared at the shop as if they were also customers. On

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entering the shop, the accused occupied a stool and he gave a signal to PW1 for the balance amount to be paid. It has to be noted that strict instruction was given to PW1 that the amount should not be paid to the accused until there was a demand. On seeing the signal from the accused, in order to transform it as a clear demand, PW1 put a query to the accused as to whether he had signalled for drinking water. Then, according to PW1, the accused made an open demand that he wanted the payment of the balance amount.

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The evidence of PW1 regarding the aforesaid demand stands fully corroborated by the evidence of PW2. PW2 is a Gazetted Officer, who was aiding as a witness in the trap. He has admitted that he is one of the friends of PW7. At the same time, it has to be noted that he was invited to be present in his official capacity as a witness for the trap and he was directed by the Director of Treasuries to make himself available as a witness for the trap. Even though the learned counsel for the accused has argued that

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PW2 is a frequent trap witness aiding for such traps, it has come out from the evidence of PW2 that on a single earlier occasion, there was an instance in which he had acted as a trap witness. Apart from that single instance occurred earlier, there is nothing more to say that he had frequently acted as a trap witness. The accused has no case that PW2 had any axe to grind against him. There is no case that PW2 had any enmity towards the accused. PW2 has clearly deposed that he could see the signal shown by the accused, thereby forwarding the demand at first and the query put by PW1 to the accused and he could hear the query. He has clearly deposed that the accused had demanded the amount from PW1 in open. According to PW2, PW7 also could see all these.

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The evidence of PW7 clearly shows that he could also see and hear the demand forwarded by the accused and the acceptance of the amount by the accused. Even though the learned counsel for the appellant has argued

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that this is a case wherein the tainted currency notes in question were forcibly thrust into the pants' pocket of the accused by PW1 without the consent of the accused, it has to be noted that the right hand wash of the accused turned positive to Phenolphthalein test. Had the currency notes been thrust forcibly into the pants' pocket of the accused by PW1 without the knowledge and consent of the accused, the right hand wash of the accused would not have turned positive to Phenolphthalein test. The argument forwarded by the learned counsel for the appellant that the accused was forced to take out the said currency notes from the pocket and only thereafter, the hand wash was taken, has no legs to stand. The clear evidence of PW1, PW2 and PW7 and the contents of Ext.P7 mahazar clearly reveal that the right hand wash of the accused was taken at first and it was subjected to Phenolphthalein test, which turned positive. It was only thereafter, the accused was questioned with regard to the amount accepted by him and the amount

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was seized and recovered from the right pants' pocket of the accused.

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Even though the learned counsel for the

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appellant has argued in detail that the evidence regarding demand are contradictory, this Court is satisfied that the evidence of PW1 regarding the said event is fully corroborated by the evidence of PW2 and PW7. Unlike in other trap cases, in this particular case, PW2 had an occasion to be present on the spot as a customer at the bakery and he could see the signal shown by the accused and he could hear the further demand forwarded by the accused. He could see the payment also. The evidence of PW1, PW2 and PW7 regarding the fact that the accused had obtained the amount from PW1 with his right hand and the accused had thrust the currency notes into his pants' right pocket are the same. There is not even slight contradiction with regard to those facts. Therefore, this Court is satisfied that there is sufficient proof with regard to

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the demand forwarded by the accused and the acceptance of the amount by the accused.

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The further contention of the accused that he had

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approached PW1 for obtaining assistance for purchasing timber of the specifications shown in Ext.P6, is not believable. It has come out that on an earlier occasion, the accused had proceeded against the elder brother of PW1 for want of licence of the very same bakery. In the said case, the brother of PW1 was convicted and sentenced. Thereafter, there was an occasion in which PW1 had taken samples of mango juice named 'Freshca' from the said bakery. There was a further instance wherein the accused had visited the house of PW1, where he was running a Borma for baking bakery items. Such a Borma also requires a licence within the meaning of the PFA Act. For want of licence, notice was issued by the accused to PW1. In such circumstances, it cannot be believed that such an accused had sought for assistance from PW1 to purchase timber for

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reasonable price. It cannot be believed that the accused had appeared at the shop for taking assistance from PW1 to purchase timber.

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Even though the accused had tried his level best by adducing evidence to show that some shop owners had enmity towards the accused on account of his stringent actions against all of them under the PFA Act, this Court is satisfied that the accused could not show any enmity towards him from the part of PW1. The learned counsel for the appellant has vehemently argued that PW1 was in inimical terms with the accused on account of the strict steps taken by the accused against PW1 and his bakery. That argument itself militates against the contention that the accused had appeared at the shop of PW1 for seeking assistance for procuring timber materials for a reasonable price. The defence evidence adduced in the case to show that even the APP, who had conducted a case based on the complaint filed by the accused, was dragged into a trap by

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some sympathisers of a political party, cannot come to his rescue.

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From all the above, it stands proved that the

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accused had demanded an amount of ₹1000/- from PW1 as a motive for not proceeding against PW1. It stands proved that the accused had accepted the said amount from PW1. The accused has no case that any such amount was legitimately due to him from PW1.

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Lastly, the learned counsel for the appellant has canvassed an argument that the appointing authority of the Food Inspector is either the Central Government or the State Government and in the case of the appellant, it was the State Government. Learned counsel for the appellant has pointed out that in the case of State Government, the appointing authority should be treated as the Governor being the State Government and, therefore, the sanction order ought to have been passed by the appointing authority. Here in this particular case, PW3 was the Director

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of Health Services, who had issued Ext.P8 sanction order. According to the learned counsel for the appellant, the cognizance of the case based on Ext.P8 itself was bad in law and therefore, it cuts the root of the prosecution case.

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Section 19(3)(a) of the P.C. Act says that:

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“19(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

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(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.”

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It has to be noted that the testimony of PW3 before the court below stands unchallenged. Had there been a quarrel or dispute from the part of the accused that proper sanction was not granted, and PW3 was not

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competent to pass Ext.P8 sanction order and thereby a failure of justice had occasioned, the said question ought to have been taken up before the court below, at the earliest possible opportunity. The said question could have raised at the stage of Section 245 Cr.P.C. and on that ground itself, the accused could have sought for a discharge. In this particular case, no such objection was raised or no such steps were taken. The appellant willingly suffered the impugned judgment and had not cared to lift even his little finger against the sanction order even when PW3 or PW7 were examined. Had the question been raised at least during the examination of PW3 or PW7, then also it could have been stated that the accused had complained of failure of justice on account of want of proper sanction.

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The learned counsel for the appellant has invited the attention of this court to the decision in State of Rajasthan v. Tarachand Jain [1973 Cri.L.J. 1396] and argued that in the absence of proper sanction, the appellant

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is entitled to an acquittal. In State of Rajasthan (Supra) ,

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what was considered is Section 6 of the P.C. Act, 1947 and also Section 161 IPC. At that time, Section 19(3)(a) was not there in the statute. Therefore, the decision in State of Rajasthan (Supra) is not applicable to the facts and circumstances of the present case.

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Learned counsel for the appellant has invited the attention of this Court to the decision in State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri [(2006) 7 SCC 172], wherein it was held that the grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence and it is desirable that the question as regards sanction may be determined at an early stage. It has to be noted that in the said decision, the provision under Section 19(3)(a) of the P.C. Act, 1988 has not been discussed.

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The learned counsel for the appellant has further invited the attention of this Court to the decision in State of

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Goa v. Babu Thomas [(2005) 8 SCC 130], wherein it was held as follows referring the provisions under Section 19 (3)(a), (b) and (c) of the P.C. Act, 1988 -

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“Referring to the aforesaid provisions, it is contended by learned counsel for the appellant that the Court should not, in appeal, reverse or alter any finding, sentence or order passed by a Special Judge on the ground of the absence of any error, omission or irregularity in the sanction required under sub-section (1), unless the Court finds that a failure of justice has in fact been occasioned thereby. In this connection, a reference was made to the decision of this Court rendered in the case of State v. T.Venkatesh Murthy. Reference was also made to the decision of this Court in the case of Durga Dass v. State of H.P. where this Court has taken the view that the Court should not interfere in the finding or sentence or order passed by a Special Judge and reverse or alter the same on the ground of the absence of, or any error,

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omission or irregularity in the sanction required under sub-section (1), unless the Court finds that a failure of justice has in fact been occasioned thereby. According to the counsel for the appellant no failure of justice has occasioned merely because evidence is yet to start and in that view the High Court has not considered this aspect of the matter and it is a fit case to intervene by this Court. We are unable to accept this contention of the counsel. The present is not the case where there has been mere irregularity, error or omission in the order of sanction as required under sub-section (1) of Section 19 of the Act. It goes to the root of the prosecution case. Sub-section (1) of Section 19 clearly prohibits that the Court shall not take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction as stated in clauses (a), (b) and (c).”

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The case in State of Goa (supra) is not a case

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wherein Section 19(3)(a) of the P.C. Act had any application. The sanction order as such was challenged. The case did never end in conviction or acquittal and the proceedings wherein the matter came up before the Apex Court was not the result of any appeal, confirmation or revision. This Court is competent under Section 482 Cr.P.C. to go into the question of validity of the cognizance taken by the Special Court in such proceedings. Matters being so, the decision in State of Goa (Supra) has no application to the facts and circumstances of the present case.

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In State by Police Inspector v. T.Venkatesh

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Murthy [(2004) 7 SCC 763] , it was held in paragraphs 8 to 11 as follows:-

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“8. Clause (b) of sub-section (3) is also relevant. It shows that no court shall stay the proceedings under the Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or

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irregularity has resulted in a failure of justice.

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9. Sub-section (4) postulates that in determining under sub-section (3) whether the absence of, or any error, omission or irregularity in the sanction has occasioned or resulted in a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

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10. Explanation appended to the section is also of significance. It provides, that for the purpose of Section 19, error includes competency of the authority to grant sanction.

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11. The expression “failure of justice” is too pliable or facile an expression, which could be fitted in any situation of a case. The expression “failure of justice” would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of Environment). The criminal court, particularly the superior court, should make a close examination to ascertain whether there was

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really a failure of justice or it is only a camouflage. (See Shamnsaheb m. Multtani v. State of Kernataka.).””

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As held by the Apex Court, the present argument regarding the failure of justice is only a camouflage and nothing more.

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Had there been a failure of justice, at least, the same would have found a place in the appeal petition as a ground. That has also not been raised. True that the present learned counsel appearing for the appellant was not the then counsel, who had prepared the appeal petition. At the same time, it has to be considered that the question of failure of justice was not raised at the stage of Section 245 Cr.P.C., or at the stage of examination of PW3 or at the stage or examination of even PW7 before the court below. In such case, in case of any failure of justice, for want of sanction or want of competency of the sanctioning authority, the appellant ought to have proved such failure of justice.

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In this particular case, what is now being argued

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before this Court regarding sanction is that PW3 was not the competent authority to grant sanction for prosecution under Section 19 of the P.C. Act. At the same time, it cannot be said that the argument is one of want of sanction. As per explanation (a) to Section 19(4) of the P.C. Act, 'error' includes competency of the authority to grant sanction. Matters being so, it is only an allegation of mere error in the sanction order.

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Learned counsel for the appellant has invited the attention of this Court to the decisions in George Varghese v. State of Kerala [2015 Cri.L.J. 3067 (Kerala High Court)] and Gurudas N. v. State of Kerala [2015 (3) KLT 749] . This Court is of the view that the said decisions are not applicable to the facts and circumstances of the present case.

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From all the above, this Court is satisfied that there is absolutely nothing to interfere with the conviction passed by the court below. Regarding sentence, this Court

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is of the view that the substantive sentences of imprisonment imposed by the court below are on the higher side. This Court is of the view that the substantive sentences of imprisonment imposed on the accused can be brought to the minimum prescribed. This Court is satisfied that a sentence of simple imprisonment for one year and to pay a fine of ₹1,000/-, in default to undergo simple imprisonment for 15 more days for each one of the offences, will meet the ends of justice in this case.

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In the result, this Criminal Appeal is allowed in part by maintaining the conviction and modifying the sentence as follows:-

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The appellant shall undergo simple imprisonment for one year and to pay a fine of `1,000/-, in default, to undergo simple imprisonment for 15 days, for each one of the offences. It is further ordered that both the substantive sentences of imprisonments shall run concurrently. The appellant is entitled to set off, of the period, if any,

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undergone by him in custody in connection with the investigation, inquiry and trial of this case, under Section 428 Cr.P.C.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/aks/-

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// true copy //