Investigation of Cases Under Prevention of Corruption Act

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Section-7 of P.C.ActAccept or agree to accept, obtained or attempt

• Demand of bribe is not sine qua non always to prove the offence u/s 7. There may or may not be demand of bribe by public servant u/s 7 of P.C.Act.

• However demand or special efforts for obtaining bribe by the public servant is necessary u/s 13(1)(d) r/w 13(2) of P.C.Act

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THE STATE REP. BY INSPECTOR OF POLICE, PUDUKOTTAI, TAMIL NADU, PETITIONER v/s A. PARTHIBAN, RESPONDENT.

Appeal (crl.) 842 of 2003, decided on October 9, 2006.

JUDGE(S) :Arijit PasayatR V Raveendran

Link3

Section 7, 13(1)(d), 13(2) of PC ACTSmall amount of bribe no consequence

If there is consent, involvement & complicity of both accused public servants then section 7, 13(1)(d), 13(2) of PC ACT applies to both. In such cases it will not be just to apply section 7, 13(1)(d), 13(2) of PC ACT to one public servant and section 12 to other public servant.

The bribe amount is meager i.e. Rs. 50 only. However Supreme Court has not taken lenient view.

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1.NARENDRA CHAMPAKLAL TRIVEDI, 2. HARJIBHAI DEVJIBHAI CHAUHAN, APPELLANT v/sSTATE OF GUJARAT, RESPONDENT.

2012-(007)-SCC -0080 -SC , 2012-(099)-AIR -2263 -SC Decided on 29/05/2012JUDGE(S) : B S Chauhan

Dipak Misra Link

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How to establish demand

• No direct evidence of demand.• Circumstantial evidence. • Adverse inference as Money found with

accused. • Though work was not pending & already

completed then also accused convicted by S.C.

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Phula Singh …..Appellant V/sState of Himachal Pradesh ….. RespondentCRIMINAL APPEAL NO.2271 of 2011, Supreme Court, decided on 03/03/2014

Judge Dr. B.S. CHAUHAN, J.

Link7

Defects in investigation & sanction makes no difference

Many times some minor defects may remain in the investigation and sanction order. If the mistakes are not glaring or the mistakes in the irrelevant document found then it will not affect the prosecution case.

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ASHOK TSHERING BHUTIA, APPELLANT v/s

STATE OF SIKKIM, RESPONDENT.Criminal Appeal No. 945 of 2003, decided on February 25, 2011.

2011-(003)-SCR -0242 -SC 2011-(004)-SCC -0402 -SC 2011-(098)-AIR -1363 -SC

JUDGMENT DR. B. S. CHAUHAN, J.

Link 9

Many times witnesses, panchas, complainant turns hostile for various reasons. In some cases in Maharashtra complainant turn hostile in the cross examination and gave admissions to the extent that he thrusted (inserted) the money in the backside pocket of police inspector accused. Many times witnesses gave correct version in the examination in chief but gives contradictory version in the cross examination. i.e. favorable admissions in the cross examination with intent to damage the prosecution case and with a view to acquit the accused. In such cases it is expedient in the interest of justice to prosecute the witnesses u/s 193 IPC and the complainant u/s 211 IPC

Witnesses PW1 & PW2 turned hostile & stated that accused has not demanded bribe. S.C. directed to prosecute PW1 & PW2 for perjury.

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No doubt there is bar vide section 195(1)(b) of Cr.P.C. to take cognizance of the offence u/s 193, 211 IPC unless the complaint is filed by the judge himself. The relevant provisions are provided u/s 340 to 344 of Cr.P.C.

In Maharashtra ACB has filed the applications u/s 340 of Cr.P.C. requesting the special judges to file the complaints against the witnesses. There is amendment in Cr.P.C. in 2005 that the judge can also direct to his subordinate judge or officer to file the complaint.

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M. NARSINGA RAO, APPELLANT v/s

STATE OF A.P., RESPONDENT decided on 12-12-2000

2001-(001)-SCC -0691 -SC 2001-(088)-AIR -0318 -SC 2001-(107)-CRLJ -0515 -SC

JUDGE(S) :K T Thomas R P Sethi Umesh C Banerjee

Link12

Witnesses, IO. can refer the investigation papers in the Court at the time of giving evidence on oath.

It is not possible for the IO to depose in the court without referring the investigation papers because many times IO has done the investigation in many cases long back. It is not possible for the IO to keep in the mind all the record. After all IO is not coming for the examination or to give the interview before the interview panel. IO came in the court to bring the truth on record. On the basis of such record Judge delivers the justice. Therefore IO and even other witnesses be permitted to refer the documents while deposing in the court.

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STATE OF KARNATAKA, APPELLANT v/s

K. YARAPPA, RESPONDENT decided on 05-10-1999

1999-(SUP)-SCR -0359 -SC 2000-(087)-AIR -0185 -SC 2000-(106)-CRLJ -0400 -SC

JUDGE(S) : A P Misra K T Thomas

Link

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In disproportionate cases the practice and procedure followed by ACB in Maharashtra is as under.

1. Complaint against public servant sent by known or unknown person by making allegations of huge property acquired.

2. Collecting source information against public servant.3. Discrete enquiry of public servant about the

allegations of corruption done.4. DG, ACB receives report of discrete enquiry.

……contd

Preliminary enquiry is also part of Investigation

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5. If the substance in the report of discrete enquiry found then DG, ACB gives direction to start open enquiry .

6. In the open enquiry if the percentage of DPA found to be more than 10% then ACB proceeds to lodge FIR.

7. Thus the preliminary enquiry prior to FIR can be treated as investigation.

This procedure of ACB is held as just proper and legal recently on 30th september 2014 by the High Court, Bombay the division bench, Aurangabad. Judgment is kept on ACB Maharashtra website.

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STATE OF BIHAR ETC. v/s

P.P. SHARMA, IAS AND ANR. :RESPONDENT decided on 02/04/1991

1991 AIR 1260 1991 SCR (2) 11992 SCC Supl. (1) 222 JT 1991 (2) 1471991 SCALE (1)539

JUDGES: KULDIP SINGH (J) RAMASWAMY, K.

Link17

It is not necessary that passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence.

It is the general practice of corrupt public servants not to accept money directly by himself but through other persons like agents. Many times the corrupt public servants ask to deposit the money in the bank accounts of other persons. Many times such persons are not family members, relatives, friends but such persons are linked with the corrupt public servants.

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HAZARI LAL Vs.DELHI ADMINISTRATION : RESPONDENTdecided on 15/02/1980

1980 AIR 873 1980 SCR (2)1051, 1980 SCC (2) 390

JUDGES: SARKARIA, RANJIT SINGH REDDY, O. CHINNAPPA (J)

Link

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A Final – Final Report accepted. I.O. can file charge sheet.

Even though the final report filed by the officer in-charge of Police Station ( i.e. I.O. from ACB Maharashtra because I.O. is officer incharge of concerned police station in Maharashtra while doing investigation.) then also special judge can take cognizance of the offence for which sanction is not required and there is prima facie material available on record to issue process for e.g. section 8,9,12. As per section 19 of P.C.Act santion is required to take cognizance of offences u/s 7,10,11,13 and 15 only. Though final report accepted or accused discharged that does not mean that I.O. is precluded from filing the chargsheet. There is no bar of section 300 Cr.P.C.

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STATE OF RAJASTHAN, APPELLANT v/s

ARUNA DEVI & OTHERS, RESPONDENTS decided on 08-11-1994

1995-(001)-SCC -0001 -SC 1995-(001)-SCJ -0337 -SC 1995-(001)-UJ -0216 -SC

JUDGE(S) : B L Hansaria Kuldip Singh

Link

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Corruption cannot be permitted to be hidden under the carpet of legal technicalities

In many cases are acquitted on technical grounds e.g.

1) The report of FSL is not supportive to the prosecution.

It is pertinent to note that the report of FSL is not a substantive piece of evidence. It is a corroborative piece of evidence. Just like applying plaster to the wall.

2) Tutoring the witness i.e. showing the statement recorded u/s 161 Cr.P.C to the witness by the police prior to deposition in the court.

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It is pertinent to note that as per section 173 (2)(ii) of Cr.P.C. the copy of the chargsheet is to be given to complainant i.e. in short all the evidence including statements to be brought to the notice of complainant/ informant then what injustice is caused to the accused if the police read over the statement to the witness prior to the deposition definitely no injustice.

3) Complainant expired, Pancha expired, Pancha outside the chamber because accused asked him to go outside, minor contradictions omissions etc.

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CENTRE FOR PIL & ANR., PETITIONERSv/s

UNION OF INDIA & ANR., RESPONDENTS.

Writ Petition (C) Nos. 348, 355 of 2010, decided on March 3, 2011.

2011-(004)-SCC -0001 -SC 2011-(004)-SCR -0445 -SC 2011-(098)-AIR -1267 -SC

JUDGE: K S Panicker Radhakrishnan S H Kapadia Swatanter Kumar S. H. KAPADIA, CJI

Link24

Notification – Judge to take notice.

Notification issued u/s 17 of Prevention of Corruption Act by the State Government about investigation to be done by the Police officer not below the rank of Inspector of Police. In some cases special Judge in Maharashtra acquitted the accused because investigation was done by the Police Inspector. Neither IO nor APP brought to the notice of Special judge that Maharashtra government issued notification in the month of April 1989 authorising powers of investigation to the Police officer of the rank of Police Inspector and above.

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UNION OF INDIA Vs.NIHAR KANTA SEN & ORS. : RESPONDENTdecided on 21/04/1987

CITATION:1987 AIR 1713 1987 SCR (2)11081987 SCC (3) 465 JT 1987 (2) 5551987 SCALE (1)1015

JUDGES: SINGH, K.N. (J)REDDY, O. CHINNAPPA (J)

Link

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Abettors are liable to be prosecuted along with the accused under PC Act

P. NALLAMMAL ETC., APPELLENT v/s

STATE REP. BY INSPECTOR OF POLICE, RESPONDENT. Decided on 09-08-1999

1999-(105)-CRLJ -3967 -SC 1999-(SUP)-SCR -0135 -SC 2000-(001)-SLJ -0320 -SC

JUDGE(S) :K T Thomas M B Shah Link

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Sanction U/s 19 of P.C.Act

• If sanction invalid then court cannot take cognizance. If cognizance taken on the basis of invalid sanction and delivered the judgment then such judgment is bad in law and of the court having no jurisdiction. Such judgments will be treated to be delivered by the court having no competent jurisdiction. There is no bar of section 300 of Cr.P.C. to file chargesheet after obtaining valid sanction from the competent authority.

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• In Mumbai sanction to the Police Head Constable was accorded by DCP though he was appointed by C.P. Therefore the Special Judge acquitted accused Police Head Constable because sanction was invalid. Anti Corruption Bureau, Mumbai Unit instead of filing appeal in the High Court, Bombay obtained the valid sanction from the C.P., Mumbai and filed the chargesheet before the Special Judge, Mumbai. Special Judge, Mumbai in the said case framed charge. Recorded evidence of witnesses. Heard arguments of both the sides and convicted the accused considering the ratio laid down by the Supreme Court in the following Judgment.

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STATE OF KARNATAKA THROUGH CBI v/s

(1) C. NAGARAJASWAMY; (2) M. K. VIJAYALAKSHMI.

Appeal (Crl.) 1279 of 2002; Criminal Appeal No. 137 of 2003, decided on October 7, 2005.

JUDGE(S) : R V Raveendran S B Sinha

Link

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Sanction not required if public servant though re-elected and his previous term expired.

ABHAY SINGH CHAUTALA, AJAY SINGH CHAUTALA, APPELLANT v/s

C. B. I., RESPONDENT.

Criminal Appeal No. 1257 of 2011 (Arising out of SLP (Crl.) No. 7384 of 2010),

Criminal Appeal No. 1258 of 2011 (Arising out of SLP (Crl.) No. 7428 of 2010),

201 1-(007)-SCC -0141 –SC decided on July 4, 2011. JUDGES : T S Thakur

V S Sirpurkar Link 31

How to prove sanction – Two modes – Valid sanction required.

Supreme Court held that an order of valid sanction can be proved by the Sanctioning Authority in two ways : either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction; or (2) by adducing evidence aliunde (from elsewhere) to show that the facts were placed before the Sanctioning Authority and the satisfaction arrived at by it.

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STATE v/s

K. NARASIMHACHARY.

Criminal Appeal No. 82 of 2004, dated October 7, 2005. SUPREME COURT (FROM : ANDHRA PRADESH)

Counsel : P. Vinay Kumar, Mrs. D. Bharathi Reddy, Sneha Bhaskaran - Appellant. Srinivas R. Rao, Ms. Neeru Vaid - Respondents. 2005-(SUP)-SCR -0197 -SC 2006-(093)-AIR -0628 -SC 2006-(112)-CRLJ -0518 -SC

JUDGE(S) :R V Raveendran & S B Sinha

Link33

Technicalities not a ground to refuse sanction.

In R. Sundararajan v. State by DSP, SPE, CBI, Chennai ((2006) 12 SCC 749), while dealing with the validity of the order of sanction, the two learned Judges have expressed thus :- "it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated."

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STATE OF MAHARASHTRA THROUGH C. B. I., APPELLANT v/s

MAHESH G. JAIN, RESPONDENT.

Criminal Appeal No. 2345 of 2009, decided on May 28, 2013.2013-(008)-SCC -0119 -SC

JUDGES : B S Chauhan Dipak Misra

Link

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No sanction required after retirement

CHITTARANJAN DAS, APPELLANT v/s

STATE OF ORISSA, RESPONDENT.

Criminal Appeal No. 820 of 2007, decided on July 4, 2011.

2011-(007)-SCR -0836 -SC 2011-(008)-JT -0504 -SC 2011-(098)-AIR -2893 -SC

JUDGE(S) :Chandramauli Kumar Prasad G S Singhvi

Link36

Not necessary to examine sanctioning authority.

STATE OF M. P. v/s

JIYALAL. Criminal Appeal No. 1386 of 2009 (arising out of S.L.P. (Cri.) No. 3276 of 2008) (Cri. Appeal No. 1539 of 1995, dt. 26-6-2006 (MP)), dated July 31, 2009. SUPREME COURT OF INDIA (FROM : MADHYA PRADESH)

Counsel : Vibha Datta Makhija - Appellant. Rajesh - Respondent. 2009-(015)-SCC -0072 –SC, 2010-(097)-AIR -1451 -SC

JUDGES : K G Balakrishnan P Sathasivam

Link37

It is observed by the Supreme Court in the following judgment that it is not necessary to examine the sanctioning authority.

Supposed it is required to examine the sanctioning authority court can record the evidence through video conferencing.

Maharashtra government has issued the circular to record the evidence of sanctioning authority vide video conferencing. This practice is followed in Maharashtra. State of Maharashtra V/s Dr. Praful Desai with P.C.Singh appellant v/s Dr. Praful Desai and another Respondent.2003-(090)-AIR-2053-SC 2003-(109)-CRLJ-2033-SC Link

Evidence by video conferencing

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Sanction order issued by GovernmentMany times sanction orders u/s 19 of P.C.Act

1988 are signed and issued by the Deputy Secretary, Jt. Secretary etc on behalf of State Government. When such officers attends the court for proving the sanction order some questions are asked in the cross examination, whether such officer is empowered to remove the accused from the service?

Naturally such Deputy Secretary or Jt. Secretary gives the answer in negative.

On the basis of such answer court gives the findings that the sanction is not issued by the competent authority and therefore sanction is invalid.

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This is not the correct approach because such witness has signed on the sanction order as per the rules of business. There is definitely noting on the noting file about according the sanction u/s 19 of P.C.Act and moreover the Government has authorised such officers to sign on the sanction order.

Therefore such officer has not signed on the sanction order in his own capacity as a Deputy Secretary or Jt. Secretary but signs on behalf of State Government.

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If such witness or the prosecution has not filed the noting file or relevant document along with the sanction order then in the interest of justice and to elicit the truth the Court can call such record by issuing summons to the concern person u/s 311 of Cr.P.C.

It will not be just to acquit the accused on the ground that such witness i.e. Deputy Secretary or Jt. Secretary is not competent to accord sanction order.

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If the sanction order is invalid then the court has no jurisdiction to deliver the judgment either acquitting or convicting. As per the law laid down in case.The state of Karnataka

v/sC.Nagaraja swamy2005 Cr.L.J. page 4534

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