STATE OF M.P.versusHARISHANKAR BHAGWAN PD. TRIPATHI

                        [2010] 9 S.C.R. 1148


A                          STATE OF M.P.
                                   v.
             HARISHANKAR BHAGWAN PD. TRIPATHI
               (Criminal Appeal No. 1513 of 2010)

                         AUGUST 13, 2010
B
           [ALTAMAS KABIR AND A.K. PATNAIK, JJ.]

       Prevention of Corruption Act, 1947 - s.5(1)(d) rlw s. 5(2),
  s.6(1)(c) ands. 161 /PC - Prosecution for demand and
C acceptance of illegal gratification - Of two accused -
  Complaint for demand of illegal gratification against one
  accused - Trap arranged - Tainted notes recovered from both
  the accused - Acquittal by courts below - Appeal before
  Supreme Court - Appeal against the accused who demanded
D bribe, abated on account of his death - Held: Possession of
  tainted currency notes by the respondent-accused has not
  been explained by the defence - The order granting sanction
  does not suffer from any infirmity- Matter remitted to trial court
  for decision on merits - Penal Code, 1860 - s. 161.
E
       The respondent-accused, alongwith another accused
  was tried for offences u/s 161 IPC ands. 5 (1) (d}, r/w s. 5
  (2) of Prevention of Corruption Act, 194 7. The
  prosecution case was that the o~her accused demanded
  illegal gratification from the complainant for issuing him
F an excise licence. The respondent-accused was working
  as a 'clerk' in that establishment. A trap was arranged on
  the complaint of the complainant made before the office
  of Lokayukt. The othec accused, after receiving the
  tainted currency notes from the complainant, gave two
G of the tainted notes (Rs. 200/-) to the respondent-
  accused.

        Trial court, though found the trap to have been
    proved, yet acquitted both the accused on the ground
H                               1148
 STATE OF M.P. v. HARISHANKAR BHAGWAN PD. 1149
                   TRI PATH I

that the sanction u/s. 6(1)(c) of the Act, to prosecute the   A
accused had been granted without application of mind.
The appeal against the order was dismissed by the High
Court on the ground tha~, there was no proper sanction.
As regards respondent-~ccused, the dismissal of the
appeal was on the grounds that there was no demand            B
from him and mere recovery of Rs. 200/- from his
possession, was not sufficient to hold him guilty. The
instant appeal was filed by way of SLP against both the
accused. During pendency of the SLP, the accused who
had· demanded the bribe, died and thus the appeal             c
against him abated.

    Allowing the appeal, and remitting the matter to trial
court, the Court

    HELD: Both the courts below have come to an D
erroneous finding that although the trap had been
proved, the circumstances in which a sum of Rs. 200/-
was recovered from the respondent-accused, had not
been properly considered. No attempt was made by the
defence to explain as to how the tainted currency came E
to be in the possession of the respondent-accused,
except for the statement that the same had been handed
over to him by the deceased accused. Unless there was
an understanding between the respondent-accused and
the deceased accused, there can be no reason f.or the F
deceased accused to have given the respondent-
accused a part of the money which he had received by
way of illegal gratificatibn. [Para 12] [1155-B-D]

    2. The reasoning of the trial court as also the High
Court in dismissing the case of the prosecution, on the G
ground that proper sanction was not obtained to
prosecute the accused persons, was not correct. The
records 'of the Lokayukt's office had been examined by
the Principal Secretary of the State Government, while
granting such sanction for prosecution. While granting H
    1150    SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A sanction, the officer concerned is not required to indicate
  that he had personally scrutinized the file and had arrived
  at the satisfaction for granting sanction. The narration of
  events granting sanction for prosecution clearly indicates
  the case and the reason for grant of such sanction. In the
8 instant case, the order granting sanction does not suffer
  from any infirmity which prompted the courts below to
  acquit the accused persons. The matter is remitted to the
  trial court for passing appropriate orders on the merits
  of the case. [Paras 12 and 13] [1155-E-H; 1156-A-B]
c       State of Maharahstra vs. lshwar Piraji Kalpatri and Ors.
    1996 (1) sec 542 - relied on.

         C.S. Krishnamurthy vs. State of Karnataka 2005 (4) SCC
    81 - referred to.
D
                         Case Law Reference:
        2005 (4) sec 81             Referred to.         Para 9
        1996 (1 l sec 542           Relied on.           Para 13
E       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1513 of 2010.

      From the Judgment & Order dated 31.03.2008 of the High
  Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.
F 294 of 1994.
        Vibha Datta Makhija for the Appellant.

        Kuldip Singh for the Respondent.

G       The Judgment of the Court was delivered by

        ALTAMAS KABIR, J. 1. Leave granted.

        2. This appeal is directed against a judgment of acquittal
    passed by the First Additional Sessions Judge and Special
H
 STATE OF M.P. v. HARISHANKAR BHAGWAN PD. 1151
         TRIPATHI [ALTAMAS KABIR, J.]

Judge, Shahdol, in Special Case No.5/87, acquitting the               A
Respondents in respect of offences punishable under Section
161 of the Indian Penal Code (l.P.C.) and Section 5(1 )(d) read
with Section 5(2) of the Prevention of Corruption Act, 1947,
hereinafter referred to as the "1947 Act".
                                                                       B
      3. According to the prosecution case, the complainant,
Ramavtar, submitted an application in the Office of the District
Excise Officer, Shahdol, for a licence to collect Mahua. At that
time, Ghanshyamdas @ G.D. Sharma had been serving as
Special Inspector, Excise and the sole Respondent herein,
Harishankar Bhagwan Pd. Tripathi, was serving as a Clerk in C
the said establishment. The complainant, Ramavtar, claimed
to have deposited a sum of Rs.200/- for the licence fee in the
State Bank and upon inquiry from the said Ghanshyamdas, he
allegedly demanded a sum of Rs.2000/- from the complainant
as illegal gratification fer getting the licence. Eventually, a written D
complaint was made by Ramavtar to the Lokayukt (Rewa) of
the Special Police, ~ewa, which was received by the Deputy ·
 Superintendent of Police on 04.06.1986.

     4. At this juncture, it may be noted that Ghanshyamdas,           E
who had been made the Respondent No.1 in the Special
Leave Petition, died during the pendency of the petition and
the proceedings against him have, therefore, abated.

     5. Once the written complaint was made, the Office of the
Special Police Establishment arranged for a trap and 20                F
currency notes of Rs.100/- denomination each were treated
with phenolphthalein powder and were kept in the right pocket
of the kurta worn by Ramavtar. He was directed to hand over
the treated currency notes to Ghanshyamdas and was also
cautioned against touching the currency notes before they were         G
handed over to Ghanshyamdas.

    6. According to the prosecution case, the notes in
question were handed over by the complainant, Ramavtar, to
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    1152    SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A Ghanshyamdas, who kept 18 of the notes with himself, while
  giving two of the notes to the sole Respondent, Harishankar.
  Immediately thereafter, on being given a pre-arranged signal,
  the trap party came inside and apprehended both the
  Respondents. Their hands were washed with a solution of
B Sodium Carbonate, upon which the water turned pink in colour.
  A charge-sheet was submitted before the Special Judge, who,
  after going through the charge-sheet, framed charges against
  the accused punishable under Section 161 l.P.C. and also
  Section 5(1 )(d) read with Section 5(2) of the Prevention of
C Corruption Act, 1947. The trial Judge acquitted the
  Respondents not on the ground that the prosecution had failed
  to prove its case, but upon holding that the sanction which had
  been accorded for the prosecution of the accused, was
  improper and had been given without application of mind.
  Though, the learned Special Judge found the trap to have been
0
  proved, he acquitted the Respondents on the ground that the
  sanction to prosequte the accused had been granted withoµt
  application of mind.

       7. Aggrieved by the judgment of acquittal passed by the
E learned Special Judge, the prosecuting agencies filed Criminal
  Appeal No.294 of 1994 before the Jabalpur Bench of the
  Madhya Pradesh High Court, which, by its judgment and order
  dated 31st March, 2008, reiterated the findings of the trial Court
  and dismissed the appeal upon holding that the sanction
F accorded by the State Government under Section 6 of the Act
  suffered from non-application of mind, since in the sanction
  order only the facts of the prosecution case had been mentioned
  and no reason had been given for according sanction in regard
  thereto. In the absence of a valid sanction, the High Court
G dropped the proceedings against Ghanshyamdas, against
  whom the appeal has abated. As far as the sole Respondent,
  Harishankar Bhagwan Prasad Tripathi, is concerned, the High
  Court held that in the absence of any demand made by the said
  Respondent. the provisions of Section 5( 1)( d) of the 1947 Act
H
 STATE OF M.P. v. HARISHANKAR BHAGWAN PD. 1153
         TRIPATHI [ALTAMAS KABIR, J.]

were not attracted and even the recovery of Rs.200/- from           A
Harishankar was not sufficient to hold him guilty of the charges
levelled against him. The High Court, accordingly, dismissed
the appeal as against the sole Respondent, Harishankar.

      8. Ms. Vibha Datta Makhija, learned Advocate appearing        B
for the Appellant, State of Madhya Pradesh, took us to the order
dated 9th February, 1987, according sanction under Section
6(1)(c) of the Prevention of Corruption Act, 1947, to initiate
prosecution against Ghanshyamdas and Harishankar for the
offences punishable under Section 161 l.P.C. and Section            c
5(1 )(d) read with Section 5(2) of the Prevention of Corruption
Act, 1947, and the other Acts for the time being in force in this
connection. Learned counsel pointed out that the facts of the
case, as would appear from the records maintained by the
Office of the Lokayukt, had been clearly set out and a
satisfaction was also arrived at from the facts as recorded and     D
fro111 the perusal thereof, that prosec~tion was required to be
initiated against both the accused in a Court of law. Ms.
 Makhija submitted that the trial Court had wrongly held that no
 valid sanction for prosecution had been proved, inasmuch as,
 the same was proved by Shri R.N. Singh, the Superintendent         E
 of Police, Lokayukt Office (PW-5). Ms. Makhija submitted that
the learned Courts below had erred in acquitting the
 Respondents only on the said ground after having found them
 to be guilty of the offence with which they had been ~harged.
                                                                    F
     9. Placing reliance on the judgment of this Court in State
of Maharashtra vs. lshwar Piraji Ka/patri & Ors. [(1996) 1 SCC
542], Ms. Makhija submitted that this Court had held that while
according sanction there was nothing in law which required a
statement to be made by the Sanctioning Officer that he had G
personally scrutinized the file and had arrived at the required
satisfaction. The statement made by the Sanctioning Authority
that it had fully examined the material before it and after
considering all the facts and circumstances discussed therein'
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    1154    SUPREME COURT REPORTS                  [2010] 9 S.C.R.


A   was satisfied that a prima facie case was made out against
    the accused person and that it was necessary in the interest
    of justice to prosecute him in the Court, indicated that the
    material on record had been examined by the officer concerned
    who had applied his mind before according sanction.
8   Reference was also made to the decision of this Court in c_.s.
    Krishnamurthy VS. State of Karnataka [(2005) 4 sec 81),
    where in a similar situation where grant of sanction had been
    questioned, this Court held that the sanction order should speak
    for itself and in case the facts do not so appear, it must be
C   proved by leading evidence that all the particulars were placed
    before the Sanctioning Authority for due application of mind. If
    the sanction order itself is eloquent enough, then in that case
    only formal evidence has to be led by the Sanctioning Authority
    or any other evidence to prove that the sanction had been
    accorded by a competent person upon due application of mind.
0
         10. Ms. Makhija submitted that having regard to the above,
    the sanction order was sufficiently clear' to indicate that the
    Sanctioning Authority had applied its mind to the records of the
    office of the Lokayukt while granting sanction for prosecuting
E   the two accused persons.

        11. In view of the death of the Respondent No.1,
  Ghanshyamdas, during the pendency of the appeal, Ms.
  Makhija's submissions were opposed on behalf of the
F remaining Respondent, Harishankar Bhagwan Prasad Tripathi,
  and the submissions made before the trial Court as well as the
  High Court, were reiterated by Mr. Kuldip Singh, learned
  Advocate. In addition, it was once again emphasized that the
  sole Respondent had not made any demand for illegal
G gratification, nor was any evidence led by the prosecution to
  make out such a case against him. On the other hand, except
  for the fact that a sum of Rs.200/- from out of the treated notes
  had been recovered from his possession, there is nothing else
  to indicate that he was in any case involved in the conspiracy
  to obtain bribe for grant of excise licence. Learned counsel
H
 STATE OF M.P. v. HARISHANKAR BHAGWAN PD. 1155
        TRIPATHI [ALTAMAS KABIR, J.]

urged that in such circumstances, the sole Respondel")t had        A
been rightly acquitted by the Courts below.
                                                               ,

       12. Having carefully considered the submissions made oh
behalf of the respective parties, we are unable to agree with
the reasoning of both the learned Special Judge as also the/ B
High Court in dismissing the case of the prosecution on the
ground that proper sanction had not been obtained to prosecute
the accused persons. Both the Courts have come to an
erroneous finding that although the trap which had been laid had
been proved, the circumstances in which a sum of Rs:200/- was C
recovered from the sole Respondent, had not been properly
considered. No attempt has been made by the defence to
explain as to how the tainted currency came to be in the
possession of the sole Respondent, except for the statement
that the same had been handed over to him by Ghanshyamdas.
 Unless there was an understanding between the sole D
 Respondent and Ghanshyamdas, since deceased, there can
 be no reason for Ghanshyamdas to have given. ttie sole
 Respondent a part of the money which he had received by way
 of illegal gratification.
                                                                   E
     13. Even with regard to the grant of sanction, it is quite clear
that the records of the Lokayukt's Office had been examined
by the Principal Secretary, Government of Madhya Pradesh,
while granting such sanction for prosecution. As has been
indicated by this Court in fshwar Piraji Kalpatri's case (supra), · F
while granting sanction the officer concerned is not required to
indicate that he had personally scrutinized the. file and had
arrived at the satisfaction for granting sanction. The narration
of events granting sanction for prosecution clearly indicates the
case and the reason for grant of such sanction. In the present G
case also the order granting sanction does not, in our view,
suffer from any infirmity which prompted the Courts below to
acquit the accused persons.

     14. This appeal, accordingly, succeeds. The order of the
                                                                   H
    1156     SUPREME COURT REPORTS                (2010] 9 S.C.R.


A   learned Special Judge, Shanao1, aat~d 18th May, 1993 in
    Special Case No. No.5/87, acquitting the accused of the
    charges framed against them under Section 161 l.P.C. and
    Section 5(1)(d) read with Section 5(2) of the 1947 Act and the
    judgment of the Madhya Pradesh High Court dated 31st March,
B   2008 in Criminal Appeal No.294 of 1994 are hereby set aside.
    The appeal is, therefore, allowed and the matter is remitted to
    the learned Special Judge, Shahdol, for passing appropriate
    orders on the merits of the case.

    K.K.T.                                        Appeal allowed.