IMPORTANT POINT
Section 17 of Prevention of Corruption Act makes investigation only by police officer of the rank specified therein to be imperative in character.

Headnote:Prevention of Corruption Act, 1988 — Section 17 — Act is a special statute which contains special procedure not only in regard to manner in which complaint is to be filed but also mode and manner in which investigation thereunder is required to be carried out — Investigation has to be by a person authorised in that behalf — Respondent posted as Chief Commercial Inspector in Railway was tried for offence of disproportionate assets to known sources of income — Conviction by trial Court — High Court set aside conviction — Appeal — Investigating Officer PW41 did not produce any record to show that he had been so authorised — Special Judge was enjoined with duly to draw an adverse inference — Investigation carried out was unfair as Investigating Officer did not care to ascertain correctness or otherwise status of respondent and his wife before Income Tax Department — PW37 was not competent to accord sanction for prosecution as under the Rules he was not competent authority to remove respondent from service — He claimed to have been delegated with power — Purported delegation of power have never been produced and proved — Acquittal called for no interference.
       Held : Provisions of the 1988 Act, no doubt, like the 1947 Act seek to protect public servant from a vexatious prosecution. Section 17 provides for investigation by a person authorized in this behalf. The said provision contains a non-obstante clause. It makes investigation only by police officer of the ranks specified therein to be imperative in character. The second proviso appended to Section 17 of the Act provides that an offence referred to in clause (e) of sub-Section (1) of Section 13, shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. Authorization by a Superintendent of Police in favour of an officer so as to enable him to carry out investigation in terms of section 17 of the Act is a statutory one. The power to grant such sanction has been conferred upon the authorities not below the rank of Superintendent of Police. The proviso uses a negative expression. It also uses the expression "shall". Ex-facie it is mandatory in character. When the authority of a person to carry out investigation is questioned on the ground that he did not fulfil the statutory requirements laid down therefor in terms of the second proviso, the burden, undoubtedly, was on the prosecution to prove the same. It has not been disputed before us that the Investigating Officer, P.W.41, did not produce any record to show that he had been so authorized.(Para 13)
       The approach of the learned Special Judge, to say the least, was not correct. When a statutory functionary passes an order, that too authorizing a person to carry out a public function like investigation into an offence, an order in writing was required to be passed. A statutory functionary must act in a manner laid down in the statute. Issuance of an oral direction is not contemplated under the Act. Such a concept is unknown in Administrative Law. The statutory functionaries are enjoined with a duty to pass written orders. (Para 16)
       Submission of the learned Additional Solicitor General was that the respondent did not further cross-examine the said witnesses to the effect that no such order in writing was passed, and thus, he cannot be said to have been prejudiced in any manner whatsoever. We do not agree.(Para 17)
       It is now well settled that when a document being in possession of a public functionary, who is under a statutory obligation to produce the same before the court of law, fails and/or neglects to produce the same, an adverse inference may be drawn against him. The learned Special Judge in the aforementioned situation was enjoined with a duty to draw an adverse inference. He did not consider the question from the point of view of statutory requirements, but took into consideration factors, which were not germane. (Para 18)
       Illegality apart, the manner in which the investigation was conducted, is condemnable. The least that a court of law would expect from the prosecution is that the investigation would be a fair one. It would not only be carried out from the stand of the prosecution, but also the defence, particularly, in view of the fact that the onus of proof may shift to the accused at a later stage. The evidence of P.W.41 raises doubts about his bona fide. Why he did not examine important witnesses and as to why he had not taken into consideration the relevant documentary evidence has not been explained. He did not even care to ascertain the correctness or otherwise of the status of both of the respondent and his wife before the Income Tax Department. Above all, he did not produce before the Court the statements made by the appellant, his wife and those of his sons, although they were relevant. Had the statements of D.W.3 and D.W.4 been produced before, the learned Special Judge might not have opined that the sons of the respondent, other than D.W.2, did not make any contribution to their parents at all. If such statements were made by the said witnesses before the Investigating Officer, omission on the part of D.W.1, the wife of the respondent, to state the same before the Special Judge might have taken a back seat and the statements of other sons of the respondent, namely, D.W.3 and D.W.4 might not have been ignored by the learned Special Judge.(Para 19)
       It is true that only on the basis of the illegal investigation a proceeding may not be quashed unless miscarriage of justice is shown, but, in this case, as we have noticed hereinbefore, the respondent had suffered miscarriage of justice as the investigation made by P.W.41 was not fair.(Para 21)
       The learned Trial Judge furthermore also committed a serious error in so far as he failed to take into consideration that Shri Debaraj Panda, who examined himself as P.W.37, being a Senior Divisional Operations Manager, was not competent to accord sanction for prosecution of the respondent herein. He, in his evidence, accepted that under the Rules he was not the competent authority to remove him from service.(Para 22)
       The purported delegation of power had never seen the light of the day. No reliance thereupon could have been placed to arrive at a finding that the said witness was authorized to accord sanction. The learned Special Judge did not apply his mind to these aspects of the matter at all. (Para 23)

JUDGMENT

S.B. Sinha, J. — The State is in appeal before us impugning the judgment and order dated 31st October, 2003 passed in favour of the respondent herein by the High Court of Judicature of Andhra Pradesh at Hyderabad whereby and whereunder a judgment of conviction and sentence passed as against the respondent under Section 13(2) of the Prevention of Corruption Act, 1988 (the Act, for short) and sentencing him to undergo Rigorous Imprisonment for 3 years and to pay a fine of Rs.4 lakhs and in default to suffer Simple Imprisonment for one year, was set aside.

2. The respondent was an Assistant Station Master. He was working in the South Eastern Railway, Vizianagaram, Andhra Pradesh from 16.12.1961 to February, 1984. He was promoted to the post of Commercial Inspector and was working in that capacity from February, 1984 to July, 1986 and as Senior Commercial Inspector from July, 1986 to December, 1993. He was later promoted as Chief Commercial Inspector and was working in the said capacity from December, 1993. His wife, Smt. K.S. Satyeswari, who examined herself as D.W.1, was an income tax assessee. All the three sons of the respondent had been working. A raid was conducted in his house and also in the houses of his sons. Some incriminating documents were allegedly recovered.

3. During investigation, not only the statement of the respondent, but also that of his wife and three sons were recorded by the Investigating Officer. The investigation was admittedly carried on by P.W.41–Shri K. Biswal and P.W.42–Shri N. Vishnu. Sanction of prosecution was accorded by P.W. 37–Shri Debaraj Panda, the then Senior Divisional Commercial Manager, South-Eastern Railway.

4. The check period under consideration was 1.1.1986 to 9.8.1994. The prosecution proceeded on the basis that whereas the total income of the respondent and his family members was Rs.6,73,203.69p. including loans and advances during the aforesaid check period, the respondent and his family members had expended Rs.3,31,068.75p.; and acquired assets both movable and immovable worth Rs.11,66,873.84p. during the said period. It was also alleged that respondent was in possession of assets and pecuniary resources in his own name as also in the name of his wife to the tune of Rs.6,54,738.90p., which was disproportionate to his known sources of income as on 9.8.1994.

5. Before the learned Special Judge the respondent examined defence witnesses, including his wife (D.W.1), his three sons, namely, Shri Karri Satyanarayana Sarma (D.W.2), Shri K. Srinivas (D.W.3), Shri K. Rama Sarma (D.W.4) and one Engineer, D.W.5 Shri A. Sridhar, who submitted his report in regard to valuation of respondents house.

6. The learned Special Judge in his judgment, inter alia, opined that the sons of the respondent, other than his eldest son, did not make any contribution from their salaries. Reliance was placed on the valuation report submitted by the Engineer of the Income Tax Department, P.W.36 in preference to the Valuer appointed by accused, i.e., D.W.5. The High Court, however, by reason of the impugned judgment, inter alia, held that keeping in view the societal norms prevailing in India, vis-a-vis, the developed countries, the sons of appellant presumably make substantial contribution from their income to their parents.

7. The High Court also relied upon a large number of decisions of this Court in coming to the conclusion that if a reasonable margin of 10% is accorded, the respondent cannot be said to have failed to have proved in showing means for acquiring assets held and possessed by him as also by his wife.

8. Mr. A. Sharan, learned Additional Solicitor General appearing on behalf of the appellant in support of this appeal would submit that–

i) The wife of the respondent-D.W.1, having categorically stated that only the eldest son, namely, D.W.2 had been making contributions to the family, the learned Special Judge must be held to have arrived at a correct finding of fact that other s

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2006 Supreme(SC) 765

IMPORTANT POINTSection 17 of Prevention of Corruption Act makes investigation only by police officer of the rank specified therein to be imperative in character.

Cases Referred (3)

IMPORTANT POINT
Section 17 of Prevention of Corruption Act makes investigation only by police officer of the rank specified therein to be imperative in character.