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High Court Of Orissa
LINGARAJA RATH
HAREKRUSHNA PATNAIK - Appellant
Versus
STATE OF ORISSA - Respondent
CRIMINAL APPEAL 33 Of 1984
Decided On : 07/31/1990
PREVENTION OF CORRUPTION ACT - SANCTION FOR PROSECUTION - VALIDITY - INVESTIGATION REPORT - EVIDENCE - SECTION 73 OF THE EVIDENCE ACT - SPECIMEN WRITINGS, SIGNATURES AND INITIALS - OBTAINING DURING INVESTIGATION - VALIDITY.
Fact of the Case:
The appellant, a Lower Division Clerk in the office of the Executive Engineer (R and B), Dhenkanal Division, was convicted under Section 5(1)(c) read with Section 5(2) and under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, as well as under Section 471 IPC. The charges against him included forging letters of authority in the name of the Executive Engineer and taking delivery of stationery articles worth Rs. 8501.06 from the Orissa Government Press, Khapuria, Cuttack, without accounting for them in the office.
Finding of the Court:
The court found that the sanction for prosecution was valid, as the sanctioning authority had perused the detailed investigation report of the S.P. (Vigilance) and was satisfied that the accused should be prosecuted. The court also held that the evidence of the handwriting expert, who had compared the appellant's specimen writings, signatures, and initials with the disputed writings, was admissible, even though the Magistrate who had directed the appellant to give his specimen writings had no jurisdiction to do so. However, the court set aside the appellant's conviction and sentence under Section 5(1)(d) of the Prevention of Corruption Act, as there was no sanction for prosecution under that section.
Issues: 1. Whether the sanction for prosecution was valid, considering that the sanctioning authority had only perused the investigation report of the S.P. (Vigilance) and not the actual evidence against the accused? 2. Whether the evidence of the handwriting expert was admissible, considering that the Magistrate who had directed the appellant to give his specimen writings had no jurisdiction to do so? 3. Whether the appellant's conviction and sentence under Section 5(1)(d) of the Prevention of Corruption Act were valid, considering that there was no sanction for prosecution under that section.
Ratio Decidendi: 1. The court held that the sanction for prosecution was valid, as the sanctioning authority had perused the detailed investigation report of the S.P. (Vigilance) and was satisfied that the accused should be prosecuted. The court noted that while it is ideal and proper for the investigation report to be placed in evidence, its absence would not necessarily warrant a conclusion that the facts constituting the offence were not before the sanctioning authority when it accorded the sanction. 2. The court held that the evidence of the handwriting expert was admissible, even though the Magistrate who had directed the appellant to give his specimen writings had no jurisdiction to do so. The court noted that the appellant had not challenged the Magistrate's orders before the proper forum and that obtaining specimen writings, signatures, etc. from the accused during investigation by the investigating agency does not amount to testimony on compulsion. 3. The court held that the appellant's conviction and sentence under Section 5(1)(d) of the Prevention of Corruption Act were not valid, as there was no sanction for prosecution under that section.
Final Decision: The appeal was partly allowed. The appellant's conviction and sentence under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act and under Section 471 IPC were upheld. However, his conviction and sentence under Section 5(1)(d) of the Prevention of Corruption Act were set aside.
LINGARAJA RATH, J.
( 1 ) THE appellant having been convicted under Section 5 (1) (c) read with Section 5 (2) and under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act as also under Section 471 I. P. C. and sentenced to pay a fine of Rs. 9,000/- in default to undergo R. I. for six months under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act and to undergo R. I. for one year on each count under Section 5 (1) (c) read with Section 5 (2) of the Prevention of Corruption Act and under Section 471, I. P. C. , and although convicted also under Sections 403/468, I. P. C. though no separate sentence has been awarded under the two sections, has preferred this appeal.
( 2 ) THE indictment of the petitioner was that he while working as an L. D. Clerk in the office of the Executive Engineer (R and B), Dhenkanal Division, Dhenkanal forged letters of authority in the name of the Executive Engineer during the period from May, 197 3/03/1974 and took delivery of stationery articles worth Rs. 8501. 06 from the Orissa Government Press, Khapuria, Cuttack on the strength of those letters of authority but did not account for the articles in the office. The F. I. R. was lodged by the Inspector of Vigilance on 20-2-75 on the basis of which investigation was started and on completion of investigation and obtaining the sanction for prosecution, the petitioner was made to stand the trial.
( 3 ) THE learned Special (Vigilance) on an analysis of the evidence held the sanction to be valid, the trial to be not vitiated under Section 219, Cr. P. C. the signatures appearing Exts. 7/24 to 7/35 on the letters of authority to be in the hand of the appellant which conclusion he reached on the evidence of the handwriting expert and his report, and that the appellant had received the articles in question from the Orissa Government Press on the basis of the forged letters but had not accounted for the same.
( 4 ) MR. Misra, learned counsel for the appellant, had placed the evidence before me in extenso. The evidence overwhelmingly proves the guilt of the appellant and there is no escape from the conclusion reached by the learned Special Judge. Mr. Misra also does not seriously challenge the findings on merit. It is not necessary in view of the decision reported in AIR 1981 SC 1417 : 1981 Cri LJ 1019 (State of Karnataka v. Hemareddy and another) to reiterate the evidence as general consensus is reached with the conclusion of the learned Special Judge. However, Mr. Misra has strenuously contended the sanction for prosecution to be invalid and has further argued that since the appellant was made to give his specimen writing, signatures and initials by the Magistrate P. W. 8 who had no jurisdiction to so direct, the evidence in respect of the same must be held to be nullity and cannot be relied upon to base a conviction of the appellant.
( 5 ) SO far as the first submission is concerned, Mr. Misra has placed reliance on the order of sanction. Ext. 40, and the evidence of P. W. 15 the sanctioning authority as also P. W. 10, the I. O. The relevant extract of the sanction order is as follows :"whereas it is alleged that Shri Harekrushna Patanaik while functioning as Lower Division Clerk in the office of the Executive Engineer, Dhenkanal (R and B) Division, Dhenkanal from 14-4-64 took delivery of papers, stationeries, etc. amounting to Rs. 8501. 60 P. by producing false letters of authorisation in the name of the Executive Engineer, Dhenkanal (R and B) Division on 12 occasions dating the period from 8-5-73 to 19-2-74 in the office of the Government Press, Khapuria, Madhupatna, Cuttack and did not make over the articles in the office of the E. E. , Dhenkanal (R and B) Division nor accounted for the same and misappropriated the cost of papers and the stationery articles or the cost thereof. And whereas the said acts constitute offences punishable under Section 5 (2), P. C. Act read with Section 5 (1) (c) of the sai
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