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Criminal Appeal No. 104 of 1960,Ydeeided on 16th August 1960.
, S._5‑A Infringement of section‑Does not vitiate trial ‑Criminal Procedure Code (Y of 1898), S. 537.
Infringement of section 5‑A of the Prevention of Corruption Act, 1947 is a mere irregularity within the ambit of section 537, Criminal Procedure Code, 1898‑ and unless it has caused actual prejudice to the accused, it cannot be held to have vitiated the trial. The trial Court is to decide the case on the face of the evidence before it and the mere fact that evidence was collected by an agency not authorised by law to do so cannot deprive the Court of its inherent jurisdiction to try it.
Sudhir Kumar v. The State A I R 1953 Cal. 226 not followed.
Crown v. Nur Alam P L D 1955 Lah. 667 and Abdur Noon a lias Noor Meah P L D 1958 Dacca 145 fol.
--‑Order of sanction, besides speci fying name of accused, mentioning that sanction was granted as from reports available there were sufficient materials to suggest" commission of offence‑Sanction, held, proper‑Prevention of Corruption Act (II of 1947), S. 6.
The sanction for a prosecution of a public servant was it the following term:‑
"Whereas from the reports available before me in connec tion with Brahmanbaria, P. S. Case No. 27 dated 18‑8‑57 it appears that there are sufficient materials to suggest that Constable No. 226 Jainulla and Constable No. 169 Gazi Julfiqar of Brahmanbaria P. S, have committed an offence under section 161/342, P. P. C., and section 5 of Act II of 1947.
Now, therefore, in exercise of the power conferred upon me. I do hereby accord sanction for the prosecution of Constable No. 226 Jainulla and Constable No. 169 Gazi Julfiqar for the said offence."
It was argued that as neither the sanction itself showed that the sanctioning authority gave the sanction in respect of the facts constituting the offence charged nor there was evidence to show that the facts constituting the offence were placed before the sanctioning authority, the sanction was invalid Held, that the mention of the words ". . . sufficient materials to suggest . . . . ." in the sanction showed that the facts constituting the offence were placed before the sanctioning authority and the sanctioning authority applied its mind to the facts before giving the decision for sanction. From the words in the sanction to the effect " . . . . . from the reports available before me . . . . ." it appeared that the sanctioning authority examined the report and on such examination found sufficient materials for giving sanction for prosecution of the accused. Official acts carry the presumption that these are done with regularity. So the presumption was that the sanctioning authority gave the sanction after consideration of all the materials constituting the offence which were placed before it. The sanction given in the case was, therefore, proper.
Gokulchand Dwarkadas Morarka v. The King P L D 1941 P C 11 distinguished.
Moinul Huq for Petitioner.
Salahuddin Ahmad for the State.
Appellant Jainullah was convicted under section 161 of the Pakistan Penal Code and was sentenced to rigorous imprisonment for one year and a half and also to pay a fine of Rs. 200, in default to rigorous imprisonment for four months more by Mr. A. H. Choudhury, Special Judge, Chittagong Division, on 11‑1‑60. The appellant was also convicted under section 5 (2), of the Prevention of Corruption Act, 1947, (Act II of 1947), but no separate sentence was passed against him under that count. Another Constable, namely, Julfiqar Gazi, was also tried with the appellant being charged under section 161/109 of the Pakistan Pcnal Code for abetting the appellant Jainullah in accepting the illegal gratification but he was acquitted by the learned Judge.
2. Briefly stated, the prosecution case is that in August 1957, appellant Jainullah and the acquitted accused Julfiqar Gaki were attached as Constables to j3rahmanbaria Police Station. In 197 complainant P. W. 1 Abdul Hamid alias Kala Mia was President of the Natai Union Board within the Brahmanbaria Sub‑Division. On 17‑8‑57 at about 11 p.m. appellant Jainullah and accused Julfiqar Gazi went to the house of the complainant P. W. I Abdul Hamid at village Boraharan by the boat of P. W. 3 Asab Ali, and took meals there. After taking meal, they returned to the boat. On the following morning at about 6 a. m. they again went to the house of P. W. 1 and intimated him that his presence was required before P. W. 8, O/C, Brahmanbaria namely, Muhammad Nurul Huq Choudhury, who had come to Bhatpara. On getting this information, P. W. 1 started for Bhatpara by the same boat with the appellant and the other accused. On the way, he picked up the Union Board clerk P. W. 2 Abdur Rahman in the boat. After the boat proceeded to some extent, appellant showed P. W. 1 a warrant of ‑ arrest issued against him in connec tion with G. R. Case No. 16 of 1956 under section 6 of the Food Act of 1956. P. W. 1 at once brought to his notice that he was already allowed bail by the Court on 16‑8‑57 and that intimation of the bail was sent to Brahamanbaria Police Station. Without paying any heed to this, appellant put P. W. 1 under arrest and demanded Rs. 500 as illegal gratification as the condition precedent to his release. P. W. 1 then sent his clerk P. W. 2 to his house (house of P. W. 1) to bring the money. After P. W. 2 had left, P. W. 5 Abdul Mannan came to the boat. P. W. 1 asked him to go with his son P. W. 7 Fariduddin Ahmad to Brahmanbaria Police‑Station to enquire why he was again put under arrest by Constables though he was released on bail from Court on 16‑8‑57. At about 9 a. m. P. W. 2 Abdur Rahman returned to the boat with the sum of Rs. 194, as the full amount of Rs. 500 could not be collected by him. P. W. 4 Abdul Waheed, Abdus Samad and Abdus Sattar also came to the boat with P. W. 2. Abdus Samad and Abdus Sattar are since dead. At the order of P. W. 1, P. W. 2 gave the money (Rs. 194) to the appellant in the boat. After accept ing the money, appellant kept it in his left breast pocket but he did not release P. W. 1 as the full amount of Rs. 500 was not paid. The boat proceeded towards Brahmanbaria. When the boat reached Dariapur village P. W. 5 Abdul Mannan returned with the letter Exh. 3 from P. W. 8 Muhammad Nurul Huq Chowdhury, Officer‑in‑Charge, Brahmanbaria Police‑Station, directing the appellant to release P. W. 1. But the appellant refused to release P. W. 1 unless the balance of Rs. 306 would be paid. Appellant took the complainant by the boat to Brahmanbaria Police‑Station Gnat and therefrom went to the Police‑Station with the complainant. He produced the com plainant before P. W. 8 P. Ws. 2, 3 and 4 also went to the Police‑Station with the appellant and the complainant fray the Ghat. P. W. 6 Abdul Mannan Khan and P. W. 7 Farduddin Ahmad also went to the Police‑Station at that time. As soon as P. W. 1 was produced before P. W. 8. P. W. 1 told him that the appellant took the sum of Rs. 194 as illegal gratification from him and that the money was in the breast pocket of the appellant. P. W. 8 at once searched the appellant, in presence of P. Ws. 1 to 7 and seized the sum of Rs. 194 from his left breast pocket and prepared the seizure list Exh. 6. Complainant lodged the written F. I. R. Exh. 7 at 1 p. m. After filling up the. F. I. R. form, P. W. 8 took permission from the Sub‑Divisional Officer, Brahmanbaria, for investigation. On getting the per mission, he put the appellant under arrest and started investiga tion. Sanction was also obtained for the prosecution of the appellant from the Superintendent of Police, Tippera. On completion of investigation, P. W. 8 submitted charge‑sheet against the appellant and the acquitted accused on 25‑3‑58.
3. Defence is that the appellant arrested the complainant in execution of the warrant of arrest in connection with a criminal case under the Food Act and proceeded with him by the boat of P. W. 3 upto Bhatpara village. When the boat reached Bhatpara village, complainant sent P. W. 2 Abdur Rahman to his house. After sometime P. W. 2 returned accompanied by several persons who were armed with lat .his, pajans and other weapons. All these persons threatened to attack the appellant unless he would release the complainant and they forced him to take Rs. 194 for releasing the appellant. Out of fear, appellant accepted the money. But the appellant did not release the complainant, as the money was paid to him as bribe for release. So he and the other Constable took the appellant to Brahnanbaria Police Station, produced him before the Officer‑in‑Charge, P. W. 8, and placed the money before him telling him that the complainant paid the money as illegal gratification for his release after arrest on the basis of the warrant. Appellant is innocent. He did not make any demand for any illegal gratification.
4. Eight witnesses were examined on the side of the prosecution and three witnesses were examined on the side of the defence.
5. The learned Special Judge believed the P. Ws. and disbelieved the D. Ws. On a consideration of the evidence, the learned Special Judge found the appellant guilty and passed the sentence against him already stated. So, this appeal. The other accused was acquitted.
6. The first point pressed on behalf of the appellant is that the trial is vitiated as the investigation has been made by P. W. 8 Muhammad Nurul Huq Chowdhury, Officer‑in‑Charge, Brahmanbaria P. S., an officer below the rank of Deputy Superintendent of Police, in contravention of the provisions of section 5‑A of the Prevention of Corruption Act, 1947. This contention cannot be accepted because there is the evidence of P. W. 8 to the effect that he took permission of the Sub‑Divisional Officer and then started the investigation.
7. The learned Advocate for the appellant argued the verbal statement of P. W. 8 about taking permission cannot be believed, as P. W. 8 made mention of getting written permission and as no such written permission was produced. P. W. 8 stated that he did not find the written permission in the record at the time of his deposition. After this statement, it was not suggested to him that he did not take any permission at all from the Sub‑Divisional Officer, Brahmanbaria, before the start of the investigation. In the circumstances, the argument that no per mission was taken by P. W. 8 from the Sub‑Divisional Officer before the start of the investigation, cannot be accepted. We have no reason to disbelieve P. W. 8. There is no suggestion of any enmity between P. W. 8 and the appellant. We are satisfied that P. W. 8 held investigation after obtaining permission from the Sub‑Divisional Officer.
8. Conceding for the sake of argument that no permission was taken by P. W. 8 from the Sub‑Divisional Officer before start of the investigation; that would not vitiate the trial, as infringement of section 5‑A of the Prevention of Corruption Act, 1947 will be an irregularity within the ambit‑of section 537 of the Code of Criminal Procedure and unless it has caused actual prejudice to the accused, it cannot be held to have vitiated the trial. The trial Court is to decide the case on the face of the evidence before it. The fact that evidence was collected by an agency not authorised by law to do so cannot deprive the Court of its inherent jurisdiction to, try it. In this case it cannot be said that the appellant has been in any way prejudiced for the fact that the investigation was made by P. W. 8, the Officer‑in -Charge of Brahmanbaria.
9. The learned Advocate for the appellant argued that P. W. ft wrote tie F. I., R. ,form and so he should not have investigated this case. The fact that P. W. 8 filled up the F. I. R. form Exh. 7) cannot be a ground for holding that the accused has been prejudiced. If P. W. 8 had been on inimical terms with the appellant or that there was ill feeling between the two, then only the contention that the appellant was prejudiced because of the investigation by P. W. 8, could arise.
10. The learned Advocate referred to the case of Sudhir Kumar v. The State (A I R 1953 Cal. 226), in support of his contention that non‑compliance with the provisions of section 5‑A of the Prevention of Corruption Act vitiates a trial. That was a decision of a single Judge. It was laid down in, that case that the failure to comply with the proviso to section 3. Prevention of Corruption Act is an illegality vitiating the entire trial. But in the case of the Crown v. Nur Alam (P L D 1955 Lah. 667), a Division Bench of the Lahore High Court held that the infringement of the proviso to section 3 of the Prevention of Corruption Act should be regarded merely as an irregularity falling within the ambit of section 537 of the Criminal Procedure Code and unless it has caused actual prejudice to the accused, it should not be held to vitiate the trial. The principle laid down in the above mentioned case has been followed by a Division Bench of this Court in the case of Abdur Noor alias Nur Meah (P L D 1958 Dacca 145). It has been laid down in that case that tinder the proviso to section 3 of the Prevention of Corruption Act, 1947 (now section 5‑A of the same Act) no officer below the rank of a Deputy Superintendent of Police shall investigate any offence under sections 161 and 165 of the Pakistan Penal Code, without the order of a Magistrate of the First Class but 'if any Police Officer actually investigates arty such offence without such order in contravention of the proviso the trial of the case will not be vitiated thereby. We are bound by this decision of our High Court.
11. In the circumstances, we are of the view that there has been no illegality in the investigation of this case.
12. The second point urged is that the trial is illegal as there was no valid sanction for prosecution of the appellant. It was argued that as neither the sanction itself shows that the sanctioning authority gave the sanction in respect of the facts constituting the offence charged nor there is evidence to show that the facts constituting the offence were placed before the sanctioning authority, the sanction is invalid. In support of this contention reference was made to the case of Gokalchand Dwarkadas Morarka v. The King (PLD 1948 PC 11). That was a case in which the accused was convicted of an offence under clause 18 (2) of the Cotton Cloth and Yarn (Control), Order, 1943. Section 23 of that Order requires sanction for prosecu tion for contravention of any of the provisions of the order. While allowing the appeal their Lordships of the Judicial Com mittee held that a sanction which simply names a person to be prosecuted and specifies the provision of the Order which he is alleged to have contravened is not a sufficient compliance with clause 23. It was held that in order to comply with the provisions of clause 23 it must be proved that sanction was given in respect of the facts constituting the offence charged are not so on the face of the sanction, the prosecution must prove by extraneous facts that facts were proved before the sanctioning authority. But the facts of the present case are distinguishable from the facts of the above mentioned case. The sanction in the above mentioned case is in the following terms : ‑
"Sanction to prosecute.
(Signed) H. N. G.
Cotton Cloth and Yarn (Control) Order, 1943.
Contravention of the provisions Prosecutions for ---
Government of Bombay
Finance Department (Supply)
Resolution No. 518.
Bombay Castle, 5th January, 1945.
Endorsement from the District Magistrate, Sholapur, No. XIX/4500, dated 8th November 1944.
Resolution :‑Government is pleased to accord sanction under clause 23, Cotton Cloth and Yarn (Control) Order, 1943; to the prosecution of Mr. Gokulchand Dwarkadas Morarka for breach of the provisions of clause 18 (2). of the said Order.
By Order of the Government of Bombay, (Signed).
Deputy Secretary, to Government, Bombay."
But the sanction order given in this case is in ‑the following terms:‑
Whereas from the reports available before me in connection with Brahmanbaria P. S. Case No. 27 dated 18‑8‑57 it appears that there‑ are sufficient materials to suggest that constable No. 226 Jainullah and constable No. 169 Gazi Julfiqar of Brahmanbaria P. S., have committed an offence under section 161/342, P. P. C., and Section 5 of Act II of 1947.
Now, therefore, in exercise of the power conferred upon me. I do hereby accord‑ sanction for the prosecution of constable No. 226 Jainullah and constable No. 169 Gazi Julfiqar (at present under suspension) for the said offence under section 161/342, P. P. C., and section 5 of Act II of 1947.
(Sd.) Illegible.
18‑3‑58.
(Syed Mannan Baksh).
Superintendent of Poliae,
Tippera, Comilla."
In the case of Gokulchand Dtvarkadas Mdrarka v. The King, the sanction merely specified the accused as the person to be prosecuted and the clause of the order which he is alleged to have' contravened. But in the sanction Exh. 8 quoted above there is mention of this fact that the materials to suggest that the accused constables committed an offence under section 161/342 of the Pakistan Penal Code and under section 5 of Act II of 1947 were before the sanctioning authority. So, the sanction in the present case, besides specifying the name of accused and the offences alleged to have been committed by them, also made mention of the materials which suggested the commission of the offence. The mention of the words "* 4 * sufficient materials to suggest * * * *" in the sanction go to show that the facts constituting the offence were placed before the sanctioning authority and the sanctioning authority applied its mind to the facts before giving the decision for sanction.
13. The learned Advocate for the appellant has submitted that the evidence of P. W. 8 is merely to the effect that he obtained sanction from the Superintendent of Police and that as he did not state that the facts constituting the offence were reported to the Superintendent of Police, it cannot be held that the sanctioning authority had the facts constituting the offence before it. This contention has no force because it is mentioned in the sanction itself that from the report available before the sanctioning authority there were sufficient materials to suggest about the commission of the offences under section 161/342 of the Pakistan Penal Code and under section 5 of the Act II of 1947.
14. It was argued that there was no valid sanction as the sanctioning authority itself did not appreciate the materials constituting the offence and acted duly on the report of somebody else. This contention also cannot be accepted because in the' sanction it is mentioned that from the report available before the sanctioning authority it appeared that there were sufficient materials for giving sanction for prosecution of the accused. From the words in the sanction to the effect "* * * * * from the report available before me * * * * *" it appears that the sanctioning authority examined the report and on such examination found sufficient materials for giving sanction for prosecution oil the accused: If the words "from the reports available before me" were not there, then only the contention that the sanctioning authority did not itself, apply its mind to the materials constituting the offence would have some force. We hold that the facts constituting the offence were placed before the sanction ing authority and the sanctioning authority after, application of its mind to the facts gave the sanction. It also may be, noted here that the official acts carry the presumption that these are done with regularity. So, there is also the presump tion that the sanctioning authority gave the sanction after consideration of all the materials constituting the offence which were placed before it. We, therefore, hold that there was proper sanction in this case.
15. Defence case that the appellant was forced to accept Rs. 194 as illegal gratification out of fear is not supported by the evidence of any of the D. Ws. Moreover, they were not present at the time of the payment of the sum of Rs. 194 to the appellant. Further, defence case is improbable in itself. Had he been forced to accept the sum of Rs. 194 he would also be forced to release the man. Again, if men of the side of the accused had taken recourse to force the question of payment of illegal gratification would never arise.
16. There is no ground to interfere with the conviction and the sentence passed by the learned Special Judge. The appeal is accordingly, dismissed and the conviction and sentence of the appellant are upheld. We further direct that the appellant will now surrender to his bail bond forthwith to serve out the remainder of the sentence imposed upon him.
.--‑I agree.
K. B. A. Appeal dismissed.
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