Transcript Slide 1

Investigation of Cases Under
Prevention of Corruption Act
1
Section-7 of P.C.Act
Accept 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 Pasayat
R V Raveendran
Link
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Section 7, 13(1)(d), 13(2) of PC ACT
Small 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/s
STATE OF GUJARAT, RESPONDENT.
2012-(007)-SCC -0080 -SC ,
2012-(099)-AIR -2263 -SC
Decided on 29/05/2012
JUDGE(S) : B S Chauhan
Dipak Misra
Link
5
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/s
State of Himachal Pradesh ….. Respondent
CRIMINAL APPEAL NO.2271 of 2011,
Supreme Court, decided on 03/03/2014
Judge Dr. B.S. CHAUHAN, J.
Link
7
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.
8
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
Witnesses PW1 & PW2 turned hostile & stated
that accused has not demanded bribe. S.C.
directed to prosecute PW1 & PW2 for perjury.
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
10
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
Link
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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.
13
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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Preliminary enquiry is also part
of Investigation
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
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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.
16
STATE OF BIHAR ETC.
v/s
P.P. SHARMA, IAS AND ANR. :RESPONDENT
decided on 02/04/1991
1991 AIR 1260 1991 SCR (2) 1
1992 SCC Supl. (1) 222 JT 1991 (2) 147
1991 SCALE (1)539
JUDGES: KULDIP SINGH (J)
RAMASWAMY, K.
Link
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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.
18
HAZARI LAL
Vs.
DELHI ADMINISTRATION : RESPONDENT
decided 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.
20
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., PETITIONERS
v/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. : RESPONDENT
decided on 21/04/1987
CITATION:
1987 AIR 1713 1987 SCR (2)1108
1987 SCC (3) 465 JT 1987 (2) 555
1987 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
30
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
31
Link
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
Link
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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."34
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
35
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
36
Link
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
Evidence by video conferencing
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
Link38
Sanction order issued by Government
Many 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.
40
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.
41
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/s
C.Nagaraja swamy
2005 Cr.L.J. page 4534
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