REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1781 OF 2009  

VINOD KUMAR GARG ….. APPELLANT(S)

VERSUS

STATE (GOVERNMENT OF NATIONAL  CAPITAL TERRITORY OF DELHI) ….. RESPONDENT(S)

J U D G M E N T

SANJIV KHANNA, J.

The impugned judgment dated 7th January 2009 passed by

the High Court of Delhi upholds conviction of Vinod Kumar Garg

(‘the  appellant’,  for  short)  under  Sections  7  and  13  of  the

Prevention of Corruption Act, 1988 (‘the Act’, for short) imposed by

the Special Judge, Delhi vide judgement dated 27th March 2002.

The  appellant  has  been  sentenced  to  undergo  rigorous

imprisonment for one and a half years, and fine of Rs. 1,000/- for

each  offence  and  in  default  of  payment  to  undergo  simple

imprisonment  for  three  months  on  both  counts  separately.  The

sentences have been directed to run concurrently.   

Criminal Appeal No. 1781 of 2009 Page 1 of 24

2. Challenging the conviction,  the learned senior  advocate for  the

appellant submits that there are major contradictions on material

aspects in the testimonies of  the complainant Nand Lal  (PW-2)

and the panch witness Hemant Kumar (PW-3). Nand Lal (PW-2) in

his court testimony recorded on 9th July 1999 had denied to having

paid any money to the appellant prior to lodging of the complaint,

but in his complaint (Exhibit PW-2/A) dated 2nd August 1994, Nand

Lal  (PW-2) had alleged that  he had fifteen days back paid Rs.

500/-  to  the  appellant.  Further,  Nand  Lal  (PW-2)  in  his

examination-in-chief on hand-wash had claimed that it was taken

and perhaps polythene bag was also washed, but in his cross-

examination PW-2 had accepted that hand-wash of the appellant

was not taken. Similarly, Hemant Kumar (PW-3) had contradicted

the version in his examination that the pant wash of the accused

was  taken  at  the  Anti-Corruption  Branch,  as  in  his  cross-

examination Hemant Kumar (PW-3) had accepted the suggestion

that  the hand-wash and pocket  wash were not  taken after  the

appellant was apprehended. Inspector Rohtash Singh (PW-5) who

had conducted the raid has admitted that he had not taken the

hand-wash  or  the  pant  wash  of  the  appellant  from  which  the

polythene  packet  containing  the  bribe  money  was  allegedly

seized. Further, the testimonies of Nand Lal (PW-2) and Hemant

Criminal Appeal No. 1781 of 2009 Page 2 of 24

Kumar (PW-3) reveal a major dichotomy on the amount that the

appellant  had  allegedly  demanded  as  bribe.  In  his  cross-

examination Nand Lal (PW-2) had denied the suggestion that the

appellant had asked for Rs. 2,000/- to be paid separately by Nand

Lal (PW-2) and Hemant Kumar (PW-3) as the two were partners,

contrary to the version given by Hemant Kumar (PW-3) who had

deposed that the appellant had told them in the gallery that each

of them should pay Rs. 2,000/-.  There is a contradiction in the

testimony of Nand Lal (PW-2) and Hemant Kumar (PW-3) as to

the place where the allegedly bribe money was asked and paid to

the appellant. As per Nand Lal (PW-2) the bribe was asked and

paid in the garment shop, whereas Hemant Kumar (PW-3) has

denied that the payment took place inside the cloth shop. Drawing

our attention to the version of Nand Lal (PW-2), it was submitted

that  Hemant Kumar (PW-3) was not an eyewitness or a panch

witness to the demand and payment of alleged bribe money. In

view  of  the  irreconcilable  versions  of  the  two  witnesses,  the

appellant  is  entitled  to  benefit  of  doubt.  Further,  there  is  no

evidence  or  document  to  show that  Nand Lal  (PW-2)  was the

tenant in the shed for which the appellant had statedly asked for

bribe money to provide the electricity meter. Anil Ahuja (PW-6), the

owner of the shed has not supported the case of the prosecution

Criminal Appeal No. 1781 of 2009 Page 3 of 24

and had contradicted the claim made by Nand Lal (PW-2) in his

complaint (Exhibit PW-2/A).  

3. On the question of demand and payment of bribe for performance

of public duty or forbearance to perform such duty, we would read

the  testimonies  of  the  complainant  –  Nand  Lal  (PW-2),  panch

witness  –  Hemant  Kumar  (PW-3),  and  the  Inspector  of  Anti-

Corruption Branch – Rohtash Singh (PW-5) in unison. Nand Lal

(PW-2)  has  deposed  having  visited  the  DESU  office  and  his

meeting with Inspector Yadav for installation of electricity meter in

the shed for a fan and a light. Nand Lal (PW-2) after shifting his

goods etc.  to the shed had again visited the DESU Office and

learnt that Inspector Yadav had been transferred. Nand Lal (PW-2)

had met his successor-the appellant, who had asked him to move

an application for providing a meter for the electricity connection.

The appellant had also stated that electricity could be provided

without meter for which Nand Lal (PW-2) was asked to pay bribe

of  Rs.2,000/-.  Thereupon,  Nand Lal  (PW-2)  had  expressed his

inability to pay Rs.2,000/- in lumpsum but he could pay the bribe

amount in instalments of Rs.500/- each, which the appellant had

agreed and accepted. Thereafter, Nand Lal (PW-2) had visited the

Anti-Corruption Branch and lodged his complaint  on 2nd August

1994 vide Exhibit PW-2/A that was signed by him at Point A. Both

Criminal Appeal No. 1781 of 2009 Page 4 of 24

Hemant Kumar (PW-3) and Inspector Rohtash Singh (PW-5) have

in seriatim confirmed the relevant ensuing events.  Nand Lal (PW-

2),  Hemant  Kumar  (PW-3)  and  Rohtash  Singh  (PW-5)  have

affirmed that Nand Lal (PW-2) had produced five currency notes of

Rs.100/- each, the serial numbers of which were duly recorded

and the notes were sprinkled with powder.  The three had then

along with other members of the raiding team proceeded to the

DESU office  but  the  appellant  had  asked  Nand  Lal  (PW-2)  to

come on the next  day,  as the work would not  be done on 2nd

August 1994. On 3rd August  1994,  Nand Lal  (PW-2)  had again

visited  the  Anti-Corruption  Branch  office  where  Hemant  Kumar

(PW-3) and Rohtash Singh (PW-5) were present.  The currency

notes were again subjected to chemical treatment and the raiding

party had proceeded to the DESU office. Nand Lal (PW-2) and

Hemant  Kumar  (PW-3)  had  met  the  appellant,  who  had  then

asked Nand Lal (PW-2) to wait on the appellant’s scooter parked

outside the office.  After some time, the appellant came out of the

office. He started the scooter and they drove for about 50 yards

with Nand Lal (PW-2) sitting on the pillion seat. Nand Lal (PW-2)

in his deposition has stated that he had asked the appellant to

stop the scooter as the third person – Hemant Kumar (PW-3) was

also accompanying them.  

Criminal Appeal No. 1781 of 2009 Page 5 of 24

4. Thereafter, there is divergence in the version given by Nand Lal

(PW-2) on one side and the version given by Hemant Kumar (PW-

3) and Rohtash Singh (PW-5). Nand Lal (PW-2) has testified that

the appellant  after  stopping the scooter  went  inside a  garment

shop. He had then asked Nand Lal (PW-2) to come inside. Nand

Lal (PW-2) proceeded inside. The appellant had then demanded

money from Nand Lal (PW-2) – “lao, paise do”. The appellant had

procured one polythene bag and Nand Lal (PW-2) was asked to

put  the  money  in  the  polythene  bag  and  thereafter  put  the

polythene bag in  the  appellant’s  pocket.  Nand Lal  (PW-2)  had

suggested that he would give money in the presence of the other

person,  i.e.,  Hemant  Kumar (PW-3),  which suggestion was not

accepted by the appellant. Nand Lal (PW-2) is, however, categoric

that he had as directed put the money in the pocket of the pant of

the appellant. Thereafter, Nand Lal (PW-2) went outside and gave

signal to the witness Hemant Kumar (PW-3) who started to move

towards him. The appellant came out of the shop. Nand Lal (PW-

2) also accepts that Hemant Kumar (PW-3) had given signal to the

raiding team who reached the spot and had caught hold of the

appellant. From the pant pocket of the appellant, a polythene bag

containing the currency notes was seized. Thus, Nand Lal (PW-2)

accepts that bribe was demanded and paid and that the tainted

bribe money was recovered from the appellant by Rohtash Singh Criminal Appeal No. 1781 of 2009 Page 6 of 24

(PW-5)  in  his  presence and in the presence of  Hemant Kumar

(PW-3).

5. Hemant Kumar (PW-3) has on the other hand unfailingly affirmed

that he had joined the raiding team as panch witness and that

Nand  Lal  (PW-2)  had  recorded  his  statement/complaint  vide

Exhibit PW-2/A. Hemant Kumar (PW-3) has deposed as to the five

currency notes of Rs. 100/- each given by the complainant to the

Anti-Corruption  Branch  office  on  which  phenolphthalein  powder

was coated. Instructions were given. On 2nd August 1994 at about

10:00 -10:30 a.m., the raiding team had visited the DESU office

but the appellant had asked Nand Lal (PW-2) to come on the next

day. On 3rd August 1994 at 9:30 a.m. Hemant Kumar (PW-3) had

visited the Anti-Corruption Branch office.  Nand Lal  (PW-2)  was

present and the entire exercise of powdering the currency notes

etc. was repeated. Hemant Kumar (PW-3) and Nand Lal (PW-2)

along with the raiding team had reached the DESU office at about

10:00 a.m. The appellant took Nand Lal (PW-2) outside the DESU

office and they drove away on the scooter. Hemant Kumar (PW-3)

had followed them on foot. The scooter was driven to a distance of

about 50 yards from the DESU office. Thereupon, the appellant

and Nand Lal  (PW-2)  had proceeded near  a cloth shop where

Nand  Lal  (PW-2)  had  handed  over  the  tainted  money  to  the

Criminal Appeal No. 1781 of 2009 Page 7 of 24

appellant after placing it in a polythene bag in his presence. The

appellant had kept the polythene bag with the currency notes in

the  right-side  pant  pocket  of  the  appellant.  The  raiding  party

arrived at  the spot and recovered the notes from the right-side

pocket of the pant of the appellant.  The notes were tallied with the

numbers already noted and the same were seized by Exhibit PW-

2/C.  Thereupon,  the  appellant-accused  was  taken  to  the  Anti-

Corruption Branch.  

6. The two testimonies of Nand Lal (PW-2) and Hemant Kumar (PW-

3) on visit by the raiding team to the DESU office on 2nd August

1994 when the appellant had asked Nand Lal (PW-2) to come on

the  next  day;  that  on  3rd August  1994  Nand  Lal  (PW-2)  and

Hemant  Kumar  (PW-3)  along  with  the  raiding  team  had

accordingly again visited the DESU office; that the appellant and

Nand Lal (PW-2) had travelled on the scooter for a short distance;

and that Hemant Kumar (PW-3) had followed them on foot, are

affirmed  by  Inspector  Rohtash  Singh  (PW-5)  who  has  also

identically deposed, albeit he was not the person who had initially

interacted with the appellant at the DESU office.

7. On the succeeding events, Rohtash Singh (PW-5) in his testimony

has affirmed the narration of facts as stated by Hemant Kumar

Criminal Appeal No. 1781 of 2009 Page 8 of 24

(PW-3).  Hemant  Kumar  (PW-3)  gave  a  signal  and  accordingly

members  of  the  raiding  team  had  reached  the  spot  and

apprehended  the  appellant.  Rohtash  Singh  (PW-5)  had  then

disclosed his identity to the appellant and had challenged him that

the appellant had accepted the bribe money from Nand Lal (PW-

2). Rohtash Singh (PW-5) had offered for his search, but it was

refused  by  the  appellant.  The  appellant  was  searched  and

polythene  bag  containing  five  Rs.100/-  currency  notes  was

recovered from the right-side pant pocket of  the appellant.  The

five notes were marked P-3 to P-7 and were seized vide seizure

memo PW-2/C. The numbers on the currency notes were tallied

with the pre-raid report and were found to be the same.

8. Even if  we are  to  accept  the version of  Nand Lal  (PW-2),  the

appellant  had asked for  the  bribe  money that  was paid  to  the

appellant and at best at that time Hemant Kumar (PW-3) was not

physically present inside the shop and was standing outside the

shop. Nand Lal (PW-2) in his examination-in-chief has stated that

the appellant had demanded money from him saying – “Lao paise

do”. Thereafter, Rs. 500/- were paid as bribe by Nand Lal (PW-2)

to  the  appellant  in  a  polythene  bag  which  was  put  in  the

appellant’s  pant  pocket  as  was  directed  by  the  appellant.  The

presence  of  Hemant  Kumar  (PW-3)  in  the  immediate  vicinity

Criminal Appeal No. 1781 of 2009 Page 9 of 24

remains unchallenged. In either case, we do not think that  this

deviation and incongruity  between the depositions by Nand Lal

(PW-2) and Hemant Kumar (PW-3) should result in the acquittal of

the appellant. These deviations between the testimonies of Nand

Lal (PW-2) and Hemant Kumar (PW-3) does not mean that the

demand and payment of bribe, the trap and seizure of the bribe

paid  is  not  proved.  The  testimony  of  Rohtash  Singh  (PW-5)

bolsters our findings. Rohtash Singh (PW-5) has deposed about

the recovery of bribe money on lines similar to the version of Nand

Lal (PW-2) and Hemant Kumar (PW-3). It appears that Nand Lal

(PW-2) had either tried to help the appellant but was unable do so

in view of  the documentary evidence in  the form of  his  written

complaint – Exhibit  PW-2/A signed by him at point A and other

documents prepared at the spot with his signature, or because of

the time gap had forgotten some facts. On the first aspect relating

to the contemporaneous documents, we would refer to the cross-

examination  of  Nand  Lal  (PW-2)  by  the  Additional  Public

Prosecutor on 14th September 1999 which reads as under:

“...I  cannot say whether the numbers of the said GC notes were found to be same which were mentioned in the pre-raid report. It is wrong that I am not intentionally disclosing this fact. It is correct that seizure memo of GC notes were prepared in my presence which is Ex. PW  2/C  which  bears  my  signature  at  point  A.  It  is correct that GC notes Ex. P3 to P7 are the same which were  recovered  from the  possession  of  the  accused and were seized vide memo Ex. PW 2/C. It is correct

Criminal Appeal No. 1781 of 2009 Page 10 of 24

that said polythene bag was got washed in colourless solution  of  sodium  carbonate  and  that  solution  had turned pink and that solution was transferred into two bottles  and  the  bottles  were  properly  sealed  and labeled.  Bottles  are  Ex.  P1 and P2 which bears  my signatures  on  each  bottle  at  point  A.  Polythene  bag wash Ex. P1 and P2 were taken into possession vide seizure memo Ex.PW 2/D which bears my signatures at point  A. Polythene bag is Ex. P8 which bears my signature at point A. Polythene bag Ex. P8 was taken into possession vide memo Ex. PW 2/F which bears my signature at point A.”

9. Turning to the question of washing the polythene bag, the hand-

wash and the pant wash of the appellant, Rohtash Singh (PW-5)

has  stated  that  phenolphthalein  powder  was  applied  to  the

currency notes and after the appellant was detained the polythene

packet was washed and the wash was transferred to the bottles

marked P1 and P2 which were taken into possession vide Exhibit

PW-2/D.  The polythene bag was also seized vide Exhibit PW-2/E.

Raid  memo proceedings  were  marked  as  Exhibit  PW-2/G  and

post-raid proceedings as Exhibit PW-2/K.  The aforesaid exhibits,

i.e. P1 and P2 and the papers prepared have been accepted and

proved in evidence by Nand Lal (PW-2) and Hemant Kumar (PW-

3).  

10. Regarding the hand-wash, Nand Lal (PW-2) could not recollect full

facts  and  had  stated  that  as  far  as  he  could  remember,  the

appellant had given his hand-wash and the polythene bag was

Criminal Appeal No. 1781 of 2009 Page 11 of 24

also washed. Nand Lal (PW-2) had identified his signature on the

bottles  containing the wash of  the polythene bag and also the

signature  on  the  papers  prepared.  Hemant  Kumar  (PW-3)  had

stated that the pant wash was not done. We would observe that

ex facie the hand wash and the pant wash were not done as the

coated money was put in the polythene bag. Polythene bag was

washed and the wash kept in the bottles as has been deposed by

Rohtash Singh (PW-5). Minor discrepancy and inability of Nand

Lal  (PW-2)  and Hemant  Kumar (PW-3)  to remember  the exact

details of whether or not the handwash or pant wash was done

would not justify acquittal of the appellant.  

11. The contradictions that have crept in the testimonies of Nand Lal

(PW-2)  and  Hemant  Kumar  (PW-3)  noticed  above  and  on  the

question of the total amount demanded or whether Nand Lal (PW-

2) had earlier paid Rs.500/- are immaterial and inconsequential as

it is indisputable that the bribe was demanded and taken by the

appellant on 3rd August 1994 at about 10:30 a.m. The variations as

highlighted lose significance in view of  the proven facts on the

recovery of bribe money from the pant pocket of the appellant, on

which depositions of Nand Lal (PW-2), Hemant Kumar (PW-3) and

Rohtash  Singh  (PW-5)  are  identical  and  not  at  variance.  The

money recovered was the currency notes that were treated and

Criminal Appeal No. 1781 of 2009 Page 12 of 24

noted in the pre-raid proceedings vide Exhibit PW-2/G. The aspect

of  demand and payment  of  the  bribe has been examined and

dealt  with  above.  The  contradictions  as  pointed  out  to  us  and

noted  are  insignificant  when  juxtaposed  with  the  vivid  and

eloquent narration of incriminating facts proved and established

beyond doubt and debate. It would be sound to be cognitive of the

time gap between the date of occurrence, 3rd August 1994, and

the dates when the testimony of Nand Lal (PW-2) was recorded,

9th July 1999 and 14th September 1999, and that Hemant Kumar’s

(PW-3) testimony was recorded on 18th December 2000 and 30th

January  2001.  Given  the  time  gap  of  five  to  six  years,  minor

contradictions on some details are bound to occur and are natural.

The witnesses are not required to recollect and narrate the entire

version with photographic memory notwithstanding the hiatus and

passage of time. Picayune variations do not in any way negate

and contradict  the main and core incriminatory evidence of  the

demand of bribe, reason why the bribe was demanded and the

actual taking of the bribe that was paid, which are the ingredients

of the offence under Sections 7 and 13 of the Act, that as noticed

above and hereinafter, have been proved and established beyond

reasonable  doubt.  Documents  prepared  contemporaneously

noticed  above  affirm  the  primary  and  ocular  evidence.  We,

therefore, find no good ground and reason to upset and set aside Criminal Appeal No. 1781 of 2009 Page 13 of 24

the findings recorded by the trial court that have been upheld by

the High Court.  Relevant in this context would be to refer to the

judgment of this Court in State of U.P. v. Dr. G.K. Ghosh1 wherein

it was held that in a case involving an offence of demanding and

accepting illegal gratification, depending on the circumstances of

the case, it may be safe to accept the prosecution version on the

basis  of  the  oral  evidence  of  the  complainant  and  the  official

witnesses even if the trap witnesses turn hostile or are found not

to  be  independent.  When  besides  such  evidence,  there  is

circumstantial  evidence which is consistent  with the guilt  of  the

accused and inconsistent with his innocence, there should be no

difficulty in upholding the conviction.        

12. On the question of reason for the demand and payment of the

bribe, the complainant Nand Lal (PW-2) is categoric that he had

taken industrial  shed in DSIDC area, Welcome Colony,  Seelam

Pur, Delhi on hire from one Anil Ahuja. The shed did not have an

electricity  meter.  Anil  Ahuja,  who  had  appeared  as  PW-6,  had

denied  having  given  the  said  shed  on  rent  and  was  declared

hostile. The testimony of PW-6 is, however, highly doubtful and

not  trustworthy,  for  he  had  failed  and  avoided  to  answer  the

question from whom he had purchased the shed. The fact that the

shed did not have an electricity connection as deposed to by Nand

1 (1984) 1 SCC 254 Criminal Appeal No. 1781 of 2009 Page 14 of 24

Lal  (PW-2)  has  not  been  challenged.  Nand  Lal  (PW-2)  in  his

cross-examination had specifically denied the suggestion that he

has not taken the shed on hire/rent.  Interestingly,  in the cross-

examination one of the suggestions put to Nand Lal (PW-2) was

that he had given an application for electricity connection to the

predecessor  of  the  appellant  and  not  to  the  appellant,  thus,

suggesting  that  Nand  Lal  (PW-2)  wanted  installation  of  an

electricity  meter  for  the  shed.  We  would,  therefore,  reject  the

contention  of  the  appellant  that  Nand  Lal  (PW-2)  had  falsely

deposed that he had taken the industrial shed on hire which did

not  have an  electricity  connection.  The deposition of  Nand Lal

(PW-2) that he wanted an electricity connection to be installed in

the shed should be accepted.  

13. On the said aspect, we would now refer to Section 20 of the Act

which reads as under:  

“20.  Presumption  where  public  servant  accepts gratification other than legal remuneration

(1)  Where,  in  any trial  of  an offence punishable  under Section 7 or Section 11 or clause (a) or clause (b) or sub- section  (1)  of  Section  13  it  is  proved  that  an  accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other  than legal  remuneration)  or  any valuable  thing  from  any  person,  it  shall  be  presumed, unless  the  contrary  is  proved,  that  he  accepted  or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or,

Criminal Appeal No. 1781 of 2009 Page 15 of 24

as  the  case  may  be,  without  consideration  or  for  a consideration which he knows to be inadequate.

(2)  Where  in  any  trial  of  an  offence  punishable  under Section 12 or under clause (b) of Section 14, it is proved that  any gratification (other  than legal  remuneration)  or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may  be,  without  consideration  or  for  a  consideration which he knows to be inadequate.

(3)  Notwithstanding  anything  contained  in  sub-sections (1)  and  (2),  the  court  may  decline  to  draw  the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial  that  no  interference  of  corruption  may  fairly  be drawn.”

The statutory presumption under Section 20 of the Act can be

confuted by bringing on record some evidence,  either  direct  or

circumstantial,  that  the money was accepted other than for  the

motive or  the reward under Section 7 of the Act.  The standard

required for  rebutting the presumption is  tested on the anvil  of

preponderance  of  probabilities  which  is  a  threshold  of  a  lower

degree than proof beyond all reasonable doubt.  

14. In the case at hand, the condition precedent to drawing such a

legal presumption that the accused has demanded and was paid

the  bribe  money  has  been  proved  and  established  by  the

incriminating  material  on  record.  Thus,  the  presumption  under

Section  20  of  the  Act  becomes  applicable  for  the  offence Criminal Appeal No. 1781 of 2009 Page 16 of 24

committed  by  the  appellant  under  Section  7  of  the  Act.  The

appellant  was found in  possession of  the bribe money and no

reasonable  explanation  is  forthcoming  that  may  rebut  the

presumption. Further, the recovery of the money from the pocket

of  the  appellant  has  also  been  proved  without  doubt.  We,

therefore, hold that money was demanded and accepted not as a

legal remuneration but as a motive or reward to provide electricity

connection to Nand Lal (PW-2) for the shed.  

15. Pertinent  in  this  regard  would  be  the  statement  made  by  the

appellant under Section 313 of the Code of Criminal Procedure,

1973 (‘the Code’, for short) wherein in response to most of the

questions, the appellant had expressed his inability to answer or

denied  the  evidence  proved.  The  appellant  had  accepted  his

arrest but had debunked the case as false and the CFSL report

(Exhibit PW-4/A) as biased and motivated. In response to the last

question,  the  appellant  had  alleged  that  Nand  Lal  (PW-2)  and

Hemant Kumar (PW-3) had not supported the prosecution case

and that he was innocent as he had never demanded or accepted

any money as bribe.

16. We would now turn our attention to the two technical objections

taken by the appellant in respect of the sanction order and the

Criminal Appeal No. 1781 of 2009 Page 17 of 24

validity of investigation. In the present case, Navin Chawla (PW-1)

had issued and granted sanction for prosecution of the appellant.

He had deposed that the appellant was working as an inspector in

DESU and he was the competent officer to remove him. He had,

after carefully examining the allegations contained in the material

placed before him, granted the sanction for prosecution vide order

Exhibit PW-1/A. Paragraphs 1 and 2 of the sanction order Exhibit

PW-1/A read:

“Whereas it is alleged that Sh. Vinod Kumar Garg while functioning  as  Inspector,  DESU  (now  DVB)  Office Seelam Pur, Delhi, a public servant in the discharge of this  official  duty  demanded  Rs.  2,000/-  as  illegal gratification from Sh. Nand Lal S/o Shri Megh Raj r/o H.N. 341/20, Mangal Sain Building, Bagh Kare Khan, Delhi-110007 in consideration for installing an electric meter  at  shop  No.  A-2  DSIDC  Welcome  Colony, Seelam  Pur,  Delhi,  without  proper  formalities.  Sh. Vinod Kumar Garg, Inspector, DESU (now DVB) office Seelam Pur, Delhi, demanded, accepted and obtained Rs.  500/-  (second  instalment)  as  illegal  gratification from the complaint.

xx xx xx

Whereas  I,  Navin  Chawla,  Chairman,  D.V.B.,  New Delhi  being  the  authority  competent  to  remove  Sh. Vinod Kumar Garg, DVB Office Seelam Pur, Delhi from office/services  after  fully  and  carefully  examining  the material before me in regard to the said allegation and circumstances of the case consider the said Inspector, Vinod Kumar Garg, DVB Office Seelam Put, Delhi be prosecuted  in  the  Court  of  Law  for  the  said offence/offences.”

Criminal Appeal No. 1781 of 2009 Page 18 of 24

17. Relevant portion of  Navin Chawla’s  (PW-1) examination-in-chief

and the entire cross-examination read as under:

“After  fully  and  carefully  examining  the  allegation contained  in  the  material  placed  before  me and  the circumstances  of  the  case  I  granted  sanction  for prosecution of  Vinod Kumar Garg vide my order Ex. PW 1/A. This order bears my signature at point ‘A’.”  

xx xx xx

Cross-Examination

“I had received a request for grant of sanction from the Anti-Corruption Branch. I had received along with the report of the I.O. calendars (sic  kalandra) of oral and documentary evidence. It is correct that in this case, I had  not  received  copies  of  statements  of  witnesses recorded  u/s.  161  P.C.  (sic  Cr.P.C)  or  the  seizure memos regarding the seizure of the bribe money. I had not received any copy of the report of the C.F.S.L. I had also received a format of the sanction order. I did not verify  from  the  records  of  DESU  whether  the complainant  had applied for  an electric  connection.  I did not verify whether the complaint  was a tenant or allottee of D.S.I.D.C. shed. In fact,  I had granted the sanction only on the basis of the report of the IO and calendars  (sic  kalandra)  of  oral  and  documentary evidence furnished by the Anti-Corruption Branch.”

Navin Chawla (PW-1) was specifically cross-examined and

questioned whether “he had received the copy of the statement of

the  witnesses  recorded under  Section  161  of  the  Code or  the

C.F.S.L  report”.  It  is  obvious  that  he  had  not  asked  for  and

received these reports or the statements under Section 161 of the

Code.  Navin  Chawla  (PW-1)  in  his  cross-examination  was,

however, clear and categoric that he had received the report of the

Criminal Appeal No. 1781 of 2009 Page 19 of 24

Investigating  Officer  along  with  the  kalandra  of  oral  and

documentary  evidence.  The  witness  it  is  apparent  may not  be

familiar with the statements under Section 161 of the Code etc.,

but  he  had  certainly  examined  and  considered  the  relevant

material in the form of oral and documentary evidence that were a

part  and  parcel  of  the  kalandra.  We  have  to  read  the  cross-

examination  of  Navin  Chawla  (PW-1)  in  entirety  and  not  in

piecemeal.  

18. The  appellant  has  relied  upon  the  judgments  of  this  Court  in

Mohd. Iqbal Ahmed v. State of A.P.2 and State of Karnataka v.

Ameerjan3 to  challenge  the  sanction  order.  In  Mohd.  Iqbal

Ahmed  (supra) it was observed that a valid sanction is the one

that is granted by the Sanctioning Authority after being satisfied

that a case for sanction is made out constituting the offence. It is

important to be mindful of the observations made by the Court as

reproduced below:

“3. […] what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same…”

Similarly, in Ameerjan (supra), it was observed:  

“10.  […]  Ordinarily,  before  passing  an  order  of sanction,  the  entire  records  containing  the  materials collected against the accused should be placed before

2 (1979) 4 SCC 172  3 (2007) 11 SCC 273 Criminal Appeal No. 1781 of 2009 Page 20 of 24

the  sanctioning  authority.  In  the  event,  the  order  of sanction does not indicate application of mind as (sic to) the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show materials had in fact been produced.”

Therefore, what the law requires is the application of mind

by the Sanctioning Authority on the material  placed before it  to

satisfy itself of prima facie case that would constitute the offence.

On the said aspect,  the later decision of this Court in  State of

Maharashtra  v.  Mahesh  G.  Jain4 has  referred  to  several

decisions to expound on the following principles of law governing

the validity of sanction:

“14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.

14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.

14.3.  The  prosecution  may  prove  by  adducing  the evidence  that  the  material  was  placed  before  the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.

14.4.  Grant  of  sanction  is  only  an  administrative function  and  the  sanctioning  authority  is  required  to prima  facie  reach  the  satisfaction  that  relevant  facts would constitute the offence.

14.5.  The  adequacy  of  material  placed  before  the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.

4 (2013) 8 SCC 119 Criminal Appeal No. 1781 of 2009 Page 21 of 24

14.6.  If  the sanctioning authority  has perused all  the materials placed before it and some of them have not been  proved  that  would  not  vitiate  the  order  of sanction.

14.7.  The order  of  sanction is  a prerequisite  as it  is intended  to  provide  a  safeguard  to  a  public  servant against  frivolous  and  vexatious  litigants,  but simultaneously  an  order  of  sanction  should  not  be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity.”

The  contention  of  the  appellant,  therefore,  fails  and  is

rejected.  

19. The last contention of the appellant is predicated on Section 17 of

the Act and the fact that the investigation in the present case was

not conducted by the police officer by the rank and status of the

Deputy  Superintendent  of  Police  or  equal,  but  by  Inspector

Rohtash Singh (PW-5) and Inspector Shobhan Singh (PW-7). The

contention has to be rejected for the reason that while this lapse

would be an irregularity and unless the irregularity has resulted in

causing prejudice, the conviction will  not be vitiated and bad in

law.  The  appellant  has  not  alleged  or  even  argued  that  any

prejudice was caused and suffered because the investigation was

conducted by the police officer of the rank of Inspector, namely

Rohtash Singh (PW-5) and Shobhan Singh (PW-7).  

Criminal Appeal No. 1781 of 2009 Page 22 of 24

20. This  Court  in  Ashok  Tshering  Bhutia  v. State  of  Sikkim5

referring to the earlier precedents has observed that a defect or

irregularity in investigation however serious, would have no direct

bearing on the competence or procedure relating to cognizance or

trial. Where the cognizance of the case has already been taken

and the case has proceeded to termination, the invalidity of the

precedent  investigation  does  not  vitiate  the  result,  unless  a

miscarriage  of  justice  has  been  caused  thereby.  Similar  is  the

position with regard to the validity of the sanction. A mere error,

omission or irregularity in sanction is not considered to be fatal

unless it has resulted in a failure of justice or has been occasioned

thereby. Section 19(1) of the Act is matter of procedure and does

not go to the root of the jurisdiction and once the cognizance has

been taken by the court under the Code, it cannot be said that an

invalid police report is the foundation of jurisdiction of the court to

take cognizance and for that matter the trial.  

21. For  the foregoing reasons,  we dismiss the present  appeal  and

uphold the conviction of the appellant under Sections 7 and 13 of

the  Act  and  the  sentences  as  imposed.  The  appellant  would

surrender within a period of four weeks from today to undergo the

remaining sentence.  On failure to surrender, coercive steps would

5 (2011) 4 SCC 402 Criminal Appeal No. 1781 of 2009 Page 23 of 24

be  taken  by  the  trial  court.   All  pending  applications  are  also

disposed of.  

......................................J. (INDU MALHOTRA)

........................................J. (SANJIV KHANNA)

NEW DELHI; NOVEMBER 27, 2019

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