TMI Blog2006 (8) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. 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 ₹ 6,73,203.69p. including loans and advances during the aforesaid check period, the respondent and his family members had expended ₹ 3,31,068.75p.; and acquired assets both movable and immovable worth ₹ 11,66,873.84p. during the said period. It was also alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sufficient and cogent reasons to accept the report of the Engineer appointed by the prosecution, the same should not have been reversed by the High Court. iv) The High Court also committed an error in calculating the household expenditure of the respondent. Mr. A.T.M. Ranga Ramanujam, learned Senior Counsel appearing on behalf of the respondent, however, submitted : (i) The learned Special Judge committed a manifest error in so far as he failed to take into consideration that the investigation carried out by the P.Ws. 41 and 42 was wholly illegal having not been carried out under the authorization of the Superintendent of Police; and (ii) No document having been brought on the records to show that P.W.37 Shri Debaraj Panda was delegated with the power to accord sanction of prosecution as against the respondent, the same was vitiated in law. Although, we have strong reservation in regard to the manner in which the High Court dealt with the entire appeal, but we are satisfied that the investigation carried out by the Investigating Officers was wholly unfair. We, for the reasons stated hereinafter, are also of the opinion that the P.W.37 could not be said to have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution 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. Shri K. Biswal, the Investigating Officer, while examining himself as P.W.41, admitted that he had not filed any authorization letter stating : I have received the specific authorisation from S.P., C.B.I., to register a case but I have not filed the said authorisation letter. No explanation has been offered therefor. Even no attempt was made to bring the said document on record at a later stage. Although a specific contention was raised in that behalf on behalf of respondent, the learned Special Judge negatived the same holding : It is contended that P.Ws. 41 and 42 failed to produce orders of the Superintendent of Police, C.B.I., Visakhapatnam which are mandatory under the second proviso to section 17 of the Prevention of Corruption Act, for any Inspector of Police to take up investigation into an offence under Section 13(1)(e) of the Act. No doubt, the prosecution did not file the orders of the Superintendent of Police, C.B.I., Visakhapatnam in this regard. But, P.W.41 deposed that he registered this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) was competent to grant previous sanction under Section 6(1) of the Prevention of Corruption Act. P.W. 1's assertion that the appellant could have been removed from his office either by the Deputy Agent Personnel or by himself was challenged in his cross-examination. The trial court as well as the High Court have relied on the oral evidence of P.W. 1 in coming to the conclusion that the sanction granted is valid. In our opinion those courts erred in relying on oral evidence in deciding the validity of the sanction granted. Hence, we asked the learned counsel for the respondent to satisfy us with reference to the rules on the subject that P.W. 1 was competent to remove the appellant from his office. For this purpose we granted him several adjournments. Though our attention has now been invited to some rules, those rules do not establish that P.W. 1 was competent to grant the sanction in question. As per Rule 134 of the Indian Railway Establishment Code, published in 1959, authorities competent to make first appointment to non-gazetted posts in the Indian Railways are the General Manager, the Chief Administrative Officer or lower authority to whom he may delegate power. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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