The State v. A.Josemon

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR] ** CRMSPL/1/2021 CRA/14/2019 The State ... Petitioner Vs.

A. Josemon ... Respondent Mr. S. Karmakar, Advocate ... for the petitioner Mr.Gopala Binnu Kumar, Advocate ... for the respondent March 21, 2022 [AKB] Item No.3 & 4 Present CRMSPL 01 of 2021 has been filed by the State seeking leave to file appeal against the judgement and order of acquittal passed in special Case no. 7 of 2014 under section 7 and 13 (1) of Prevention of Corruption Act, 1988 by learned Special Judge (Sessions Judge) on 26th June, 2019.

By filing CRAN No. 26 of 2019, the State/Appellant has prayed for condonation of delay in filing the Appeal and which was allowed on 07.01.2020.

The facts giving rise to the present application in gist is that respondent Shri A Josemon, an Executive Engineer, under APWD and was posted at Construction Division 1, Port Blair when the alleged incident took place. That Anti Corruption Unit Port Blair on complaint made by one R. Veeraraj, a civil contractor who had some grievance against the respondent for non clearance of his pending bills, led a trap on 25.04.2014. That demanded bribe money smeared with a phenolphthalein powder by Anti Corruption Unit was recovered from the table drawer of the respondent at the time of raid in presence of witnesses. That learned trial court after considering both oral and documentary evidence adduced from the side of the prosecution acquitted the respondent from the charges with the finding the prosecution has failed to prove the case beyond reasonable doubt.

It appears before initiating a criminal prosecution against the respondent a government employee, the prosecution had obtained necessary sanction from the authority concerned under section 19 of the Act. At present only issue that need determination is whether to prefer an appeal against the order of acquittal further sanction is required from authority concerned under section 378 (1) (b) of Cr.P.C. or not?

The learned counsel for the respondent submits that appeal being filed without obtaining sanction as contemplated under section 378 (1) (b) of Cr.P.C the present CRMSPL is not maintainable. Learned Counsel for the respondent contended that the section 378 Cr.P.C should be read it as it is and it cannot be interpreted to construe a meaning which is not the actual intention of the legislature. In support of his such contention he referred to Lt. Col. Prithi Pal Singh Bedi vs Union of India reported in AIR 1982 Supreme Court 1413, where it has been held, "The dominant purpose in construing a statute is to ascertain the intention of the parliament.

One of the well recognized canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. The first question to be posed is whether there is any ambiguity in the language used in the provision. If there is none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere else to discover the intention or meaning. It the literal construction leads to an absurdity, external aids to construction can be resorted to.

To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which is enacted and the object which it is required to subserve and the authority by which the rule is framed." He further referred to a decision in State of Karnataka vs Ameer Jan reported in 2007 (6) Supreme 340 and contended that sanction is mandatory in order to file an appeal against the judgement of acquittal. I find the cited decision not applicable to the present case as it relates to pre-prosecution sanction as required under Section 19 of the Act of 1988 and a copy note sheet filed along with supplementary affidavit shows that pre-prosecution sanction was granted by Lieutenant Governor on 05.06.2014.

He also referred to State of Jharkhan vs Jwala Singh, reported in 2002 2 JCR 2, where it has been held that the appeal under Section 378 (1) (b) of the Cr.P.

under instructions from and at the instance of the State Government and that too through a Public Prosecutor. Since the clearance/approval by the State government is that sine qua non to the filing of an appeal by the Public Prosecutor, in the memo of appeal, a specific averment to the aforesaid effect is mandatorily required to be made. Not only that, it is desirable that the Memo of appeal is also accompanied by some documentary evidence/ proof to suggest and establish the fact that the appeal is being filed after the approval accorded by the State Government and that it is being filed by the Public Prosecutor, or by or on his behalf through some Addl. Public Prosecutor, etc.

In the present case, there is no averment to that effect in CRMSPL application or the same being accompanied by any supporting document suggesting that the State Government/Lieutenant Governor had indeed accorded its approval for filing of this appeal.

He also referred to Union Territory of Tripura vs Marfat Ali and others reported in 1958 0 AIR (Gau) 26, wherein it has been held that the power to prefer an appeal against an acquittal has been given to an authority no less than the State Government (the Chief Commissioner in case of the territory of Tripura) with the obvious object that such appeals will be preferred only in cases where there has been a miscarriage of justice so grave as would induce the Government to move in the matter and there by prevent harassment of the accused which might otherwise be the result if the matter is left to others or treated lightly. That proposal to prefer and appeal against an acquittal should have the approval of the Chief Commissioner (State Government), where the liberty of the subject is involved and an appeal sought to be preferred against the order of acquittal. The Statute must be strictly construed and full compliance with its provision required.

From the annexure attached with the affidavit filed by the respondent it appears that Anti Corruption unit, Port Blair had received copy of order of acquittal dated 26.06.2019 passed in Special Case No. 7 of 2014 only on 13.09.2019. That SP, Anti Corruption Unit, Port Blair has given necessary direction to the public prosecutor to file appeal vide letter dated 25th September, 2019. Consequently, public prosecutor appears to have filed the appeal along with CRAN 27 of 2019 and CRSPL 01 of 2021 on 27.09.2019. From the supplementary affidavit filed by appellant it transpires that Lieutenant Governor was pleased to grant sanction to file appeal against the acquittal before this court

only on 3rd January, 2020. Therefore, prima face it appears the prosecution has obtained necessary sanction from the Lieutenant Governor, the concerned authority to file an appeal against the order of acquittal more than three months after the filing of the appeal.

Therefore, it has come on record necessary sanction from the Lieutenant Governor has been obtained almost four months after the filing of the appeal and from which it can be safely infer that public prosecutor and Superintendent of Police, Anti Corruption Unit, Port Blair have filed the present appeal without fulfilling the condition stipulated in provision of section 378 (1) (b) of Cr.P.C.

Since the respondent has been acquitted from the charge under section 7 and 13 (1) of Prevention of Corruption Act, 1988 there is a double presumption in favour of the respondent. Firstly, the presumption of innocence is available to him under fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the respondent having secured his acquittal the presumption of his innocence is further reinforced and reaffirmed by the trial Court. In view of the discussion made above the leave to prefer appeal against acquittal having filed without obtaining necessary permission from the State/ the Lieutenant Governor is rejected being not maintainable.

Accordingly, CRMSPL/1/2021 is dismissed.

There will be no order as to costs.

All parties to act in terms of the copy of the order downloaded from the official website of this Court. Urgent certified copy of this order if applied for may be supplied to the parties upon compliance of usual formalities. (Kesang Doma Bhutia, J.)