Summary
The Court acquitted the three surviving appellants in the BHEL desalination-contract prosecution. Previous sanction was required for prosecuting the retired executive director under the IPC, and the evidence independently failed to establish the alleged offences. The challenge to the procedure for examining the approver was rejected.
Issues
- Whether previous sanction was required for prosecuting the executive director for acts connected with the tender decision.
- Whether failure to examine the approver before a Magistrate invalidated the proceedings when the Special Judge took cognizance directly.
- Whether the approver, financial records and handwriting evidence established the offences against each surviving appellant.
Provisions considered
- Section 197(1), Code of Criminal Procedure, 1973The tender decision had a reasonable connection with official duty under the existing works policy; previous sanction was required for the IPC prosecution of A-1. (¶¶ 35, 38, 39, 41, 42, 43, 44, 45, 46, 47, 50, 51, 52, 53)
- Sections 306(4)(a) and 307, Code of Criminal Procedure, 1973The requirement of preliminary examination before a Magistrate did not arise where the Special Judge took cognizance directly. The accused also had the confession and opportunity to cross-examine the relevant witnesses. (¶¶ 59, 61, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79)
- Section 5(1)–(3), Prevention of Corruption Act, 1988The Special Judge could take cognizance without committal and exercise the statutory pardon power. The Court distinguished cases arriving through committal from direct cognizance. (¶¶ 60, 63, 64, 65, 74, 75, 76)
- Section 133 read with Section 114, illustration (b), Indian Evidence Act, 1872Competence of an accomplice did not dispense with scrutiny of credibility and the ordinary need for corroboration in material particulars. The approver’s own admissions undermined the prosecution case. (¶¶ 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 101, 102)
- Section 73, Indian Evidence Act, 1872Judicial comparison required writings or signatures admitted or proved to be those of the accused. The supposed specimen writings of A-7 satisfied neither condition. (¶¶ 130, 131, 132, 133, 134, 135, 136)
- Section 193, Indian Penal Code, 1860The convictions for false evidence lacked an allegation or finding connecting the acts with the judicial proceedings or investigations contemplated in the judgment. (¶¶ 104, 106, 107, 108)
- Section 195(1)(b)(i), Code of Criminal Procedure, 1973The Court additionally held that the requisite written complaint for the Section 193 prosecution had not been made. (¶ 108)
Held
- Sanction depends on a reasonable connection between the act complained of and official duty; an allegation of excess or improper motive does not by itself remove protection. Here the works policy permitted restricted tendering in specified circumstances, giving A-1 an arguable official-duty basis. The Court rejected a categorical exclusion of cheating and forgery allegations from Section 197 and held that prior sanction for his IPC prosecution was necessary. (¶¶ 38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53)
- Where the Special Judge took cognizance directly under the PC Act, there was no committal-stage occasion to examine the approver before a Magistrate. The confession accompanied the chargesheet, the approver and both Magistrates testified, and the accused could cross-examine them. The procedural objection under Section 306(4)(a) therefore failed. (¶¶ 74, 75, 76, 77, 78, 79)
- An approver must first be credible; corroboration ordinarily must connect the particular accused with the crime. Here the approver’s admissions contradicted the account attributing the tender scheme to A-1 and included an express denial that his recommendation resulted from A-1’s interest. No other evidence established A-1’s culpability beyond reasonable doubt. (¶¶ 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 101, 102, 103)
- The prosecution’s financial theory overlooked accounts supplied during investigation and later produced by the defence. Those accounts and the finance witness showed recovery under the guarantee and further sums payable to the contractor. On this record, transfer of part of the mobilisation advance to a related firm did not establish the alleged wrongful gain or loss. (¶¶ 96, 97, 98, 99, 100)
- A-4 joined the negotiation committee after tenderers had been identified and their offers received. The approver acknowledged that A-4 had no role in selecting contractors and that the committee reduced the advance and secured a bank guarantee. Treating his failure to question the earlier selection as proof of guilt was perverse. The Section 193 conviction also lacked the relevant factual foundation and requisite complaint. (¶¶ 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115)
- Neither the bank witnesses nor the handwriting expert established that A-7 signed the disputed demand-draft applications. The High Court could not cure that failure by comparing them with unproved and unadmitted specimen writings. Receipt of money by a firm in which he was a partner did not by itself establish the alleged offences or abetment. (¶¶ 118, 119, 120, 122, 125, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138)
- All three surviving appeals were allowed, the convictions and sentences set aside, and the appellants acquitted of every charge. Their bail bonds stood discharged. (¶¶ 3, 139)
Result
All three appeals allowed; convictions and sentences set aside. Appellants acquitted of all charges and bail bonds, if any, discharged.