Dr. P.K. Narayanikutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **FRIDAY, THE 3RD DAY OF JUNE 2016/13TH JYAISHTA, 1938H** **CRL.A.No. 1265 of 2008 ---------------------------------** **CC.8/2001 OF ENQUIRTY COMMISSIONER AND SPECIAL COURT, KOZHIKODE, DATED 11-06-2008** **----------------------** **APPELLANT(S)/ACCUSED::** **------------------------------------------** **DR.P.K.NARAYANIKUTTY, W/O.RAGHAVENDRA KUMAR, "SOURABHAM", BEYPORE NORTH BEYPORE, (MEDICAL OFFICER AND, CIVIL SURGEON (RETD), GOVERNMENT WOMEN AND CHILDREN HOSPITAL, POST PARTEM UNIT, KOTTAPARAMBA, KOZHIKODE).** **BY ADVS.SRI.P.K.SURESH KUMAR SRI.SANTHEEP ANKARATH SRI.K.P.SUDHEER** ## **RESPONDENT(S)/COMPLAINANT::** **------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING DY S.P., VIGILANCE AND ANTI-CORRUPTION BUREAU, KOZHIKODE.** **BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 5/2/2016 THE COURT ON 03-06-2016, DELIVERED THE FOLLOWING:** **PJ** **P.UBAID, J. --------------------------------------Crl.A No.1265 of 2008** **---------------------------------------** Dated this the 3[rd] day of June, 2016 ## **J U D G M E N T** The appellant herein was a civil surgeon in the Kerala Health Department. While she was working in the said capacity in the Government Women and Children Hospital, Kozhikode, in August 1999, a crime happened to be registered against her on the allegation that she received an amount of ₹500/- from one Veeraj as illegal gratification for conducting an operation for the medical termination of pregnancy of his wife Smitha. Veeraj and Smitha consulted the appellant on 4.8.1999, and Smitha was advised to undergo some test. When pregnancy was detected on scientific test, Veeraj and Smitha made a request to the doctor to abort the pregnancy. The prosecution case is that when they made such a request on 4.8.1999, the doctor consented to conduct such an operation and she demanded an amount of 500/- as reward. Veeraj and Smitha₹ were accordingly directed to bring the amount on 5.8.1999, and Smitha was admitted in the hospital with advice to undergo operation on 5.8.1999. As Veeraj was not inclined to make 2 Crl.A No.1265 of 2008 payment of illegal gratification for the operation in the Government Hospital, he approached the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Kozhikode with a complaint. On his complaint the VACB arranged a trap. The amount of 500/- brought by Veeraj was seized as per a mahazar,₹ and after treating the currency with Phenolphthalein, the VACB instructed Veeraj to approach the accused at the hospital and make payment if she made further demand. By that time, Smitha was admitted in the hospital and she underwent the operation in the morning itself, on 5.8.1999. The complainant reached at the hospital to make payment before noon but he could meet the doctor only at 12.45 pm. The complainant made payment of the Phenolphthalein tainted currency, when the doctor demanded the amount, and within no time the vigilance team came there, seized the phenolphthalein tainted currency and arrested the accused. After investigation, the police submitted final report before the Enquiry Commissioner and Special Judge, Vigilance, Kozhikode. Cognizance was taken as C.C. No.8/2001 by the trial court under Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act (for short 'the PC Act'). 2. The accused pleaded not guilty to the charge 3 Crl.A No.1265 of 2008 framed against her by the trial court under Sections 7 and 13(2) r/w 13(1)(d) of the P.C Act. The prosecution examined six witnesses during trial, and also marked Exts.P1 to P15 documents including the complaint and the prosecution sanction. The material objects including the phenolphthalein tainted currency were identified during trial as MO1 to MO7. During trial the accused projected a defence that she was viciously trapped by the complainant when she demanded the money received by him on a false promise that he would supply a VCP. The case of the accused is that under the pretext of returning the amount, the complainant paid the tainted money to her driver who in turn paid it to her, and within no time she was arrested by the police, and the money was taken into custody. The accused also examined DW1 to DW3 including her official driver to probabilise the defence. On an appreciation of the evidence, the trial court found the accused guilty. On conviction she was sentenced to undergo rigorous imprisonment for two years each and to pay a fine of 5,000/- each under Sections 7 and 13(2) r/w₹ Section 13(1)(d) of the P.C Act, by judgment dated 11.6.2008. Aggrieved by the judgment of conviction, the accused has come up in appeal. When this appeal came up for hearing, the learned 4 Crl.A No.1265 of 2008 counsel for the appellant submitted that the whole prosecution case is fully doubtful, that the appellant was in fact viciously trapped by the complainant in this case for the reason that some amount due from him was persistently demanded by the accused, and that the prosecution has miserably failed to prove the essentials in this case. The learned counsel also submitted that on legal grounds also the appellant is entitled for acquittal, because the prosecution sanction in this case stands not properly and legally proved. On the other hand, the learned Public Prosecutor submitted that the prosecution sanction stands proved by the investigating officer, and that the essential elements are proved by the complainant and his wife. 3. Of the six witnesses examined by the prosecution PW1 is the complainant Veeraj, PW2 is his wife who underwent operation at the hands of the appellant, PW3 is the trap witness arranged by the detecting officer, PW4 is the Lay Secretary of the hospital who produced some documents before the police, PW5 is the Deputy Superintendent of Police, VACB who arranged the trap and detected the offence, and PW6 is the Vigilance Inspector who made investigation and submitted final report. Of the 15 documents marked by the prosecution Ext.P1 is the 5 Crl.A No.1265 of 2008 complaint made by PW1 and Ext.P15 is the prosecution sanction under Section 19(1) of the P.C Act. 4. PW1 and PW2 have given evidence that they had consultation with the appellant on 4.8.1999 at the hospital, and on scientific test the pregnancy of PW2 was detected. When they made a request to the doctor to abort the pregnancy the doctor demanded 500/-, and instructed them to bring the amount on₹ the next day itself. PW2 was accordingly admitted in the hospital and arrangements were made for the operation on the next day itself. Of course PW2 is not a witness to the payment of money on 5.8.1999. On the aspect of demand she corroborates PW1, her husband. Both the witnesses stated in evidence that ₹500/- was demanded by the doctor on 4.8.1999 as a reward for conducting the operation. Accordingly, the MTP was conducted by the doctor before 11 am. on 5.8.1999. Both the witnesses are consistent that by about 11 am. on 5.8.1999, the MTP operation was conducted by the doctor at the hospital. Both the witnesses are definite that they had not made payment of any amount to the doctor before proceeding for operation. 5. PW1 has stated that he made payment of the tainted money at about 12.45 pm. to the doctor. His evidence is 6 Crl.A No.1265 of 2008 that the doctor accepted the amount and put it within her blouse. He gave the pre arranged signal, and within no time the vigilance party reached there, seized the amount and arrested the accused. PW3 is the trap witness arranged by the VACB. But he is not a witness to the acceptance of illegal gratification. He has proved the pre trap and post trap procedures spoken to by the detecting officer. As regards the pre trap and post trap procedures, the complainant, PW3 and PW5 are consistent. I am well satisfied by the evidence of PW1 and PW2 that it was without insisting for any payment, or without and before getting any amount, the doctor conducted the MTP operation on 5.8.1999. There is nothing to show that the doctor had demanded the amount at the time of operation or before proceeding for operation on 5.8.1999. This fact is very important, and this is the circumstance which improbablises the case of the prosecution that the accused had demanded money for conducting operation. 6. PW3 was arranged by the VACB to witness the trap. There is no explanation why he was not specifically instructed to accompany the complainant and to witness the alleged payment of gratification. He accompanied the 7 Crl.A No.1265 of 2008 complainant, but he conveniently remained outside. Even by remaining outside he could have witnessed the payment, but he did not care to witness the trap from outside. His evidence is only regarding the pre trap and post trap procedures. It is well settled that on the basis of recovery of tainted money alone, an accused cannot be convicted under Sections 7 and 13(2) r/w 13(1)(d) of the P.C Act. There must be clear and convincing evidence to prove the essentials also. PW1 and PW2 have given evidence regarding the demand allegedly made by the doctor on 4.8.1999. But on the aspect of acceptance there is only in the evidence of the complainant. In the particular facts and circumstances where the operation was admittedly conducted by the doctor, even without waiting for money as a reward for operation, the story of acceptance told by the complainant will have to be suspected. His evidence on acceptance cannot be believed or accepted without independent corroboration. 7. D3, who was the official driver of the accused at the relevant time, stated in his evidence that an amount of 500/-₹ was given to him by the complainant in this case with a request to hand it over to the doctor as the amount due from him, which he had received for supplying VCP, and in turn he handed over 8 Crl.A No.1265 of 2008 the amount to the doctor. Thus DW3 would explain how the tainted money came at the hands of the doctor. True it is, that this evidence does not satisfactorily probabilise the defence case. Anyway, I find that the evidence given by the complainant regarding acceptance cannot be accepted without independent corroboration in the particular circumstances where the doctor had conducted the operation without waiting for payment. Just because the tainted money happened to be seized from the hands of the doctor, she cannot be found guilty by the court. She has her own defence as to how the money came in her hands. She has also a defence that she would not have conducted the operation before 11 am. on 5.8.1999 without getting money, if she had infact demanded or insisted for payment of reward for operation. 8. The evidence given by the complainant shows that by that time he reached at the hospital on 5.8.1999 and allegedly paid the amount at 12.45 pm, the operation was over. An explanation brought out by the prosecution is that PW1 paid the amount after the operation for the reason that the doctor had stated that necessary certificate would be issued only on payment of money. But the evidence given by PW2 shows that Crl.A No.1265 of 2008 9 she had in fact obtained the certificate immediately after the operation, and before any amount was allegedly paid to the doctor. This means that without receiving any amount on 5.8.1999, the appellant conducted the operation before 11 am, and without any delay the certificate was also issued to PW2. If so, it requires explanation why the amount was paid by PW1 at 12.45 pm. to the doctor. In such a circumstance, it is really doubtful that the doctor had demanded 500/- for conducting₹ operation. That is why I said that the evidence of the complainant cannot be accepted without independent corroboration. The benefit of this doubt as to why the complainant made payment of money to the doctor when there was no reason to make such payment, must necessarily go to the accused. 9. Now let me see whether the other contention raised by the appellant is acceptable, that the appellant is entitled for acquittal on legal ground itself. This Court has recently settled the legal position that the prosecution sanction granted under Section 19(4) of the P.C Act will have to be properly and legally proved by the person who issued the sanction. In **CBI v. Asok Kumar Aggarwal (AIR 2014 SC** Crl.A No.1265 of 2008 10 **827)** the Hon'ble Supreme Court held that the sanctioning authority will have to do complete and conscious scrutiny of whole records placed before it, the sanction order should show that the authority has considered all relevant facts and materials, and the prosecution also must convince the court that the authority had independently applied the mind to the facts of the case in granting prosecution sanction. In **Antony Cardoza v.** **State of Kerala (2011(1) KLT 946) = (2011 KHC 377)** a learned Single Judge of this Court held that only the person who granted the sanction can prove independent application of mind to the facts for the purpose of granting sanction and this responsibility cannot be taken over by somebody else. Following **Antony Cardoza** this Court further held in **Prakash** ## **Pai H (Dr.) v. State of Kerala (2015(4) KHC 557)** and other cases that except in cases where the prosecution sanction can claim some sanctity or privilege under the law, it will have to be proved by the person who issued the sanction order. This Court has also settled the position that the investigating officer cannot at all be the competent person to prove a prosecution sanction granted by the competent authority under Section 19(4) of the P.C Act. This Court has consistently held on the legal issue in so Crl.A No.1265 of 2008 11 many decisions, that the right and the competent authority to prove such a sanction is the person who granted the sanction or issued the sanction order. In this case Ext.P15 sanction was just marked through PW6. He has not stated anything about the process of granting sanction, he does not say what are the materials placed before the sanctioning authority, he does not say that the authority had considered or examined the necessary materials, and he cannot say whether the sanctioning authority had applied his mind independently to the facts of the case in the purpose of granting sanction. Without stating anything about the sanction or the process of granting sanction, he just marked the document as Ext.P15. Such a practice or procedure cannot at all be accepted. This Court has clarified the legal position in so many decisions that a prosecution sanction granted under Section 19(1) of the P.C Act will have to be properly and legally proved by the competent person. This Court has come across so many cases where the prosecution just marked the sanction through the investigating officer. When the prosecution sanction under Section 19(4) of the P.C Act is not properly and legally proved, the court will have to find that the prosecution is barred under Section 19(4) of the P.C Act. The sanctioning authority Crl.A No.1265 of 2008 12 was cited as a witness by the prosecution, but he was not examined. As a short cut the learned Public Prosecutor in charge of the case just got it marked through the investigating officer. Such a procedure cannot at all be accepted. There is no explanation why the prosecution did not care to examine the Director of Health Services to prove Ext.P15 prosecution sanction. I find that the Ext.P15 prosecution sanction stands not properly and legally proved, and on this ground this Court finds that the prosecution in this case is barred under Section 19(4) of the P.C Act. On this legal ground itself, the appellant is entitled for acquittal. On factual aspects I find that the prosecution case is doubtful. Necessarily the benefit of this doubt must go to the accused. Even if, the case is acceptable on facts as a blemishless one, the conviction and sentence in this case cannot be sustained legally because the prosecution is barred under Section 19(4) of the P.C Act for the reason that the prosecution sanction stands not properly and legally proved. In the result, this appeal is allowed. The appellant is found not guilty under Sections 7 and 13(2) of the P.C Act, and accordingly, she is acquitted in appeal under Section 386(b)(i) Cr.P.C. The conviction and sentence against the appellant in C.C Crl.A No.1265 of 2008 13 No.8/2001 of the court below will stand set aside. The appellant will stand released from prosecution, and the bail bond, if any, executed by her will stand discharged. **Sd/P.UBAID JUDGE** //True Copy// P.A to Judge ab