These two appeals arise out of the Judgment passed by the District Chief Judicial Magistrate-cum-Special Judge, Nagercoil in Spl.Case No. 2 of 1992, whereunder, by judgment dated 10.12.2002, the Sub Court was pleased to convict accused 1 to 5/ the appellants herein as follows :
'The first accused was convicted and sentenced to undergo 3 months Rigorous Imprisonment and to pay a fine of Rs.500/- in default to undergo 15 days rigorous imprisonment; 2 years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo 2 months rigorous imprisonment; and 2 years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo 2 months rigorous imprisonment.
The second accused was convicted and sentenced to undergo 3 months Rigorous Imprisonment and to pay a fine of Rs.500/- in default to undergo 15 days rigorous imprisonment; 2 years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo 2 months rigorous imprisonment; and 2 years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo 2 months rigorous imprisonment.
The third, fourth and fifth accused were convicted and sentenced to undergo 3 months Rigorous Imprisonment and to pay a fine of Rs.500/- in default to undergo 15 days rigorous imprisonment; 2 years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo 2 months rigorous imprisonment; 2 years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo 2 months rigorous imprisonment; and 2 years Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo 2 months rigorous imprisonment. Accused No. 6 to 18 were acquitted of the charges.
Crl.A.No.35 of 2003 has been preferred by the first accused while Crl.A.No.1839 of 2002 is that preferred by the accused 2 to 5, in S.C.No.2/1992. The accused stood charged as follows:
Accused No.1 was charged under sections 120B,
420 r/w 109 IPC and 5(1)(d) r/w 5(2) of Prevention of Corruption Act 1947.
Accused No.2 was charged under sections 120B, 420, 471 r/w 467 IPC. Accused No.3 to 5 were charged under sections 120B, 420 r/w 109 IPC, 471, 477A r/w 467 IPC.
Accused No. 6 to 18 were charged under sections 120B, 420 r/w 109 IPC. The charges against some of the accused abated on their death. It is necessary to note that one of such persons is Rev.Fr. Lawrence J. Thottam.
2. The prosecution case is that during the period May 1980 and March 1982, accused 1 to 3 have entered into a criminal conspiracy, whereunder the accused 2 and 3 created false records of appointment of staff to various Mini Primary Health Centres, forged the signatures of the staff in the payment registers and used such forged documents as genuine to cheat the Government of Tamil Nadu, towards drawing grant for Mini Primary Health Centres and obtained pecuniary advantages. In the course of trial the prosecution examined 81 witnesses and marked 330 exhibits. The defence marked two exhibits.
3. The protracted nature of the case can be appreciated from the fact that the offences were alleged to have been committed during the period 01.09.1978 to 31.03.1983, case was registered on 04.03.1985, final report [Exh.D-1] was filed on 14.01.1998 and the trial court pronounced judgment on 10.12.2002.
4. To understand the prosecution case it becomes necessary to point out the following:
Under orders in G.O.Ms.No.756 Health and Family Planning Development Department dated 25.03.1977[Exh.P-2], the Government of Tamil Nadu held out assistance to voluntary organisations towards establishing Mini Primary Health Centres to provide comprehensive health care to the public. The conditions laid down in the said Government order relevant for such purpose are: The Mini Primary Health Centre should deposit in the nearest bank Rs.3000/- (Rupees Three thousand only) and seek registration. The expenditure on the scheme would be met on 1:1:1 basis by the voluntary organisations, State Government and Central Government. Government of India had been addressed for their concurrence for providing 1/3rd contribution as Central grant for setting up of 34 Mini Primary Health Centres. Pending receipt of concurrence from Government of India and in view of the importance of this Scheme State Government sanctioned a recurring expenditure of Rs.3.06 lakhs for 34 Mini Primary Health Centres being 50% of the recurring cost for each of these Mini centres subject to a ceiling of Rs.9000/- per mini centre per annum. This assistance wwould be available only to institutions which provide medical relief facilities (on a non-sectarian basis) to all, regardless of caste, creed and community. The above assistance wsoul be revised by 1/3rd of the recurring cost subject to a ceiling of Rs.6000/- per Mini Centre, if and when the assistance from Government of India was forthcoming. The two third grant will be disbursed to the Voluntary Organisations only after their deposit is made in the bank.
5. The proceedings of the Director of Primary Health Centres, Madras [Exh.P-4] reflect the nature and purpose of providing Mini Primary Health Centres, the staff pattern and budget and the minimum staff requirement. A relevant extract thereof would be:
'A Mini Health Centre is a Multi-purpose unit to be organised by the voluntary agencies in collaboration with Government for the delivery of curative, preventive and promotive health services to the rural population. One Centre is to cater to the needs of 5,000 population or 1,000 families. A part-time Doctor and two para medical workers and 3 lay first aiders will work in each of these centres. A total recurring expenditure of Rs.18000/- is required for each Mini Health Centre and 50% of this expenditure should be met by the voluntary agency and the balance will be provided by Government as grant-in-aid. Thus the Mini Health Centre provides an opportunity for the voluntary organisations who are interest in health work to supplement their efforts with those of the Government for the delivery of comprehensive health care to the rural population. The Mini Health Centre should be located in a place where no other Medical/Health Care Institutions are available within a radium of about 5 kilometers. The Mini Health Centre should provide comprehensive Health Care Services for 1000 families i.e. for about 5000 population. To get this 1000 families registered in the Mini Health Centre, a voluntary organisation should find a catchment area of a set of villages (numbering from 1 to 5 or 6) with a total population of about 5000. To get the community participation in running the Mini Health Centre, the voluntary organisation should do intensive "education" among them to demand these services, and so that initially 1000 families in adjacent areas get enrolled by subscribing Re.1/-per family per month by issuing a membership card, (for giving treatment for minor ailment and for health checkup for immunisation and advise on matters that will promote the general health of the individuals of the community and their habitate). The enrolled families should be "held" within this frame work of Mini Health Centre Health Centre as long as possible maintaining proper recording of their health status, health services etc., so that, the Health record of each of the family is available readily with the Mini Health Centre.
II. Staff pattern and its budget:
The staff pattern together with the financial requirements for a Mini Health Centre:
The amount of Rs.18000/- earmarked for each Centre per annum does not include expenditure on supervisory staff, capital expenditure on buildings, equipment, furniture etc. A suggested scale of equipment, furniture etc., is furnished in the Annexure 'B'.
The following staff should be appointed:
1.Male Workers : One
2.Female Worker : One
3.Lay First Aiders : Three
4.Part-time Doctor : One Part Time Doctors:
One part time Doctor will be posted for each Mini Health Centre, who will be paid a sum of Rs.250/- pm. If this Doctor is given 3 Mini Health Centres he may be paid a consolidated pay of Rs.750/- pm. In such cases he will visit the three Mini Health Centres *every day distributing his morning hours for 2 Mini Health Centres* He should have his residence in one of the Mini Health Centre village. He will use his own conveyance either cycle, motor cycle or cart for his travel for which as allowance may be paid by the Voluntary Agencies from the contingencies.
A bank account has to be opened in the name of Mini Health Centre and a sum of Rs.3000/- has to be deposited in the Nationalised Bank by the voluntary organisation. The date of opening the Mini Health Centre has to be reported and the Bank Certificate has also to be sent to the Director of Public Health and Preventive Medicine Office through the District Health Officer concerned for releasing the advance grant of Rs.3000/- by this office. For this purpose they will build up close laison with the Medical Officer and other staff of Mini Health Centres. Wherever, Mini Health Centres are started, the Panchayat Union, Auxiliary Nurse Midwives and other paramedical staff will be withdrawn to avoid duplication of work. However, the Government staff will continue to have jurisdiction in their areas for the control of epidemic diseases and for the implementation of the Acts. The voluntary organisations are requested to take care to select suitable buildings, adequate furniture and essential equipments at their own cost.'
6. Mr.P.H. Pandian,learned senior counsel appearing on behalf of the counsel for the accused 2 to 5/ appellants in C.A. No.1839/2002 took this Court through the evidence of PW-80, the investigating officer and submitted that the investigating officer had entered upon an enquiry which was totally unauthorised. The charge against the first accused is for offences under
sections 5(1)(d) r/w 5(2) of Prevention of Corruption Act 1947. PW-80 when he commenced investigation on 04.01.1985, was an Inspector at the Nagercoil Vigilance and Anti Corruption Cell. Reading of Section 5-A of the Prevention of Corruption Act, 1947 would show that he was not empowered to enter upon investigation in respect of offence under
Section 5 of the Act without the order of the Presidency Magistrate or a Magistrate of First Class as the case may be and he may do so in the absence thereof only if authorised by the State Government in this behalf, by general or special order. When confronted with this position, the stand of PW-80 has been that no such permission was necessary.
7. When questioned on how he had entered upon investigation, when were the materials gathered by him, how he collected them, PW-80 took a stand that he had the oral directions of the Director and that he had called for various documents from several departments, under due petitions for the same. PW-80 took a stand that he had registered the FIR on the basis of information gathered in the course of secret enquiry and upon obtaining permission therefor from the Director. PW-80 also took the stand that there was no register maintained by his office in which communications from the office of the Director were entered and towards explaining away the absence of documents which would reflect the material gathered by him, he claimed such documents were privileged documents.
8. Learned Senior Counsel submitted that while the decision reported in The State of Bihar v. V.D. Kumar & Ors. 1975 Crl. LJ 1411 deals with
Section 123 of the Evidence Act, i.e. the manner in which evidence as to Affairs of State are to be brought before the Court, the following observations in State Inspector of Police, Visakhapatnam v. Surya Sankaram Kurri 2006 (6) Supreme 560, are apt, given the claim of PW-80 that he had oral instructions and his claim of privilege. Ofcourse the import of the argument of the learned senior counsel is that privilege could be claimed only in respect of Acts of State.
'16. The approach of the learned Special Judge, to say the least, was not correct. When a statutory functionary passes an order, that too authorizing a person to carry out a public function like investigation into an offence, an order in writing was required to be passed. A statutory functionary must act in a manner laid down in the statute. Issuance of an oral direction is not contemplated under the Act. Such a concept is unknown in Administrative Law. The statutory functionaries are enjoined with a duty to pass written orders.
17. Submission of the learned Additional Solicitor General was that the respondent did not further cross examine the said witnesses to the effect that no such order in writing was passed, and thus, he cannot be said to have been prejudiced in any manner whatsover. We do not agree.'
9. In the light of the above decisions, the claim of privilege by PW-80 is unsustainable. Again it is seen that PW-80 was promoted as Deputy Superintendent of Police in the year 1988 and posted outside Nagercoil. Despite the same, PW-80 claims to have continued the investigation on the oral instructions of the Director. Though, it is not in all cases that an investigation into an offence by a person who conducted the preliminary enquiry would be wrong, in the facts and circumstances of this case, the defence of malafide on the part of PW-80 would require consideration. The defence of A-1 that he had in no manner gained any benefit monetary or otherwise from the conduct of Mini Primary Health Centres and that there was absolutely no evidence to show any link between him and the other accused in the committal of the offence alleged and that neither
section 5 nor section 120B or 109 IPC would stand attracted deserves acceptance. Reliance rightly is placed on an earlier decision of this Court in Crl.A.No.257/1993 and 268/1993. (A-1 herein being one of the appellants therein).
'12. ... The learned Chief Judicial Magistrate has held that the first accused mis-used his position as Health Officer at Kanyakumari District at the relevant time and helped the second accused. However, it is important to notice that he has not considered the evidence on record to find out whether it unmistakably pointed out the first accused actually connived with the second accused and received bribe from him, for the purpose of falsifying the documents to help the second accused. It is noticed that the learned trial court so far as the first accused is concerned, has proceeded on the basis that there is strong suspicion against him that he went out of the way and helped the 2nd accused in running the primary health centres without qualified doctors and nurses. It is settled law that in a criminal case, a person cannot be convicted however strong the suspicion may be and there should be positive and acceptable evidence on the side of the prosecution to prove the guilt of the accused beyond reasonable doubt. Basing conviction on conjectures and suspicion has been held to be a grave error and a criminal court shall be extremely cautious before recording a verdict of guilt and it should be satisfied that there is enough and sufficient evidence that the accused has committed the offence. If the said yard-stick is applied to the evidence on record in this case, I find it extremely difficult to accept the reasoning of the learned trial court that the first accused mis-used his position as a Health Officer of the Kanyakumari District on the relevant time and received bribe from the second accused. There is no direct or acceptable circumstantial evidence to point out that the first accused at any time received any money from the second accused either by way of bribe or otherwise and helped the second accused going out of the rules, in running the Mini Health Centres. Hence, I am persuaded to accept the submissions of the learned counsel appearing for the first accused that the trial magistrate has not properly appreciated the evidence by adopting the proper guidelines and parameters pointed by this court and the Supreme Court of India and therefore, the conviction and the sentence imposed on the first accused are liable to be set aside.'
10. The facts and circumstances are more or less identical to the case on hand. Thus, this Court would allow Crl.A.No.35/2003.
11. Coming to the appeal in Crl.A.No.1839 of 2002, Mr. Chellapandian, learned senior counsel would submit that two voluntary organisations by name St.Thomas Hospital and Kanyakumari Health and Adult Education Centre were under the same Management, that the Government orders towards establishing the Mini Primary Health Centres were issued in the year 1978 and even prior thereto these institutions were running four such units. After the said G.O., these organisations added 13 such units under due permission. The prosecution case may be scrutinised from two angles. The first on establishment and grant of financial assistance thereto and the other on the manner of obtaining financial assistance and use thereof.
1.towards establishing the Mini Primary Health Centres a sum of Rs.3000/- was to be deposited with the bank and applications were to be made there towards Exh.P- 31 would reflect that applications were duly made and the receipt of such deposit was also admitted to, by the Bank Manager who was examined as PW-7. The evidence on record revealed that the payment of initial instalment was done in compliance with norms, that the second instalment was paid to these institutions after the inspection by the District Health Officer, returns were submitted as ordered by the Director of Health Services and only after personal verification, the final instalment was paid to the institution. As earlier seen, though one of the District Health Officers, during the relevant period, has been arrayed as A- 1 there is nothing to suspect any wrong doing on his part. It is also seen that while wrong doings were alleged during a particular period only one of the then District Health Officers is arrayed as an accused and the other is not. Again, all the dealings from the stage of application to the stage of receipt of grant, were handled by one Rev.Fr. Lawrence J. Thottam, now deceased. There is no evidence to link the actions of such deceased Rev.Fr. Lawrence J. Thottam, if at all wrong, to the acts of the other accused.
2.The other prosecution allegation is that the persons employed by the Mini Primary Health Centres were not paid their dues while it was made to appear so and that records were fabricated to show the employment of certain persons, which in fact was not so. A perusal of the evidence of witnesses examined reveals that they duly were employed and have received payment of salaries. PW- 18 would state that she received Rs.70/- per month as salary and served as lay first aid; PW-19 would state that she received Rs.300/- per month as salary and served as female worker; PW-24 would state that he received Rs.300/- per month as salary and served as male worker; PW-25 would state that she received Rs.70/- per month as salary and served as lay first aid; PW-26 would state that he received Rs.300/- per month as salary and served as male worker; PW-27 would state that he received Rs.300/- per month as salary and served as male worker; PW-28 would state that she received Rs.70/- per month as salary and served as lay first aid; PW-29 would state that she received Rs.300/- per month as salary and served as female worker; PW-30 would state that she received Rs.300/- per month as salary and served as female worker; PW-31 would state that she received Rs.300/- per month as salary and served as female worker; PW-32 would state that she received Rs.70/- per month as salary and served as lay first aid and thereafter she worked as female worker and received Rs.300/- per month as salary; PW-33 would state that he received Rs.300/- per month as salary and served as male worker; PW-34 would state that he received Rs.300/- per month as salary and served as male worker; PW-38 would state that she received Rs.300/- per month as salary and served as female worker; PW-39 would state that she received Rs.300/- per month as salary and served as female worker; PW-40 would state that he served as a Doctor and received Rs.750/- per month as salary per primary centre; PW-41 would state that she served as a Doctor and received Rs.20/- per day as salary in Peruvilai & Vathiyarvila Primary Centre and received Rs.15/-per day as salary in Kumarathoppur primary centre; PW-42 would state that he served as a Doctor and received Rs.250/- per month as salary; PW- 43 would state that he served as a Doctor and received Rs.1000/- per month as salary; PW-49 would state that she received Rs.70/- per month as salary and served as lay first aid and thereafter she worked as female worker and received Rs.300/- per month as salary; PW-50 would state that she received Rs.70/- per month as salary and served as lay first aid; PW-51 would state that he received Rs.300/- per month as salary and served as male worker; PW-52 would state that she received Rs.300/- per month as salary and served as female worker; PW-55 would state that she received Rs.300/- per month as salary and served as female worker; PW-59 would state that she received Rs.70/- per month as salary and served as lay first aid; PW-60 would state that she received Rs.70/- per month as salary and served as lay first aid; PW-61 would state that he received Rs.300/- per month as salary and served as male worker; PW-68 would state that he received Rs.300/- per month as salary and served as male worker; PW-71 would state that he is retired Head Master, he told about Doctor received Rs.700/- per month as salary and after some days Doctor received Rs.750/- per month as salary; PW-72 would state that she served as a Doctor and received Rs.800/- per month as salary; PW-75 would state that he served as a Doctor and received Rs.250/- per month as salary; PW-79 would state that he served as a Doctor and received Rs.1000/- per month as salary:- The evidence reveals that the payments made to them were in keeping with the requirement of the scheme. One Dr. Began Singh has been examined to show that he had no connection whatsoever with the primary health centres run by St.Thomas Hospital and Kanyakumari Health and Adult Education Centre. His evidence is to the effect that he had nothing to do with those concerns and the signatures alleged to be his, were really not his.
In this regard, the defence case is that the person who actually was employed is one Bert Singh, S/o.Samuel who also had been arrayed as the 16th accused in the case. From the evidence of PW-80, the Investigating Officer, it is clear that none had informed him of PW-66 Dr.Began Singh, S/o. P.T. Samuel having been engaged in the activities of the concerned Primary Health Centres nor had the Audit Report revealed that such person was so engaged. Whileso, nothing would turn on the assertion of such witness that the signatures found in the records were not his.
12. PW-79 does speak of irregularities committed by the two Institutions, St.Thomas Hospital and Kanyakumari Health and Adult Education Centre. But it is seen that he, earlier having worked in the institutions, enemically was disposed towards them.
13. While PW-8, who claimed to have been the Secretary of the Kirathoor Malanthangaraj Syrian Nadar Catholic Sangam did speak to having published 'bit' notices of alleging irregularities in the conduct of Primary Health Centres, he had admitted to having no knowledge as to which of the Primary Health Centres were so functioning, apart from the two institutions whose activities have been faulted by the prosecution, several other primary health centres were established during the relevant period.
14. On a careful consideration of the case in its entirety it is seen that neither has any wrong been proved regarding the establishment of the Primary Health Centres nor is there any evidence of any mis-doings in the conduct thereof.
15. In the result, the prosecution case would have to be rejected and Criminal Appeal No.1839 of 2002 shall stand allowed.
16. Accordingly both Criminal Appeals stand allowed. Fine amounts paid by the appellants shall be refunded to them.
avr To
1. Inspector of Police Directorate of Vigilance and Anti Corruption Nagercoil.
2. The District Chief Judicial Magistrate-cum-Special Judge, Nagercoil.
3. The Additional Public Prosecutor Madurai Bench of Madras High Court.