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2005 DIGILAW 1064 (BOM)

Shrawan Raghobaji Hedau v. State of Maharashtra

2005-08-18

A.H.JOSHI

body2005
Judgment A. H. JOSHI, J. ( 1 ) THE appellant herein is one of the two accused persons, who were tried in Special Case No. 17 of 1987 in the Court of Special Judge, Nagpur, under sections 161, 165-A, Indian Penal code, and section 5 (l) (d), read with section 5 (2) of the Prevention of Corruption act, 1947. The learned Special Judge held the appellant-accused guilty for offences punishable under section 5 (l) (d), read with section 5 (2) of Prevention of Corruption Act and section 161 of Indian Penal code, and sentenced Rigorous Imprisonment for one year and to pay fine of Rs. 300-00; and sentenced, in default, to suffer rigorous imprisonment for one month on the first count, and Rigorous imprisonment for one year on the second count. ( 2 ) THE judgment of conviction is challenged on various grounds. First group of points of challenge pertains to the question as to proof of demand of amount of bribe, payment thereof, recovery etc. , as well that the amount of bribe is trivial. Second limb of challenge is based on the plea that the entire prosecution stands vitiated in view of sanction being not legally and properly ordered, as well as not being duly proved before the Special Judge. ( 3 ) AFTER hearing the learned Advocate for the appellant and learned Additional public Prosecutor, this Court is of the view that the point of sanction goes to the root of the case and it would suffice if the case is decided based on that point. ( 4 ) THE sanction is relied on a dual plea. According to the prosecution, the General body is the Competent Authority to appoint and remove etc. The respondent- prosecution, therefore, placed reliance on resolution No. 291 passed by the General Body of the Municipal Corporation, contending that in view of the Resolution, sanction to the prosecution is legally accorded. ( 5 ) TO prove the sanction, the prosecution has examined prosecution witness no. 1 Mohan S. Vighne. This witness, in the Examination-in-chief, tried to prove the Resolution passed by the General body. However, in the cross-examination, he deposed as follows :-"11. I have accorded sanction to prosecute in the light of delegated power of Municipal Commissioner under section 59 (4) of the City of Nagpur Corporation Act. 1 Mohan S. Vighne. This witness, in the Examination-in-chief, tried to prove the Resolution passed by the General body. However, in the cross-examination, he deposed as follows :-"11. I have accorded sanction to prosecute in the light of delegated power of Municipal Commissioner under section 59 (4) of the City of Nagpur Corporation Act. These powers can be delegated by the Municipal commissioner and not by the General Body of the Corporation. General Body has no authority to delegate any powers vested in the Commissioner to Additional Deputy commissioner. The General Body has not delegated any powers to me in person to grant sanction to prosecute. ""12. It is not true that I had not applied my mind and that I have issued sanction mechanically. " ( 6 ) BY the aforesaid version, this witness pleaded that he himself has granted sanction for prosecution acting under delegation of powers derived by him under section 59 (4) of the City of Nagpur Corporation Act. ( 7 ) THIS sanction has been relied upon by the learned Special Judge. It is also seen from record that Exh. 27 which is the sanction order. This sanction order spells out that P. W. 1 is the signatory and he has ordered the sanction in exercise of powers derived by him under section 59 (4) of the City of Nagpur Corporation Act and as Appointing Authority as contemplated under section 6 (1) (c) of the Prevention of corruption Act, 1947. Relevant portion from Exh. 27 reads as follows :-"and WHEREAS, I, Shri, M. S. Vighney, Addl. Dy. Municipal Commissioner, Nagpur Municipal Corporation, Nagpur, exercising the delegated powers of Municipal Commissioner under section 59 (4) of City of nagpur Corporation Act (a copy of the said delegation order is enclosed), am on going through the case papers of investigation of the said offence and also of the opinion that the said Shri Khawale Inspector and Shri Hedau Patwari Assessment establishment respectively should be prosecuted in the Competent Court of law for the offences constituted by the allegations herein above mentioned. NOW THEREFORE, I, Shri M. S. Vighney, addl. Dy. NOW THEREFORE, I, Shri M. S. Vighney, addl. Dy. Municipal Commissioner, nagpur Municipal Corporation, Nagpur in the exercise of the powers, conferred by and for the purposes of the provisions under section 6 (l) (c) of Prevention of corruption Act-II, 1947, with the previous approval of the General Body recorded and conveyed in the manner herein above stated, do hereby accord sanction to the prosecution of the said Shri Hedau patwari and Shri Khawale Inspector for the offences constituted by the allegations herein above mentioned and the facts elicited during the investigation herein above mentioned and punishable as herein above stated. " ( 8 ) THE learned Advocate for appellant raised following submissions the background of above noted facts that :- (a) the prosecution witness No. 1 destroys the prosecution story that the General body of Corporation has granted the sanction; (b) the Resolution of sanction passed by the general Body has lost its value on account of independent sanction order being relied by the prosecution; (c) the Resolution of General Body is not duly proved, since it is not a certified copy, nor its original has come before the Court. Moreover, the prosecution witness deposed in Examination-in-Chief in support of the Resolution, however, deposed in cross-examination that he has passed the sanction order independently; (d) section 59 (4) refers to delegation of Commissioners power, while in the present case, according to the prosecution, the Appointing Authority is the General Body, and not the Commissioner; (e) section 59 (4) does not refer to delegation of powers by the General Body; (f) in view of that, the prosecution is not sure as to one who is the Appointing authority to remove and whether the Authority competent to remove has ordered the sanction. ( 9 ) THE points relating to defects in sanction raised by the appellant have gone unreplied from the side of prosecution. ( 10 ) ABOVE points raised by the learned advocate for the appellant go to the root of the case and destroy the prosecution plea that the prosecution was based on sanction, which was properly granted, and only conclusion, that emerges, is that prosecution was launched without the proper sanction is possible. ( 11 ) IN the result, this Court is left with no other option to reach the conclusion that the appeal is liable to be allowed on the ground of defect in the sanction. ( 11 ) IN the result, this Court is left with no other option to reach the conclusion that the appeal is liable to be allowed on the ground of defect in the sanction. In the result, appeal is allowed. The judgment and order of conviction and sentence is set aside. Appeal allowed.