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2012 DIGILAW 562 (BOM)

Vijaykumar v. State of Maharashtra

2012-03-14

A.P.BHANGALE

body2012
JUDGMENT 1. This appeal is filed challenging the Judgment and order of conviction dated 09/12/2003 passed by the learned Special Judge, Chandrapur in Special Case no. 3 of 1992 whereby the appellant/accused was convicted under Section 7 of the Prevention of Corruption Act, 1988 and was sentenced to suffer R.I. for a term of one year and to pay a fine in the sum of Rs. 1000/-. The appellant/accused was also convicted under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 and was sentenced to suffer R.I. for one year and to pay a fine in the sum of Rs. 1000/- or in default to suffer R. I. for 15 days. 2. Briefly stated the facts appeared as under – The appellant was serving as a Tax superintendent in Municipal Council, Chandrapur. The crime is alleged to have been committed during the intervening period between August, 1990 to January, 1991. The complainant whose father had died on 04/07/1989 bequeathing the house property to the complainant and his brothers Bhaurao and Chandrashekhar, had moved an application on 24/10/1989 to the Municipal Council for mutating his name pursuant to the will of his father. The case for to conduct the inquiry as to the application for mutation was handed over to the appellant. The complainant had received a letter on 06/08/1990 under the signature of Chief officer directing him to remain present before the Chief officer. Accordingly, he attended the office of the Chief officer and his statement was recorded. The complainant had informed regarding pendency of Civil Suit No.184 of 1989 in the Civil Court. The complainant had moved another application for to summon other legal heirs to hear them in mutation case and to keep the mutation case pending till the decision of the Civil Court. According to the complainant, the accused had demanded an amount of Rs. 1000/- if the mutation case is to be kept pending till the decision of the Civil Court. It is the case of the prosecution that the demand was reduced to Rs 200/- ultimately to keep the complainant’s case pending as the complainant expressed his inability to meet the earlier demand from the accused. The amount was to be paid to the accused on 15/01/1991 or at the latest till 10 to 11 a.m. The complainant was not willing to pay the amount. The amount was to be paid to the accused on 15/01/1991 or at the latest till 10 to 11 a.m. The complainant was not willing to pay the amount. Hence, he approached the ACB’s office along with the amount of Rs.200/- for to arrange a trap for to catch the accused redhanded in presence of the panchas. Accordingly, pre-trap panchnama was drawn in detail and post-trap panchnama was planned to nab the accused while accepting the bribe. It is the claim of the prosecution that the said panchnama was successful and the accused was caught while accepting the bribe. Sanction to prosecute the accused was obtained from the Standing Committee and the Chief Officer of the Municipal Council. The accused was charge-sheeted upon completion of the investigation being Special Case No. 3 of 1992. The charge was framed under Section 7 and 13(2) read with 13(1) of the Prevention of Corruption Act. The accused, who pleaded not guilty, had claimed the trial. The prosecution had examined 9 witnesses. The trial Court concluded with the impugned order of conviction and sentenced the accused as mentioned above. 3. Learned Advocate for the Appellant submitted that the appellant was wrongly held guilty because the sanction granted in this case was granted by the Standing Committee which was not legal and proper, since it was not granted by the Chief Officer. It is further contended that the Sanction order was granted without application of mind. He submitted that there is admission by Ram Rode (PW-7) that he, as a Chief Officer, had received proposal for to accord Sanction to launch the prosecution against the accused Dahilwalkar from the ACB’s Office. He had put up that proposal before the Standing Committee in the meeting held on 18/10/1991. Shri Gyanchand Trivedi was Chairman of the Standing Committee. The witness who came to depose about the Sanction Order (Ex.46) did not remember whether the papers were sent along with the proposal for according Sanction. Shri Rode (PW-7) admitted that Mayor President is the Chairman of the Standing Committee and every Resolution passed by the Standing Committee is signed by the Chairman of the Standing Committee. It is further admitted that the proceedings in the meeting dated 18/10/1991 was not signed by the Chairman of the Standing Committee, nor it was in his handwriting. It did not bear the seal of stamp of the Nagar Parishad. It is further admitted that the proceedings in the meeting dated 18/10/1991 was not signed by the Chairman of the Standing Committee, nor it was in his handwriting. It did not bear the seal of stamp of the Nagar Parishad. The proceeding book is also questioned on the ground that the same contained only 70 pages and the pages were marked only up to 68; the proceedings was in pages 1 to 21 and other pages are blank indicating that no other proceeding took place. Admittedly, Ram Rode (PW-7) did not take decision to launch the prosecution against the accused. In Para 4, it is admitted that Ram Rode (PW-7) opened the envelope containing draft Sanction Order sent by the ACB’s Office. The meeting of the Standing Committee began at 5 p.m. and there were 29 subjects, while subject of Sanction was at the serial No 28. PW-7 do not remember as to who was the Chief Officer at that time or who was the President of the Municipal Council on whom such powers are delegated. 4. In MansukhlalVithaldas Chauhan vs. State of Gujarat (1997) 7 SCC 622 , the submission for the Appellant in that case was that the entire proceedings, namely, the proceedings before the trial Court as also the High Court are liable to be set aside as there was no valid sanction within the meaning of Section 6 of the Prevention of Corruption Act, 1947 (hereinafter referred to as "the P.C. Act") with the consequence that the trial court had no jurisdiction to take cognizance of these offences, much less to try them. The Apex Court held that normally when the Sanction Order is held to be bad, the case is remitted back to the Authority for re-consideration of the matter and to pass a fresh order of sanction in accordance with law. But, it was held in the case that the incident was of 1983 and therefore, after a lapse of fourteen years, it will not be just and fair to direct that the proceedings may again be initiated from the stage of sanction so as to expose the appellant to another innings of litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21 of the Constitution which, as a part of right to life, philosophizes early end of criminal proceedings through a speedy trial. The appeal was consequently allowed. The judgment passed by the trial court as also by the High Court was set aside and the appellant was acquitted. 5. In State of Karnataka vs. Ameerjan, (2007) 11 SCC 273 , it is observed thus:- 9. “We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not. 10. For the afore-mentioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayukta. Even the said report has not been brought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police Karnataka Lokayukta had placed on record the materials collected on investigation of the matter which would prima facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as the materials placed before the said Authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced.” 6. In the case of C. M. Girish Babu vs. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 , the Apex court held thus:- “22. In the case of C. M. Girish Babu vs. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 , the Apex court held thus:- “22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. “4...... It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4 (1) of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt.” (See V.D.Jhingan vs. State of U.P., AIR 1966 SC 1762 = (1966) 3 SCR 736 ). 7. In Mohd. Iqbal Ahmed vs. State of A.P. AIR 1979 SC 677 , it is observed thus: “The grant of Sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.” 8. In the case of Shivchalappa Gurumortyappa Loni .vs. State of Maharashtra, 1993 Mh.L.J. 573, in Para 6, it is held that “where the facts are gross and where a criminal trial and a possible jail sentence appear to be very much in order sanction must certainly be accorded, but in those of the cases where the amount is small, the advisability of a prosecution is a matter which is seriously in doubt. It is under these circumstances that it is essential for the sanctioning authority to appear before the Court and to satisfy the Court as to why and under what circumstances the Sanction was accorded.” 9. Learned A.P.P., on the other hand, cited the ruling in the case of ShankerbhaiLaljibhai Rot vs. State of Gujarat, (2004) 13 SCC 487 to argue that the sanction when challenged on the ground of its validity, then it need to be considered whether the defect or irregularity occasioned a failure of justice. The challenge to the authority of the police officer to conduct investigation must be made in the trial Court or in High Court. Following the ruling in Trilok Chand Jain vs. State of Delhi, AIR 1977 SC 666 , in the case of Avinash Sitaram vs. State of Maharashtra 2008 (1) Mah.L J (cri) 315, reiterating the said principle in Para 26 it is held that “It is well established that in cases where a person is charged with offences under the said Act, he is required to refute the presumption of guilt contained in the said Act but the burden upon him is not heavy. He has not to establish his defence beyond reasonable doubt. He may rebut the presumption by showing a mere preponderance of probability in his favour. 10. It is true that, in order to render the sanction valid, legal and proper, it is necessary for the competent authority granting the Sanction to apply its mind to the facts and circumstances of the case brought to its notice. The prosecution could have, by examining the competent Sanctioning authority (member/members of the standing Committee in the present case), led necessary evidence as to the application of mind to the original papers received with the proposal for the grant of Sanction order. The prosecution could have, by examining the competent Sanctioning authority (member/members of the standing Committee in the present case), led necessary evidence as to the application of mind to the original papers received with the proposal for the grant of Sanction order. Shri Rode (PW-7) admitted in the course of his cross-examination that every resolution passed by the Standing Committee is required to be signed by the Chairman of the Standing Committee. Admittedly, the proceedings dated 18/10/1991 was not signed by the Chairman of the Standing Committee. Section 81 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as “MMC Act”) relates to provisions in regard to meetings of Council. Section 81(12) requires Minutes to be maintained in language determined by the Council, containing names of the Councilors attending the meeting with the names of the government officers present, if any and the details of the Motion, voting for and against, which are required to be signed by the presiding authority of such meeting. The submission by the learned Advocate for the appellant is that the savings clause in Section 82 (9) of the MMC Act would apply to the meetings of all the Committees and since the Resolution was not signed by the competent officer as per requirements of the law, Sanction is bad in law. Shri Rode who is only witness to prove the Sanction in this case stated that the decision about according the Sanction for launching the prosecution against the accused was not taken by him. He also admitted that the entry of the presence of the Chief officer is not written in the proceedings. He also admitted that, after the resolution was passed in the meeting, he had opened the envelope containing the draft Sanction order sent by the ACB’s office. This would indicate that the subject of the Sanction was taken up at the end and without application of mind and without perusing the papers, the meeting had started. The Sanction granted in the case is, therefore, criticized as bad in law. This would indicate that the subject of the Sanction was taken up at the end and without application of mind and without perusing the papers, the meeting had started. The Sanction granted in the case is, therefore, criticized as bad in law. The test to be applied was mentioned in the ruling of JaswantSingh vs. State of Punjab AIR 1958 SC 124 as to whether relevant material i.e FIR, disclosure statements, recovery memos, draft Charge sheet and other material on record that formed the basis of allegations constituting the offence was placed before the sanctioning authority and the same was perused before granting Sanction. The Sanction is required to be given in respect of the facts constituting the offence alleged. Such facts, it is plainly desirable, ought to be mentioned on the face of the sanction order. At least the prosecution must prove by extraneous evidence that the facts were placed before the sanctioning authority. The Sanction previous to the Prosecution is the condition precedent to the prosecution and this provision is made with an object to prevent false and frivolous prosecutions, arising from false, and ill-motivated, baseless complaints. Applying the test as above and looking in to the evidence in the present case, the evidence as to the sanction was far from satisfactory. Hence, it is contended by the learned Advocate for the Appellant that the prosecution ought to have been held bad and not maintainable from this view point. First of all, it is necessary to examine Section-19 of the P.C. Act. "19. Previous sanction necessary for prosecution.- (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13, and 15 alleged to have been committed by a public servant, except with the previous sanction,- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government,; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. (b) a sanction required for prosecution includes reference to any requirement that the Explanation.- For the purposes of this section,-(a) error includes competency of the authority to grant sanction; prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature. (b) a sanction required for prosecution includes reference to any requirement that the Explanation.- For the purposes of this section,-(a) error includes competency of the authority to grant sanction; prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature. "The controversy with regard to competency of a sanction authority, the text, which at an earlier occasion was found to be a good ground for setting aside judgments of conviction compelled the legislature to give a protection on this score which led insertion of Subsection-3 in Section-19 wherein it has been made clear that unless and until it is being shown by the accused that a failure of justice has occurred on account of error, omission or irregularity during course of grant of sanction and is perceived by the Court, the finding cannot be nullified. Under Subsection-4, a rigor has been put upon the shoulder of the accused to raise the plea at an earliest. As per explanation, error includes competency of the authority to grant sanction and therefore present controversy comes within the definition of error. In the absence of anything to show that any defect or irregularity therein caused a failure of justice, the plea is without substance. A failure of justice is relatable to error, omission or irregularity in the sanction. Therefore, a mere error, omission or irregularity in the sanction is not considered to be fatal unless it has resulted in a failure of justice or failure of justice has been occasioned thereby. Section 19(1) of the PC Act, 1988 is procedural provision and does not go to the root of the jurisdiction and it is well settled legal position that once the cognizance has been taken validly by the Court under Cr.P.C., it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance. (vide Kalpnath Rai (AIR 1998 SC 201: 1997 AIR SCW 4166) (supra); State of Orissa v. Mrutunjaya Panda, AIR 1998 SC 715 : (1998 AIR SCW 403). However, one cannot see a sound reason for special Court to take cognizance without valid and proper sanction order in accordance with law. 11. Another submission on behalf of the appellant is that the investigation was not by the Officer authorized to investigate in view of section 17 of the P.C. Act. However, one cannot see a sound reason for special Court to take cognizance without valid and proper sanction order in accordance with law. 11. Another submission on behalf of the appellant is that the investigation was not by the Officer authorized to investigate in view of section 17 of the P.C. Act. Learned A.P.P., however, brought to my notice that the Government of Maharashtra, Home Department, by an order No. ACB- 3059, V dated 23/10/1961, had clarified that any officer of the rank of the Police–sub Inspector of the Anti corruption and prohibition intelligence Bureau of the Maharashtra State investigating in the State shall be deemed to be an Officer-in-charge of the police station within the limits in which the investigation is done. Further more, by the order bearing No. MIS 0389/767/CR-140/POL-3, dated 19/04/1989, the Government of Maharashtra, in exercise of the Power conferred under first proviso to Section 17 of the PC Act,1988, all the Inspectors of the police are authorized to arrest without a Warrant and investigate any offence punishable under the P.C. Act. The submission from the learned Advocate for the Appellant that the investigation was not by the Competent Police Officer can not be accepted. 12. On merits, it is submitted by the learned Advocate for the appellant that the Prosecution had failed to prove the offence beyond reasonable doubts. While receipt of the Report was on 15/01/1991 (Ex.18), the entry regarding the fate of the trap whether successful or not is taken. Entry regarding the receipt of the complaint was taken on 15/01/1991 at 15.00 hours. This important register was not produced in evidence upon lame excuse that the witness did not feel it necessary to do so. The contradictory nature of the evidence is also pointed out in the evidence. While Hokam (PW-1) stated that he gave signal as per instructions when the accused allegedly accepted the amount Panch witness Wadhai (PW-2) claimed that he had given the signal. The question arise as to who is the true witness. Learned Advocate for the Appellant, therefore, submitted when two views are available from the evidence regarding existence of the guilt, the benefit of doubt must go the accused. In the ruling of HanmantappaMurtyappa Vijapure since deceased through LRs. Sunanda Hanumanta and Ors. vs. State of Maharashtra, 2004 (3) Mah. The question arise as to who is the true witness. Learned Advocate for the Appellant, therefore, submitted when two views are available from the evidence regarding existence of the guilt, the benefit of doubt must go the accused. In the ruling of HanmantappaMurtyappa Vijapure since deceased through LRs. Sunanda Hanumanta and Ors. vs. State of Maharashtra, 2004 (3) Mah. L. J. 410, the Bombay High Court, considering the triviality of bribe of Rs 150/-and the fact that the appeal was being prosecuted by the dependant legal heirs of the Government servant (accused), in order to enable them to get the Provident fund and gratuity or other benefits because of the death of original accused and also considering the fact that the sanctioning authority did not consider whether without going into other aspects of the matter, the departmental inquiry was just and proper in the circumstances of the case looking to the triviality of the amount decided to set aside the conviction. Applying the above ratio to the facts in the present case as well as considering that the sanctioning Authority could have advised the alternative of the departmental inquiry as enough to examine lack of integrity or action in the manner unbecoming of an employee of the Municipal Authority instead of the prosecution in the facts and circumstances of the case since the amount of alleged bribe was Rs 200/-only. It is a fact of common knowledge that mutation proceedings conducted by the local/revenue authority and entry/entries taken, if any, are subject to decision of the competent Civil Court. One may hardly believe that a tax superintendent or Municipal Council will demand Rs.200/- only as a consideration or illegal gratification for to keep mutation proceedings pending until final decision in Civil suit. Hence, the instant appeal deserves to be allowed. For the aforesaid reasons, therefore, the appeal is allowed. The impugned Judgment and order is set aside. The appellant is given benefit of doubt under the circumstances and acquitted of the charges under Section 7 read with 13(2) and 13(1) (d) of the Prevention of Corruption Act. Fine amount, if paid, be refunded to the Appellant.