Research › Search › Judgment

Bombay High Court · body

2020 DIGILAW 226 (BOM)

Arun Ramchandra Kale v. State of Maharashtra

2020-01-30

S.M.MODAK

body2020
JUDGMENT : 1. The appellant, a Telecom Mechanic working with Bharat Sanchar Nigam Limited (hereinafter referred to as “BSNL” for short) was convicted for accepting illegal gratification by the Special Judge, Khamgaon, District Buldhana on 9th March, 2004. The conviction was under Section 7 and 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act. The correctness of the said judgment is challenged before this Court by him. Apart from the usual grounds of reliability of the testimony of the complainant, the appellant-accused took two more objections. One pertains to the authority of State Anti Corruption Bureau to investigate an offence against him (who is an employee of the Government company) and second pertains to lack of competency in the sanctioning authority to grant sanction. Alternatively, he has also taken a ground that being the employee of BSNL, he cannot be said to be a public servant (who was earlier employee of Department of Telecom and who is now absorbed in BSNL) and hence cannot be prosecuted under the provisions of Prevention of Corruption Act. 2. The appeal needs to be considered on these points. Learned Advocate Shri S.D. Chande argued on behalf of the appellant-accused, whereas Learned Additional Public Prosecutor Shri S.A. Ashirgade argued for the State. He relied upon some citations. Both of them assisted me in going through the record and citations. I am required to decide the appeal on the following points. (1) Whether the case of the complainant about demanding and accepting illegal gratification by the appellant for repairing his telephone is acceptable or not? (2) Whether the evidence on pre-trap and post-trap formalities is convincing? (3) Whether the appellant being an employee of BSNL is a public servant? (4) Whether the State Anti Corruption Bureau is competent to investigate the offences against the employee of B.S.N.L.? (5) Whether Telecom District Manager is competent to grant sanction and whether there is application of mind? (6) Is there any need to interfere in the findings of the final order? PROSECUTION STORY AND THE EVIDENCE 3. Complainant-Suresh Eknathrao Mehsare was resident of Sulaj, Tahsil Jalgaon Jamod, District Buldhana. He was having a telephone connection, which was not working. The appellant being a Telephone Mechanic, was having the task of repairing the telephone connection within the area of Jalgaon Jamod. That is not disputed. PROSECUTION STORY AND THE EVIDENCE 3. Complainant-Suresh Eknathrao Mehsare was resident of Sulaj, Tahsil Jalgaon Jamod, District Buldhana. He was having a telephone connection, which was not working. The appellant being a Telephone Mechanic, was having the task of repairing the telephone connection within the area of Jalgaon Jamod. That is not disputed. What is disputed is, whether the appellant being an absorbed employee of BSNL, is a public servant or not. There are two versions to that issue. One is, the complainant’s version. The demand for Rs.400/- was made on 11/02/2002 for the first time and unhesitatingly the complainant agreed for Rs. 300/-. It prompted the complainant to take the assistance of Anti Corruption Bureau on that date. Whereas, the appellant’s version is, he removed the fault on 12/02/2002 and he has not demanded the amount and in fact Rs.300/- was given to him forcibly. He has also suggested one reason for false implication. The department was anticipating an action against the complainant for shifting of the telephone without permission and that is why false complaint is lodged. There is a defence witness viz. Shri Ashok Ramdas Wankhede examined to show what happened on that day. 4. The learned Special Judge has not accepted the version of the appellant and testimony of Ashok Wankhede. Certain lacunaes are pointed out in the evidence of the complainant and that of Shri Gajanan Bhikabhai Kate, the Telephone Operator-cum-Clerk [PW-3]. The incident of demand of Rs.400/- and settling it at Rs. 300/- by the appellant has got a background. Shifting of telephone. 5. Originally the telephone connection of the complainant was at village Sulaj. From there, it was transferred to Village Asalgaon. It was installed in a room owned by one Shri Rajankar. When the incident took place, at that time, the telephone connection was installed in the shop of brother of the complainant at Village Asalgaon. The appellant suggested two reasons for transfer of the telephone connection from the room owned by Shri Rajankar to the shop of brother of the complainant. Police raided the room owned by Shri Rajankar and that is why, it was shifted, is one of the reason. Whereas, another reason is, not satisfying the demand for excess rent made by Shri Rajankar. It was suggested during cross-examination. The reasons are immaterial. Police raided the room owned by Shri Rajankar and that is why, it was shifted, is one of the reason. Whereas, another reason is, not satisfying the demand for excess rent made by Shri Rajankar. It was suggested during cross-examination. The reasons are immaterial. Permission for transfer of telephone connection from the room of Shri Rajankar to the shop of brother of the complainant, was not obtained as per the appellant’s version. Though there is a reason to believe that it was transferred to the shop of complainant’s brother, there is no material to infer that any action is contemplated by the BSNL against the complainant for illegal transfer. Neither any of the witnesses have accepted the theory of plausible action, nor there are documents filed to that effect by the appellant. This theory has remained only as a defence taken some how to create doubt about bona fides of the complainant. It does not find favour with the trial Court as well as to this Court. Earlier complaints 6. Prior to filing written complaint with one Gajanan Kate, the complainant tried his level best for repairing of his telephone connection. The written complaint dated 11/02/2002 at Exh.13 is tendered in his evidence. Prior to 11/02/2002, the complainant has availed of the facility of giving the complaints by dropping it in a complaint box. It was on 06/02/2002 and on 09/02/2002. The box was at village Asalgaon, whereas the witness Kate was sitting at Jalgaon Jamod Office. The complaints dated 06/02/2002 and 09/02/2002 were seized during investigation. They were shown to the complainant during his evidence. He identified his signatures on it. They are at Exhs.-14 and 15. At that time, there was no occasion for the complainant to interact with the appellant. So, it is but natural that the question of demanding illegal gratification on both these occasions does not arise. Incident of 11-02-2002 7. It will be material to consider what has happened on 11/02/2002. For that purpose, the evidence of the complainant and Gajanan Kate is material. The appellant for the first time met the complainant when he was coming out of the Office at Jalgaon Jamod and that too after filing written application. Whereas, according to the witness-Gajanan Kate [PW-3], he has completed the procedure by accepting the written application, giving acknowledgment and entering into inward register. The appellant for the first time met the complainant when he was coming out of the Office at Jalgaon Jamod and that too after filing written application. Whereas, according to the witness-Gajanan Kate [PW-3], he has completed the procedure by accepting the written application, giving acknowledgment and entering into inward register. He gave that complaint to the appellant when the appellant came to the office after half an hour. The appellant assured witness - Kate to repair the telephone on 12/02/2002. The question is, whether there is an inconsistency. The answer will be no. Because, it is but natural for the witness-Kate to be unaware about what has happened outside his Office. He may not know what was the conversation between the complainant and the appellant that took place outside the Office. Evidence of demand and acceptance 8. First time there is a demand of Rs. 400/- on 11-02-2002 and it was reiterated on 12-02-2002 in the presence of shadow panch PW-2- Ravindra Sonune. First there was a demand of Rs. 400/-. It was reduced to Rs. 300/-. The complainant had chosen to approach the office of ACB on 11-02-2002, instead of making protest against the appellant to his superior. These are two forums available. The scope of enquiry by these two authorities is different. Ultimately, there is a choice for an aggrieved person. 9. The appellant was entrusted to remove the faults in telephone lines. The appellant went towards telephone pole from which the connection is given to the complainant and he has removed the fault. This happened after the complainant and shadow witness went to the office of the appellant on 12-02-2002 at Buldhana. Initially, the office of the appellant was closed. The conduct of the appellant in removing the fault prior to accepting the bribe was emphasized on his behalf. It was suggested that the appellant has already performed his duties and in fact the appellant never intended to accept the amount and in fact the amount is foisted on him. 10. It is very well true that the appellant has done his job and also checked whether the telephone connection was started. But one cannot forget the fact that the appellant reiterated the demand prior to visiting the spot. It was deposed by the complainant and corroborated by the shadow witness Shri Sonune. 11. 10. It is very well true that the appellant has done his job and also checked whether the telephone connection was started. But one cannot forget the fact that the appellant reiterated the demand prior to visiting the spot. It was deposed by the complainant and corroborated by the shadow witness Shri Sonune. 11. If the evidence of these two witnesses is read together, we can find that there is a consistency amongst them. Learned Advocate Shri Chande tried to plead that the evidence on the point of demand is not satisfactory. According to him, the appellant met the complainant for the first time on 11-02-2002, and in earlier complaints there is no demand of the amount. These complaints were not seized. It is not true. Both the complaints were found in the complaint box when IO-Mahale opened it after the trap. They were shown to complainant. It is but natural that reference of demand is not there. Because appellant has not met him till that time. If these complaints could have attended in time this incident ought to have been avoided. On the point of demand he relied upon the following citations – (a) Gajanan s/o Lobhaji Dahale vs. The State of Maharashtra, reported in 2017 ALL MR (Cri) 4812. (b) Sanjay s/o Ishwar Bhanushali vs. The State of Maharashtra, reported in 2016 ALL MR (Cri) 3153. (c) Harishchandra Prabhakar Borkar vs. State of Maharashtra, reported in 2017 ALL MR (Cri) 4203. 12. With their assistance, I have read the facts and the observations therein. The observations given in a particular manner is on the basis of facts and the interpretation of law. In Gajanan’s case demand was not reiterated in the presence of shadow panch. There was initial demand only. This was the factor considered for rejection of the prosecution case and ordering of acquittal (paragraphs 14 and 15). 13. Whereas, in case of Sanjay Bhanushali the appellant was the officer of the Enforcement Department of Mumbai Corporation. He demanded Rs.75,000/- initially, and it was reduced to Rs. 60,000/- for not taking action and demolition of loft of the complainant. In that case prior to laying of a trap, there was a verification of demand in the presence of panchas at the instance of the ACB. Initial demand prior to approaching the ACB was for Rs. 60,000/- whereas at the time of verification it was Rs. 60,000/- for not taking action and demolition of loft of the complainant. In that case prior to laying of a trap, there was a verification of demand in the presence of panchas at the instance of the ACB. Initial demand prior to approaching the ACB was for Rs. 60,000/- whereas at the time of verification it was Rs. 45,000/- and Rs. 15,000/- was to be given by way of first installment. There were number of lacunaes including non production of the conversation recorded and variance in between the oral testimony and a contemporaneous record. This Court found the evidence on the point of initial demand unsatisfactory and even the shadow panch has acted as a panch in earlier cases was considered. 14. In case of Harishchandra Borkar on the point of reiteration of demand there was inconsistency in between the testimony of the complainant and shadow panch. So also the testimony of complainant is not as per his complaint. For all these reasons the conviction was set side. 15. As said above, the conclusion drawn in any case depends upon the facts of that case. There are certain principles which emerges from above referred judgments. The evidence given by the complainant in Court as far as possible should be in consistent with the complaint. As far as possible the evidence of the complainant and shadow panch should corroborate with each other. So also the testimony of the complainant should be truthful. 16. If we apply these principles to the facts of the case, I do find that the evidence of the complainant is reliable so far as the initial demand on 11-02-2002 is concerned. Though the appellant has completed his work by visiting the spot prior to accepting the amount, he has reiterated that demand on 12-02-2002. The complainant and PW-2 are the two relevant witnesses. Both have reiterated the same thing. It will also be material to consider the defence put forth by the appellant about the events that took place on the date of trap. Defence put by the appellant 17. Ashok Wankhede is the defence witness. His wife is the customer of BSNL. He had visited the office at Asalgaon. When he visited the office, one person was sitting, he has not stated his name. He and the accused went outside the office for repairing telephone connection. From there both returned to the office. Defence put by the appellant 17. Ashok Wankhede is the defence witness. His wife is the customer of BSNL. He had visited the office at Asalgaon. When he visited the office, one person was sitting, he has not stated his name. He and the accused went outside the office for repairing telephone connection. From there both returned to the office. It is difficult to understand what the accused has achieved by examining this witness. He has referred this incident happened in the month of February, 2002. He has not stated the date even he do not know the name of the person sitting in the office. It cannot be inferred that the person seen by him is none other than the complainant. Even he has not referred about the panch witness. He has not stated that the appellant went some other place for repairing telephone connection of a person none other than the complainant. So his evidence is not of any use to the appellant. 18. Now it be material to consider what was put to the complainant during cross examination. The complainant has denied the theory of presence of one Wankhede in the office and the appellant going along with said Wankhede for repairing telephone connection. So from his cross examination also nothing is elucidated to show the presence of defence witness Shri Wankhede. This theory was also put to the shadow panch/P.W. No.2 and investigating officer during their cross examination. However they too have denied that theory. The accused has uttered that complainant forcibly put the amount in his pocket. This was at the time when Police Constable held his hands. This was admitted by the IO during cross examination and by shadow witness. Even though it may be the immediate reaction, it needs to be substantiated by way of cross examination. It has not happened. Acceptance of the amount 19. After the signal was given Investigating Officer-Deputy Superintendent of Police Shri Devidas Mahale (PW-6) and panch no.2 went to the office of the accused. On reading their evidence and that of the complainant Mehsare following thing emerges:- (a) Police Constable held both the hands of the accused, Dy.S.P. Mahale shown his identity, complainant was asked to go outside. (b) Police Naik Bhagat dipped his fingers in the solution but its colour has not changed. It was thrown. On reading their evidence and that of the complainant Mehsare following thing emerges:- (a) Police Constable held both the hands of the accused, Dy.S.P. Mahale shown his identity, complainant was asked to go outside. (b) Police Naik Bhagat dipped his fingers in the solution but its colour has not changed. It was thrown. (c) Fresh solution prepared and accused had dipped his right and left hand fingers separately. On both the occasions the colour changed to violet. They were taken into bottle and they were sealed (2 bottles). (d) During search of the accused by panch no.2 six notes of Rs.50/- denomination were found, fresh Sodium Carbonate solution was prepared. There were spots of violet colour. Their numbers tallied with the numbers mentioned in the panchanama. The notes were seized and sealed. (e) The left pant pocket of the accused was checked by sprinkling the solution, the colour changed to violet. Pant was seized. (f) Seizure memo for two bottles, six notes and pant of accused was prepared. It is at Exh-19. (g) The complaint box hanged outside office was opened with a key. The complaints dated 06-02-2002 and 09-02-2002 made by complainant were found in it along with complaint by other subscribers. They were seized as per seizure memo at Exh-20. After entry of complainant in the office (a) His right hand fingers were checked. Colour of the solution turned into violet. The solution was kept in a bottle and it was sealed. Exh.34 is the seizure memo. (b) Left front shirt pocket of complainant was dipped in a fresh solution, the colour changed. The solution was kept in a bottle and it is seized. The memo is at Exh-34. (c) Measurement of the spot was taken. The map is at Exh-35. (d) Panchanama at Exh-21 was prepared. (e) Search of the house of the accused was taken. (f) Dy.S.P. Mahale lodged a complainant with Jalgaon Jamod Police Station. It is at Exh.38. At the spot, two bottles (containing the solution in which the fingers of both the hands of the accused were examined), one bottle (containing the solution in which right hand fingers of the complainant were examined) and another bottle (containing the solution in which left side chest shirt pocket of the complainant was examined) in all four bottles were seized. So also full pant of the accused was seized. So also full pant of the accused was seized. The panch and Investigating Officer have deposed and identified their signatures on relevant seizure memos. Dy.S.P. Mahale as per the forwarding letter dated 05-04-2002 (Exh.40) has sent these muddemal properties to the Chemical Analyzer. It was PW-4-Sanjay Lahane, Police Naik, who carried the muddemal to the Chemical Analyzer. The acknowledgment is at Exh-50 and the report is at Exh-25. His evidence is unchallenged. The Chemical Analyzer have noticed Phenolphthalein powder and Sodium Carbonate in four bottles. Whereas Phenolphthalein powder was detected on the full pant. It is the pant of the accused. 20. The notes found were the same notes which were handed over by the complainant at the time of drawing of panchanama no.1. Their numbers tallied with the numbers mentioned in the panchanama. The complaint given on 11-02-2002 is at Exhibit-12. On 12-02-2002, the introduction in between the complainant and panchas was done and verification of the complaint was also done. ASI- Wankhede was also present on that time. He gave demonstration of reaction of phenolphthalein powder on Sodium Carbonate solution. The Investigating Officer Shri Mahale has admitted about explanation given by the accused immediately when his hands were held by the Constable after the trap. The complainant forcibly put the amount in his hands was the explanation given by him. This was also told by shadow panch (PW-2)- Ravindra Sonune. 21. During examination-in-chief the complainant has given the details about how he paid the amount to the appellant. After the appellant has removed the fault by visiting the spot they returned to the office. The appellant checked the number by dialing and the phone of the complainant was found in order. At that juncture also the appellant demanded the amount of Rs. 300/-. It was given by the complainant and the appellant accepted as it with his right hand and kept it in left pocket of the pant. This was also stated by shadow panch Shri Sonune during examination-in-chief. The explanation given by the appellant that “the amount was forcibly given to him” is one thing and “happening of event” in a particular manner is another thing. Merely because, the appellant has given that explanation it does not mean that really the complainant has forcibly given the amount. It is true that by way of cross-examination the appellant could have probabilize this defence but, it has not happened. Merely because, the appellant has given that explanation it does not mean that really the complainant has forcibly given the amount. It is true that by way of cross-examination the appellant could have probabilize this defence but, it has not happened. So, the explanation by the appellant has remained only explanation. The observations in the judgments relied upon by the appellant will not be useful to him. Because initially and even at the time of trap the complainant has stated about the demand. It is corroborated by the shadow panch. I do not find that the testimonies of the complainant, shadow panch and investigating officer were seriously challenged on the point of completing the formalities. From the above evidence, there is a reason to believe the theory of acceptance of Rs. 300/- by the appellant from the complainant. There is reason to believe that pre trap and post trap formalities were followed in true spirit. Status of B.S.N.L. 22. There is a lot of argument on behalf the appellant about the nature of business carried out by the BSNL and it is not Government Company. In a case of General Manager, Telecom Vs S. Srinivasa Rao and others, reported in AIR 1998 SC 656 , the Hon’ble Supreme Court dealt with an issue whether Telecom Department of Union of India is an ‘industry’ within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. What is the test for deciding such question has been reiterated. It has been held that running a Telecom Department is not a sovereign function of the State but it is a commercial activity and as such it is industry. It is important to note that what is the issue involved and the background in which it is involved are important. The observations are made on the background of dispute arsing out of the provisions of the Industrial Disputes Act. 23. A decision in case of Bharat Sanchar Nigam Limited and others vs. Pramod V. Sawant and another (Criminal Appeal No.503/2010), decided on 19-08-2019 by the Hon’ble Supreme Court) was relied upon. There the employees of BSNL were prosecuted for not employing the security guards under the Security Guards Board. The BSNL was registered with the Board. There was a prosecution for not complying the provisions of the Maharashtra Private Security Guards Act, 1981. There the employees of BSNL were prosecuted for not employing the security guards under the Security Guards Board. The BSNL was registered with the Board. There was a prosecution for not complying the provisions of the Maharashtra Private Security Guards Act, 1981. The Hon’ble High Court refused to quash the criminal proceeding and negated the contention that the employees of BSNL are the public servants. 24. It was also negated that “the sanction under Section 197 of the Cr.P.C. is required prior to their prosecution”. This view was confirmed by the Hon’ble Supreme Court. Learned Advocate Shri Chande relied upon the said observations in support of his contention that the appellant cannot be said to be a public servant whereas learned Addl.P.P. distinguished the provisions of Section 197 of the Cr.P.C. and of the provisions of Section 19 of the P.C. Act. Conclusion 25. It is true that in Pramod Sawant’s case (supra) the provisions of Section 197 of Cr.P.C. and meaning of the words ‘public servant’ given in Section 21 of the Indian Penal Code were considered. 12th Clause of Section 21 lays down the category of person in the service of Government, local authority, Corporation or Government Company. Whereas, clause (c) of Section 2 of the P.C. Act gives the meaning of the words ‘public servant’. There are also 12 categories. Category no.(iii) also lays down similar category of person which has been laid down in clause 12th of Section 21 of the Indian Penal Code. 26. We do not find any dispute that the BSNL is a company as defined in Section 617 of the Companies Act, 1956. The certificate for commencement of business issued by the Deputy Registrar of Companies to the BSNL dated 19-09-2000 is there in the record of the trial Court. The trial Court has dealt with this issue and observed that the BSNL is a Government Company. Now the issue is whether on the basis of observations by the Hon’ble Supreme Court in case of Pramod Sawant (supra), whether the findings by the trial Court can be set aside. 27. The issue seems to be simple but, it is difficult to answer. Because, one cannot simply apply the observations in one case to the facts of the other case. The Hon’ble Supreme Court has dealt with the issue whether the Corporations, undertakings and Companies fall within the definition of the State. 27. The issue seems to be simple but, it is difficult to answer. Because, one cannot simply apply the observations in one case to the facts of the other case. The Hon’ble Supreme Court has dealt with the issue whether the Corporations, undertakings and Companies fall within the definition of the State. On the basis of the facts the question was answered. It is pertinent to note that the answer also depends on the background of the litigation. That is to say whether there is a breach of any industrial law, contractual obligations, law creating any offence. The Hon’ble Supreme Court in Pramod Sawant’s case relied upon various cases prominent amongst them is Mohd Hadi Raja vs. State of Bihar, reported in (1998) 5 SCC 91 . The Hon’ble Supreme Court dealt with several petitions involving a common question of law. The issue was whether the officers of public sector undertakings or Government companies can avail of the protection under Section 197 of the Cr.P.C. It has been observed that- “27. Therefore, in our considered opinion, the protection by way of sanction under Section 197 of the Code of Criminal Procedure is not applicable to the officers of government companies or the public undertakings even when such public undertakings are “State” within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the Government. ……...” 28. On this background it will be important to see the provisions of Section 197 of the Cr.P.C. and Section 19 of the PC Act. Section 19 of the PC Act lays down – (a) the offences under the PC Act for which sanction is required. (b) it also lays down the competent authority who can grant the sanction. Whereas Section 197 of the Cr.P.C. does not lay down the Act and the offences under the said Act for which sanction is required. The word ‘offence’ is used in general sense. It means to say that whichever may be the law which defines a particular act as an offence, the protection under Section 197 of the Cr.P.C. can be availed if conditions there are fulfilled. The said section also lays down which are the competent authority who can grant sanction. There is one area wherein the wordings of Section 197 of Cr.P.C. are different from the words of Section 19 of the P.C. Act. The said section also lays down which are the competent authority who can grant sanction. There is one area wherein the wordings of Section 197 of Cr.P.C. are different from the words of Section 19 of the P.C. Act. The words ‘while acting or purporting the act in the discharge of his official duties ” find place in Section 197(1) of the Cr.P.C.. Whereas these wordings are missing from Section 19 of the P.C. Act. The question is whether it is accidental omission and if not whether it has got a specific intention? It cannot be an accidental omission. It is but natural that legislatures do not expect a public servant prosecuted under P.A. Act either 1947/1988 to take a defence that he did the act in discharge of or purported discharge of official duty. But it is not permissible because of absence of those wordings. Now it need to be seen the facts of Prakash Sawant. 29. We cannot overlook the background in which observations are made. There was a grievance about non compliance of statutory obligation created under Maharashtra Private Security Guards Act, 1981. The BSNL being a Company is prosecuted being an establishment. So also its officers in-charge of the business were prosecuted. There was an allegation of not employing the guards from security Board. These guards are required for securing the offices of BSNL. Through these officers, BSNL carries on its business. No doubt earlier running telecom business was the activity of Department of Telecommunication which is the wing of the Government. 30. However, as per the policy of Government, the business of telecom was detagged from the Department of Telecommunication and separate Company by name BSNL is formed which is registered under the provisions of Companies Act. Government still holds shares in it. So from the stage of complete control over the business, stage of running it through Government Company was reached. So such an activity can neither be said to be free from Government policies nor can be said to be an activity having control of the Government. The Board of Directors of the BSNL are having liberty to take decision but not just like a private company. Ultimately the representatives of Government on the Board of Directors of BSNL are bound to shape the polices of BSNL. 31. On this background the issue raised before this Court need to be answered. The Board of Directors of the BSNL are having liberty to take decision but not just like a private company. Ultimately the representatives of Government on the Board of Directors of BSNL are bound to shape the polices of BSNL. 31. On this background the issue raised before this Court need to be answered. When there is an issue of adherence to industrial law, Telecom Department was held to be an industry and doing commercial activity and is not performing sovereign function. It was held in case of General Manager Telecom (supra). 32. In both these cases on one hand individual/individuals (either claiming status of an employee or an aggrieved person under the criminal law) are there and on the other hand wrong doer the establishment of BSNL was there. The grievance was there for non compliance of the law by BSNL (and not against the officers/ employees of BSNL). The officers of BSNL were not impleaded in their individual capacity but being the officers. 33. On this background in case of Pramod Sawant defence was raised that BSNL is not a industry but a department of Government. Defence was raised that BSNL is a Government company and officers are public servants as defined under Section 21 of the IPC. The business carried out, the obligations involved/ for which there is a grievance of non compliance are considered. 34. There may be case of breach of fundamental rights by BSNL or its officers and in that eventuality, this Court will have to answer the issue in a different perspective. In a case before us, BSNL as an establishment does not come in to picture. Grievance is not that BSNL as an establishment breached statutory or contractual obligations. Grievance is whether the accused being an employee BSNL has abused his position. Being a mechanic it is part of his duty to repair the faults and keep the connection intact. Now a days, Government has granted telecom license to private companies also. But their employees and employees of BSNL stands on different footings. If considered from all these angles appellant can certainly said to be a public servant. Because he is working for achieving the goal of giving economical service to its subscribers. On this background, when appellant misuses its position and that too to harass the subscriber, he come within the sweep of Prevention of Corruption Act. 35. If considered from all these angles appellant can certainly said to be a public servant. Because he is working for achieving the goal of giving economical service to its subscribers. On this background, when appellant misuses its position and that too to harass the subscriber, he come within the sweep of Prevention of Corruption Act. 35. He cannot get the benefits of the observations in Prakash Sawant’s case I hold that when an employee of BSNL is charged for misusing his position for getting an unfair advantage, then the provisions of P.C. Act will be applicable. He cannot say that he falls outside the scope of P.C. Act. Incompetency of A.C.B. to investigate 36. There is an argument that the appellant being the employee of BSNL which is governed as per the provision of [The] Delhi Special Police Establishment Act, 1946 and hence the ACB cannot investigate the offence. This view is countenanced by the learned Addl.P.P. Shri Ashirgade. He relied upon the provision of Section 17 of the P.C. Act. Conclusion 37. Section 17 deals with the authority who can investigate the offences under the said Act. Section 17 is in three parts, which reads as follows – (a) Inspector of Police can investigate in case of [The] Delhi Special Police Establishment Act. (b) Assistant Commissioner of Police can investigate in the metropolitan areas. (c) Deputy Superintendent of Police can investigate in other areas. Union Territory and State 38. Learned Advocate Shri Chande emphasized on sub-section 1 of Section 2 of the Delhi Special Police Establishment Act. Central Government is empowered to constitute a Special Police Force. It is for the purpose of investigation of notified offences in any Union Territory. So what we gather is the Delhi Special Police establishment is a special establishment and it can investigate the notified offences in any Union Territory. 39. The said establishment may also investigate the offences outside the areas of Union Territory that is in any State if it is notified by the Central Government and as per section 5 of the said Act. Section 6 of the said Act contemplates obtaining a sanction from the State Government prior to enlarging the scope of the establishment over any State. There is no dispute that in a State of Maharashtra the said establishment was empowered at that time to investigate the notified offences. Section 6 of the said Act contemplates obtaining a sanction from the State Government prior to enlarging the scope of the establishment over any State. There is no dispute that in a State of Maharashtra the said establishment was empowered at that time to investigate the notified offences. Now the question is – (a) merely because BSNL is a Government company & (b) merely because the said establishment is empowered to investigate the notified offences in State of Maharashtra. Whether the State Police is ceased of their authority to investigate the offences under the provisions of the Prevention of Corruption Act? 40. If we read Clauses (b) and (c) of Section 17 of 1988 Act, we can find that certain officers are named who can investigate the offences. The nomenclature of Police officers in Metropolitan cities and other than metropolitan cities is different. In Metropolitan cities the head of Commissionerate area is described as Commissioner of Police whereas in district (outside Commissionerate area) he is called as Superintendent of Police. The Police department may be having the internal mechanism about hierarchy of Police officers. Probably the Deputy Superintendent of Police may be equivalent to the Assistant Commissioner of Police. Co-relation of Clauses 41. Now we would like to see whether these three clauses are independent or is any co-relation amongst them. After the wordings of clauses (a) and clause (b) is complete semicolon is used. It indicates that the clauses are independent. So what is the difference in between them You can find that clauses (b) and (c) the officers are named depending upon the geographical area that is to say metropolitan cities and other than metropolitan cities. Whereas in clause (a) there is a reference of the establishment. Reason is simple. The territorial limits of the jurisdiction to investigate by that establishment is incorporated in Delhi Special Police Establishment Act. The said establishment has got jurisdiction to investigate any Union Territory. Ipso facto they do not get authority to investigate any territory of a State unless notified and consented by the State Government. 42. So it may happen that the offence specified as per Section 3 of that Act is committed in the territory of the State and if notification is not issued thereby authorizing the said establishment to investigate in that State, question will arise whether there is no authority to investigate that offence. 42. So it may happen that the offence specified as per Section 3 of that Act is committed in the territory of the State and if notification is not issued thereby authorizing the said establishment to investigate in that State, question will arise whether there is no authority to investigate that offence. Such contingency is not expected to occur by the legislatures and that is why section 17 has been drafted in such a manner that there should not absence of any authority to investigate. 43. So we can infer that in any particular State the Delhi Special Police Establishment can investigate when notified and consented. So also Assistant Commissioner of Police or Deputy Superintendent of Police (depending upon the area) can investigate. It means the said establishment as well as the designated officers have got simultaneous jurisdiction to investigate the offences under the P.C. Act. The trial Court has overruled the objection to that effect. For the reasons given herein above, I agree with the said conclusion and overruled the objection about incompetency to investigate. Incompetency to give sanction 44. Here sanction is granted by Pankaj Biharilal Gupta, Telecom District Manager for Khamgaon Area. It is challenged on the ground of his incompetency to grant sanction to prosecute an absorbed employee of Department of Telecommunication by BSNL. It is also challenged on the ground of non application of mind. In support of that contention the appellant relied upon the following judgment – 1. Maruti Subrao Shinde vs. State of Maharashtra, reported in 2011 ALL MR (Cri) 1968. In that case the appointment of the appellant as Talathi was by Assistant Collector whereas sanction to prosecute was granted by Sub-Divisional Officer who is subordinate to the Assistant Collector. The conviction was set aside. 2. When the Talathi is prosecuted under 1988 Act who is competent to grant sanction was also involved in a case Dattatraya Laxman Bagadi V/S. State of Maharashtra reported in 2017 ALL MR (Criminal) 4622. In that case the Talathi was appointed by the S.D.O so also the S.D.O was sanctioning authority (para 13). The judgment in case of Maruti Shinde was also considered. On facts it was held that the sanctioning authority is competent and there is application of mind. 45. Section 19 of the Act of 1988 is important. Admittedly the BSNL does not come within the purview of the State Government. The judgment in case of Maruti Shinde was also considered. On facts it was held that the sanctioning authority is competent and there is application of mind. 45. Section 19 of the Act of 1988 is important. Admittedly the BSNL does not come within the purview of the State Government. So also the BSNL cannot be said to be the affair of the Union. Even though the BSNL is a Government Company the Central Government is not having full control over it. That is why clause (c) of Section 19 will be applicable and the authority who can remove the delinquent is given as an authority to give sanction. 46. Article 311 of the Constitution lays down certain prohibitions for taking disciplinary action. It gives protection to the Government servant. If at all the employee is to be dismissed he can only be dismissed by appointing authority and the authority higher in rank to him. He cannot be dismissed by the authority inferior to appointing authority. The Divisional Engineer works under Telecom District Manager. There is no other material relied upon by the appellant to show that District Telecom Manager is not appointing and removal authority for Telecom Mechanic. There is an argument that being the erstwhile employee of Department of Telecommunication, approval of Department of Telecommunication is required before taking final decision. Non-application of mind 47. On the basis of not referring the documents by the sanctioning authority in the sanction order, the sanction was held defective in a case Vinod s/o Savalaram Kanadkhedkar vs The State of Maharashtra, reported in 2016 All MR (Cri.) 3697. (page 10). 48. There cannot be any dispute that the sanctioning authority should not grant sanction mechanically. The law expects to apply mind prior to taking appropriate decision. The Court has to verify whether the mind has been applied properly or not. It can be gathered by the Court on the basis of the contents of the sanction order and on the basis of evidence adduced before the Court. Now it will be material to consider the evidence of Pankaj Gupta. 49. Witness Gupta has supplied the information to Deputy Superintendent of Police Shri Mahale vide his letter dated 11-03-2002. The service information and the information about the concerned authority has been supplied. It discloses following things – (i) the appellant was appointed as a regular Mazdoor (class-IV) on 01-04-1994. 49. Witness Gupta has supplied the information to Deputy Superintendent of Police Shri Mahale vide his letter dated 11-03-2002. The service information and the information about the concerned authority has been supplied. It discloses following things – (i) the appellant was appointed as a regular Mazdoor (class-IV) on 01-04-1994. (ii) he was appointed as Telecom Mechanic on 19-01-1999. (iii) the appellant was working as Telecom Mechanic at Asalgaon from 23-11-1998 (Group-’C’) (iv) The appointing and terminating authority is Telecom District Manager, Buldhana. There is no doubt that the witness Gupta is Telecom District Manager. He was asked about the hierarchy of officers working under him. There are Divisional Engineers working under him. So also Sub-Divisional Engineer (administration) works under his control. There was a suggestion that the Divisional Engineer is the appointing and removal authority of Telecom Mechanic. It was denied. He admits that as a Telecom Mechanic he was promoted as per the order of Divisional Engineer. Sanction Order 50. It is very well true that in the sanction order at Exh-28 the witness Gupta has said “upon carefully reading the papers of investigation into Crime No. 3016/2002 of Police Station Jalgaon Jamod and after carefully evaluating the evidence on record”. So he has not specified the papers read by him. In Vinod Kanadkhedkar’s case (supra), there was omission to mention that Rs. 100/- was paid as a bribe in the complaint. Shadow panch has turned hostile. Not specifying documents in the sanction order was held as fatal on the background that complaint is absent on payment towards bribe. When sanctioning authority deals with such complainant, mentioning documents in the sanction order gains importance. Because, it is one of the circumstance indicative of application of mind. 51. In the present case, sanctioning authority received investigation papers one month prior to grant of sanction order. Exh.-13 (written complaint dated 11-02-2002) was included in the investigation papers sent to him. Whereas IO Dy.S.P. Mahale answers that original of Exh-13 was not seized & it was not forwarded to sanctioning authority (paras 20 & 21). It does not mean that the complaint dated 11/02/2002 was not at all sent to sanctioning authority. It seems that Exh.13 is the Office/carbon copy of complaint dated 11/02/2002. It bears the acknowledgment of witness No.3 Gajanan Kate. So, sanctioning authority must have treated Exh.13 as the original. It does not mean that the complaint dated 11/02/2002 was not at all sent to sanctioning authority. It seems that Exh.13 is the Office/carbon copy of complaint dated 11/02/2002. It bears the acknowledgment of witness No.3 Gajanan Kate. So, sanctioning authority must have treated Exh.13 as the original. One may be confused whether Exh.13 is the original or carbon copy. It is a carbon copy. But it is clearly legible. It also bears signature of Dy.S.P. Mahale. Sanctioning authority must have treated Exh.13 as original. For this discussion, I find no lacunae. However, it will not be out of place to mention that provision of sub-section (3) of S. 19 of P.C. Act. This provision gives sanctity to sanction even if any error, irregularity/omission is there in the sanction. Such lacunaes will be recognized only if there is failure of justice. 52. In case of Vinod s/o Savalaram Kanadkhedkar the issue of prejudice was not agitated before this Court. The ratio is not applicable as facts are different. I find perfect application of mind by the sanctioning authority. Mere not referring documents will not make the sanction defective as no failure of justice is shown. I find that District Telecom Manager is competent to give sanction and merely because the appellant is promoted by Divisional engineer it does not make any difference. Because Telecom District Manager is superior to the Divisional engineer. The objections are overruled. Absorption in B.S.N.L. 53. There is an argument that earlier the appellant was employee of Department of Telecommunication and he was absorbed in BSNL after its formation. The appellant was dismissed from the service after his conviction by the trial Court. The said decision was set aside by Hon’ble Central Administrative Tribunal, Nagpur Bench on 03-12-2015. It was set aside for the reasons that the authority who dismissed the appellant is a same authority which has dealt with his appeal against the dismissal. Therein the provisions of Rule 43 of the B.S.N.L.(CDA) Rules, 2006 were looked into (paragraph 22). It says that the dismissal or removal of such absorbed employee will be reviewed before final decision is taken by B.S.N.L. This argument was put forth to buttress the submission that the authority who has given a sanction is not competent to give sanction and it has to be reviewed by the Department of Telecommunication. 54. It has to be rejected. 54. It has to be rejected. BSNL Rules were framed in 2006 and this is the case of 2002. At that time, rules were not in operation. It cannot override the provisions of Section 19 of P.C. Act. The objection is overruled. There is a purpose behind incorporating the provision for reviewing the order of dismissal/removal of an absorbed employee by the Department of Telecommunication. Because such an absorbed employee was earlier an employee of Department of Telecommunication. There is a provision of protecting his earlier service even if such an employee misconducts himself during his tenure in BSNL. Such provision is not applicable to a fresh recruit of BSNL. So the action of dismissal/removal will be having certain effects on retirement benefits. Such an absorbed employee gets certain benefits for his past service as well as certain benefits for his current service. So these provisions has got a different purpose. They cannot be far stretched so as to infer that sanction from erstwhile employer i.e Department of Telecommunication will be required for his prosecution under P.A. Act. If he commits an offence while serving with BSNL, the concerned officers of the BSNL are competent to grant sanction. The objection is overturned. The decision by Central Administrative Tribunal will not be useful to the appellant. Final conclusion 55. For above discussion, I find the prosecution evidence reliable and trustworthy. The trial Court has not discussed the evidence in detail but conclusion drawn is not erroneous. I find no reason to interfere in the conclusion drawn by the trial Court. The substantive sentence for both the offences is two years. There is fine of Rs. 1,000/- for every offence. The appeal is pending since 2004 and the case is of the year 2002. So there is sword hanging on the head of the appellant that one day he will have to go jail. He must have completed 58 years. His appeal against dismissal was allowed and the matter was send back for fresh consideration. 56. In the year 2004, the punishment for an offence under Section 7 of the said Act was six months minimum and five years maximum. Whereas for offence punishable under Section 13(2) of the said Act, it was minimum one year and maximum seven years in the year 2004. The appellant was awarded two years substantive sentence for every offence. 56. In the year 2004, the punishment for an offence under Section 7 of the said Act was six months minimum and five years maximum. Whereas for offence punishable under Section 13(2) of the said Act, it was minimum one year and maximum seven years in the year 2004. The appellant was awarded two years substantive sentence for every offence. So, I feel that the minimum substantive sentence will meet the ends of justice. Hence, the substantive sentence is modified to six months simple imprisonment for an offence punishable under Section 7 of the said Act and one year simple imprisonment for an offence under Section 13(1)(d) punishable under Section 13(2) of the said Act. I am increasing the amount of fine for both the offences. It should be Rs.5,000/- for every offence. Hence, the sentence is modified. The appellant is entitled for set off for the period he has already undergone. He is given one month to pay the remaining amount of fine and also given two months time to surrender before the Special Court. Hence, the following order – ORDER (a) The conviction of the appellant for the offence punishable under Section 7 and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is maintained. (b) The sentence is modified - For the offence under Section 7 of the Prevention of Corruption Act the appellant is convicted and sentenced to suffer simple imprisonment for six months and to pay fine of Rs. 5000/- and in case of default to pay fine amount he is further sentenced to suffer simple imprisonment for one month. (c) For the offence under Section 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act the appellant is convicted and sentenced to suffer simple imprisonment for one year and to pay fine of Rs. 5000/- and in case of default to pay fine amount he is further sentenced to suffer simple imprisonment for two months. (d) The appellant is entitled for set-off for the period already undergone by him. (e) The appellant is given one month time to deposit remaining amount of fine before the Special Court, Buldana. (f) The appellant is given two months time to surrender before the Special Court, Buldana to undergo remaining sentence, if any. (d) The appellant is entitled for set-off for the period already undergone by him. (e) The appellant is given one month time to deposit remaining amount of fine before the Special Court, Buldana. (f) The appellant is given two months time to surrender before the Special Court, Buldana to undergo remaining sentence, if any. (g) In case of failure to surrender as mentioned above, the Special Court, Buldana is at liberty to take steps as permissible by law. (h) The substantive sentence to run concurrently. (i) The appeal is disposed of in the light of above observations.