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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.434 OF 2004
Vasant Dadaji Mokashi,
Aged 59 years,
R/o Plot No.1412, New Nandanwan,
Nagpur. .... APPELLANT
VERSUS
The State of Maharashtra,
through its State C.I.D. (Crime),
Nagpur. .... RESPONDENT
______________________________________________________________
Shri N.D. Khamborkar, Advocate for the appellant,
Ms. Trupti Udeshi, Additional Public Prosecutor for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 13 DECEMBER, 2017.
th ORAL JUDGMENT :
Exception is taken to the judgment and order dated 18/19-6-2004 passed by the learned Judge, Special Court, Nagpur in Special Case 3/1993, by and under which the appellant is convicted for offence punishable under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 and is sentenced to suffer simple imprisonment for one year and to payment of fine of Rs.2,000/-. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:06:36 :::
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2. The appellant (hereinafter referred to as the "accused) faced trial alongwith four others namely Waman Burde, Madhukar Zarkar, Wamanrao Bhasme and Mahadeo Kale. Wamanrao Bhasme and Mahadeo Kale were charged for offences under the provisions of the Indian Penal Code while the accused, Waman Burde and Madhukar Zarkar were charged for having committed offence punishable under the Prevention of Corruption Act.
3. The accused was working as Junior Clerk in the office of the District Deputy Registrar, Co-operative Society, Nagpur from January 1987 to July 1987. Co-accused Wamanrao Bhasme was desirous of registering a co-operative housing society and to the said end used a forged agreement to sell purportedly executed by one Sitaram Rangari in relation to land Khasra 15/3, Mankapur. The allegation against the accused is that during the enquiry conducted by State C.I.D., it was found that co-accused Waman Burde directed Wamanrao Bhasme and P.W.11 Shridhar Ghatate to contact the accused. The accused conveyed to co-accused Wamanrao Bhasme and P.W.11 Shridhar Ghatate that an amount of Rs.8,000/- will have to be paid for facilitating the registration of the society including the preparation of the documents.
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3 apeal434.04 During the investigation, which was ordered in view of the findings recorded in the administrative enquiry conducted by a senior officer Shri Sudhir Thakare, it transpired that the agreement to sell which was a necessary document to be submitted alongwith the application for registration of society, was forged.
4. The investigating agency, upon completion of the investigation, sought sanction to prosecute the accused, which sanction order is marked Exhibit 165 on the record of the trial Court. In due course, charge-sheet was submitted in the Special Court and the learned Judge, Special Court framed charge (Exhibit 87) against the accused for offence under Section 5(1)(d) punishable under Section 5(2) of the Prevention of Corruption Act, 1947. The accused pleaded not guilty and claimed to be tried in accordance with law. The defence is of total denial and false implication.
5. Shri N.D. Khamborkar, learned Counsel for the accused submits that the sanction order Exhibit 165 is vitiated due to non- application of mind and the prosecution is void ab initio for want of legal and valid sanction.
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6. The learned Counsel for the accused is justified in the submission that the sanction is invalid. The sanction order Exhibit 165 reads thus :
"Sanction Order, dated 16-8-1990 No. Establishment-2/7 D.E./Registration Housing/90, Office of the Divisional Joint Registrar, Co-operative Societies, Nagpur, Dated - 16th August, 1990.
Read -
1) Letter No.1506/90, dated 18-6-1990 from the Deputy Superintendent of Police , Crime Investigation Department (Crime), Nagpur Range, Nagpur.
2) Letter No.1505/90, dated 18-6-1990 from the Deputy Superintendent of Police, Crime Investigation Department (Crime), Nagpur Range, Nagpur.
3) Letter No.1725/90, dated 12-7-1990, Deputy Superintendent of Police, Crime Investigation Department (Crime), Nagpur Range, Nagpur.
Order:
Whereas the below named subordinate employees of this office are the Government Servants, and whereas they violated the provisions of I.P.C. shown against their names, they are liable to be charge-sheeted. Hence the Deputy Superintendent of Police Crime Investigation Department (Crime), Nagpur Range, Nagpur sought permission for filing the charge-sheet against them in the Court of law for the offence committed by them.
Names of Employees Names of offence
1) Shri Madhukar Keshavrao Zarkar, Crime No.446/88, U/Secs.
Ex. Co-operative Officer, Grade-I, 5(1)(d)R/W 5(2) of
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Nagpur,presently Co-operative Officer, Prevention of
Grade-II, under Assistant Registrar, Corruption Act
Co-operative Societies, Taluka-Bhandara. and Sections 471, 467,
107 and 34 I.P.C.
2) Shri Vasant Dadaji Mokashi, - As above.
Ex. Junior Clerk, Nagpur,
presently Junior Clerk under
Assistant Registrar, Co-operative
Societies, Taluka - Mouda,
District - Nagpur.
3) Shri R.N. Kale, - Crime No.279/90,
Ex. Co-operative Officer, U/Secs. 471, 167, 420
Grade-1, Nagpur Presently R/W 34 I.P.C.
Head Clerk under District
Deputy Registrar, Co-operative
Societies, Bhandara.
4) Shri Bhagwat M. Deshkar, -Crime No.279/90,
Ex. Co-operative Officer, U/Secs 471, 167, 420
Grade-II, Nagpur presently Junior R/W/ 34 I.P.C.
Clerk under District Deputy
Registrar, Co-operative Societies,
Bhandara.
5) Shri Madhusudan W Katangale, -Crime No.280/90,
Ex. Co-operative Officer, Grade-II, U/Secs. 471, 420, 34
Nagpur presently Assistant I.P.C.
Co-operative Officer, Under
Assistant Registrar, Co-operative
Societies, Taluka-Samudrapur,
District Wardha.
6) Shri D.B. Bande, -Crime No.291/90,
Ex-Co-operative Officer, Grade-II, U/Sec. 467, 471, 420,
Nagpur, presently Assistant Co- 34 I.P.C.
Operative Officer, under Assistant
Registrar, Co-operative Societies,
Taluka - Pawni, District- Bhandara.
Hence, the Deputy Superintendent of Police, Crime Investigation Department (Crime), Nagpur is granted permission to ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:06:36 ::: 6 apeal434.04 file charge-sheet under the said sections in the Court of Law.
Sd/- Illigible For Divisional Joint Registrar, Co-operative Society, Nagpur.
Office copy signed by The Divisional Joint Registrar, Co-operative Society.
Copy submitted to :
1) The Deputy Superintendent of Police, Crime Investigation, Department (Crime), Nagpur Range, Nagpur.
2) The Commissioner for Co-operation and Registrar of Co-operative Societies, Maharashtra State, Pune-1, for information with reference to his office letter bearing No. Establishment A-2, H.C. 2-Complaint - Burde-90, dated 28-6-1990.
Office copy signed by sd/-Illigible
The Divisional Joint Registrar Divisional Joint Registrar,
Co-operative Society. For Co-operative Societies,
Nagpur."
The sanctioning authority is not examined and the sanction order is proved by the officer who has signed the sanction order on behalf of the sanctioning authority Shri Ashok Dhote.
Concededly, the sanctioning authority Shri Ashok Dhote had expired and was not available to depose. It is trite law that it is not necessary to examine the sanctioning authority to prove the sanction. However, ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:06:36 ::: 7 apeal434.04 if the facts constituting the offence are not shown on the face of the sanction, it is incumbent on the prosecution to prove by extraneous evidence that those facts were placed before the sanctioning authority.
7. It is not res integra and I need not burden the judgment by referring to the plethora of authorities, that a valid sanction is a condition precedent to the institution of the prosecution and Court is denuded of the jurisdiction to try the offence in the absence of valid sanction. It would suffice to refer to the following observations of the Hon'ble Apex Court in the case of Mohd. Iqbal Ahmed vs. State of A.P. reported in AIR 1979 SC 677:
"3. A perusal of the Resolution of the Sanctioning Authority clearly shows that no facts on the basis of which the prosecution was to be sanctioned against the appellant are mentioned in the sanction nor does this document contain any ground on which the satisfaction of the Sanctioning Authority was based and its mind applied. This document merely mentions that the sanction has been given on the basis of a note of the Commissioner, Municipal Corporation which appears to have been placed before the Committee. It is obvious, therefore, that this note, if any, must have come into existence either on 31-3-1969 or at any date prior to this. The prosecution could have proved the facts constituting the offence which were placed before the Sanctioning Authority by producing the note at the trial. But no such thing has been done. What the prosecution did was merely to examine two witnesses P.Ws. 2 and 7. P.W. 2 has ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:06:36 ::: 8 apeal434.04 produced the order implementing the Resolution of the Sanctioning Authority which is Exhibit P-10 and is dated 21st April, 1969, that is to say after the sanction was given. This document no doubt contains the facts constituting the offence but that does not solve the legal issues that arise in this case. It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficulty (sic-defect) in the prosecution, the entire proceedings are rendered void ab initio. In the instant case no evidence has been led either primary or secondary to prove as to what were the contents of the note mentioned in Exhibit P-16 which was placed before the Sanctioning Authority. The evidence of P.W. 2 or P.W. 7 is wholly irrelevant because they were not in a position to say as to what were the contents of the note which formed the subject matter of the sanction by the Standing Committee of the Corporation. The note referred to above was the only primary evidence for this purpose. Mr. Rao vehemently argued that although the Resolution, Exh. P-16 does not mention the facts, the Court should presume the facts on the basis of the evidence given by P.W. 2 and the order implementing sanction which mentions these facts. This argument is wholly untenable because what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. 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 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:06:36 ::: 9 apeal434.04 against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
(emphasis supplied)"
8. The sanction order Exhibit 165 discusses nothing. Except for referring to the crime number and the offences alleged, the sanction order which purports to be an order granting permission to file charge- sheet, does not make a reference to a single fact which allegedly constituted the offence. The prosecution has not proved, by adducing extraneous evidence that all necessary facts were placed before the sanctioning authority and that the sanctioning authority after due application of mind was satisfied that sanction be accorded.
9. In view of my finding that the sanction is bad in law, ordinarily the case could have been remitted back to the authority for reconsideration and to pass a fresh order of sanction in accordance with law. But then, the incident is of the year 1987 and it would be unjust and indeed contrary to the mandate of Article 21 of the Constitution of India to, force the accused to face the agony of a trial after thirty years. It would be apposite to refer to the following observations of the Hon'ble Apex Court in the case of Mansukhlal ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:06:36 ::: 10 apeal434.04 Vithaldas Chauhan vs. State of Gujrat reported in AIR 1997 SC 3400:
"39. Normally when the sanction order is held to be bad, the case is remitted back to the authority for reconsideration of the matter and to pass a fresh order of sanction in accordance with law. But in the instant case, the incident is of 1983 and, therefore, after a lapse of fourteen years, it will not, in our opinion, be fair and just 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 part of right to life, philosophizes early end of criminal proceedings through a speedy trial.
(emphasis supplied)"
10. The judgment and order impugned is set aside. The accused is acquitted of the offence punishable under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947.
11. Bail bond of the accused shall stand discharged. Fine paid by the accused, if any, be refunded to him. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:06:36 :::
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The appeal is allowed accordingly.
JUDGE
adgokar
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