Bombay High Court
Shyam Sundar Mishra vs State Of Maharashtra, Through ... on 27 April, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.181 OF 2014
Shyam Sunder Mishra,
Aged 59 years,
Working as Additional Principal
Chief Conservator of Forests (Wildlife)
in the O/o PCCF (HOFF), M.S. Nagpur,
R/o Flat No.102, A-1 Building, Forest
Department Housing Society, Seminary
Hills, Nagpur. .... APPLICANT
VERSUS
State of Maharashtra,
through Superintendent of Police,
Anti-Corruption Bureau, Nagpur. ....NON-APPLICANT
______________________________________________________________
Shri S.P. Dharmadhikari, Senior Advocate assisted by Shri R.K. Joshi,
Advocate for the applicant,
Shri A.D. Sonak, Additional Public Prosecutor for the non-applicant.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATE OF RESERVING THE JUDGMENT
: 05-04-2016
DATE OF PRONOUNCING THE JUDGMENT :
27
- 0 4
-201
6
JUDGMENT :
1. Heard S.P. Dharmadhikari, learned Senior Advocate
assisted by Shri R.K. Joshi, Advocate for the applicant and Shri
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A.D. Sonak, learned Additional Public Prosecutor for the non-applicant.
2. Rule. Rule made returnable forthwith.
3. The applicant has filed this revision application
challenging the order passed by the learned Additional Sessions Judge
rejecting the application filed by the applicant under Section 227 of the
Code of Criminal Procedure praying that he be discharged of the
offences punishable under Sections 120-B, 465, 468, 471 and 477-A of
the Indian Penal Code.
4. The relevant facts are as follows :
The applicant had been working in the Indian Forest
Services and was allotted to Maharashtra cadre. By the order dated
19-03-1991, the applicant was directed to assume additional charge of
the post of Deputy Conservator of Forests, Nagpur and he accordingly
held the additional charge for the period from 23-03-1991 till 22-08-
1991. During this period, the office of the Deputy Conservator of
Forests was given the target for implementing the afforestation
programme during rainy season of 1991 and according to the
programme, plantation was to be done at Gorewada and Ambazari
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areas of city of Nagpur. To implement the programme, the
seedlings/saplings were to be transported and for the transportation
the applicant had worked out the rates and had sent the proposal to
the office of the Conservator of Forests, which were sanctioned and
approved.
The applicant handed over the additional charge of
Deputy Conservator of Forests on 23-08-1991. Some irregularities
were noticed in the work of plantation and an open enquiry was
suggested. On 30-07-1994, the applicant was placed under suspension
which was revoked by the Government of Maharashtra on 04-09-1995.
On 02-04-1998, First Information Report was filed by the
Deputy Superintendent, Anti Corruption Bureau (Forest Cell), Nagpur
and as the charges under Section 13(1)(d) of the Prevention of
Corruption Act, 1988 were levelled against the applicant, proposal was
sent to obtain sanction. The sanction was accorded on 07-10-2004.
The charge-sheet included charges in respect of offences under the
Indian Penal Code also.
A departmental enquiry was conducted. The enquiring
authority submitted its report to the Government of Maharashtra. The
advice of Union Public Service Commission was sought. The
Commission sent the communication dated 23-09-2004 advising that
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the proceedings be dropped and the Government of Maharashtra, by
the order dated 03-04-2012, accepted the advice of the Commission
and exonerated the applicant in departmental proceedings.
In the meantime, on 31-03-2010 the Anti-Corruption
Bureau filed charge-sheet against the applicant and co-accused.
The applicant had filed an application before this Court
under Section 482 of the Code of Criminal Procedure, 1973 vide
Criminal Application (APL) No.659/2011 praying that the proceedings
against the applicant be quashed. This Court, by the judgment dated
23-07-2012, partly allowed the application, quashed the charge against
the applicant for the offence under Section 13(1)(d) punishable
Section 13(2) of the Prevention of Corruption Act, 1988, however,
concluded that the prosecution against the applicant for the offences
under the Indian Penal Code to proceed in accordance with law.
The applicant filed an application before the Special Court
under Section 227 of the Code of Criminal Procedure praying that he
be discharged of the offences punishable under Sections 120-B, 465,
468, 471 and 477-A of the Indian Penal Code. The learned Special
Judge, by the order dated 04-09-2013, rejected the application. This
order was challenged before this Court in Criminal Revision
Application No.199/2013. This Court, by the judgment dated
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04-04-2014, allowed the revision application, set aside the order
passed by the learned Special Judge on 04-09-2013 and remitted the
matter for deciding the application under Section 227 of the Code of
Criminal Procedure, again. The learned Special Judge has rejected the
application by the impugned order. The applicant, being aggrieved in
the matter, has filed this revision application.
5. The learned Additional Public Prosecutor has raised
preliminary objection urging that the prayer made by the applicant for
quashing the proceedings against him was partly accepted by this
Court while disposing the Criminal Application (APL) No.659/2011,
that this Court had quashed the charge in so far as it related to the
offence under Section 13(1)(d) punishable under Section 13(2) of the
Prevention of Corruption Act, 1988 and the prayer made by the
applicant for quashing the charges relating to the offences punishable
under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal
Code was not accepted and the Special Court was directed to proceed
with the prosecution and therefore, it was not open for the applicant to
file the application before the Special Court under Section 227 of the
Code of Criminal Procedure. It is submitted that the prayer made by
the applicant for discharge of the offences punishable under Sections
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120-B, 465, 468, 471 and 477-A of the Indian Penal Code be rejected.
6. The learned Senior Advocate has submitted that the
objection raised on behalf of the non-applicant is unsustainable. It is
submitted that, while disposing Criminal Application (APL)
No.659/2011, this Court did not advert to the legality and validity of
the charges levelled against the applicant for the offences punishable
under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal
Code. It is submitted that this Court only dealt with legality and
validity of the prosecution of the applicant for the offence under
Section 13(1)(d) punishable under Section 13(2) of the Prevention of
Corruption Act, 1988 on the ground that as the recommending
authority had requested for withdrawal of sanction, the prosecution of
the applicant for the offence under Section 13(1)(d) punishable under
Section 13(2) of the Prevention of Corruption Act, 1988 was not
justified in view of the provisions of Section 19 of the Prevention of
Corruption Act, 1988. The learned Senior Advocate has relied on the
communication sent by the Joint Secretary requesting that the order
according sanction for prosecution of the applicant be withdrawn. It
is submitted that this Court directed the Special Court to proceed in
the matter according to law and the applicant is entitled in law to file
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application under Section 227 of the Code of Criminal Procedure and
accordingly it was filed. It is submitted that same objection was raised
earlier which is dealt with by this Court in the judgment given in
Criminal Revision Application No.199/2013 and it is recorded that the
Special Court has to consider the application filed by the applicant
under Section 227 of the Code of Criminal Procedure. It is argued that
the non-applicant cannot now again raise the same objection.
7. The submission made on behalf of the applicant on the
above point has to be accepted. The non-applicant had raised the
same objection about maintainability of application under Section 227
of the Code of Criminal Procedure, to oppose the Criminal Revision
Application No.199/2013 and the objection is repelled by this Court.
In view of the conclusions of this Court recorded in the judgment given
in Criminal Revision Application No.199/2013, the objection raised on
behalf of the non-applicant that the prayer made by the applicant in
the application filed by him under Section 227 of the Code of Criminal
Procedure cannot be considered, has to be overruled.
8. On merits, it is submitted on behalf of the applicant that
the charge-sheet does not make out any offence against him under
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Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal Code
and there is no material against the applicant for prosecuting the
applicant. It is submitted that the applicant has not indulged in
forgery and he is not involved in any act which has resulted in loss to
the Government exchequer. It is submitted that the documentary
evidence on record shows that the transportation rates proposed by the
applicant were sanctioned by the then Conservator of Forests and the
job of plantation including the work of transport of plants/saplings on
sanctioned rates was entrusted to the Range Forest Officer-Brijbhushan
Tiwari (accused No.2) as per the Bombay Forest Manual who
undertook certain independent correspondences without knowledge of
the applicant and the office of the Deputy Conservator of Forests,
Nagpur. It is submitted that the documentary evidence on record, on
the basis of which the offences under Sections 120-B, 465, 468, 471
and 477-A of the Indian Penal Code are alleged against the applicant,
does not show any endorsement of the applicant or his office and the
quotations relating to transportation rates were addressed to Range
Forest Officer and those documents were not routed through the office
of the applicant and it was not the duty of the applicant to look into
those quotations. It is alleged that the accusations in the charge-sheet
attribute overt acts to the accused Nos.2 to 4 and the applicant is not
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connected with those activities. It is submitted that there is nothing on
the record to show that the applicant had sanctioned any bills.
According to the applicant, this Court quashed the charges levelled
against the applicant for offence under Section 13(1)(d) punishable
under Section 13(2) of the Prevention of Corruption Act, 1988, which
charge was based on the accusation that the applicant has conspired
and gained monetarily and therefore, the charges levelled against the
applicant for the offences punishable under Sections 120-B, 465, 468,
471 and 477-A of the Indian Penal Code, which are also based on same
accusations, cannot survive. It is submitted that the learned Special
Judge has not considered all these aspects and therefore, the
impugned order has to be set aside and the application filed by the
applicant under Section 227 of the Code of Criminal Procedure has to
be allowed and the applicant has to be discharged from the
prosecution for the offences punishable under Sections 120-B, 465,
468, 471 and 477-A of the Indian Penal Code.
9. The learned Additional Public Prosecutor has submitted
that the charge-sheet contains sufficient material which show that the
applicant is connected with the activities which constitute the offences
punishable under Sections 120-B, 465, 468, 471 and 477-A of the
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Indian Penal Code. It is submitted that if the submissions made on
behalf of the applicant are to be considered, there has to be a mini trial
which is not permissible at this stage. It is argued that the only aspect
which is required to be considered at this stage is whether there is any
material on the record to prosecute the applicant and at this stage, it
cannot be assessed as to whether the prosecution will culminate in
conviction. It is submitted that, on the applicant's own showing,
involvement of the office of Deputy Conservator of Forests and the
applicant in the implementation of plantation programme is there and
the charge-sheet reveals that accused Nos.2 to 4 are involved in
criminal conspiracy and for forging documents for monetary gains. It
is argued that, in the circumstances, it cannot be said that there is no
material against the applicant for prosecuting him for the offences
punishable under Sections 120-B, 465, 468, 471 and 477-A of the
Indian Penal Code in respect of which accused Nos.2 to 4 are also
being prosecuted. The learned Additional Public Prosecutor has
submitted that the learned Special Judge has properly considered these
aspects and has rightly rejected the application filed by the applicant.
It is prayed that the impugned order be maintained and the criminal
revision application filed by the applicant be dismissed.
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10. With the assistance of the learned Senior Advocate
appearing for the applicant and the learned Additional Public
Prosecutor appearing for the non-applicant, I have examined the
documents placed on the record of the revision application. It is on
record that the office of the Deputy Conservator of Forests, Nagpur
was given the work of implementation of afforestation programme in
the rainy season of 1991 and plantation work was to be undertaken at
several places including Gorewada and Ambazari areas. It is
undisputed that at the relevant time, the applicant was holding the
additional charge of the post of Deputy Conservator of Forests,
Nagpur. It is undisputed that the applicant had sent the
communication dated 28-06-1991 proposing the rates of transport of
plants/saplings. Though it is the contention of the applicant that the
rates proposed by him were approved by the Conservator of Forests, at
this stage, there cannot be an enquiry regarding these aspects. The
above facts, prima-facie, show that the office of Deputy Conservator of
Forests, Nagpur was connected with the work in which loss is caused
to the Government and at the time of commission of offence as alleged,
undisputedly the applicant was holding the additional charge of the
post of Deputy Conservator of Forests, Nagpur.
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11. The submission made on behalf of the applicant relying on
the communication issued by the Joint Secretary requesting that the
order according sanction for prosecution of the applicant be withdrawn
in view of the fact that the applicant is exonerated in the departmental
enquiry, cannot be accepted at this stage. The charges against the
applicant for the offence under Section 13(1)(d) punishable under
Section 13(2) of the Prevention of Corruption Act, 1988 are quashed
by this Court on technical grounds as there was recommendation for
withdrawing the order of sanction which is necessary as per Section 19
of the Prevention of Corruption Act, 1988 to prosecute the applicant.
In my view, it cannot be said that there is no material
against the applicant and the prosecution of the applicant for offences
under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal
Code is unsustainable.
Considering the facts on record, it cannot be said that
there is no material against the applicant for prosecuting him
alongwith co-accused. The learned Special Judge has considered all
the relevant aspects properly and it cannot be said that the impugned
order is illegal or improper. The revision application is dismissed.
Considering the fact that the trial is pending since 2010
and the applicant has retired on 31-07-2015, in my view, the interests
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of justice would be sub-served by directing the Special Court to dispose
the trial within six months.
JUDGE
pma
