Bombay High Court

State Of Mah.Thr.Anti Corruption ... vs Ramlal Shriram Gajbhiye on 5 April, 2017

Bench: I.K. Jain

 CRI. APPEAL NO.19.02.odt                      1


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                     CRIMINAL APPEAL NO.19 OF 2002


 State of Maharashtra, through
 Anti-Corruption Bureau,
 District-Buldhana.                                 ..               APPELLANT

                                .. VERSUS ..


 Ramlal Shriram Gajbhiye,
 Aged 41 years,
 Senior Sanitary Inspector,
 Health Section, Zilla Parishad,
 Buldana.                                           ..           RESPONDENT



                    ..........
 Shri R.S. Nayak, APP for Appellant-State,
 None for Respondent.
                    ..........


                                CORAM : KUM. INDIRA JAIN, J.

DATED : APRIL 05, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and order dated 4.10.2001 passed by the learned Special

Judge, Buldhana in Special (Anti-Corruption) Case No.6/1995

thereby acquitting the accused of the offences punishable

under Sections 7 and 13 (1)(d) r/w 13 (2) of the Prevention

of Corruption Act, 1988.

2] Prosecution case, in brief, is as under :

(a) Complainant Chandu Harsing Chavan was

working as Health Assistance in Primary

Health Centre, Malkapur Pangra. Accused

was Senior Health Inspector in Health

Department of Zilla Parishad, Buldhana.

(b) On 15.4.1994, Assistant District Health

Officer Dr. Natekar along with accused had

been to Primary Health Centre, Malkapur

Pangra. Accused asked for daily diary

register of complainant for the year 1991

till 15.4.1994. It was the duty of

complainant to implement the various

national health programmes including

eradication of malaria with the help of

other officials of department. Accused

also asked for Malaria Eradication Register

for the year 1992-93 and 1993-94. He

took away daily diary register and malaria

eradication register with him to Buldhana.

(c) On 2.5.1994, when complainant had been

to Zilla Parishad office, Buldhana for some

official work, accused told him that daily

diary maintained by him was wrong and

he had drawn false T.A. Bills. He also told

complainant that he had cheated the

Government, amount paid to him will be

recovered and file would be submitted to

District Health Officer for taking action

against him. It is alleged that accused

demanded Rs.2,000/- to help complainant

and for not disclosing wrong deeds of

complainant to the Superior Officer.

(d) On 6.5.1994, complainant went to the

office of Anti-Corruption Bureau and

lodged report. Trap was arranged. It is the

case of prosecution that accused asked

complainant to put the notes in his shirt

pocket and complainant put the notes in

the left side pocket of the shirt of accused.

The raid was successful and post trap

panchanama was accordingly drawn in the

presence of panch witnesses. On

completing investigation, papers were

sent to the sanctioning authority. On

receiving sanction order, prosecution was

launched against the accused.

3] Trial court framed charge against accused and he

pleaded not guilty to the offences. His defence was of total

denial and false implication. He raised specific defence that

complainant is resident of village Asola (Bk). His parents

reside in the said village. So, complainant was interested in

getting his transfer near Primary Health Centre, Deulgaon

Mahi or Antri Khedekar. He requested the accused to use

his good offices and get him transfered near his village. On

the day of incident also, complainant asked the accused to

see that he is transferred near his village and put an

application in his pocket. Accused pleaded innocence

regarding notes and denied that he ever demanded money

towards illegal gratification, as alleged by the complainant.

4] To substantiate the guilt of accused, prosecution

examined in all eight witnesses. Considering the evidence

of prosecution witnesses, sanctioning authority and

submissions made on behalf of the parties, Trial court came

to the conclusion that demand and acceptance of illegal

gratification is not proved. Even sanctioning authority did

not apply its mind while issuing sanction order and in

consequence thereof accused was acquitted. Being

aggrieved with the order of acquittal, State has come up in

this appeal.

5] With the assistance of learned Additional Public

Prosecutor, this court has gone through the evidence of

complainant, panch witnesses and sanctioning authority. It

can be seen from the evidence of complainant that accused

demanded Rs.2,000/- to avoid departmental action against

complainant on allegations of maintaining false diary and

drawing false T.A. Bills. So far as demand is concerned,

except bare version of complainant, nothing is on record.

So far as trap is concerned, story is more interesting. In

cross-examination, complainant admitted that application

dated 30.4.1994 bears his signature. He had given this

application to accused. This application was found and

seized from the pocket of accused when he was

apprehended by ACB officials. This application relates to

transfer of complainant to nearby place of his village. It is

the defence of accused that complainant was interested in

getting his transfer near his village, as his parents were

residing there and he was insisting the accused to help him

in his transfer. Accused submitted that complainant had put

application in his pocket and he is not aware that he also

planted Rs.2,000/- along with application in the pocket. The

defence raised by accused appears to be probable for the

simple reason that even prosecution does not come with a

case that accused was caught red-handed accepting

Rs.2,000/- in his hand from the complainant. The money

was recovered from the pocket along with application of

transfer signed by complainant.

6] In this background, the view taken by the Trial

court is a reasonable and possible view. The possibility of

planting money in the pocket along with application for

transfer is not ruled out. Prosecution case also becomes

weak and doubtful for want of corroboration to the

testimony of complainant on initial demand.

7] Before considering the evidence of sanctioning

authority, it is necessary to see the object of Section 19 of

the Act. Under section 19, grant of sanction is a weapon to

discourage vexatious prosecution and it is a safeguard for

the innocent, though not a shield for the guilty. The

essentials of a valid prosecution can be stated as under -

i. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction;

ii. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction;

iii. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought;

iv. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

v. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been

placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.

8] PW-1 Shrikrushna Vanpal was Chief Executive

Officer, Zilla Parishad, Buldana at the relevant time. He was

a sanctioning authority. He stated that on receiving papers

from Anti-Corruption Bureau office, he accorded sanction to

prosecute the accused. He had gone through the papers

and then sanction order was issued. The sanction order

(Exh.15) if looked into minutely would indicate total non-

application of mind on the part of sanctioning authority.

From the papers of investigation, it could be revealed that

accused did not touch the notes which were found from his

pocket. Application for transfer signed by complainant was

also found in the pocket of accused. Sanctioning Authority