Bombay High Court
The State Of Maharashtra vs Sanjivkumar Bapurao Wadikar And ... on 17 April, 2017
Bench: T.V. Nalawade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 539 OF 2016
WITH
CRIMINAL APPLICATION NO. 5085 OF 2016
AND
CRIMINAL WRIT PETITION NO. 881 OF 2016
AND
CRIMINAL APPLICATION NO. 540 OF 2016
* * * * * *
CRIMINAL WRIT PETITION NO. 539 OF 2016
WITH
CRIMINAL APPLICATION NO. 5085 OF 2016
The State of Maharashtra .. Petitioner
Through Dy. S.P.,
ACB, Aurangabad,
Dist.Aurangabad.
Versus
1. Sanjivkumar Bapurao Wadikar .. Respondents
Age. 40 years, Occ. Service,
R/o. Flat No.1004, "C" Wing,
Tulshi Prerana Tower, Khanda Colony,
Navi Panvel, Dist. Raigad.
2. Shantilal Waru Gavit
Age. 50 years, Occ. Service,
R/o. Bhortepada, Post. Brahmanwel,
Tal. Sakri, Dist. Dhule.
3. Suresh Balkrushna Shinkar
Age. 48 years, Occ. Service,
R/o. 2, Sushila Plaza Apartment,
Jaihind Colony, Deopur, Dhule.
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AND
CRIMINAL WRIT PETITION NO. 881 OF 2016
1. Shantilal Waru Gavit .. Petitioners
Age. 50 years, Occ. Service,
R/o. Bhortepada, Post. Brahmanwel,
Tal. Sakri, Dist. Dhule.
2. Suresh Balkrushna Shinkar
Age. 48 years, Occ. Service,
R/o. 2, Sushila Plaza Apartment,
Jaihind Colony, Deopur, Dhule.
Versus
The State of Maharashtra .. Respondent
Through Dy. S.P.,
ACB, Aurangabad, Dist. Aurangabad.
AND
CRIMINAL APPLICATION NO. 540 OF 2016
Sanjivkumar Bapurao Wadikar .. Applicant
Age. 40 years, Occ. Service,
R/o. Flat No.1004, "C" Wing,
Tulshi Prerana Tower, Khanda Colony,
Navi Panvel, Dist. Raigad.
Versus
The State of Maharashtra .. Respondent
Mr.S.M.Ganachari, A.P.P. for the State.
Mr.C.P.Sengaonkar,Advocate for respondent No.1 in WP
No.539 of 2016 & for applicant in Cr.Apln No.540 of 2016.
Mr.V.B. Anjanwatikar, Advocate for respondent Nos.2&3 in
WPNo.539 of 2016 & for petitioners in WP No.881 of 2016.
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CORAM : T.V. NALAWADE,J.
DATED : 17.04.2017
J U D G M E N T :-
1. Rule. Rule made returnable forthwith. By
consent of both the sides, heard for final disposal.
2. Writ Petition No.539 of 2016 is filed to
challenge the order made at Exh.46, in Special Case No.84
of 2013 by the learned Judge of the Special Court, Dhule
under the Prevention of Corruption Act, 1988. Writ
Petition No.881 of 2016 is also filed to challenge the
same order, but only part of the order is under challenge
and the relief of discharge is also claimed in this
petition by the accused. Similarly Criminal Application
No.540 of 2016 is filed under section 482 of the Criminal
Procedure Code by other accused for similar relief.
Criminal Application No.5085 of 2016 is filed by the
State for permission to amend the contentions made in
Writ Petition No.539 of 2016. The State wants to make
additional contentions in view of the original file of
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sanction that was not brought before the Trial Court and
as no contention is made in the petition about the said
file.
3. Accused No.1 was working as R.T.O. in Dhule
R.T.O. Office at the relevant time. Accused Nos.2 and 3
were working as Assistant Cashiers. Accused Nos.4 to 8
were working as R.T.O. Agents for accused Nos.1 to 3.
There is allegation against accused Nos.1 to 3, the
Public Servants that they were illegally collecting money
from drivers and the transporters, when their vehicles
were entering Maharashtra State at R.T.O. check-post
Hadakhed, Tal. Shirpur, Dist. Dhule. They had given name
to this illegal gratification as "Entry". The action was
taken on the basis of complaint made by one Kuldipsingh
against the accused persons. The said amount was demanded
from him also. He made complaint and trap was led.
There is allegation that accused No.4 - Agent, collected
an amount of Rs.300/- from Kuldipsing on 01.12.2011.
During action, when the amount already collected by these
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persons at the spot was checked and the amount was
verified with the receipt book showing amount legally
received, it was noticed that an amount of Rs.14,400/-
more was collected up to 15.40 hours by these persons on
that day. After recording statements, preparing
panchanama etc. and completion of the investigation, the
matter was sent to the State Government for obtaining
sanction under section 19 of the Prevention of Corruption
Act, 1988 (hereinafter referred to as the "Act"), against
accused Nos.1 to 3. As per the permission sought, the
sanction came to be given in respect of offences
punishable under sections 7,12,13(1)(d) read with section
13(2) of the Act. The case is also filed for offence
punishable 120(B) of the Indian Penal Code, as per the
sanction order.
4. The charge is framed. At Exh.7, application was
moved by accused No.1 and at Exh.8 application was moved
by accused Nos.2 and 3 for deciding the validity of
sanction order produced along with the charge-sheet. The
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prayer was made to decide the point as a preliminary
point. The learned Judge of the Trial Court allowed the
application and decided to record the evidence on
sanction first and take decision on it. Both the sides
were allowed to lead evidence on this point. The
prosecution examined the Joint Secretary, Home Department
of the State Government and he is cross-examined by the
defence counsel. The Trial Court Judge has held that the
sanction is not valid and the operative part of the Trial
Court decision is as follows :-
"1] Sanction accorded by P.W.No.1 against the
accused Nos.1,2 and 3 is not found legal, valid
and proper.
2] However, the competent authority i.e. the
Secretary is hereby permitted to issue fresh
sanction order against accused No.1, and
Transport Commissioner is hereby permitted to
issue fresh sanction order against accused nos.2
and 3 and proceed afresh against accused Nos.1,2
and 3 from the stage of taking cognizance of the
offence and in accordance with the law.
3] The competent authority shall comply the
above order within the period of three months
from the date of this order."
5. The Joint Secretary has given evidence that as
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per Article 166 of the Constitution of India, he had
accorded sanction. He has mentioned the material which
was placed before him for consideration like original
complaint, pre-trap and post-trap panchanama and
statements of witnesses. The sanction is proved at
Exh.30 and it is dated 17.08.2013. In cross-examination,
this witness has denied that only the Chief Secretary of
the Home Department has power to accord the sanction as
accused No.1 is a Gazetted Officer of Class-I. He has
denied that he had no power to issue sanction order.
6. The learned Judge of the Special Court has held
that the sanction is invalid for following two reasons:-
(i) That P.W.1-Joint Secretary has not
specifically stated in the evidence that he has power to
remove accused No.1 from service and;
(ii) That the Transporter Commissioner is the
competent authority to accord sanction in respect of
accused Nos. 1 and 2.
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7. The learned Judge of the Trial Court has further
held that only the Secretary could have accorded sanction
in respect of accused No.1. The learned Judge has
considered one circumstance like in a proceeding which
was filed by the accused in the High Court in the past,
it was submitted for the investigating agency that the
matter was sent for getting sanction to the Secretary.
On the basis of this circumstance, he held that only the
Secretary is competent to accord sanction. Thus, the
point involved in the present matter is only the
competency of the Sanctioning Officer and this point is
being decided in the present matter.
8. In Criminal Application No.5085 of 2016 filed by
the State Government, it is contended that the State
Government had already issued directions for issuing
sanction order. The Government Resolution dated
12.02.2013, which was of General Administration
Department (copy of the Government Resolution is produced
on record), shows that procedure is laid down to place
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the matter before the Competent Authority for the purpose
of sanction and various authorities are named for
according sanction in respect of various classes of
public servants. For Gazetted Officer, Class-I, having
basic pay of more than Rs.10,650/-, as per old pay scale,
the Chief Minister is shown as the sanctioning authority.
The Minister of the concerned department was shown as the
sanctioning authority for other Gazetted Officers of
Class I, having pay scale less than Rs.10,650/-. The
record produced shows that at the relevant time, the
Transport Department was with the Hon'ble Chief Minister.
The Secretariat of this Department had placed the matter
along with the file and submissions made by various
officers of different stages like, Desk Officer, Joint
Secretary and Principal Secretary (Transport). All these
authorities had made their submissions and record was
placed before the Chief Minister. The record produced in
the present matter shows that the Chief Minister had
approved proposal of the sanction. Thus, in the present
matter, the Hon'ble Chief Minister has accorded sanction
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and not the Joint Secretary of said Department. In view
of this record, which is now made available, there is no
meaning in the so called oral admission given by the
Joint Secretary that he had accorded the sanction. The
record needs to be referred in this regard. Thus, in the
present matter, sanction was not accorded by the Joint
Secretary, but it was accorded by the State Government
and the order only was signed by the Joint Secretary.
9. The submissions made and the reasoning given by
the Trial Court show that it is unfortunate that the
learned Judge of the Trial Court has not taken care to
call original record of sanction. This Court has no
hesitation to observe that in a case like present one,
such step needs to be taken by the Trial Court judge.
Even at present stage, such step can be taken for such
purpose. To bring such circumstances on record,
application is filed by the State Government bearing
Criminal Application No.5085 of 2016 and request is made
to allow to amend the contents of Writ Petition No.539
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of 2016. In view of these circumstances, Criminal
Application No.5085 of 2016 needs to be allowed and it is
allowed accordingly.
10. Thus, there is evidence to show that the Chief
Minister has accorded sanction and in-fact, the Joint
Secretary had not accorded the sanction and so there is
no necessity to direct the State Government to reconsider
the matter for according fresh sanction.
11. A copy of Rules of Business framed by His
Excellency the Hon'ble Governor of this State under
Article 166 of the Constitution of India is produced on
record. Rule 13 of these Rules shows that every order or
instruction of the State Government needs to be signed by
any of the officers of the Government like Secretary,
Additional Secretary, Joint Secretary, Dy. Secretary or
Asstt. Secretary. This order also shows that any other
officer, who is specially authorized in this regard can
also sign such order or instruction.
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12. As per the aforesaid rules, in the present
matter, the power to accord sanction was with the Hon'ble
the Chief Minister and it was accorded by Hon'ble the
Chief Minister and the sanction order was signed by the
Joint Secretary. Thus, the Joint Secretary had only
signed the order on behalf of the Government and it was
not sanctioning authority. In view of this circumstance,
in such a case, it is immaterial that the Officer signing
the sanction order is not of higher rank than the public
servant against whom the sanction is accorded. In any
case, it is not defence of accused No.1 that he is of
higher rank than the Joint Secretary, who has signed the
order.
13. In the evidence of the Joint Secretary, the
original file can be produced before the Trial Court. If
the defence disputes that record, the signature of
Hon'ble the Chief Minister can be proved in the evidence
of any Officer including the Joint Secretary, who had
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processed the matter and had placed the matter before the
Hon'ble Chief Minister. The signature on the original
file can also be proved by examining any other officer
who is familiar with the signature of Hon'ble the Chief
Minister.
14. The other contention of the accused that only
Transport Commissioner is competent to accord sanction in
respect of accused Nos.2 and 3 has no force in law. In
the cases of such Government Servants, the Government is
not only appointing authority, but it is ultimate
disciplinary authority. Thus, in respect of accused Nos.
2 and 3 also, the State Government had the power to
accord the sanction. When in a case, more public
servants are involved and sanction in respect of one of
these public servants needs to be granted by the State
Government, the entire matter can be considered by the
State Government and it is also desirable to do so. This
Court has no hesitation to observe that in such case, the
superior authority can accord sanction in respect of all
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the public servant involved in such incident.
15. The learned A.P.P. for the State has placed
reliance on observations made by the Apex Court in the
case of V. Sejappa Vs. State, AIR 2016 SC 2045. This
case is on the point involved in the present case. In
this case, the Apex Court has made it clear that when the
order of the Government is signed by the Secretary or the
under Secretary and when the Minister was sanctioning
authority, it cannot be said that the sanction is
invalid.
16. Learned Counsel for the respondent/accused
placed reliance on the observations made by the Apex
Court in the case of Mohd. Iqbal Ahmed Vs. State of A.P.,
AIR 1979 S.C.677. This was appeal filed against the
conviction. The Apex Court held that the sanction was
not valid. The case was in respect an incident of the
year 1968 and in view of circumstances of the case, the
Apex Court held that at that stage opportunity cannot be
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given to the prosecution to fill lacuna, which was with
regard to legality of sanction. Thus, the facts were
different. In the present matter, at the request made by
the accused persons, this point is being considered at
initial stage of the case and the case is not yet
disposed of.
17. The aforesaid discussion shows that the Trial
Court could not have made order of aforesaid nature. At
the cost of repetition, this Court is observing that it
is duty of the Trial Court Judge to see that the original
file in such matter is brought before it. Such original
record can help either to the prosecution side or the
defence side. For proper adjudication and just decision
of the matter, such record needs to be brought before the
Court. The possibility that the Government Officers are
likely to help their colleagues, though from other
department, can never be ignored by the Court. The Court
needs to exercise its power in this regard.
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18. In view of the aforesaid discussion, this Court
for present purpose holds that the sanction was accorded
by the competent authority, the Chief Minister of the
State and the sanction is legal and valid in respect of
all the three accused. Thus, the order made by the
learned Judge of the Special Court cannot sustain in law.
For the same reasons, there is no question of discharge
of the accused. The witness already examined for proving
the sanction can be recalled and original record can be
brought before the Trial Court. So, the following
order :-
(i) Writ Petition No.539 of 2016 is allowed. The
judgment and order passed by the Special Court at Exh.46
in Special Case No.84 of 2013 dated 06.11.2015 is hereby
set aside.
(ii) Criminal Application No.5085 of 2016 is allowed.
The amendment as sought to the contents of Writ Petition
No.539 of 2016 is allowed and it is to be shown in the
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petition by the petitioner.
(iii) Other two proceedings filed by the accused stand
dismissed.
(iv) Rule made absolute in Writ Petition No.539 of
2016 and it is discharged in the other proceedings filed
by the accused.
[T.V. NALAWADE,J.]
snk/2017/APR17/crwp539.16+
