Bombay High Court
Dr Ramprasad Madhavlal Porwal vs Alka Khaire on 25 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.1247 of 2014
Dr. Ramprasad Madhavlal Porwal. .. Petitioner.
Versus
Alka Khaire & Others. .. Respondents.
----
Shri. Pawan B. Pawar, Advocate, appointed as amicus
curiae.
Shri. H.F. Pawar, Advocate, for respondent No.1 (absent).
Shri. V.A. Bagal, Advocate, for respondent No.2.
Shri. P.R. Katneshwarkar, Advocate, for respondent No.3.
Shri. A.A. Jagatkar, Additional Public Prosecutor, for
respondent No.5.
----
With
Criminal Writ Petition No.242 of 2015
Dr. Ramprasad Madhavlal Porwal. .. Petitioner.
Versus
Vimal Sureshkumar Jethliya
And Others. .. Respondents.
----
::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:38:27 :::
2 Cr WP 1247/2014 & 242/2015
Shri. Pawan B. Pawar, Advocate, appointed as amicus
curiae.
Shri. P.K. Lakhotiya, Advocate, for respondent No.1.
Shri. V.S. Gondikar, Advocate, for respondent No.2.
Shri. S.S. Rathi, Advocate, for respondent No.3.
----
Coram: T.V. NALAWADE, J.
Date: 25 April 2017
ORDER:
1) In the first proceeding the order made by the
learned Judge of the Special Court Jalna constituted under
the Prevention of Corruption Act, 1988 in Special Case
No.6/2014 filed by the present petitioner is challenged
and in Criminal Writ petition No.242/2015 the order made
by the same Special Court in Special Case No.9/2014 is
challenged. Both the proceedings were filed as private
complaints by the present petitioner for requesting the
Court to take action for the offences punishable under
sections 7, 8, 13(1)(c)(d),(2) of the Prevention of
Corruption Act 1988 ("the Act") and sections 161 and 34
of the Indian Penal Code. In both the matters, prayer was
made to give direction to police to make investigation
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under section 156(3) of the Code of Criminal Procedure.
The learned Special Judge has dismissed the complaints
by holding that the sanction under provision of section
19(1) and (3) of the Act was not there for making such
order.
2) The complainant, party in person was allowed
to argue the matters. In view of the intricate question of
law involved in the matter, this Court had appointed
learned counsel Shri. Pawan B. Pawar to assist the Court
as amicus curiae. It needs to be mentioned that he has
worked hard and he has assisted the Court by showing
the law developed till this date on the point involved. The
learned counsels for the respondents, accused in the
private complaints are also heard. Only one Advocate
Shri. Hemantkumar F. Pawar did not turn up in Writ
petition No.1247/2014. The learned Additional Public
Prosecutor was also heard for the State.
3) In private complaint No.6/2014 the petitioner
has made allegation against the Chief Officer of Municipal
Council Partur, the Sanitary Inspector of the same
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Municipal Council, one cashier of the same Municipal
Council and one contractor, who is in business of scrap
material. Allegation is made that huge quantity of scrap
belonging to the Municipal Council was there which was
weighing more than 10 tons is sold by the accused
persons to accused No.4, the purchaser at meagre price.
Allegation is made that for this sale, no procedure was
followed and even no approval of any committee of
general body of the Municipal Council was taken.
Allegation is made that when amount of Rs.2.2 lakh was to
be recovered, only amount of Rs.66,000/- was paid by the
purchaser and remaining amount was never paid. It is the
case of the complainant that he has collected necessary
information under the Right to Information Act and he had
made complaint to the District Collector. Allegation is
made that the purchaser had even admitted that the
amount was not paid but no action was taken and the
Sanitary Inspector ultimately deposited some amount to
see that no action is taken. According to the complainant,
that conduct of the Sanitary Inspector of depositing some
amount itself shows that they had committed offence of
misappropriation. With these allegations the complaint
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was filed for the offences punishable under the Prevention
of Corruption Act like sections 7,8, 13. Sections 409, 471
of Indian Penal Code were not mentioned in the complaint
though the allegations make out the offence punishable
under section 409 of the Indian Penal Code.
4) In private complaint No.9/2014 allegations
were made against the Ex-President of Municipal Council,
Partur, Clerk of the Electrical Division of the Municipal
Council and one businessman of Aurangabad. Allegations
were made that even when no electrical material was
supplied by the businessman, amount of Rs.6.3 lakh was
paid to him by cash as per the instructions of the accused
No.1, the President of the Municipal Council. Allegation is
made that the procedure for purchasing such material was
not followed and in tender notice time of only 10 days was
given when the time of 21 days was required to be given
for tenders. Allegation is made that false entries were
made in various registers to show that said material was
actually supplied when the material was not supplied. In
this matter also the complainant had made complaint to
the District Collector but the Collector has not taken any
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action. The businessman was uncle of the then President
as per the contention of the complainant. He had prayed
for taking action under the provisions of the Prevention of
Corruption Act and also under sections 165, 161 etc of the
Indian Penal Code. Provisions of section 409 etc of the
IPC were not mentioned though the allegations constitute
that offence.
5) The submissions made and the aforesaid
allegations show that the amounts involved were small but
the fact remains that irregularity was found in both the
matters. Submissions made show that departmental action
was taken in one matter and increment of one accused is
permanently stopped. As the concerned Department has
taken some action this Court wanted to know as to why
further step was not taken like giving report to police or
granting sanction for prosecution. For that some orders
were made by this Court. It appears that respondent No.2
Chandrakant Khanpate from Criminal Writ Petition
No.1247/2014 was suspended and such statement was
made before this Court on 26-6-2015. It was informed to
the Court that the authority was thinking over to give
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sanction but the authority was waiting for the decision of
the departmental enquiry. This Court had expressed that
the departmental enquiry is one thing and taking criminal
action is other thing. Criminal action cannot be stopped
for having decision of the departmental inquiry. In spite of
some orders made by this Court of aforesaid nature, till
today no criminal action is taken against the concerned by
the Government. By order dated 5-4-2017 this Court had
asked as to what is the intention of the Government but on
that occasion also it was submitted that the office of the
Collector and the superior officers are still thinking over
the matter. In view of the aforesaid approach of the State
Government and the Collector and as the matters are very
old, this Court appointed Advocate Shri. Pawan B Pawar
as amicus curiae to assist this Court and this Court
expressed that this Court would be deciding both the
matters.
6) Relevant contentions of the present petitions
made in the complaints are already mentioned. It appears
that there are allegations that the accused persons
committed the offence of misappropriation of public
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money, offence punishable under section 409 of the Indian
Penal Code. There is also allegation of creation of false
record which may fall under sections 468, 471 of the
Indian Penal Code. Due to misconception, the complainant
filed private complaint before the Special Court under the
provisions of the Prevention of Corruption Act. In view of
the decision of the Apex Court reported as (2013) 10 SCC
705 (Anil Kumar v. M.K. Aiyappa) the learned Special
Judge has held that even for making order under section
156(3) of the Code of Criminal Procedure sanction is
necessary. As there is no sanction, both the complaints
are dismissed. This case was involving the offences under
the Prevention of Corruption Act and also the Indian Penal
Code and it can be said that due to involvement of the
provisions of the Prevention of Corruption Act, 1988 the
observations were made by Apex Court that even for
making order under section 156(3) of the Code of Criminal
Procedure, there needs to be sanction under section 19(1)
of the Prevention of Corruption Act, 1988.
7) The learned counsel appointed as amicus
curiae took this Court through the observations made in
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many other cases like :
(i) (2012) 3 SCC 64 (Subramanian Swamy v.
Manmohan Singh);
(ii) (1998) 1 SCC 226 (Vineetnarain v. Union of India);
(iii) (2006) 1 SCC 294 (Romesh Lal Jain v. Naginder
Singh Rana);
(iv) (2009) 8 SCC 617 (State of Madhya Pradeh v.
Sheetla Sahai);
(v) (2007) 1 SCC 1 (Prakash Singh Badal v. State of
Punjab);
(vi) (2015) 13 SCC 87 (Inspector of Police v.
Battenapatla Venkata Ratnam);
(vii) (2015)12 SCC 231 (D.T. Virupakshappa v. C.
Subash).
8) Reliance was placed by the present petitioner
on a case reported as State of Bihar v. Rajmangal Ram
[2014 DGLS (Soft) 203] and it was submitted that at the
stage of making order under section 156(3) of the Code of
Criminal Procedure it is not necessary to insist for
production of sanction order made under section 19 of the
Prevention of Corruption Act, 1988. He submitted that in
the case of Rajmangal the Apex Court has laid down that
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competency of the authority to give sanction or the
question whether there was application of mind by the
authority need not be decided at initial stage and such
consideration is possible only when entire evidence has
been given on such issue. There is no dispute over the
proposition but in the present matter in view of the case
of Anil Kumar (cited supra) different point is involved and
there is no sanction at all in the present matter when the
party-in-person is asking the Court to make order under
section 156(3) of the Code of Criminal Procedure. He
placed reliance on some cases decided by this Court. But
there are cases of the Supreme Court on this point and so
this Court is considering only the law laid down by the
Supreme Court. Some cases are on the point of
consideration of point of sanction at appellate stage but
that point is also different.
9) The contentions made in the complaints if they
are accepted as they are, it can be said that the
complainant wants to prove that the public servants
created false record and they misappropriated public
money. Thus apparently the allegations constitute offences
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punishable under sections 468, 471 and 409 of the Indian
Penal Code and not the offences punishable under the
provisions of the Prevention of Corruption Act, 1988
mentioned in the complaint. It needs to be kept in mind
that the provisions of the Prevention of Corruption Act
prevail over the provisions of the Code of Criminal
Procedure even for procedural purpose and so as
observed by the Hon'ble Apex Court there needs to be
compliance of provision of section 19 of the special
enactment. In view of the observations made by the Apex
Court in the case reported as (1997) 5 SCC 326 (Shamboo
Nath Mishra v. State of U.P.) the act of misappropriation
of public funds and fabrication of record cannot be called
as act done in furtherance of or in discharge of public
duty and in such cases Court cannot insist for sanction at
any stage of the matter including for passing order under
section 156(3) of the Code of Criminal Procedure. Thus
the complainant/petitioner of the present matter under
some misconception filed the complaints before the
Special Court and asked the Special Court to take
cognizance of the matter or to make order under section
156(3) of the Code of Criminal Procedure when no
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sanction order was obtained under section 19 of the
Prevention of Corruption Act, 1988. The order made by
the learned Special Judge in view of the ratio of Anil
Kumar case (cited supra) cannot be interfered with but it
needs to be observed that the complainant can still
approach Criminal Court like Judicial Magistrate, First
Class either for taking cognizance of the matter or for
making order under section 156(3) of the Code of Criminal
Procedure for investigation on the allegations made by
him in the complaint. The amendment made to section
156(3) of the Code of Criminal Procedure by which the
proviso is added to give power to the Court to make any
order even for investigation of the offences mentioned in
Prevention of Corruption Act 1988 can be used provided
that the procedure given in the said proviso is followed.
The said proviso runs as under :
"Provided that, no Magistrate shall order an
investigation under this section against a person who is
or was a public servant as defined under any other law
for the time being in force, in respect of the act done by
such public servant while acting or purporting to act in
the discharge of his official duties, except with the
previous sanction under section 197 of the Code of
Criminal Procedure, 1973 or under any law for the time
being in force:
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Provided further that, the sanctioning authority shall
take a decision within a period of ninety days from the
date of the receipt of the proposal for sanction and in
case the sanctioning authority fails to take the decision
within the said stipulated period of ninety days, the
sanction shall be deemed to have been accorded by the
sanctioning authority."
10) In view of the aforesaid discussion, this Court
holds that there are two options open to the present
petitioner, original complainant as stated above. However
it is not possible to interfere in the order made by the
learned Judge of the Special Court. Thus both the
proceedings need to be dismissed. This Court appreciates
the efforts put in by learned counsel Shri. Pawan B. Pawar
for assisting this Court. This Court is directing to pay
amount of Rs. 3000/- to the learned counsel through High
Court Legal Services Sub Committee Aurangabad as he
has incurred expenses for taking photo copies of the
reported cases. In the result, both the proceedings are
dismissed. The amount of Rs.3000/- is to be paid to the
learned counsel through the High Court Legal Services
Sub Committee Aurangabad.
Sd/-
(T.V. NALAWADE, J.)
rsl
