Bombay High Court
Vasant Dadaji Mokashi vs State Of Maharashtra Thr. Cid ... on 13 December, 2017
Bench: R. B. Deo
1 apeal434.04
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/-.
2 apeal434.04
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.
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.
4 apeal434.04
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
5 apeal434.04
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
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,
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
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
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
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.
11 apeal434.04
The appeal is allowed accordingly.
JUDGE
adgokar
