Bombay High Court
The State Of Maharashtra vs Dattatray Shankar Kolekar on 16 May, 2017
Bench: S.S. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 387 OF 2002
State of Maharashtra ... Appellant
Vs.
Dattatray Shankar Kolekar ... Respondent
(Orig. Accused)
Mr.S.R.Agarkar, APP, for the Appellant/State.
None of the Respondent.
CORAM: SMT.SADHANA S.JADHAV, J.
DATE : 16th May, 2017.
ORAL JUDGMENT :
The State of Maharashtra challenges the judgment and order
dated 14.12.2001 passed by the Special Judge, Ratnagiri in Special Case
No.1 of 1991, thereby acquitting the accused of the offence punishable
under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of
corruption Act, 1988.
2. Such of the facts necessary for the decision of this appeal are
as follows :-
On 19.9.1989, one Krishna Gotad approached the office of the
Anti-Corruption Bureau at Ratnagiri and lodged a report alleging therein
that prior to five months, he had constructed a cattle shed in his land for
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which he had incurred expenses to the tune of Rs.4,500/-. Due to heavy
rains, the cattle shed had collapsed. Mr. Gotad had given the said
information to the Police Patil who instructed him to inform the Talathi.
Accordingly, the complainant had met the Talathi Mr. Gadre of Saja
Wanzole and had informed him about the damage to the cattle shed. The
Talathi and the Gramsevak had visited the spot and prepared a panchnama.
The statement of the complainant was recorded. The proposal was given to
the Tahsildar. That he was also informed by the Kotwal that the Circle
Inspector would be visiting the spot for enquiry. The respondent herein
happens to be the Circle Officer. The Circle Officer had visited the spot
and recorded statement of the complainant and had also assured him that he
would take necessary steps to get the compensation sanctioned. It was
alleged by the complainant that when he was proceeding towards S.T.
Stand, the accused followed him and informed him that if he wants to get
the compensation sanctioned then he will have to pay an amount of
Rs.250/- and then he would recommend the proposal for compensation.
According to the complainant, he had made several visits to the office of
Tehsildar and enquired about his compensation. He had also met the Circle
Officer who had reiterated the demand and therefore the complainant was
constrained to approach the office of the Anti-Corruption Bureau.
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3. The Anti-Corruption Bureau had taken steps to arrange for a
trap and also conducted a pre-trap panchnama. A trap was laid on
28.9.1989. After completion of investigation, charge-sheet was filed and
the case was registered as Special Case No.1 of 1991.
4. It is pertinent to note that in the present case, original
complainant Mr. Krishna Gotad has resiled from his earlier statement and
was declared hostile. As a consequence, the alleged demand for
gratification could not be proved. Krishna Gotad has specifically stated in
his deposition that "It did not happen that accused made demand of
Rs.250/- as a bribe from me". Throughout his deposition before the Court,
he has taken different stances and hence the inevitable conclusion that
could be drawn by the Special Judge was that the original complainant was
not a reliable witness and hence no implicit reliance could be placed on the
evidence of the complainant. Hence, the prosecution has failed to establish
the demand.
5. The learned Special Judge, on the basis of the evidence
adduced by the prosecution, has also taken into consideration the nature of
sanction accorded to prosecute the accused. The prosecution has examined
PW-5 Mr. Chatterjee who has accorded sanction to prosecute. It is seen that
he had received the papers of investigation in the month of September 1990
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and he had accorded sanction in the month of December 1990. In his
deposition before the Court, Mr. Chatterjee had not stated that he had
perused the papers of investigation and had applied his mind and
considered the grounds for recording evidence. He has admitted in his
cross-examination that he does not remember as to whether the application
filed by Mr. Gotad was a part of the investigation papers. He had also
admitted that he had no knowledge as to whether the application of
Krishna Gotad was rejected by Talathi on 14.8.1989. He has also admitted
that the proforma of sanction order is still in his office and that the contents
in the proforma of sanction and contents in the final sanction order are the
same. The Special Judge has rightly observed that according sanction to
prosecute the accused is not a mere idle formality, but is a solemn and
sacrosanct act which offers protection to the Government servant against
frivolous prosecution and that it is incumbent upon the concerned authority
to apply its mind to the facts and circumstances of the case in order to
conclude that a prima facie case is made out before according such sanction
to prosecute.
6. Needless to reiterate that the prosecution has miserably failed
to establish the guilt of the accused mainly on two grounds. Firstly, the
complainant has turned hostile and, therefore, the demand for gratification
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has not been proved and secondly, the sanction suffers from non-application
of mind and hence, cannot be a valid sanction as contemplated under the
Prevention of Corruption Act, 1988. The learned Special Judge has
assigned justifiable reasons for acquitting the accused of the charges
levelled against him. Hence, no interference is called for.
The Appeal stands dismissed.
(SMT. SADHANA S.JADHAV, J.)
