State Of ... vs Deorao Pandurang Kadam
2017 Latest Caselaw 2560 Bom

                                            1                        Cri Appeal 254-01.odt


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

                         CRIMINAL APPEAL NO.254 of 2001



APPELLANT:-                             State of Maharashtra
                                        through Dy. S.P., A.C.B. Nagpur.

                                        VERSUS

RESPONDENT:-                            Deorao s/o. Pandurang Kadam,
(ACCUSED)                               aged about 65 yrs, Occ. Retired H.C.,
                                        R/o. Karanja, Dist. Wardha.




Mr.S.B. Bissa, APP for State.
None for Respondent.
_____________________________________________________________________________________

                                 CORAM : S. B. SHUKRE, J.

                                 DATE      : 17.05.2017.
Oral Judgment :

1. This is an appeal preferred against the Judgment and order

dated 21st May, 2001 delivered in Special Case No. 14/1994 by learned

Special Judge and Additional Special Judge, Wardha, thereby acquitting

the respondent of the offences punishable under Sections 7, and 13(2)

read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.

2. The respondent was prosecuted for the above referred

offences on the allegations that on 5 th January, 1994, at about

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19.30 hours at Karanja Ghadge Police Station, the respondent

demanded and accepted an amount of Rs. 500/- as bribe from the

complainant Bhimrao S/o Devaji Manmode and thus committed the

offences of receiving illegal gratification and abusing his position as

public servant. The demand of amount of Rs. 500/- was made by the

respondent from the complainant in order to refrain himself from

arresting son of the complainant against whom a complaint of stealing

of 4 to 5 oranges was filed by one Namdeo Dhobale. In-fact, according

to the complainant, the matter was already settled between himself

and Namdeo in which settlement, both the parties had assured to each

other that they would not lodge any complaint against each other.

Namdeo on learning about stealing of oranges of the complainant by

Raghunath, had also beaten up Raghunath and Raghunath was already

punished by Namdeo. It was this dispute between these two groups

which led to a quarrel being raised by these two groups with each

other, resulting in amicable settlement between two groups. In spite of

that, Namdeo backtracked on his promise and filed complaint against

both the sons of the complainant Bhimrao. Bhimrao immediately

approached Karanja Ghadge Police Station and then came to know the

about the demand of illegal gratification by the respondent. This was

reported to Anti Corruption Bureau, Wardha by the complainant and a

trap was laid for the respondent which culminated into catching of the

respondent red handed while accepting the tainted currency notes of

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Rs. 500/- from the complainant.

3. On merits of the case, the learned Special Judge found that

the prosecution could not cross the first hurdle, the barrier of giving of

legal and valid sanction by the Competent Authority and therefore,

acquitted the respondent of all the charges, the foundation of the

prosecution case itself being vitiated. The judgment and order in this

regard were passed by the learned Special Judge on 21 st May, 2001.

4. I heard the learned Additional Public Prosecutor for the State.

None appeared for the respondent though duly served. I have gone

through the record of the case.

5. According to learned Additional Public Prosecutor, the

interpretation of the sanction order vide Exh. 59 made by the learned

Special Judge is hyper technical and that it is well settled law that the

sanction order has to be read in its entirety and if something requires

clarification, the oral testimony could also be resorted to for seeking

the clarification of the doubt. He submits that the oral testimony of

PW-5 - Sanjay Barve who was Superintendent of Police, establishes the

fact that sanction that was accorded by him for prosecution of the

respondent was after application of mind to the facts of the case and

therefore, a valid sanction in the eye of Law. He submits that the

4 Cri Appeal 254-01.odt

proposal was sent to him by Anti Corruption Bureau, Nagpur for

according sanction and same was accepted by issuing the sanction

order dated 17.10.1994 vie Exh. 59. He submits that his evidence was

required to be read together with the sanction order but that was not

done by the learned Special Judge and therefore, this is a fit case for

making interference with the impugned judgment and order.

6. On perusal of the evidence available on record, particularly,

the testimony of PW-5 Sanjay Barve and the sanction order vide

Exh. 59, I do not think that evidence on record even remotely suggests

some other view in the instant case than the one by the learned Spcial

Judge. It is well settled law that in an appeal against acquittal it is not

permissible for the Court to substitute its view for the one taken by the

Court below unless the view of the Court below is impossible or based

upon perverse appreciation of evidence or does not logically arise from

the facts established on record.

7. Although PW-5, Sanjay Barve in his deposition before the

Court has stated that after going through the proposal and studying all

the papers which he received along with the proposal, he was

convinced that prima facie the offence of bribery was made out

against the public servant and therefore, it was necessary in the public

interest to accord the sanction for prosecution of such public servant

5 Cri Appeal 254-01.odt

i.e. the respondent and that was the reason, why he accorded sanction

vide sanction order dated 17.10.1994, his such testimony is

belied by sanction order vide Exh. 59 itself. Nowhere in the entire

sanction order has it been mentioned or written by Competent

Authority i.e. PW-5, Sanjay Barve that he accorded sanction for

prosecution of the respondent as required under Section 19(1)(c) of the

Prevention of Corruption Act. The crucial words "accorded sanction for

prosecution", are missing in the sanction order. Giving of sanction and

application of mind to that facts of the case constitute heart and soul

of Section 19(1)(c) of the Prevention of Corruption Act. This section

protects the public servant from being pressurized or threatened under

the guise of wrong prosecution and therefore, a duty has been cast

upon the competent authority, to carefully scrutinize the material

collected against the public servant, apply his mind to the facts placed

before him and decide impartially as to whether or not a case was

made out for prosecuting a public servant for his alleged criminal

misconduct. Therefore, the learned Special Judge has rightly described

the duty of the Sanctioning Authority as something which is sacrosanct

to law and calling for its religious observance. This duty,

unfortunately, has not been performed by the concerned authority with

desired sanctity. There has been no valid sanction accorded in the

instant case by the Competent Authority for prosecution of the

respondent for the offences punishable under the provisions of the

6 Cri Appeal 254-01.odt

Prevention of Corruption Act, 1988. The finding recorded by learned

Special Judge, in this regard is correct.

8. Sanction accorded under Section Section 19(1)(c) of the

Prevention of Corruption Act constitutes the foundation of a case

launched under Prevention of Corruption Act and when the foundation

gets vitiated the whole structure of prosecution case also collapses.

No Court can take cognizance of the prosecution case based upon

invalid sanction. Therefore, I do not think that it is necessary to further

examine the evidence of the prosecution on merits of the case.

9. In the result, I find that this is not a fit case for making any

interference with the impugned judgment and order and appeal

deserves to be dismissed. The appeal stands dismissed.

JUDGE

Gohane