State Of Mah.Thr. Suptd.Akola vs Shivpal Pralhadrao Sharma
2017 Latest Caselaw 2565 Bom

        J-apeal153.04.odt                                                                                               1/10  


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


                                  CRIMINAL APPEAL No.153 OF 2004


        State of Maharashtra,
        through Deputy Superintendent of Police,
        Anti Corruption Bureau,
        Akola, Tq. And Distt. Akola.                                                :      APPELLANT

                           ...VERSUS...

        Shivpal Pralhadrao Sharma,
        Aged about 62 years,
        Occupation : Retired Sr. Clerk,
        Incharge Electrical Inspector,
        Nagar Parishad, Akola, 
        Tq. & Distt. Akola.                                                         :      RESPONDENT


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri Sanjeev Deshpande, Additional Public Prosecutor for the Appellant.
        None for the Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 18 MAY, 2017.

ORAL JUDGMENT :

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

dated 29.11.2003, delivered by the Special Judge and Additional

Sessions Judge, Akola, in Special Case No.4/2000, thereby acquitting the

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

Prevention of Corruption Act, 1988 (hereinafter referred to as, the P.C.

         J-apeal153.04.odt                                                                                               2/10  


        Act, for short).

2. In the year 1994-95, the respondent was serving as Electrical

Inspector with Municipal Council, Akola. During that period of time, the

complainant, Shriram Shegokar, upon a contract awarded to him had

completed electrical work for Municipal Council, Akola. Its value was of

Rs.40,000/-. The payment of the bill, however, was not made by the

Municipal Council, Akola. The respondent being an Electrical Inspector,

was responsible for preparing the order-sheet containing his

recommendation for payment of the bill and submitting the same for

signature of Chief Officer and President of the Council. The respondent,

it was alleged, was not doing his job and was waiting for the

complainant to pay him some amount as illegal gratification for

performing his work of recommending the bill for payment to the

complainant. On 10.4.1997, the complainant had made a request to the

respondent to pass his bill. But, the respondent told him that unless the

complainant paid him 10% of the total bill amount, i.e. Rs.4,000/-, the

respondent would not clear the bill. On 15.4.1997, also, the complainant

was told the same thing by the respondent, although it was brought to

the notice of the respondent that the subsequent bills of some other

contractors were passed by him. Having been left with no option, the

complainant promised to fulfill the illegal demand of the respondent

within 8 to 10 days. The respondent gave the complainant time till

J-apeal153.04.odt 3/10

23.4.1997 to bring the bribe amount of Rs.4,000/-.

3. On 23.4.1997, unwilling as he was to pay the bribe amount,

the complainant lodged a report with Anti Corruption Bureau, Akola

against the respondent. It was decided that the respondent would be

entrapped while accepting the bribe amount. So necessary preparations

were made. The trap was set on the same day at the office of the

respondent. The trap proved to be successful as the respondent was

found to have accepted the tainted currency notes consisting of 6 notes

of Rs.500/- denomination and 10 notes of Rs.100/- denomination,

totaling to Rs.4,000/- and kept them in the office file. These tainted

currency notes were recovered from the office file. Both the hands of the

respondent were found to be sullied with phenolphthalein powder,

which was applied to the currency notes. Necessary panchanamas were

drawn out. Statements of witnesses were recorded. After completion of

the investigation, a charge-sheet was filed against the respondent.

4. The respondent was tried for offences punishable under

Sections 7 and 13(2) of the P.C. Act. On merits of the case, the learned

Special Judge found that the prosecution proved beyond reasonable

doubt the demand and acceptance of amount of Rs.4000/- as bribe by

the respondent from the complainant. But, on the point of the sanction,

he also found that it was absent in the present case and, therefore,

acquitted the respondent of the offences of acceptance of illegal

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gratification and abuse of official position, punishable under Sections 7

and 13(2) of the P.C. Act by the judgment and order dated 29.11.2003.

Not being satisfied with the same, the State is before this Court in the

present appeal.

5. Learned A.P.P. submits that even though there was initially

refusal of sanction by the competent authority i.e. the Standing

Committee on 31.3.1997, subsequently, on a reference being made by

the Investigating Officer, the administrator who was appointed in the

meanwhile to look after the affairs of the Council, by a resolution passed

on 3.7.2000, accorded the sanction to prosecute the respondent and

thereafter also issued a sanction order on 16 th August, 2000. He submits

that these subsequent sanctions were important and, therefore, ought not

to have been ignored by the learned Judge only because there was initial

refusal to accord sanction by the Standing Committee. He further

submits that in any case, the issue of sanction had lost its significance in

the instant case as the respondent retired on 31 st January, 1998 and the

charge-sheet against him was filed on 4.9.2000, which facts obviated the

need for seeking sanction to prosecute under Section 19 of the P.C. Act.

He submits that the law in this regard has been settled by the Hon'ble

Apex Court in the case of State of Punjab vs. Labh Singh, reported in

(2014) 16 SCC 807.

6. Nobody has appeared on behalf of the respondent. Section

J-apeal153.04.odt 5/10

386 Cr.P.C. requires that Court must hear the appellant or the

respondent as the case may be only when the appellant or the

respondent is present before the Court and then proceed to decide the

appeal on merits after perusing and considering the record of the case.

Accordingly, I have carefully gone through the record of the case

including the impugned judgment and order.

7. On perusal of the prosecution evidence available on record, I

find that initially the question of grant of sanction to prosecute under

Section 19 of the P.C. Act or otherwise was taken up for its resolution by

the Standing Committee of the Municipal Council on 21.3.1998 and

upon consideration of the material forwarded to it by the Investigating

Officer, legal advice and the service record of the respondent, the

Standing Committee came to the conclusion that this was not a fit case

for grant of sanction to prosecute the respondent and, therefore, by

passing a necessary resolution (Exh.-77), refused to accord sanction to

prosecute the respondent. This resulted in creating a handicap for the

Investigating Officer to file a charge-sheet against the respondent. It

appears that the Investigating Officer allowed the respondent to retire

from the service and then once again approached the Municipal Council

for re-consideration of the matter. By that time, PW 5 Mr. Kamble, had

been appointed as an Administrator on the Municipal Council which

brought a change of fortunes for both the Investigating Officer as well as

J-apeal153.04.odt 6/10

the respondent. The fortunes favoured the Investigating Officer while

they turned their back on the respondent. The result was that the

Administrator got a resolution dated 3.7.2000 passed according sanction

to prosecute the respondent on the corruption charges. It appears that

this resolution was passed by the Administrator (PW 5) without any

application of mind and this has been duly found by the learned Special

Judge. It also appears that this lacuna was sensed by the administrator

and in order to fill it up again on 16.8.2000 the Administrator issued yet

another order sanctioning prosecution against the respondent. This third

order is at Exhibit 99. With such evidence on record, the learned Special

Judge, applying the ratio of the cases of Surjit Singh vs. State of

Punjab, reported in 1979 CRI. LJ 214, Vijay Bahadur vs. State of U.P.,

reported in 1989 CRI. L.J. NOC 61 and Onkar Sharma vs. State of

H.P., reported in 2003 Cri.L.J. 1024, opined that once a decision

regarding sanction to prosecute was taken in a particular way, it was not

open for the competent authority to review such a decision and take a

reverse stand by granting sanction for prosecution, because taking of a

decision marks exhaustion of power to take a decision.

8. The view that a decision taken once exhausts the power to

take a decision and so there remains no power to take another decision,

adopted by the learned Special Judge cannot be more than correct. But,

I must say, it does not help solve the problem involved in this case. The

J-apeal153.04.odt 7/10

problem touches a more basic issue, the issue about need for obtaining a

sanction itself in a case where the public servant has retired before filing

of the charge-sheet or before the date of taking of cognizance of case by

the Special Judge, as in the instant case. The issue was resolved by the

Hon'ble Apex Court as far back as the year 1958 in the case of S.A.

Venkataraman vs. State, reported in AIR 1958 SC 107. A reference to

this case has been made in the case of State of Punjab vs. Labh Singh,

reported in (2014) 16 SCC 807. In Labh Singh, it has been observed

that while construing Section 6(1) of the Prevention of Corruption Act,

1947, the Supreme Court in S.A. Venkataraman, held that no sanction

was necessary in the case of a person who had ceased to be a public

servant at the time the Court was asked to take cognizance. It has also

been found in Labh Singh that Section 19(1) of the Prevention of

Corruption Act, 1988 is a provision which is in pari materia with Section

6(1) of the Prevention of Corruption Act, 1947 which was considered in

S.A. Venkataraman. In Labh Ssingh, the Hon'ble Apex Court has held that

the law on the point is quite clear that sanction to prosecute a public

servant for the offences under the Prevention of Corruption Act is not

required, if the public servant had already retired on the date of taking

cognizance by the Court.

9. Having got the answer to the issue, let us now see the facts of

Labh Singh to know if they bear any similarity to the facts of the instant

J-apeal153.04.odt 8/10

case, for, that will decide the fate of this case. Labh Singh, was a public

servant who retired on 30 th April 2000 and sanction to prosecute him

came to be rejected twice, firstly on 13.9.2000 and secondly on

24.9.2003, both dates being subsequent to the date of retirement of

Labh Singh. Despite such refusal to grant sanction to prosecute Labh

Singh, a charge-sheet or final report under Section 173 Cr.P.C. was filed

on 9.11.2004 in the Court of Additional Sessions Judge/Special Judge,

Patiala. It was in this backdrop that the Supreme Court held (para 9)

that the public servant "having retired from service there was no

occasion to consider grant of sanction under Section 19 of the P.C. Act".

In the instant case also, the facts are similar. The respondent retired on

31st January 1998 and sanction to prosecute him was rejected on 21 st

March, 1998, which was subsequent to the date of retirement of the

respondent. The charge-sheet was filed on 4th September, 2000 and this

could have been the earliest date on which cognizance of case could have

been taken. But, on that date the respondent having already retired,

there was no occasion to consider grant of sanction to prosecute him. It

was a different matter that subsequent to refusal of sanction on 21 st

March, 1998, the sanction was granted, albeit erroneously. But, as

stated earlier, it was of no consequence and, therefore, error committed

in grant of sanction after initial refusal to issue sanction had no bearing

whatsoever on the power of Court to take cognizance of instant case.

J-apeal153.04.odt 9/10

The ratio of S.A. Venkataraman reiterated in Labh Singh is squarely

applicable to the facts of the instant case. In fact, there has been a

consistent line of precedents set by the Hon'ble Supreme Supreme Court

in this regard and they could be found in the cases of C.R. Bansi vs.

State of Maharashtra reported in (1970) 3 SCC 537, Kalicharan

Mahapatra vs. State of Orissa, reported in (1998) 6 SCC 411 and K.

Veeraswami vs. Union of India, reported in (1991) 3 SCC 655.

However, it appears that these precedents were not brought to the notice

of the learned Special Judge and the result was a conclusion drawn

contrary to the law.

10. The learned Special Judge, on merits of the cases, has

already found that prosecution has proved to the hilt its case against the

respondent on the count of graft charges. These findings have not been

challenged by the respondent and thus now have attained finality . The

respondent has been acquitted only on the ground that no valid sanction

for his prosecution was in existence in the present case. But, the finding

recorded by the learned Special Judge on this count has now been found

to be contrary to the law warranting interference with it.

11. In the result, the appeal deserves to be allowed and it is

allowed to the extent that it challenges the acquittal of the respondent on

the ground of invalidity of sanction.

12. The respondent is not present before the Court and,

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therefore, no hearing on the question of sentence can be granted to him.

Even, otherwise, he was not heard on the question of sentence even by

the trial Court, as there was no occasion for the trial Court to hear him

on this count. But, now with reversal of the finding of the trial Court

recorded on the point of sanction, the need for hearing the accused on

the question of sentence has arisen. A proper forum for this purpose, in

my view, would be the trial Court, given the facts that the respondent is

not present before this Court and that he was not heard on it by the trial

Court. If this exercise is done by the trial Court; the respondent will also

not be denuded of his right of appeal even against the quantum of

sentence. This would call for remitting of the case back to the trial Court

on this limited point.

13. Thus, the appeal is partly allowed to the extent it challenges

legality and correctness of the finding recorded by the trial Court on the

question of sanction to prosecute the respondent. It is held that in the

facts and circumstances of the case, sanction to prosecute the respondent

was not required and the question of sanction was irrelevant. The trial

Court shall summon the respondent and hear him on the question of

sentence and then proceed to dispose of the case by appropriately

sentencing the respondent in accordance with law.

JUDGE okMksns