Bombay High Court
Pravinkumar Pitambar Deore vs The State Of Maharashtra on 9 October, 2017
Bench: A.M. Badar
REVN-364-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.364 OF 2017
PRAVINKUMAR PITAMBAR DEORE )...APPLICANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.M.S.Mohite a/w. Mr.Ashish S. Gaikwad, Advocate for the
Applicant.
Mr.Deepak Thakre a/w. Mr.V.V.Gangurde, APP for the Respondent -
State.
CORAM : A. M. BADAR, J.
DATE : 9th OCTOBER 2017
JUDGMENT :
1 By this revision petition, petitioner/original accused
no.1 Pravinkumar Deore is challenging the order dated 17 th May
2017 passed by the learned Special Judge under the Prevention of
Corruption Act, 1988, Nashik, on an application Exhibit 4 in
Special Case No.23 of 2016 between the parties, thereby partly
rejecting the application filed by the revision petitioner/accused
no.1 Pravinkumar Deore seeking discharge from the Special Case
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bearing no.23 of 2016, for offences punishable under Sections 7,
12, 13(1)(d) read with 13(2) of the Prevention of Corruption Act,
1988 (hereinafter referred to as P.C.Act for the sake of brevity).
Along with him co-accused Prakash Lakaria is also being
prosecuted in the said case. By this impugned order, the learned
Special Judge under the P.C.Act, Nashik, discharged the revision
petitioner/accused no.1 Pravinkumar Deore for offence punishable
under Sections 7, 13(1)(d) read with 13(2) of the P.C.Act, 1988,
by holding that cognizance of those offences cannot be taken
against him for want of sanction under Section 19 of the P.C.Act.
1988. However, revision petitioner/accused no.1 Pravinkumar
Deore is aggrieved by clause (2) of the impugned order whereby
his prayer for discharge from the offence punishable under Section
12 of the P.C.Act, 1988, came to be rejected by holding that
cognizance of the said offence can be taken, as no sanction as
envisaged by Section 19 of the P.C.Act, 1988, is required for
taking cognizance of the said offence punishable under Section 12
of the P.C.Act, 1988.
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2 Heard Shri Mohite, the learned advocate appearing for
the revision petitioner/accused no.1 Pravinkumar Deore. The
learned advocate vehemently argued that perusal of the entire
charge-sheet goes to show that case of the prosecution was to the
effect that revision petitioner/accused no.1 Pravinkumar Deore
was the main culprit in the matter, as he has demanded
gratification other than legal remuneration for doing favour in
official act of releasing arrears of salary, bonus and increment for
the period of suspension of complainant Dr.Laxman Bagade as
well as balance of pensionary benefit payable to another
complainant Dr.Ravindra Dev. Prosecution has averred in the
charge-sheet that it was accused no.2 Prakash Lakaria, who has
aided revision petitioner/accused no.1 Pravinkumar Deore,
Deputy Municipal Commissioner, in demand and acceptance of
illegal gratification for showing favour to complainants Dr.Laxman
Bagade and Dr.Ravindra Dev by releasing arrears of their
emoluments and pension. However, as the State has refused to
accord sanction as envisaged by Section 19 of P.C.Act, 1988, for
prosecuting revision petitioner/accused no.1 Pravinkumar Deore,
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the prosecution at the time of filing of the charge-sheet,
modulated its case to show that the demand and acceptance of
illegal gratification was by co-accused Prakash Lakaria, Senior
Clerk, and the revision petitioner/accused no.1 Pravinkumar
Deore aided him in demanding and accepting illegal gratification
and thereby committed the offence punishable under Section 12
of the P.C.Act, 1988. In submission of the learned advocate
appearing for revision petitioner/accused no.1 Pravinkumar
Deore, there is no iota of evidence against revision
petitioner/accused no.1 Pravinkumar Deore for commission of
alleged offence punishable under Section 12 of the P.C.Act, 1988.
3 Shri Mohite, the learned advocate appearing for
revision petitioner/accused no.1 Pravinkumar Deore further
argued that provisions of offence of abetment of offences defined
in Section 7 or Section 11 made punishable under Section 12 of
the P.C.Act, 1988, is not applicable to public servants as special
provision is made for punishing public servants abetting offences
punishable under the P.C.Act, 1988. As special provisions are
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made for punishing public servants for abetting offence
punishable under P.C.Act, 1988, Section 12 of the P.C.Act, 1988,
does not take public servants in its purview for imposing penal
consequences prescribed thereunder. For this purpose, the learned
advocate for revision petitioner/accused no.1 Pravinkumar Deore
drew my attention to provisions of Sections 8, 9 and 12 of the
P.C.Act, 1988, and submitted that for commission of offences
punishable under these Sections, no sanction under Section 19 of
the P.C.Act, 1988, is required. The principal accused cannot be an
abettor. However, sanction is required for offences punishable
under Sections 7, 10, 11, 13 and 15 of P.C.Act, 1988, only because
those are offences committed by public servants. It is argued that
Section 10 of P.C.Act, 1988, makes special provision for punishing
public servants for abetment of offence defined in Sections 8 and
9, and therefore, it requires sanction under Section 19 of the said
Act. However, as public servant is not covered by Section 12 of
the P.C.Act, 1988, there is no need to obtain the sanction as
envisaged by Section 19 of the said Act.
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4 Shri Mohite, the learned advocate appearing for
revision petitioner/accused no.1 Pravinkumar Deore further
argued that the prosecution has not taken any step to challenge
the order rejecting the request of the prosecution to prosecute
revision petitioner/accused no.1 Pravinkumar Deore for offence
punishable under Sections 7, 13(1)(d) read with 13(2) of the
P.C.Act, 1988. The prosecution has not obtained any sanction as
envisaged by Section 197 of the Code of Criminal Procedure
(Cr.P.C.) for prosecuting revision petitioner/accused no.1
Pravinkumar Deore by alleging that he conspired with co-accused
Prakash Lakaria, Senior Clerk, for commission of offence
punishable under the P.C.Act, 1988. Act of dealing with files of
Dr.Laxman Bagade and Dr.Ravindra Dev can certainly be termed
as an official act, and therefore, if it is the case of the prosecution
that revision petitioner/accused no.1 Pravinkumar Deore has
indulged in criminal conspiracy with co-accused Prakash Lakaria,
then it was incumbent on the part of the prosecution to obtain
sanction to prosecute revision petitioner/accused no.1
Pravinkumar Deore, as provided by Section 197 of the Cr.P.C. He
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drew my attention to Section 5 of the Cr.P.C. as well as Section 28
of the P.C.Act, 1988, to buttress this submission. By relying on
judgments of the Hon'ble Apex Court in the matter of
Subramanian Swamy vs. Manmohan Singh and Another 1,
Romesh Lal Jain vs. Naginder Singh Rana and Others 2 and in
N.K.Ganguly vs. Central Bureau of Investigation, New Delhi 3,
Shri Mohite, the learned advocate, argued that prosecution is
alleging that there was conspiracy and as indulging in criminal
conspiracy is an offence punishable under Section 120B of the
IPC, the prosecuting agency ought to have obtained sanction of
the State, as per requirement of Section 197 of the Cr.P.C.
With these submissions, Shri Mohite, the learned
advocate appearing for the revision petitioner argued that the
learned Special Judge under the P.C.Act, Nashik, erred in not
discharging the revision petitioner, so far as the offence
punishable under Section 12 of the P.C.Act, 1988, is concerned.
1 (2012) 3 Supreme Court Cases 64
2 (2006) 1 Supreme Court Cases 294
3 (2016) 2 Supreme Court Cases 143
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5 As against this, learned APP Shri Gangurde argued
that accused no.2 Prakash Lakaria accepted the amount of illegal
gratification on behalf of revision petitioner/accused no.1
Pravinkumar Deore, Deputy Municipal Commissioner, Nashik, and
therefore, revision petitioner/accused no.1 Pravinkumar Deore has
committed the offence punishable under Section 12 of the P.C.Act,
1988. He drew my attention to the First Information Report (FIR)
as well as complaints of Dr.Laxman Bagade and Dr.Ravindra Dev
to demonstrate that the demand and acceptance of illegal
gratification by co-accused Prakash Lakaria was for and on behalf
of revision petitioner/accused no.1 Pravinkumar Deore. With this,
the learned APP further argued that perusal of Section 19 of the
P.C.Act, 1988, shows that for taking cognizance of the offence
punishable under Section 12 of the P.C.Act, 1988, sanction of the
Competent Authority is not required, and therefore, order
rejecting the application for discharge moved by revision
petitioner/accused no.1 Pravinkumar Deore before the learned
Special Judge under the P.C.Act, Nashik, was rightly rejected by it.
Shri Thakre, learned Public Prosecutor, placed on judgment of the
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Hon'ble Apex Court in the matter of State through Central
Bureau of Investigation vs. Parmeshwaran Subramani & Anr.4
and submitted that abetment of offence punishable under Sections
7 or 11 of the P.C.Act, 1988, itself is a distinct offence, and the
court by process of interpretation cannot read Section 12 into
Section 19 as it may amount to rewriting the very Section 19
itself.
6 I have carefully considered the relevant submissions
and also perused the entire charge-sheet minutely. Now, let us
examine whether the learned Special Judge under the P.C.Act,
Nashik, has rightly rejected the prayer of revision
petitioner/accused no.1 Pravinkumar Deore for his discharge, so
far as the offence punishable under Section 12 of the P.C.Act,
1988, is concerned. It is well settled that the revisional
jurisdiction is exercised in exceptional cases where there is glaring
defect of the procedure or manifest error on the point of law
resulting in miscarriage of justice. In the case in hand, it will have
to be seen whether the learned Special Judge under the P.C.Act,
Nashik, in rejecting the application for discharge from the offence
4 MANU/SC/1625/2009
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punishable under Section 12 of the P.C.Act, 1988, has committed
manifest error of law warranting interference of this court in its
revisional jurisdiction. For proper appreciation of facts involved in
the instant case, it is necessary to put on record relevant
provisions of law. The charge-sheet was filed by the respondent /
Anti Corruption Bureau (ACB) of the State in the court of the
learned Special Judge under the P.C.Act, Nashik, on 23 rd
November 2016, by showing revision petitioner/accused no.1
Pravinkumar Deore, the then Deputy Municipal Commissioner,
Nashik Municipal Corporation, Nashik, as accused no.1. Prakash
Lakaria, Senior Clerk in Establishment Section of Nashik
Municipal Corporation is shown as accused no.2 in the said
charge-sheet. Commission of offences punishable under Sections
7, 12, 13(1)(d) read with 13(2) of the P.C.Act, 1988, by accused
persons is alleged in the said charge-sheet. Accordingly, Special
Case No.23 of 2016 came to be registered against revision
petitioner/accused no.1 Pravinkumar Deore and co-accused
Prakash Lakaria. Sections 7, 12, 13(1)(d) and 13(2) of the
P.C.Act, 1988, read thus :
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"7 Public servant taking gratification other
than legal remuneration in respect of an official
act -- Whoever, being, or expecting to be a public
servant, accepts or obtains or agrees to accept or
attempts to obtain from any person, for himself or
for any other person, any gratification whatever,
other than legal remuneration, as a motive or
reward for doing or forbearing to do any official act
or for showing or forbearing to show, in the exercise
of his official functions, favour or disfavour to any
person or for rendering or attempting to render any
service or disservice to any person, with the Central
Government or any State Government or Parliament
or the Legislature of any State or with any local
authority, corporation or Government company
referred to in clause (c) of section 2, or with any
public servant, whether named or otherwise, shall
be punishable with imprisonment which shall be not
less than six months but which may extend to five
years and shall also be liable to fine."
"12 Punishment for abetment of offences
defined in section 7 or 11 -- Whoever abets any
offence punishable under section 7 or section 11
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whether or not that offence is committed in
consequence of that abetment, shall be punishable
with imprisonment for a term which shall be not
less than six months but which may extend to five
years and shall also be liable to fine."
"13 Criminal misconduct by a public servant -
(1) A public servant is said to commit the offence of
criminal misconduct -
(a).......
(b)......
(c)......
(d) if he -
(i) by corrupt or illegal means, obtains for
himself or for any other person any valuable
thing or pecuniary advantage; or
(ii) by abusing his position as a public servant,
obtains for himself or for any other person any
valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant,
obtains for any person any valuable thing or
pecuniary advantage without any public interest;
or"
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"13 Criminal misconduct by a public servant -
(2)Any public servant who commits criminal
misconduct shall be punishable with imprisonment
for a term which shall be not less than one year but
which may extend to seven years and shall also be
liable to fine."
7 Section 12 of the P.C.Act, 1988, makes abettor of
offence punishable under Sections 7 and 11 thereof liable for
punishment prescribed therein. The term "abetment" is not
defined in P.C.Act, 1988. As such, one will have to resort to the
definition of the term "abetment" as found in the Indian Penal
Code (IPC). Section 107 thereof defines "abetment of a thing".
Section 107 of the IPC reads thus :
"107 Abetment of a thing -- A person abets the
doing of a thing, who --
First - Instigates any person to do that thing; or
Secondly - Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if
an act or illegal omission takes place in pursuance of
that conspiracy, and in order to the doing of that thing;
or
Thirdly - Intentionally aids, by any act or illegal
omission, the doing of that thing."
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8 At this juncture, it is apposite to quote provisions of
Section 197(1) of the Cr.P.C. which deals with prosecution of
public servants, which reads thus :
197 Prosecution of Judges and public
servants -
(1)When any person who is or was a Judge or
Magistrate or a public servant not removable from
his office save by or with the sanction of the
Government is accused of any offence alleged to
have been committed by him while acting or
purporting to act in the discharge of his official duty,
no Court shall take cognizance of such offence
except with the previous sanction-
(a) in the case of a person who is employed or, as
the case may be, was at the time of commission
of the alleged offence employed, in connection
with the affairs of the Union, of the Central
Government;
(b) in the case of a person who is employed or, as
the case may be, was at the time of commission
of the alleged offence employed, in connection
with the affairs of a State, of the State
Government:"
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9 Simultaneously, it will be beneficial to quote relevant
provisions of Section 19 of the P.C.Act, 1988, which deals with
previous sanction necessary for prosecuting the public servant,
which reads thus :
"19 Previous sanction necessary for
prosecution --
(1)No court shall take cognizance of an offence
punishable under sections 7, 10, 11, 13 and 15
alleged to have been committed by a public servant,
except with the previous sanction,--
(a) in the case of a person who is employed in
connection with the affairs of the Union and is
not removable from his office save by or with the
sanction of the Central Government, of that
Government;
(b) in the case of a person who is employed in
connection with the affairs of a State and is not
removable from his office save by or with the
sanction of the State Government, of that
Government;
(c) in the case of any other person, of the
authority competent to remove him from his
office.
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10 Careful perusal of provisions of Section 19 of the
P.C.Act, 1988, and that of 197 of the Cr.P.C. makes it clear that
both these sections operate in conceptually different fields.
Offences contemplated in P.C.Act, 1988, are those which cannot
be treated as acts directly or either purportedly done in discharge
of official duties by a public servant. On the other hand, Section
197 of the Cr.P.C. deals with a public servant who is accused of
any offence alleged to have been committed by him while acting
or purporting to act in discharge of his official duty. Sanction
required under Section 197 of the Cr.P.C. and the one required
under Section 19 of the P.C.Act, 1988, stands on different footing.
Sanction under Section 197 of the Cr.P.C. is required when the act
complained of is an offence and when there is reasonable
connection between such act and the official duty of the public
servant. If the act and the official duty are so inter-related that
one can postulate reasonably that it was done by an accused in
performance of offical duty though possibly in excess of needs and
requirement, then sanction under Section 197 of the Cr.P.C. is
necessary. Valuable reference can be had to this proposition from
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judgments in the matter of Subramanian Swamy (supra) and
Romesh Lal Jain (supra). The court is required to examine the
allegations contained in the final report in order to decide
whether previous sanction is required to be obtained under
Section 197 of the Cr.P.C. and if act complained of his directly
concerned with official duty of a public servant, then sanction is
necessary. A court is precluded from entertaining the charge or
taking notice of it or exercising jurisdiction if the same is in
respect of a public servant who is accused of an offence, alleged to
have been committed during discharge of his official duty, if the
Appropriate Government does not accord sanction to prosecute
such public servant, as envisaged by Section 197 of the Cr.P.C. In a
similar way, the Special court is precluded from entertaining a
complaint or the charge by taking notice of it or by exercising
jurisdiction in respect of the public servant for alleged offences
punishable under Sections 7, 10, 11, 13 and 15 of the P.C.Act,
1988. Keeping in mind this position of law, let us put on record
facts of the instant case as reflected from the case of the
prosecution found in the charge-sheet filed against accused
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persons.
11 Revision petitioner/accused no.1 Pravinkumar Deore is
an officer from the cadre of the Deputy Collector working in
Revenue and Forest Department of the State of Maharashtra. He is
Class I Gazetted Officer of the State. By order dated 22 nd August
2008, he came to be appointed by way of deputation on the post
of the Deputy Commissioner (Administration) with Municipal
Corporation, Nashik. Accused no.2 Prakash Lakaria was initially
recruited as a sweeper with Municipal Corporation, Nashik, and
with passage of time, he came to be promoted and at the relevant
time, he was holding the post of Senior Clerk in Establishment
Department of the Municipal Corporation, Nashik.
12 On 8th February 2011, Dr.Laxman Sadashiv Bagade,
Medical Officer working with Municipal Corporation, Nashik,
lodged a complaint with ACB, Nashik. Following averments were
made in the said complaint :
Dr.Bagade alleged that on 25th July 2006, he came to
be suspended with allegations that because of his negligence, a
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patient named Gangubai More died. As the departmental inquiry
against him could not be completed within a period of one year,
he came to be reinstated. On 30th April 2010, the Inquiry Officer
had submitted his report stating that charges leveled against
Dr.Laxman Bagade are not proved. The complainant alleged that
he was not paid full salary of period of suspension, bonus as well
as annual increment. With this, Dr.Laxman Bagade has stated in
his complaint that he met revision petitioner/accused no.1
Pravinkumar Deore, the then Deputy Municipal Commissioner,
and asked him to release payments in respect of suspension
period. In January 2011, revision petitioner/accused no.1
Pravinkumar Deore told him that without payment of money, no
work can be done in the Municipal Corporation. The complaint
further contains an averment that revision petitioner/accused no.1
Pravinkumar Deore informed complainant Dr.Laxman Bagade that
he (revision petitioner/accused no.1 Pravinkumar Deore) has
already told co-accused Prakash Lakaria about the money
required for doing work of the complainant. With this,
complainant Dr.Laxman Bagade was asked by revision
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petitioner/accused no.1 Pravinkumar Deore to discuss the matter
with co-accused Prakash Lakaria and if what is stated by the co-
accused is agreeable to the complainant, then only the order in
favour of the complainant will be issued. Complainant Dr.Laxman
Bagade further averred that revision petitioner/accused no.1
Pravinkumar Deore informed him that otherwise the complainant
may continue to make applications in the matter. In his complaint
to the ACB, complainant Dr.Laxman Bagade further averred that
thereafter he met co-accused Prakash Lakaria who told him that
revision petitioner/accused no.1 Pravinkumar Deore has
instructed to inform the complainant to make arrangement for
payment of Rs.2 lakh. Complainant Dr.Laxman Bagade in his
complaint further reported to the ACB that on 3 rd February 2011
co-accused Prakash Lakaria came to his house and told him that
revision petitioner/accused no.1 Pravinkumar Deore told him to
inform that the complainant will have to pay the amount
equivalent to the amount paid by one Dr.Palod for getting the
work done. Co-accused Prakash Lakaria further told that Dr.Palod
had paid an amount of Rs.2.50 lakh. Complainant Dr.Laxman
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Bagade further reported to the ACB that when he expressed his
inability to pay that much amount, co-accused Prakash Lakaria
told him to contact revision petitioner/accused no.1 Pravinkumar
Deore and negotiate the amount with revision petitioner/accused
no.1 Pravinkumar Deore.
13 Plain reading of the complaint dated 8th February 2011
unerringly points out that revision petitioner/accused no.1
Pravinkumar Deore, who was holding the key post in the
administration, he being Deputy Municipal Commissioner, in-
charge of the Administration department of the Municipal
Corporation, Nashik, had demanded illegal gratification from
complainant Dr.Laxman Bagade for doing official act of releasing
monetary dues in respect of period of suspension undergone by
complainant Dr.Laxman Bagade and for this purpose, he had taken
aid of co-accused Prakash Lakaria, Senior Clerk.
14 The charge-sheet is also in respect of the complaint
made by another person i.e. Dr.Ravindra Dev, Retired Medical
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Officer of Municipal Corporation, Nashik, on 1st March 2011 to the
ACB. In his complaint, Dr.Ravindra Dev alleged that when he
retired from the services of the Municipal Corporation on 31 st May
2009, one departmental inquiry was pending against him, and
therefore, his 25% pension came to be withheld by his
employer/Municipal Corporation. In September 2009, he came
to be exonerated of the charges leveled against him. In December
2010, he met revision petitioner/accused no.1 Pravinkumar
Deore, Deputy Municipal Commissioner. In that meeting, revision
petitioner/accused no.1 Pravinkumar Deore warned him that if he
continues to make applications under the Right to Information
Act, nothing will happen. Dr.Ravindra Dev further alleged that
revision petitioner/accused no.1 Pravinkumar Deore informed him
that he (revision petitioner/accused no.1 Pravinkumar Deore) has
told Prakash Lakaria about the money required for getting the
work done. Complainant Dr.Ravindra Dev alleged that with this,
revision petitioner/accused no.1 Pravinkumar Deore directed him
to meet co-accused Prakash Lakaria, Senior Clerk. When
complainant Dr.Ravindra Dev met co-accused Prakash Lakaria, he
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told that revision petitioner/accused no.1 Pravinkumar Deore has
informed him (Prakash Lakaria) to tell him (Dr.Ravindra Dev) to
pay Rs.50,000/- for getting the work of release of pension done.
With this, complainant Dr.Ravindra Dev requested ACB to take
action against revision petitioner/accused no.1 Pravinkumar
Deore and co-accused Prakash Lakaria.
15 Plain reading of complaint of Dr.Ravindra Dev clearly
indicates that complainant Dr.Ravindra Dev has alleged that it was
revision petitioner/accused no.1 Pravinkumar Deore, Deputy
Municipal Commissioner, who had demanded gratification other
than legal remuneration for doing official act of releasing his
balance pension.
16 Undisputedly, acting on complaints of Dr.Laxman
Bagade and Dr.Ravindra Dev, subsequently, routine formalities
were undertaken by the prosecuting agency - ACB, Nashik. Panch
witnesses were called. Pre-trap verification was done.
Subsequently, the trap was laid and resultantly, the FIR came to be
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lodged by Kalyanrao Vidhate, Deputy Superintendent, ACB,
Nashik, which ultimately resulted in filing of the charge-sheet
against revision petitioner/accused no.1 Pravinkumar Deore and
co-accused Prakash Lakaria, leading to the registration of the
Special Case No.23 of 2016. Perusal of the charge-sheet goes to
show that during the course of pre-trap verification conducted on
8th February 2011 and 9th February 2011, revision
petitioner/accused no.1 Pravinkumar Deore was not available at
his office. The charge-sheet further reveals that on 21 st February
2011 and 22nd February 2011 the prosecuting agency laid traps
but revision petitioner/accused no.1 Pravinkumar Deore was not
available, and therefore, traps failed. The charge-sheet contains
the transcript of audio recording of conversation amongst
Dr.Laxman Bagade, Dr.Ravindra Dev and co-accused Prakash
Lakaria allegedly done on 11th February 2011, for the purpose of
pre-trap verification. Perusal of this transcript goes to show that
co-accused Prakash Lakaria had informed complainants
Dr.Laxman Bagade and Dr.Ravindra Dev that Saheb told each of
them to pay an amount of Rs.50,000/-. Ultimately, the trap was
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laid lastly on 1st March 2011. Transcript of audio recording of
conversation between complainants Dr.Laxman Bagade and
Dr.Ravindra Dev with revision petitioner/accused no.1
Pravinkumar Deore and with co-accused Prakash Lakaria is also
annexed along with the charge-sheet. At that time, both
complainants along with shadow panch - Yerurkar were sent with
the digital recorder for meeting accused persons. The transcript
reveals that complainants Dr.Laxman Bagade and Dr.Ravindra Dev
met revision petitioner/accused no.1 Pravinkumar Deore. They
requested revision petitioner/accused no.1 Pravinkumar Deore to
make phone call to co-accused Prakash Lakaria. Revision
petitioner/accused no.1 Pravinkumar Deore refused to make such
call and told complainant Dr.Laxman Bagade that he has already
spoken to co-accused Prakash Lakaria. The transcript reveals that
then Dr.Laxman Bagade and Dr.Ravindra Dev met co-accused
Prakash Lakaria. He told complainants that Saheb informed him
and he will move the file in the morning of next working day. Co-
accused Prakash Lakaria further told complainants that he will
come in the evening to take money. The transcript further reveals
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that he told both complainants that Saheb told him not to receive
money in the office. As seen from the transcript of conversation
between both complainants and co-accused Prakash Lakaria, it was
decided to give money at the house of complainant Dr.Ravindra Dev
in the evening of that date i.e, 1 st March 2011. The transcript further
shows that co-accused Prakash Lakaria then went to the house of
complainant Dr.Ravindra Dev and he was there from 6.05 p.m. to
6.20 p.m. of 1st March 2011. As revealed from the transcript of
conversation between them, co-accused Prakash Lakaria had
received an amount of Rs.1 lakh from complainants at the house of
complainant Dr.Ravindra Dev.
17 Perusal of the charge-sheet further shows that after
acceptance of illegal gratification by co-accused Prakash Lakaria,
pre-arranged signal was given. Raiding party then apprehended co-
accused Prakash Lakaria and tainted currency notes worth Rs.1 lakh
came to be recovered from him. Then, as stated earlier, on 2 nd
March 2011, Kalyanrao Vidhate, Deputy Superintendent of Police,
ACB, lodged FIR with Police station Bhadrakali, which has ultimately
resulted in registration of the subject special case on filing of the
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charge-sheet.
18 The charge-sheet apparently filed on 23 rd November
2016 reflects that on completion of investigation, proposal for
issuance of sanction as contemplated under Section 19 of the
P.C.Act, 1988, was sent with requisite documents in respect of
Crime No.3017 of 2011 for offences punishable under Sections 7,
12, 13(1)(d) read with 13(2) of the P.C.Act, 1988. The charge-
sheet contains order dated 23rd June 2014 (page 73 of the record)
issued by the State Government in Revenue and Forest
Department, rejecting sanction to prosecute revision
petitioner/accused no.1 Pravinkumar Deore in Crime No.3017 of
2011 for offences punishable under Sections 7, 12, 13(1)(d) and
13(2) of the P.C.Act, 1988. The charge-sheet further contains
letter dated 15th July 2014 issued by the ACB to the State
Government in Revenue and Forest Department (page 745 of the
record) for review of the decision to reject sanction to prosecute
revision petitioner/accused no.1 Pravinkumar Deore. After re-
considering the matter, the State Government in Revenue and
Forest Department vide order dated 25 th January 2017 (record
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page no.781) again informed to the ACB that the State has
decided to confirm its order of rejecting sanction to prosecute
revision petitioner/accused no.1 Pravinkumar Deore. This
development makes it clear that prior to filing of the charge-sheet
against revision petitioner/accused no.1 Pravinkumar Deore in the
month of November 2016, the State Government vide order dated
23rd June 2014 had refused to accord sanction to prosecute
revision petitioner/accused no.1 Pravinkumar Deore to the
knowledge of the prosecuting agency i.e. the ACB. Proposal of the
ACB to review this rejection was then pending with the State. The
matter will have to be examined in the light of this factual
position, in order to ascertain what was the prosecution case
against revision petitioner/accused no.1 Pravinkumar Deore.
19 Knowing fully well that the State has refused to accord
sanction to prosecute revision petitioner/accused no.1
Pravinkumar Deore in subject Crime No.3017 of 2011, the charge-
sheet came to be filed, which contains description of the charge in
Column No.16 of the charge-sheet. Perusal of this Column No.16
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of the charge-sheet giving description of the charge as per version
of the ACB, makes the prosecution case against revision
petitioner/accused no.1 Pravinkumar Deore clear. It is alleged by
the prosecuting agency i.e. ACB that for deciding the entitlement
of the complainant Dr.Laxman Bagade, revision petitioner/accused
no.1 Pravinkumar Deore demanded gratification other than legal
remuneration amounting to Rs.50,000/- from complainant
Dr.Laxman Bagade through accused no.2 Prakash Lakaria. The
description of charge in Column No.16 of the charge-sheet further
reveals that according to the prosecuting agency, for releasing
25% pension of complainant Dr.Ravindra Dev, withheld by
Municipal Corporation, revision petitioner/accused no.1
Pravinkumar Deore, through accused no.2 Prakash Lakaria,
demanded gratification other than legal remuneration amounting
to Rs.50,000/- from Dr.Ravindra Dev. Column No.16 of the
charge-sheet further makes it clear that according to the
prosecuting agency, as per directions of revision
petitioner/accused no.1 Pravinkumar Deore, accused no.2 Prakash
Lakaria, Senior Clerk, had demanded gratification other than legal
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remuneration amounting to Rs.50,000/- each from Dr.Laxman
Bagade and Dr.Ravindra Dev. It is further averred in Column
No.16 of the charge-sheet that as per instructions of revision
petitioner/accused no.1 Pravinkumar Deore, accused no.2 Prakash
Lakaria had gone to the house of Dr.Ravindra Dev on 1 st March
2011 for receiving the amount of illegal gratification and
accepting Rs.1,00,000/- from complainant Dr.Laxman Bagade and
Dr.Ravindra Dev. Thus, the prosecuting agency i.e. ACB has
unequivocally stated in Column No.16 of the charge-sheet that the
demand of illegal gratification was emanated from revision
petitioner/accused no.1 Pravinkumar Deore, the then Deputy
Municipal Commissioner, Nashik, and accused no.2 Prakash
Lakaria has aided him in the matter, by meeting complainants
Dr.Laxman Bagade and Dr.Ravindra Dev, by going to the house of
complainant Dr.Ravindra Dev and received the amount of illegal
gratification totaling Rs.1,00,000/-. The entire case of the
prosecution, since inception, as such, was to the effect that
revision petitioner/accused no.1 Pravinkumar Deore demanded
illegal gratification from complainants Dr.Laxman Bagade and
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Dr.Ravindra Dev for releasing their dues, and in that process,
accused no.2 Prakash Lakaria has aided him for demand and
receipt of illegal gratification. However, only in the last paragraph
of Column No.16 of the charge-sheet, obviously because the State
had refused to sanction prosecution of revision petitioners
Pravinkumar Deor, the Investigator averred that the revision
petitioner/accused no.1 Pravinkumar Deore aided accused no.2
Prakash Lakaria, by taking complete "U" turn. In the FIR lodged
by Kalyanrao Vidhate, Deputy Superintendent, ACB, against
accused persons, also it is averred that as per directions of revision
petitioner/accused no.1 Pravinkumar Deore, accused no.2 Prakash
Lakaria aided and assisted accused no.1 revision
petitioner/accused no.1 Pravinkumar Deore in receiving amount
of illegal gratification by visiting house of complainant
Dr.Ravindra Dev.
20 Section 7 of the P.C.Act, 1988, deals with public
servant taking gratification other than legal remuneration in
respect of an official act. Acceptance of any gratification as a
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motive or reward for doing any official act or for showing favour
in exercise of his official function by a public servant is made
punishable under this Section and for prosecuting a public servant
for the offence punishable under this Section, previous sanction as
contemplated by Section 19 of P.C.Act, 1988, is required from the
Competent Authority, which in the instant case is the State of
Maharashtra. Section 13(1)(d) of P.C.Act, 1988, deals with
criminal misconduct by a public servant and obtaining any
valuable thing or pecuniary advantage by corrupt or illegal means
or by abusing his position as a public servant, makes a public
servant liable for penalty under this Section. A public servant can
be prosecuted for commission of an offence punishable under
Section 13 of the P.C.Act, 1988, only with prior sanction of the
Competent Authority, as per provisions of Section 19 of the
P.C.Act, 1988.
21 In the case in hand, State of Maharashtra, which is an
authority to sanction prosecution of revision petitioner/accused
no.1 Pravinkumar Deore, has refused to accord sanction to
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prosecute him not only once, but twice. On this backdrop, if
impugned order is examined, then it is seen that the learned
Special Judge under P.C.Act, Nashik, decided to take cognizance of
the offence punishable under Section 12 of the P.C.Act, 1988,
against present revision petitioner/accused no.1 Pravinkumar
Deore, without undertaking examination of material before it, as
found in the charge-sheet. In a shortcut manner, the subject was
dealt by the learned Special Judge under P.C.Act, Nashik. The
only reasoning for deciding to take cognizance of the offence
punishable under Section 12 of the P.C.Act, 1988, against revision
petitioner/accused no.1 Pravinkumar Deore, is to the effect that
for prosecuting a public servant for the offence punishable under
Section 12 of the P.C.Act, 1988, no sanction as envisaged by
Section 19 of the said Act is necessary. The learned Special Judge
under P.C.Act, Nashik, while deciding the application for discharge
moved by revision petitioner/accused no.1 Pravinkumar Deore,
has not undertaken scrutiny of the charge-sheet in order to decide
whether the offence punishable under Section 12 of the P.C.Act,
1988, is attracted against revision petitioner/accused no.1
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Pravinkumar Deore. It was expected of the learned Special Judge
under P.C.Act, Nashik, to undertake examination of material
available against revision petitioner/accused no.1 Pravinkumar
Deore in order to satisfy himself as to sufficiency of that material
for framing the charge-sheet for the offence punishable under
Section 12 of the P.C.Act, 1988. Though the learned Special Judge
under P.C.Act, Nashik, was not expected to go deep into probative
value of the material on record, what was expected of him was to
consider whether there is ground for presuming that the offence
punishable under Section 12 of the P.C.Act, 1988, has been
committed by revision petitioner/accused no.1 Pravinkumar
Deore. He ought to have examined the material gathered by the
Investigator in order to arrive at a conclusion, whether it indicates
existence of factual ingredients constituting the offence punishable
under Section 12 of the P.C.Act, 1988, indicting revision
petitioner/accused no.1 Pravinkumar Deore. The learned Special
Judge under P.C.Act, Nashik, ought to have examined whether
there is a ground for presuming that the offence punishable under
Section 12 of the P.C.Act, 1988, has been committed by revision
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petitioner/accused no.1 Pravinkumar Deore. Exercise of
evaluating the material and documents on record with a view of
finding out if facts emerging from the charge-sheet, taken at their
face value, discloses existence of all the ingredients constituting
the offence punishable under Section 12 of the P.C.Act, 1988, was
expected from the learned Special Judge under P.C.Act, Nashik,
while deciding the application for discharge, moved by revision
petitioner/accused no.1 Pravinkumar Deore. However, the
learned Special Judge under P.C.Act, Nashik, it appears, has
merely taken into consideration the order of the State Government
rejecting sanction to prosecute revision petitioner/accused no.1
Pravinkumar Deore issued on 23rd June 2014 and concluded that
sanction to prosecute the public servant for the offence punishable
under Section 12 of the P.C.Act, 1988, is not necessary, as Section
19 of the said Act does not mandate it. However, the learned
Special Judge under P.C.Act, Nashik, has not examined the matter
from the angle as to ascertain, whether there is any prima facie
material on record to frame the charge for the offence punishable
under Section 12 of the P.C.Act, 1988, against revision
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petitioner/accused no.1 Pravinkumar Deore.
22 Perusal of definition of the term "abetment" found in
Section 107 of the IPC makes it clear that "abetment" can be done
by instigating a person to do a thing or by intentionally aiding in
doing of the thing. In the case in hand, the prosecution is not
alleging that both accused persons namely Pravinkumar Deore
and Prakash Lakaria have entered in criminal conspiracy, in order
to obtain illegal gratification from complainants. Charge for the
offence punishable under Section 120B of the IPC is not leveled
against any of the accused persons. Even otherwise, if such charge
was leveled, then, it might have required sanction under Section
197 of the Cr.P.C. and the record does not reveal that any step in
that direction was ever contemplated by the prosecuting agency.
Ultimately, dealing with files of complainants -Dr.Laxman Bagade
and Dr.Ravindra Dev, was the official duty of revision
petitioner/accused no.1 Pravinkumar Deore, he being holder of
the post of Deputy Municipal Commissioner, in-charge of the
Administration Department of Nashik Municipal Corporation.
Thus, apparently, it is not the case of the prosecution that
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"abetment" in the case in hand was by indulging in "conspiracy".
Reasoning given in foregoing paragraphs by this court, after
appreciating the entire material found in the charge-sheet, makes
it clear that case of the prosecution is that of "abetment by
intentionally aid." Section 12 of the P.C.Act, 1988, enunciates the
principle that "a bribe giver is as much a criminal, as a bribe
taker." If a person offers to pay illegal gratification or to give a
valuable thing to a public servant, as a motive or reward for
showing favour in exercise of official function, such proposal, by
itself, is an offence under this Section. When accused brings
money and gives it to a public servant for the purpose enumerated
in Section 7 of the P.C.Act, 1988, his conduct shall amount to
"intentional aid" and would constitute the offence punishable
under Section 12 of the P.C.Act, 1988. So far as the case in hand is
concerned, the entire charge-sheet shows that according to the
prosecution, Section 12 of P.C.Act, 1988, was invoked because
accused no.2 Prakash Lakaria has intentionally aided revision
petitioner/accused no.1 Pravinkumar Deore in commission of
offences punishable under Sections 7, 13(1)(d) read with 13(2) of
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the P.C.Act, 1988. In other words, in-depth scrutiny of the entire
charge-sheet does not reveal an iota of evidence to infer
commission of the offence of abetment punishable under Section
12 of the P.C.Act, 1988, by revision petitioner/accused no.1
Pravinkumar Deore. As such, the charge for the offence
punishable under Section 12 of the P.C.Act, 1988, sought to be
leveled against revision petitioner/accused no.1 Pravinkumar
Deore, is obviously groundless. Learned Special Judge under
P.C.Act, Nashik, as such, has committed manifest error of law in
rejecting the application for discharge, moved by revision
petitioner/accused no.1 Pravinkumar Deore, in respect of the
offence punishable under Section 12 of the P.C.Act, 1988, with the
only reasoning that this offence does not require sanction under
Section 19 thereof.
23 As the revision petition succeeded on the point that
there is no material to infer commission of the offence punishable
under Section 12 of the P.C.Act, 1988, I do not consider it
necessary to examine and decide other points urged by the
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learned advocate for revision petitioner/accused no.1
Pravinkumar Deore.
24 By this order, I may not be understood that there is
any material to infer commission of offences punishable under
Sections 7, 13(1)(d) read with 13(2) of the P.C.Act, 1988, against
revision petitioner/accused no.1 Pravinkumar Deore, the then
Deputy Municipal Commissioner, Nashik Municipal Corporation.
That cannot be subject matter of this revision petition. The
scrutiny and discussion in that regard is only in order to ascertain
what is the prosecution case against revision petitioner/accused
no.1 Pravinkumar Deore. Whether there is evidence for
commission of those offences or not, is not at all examined by this
court. Needless to state, that post trap verification, so far as
present revision petitioner/accused no.1 Pravinkumar Deore,
attempted by the prosecuting agency failed on two occasions and
there is no evidence of direct demand by him. In the result, the
revision petition succeeds and the following order :
ORDER
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i) The Revision Petition is allowed.
ii) The impugned order dated 17th May 2017 passed by the
learned Special Judge under P.C.Act, Nashik, below Exhibit 4
in Special Case No.23 of 2016, between the parties, so far as
it relates to taking cognizance of the offence punishable
under Section 12 of the P.C.Act, 1988, against revision
petitioner/accused no.1 Pravinkumar Deore, is quashed and
set aside.
iii)Revision petitioner/accused no.1 Pravinkumar Deore is
discharged from the Special Case No.23 of 2016 pending on
the file of learned Special Judge under P.C.Act, Nashik.
(A. M. BADAR, J.)
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