Dilip Mahadeo Mandhare vs The State Of Maharashtra
2021 Latest Caselaw 11741 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION
                   CRIMINAL APPEAL NO.610 OF 2012
                                   WITH
                 INTERIM APPLICATION NO.1489 OF 2021
      Dilip Mahadeo Mandhare                     ]
      R/o. 4/77, Shyam Bhuvan,                   ]
      Dr.A.B.Road, Parle,                        ]
      Mumbai - 400 012                           ]         .. Appellant

                          VERSUS

1. The State of Maharashtra                      ]
   (At the instance of ACB, Worli,               ]
   Mumbai vide C.R.No.76/2007)                   ]       .. Respondent


Mr.Satyavrat Joshi for the Appellant.
Mr.S.R.Agarkar, APP for the State.


                          CORAM: BHARATI DANGRE, J.

                 RESERVED ON            : 16th JUNE, 2021
                 PRONOUNCED ON          : 25th AUGUST, 2021
JUDGMENT :-

1. The present Appeal challenge the judgment of the Special

Judge for ACB, Greater Bombay in ACB Special Case No.49 of

2009 dated 07/04/2012.

By the said judgment, the Appellant stood convicted for

the offence punishable under Sections 7 and 13(1)(d) read

with Section 13(2) of the Prevention of Corruption Act, 1988

M.M.Salgaonkar

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(for short, "the PC Act"). On conviction under Section 7, he is

sentenced to suffer R.I. for one year and to pay fne of

Rs.3,000/-, in default to suffer S.I. for one month and on

conviction under Section 13(1)(d) read with Section 13(2), he

is sentenced to suffer R.I. for one year and to pay fne of

Rs.3,000/-, in default to suffer S.I. for one month. Both the

sentences are ordered to run concurrently with beneft of set

off, if warranted.

2. The complaint fled by one Farooq Alimiya Kazi (PW 1)

engaged in the business of Tours and Travels in the name and

style 'Roshan Tours and Travels' is the initiation point of

proceedings by the Anti Corruption Bureau ("ACB"). PW 1

owned three luxury buses, which he used to park below

Elphinstone Bridge for which payment of Rs.50/- per day per

bus was tendered to MSRDC. His Manager is one Gajanan

Shingre (PW 2), who informed PW 1 that Mr.Mandhare (the

Appellant), who was working in the Traffc Department used to

charge persons for No parking and he demanded an amount of

Rs.500/- as monthly hafta for not initiating any action against

the buses. The complaint (Ex-9) came to be lodged against the

Appellant with the ACB in writing.

M.M.Salgaonkar





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3. For the purpose of verifcation of the said complaint, the

Investigating Offcer (PW 6) called two panchas (PW 3 and PW

5). FIR was registered vide Crime No.76 of 2007 on

25/10/2007. Pre-trap procedure was was conducted in

presence of the panchas with regard that fve currency notes

of Rs.100 denomination which were produced by PW 1. On

following the necessary process and apprising the panchas of

the procedure to be followed, the tainted currency notes were

kept in the right side pant pocket of PW 2. PW 2 accompanied

by two panchas and the staff members of ACB, proceeded

towards Elphinstone Bridge where PW 2 alighted from the

vehicle and walked towards the Bridge, to be followed by the

panchas and the raiding party. Digital recorder was affxed on

the person of PW 2. Under the Bridge, the Appellant was

present and by gesture, he called PW 2. Some talk ensued

between them and PW 2 pulled out the currency notes from his

right side pant pocket, which is alleged to be accepted by the

Appellant by his right hand and kept in the right side pant

pocket of his uniform. On the predetermined signal being

given by PW 2, the Appellant was apprehended. Post-trap

panchanama was scribed out in the Police Station. Fingers of

the Appellant showed signifcant change in colour under

M.M.Salgaonkar

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ultraviolate light, so also his right side pant pocket alongwith

fve currency notes of Rs.100 denomination which were taken

out of his pant pocket and traces of anthracene was recorded.

During investigation, the Investigating Offcer recorded

statements of witnesses, forwarded the CDs of the

conversation between the Appellant and the complainant to

the Forensic Department. After obtaining necessary sanction

from PW 4, the charge-sheet came to be fled.

4. The charge was framed on 25/08/2010. The charge

allege that in the month of September and October, 2007, the

Appellant was attached to Mahim Traffc Division as Assistant

Sub Inspector and he was a public servant within the meaning

of Section 2(c) of the PC Act and on 24/10/2007 he attempted

to obtain and agreed to accept a sum of Rs.500/-, being hafta of

each month and on 25/10/2007 at about 9.55 p.m. under

Elphinstone Bridge, he accepted Rs.500/-, by way of

gratifcation for showing favour to the complainant for not

taking action against his luxury buses parked under the

Elphinstone Bridge, Senapati Bapat Marg and thereby

committed an offence under Section 7 of the PC Act. He also

came to be charged under Section 13(1)(d) for abusing his

M.M.Salgaonkar

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possession as a public servant and obtaining pecuniary

advantage of Rs.1,000/- from the complainant and his

Manager and committing an offence punishable under Section

13(2) of the PC Act.

The Appellant pleaded not guilty and was put on trial.

5. The prosecution led its case through six witnesses; the

complainant (PW 1), Manager of the complainant (PW 2), two

panch witnesses (PW 3 and PW 5), the Sanctioning Authority

(PW 4) and the Investigating Offcer (PW 6).

6. The Appellant was examined under Section 313 of the

Cr.P.C.where he specifcally cited the reason about the

witnesses deposing against him and he submitted his written

statement separately, where he took a specifc stand of false

implication and denied the case of prosecution about demand

of any bribe amount or acceptance of the amount. He took a

stand that one Munaf Thakur, who is MNS activist for drunk

and drive is the friend of the complainant and there are

various cases pending against this Munaf Thakur. The

certifed copy of the details of charge levelled against him

being attached to the said statement. Apart from this, he took

M.M.Salgaonkar

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a specifc stand that Head Constable Rajendra Chavan, ACB,

Mumbai was fned by him on 19/02/2007 near Century Bazar

for driving his motorcycle without helmet and he produced the

receipt alongwith the written statement. The said Constable is

alleged to have participated in the trap proceedings and is

stated to have acted with ulterior motive to revenge the fne

imposed on him.

7. During the course of trial, one Ms.S.S.Luman, Assistant

Registrar was appointed as Commissioner to carry out the

work of verifcation of conversation recorded in the CD and for

copying the said conversation in the CD supplied by the

Appellant. Accordingly, the report was submitted on

29/10/2020 to the effect that the conversation from the

original CD i.e. Ex-1 and Exh-2 match with the transcribed

conversation. The conversation from the original CD was

copied in the CD supplied by the Appellant and handed over to

him.

8. Heard learned counsel Mr.Satyavrat Joshi for the

Appellant and Mr.S.R.Agarkar, learned APP for the State.

M.M.Salgaonkar





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9. Mr.Joshi would argue that the prosecution has failed to

prove its case beyond reasonable doubt, which it is duty bound

to do and he submits that the complainant as well as PW 2, his

Manager have been declared hostile alongwith the panch

witness (PW 3) to the verifcation of pre-trap and post-trap

panchanama. Further, PW 5 another panch witness though

not declared hostile, does not support the case of the

prosecution. Conscious of the position that though the witness

has been declared hostile, his entire testimony need not be

discarded and that portion of his version, which lend credence

to the case of the prosecution can be read in evidence in its

favour, Mr.Joshi would submit that the version of the said

witnesses has changed stance and, therefore, it is risky to rely

upon their testimony. Apart from it, the inter se discrepancies

and contradictions amongst the testimonies are also

highlighted in detail. Mr.Joshi would submit that the

description of the alleged tainted currency notes stated by PW

2 in his evidence is contrary to the currency notes, which fnds

mention in the pre-trap panchanama and this discrepancy

should prove to be a fnal nail in the coffn to discredit the

prosecution case. As regard to admission of PW 3 that CDs

Art.3 to 7 were not prepared in his presence, his submission is

M.M.Salgaonkar

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that no implicit reliance could have been placed on any of the

CDs nor there is any evidence to demonstrate that CDs were

sealed and remained in the sealed condition till forwarded to

the Forensic Department. Alleging that PW 3 is a stock panch,

who has acted as panch at the instance of ACB in 25 to 30

cases, took out the steam of the prosecution case. Further, in

absence of demand being established, the submission of

Mr.Joshi is that the entire case of the prosecution falls on its

ground. The acceptance of the bribe amount is also banged to

be suspicious as there is an apparent discrepancy in the

denomination of the currency notes as PW 2 has denied the

suggestion that 5 notes of denomination of Rs.100 were kept in

his right side pant pocket and his version is what he handed

over to the Appellant is one currency note of denomination of

Rs.500/-. The inconsistency in the version of PW 2 and the

panchanama proves fatal to the prosecution case is the

submission of Mr.Joshi.

Apart from the said aspect, Mr.Joshi allege that the

sanction accorded by PW 4 is also defective as PW 4 was

functioning as the Commissioner of Police, Greater Bombay

and was holding the rank of Additional Director General of

Police, which is below the rank of Director General of Police

M.M.Salgaonkar

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and appointing authority of the Appellant being Director

General of Police, he is also his removing authority and he

could not have been removed by an offcer below the rank of

Director General of Police. Mr.Joshi rely on the relevant

provisions in the Bombay Police (Punishments and Appeals)

Rules, 1956 and on a decision of this Court in case of Uttam s/o

Ganpat Ajgekar Vs. The State of Maharashtra 1 on the similar

lines where the sanction accorded was found to be not from the

authority, competent to remove the accused. He also placed

reliance on other reported judgment in case of Laxman s/o

Nanabhau Bangar & Anr. Vs. The State of Maharashtra2 The

crux of submission of Mr.Joshi is that the conviction of the

Appellant cannot be sustained in the wake of the apparent

flaws in the case of the prosecution and necessarily the beneft

must be passed on the Appellant.

10. Learned APP supports the impugned judgment and

would submit that prosecution case has been established by

bringing on record cogent and reliable evidence in form of the

trap being laid and merely because the witnesses of the

prosecution having been turned hostile and merely does not

1 Criminal Appeal No.333 of 2012 dated 05/02/2021 2 2009 ALL MR (Cri) 2523

M.M.Salgaonkar

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bring discredit to the trap and recovery of the tainted amount

from the Appellant.

11. The submission of Mr.Joshi, which would go to the root of

that matter is award of sanction. The Appellant was holding

the post of Assistant Police Inspector, but he has been wrongly

mentioned in the charge as Assistant Sub-Inspector. The

sanction is accorded by Commissioner of Police, Greater

Mumbai, who has been examined as PW 4 and the sanction

order dated 18/3/2009 is exhibited through this witness, being

Ex-21. Perusal of the sanction order would reveal that on

perusal of the necessary papers forwarded to PW 4 and by

taking into account the nature of allegations and the

surrounding circumstances, he was satisfed that for an act of

illegally obtaining bribe amount of Rs.500/- for showing favour

to the complainant and for committing the offences punishable

under Sections of the PC Act and by abusing his position as a

public servant and obtaining pecuniary advantage from the

complainant, his act deserve sanction for his prosecution.

Further recording that the Appellant, Assistant Police

Inspector, Mahim Traffc Branch, can be appointed and

removed by him since the power vests in him as Director

M.M.Salgaonkar

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General of Police, Maharashtra State and since the offences

punishable under Sections 7, 13(1)(d) read with Section 13(2)

of the PC Act are made out against the Appellant, sanction is

accorded to prosecute him.

12. PW 4, when cross-examined about his competency to

accord sanction, deposed that his understanding regarding he

being the competent authority to accord the sanction is based

on the letter of Director General (Ex-19) and he has further

clarifed that he was the rank of Additional Director General

and, therefore, he was the competent authority. PW 4, in

cross-examination, gives the following admission :-

"Police Commissioner in the rank of Addl.D.G. is below the rank of D.G. An Addl.D.G. rank Commissioner cannot be equivalent to D.G."

He gave further admission as under :-

"I am not empowered to accord the sanction under clause

(b) and (c) of section. I did not verify by whom the accused was appointed as PSI. I did not go through the service record of the accused as I did not feel it necessary. I do not recall whether service record was provided to me by ACB with case papers. I do not know whether accused was appointed as a PSI by D.G.(M.S.)"

13. The Appellant came to be appointed to the post of PSI on

being recommended by MPSC and the said appointment order

M.M.Salgaonkar

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is issued in the name of Director General of Police. Further,

order dated 24/05/2002 is placed on record in form of Ex-24,

which promote the offcers mentioned in the said order on the

promotional post of Assistant Police Inspector, which include

the name of the Appellant and the order is signed by the

Director General of Police (Establishment). Ex-26 is an order

regularising his past services in the railway as 'Ticker

Collector', since he participated in the process of selection of

the Police Sub-Inspector from the Railway Administration and

break in the two services being of one day, has been condoned.

The promotion order Ex-24 in favour of the applicant is issued

by the Director General of Police and, therefore, the authority

to remove the Appellant was the Director General of Police.

The post of Additional Director General of Police is subordinate

to the post of Director General of Police and pertinent to note

that the proposal to obtain sanction was forwarded by the ACB

to the Director General of Police, when the sanction was

sought.

14. On perusal of the Bombay Police (Punishments and

Appeals) Rules, 1956, which regulate the punishment of the

police offcer of and below the rank of Inspector of Police in the

M.M.Salgaonkar

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State of Bombay shall apply to all police offcers below the rank

of Inspector in the State of Bombay. Rule 3 provides for the

punishments that may be imposed upon the police offcers and

Rule 5 specify that the offcers in column 1 of Schedule I to

these Rules shall have power to inflict punishments of the kind

specifed in column 3 thereof on the offcers specifed in

column 2 thereof, subject to the restrictions laid down in

column 4 thereof. When Schedule I is perused, the

Commissioner of Police, Bombay is entitled to punish to all the

offcers to whom the Rules of 1956 are made applicable. The

punishments which can be imposed are though specifed in

Rule 3 , subject to the restrictions specifed in column 4 and

when the last column of the Schedule is perused, it is clarifed

that punishment of compulsory retirement, removal or

dismissal shall not be inflicted by any authority lower in rank

than that by which the police offcer is appointed. The said

provision is in tune with sub-clause 1 of Article 311 of the

Constitution of India. The power exercised by the

Commissioner of Police is, therefore, subject to an embargo

being imposed to the effect that the punishment of dismissal

shall not be inflicted by any authority lower in rank than that

of the appointing authority. The appointing authority of the

M.M.Salgaonkar

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Appellant is the Director General of Police (DGP) and PW 4 has

categorically admitted that he is the rank of Additional DGP

and an Additional DGP cannot be equivalent in rank of DGP .

He has admitted that he assumed that is competent authority

since Additional Director General of Police vide letter Ex-19

had intimated that the Commissioner of Police, Brihanmumbai

is equivalent to Additional Director General of Police and,

therefore, he was competent to grant sanction. The ACB,

however, has rightly sought sanction from the Director

General of Police vide Ex-20 where it was clearly indicated

that the Director General of Police is the competent authority

to grant sanction to prosecute the Appellant in terms of

Section 19(1) (C). PW 4 has admitted that he did not verify as

to who had appointed the Appellant. The entire assumption of

PW 4 is based on Ex-19, declaring him competent to grant

sanction.

PW-4 has admitted that he did not verify as to who had

appointed the Appellant. The claim of the PW-4 that he is

competent authority to grant sanction seems to be based on

Ex-19. However, the proposal which was sent by the ACB,

Mumbai to the DGP Maharashtra State (Ex-20) in clear terms

states that the DGP was the authority competent to removed

M.M.Salgaonkar

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the Appellant. Further it is clear from the promotion order

Ex-24 that the same was issued for the DGP, Maharashtra

State."

15. By virtue of Section 19(1) of PC Act, the person

competent to grant sanction in case of the category covered by

clause (c) is the authority competent to remove the person

from his offce unless the person is employee in connection

with affairs of Union and is removable only with the sanction of

the Central Government or he is person employed in

connection with the affairs of the State and cannot be removed

except the sanction of the State Government.

In the present case, authority competent to remove the

present Appellant was the Director General of Police since he

was the competent authority to appoint him and the safeguard

available to a public servant by virtue of Article 311(1) of the

Constitution is in the form of that a person belonging to civil

services, who hold a civil post at Union or State, shall not be

removed by an authority subordinate to him. The net result of

the aforesaid discussion is that the Appellant, who was

appointed by the order of the Director General of Police would

be removed only by him and not by any authority subordinate.

M.M.Salgaonkar





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The sanction granted by Commissioner of Police is, therefore,

not a valid sanction.

16. The question then which arise for consideration is

whether the said objection, of the sanction being not valid, was

taken at what point of time, since in the wake of Section 19(4)

of PC Act, which stipulate that while considering the issue of

proper sanction is accorded or not, such question be

considered having regard to the fact whether the objection

could have been raised at any earlier stage in the proceedings.

As far as the present case is concerned, the Appellant will not

suffer from the said handicap, since he had challenged the

validity of the sanction order during trial and even in the

statement recorded under Section 313 of Cr.P.C., he has raised

a cloud over the sanction order.

Further, since the Appellant demonstrate that there is a

gross failure of justice, which has occasioned on account of the

defective sanction and considering the proposition of law as set

out by the Hon'ble Apex Court in the case of Nanjappa Vs.

State of Karnataka3, it is not feasible to remand the matter

back for obtaining the valid sanction, since the conviction of

the Appellant is of the year 2012 and the case of the 3 2015 ALL MR (Crime) 3318 (SC)

M.M.Salgaonkar

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prosecution is of the year 2007. No fruitful purpose would be

served by remanding the case back for according sanction by

the competent authority on account of the huge time lapse.

17. Since the sanction accorded for prosecuting the

Appellant is found to be not in terms of law, it goes to the root

of the matter and I need not dealt with other submission

advanced by Mr.Joshi to the effect that the prosecution has

miserably failed to prove its case, particularly when the

complainant (PW 1), Manager of the complainant (PW 2) as

well as one panch witness have been turned hostile and the

another panch witness does not support the case of the

prosecution. Taking into account the defect in the sanction,

since the prosecution could not have proceeded against the

present Appellant for want of valid sanction, the Appellant is

entitled for an acquittal. Hence, the following order.

: ORDER :

(a)     The Appeal is allowed.

(b)     The judgment and order dated 07/04/2012 passed in

ACB Special Case No.49 of 2009 is quashed and set aside.

M.M.Salgaonkar





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18. In view of disposal of the Appeal, interim application also

stands disposed of.

[SMT.BHARATI DANGRE, J.]

M.M.Salgaonkar