Uttam S/O Ganpat Ajgekar vs The State Of Maharashtra
2021 Latest Caselaw 2371 Bom

                                                                      220-Cri.Apeal-333-2012.odt
Shambhavi
N. Shivgan
Digitally signed by    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Shambhavi N.
Shivgan                     CRIMINAL APPELLATE JURISDICTION
Date: 2021.02.05
14:38:25 +0530
                                   CRIMINAL APPEAL NO.333 OF 2012
                                                WITH
                                CRIMINAL APPLICATION NO.1089 OF 2018


                      Uttam s/o Ganpat Ajgekar
                      Age: 48, years,
                      R/o. Building No.C/3, 403,
                      Asal Estate,
                      Shrinagar, Wagle Estate,
                      District: Thane                                ... Appellant
                            Vs
                      The State of Maharashtra
                      (Copy to be served on
                      the Public Prosecutor
                      High Court at Bombay)                         ... Respondent
                                                     ...

                      Mr. Satyavrat Joshi with Mr. Sumant Deshpande with Mr.
                      Nitesh Mohite for the Appellant.

                      Mr. R.M.Pethe, APP for the Respondent-State.

                                   CORAM : SANDEEP K. SHINDE J.
                                   RESERVED ON :  21st JANUARY, 2021.
                                   PRONOUNCED ON : 5th FEBRUARY, 2021.

                      JUDGMENT :

The Special Judge, Anti Corruption Bureau,

Greater Bombay vide judgment and order dated 4 th

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February, 2012 in Special Case No.31 of 2010, convicted

and sentenced, the appellant as under:

(i) to sufer rigorous imprisonment for six months and fne of Rs.500/- in default to sufer rigorous imprisonment for 15 days for the ofence punishable under Section 7 of the Prevention of Corruption Act, 1988 ('Act' for short) and ;

(ii) to sufer rigorous imprisonment for one year and fne of Rs.500/- in default to sufer rigorous imprisonment for 15 days for the ofences punishable under Section 13(1)(d) read with 13(2) of the Act, against which this appeal is preferred.

2 Briefy stated, prosecution's case is that the

complainant had applied for authorization/batch, to the

Regional Transport Ofce (RTO) for which police verifcation

report was needed. In May, 2009,complainant enquired with

the local police station about the verifcation report. He was

informed that papers were sent to CID Branch, Bombay.

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Whereupon he visited CID ofce. He was directed to contact

accused. Accordingly, accused, gave his contact number to

complainant and asked him to meet on 10 th June, 2009. On

this date, he was told that his fle/papers were missing and

may have to reconstruct the fle afresh but for which

accused demanded Rs.300/- from him. On 11th June, 2009,

complainant narrated the facts to the ofcer, Anti

Corruption Bureau and fled written complaint. To verify the

demand, ofcer asked complainant to contact the accused

on his cell phone. Speaker of mobile phone was activated.

Thus, after verifying the demand and upon drawing

verifcation and pre-trap panchanama, raiding party

proceeded to Mulund where the complainant and the

accused were to meet. At Shri Krishna Vilas Hotel, Mulund,

Complainant and the accused had tea together.

Complainant enquired about the report where after accused

gave report/papers to him and demanded Rs.300/-. After

paying Rs.300/- upon pre-decided signal, raiding party

caught hold the accused. Since trap was laid in the hotel,

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ofcer took the accused to the nearest police station where

tainted currency notes were recovered from the accused.

Post-trap panchanamas were drawn. After completing

investigation, fnal report was fled.

3 The Additional Commissioner, Special Crime

Branch, Mr. Dumbre granted previous sanction under

Section 19(1)(c) of the Prevention of Corruption Act, 1988

on 12th March, 2010.

4 The Trial Court upon appreciating the

prosecution's evidence, convicted the appellant as

aforesaid and hence, this appeal.

5 Heard Mr. Joshi, learned counsel for the appellant

and Mr. Pethe, the learned Additional Public Prosecutor for

the State.

6 Questions, fall for my consideration are;

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(a) Whether previous sanction granted by Mr. Dumbre, Additional Commissioner, Special Crime Branch on 12th March, 2010, Exhibit 19 was "authority competent" to remove accused from his ofce ?

(b) If Mr. Dumbre was not competent to grant the sanction, was it, an 'error', 'omission' or 'irregularity' within the meaning of Sub-section (3) of Section 19 read with Explanation (a) appended thereto;

AND

(i) Whether appellant/accused had objected to competency of Mr. Dumbre to grant sanction at the earlier stage in the proceedings ? ;

AND

(ii) Whether such an error, omission, irregularity had occasioned failure of justice ? ;

(c) Whether prosecution has proved beyond the reasonable doubt, that accused demanded and accepted Rs.300/-, as illegal gratifcation for issuing character report to the complainant ?

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7         Before answering aforesaid questions, it may be

stated that the appellant is a 'constable' within the

meaning of Section 2(4) of the Maharashtra Police Act. It

reads as under:

"(4) Constable means police ofcer of the lowest grade."

8 Bombay Police (Punishments and Appeals) Rules,

1956 ("Rules" for short) regulates the punishments of

police ofcers and all below the rank of Inspector of Police

in the State of Bombay and appeals there from. Rule 3 of

the said Rules enumerates punishments to be imposed

upon any police ofcer. Rule 5 refers to designation of

police ofcer having authority to punish; rank of ofcer,

who can be punished and kind of punishment to be

imposed and restrictions subject to which designated ofcer

is authorised to punish. Herein, Commissioner of Police,

Bombay is an appointing authority of the appellant and also

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ofcer designated to punish the appellant. For quick

reference, relevant entry in the Schedule I under Rule 5 of

the said Rules is re-produced below:

9 Mr. Joshi, learned counsel for the appellant,

relying on the rules, would contend that the Commissioner

of Police being an appointing authority and authority to

punish the appellant, was all alone "Competent" to grant

previous sanction under Section 19(1)(c) of the Act. He

would submit, herein, Mr. Dumbre, Additional

Commissioner, Special Crime Branch, who had granted

sanction was lower in rank than that of Commissioner of

Police and, therefore, was not competent to grant sanction.

Mr. Joshi would submit, Commissioner of Police is post "and

his rank is of Director General of Police, Additional Director

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General of Police"; whereas Additional Commissioner is a

post, in the rank 'Deputy Inspector General of Police'. Mr.

Joshi would, therefore, lay emphasis on the expression

"rank" and "post" of authority. Submission is, that

Commissioner being authority to remove the appellant from

his ofce in terms of Rule 5 of the said Rule, he alone and

no other authority was competent to grant sanction in

terms of Section 19(1)(c) of the Act. Therefore, Mr. Joshi

would submit that the Additional Commissioner, whose rank

is of, Deputy Inspector General of Police was not authority

within the Rule 5 of the said Rules to impose punishment of

dismissal. As a corollary previous sanction granted by Mr.

Dumbre Under Section 19(1)(c) of the Act was illegal and as

such, cognizance could not have been taken on the basis of

such sanction. Mr. Joshi, therefore, submits that prosecution

fails on this ground alone.

10 Next submission of Mr. Joshi, learned counsel for

the appellant, is that Mr. Dumbre, Additional Commissioner,

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being superior ofcer within the meaning of Section 36 of

the Code of Criminal Procedure, 1973 had actively

supervised the, investigation in this case, as could be

clearly seen from the letter dated 29 th June, 2009. Vide this

letter, Mr. Dumbre, Additional Commissioner, Anti

Corruption Bureau, sought opinion in respect of, voice

spectographic, test of the accused. It is, therefore,

submitted, sanction granted by Mr. Dumbre being, "the

judge in his own cause", resulted in apprehension of bias

against the appellant and such an apprehension of

appellant was not unreasonable.

11 Mr. Joshi would, therefore, contend that sanction

granted by Mr. Dumbre was per-se illegal being, not a

authority competent, to remove the appellant from the

ofce and further Mr. Dumbre being a judge in his own

cause ought not to have granted it, as it had caused

prejudice to the appellant. He submitted, these defects in

the sanction were incurable and not just; referable to error,

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omission or irregularity but had occasioned, failure of

justice.

12 Mr. Pethe, the learned Additional Public

Prosecutor, on the other hand, supported the conviction,

sentence and sanction granted by Mr. Dumbre.He made

following submissions:

(i) Mr. Dumbre had granted previous sanction

being authorised by the Commissioner of Police in

terms of standing orders dated 3rd April, 1993 and

6th June, 2002. He submits vide these standing

orders, Commissioner of Police delegated the

powers to the Additional/ Joint Commissioner to

grant the sanction. He submits, even assuming

Mr. Dumbre was not competent to grant the

sanction but combined reading of sub-sections (3)

and (4) of this Act makes the position clear that

notwithstanding anything contained in the Code,

no fnding, sentence and order passed by a

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Special Judge shall be reversed or rather altered

by a Court in appeal, confrmation or revision on

the ground of the absence of, or any error,

omission or irregularity in, the sanction required

under Sub-section (1), unless in the opinion of

that Court, failure of justice has in fact being

occasioned thereby;

(ii) He further submits that Clause (b) of Section

3 is also relevant. It shows that no Court shall

stay the proceedings under the Act on the ground

of any error, omission, or irregularity in the

sanction granted by the authority, unless it is

satisfed that such error, omission or irregularity

has resulted in failure of justice.

(iii) He would also submit that sub-section (4)

postulates that in determining under sub-section

(3) whether absence of, or any error, omission or

irregularity in, such sanction has occasioned or

resulted in a failure of justice, the Court shall

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have regard to the fact whether objection could

and should have been raised at any earlier stage

in the proceedings.

(iv) He would also submit that Explanation

appended to the Section for the purpose of

Section 19, error includes competency and the

authority to grant sanction.

(v) That Mr. Dumbre was not Investigating Ofcer,

but had an occasion to supervise the

investigation, being superior ofcer in the Anti

Corruption Bureau and, therefore, he was not

judge in his own cause and further even

assuming sanction granted by Mr. Dumbre was

referable to irregularity or omission but it had not

occasioned failure of justice.

(vi) That even otherwise, demand of illegal

gratifcation and acceptance by the accused has

been proved beyond reasonable doubt and,

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therefore, now the onus is on the appellant to

prove that error, omissions and irregularity had

occasioned failure of justice.

13 Mr. Pethe, further submits, that once the demand

is proved and tainted currency notes were recovered, it is

to be presumed that the accused accepted money as the

motive or reward under Section 7, which presumption in

this case has not been rebutted by the appellant. Mr. Pethe

in support of his submission relied on following judgments:

(1) Shamnsaheb M. Multtani v. State of Karnataka

(2001) 2 Supreme Court Cases 577;

(2) State of M.P. v. Bhooraji and Others (2001) 7

Supreme Court Cases 679;

(3) Satya Narayan Sharma v. State of Rajasthan

(2001) 8 Supreme Court Cases 607;

(4) State by Police Inspector v. T. Venkatesh Murthy

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(2004) 7 Supreme Court Cases 763;

(5) Srimati Bibhabati Devi v. Kumar Ramendra

Narayan Roy and Ors. Indian Appeals Vol.LXXIII 246.

. On the aforesaid grounds, Mr. Pethe, the learned

Additional Public Prosecutor seeks dismissal of the appeal.

14 Section 19 of the Prevention of Corruption Act,

1988 reads as under:

"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.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) no finding, sentence or order passed by a special Judge shall

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be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.

--For the purposes of this section,--

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

The efect of Sub-sections (3) and (4) of Section 19 of the

PC Act is of considerable signifcance as noted in Prakash

Singh Badal v. State of Punjab 1. Vide Sub-section 19(3),

the stress is on "failure of justice" and that too "in the

opinion of the Court". In Sub-section (4), the stress is on

raising the plea at the appropriate time as held in Paul

Varghese v. State of Kerala2. Thus, signifcantly, the

1 (2007) 1 SCC 1 2 2009 (1) SCC 953 Shivgan

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"failure of justice" is relatable to error, omission or

irregularity in the sanction. Therefore, mere error, omission

or irregularity in sanction is not considered fatal unless it

has resulted in failure of justice or failure of justice has

been occasioned thereby.

. In paragraph 9, the Hon'ble Apex Court further

held "Whether sanction is necessary or not has to be

considered on the factual scenario. The question of sanction

involves two aspects, i.e., one relating to alleged lack of

jurisdiction and other relating to prejudice."

15 So far, as competency/authority of Mr. Dumbre is

concerned, in this case, power to impose major punishment

of dismissal, removal or compulsory retirement upon the

appellant is subject to the Bombay Police (punishments and

appeals) Rules, 1956 and in the frst schedule appended

thereto, kinds of punishments, which can be imposed upon

the members of the police force and the authority, which is

competent to impose such punishments are stipulated.

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Indisputably, Additional Commissioner of Police was not

appointing authority of the appellant and, therefore, he was

authority competent to remove him from his ofce.

Question is answered accordingly.

16 Mr. Pethe, the learned Additional Public

Prosecutor would justify, competency of, Mr. Dumbre to

grant sanction by relying on standing order dated 6 th June,

2002. I have perused it. This standing order makes

reference to amended provisions of Sections 25 and 26 and

taking recourse to this amended provisions, Commissioner

of Police has delegated powers to the Additional

Commissioner of Police to punish police inspectors,

assistant police inspector, sub-inspector and all ofcers

below the sub-inspector including the constables. However,

vide this standing order, Additional Commissioner has been

empowered to impose punishments, other than the

punishment enumerated in Rule 3(1)(ia), 3(1)(ii) and 3(1)

(iii), which in order, refers to compulsory retirement;

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removal from service, which does not disqualify from the

failure of employment in department other than police

department; and dismissal, which disqualifes from few

employment in Government services. Therefore, power to

dismiss the appellant was not delegated by the

Commissioner of Police. Thus, reliance placed on the

standing orders was misplaced. Resultantly, the contention

of the prosecutor that Mr. Dumbre was, authority

competent, to remove the appellant from the service is

rejected. I, therefore, hold that Mr. Dumbre was not

competent to grant sanction and, therefore, previous

sanction granted on 12th March, 2010 at Exhibit 19 on the

basis of which the Trial court took the cognizance, was per-

se illegal.

17 Mr. Joshi in the course of the arguments has also

referred to Article 311 of the Constitution of India. A plain

reading of this article itself, has created a safe-guard, by

which it, has been laid down that no person, who is

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member of civil services or of the Union or of an Indian

service or civil service of a State or holds civil post in the

Union or a State, shall dismissed or removed by an

authority subordinate to it by which he was appointed. In

support of this contention, Mr. Joshi, learned counsel for the

appellant has relied on judgment of this Court in the case of

Balu Dasu Rathod v. State of Maharashtra & Ors. 3. In

this case, Police Sub-Inspector (PSI) was facing the

prosecution for the ofences punishable under Sections 7,8,

13(1)(d) read with 13(2) of the PC Act and the process was

issued on the complaint wherein sanction was accorded by

the Additional Commissioner of Police, Thane. Whereas,

appointing authority was Director General of Police,

Maharashtra State. In the circumstances, accused in the

cited case sought discharge. In the context of this fact, the

learned Judge of this Court (Coram: S.S.Shinde, J.) held that,

"unless there is previous sanction by the Competent

Authority, the Special Trial Court can not take cognizance of

3 2019 All MR (Cri) 4480 Shivgan

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the ofence." Reliance was placed on the judgment of the

Apex Court in the case of Nanjappa v. State of

Karnataka4. Next judgment relied on by Mr. Joshi, learned

counsel for the appellant, was of this Court in the case of

Laxman Nanabhau Bangar & Ors. v. State of

Maharashtra5. In this case two constables were

prosecuted for the ofences punishable under the PC Act

and the sanction was accorded by the Deputy

Commissioner of Police, Zone VI. Constables were convicted

and in appeal, issue of valid sanction was raised on behalf

of the convicted constables. Referring to schedule 1 to

above stated Rule 5, the learned Judge of this Court

(Coram: P.N.Deshmukh, J.) held that Commissioner of

Police, Bombay, has authority to punish subject to

restrictions to which the ofcers specifed in column 1 is

authorised to punish. That since in the cited case, sanction

was granted by the Deputy Commissioner of Police, on the

ground of his incompetency, sanction was held illegal and

4 2015 AIR SC 3060 5 2019 All MR Criminal 2523 Shivgan

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accordingly, conviction was quashed and set aside.

18 Mr. Pethe, the learned Additional Public

Prosecutor fairly submits that the judgment of the learned

Single Judge in the case of Laxman Bangar (Supra) has

not been challenged by the State.

19 Judgment in the case of Laxman Bangar

(Supra) and the facts of the case in hand are nearly same.

Thus, for the reasons stated above, I hold that sanction

accorded by Mr. Dumbre was illegal.

20 Now, the question is whether defect in the

sanction accorded by Mr. Dumbre was just an error and/or

irregularity and not fatal to the prosecution.

AND

Whether such an error had caused and resulted into failure

of justice ?

. To answer this question, let me now refer to letter

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dated 29th September, 2009 addressed by Mr. Dumbre to

Director, Forensic Science Laboratory, vide which he sought

opinion in respect of voice spectographic test of the

appellant. Contents of this letter indeed show that Mr.

Dumbre had apprised facts and particulars of the

investigation to the Director, Forensic Science Laboratory. It

shows, Mr. Dumbre was actively monitoring the

investigation. Therefore, in the circumstances, next

question is whether Mr. Dumbre was judge in his own cause

while according sanction and whether it had occasioned to

failure of justice.

21 'Nemo judex in causa sua' is Latin phrase that

means literally "No one is judge in their own cause". It is

the principle of natural justice that no person can be a

judge in a case in which he had an interest. Legal efect of

the breach of principle of natural justice is normally to stop

the proceedings and render any judgment invalid. In other

words, decision arrived at by such process and the order

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grounded on such decision can not possibly by regarded as

valid and binding.

22 In the case of Paul Varghese (Supra), the

Hon'ble Apex Court has held, question of sanction involves

two aspects;

(i) One relating to alleged lack of jurisdiction;

(ii) Other relating to prejudice.

. Admittedly, in the case at hand, Mr. Dumbre, who had

actively supervised the investigation had accorded the

sanction. In the circumstances, appellant would certainly

entertain serious apprehension that the decision of Mr.

Dumbre to grant sanction may not have been free from real

bias and might have infuenced his decision, while

according sanction. In the case of Rattan Lal Sharma

(Co-Education) Higher Secondary School, Hari Ram

Ratanlal Sharma v. Managing Committee , it was

stated " the test of bias is whether a reasonably intelligent

6 AIR 1993 SC 2155 Shivgan

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man, fully apprises of all the circumstances, would feel a

serious apprehension of bias, and that the test is not

whether in fact a bias has afected the judgment, the test

always is and must be whether a litigant could reasonably

apprehend that a bias attributable to a member of the

Tribunal might have operated against him in the fnal

decision of the tribunal. It is in this sense that it is often

said that justice must not only be done but must also

appear to be done."

. In the King v. Justices of Sunderland7, it was

held, where a person at an earlier stage had supported an

application or a procedure, which subsequently comes to be

adjudicated upon, such a person would naturally be

disqualifed to act as an adjudicator.

23 Thus, taking into consideration principles laid

down in the aforesaid judgments, it is to be held that since

grant of sanction removes protective umbrella, which

7 1901(2) 2 KB 357 Shivgan

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shields public servant from the prosecution, the authority,

who has to take a decision whether to grant or not to grant

sanction for prosecution is required to be free from

possibility of bias against the public servant. ("Dhirendra

Kishan v. Bharat Heavy Electricals Ltd. and others 8.)

24 Thus, in consideration of the facts of the case, in

my view, previous sanction granted on 12 th March, 2010 by

Mr. Dumbre was not, just, referable to 'error', 'omission' or

'irregularity' and since circumstances suggest that sanction

possibly was not free from bias, in my view, the State in the

given facts and circumstances cannot rely on Sub-sections

(3) and (4) of Section 19 of the PC Act.

25 In my considered view, defects in sanction were

not curable and were not referable only to error, omission

or irregularity. The defects were 'fatal' to prosecution, which

caused failure of justice.

8 1999 Criminal Law Journal 3405 Shivgan

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26 In the result, appeal is allowed. Impugned

judgment is quashed and set aside. Appellant's bail bonds

stand cancelled and sureties are discharged. Fine, if any,

paid be refunded to appellant.

27 As the appeal itself is disposed of, nothing

survives in the application therein and same is also

disposed of.

(SANDEEP K. SHINDE, J.)

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