Shri Anand Murlidhar Salvi vs The State Of Maharashtra
2021 Latest Caselaw 3332 Bom

                                                                 7-Cri.Apeal-1107-2004.odt
Shambhavi
N. Shivgan
                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
Shambhavi N.
Shivgan
                            CRIMINAL APPELLATE JURISDICTION
Date: 2021.02.23
13:15:42 +0530
                                CRI. APPEAL NO.1107 OF 2004

                      Shri Anand Murlidhar Salvi
                      Age: 48 years, Occ: Service,
                      Residing at : Om Apartment,
                      Flat No,8., Dapodi, Pune
                      District: Pune                           ... Appellant
                                                               (Org. Accd.)
                           Vs
                      The State of Maharashtra              ... Respondent
                                                           (Org. Complainant)
                                                 ...

                      Mr. Ashok B. Tajane for the Appellant.

                      Mr. Yogesh Dabke, APP for the Respondent-State.

                                CORAM : SANDEEP K. SHINDE J.
                                RESERVED ON :  29th JANUARY, 2021.
                                PRONOUNCED ON: 23rd FEBRUARY, 2021



                      JUDGMENT:

The Court of Special Judge (Under the Prevention

of Corruption Act), Pune by the judgment and order dated

25th August, 2004 passed in Special Case No.25 of 2001,

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convicted the appellant for the ofences punishable under

Sections 7, 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act, 1988 ('PC Act' for short) and

sentenced to sufer rigorous imprisonment for two years

and fne of Rs.5,000-- in default to sufer rigorous

imprisonment for fve months separately for both the

ofences. It is against the conviction and sentence, this

appeal is preferred.

2 Heard Mr. Tajane, learned counsel for the

appellant and Mr. Dabke, learned Additional Public

Prosecutor for the State.

3 This is a trap case, in which the appellant was

alleged to have accepted the amount of Rs.1,500--, a illegal

gratifcation while working as 'Senior Clerk' in the ofce of

the Executive Engineer, Implementation Wing, Town

Planning, Yerwada, Pune for drawing and lodging bills in

treasury relating to arrears of pay due to complainant.

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4          Briefy stated, prosecution case is that, Mrs.

Smita Suresh Paranjape (P.W.1), public servant, working in

the same ofce, i.e. Executive Engineer, Town Planning was

entitled to arrears of pay for the period from 1 st January,

1986 to 31st December, 1993. Pay fxation order was passed

on 29th December, 2000. Whereafter she enquired with

accused about the, bills. Following that accused told her,

unless, Rs.1,500-- were paid, he would not submit bills to

Treasury. Thereafter on 17th January, 2001, Complainant

approached the Anti Corruption Bureau. Upon completing

required formalities, Complainant was accompanied by the

witness, Sangita Maruti Sarde (P.W.2). Initially, the

Complainant and the witness had been in his ofce where

the complainant enquired about her bills. Accused told that

he had done calculations required for drawing a bill and

also asked whether she had brought the money. Whereafter

the accused, Complainant and the witness went to a tea-

stall, where again Complainant enquired about the bills and

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thereafter accused demanded bribe. Soon after he received

the bribe, the raiding party apprehended the accused and

the tainted money quoted with the Anthracine powder was

recovered.

5 Prosecution in support of the charge examined

four witnesses. The learned Judge upon appreciating the

evidence, convicted the appellant as stated above and

hence, this Appeal.

6 Mr. Tajane, learned counsel for the appellant

contended that sanction dated 30th May, 2001 granted

under Section 19 of the PC Act was invalid and was not only

relatable to irregularity and errors crept in while granting,

but it resulted in failure of justice. Mr. Tajane would,

therefore, submit that the learned Trial Court did not

appreciate the evidence of the sanctioning authority and

erroneously held, sanction was valid. He would submit that

evidence of the sanctioning authority on the face of it

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renders the sanction invalid and on this ground alone, the

Trial Court ought to have absolved the appellant of all the

charges. In support of this contention, Mr. Tajane has taken

me through the testimony of the Director of Town Planning,

Maharashtra State, a sanctioning authority.

7 On the other hand, Mr. Dabke, the learned

Additional Public Prosecutor for the State, contended that

Section 19(3) of the Act is complete embargo on the Court

to reverse or alter fndings, sentence or order passed by the

Special Judge in appeal on the ground of error, omission or

irregularity in the sanction unless in the opinion of the Court

that such an error, omission or irregularity caused failure of

justice. Mr. Dabke, would, therefore, argue that alleged

lapses and omissions on the part of Sanctioning Authority

while granting the sanction itself would not be fatal to the

prosecution when the material furnishes proof of illegal

demand of gratifcation and its acceptance by the

appellant-accused. In support of his contention, Mr. Dabke

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would rely on the provisions of Section 19(3)(4) of the PC

Act and testimony of complainant (P.W.1) and witness

(P.W.2), who accompanied the complainant at the ofce of

the accused.

8 I have carefully considered submissions and have

perused the testimony of Sanctioning Authority minutely

and also perused Exhibits 50 (Draft Sanction Order) and 47

(Sanction Order). It reveals that on 9 th May, 2001,

Superintendent of Police, Anti Corruption Bureau, Pune sent

the sanction proposal along with the investigation papers to

him for according sanction to prosecute the appellant. This

proposal was received by the ofce of the Sanctioning

Authority on 11th May, 2001. On 14th May, 2001 till 24th May,

2001, Sanctioning Authority proceeded on the earned

leave. It is interesting to note that Sanctioning Authority

would admit that the draft sanction order at Exhibit 50 was

prepared-drafted by the Administrative Ofcer, Mr. Buwa

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and ofce superintendent Mr. Joshi. He would further admit

that Mr. Buwa and Mr. Joshi prepared the draft sanction

order independently and he did not instruct them to

prepare it. Authority would further testify that when he

resumed the ofce after 25th May, 2001, a draft order was

placed before him on 30th May, 2001 but could not say or

remember whether it was along with the investigation

papers or not. He further testifed, when the draft order

was put up before him, he read it carefully and made few

corrections in the red ink. It is again interesting to note that

witness deposed, that he signed draft sanction order, as a

mark of its approval, however, he did not put a date on it.

His evidence further shows that fnal approval was prepared

by incorporating corrections made by him in the draft order.

I have perused the draft sanction order. It shows,

Sanctioning Authority had carried out fve or six

"grammatical corrections", and nothing more. To verify

whether the Sanctioning Authority has applied his mind

while issuing fnal sanction order Exhibit 47, I have verifed

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it with the draft order Exhibit 50. It could be seen, that, the

fnal sanction order is nothing more than copy of the draft

order without any addition or subtraction to its substance.

Thus, upon reading the testimony of the Sanctioning

Authority along with the draft Sanction and Final Sanction

Order, I hold, the Sanctioning Authority did not

independently apply its mind while according the sanction.

Thus, prosecution has not established that, Sanctioning

Authority itself did conscious scrutiny of the whole record

and independently applied its mind to all relevant

facts-material before granting the sanction. Nevertheless,

sanction order on the face of it indicate that record of the

investigation was placed before the authority but testimony

of Sanctioning Authority is as vague as possible, who

admits he simply counter signed draft sanction, which

prosecution has translated into sanction at Exhibit 47.

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9         Object of provisions for sanction is that the

authority giving the sanction should be able to consider for

itself, the evidence before it comes, to conclusion that

prosecution in the circumstances be sanctioned or

forbidden. Herein prosecution evidence on sanction reveals,

sanction was granted mechanically and without application

of mind. Ordinarily, the Sanctioning Authority is the best

person to judge, as to whether public servant concerned

should receive protection under the Act, by refusing to

accord the sanction for his prosecution or not. Indisputably,

application of mind on the part of Sanctioning Authority is

imperative and therefore, order granting sanction must be

demonstrative of the fact that there had been proper

application of mind on the part of Sanctioning Authority.

10 Though I have held that previous sanction was

invalid, the question is whether irregularity, errors and

omissions crept in or relatable sanction order has resulted

in a failure of justice. Before answering this question, let me

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reproduce Section 19 of the PC Act, which reads as under:

"19. Previous sanction necessary for prosecution.--

(1) No court shall take cognizance of an ofence 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 afairs of the Union and is not removable from his ofce 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 afairs of a State and is not removable from his ofce 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 ofce. (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 ofce at the time when the ofence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) no fnding, sentence or order passed by a special Judge shall be reversed or 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, 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 satisfed that such error, omission or irregularity has resulted in a failure of justice;

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(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 specifed authority or with the sanction of a specifed person or any requirement of a similar nature."

It may be stated that the order of sanction is pre-requisite

as it is intended to provide a safe-guard to a public servant

against frivolous and vexatious litigants. However, order of

sanction should not be construed in pedantic manner and

there should not hyper-technical approach to test its

validity.

. The Apex Court in the case of Ashok Tshering

Bhutia v. State of Sikkim has observed that a defect or

irregularity in the investigation however serious, would

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have no direct bearing on the competence or the procedure

relating to cognizance of the case as already been taken

and the case has proceeded to termination, invalidity of the

precedent investigation does not vitiate the result unless

miscarriage of the justice has been caused thereby. Similar

is the position with regard to validity of the sanction. Mere

error, omission or irregularity in the sanction is not

considered to be fatal unless it has resulted into failure of

justice or has been occasioned thereby.

11 Section 19(1) of the PC Act is a matter of

procedure and does not go to the root of the jurisdiction

and once, the cognizance has been taken by the Court

under the Code, it cannot be said that mere irregularity or

omission or irregularity in the sanction is fatal unless it

resulted in the failure of justice. Keeping in mind, the

provisions of Section 19(3)(4) of the PC Act and the law laid

down by the Hon'ble Apex Court, let me ascertain whether

invalid sanction has resulted in failure of justice. In this

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case, on reading the testimony of the Sanctioning Authority

and upon verifying the Draft Sanction Order with sanction,

it can be said with certainty that the Sanctioning Authority

in fact, has not exercised the jurisdiction under Section

19(1) of the PC Act. In other words, authority plainly and

simply put its signature on the Draft Sanction Order by

bringing out clerical mistakes in name and a few words and

nothing more. Moreover, in cross-examination, authority

would admit that he did not remember or re-collect whether

he had perused investigation. It appears and in this fact

situation and in consideration of the evidence, I do not

hesitate to hold and conclude that the irregularity attached

to the Sanction Order was not 'mere' (emphasis supplied)

irregularity but 'gross' in nature and failure of justice has

been occasioned thereby.

12             In the result, prosecution fails.



13             That for the reasons stated above, appeal is

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allowed and the impugned conviction and sentence is

quashed and set aside. Bail bonds stand cancelled. Sureties

are discharged.

14 Appeal is, accordingly, disposed of.

(SANDEEP K. SHINDE, J.)

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