Yashwant Balasaheb Gavade vs The State Of Maharashtra
2021 Latest Caselaw 13324 Bom

          Digitally                                               19-REVN-163-2021.odt
          signed by
          SHAMBHAVI
SHAMBHAVI NILESH
NILESH    SHIVGAN
SHIVGAN   Date:
          2021.09.20
          19:26:40
          +0530
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION

                                 REVISION APPLICATION NO.163 OF 2021

                       Mr. Yashwant Balasaheb Gavade
                       Age: 44 yrs., Indian Inhabitant,
                       R/O:- B-1201, Athene, Lodha
                       Paradise, Majiwada, Thane (West)       ... Applicant
                            Vs
                       The State of Maharashtra
                       Through the ofce of Ld.APP,
                       PWD Building, High Court, Mumbai
                       In connection with FIR NO.II-54/2011
                       Registered by Anti-Corruption
                       Bureau, Thane at Wagle Police
                       Station, Thane                       ... Respondents
                                                   ...

Dr. Abhinav Chandrachud with Mr. Datta Mane for the Applicant.

Mr. S.S.Hulke, APP for the Respondent-State.

CORAM : SANDEEP K. SHINDE J.

DATE : 17th SEPTEMBER, 2021.

ORAL JUDGMENT :

1 Feeling aggrieved by the order dated 11th

January, 2021 in Special Case (ACB) No.33/2014, by

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which the Additional Sessions Judge, Thane declined

to discharge the applicant under Section 227 of the

Code of Criminal Procedure, 1973 ('Cr.P.C.' for short)

and thus, the revision is preferred before this Court.

2 Prosecution case in brief is that, the

complainant was Electrical Contractor. He had

installed electric transformer in one high rise

building at Thane, for which clearances/permissions

were required from the ofce of Electrical Inspector,

Public Works Department, State of Maharashtra.

Applicant was Assistant Electrical Inspector. He

allegedly demanded Rs.95,000/- bribe from the

complainant for issuing clearances/permissions.

Thereupon, the complaint was lodged on 8 th April,

2011 with the Anti Corruption Bureau at Thane.

Whereafter the complainant called the applicant on

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his mobile in presence of two pancha witnesses and

conversation was recorded on Digital Video

Recorder. Whereafter applicant, called complainant

at his ofce, at Thane on Monday in the morning.

Accordingly, on 11th April, 2011, pre-trap

panchanama was drawn. A DVR recorder was given

to the complainant in presence of panchas.

Complainant met the applicant in his ofce in

morning hours. He recorded conversation with the

applicant, on DVR. Transcript shows, the bribe

amount was scaled down to Rs.30,000/-. Transcript

suggests, the applicant would accept balance

amount against further clearances/permissions in

future. Whereafter, the complainant was called in

the afternoon on the same day. Thereafter,

verification panchanama was drawn and Anthracine

powder was applied to 30 currency notes of

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Rs.1,000/- each. Currency note, numbers were

noted in the panchanama. At around 5 p.m.

complainant went to the ofce of the applicant with

the panch witnesses. However, applicant and

complainant went to canteen attached to ofce.

Complainant recorded conversation. The transcript

of the conversation shows, applicant finally agreed

to issue the necessary permission required by the

complainant, only against bribe of Rs.50,000/-.

Thus, on 13th April, 2021, second pre-trap

panchanama was drawn. Anthracine powder was

applied to thirty currency notes of Rs.1,000/- each

and forty currency notes of Rs.500/- each.

Particulars of currency notes were noted in the pre-

trap panchanama. A trap was laid at 11 a.m. in the

ofce of the applicant. Both, the applicant and the

complainant first went into the canteen. Thereafter

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both sat in 'Santro' car of the applicant, bearing

registration no.MH-12-13G-8434, which was parked

in the ofce compound. Applicant drove the car for

short distance and again drove back to the ofce.

The car was followed by the panchas at motor-cycle.

Whereafter again applicant and the complainant

went to the ofce. After sometime, complainant

came out and gave pre-determined signal to the

raiding party. The complainant informed raiding

party that bribe was accepted by the applicant in

the car. Inspector Dilip Patil introduced himself to

the applicant. Thereafter the applicant opened the

car with a key, which was with him. Till then, car

was guarded and kept an eye on it by the members

of raiding party. Whereafter Rs.50,000/- were

recovered from the dash board of the car in

presence of the pancha no.2, who was sitting on the

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front seat and Mr. Patil, sitting in the back seat of

the car. Under violate lamp, tainted notes, hands of

the applicant and clothes were seen and all these

emitted bluish glow. Number of currency notes

recovered from the car of the applicant tallied with

the number that had been mentioned in the pre-trap

panchanama. Another panchanama (Herein after

called 'Post-trap Panchanama') was drawn recording

all that had transpired during the raid. Conversation

between the applicant and the complainant was

recorded in DVR. Its transcript was prepared.

Transcript is in two parts; before and after accepting

bribe. Second part of the transcript shows, after

accepting the, bribe, applicant asked

M.K.Deshpande (Ofce Person) to hand over the

required permissions/clearances to the applicant.

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3         Dr. Chandrachud, the learned counsel for

the applicant has taken me through the final report

and submitted that, to constitute ofence under

Section 7 of the Prevention of Corruption Act, 1988,

it is necessary for the prosecution to prove that

there was 'demand' of money and the same was

voluntarily 'accepted' by the accused. His next

submission is that, demand and acceptance of

money for doing a favour in discharge of his ofcial

duties is sine-qua-non to the conviction of the

accused. It is submitted that the material on record

falls short of these basic ingredients of the ofence

and, therefore, there is no sufcient ground for

proceeding against the accused. His another

contention is, that presence of panchas, who

accompanied the complainant, was not formal

witness but virtually a, 'star witness' for

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prosecution, for it is he who requires to witness the

demand and acceptance by the public servant. In

support of this contention, Dr. Chandrachud has

relied on the judgment of this Court in Achyutrao

Dattatraya v. The State of Maharashtra

reported in (1993) 1 Bom CR 479. In so far as the

'demand' of and acceptance being ingredients of

ofence under the Prevention of Corruption Act,

1988 are concerned, Dr. Chandrachud relied on the

judgment of the Apex Court in the case of Banarsi

Dass v. State of Haryana reported in (2010) 4

Supreme Court Cases 450. It is further contended

that neither the alleged 'demand' nor the

'acceptance' of money was seen or heard or

witnessed by either pancha witnesses. Dr.

Chandrachud thus, contended that evidence of

acceptance of bribe/tainted currency notes is not

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borne out from the material and therefore, the

applicant has been implicated in this case on mere

suspicion. Dr. Chandrachud would contend that in

the case of Sajjan Kumar v. CBI reported in

(2010) 9 SCC 368 Page 1371, the Hon'ble Apex

Court had an occasion to consider the scope of

Sections 227 and 228 of the Cr.P.C. Dr. Chandrachud

would submit that one of the considerations, while

exercising jurisdiction under Section 227 of the

Cr.P.C. is that ; "if two view are possible and one of

them gives rise to suspicion only, as distinguished

from grave suspicion, the trial Judge will be

empowered to discharge the accused and at this

stage, he is not to see whether the trial will end in

conviction or acquittal". The contention is that

nobody had seen, the applicant while 'accepting'

the bribe, and, therefore, simply because, tainted

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currency, was found in the applicant's car, that by

itself would not amount to acceptance of bribe

pursuant to demand. It is, therefore, argued that

applicant has been implicated on suspicion, which

was not 'grave' in nature. It is next contended that

the sanction accorded to prosecute the applicant, is

contrary to the settled principles of law and advice

of law ofcer. It is submitted that sanction has been

granted mechanically and without application of

mind. In support of his contention, Dr. Chandrachud

relied on the judgment of the Apex Court in

Nanjappa v. State of Karnataka reported in

(2015) 14 Supreme Court Cases 186 to contend

that validity of the sanction could be gone into at

any stage and not necessarily only during the

course of the trial. In support of this proposition, Dr.

Chandrachud would rely on paragraph 23 (Supra) Shivgan

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which reads as under:

"23. Having said that there are two aspects which we must immediately advert to. The first relates to the efect of sub-section (3) to Section 19, which starts with a non obstante clause. Also relevant to the same aspect would be Section 465 CrPC which we have extracted earlier.

23.1. It was argued on behalf of the State with considerable tenacity worthy of a better cause, that in terms of Section 19(3), any error, omission or irregularity in the order sanctioning prosecution of an accused was of no consequence so long as there was no failure of justice resulting from such error, omission or irregularity. It was contended that in terms of Explanation to Section 4, "error includes competence of the authority to grant sanction". The argument is on the face of it attractive but does not, in our opinion, stand closer scrutiny.

23.2. A careful reading of sub-section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order sufers from an error, omission or irregularity, unless of course the court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such error, omission or irregularity. Sub-section (3), in other words, simply forbids interference with an order passed by the Special Judge in appeal, confirmation or revisional proceedings on the ground that the sanction is bad save and except, in cases where the appellate or revisional court finds that failure of justice has occurred by such invalidity. What is noteworthy is that sub-

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section (3) has no application to proceedings before the Special Judge, who is free to pass an order discharging the accused, if he is of the opinion that a valid order sanctioning prosecution of the accused had not been produced as required under Section 19(1).

23.3. Sub-section (3), in our opinion, postulates a prohibition against a higher court reversing an order passed by the Special Judge on the ground of any defect, omission or irregularity in the order of sanction. It does not forbid a Special Judge from passing an order at whatever stage of the proceedings holding that the prosecution is not maintainable for want of a valid order sanctioning the same.

23.4. The language employed in sub-section (3) is, in our opinion, clear and unambiguous. This is, in our opinion, sufciently evident even from the language employed in sub-section (4) according to which the appellate or the revisional court shall, while examining whether the error, omission or irregularity in the sanction had occasioned in any failure of justice, have regard to the fact whether the objection could and should have been raised at an early stage. Sufce it to say, that a conjoint reading of sub-sections 19(3) and (4) leaves no manner of doubt that the said provisions envisage a challenge to the validity of the order of sanction or the validity of the proceedings including finding, sentence or order passed by the Special Judge in appeal or revision before a higher court and not before the Special Judge trying the accused."

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. Dr. Chandrachud would also contend, that

under violate lamp, hands of the complainant were

seen but it did not emit bluish glow. This contention

appears to be incorrect in view of the panchanama

Page 107 last paragraph.

4 Prosecution relied on three transcripts of

conversations; two pre-trap panchanamas and one

post-trap panchanama. Primary evaluation of these

documents, imply, that the applicant demanded, the

bribe, from the complainant for issuing 'permissions'

as required by him. In these proceedings, I do not

see any reason to discard or disbelieve the

transcripts. In fact, now report of Forensic

Laboratory is on record. It shows, the auditory

analysis recorded questioned voice exhibits of Shivgan

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speaker and specimen voice exhibit of speaker and

subsequent spectographic analysis revealed that,

questioned voice exhibits of speaker are similar to

specimen voice. In so far as the 'acceptance' is

concerned, although the acceptance was not seen

by any of the pancha witnesses, fact remains that

tainted currency notes were recovered from the car

owned by the applicant. Ownership of the car is not

in dispute. In fact, car door was opened, with a key,

which was with applicant. Apparently, evidence

does not suggest, possibility of 'Planting' money in

the car. Rather, evidence convey, that the applicant

and the complainant drove the car, just before

recovery of tainted currency from the car. In fact,

when the Investigating Ofcer disclosed his identity

to the applicant and enquired about tainted money,

he pleaded ignorance. Whereafter key, which was Shivgan

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with the applicant, a car was opened and in

presence of pancha witness no.2 and the

Investigating Ofcer Mr. Patil, Rs.50,000/- were

recovered from dash board. Therefore, there is

material on record suggesting acceptance of 'bribe'

in pursuant to demand.

5 In so far as the sanction is concerned, Dr.

Chandrachud has argued that sanction is contrary to

the opinion of the law ofcer attached to the ofce

of the Anti Corruption Bureau. Dr. Chandrachud has

also invited my attention to the reference made by

the parent department of the applicant to the

Department of Law & Judiciary, State of

Maharashtra, for re-consideration of sanction, but

request of Parent Department was declined.

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6 Be that as it may, although this Court is

empowered to look into the validity of the sanction

at any stage as held in Nanjappa (Supra),

however, nothing has been pointed out to show how

it sufers from error, omission or irregularity.

7 For the reasons stated above, in my view,

there is sufcient material on record to proceed

against the applicant. There is no illegality,

impropriety in the order impugned in this revision

application. In consequence thereof, revision is

dismissed.

8 It is made clear that observations made

here-in-above be construed as expression of opinion

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for the purpose of revision only and the same shall

not in any way infuence the trial in other

proceedings.

(SANDEEP K. SHINDE, J.)

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