Asaram @ Ashok Pandharinath Kale vs State Of Maha
2023 Latest Caselaw 4219 Bom

                                 1                               RA-341-04.odt




           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD


       CRIMINAL REVISION APPLICATION NO. 341 OF 2004

Asaram @ Ashok Pandharinath Kale,
Age 50 years, Occu. Service,
R/o. Jalaka, Taluka Newasa,
District Ahmednagar
(At present in jail)                      ..       Applicant
                                               (original accused)
         Versus

The State of Maharashtra                  ..      Respondent


Mr. Vikram R. Dhorde, Advocate for Applicant;
Adv. S. P. Sonpawale, A.P.P. for Respondent/State



                               CORAM :    S. G. MEHARE, J.
                               Reserved on        : 29.03.2023
                               Pronounced on : 26.04.2023
JUDGMENT

1. By consent of the parties, the revision application is heard

finally.

2. The accused takes exception to the judgment and order of

conviction of the learned Chief Judicial Magistrate, Ahmednagar, in

Regular Criminal Case No.153 of 1996, dated 19.08.1997, for the

offence punishable under Section 409 of the Indian Penal Code (in

short, "I.P.C.") and confirmed by the learned Additional Sessions

Judge, Ahmednagar, by its judgment and order dated 10.08.2004

in Appeal No.62 of 1997.

2 RA-341-04.odt

3. The accused was a Tenancy Awal Karkoon in the Tahsil Office,

Newasa, in 1990-91. There was heavy rainfall in that area. Hence,

the Government had declared compensation for the rain-affected

people. The compensation was to be disbursed at the war level.

Therefore, the Collector, Ahmednagar, assigned the duties to the

Talathis, Aawal karkoons and other staff. The accused was one of

them discharging his official duty and arranging to pay

compensation to the affected persons.

4. The allegations against the accused describe that he was to

direct the Accountant to pay the money to the respective Talathis

and get the account from the Talathis about the compensation

money paid and not disbursed to the beneficiaries. The unpaid

money was to be returned to him. The Talathis returned the

balance amount to him. However, instead of depositing the

amount of Rs.70,659/- with the Treasury, he misappropriated the

amount and committed an offence punishable under Section 409

of the Indian Penal Code.

5. When the misappropriation of the compensation money was

discovered, the Collector, Ahmednagar, vide its letter dated

03.05.1995, directed the Tahsildar to prosecute the accused.

Accordingly, the first information report was registered against the

accused. He was charged, tried and convicted.

3 RA-341-04.odt

6. Against two consecutive judgments of conviction, he has

raised various legal grounds not considered by the learned trial

Court and the Subordinate Appellate Court.

7. The learned counsel for the accused has vehemently argued

that there was no sanction to prosecute the accused under Section

197 of the Code of Criminal Procedure, 1973 ("in short, "Cr.P.C.").

Therefore, the entire trial vitiates. He also argued that most of the

witnesses are Talathis, who have been examined, were not

inquired into by the Investigating Officer and their statements

were not recorded under Section 161 of the Cr.P.C. Both the

learned Courts had committed a grave error of Law in relying upon

the statements of the witnesses recorded before the Accounts

Officer who had conducted the departmental inquiry. Similarly, the

statement of the Accounts Officer, P.W.No.26 Damodar Maroti

Adsule, was also not recorded under Section 161 of the Cr.P.C.

Therefore, the accused did not have information and material

about these witnesses in the form of their statements. Therefore,

their statements are nothing but a piece of paper on record. He

has also argued that the accused was to direct the Accountant to

pay the money to the Talathi for disbursement. Therefore, the

unpaid money was to be deposited with the Accountant, and the

Accountant was to take the entries in the account book. In a few

cases, the unpaid compensation amount returned to him by the

Talathis was again disbursed to the beneficiaries as they were

4 RA-341-04.odt

unavailable when the Talathis went to pay them compensation. He

raised a question that the papers of the departmental enquiry

cannot be the evidence in the trial lodged under the Code of

Criminal Procedure.

8. It is a prerogative of the Investigating Officer to make an

inquiry from the witness acquainted with the facts of the crime,

and if he feels appropriate, he reduces their statements in writing

under Section 161 of the Cr.P.C. He would also argue that the Law

is well established that the accused must be informed in advance

of what is the material against him and what he has to face in the

trial. Since the statements of most of the witnesses were not

recorded under Section 161 of the Cr.P.C. by the Investigating

Officer, the right of the accused to know the statements against

him has been taken away. This is a material illegality in this trial.

Both Courts have totally ignored these important aspects

9. He has also argued that the witnesses are not consistent and

confident on the facts that they had paid the remaining amount of

compensation to the accused, and it was misappropriated. It was

an emergent situation, and the sole object was to help the rain-

affected persons. Therefore, the cash payment was made, which

was an abnormal practice. The first informant died. Therefore, the

F.I.R. is not proven. The alleged chits allegedly proved the

acknowledgment has no evidential value. The accused was not

5 RA-341-04.odt

assigned the duty as alleged. He relied on the cases of

Labhshankar Magnalal Shukla Versus State of Gujarat,

(1979) 3 Supreme Court Cases 391 and Vasant Moghe

Versus State of Maharashtra, (1979) 3 Supreme Court

Cases 771.

10. The learned counsel for the accused has vehemently argued

that the prosecution has failed to prove the entrustment of the

money; therefore, no offence as alleged was made out against the

applicants. He prayed to allow the petition and, in an alternative,

prayed to show leniency as the accused is running 75 and

suffering from various physical ailments if the Court concludes that

there are no grounds to interfere with the impugned judgments

and orders.

11. The learned A.P.P. has strongly opposed the application. He

would argue that the evidence led before the Court established the

misappropriation of the money by the accused. The evidence has

been properly appreciated. The witnesses were consistent. The

entire circumstances were against the accused. He did not explain

why he had retained the money. The chits which are proved on

record were signed by the accused. The relevant register was also

seized. The accused did not deny the signatures on the chits. The

statements of the witnesses, though not recorded under Section

161 of the Cr.P.C. were admissible as the accused never objected

6 RA-341-04.odt

before the trial Court. Since the first informant died, the F.I.R. has

been duly proved through the person who knew the facts and the

first informant. There are no grounds to interfere with the

impugned judgments and orders. He prayed to dismiss the

petition.

12. The legal question of whether the sanction under Section

197 of the Cr.P.C. was there to prosecute the accused must be

dealt with first. The said Section speaks that unless the sanction to

prosecute is obtained, the Court cannot take cognizance against a

public servant not removable from office who allegedly

misappropriated the public fund while acting or purporting to act

in the discharge of his official duties. The burden was on the

prosecution to prove that the sanction was obtained from the

competent authority to try the accused.

13. The object of Section 197 of the Cr.P.C is to protect public

servants against vexatious litigation and to ensure that they are

not prosecuted for anything done by them in the discharge of their

official duty without reasonable cause. Section 197 of the Cr.P.C.

restrain the Court from taking cognizance of the offence against

public servants except with the previous sanction. 'Cognizance'

literally means knowledge or notice, and 'taking cognizance' of an

offence means taking notice or becoming aware of the alleged

commission of an offence. Obviously, the Judicial Officer has to

7 RA-341-04.odt

ensure that whether Court can take cognizance of the offence

before he proceeds with the trial. The offence under Section 409 of

the I.P.C. is against the public servant. Therefore, this Court is of

the view in every case registered under Section 409 of the I.P.C.,

the Court before which the complaint is lodged, has to ensure that

the sanction under Section 197 of the Cr.P.C., has been secured.

The Court must avoid unwanted proceedings of such a nature. The

prosecution is also bound to satisfy the Court that for an offence

punishable under Section 409 of the I.P.C., sanction of the

appropriate appointing authority has been obtained to prosecute a

public servant. The Courts should not wait till the accused objects

that there was no sanction to prosecute under Section 197 of the

Cr.P.C. This Court thinks that primarily it is a duty of the Court.

14. In the opening paragraph of its judgment, the learned Chief

Judicial Officer has observed that the Collector, Ahmednagar, vide

its letter dated 03.05.1995, had directed to prosecute the accused.

In the said letter, there was a reference to a letter from the

Tahsildar and a confidential letter from the District Government

Pleader. He has expressed the opinion that the accused has

breached the trust by misappropriating the entrusted property.

Hence, he directed the Tahsildar, Newasa, to lodge the report

against the accused. Another question is whether the said

direction was a sanction recognized by the Law. By catena of

judgments of the Higher Courts, it is well settled that sanctioning

8 RA-341-04.odt

leave to prosecute the accused is not a bare formality. It is an

administrative act. The authority granting sanction has to apply its

mind, examine the evidence against the accused and form an

opinion that it would not be a vexatious prosecution. The provision

regarding sanction must be observed strictly keeping in mind the

public interest and the protection available to the accused against

whom the sanction is sought.

15. The letter dated 03.05.1995 addressed to the Sub-divisional

Officer by the Collector, Ahmednagar, does not reflect the

application of mind and the conclusion that he was satisfied with

the material placed before it was sufficient to prosecute the public

servant. It was a bare letter issued under his power. Therefore, it

cannot be considered a sanction to prosecute the accused as

required under Section 197 of the Cr.P.C. The record does not

reveal that the learned trial Court examined before taking

cognizance whether the sanction was obtained to prosecute the

accused or whether the letter dated 03.05.1995 was a legal and

valid sanction under Section 197 of the Cr.P.C.

16. As regards the sanction under Section 197 of the Cr.P.C., the

learned Sessions Judge observed that the present case is in

respect of the misappropriation of the amount by the accused

when the amount was entrusted to him. In view of the said fact, it

cannot be said that the rule laid down in the above case (Ramesh

9 RA-341-04.odt

Mahadeo Sawant v Daulatrao Lembe and another 1998 (3)

Mh.L.J. 229) is applicable in the present case. The Tahsildar had

lodged the complaint against the accused regarding

misappropriation. The order of the Collector is at Exhibit-130

(examining the record, there is no order of the Collector below

Exhibit-130), which disclosed that the concerned person should be

dealt with. This itself shows that when there is misappropriation,

the Tahsildar has lodged the complaint. Therefore, it cannot be

said that there was no sanction and thereby, the trial is to be

vitiated.

17. There was no other sanction order except the letter dated

3.5.1995, which was, as held by this Court, not the sanction to

prosecute the accused. In these premise, the above observation of

the learned Sessions Judge regarding the sanction under Section

197 of Cr.P.C. is apparently illegal, incorrect and improper. Hence,

the entire prosecution against the accused is vitiated.

18. The next legal point raised is whether witnesses can depose

before the Court directly without recording their statements under

Section 161 of Cr.P.C.?

19. The statements of many witnesses were not recorded under

Section 161 of the Cr.P.C. However, they have been directly

examined based upon their statements recorded by the Accounts

Officer in departmental inquiry. The record reveals that the

10 RA-341-04.odt

Investigating Officer had recorded the statements of many Talathis

under Section 161 of the Cr.P.C., but the statements of only six

Talathis were available on record.

20. Section 161 of the Cr.P.C. is about recording the statements

of the witnesses acquainted with the facts of the incident at the

discretion of the Investigating Officer. The statement under Section

161 of the Cr.P.C. can only be used for contradictions and

omissions. Such a statement could be used by the prosecution as

well as by the accused. The copies of such statements must be

provided to the accused well in advance before framing charges. It

gives information to the accused about what the witnesses have

stated against him and whether it is true and correct. Such

statements are part of the charge sheet and recorded during the

crime investigation. The Investigating Officer, in the

circumstances, reduced the statements of the witnesses to writing.

It is also well settled that the departmental inquiry and criminal

trial are independent, and the rules appreciating the evidence in

both cases are distinct. In a criminal case, the prosecution has to

prove the charges beyond a reasonable doubt. The said rule is not

applicable in the departmental inquiry. In the departmental inquiry

the evidence which has a probative value of reasonable nexus and

credibility can be believed. In the light of this legal position, the

Court comes to the conclusion that the witnesses examined

without recording their statements under Section 161 of the Cr.P.C.

11 RA-341-04.odt

were not competent to lead the evidence against the accused, and

their deposition cannot be directly recorded on the basis of their

statement before the Inquiring Officer. However, there is no bar to

examining the witnesses other than those listed in the witness list,

but a procedure has to be followed for examining such witnesses.

A person who has not been examined under Section 161 of the

Cr.P.C. may appear directly in the Court to depose against the

accused. In such a situation, such a witness shall be sent to the

Investigating Officer to record his statement under Section 161 of

the Cr.P.C. Then he may depose before the Court.

21. The Talathis, whose statements were recorded under Section

161 Cr.P.C, were also examined before the Court. They have

categorically deposed that they have returned the unpaid

compensation to the accused, and he had acknowledged it on the

compensation disbursement report. The accused did not protract

anything from their cross-examination. In this situation, this Court

believes that the prosecution has proved that the accused had

misappropriated public money. Both the Courts have correctly

believed these witnesses. Therefore, the Court does not find

substance in the argument of the learned counsel for the accused

that there was absolutely no evidence against the accused, and

whatever evidence was there, it was inadmissible for want of their

statements under Section 161 of the Cr.P.C.

12 RA-341-04.odt

22. It has also been argued that the benefit of the government

circular dated 6th May 1976 ought to have been given to the

accused. The State Government had issued a circular dated 6 th

May 1976 and took a policy decision not to file prosecution against

its employee if the delinquent/employee pays the entire amount to

the Government within one month from the date when the

employee received the notice in that behalf from the Government.

If he deposits money as per the said circular, the accused is

entitled to protection from criminal prosecution under Section 409

of the I.P.C. The Bombay High Court, in the case of Dagadu

Shamrao Deshmukh Vs. State of Maharashtra 1983(2) BCR

424, had referred to the said Government resolution.

23. The burden was on the accused to prove that from the

receipt of the notice from the Government, he deposited the entire

amount allegedly misappropriated within a given time. The learned

Sessions Judge referred to the notice dated 23 rd January 1995

addressed to the accused, calling upon him to deposit the amount

of Rs.70,459/- within ten days with the Government. However,

there was no evidence before the Court that he had deposited the

said amount as per the said notice. In view of these facts, the

learned Sessions Judge has correctly observed that mere

submission that the accused has deposited the amount of

misappropriation would not be sufficient to believe him. The

accused also did not state so in the statement under Section 313

13 RA-341-04.odt

of the Cr.P.C that he had deposited the misappropriated money as

per the above circular.

24. Considering the arguments advanced by the respective

counsels and examining the legal points raised by the learned

counsel for the accused, this Court find that the offence under

Section 409 of the I.P.C. was proved against the accused. However,

there was no legal and valid sanction under Section 197 of the

Cr.P.C. Therefore, the accused deserves discharge as the trial was

vitiated.

ORDER

i) Criminal Revision Application is allowed.

ii) The judgments and orders of conviction of the learned Chief Judicial Magistrate, Ahmednagar, in Regular Criminal Case No.153 of 1996 dated 29.08.1997 and confirmed by the learned Sessions Judge, Ahmednagar, in Appeal No.62 of 1997 by its judgment and order dated 10.08.2004, stands quashed and set aside.

iii) The accused stands discharged in the crime registered against him as the trial has been vitiated for want of sanction under Section 197 of the Code of Criminal Procedure.

iv) The bail bond and surety bond stand cancelled.

v)       The surety stands discharged.
vi)      R & P returned to the Court of the learned Chief Judicial
         Magistrate, Ahmednagar.

vii)     Rule made absolute in above terms.



                                            ( S. G. MEHARE )
                                                   JUDGE
rrd