Bombay High Court
Jagannath Shivram Jadhav vs State Of Maharashtra on 5 January, 2024
Author: Prakash D. Naik
Bench: Prakash D.Naik
2024:BHC-AS:4670
DAE Appeal-458-2007.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 458 OF 2007
Jagannath Shivram Jadhav
Age:37 years, Occu.:Service
R/o. Kalian Railway Quarters
Bangla, Behind Rly. P. Stn.,
Kalyan (W), Dist. Thane. ...Appellant
Versus
The State of Maharashtra ...Respondent
....
Mr. Ujwal Agandsurve, Advocate for Appellant.
Ms. P. N. Dabholkar, APP for the Respondent - State.
....
CORAM : PRAKASH D.NAIK, J.
DATE OF RESERVING JUDGMENT : 28th JULY, 2023
DATE OF PRONOUNCING JUDGMENT : 5th JANUARY 2024
JUDGMENT.:-
1. The Appellant is convicted vide Judgment and Order dated 24 th April
2007 passed by Special Judge (under Prevention of Corruption Act, 1988)
and Additional Sessions Judge, Greater Bombay in Special Case No. 34 of
2002 for offences punishable under Section 7 of the Prevention of
Corruption Act, 1988 (hereinafter referred to as P.C. Act) and sentenced to
suffer Rigorous Imprisonment for four years and pay fine of Rs.1,000/-.
The Appellant is also convicted for offence punishable under Section 13(1)
(d) read with 13(2) of the P.C. Act and sentenced to suffer Rigorous
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Imprisonment for seven years and pay fine of Rs.1,000/-. He is also
convicted for the offence under Section 343 of Indian Penal Code, 1860 and
sentenced to suffer Rigorous Imprisonment for six months and pay fine of
Rs.1,000/-.
2. The brief facts of the prosecution case are as under:-
(i) The complainant Firoz Ahmed Dilawar Khan is the brother of
Munnafa @ Munna Khan. They were residing at Gowandi, Mumbai.
(ii) On 6th February 2001, the complainant was alone in the house. His
brother Munna was not at home. Six persons in civil dress including
Appellant/accused visited his house and made inquiry about complainant's
brother Munna. The appellant told complainant to accompany him to Vashi
Railway Police Station.
(iii) The complainant accompanied police. Inquiry was made with him
about Mohd. Nabi. The complainant was not knowing anything about
Mohd. Nabi. The complainant was taken to Vashi Railway Police Station.
(iv) The complainant was detained at Vashi Railway Police Station till
04:00 p.m. on 7th February 2001. The Police Station is situated at platform
No.1. During the said period, the appellant and others were making inquiry
about Munna and Mohd. Nabi with complainant.
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(v) On 7th February 2001 at about 06:00 p.m., the appellant and three
police constables brought complainant at his residence. Munna was present
in the house. Accused and other police constables took Munna into custody
and released complainant. The appellant told the complainant that amount
of Rs.25,000/- will be required to be given to release his brother. The
complainant told the accused that, he is not having money. He will have to
make arrangement by selling his room. The accused told the complainant
to give an amount of Rs.5,000/- on 10 th February 2001 at Vashi Railway
Police Station and remaining amount within eight days. The accused told
the complainant that, unless he gives amount, he will not release Munna.
The complainant agreed to give amount of Rs.5,000/- to accused/appellant
on 10th February 2001 between 06:00 to 08:00 p.m.
(vi) The complainant was not willing to give bribe amount to accused. He
approached ACB. He lodged the report with ACB on 10 th February 2001.
FIR was registered as Crime No. 07 of 2001 under Section 7 of Prevention
of Corruption Act.
(vii) Pre-trap panchnama was prepared. Details of incident were noted
down. Amount of Rs.5,000/- was arranged. Instructions were given to
panch witnesses.
(viii) Another complaint was lodged by Ruksana Banu Ahmed Qureshi
alleging that, the accused/appellant demanded bribe for releasing
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complainant's brother-in-law. FIR was registered vide C.R. No. 08 of 2001.
(ix) Parallel investigation was conducted in both the cases. Investigation
in C.R. No. 08 of 2001 was conducted by Police Inspector Mausamkar.
Separate pre-trap panchnama was conducted in respect to the said case.
Amount of Rs.25,000/- was arranged for conducting raid. Instructions were
given to panch witnesses and both the complainants.
(x) All members of the trap, two complainants i.e. Firoz Khan and
Ruksana Banu Ahmed, proceeded in four vehicles to Vashi Railway Police
Station.
(xi) The complainant Firoz Dilawar Khan, Panch Vaishali Malshekhar,
Ruksana Banu Qureshi and Panch Smt. Muluk proceeded towards platform
No.1 at Vashi Railway Police Station and others followed them.
(xii) The complainant Firoz Khan, panch Vaishali Malshekhar, Ruksana
Banu Qureshi and panch Smt. Muluk entered into the cabin of
Mr.Jadhav/appellant. Police Inspector More, panch Turbhekar, panch Gadve
and members of both the trap parties were standing at the same distance.
(xiii) The appellant, accused Bangar and Jagdhane were present in the
cabin of the appellant/accused.
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(xiv) The appellant inquired with Ruksana Banu whether she has brought
the amount of Rs.25,000/- . She replied in the affirmative. The accused
inquired with complainant Firoz Khan whether he has brought the amount
of Rs.5,000/-. He answered in the affirmative. The appellant told him to
bring the balance amount within eight days. The appellant told the
complainant Ruksana Banu to hand over the amount to the co-accused. The
complainant Firoz Khan was told to hand over the amount to the co-
accused, Mr. Somnath Bangar. The amount was accepted by the co-accused.
The raiding party rushed inside the cabin and apprehended accused.
Further procedure was completed. Accused were arrested. On completing
investigation, charge-sheet was filed.
3. Both the cases were tried separately. Separate charge was framed.
Witnesses were examined before the trial Court. The co-accused Somnath
Bangar could not be tried as he was dead. Case against him was abated.
4. Charge was framed against the appellant vide order dated 3 rd
February 2006.
5. Case of the prosecution which is apparent from the charge in the
present case is that, the appellant was posted as Police Inspector along with
deceased/accused Somnath Dagdu Bangar, Head Constable, Vashi Railway
Police Station, Navi Mumbai. On 10 th February 2001, the accused
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demanded and accepted bribe of Rs.5,000/- from the complainant Firoz
Ahmed Dilawar Khan as bribe showing favour to the complainant for not
arresting his brother Munna in theft case which is already registered at
Vashi Railway Police Station vide C.R. No. 07 of 2001 under Section 379
read with 34 of the Indian Penal Code. The accused in furtherance of
common intention from 7th February 2001 to 11th February 2001 detained
Munnafa @ Munna Khan for extracting money from the complainant by
showing favour to him for not arresting him in the crime.
6. Learned Advocate for the appellant submitted that, the appellant has
been falsely implicated in this case. The complainant realized that his
brother will be arrested in the crime and to prevent his arrest. False
complaint was lodged with ACB. The bribe amount was not accepted by
the appellant. The raiding party concocted the story that the complainant
was instructed to hand over the amount to co-accused and thereby
implicated both the accused in the crime. There is no evidence that the
complainant was wrongfully restrained at the police station. The
complainant's brother was indeed involved in the crime and admittedly,
subsequently he was arrested in the crime. The demand was not verified.
Investigation in two complaints was conducted. The complainant in both
the cases and the raiding party had connived with each other. The
complainant in both the cases were interested in evading the arrest of their
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relation, who were involved in crime No.07 of 2001 investigated by Vashi
Railway Police Station, sanction is defective. The sanctioning authority has
not applied its mind while granting sanction. The sanctioning authority was
not competent to grant sanction.
7. Learned Advocate for the appellant had relied upon the following
decisions reads as under:
(i) P.A. Mohandas Vs. State of Kerala1
(ii) State Inspector of Police, Vishakhapatnam Vs. Surya Sankaram
Karri2
8. Learned APP submitted that, the appellant has demanded the bribe
amount. Demand is proved. Amount was handed over to the co-accused.
The amount was accepted by the co-accused. There is no infirmity in the
sanction order. The sanctioning authority was competent to accord
sanction. The sanctioning authority had applied its mind to the fact of the
case while granting sanction. The prosecution has proved demand and
acceptance of bribe amount.
9. The prosecution case proceeds on the basis that the brother of the
complainant was involved in the crime and to release him, the appellant
demanded the bribe amount. C.R. No. 02 of 2001 was registered with Vashi
Railway Police Station for offence under Section 379 of I.P.C.. It was under
1 (2003) 9 SCC 504
2 2007 ALL MR (Cri) 555 (S.C.)
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investigation. The complainant's brother Munna was allegedly involved in
the said crime. He was detained at Police Station. The accused demanded
money for his release. Accused No.2 was present at the police station. The
accused No.1 (appellant) instructed complainant to hand over the money to
accused No.2 which was accepted by him. Similarly another complainant
Ruksana Banu had approached ACB at the same time. Brother-in-law of the
said complainant was involved in the same crime for releasing him. The
appellant/accused demanded bribe of Rs.25,000/-. Thus, bribe amount was
demanded for releasing persons, who were involved in crime No.07 of
2001. Both the complainants proceeded to the police station at the same
time. In both the cases, the appellant did not accepted money but it was
handed over to the co-accused.
10. PW-1 Mr. Firoz Ahmed Dilwar Khan is the complainant. According to
him, police visited his house on 6th February 2001. They inquired about
Munna Khan. He was brought back to his residence. Munna was at home.
He was taken to police station. The accused demanded Rs.25,000/- for
releasing Munna. The complainant was told to arrange Rs.5,000/- and
balance amount within eight days. Complaint was lodged on 10 th February
2001. Thus, according to PW-1, the accused visited his residence on 6 th
February 2001. The accused took custody of his brother on 6 th February
2001. Complaint was lodged on 10 th February 2001. There is no reason as
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to why the complainant did not approach ACB immediately after the
demand was made by accused. Immediately after lodging complaint,
arrangement was made for trap. Instructions were given to the
complainant, panch witnesses and raiding party. According to PW-1, while
he was at ACB office, he saw one female, who was attended by another
officer. Her name was Ruksana Banu. She filed report about Rs.25,000/-
bribe from her for releasing her husband's brother Nabi Ahmed Nabi
Qureshi. All of them went to Police Station. All of them entered into police
station. Two police constables were present in the cabin. Accused inquired
with both the complainants. He instructed them to hand over the amount to
the co-accused. PW-1 handed over the amount to Somnath Bangar whereas
the complainant in the other case handed over the amount to co-accused
Arjun Jagdhane. In the cross-examination, he stated that in the statement
before the police that his brother Munna Khan and Nabi Qureshi informed
in his presence that they were in custody from 7 th February 2001 and were
not produced before the Court. However, this fact is not mentioned in his
statement.
11. PW-2 Mrs. Vaishali Bharat Chawdhari is the panch witness to the trap
dated 10th February 2001. She stated that, she was instructed to act as a
panch witness. She was instructed to accompany Firoz Khan. Another
officer by name Mr.Mousamkar arrived in the room along with two females.
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One of them was Mrs.Sunanda Mulik and other was Ruksana Banu. She
was the complainant in the other case. Ruksana Banu produced the
amount of Rs.25,000/- for the purpose of raid. After making the
arrangement for raid, they proceeded to Vashi Railway Police Station.
Accused inquired whether she had brought money. The complainant had
bought money. The accused No.2 accepted the money. The accused were
apprehended.
12. PW-3 Mr. Munna Dilawar Khan stated that on 7 th February 2001 four
police persons came to his house. They arrested him and took him to the
house of Mr.Nabi Qureshi. He was knowing Mohd. Nabi Ahmad Nabi
Qureshi. He was released in the night of 10 th and 11th February 2001. His
version that, he was at police station from 7 th February 2001 to 10th
February 2001 is not supported by any evidence.
13. PW-4 Mr.Sitaram Ganpat More is the police constable. He was on
duty at Nerul Railway Police Station. On 10 th February 2001, he was called
at Vashi Railway Police Station. He was told to keep watch on the two
accused at the police station. The said accused were Munna and Nabi. They
were arrested in the offence of theft. In the cross-examination, he stated
that he was called at Vashi Railway Police Station from Nerul Railway Police
Station. He has not maintained any diary. He had watched the accused at
Vashi Railway Police Station. He had no personal knowledge exactly in
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which crime Munna and Nabi were arrested.
14. PW-5 Mr. Subhashchandra Malhotra was serving as Director General
of Police, Maharashtra State. He stated that accused was attached to Vashi
Railway Police Station. He received paper for sanction. He found that there
was prima facie case against the accused to grant sanction. He recorded the
reasons as to why sanction to prosecute is granted. He granted sanction to
prosecute the accused. In the cross-examination, he stated that he had
received papers of investigation and draft sanction order. Except few
changes in the draft sanction order, he approved the draft sanction order
and the place and timing in respect of the allegations are not mentioned,
though it is mentioned in FIR. Police Inspectors of A Class and B Class are
Gazetted Officers. The Maharashtra State Government has issued GR dated
3rd April 2000.
15. PW-6 Shri. Manohar Sitaram Gokhale, was working as Deputy
Secretary to Government of Maharashtra. He stated that sanction order
was received under his signature on 18th November 2002 in respect of C.R.
No. 07 of 2001 of Vashi Railway Police Station after application of mind.
Sanction has been accorded relying upon letters Exh. 40 and 41. Letter was
regarding ACB trap pertaining to Vashi Railway Police Station in respect of
accused. He denied that the sanction order was passed only by relying on
letter Exh. 40 and 41.
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16. PW-7 Mr.Govindsingh Jagdishsingh Pardeshi was serving as PSI at
Vashi Railway Police Station since May 2000. On 10 th February 2001, he
was on duty at Vashi Railway Police Station. According to him, two to three
days prior to 10th February 2001 P.I. Jadhav and Police staff brought Nabi
Mohd. and Munna for investigation. There was no entry made in the
station diary about bringing the said persons. In the cross examination, he
stated that, the incident which have occurred are noted in the station diary.
The incidents which have not occurred are not noted in station diary. The
attention of the witness was drawn to station diary entry Nos. 17, 18 and
19 dated 6th February 2001. As per the station diary entry Nos. 17, 18 and
19 dated 6th February 2001 the accused No.1 was present at Vashi Railway
Police Station from 10:15 am to 12:20 noon. The attention of the witness
was drawn to station diary entry No.21 dated 7 th February 2001. As per the
said entry at 01:45 p.m. accused No.1 and others including the witness had
gone to search the pages of Guru Granthsahib as mentioned in the entry
serial No. 21. In the entry No. 26 dated 7 th February 2001, there is
reference of entry No.21. They all returned on the same day at 08:00 pm.
On 8th February 2001 at 11:30 am, accused No.1 and others went to search
aforesaid papers in three groups at Vashi to Vashi Creek. Accordingly, the
entry was made at Sr. No. 17 in the station diary dated 8 th February 2001.
All of them returned at 07:45 p.m. and accordingly entry was made at Sr.
No. 26.
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17. PW-8 Mr.Pandurang Ramaji More conducted investigation. He was
attached to ACB unit. He stated that, the complaint of Mr. Firoz Khan was
recorded. Pre-trap panchnama was recorded. Trap was arranged. Trap
Panchnama was recorded. Accused had accepted the bribe amount. Both
accused were apprehended. He has not mentioned in panchnama about
introduction of all members of police party, names and buckle number to
the panchnama and informant. In the said party, there were five police
officers and eight constables. In the trap P.I. Mosamkar and five Officers and
seven constables were involved. In both trap parties, there were ten police
officers and 15 police constables.
18. The defence of the appellant reflected in explanation under Section
313 of Cr.P.C. reads as follows:-
"Q.114. Do you want to say anything else?
Ans. Whatever stated by informant Firoz Khan about the demand
and acceptance by me from time to time is false. It is false that, I
brought informant's brother in the Vashi Railway Police Station.
From the entries made in the station diary Vashi Railway Police
Station it will be disclosed that evidence of informant Firoz is false.
I neither called nor brought to informant and his brother at Vashi
Railway Police Station at any time. This will be cleared from the
station diary entries, parallel investigation of C.R. No. 7 of 2001 of
Vashi Railway Police Station under Section 379, 34 of IPC was
going on through P.I. Avhad and his staff under the supervision of
ACP Shri. Nagdevane. There was direct control of CP on said unit.
I was also making investigation of said crime. There were two
names of accused in the said crime. One accused Mr. Khambal was
arrested on the spot of incident at the platform of Govandi Railway
Police Station. Other accused Waghmare was absconded with the
bag of Rs. One lakh. Waghmare was brought by police staff Vashi
Railway Police Station for investigation. In the said investigation,
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Munna and Nabi were disclosed as offenders in the said crime.
Munna and Nabi realised that they would be arrested by me.
Hence, they lodged false complaints against me at ACB office.
Thus, I am falsely involved in this crime with help of ACB Police.
ACB Police, Panch and informant Firoz made collusion in this case.
DGP Mr. Malhotrasaheb is not a competent authority to remove me
from the service. Maharashtra Government is competent authority
to remove me from the service. Sanction given by him is without
perusal of the papers. Mr. Gokhale has also issued sanction order
without perusal of relevant papers only on the basis of draft
sanction order submitted by ACB Office."
19. The defence of the accused is of denial. The Station diary entry
(Exh.29/2) mentioned that on 7 th February 2001 at 13:30 hours in the
afternoon, the accused upon information left Vashi Railway Police Station
along with PSI Shri. Pardesh (PW-7) and his staff to search some lost pages
of the 'Holy Guru Granth Sahib' near Vashi Creek where some Sikh
followers had gathered and returned in the evening at 20:00 hours vide
entry No. 26. The accused thereby denies that he had visited the house of
complainant at 06:00 p.m. on 7 th February 2001. It is also case of the
accused that in the absence of any such prior demand and appointment, the
question of calling the complainant at Vashi Railway Police Station on 10 th
February 2001 at 19:50 hours does not arise.
20. The station diary entries referred to hereinabove creates doubt about
the prosecution case spelt out the evidence from complainant that the
appellant had visited his house on 7th February 2001 for making inquiry
about Munna and there was demand of bribe amount.
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21. PW-7 Mr. Pardeshi has stated that the incidents which are not
occurred are noted in the station diary. His attention was drawn to station
diary entry Nos. 17, 18 and 19 dated 6 th February 2001. As per the station
diary entry Nos. 17, 18 and 19 dated 6 th February 2001 the accused No.1
was present in Vashi Railway Police Station during the period of 10:15 am
to 12:20 noon. The attention of witness is drawn to station diary entry
No.21 dated 7th February 2001. He admitted that as per the said entry at
about 01:45 pm the witness, accused No.1 and five constables were gone to
search the pages of Guru Granth Sahib as mentioned in the entry No.26
dated 7th February 2001 and there is a reference of entry No.21. The
witness also admitted that they all returned on the same day at 08:00 p.m..
On 8th February 2001, the witness, accused No.1 and other staff had gone to
search the aforesaid papers in three groups to the area in between Vashi to
Vashi Creek and entry in that regard is taken at serial No. 17 in station diary
dated 8th February 2001. This admission and documentary evidence speaks
volumes about the version of complainant.
22. PW-1 has stated that on 6th February 2001, he was present in the
house at 10:30 am. Five to six persons entered in his house. They
represented themselves as Police attached to Vashi Railway Police Station.
One of them gave his name Mr.Jadhav. He has never seen him earlier. Thus,
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the version of PW-1 that the accused visited his house at 10:30 am on 6 th
February 2001 is doubtful. Documentary evidence Exh.29/1 shows that the
accused was at Vashi Railway Police Station at 10:30 am on 6 th February
2001.
23. PW-1 has deposed that the accused had demanded Rs.25,000/- while
he was in the house of PW-1 for releasing his brother and he expressed
inability to make the payment and agreed to pay Rs.5,000/- after two days
and balance amount of Rs.20,000/- after selling his room. According to
PW-1 accused had agreed for the same and directed him to attend Vashi
Railway Police Station on 10th February 2001 with cash of Rs.10,000/- in
the evening at 06:00 p.m. Documentary evidence (Exh.29/1 and 29/2) run
counter to the evidence of the said witness which indicate that the accused
could not have visited the house of complainant and the question of making
any demand does not arise. The trial Court however drawn adverse
inference of imagination that the house is situated about 5 to 6 km. and it
was possible for the accused to visit the house of complainant. There was
no reason to draw such adverse inference. The version of the complainant
was not corroborated by any other witnesses and therefore, accepting his
version as gospel truth was not warranted.
24. PW-1 has deposed that while he was in ACB Office he saw one
female, who was attended by another officer. He learnt her name as
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Ruksana Banu. In the cross-examination, he stated that it is not true to say
that he was not knowing Ruksana prior to the incident as she was residing
in the same locality and accused had also taken away brother of husband
and demanded bribe for releasing him. It is true to say that Ruksana visited
ACB office for lodging his report along with him. He had not stated that
Ruksana Banu visited ACB Office for lodging her report. PW-8 has
contradicted himself and PW-1 has deposed during his cross-examination
that it was not revealed during investigation that complainant was already
having acquaintance with Ruksana Banu. The complainant has stated in his
statement that he knows Ruksana Bano because she resides in the area
where he resides. PW-1 has deposed that he saw his brother Munna and
Nabi Qureshi in the adjoining room. They were handcuffed. Inspector
Mausamkar was present. Both of them replied that they were in custody
from 7th February 2001 and were not produced in Court. Police Hawaldar
More was present along with Munna and Nabi Qureshi. PW-8 stated that in
the writers section they found two persons having joint handcuff. PHC
More was guarding him. When PI Mausamkar asked the names of said two
persons, they told their names as Munna Dilawar Khan and Nabi Ahmad
Qureshi. They told that PI Jadhav and police staff brought them on 7 th
February 2001 and since then they were not produced before Court.
Munna Dilawar Khan is the brother of informant in C.R. No. 7 of 2001 and
Nabi Ahmad is the brother-in-law of informant Ruksana Bano in C.R. No. 8
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of 2001. During examination-in-chief, PW-2 has deposed that witness and
Smt. Mulik were taken by ACB officers in the adjoining room at police
station. They noticed two persons being handcuffed. They were disclosed
their names as Munaf and Nabi Qureshi. He do not remember who
inquired about their names. Though both of them were handcuffed in one
handcuff. PW-2 has not deposed that both of them disclosed that they were
brought by the accused. PW-3 and PW-4 have not corroborated the
prosecution witnesses PW-1, PW-2 and PW-8 on the point that at the time of
trap on 10th February 2001. PW-3 and Nabi were handcuffed in one
handcuff or they had disclosed any information when they were inquired
with by any of the officers from ACB, who came along with the
complainant, PW-1 and Panch witnesses. PW-4 has stated that he had not
maintained diary to show that he was called at Vashi Railway Police Station.
He has also not maintained any diary to show that he was watching accused
at Vashi Railway Police Station. He has no personal knowledge exactly in
which crime Munna and Nabi were arrested. Although PW-3 Munna has
deposed that during his examination in chief, four persons came to his
house on 7th February 2001. They arrested him and took at the house of
Mr.Nabi. On 8th February 2001, Ruksanabhabhi came to Vashi Railway
Police Station but police did not allow her to meet the accused. Police
released him in the night of 10th and 11th February 2001. This evidence is
not corroborated by PW-1. Station diary entry is contrary to the evidence.
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25. The prosecution has failed to prove the charge that the accused had
detained PW-3 Munna for extracting bribe amount of Rs.25,000/- from the
complainant Firoz Ahmed Dilawar Khan by showing favour to him for not
arresting his brother PW-3 Munna in theft case which was already
registered in Vashi Railway Police Station vide C.R. No. 07 of 2001.
26. The defence has relied upon the notification dated 2nd June 1979
issued by Government of Maharashtra under Section 197(3) of Cr.P.C.
showing that provisions of 197(2) shall apply to all police officers as
defined in the Bombay Police Act, 1951. It is mandatory that prior sanction
to prosecute accused is required to be before taking cognizance and issuing
process if the alleged act is done in the discharge of official duties. PW-8 has
stated that Sanction from the Government is obtained under Section 197 of
Cr.P.C. to prosecute the accused under IPC Section. Hence, sanction was
accorded by PW-6 to prosecute the accused under Section 343 of IPC.
However, defence has challenged the sanction on the ground that it has
been accorded mechanically without perusing papers of investigation and
without application of mind. The sanction order Exh. 42 referred to name
of accused No.2 Somnath Bangar, who died on 5 th August 2002. Sanction
was accorded on 21st November 2002 in respect of deceased/accused who
had expired before according of the sanction to prosecute him. Letter at
Exh. 40 and 41 pertain to ACB in which charge-sheet is filed vide Special
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Case No. 42 of 2002. The prosecution has not brought on record documents
to show that the sanctioning authority was asked to accord sanction in C.R.
No. 7 of 2001 of ACB in which Charge-sheet is filed vide Special Case No.
34 of 2002. PW-2 has admitted that sanction was accorded by relying upon
two letters (Exh.40 and 41) which were not connected with the present
case. He also received draft sanction order. Notesheet is not produced by
PW-6. There is nothing on record to show that papers of investigation
alongwith draft sanction order and covering letter were sent to the
Sanctioning Authority in the present case and that the PW-6 has perused
the same before according sanction. Sanction was accorded by Government
of Maharashtra. There is nothing on record to show that notesheet was
submitted to the Deputy Chief Minister or Chief Minister. Sanction order
therefore, suffers from infirmity.
27. Sanction accorded by PW-5 Mr. Subhashchandra Malhotra was
challenged by defence on the ground that it was granted mechanically
without perusing the papers of investigation and application of mind. PW-5
has stated that he received papers of investigation and draft sanction order
alongwith letter Exh.32, diary No.21, diary No.26 were filed. PW-5
admitted that except few changes in the draft sanction order, he approved
draft sanction order. Apparently, the sanctioning authority has not
considered the station diary entry No.21 (Exh.29/2) and station diary entry
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No.26 (Exh.29/3) of Vashi Railway Police Station. The said entry shows
that on 7th February 2001 at about 13:30 hours the accused had upon
information, left the Vashi Railway Police Station along with staff to search
of lost pages of the Holy Guru Granth Sahib. They returned in the evening
at 20:00 hours vide entry No.26. PW-5 has admitted that in the sanction
order and draft sanction order, the place and timing 06:00 pm in respect of
allegations are not mentioned though it is mentioned in the FIR. PW-5 has
deposed that along with letter Exh.32 he received complaint, panchnama,
statement of accused, supplementary statement of informant, statement of
PW-7 and statement of panch witness. Apparently, PW-5 has not perused
the FIR otherwise he would have mentioned in the sanction order (Exh.34)
that 'for releasing him' and may not have mentioned in the sanction order
in the matter of releasing him. Except for a few changes PW-5 has
approved draft sanction order and accorded sanction. Both the documents
are identical. Apparently, the sanctioning authority had adopted the draft
sanction order.
28. PW-5 has deposed that Police Inspector of A Class and B Class are
gazetted Officers. The Maharashtra State Government had issued G.R.
dated 3rd April 2000. It was marked at Exh.37 which relates to grant of
sanction under Section 19 of the Prevention of Corruption Act, 1988 to
prosecute class A and B Gazetted Officers, The submission of the defence is
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that the Government is the only Competent Authority to prosecute P.I.
Jadhav who is the Gazetted Officer and in view of the fact that sanction
order has been accorded on 25th October 2001 after G.R. was issued on 3rd
April 2000. PW-5 is the competent authority to accord the sanction. PW-5
has admitted that Police Inspector are class A and Class B Gazetted Officer.
The accused is the Police Inspector. Hence, the sanctioning authority was
not competent to accord sanction. The trial Court has analyzed Section 19
of the P.C. Act and held that there is nothing on record to show that
prejudice is caused to the accused due to grant of sanction by Director
General of Police is valid. The Court also held that sanction under Section
197 of Cr.P.C. to prosecute the accused under Section 343 is not necessary.
The reasons assigned by the trial Court are erroneous. The sanction order
reflects non-application of mind while granting sanction under section 19 of
the P.C. Act.
29. Considering the nature of infirmities in the evidence and doubtful
version of witnesses, the accused is entitled for benefit of doubt and hence,
conviction is required to be set aside.
ORDER
(i) Criminal Appeal No. 458 of 2007 is allowed.
(ii) The impugned Judgment and Order dated 24 th April 2007 passed by
learned Special Judge (under Prevention of Corruption Act, 1988) and
DAE Appeal-458-2007.doc
Additional Sessions Judge, Greater Bombay in Special Case No. 34 of 2002
convicting the Appellant for the offence punishable under Section 343 of
Indian Penal Code, and Sections 7, 13(1)(d) read with 13(2) of Prevention
of Corruption Act, 1988 is set aside and the appellant is acquitted of all the
charges.
(iii) Bail bond stands cancelled.
(iv) Criminal Appeal stands disposed of accordingly.
(PRAKASH D. NAIK, J.)
