Bombay High Court

The State Of Maharashtra vs Vithal Sajan Ahire on 31 January, 2024

2024:BHC-AUG:2042


                                                        {1}        CRI APPEAL 568 OF 2002


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                                     CRIMINAL APPEAL NO. 568 OF 2002

                    The State Of Maharashtra
                    through Dy. S.P., Anti Corruption
                    Bureau, Jalgaon.                                   ....Appellant

                                 Versus

                    Vithal Sajan Ahire
                    Age: 45 years, Occu.: Service in
                    MSEB, r/o. Erandol, Dist.Jalgaon.                  .....Respondent
                                                                       (Ori. Accused)
                                                    .....
                    APP for Appellant : Mr.S.M.Ganachari
                    Advocate for Respondent : Mr. V.B.Patil
                                                    .....

                                                    CORAM : ABHAY S. WAGHWASE, J.

                                          RESERVED ON   :        19 JANUARY, 2024
                                          PRONOUNCED ON :        31 JANUARY, 2024

                    JUDGMENT :

1. This is an appeal on behalf of the State as it is aggrieved by the

judgment and order passed by the Special Judge and Additional

Sessions Judge, Jalgaon dated 02-07-2002 in Special Case No.9 of

1997, which was tried for commission of offence under Sections 7,

13(1)(d) read with Section 13(2) of the Prevention of Corruption Act

(for short "the PC Act").

2. Learned APP for Appellant State would submit that accused {2} CRI APPEAL 568 OF 2002

was working as Assistant Lineman in Maharashtra State Electricity

Board (MSEB). Complainant is an agriculturist. Accused had

demanded bribe under the garb of private fees to reconnect

disconnected electricity connection. Therefore, complainant has

approached Anti Corruption Bureau (ACB). Thereafter, trap was laid.

Demand was made and the learned trial Court has answered

this point in affirmative. Even acceptance is held by the learned trial

Judge to be proved and the said point is answered in affirmative.

However, according to him, for only want of sanction, learned trial

Court has acquitted accused. He submitted that grant of sanction

was only upon due satisfaction. Sanctioning authority himself has

stepped in the witness box, but the learned trial Court hold that there

was no authority with sanctioning authority to grant sanction. Infact,

there is documentary evidence regarding delegation to grant

sanction, but the same has not been considered by the learned trial

Judge and therefore, for all above reasons, he prays to allow the

appeal.

3. In answer to above, learned Counsel for the respondent would

submit that case was not proved beyond reasonable doubt. That for

establishing the charge, apart from proving demand and acceptance,

it is in incumbent upon the prosecution to also prove that sanction to {3} CRI APPEAL 568 OF 2002

prosecute was in accordance with law. He pointed out that

sanctioning authority was holding additional charge and not full-

fledge charge to accord sanction. Learned Counsel would submit

that in the present matter, Deputy Executive Engineer was holding

charge of Executive Engineer and he exercised powers, which are

bestowed on superior authority i.e. Executive Engineer. Therefore,

there is defect in the prosecution and hence, learned trial Court has

rightly acquitted the appellant. According to him, there is no merit in

the case and so he prays not to disturb findings of the learned trial

Court.

4. In the instant appeal, there is challenge to the impugned

judgment passed by the learned Special Judge and Additional

Sessions Judge acquitting accused from charges under Sections 7,

13(1)(d) r/w 13(2) of the the PC Act.

On going through the impugned judgment, as pointed out by

the learned APP, it is emerging that learned trial Judge has answered

point nos.1 and 2 in affirmative thereby holding that respondent

herein, who was Assistant Lineman, had demanded illegal

gratification of Rs.100/- which was other than legal remuneration

and he has accepted the said amount. However, after noting above

two points in affirmative, learned trial Court acquitted accused by {4} CRI APPEAL 568 OF 2002

answering point no.3 in negative i.e. prosecution failing to establish

that there was valid sanction for prosecuting appellant accused.

Precisely said acquittal is now assailed by instant appeal. Though

there is no serious contest about findings to point nos.1 and 2, as this

Court is testing the impugned judgment by invoking Section 374 of

the Cr.P.C., it is expected of this Court to even deal with the above

said points to ascertain whether the conclusion reached at is correct

or not.

5. The sum and substance of evidence of PW1 Dattatraya Sidappa

Hatki, sanctioning authority, which is at exh.8, is that he seems to be

Deputy Executive Engineer and according to him, he was holding

additional charge of the post of the Executive Engineer and was thus

appointing and removing authority of class-IV servants. According to

him, accused, who is their employee, had demanded bribe and

accepted the same and was caught by the Anti Corruption Bureau

(ACB) and that he has gone through the papers submitted by the

ACB and he has accorded sanction vide exh.9.

6. PW2 Arun Bandu Patil is the complainant and an agriculturist,

whose electricity connection was disconnected on account of default

and therefore, he came in contact of accused Lineman for {5} CRI APPEAL 568 OF 2002

reconnection of the electricity connection. His evidence is at exh.10

wherein he deposed that he was ready to pay the arrears to reconnect

the disconnected connection, but according to him, accused persons

namely Vithal Ahire and Yuvraj Patil put up a demand of Rs.100/- as

private fees to do the needful and therefore, he lodged complaint in

ACB and on its directions, trap was laid and thereafter, accused was

apprehended while accepting tainted currency notes. He has

narrated the entire episode of trap till apprehension of accused and

lodgement of complaint.

7. PW3 Ramchandra Manik Nile, who has acted as shadow

pancha, has also deposed about being called and apprised about

demand made by accused and in his presence, complaint being

lodged by PW2 Arun in the office of ACB. He deposed that currency

notes, which were tainted and were supposed to be handed over to

the accused on demand, were handed over to accused. He stated

about pre-trap panchanama being drawn and thereafter they

proceeding towards the field whereas ACB staff waiting in lane to

nab the accused. Even he deposed that accused approached

complainant and questioned whether he has brought the amount and

on answer in affirmative, complainant took out the amount from his

pocket and accused accepted the same and kept in his left side pocket {6} CRI APPEAL 568 OF 2002

and after signal, ACB Officers apprehended accused and on being

subjected to ultraviolet rays, the currency note, which was tainted

was found in possession of accused and therefore, post-trap

panchanama vide exh.23 was drawn.

8. PW4 Kalidas Shankarrao Suryawasnshi is the Investigating

Officer, who deposed about complainant approaching him, lodging

complaint, shadow pancha being called, trap being laid, accused

being apprehended and on investigation accused being

chargesheeted.

9. On going through the evidence of PW2 Arun, complainant and

PW3 Ramchandra, shadow pancha, more particularly, the cross-

examination faced by them, it is evident that their evidence as

regards demand, acceptance, apprehension has remained unshaken.

Both the witnesses have stood their ground inspite of being subjected

to extensive cross. Nothing adverse has been brought against them as

regards to their testimonies are concerned, which would favour

defence and render prosecution evidence doubtful. Consequently, on

careful scanning and re-appreciation of evidence, this Court is of the

firm opinion that it is established that complainant was an

agriculturist and his electricity connection was disconnected on {7} CRI APPEAL 568 OF 2002

account of arrears and when he approached respondent accused,

who was Assistant Lineman, for reconnection, Rs.100/- were

demanded by way of of private fees. Such demand was reported to

ACB by PW2 Arun by lodging complaint and resulting in ACB trap.

PW3 Ramchandra was used as a pancha. On relevant day, it is

demonstrated that complainant carried tainted currency, which was

to be paid on demand and accused respondent demanded the money,

which was illegal gratification and it was on such demand paid by

complainant and accused was thereafter apprehended. The above

discussed evidence clearly shows that prosecution has proved

demand as well as acceptance.

10. Now, crucial question which arises for consideration in appeal

is whether sanction to prosecute the respondent accorded by PW1

Hatki is valid and meets legal requirements so as to hold sanction of

prosecution to be perfect and valid. The bone of contention is the

validity of sanction and is contested by laying stress here in the

appeal. Learned trial Court has acquitted accused holding that

sanction was not valid and hence, appeal by State. Therefore,

evidence of PW1 Hatki is required to be minutely and scrupulously

examined.

{8} CRI APPEAL 568 OF 2002

11. PW1 Dattatraya Sidappa Hatki deposed that in 1997 he was

working as Deputy Executive Engineer at Dhara in MSEB and he was

holding additional charge of the post of Executive Engineer, MSEB.

He claimed to be appointing as well as removing authority and

further claimed that ACB submitted papers for sanction to prosecute

appellant, who was Assistant Lineman in the department. According

to him, he accorded sanction after going through the papers and on

getting convinced that there was a case to grant sanction for

prosecuting him.

Learned Advocate for respondent advanced argument that very

cross-examination of this witness has rendered his testimony

doubtful as regards to his competence to grant sanction. Resultantly,

the answers given by this witness while under cross-examination are

required to be dealt with. Admissions and answers, which are

emanating from his testimony are as under:

"He admitted that person holding substantive charge is

infact Executive Engineer and such authority is competent to

appoint and remove the employee of the post of Assistant

Lineman and is thereby competent to accord sanction. He

admits that at the time of incident, he was holding additional

charge and it was not substantive posting, but he was working {9} CRI APPEAL 568 OF 2002

as Deputy Executive Engineer. He further admitted that

particulars of documents are not referred by him in his sanction

order. He admitted that there is prescribed proforma for

sanction order. He admitted that he gave dictation on the line

of prescribed proforma and further candidly admitted that he

had not discussed with the Officers of ACB. He further candidly

answered that he has accorded sanction for attempt only. He

admitted that there are interpolations and additions in the

sanction order, which are not indulged by him. He admitted

regarding being unaware of the provisions of Section 7 and 13

of the PC Act as well as unaware of Section19 of the PC Act.

On re-examination by learned APP, he answered that he

had granted sanction under the powers delegated in the

capacity of Executive Engineer by virtue of Resolution dated

30-07-1986.

Again on cross-examination by accused, he answered that

in absence of Executive Engineer, the matter is referred to the

Superintendent Engineer for granting sanction to prosecute

employee."

12. Thus, taking into account above discussed substantive evidence {10} CRI APPEAL 568 OF 2002

of PW1 Hatki, it is clearly emerging that firstly he was Deputy

Executive Engineer, whereas an authority to grant sanction as well as

remove employee of cadre of accused was Executive Engineer.

Therefore, on the date of sanction, PW1 Hatki was not Executive

Engineer. Moreover, he admitted that he was holding additional

charge. It is common knowledge that additional charge is meant

only for preventing hurdles in routine administrative work. While

passing orders or granting sanction to prosecute, only Executive

Engineer is held competent. Resultantly, it is doubtful whether PW1

Hatki was competent at all to accord sanction on that date. Moreover,

considering the answers and admissions given in cross-examination

that he has not discussed the nature and particulars of documents,

which are forwarded by ACB, it is doubtful whether there is proper

application of mind, which is expected from sanctioning authority.

Once it is shown that there is no proper application of mind by

sanctioning authority, it is fairly settled that the sanction cannot be

sustained or held to be valid in the eyes of law. Law to this extent

has been discussed in the ruling of State of Maharashtra Through

C.B.I. v. Mahesh G. Jain, 2014 ALL SCR 177, wherein the Hon'ble

Apex Court has laid down principles as regards to grant of sanction

and the same are reproduced as under:

{11} CRI APPEAL 568 OF 2002

"(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.

(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and after consideration of the circumstances, has granted sanction for prosecution.

(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.

(d) Grant of sanction is only on administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.

(e) The adequacy of material placed before the sanctioning authority cannot be gone into by the Court as it does not sit in appeal over the sanction order.

(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.

                                       {12}          CRI APPEAL 568 OF 2002




(g)    The order of sanction is pre-requisite as it is intended to

provide a safeguard to public servant against frivolous and vexatious

litigants, but simultaneously an order of sanction should not be

construed in a pedantic manner and there should not be hyper

technical approach to test its validity."

Similar legal position is reiterated in the case of State of

Karnataka v. Ameerjan (2007) 11 SCC 273 and CBI v. Ashok Kumar

Aggarwal (2014) 14 SCC 295.

13. Likewise, the Hon'ble Apex Court in the case of Mansukhlal

Vithaldas Chauhan v. State of Gujarat, (1997) 7 SCC 622 had lucidly

and succinctly dealt with the issue of validity of sanction and

observation of the Hon'ble Apex Court in paragraph no.19, which are

relevant, are reproduced hereunder for ready reference.

"19. Since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or {13} CRI APPEAL 568 OF 2002

the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."

CONCLUSION

14. Keeping above legal requirements in mind and on visiting

evidence of PW1 Hatki, more particularly, cross-examination, it is

emerging that he has not dealt with all the documents placed before

him and has moreover, adopted proforma, which was supplied to

him. Such answers clearly show that there is no proper appreciation

of required material before according sanction. As discussed above,

it is also doubtful that by virtue of holding subordinate post of

Executive Engineer and further holding some additional charge, PW1

Hatki was at all competent or authorized to grant sanction. Section

19 of the PC Act clearly comes into play. Its requirements not being

met, even this Court is of the firm opinion that prosecution, for want