Bombay High Court
Devidas S/O Jagannath Joshi vs State Of Mah. Thr. Dy.S.P. A.C.B. ... on 20 September, 2024
2024:BHC-NAG:10572
Judgment
291 apeal451.09
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.451 OF 2009
Devidas s/o Jagannath Joshi,
aged about 66 years,
r/o plot No.145/146, Hill Top,
Ambazari, Nagpur. ..... Appellant.
:: V E R S U S ::
State of Maharashtra,
through Dy. S.P. ACB Sleuth,
Nagpur. ..... Respondent.
================================
Shri S.A.Brahme, Counsel for the Appellant.
Shri K.R.Lule, Additional Public Prosecutor for the
Respondent.
================================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 26/08/2024
PRONOUNCED ON : 20/09/2024
JUDGMENT
1. By this appeal, the appellant (the accused) has
challenged judgment and order dated 4.9.2009 passed
by learned Judge, Special Court (ACB), Nagpur (learned
Judge of the Special Court) in Special Case No.7/2002.
2. By the said judgment impugned, the accused is
convicted for offence punishable under Section 7 of the
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Prevention of Corruption Act, 1988 (the said Act) and
sentenced to undergo rigorous imprisonment for three
years and to pay fine Rs.10,000/-, in default, to undergo
simple imprisonment for three months.
He is further convicted for offence punishable
under Section 13(1)(d) read with 13(2) of the said Act
and sentenced to undergo rigorous imprisonment for
three years and to pay fine Rs.10,000/-, in default, to
undergo simple imprisonment for three months.
Learned Judge of the Special Court directed that
all sentences shall run concurrently.
3. Brief facts of the prosecution case are as under:
The accused was working as Sectional
Engineer/Sub Divisional Officer in Minor Irrigation
Department. In the year 2000, Suresh Ramteke (the
complainant) was also working as Sectional Engineer in
the said department and posted at Kuhi. During the
period from 1986 to 2000, he was Incharge of the
Section of village Mansar. The accused was deputed on
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transfer to the post of the Deputy Engineer in the Minor
Irrigation Sub Division. In the month of June 2000, the
complainant was transferred from Ramtek Sub Division
to Kuhi Sub Division. On 29.8.2000, his associate
Rameshkumar Gupta visited the complainant and gave a
message that he along with the complainant were called
by the accused at his residence at Nagpur. They visited
the accused at his residence. The accused informed
them that while discharging official work at Ramtek, they
committed various irregularities and misappropriated
huge amount and, therefore, an enquiry would be
initiated against them. As per allegations, the accused
demanded Rs.1,50,000/- from each of them for stalling
the enquiry and extending his cooperation in favour of
them. The complainant and Rameshkumar Gupta
showed their inability to pay the amount on which the
accused threatened them that if they do not pay the
amount, they would meet consequences of suspension
or dismissal from services. The complainant, therefore,
agreed to give gratification amount. On 8.9.2000, the
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accused made a telephonic call to the complainant and
called him at his residence. He shown the complainant a
photocopy of a complaint filed by one Kothekar on
6.9.2000 regarding official dereliction in duty. The
Nagpur Zilla Parishad had also established one enquiry.
The accused asked the complainant to pay the amount
within 15-20-days. On 29.9.2000, again the complainant
received a phone call of the accused who enquired about
the amount. On which, the complainant and
Rameshkumar Gupta arranged cash Rs.3.00 lacs.
However, as the complainant and Rameshkumar Gupta
were not intending to pay the amount, they approached
the office of the Anti Corruption Bureau at Nagpur (the
bureau) and lodged a complaint.
4. After receipt of the complaint, the trap officer
called two panchas. In presence of panchas, the
complainant narrated the entire episode and panchas
also verified the same from contents of the First
Information Report. The complainant produced currency
notes in six bundles and after explaining characteristics
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of phenolphthalein powder and sodium carbonate,
solution was applied on the said tainted notes. The
complainant and pancha No.1 were instructed. As per
instructions, the complainant was asked not to hand over
the amount unless it is demanded and pancha No.1 was
asked to remain along with the complainant and observe
events between the complainant and the accused for
which pancha No.1 gave his consent. Accordingly, pre-
trap panchanama was drawn.
5. After the pre-trap panchanama, the complainant
and pancha No.1 proceeded along with other raiding
party members towards the house of the accused. He
along with pancha visited the house of the accused and
during communication, the accused demanded the
amount and the complainant handed over the same.
The accused accepted the said amount and kept inside a
room and, thereafter, a predetermined signal was given.
The accused was caught and tainted notes were
recovered from his house. Accordingly, post-trap
panchanama was drawn. During the post trap
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panchanamas, hand wash of the accused as well as the
complainant was collected. The sanction was obtained
and after completion of investigation, chargesheet was
filed against the accused.
6. To substantiate contentions, the prosecution
examined in all five witnesses namely Suresh s/o
Ramdasji Ramteke vide Exhibit-20 (PW1), the
complainant; Rameshkumar Gupta vide Exhibit-43 (PW2),
Mahadev Rahane vide Exhibit-44 (PW3), the Shadow
Pancha; Nilima Chimote vide Exhibit-49 (PW4), the Clerk;
and Anil Bobade vide Exhibit-51 (PW5), the Trap Officer.
7. The accused also examined himself as DW1.
8. Besides the oral evidence, the prosecution further
relied upon complaint Exhibit-21, certificate of loan
obtained by the complainant Exhibit-22, letter by
Tulshiram Kothekar raising grievance against the
complainant Exhibit-23, seizure memo Exhibit-25, letter
to complainant to submit Audit Statement Exhibit-27,
letter to Kothekar who made the complaint against the
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complainant Exhibit-28, pre-trap panchanama Exhibit-45,
post-trap panchanama Exhibit-46, seizure memo
Exhibits-54 and 55, map Exhibit-56, complaint Exhibit-
56, confidential letter to the complainant and
Rameshkumar Gupta Exhibit-58.
9. After considering the evidence adduced during the
trial, learned Judge of the Special Court held that the
sanction accorded by the prosecution is a valid sanction.
The evidence of the complainant and Rameshkumar
Gupta sufficiently shows involvement of the accused in
accepting remuneration otherwise than his salary and
thereby committed the offence and, therefore, he is
convicted.
10. Being aggrieved and dissatisfied with the
judgment impugned, the appeal is preferred mainly on
grounds that the trial conducted before learned Judge of
the Special court is not a fair trial. No opportunity is
granted to the accused to engage a counsel of his choice
and without an opportunity of hearing, the accused was
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convicted. The accused was not having any legal
assistance during the trial and, therefore, the trial
conducted is against the principles of natural justice. As
such, the judgment impugned deserves to be quashed
and set aside. It is further submitted that the sanction
was not proved by the prosecution by examining
Sanctioning Authority Mrs.Madhuri Talasikar. Thus, the
entire evidence on record sufficiently shows that in
absence of opportunity, the entire judgment impugned
deserves to be quashed and set aside.
11. Heard learned counsel Shri S.A.Bramhe for the
accused and learned Additional Public Prosecutor Shri
K.R.Lule for the State.
12. Learned counsel for the accused submitted that
though the accused engaged a counsel to conduct the
trial, his counsel did not turn up and the accused was
insisted to cross examine witnesses. It is well settled
that accused is to be treated as an innocent, till guilt is
proved. Perusal of the evidence shows that the accused,
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who is not law graduate or having thorough knowledge
of law, was insisted to take cross examination and
thereby prejudice is caused to the accused. There was
absolutely no fair trial and sufficient opportunity was not
granted to the accused to prepare for his defence and
conduct the trial. The sanction was also not proved as
Sanctioning Authority is not examined. The evidence of
the Clerk Nilima Chimote is only to extent that she
identified signature of the Sanctioning Authority. Thus,
contents of the sanction order are not proved. The
sanction order was executed to the extent of signature of
the accused. Thus, a fair opportunity was not granted,
which caused prejudice to the accused and, therefore,
the judgment impugned deserves to be set aside.
13. In support of his contentions, learned counsel for
the accused placed reliance on following decisions:
1. Mohd.Hussain alias Zulfikar Ali vs. State
(Government of NCT of Delhi)1;
2. Nasib Singh vs. State of Punjab and anr2;
1 (2012)2 SCC 584
2 (2022)2 SCC 89
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3. Ajay Kumar Ghoshal and ors vs. State of
Bihar and anr3, and
4. Criminal Appeal No.424/2016 (Sanjay s/o
Wasudeo Chinchmalatpure vs. State of
Maharashtra, through Anti Corruption
Bureau, Nagpur) decided by this court on
5.7.2024.
14. Per contra, learned Additional Public Prosecutor
for the State supported the judgment impugned and
submitted that learned Judge of the Special Court rightly
considered the issue of sanction and rightly observed the
evidence of Sanctioning Authority. The court shall
presume that such order was also placed before the
Honourable Chief Minister or the Deputy Chief Minister
and, thereafter, the sanction order was issued. The court
shall presume that rules of business were followed and
necessary permission of the Honourable Chief Minister or
the Deputy Chief Minister was obtained and, therefore,
the court shall presume that the sanction order was
passed in accordance with normal rules of business. The
demand and acceptance is also proved by the
3 (2017)12 SCC 699
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prosecution. In view of that, the appeal is devoid of
merits and liable to dismissed.
15. I have heard learned counsel for parties and
perused record.
16. Learned counsel for the accused raised an issue
that the sanction was not proved and contents of the
sanction order were also not proved. Thus, validity of
the sanction has been raised in the appeal.
17. Undisputedly, the sanction order was issued by
Mrs.Madhuri Talasikar, Deputy Secretary in Mantralaya
deputed during the period from 2001-2004. The said
Deputy Secretary was not examined by the prosecution.
One Nilima Chimote was examined whose evidence is
only to the extent that she was working as Clerk under
the said Deputy Secretary. She acquainted with her
signature and signature on the sanction order is of the
said Deputy Secretary. As far as non-examination of the
said Deputy Secretary is concerned, no plausible
explanation was put forth by the prosecution behind her
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non-examination. The contents of the sanction order
were also not proved by the prosecution.
18. Whether sanction is valid or not and when it can
be called as valid, the same is settled by various
decisions of the Honourable Apex Court as well as this
court.
19. The Honourable Apex in the case of Mohd.Iqbal
Ahmad vs. State of Andhra Pradesh4 has held that
what the Court has to see is whether or not the
sanctioning authority at the time of giving the sanction
was aware of the facts constituting the offence and
applied its mind for the same and any subsequent fact
coming into existence after the resolution had been
passed is wholly irrelevant. The grant of sanction is not
an idle formality or an acrimonious exercise but a solemn
and sacrosanct act which affords protection to
government servants against frivolous prosecutions and
must therefore be strictly complied with before any
4 1979 AIR 677
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prosecution can be launched against the public servant
concerned.
20. The Honourable Apex Court, in another decision,
in the case of CBI vs. Ashok Kumar Agrawal5, has
held that sanction lifts the bar for prosecution and,
therefore, it is not an acrimonious exercise but a solemn
and sacrosanct act which affords protection to the
government servant against frivolous prosecution. There
is an obligation on the sanctioning authority to discharge
its duty to give or withhold sanction only after having full
knowledge of the material facts of the case. The
prosecution must send the entire relevant record to the
sanctioning authority including the FIR, disclosure
statements, statements of witnesses, recovery memos,
draft charge sheet and all other relevant material. It has
been further held by the Honourable Apex Court that the
record so sent should also contain the
material/document, if any, which may tilt the balance in
favour of the accused and on the basis of which, the
5 2014 Cri.L.J.930
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291 apeal451.09
competent authority may refuse sanction. The authority
itself has to do complete and conscious scrutiny of the
whole record so produced by the prosecution
independently applying its mind and taking into
consideration all the relevant facts before grant of
sanction while discharging its duty to give or withhold
the sanction. The power to grant sanction is to be
exercised strictly keeping in mind the public interest and
the protection available to the accused against whom
the sanction is sought. The order of sanction should
make it evident that the authority had been aware of all
relevant facts/materials and had applied its mind to all
the relevant material. In every individual case, the
prosecution has to establish and satisfy the court by
leading evidence that the entire relevant facts had been
placed before the sanctioning authority and the authority
had applied its mind on the same and that the sanction
had been granted in accordance with law.
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21. The Honourable Apex Court, in the case of State
of Karnataka vs. Ameerjan6, held that it is true that an
order of sanction should not be construed in a pedantic
manner. But, it is also well settled that the purpose for
which an order of sanction is required to be passed
should always be borne in mind. Ordinarily, the
sanctioning authority is the best person to judge as to
whether the public servant concerned should receive the
protection under the Act by refusing to accord sanction
for his prosecution or not. For the aforementioned
purpose, indisputably, application of mind on the part of
the sanctioning authority is imperative. The order
granting sanction must be demonstrative of the fact that
there had been proper application of mind on the part of
the sanctioning authority.
22. Insofar as the sanction order is concerned, it is
mentioned in it that the Government of Maharashtra,
having fully examined material before it and considered
all facts and circumstances disclosed therein, it is
6 (2007)11 SCC 273
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satisfied that a prima facie case is made out against
accused and the accused should be prosecuted and the
sanction was accorded. Perusal of the sanction order
nowhere shows that on what basis the Sanctioning
Authority came to conclusion that the sanction has to be
accorded. The sanction order only shows that the
Government of Maharashtra applied its mind and
accorded the sanction. The sanction order discloses that
the material was examined by the Government of
Maharashtra for according the sanction and satisfaction
for according the sanction was also arrived by the
Government. The sanction order does not specifically
name any officer who had actually undertaken exercise
of examining the material and recording subjective
satisfaction in this regard on behalf of the Government of
Maharashtra. It is not known as to who applied mind and
by what process exactly an opinion was formed that a
prima facie case was made out for according the
sanction.
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23. Admittedly, grant of sanction is a serious exercise
of power by the competent authority. It has to be
apprised of all the relevant materials and on such
materials the authority has to take a conscious decision
as to whether the facts would show the commission of
the offence under the relevant provisions. No doubt,
elaborate discussion is not required, however, the
decision making on relevant materials should be
reflected in the order.
24. The observations of learned Judge of the Special
Court, that the accused being Class-I Officer is removable
by the Government of Maharashtra under a seal of the
Governor; whether prior consent of the Honourable Chief
Minister and the Honourable Deputy Chief Minister is
taken or not, cannot be questioned, and if the matter is
processed in accordance with rules of business, the court
shall presume that rules of business were followed, are
erroneous observations.
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25. It is well settled that sanction is to be accorded
after application of mind and in the present case, the
sanction order nowhere reflects who applied mind and
which documents are considered by the Sanctioning
Authority and on what basis the Sanctioning Authority
came to conclusion that the sanction is to be accorded to
launch prosecution against the accused. There is no
finding by learned Judge of the Special Court as to
validity of the sanction.
26. Besides the issue of sanction, to substantiate
allegations that the accused demanded the amount and
accepted the same, the prosecution placed reliance on
the evidence of complainant PW1 Suresh Ramteke; PW2
Rameshkumar Gupta, and Shadow Pancha PW3 Mahadev
Rahane.
27. The evidence of complainant PW1 Suresh Ramteke
shows that first demand was made to him by the
accused on 30.8.2000 at about 10 am when he had been
to the house of the accused and, thereafter, by
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telephonic communication, demands were made on
6.9.2000, 8.9.2000, and 29.9.2000 and, therefore, he
approached the office of the bureau on 30.9.2000. As
per his evidence, on the day of the trap, he and PW2
Rameshkumar Gupta reached the office of the bureau
and produced tainted notes. After completing formality
of pre-trap panchanama, amount was kept in one bag
and they were instructed to hand over the amount if the
demand was made. Accordingly, they both along with
panchas, approached the accused at his house. During
communication, the accused demanded the amount and
accepted the same. His evidence shows that while
communicating with the accused, he asked about
meeting scheduled at Ramtek. Thereafter, the accused
disclosed to him that he had issued notice to Shri
Kothekar, who made complaint against the complainant.
Thereafter, the accused went inside and brought some
papers and handed over the same to the complainant for
verification. The accused promised them that he would
show favour to them and demanded the amount.
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Accordingly, the amount was handed over, which was in
a bag. The accused accepted the said amount and kept
inside his house. Thereafter, the complainant demanded
the cotton bag from the accused on a pretext that it
belongs to somebody else. Thereafter, the accused
transferred the amount in a polythene bag and returned
the cotton bag. After accepting the amount, a pre-
determined signal was given to other raiding party
members. The trap officer came and arrested the
accused. From the house of the accused, the amount
was seized. The hand wash of the complainant was
collected.
28. Complainant PW1 Suresh Ramteke, during cross
examination, admitted that he was posted at Ramtek as
Sectional Engineer and at the relevant time, one
Assistant Engineer Shri S.V.Kale was his superior. It
further came in his evidence that he received letter from
the accused on 22.8.2000 whereby he was asked details
about expenditure etc. It further came in his evidence
that he has not furnished any details of advance received
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by him from his office nor furnished any completion
certificate of construction site as required by the
accused. He further admitted that he had received funds
in advance for construction works. He further admitted
that he has not visited the accused along with Shri
Rameshkumar Gupta.
29. Thus, an attempt was made as one Shri Kothekar
made a complaint against the complainant regarding
irregularities and illegalities committed by him while
carrying out construction work and misappropriation of
amount by using sub standard material, a notice was
issued to the complainant as well as Rameshkumar
Gupta to submit Audit Statement and action was
proposed against the complainant and Rameshkumar
Gupta and, therefore, the accused was implicated by
handing over the amount on pretext that certain amount
was lying with them under AEGS Scheme and they would
refund that amount to him along with papers.
Accordingly, the companion came with a bag containing
the cash and handed over the same. He accepted the
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amount under the impression that if amount remained to
be unpaid under the AEGS Scheme, he has to refund the
same along with papers.
It reveals from the cross examination that in view
of oral request of defence counsel, further cross
examination was deferred and, thereafter, advocate for
the accused did not turn up and the accused declined to
cross examine. The cross examination was closed and
the witness was discharged.
30. To substantiate allegations and to corroborate the
same, PW2 Rameshkumar Gupta was also examined. As
far as his evidence on aspect of demand and acceptance
is concerned, it shows that the same is consistent with
the evidence of complainant PW1 Suresh Ramteke that
the accused informed him to come along with the
complainant at his house on which the complainant and
Rameshkumar Gupta went at the house of the accused.
The accused repeated that they have carried out sub
standard work and an enquiry is likely to be initiated
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against them and demanded amount Rs.1,50,000/- from
each of them to avoid the action. Rameshkumar Gupta
has shown his inability to pay such amount, on which the
accused shown his anguish and asked the complainant
not to bring Rameshkumar Gupta along with him.
Thereafter, on 8.9.2000, the complainant informed him
that the accused called him at his residence.
Accordingly, they went at the residence of the accused.
The accused shown them complaint by Kothekar and
demanded Rs.1,50,000/- from each of them. On
29.9.2000 also, the complainant informed him that he
received call from the accused who demanded the
amount and called them on the next date with the
amount. The cross examination of this witness also
shows that the Chief Executive Officer of the Zilla
Parishad formed a fact finding committee as to
allegations of misappropriation of amount of Rs.7.00 lacs
to 70.00 lacs. He further admitted that he was
departmentally chargesheeted for recovery of
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Rs.1,63,000/- from him. The chargesheet was filed
against one Shri Mate for recovery of Rs.2,17,000/-.
Thus, the evidence of this witness also shows that
the demand was made from him for stalling the enquiry
which was likely to be initiated against him and the
complainant.
31. Document Exhibit-27 shows that a letter was
issued by the accused to complainant PW1 Suresh
Ramteke/PW2 Rameshkumar Gupta asking them to
submit Audit Statements of Advanced Amount taken for
construction of storage dam under Assured Employment
Guarantee Scheme and completion certificate of storage
dams. Document Exhibit-23 is the complaint filed by one
Tulsiram Kothekar alleging that complainant and PW2
Rameshkumar Gupta committed various illegalities and
irregularities while carrying out construction and
misappropriated the amount with the help of other
officials and requested for an action.
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32. It appears from the record that the accused was
not represented by his Advocate. Initially, he showed his
disinclination to cross examine complainant PW1 Suresh
Ramteke and, therefore, no cross order was passed. At
4:45 pm, the accused requested to permit him to cross
examine the said witness and accordingly, he was
permitted to cross examine. Thus, record shows that the
cross examination of the complainant was also
incomplete as Advocate for the accused failed to appear
and cross examine the witness. The accused was asked
to cross examine the witness, but he declined.
33. To corroborate the version of complainant PW1
Suresh Ramteke, the prosecution examined Shadow
Pancha PW3 Mahadev Rahane. His evidence shows that
his superior officer asked him to attend the office of the
bureau along with other pancha and, therefore, he was
present in the office of the bureau. The complaint of the
complainant was read over to him and, thereafter, the
officer applied solution to the currency which were
Rs.3.00 lacs in number. It was pretended that the
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complainant received injury and he was along with the
complainant to assist him. They approached the
accused at his house. Initially, the accused was not
present and it was informed that he would return after
half an hour. Thereafter, they again went at the house of
the accused. The accused was present at his house.
There was communication between the accused and the
complainant about official work. The accused asked the
complainant as to what happened about his work and
the complainant handed over bag of amount Rs.3.00 lacs
to the accused by disclosing that he arranged the
amount. The accused took the bag inside the house. On
demand by the complainant to return the cotton bag, the
entire amount was kept in a polythene bag by the
accused and, thereafter, the pancha gave a signal. On
receipt of the signal, the accused was caught. The hand
wash of the accused was collected. Accordingly, post-
trap panchanama was drawn. His evidence further
shows that during house search of the accused, some
amount was seized. This witness was also cross
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examined by the accused and during cross examination,
he admitted that when they visited the house of the
complainant, the work of painting and white wash at his
house was going on. Some of household articles were
kept in opposite flat. He further admitted that the
accused voluntarily informed that cash found in suit case
was in connection with the office work. At the relevant
time, PW2 Rameshkumar Gupta was not along with
them. He further stated that he is unable to recollect
whether tainted currency notes were stapled or wrapped
by the rubber band. This witness is also cross examined
by the accused. Thus, it reveals that consistently the
accused was not represented by any counsel. Initially,
though there was request for adjournment, the same
was not considered.
34. PW5 Anil Bobade is the Trap Officer, who narrated
about procedure carried out by him before and after the
trap. As far as his evidence is concerned, he is not
witness on demand and acceptance. His evidence is only
to the extent that the amount was recovered from the
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house of the accused. The note recorded by learned
Judge of the Special Court shows that Advocate for the
accused left the court as if he was refrained from
defending the accused.
During cross examination of the Trap Officer also,
it came on record that at the time of the raid, the
accused informed him that some of household articles
were kept by him in a flat opposite to his flat belonging
to one Pathak in which certain cash was lying. The
correctness of the said claim was verified and the said
amount was returned to the Minor Irrigation, Zilla
Parishad, Nagpur. From cross examination, it further
reveals that he did not enquire in respect of fact finding
committee report or correspondence regarding
misappropriation of amount in the Minor Irrigation. At
that time, he did not make any enquiry about insistence
given by the accused regarding fact finding committee
report. He is not aware whether official of the Minor
Irrigation Department, Zilla Parishad namely Shri Kale,
Shri Mate, and Shri Gupta were under suspension. He is
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not aware whether amount of Rs.10.00 lacs to 12.00 lacs
was pending against companions and Shri Mate and Shri
Rameshkumar Gupta under AEGS Scheme.
35. The defence of the accused is of total denial and
of false implication as he initiated the action against
complainant PW1 Suresh Ramteke and PW2
Rameshkumar Gupta. The accused entered into the
witness box and examined himself as defence witness
who testified that he took charge of the Sub Divisional
Officer in Minor Irrigation Department at Ramtek on
15.7.2000. One Shri Kale was working as the Sub
Divisional Engineer from whom he took the charge.
However, said Shri Kale has not given him charge in
writing and on 1.8.2000, he gave the charge. He
suspected about financial misappropriation and started
investigation. Clerk Sanghewar gave him a cash book of
AEGS in August 2000. On verification of the said cash
book, he found that amount Rs.12.00 lacs was
withdrawn, but the same was not showing in the cash
book as to whom it was given. Such advances were
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obtained by complainant PW1 Suresh Ramteke, PW2
Rameshkumar Gupta, Shri Mate, and Shri kale. The Chief
Officer of the Zilla Parishad directed him to pursue
recovery of the amount and, therefore, he issued notices
to the complainant, Rameshkumar Gupta, and Mate. He
even called the complainant and Rameshkumar Gupta to
hand over the record, estimates, agreements, and
accounts. He wrote them letter on 8.9.2000, but the
complainant and Rameshkumar Gupta had not submitted
documents and accounts. Shri Rameshkumar Gupta,
Shri Mate and Shri Kale were subsequently suspected.
They were also chargesheeted departmentally. As the
action was taken, the staff was dissatisfied with him.
Thereafter, the complainant and Rameshkumar Gupta
made him a phone call that certain amount unpaid under
AEGS Scheme was lying with them and they would
refund the said amount and came to his house and
handed over the said amount and he was caught.
During his cross examination, he admitted that one
G.K.Meshram was appointed as Enquiry Officer against
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the complainant and Rameshkumar Gupta. Said
Meshram gave exoneration report against the
complainant and Rameshkumar Gupta. He raised an
objection about finding of Shri Meshram. The work of
refund of cash under AEGS Scheme is official work. Thus,
the defence of the accused is that on the pretext of
handing over the amount pending in the office, the
complainant and Rameshkumar Gupta came to his house
and handed over the amount to him.
36. Perusal of the entire evidence reveals that the
accused was not represented by his Advocate. Initially,
he had engaged Advocate, who failed to appear for the
cross examination and, therefore, no cross order was
passed and the accused was insisted to cross examine
witnesses.
37. Learned counsel for the accused vehemently
submitted that an opportunity was not granted to the
accused to cross examine witnesses. As such, there was
no fair trial by the prosecution. He submitted that
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though power of the Appellate Court to order retrial is
also recognized in Section 386 of the Code of Criminal
Procedure, order of retrial of criminal cases is made in
exceptional cases and not unless the Appellate Court is
satisfied that the court trying proceeding had no
jurisdiction to try it or that the trial is vitiated by serious
illegalities or irregularities. He further submitted that
retrial can be ordered when the prosecutor or an accused
was for reasons beyond their control prevented from
leading or tendering evidence material to the charge and
that in the interest of justice, the court can direct as to
the retrial.
38. In support of his contentions, learned counsel for
the accused placed reliance on the decision of the
Honourable Apex Court in the case of Ajay Kumar
Ghoshal and ors supra, wherein the Honourable Apex
Court held that Section 386 of the Code of Criminal
Procedure deals with powers of Appellate Court. As per
Section 386 (b) of the Code, in an appeal from a
conviction, the Appellate Court may (i) reverse finding
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and sentence and acquit or discharge the accused, or
order him to be re-tried by a Court of competent
jurisdiction subordinate to such Appellate Court or
committed for trial, or (ii) alter the finding, maintaining
the sentence, or (iii) with or without altering the finding,
alter the nature or the extent, or the nature and extent,
of the sentence, but not so as to enhance the same.
39. Learned counsel for the accused further submitted
that "speedy trial" and "fair trial" to a person accused of
a crime are integral part of Article 21. There is, however,
qualitative difference between the right to speedy trial
and the accused's right of fair trial. Deprivation of such
right would cause prejudice to the accused in defending
himself. In support of his contentions, he placed reliance
on the decision of the Honourable Apex Court in the case
of Mohd.Hussain alias Zulfikar Ali supra wherein it
has been observed that the Constitution Bench of this
Court in Abdul Rehman Antulay and others vs.
R.S.Nayak and another7 considered right of an
7 (1992)1 SCC 225
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accused to speedy trial in light of Article 21 of the
Constitution and various provisions of the Code. The
Constitution Bench also extensively referred to the
earlier decisions of this Court in Hussainara Khatoon
and others (I) vs. Home Secretary, State of Bihar8,
Hussainara Khatoon and others (III) vs. Home
Secretary, State of Bihar, Patna9, Hussainara
Khatoon and others (IV) vs. Home Secretary, State
of Bihar, Patna10 and Raghubir Singh and others vs.
State of Bihar11 and noted that the provisions of the
Code are consistent with the constitutional guarantee of
speedy trial. In paragraph No.25, the Honourable Apex
Court observed that in Kartar Singh vs. State of
Punjab12 it was stated by this Court that no doubt liberty
of a citizen must be zealously safeguarded by the courts
but nonetheless the courts while dispensing justice
should keep in mind not only the liberty of the accused
but also the interest of the victim and their near and
8 (1980)1 SCC 81
9 (1980)1 SCC 93
10 (1980)1 SCC 98
11 (1986)4 SCC 481
12 (1994)3 SCC 569
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dear and above all the collective interest of the
community and the safety of the nation so that the
public may not lose faith in the system of judicial
administration and indulge in private retribution.
40. Learned counsel for the accused further relied
upon the decision of the Honourable Apex Court in the
case of Nasib Singh supra, wherein also while
considering scope of Section 386 of the Code, it has been
held that an order for retrial of a criminal case is made in
exceptional cases, and not unless the appellate court is
satisfied that the Court trying the proceeding had no
jurisdiction to try it and held that a retrial would not be
ordered unless the Appellate Court is satisfied that: (i)
the court trying the proceeding had no jurisdiction; (ii)
the trial was vitiated by serious illegalities and
irregularities or on account of a misconception of the
nature of the proceedings as a result of which no real
trial was conducted; or (iii) the prosecutor or an accused
was for reasons beyond their control prevented from
leading or tendering evidence material to the charge and
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that in the interest of justice, the Appellate Court
considers it appropriate to order a retrial.
Another feature which emerges from the above
decision is that an order of retrial wipes out from the
record the earlier proceeding and exposes the present
accused to another trial. It is for that reason that the
court has affirmed the principle that a retrial cannot be
ordered merely on the ground that the prosecution did
not produce proper evidence and did not know how to
prove their case.
41. Learned counsel for the accused submitted that
the Honourable Apex Court, in the case of
Mohd.Hussain alias Zulfikar Ali supra, observed that
accused did not have aid of counsel in any real sense,
although, he was as much entitled to such aid during
period of trial. The record indicates that the appointment
of learned counsel and her appearance during the last
stages of the trial was rather proforma than active
participation. It cannot seriously be doubted at this late
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291 apeal451.09
date that the right of cross-examination is included in the
right of an accused in a criminal case, to confront the
witnesses against him not only on facts but also to
discredit the witness by showing that his testimony-in-
chief was untrue.
Learned counsel for the accused submitted that
similar is the case in present matter. The counsel
engaged did not turn for cross examination despite the
accused shown his disinclination to cross examine
witnesses. He was asked to cross examine. The accused
is not legal expert and, therefore, he is not aware about
any pros and cons of the legal system.
42. Learned counsel for the accused submitted that
the Honourable Apex Court in the case of
Mohd.Hussain alias Zulfikar Ali supra referred the
decision of its two-Judge Bench in the case of Zahira
Habibulla H.Sheikh and another vs. State of
Gujarat and ors13 wherein it is observed that principles
of rule of law and due process are closely linked with
13 (2004)4 SCC 158
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291 apeal451.09
human rights protection. Such rights can be protected
effectively when a citizen has recourse to the Courts of
law. It has to be unmistakably understood that a trial
which is primarily aimed at ascertaining truth has to be
fair to all concerned. There can be no analytical, all
comprehensive or exhaustive definition of the concept of
a fair trial, and it may have to be determined in
seemingly infinite variety of actual situations with the
ultimate object in mind viz. whether something that was
done or said either before or at the trial deprived the
quality of fairness to a degree where a miscarriage of
justice has resulted. It will not be correct to say that it is
only the accused who must be fairly dealt with. That
would be turning Nelson's eyes to the needs of the
society at large and the victims or their family members
and relatives. Each one has an inbuilt right to be dealt
with fairly in a criminal trial. Denial of a fair trial is as
much injustice to the accused as is to the victim and the
society. Fair trial obviously would mean a trial before an
impartial Judge, a fair prosecutor and atmosphere of
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291 apeal451.09
judicial calm. Fair trial means a trial in which bias or
prejudice for or against the accused, the witnesses, or
the cause which is being tried is eliminated. If the
witnesses get threatened or are forced to give false
evidence that also would not result in a fair trial. The
failure to hear material witnesses is certainly denial of
fair trial.
43. Learned counsel for the accused submitted that in
the present case, counsel of the accused had not
appeared and the accused denied assistance by
engaging another counsel. Thus, prejudice is caused to
the accused and, therefore, it is a fit case wherein the
trial is to be remanded back by giving the accused
sufficient opportunity.
44. As observed by the Honourable Apex Court, every
person has a right to a fair trial by a court. The prompt
disposition of criminal cases is to be commended and
encouraged. But in reaching that result, the accused
charged with a serious offence must not be stripped of
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291 apeal451.09
his valuable right of a fair and impartial trial. To do that,
would be negation of concept of due process of law. The
basic principle is that the accused is presumed to be
innocent till his guilt is proved and, therefore, it is duty of
the court to give opportunity to have fair trial. The trial
person charged with crime to have services of a lawyer is
fundamental and essential to fair trial. Even, intelligent
and educated men, not trained in law, have more than
often no skill in the science of law if charged with crime.
Such an accused not only lacks both the skill and
knowledge adequately to prepare his defence. The
guidance of counsel is needed for fair trial.
45. Section 386 of the Code of Criminal Procedure,
deals with power of the appellate court in dealing with
appeals and power to direct retrials.
46. The Honourable Apex Court in the case Issac
alias Kishore vs. Ronald Cheriyan and ors 14 has
dealt with when powers can be exercised and observed
that under Section 386(a) and (b)(i), the power to direct
14 (2018)2 SCC 278
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291 apeal451.09
retrial has been conferred upon the Appellate Court when
it deals either with an appeal against judgment of
conviction or an appeal against acquittal (High Court).
There is a difference between the powers of an Appellate
Court under Clauses (a) and (b). Under Clause (b), the
Court is required to touch the finding and sentence, but
under Clause (a), the Court may reverse the order of
acquittal and direct that further enquiry be made or the
accused may be retried or may find him guilty and pass
sentence on him according to law. Normally, retrial
should not be ordered when there is some infirmity
rendering the trial defective. A retrial may be ordered
when the original trial has not been conducted
satisfactorily for particular reasons like, appropriate
charge not framed, evidence wrongly rejected which
could have been admitted or evidence admitted which
could have been rejected etc. Retrial cannot be ordered
when there is a mere irregularity or where it does not
cause any prejudice, the Appellate Court may not direct
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291 apeal451.09
retrial. The power to order retrial should be exercised
only in exceptional cases.
47. A three-Judge Bench decision of the Honourable
Apex Court in the case of Mohd. Hussain @ Julfikar Ali
vs. The State (Govt. of NCT) Delhi15, while dealing
with powers of the appellate court to order a retrial
under Section 386(b) of the Code of Criminal Procedure,
held that the appellate court hearing a criminal appeal
from a judgment of conviction has power to order the
retrial of the accused under Section 386 of the Code.
That is clear from the bare language of Section 386(b).
Though such power exists, it should not be exercised in a
routine manner. A de novo trial or retrial of the accused
should be ordered by the appellate court in exceptional
and rare cases and only when in the opinion of the
appellate court such course becomes indispensable to
avert failure of justice. Surely this power cannot be used
to allow the prosecution to improve upon its case or fill
up the lacuna. A retrial is not the second trial; it is
15 (2012)9 SCC 408 Delhi
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291 apeal451.09
continuation of the same trial and same prosecution. The
guiding factor for retrial must always be demand of
justice. Obviously, the exercise of power of retrial under
Section 386(b) of the Code, will depend on the facts and
circumstances of each case for which no straitjacket
formula can be formulated but the appeal court must
closely keep in view that while protecting the right of an
accused to fair trial and due process, the people who
seek protection of law do not lose hope in legal system
and the interests of the society are not altogether
overlooked.
48. The similar position was adopted by the
Honourable Apex Court in the case of Ajay Kumar
Ghoshal vs. State of Bihar16.
49. In view of the above discussion, as the accused
was deprived of opportunity of engaging counsel and
cross examine witnesses, a prejudice is caused to him.
The prejudice to an accused is to be considered with
reference to the above aspects. The plea of prejudice
16 (2017)12 SCC 699
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291 apeal451.09
has to be in relation to the trial. Once the accused has
established to show that there is a serious prejudice
caused to him, as he was not permitted to cross examine
witnesses by engaging a counsel and his right of a fair
trial has been defeated, he has made out a case to
remand for retrial.
50. As observed by the Honourable Apex Court, fair
trial is guaranteed to every citizen under Article 21 of the
Constitution of India and, therefore, there is a merit in
submissions of learned counsel for the accused that a
prejudice is caused to the accused and it is a fit case
wherein retrial can be ordered. Also, in the light of
observations of the Honourable Apex Court, prompt
disposition of criminal cases is to be commended.
However, at the same time, negation of concept of due
process of law, regardless of the merits of the appeal,
would cause prejudice to the accused. It is the duty of
the court to see that he is not denied right of a fair trial.
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51. In the present case, not only the accused denied
the assistance but also no legal aid was provided to him
after his counsel failed to appear and though appeared,
failed to cross examine witnesses.
52. In view of the above discussion, the judgment
impugned in the appeal cannot be sustained and it
requires to be reversed and the matter is to be
remanded back to learned Judge of the Special Court
with a direction to allow the accused to engage a counsel
of his choice or learned Judge of the Special Court to
provide an assistance by appointing an Advocate from
Legal Aid Panel before commencement of the trial, till its
conclusion. A direction is also required to be given to the
accused that he shall cooperate learned Judge of the
Special Court to dispose of the matter at the earliest and
shall not seek unnecessary adjournments for one or
other reasons.
53. In view of the above, the appeal deserves to be
allowed and the conviction and sentence imposed upon
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the accused deserve to be quashed set aside and the
matter requires to be remanded back for a fresh disposal
in accordance with law by giving an opportunity to the
accused to cross examine witnesses. Hence, following
order is passed:
ORDER
(1) The Criminal Appeal is allowed.
(2) The judgment and order dated 4.9.2009 passed by
learned Judge, Special Court (ACB), Nagpur in Special
Case No.7/2002 is hereby quashed and set aside.
(3) The matter is remanded back to learned Judge of the
Special Court for deciding the same afresh, in
accordance with law, after giving an opportunity to the
accused to cross examine witnesses already entered into
witness box.
(4) Learned Judge of the Special Court shall decide the
matter as expeditiously as possible and preferably within
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291 apeal451.09
a period of six months (6 Months) from the date of
receipt of the record of this matter.
(5) Learned Judge of the Special Court shall give an
opportunity to both parties to adduce evidence, if
required.
(6) Parties shall co-operate learned Judge of the Special
Court to finally dispose of the matter expeditiously.
The appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 23/09/2024 10:12:39
