In the present case, the sanctioning authority would be the Chief Minister. Upon perusal of the records, it is clear that the facts pertaining to the prosecution of the present appellant were never placed before the Chief Minister. PW-4 was working as Deputy Secretary, Home Department. He has specifically contended that he had obtained opinion from the Law and Judiciary Department. He had received approval from the Law & Judiciary Department and thereafter, he has independently examined and sanctioned the same. He has also admitted that he is not empowered to appoint or remove prosecutors, but is empowered only to sign on behalf of the Government. The admission itself is sufficient to hold that the sanction to prosecute the accused-appellant has not been accorded in accordance with law.
24. Section 19 of the Prevention of Corruption Act, 1988 reads thus:-
"19. Previous sanction necessary for prosecution - (1) No Court shall take cognizance of an offence punishable under Sections7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;(c) in the case of any other person, of the authority competent to remove him from his office.(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed."
In the present case, the compilation of the papers of investigation were never placed before the appropriate authority. Hence, this Court is of the opinion that it is a fundamental error that has been committed in this case and this principally on this ground that the order according sanction to prosecute will have to be struck down. The Court cannot be oblivious of the fact that a public servant by virtue of his functions is naturally exposed to attacks by the general public from various quarters and, therefore, the statute cast a duty upon the sanctioning authority to independently examine the material before granting sanction. The sanction which is accorded mechanically by an inappropriate authority would be no sanction in the eyes of law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 103 OF 2011
IN
ACB SPEIAL CASE NO. 93 OF 2004
Appellant
(Orig. accused No.1)
Respondents
Mr. Pradeep Purshottam Pimperkhede...
vs.
The State of Maharashtra
CORAM: SMT.SADHANA S.JADHAV,JJ.
DATE : 22nd November, 2013.
Citation; 2014 CRLJ(NOC)442 Bom,2014ALLMR(Cri)3064
The appellant herein challenges the
judgment and order dated
22.12.2010 passed by the learned Special Judge in Special Case No.93 of 2004
whereby the appellant is convicted for the offence punishable under Section 7 of
the Prevention of Corruption Act, 1988 and sentenced to suffer R.I. for three years
and to pay fine of Rs.5,000/- in default to suffer S.I. for six months. He is also
convicted for the offence punishable under Section 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, 1988 and is sentenced to suffer R.I.
for three years and to pay fine of Rs.5,000/- in default S.I. for six months.
2.
Such of the facts which are necessary for the decision of this Appeal,
are as follows :-
One Ashok Shankar Tiwari (hereinafter referred to as the
complainant) was working as a Travel Agent in Gallop Travels Agency . Prior to
working in Gallop Travels Agency, he was working for Madhura Travels. On
14.3.2000, the complainant was arrested by Flying Squad of Local Crime Branch
on the accusation that he had booked tickets for passengers without licence.
Crime No.3007/2007 was registered against the complainant under Section 143 of
Indian Railways Act. Charge-sheet was filed against him before 36 th Court,
Mumbai Central Railway, Mumbai.
The said case was registered as CC
No.162/P/2000. In the said case, th evidence of the Investigating Officer was to
be recorded on 25.3.2003.
3.
The appellant herein was representing the State as a prosecutor. On
25.3.2003, the Investigating Officer was absent. The next scheduled date was
27.3.2003. The accused was being represented by Advocate Shri Vora. It is
alleged that after the matter was adjourned to 27.3.2003, the present appellant had
asked the complainant to wait outside the Court. At about 2 p.m., the appellant
had allegedly discussed with the complainant the evidence against him. He had
asked the complainant to accompany him to his office. At about 2.15 p.m., the
appellant had allegedly demanded Rs.2,000/- as a gratification for favouring the
accused and also for receiving Rs.40,120/- from the Court. The said amount was
seized from the complainant in the course of investigation. The complainant had
expressed his inability to extend any gratification. The appellant had allegedly
threatened the complainant that he will make it sure that the accused would be
awarded maximum punishment. The complainant was scared and had given
Rs.300/- and the appellant had instructed him to give the balance amount of
4.
Rs.1700/- on 27.3.2003.
The complainant therefore decided to approach the Anti-Corruption
Bureau. Accordingly, he went to the A.C.B. Office on 26.3.2003 and had narrated
his complaint. The Investigating Officer had arranged for a trap. He followed the
procedure by calling upon the panchas. After having completed the formalities, it
was decided to lay a trap on 27.3.2003. According to the prosecution, the trap
was successful. It is alleged that the appellant had accepted the amount however,
he
had entrusted the same to the original accused No.2 (since deceased). The
amount was recovered from accused No.2 (since deceased). The Investigating
Officer lodged a report on the basis of which Crime No.20/2003 was registered
against the appellant and the deceased-accused for the offence punishable under
Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act,
1988 (hereinafter referred to as the said Act). The appellant was a public servant
and hence the Anti-Corruption Bureau had obtained sanction for prosecution and
thereafter, the charge-sheet was filed on 10.11.2008. The case was registered as
Special Case No.93/2004. Sanction was obtained on 15.6.2004. The prosecution
5.
3.
4.
5.
6.
P.W.1 – Ashok Shankar Tiwari, the complainant.
P.W.2 – Somnath Mandhaji Bhabad, Police constable attached to Mumbai
Central Railway Station.
P.W.3 - Namdeo Rabaji Gaikar, Panch No.1.
P.W.4 – Kalyanrao Govindrao Deshpande, the Sanctioning Authority.
P.W.5 – Ramakant Atmaram Yesaji, Panch No.2.
P.W.6 – Abhay Achyut Paradkar, the I.O.
1.
2.
examined following six witnesses to bring home the guilt of the accused :-
PW-1 Ashok Tiwari is the original complainant. He has deposed
before the Court that he was an accused in one case pending in the Railway Court
of Bombay Central. The case was scheduled on 25 th March, 2003. He had been
to the Court on 25th March 2003. The witness was not present and, therefore, the
matter was adjourned to 27.3.2003. On 25th March, the prosecutor representing
the State had asked him to wait in the Court. He has identified the appellant as
the prosecutor. At about 1.30 p.m., the accused demanded Rs.2,000/- from him in
connection with the case. The complainant gave him Rs.300/- behind the Court
Hall where the Advocates used to sit, It was agreed that the remainder would be
paid on 27th. On 26th March he went to the office of the Anti-Corruption Bureau
(ACB) and gave a report. The report is at Exhibit 19. The officers of the ACB
had recorded his statement. He was apprised of the procedure to be followed in
the trap case.
On 27th March, he went to the Court along with the raiding party.
6.
They went to the Bar Room. The accused was present in the Bar Room. Upon
seeing the complainant, the accused had allegedly asked him as to whether he had
brought the money. The accused demanded the said money. He accepted it with
his right hand and then handed over the money to Advocate Shinde and asked him
to keep the money with him. Thereafter, the complainant gave a signal and the
It is elicited in the cross-examination that the complainant is the
7.
accused-appellant was apprehended by the ACB.
original resident of Uttar Pradesh. He is educated upto 10 th Standard. He has
deposed before the Court that he has a licence of travel agent, that he was
remanded in police custody for one day. It is pertinent to note that the witness has
admitted in the cross-examination that the panch witnesses were present in the
office of the ACB when he had been for lodging the complaint. It is also admitted
that on 25th March the accused had not asked him to wait in the Court of
Metropolitan Magistrate at 10 a.m. and that the complainant had gone home
without meeting anybody after the matter was adjourned. The complainant has
specifically admitted that the accused had not demanded Rs.2,000/- from him in
connection with the case pending in the Metropolitan Magistrate Court. It is also
admitted that the accused had not accepted any amount outside the Advocates'
Bar Room as the complainant was not asked to wait there.
It is also pertinent to note that the complainant has specifically
8.
Bar Room.
admitted that on 27th March, 2003, at the time of raid, he had alone been to the
This would eliminate the presence of panchas along with the
complainant.
The Court had asked a specific question to the complainant in
respect of the demand of Rs.2,000/- on 25 th March 2003 and had drawn the
attention of the witness to the cross-examination wherein he had stated that he
had left the M.M. Court on 25 th March, 2003 without meeting anybody and the
same is admitted by the witness. By inference it can be said that on 25 th March,
2003, the appellant had not demanded any amount from the complainant as the
complainant had not met him.
9.
It is further elicited in the cross-examination that the complainant
was required to deposit an amount of Rs.40,120/- before the Railway Court on the
basis of the application filed by the accused. He was annoyed. In the further
cross-examination, the complainant has again changed his version and has stated
that on 25th March 2003, except the accused, he had not met anybody. He has
denied the suggestion that he had not met the accused on 25th March.
10.
PW-2 Somnath Bhabad was attached to Mumbai central Railway Police
Station. It was his duty to register remand and hawkers cases which are on the
daily board. He has deposed before the Court that on 27 th March 2003, he had
resumed his duties in the 36th Court at 9 a.m. He came to the Court Room at
about 10 a.m. He had kept his tiffin on the table of one of the Advocates in the
Bar Room. He then remembered that on the earlier day, he had forgotten to take
the tiffin box from the Advocates' Bar Room and, therefore, returned back to the
Bar Room. At that time, he saw the Police Prosecutor Mr. Pimparkhede and
Advocate Shinde sitting opposite each oter. Two persons had come to meet them.
They were standing near the table of Mr. Pimparkhede. One of the two persons
gave currency note of Rs.500 denomination to Pimparkhede, who in turn
entrusted the said amount with Advocate Shinde. Advocate Shinde had kept the
amount in the inner side of his coat and at that time, he heard Mr. Pimparkhede
telling Mr. Shinde to give him the amount afterwards. The other two persons left
the Bar Room and immediately came back accompanied by other 4 – 5 persons
who apprehended the accused. He then learnt that the other members were from
the Anti-Corruption Bureau. According to the witness, he was attached as an
assistant to Court Clerk for about 3 years. The lawyer of accused-appellant was
by the side of Advocates' Bar Room. He has further admitted that Advocate
Hasmukh Vora, Advocate Harish Vora and Advocate Shinde were regular
advocates in 36th Court, Bombay Central. There was a common table for all three
Advocates. He has admitted that he was in civil dress and on other earlier
occasion, he had been warned to attend the Court in a uniform. It is further
admitted that the then Commissioner of Police, Railway, Mumbai, had issued
orders to file charge-sheet after being scrutinized by Public Prosecutor. The
appellant had then subjected the witness to cross-examination which were treated
PW-3 Namdeo Gaikar,is a public servant who was attached to the Sales
11.
as irrelevant questions.
Tax, Bandra Office. On 26.3.2003, he was called in ACB Office to act as a
panch. Therefore, he was introduced to the complainant and had again called on
27th March 2003. After following the initial procedure, they had decided to
proceed for a raid.
The panchas were directed by ACP to accompany the
complainant. The witness therefore accompanied the complainant to the place
where the amount was to be paid. The witness was further directed to attentively
hear the conversation between the complainant and the accused. The raiding
party reached the court. The witness was with ACP Bhagat near the canteen. The
complainant and the two constables proceeded and went in one room. In fact, the
complainant went inside the room and the constables were waiting outside. After
some time, the complainant gave signal and therefore, the two constables standing
outside immediately rushed in and were followed by the members of the raiding
The witness has
party. They saw two persons sitting opposite each other.
voluntarily disclosed to the Court that prior to 27.3.2003, he had never seen the
accused. He has further stated that when he entered the room, he saw that right
hands of both the said persons were caught hold by two constables. The amount
of Rs.1700/- was recovered from the inner pocket of Mr. Shinde. They had
seized the amount. He has denied to have signed the pre-trap panchnama at
Ex.27 after reading the same and therefore it can be said that he has not proved
the contents of the panchnama. The witness has further admitted that he had not
asked the concerned officer as to what was written in the post-trap panchnama
and had blindly signed it. He was under the impression that the post trap
panchnama was recorded as per the events that have occurred and therefore, he
has signed it. He had signed on the document purportedly showing that the
statement was recorded. In fact, the statement was already prepared as per the
panchnama, and the events occurred on that day. Prior thereto, he has denied to
have visited the ticket counter near the Advocates’ Bar Room.
The witness had not accompanied the complainant to the Bar room
12.
and had entered the room only after the accused-appellant was apprehended. He
has denied to have made statements to the court. He admits that he had not given
any detailed narration of transactions before the police. It is pertinent to note that
the witness has further stated that except for the right hand of the Advocate and
Pimparkhede there were no traces of anthracene powder on any other part of the
body. The rough sketch of the Bar was drawn. It is pertinent to note that the
witness has specifically admitted before the court that the pre-trap panchnama
was not recorded in ACB office, but it was reduced into writing at Mumbai
13.
Central Police Station.
PW-4 Kalyanrao Deshpande was working as the Deputy Secretary,
He has
Home Department, Government of Maharashtra, in the year 2004.
deposed before the court that he was empowered to sign o behalf of the
Government under the Rules of Business. He was also empowered to examine
proposals received by the Government and submit the same for approval to
Government. He had received the proposal from ACB through Desk Officer on
16.10.2003 along with the letter of ACB and forwarding letter Pol.2. The said
Pol.2
branch had obtained approval from the Addl. Chief Secretary, Home
Department, to prosecute Mr. Pimperkhede. He had also received investigation
papers of ACB and draft sanction order. PW-4 thereafter obtained opinion from
the Law and Judiciary Department and further sent the draft of sanction for
scrutiny. On 9.2.2004, he received approval from the Law & Judiciary
Department. He thereafter submitted the same before the Deputy Chief Minister
(Home) for sanction.
Sanction order was issued on 15.6.2004.
PW-4 has
categorically stated that he had not granted sanction as per draft sanction but had
independently examined and sanctioned the same.
It is elicited in the cross-examination that PW-4 was independently
14.
not empowered to remove or appoint prosecutors, but he is only empowered to
15.
sign on behalf of the Government.
The sanction order dated 15.6.2004 is signed by PW-4 although he
was not the appointing authority or the authority who could remove the
prosecutors from service.
16.
The basic salary of the appellant was Rs.10,650/- and therefore as per
the said circular, the authority to accord sanction would be the Chief Minister and
not the Deputy Chief Minister. It is pertinent to note that the sanction order does
not indicate that the Deputy Chief Minister had accorded sanction. PW-4 has
stated that he had presented the matter before the Deputy Chief Minister for
sanction and it was approved by the Government on 30.5.2004. There is no
reference to the order dated 30.5.2004 in the sanction order dated 15.6.2004 and
therefore, the deposition of PW-4 is not corroborated by any document much less
the sanction order itself. The appellant arguing in person submits that in fact it
was only the Chief Minister who could have accorded sanction and, therefore, the
sanction is invalid.
PW-5 Ramakant Yesaji was working as Sales Tax Officer. He was
17.
called as a panch by the ACB Office. He has deposed before the Court that they
had followed the preliminary rules for conducting the raid.
He has further
deposed that he was waiting outside the P.P. Room. The complainant and Gaikar
went in the P.P. Room and thereafter according to him, the complainant made
some sign from within the room and the ACB rushed in. He saw the police
officers holding hand of an old Advocate and also of the present appellant. Some
currency notes were recovered from the inner pocket of the other old Advocate.
He has identified the panchnama at Exhibit 36. He has deposed before the Court
that he does not remember the sequence of events as the incident was very old.
He has not stated anything in respect of the demand and acceptance of the amount
of gratification by the present appellant as he was not a shadow witness, but was
PW-6
Abhay Achyut Paradkar was working as Assistant
18.
only a member of the raiding party.
Commissioner of Police in the year 2003. he has deposed before the Court that
on 26.3.2003, he was called in the office of the Addl. Commissioner of Police,
who instructed him to hear the grievances of the complainant and take appropriate
action. PW-6 had arranged the raid. He had given specific instructions to the
complainant and the shadow and independent witness. He has deposed before the
Court that on the date of raid, they had been to the 36 th Metropolitan Magistrate's
Court. When they reached near the Bar Room, one of the 3 persons present in
the Prosecutors' office, had called the complainant inside. At about 10.20 a.m. the
complainant and Gaikar 9PW-3) had entered into the room. After some time, the
complainant and Gaikar came out of the said room and the complainant had given
the signal as directed.
19.
In the cross-examination, PW-6 has admitted that inadvertently, he
had not written date and time of despatch of the FIR to the Court in column No.15
to the first information report. He has admitted in the cross-examination that he
had not recorded the statement of constable who was instructed to bring panchas.
He had also not recorded the statement of the driver. It is admitted in the cross-
examination that the amount of Rs.1700/- was first taken out by panch No.2
Yasaji from Mr. Shinde and the other articles were taken out by panch No.1. The
personal search of the accused-appellant was not taken. He has also admitted that
he had not recorded the statement of the witnesses on 27.3.2003 and that they
were called to ACB Office subsequently. He has further admitted that he had not
conducted any enquiry in respect of change of Advocate of the complainant, but
ha stated that on 27.3.2003, Vora was absent The house search of the accused
was not conducted. He has further admitted that he had entered the Bar Room
after the complainant gave signal and after the constables had caught hold of both
the hands of Mr. Shinde and the appellant.
PW-3 Namdeo Gaikar is an independent panch witness. He has specifically
20.
stated in the Examination-in-chief that the complainant and
two police
constables proceeded ahead and went in one room and that the complainant went
inside the room, whereas the two constables accompanying him had waited
outside the room. That after some time, the complainant came out and then gave
a signal. The witness has further clarified that he had entered the room only after
both the accused were caught hold by two constables. By inference, it would
mean that Mr. Gaikar had not accompanied the complainant in the bar room and
was not present when the money was actually handed over.
It is necessary that the evidence of the complainant should be corroborated
21.
in material particulars. It is the case of the prosecution that the marked notes
were paid to the 1st accused who entrusted it with 2nd accused. As the entire case
of the prosecution depends upon the acceptance of the evidence relating to the
conversion between the complainant and the accused-appellant during which the
appellant demanded the money and accepted the same and then entrusted it with
2nd accused, it would be necessary to see as to whether this aspect is corroborated
in material particulars. The dialogue between the complainant and the appellant
has not been heard by PW-3 and, therefore, he has not deposed to that effect
before the Court. Hence, the issue of demand and acceptance has not been
proved by the prosecution. Omission by PW-3 to refer to any mention of money
by the appellant would show that there is no corroboration of the testimony of the
complainant. Hence, the evidence of the complainant on this aspect cannot be
relied upon.
22.
There is no demand of any payment by the appellant for payment of
the money or the direction by the appellant to the complainant to pay the money
to the second accused. In the circumstances, it would be unsafe to base the
conviction on the sole testimony of the complainant as his evidence is not
corroborated by material particulars.
In the case of Panalal Damodar Rathi vs. State of Maharashtra
23.
(1979) 4 SCC 526, the Hon'ble Apex Court has observed that “There could be
no doubt that the evidence of the complainant should be corroborated in material
particulars.”
On facts, there was no corroboration of the testimony of the
complainant regarding the demand of money by the appellant. On this crucial
and, therefore, the evidence of the complainant on this aspect
cannot be relied upon.”
In the present case, the sanctioning authority would be the Chief
24.
corroborated
aspect, therefore, it is to be found that the version of the complainant is not
Minister. Upon perusal of the records, it is clear that the facts pertaining to the
prosecution of the present appellant were never placed before the Chief Minister.
PW-4 was working as Deputy Secretary, Home Department. He has specifically
contended that he had obtained opinion from the Law and Judiciary Department.
He had received approval from the Law & Judiciary Department and thereafter,
he has independently examined and sanctioned the same. He has also admitted
that he is not empowered to appoint or remove prosecutors, but is empowered
only to sign on behalf of the Government. The admission itself is sufficient to
hold that the sanction to prosecute the accused-appellant has not been accorded in
Section 19 of the Prevention of Corruption Act, 1988 reads thus :-
25.
accordance with law.
“19. Previous sanction necessary for prosecution – (1) No Court
shall take cognizance of an offence punishable under Sections 7, 10,
11, 13 and 15 alleged to have been committed by a public servant,
except with the previous sanction, -
in the case of a person who is employed in connection with the
(a)
affairs of the Union and is not removable from his office save by or
in the case of a person who is employed in connection with the
(b)
with the sanction of the Central Government, of that Government;
affairs of a State and is not removable from his ofice save by or with
the sanction of the State Government, of that Government;
in the case of any other person, of the authority competent to
©
remove him from his office.
(2)
Where for any reason whatsoever any doubt arises as to
whether the previous sanction as required under sub-section (1)
should be given by the Central Government or the State Government
or any other authority, such sanction shall be given
by that
Government or authority which would have been competent to
remove the public servant from his office at the time when the offence
was alleged to have been committed.”
In the present case, the compilation of the papers of investigation were never
placed before the appropriate authority. Hence, this Court is of the opinion that it
is a fundamental error that has been committed in this case and this principally on
this ground that the order according sanction to prosecute will have to be struck
down. The Court cannot be oblivious of the fact that a public servant by virtue of
his functions is naturally exposed to attacks by the general public from various
quarters and, therefore, the statute cast a duty upon the sanctioning authority to
before granting sanction. The sanction
independently examine the material
sanction in the eyes of law.
which is accorded mechanically by an inappropriate authority would be no
26.
In the case of Mohd. Iqbal Ahmed vs. State of Andhra Pradesh
AIR 1979 SC 677, the Hon'ble Apex Court has held that “the grant of sanction is
not an idle formality or a 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 prosecution can be
launched against the public servant concerned.”
27.
In the present case, illegal gratification was recovered from the
accused No.2. In absence of any corroborative evidence, there was no reason for
drawing a presumption at the stage of according sanction and, therefore, this
Court is of the opinion that there was no valid sanction to prosecute the accused.
Section 19 of the Prevention of Corruption Act clearly prohibits the
28.
Courts from taking cognizance of the offences specified therein in absence of a
sanction to prosecute. It is however at the stage of recording of evidence that the
person according sanction is subject to cross-examination and thereby it could be
ascertained as to whether the sanction to prosecute was accorded in accordance
with the established provisions of law as well as the circulars issued by the
appropriate Government touching Rules of Business of administration of justice.
For all the abovementioned reasons, the appellant herein is entitled to acquittal.
There is no consistent and cogent evidence to hold that the accused is guilty of the
offence with which he was charged and hence the judgment and order passed by
the Special Judge, Greater Bombay dated 22.12.2010 deserves to be quashed and
set aside.
29. Hence, the following order :-
(i) Appeal is allowed.
(ii) The Judgment and Order passed by the Special Judge, Greater Bombay
dated 22.12.2010 in ACB Special Case No.93/2004 is hereby quashed and set
aside.
(iii)
The appellant is acquitted of the offence punishable under Section 7 and
The bail bonds of the appellant stand cancelled.
(iii) Fine amount, if paid, be refunded to the appellant.
(iv)
Section 13(10(d) r/w Section 13(2) of Prevention of Corruption Act, 1988.
Appeal stands disposed of.
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