Bombay High Court
Narayan Dewaji Bodhele & Another vs State Of Mah.Thr.P.S.O.P.S.Armori on 19 March, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal218of01
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL 218 OF 2001
1 Narayan s/o. Dewaji Bodhele,
aged about 60 years,
R/o. Tembha, Tahsil Armori,
District Gadchiroli
2 Kawadu s/o. Laxman Gedam (abated)
aged about 40 years,
R/o. Tembha, Tahsil Armori,
District Gadchiroli .... APPELLANT
VERSUS
The State of Maharashtra,
through Police Station Officer
Police Station Armori, District Gadchiroli ....RESPONDENT
______________________________________________________________
Shri Y. B. Mandpe, counsel for the appellant.
Shri. N.B. Jawade, Addl. Public Prosecutor for respondent.
_____________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 19 th
MARCH, 2018
ORAL JUDGMENT :
The appellant is aggrieved by the judgment and order dated 28.6.2001 rendered by the Special Judge, Gadchiroli in Special Case 9 of 1990, by and under which, the appellant accused-1 is convicted for offence punishable under section 7 of Prevention of Corruption Act ("Act" for short) and sentenced to suffer rigorous ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:25 ::: 2 apeal218of01 imprisonment for one year and to payment of fine of Rs. 200/-. Appellant - accused 2 - Kawadu Gedam is convicted for offence punishable under section 7 read with section 12 of the Act and sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs.50/- However, appellant - accused 2 expired during the pendency of the appeal and his appeal stands abated in view of order dated 16.8.2017.
2 Heard Shri Y.B. Mandpe, the learned counsel for the accused and Shri N.B. Jawade, the learned Additional Public Prosecutor for the respondent / State.
3 Prosecution Case:
The accused was Patwari of Halka 29 of village Tembha, Tahsil Armori, District Chandrapur and the deceased accused was Kotwal.
The gist of the complaint lodged by the complainant Gangadhar Bhoyar with the Anti-Corruption Bureau, Gadchiroli on 23.7.1987, is that the accused demanded bribe of Rs. 30/- to furnish copy of the 7/12 extract with map.
4 The learned counsel for the accused Shri Mandpe would ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:25 ::: 3 apeal218of01 submit that the appeal ought to be allowed on the short ground that the statutory sanction was accorded by an officer who concededly is sub-ordinate to the appointing authority which is the Collector. 5 It is not in dispute that the sanction is accorded by PW 12 who was then Sub-Divisional Officer, and Assistant Collector, Gadchiroli. PW 12 state in the evidence that the accused was appointed by Sub-Divisional Officer, Gadchiroli by order dated 2.3.1974 and denies the suggestion that the appointing authority of the accused was the Collector. However, the sanction order Exh. 77 itself states that the accused is removable from the post by the Collector, Gadchiroli. The service book of the accused Exh. 67 indicates that the accused was appointed by the Collector and joined service on 22.2.1970 and then was terminated by and under order 30.4.1970, again issued by the Collector. The learned Sessions Judge has recorded a finding that the accused thereafter came to be appointed on 2.3.1974 by the Sub-Divisional Officer, Gadchiroli in exercise of powers delegated under sub-section 6 of section 13 of the Maharashtra Land Revenue Code. Appointment made by Sub-Divisional Officer is an appointment made by the Collector within the meaning of Section 7 of the Maharashtra Land Revenue Code, is the finding recorded. ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:25 :::
4 apeal218of01 However, the learned Sessions Judge has not considered the recital in the sanction order that the accused could have been removed by the Collector.
6 The learned counsel for the accused invited my attention to a judgment of this Court in Sakharam Tryambak Patil ..vs.. State of Maharashtra, 1993 Mh. L.J. 276 and in particular on the following observations:
"8. Section 6(1)(c) of the Prevention of Corruption Act, 1947 provides that no Court shall take cognizance of an offence punishable under section 161 of the Indian Penal Code or sub- section (2) of section 5 of the Prevention of Corruption Act alleged to have been committed by a public servant except with the previous sanction in the case of any other person by the authority competent to remove him from his office. The requirement, therefore, is that the sanction must be awarded by an authority who is competent to remove from the office the public servant concerned. As stated earlier, the appellant was appointed by the Collector initially. However, the sanction is accorded by the Sub-Divisional Officer. The question is, whether it can be said that the Sub-Divisional Officer is the competent authority to remove the appellant from service within the meaning of section 6(1)(c) of the Prevention of Corruption Act, 1947. It is precisely in such circumstances in Bhaurao Marotrao Manekar's case (supra) that Waikar, J., came to the conclusion, that:
"In this view of the matter, reading sections 7(4) and 13(4) of the Code and reading both these provisions, subject to Article 311(1) of the Constitution, what follows is that the Sub-Divisional Officer purporting to act under section 13(4) of the Code is empowered, no ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:25 ::: 5 apeal218of01 doubt, to appoint Talathis in the Sub-Division in his charge and by virtue of section 16 of the Bombay General Clauses Act, the power to suspend or dismiss Talathi so appointed may be ingrained and included in it, but all the same he being subordinate in rank to the Collector in charge of the district administration, he cannot in the teeth of the constitutional provision of Article 311(1) dismiss a Talathi appointed by the Collector, though working under him in his sub-division. The powers to appoint the Circle Inspectors or Talathis or Kotwals by the Collector in his district and by the Sub-Divisional Officer in relation to his sub-division may be co-extensive and concurrent, but the Sub- Divisional Officer being an authority subordinate to the Collector cannot remove from service the said officer appointed by the Collector without doing violence to the constitutional provisions of Article 311(1) of the Constitution of India. The argument advanced by Shri Garud, the learned Assistant Government Pleader, that though the appellant was appointed by the Collector, he could be dismissed by the Sub-Divisional Officer, under whom he was working cannot, therefore, be accepted. Thus the sanction accorded by the Sub-Divisional Officer in the instant case was bad and it invalidates the trial since the learned Special Judge could not at all take cognizance of the offence, sought to be pitchforked on such an illegal sanction."
In all fairness to the learned Additional Public Prosecutor, is response to the queries made by the Court, he is not disputing that the said authority still holds the field.
7 In this view of the matter, and since it is not disputed before me, that the authority to remove the accused from service was ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:25 ::: 6 apeal218of01 Collector, as is stated in the sanction order, and that the first appointment was indeed was made by the Collector, the submission of the learned Counsel Shri Mandpe that the sanction is bad in law and the judgment of conviction must be set aside on this short ground, deserves acceptance.
8 The alleged incident occurred in the year 1987. In this view of the matter, I am not inclined to permit the prosecution to obtain fresh sanction and to prosecute the appellant de-novo, since such a course would fall foul of the constitutional guarantee of speedy trial.
9 The judgment and order impugned is set aside. 10 The accused is acquitted of offence punishable under section 7 of Prevention of Corruption Ac.
11 The bail bond of the accused shall discharged. Fine paid by the accused, if any, shall be refunded.
12 The appeal is allowed.
JUDGE RSB ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:25 :::