Bombay High Court
Shivchalappa Gurumortyappa Loni vs The State Of Maharashtra on 22 September, 1992
Equivalent citations: 1994(2)BOMCR268
JUDGMENT M.F. Saldanha, J.
1. Once again, in this appeal, the all important issue of a defect in relation to the important ingredients of sanction has surfaced. In this instance, the sanction order has been exhibited by consent and it is the correctness of this procedure that has been seriously assailed in the course of the hearing of the appeal. It is essential, however, to recount relevant facts before dealing with this issue. The appellant, at the relevant time, a Minimum Wages Inspector (Agriculture) in the office of the Assistant Commisioner of Labour at Solapur was admittedly a public servant. It is alleged that one Dnyandeo Jagtap, an agriculturist, had been called to the office as the accused found that he was not maintaining the record in respect of the labourers employed by him. These records which had to be maintained under the provisions of the Minimum Wages Act had apparently not been kept. The appellant is alleged to have instructed the complainant, Jagtap, to purchase the relevant registers, which he did and came back to the appellant. The appellant thereafter informed him as to how to maintain those registers and is also alleged to have told him that he (Jagtap) will be pardoned in case there are any mistakes or errors committed if he pays a sum of Rs. 200/-. Some bargaining went on and Jagtap agreed to come back with the money that evening. He approached the Anti-Corruption Bureau Authorities, a trap was laid and the prosecution alleges that the amount of Rs. 200/- was recovered from the hip pocket of the appellant. The appellant was thereafter arrested, charge-sheeted and put on trial. The learned Special Judge, Solapur convicted him of the offences both under section 7 of the Prevention of Corruption Act, 1988 as also under section 13(1)(d) of the same Act. Under the first charge, he was awarded the sentence of rigorous imprisonment for six months and to pay a fine of Rs. 500/-, in default, to suffer rigorous imprisonment for 3 months. Under the second charge, he was awarded rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default, to suffer rigorous imprisonment for three months, substantive sentence to run concurrently. It is against this conviction and sentence that the present appeal has been directed.
2. Shri Hudlikar, learned Counsel appearing on behalf of the appellant, has taken me through the evidence, both oral and documentary, in some degree of detail. To start with, he has assailed the validity of the prosecution because he contends that the entire exercise is vitiated. Shri Hudlikar stated that strangely enough in the present proceedings, the sanction order authorising the present prosecution was tendered and that the defence permitted it to be exhibited under section 294 Cr. P.C. The sanction order was thereupon marked as an exhibit. Shri Hudlikar stated that this was an obvious error and even if in other prosecutions the documents of a formal nature are attempted to be tendered in evidence and the formal proof is dispensed with that in a situation where an accused is facing a corruption charge where defences are necessarily limited and where it is well-settled law that the manner in which the sanction was accorded must pass the test of scrutiny that the learned trial Judge was in error even if the respective learned Counsel had erroneously agreed that the document be tendered in evidence, in having so permitted that procedure.
3. This position is seriously contested by Shri Palekar, the learned A.P.P., because he contends that the defence is estopped from raising this plea at the appellate stage. He pointed out that the document could never have gone on record by consent if the learned defence Counsel before the trial Court had insisted on the sanctioning authority being produced. He stated that the defence has waived its right to challenge the circumstances under which the sanction was accorded and in these circumstances the presumption under section 114 of the Evidence Act would hold good and there can be no question of the appellant's learned Counsel raising this point at the stage of appeal. He maintains that the defence had ample opportunity before the trial Court of challenging the validity of the sanction order, but not having done so, it is wholly impermissible to permit the issue to be re-opened at this stage.
4. The facts of the present case are, undoubtedly, unusual. Shri Hudlikar has made no secret of the fact that the defence ought not to have prejudiced the appellant by permitting the document, namely, the sanction order, to go on record. He has raised a strong plea before this Court that regardless of whatever errors the defence may have committed or the concession that it may have given, the prosecution can never be absolved from its basic duty of proving the validity of the sanction order. Shri Hudlikar has drawn my attention to numerous similar corruption prosecutions and he stated that such a short-circuiting of procedure is almost unknown and under these circumstances that it was the duty of the learned trial Judge who presided over the Court to have disallowed any such short-circuits because ultimately the entire procedure would recoil on the prosecution rather than on the defence. I do not propose to condone what may be termed as a lapse on the part of the learned defence Counsel, but Shri Hudlikar is right to the extent that the procedure followed was not a correct one. Instance are gallore when the defence is able to establish that the sanction is accorded in a limited, thoughtless and mechanical fashion and where the sanctining authority is cross-examined in the witness-box the entire sanction order is blown to pieces. A valid sanction is a condition precedent for a valid prosecution and under these circumstances the all important question arises as to whether Shri Hudlikar can be permitted to raise this issue in the face of a concession having been made by his counterpart before the trial Court. To my mind, it would be a travesty of justice to bind down learned defence Counsel or rather Counsel for the appellant in the conduct of this appeal and to preclude him from raising a point of law that virtually goes to the vary root of the matter. Under these circumstances, the plea of estoppel, which is pleaded by the learned A.P.P., is required to be discarded and the question as to whether the sanction order can be treated as valid in the absence of witness who has accorded the sanction being produced requires to be examined.
5. It does not require any detailed consideration to hold that it is virtually impossible for this Court to decide as to whether there was due and valid application of mind to the facts of this case before the sanction order was finally signed. This cannot be left to conjecture. The learned A.P.P. has tried to argue that a reading of the sanction order is self-indicative. I am unable to accept this proposition. Sanction orders follow a certain prescribed terminology or wording and this sanction order is no different from others. All that I can say is that it is correctly drafted and nothing more than that.
6. This Court had occasion to examine a situation where a public servant is sought to be put on trial of a corruption charge which has disastrous consequences to his career and to his entire future life on the ground that he is alleged to have accepted illegal gratification of a very small amount of money. This Court has, in a decision in the case of Arun Prahlad Kale v. State of Maharashtra, ; and in a subsequent decision in the case of Bhagwan Jathya Bhoir v. State of Maharashtra, 1992 Cri.L.J. 1144, observed that one of the cardinal requirements for the appointing authority of a public servant to evaluate is the question as to whether the gravity of the charge is sufficient to warrant a prosecution. I have had occasion to observe in those judgments, which does not have to be repeated once again, that disciplinary proceedings do provide for punishments many of them of a rigorous nature and, therefore, before mechanically sentencing a public servant who is alleged to have accepted a small amount of money to the trauma of one or two decades of litigation, it is very essential for the sanctioning authority to evaluate the seriousness of what is alleged against the public servant, where the facts are gross and where a criminal trial and a possible jail sentence appear to be very much in order sanction must certainly be accorded; but in those of the cases where the amount is small, the advisability of a prosecution is a matter which is seriously in doubt. It is under these circumstances that it is essential for the sanctioning authority to appear before the Court and to satisfy the Court as to why and under what circumstances the sanction was accorded. I am unable to accept the submissions canvassed by the learned A.P.P. who contends that the production of the witness is only formal proof. That may be a circumstance of insignificance as far as the prosecution is concerned, but as far as the defence is concerned, the making available of that witness is virtually a matter of life and death to the defence and, therefore, cannot be dispensed with. In this context, a reference may be invited to a decision of the Supreme Court in the case of Mohd. Iqbal Ahmed v. State of A.P., , wherein the Supreme Court had occasion to observe:-
"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 prosecution can be launched against the public servant concerned."
I may only add that the duty of a public servant at times are unpleasant and at times a public servant is required to take harsh decisions and in such circumstanees it is inevitable that he will invite hostility which, in turn, makes the public servant very vulnerable to personal attacks and it is in these circumstances, to my mind, that the need to be meticulous with regard to the grant of sanction and to be judicious in one's approach cannot be highlighted. In the present case, the non-examination of the sanctioning authority without any shred of doubt is fatal to the prosecution and the entire proceedings would, therefore, stand vitiated on this ground alone. I do not, however, propose to leave the matter at that because Shri Hudlikar has very rightly pointed out to me that regardless of for how long this stillborn litigation went on that there is nothing to prevent the department from once again drafting out the very sanction order and reinstituting the proceeding if the appeal were to be disposed of on a technical ground. It is for this reason that I need to deal with certain aspects of the matter on merits which have already been canvassed.
7. The learned Special Judge has, in his judgment, dealt with the prosecution evidence in detail. I do not consider it necessary to reproduce either parts or the whole of that evidence except to make a few references to it. The principal witness in this case is the complainant, Dnyandeo Jagtap (P.W. 1). He has deposed to the fact that when he first went to the appellant, he was asked as to why he had not maintained the registers in respect of the casual labourers under the provisions of the Minimum Wages Act. His reply was that being an illiterate person, he had defaulted. The appellant thereupon directed him to purchase the requisite registers and to bring them back which he did and the appellant instructed him as to how the registers are required to be maintained. According to him, it was at this stage that the appellant asked for an amount of Rs. 200/- which, in turn, made him go to the Anti-Corruption Bureau Authorities. In his complaint, which is the most important document on record, he states that the appellant is alleged to have told him that in case he makes errors in future that he would be pardoned provided he pays the sum of Rs. 200/-. Subsequently this version changes and before the Court it is alleged that this amount was a consideration for not taking action against him in respect of the past lapses. Shri Hudlikar has attacked the correctness of this inference on the ground that if, admittedly, the appellant informed the complainant, Jagtap (P.W. 1), as to how to correct the lapses and how to maintain the records, there was no question of taking action against him in so far as he was instructed to maintain the requisite registers for the entire period, both past and future. This part of the prosecution case suffers from a degree of vagueness. When we come to the next stage when the complainant, Jagtap, is accompanied by the Panch witnesses, the conduct of the appellant, as rightly pointed out by Shri Hudlikar, is indicative once again of a degree of helpfulness. He instructs the complainant on the manner in which he is required to fill up the registers and he also informs him (complainant) about when he should come with the documents for inspection. The complainant is alleged to have told him that he had brought the money to which he is supposed to have replied "give". The learned Special Judge has construed this evidence as being sufficient of the appellant-accused having made a demand. The evidence of the panch is slightly different in so far as he tries to improve on the story by stating that the appellant-accused told the complainant to "give the money". There is also a lot of discrepancy in the evidence with regard to what transpired thereafter. Whereas the complainant states that the money landed in the drawer of the appellant-accused, the panch states that he sat behind until he saw the appellant-accused transferring that amount into his trouser pocket. In the cross-examination of these two witnesses, a number of omissions and contradictions have been brought on record from which Shri Hudlikar pointed out that the credibility of the prosecution evidence both on the question of demand and receipt are highly suspect. He states that this is really the material evidence which the Court must look to and he thereafter points out to me that there is one more glaring lacuna, namely, there is a total absence of reference to any anthracene powder on the hands of the appellant-accused in the evidence of the panch.
8. As against this position, the learned A.P.P. has strenuously contended that if the evidence of the Police Officer were to be accepted, which according to him cannot be disputed, and if that evidence conclusively indicates that the currency notes treated with anthracene powder were recovered from the rear hip pocket of the appellant-accused, then the evidence of the complainant and the panch gets sufficiently corroborated. This approach, to my mind, is totally faulty because it would virtually mean that the prosecution is running in circles. That complainant and the Police Officers were very much interested in the success of the trap is undisputed and it is, therefore, the evidence of the panch which would have to corroborate the earlier two and not vice-versa. The number of infirmities that exist in the evidence referred to by me are not of a minor nature, but they will have to be viewed at collectively. If all of them are, in fact, put together, particularly the fact that the panch has made a deliberate attempt not only to act overwise but to improve on the instructions given to him, it will have to be held that the prosecution case fails to pass the test of credibility. I may add, in passing, here that there is one crucial angle in what was referred to by Shri Hudlikar and which, to my mind, is of importance. Admittedly, the prosecution seeks the assistance of the two panchas. In important cases, I have failed to see the wisdom on the part of the prosecution in examining only one of the two panchas. In the present case, Shri Hudlikar pointed out that the examination of the second panch was absolutely essential because he was not a formal witness but strangely enough, he is the person who is supposed to have taken the currency notes out of the pocket of the appellant-accused. If he had been examined, he would have certainly lent support to independent prosecution evidence. The non-examination of the second panch, Nikkawar, has only weakened the prosecution case further. In these circumstances, the view expressed by me earlier that it does not pass the test of credibility only stands re-inforced.
9. Having regard to the aforesaid, the conviction recorded against the appellant-accused would necessarily have to be set aside. The appeal succeeds. The conviction and sentences awarded to the appellant-accused are set aside. The fine, if paid by him, is directed to be refunded to him. The bail bond of the appellant-accused to stand cancelled. The appeal is allowed accordingly.