Bombay High Court
Appasaheb Narayan Jadhav vs The State Of Maharashtra on 23 August, 2013
Author: K. U. Chandiwal
Bench: K. U. Chandiwal
apeal-1261-04-j.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
rpa
CRIMINAL APPEAL NO. 1261 OF 2004
IN
SPECIAL CASE NO. 11 OF 2002
Appasaheb Narayan Jadhav ]
Age - 46 yeears, Occu - Service ]
(working as Talathi at Dafalapur, ]
Taluka - Jath, District - Sangli), ]
R/o. At post Kumbhari, Tal. - Jath, ] .. Appellant
District - Sangli. ] (Orig. Accused)
Vs.
The State of Maharashtra
through the Anti Corruption Bureau,
]
]
Sangli. ] .. Respondent
....
Mr. Nitin Pradhan, Senior Advocate a/w. Ms. S. D. Khot & Ms.
Trupti Bharadi i/b. Mr. Kedar J. Patil, Advocate for the
Appellant.
Ms. V. S. Mhaispurkar, A.P.P. for Respondent - State.
....
CORAM : K. U. CHANDIWAL, J.
RESERVED ON : AUGUST 22, 2013
PRONOUNCED ON : AUGUST 23, 2013
ORAL JUDGMENT :
Learned Special Judge, Sangli convicted the Appellant for offence punishable under Section 13(1)(d) read with Section 13(2) and 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the PC Act") directing to undergo R.I. for one year and to pay fine of Rs.2,000/- (Rs. Two 1/17 ::: Downloaded on - 27/08/2013 21:20:27 ::: apeal-1261-04-j.
Thousand only) with default clause to suffer imprisonment for six months and to pay fine of Rs.200/- (Rs. Two Hundred only) respectively. Both substantive sentences was directed to run concurrently. Feeling aggrieved, present Appeal is preferred which is admitted on 21st December, 2004.
2 The appellant was a Talathi at the material time. In Dafalpur, Taluka - Jath, District - Sangli, was a public servant within the meaning of Section 2(c) of the P. C. Act. The allegations are, in order to effect mutation of the complainant Ankush Baburao Sankpal and his other brothers, sisters, after death of his father Baburao, the appellant allegedly demanded Rs.500/- (Rs. Five Hundred only) which he scale down to Rs.250/- (Rs. Two Hundred Fifty only). The matter was reported to police attached to Anti Corruption. On 1 st June, 2002, the appellant while in his office demanded Rs.250/- (Rs.
Two Hundred Fifty only) to the complainant and accepted said amount which was in the form of tainted notes in presence of independent panch PW.2 Pratap Prabhakar Jamdar. The events were recorded in pre-trap and post-trap panchanama Exhibits-
23 and 24 and tainted notes and incriminating documents were 2/17 ::: Downloaded on - 27/08/2013 21:20:27 ::: apeal-1261-04-j.
recovered. P.W.3 Jotiba Tukaram Patil, Sub Divisional Officer was examined as sanctioning authority. P.W.4 Ramchandra Dadu Chavan carried investigation. P.W.1 Ankush Sankpal was the complainant who has narrated facts of demand dated 31 st May, 2002 and acceptance dated 1st June, 2002.
3 Learned senior counsel confined his submissions to two aspects:
(1)That the sanction was defective. SDO P.W. 3 was not an appointing authority. For Talathi in the State of Maharashtra Collector is the appointing authority.
(2) The amount of Rs.250/- (Rs. Two Hundred Fifty only) indeed was received by the appellant towards expenses of postal charges, copying, incurred for issuing notices to the legal representative of Baburao Sankpal.
4 Learned senior counsel says, the charge below Exhibit- 7 explained to the accused is misleading as if it was an official function, there is no question of favour. The charge should have indicated having asked for pecuniary benefits, not a part of official work.
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5 The learned senior counsel dealt with the scheme of The Maharashtra Land Revenue Code, 1966 (hereinafter referred to as "the said Code") to explain effect of Section 14 relating to powers and duties of survey officer which includes a Talathi. The Talathi has to prepare notice and issue the same to the legal representatives as a part of the official duty. According to him in terms of Sections 148, 149 and 150 of the said Code, the register of mutation is to be maintained and deals with rights of the parties. Section 227 contemplate power to summon and for the said purposes according to him the requisite notice charges are to be borne by party concern, even if, it was initially incurred by the appellant.
6 Learned senior counsel has also invited my attention to Maharashtra Land Revenue Rule Book Volume - IV showing duties, obligations, procedure of the Talathi and circle inspector in Maharashtra.
7 Learned A.P.P. says P.W.3 S.D.O. is sanctioning authority which power is vested to him in terms of Government 4/17 ::: Downloaded on - 27/08/2013 21:20:27 ::: apeal-1261-04-j.
notification dated 30th May, 1984. S.D.O. is the appointing authority and competent to accord sanction. She has supported the judgment of conviction.
8 The defect in the charge to which reference is given is of no consequence as charge as a whole is to be read, it does not send a incorrect message to interpret. Accused consciously accepted it and his plea was recorded below Exhibit-8. Any defect or irregularities in the charge will not vitiate the trial.
9 The objection to sanction is misleading, Exhibit-33 is Government Gazette enumerating competence of P.W.3 Jotiba Patil to accord sanction. He was Sub Divisional Officer Miraj Sub Division at the relevant time and during 5 th August, 1998 and 1st June, 2002 the appellant was working as Talathi at Village Dafalapur, Taluka-Jath, Sangli. The Gazette published in Maharashtra Government Gazette at Exhibit-33 shows the competence of P.W.3 to appoint Talathi. Exhibit - 34 dated 24 th August, 1984 issued by Sub Divisional Officer Miraj Division Miraj shows appellant was appointed as Talathi. Learned senior counsel says by virtue of order dated 17th September, 1983, it 5/17 ::: Downloaded on - 27/08/2013 21:20:27 ::: apeal-1261-04-j.
was the Collector who appointed the Appellant, however, perusal of said order illustrate, it was list of Talathi selected for training for a period of four months with effect from 15 th September, 1983 with conditions enumerated therein to be followed by such candidates. The conditions incorporate, selection of candidates was only for Talathi training and on successfully completion of training candidate may be considered for temporary appointment of Talathi, if required. The selection was subject to approval of the selection board. Thus, the communication dated 17th September, 1983, will not refer to infer that it was a appointment letter of the appellant issued by Collector.
10 Learned senior counsel relied on the Judgment of this Court in the matter of Bhaurao Marotrao Manekar V/s.
State of Maharashtra1. In the said case, the learned single judge recorded, the sanction for prosecution under Section 6 of the P. C. Act should be by Collector as he was appointing authority. In the said case, since, Sub Divisional officer had issued sanction, such sanction was held invalid. There could not be delegation of powers under Maharashtra Land Revenue Code.
1. 1980 Mh. L. J. Page 445.
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This Judgment is followed in subsequent Judgment in the matter of Sakharam Trymbak Patil V/s. State of Maharashtra2.
11 However, in the light of government notification placed at Exhibit-33 and the very appointment order of the appellant issued by SDO, it cannot be said that SDO P.W.3 was not competent to issue sanction to prosecute the appellant.
12 The controversy in relation to sanction also needs to be seen from the conspectus of Section 19(1) and 19(3) of P. C. Act, 1988. Section 19 Sub-section (3) reads as under:
"19 (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
2. 1993 Mh.L.J. pg. 276.
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(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authorty, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings."
"Explanation. - For the purpose of this section,-
(a) error including competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
13 Considering the legal position informed in Section 19 Sub-section 3 and Explanation, the term "Error" include competency of the authority to grant sanction, hence such 8/17 ::: Downloaded on - 27/08/2013 21:20:27 ::: apeal-1261-04-j.
competency to grant sanction would not be open to be questioned. That apart, it was for the appellant to demonstrate what prejudice he has suffered by such inappropriate sanction.
I quite see, order of the sanction is prerequisite as it is intended to provide a safeguard to a public servant against vexatious litigation but it should not be construe in a pediatric manner with a hyper-technical approach to test its validity.
14The learned senior counsel relied to the judgment in the matter of Krishna Kumar V/s. Divisional Assistant Electrical Engineer3 and also of the learned Single Judge of this Court in Criminal Appeal No.226 of 1999 Suresh s/o. Dasrao Bangale V/s. State of Maharashtra decided on 14th December, 2012. In the matter of Krishna Kumar (Supra) question was whether the appellant therein could have been removed from service by Divisional Engineer though said appointment was made by order issued by the Chief Electrical Engineer. These principle would not be available to the same scale to the present case. The learned single judge in the matter of Suresh (Supra) has placed reliance to the aforesaid Judgment of Krishna Kumar.
3. 1979 AIR (SC) 1912.
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15 The Gazette at Exhibit - 33 cannot be said to be illegal as it has assumed status of law. Such gazette provide Sub Divisional officer to be appointing authority of Talathi under the Revenue Forest Department (Recruitment) Rules, 1984. This was followed by issuing order by Sub Divisional officer Miraj Division on 24th August, 1984 (Exhibit-34) there should not be any mismatch to these two documents and provisions of Maharashtra Revenue Code 1966 in particular Section 7(4) or Section 230 thereof.
16 It may be, the gazette notification Exhibit - 33 dated 30th May, 1984 was not a issue of consideration before the learned Single Judge in the matter of Bhaurao decided on 11th December, 1979.
17 Exhibit - 33 illustrate, by virtue of Article 309 of Constitution of India, the Government of Maharashtra -
Governor was competent to formulate rules for appointment of Talathi. This is indicated in Article 309 concerning recruitment and condition of service of persons serving the Union or of any 10/17 ::: Downloaded on - 27/08/2013 21:20:27 ::: apeal-1261-04-j.
State. Proviso to Article 309 illustrate, that it shall be competent for the President or for the Governor, to make rules regulating the recruitment and the conditions of service of persons appointed and the rules so made shall have effect subject to provisions of such Act. The term recruitment is comprehensive which include any method provided for inducting a person in public service. Thus, Rules/Gazette notification provided that the S.D.O. would be the appointing authority. Therefore, this issue would not be an embryonic aspect and one need not to relegate and delve to the reported judgment of this Court. I hold there was proper sanction established by P.W.3.
18 The second limb of submissions by learned senior counsel revolves to acceptance of Rs.250/- (Rs. Two Hundred Fifty Only) as expenses, incurred for issuing notices, for issuing eight certified copies. Learned senior counsel says this is a gray area under the Maharashtra Land Revenue concerning expenses for notices. He also says that the notices were issued in terms of Section 230 of Code and hence the process referred therein shall apply to the expenses incurred by the appellant - Talathi.
19 Section 230 reads as under :
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"Mode of serving notice (1) Subject to the provisions of this Code and the rules made thereunder, every notice under this Code may be served either by tendering or delivering a copy thereof, or sending such copy by post to the person on whom it is to be served or his authorised agent, or if service in the manner aforesaid cannot be made, by affixing a copy thereof at his last known place or residence or at some place of public resort in the village in which the land to which notice relates is situated or form which the land is cultivated.
(2) No such notice shall be deemed void on account of any error in the name or designation of any person, or in the description of any land, referred to therein, unless such error has produced substantial injustice."
Section 232 starts with "Hearing in absence of party". Clause (1) provides about requisite process fees for such service. Conjoint effect of Section 230 and 231 of the said Code, will not be indicating an obligation on original complainant to pay charges for issuing notices to the legal representatives of the deceased Baburao. He was not sitting in any judicial capacity to accord hearing requiring personal 12/17 ::: Downloaded on - 27/08/2013 21:20:27 ::: apeal-1261-04-j.
attendance. This is more clear, as indicated in the statutory Rules providing obligations and duties of Talathi. Rule 60 of the Maharashtra Land Revenue Manual, Volume IV provides that Talathi was to keep record in respect user of government stamps for the purposes of notices and he was to maintain account.
There could not be any other purpose for maintaining the use of government stamps.
20Mr. Pradhan says, in the year 2002 practice of using government stamps in government department was scrapped. No such official documents or government notification is flashed by learned senior counsel for activating his submissions.
21 Now turning to facts, immediately at the time of panchamana when the appellant was trapped while accepting Rs.250/- and recovered from him, his first reaction was, he was to receive Rs.60/- (Rs. Sixty only) towards charges of copies and he was in a process of releasing balance amount to the complainant. This defence of the appellant does not match to his statement under Section 313 of Code of Criminal Procedure, wherein he says he had deputed Kotwal to dispatch notices to 13/17 ::: Downloaded on - 27/08/2013 21:20:27 ::: apeal-1261-04-j.
the legal representatives of Baburao Sankpal for which such expenses were incurred. Pertinently, said Kotwal is not examined as a defence witness.
22 The account of expenses given by Appellant of dispatching notices on 16th April, 2002 to seven legal representative by Registered Post A.D. or incurring Rs.3/- (Rs.
Three only) towards Photostat copies of notices is reprehensible and a subsequent cooked theory to wriggle out from the trap process. In fact, by making a written statement before police at the time of post trap panchanama of collecting Rs.60/- (Rs. Sixty only) in respect of extract is again illusory as he does not refer of incurring postal charges or charges for copying the notices.
23 The learned senior counsel says in panchanama Exhibit-24 there is no specific demand of bribe as the dialogue between complainant and accused indicate, complainant enquired with him about preparation of extract to which accused replied work is in progress, he asked, whether complainant has brought Rs.250/-. The learned senior counsel repeats demand of Rs.250/-, needs to be construed only to meet the expenses 14/17 ::: Downloaded on - 27/08/2013 21:20:27 ::: apeal-1261-04-j.
incurred by the appellant. He stretched his point by drawing attention to evidence of P.W.4 Ramchandra Chavan, investigating officer appearing in paragraph 10. Paragraph 10 reads as under:
"10. It is not correct to say that the accused explained before me that he had accepted Rs.250/-
from Shri Sankpal towards the legal charges for issuing notices and for supply of property extracts. I made inquiry with the department concerned and I was informed that such fees cannot be recovered by the Talathi. I did not record the statement of the concerned officer in that reference. It is not correct to say that Talathi is entitled to recover such fees."
Thus, even evidence of P.W.4 cannot be flogged to criticise.
24 The learned senior counsel says in the panchanama Exhibit - 24, it is recorded by the panch to have identified accused to be the person who demanded Rs.250/- (Rs. Two Hundred Fifty Only) however, that will not suggest any preoccupied prejudices against the appellant. In fact evidence illustrate, he was known to the appellant.
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25 The evidences of P.W.1, P.W.3, P.W.4 coupled with panchanama unblemishally establish there was initial demand of Rs.500/- (Rs. Five Hundred Fifty Only) made to Ankush on 30 th May, 2002, wherein the accused insisted to pay the amount and unless it is paid extracts will not be issued. Complainant again met appellant on 31st May, 2002, and demanded the property extract. The appellant insisted, unless amount of Rs.500/- (Rs.
Five Hundred Fifty Only), paid he would not give property extract. Complainant implored to reduce the amount whereupon appellant agreed to issue the property extract on receiving Rs.250/- (Rs. Two Hundred Fifty Only), on 1st June, 2002. It was in pursuance to this arrangement, the complainant approached police authority followed by procedure and a trap was laid at the office of the appellant.
26 I do not see any infirmity in the procedure or evidence of P.W.1, P.W.2. It also cannot be said, that P.W.2 had develop vengeance against the appellant. He was indeed a government servant and was discharging a cause, having called by investigator.
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27 On evaluation of entire material and evidence recorded by the learned Judge, appreciation thereof, I do not find any error or perversity in the order.
28 Appeal is dismissed. The accused - appellant to surrender to undergo sentence up to 23rd October, 2013. Bail bond cancelled.
ig (K. U. CHANDIWAL, J.)
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