Arun Ramchandra Kale vs State Of Mah.Thr.A.C.B.Buldana on 30 January, 2020

[Cites 23, Cited by 1]

Bombay High Court

Arun Ramchandra Kale vs State Of Mah.Thr.A.C.B.Buldana on 30 January, 2020

Bench: S.M. Modak

1 appeal no. 171.04

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR

Criminal Appeal No.171/2004

Arun Ramchandra Kale,
aged 42 years, Occ.-Telecom Mechanic,
Telephone Kendra, Asalgaon, District Buldana ... Appellant

-Versus-

The State of Maharashtra,
through A.C.B. Buldana, Tq. and District Buldana. ... Respondent.
---------------------------------------------------------------------------------------------------
Shri S.D. Chande, Advocate for appellant.
Shri S.A. Ashirgade, Addl.P.P. for respondent.

CORAM : S.M. MODAK, J.
Date of reserving the judgment : 09-09-2019.
Date of pronouncing the judgment : 30-01-2020.

J U D G M E NT

The appellant, a Telecom Mechanic working with Bharat

Sanchar Nigam Limited (hereinafter referred to as "BSNL" for short) was

convicted for accepting illegal gratification by the Special Judge,

Khamgaon, District Buldhana on 9th March, 2004. The conviction was

under Section 7 and 13(1)(d) punishable under Section 13(2) of the

Prevention of Corruption Act. The correctness of the said judgment is

challenged before this Court by him. Apart from the usual grounds of

reliability of the testimony of the complainant, the appellant-accused took

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2 appeal no. 171.04

two more objections. One pertains to the authority of State Anti

Corruption Bureau to investigate an offence against him (who is an

employee of the Government company) and second pertains to lack of

competency in the sanctioning authority to grant sanction. Alternatively,

he has also taken a ground that being the employee of BSNL, he cannot be

said to be a public servant (who was earlier employee of Department of

Telecom and who is now absorbed in BSNL) and hence cannot be

prosecuted under the provisions of Prevention of Corruption Act.

02] The appeal needs to be considered on these points. Learned

Advocate Shri S.D. Chande argued on behalf of the appellant-accused,

whereas Learned Additional Public Prosecutor Shri S.A. Ashirgade argued

for the State. He relied upon some citations. Both of them assisted me in

going through the record and citations. I am required to decide the appeal

on the following points.

{1} Whether the case of the complainant about demanding and
accepting illegal gratification by the appellant for repairing his
telephone is acceptable or not?

{2} Whether the evidence on pre-trap and post-trap formalities is
convincing?

{3} Whether the appellant being an employee of BSNL is a public
servant?

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{4} Whether the State Anti Corruption Bureau is competent to
investigate the offences against the employee of B.S.N.L.?

{5} Whether Telecom District Manager is competent to grant
sanction and whether there is application of mind?

{6} Is there any need to interfere in the findings of the final order?

PROSECUTION STORY AND THE EVIDENCE

03] Complainant-Suresh Eknathrao Mehsare was resident of Sulaj,

Tahsil Jalgaon Jamod, District Buldhana. He was having a telephone

connection, which was not working. The appellant being a Telephone

Mechanic, was having the task of repairing the telephone connection

within the area of Jalgaon Jamod. That is not disputed. What is disputed

is, whether the appellant being an absorbed employee of BSNL, is a public

servant or not. There are two versions to that issue. One is, the

complainant's version. The demand for Rs.400/- was made on

11/02/2002 for the first time and unhesitatingly the complainant agreed

for Rs. 300/-. It prompted the complainant to take the assistance of Anti

Corruption Bureau on that date. Whereas, the appellant's version is, he

removed the fault on 12/02/2002 and he has not demanded the amount

and in fact Rs.300/- was given to him forcibly. He has also suggested one

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4 appeal no. 171.04

reason for false implication. The department was anticipating an action

against the complainant for shifting of the telephone without permission

and that is why false complaint is lodged. There is a defence witness viz.

Shri Ashok Ramdas Wankhede examined to show what happened on that

day.

04] The learned Special Judge has not accepted the version of the

appellant and testimony of Ashok Wankhede. Certain lacunaes are

pointed out in the evidence of the complainant and that of Shri Gajanan

Bhikabhai Kate, the Telephone Operator-cum-Clerk [PW-3]. The incident

of demand of Rs.400/- and settling it at Rs. 300/- by the appellant has got

a background.

Shifting of telephone

05] Originally the telephone connection of the complainant was at

village Sulaj. From there, it was transferred to Village Asalgaon. It was

installed in a room owned by one Shri Rajankar. When the incident took

place, at that time, the telephone connection was installed in the shop of

brother of the complainant at Village Asalgaon. The appellant suggested

two reasons for transfer of the telephone connection from the room

owned by Shri Rajankar to the shop of brother of the complainant. Police

raided the room owned by Shri Rajankar and that is why, it was shifted, is

one of the reason. Whereas, another reason is, not satisfying the demand

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for excess rent made by Shri Rajankar. It was suggested during cross-

examination. The reasons are immaterial. Permission for transfer of

telephone connection from the room of Shri Rajankar to the shop of

brother of the complainant, was not obtained as per the appellant's

version. Though there is a reason to believe that it was transferred to the

shop of complainant's brother, there is no material to infer that any action

is contemplated by the BSNL against the complainant for illegal transfer.

Neither any of the witnesses have accepted the theory of plausible action,

nor there are documents filed to that effect by the appellant. This theory

has remained only as a defence taken some how to create doubt about

bona fides of the complainant. It does not find favour with the trial Court

as well as to this Court.

Earlier complaints

06] Prior to filing written complaint with one Gajanan Kate, the

complainant tried his level best for repairing of his telephone connection.

The written complaint dated 11/02/2002 at Exh.13 is tendered in his

evidence. Prior to 11/02/2002, the complainant has availed of the facility

of giving the complaints by dropping it in a complaint box. It was on

06/02/2002 and on 09/02/2002. The box was at village Asalgaon,

whereas the witness Kate was sitting at Jalgaon Jamod Office. The

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complaints dated 06/02/2002 and 09/02/2002 were seized during

investigation. They were shown to the complainant during his evidence.

He identified his signatures on it. They are at Exhs.-14 and 15. At that

time, there was no occasion for the complainant to interact with the

appellant. So, it is but natural that the question of demanding illegal

gratification on both these occasions does not arise.

Incident of 11-02-2002

07] It will be material to consider what has happened on

11/02/2002. For that purpose, the evidence of the complainant and

Gajanan Kate is material. The appellant for the first time met the

complainant when he was coming out of the Office at Jalgaon Jamod and

that too after filing written application. Whereas, according to the

witness-Gajanan Kate [PW-3], he has completed the procedure by

accepting the written application, giving acknowledgment and entering

into inward register. He gave that complaint to the appellant when the

appellant came to the office after half an hour. The appellant assured

witness - Kate to repair the telephone on 12/02/2002. The question is,

whether there is an inconsistency. The answer will be no. Because, it is

but natural for the witness-Kate to be unaware about what has happened

outside his Office. He may not know what was the conversation between

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the complainant and the appellant that took place outside the Office.

Evidence of demand and acceptance

08] First time there is a demand of Rs. 400/- on 11-02-2002 and it

was reiterated on 12-02-2002 in the presence of shadow panch PW-2-

Ravindra Sonune. First there was a demand of Rs. 400/-. It was reduced

to Rs. 300/-. The complainant had chosen to approach the office of ACB

on 11-02-2002, instead of making protest against the appellant to his

superior. These are two forums available. The scope of enquiry by these

two authorities is different. Ultimately, there is a choice for an aggrieved

person.

09] The appellant was entrusted to remove the faults in telephone

lines. The appellant went towards telephone pole from which the

connection is given to the complainant and he has removed the fault. This

happened after the complainant and shadow witness went to the office of

the appellant on 12-02-2002 at Buldhana. Initially, the office of the

appellant was closed. The conduct of the appellant in removing the fault

prior to accepting the bribe was emphasized on his behalf. It was

suggested that the appellant has already performed his duties and in fact

the appellant never intended to accept the amount and in fact the amount

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is foisted on him.

10] It is very well true that the appellant has done his job and also

checked whether the telephone connection was started. But one cannot

forget the fact that the appellant reiterated the demand prior to visiting

the spot. It was deposed by the complainant and corroborated by the

shadow witness Shri Sonune.

11] If the evidence of these two witnesses is read together, we can

find that there is a consistency amongst them. Learned Advocate

Shri Chande tried to plead that the evidence on the point of demand is

not satisfactory. According to him, the appellant met the complainant for

the first time on 11-02-2002, and in earlier complaints there is no demand

of the amount. These complaints were not seized. It is not true. Both the

complaints were found in the complaint box when IO-Mahale opened it

after the trap. They were shown to complainant. It is but natural that

reference of demand is not there. Because appellant has not met him till

that time. If these complaints could have attended in time this incident

ought to have been avoided. On the point of demand he relied upon the

following citations -

(a) Gajanan s/o Lobhaji Dahale vs The State of Maharashtra,
reported in 2017 ALL MR (Cri) 4812.

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(b) Sanjay s/o Ishwar Bhanushali vs The State of Maharashtra,
reported in 2016 ALL MR (Cri) 3153.

12] With their assistance, I have read the facts and the observations

therein. The observations given in a particular manner is on the basis of

facts and the interpretation of law. In Gajanan's case demand was not

reiterated in the presence of shadow panch. There was initial demand

only. This was the factor considered for rejection of the prosecution case

and ordering of acquittal (paragraphs 14 and 15).

13] Whereas, in case of Sanjay Bhanushali the appellant was the

officer of the Enforcement Department of Mumbai Corporation. He

demanded Rs.75,000/- initially, and it was reduced to Rs. 60,000/- for

not taking action and demolition of loft of the complainant. In that case

prior to laying of a trap, there was a verification of demand in the

presence of panchas at the instance of the ACB. Initial demand prior to

approaching the ACB was for Rs. 60,000/- whereas at the time of

verification it was Rs. 45,000/- and Rs. 15,000/- was to be given by way

of first installment. There were number of lacunaes including non

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production of the conversation recorded and variance in between the oral

testimony and a contemporaneous record. This Court found the evidence

on the point of initial demand unsatisfactory and even the shadow panch

has acted as a panch in earlier cases was considered.

14] In case of Harishchandra Borkar on the point of reiteration of

demand there was inconsistency in between the testimony of the

complainant and shadow panch. So also the testimony of complainant is

not as per his complaint. For all these reasons the conviction was set

side.

15] As said above, the conclusion drawn in any case depends upon

the facts of that case. There are certain principles which emerges from

above referred judgments. The evidence given by the complainant in

Court as far as possible should be in consistent with the complaint. As far

as possible the evidence of the complainant and shadow panch should

corroborate with each other. So also the testimony of the complainant

should be truthful.

16] If we apply these principles to the facts of the case, I do find

that the evidence of the complainant is reliable so far as the initial

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demand on 11-02-2002 is concerned. Though the appellant has

completed his work by visiting the spot prior to accepting the amount, he

has reiterated that demand on 12-02-2002. The complainant and PW-2

are the two relevant witnesses. Both have reiterated the same thing. It

will also be material to consider the defence put forth by the appellant

about the events that took place on the date of trap.

Defence put by the appellant

17] Ashok Wankhede is the defence witness. His wife is the

customer of BSNL. He had visited the office at Asalgaon. When he visited

the office, one person was sitting, he has not stated his name. He and the

accused went outside the office for repairing telephone connection.

From there both returned to the office. It is difficult to understand what

the accused has achieved by examining this witness. He has referred this

incident happened in the month of February, 2002. He has not stated the

date even he do not know the name of the person sitting in the office. It

cannot be inferred that the person seen by him is none other than the

complainant. Even he has not referred about the panch witness. He has

not stated that the appellant went some other place for repairing

telephone connection of a person none other than the complainant. So his

evidence is not of any use to the appellant.

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18] Now it be material to consider what was put to the complainant

during cross examination. The complainant has denied the theory of

presence of one Wankhede in the office and the appellant going along

with said Wankhede for repairing telephone connection. So from his cross

examination also nothing is elucidated to show the presence of defence

witness Shri Wankhede. This theory was also put to the shadow

panch/P.W. No.2 and investigating officer during their cross examination.

However they too have denied that theory. The accused has uttered that

complainant forcibly put the amount in his pocket. This was at the time

when Police Constable held his hands. This was admitted by the IO

during cross examination and by shadow witness. Even though it may be

the immediate reaction, it needs to be substantiated by way of cross

examination. It has not happened.

Acceptance of the amount

19] After the signal was given Investigating Officer-Deputy

Superintendent of Police Shri Devidas Mahale (PW-6) and panch no.2

went to the office of the accused. On reading their evidence and that of

the complainant Mehsare following thing emerges :-

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(a) Police Constable held both the hands of the accused,
Dy.S.P. Mahale shown his identity, complainant was
asked to go outside.
(b) Police Naik Bhagat dipped his fingers in the solution
but its colour has not changed. It was thrown.
(c) Fresh solution prepared and accused had dipped his
right and left hand fingers separately. On both the
occasions the colour changed to violet. They were
taken into bottle and they were sealed (2 bottles).
(d) During search of the accused by panch no.2 six notes of
Rs.50/- denomination were found, fresh Sodium
Carbonate solution was prepared. There were spots of
violet colour. Their numbers tallied with the numbers
mentioned in the panchanama. The notes were seized
and sealed.
(e) The left pant pocket of the accused was checked by
sprinkling the solution, the colour changed to violet.
Pant was seized.
(f) Seizure memo for two bottles, six notes and pant of
accused was prepared. It is at Exh-19.
(g) The complaint box hanged outside office was opened
with a key. The complaints dated 06-02-2002 and
09-02-2002 made by complainant were found in it
along with complaint by other subscribers. They were
seized as per seizure memo at Exh-20.

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After entry of complainant in the office
(a) His right hand fingers were checked. Colour of the
solution turned into violet. The solution was kept in a
bottle and it was sealed. Exh.34 is the seizure memo.
(b) Left front shirt pocket of complainant was dipped in a
fresh solution, the colour changed. The solution was
kept in a bottle and it it is seized. The memo is at
Exh-34.
(c) Measurement of the spot was taken. The map is at
Exh-35.
(d) Panchanama at Exh-21 was prepared.
(e) Search of the house of the accused was taken.
(f) Dy.S.P. Mahale lodged a complainant with Jalgaon
Jamod Police Station. It is at Exh.38.

At the spot, two bottles (containing the solution in which the fingers of

both the hands of the accused were examined), one bottle (containing

the solution in which right hand fingers of the complainant were

examined) and another bottle (containing the solution in which left side

chest shirt pocket of the complainant was examined) in all four bottles

were seized. So also full pant of the accused was seized. The panch and

Investigating Officer have deposed and identified their signatures on

relevant seizure memos. Dy.S.P. Mahale as per the forwarding letter

dated 05-04-2002 (Exh.40) has sent these muddemal properties to the

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Chemical Analyzer. It was PW-4-Sanjay Lahane, Police Naik, who carried

the muddemal to the Chemical Analyzer. The acknowledgment is at

Exh-50 and the report is at Exh-25. His evidence is unchallenged. The

Chemical Analyzer have noticed Phenolphthalein powder and Sodium

Carbonate in four bottles. Whereas Phenolphthalein powder was

detected on the full pant. It is the pant of the accused.

20] The notes found were the same notes which were handed over

by the complainant at the time of drawing of panchanama no.1. Their

numbers tallied with the numbers mentioned in the panchanama. The

complaint given on 11-02-2002 is at Exhibit-12. On 12-02-2002, the

introduction in between the complainant and panchas was done and

verification of the complaint was also done. ASI- Wankhede was also

present on that time. He gave demonstration of reaction of

phenolphthalein powder on Sodium Carbonate solution. The Investigating

Officer Shri Mahale has admitted about explanation given by the accused

immediately when his hands were held by the Constable after the trap.

The complainant forcibly put the amount in his hands was the

explanation given by him. This was also told by shadow panch (PW-2)-

Ravindra Sonune.

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21] During examination-in-chief the complainant has given the

details about how he paid the amount to the appellant. After the

appellant has removed the fault by visiting the spot they returned to the

office. The appellant checked the number by dialing and the phone of

the complainant was found in order. At that juncture also the appellant

demanded the amount of Rs. 300/-. It was given by the complainant and

the appellant accepted as it with his right hand and kept it in left pocket

of the pant. This was also stated by shadow panch Shri Sonune during

examination-in-chief. The explanation given by the appellant that "the

amount was forcibly given to him" is one thing and "happening of event"

in a particular manner is another thing. Merely because, the appellant has

given that explanation it does not mean that really the complainant has

forcibly given the amount. It is true that by way of cross-examination

the appellant could have probabilize this defence but, it has not happened.

So, the explanation by the appellant has remained only explanation.

The observations in the judgments relied upon by the appellant will not be

useful to him. Because initially and even at the time of trap the

complainant has stated about the demand. It is corroborated by the

shadow panch. I do not find that the testimonies of the complainant,

shadow panch and investigating officer were seriously challenged on

the point of completing the formalities. From the above

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evidence, there is a reason to believe the theory of acceptance of

Rs. 300/- by the appellant from the complainant. There is reason to

believe that pre trap and post trap formalities were followed in true spirit.

Status of B.S.N.L.

22] There is a lot of argument on behalf the appellant about the

nature of business carried out by the BSNL and it is not Government

Company. In a case of General Manager, Telecom Vs S. Srinivasa Rao

and others, reported in AIR 1998 SC 656, the Hon'ble Supreme Court

dealt with an issue whether Telecom Department of Union of India is an

'industry' within the meaning of Section 2(j) of the Industrial Disputes

Act, 1947. What is the test for deciding such question has been reiterated.

It has been held that running a Telecom Department is not a sovereign

function of the State but it is a commercial activity and as such it is

industry. It is important to note that what is the issue involved and the

background in which it is involved are important. The observations are

made on the background of dispute arsing out of the provisions of the

Industrial Disputes Act.

23] A decision in case of Bharat Sanchar Nigam Limited and others

vs Pramod V. Sawant and another (Criminal Appeal No.503/2010),

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decided on 19-08-2019 by the Hon'ble Supreme Court) was relied upon.

There the employees of BSNL were prosecuted for not employing the

security guards under the Security Guards Board. The BSNL was

registered with the Board. There was a prosecution for not complying the

provisions of the Maharashtra Private Security Guards Act, 1981. The

Hon'ble High Court refused to quash the criminal proceeding and

negated the contention that the employees of BSNL are the public

servants.

24] It was also negated that "the sanction under Section 197 of

the Cr.P.C. is required prior to their prosecution". This view was

confirmed by the Hon'ble Supreme Court. Learned Advocate Shri Chande

relied upon the said observations in support of his contention that the

appellant cannot be said to be a public servant whereas learned Addl.P.P.

distinguished the provisions of Section 197 of the Cr.P.C. and of the

provisions of Section 19 of the P.C. Act.

Conclusion

25] It is true that in Pramod Sawant's case (supra) the provisions of

Section 197 of Cr.P.C. and meaning of the words 'public servant' given

in Section 21 of the Indian Penal Code were considered. 12th Clause of

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Section 21 lays down the category of person in the service of

Government, local authority, Corporation or Government Company.

Whereas, clause (c) of Section 2 of the P.C. Act gives the meaning of the

words 'public servant'. There are also 12 categories. Category no.(iii)

also lays down similar category of person which has been laid down in

clause 12th of Section 21 of the Indian Penal Code.

26] We do not find any dispute that the BSNL is a company as

defined in Section 617 of the Companies Act, 1956. The certificate for

commencement of business issued by the Deputy Registrar of Companies

to the BSNL dated 19-09-2000 is there in the record of the trial Court.

The trial Court has dealt with this issue and observed that the BSNL is a

Government Company. Now the issue is whether on the basis of

observations by the Hon'ble Supreme Court in case of Pramod Sawant

(supra), whether the findings by the trial Court can be set aside.

27] The issue seems to be simple but, it is difficult to answer.

Because, one cannot simply apply the observations in one case to the

facts of the other case. The Hon'ble Supreme Court has dealt with the

issue whether the Corporations, undertakings and Companies fall within

the definition of the State. On the basis of the facts the question was

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answered. It is pertinent to note that the answer also depends on the

background of the litigation. That is to say whether there is a breach of

any industrial law, contractual obligations, law creating any offence.

The Hon'ble Supreme Court in Pramod Sawant's case relied upon various

cases prominent amongst them is Mohd Hadi Raja vs State of Bihar,

reported in (1998) 5 SCC 91. The Hon'ble Supreme Court dealt with

several petitions involving a common question of law. The issue was

whether the officers of public sector undertakings or Government

companies can avail of the protection under Section 197 of the Cr.P.C. It

has been observed that-

"27. Therefore, in our considered opinion, the protection by
way of sanction under Section 197 of the Code of Criminal
Procedure is not applicable to the officers of government
companies or the public undertakings even when such public
undertakings are "State" within the meaning of Article 12 of
the Constitution on account of deep and pervasive control of
the Government. ........."

28] On this background it will be important to see the provisions of

Section 197 of the Cr.P.C. and Section 19 of the PC Act. Section 19 of the

PC Act lays down -

(a) the offences under the PC Act for which sanction is
required.

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(b) it also lays down the competent authority who can
grant the sanction.

Whereas Section 197 of the Cr.P.C. does not lay down the Act and the

offences under the said Act for which sanction is required. The word

'offence' is used in general sense. It means to say that whichever may be

the law which defines a particular act as an offence, the protection under

Section 197 of the Cr.P.C. can be availed if conditions there are fulfilled.

The said section also lays down which are the competent authority who

can grant sanction. There is one area wherein the wordings of Section

197 of Cr.P.C. are different from the words of Section 19 of the P.C. Act.

The words 'while acting or purporting the act in the discharge of his

official duties" find place in Section 197(1) of the Cr.P.C.. Whereas these

wordings are missing from Section 19 of the P.C. Act. The question is

whether it is accidental omission and if not whether it has got a specific

intention? It cannot be an accidental omission. It is but natural that

legislatures do not expect a public servant prosecuted under P.A. Act

either 1947/1988 to take a defence that he did the act in discharge of or

purported discharge of official duty. But it is not permissible because of

absence of those wordings. Now it need to be seen the facts of Prakash

Sawant.

29] We cannot overlook the background in which observations are

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made. There was a grievance about non compliance of statutory obligation

created under Maharashtra Private Security Guards Act, 1981. The

BSNL being a Company is prosecuted being an establishment. So also its

officers in-charge of the business were prosecuted. There was an

allegation of not employing the guards from security Board. These guards

are required for securing the offices of BSNL. Through these officers,

BSNL carries on its business. No doubt earlier running telecom business

was the activity of Department of Telecommunication which is the wing of

the Government.

30] However, as per the policy of Government, the business of

telecom was detagged from the Department of Telecommunication and

separate Company by name BSNL is formed which is registered under the

provisions of Companies Act. Government still holds shares in it. So

from the stage of complete control over the business, stage of running it

through Government Company was reached. So such an activity can

neither be said to be free from Government policies nor can be said to be

an activity having control of the Government. The Board of Directors of

the BSNL are having liberty to take decision but not just like a private

company. Ultimately the representatives of Government on the Board of

Directors of BSNL are bound to shape the polices of BSNL.

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31] On this background the issue raised before this Court need to be

answered. When there is an issue of adherence to industrial law, Telecom

Department was held to be an industry and doing commercial activity and

is not performing sovereign function. It was held in case of General

Manager Telecom (supra).

32] In both these cases on one hand individual/individuals (either

claiming status of an employee or an aggrieved person under the criminal

law) are there and on the other hand wrong doer the establishment of

BSNL was there. The grievance was there for non compliance of the law

by BSNL (and not against the officers/ employees of BSNL). The officers

of BSNL were not impleaded in their individual capacity but being the

officers.

33] On this background in case of Pramod Sawant defence was

raised that BSNL is not a industry but a department of Government.

Defence was raised that BSNL is a Government company and officers are

public servants as defined under Section 21 of the IPC. The business

carried out, the obligations involved/ for which there is a grievance of non

compliance are considered.

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24 appeal no. 171.04

34] There may be case of breach of fundamental rights by BSNL or

its officers and in that eventuality, this Court will have to answer the issue

in a different perspective. In a case before us, BSNL as an establishment

does not come in to picture. Grievance is not that BSNL as an

establishment breached statutory or contractual obligations. Grievance

is whether the accused being an employee BSNL has abused his position.

Being a mechanic it is part of his duty to repair the faults and keep the

connection intact. Now a days, Government has granted telecom license

to private companies also. But their employees and employees of BSNL

stands on different footings. If considered from all these angles appellant

can certainly said to be a public servant. Because he is working for

achieving the goal of giving economical service to its subscribers. On this

background, when appellant misuses its position and that too to harass

the subscriber, he come within the sweep of Prevention of Corruption Act.

35] He cannot get the benefits of the observations in Prakash

Sawant's case I hold that when an employee of BSNL is charged for

misusing his position for getting an unfair advantage, then the provisions

of P.C. Act will be applicable. He cannot say that he falls outside the

scope of P.C. Act.

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25 appeal no. 171.04

Incompetency of A.C.B. to investigate

36] There is an argument that the appellant being the employee of

BSNL which is governed as per the provision of [The] Delhi Special Police

Establishment Act, 1946 and hence the ACB cannot investigate the

offence. This view is countenanced by the learned Addl.P.P.

Shri Ashirgade. He relied upon the provision of Section 17 of the P.C.

Act.

Conclusion

37] Section 17 deals with the authority who can investigate the

offences under the said Act. Section 17 is in three parts, which reads as

follows -

(a) Inspector of Police - can investigate in case of [The]
Delhi Special Police Establishment
Act.
(b) Assistant Commissioner of Police - can investigate in
the metropolitan areas.
(c) Deputy Superintendent of Police - can investigate in
other areas.

Union Territory and State

38] Learned Advocate Shri Chande emphasized on sub-section 1 of

Section 2 of the Delhi Special Police Establishment Act. Central

Government is empowered to constitute a Special Police Force. It is for

the purpose of investigation of notified offences in any Union Territory.

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26 appeal no. 171.04

So what we gather is the Delhi Special Police establishment is a special

establishment and it can investigate the notified offences in any Union

Territory.

39] The said establishment may also investigate the offences outside

the areas of Union Territory that is in any State if it is notified by the

Central Government and as per section 5 of the said Act. Section 6 of the

said Act contemplates obtaining a sanction from the State Government

prior to enlarging the scope of the establishment over any State. There is

no dispute that in a State of Maharashtra the said establishment was

empowered at that time to investigate the notified offences.

Now the question is -
(a) merely because BSNL is a Government company
&
(b) merely because the said establishment is empowered to
investigate the notified offences in State of Maharashtra.

Whether the State Police is ceased of their authority to investigate the
offences under the provisions of the Prevention of Corruption Act?

40] If we read Clauses (b) and (c) of Section 17 of 1988 Act, we

can find that certain officers are named who can investigate the offences.

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27 appeal no. 171.04

The nomenclature of Police officers in Metropolitan cities and other than

metropolitan cities is different. In Metropolitan cities the head of

Commissionerate area is described as Commissioner of Police whereas in

district (outside Commissionerate area) he is called as Superintendent of

Police. The Police department may be having the internal mechanism

about hierarchy of Police officers. Probably the Deputy Superintendent

of Police may be equivalent to the Assistant Commissioner of Police.

Co-relation of Clauses

41] Now we would like to see whether these three clauses are

independent or is any co-relation amongst them. After the wordings of

clauses (a) and clause (b) is complete semicolon is used. It indicates that

the clauses are independent. So what is the difference in between them

You can find that clauses (b) and (c) the officers are named depending

upon the geographical area that is to say metropolitan cities and other

than metropolitan cities. Whereas in clause (a) there is a reference of the

establishment. Reason is simple. The territorial limits of the jurisdiction

to investigate by that establishment is incorporated in Delhi Special Police

Establishment Act. The said establishment has got jurisdiction to

investigate any Union Territory. Ipso facto they do not get authority to

investigate any territory of a State unless notified and consented by the

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28 appeal no. 171.04

State Government.

42] So it may happen that the offence specified as per Section 3 of

that Act is committed in the territory of the State and if notification is not

issued thereby authorizing the said establishment to investigate in that

State, question will arise whether there is no authority to investigate that

offence. Such contingency is not expected to occur by the legislatures

and that is why section 17 has been drafted in such a manner that there

should not absence of any authority to investigate.

43] So we can infer that in any particular State the Delhi Special

Police Establishment can investigate when notified and consented. So

also Assistant Commissioner of Police or Deputy Superintendent of Police

(depending upon the area) can investigate. It means the said

establishment as well as the designated officers have got simultaneous

jurisdiction to investigate the offences under the P.C. Act. The trial Court

has overruled the objection to that effect. For the reasons given herein

above, I agree with the said conclusion and overruled the objection about

incompetency to investigate.

Incompetency to give sanction

44] Here sanction is granted by Pankaj Biharilal Gupta, Telecom

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29 appeal no. 171.04

District Manager for Khamgaon Area. It is challenged on the ground of his

incompetency to grant sanction to prosecute an absorbed employee of

Department of Telecommunication by BSNL. It is also challenged on the

ground of non application of mind. In support of that contention the

appellant relied upon the following judgment -

1. Maruti Subrao Shinde vs State of Maharashtra, reported in
2011 ALL MR (Cri) 1968.

In that case the appointment of the appellant as Talathi was by Assistant

Collector whereas sanction to prosecute was granted by Sub-Divisional

Officer who is subordinate to the Assistant Collector. The conviction was

set aside.

2. When the Talathi is prosecuted under 1988 Act who is competent to

grant sanction was also involved in a case Dattatraya Laxman Bagadi V/S.

State of Maharashtra reported in 2017 ALL MR (Criminal) 4622. In that

case the Talathi was appointed by the S.D.O so also the S.D.O was

sanctioning authority (para 13). The judgment in case of Maruti Shinde

was also considered. On facts it was held that the sanctioning authority is

competent and there is application of mind.

45] Section 19 of the Act of 1988 is important. Admittedly the

BSNL does not come within the purview of the State Government. So

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30 appeal no. 171.04

also the BSNL cannot be said to be the affair of the Union. Even though

the BSNL is a Government Company the Central Government is not

having full control over it. That is why clause (c) of Section 19 will be

applicable and the authority who can remove the delinquent is given as

an authority to give sanction.

46] Article 311 of the Constitution lays down certain prohibitions

for taking disciplinary action. It gives protection to the Government

servant. If at all the employee is to be dismissed he can only be

dismissed by appointing authority and the authority higher in rank to him.

He cannot be dismissed by the authority inferior to appointing authority.

The Divisional Engineer works under Telecom District Manager. There is

no other material relied upon by the appellant to show that District

Telecom Manager is not appointing and removal authority for Telecom

Mechanic. There is an argument that being the erstwhile employee of

Department of Telecommunication, approval of Department of

Telecommunication is required before taking final decision.

Non-application of mind

47] On the basis of not referring the documents by the sanctioning

authority in the sanction order, the sanction was held defective in a case

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31 appeal no. 171.04

Vinod s/o Savalaram Kanadkhedkar vs The State of Maharashtra, reported

in 2016 All MR (Cri.) 3697. (page 10).

48] There cannot be any dispute that the sanctioning authority

should not grant sanction mechanically. The law expects to apply mind

prior to taking appropriate decision. The Court has to verify whether

the mind has been applied properly or not. It can be gathered by the

Court on the basis of the contents of the sanction order and on the basis of

evidence adduced before the Court. Now it will be material to consider

the evidence of Pankaj Gupta.

49] Witness Gupta has supplied the information to Deputy

Superintendent of Police Shri Mahale vide his letter dated 11-03-2002.

The service information and the information about the concerned

authority has been supplied. It discloses following things -

(i) the appellant was appointed as a regular Mazdoor
(class-IV) on 01-04-1994.
(ii) he was appointed as Telecom Mechanic on 19-01-1999.
(iii) the appellant was working as Telecom Mechanic at
Asalgaon from 23-11-1998 (Group-'C')
(iv) The appointing and terminating authority is Telecom
District Manager, Buldhana.

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32 appeal no. 171.04

There is no doubt that the witness Gupta is Telecom District Manager. He

was asked about the hierarchy of officers working under him. There are

Divisional Engineers working under him. So also Sub-Divisional Engineer

(administration) works under his control. There was a suggestion that

the Divisional Engineer is the appointing and removal authority of

Telecom Mechanic. It was denied. He admits that as a Telecom Mechanic

he was promoted as per the order of Divisional Engineer.

Sanction Order

50] It is very well true that in the sanction order at Exh-28 the

witness Gupta has said "upon carefully reading the papers of investigation

into Crime No. 3016/2002 of Police Station Jalgaon Jamod and after

carefully evaluating the evidence on record". So he has not specified the

papers read by him. In Vinod Kanadkhedkar's case (supra), there was

omission to mention that Rs. 100/- was paid as a bribe in the complaint.

Shadow panch has turned hostile. Not specifying documents in the

sanction order was held as fatal on the background that complaint is

absent on payment towards bribe. When sanctioning authority deals with

such complainant, mentioning documents in the sanction order gains

importance. Because, it is one of the circumstance indicative of

application of mind.

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33 appeal no. 171.04

51] In the present case, sanctioning authority received investigation

papers one month prior to grant of sanction order. Exh.-13 (written

complaint dated 11-02-2002) was included in the investigation papers

sent to him. Whereas IO Dy.S.P. Mahale answers that original of Exh-13

was not seized & it was not forwarded to sanctioning authority (paras 20

& 21). It does not mean that the complaint dated 11/02/2002 was not at

all sent to sanctioning authority. It seems that Exh.13 is the Office/carbon

copy of complaint dated 11/02/2002. It bears the acknowledgment of

witness No.3 Gajanan Kate. So, sanctioning authority must have treated

Exh.13 as the original. One may be confused whether Exh.13 is the

original or carbon copy. It is a carbon copy. But it is clearly legible. It

also bears signature of Dy.S.P. Mahale. Sanctioning authority must have

treated Exh.13 as original. For this discussion, I find no lacunae.

However, it will not be out of place to mention that provision

of sub-section (3) of S. 19 of P.C. Act. This provision gives sanctity to

sanction even if any error, irregularity/omission is there in the sanction.

Such lacunaes will be recognized only if there is failure of justice.

52] In case of Vinod s/o Savalaram Kanadkhedkar the issue of

prejudice was not agitated before this Court. The ratio is not applicable as

facts are different. I find perfect application of mind by the sanctioning

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34 appeal no. 171.04

authority. Mere not referring documents will not make the sanction

defective as no failure of justice is shown. I find that District Telecom

Manager is competent to give sanction and merely because the appellant

is promoted by Divisional engineer it does not make any difference.

Because Telecom District Manager is superior to the Divisional engineer.

The objections are overruled.

Absorption in B.S.N.L.

53] There is an argument that earlier the appellant was employee

of Department of Telecommunication and he was absorbed in BSNL after

its formation. The appellant was dismissed from the service after his

conviction by the trial Court. The said decision was set aside by Hon'ble

Central Administrative Tribunal, Nagpur Bench on 03-12-2015. It was set

aside for the reasons that the authority who dismissed the appellant is a

same authority which has dealt with his appeal against the dismissal.

Therein the provisions of Rule 43 of the B.S.N.L.(CDA) Rules, 2006 were

looked into (paragraph 22). It says that the dismissal or removal of such

absorbed employee will be reviewed before final decision is taken by

B.S.N.L. This argument was put forth to buttress the submission that the

authority who has given a sanction is not competent to give sanction and

it has to be reviewed by the Department of Telecommunication.

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35 appeal no. 171.04

54] It has to be rejected. BSNL Rules were framed in 2006 and this

is the case of 2002. At that time, rules were not in operation. It cannot

override the provisions of Section 19 of P.C. Act. The objection is

overruled. There is a purpose behind incorporating the provision for

reviewing the order of dismissal/removal of an absorbed employee by the

Department of Telecommunication. Because such an absorbed employee

was earlier an employee of Department of Telecommunication. There is

a provision of protecting his earlier service even if such an employee

misconducts himself during his tenure in BSNL. Such provision is not

applicable to a fresh recruit of BSNL. So the action of dismissal/removal

will be having certain effects on retirement benefits. Such an absorbed

employee gets certain benefits for his past service as well as certain

benefits for his current service. So these provisions has got a different

purpose. They cannot be far stretched so as to infer that sanction from

erstwhile employer i.e Department of Telecommunication will be required

for his prosecution under P.A. Act. If he commits an offence while

serving with BSNL, the concerned officers of the BSNL are competent to

grant sanction. The objection is overturned. The decision by Central

Administrative Tribunal will not be useful to the appellant.

Final conclusion

55] For above discussion, I find the prosecution evidence reliable

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36 appeal no. 171.04

and trustworthy. The trial Court has not discussed the evidence in detail

but conclusion drawn is not erroneous. I find no reason to interfere in the

conclusion drawn by the trial Court. The substantive sentence for both the

offences is two years. There is fine of Rs. 1,000/- for every offence. The

appeal is pending since 2004 and the case is of the year 2002. So there is

sword hanging on the head of the appellant that one day he will have to

go jail. He must have completed 58 years. His appeal against dismissal was

allowed and the matter was send back for fresh consideration.

56] In the year 2004, the punishment for an offence under

Section 7 of the said Act was six months minimum and five years

maximum. Whereas for offence punishable under Section 13(2) of the

said Act, it was minimum one year and maximum seven years in the year

2004. The appellant was awarded two years substantive sentence for

every offence. So, I feel that the minimum substantive sentence will meet

the ends of justice. Hence, the substantive sentence is modified to six

months simple imprisonment for an offence punishable under Section 7 of

the said Act and one year simple imprisonment for an offence under

Section 13(1)(d) punishable under Section 13(2) of the said Act. I am

increasing the amount of fine for both the offences. It should be

Rs.5,000/- for every offence. Hence, the sentence is modified. The

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37 appeal no. 171.04

appellant is entitled for set off for the period he has already undergone.

He is given one month to pay the remaining amount of fine and also given

two months time to surrender before the Special Court. Hence, the

following order -

ORDER

(a) The conviction of the appellant for the offence punishable under Section 7 and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is maintained.

(b) The sentence is modified -

For the offence under Section 7 of the Prevention of Corruption Act the appellant is convicted and sentenced to suffer simple imprisonment for six months and to pay fine of Rs. 5000/- and in case of default to pay fine amount he is further sentenced to suffer simple imprisonment for one month.

(c) For the offence under Section 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act the appellant is convicted and sentenced to suffer simple imprisonment for one year and to pay fine of Rs. 5000/- and in case of default to pay fine amount he is further sentenced to suffer simple imprisonment for two months.

(d) The appellant is entitled for set-off for the period already undergone by him.

(e) The appellant is given one month time to deposit remaining amount of fine before the Special Court, ::: Uploaded on - 01/02/2020 ::: Downloaded on - 01/02/2020 21:43:12 ::: 38 appeal no. 171.04 Buldana.

(f) The appellant is given two months time to surrender before the Special Court, Buldana to undergo remaining sentence, if any.

(g) In case of failure to surrender as mentioned above, the Special Court, Buldana is at liberty to take steps as permissible by law.

(h) The substantive sentence to run concurrently.

(i) The appeal is disposed of in the light of above observations.

JUDGE Deshmukh ::: Uploaded on - 01/02/2020 ::: Downloaded on - 01/02/2020 21:43:12 :::

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