No Acts & Articles mentioned in this case
APEAL.789.2004.doc
Ajay
ININ THETHE HIGHHIGH COURTCOURT OFOF JUDICATUREJUDICATURE ATAT BOMBAYBOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 789 OF 2004
The State of Maharashtra ..Appellant
Versus
Shivaji Jaisingrao Patil
..
Respondent
(Original Accused)
....................
Ms. Sangeeta E. Phad, APP for Appellant – State.
Mr. Vijay Killedar a/w. Mr. Sumedh Modak, Advocates for
Respondent (original Accused).
...................
CORAM:MILIND N. JADHAV, J.
DATE:JANUARY 02, 2025
JUDGEMENT. :
1. Heard Ms. Phad, learned APP for Appellant – State and Mr.
Killedar, learned Advocate for Respondent – original Accused.
2. This Appeal arises out of judgement and order dated
08.03.2004 passed by the Special Judge, Solapur in Special (ACB)
Case No.1 of 2002, wherein Accused – Respondent was tried for
offences punishable under Sections 7, 13 (1)(d) and 13 (2) of the
Prevention of Corruption Act, 1988 (for short ‘the said Act’) and on
conclusion of trial acquitted for the aforesaid offences. Being
aggrieved, State of Maharashtra has filed present Criminal Appeal
against acquittal on 25.06.2004. On 16.06.2012, Appeal was admitted.
It was heard for final hearing on 28.11.2024 and 12.12.2024.
1 2025:BHC-AS:2
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3. Brief facts giving rise to the Appeal are as follows:-
3.1. Respondent-Accused was working as Extension Officer in the
year 2000-2001 in the office of Panchayat Samiti Kurduwadi, Taluka
Madha, District – Solapur. Complainant Shri. Maruti Padule was
working as Assistant Junior Engineer attached to Panchayat Samiti,
Kurduwadi. Complainant was transferred to Panchayat Samiti,
Karmala. It is Complainant’s case that he was sent on deputation back
to Kurduwadi by order dated 19.08.2000 to complete pending works
which had remained incomplete. According to Complainant by letter
dated 24.08.2000, he requested the Block Development Officer,
Kurduwadi (for short ‘BDO’) to furnish pending works papers for
completing arrears of work. Thereafter, as per complainant, he
completed all pending works by 04.01.2001 and requested the
Respondent – Accused to give Completion Certificate to him along with
relieving letter. He requested Respondent to forward his Leave Pay
Certificate (for short ‘LPC’) and service record of completion of works
since he had not drawn his salary during that period, which would
enable him to draw the same. As per Complainant BDO, Kurduwadi
directed him to approach Respondent and obtain Clearance of work
Certificate from him after his verification. On 12.01.2001, he met
Respondent and requested him to submit report of completion of work
when Respondent demanded Rs.25,000/- bribe from him for issuing
his Completion Certificate. As per Complainant, he met Respondent on
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16.01.2001 and also on 18.01.2001 with the same request and
demand for Rs.25,000/- was once again made by Respondent on both
dates.
3.2. As per Complainant, he expressed his inability to pay the
said bribe amount, but after negotiation Respondent agreed on the
amount of Rs.15,000/-. Thereafter on 30.01.2001, Complainant met
BDO, Mr. Shivaji Pawar and requested him to relieve him. BDO once
again asked him to meet Respondent and obtain Completion
Certificate. Complainant immediately met Respondent on the same
day, but Respondent demanded Rs.15,000/- from him to issue his
Completion Certificate. Thereafter Complainant met Respondent on
07.02.2001 and repeated his request when he was informed to meet
him on the next day i.e. on 08.02.2001 and pay Rs.5,000/- and was
told to pay balance amount of Rs.10,000/- on the following Monday.
3.3. On 07.02.2001, Complainant filed complaint with the Anti
Corruption Bureau (for short ‘ACB’) Office in Solapur. After completing
legal formalities, Complainant was called to ACB Office on 08.02.2001
and was asked to bring along with him currency notes of Rs.5,000/-
denominations. Independent panch witness was called to the ACB
Office on 08.02.2001. Before meeting Respondent, pre-trap
panchnama was recorded in the ACB Office in the presence of panch
witness. It recorded that Complainant carried alongwith him an
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amount of Rs.5,000/- (marked currency) comprising of 50 notes in
denomination of Rs.100/- and Rs.750/- in cash separately.
3.4. As per Complainant, he thereafter met Respondent in his
Office on 08.02.2001 when Respondent inquired whether he had
brought Rs.5,000/- and asked him to meet him at the nearby canteen
called ‘Sachin Uphar Griha’. Complainant and Respondent met in the
canteen after 5:30 pm where the trap was set.
3.5. As per prosecution case, Respondent and Complainant met
for tea, Complainant paid the bribe amount, Respondent accepted the
same from Complainant, thereafter Complainant paid Rs.10/- for tea
consumed to the Canteen Cashier and thereafter alerted the ACB
raiding party, who immediately apprehended Respondent and
conducted detailed post-trap panchanama. As per prosecution,
Respondent’s hands and fingers showed traces of anthracene powder
applied by the ACB on the currency notes of Rs.5,000/- denomination
which were accepted by Respondent. However, post-trap panchnama
incidentally revealed that the separate amount recovered from
Complainant was Rs.750/-
3.6. DCP lodged a complaint on behalf of the State at Kurduwadi
Police Station and Crime No.04 of 2001 was registered against
Respondent. Statements of witnesses were recorded and investigation
was carried out. On receipt of Sanction Order from Competent
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Authority, charge-sheet was filed against Respondent.
3.7. Charge was framed for aforesaid offences that is appended
below Exhibit-4. Respondent-Accused pleaded not guilty. Trial was
conducted, evidence was led, statement of Accused under Section 313
of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) was recorded
pursuant to which by judgement dated 08.03.2004, Respondent was
acquitted.
4. To bring home the guilt of Respondent – Accused,
prosecution led evidence of four (4) witnesses whereas Respondent –
Accused in his defence led evidence of three (3) witnesses.
5. Prosecution examined PW-1 Shri. Bhimsen Naik,
Sanctioning Authority below Exhibit-08, PW-2 i.e. Complainant Shri.
Maruti Padule below Exhibit-11, Shri. Dinesh Bukka – panch witness
No.1 as PW-3 for proving pre-trap and post-trap panchanamas below
Exhibits - 23 to 25 and PW-4 Mr. Dilip Panse - Investigating Officer
(I.O.) below Exhibit-36.
6. Respondent-Accused examined DW-1, BDO, Mr. Shivaji
Pawar below Exhibit-45 and Mr. Suresh Kumbhar and Mr. Laxman
Galgunde, employees working in the office of Respondent as DW-2 and
DW-3 below Exhibit-52 and Exhibit-53 respectively.
7. Prosecution relied upon several documents in support of its
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case which are referred by the learned APP before me while
maintaining challenge to the impugned judgement of acquittal of
Respondent. Learned APP has taken me through the Sanction Order
below Exhibit-9, complaint dated 07.02.2001 filed by Complainant
with ACB below Exhibit-17, pre-trap and post-trap panchanamas below
Exhibits-24 and 25, additional panchanama of relevant documents
below Exhibit-26 and arrest panchanama below Exhibit-28 along with
the depositions of PW-1 to PW-4 and DW-1 to DW-3. Rather Mr.
Killedar, learned Advocate for Respondent has also referred to the
aforesaid documents exhibited by the Trial Court in evidence, but in
support of Respondent’s defence.
8. Ms. Phad, learned APP would submit that Exhibit-9 is the
Sanction Order issued by the Sanctioning Authority. She would submit
that Sanctioning Authority is examined as PW-1 and when his
deposition is seen, he has stated that as the Statutory Officer he
received papers from the ACB Office to accord Sanction to prosecute
Respondent, that he has gone through all papers and report submitted
and thereafter came to the conclusion that there was sufficient
evidence to accord Sanction.
8.1. She would submit that accordingly sanction is accorded. She
would submit that Sanction Order bears sign of Mr. Bhimsen Naik,
C.E.O. Zilla Parishad, Solapur at the then time. She would submit that
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though in cross-examination several questions are asked to Sanctioning
Authority as to whether he had received a typed draft copy of Sanction
Order or whether he applied his mind before according sanction, he
has answered these questions by stating that he signed the Sanction
Order after going through the same. She would submit that if Sanction
Order is seen, it is a detailed order running into six pages signed by
PW-1, who is the appointing and removing Authority in accordance
with law.
8.2. Next, she would submit that deposition of PW-2 Complainant
is most crucial evidence in this case which proves case of prosecution
and it therefore needs to be appreciated in its proper perspective. She
would submit that evidence of PW-2 is direct evidence as eye-witness
to the acceptance of graft from him which is recovered from
Respondent. By drawing my attention to his examination-in-chief, she
would submit that Complainant has given a detailed account of his
duties and work on deputation at Panchayat Samiti, Kurduwadi. That
he has deposed that pursuant to Sanction Order dated 19.08.2000
passed by BDO, Karmala, Complainant sought details of all incomplete
works required to be completed by him by addressing letter dated
24.08.2000 to BDO, Kurduwadi, which is marked in evidence below
Exhibit-12. That after receiving all registers and files pertaining to
pending works, Complainant completed the same by 04.01.2001 and
thereafter addressed letter dated 05.01.2001 to BDO Kurduwadi
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seeking work Completion Certificate and relieving letter so that he
could resume his duty at Panchayat Samiti, Karmala. That he also
requested to forward his LPC and service book along with details of
travelling allowance and dearness allowance so that he could claim his
salary and the entitled expenses.
8.3. She would submit that since Complainant did not
receive his salary nor relieving letter, he called upon the BDO,
Kurduwadi who asked him to meet Respondent since Respondent was
to submit report about completion of pending works by him. She
would submit that Complainant met Respondent on 09.01.2001,
12.01.2001, 16.01.2001, 18.01.2001, 30.01.2001, 07.02.2001 and
08.02.2001 that BDO, Kurduwadi informed him that unless report was
received from Respondent it was not possible for him to issue works
Completion Certificate to him.
8.4. She would submit that Respondent made initial demand of
Rs.25,000/- from Complainant on 12.01.2001 for the first time. She
would submit that Complainant at that time expressed his inability to
pay the said amount but when he met Respondent on 18.01.2001
subsequently he was told to pay Rs. 15,000/-. She would submit that
when Complainant expressed his inability to part with this amount also
Respondent was unrelenting but on 30.01.2001, Respondent asked
Complainant that he should pay Rs.5,000/- out of Rs.15,000 and
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balance amount of Rs.10,000/- can be paid later.
8.5. She would submit that when Complainant met Respondent
on 07.02.2000, he asked him to pay Rs.5,000/- on the following day
that is on 08.02.2001 and the balance amount of Rs.10,000/- later.
Thus she would submit that Respondent made four demands for
payment of bribe amount to issue Completion Certificate to
Complainant as delineated above. She would submit that aforesaid
turn of events compelled Complainant to lodge complaint on
07.02.2001.
8.6. Next she would submit that deposition of PW-2, Complainant
himself, clearly establishes the pre-trap panchnama carried by the ACB
by following the due process of law and post-trap panchnama. She
would submit that in the post-trap panchanama marked ‘currency
notes’ of Rs.5,000/- to which anthracene powder was applied at the
pre-trap panchnama stage were recovered from Respondent after he
had accepted the same from Complainant.
8.7. She would submit that spot of incident was 'Sachin Uphar
Gruha' where Complainant; panch witness No.1 i.e. PW-3 and
Respondent – Accused sat face to face for having tea when Respondent
asked Complainant in Marathi language to hand over amount of
Rs.5,000/- to him at which time Complainant handed over the same to
him and he kept it in his watch pocket. She would submit that
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thereafter Complainant paid the tea bill of Rs.10/- to the canteen
Cashier and alerted the ACB team who was waiting outside the
canteen and Respondent was apprehended with the marked ‘currency
notes’ and traces of anthracene powder from his hands and fingers.
Post-trap panchanama was prepared and on the following day
complaint was filed against Respondent by ACB.
8.8. She would thus submit that this is an open and shut case
proved by prosecution beyond all reasonable doubts of Respondent
having received Rs.5,000/- demanded by him out of Rs.15,000/- from
Complainant and liable for being prosecuted under the said Act.
8.9. She would submit that Respondent challenged grant of
sanction by Sanctioning Authority and even on merits by taking a
defense that the amount of Rs.5,000/- handed over by Complainant to
him was the amount of tickets sold of a Marathi show called 'Natrangi
Nar'' held on 07.01.2001, in respect of which Respondent had given
ticket booklets to Complainant for sale of tickets to public and the
amount of Rs.5,000/- was the amount of tickets sold which
Complainant handed over to him.
8.10. She would submit that case of prosecution deserved to be
believed because it was an admitted position that Complainant
completed all pending works for which reason he was transferred on
deputation to Kurduwadi and it only thereafter that he demanded
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Completion Certificate. She would fairly submit that these facts are
undisputed though on the aspect of completion of work, defense has
through its witnesses have attempted to prove that Complainant did
not join and complete the pending works and it is only out of revenge
to trap Respondent and BDO, Kurduwadi that he made out a false case.
She would submit that evidence of PW-2 stands corroborated by PW-3,
who is an independent witness to the actual incident of accepting bribe
amount of Rs.5,000/-. She would submit that pre-trap and post-trap
panchanama below Exhibit-24 and Exhibit-25, virtually prove the
prosecution case of demand and acceptance and defense argument
that pre-trap panchanama and post-trap panchanama amount carried
and recovered from Complainant was the same (Rs.758/-) when it was
PW-2’s case that he paid Rs.10/- out of the said amount after having
tea with Respondent to the canteen Cashier cannot disprove the fact
that Respondent - Accused accepted the bribe amount. She would
submit that learned Trial Court has not correctly appreciated the
prosecution case and therefore the impugned judgement requires a
revisit on the basis of re-appreciation of the aforesaid evidence by this
Court in the present Appeal.
8.11. In support of prosecution case she has referred to and relied
upon the following decisions of the Supreme Court:-
(i) C.S. Krishnamurthy Vs. State of Karnataka
1
;
1AIR 2005 SUPREME COURT 2790.
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(ii) Neeraj Dutta Vs. State (Govt. Of NCT Delhi)
2
; and
(iii) The State of Karnataka Vs. Chandrasha
3
.
8.12. She would contend that Sanction Order in the present case
in an expressive order. She would submit that it is eloquent enough
and clearly shows that Sanctioning Authority has considered the case
against Respondent which is stated in detail therein. She would
submit that Supreme Court in the case of C.S. Krishnamurthy (1
st
supra) held that only formal evidence has to be seen by Sanctioning
Authority with due application of mind. She would submit that it is not
possible to take a pedantic approach as argued by defence that
Sanction Order was a mere draft order given to the Authority and
there was no application of his mind before signing it. She would
submit that Sanction Order considers all aspects as stated therein and
is therefore valid for prosecuting Respondent - Government Servant.
She would submit that Sanctioning Authority PW-1 has himself
deposed that he has signed the Sanction Order after being acquainted
with the detailed facts which would render the sanction as valid.
8.13. She would further submit that as held by the Supreme Court
in the case of Neeraj Dutta (2
nd
supra), proof of demand of acceptance
of illegal gratification by a public servant is a sine qua non in order to
establish guilt of Accused – public servant for offence of bribery. She
2AIR OnLine 2022 SC 1160.
32024 INSC 899.
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would submit that this proposition stands fully established by direct
evidence of PW-2 and PW-3 in the present case and once it is proved
commission of offence is established.
8.14. She would submit that defence case of relying upon an alibi
relating to the amount being the ticket proceeds received by
Respondent cannot be accepted because it is a complete afterthought
by defence to challenge the direct evidence proved by prosecution
witnesses. She would submit that oral evidence proved by prosecution
in the present case through PW-2 and PW-3 is direct or original
evidence whereas the defence evidence through its witnesses is hearsay
evidence or derivative evidence. Hence she would submit that
applying the principles laid in in the case of Neeraj Dutta (2
nd
supra)
by the Supreme Court, the impugned judgement of acquittal deserves
to be interfered with.
8.15. She would next invoke the presumption under Section 20 (1)
of the said Act and would submit that when fact of receipt of payment
stands proven then a clear case of nexus is established and therefore
presumption under Section 20 (1) of the said Act is irrelevant. She
would submit that in the present case recovery of bribe amount from
Respondent is fully proved and therefore defence explanation offered
by him is fragile, a clear afterthought and made to merely oppose the
proven case of prosecution.
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8.16. She would heavily rely upon the ratio in decision of The
State of Karnataka (3
rd
supra) in support of prosecution case and urge
the Court to consider the overall circumstances and evidence on record
to set aside the judgment of acquittal passed by the Trial Court.
9. PER CONTRA, Mr. Killedar, learned Advocate for the
Respondent – Accused would vehemently oppose the submissions
made by the learned Public Prosecutor and would support the
impugned judgment. At the outset, he would vehemently attack the
Sanction Order taken on record below Exhibit-9 and contend that on a
plain reading of the said Sanction Order it is an admitted position that
PW-1 received it as a draft sanction having three blank spaces therein
for filling in the name of the Authority, the designation, date and place
and thereafter to append his signature thereto. He would submit that it
is an admitted position by the prosecution witnesses i.e. PW-1 himself
that he merely filled in the aforesaid three blank spaces and signed on
the already transcribed Sanction Order to drive home the point that
such signature made on an already transcribed Sanction Order by
merely filing in blanks of name, designation, place and date would
amount to issuing the Order with complete non-application of mind.
In this context, he would draw my attention towards cross-examination
of PW-1 – Sanctioning Authority and would submit that in paragraph
No.3 thereof, he has admitted that before according sanction he did
not prepare any notes or made any attempt to find out if any official
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work was pending to be completed by Complainant and most
importantly he did not receive the 'B' file which is the office file of
Complainant before ascertaining and verifying the contents of the draft
Sanction Order.
9.1. He would submit that grant of sanction is a serious exercise
of power by the exercising authority and he is expected to take a
conscious decision on the basis of cogent material placed before him.
He would vehemently argue that in the present case once the Court is
acceded upon to take cognizance of the bar under Section 19 of the
said Act, it was inquired whether there was a valid sanction to
prosecute a Pubic Servant. He would submit that in the present case,
Sanctioning Authority PW-1 has himself admitted that he has filled
three blanks i.e. his name, designation / Authority, date and place
which would amount to a mere formality by him. He would submit
that as held by Supreme Court in the case of C.S. Krishnamurthy (1
st
supra), Sanctioning Officer is the best person to judge as to whether
the public servant should receive protection under the said Act by
refusing to accord sanction or otherwise. He would submit that in that
regard application of mind on the part of Sanctioning Authority is
therefore imperative and, the order granting sanction must be
demonstrative of the fact that there is proper application of mind
which in the present case is clearly absent.
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10. He would submit that sanction is accorded in the present
case by PW-1 without calling for the 'B' file of Complainant, in not
ascertaining and verifying the contents of the draft Sanction Order
presented and merely appending signature on the transcribed draft
copy of sanction received from the ACB.
11. Next on the merits of the matter, Mr. Killedar would submit
that prosecution has argued that initial demand was made by
Respondent on 12.01.2001, 16.01.2001, 18.01.2001 and 07.02.2001
and it is his case that on all above dates, Complainant visited the office
of BDO Kurduwadi and met BDO and Respondent in his office when
the demand was made / reiterated. He would submit that defence
witnesses have placed on record documentary evidence in the form of
Log book of the Government vehicle of BDO, Kurduwadi and also
examined BDO, Kurduwadi as DW-1 to prove that on all
aforementioned dates BDO was never present in his office during the
day and he was away on field duty. He would submit that the Log book
of Government vehicle has been taken on record on Exhibit-49 and
each of the entries on the above dates show that BDO was not
physically present in his office during office hours throughout the day.
Further he would submit that admittedly Respondent was on
sanctioned leave from 19.01.2001 to 07.02.2001 which is also proved
by Investigating Officer. He would therefore submit that the allegation
of Complainant of having met Respondent and BDO on all / some of
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the aforesaid dates is therefore clearly false.
12. He would submit that Log book entries on all aforesaid dates
clearly show the time of departure of the BDO for his office, place of
work visited for carrying out his official duties on all aforesaid dates
and his return time to Solapur / Office and would contend that
Complainant has made out a false case of having met the BDO /
Respondent on all above dates pertaining to initial demand by
Respondent. He would submit that entries in the Government Log book
cannot be disbelieved and therefore learned Trial Court has considered
the same in its proper perspective as an important ground to exonerate
the Respondent.
13. Next on the issue of motive behind the demand and
acceptance of bribe, he would submit that in this case it is
Complainant's case that he required the relieving letter from BDO,
Kurduwadi but BDO asked him to meet the Respondent – accused
repeatedly for getting the completion of pending works certificate. He
would submit that in evidence it is proved that Complainant did not
join Kurduwadi Panchayat Samiti Office in the first place that there is
no joining report produced, that he never completed any of the
pending works, that he was issued Show Cause Notice for not
completing the pending works, that he replied to the said notices in
writing, that Departmental action was initiated against him. He would
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submit that in PW - 2 i.e. Complainant's cross-examination when asked
to produce his joining report, he could not produce it and most
importantly he admitted that he never signed any muster roll or tour
register in Kurduwadi Panchayat Samiti Office which he claimed to
have joined on deputation for completion of the incomplete works. He
would submit that Complainant failed to prove and place on record
any documentary evidence of he having even attempted to complete
any of the incomplete works on his alleged joining Kurduwadi Office.
14. In support of his above submissions, he would invite my
attention to Exhibit-27 which is the ‘B’ file that is the office file of
Complainant and contend that perusal of the said office file shows that
Complainant did not complete any of the pending works that the BDO
therefore issued Show Cause Notice to him and Complainant replied to
those Show Cause Notices in writing. He would argue that Exhibit-27
shows that due to such dereliction of duty by Complainant BDO,
Kurduwadi submitted adverse report about Complainant - CEO Zilla
Parishhad, Solapur. Thereafter Departmental Inquiry was initiated
against Complainant on the ground that even though he was relieved
as far back as on 19.08.2000 from by BDO, Karmala and directed to
join Kurduwadi Panchyat Samiti Office for completion of pending
works he did not join Kurduwadi Office and falsely claimed to have
completed the pending works and claimed to be reimbursed.
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15. He would draw my attention to Show Cause Notice dated
05.08.2000; letters dated 18.12.2000 and 12.01.2001 which are taken
on record below Exhibit-18, Exhibit-46 and Exhibit-47 in evidence and
proceedings book dated 15.01.2001 which is taken on record below
Exhibit-48 in support of his above submissions to prove that
Complainant never joined Kurduwadi Panchyat Samiti Office. He
would submit that implication of Respondent by Complainant is on
account of a completely false and malafide case due to his
Departmental proceedings and Complainant was merely waiting for an
opportunity to frame the Respondent and BDO, Kurduwadi for which
he deliberately waited until beyond 07.02.2001.
16. He would submit that the Charity Show for which ticket
booklets were given by Respondent to Complainant and many other
staff members that were to be accounted for on 08.02.2001 since the
show was held on 07.02.2001. Complainant met Respondent on
08.02.2001 at 05:30 p.m. after office hours for handing over amount
of tickets sold, which finds mention in the post-trap panchanama
below Exhibit-25. He would submit that the delay in the aforesaid
case from the date of initial demand i.e. 12.01.2001 upto 07.02.2001
is clearly evitable on the face of record and therefore learned Trial
Court has correctly examined and appreciated the evidence on record
in determining the motive and defence of Respondent before coming to
the conclusion that defense evidence is more probable and acceptable
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and it has been proved beyond all reasonable doubts resulting in
Respondent being acquitted.
17. In support of his aforesaid submissions and propositions, he
has referred to and relied upon the following decisions of the Supreme
Court:- (i) Dudh Nath Pandey Vs. State of Uttar Pradesh
4
;(ii) State
(Anti Corruption Branch) Vs. R.C. Anand (Dr.)
5
; (iii) State of Karnataka
Vs. Ameer Jain
6
; (iv) Ghurey Lal Vs. State of U.P.
7
; (v) Motilal Jalsingh
Pawar Vs. The State of Maharashtra
8
; (vi) Sashikant Piraji Sonawane
Vs. The State of Maharashtra
9
; (vii) Sashikant Sitaram Masdekar and
Anr. Vs. The State of Maharashtra
10
; (viii) Nishant Bhaskarrao Kulkarni
since deceased through his Legal Heirs and Others Vs. State of
Maharashtra
11
; and (ix)Sait Tarajee Khimchand and Others Vs.
Yelamarti Satyam alias Satteyya and Ors.
12
.
18. I have heard the submissions made by Ms. Phad, learned APP
for State and Mr. Killedar, learned Advocate for Respondent and with
their able assistance perused the entire record of the case.
19. At the outset, challenge to grant of Sanction Order which has
been vehemently argued by defence needs to be addressed before I
4(1981) 2 Supreme Court Cases 166.
5 (2004) 4 SCC 615.
6 2007 (9) SCR 1105.
7(2008) 10 SCC 450.
81985 (1) Bom. C.R. 669.
9 2015 SCC OnLine Bom 4751.
102015 SCC OnLine Bom 6561.
112019 (2) Bom.C.R.(Cri) 18.
12(1972) 4 Supreme Court Cases 562.
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advert to the submissions on merits. The valid sanction granted, being
the bone of contention between parties is objected to by the defense as
not a valid sanction in the first place. Trial Court has however rejected
this contention but acquitted the Respondent on merits of the case.
Admittedly Respondent has not filed an Appeal to challenge the
acceptance of the Sanction Order as valid. However the issue of valid
sanction goes to the root of the matter. It is the sine qua non of the
prosecution case. It is a statutory requirement. If the sanction order is
invalid, all further proceedings have to fail.
20. I have heard Ms. Phad and Mr. Killedar on the above issue of
grant of sanction extensively as both learned Advocates have chosen to
address me and also perused the authoritative pronouncements on the
same. Admittedly, Respondent is a public servant. It is seen that PW-1
i.e. Sanctioning Authority is the appointing and removing authority for
Respondent who is appointed as Extension Officer in the Kurduwadi
Panchyat Samiti Office. The Sanction Order is appended at page
Nos.52 to 59 and is taken on record in evidence as Exhibit-9. Both
learned Advocates have taken me through the said Sanction Order in
the course of their submissions.
21. It is seen that Respondent was working as Extension Officer.
Perusal of Exhibit-9 shows that it is a detailed Sanction Order in
Marathi language which delineates all facts of the case which are
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alluded to hereinabove and concludes that Respondent is guilty of
committing offence under the said Act and therefore sanction is
accorded to prosecute him.
22. The Sanction Order is running into 8 pages from page
Nos.52 to 59 of the paperbook. On internal page No.7, it is stated that
the Sanctioning Authority has scrutinised the entire record of the case.
The Sanctioning Authority has deposed in evidence as PW-1. In his
cross-examination Sanctioning Authority has categorically admitted
that he has not received and seen the 'B' file of Complainant before
according sanction, that he has not made any notes to ascertain the
noting from the record, that he received draft Sanction Order with
three (3) blanks to be filled in by him namely his name, authority /
designation and date, that he filled in the above by putting his name,
place, date and signature in his handwriting in the blank space
provided, that according to him it was not necessary to find out if any
official work remained incomplete by Complainant, that it was duty of
BDO to ascertain whether Complainant had completed the incomplete
works before relieving him and he admitted that no file was put up
before him for relieving the Complainant.
23. In the backdrop of the above deposition of Sanctioning
Authority, Mr. Killedar vehemently submitted that there is complete
non-application of mind by Sanctioning Authority while granting
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sanction without ascertaining the motive, without ascertaining the
initial demand made on atleast four occasions, without ascertaining
the final demand, without studying the 'B' file i.e. office file of
Complainant to ascertain whether he indeed completed the pending
work and without doing so he has mechanically signed on the draft
Sanction Order and hence the Sanction Order lacks on its validity at
the inception stage itself. In view of these submissions it would be
worthwhile to reproduce certain paragraphs of the authoritarian
pronouncements on the above issue of “application of mind” by the
Sanctioning Authority so as to consider and accept the prosecution
case.
24. Paragraph Nos.13 to 20 of the decision of the learned Single
Judge of this Bench (Coram Ms. Bharti Dangre J.) in the case of Sagar
Ramchandra Vatkar Vs. The State of Maharashtra
13
pronounced on
09.04.2021 encapsulates all guiding principles etched out from
previous pronouncements of Courts required to be adhered by the
Sanctioning Authority before according sanction for prosecution under
the said Act. The said paragraphs are reproduced herein below for
reference:-
“13. Grant of sanction is a sacrosanct act and it is intended to
provide safeguard to a public servant against the frivolous and
vexatious litigation. It is only an administrative function and
the Sanctioning Authority is required to, prima facie, reach the
satisfaction that relevant facts would constitute the offence. The
satisfaction of the Sanctioning Authority is essential to validate
13Criminal Appeal No.638 of 2012 decided on 09.04.2021.
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an order granting sanction. It is incumbent upon the
prosecution to prove the existence of a valid sanction, which
connote that the sanction must be granted by the Sanctioning
Authority after being satisfied, that a case is made out for
sanction. The Sanction Order must expressly show that the
Sanctioning Authority has perused the material and, on
consideration of the circumstances, granted the sanction for
prosecution. It is open for the prosecution to prove by adducing
evidence that the material was placed before the Sanctioning
Authority and its satisfaction was arrived at upon perusal of the
said material and if some of those material is not placed, that
would not necessarily vitiate the order of sanction. Grant of
sanction is a serious exercise of power by the competent
authority, which is expected to take conscious decision on the
basis of the relevant material. The decision making, on the
basis of relevant material, should be reflected in the Sanction
Order and, if not, it should be capable of proving it before the
court. The existence of a valid sanction is a prerequisite for
taking cognizance of offence alleged to have been committed
by a public servant, however, the bar for taking of congnizance
by the court is raised, as contemplated under Section 19 of the
PC Act. Therefore, when the court is called upon to take
cognizance, it must enquire whether there is a valid sanction to
prosecute a Public Servant. A trial without valid sanction is a
trial without jurisdiction by the court.
14. In Ashok Kumar Aggarwal (supra), in paragraphs 13 and
14, the Apex Court held as under:
13. The prosecution has to satisfy the court that
at the time of sending the matter for grant of
sanction by the competent authority, adequate
material for such grant was made available to the
said authority. This may also be evident from the
Sanction Order, in case it is extremely
comprehensive, as all the facts and circumstances of
the case may be spelt out in the Sanction Order.
However, in every individual case, the court has to
find out whether there has been an application of
mind on the part of the sanctioning authority
concerned on the material placed before it. It is so
necessary for the reason that there is an obligation
on the sanctioning authority to discharge its duty to
give or withhold sanction only after having full
knowledge of the material facts of the case. Grant
of sanction is not a mere formality. Therefore, the
provisions in regard to the sanction must be
observed with complete strictness keeping in mind
the Sagar Ramchandra Vatkar vs The State Of
Maharashtra on 9 April, 2021 public interest and
the protection available to the accused against
whom the sanction is sought.
14. It is to be kept in mind that sanction lifts the
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bar for prosecution. Therefore, it is not an
acrimonious exercise but a solemn and sacrosanct
act which affords protection to the government
servant against frivolous prosecution. Further, it is a
weapon to discourage vexatious prosecution and is
a safeguard for the innocent, though not a shield for
the guilty.
15. The application of mind of the Sanctioning Authority, can
be discerned from the order of sanction, which must, ex-facie,
disclose consideration of the material in the form of evidence
and other material placed before it. It is imperative for the
prosecution to establish and satisfy the court by leading
evidence that those facts were placed before the Sanctioning
Authority and the Sanctioning Authority has applied its mind
on the same. It is only on completion of the aforesaid
formalities and, the evidence to that effect being placed on
record by the prosecution and further from the recital of the
Sanction Order, an inference may be drawn that the sanction,
which is granted is in accordance with law.
16. It becomes necessary, in every case, to examine the
validity of the Sanction Order, inter alia, on the ground that the
order suffers from vice of non-application of mind. The
principles having summarized by the Apex Court in paragraph
16 of the said judgment, in the following words:
"16. In view of the above, the legal propositions
can be summarised as under:
16.1 The prosecution must send the entire relevant
record to the sanctioning authority including the
FIR, disclosure statements, statements of witnesses,
recovery memos, draft charge sheet and all other
relevant material. The record so sent should also
contain the material/document, if any, which may
tilt the balance in favour of the accused and on the
basis of which, the competent authority may refuse
sanction.
16.2 The authority itself has to do complete and
conscious scrutiny of the whole record so produced
by the prosecution independently applying its mind
and taking into consideration all the relevant facts
before grant of sanction while discharging its duty to
give or withhold the sanction.
16.3 The power to grant sanction is to be exercised
strictly keeping in mind the public interest and the
protection available to the accused against whom
the sanction is sought.
16.4 The order of sanction should make it evident
that the authority had been aware of all relevant
facts/materials and had applied its mind to all the
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relevant material.
16.5 In every individual case, the prosecution has to
establish and satisfy the court by leading evidence
that the entire relevant facts had been placed before
the sanctioning authority and the authority had
applied its mind on the same and that the sanction
had been granted in accordance with law."
17. What flows from the aforesaid authoritative
pronouncement is the authority which has been conferred with
the power to grant sanction for prosecution of a public servant
has to do complete and conscious scrutiny of the record
produced by the prosecution and what is implied is that this
exercise is undertaken by the authority itself by applying its
mind independently and, by taking into consideration, all the
relevant facts placed before it when it is discharging its duties
either to grant or to withhold the sanction.
18. In the case of P. L. Tatwal v. State of Madhya Pradesh
5
,
the Apex Court held that the grant of sanction is a serious
exercise of power by the competent authority and it also held
that the trial court should conduct a through enquiry as to
whether all the relevant material is placed before the
competent authority and the competent authority has referred
to the same, so as to form an 5 (2014) 11 SCC 431 opinion
whether the same constitutes an offence requiring sanction for
prosecution. Dealing with the case of an appellant, who
appealed before the court on the ground that in view of his
appointment by the Administrator, the sanction must also be
given by the Administrator and in absentia by the State
Government, which appoints the Administrator and to claim
that there is no proper and valid sanction by the competent
authority, after referring its earlier decisions in the case of State
of Maharashtra v. Mahesh G. Jain, the court held as under:
13. In a recent decision in State of Maharashtra
through Central Bureau of Investigation v. Mahesh
G. Gain, the court has referred to the various
decisions on this aspect from paragraph 8 onwards.
It has been held at paragraph 8 as follows:
"8. In Mohd. Iqbal Ahmed v. State of A.P., this
Court lucidly registered the view that (SCC p.
174, para 3) it is incumbent on the
prosecution to prove that a valid sanction has
been granted by the sanctioning authority
after being satisfied that a case for sanction
has been made out constituting an offence and
the same should be done in two ways; either
(i) by producing the original sanction which
itself contains the facts constituting the
offence and the grounds of satisfaction, and
(ii) by adducing evidence aliunde to show the
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facts placed before the sanctioning authority
and the satisfaction arrived at by it. It is well
settled that any case instituted without a
proper sanction must fail because this being a
manifest defect in the prosecution, the entire
proceedings are rendered void ab initio."
In the peculiar facts, it was held as under:
16. In such circumstances, we are of the
view that the trial court should conduct
a proper inquiry as to whether all the
relevant materials were placed before
the competent authority and whether
the competent authority has referred to
the same so as to form an opinion as to
whether the same constituted an offence
requiring sanction for prosecution. In
that view of the matter, we set aside the
impugned order passed by the High
Court and also order dated 27.12.2004
passed in Special Case No. 12 of 2004 by
the trial court and remit the matter to
the Special Judge (P.C. Act, 1988),
Ujjain, Madhya Pradesh.
19. The aforesaid authoritative pronouncements undisputedly
contemplate "application of mind" by the Sanctioning Authority
"upon consideration of the material placed before it ".
Consideration implies application of independent mind. The
order of sanction must, ex facie, disclose that the Sanctioning
Authority, on consideration of the evidence and other material
placed before it, has applied its mind and arrived at a decision
either way. In case of Mansukhlal Vithaldas Chauhan v. State of
Gujarat 7, the Apex Court has observed as under: "
19. Since the validity of "Sanction" depends on the
applicability of mind by the sanctioning authority to
the facts of the case as also the material and
evidence collected during investigation, it
necessarily follows, that the sanctioning authority
has to apply its own independent mind for the
generation of genuie satisfaction whether
prosecution has to be sanctioned or not. The mind of
the sanctioning authority should not be under
pressure from any quarter nor should any external
force be acting upon it to take decision one way or
the other. Since the discretion to grant or not to
grant sanction vests absolutely in the sanctioning
authority, its discretion should be shown to have not
been affected by any extraneous consideration. If is
shown that the sanctioning authority was unable to
apply its independent mind for any reason
whatsoever or was under an obligation or
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compulsion or constraint to grant the sanction, the
order will be had for the reason that the discretion
of the authority "not to sanction" was taken away
and it was compelled to act mechanically to sanction
the prosecution".
20. The aforesaid observation came to be made in the
conspectus of the fact where the High Court in a writ petition
issued a writ in the nature of mandamus directing to accord
sanction under the relevant provisions of the PC Act to
prosecute the appellant therein, who was working as Divisional
Accountant in the Medium 7 Decided on 03/09/1997 in
Irrigation Project. The Sanctioning Authority was directed to
accord sanction within one month from the date of receipt of
the order of the court and it is in the backdrop of this fact that
the aforesaid observations were made and Their Lordships have
held as under: "
32. By issuing a direction to the Secretary to grant
sanction, the High Court closed all other
alternatives to the Secretary and compelled him to
proceed only in one direction and to act only in one
way, namely, to sanction the prosecution of the
appellant. The Secretary was not allowed to
consider whether it would be feasible to prosecute
the appellant; whether the complaint of Harshadraj
of illegal gratification which was sought to be
supported by "trip" was false and whether the
prosecution would be vexatious particularly as it
was in the knowledge of the Govt. that the firm had
been black-listed once and there was demand for
some amount to be paid to Govt, by the firm in
connection with this contract. The discretion not to
sanction the prosecution was thus taken away by
the High Court.
33. The High Court put the Secretary in a piquant
situation. While that Act gave him the discretion to
sanction or not to sanction the prosecution of the
appellant, the judgment gave him no choice except
to sanction the prosecution as any other decision
would have exposed him to action in contempt for
not obeying the mandamus issued by the High
Court. The High Court assumed that role of the
sanctioning authority, considered the whole matter,
formed an opinion that it was a fit case in which
sanction should be granted and because it itself
could not grant sanction under Section 6 of the Act,
it directed the Secretary to sanction the prosecution
so that the Sanction Order may be created to be an
order passed by the Secretary and not that of the
High Court. This is a classic case where a Brand
name is changed to give a new colour to the
package without changing the contents thereof. In
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these circumstances the sanctions order cannot but
be held to be wholly erroneous having been passed
mechanically at the instance of the High Court."
25. The above principles, if applied to the facts of the present
case would show that if the Sanctioning Authority would have applied
its mind and seen the record of the case with respect to the dispute
about incomplete works leading to the graft case in question, the result
may have been diametrically the opposite.
26. In the first instance, both prosecution and defense have
heavily relied upon the Relieving Order 19.08.2000 placed in evidence
below Exhibit-12 whereby Complainant was relieved by BDO, Karmala
and directed to join BDO, Kurduwadi. However the relieving order
does not prove that Complainant joined the office of BDO Kurduwadi
as directed.
27. Evidence of DW-1, BDO, Kurduwadi clearly shows that
Complainant never joined his office at Kurduwadi during his tenure.
He deposed and placed on record Show Cause Notices dated
05.08.2000 below Exhibit-18 and 12.01.2001 below Exhibit-47 issued
to Complainant for not joining his office and completing the
incomplete works which he was required to complete. DW-1 has also
produced on record the original proceedings book below Exhibit-48
which clearly shows that Complainant never attended Kurduwadi
Office and never signed the Muster Rolls in his office. Most
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importantly, the Office file of Complainant has also been placed on
record by DW-1 below Exhibit-27 and it shows that Complainant has
indeed not completed any of the pending works for which he was
relieved and asked to join because of which BDO, Kurduwadi issued
Show Cause Notice to him. This does not stop here. The said ‘B’ file i.e.
office file below Exhibit-27 also reveals that Complainant filed his
written replies to both Show Cause Notices issued to him giving his
explanation regarding joining BDO, Kurduwadi’s Office from
19.08.2000 with respect to the incomplete pending works. If the
aforesaid evidence had been considered in the first place, the
Sanctioning Authority could never had accorded sanction to prosecute
the Respondent as the motive of Complainant would have been in
question. What is crucial is the fact that PW-1 i.e. Sanctioning
Authority has himself admitted in his cross-examination that he did not
see the 'B' file i.e. office file of the Complainant before according
sanction.
28. From the above, it is clearly derivated that Complainant had
a dubious motive rather perverse motive to falsely implicate the
Respondent and BDO, Kurduwadi, who had proceeded against him and
he was waiting for the opportune moment. The evidence on record
clearly shows that Complainant was relived from BDO Office, Karmala
on 19.08.2000 but he falsely claimed to have completed the pending
works in BDO Office, Kurduwadi without joining the said office. Once
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the Complainant had not joined BDO Office, Kurduwadi at any point of
time, there was no question of him claiming to have completed the
pending works. Without joining BDO Office, Kurduwadi, Complainant
could never have sought his relieving letter or claim documents. Thus,
conduct of Complainant in this case is prima facie malicious and illegal
on the face of above evidence placed before the Court.
29. Hence in this context Sanctioning Authority should have
applied its mind to the inordinate delay by Complainant in
approaching the ACB Office for lodging his complaint for demand of
graft. If it was Complainant's case that initial demand of bribe was
made on 12.01.2001 for the first time and the last demand was made
on 07.02.2001, there was no reason for him to wait during the entire
tenure from 12.01.2001 up to 07.02.2001.
30. According to Complainant, four specific demands were made
during the above period. Therefore, waiting for almost one month
despite four demands being made is fatal to the prosecution case. This
is so because there was an apparent reason for Complainant to wait
until 07.02.2001. The defense has proved this reasons through the
evidence of DW-2 and DW-3. It has come on record that Complainant
had given five ticket booklets of the Charity show called “Natrangi
Nar” to Complainant for sale and he was required to collect the money
of the sold tickets from Complainant. The Charity Show was held on
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07.02.2001 and on the following day Respondent visited the office
after office hours to collect the amount of sold tickets.
31. Admittedly on the day of trap i.e. 08.02.2001 Respondent
was on sanctioned leave and he came to his office in the evening after
office hours to meet his colleagues for collection of money of sold
tickets of the Charity Show held on the previous day. It has come on
record that Respondent was on sanctioned leave from 19.01.2001 to
07.02.2001. The defence of Respondent has been duly corroborated by
the oral evidence of DW-2 and DW-3. DW-2 and DW-3 are office
colleagues of Complainant in BDO Office, Kurduwadi who were also
given ticket booklets for sale of tickets and who met the Respondent on
08.02.2001 to hand over the amount of sold tickets and unused ticket
booklets to him. Further in so far as the trap event is concerned, it is
seen that the amount of cash carried separately by Complainant apart
from the trap amount during pre-trap panchnama and post-trap
panchnama was the same amount i.e. Rs.758/- as recorded in both
Panchnamas. This is strange as it could not have been the same. The
post-trap panchnama ought to have reflected a lesser amount.
32. If the relevant panchnama below Exhibit-24 and Exhibit-25
are seen then in view of the above prosecution case that Complainant
paid Rs.10 to the canteen Cashier from the amount he was carrying
with him cannot be countenanced. Rather it falsifies the prosecution
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case altogether. Further evidence of PW-3 i.e. panch witness reveals
that the raiding party was outside the canteen along with him and only
after receiving signal from Complainant they rushed inside to the
incident spot. This is so because PW-3 has answered that it is true that
after the signal, the raiding party which was outside, they as well as
myself and Mr. Metkari rushed to the spot. This evidence is clinching
as it shows that the pancha witness and the raiding party were both
present outside the canteen.
33. This raises serious discrepancies and questions on the post-
trap panchanama below Exhibit-25. Finally the most important piece
of evidence which militates against the Prosecution case is the Certified
Copy of the Log Book placed in evidence below Exhibit-49. This Log
Book maintains the movement of the Government vehicles in the BDO,
Kurduwadi office alongwith the details of visit, time, etc.. BDO,
Kurduwadi i.e. DW-1 has himself placed the original Log Book on
record in evidence. This Log book shows that on 12.01.2001 BDO,
Kurduwadi along with Respondent left for Solapur in the morning for
work at 07:00 a.m. and returned to Kurduwadi on 13.01.2001 at 02:00
p.m. by the official jeep of the said office. Thereafter on 16.01.2001
Log Book entry shows that BDO, Kurduwadi and Respondent left for
Solapur for work at 07:00 a.m. in the morning and returned back at
10:00 p.m. in the night. Thereafter entry dated 23.01.2001 in the Log
Book shows that once again they left Kurduwadi at 08:00 a.m. and
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returned back at 11:00 p.m. after completing their work. Similar is the
Log Book entry for 30.01.2001. Every entry in the Log Book bears the
signature of BDO. Thus it is crystal clear that on all dates of initial
demand alleged by Complainant, both the BDO, Kurduwadi and
Respondent were never present in their office in Kurduwadi Panchayat
Samiti and this raises a grave doubt about the truthfulness of the
Complainant's case. The story alleged by Complainant regarding
Exhibit-16 i.e. the handwritten chit of paper by Respondent given to
BDO about the initial demand on 23.01.2001 therefore fails. Ironically
prosecution did not confront DW-1 i.e. BDO, Kurduwadi the defense
witness with respect to Exhibit-16.
34. In view of the above observations and findings it is clear that
in such graft cases, there has to be a minute scrutiny of each fact with
absolute degree of caution exercised by the Statutory Officers. In a
given case if the Accused is able to show that there is a serious
prejudice on account of available evidence placed on record, it calls for
a much greater degree of care and caution. Such is the case herein.
35. In the present case, it is clearly seen that if the
aforementioned discussed evidence which is part of the 'B' file of
Complainant would had been seen by the Sanctioning Authority, the
result would have been different. Facts in the present case clearly point
out non-application of mind by the Sanctioning Authority since what is
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therefore stated in the Sanction Order is not a true reflection of the
actual facts placed on record and proved by the Defence in the present
case.
36. Respondent – Accused has therefore suffered an ignominious
situation of having to face a trial and the prolonged wait for
determination of this Appeal, but by virtue of the judgement of the
Trial Court, he has been acquitted on both counts i.e. the issue of
sanction and merits of the matter. On the basis of the above discussions
on facts and evidence on record, issue of initial demand, rather
demands, issue of motive, admitted delay in approaching the Law
Enforcement Agency (ACB), the trap event, the pre-trap and post-trap
panchnamas leave several questions unanswered for the prosecution,
which are answered by the impugned judgment of acquittal. The
judgement dated 08.03.2004 is a well reasoned and cogent judgement
which highlights serious lacunae on the part of the prosecution case.
The said judgement therefore deserves to be upheld. It is so upheld
37. I would also like to quote paragraphs Nos.20 to 21 of the
decision of this Court (Coram : K.R. Sriram J.) in the case The State of
Maharashtra Vs. Ramesh Khandu Salve
14
; wherein decisions of the
Supreme Court which are directly relevant to the facts of the case in
hand are quoted with approval. paragraphs Nos.20 to 21 read thus:-
14Criminal Appeal No.372 of 2006 decided on 05.03.2021.
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“20. The Apex Court in Ghurey Lal Vs. State of U.P. has culled
out the factors to be kept in mind by the Appellate Court while
hearing an appeal against acquittal. Paragraph Nos.72 and 73 of
the said judgment read as under:
72. The following principles emerge from the cases above:
1. The appellate court may review the evidence
in appeals against acquittal under sections 378 and
386 of the Criminal Procedure Code, 1973. Its power
of reviewing evidence is wide and the appellate
court can reappreciate the entire evidence on record.
It can review the trial court's conclusion with respect
to both facts and law.
2. The accused is presumed innocent until proven
guilty. The accused possessed this presumption when
he was before the trial court. The trial court's
acquittal bolsters the presumption that he is
innocent.
3. Due or proper weight and consideration must
be given to the trial court's decision. This is
especially true when a witness' credibility is at issue.
It is not enough for the High Court to take a
different view of the evidence. There must also be
substantial and compelling reasons for holding that
trial court was wrong.
73. In light of the above, the High Court and other
appellate courts should follow the well settled
principles crystallized by number of judgments if it
is going to overrule or otherwise disturb the trial
court's acquittal:
1. The appellate court may only overrule or
otherwise disturb the trial court's acquittal if it has
"very substantial and compelling reasons" for doing
so.
A number of instances arise in which the appellate
court would have "very substantial and compelling
reasons" to discard the trial court's decision. "Very
substantial and compelling reasons" exist when:
i) The trial court's conclusion with regard to the
facts is palpably wrong;
ii) The trial court's decision was based on an
erroneous view of law;
iii) The trial court's judgment is likely to result in
"grave miscarriage of justice";
iv) The entire approach of the trial court in dealing
with the evidence was patently illegal;
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v) The trial court's judgment was manifestly unjust
and unreasonable;
vi) The trial court has ignored the evidence or
misread the material evidence or has ignored
material documents like dying declarations/ report
of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not
exhaustive.
2. The Appellate Court must always give proper
weight and consideration to the findings of the trial
court.
3. If two reasonable views can be reached - one that
leads to acquittal, the other to conviction - the High
Courts/appellate courts must rule in favour of the
accused.
The Apex Court in many other judgments including
Murlidhar and Ors. Vs. State of Karnataka has held
that unless, the conclusions reached by the trial
court are found to be palpably wrong or based on
erroneous view of the law or if such conclusions are
allowed to stand, they are likely to result in grave
injustice. Appellate Court should not interfere with
the conclusions of the Trial Court. Apex Court also
held that merely because the appellate court on re-
appreciation and re-evaluation of the evidence is
inclined to take a different view, interference with
the judgment of acquittal is not justified if the view
taken by the trial court is a possible view.
We must also keep in mind that there is a
presumption of innocence in favour of Respondent
and such presumption is strengthened by the order
of acquittal passed in his favour by the Trial Court.
The Apex Court in Ramesh Babulal Doshi Vs. State
of Gujarat has held that if the Appellate Court
holds, for reasons to be recorded that the order of
acquittal cannot at all be sustained because
Appellate Court finds the order to be palpably
wrong, manifestly erroneous or demonstrably
unsustainable, Appellate Court can reappraise the
evidence to arrive at its own conclusions. In other
words, if Appellate Court finds that there was
nothing wrong or manifestly erroneous with the
order of the Trial Court, the Appeal Court need not
even re-appraise the evidence and arrive at its own
conclusions.
21. I do not find anything palpably wrong, manifestly
erroneous or demonstrably unsustainable in the impugned
judgment. From the evidence available on record, there is
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nothing to substantiate the charge leveled against accused.
22. There is an acquittal and therefore, there is double
presumption in favour of accused. Firstly, the presumption of
innocence available to accused under the fundamental principle
of criminal jurisprudence that every person shall be presumed to
be innocent unless he is proved guilty by a competent court of
law. Secondly, accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed
and strengthened by the Trial Court. For acquitting accused, the
Trial Court rightly observed that the prosecution had failed to
prove its case.”
38. Resultantly the Criminal Appeal fails and stands dismissed.
Ajay [ MILIND N. JADHAV, J. ]
38
AJAY
TRAMBAK
UGALMUGALE
Digitally signed by
AJAY TRAMBAK
UGALMUGALE
Date: 2025.01.02
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