Criminal Revision Application No.181 of 2014

27th April, 2016

Petitioner Counsel: Shri S.P. DHARMADHIKARI, Shri R.K. JOSHI
Respondent Counsel: Shri A.D. SONAK, A.P.P.

JUDGMENT

JUDGMENT :- Heard S.P. Dharmadhikari, learned Senior Advocate assisted by Shri R.K. Joshi, Advocate for the applicant and Shri A.D. Sonak, learned Additional Public Prosecutor for the non-applicant.

2. Rule. Rule made returnable forthwith.

3. The applicant has filed this revision application challenging the order passed by the learned Additional Sessions Judge rejecting the application filed by the applicant under Section 227 of the Code of Criminal Procedure praying that he be discharged of the offences punishable under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal Code.

4. The relevant facts are as follows :

The applicant had been working in the Indian Forest Services and was allotted to Maharashtra cadre. By the order dated 19-03-1991, the applicant was directed to assume additional charge of the post of Deputy Conservator of Forests, Nagpur and he accordingly held the additional charge for the period from 23-03-1991 till 22-08-1991. During this period, the office of the Deputy Conservator of Forests was given the target for implementing the afforestation programme during rainy season of 1991 and according to the programme, plantation was to be done at Gorewada and Ambazari areas of city of Nagpur. To implement the programme, the seedlings/saplings were to be transported and for the transportation the applicant had worked out the rates and had sent the proposal to the office of the Conservator of Forests, which were sanctioned and approved.

The applicant handed over the additional charge of Deputy Conservator of Forests on 23-08-1991. Some irregularities were noticed in the work of plantation and an open enquiry was suggested. On 30-07-1994, the applicant was placed under suspension which was revoked by the Government of Maharashtra on 04-09-1995.

On 02-04-1998, First Information Report was filed by the Deputy Superintendent, Anti Corruption Bureau (Forest Cell), Nagpur and as the charges under Section 13(1)(d) of the Prevention of Corruption Act, 1988 were levelled against the applicant, proposal was sent to obtain sanction. The sanction was accorded on 07-10-2004. The charge-sheet included charges in respect of offences under the Indian Penal Code also.

A departmental enquiry was conducted. The enquiring authority submitted its report to the Government of Maharashtra. The advice of Union Public Service Commission was sought. The Commission sent the communication dated 23-09-2004 advising that the proceedings be dropped and the Government of Maharashtra, by the order dated 03-04-2012, accepted the advice of the Commission and exonerated the applicant in departmental proceedings.

In the meantime, on 31-03-2010 the Anti-Corruption Bureau filed charge-sheet against the applicant and co-accused.

The applicant had filed an application before this Court under Section 482 of the Code of Criminal Procedure, 1973 vide Criminal Application (APL) No.659/2011 praying that the proceedings against the applicant be quashed. This Court, by the judgment dated 23-07-2012, partly allowed the application, quashed the charge against the applicant for the offence under Section 13(1)(d) punishable Section 13(2) of the Prevention of Corruption Act, 1988, however, concluded that the prosecution against the applicant for the offences under the Indian Penal Code to proceed in accordance with law.

The applicant filed an application before the Special Court under Section 227 of the Code of Criminal Procedure praying that he be discharged of the offences punishable under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal Code. The learned Special Judge, by the order dated 04-09-2013, rejected the application. This order was challenged before this Court in Criminal Revision Application No.199/2013. This Court, by the judgment dated 04-04-2014, allowed the revision application, set aside the order passed by the learned Special Judge on 04-09-2013 and remitted the matter for deciding the application under Section 227 of the Code of Criminal Procedure, again. The learned Special Judge has rejected the application by the impugned order. The applicant, being aggrieved in the matter, has filed this revision application.

5. The learned Additional Public Prosecutor has raised preliminary objection urging that the prayer made by the applicant for quashing the proceedings against him was partly accepted by this Court while disposing the Criminal Application (APL) No.659/2011, that this Court had quashed the charge in so far as it related to the offence under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and the prayer made by the applicant for quashing the charges relating to the offences punishable under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal Code was not accepted and the Special Court was directed to proceed with the prosecution and therefore, it was not open for the applicant to file the application before the Special Court under Section 227 of the Code of Criminal Procedure. It is submitted that the prayer made by the applicant for discharge of the offences punishable under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal Code be rejected.

6. The learned Senior Advocate has submitted that the objection raised on behalf of the non-applicant is unsustainable. It is submitted that, while disposing Criminal Application (APL) No.659/2011, this Court did not advert to the legality and validity of the charges levelled against the applicant for the offences punishable under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal Code. It is submitted that this Court only dealt with legality and validity of the prosecution of the applicant for the offence under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 on the ground that as the recommending authority had requested for withdrawal of sanction, the prosecution of the applicant for the offence under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 was not justified in view of the provisions of Section 19 of the Prevention of Corruption Act, 1988. The learned Senior Advocate has relied on the communication sent by the Joint Secretary requesting that the order according sanction for prosecution of the applicant be withdrawn. It is submitted that this Court directed the Special Court to proceed in the matter according to law and the applicant is entitled in law to file application under Section 227 of the Code of Criminal Procedure and accordingly it was filed. It is submitted that same objection was raised earlier which is dealt with by this Court in the judgment given in Criminal Revision Application No.199/2013 and it is recorded that the Special Court has to consider the application filed by the applicant under Section 227 of the Code of Criminal Procedure. It is argued that the non-applicant cannot now again raise the same objection.

7. The submission made on behalf of the applicant on the above point has to be accepted. The non-applicant had raised the same objection about maintainability of application under Section 227 of the Code of Criminal Procedure, to oppose the Criminal Revision Application No.199/2013 and the objection is repelled by this Court. In view of the conclusions of this Court recorded in the judgment given in Criminal Revision Application No.199/2013, the objection raised on behalf of the non-applicant that the prayer made by the applicant in the application filed by him under Section 227 of the Code of Criminal Procedure cannot be considered, has to be overruled.

8. On merits, it is submitted on behalf of the applicant that the charge-sheet does not make out any offence against him under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal Code and there is no material against the applicant for prosecuting the applicant. It is submitted that the applicant has not indulged in forgery and he is not involved in any act which has resulted in loss to the Government exchequer. It is submitted that the documentary evidence on record shows that the transportation rates proposed by the applicant were sanctioned by the then Conservator of Forests and the job of plantation including the work of transport of plants/saplings on sanctioned rates was entrusted to the Range Forest Officer-Brijbhushan Tiwari (accused No.2) as per the Bombay Forest Manual who undertook certain independent correspondences without knowledge of the applicant and the office of the Deputy Conservator of Forests, Nagpur. It is submitted that the documentary evidence on record, on the basis of which the offences under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal Code are alleged against the applicant, does not show any endorsement of the applicant or his office and the quotations relating to transportation rates were addressed to Range Forest Officer and those documents were not routed through the office of the applicant and it was not the duty of the applicant to look into those quotations. It is alleged that the accusations in the charge-sheet attribute overt acts to the accused Nos.2 to 4 and the applicant is not connected with those activities. It is submitted that there is nothing on the record to show that the applicant had sanctioned any bills. According to the applicant, this Court quashed the charges levelled against the applicant for offence under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988, which charge was based on the accusation that the applicant has conspired and gained monetarily and therefore, the charges levelled against the applicant for the offences punishable under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal Code, which are also based on same accusations, cannot survive. It is submitted that the learned Special Judge has not considered all these aspects and therefore, the impugned order has to be set aside and the application filed by the applicant under Section 227 of the Code of Criminal Procedure has to be allowed and the applicant has to be discharged from the prosecution for the offences punishable under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal Code.

9. The learned Additional Public Prosecutor has submitted that the charge-sheet contains sufficient material which show that the applicant is connected with the activities which constitute the offences punishable under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal Code. It is submitted that if the submissions made on behalf of the applicant are to be considered, there has to be a mini trial which is not permissible at this stage. It is argued that the only aspect which is required to be considered at this stage is whether there is any material on the record to prosecute the applicant and at this stage, it cannot be assessed as to whether the prosecution will culminate in conviction. It is submitted that, on the applicant's own showing, involvement of the office of Deputy Conservator of Forests and the applicant in the implementation of plantation programme is there and the charge-sheet reveals that accused Nos.2 to 4 are involved in criminal conspiracy and for forging documents for monetary gains. It is argued that, in the circumstances, it cannot be said that there is no material against the applicant for prosecuting him for the offences punishable under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal Code in respect of which accused Nos.2 to 4 are also being prosecuted. The learned Additional Public Prosecutor has submitted that the learned Special Judge has properly considered these aspects and has rightly rejected the application filed by the applicant. It is prayed that the impugned order be maintained and the criminal revision application filed by the applicant be dismissed.

10. With the assistance of the learned Senior Advocate appearing for the applicant and the learned Additional Public Prosecutor appearing for the non-applicant, I have examined the documents placed on the record of the revision application. It is on record that the office of the Deputy Conservator of Forests, Nagpur was given the work of implementation of afforestation programme in the rainy season of 1991 and plantation work was to be undertaken at several places including Gorewada and Ambazari areas. It is undisputed that at the relevant time, the applicant was holding the additional charge of the post of Deputy Conservator of Forests, Nagpur. It is undisputed that the applicant had sent the communication dated 28-06-1991 proposing the rates of transport of plants/saplings. Though it is the contention of the applicant that the rates proposed by him were approved by the Conservator of Forests, at this stage, there cannot be an enquiry regarding these aspects. The above facts, prima-facie, show that the office of Deputy Conservator of Forests, Nagpur was connected with the work in which loss is caused to the Government and at the time of commission of offence as alleged, undisputedly the applicant was holding the additional charge of the post of Deputy Conservator of Forests, Nagpur.

11. The submission made on behalf of the applicant relying on the communication issued by the Joint Secretary requesting that the order according sanction for prosecution of the applicant be withdrawn in view of the fact that the applicant is exonerated in the departmental enquiry, cannot be accepted at this stage. The charges against the applicant for the offence under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 are quashed by this Court on technical grounds as there was recommendation for withdrawing the order of sanction which is necessary as per Section 19 of the Prevention of Corruption Act, 1988 to prosecute the applicant.

In my view, it cannot be said that there is no material against the applicant and the prosecution of the applicant for offences under Sections 120-B, 465, 468, 471 and 477-A of the Indian Penal Code is unsustainable.

Considering the facts on record, it cannot be said that there is no material against the applicant for prosecuting him alongwith co-accused. The learned Special Judge has considered all the relevant aspects properly and it cannot be said that the impugned order is illegal or improper. The revision application is dismissed.

Considering the fact that the trial is pending since 2010 and the applicant has retired on 31-07-2015, in my view, the interests of justice would be sub-served by directing the Special Court to dispose the trial within six months.

Ordered accordingly.