2017 ALL MR (Cri) 4026
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
S. B. SHUKRE, J.
State of Maharashtra Vs. Shivpal Pralhadrao Sharma
Criminal Appeal No.153 of 2004
18th May, 2017.
Petitioner Counsel: Shri SANJEEV DESHPANDE
Prevention of Corruption Act (1988), Ss.13, 19 - Illegal gratification - Sanction for prosecution - Necessity - Accused, public servant had already retired on date of taking cognizance by Court - Sanction not necessary - Acquittal of accused on ground of invalidity of sanction - Liable to be set aside. (Paras 8, 11)
Cases Cited:
State of Punjab Vs. Labh Singh, 2015 ALL SCR 648=(2014) 16 SCC 807 [Para 5,8]
Surjit Singh Vs. State of Punjab, 1979 CRI. LJ 214 [Para 7]
Vijay Bahadur Vs. State of U.P., 1989 CRI. L.J. NOC 61 [Para 7]
Onkar Sharma Vs. State of H.P., 2003 Cri.L.J. 1024 [Para 7]
S.A. Venkataraman Vs. State, AIR 1958 SC 107 [Para 8]
C.R. Bansi Vs. State of Maharashtra, (1970) 3 SCC 537 [Para 9]
Kalicharan Mahapatra Vs. State of Orissa, 1998(4) ALL MR 382 (S.C.)=(1998) 6 SCC 411 [Para 9]
K. Veeraswami Vs. Union of India, (1991) 3 SCC 655 [Para 9]
JUDGMENT
JUDGMENT :- This is an appeal preferred against the judgment and order dated 29.11.2003, delivered by the Special Judge and Additional Sessions Judge, Akola, in Special Case No.4/2000, thereby acquitting the respondent of the offences punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as, the P.C. Act, for short).
2. In the year 1994-95, the respondent was serving as Electrical Inspector with Municipal Council, Akola. During that period of time, the complainant, Shriram Shegokar, upon a contract awarded to him had completed electrical work for Municipal Council, Akola. Its value was of Rs.40,000/-. The payment of the bill, however, was not made by the Municipal Council, Akola. The respondent being an Electrical Inspector, was responsible for preparing the ordersheet containing his recommendation for payment of the bill and submitting the same for signature of Chief Officer and President of the Council. The respondent, it was alleged, was not doing his job and was waiting for the complainant to pay him some amount as illegal gratification for performing his work of recommending the bill for payment to the complainant. On 10.4.1997, the complainant had made a request to the respondent to pass his bill. But, the respondent told him that unless the complainant paid him 10% of the total bill amount, i.e. Rs.4,000/-, the respondent would not clear the bill. On 15.4.1997, also, the complainant was told the same thing by the respondent, although it was brought to the notice of the respondent that the subsequent bills of some other contractors were passed by him. Having been left with no option, the complainant promised to fulfill the illegal demand of the respondent within 8 to 10 days. The respondent gave the complainant time till 23.4.1997 to bring the bribe amount of Rs.4,000/-.
3. On 23.4.1997, unwilling as he was to pay the bribe amount, the complainant lodged a report with Anti Corruption Bureau, Akola against the respondent. It was decided that the respondent would be entrapped while accepting the bribe amount. So necessary preparations were made. The trap was set on the same day at the office of the respondent. The trap proved to be successful as the respondent was found to have accepted the tainted currency notes consisting of 6 notes of Rs.500/- denomination and 10 notes of Rs.100/- denomination, totaling to Rs.4,000/- and kept them in the office file. These tainted currency notes were recovered from the office file. Both the hands of the respondent were found to be sullied with phenolphthalein powder, which was applied to the currency notes. Necessary panchanamas were drawn out. Statements of witnesses were recorded. After completion of the investigation, a chargesheet was filed against the respondent.
4. The respondent was tried for offences punishable under Sections 7 and 13(2) of the P.C. Act. On merits of the case, the learned Special Judge found that the prosecution proved beyond reasonable doubt the demand and acceptance of amount of Rs.4000/- as bribe by the respondent from the complainant. But, on the point of the sanction, he also found that it was absent in the present case and, therefore, acquitted the respondent of the offences of acceptance of illegal gratification and abuse of official position, punishable under Sections 7 and 13(2) of the P.C. Act by the judgment and order dated 29.11.2003. Not being satisfied with the same, the State is before this Court in the present appeal.
5. Learned A.P.P. submits that even though there was initially refusal of sanction by the competent authority i.e. the Standing Committee on 31.3.1997, subsequently, on a reference being made by the Investigating Officer, the administrator who was appointed in the meanwhile to look after the affairs of the Council, by a resolution passed on 3.7.2000, accorded the sanction to prosecute the respondent and thereafter also issued a sanction order on 16th August, 2000. He submits that these subsequent sanctions were important and, therefore, ought not to have been ignored by the learned Judge only because there was initial refusal to accord sanction by the Standing Committee. He further submits that in any case, the issue of sanction had lost its significance in the instant case as the respondent retired on 31st January, 1998 and the chargesheet against him was filed on 4.9.2000, which facts obviated the need for seeking sanction to prosecute under Section 19 of the P.C. Act. He submits that the law in this regard has been settled by the Hon'ble Apex Court in the case of State of Punjab vs. Labh Singh, reported in (2014) 16 SCC 807 : [2015 ALL SCR 648].
6. Nobody has appeared on behalf of the respondent. Section 386 Cr.P.C. requires that Court must hear the appellant or the respondent as the case may be only when the appellant or the respondent is present before the Court and then proceed to decide the appeal on merits after perusing and considering the record of the case. Accordingly, I have carefully gone through the record of the case including the impugned judgment and order.
7. On perusal of the prosecution evidence available on record, I find that initially the question of grant of sanction to prosecute under Section 19 of the P.C. Act or otherwise was taken up for its resolution by the Standing Committee of the Municipal Council on 21.3.1998 and upon consideration of the material forwarded to it by the Investigating Officer, legal advice and the service record of the respondent, the Standing Committee came to the conclusion that this was not a fit case for grant of sanction to prosecute the respondent and, therefore, by passing a necessary resolution (Exh.77), refused to accord sanction to prosecute the respondent. This resulted in creating a handicap for the Investigating Officer to file a chargesheet against the respondent. It appears that the Investigating Officer allowed the respondent to retire from the service and then once again approached the Municipal Council for reconsideration of the matter. By that time, PW 5 Mr. Kamble, had been appointed as an Administrator on the Municipal Council which brought a change of fortunes for both the Investigating Officer as well as the respondent. The fortunes favoured the Investigating Officer while they turned their back on the respondent. The result was that the Administrator got a resolution dated 3.7.2000 passed according sanction to prosecute the respondent on the corruption charges. It appears that this resolution was passed by the Administrator (PW 5) without any application of mind and this has been duly found by the learned Special Judge. It also appears that this lacuna was sensed by the administrator and in order to fill it up again on 16.8.2000 the Administrator issued yet another order sanctioning prosecution against the respondent. This third order is at Exhibit 99. With such evidence on record, the learned Special Judge, applying the ratio of the cases of Surjit Singh vs. State of Punjab, reported in 1979 CRI. LJ 214, Vijay Bahadur vs. State of U.P., reported in 1989 CRI. L.J. NOC 61 and Onkar Sharma vs. State of H.P., reported in 2003 Cri.L.J. 1024, opined that once a decision regarding sanction to prosecute was taken in a particular way, it was not open for the competent authority to review such a decision and take a reverse stand by granting sanction for prosecution, because taking of a decision marks exhaustion of power to take a decision.
8. The view that a decision taken once exhausts the power to take a decision and so there remains no power to take another decision, adopted by the learned Special Judge cannot be more than correct. But, I must say, it does not help solve the problem involved in this case. The problem touches a more basic issue, the issue about need for obtaining a sanction itself in a case where the public servant has retired before filing of the chargesheet or before the date of taking of cognizance of case by the Special Judge, as in the instant case. The issue was resolved by the Hon'ble Apex Court as far back as the year 1958 in the case of S.A. Venkataraman vs. State, reported in AIR 1958 SC 107. A reference to this case has been made in the case of State of Punjab vs. Labh Singh, reported in (2014) 16 SCC 807 : [2015 ALL SCR 648]. In Labh Singh, it has been observed that while construing Section 6(1) of the Prevention of Corruption Act, 1947, the Supreme Court in S.A. Venkataraman, held that no sanction was necessary in the case of a person who had ceased to be a public servant at the time the Court was asked to take cognizance. It has also been found in Labh Singh that Section 19(1) of the Prevention of Corruption Act, 1988 is a provision which is in pari materia with Section 6(1) of the Prevention of Corruption Act, 1947 which was considered in S.A. Venkataraman. In Labh Ssingh, the Hon'ble Apex Court has held that the law on the point is quite clear that sanction to prosecute a public servant for the offences under the Prevention of Corruption Act is not required, if the public servant had already retired on the date of taking cognizance by the Court.
9. Having got the answer to the issue, let us now see the facts of Labh Singh to know if they bear any similarity to the facts of the instant case, for, that will decide the fate of this case. Labh Singh, was a public servant who retired on 30th April 2000 and sanction to prosecute him came to be rejected twice, firstly on 13.9.2000 and secondly on 24.9.2003, both dates being subsequent to the date of retirement of Labh Singh. Despite such refusal to grant sanction to prosecute Labh Singh, a chargesheet or final report under Section 173 Cr.P.C. was filed on 9.11.2004 in the Court of Additional Sessions Judge/Special Judge, Patiala. It was in this backdrop that the Supreme Court held (para 9) that the public servant "having retired from service there was no occasion to consider grant of sanction under Section 19 of the P.C. Act". In the instant case also, the facts are similar. The respondent retired on 31st January 1998 and sanction to prosecute him was rejected on 21st March, 1998, which was subsequent to the date of retirement of the respondent. The chargesheet was filed on 4th September, 2000 and this could have been the earliest date on which cognizance of case could have been taken. But, on that date the respondent having already retired, there was no occasion to consider grant of sanction to prosecute him. It was a different matter that subsequent to refusal of sanction on 21st March, 1998, the sanction was granted, albeit erroneously. But, as stated earlier, it was of no consequence and, therefore, error committed in grant of sanction after initial refusal to issue sanction had no bearing whatsoever on the power of Court to take cognizance of instant case. The ratio of S.A. Venkataraman reiterated in Labh Singh is squarely applicable to the facts of the instant case. In fact, there has been a consistent line of precedents set by the Hon'ble Supreme Supreme Court in this regard and they could be found in the cases of C.R. Bansi vs. State of Maharashtra reported in (1970) 3 SCC 537, Kalicharan Mahapatra vs. State of Orissa, reported in (1998) 6 SCC 411 : [1998(4) ALL MR 382 (S.C.)] and K. Veeraswami vs. Union of India, reported in (1991) 3 SCC 655. However, it appears that these precedents were not brought to the notice of the learned Special Judge and the result was a conclusion drawn contrary to the law.
10. The learned Special Judge, on merits of the cases, has already found that prosecution has proved to the hilt its case against the respondent on the count of graft charges. These findings have not been challenged by the respondent and thus now have attained finality . The respondent has been acquitted only on the ground that no valid sanction for his prosecution was in existence in the present case. But, the finding recorded by the learned Special Judge on this count has now been found to be contrary to the law warranting interference with it.
11. In the result, the appeal deserves to be allowed and it is allowed to the extent that it challenges the acquittal of the respondent on the ground of invalidity of sanction.
12. The respondent is not present before the Court and, therefore, no hearing on the question of sentence can be granted to him. Even, otherwise, he was not heard on the question of sentence even by the trial Court, as there was no occasion for the trial Court to hear him on this count. But, now with reversal of the finding of the trial Court recorded on the point of sanction, the need for hearing the accused on the question of sentence has arisen. A proper forum for this purpose, in my view, would be the trial Court, given the facts that the respondent is not present before this Court and that he was not heard on it by the trial Court. If this exercise is done by the trial Court; the respondent will also not be denuded of his right of appeal even against the quantum of sentence. This would call for remitting of the case back to the trial Court on this limited point.
13. Thus, the appeal is partly allowed to the extent it challenges legality and correctness of the finding recorded by the trial Court on the question of sanction to prosecute the respondent. It is held that in the facts and circumstances of the case, sanction to prosecute the respondent was not required and the question of sanction was irrelevant. The trial Court shall summon the respondent and hear him on the question of sentence and then proceed to dispose of the case by appropriately sentencing the respondent in accordance with law.