BHAIYALAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this appeal special leave was granted by this court only on the question of the legality of the sanction for the appellant's prosecution. It is, therefore, unnecessary to narrate the facts in detail and only broad features of the case essential for our present purpose may be stated.

(2.) The appellant who had been appointed as a Patwari, by order, dated 23/10/1937, and had taken charge of that office on 14/04/1937, was confirmed as such on 31/04/1943. It is not disputed that he was so appointed by the Sub-Divisional Officer. He was tried and convicted on 27/09/1968, by the Special Judge, Bhandara (Shri V. V. Joshi). for an offence punishable under Section 161, 1. P. C. , and also under Section 5 (2) , read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947 (Act No. 2 of 1947). The allegation against him was that he had accepted from the complainant a sum of Rs. 25. 00 as illegal gratification on 17/01/1967, for the purpose of effecting a mutation in the complainant's name in respect of the land purchased by him. The appellant was sentenced to rigorous imprisonment for one year separately for both the offences, the sentences to run concurrently.

(3.) An appeal against this conviction was preferred to the High court of Bombay and it was on appeal that on his behalf the precise objection which is pressed in this court was for the first time raised. It was contended that the appellant had been appointed as a Patwari by the Deputy Commissioner and, therefore, the sanction for his prosecution granted by the Sub-Divisional Officer was not proper. The sanction by the Sub-Divisional Officer, it may be pointed out, was produced at the trial and marked as Ex. 9. The High court entertained the objection and went into the matter at some length and after looking at the relevant entries in the two registers described as the Kanungo's Patwari Register came to the conclusion that the appellant had been initially appointed as Patwari by the Sub-Divisional Officer in 1937 and was later in 1943 confirmed as such only by the Sub-Divisional Officer. The appellant resigned in 1953 and his resignation was accepted. But he was again taken back to duty by the order of the Board of Revenue, dated 2/03/1953 and was thereafter ordered by the Deputy Commissioner to join duty as a Patwari. On this point the High court expressed itself thus: