STATE OF MAHARASHTRA Vs. GOVIND PURUSHOTTAM SHAHANE

JUDGEMENT

(1.) THIS revision application has been preferred by the State of Maharashtra against the order passed by the learned Special Judge, Nasik in Special Case No. 2 of 1971 on 12th June, 1971 whereby the learned Special Judge discharged the respondent-accused in respect of offences under Section 161, I. P. C. and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act after holding that the sanction that had been accorded by the Government for prosecution of the respondent-accused was invalid and not in conformity with Section 6 (1) (c) of the Prevention of Corruption Act, 1947.

(2.) A few facts giving rise to the prosecution of the respondent-accused may be stated. The respondent-accused was employed in the Cooperative Department of the Government and at the material time was working as Extension Officer (Co-operation), Block Development Office at Malegaon. As such Extention Officer it was his duty to aid and attend to the registration of Co-operative Societies, It appears that some inhabitants of village Umrane had decided to establish a cooperative society by name 'veer Bhaguji Adivasi Sahakari Samudayik Sheti Society' and the Chief Promoter of the Society was one Gangaram Fule Pawar. On 7th October, 1961 an application was made in the Office of the Block Development Officer, Malegaon, by the Chief Prompter for getting the society registered. The society was not registered for quite some time and the matter was pending with the respondent-accused as the Extension Officer (Co-operative), According to the prosecution, on 9th February, 1965 Gangaram Pawar accompanied by one Rajaram Patil the Sarpanch of the village met the accused at Malegaon in his office in connection with registration of the society. After some talk it appears that Rajaram Patil advised Gangaram Pawar to pay Rs. 100/- to the respondent-accused and assured Gangaram Pawar that on such payment being made the respondent-accused would see that registration of the society was done immediately. After some hesitation Gangaram Pawar ultimately offered to pay Rs. 100/- to the respondent-accused and inquired with him as to when he could make the payment whereupon the respondent-accused told Gangaram Pawar to bring the amount on Friday the 12th February, 1965. Thereafter Gangaram Pawar gave the information to the Police Inspector, Anti-Corruption. Nasik about all that had transpired between him and the respondent-accused. His information was reduced to writing in the form of complaint and thereafter the Inspector submitted his report to the Judicial Magistrate. First Class, Nasik and obtained his orders to investigate the offence. Thereafter the usual trap was arranged and ultimately the amount was paid to the respondent-accused and on being surrounded by the raiding party marked currency notes were found with the respondent and the amount was attached under panchanama. On completion of the investigation a report was submitted seeking sanction to prosecute the respondent-accused. It appears that the Registrar of Co-operative Societies had initially refused the sanction for prosecution and he did so after holding departmental enquiry against the respondent-accused and after accepting the finding of the Enquiry Officer. However, the matter was taken up to the higher authorities and ultimately the State Government, Agricultural and Co-operative Department, by its Order No. CEN 1267/151-79-C. 3 dated 30th September, 1970 accorded its sanction to prosecute the accused for the offence punishable under Section 161, I. P. C. and Section 5 (2) of the Prevention of Corruption Act. Thereafter a charge-sheet was submitted by the Inspector on 2nd February, 1971 to the Special Judge at Nasik. Before the learned Special Judge a contention was raised on behalf of the respondent-accused that the sanction accorded by the Government on 30th September, 1970 was not in conformity with the provisions of Section 6 of the Prevention of Corruption Act and was invalid and illegal and as such the Court was incompetent to take cognizance of the offence. On this contention the learned Special Judge heard arguments both on behalf of the Government Pleader and on behalf of the respondent-accused and ultimately by his order dated 12th June, 1971 he discharged the respondent-accused holding that the sanction was invalid. The learned Judge took the view that the sanction was invalid for two reasons; (1) that it was not in confirmity with Section 6 (1) (c) of the Prevention of Corruption Act and (2) that the Government had not applied its mind to the facts of the case before issuing sanction. It is this order passed by the learned Special Judge that is being challenged by the State of Maharashtra in the present revision application.

(3.) MR. Gambhirwala appearing for the State has contended before me that the findings of the learned Special Judge on both the aspects of the matter were clearly erroneous and the order was not sustainable. He admitted that the Registrar of Co-operative Societies was both the appointing authority as well as the authority which could remove the respondent-accused from his service and he further accepted the position that the Registrar at the initial stage after holding a departmental enquiry against the respondent-accused had refused to accord sanction for prosecution of the respondent-accused. He, however, urged that even so as superior authority it was open to the State of Maharashtra to review the order passed by the Registrar of Co-operative Societies and if it came to the contrary conclusion it was open to the State Government to accord sanction under Section 6 (1) (c) of the Prevention of Corruption Act and the sanction accorded in the instant case was therefore perfectly valid sanction accorded by the competent authority under Section 6 (1) (c) of the Act. He also urged that the finding of the learned Special Judge that there was non-application of mind on the part of State Government to the facts of the case before according sanction was equally erroneous and in fact ran counter to the positive evidence that was led by the prosecution in the form of deposition of Mr. Anandrao, Under Secretary working in the Agriculture and Co-operation Department, Government of Maharashtra. On the other hand, Mr. Choudhari appearing for the respondent-accused contended that if the provisions of Section 6 of the Act were carefully scrutinised, it would appear clear that Clauses (a) and (b) of Sub-section (1) of Section 6 of the Act were clearly applicable to Gazetted Officers of the Union Government or State Government and the only clause applicable in the case of the respondent-accused, who was non-Gazetted Officer, was Clause (c) of Sub-section (1) of Section 6 and according to him, under that provision sanction could be accorded by the "the authority competent to remove him from his office". Mr. Choudhari urged that in this case it was an admitted position that it was the Registrar of Cooperative Societies who was the competent authority who could make an appointment of Extension Officer and was the competent authority who could remove such Extension Officer from that post and since admittedly in this case the Registrar of Co-operative Societies had refused to accord sanction, the power of according sanction had been exhausted and it was not open to the State Government either in supervisory capacity or in any other capacity to accord sanction for the prosecution of the respondent-accused. As regards the point about non-application of mind on the part of State Government, he contended that the sanction that had been issued by the State Government on the face of it did not show whether the State Government had considered the aspect that at the initial stage the Registrar of Co-operative Societies, which was the competent authority had refused to accord sanction and there was no further material on record to show that the State Government had found something wrong in the order passed by the Registrar for refusing sanction. As regards the evidence of Anandrao, he contended that Anandrao had admitted that he had no personal knowledge as to in what manner either the Secretary or the Minister had applied his mind but he had merely put his signature on the draft order according sanction for the prosecution of the respondent-accused. He, therefore, urged that in the circumstances it could not be said that the State Government had applied its mind to the facts of the case.