CHITTARANJAN TATYARAM MIRKE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant, who at the relevant time was attached to the office of the Regional Transport Officer at Bombay in his capacity as a clerk was put on trial along with one Vishnu Ratanjankar, an Inspector of that office, on a corruption charge. The prosecution alleges that the complainant had applied for a badge for driving a three -wheeler and that he was required to be tested by one of the Inspectors. He underwent the test and was failed. He was informed by accused No. 1, who is the present appellant. that unless he paid Rs. 600/ - that he cannot pass the test and according to the complainant this amount was subsequently reduced to Rs. 400/ -. He has narrated the procedure for purposes of undergoing the test and he has stated that in spite of having offered to pay Rs. 200/ - that accused No. 1 informed him that it was insufficient. Thereafter he lodged a complaint with the Anti -Corruption Bureau Authorities, who arranged a trap for 26 -11 -1981. On that day, however, accused No. I did not attend the office till 11 -45 a.m. and hence the trap failed. Once again, an appointment was fixed for the 3rd December, 1981 and on this occasion after the test, accused No. 1 accompanied the complainant and the Panch to the canteen where at the request of the accused the complainant handed over to him the amount of Rs. 400/ -. This amount consisted of four currency -notes of Rs. 100/ - each, which has been treated with anthracene powder by the Anti -Corruption Bureau Authorities under a Panchanama. According to the witnesses immediately after passing the money, the complainant rolled his shirt sleeves up and the raiding party rushed in and caught hold of the accused, who is alleged to have thrown the notes down. The four currency -notes were recovered and on checking with the ultra violet light, it was also found that traces of anthracene powder were on the hands of the accused as also on the right side of his trousers. On completion of the investigations, the accused along with the Inspector, who was made a co -accused, were put on trial before the learned Special Judge. The Inspector, who was the original accused No. 2, came to be acquitted whereas the present appellant, who is original accused No. 1, stands convicted of offences punishable under Section 161 of the Indian Penal Code and under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947. He was awarded a sentence of rigorous imprisonment for one year. It is against this conviction that the present appeal has been directed.

(2.) SHRI Mohite, learned counsel appearing on behalf of the appellant -original accused No. 1, has, in the first instance, challenged the validity of the proceeding on the ground that it stands vitiated in so far as the sanction order, which is the starting point for the proceedings, is liable to be struck down: Towards this end, Shri Mohite points out that the sanction to prosecute was accorded by the Regional Transport Officer, Bombay, Shri B. B. Malve. He states that the prosecution has not pointed out to the Court any ground on which it could be justifiably stated that Shri Malve was not available. He contends that the sanction order in question has been produced by the Desk Officer in the Transport Commissioner's office who, at the relevant time, was working as an Accountant (Establishment) in the office of the Regional Transport Officer, Bombay Central. Bhaskar Naik (P.W.3) has stated that it was he who went through the papers that were received from the Authorities and that he prepared the draft sanction order, that he thereafter put the papers up to the Regional Transport Officer, who went through them, discussed the matter with him and accorded the sanction. He also pointed out that the services of accused No. 1 were terminated by order dated 30 -4 -1982. This witness has not been cross -examined, but the point sought to be canvassed by Shri Mohite was that even taken at its face value, this witness cannot substitute for the requirement that the authority who has accorded the sanction and who has applied his mind to the material placed before him and who is alleged to have come to the conclusion that the accused, who is before the Court, is liable to be prosecuted is required to make himself available for purposes of testing as to whether the grounds on which the sanction was accorded are valid or not. It is the contention of learned Counsel that the non -examination of this witness is fatal to the prosecution.

(3.) THE learned A.P.P. seriously disputes this position because, according to him, the sanction order is valid in so far as the witness has personal knowledge of the fact that all the papers and material were placed before the concerned authority, namely, the Regional Transport Officer in his presence. He states that the officer went through the record, that he discussed the matter with him and thereafter accorded the sanction and this, according to the learned A.P.P., would constitute due application of mind. He submits that under these circumstances, the requirement of producing the authority himself would be rendered unnecessary because the witness concerned is not a person who had no personal knowledge of the case but he happens to be an officer who, in fact, applied his mind to the case himself and came to a particular conclusion.