SHIVCHALAPPA GURUMORTYAPPA LONI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ONCE again, in this appeal, the all important issue of a defect in relation to the important ingredients of sanction has surfaced. In this instance, the sanction order has been exhibited by consent and it is the correctness of this procedure that has been seriously assailed in the course of the hearing of the appeal. It is essential, however, to recount relevant facts before dealing with this issue. The appellant, at the relevant time, a Minimum Wages Inspector (Agriculture) in the office of the Assistant Commisioner of Labour at Solapur was admittedly a public servant. It is alleged that one Dnyandeo Jagtap, an agriculturist, had been called to the office as the accused found that he was not maintaining the record in respect of the labourers employed by him. These records which had to be maintained under the provisions of the Minimum Wages Act had apparently not been kept. The appellant is alleged to have instructed the complainant, Jagtap, to purchase the relevant registers, which he did and came back to the appellant. The appellant thereafter informed him as to how to maintain those registers and is also alleged to have told him that he (Jagtap) will be pardoned in case there are any mistakes or errors committed if he pays a sum of Rs. 200/ -. Some bargaining went on and Jagtap agreed to come back with the money that evening. He approached the Anti-Corruption Bureau Authorities, a trap was laid and the prosecution alleges that the amount of Rs. 200/- was recovered from the hip pocket of the appellant. The appellant was thereafter arrested, charge-sheeted and put on trial. The learned Special Judge, Solapur convicted him of the offences both under section 7 of the Prevention of Corruption Act, 1988 as also under section 13 (1) (d) of the same Act. Under the first charge, he was awarded the sentence of rigorous imprisonment for six months and to pay a fine of Rs. 500/-, in default, to suffer rigorous imprisonment for 3 months. Under the second charge, he was awarded rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default, to suffer rigorous imprisonment for three months, substantive sentence to run concurrently. It is against this conviction and sentence that the present appeal has been directed.

(2.) SHRI Hudlikar, learned Counsel appearing on behalf of the appellant, has taken me through the evidence, both oral and documentary, in some degree of detail. To start with, he has assailed the validity of the prosecution because he contends that the entire exercise is vitiated. Shri Hudlikar stated that strangely enough in the present proceedings, the sanction order authorising the present prosecution was tendered and that the defence permitted it to be exhibited under section 294 Cr. P. C. The sanction order was thereupon marked as an exhibit. Shri Hudlikar stated that this was an obvious error and even if in other prosecutions the documents of a formal nature are attempted to be tendered in evidence and the formal proof is dispensed with that in a situation where an accused is facing a corruption charge where defences are necessarily limited and where it is well-settled law that the manner in which the sanction was accorded must pass the test of scrutiny that the learned trial Judge was in error even if the respective learned Counsel had erroneously agreed that the document be tendered in evidence, in having so permitted that procedure.

(3.) THIS position is seriously contested by Shri Palekar, the learned A. P. P. , because he contends that the defence is estopped from raising this plea at the appellate stage. He pointed out that the document could never have gone on record by consent if the learned defence Counsel before the trial Court had insisted on the sanctioning authority being produced. He stated that the defence has waived its right to challenge the circumstances under which the sanction was accorded and in these circumstances the presumption under section 114 of the Evidence Act would hold good and there can be no question of the appellants learned Counsel raising this point at the stage of appeal. He maintains that the defence had ample opportunity before the trial Court of challenging the validity of the sanction order, but not having done so, it is wholly impermissible to permit the issue to be re-opened at this stage.