KISAN MAHADEO HEDGIRE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant in this case at the relevant time was employed as Enquiry Officer of the Mangalvedha sub-branch of the Maharashtra State Co-operative Land Development Bank Limited. It is alleged that he demanded a sum of Rs. 100/- from complainant Pandurang on 23-6-1983 and that he had accepted the said amount as a bribe on 6-7-1983 at about 12. 40 p. m. The prosecution alleges that Pandurang had applied for a loan from the Bank in connection with the construction of a well. It was the job of the accused to submit a report with regard to the degree of work that had been completed by Pandurang before the next instalment was sanctioned. Pandurang had applied for payment of the next instalment and the accused was processing the requisite papers in connection with which Pandurang had to make several trips to the Bank. At the same time, in identical circumstances one Bhausaheb had also applied for sanction of the third instalment of his loan and the accused was required to do the spot inspection and submit the report in respect of the sanction of this amount also. He is alleged to have made a demand for gratification of Rs. 50/- from Bhausaheb. Both these persons had complained to the Manager of the Bank that their cases were being delayed and the Manager had asked the accused to expedite the work. Since they were unhappy over the demands made by the accused, they approached the anti-corruption authorities at Solapur and a trap was laid whereby the currency notes of the denomination of Rs. 100/- in one case and Rs. 50/- in the second case were treated with anthracene powder and handed over to the respective complainants. These complainant were instructed to go alongwith the panch witness and to hand over the money to the accused on his making a demand for the same. It is alleged that on 4-7-1983 the two complainant and the accused accompanied by the panch first went to a hotel where they had some refreshments and when they came out on to the main road the accused asked for the money which was handed over to him by the two complainants. He accepted the said amount and put the sum of Rs. 150/- in his Manila pocket. On the complainant giving the requisite signal the raiding party apprehended him and recovered the money from his possession. It is alleged that traces of anthracene powder were found on his hands and his clothes. The accused was put on trial in two separate cases for charges under the Prevention of Corruption Act and the learned Judge accepted the evidence and convicted him in both cases. The companion appeal has been filed challenging the second conviction whereas this appeal concerns the first one.

(2.) THE two cases were tried together and the evidence is common except that for the record that the orders have been separately passed in the two appeals. The appellant stands convicted for the offences under section 161 I. P. C. and 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act and through these two appeals he has assailed the correctness and the validity of the convictions in question. I propose to deal with the two appeals on merit in this judgment, though for the purpose of the record a separate order will be necessary in the companion appeal.

(3.) MR. Mengane, learned Counsel appearing on behalf of the appellant has in the first instance challenged the conviction on the ground that the sanction order is liable to be struck down because there is nothing on record from which this Court can hold that there was due application of mind for the accord of sanction. The sanction to prosecute has been accorded by the Managing Director of the Maharashtra State Co-operative Land Development Bank Ltd. , Bombay. He has proceeded on the footing that since he has the authority and power to remove the accused from service, that he is competent to accord sanction. Mr. Mengane, submits that in the first instance the sanction order itself does not record requisite satisfaction that the authority on perusal of the record was subjectively satisfied, that this is a case which requires a prosecution. To this extent he submits that the order itself is defective and is liable to be struck down. The learned A. P. P. has sought to defend the position by stating that the sanctioning authority has used the words "i am of the opinion. . . ". He submits that this is merely a matter of terminology and that it means one and the same thing. The accord of sanction is a matter of considerable seriousness and the sanctioning authority expressing an opinion is different from a judicious consideration of the material before him and arrival of a satisfaction and taking a decision that this is a case which warrants a prosecution. To my mind, Mr. Mengane, is justified in attacking the sanction order on this ground because it is not a mere matter of technicalities but it is an issue that is much debated. In the case of a public servant the accord of sanction is something that goes to the very basis in so far as this Court has already taken the view that it is the basic duty of the sanctioning authority even if misconduct has been committed, to carefully apprise the material and to decide as to whether it is a case that is serious enough to merit a prosecution under the Prevention of Corruption Act. It is not all types of misconduct that would warrant a prosecution and this Court analysed the law in the case of (Bhoir v. State of Maharashtra) reported in 1992 Criminal Law Journal, page 1142, wherein this Court has held that in cases where the amounts are trivial that appropriate punishment even if necessary, can be awarded through disciplinary proceedings and that if the sanctioning authority regardless of this consideration mechanically accords sanction to prosecute, that it is liable to be struck down on the ground of total non-application of mind. The amounts involved in this case are Rs. 50/- and Rs. 100/- respectively and because of this incident two prosecutions were directed. It is quite obvious in the facts and circumstances of this case that the sanction order in these cases has been accorded without any application of mind and would therefore have to be struck down on this ground. Quite apart from this challenge, Mr. Mengane has pointed out that the sanction order has been exhibited before the trial Court obviously under the provisions of section 294 of the Cr. P. C. It may be that the defence did not insist on the authority being summoned as a witness and it is also possible that the defence lawyer might have even consented to the sanction order being taken on record. This Court has had occasion to consider this legal position, inspite of such a situation while deciding (Criminal Appeal No. 257 of 1990 decided on 22-9-1992) wherein this Court had occasion to hold that regardless of such a situation, the trial Court ought not to have permitted the sanction order to the exhibited. This Court had occasion to observe that in the absence of the sanctioning authority being examined the accused is left with no opportunity of testing whether there was due application of mind or not and if such faulty procedure is followed that the sanction order itself is liable to be ignored. In an earlier decision in the case of (Jagannath Tekade v. State of Maharashtra) reported in 1991 Maharashtra Law Journal, page 977, this Court had occasion to consider the situation that emerges in law when the sanctioning authority is not examined as a witness. The Court had occasion to take stock of the prevailing situation whereby the sanction orders are mechanically signed by Government authorities and merely because they may be property drafted out that there is no guarantee whatsoever that there has been due application of mind. Regardless of this position, the learned A. P. P. sought to contend that an objection of this type should not be permitted at the appellate stage in so far as if the objection had been raised during the trial that the sanctioning authority would have been produced as a witness. He contended that the defence had accepted the sanction order and that it pre-supposes that the defence accepted it in all respects including the fact that it is validly accorded. I do concede that there is a presumption in respect of official acts that they are correctly performed but in cases such as these it is not the fact that the sanction order has been accorded that is in dispute but the manner in which the same has been done and the only course of scrutinising whether or not the procedure has been adequately followed, would be by producing the sanctioning authority as a witness. This is of considerable seriousness, because the accused is sought to be deprived of his liberty and if that is to be done under Article 21 of the Constitution, the procedure prescribed by law will have to be rigorously followed. There can be no compromises in these matters and to my mind, therefore, on the record of the present cases, the sanction order will have to be struck down, on the aforesaid ground.