HANMANTAPPA MURTYAPPA VIJAYAPURE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal against conviction was filed by the original accused-Hanmantappa Murtyappa Vijapure challenging his conviction under the Prevention of Corruption Act. He was working as a clerk and when the complainant went to him for getting solvency certificate, he demanded bribe. A trap was laid, he was caught and then came to be convicted. However, during the pendency of the appeal accused died and his appeal is continued by his legal heirs who are the wife and children of the original accused. Appeal is continued by them because due to conviction of the original accused who was the Government servant, the government is not releasing his Provident fund, Gratuity and other benefits. The appellants heirs of original deceased have no source of income and they were deprived of those benefits because of this conviction.

(2.) I heard Mr. Nitin Jamdar advocate for the appellants and APP for the State. It was submitted by Mr. Jamdar that Civil Service rules are harsh in asmuch as the Provident fund and Gratuity which is meant for the dependants of the Government servant can be withheld by the Government in case the government servant is found guilty of such charges. He submitted that family members or the dependants of the Government employees may not have any role to play in such activities of the Government servant so as to deprive them of these benefits because of their father or husband being found guilty under the Prevention of Corruption Act. This submission may be Justified in certain circumstances and situation but nothing can be done about it by any Courts because those Rules are there, they have been accepted and followed everywhere.

(3.) MR. Jamdar next contended that the accused was merely a clerk and the amount of bribe demanded by him is Rs. 150/ -. Therefore according to him the accused is entitled for acquittal on the basis of certain judgments of this Court on the doctrine of triviality. He. relied upon the judgment of this court reported in (1992) 2 Bom CR 547 : (1992 Cri LJ 1142) Arun Prahlad Kale v. State of Maharashtra where the bribe amount was Rs. 40/ -. The accused came to be convicted by the trial Court. This judgment was set aside by Justice Saldanha and the advocate for the accused relied upon the earlier judgment reported in 1991 Mah LJ 976. The advocate for the appellants also relied upon an unreported Judgment of Justice Saldanha in Appeal No. 253 of 1984 bhagwan Jathya Bhoir v. State of Maharashtra, decided on 19th/20th August, 1991 (Since reported in 1992 Cri LJ 1144 ). In that Justice Saldanha had after analysing the scheme of the Prevention of Corruption Act held that in trifling of petty cases where the amount of the alleged bribe is extremely small the Legislature could never have intended that the public servant in question ought to be subject to the rigours of criminal trials in so far as the punishment for such an offence, even if established, could never be the minimum prescribed under the law, namely, that of one year's rigorous imprisonment it was further held that In the light of the judgment wherein the amount of bribe was Rs. 30/- and in the appeal the amount was Rs. 40/-, the sanction order will have to be struck down on the ground that there has been no due application of mind. The learned Judge observed that in that view of the matter the prosecution itself would be vitiated and conviction cannot survive. This judgment reported in (1992) 24 Bom CR 547 : (1992 Cri LJ 1142)Arun Prahlad Kale was followed by Justice saldanha again in 1995 Mah LJ 573 shivchalappa Gurumortyappa Loni v. State of Maharashtra with more elaboration on this point. Paragraph 6 of the said judgment is reproduced hereinbelow : "6. This Court had occasion to examine a situation where a public servant is sought to be put on trial on a corruption charge which has disastrous consequences to his career and to his entire future life on the ground that he is alleged to have accepted illegal gratification of a very small amount of money, This Court has, in a decision in the case of Arun Prahlad Kale v. State of maharashtra, 1992 Cri LJ 1142; and in a subsequent decision in the case of Bhagwan jathya Bhoir v. State of Maharashtra, 1992 mah LJ 979 : 1992 Cri LJ 1144, observed that one of the cardinal requirements for the appointing authority of a public servant to evaluate is the question as to whether the gravity of the charge is sufficient to warrant a prosecution. I have had occasion to observe in those Judgments, which does not have to be repeated once again, that disciplinary proceedings do provide for punishments many of them of a rigorous nature and, therefore, before mechanically sentencing a public servant who Is alleged to have accepted a small amount of money to the trauma of one or two decades of litigation, It is very essential for the sanctioning authority to evaluate the seriousness of what is alleged against the public servant, where the facts are gross and where a criminal trial and a possible jail sentence appear to be very much In order sanction must certainly be accorded, but in those of the cases where the amount Is small, the advisability of a prosecution is a matter which is seriously in doubt. It is under these circumstances that it is essential for the sanctioning authority to appear before the Court and to satisfy the Court as to why and under what circumstances the sanction was accorded. I am unable to accept the submission canvassed by the learned APP who contends that the production of the witness is only formal proof. That may be a circumstance of insignificance as far as the prosecution is concerned, but as far as the defence is concerned, the making available of that witness is virtually a matter of life and death to the defence and, therefore, cannot be dispensed with. In this context, a reference may be invited to a decision of the Supreme Court in the case of Mohd. Iqbal Ahmed v. State of a. P. , AIR 1979 SC 677 : (1979 Cri LJ 633), wherein the Supreme Court had occasion to observe : "the grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned. " i may only add that the duties of a public servant at times are unpleasant and at times a public servant is required to take harsh decisions and in such circumstances it is inevitable that he will invite hostility which, in turn, makes the public servant very vulnerable to personal attacks and it is in these circumstances, to my mind, that the need to be meticulous with regard to the grant of sanction and to be judicious in one's approach cannot be highlighted. In the present case, the non-examination of the sanctioning authority without any shred of doubt is fatal to the prosecution and the entire proceedings would, therefore, stand vitiated on this ground alone. I do not, however, propose to leave the matter at that because Shri hudllkar has very rightly pointed out to me that regardless of for how long this stillborn litigation went on that there Is nothing to prevent the department from once again drafting out the very sanction order and reinstituting the proceeding if the appeal were to be disposed of on a technical ground. It is for this reason that I need to deal with certain aspects of the matter on merits which have already been canvassed. " thereafter this judgment was followed by justice Aguiar in an unreported judgment in Criminal Appeal No. 67 of 1996 Sunil balkrishna Sawant v. State of Maharashtra. In that case an amount of bribe was Rs. 50/ -. Thus doctrine of triviality was followed and the appeal came to be allowed and conviction of the accused was set aside.