STATE OF MAHARASHTRA Vs. RAMKRISHNA DORKAR

JUDGEMENT

(1.) TAKING exception to the order of discharge passed by Special Judge, Akola in Special Case No. 8/87 (State of Maharashtra v. Ramkrishna and others), on 7-12-1993, the State of Maharashtra has filed this present revision application under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 (for short Cr. P. C. ). The grievance of the revision applicant State of Maharashtra is that, Special Judge, Akola has committed serious error of jurisdiction and also grave error of law in discharging the accused respondent for an offence punishable under Section 5 (1) (e) read with Section 5 (2) of Prevention of Corruption Act, 1947 read with Sections 109 and 34 of Indian Penal Code.

(2.) THE learned Additional Public Prosecutor has urged before me that the Special Judge, Akola was not justified in holding that no noticed or opportunity was given to the accused Non-applicant by the Investigating Officer. He further submitted that the sanction order passed by the Competent Authority does not suffer from any infirmity. Prima facie case having been made out, the Special Judge, Akola ought to have charged accused and proceeded with the trial instead of discharging him by the impugned judgment. According to the prosecution case, the accused non-applicant joined the Government service in the year 1951 as a Clerk in Revenue Department and then was promoted from time to time and. ultimately he retired from the Government in the year 1988. Thus, according to the prosecution, the Non-applicant is a public servant and since disproportionate income from the source of his earning was detected, the accused non-applicant was guilty of the offence under Section 5 (1) (e) read with Section 5 (2) of the Prevention of Corruption Act, 1947. The main charge against the accused non-applicant is that, accused Non-applicant was possessed of the assets valuing about Rs. 4,29,987. 09. The income of non-applicant accused from the known sources was Rs. 4,79,238. 19 and he had incurred expenditure of Rs. 1,25,902/- for the maintenance of his family and in this view of the matter the accused Non-applicant could have saved Rs. 3,53,325. 57. However, as stated above, the accused non-applicant was found to possess moveable and immovable properties worth Rs. 4,29,987. 09, he had income disproportionate to the known sources of. income of the accused non applicant. According to the prosecution, after completion of investigation the matter was sent for sanction to the Competent Authority and the Commissioner, Amravati Division on 25-3-1987 passed the following sanction order. SANCTION ORDER : ref : Shri Ramkrishna Narayan Dorkar, the then Entertainment Duty Inspector (now Naib Tahsildar, Darwha, District Yavatmal. ). Read : Record of investigation of Cr. No. 363/80, under Sections 5 (1) (e) r/w 5 (2) of Prevention of Corruption Act and Section 109, 34, I. P. C. of P. S. City Kotwali, Akola. Where during the period from 12-3-51 to 24-6-80 Shri Ramkrishna Narayan Dorkar was working as Clerk, Sub-Inspector, Prohibition and Excise and Entertainment Duty Inspector, Akola and as such he was public servant within the meaning of Section 21 of Indian Penal Code. And on 24-6-1980, P. I. A. C. B. , Akola registered an offence vide P. S. City Kotwali, Akola Cr. No. 363/80 under Section 5 (1) (e) r/w 5 (2) P. C. Act and Section 109, 34, I. P. C. , and conducted the investigation which revealed that Shri Ramkrishna Narayan Dorkar, the then Entertainment Duty Inspector Akola now Naib Tahsildar, Darwha District Yavatmal acquired and possessed disproportionate property, to his known source of income in common intention with his father Shri Narayan Gotaji Dorkar and mother late Gayabai Narayan Dorkar, who expired in April, 1978 who were residing with him, to the tune of Rs. 76,657. 55. The total income of Shri Ramkrishna Narayana Dorkar, the then E. D. I. now Naib Tahsildar from his all known sources from the date of entry into his service i. e. from 12-3-51 to 24-6-1980 was Rs. 4,79,328. 19 paise and expenditure was Rs. 1,25,902. 68 paise and as such his probable saving from the aforesaid known sources of income was Rs. 3,53,335,51 paise. And whereas the accused Ramkrishna Narayan Dorkar, the then E. D. I. now Naib Tahsildar, Darwha District Yavatmal, and on his behalf his father Narayan Gotaji Dorkar, mother late Smt. Gayabai Narayan Dorkar and his dependent and family members Sau. Pushpalata. Ramkrishna Dorkar (wife), Anil Ramkrishna Dorkar (son), Subodh Ramkrishna Dorkar (son) were found in possession of assets of Rs, 4,29,987. 06 paise and thus Shri Ramkrishna Narayan Dorkar and on his behalf his father. Narayan Gotaji Dorkar and his mother late Smt. Gayabai w/o Narayan Dorkar and others as mentioned above have possessed the properties as above out of that, property worth Rs. 76,651. 55 is disproportionate to his known sources of income for which Shri Ramkrishna Narayan Dorkar, E. D. I. now Naib Tahsildar, Darwha District Yavatmal, could not satisfactory account and by abuse of office of Public servant and by corrupt and illegal means derived upon pecuniary advantages. and possessed assets disproportionate to the known sources of his income and thus committed offence of criminal misconduct under Section 5 (1) (e) r/w 5 (2) of Prevention of Corruption Act II of 1947 and 34, 109, IPC. And whereas, the said Shri Ramkrishna Narayan Dorkar, the then E. D. I. Akola now Naih Tahsildar, Darwha district Yavatmal, is alleged to have committed an offence punishable under 5 (1) (e) r/w 5 (2) of Prevention of Corruption Act II of 1947. And whereupon perusal of the papers of investigation of Cr. No. 363/80 under Section 5 (1) (e) r/w 5 (2) of P. C. Act r/w 34. I09. IPC of P. S. City Kotwali, Akola, I, N. L. Lakhanpal, Commissioner Amravati Division, Amravati, am of the opinion that the said Shri Ramkrishna Narayan Dorkar, the then E. D. I. now Naib Tahsildar, Darwha, District Yavatmal should be prosecuted for the offences constituted by the acts herein mentioned above and revealed during the said investigation and punishable as stated above. Now, therefore. I. N. L. Lakhanpal, Commissioner, Amravati Division, Amravati, an authority competent to remove the said Shri Ramkrishna Narayan Dorkar, the then E. D. I. , Akola now Naib Tehsildar, Darwha, district Yavatmal from his post, do hereby accord sanction for the prosecution as required by Section 6 (1) (c) of the Prevention of Corruption Act II of 1947, to prosecute the said Shri Ramkrishna Narayan Dorkar, then Entertainment Duty Inspector, Akola, now Naib Tahsildar, Darwha district Yavatmal for the offences constituted by the afore-said facts and punishable as mentioned above. Sd/- N. L. Lakhanpal, (N. I. . Lakhanpal)Commissioner, Amravati Division, Amravati. " dated 25/03/1987.

(3.) BEFORE the Special Judge, Akola, the accused moved an application for his discharge mainly on two grounds;