HARISINGH BANDUSING SABLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BOTH the aforesaid appeals have been filed impugning a judgment and order passed by a Special Judge, Pune on 18.9.1997 in Special case no.3/92. Since both the appeals arise out of a common judgment and order the same are being disposed of by this common judgment and order. Criminal appeal no.596/97 has been filed by Harising Bandusing Sable who was the original accused no.1 in special case no.3/92. Criminal appeal no.587/97 was originally filed by Limbraj Mohan More who was original accused no.2 in special case no.3/92. The said Limbraj Mohan More expired during the pendency of his present appeal and appeal was carried forward by his heirs. By the impugned judgment and order accused no.1 Harisingh Bandusing Sable is convicted for the offences punishable under Sections 13(i)(a) and 14(i)(d) read with Section 13(2) of the Prevention of Corruption Act 1988 and sentenced to under-go RI for 3 years and to pay a fine of Rs.1000.00 on each count, in default to suffer further RI for 1 month. He is also convicted for the commission of the offence under Section 12 of the Prevention of Corruption Act 1988 and sentenced to under-go RI for 2 years and to pay a fine of Rs.1000.00 in default to suffer RI for one month. Under the impugned judgment and order accused no.2 Limbraj Mohan More was convicted for the offence punishable under Sections 13(1)(a) and 13(i)(d) of the Prevention of Corruption Act and sentenced to under-go RI for 3 years and to pay a fine of Rs.1000.00 on each count, in default to under-go RI for one month on each count. He was further convicted under Section 7 of the Prevention of Corruption Act 1988 and sentenced to under-go RI for 2 years and to pay a fine of Rs.1000.00, in default to under-go further RI for 1 month. The trial Court directed that the substantive sentences of both the accused would run concurrently. At the trial there was one other person by name Kanta Ganpat Kanade who was arraigned as accused no.3 in the trial. The trial Court acquitted accused no.3. Thus accused no.1 Harisingh Bandusing Sable and original accused no.2 Limbraj Mohan More were the 2 persons to file an appeal in this Court.

(2.) THE brief facts of the prosecution case were as under :-

(3.) ON the first count which relates to the sanction order being vitiated for non application of mind, one has only to peruse the evidence of the officer who has issued the sanction order. This officer is (PW 22) Shrinivas Jammu Nathan. At the relevant time when he was called upon to grant sanction he was holding the post of Additional Chief Secretary, Home Department, in the Govt. of Maharashtra. In his examination-in-chief he stated that he received the case papers of this case for sanction through the D.G. ACB Pune. He also received a report from the Director General of ACB for prosecution of the accused. Those papers were examined by the Home ministry in consultation with the department of Law & Judiciary and the same was put before the Government of Maharashtra for sanction purpose. That was approved on 2.1.1992. Thereafter formal sanction order was prepared and the same was again examined by the Law & Judiciary before he signed on it. Before signing the sanction order he perused all the papers, report and opinion of Law & Judiciary and Home Department. After he read the papers he signed the sanction order. He proved his signature on the sanction order which was then exhibited at Exh.107. In the cross-examination of this witness however, his testimony given in relation to the application of his mind stood completely shattered. In his cross-examination he admitted that it was true that true facts must be presented before sanctioning authority before granting sanction. He admitted that he did not remember as to whether he noticed any breach of procedure while appointing the candidates. He did not make any attempt to peruse the recruitment register. He did not remember as to whether any material was placed before him to show that these 14 recruits were selected from the category of sportsman. He has not taken any noting while according the sanction. He agreed that the statements recorded during the course of investigation were not to be signed by the witnesses. He candidly admitted that he did not peruse the statements of the 14 witnesses who have supposed to have paid the bribe. He also further admitted that he did not peruse any papers but only perused the report submitted by the Director of ACB Bombay and analysis made by the Home department. (emphasis provided). In this case all the 14 recruits were examined by the prosecution as star witnesses. Once the sanctioning officer admitted that he had not perused the statements of these 14 witnesses and further admitted that he did not peruse any papers except the papers and the analysis of the Home department, in my view, this by itself will deliver a fatal blow to the prosecution. It is well settled by a catena of judgments that the grant of sanction is very important for valid prosecution. It must be established to have been accorded after due application of mind. (See : Dhirajlal Chatrabhuj Ratnagrahi Vs. State of Maharashtra reported in 1994 (2) Bom.C.R. 610). It is also equally well settled that if the sanction is bad in law, the entire trial must be held to be void ab-initio (See : Anand s/o Gopal Gurve Vs. The State of Maharashtra reported in 1994 (1) Bom.C.R. 168). The Apex Court further laid down in this regard that for the grant of valid sanction there must be independent application of mind to the facts of the case as also material and evidence collected during investigation by the authority competent to grant sanction is essential. (See : Mansukhlal Vithaldas Chauhan Vs. State of Gujarat reported in 1997 (7) Supreme Court Cases 622). In my view, once the sanctioning authority gave vital admissions of the nature referred to here-in-above, his sanction order stands vitiated for non application of mind. On this ground alone the entire prosecution must fail.