The State of Maharashtra v. Vijay Bhimrao Belge & Anr.

Mr.J.P.Yagnik A.P.P. for State A.S.OKA,J. CORAM: A.S.OKA,J. CORAM: A.S.OKA,J. CORAM: : FEBRUARY 26,2009 DATE : FEBRUARY 26,2009 DATEDATE : FEBRUARY 26,2009 P.C.: P.C.: P.C.:

1. Heard learned A.P.P for the applicant in support of this application under sub section 3 of section 378 of the Code of Criminal Procedure,1973. By the impugned Judgment and order, the first respondent (first accused) has been acquitted of the offence under section 7 as well as sections 13(1) (d) read with section 13(2) of the Prevention of Corruption Act,1988. The Respondent no.2 (accused 2) has been convicted of the offence punishable under section 12 read with section 7 of the said Act of 1988.

2. The first respondent (accused no.1), a P.S.I. was attached to Khar Police Station at the time of commission of offence. The finding recorded by the learned Judge is that the first respondent was a public servant as contemplated under section 2(c) of the said Act of 1988 and that the - 2 - sanction accorded by the authority to prosecute the said respondent was not legal and valid. Even on merits, the learned Judge has held that the offence has not been established.

3. It must be noted here that the complainant did not step into witness box. P.W.1 is the panch witness. P.W. 2 is the competent authority. P.W. 3 and 4 are the constables who have arrested the accused persons. P.W.5 is the person employed in the establishment of Department of police. P.W.6 is a Police Officer. P.W.7 is the Investigating Officer. The learned Trial Judge has considered the evidence of all prosecution witnesses and especially the evidence of P.W.1. The learned Judge has disbelieved the version of P.W.1. The case of the prosecution is that after completing the trap formalities P.W.1 and the complainant met accused no. 1. The accused no. 1 came to the canteen which is adjacent to the police station premises. The first respondent offered tea to P.W. 1 and the complainant. After the tea was served, the first respondent asked the complainant as to whether he has brought the entire amount and the complainant replied in the affirmative. As per the instructions of the first respondent, the complainant handed over the cash amount to the second respondent by taking out the same from his right side pocket of the trouser. The second respondent kept the said amount in his left side trouser pocket without counting the same. - 3 -

4. The learned Judge observed that in the post trap panchanama there was no reference to the respondent no.1 serving tea to the complainant as well as P.W.1. The learned Judge found that in the deposition of the P.W.1 before the court he did not state that after application of anthracene powder the notes were kept in the trouser of the complainant by the police constable, though in the pre trap panchanama it is stated that the notes were kept by a police constable in the pocket of the trouser of the complainant. The learned Judge has referred to the evidence of P.W.3 Police stable who stated that the complainant and the P.W.1 entered the Khar Police Station. They came out along with accused no.1 and they were chit-chatting near the Mafco Stall which is opposite to the tea stall. The learned Judge found that the P.W.3 did not state that the complainant, P.W.1 and the 1st respondent proceeded to canteen. The learned Judge found that in the post trap panchanama, it is not mentioned that the 1st respondent directed the complainant to pay amount to the 2nd respondent. The learned Judge found that there is no reference in the post trap panchnama to the direction allegedly given by the 1st respondent for handing over the bribed amount to the second respondent. The post trap panchnama does not record that at the instance of the 1st respondent the amount was handed by the complainant to the 2nd respondent. - 4 -

5. P.W.3 stated that the complainant P.W.1 and the first respondent were chit-chatting when the third person joined there and within two minutes the complainant took out wad of notes and handed over the same to the second respondent. The learned Judge found that the P.W.7 came out with another version. He did not state that the first respondent had offered tea to the complainant and P.W.1. He also stated that the complainant and P.W.1 met one person and along with him both of them proceeded to Mafco Stall. He stated that the complainant and the said person were talking with one more person. Thereafter, the complainant took out notes from his packet and handed over to the said third person who kept the same in the left side trouser pocket. Considering all these aspects, the learned Judge was of the view that the benefit of doubt will have to be granted to the first respondent.

6. As far as sanction is concerned, the finding recorded by the learned Judge is that the sanction was not legal and valid. P.W.2 Rajender Singh, the Deputy Commissioner of Police accorded the sanction to prosecute the first respondent. In his evidence he stated that the Sub Inspector of Police are appointed by D.I.G rank Officer who is equivalent to the Additional Commissioner of Police. He admitted that the Deputy Commissioner of Police is not the appointing authority of P.S.I.at Bombay. He admitted that the - 5 - Commissioner of Police was the authority to dismiss a P.S.I. Thus, the P.W.No.2 admitted that he was neither appointing authority nor the authority empowered to remove the first respondent. Therefore, the sanction is held to be illegal and invalid.

7. The view taken by the learned Trial Judge is a possible view which could have been taken. No case is made out for grant of leave. Application is rejected. JUDGE JUDGE JUDGE