High Court · 2025
Legal Reasoning
*14* apeal 225a261o04Sankhe for prosecuting accused No.1 Dr. Kakade is concerned,admittedly the appointing authority of accused No.1 Dr. Kakadeis the Secretary of Government whereas, the sanction is accordedby PW-1, who was Under Secretary and not competent to removeaccused No.1 Dr. Kakade. Therefore, sanction accorded by PW-1Under Secretary is no sanction. Under Section 19(1)(c) of thePrevention of Corruption Act, sanction can be accorded only bythe authority competent to remove the public servant from office.PW-1 being an Under Secretary was subordinate to theappointing authority (Secretary, Health Department), and hence,not competent to remove the accused. Therefore, sanction isinvalid.15.It is well settled that under Section 19(1)(c) of thePrevention of Corruption Act, 1988, a valid sanction forprosecution must be accorded by the authority competent toremove the public servant from service. The object of thisrequirement is to afford protection to honest officials fromfrivolous prosecution and to ensure that the competent authority,after due application of mind, considers the material beforeaccording sanction. The Hon’ble Supreme Court in Mohd. Iqbal *15* apeal 225a261o04Ahmed (supra) has held that sanction must be by the appointingor removing authority, and any sanction granted by an officersubordinate thereto is void. In the present case, PW-1 KamlakarSankhe, who was only an Under Secretary, was admittedlysubordinate to the Secretary who was the appointing andremoving authority of accused No.1. Hence, the sanctionaccorded by PW-1 is without jurisdiction and vitiates the entireprosecution against accused No.1.16.Insofar as sanction granted by PW-2 Dr. PrakashSathe for prosecuting accused No.2 Ambhore is concerned, PW-2sanctioning authority has not applied mind while accordingsanction. PW-2 admitted in his evidence that he has not seen theappointment order of accused no.2. He also admitted thataccused No.2 Ambhore had no official work with thecomplainant. As regards accused No. 2 Ambhore, the sanctionaccorded by PW-2 Dr. Prakash Sathe also suffers from non-application of mind. The sanctioning authority must, beforeaccording sanction, peruse the relevant records and satisfy itselfthat a prima facie case exists. In State of Karnataka v. Ameerjan,(2007) 11 SCC 273, and State of Maharashtra v. Mahesh G. Jain, *16* apeal 225a261o04(2013) 8 SCC 119, the Hon’ble Supreme Court has emphasizedthat a sanction order passed mechanically, without examining thematerials or understanding the nature of allegations, is invalid. Inthe present case, PW-2 candidly admitted that he had not seen theappointment order of accused No.2 and was unaware of hisofficial duties. This admission clearly establishes that thesanctioning authority did not apply its mind to the facts of thecase, rendering the sanction invalid and vitiating the prosecutionagainst accused No.2.17.As far as demand as against accused No.1 Dr.Kakade is concerned, the prosecution has failed to prove thataccused No.1 has demanded or accepted money. The amount hasbeen admittedly accepted by accused No.2 Ambhore. Whether,accused No.1 Dr. Kakade has made any demand to thecomplainant is not established by the prosecution by adducingstrong evidence. The prosecution is required to prove the casebeyond reasonable doubt. 18.Insofar as demand in respect of accused No.2Ambhore is concerned, the prosecution has failed to establish thedemand made by accused No.2 beyond all reasonable doubts. *17* apeal 225a261o04PW-2 Dr. Sathe has admitted in his evidence that accused No.2had no official work of the complainant. There are discrepanciesin evidence of PW-3 complainant about demand made byaccused No.2. PW-3 admitted in his evidence that accused No.2Ambhore told him that he had no concern with that money andnot to pay it to him and he was not prepared to accept money.Even evidence of PW-4 Sonawane and PW-5 Dake categoricallyadmitted that accused No.2 did not demand money. PW-13Tandale Investigating Officer also admitted that accused No.2was not authorized to grant medical bill. There is nocorroborative evidence for the alleged demand by accused No.2Ambhore.19.The settled position of law, as laid down by theHon’ble Supreme Court in Neeraj Dutta (supra) and P.Satyanarayana Murthy (supra), is that proof of demand of illegalgratification is an essential part for establishing the offenceunder Sections 7 and 13(1)(d) read with Section 13(2) of thePrevention of Corruption Act. Mere recovery of tainted money,unaccompanied by proof of a prior demand, is not sufficient toconvict the accused. The prosecution must prove beyond *18* apeal 225a261o04reasonable doubt that the accused not only demanded but alsoaccepted or obtained the gratification as a motive or reward fordoing or forbearing an official act.20.In view of the discussion above, in absence of validsanction, the entire prosecution stands vitiated. Even otherwise,on merits, the prosecution has failed to prove the foundationalfact of demand. The prosecution has failed to prove its casebeyond reasonable doubt. Hence, the impugned judgment ofconviction dated 01.04.2004 passed by the learned Special Judge,Aurangabad in Special Case No.30/1998 is, therefore, quashedand set aside. The appellants are acquitted of all the charges. Bailbonds stand cancelled. Fine, if paid, shall be refunded to theappellants. The Criminal Appeals are, accordingly, allowed. kps (SUSHIL M. GHODESWAR, J.)
Arguments
*1* apeal 225a261o04IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.225 OF 2004Dr.Jagannath s/o Rangnath Kakade,Age : 52 years, Occu: Service,R/o Aurangabad....Appellant/ accused No.1-VERSUS-The State of Maharashtra....RespondentANDCRIMINAL APPEAL NO.261 OF 2004Ashok Seetaram Ambhore,Age : 40 years, Occ : Service,R/o Nav-Jeevan Colony, HUDCO,N-11, F-4/8, Aurangabad,Tq. and Dist. Aurangabad....Appellant/ accused No.2- VERSUS -The State of Maharashtra....Respondent…Shri Nilesh S. Ghanekar, Advocate for the appellant/ accusedNo.1 in Criminal Appeal No.225/2004.Shri R.S. Deshmukh, Senior Advocate a/w Shri V.A. Chavan,Ms. Ashwini S. Deshmukh and Ms. Meenal S. Deshmukh, for theappellant/ accused No.2 in Criminal Appeal No.261/2004.Shri N.R. Dayama, APP for the respondent /State/ prosecution.… CORAM : SUSHIL M. GHODESWAR, J.Reserved on : 09 October 2025Pronounced on : 17 October 2025 *2* apeal 225a261o04JUDGMENT :-1.Since both these appeals arise out of the sameimpugned judgment, they are being decided by this commonjudgment. In this judgment, for the sake of convenience, theparties are referred to in their original capacity i.e. the appellant(Dr.Jagannath Rangnath Kakade) as accused No.1, the appellant(Ashok Seetaram Ambhore) as accused No.2, therespondent/State of Maharashtra as the prosecution State andPW-3 Pandit Alanjkar as complainant.2.The impugned judgment and order in these appealsis dated 01.04.2004 passed by learned Special Judge,Aurangabad, in Special Case No.30/1998, which reads thus:-“1. The accused no.1 Dr. Jagannath RangnathKakade is hereby convicted for the offencepunishable under sec. 7 of Prevention ofCorruption Act and sentenced to suffer S.I. for6 months with a fine of Rs. 3000/-i/d to sufferS.I. for 2 months.2. He is further convicted for the offencepunishable under sec. 13(1)(d) r/w 13(2) ofPrevention of Corruption Act and sentenced tosuffer S.I. for one year with a fine of Rs.3000/-i/d to suffer S.I. for four months. *3* apeal 225a261o043. Both the substantive sentences to runconcurrently4. The accused no.2 Ashok Seetaram Ambhore ishereby convicted for the offence punishableunder sec. 12 of Prevention of Corruption Actand sentenced to suffer S.I. for 6 months with afine of Rs. 3000/- i/d to suffer S.I. for 2months.5. Accused no. 2 and 3 are acquitted for theoffences punishable under scc. 14 ofPrevention of Corruption Act.6.A bail bond of accused no.3 Suresh Waghulestands cancelled.7.A complainant Pandit Alanjkar is returned theamount of Rs.9000/- as against the taintednotes on 9.10.1997, hence the tainted notes ofRs. 9000/- be credited to the State Treasury.8.A pant and the amount of Rs. 600/- attachedfrom accused Ambhore be returned to him afterthe period of appeal is over.”3.Brief facts leading to filing of these appeals can besummarized as under:-As per the prosecution story, PW-3 complainantPandit Alanjkar was working as Police Constable at AurangabadHeadquarter and while on duty, he met with an accident on05.07.1995. He was hospitalized initially at Government *4* apeal 225a261o04Hospital and thereafter, in private hospital, namely, Kamal NayanBajaj Hospital. He underwent treatment till 09.02.1996 and helost both legs despite having spent huge amount on treatment.According to PW-3 complainant, the medical bill of Rs.93,000/-was submitted for reimbursement to the office of Superintendentof Police (Rural), Aurangabad. The said medical bill wasforwarded to the office of Civil Surgeon, Aurangabad forsanction, where accused No.1 Dr. Kakade was working as CivilSurgeon, accused No.2 Ambhore was working as clerk andaccused No.3 Waghule was working as peon. When thecomplainant met accused No.1 Dr. Kakade, he told him to meetaccused No.2 Ambhore. When the complainant met accusedNo.2 Ambhore, he told him that he will have to pay 10% of thebill amount. On 04.04.1997, when the complainant met accusedNo.1, accused No.2 Ambhore was present. The complainant thenmet accused No.3 Waghule, who asked him to pay 10% of billamount for getting approval from accused No.1 Dr. Kakade.Accused No.1 Dr. Kakade also told the complainant that if hepays 10% of bill amount, then only he will sign on bill.Therefore, the complainant lodged complaint (exhibit 29) on07.04.1997 with Anti Corruption Bureau. *5* apeal 225a261o044.According to the prosecution, on 15.04.1997, thepanchas were called and pre-trap panchanama (exhibit 40) wasmade. Accordingly, trap was laid and accused No.2 Ambhore wascaught hold while accepting bribe. Therefore, FIR bearingCr.No.3016/1997 (exhibit 73) was registered under Sections 7,12, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988,against the accused.5.After completion of investigation, the charge-sheetwas filed. The case was committed for trial to the Special Court.The charge was framed and read over to the accused, to which,the accused pleaded not guilty and claimed to be tried. Theprosecution led oral as well as documentary evidence consistingof 14 witnesses. After hearing both sides and consideringevidence on record, learned Special Judge, Aurangabad, passedthe impugned judgment and order dated 01.04.2004. Hence, boththese appeals by accused Nos.1 and 2. 6.Learned advocate Shri Ghanekar appearing foraccused No.1/ appellant in Criminal Appeal No.225/2004submitted that learned Special Judge has not properlyappreciated evidence on record and has erroneously convicted *6* apeal 225a261o04accused No.1. His first and foremost submission is in respect ofthe sanction granted for prosecuting accused No.1 Dr. Kakade.According to him, there is no proper sanction granted forprosecuting accused No.1 as the same is granted by the authority,which is not competent to remove accused No.1 from service.According to him, proper sanctioning authority is the ChiefMinister of State of Maharashtra. However, PW-1 KamlakarSankhe, who granted sanction for prosecution of accused No.1,was working as Under Secretary to the Government ofMaharashtra. The role of Under Secretary was only to sign on thecommunication for communicating the sanctioning order.Sanction can be proved either by examining sanctioningauthority or by proving original sanction. According to learnedadvocate, in this case, the original sanction is in the form ofnotings of all authorities and final approval given by the ChiefMinister. Therefore, the prosecution has failed to prove thesanction order. According to learned advocate, though PW-1Kamlakar Sankhe claimed to be sanctioning authority, however,he was working as Under Secretary to Government. PW-1admitted in his cross-examination that on the appointment orderof accused No.1 Dr. Kakade, there was signature of the Secretary *7* apeal 225a261o04and the Under Secretary is subordinate to the Secretary.Therefore, no subordinate officer to appointing authority canremove the public servant from service and therefore, thesanctioning authority should be the authority, who can removethe public servant. As such, PW-1 being subordinate to theSecretary, he cannot remove accused No.1 from service andtherefore, he cannot be said to be sanctioning authority. As perdelegation of powers, the Secretary rank officials are onlyempowered to sign on behalf of the Government and, therefore,they cannot be said to be sanctioning authority.7.The second limb of submission of Shri Ghanekar isthat evidence of the complainant (PW-3) regarding first demandon 29.03.1997 is not being corroborated by any other evidence.The complainant has suppressed the fact of presence of PoliceHead Constable Bhople, who was suspended constable. In hiscross-examination, PW-3/ complainant admitted that on29.03.1997 suspended Police Head Constable Bhople was withhim and one Gaikwad, who was driver of accused No.1, wasknown to him. However, the prosecution has failed tocorroborate the allegation of first demand on 29.03.1997 by *8* apeal 225a261o04recording evidence of Bhople or driver Gaikwad. According tolearned advocate Shri Ghanekar, even in respect of the secondalleged demand of 04.04.1997, the complainant PW-3 in hiscross-examination stated that in all, he visited the office of CivilSurgeon on three occasions, one with Bhople and two times withpanch witness and Bhople was not present on 04.04.1997.Learned advocate Shri Ghanekar vehemently submitted that asper evidence of the complainant PW-3 himself, his first meetingalong with Bhople was on 29.03.1997 and thereafter, he visitedon two occasions on 07.04.1997 and 11.04.1997 and thereafter,with panch witness on 15.04.1997. Therefore, cross-examinationof PW-3/ complainant falsifies his meeting with accused No.1 on04.04.1997 and therefore, demand allegation of this date appearsto be fictitious and imaginary. There are material omissions asregards demand evidence. Only material which is againstaccused No.1 is regarding demand of 04.04.1997. Thecomplainant is untrustworthy witness as he has suppressed thefact of previous refused by accused No.1 and also the fact ofpresence of constable Bhople along with him on 29.03.1997. On07.04.1997, there is no meeting with accused No.1 and,therefore, there is no evidence of demand against accused No.1. *9* apeal 225a261o04According to learned advocate Shri Ghanekar, as regards incidentdated 15.04.1997, there is no corroboration by witnesses asregards presence of two more persons in the cabin of accusedNo.1. Accused No.1 was examining patient and two personswere present in his cabin. However, evidence of the complainantis not corroborated with the panch witness PW-5 Nilkant Dake.There are material omissions in the evidence of PW-5 NilkantDake. Therefore, there is no strong evidence against accusedNo.1 Dr. Kakade. He, therefore, prayed for acquittal of accusedNo.1.8.In support of aforesaid submissions, Shri Ghanekarhas relied upon following judgments :-(a)Mohd. Iqbal Ahmed vs. State of A.P., 1979 AIR SC677.(b)The State of Maharashtra vs. Sanjivkumar BapuraoWadikar and others, Criminal Writ Petition No.539/2016 alongwith other petitions at Aurangabad Bench, decided on17.04.2017.(c)Nivrutti Ganpati Sadekar vs. State of Maharashtra,2019 (1) Mh.L.J. (Cri) 355.(d)Waman Malhari Jambhulkar vs. The State ofMaharashtra, 2019 (2) Mh.L.J. (Cri.) 543.(e)Suresh Purushottam Ashtankar vs. The State ofMaharashtra, Criminal Appeal No.408/2012, Nagpur Bench, *10* apeal 225a261o04decided on 31.10.2014.9.Learned Senior Advocate Shri Deshmukh appearingon behalf of accused No.2/ appellant in Criminal AppealNo.261/2004 submitted that as far as sanction in case of accusedNo.2 Ambhore is concerned, PW-2 Dr. Prakash Sathe, who issanctioning authority to accused No.2, has admitted that he hasnot seen the appointment order of accused No.2. Theappointment order of accused No.2 is also not exhibited. AccusedNo.2 had no official work of the complainant PW-3. It wasaccused No.1 Dr. Kakade, who was assigned to do official workof sanctioning of bills of the complainant. Learned SeniorAdvocate Shri Deshmukh has also taken me through the entireevidence of PW-3 complainant, to submit that there isimprovement as regards meeting of the complainant withaccused No.2 Ambhore and sometimes, the complainant statedthat he met accused No.2 Ambhore once and some times, hestated that he met him on two to three occasions. PW-3complainant has admitted in his evidence that he was instructedto pay tainted notes to accused No.1 Dr. Kakade only. Moreover, *11* apeal 225a261o04he was also not knowing as to which clerk in the office ofaccused No.1 Dr. Kakade was dealing with the work ofsanctioning medical bill and leave. PW-3 complainant hasadmitted that he had never gone to the office between 07.04.1997till date of trap and on the day of verification, he directly wentinto the cabin of accused No.1 Dr. Kakade. PW-3 alsocategorically admitted that accused No.2 Ambhore told him thathe had no concern with that money and not to pay the same tohim and pay it to accused No.1 Dr. Kakade. It is specificallyadmitted by PW-3 that accused No.2 Ambhore was not preparedto take money and PW-3 had complained against accused No.1Dr. Kakade only.10.Learned Senior Advocate Shri Deshmukh has takenme through evidence of all witnesses to point out discrepancies.He pointed out evidence of PW-4 Janardhan Sonawane, who isshadow panch for verification and he candidly stated thataccused No.2 Ambhore did not demand money and told thecomplainant to meet accused No.1 Dr. Kakade for work. PW-5Nilkant Dake, who is shadow panch for trap, stated in hisevidence that the complainant met him on 15.04.1997 for the *12* apeal 225a261o04first time and he was not interrogated by the police in hispresence. PW-5 admitted that no instructions regarding accusedNo.2 Ambhore were issued, nor his name was referred in theoffice of Anti Corruption Bureau and it was only decided to meetaccused No.1 Dr. Kakade. Learned Senior Advocate ShriDeshmukh, therefore, submitted that trap was decided to be ledonly on Dr.Kakade and accused No.2 was not at all in picture.Shri Deshmukh has also invited my attention towards evidenceof PW-13 Tandale, Investigating Officer, who admitted in hisevidence that during the course of investigation, he was aware ofthe fact that accused No.2 Ambhore was not authorized to grantmedical bill. He had never asked the complainant to talk withaccused No.2 Ambhore. Learned Senior Advocate ShriDeshmukh, therefore, submitted that there is no evidence at allagainst accused No.2 as regards demand. He submitted that mererecovery from accused No.2 is not sufficient to bring guilt homeand, therefore, accused No.2 cannot be held liable for convictionat any costs. He, therefore, prayed for acquittal of accused No.2.11.In support of his above submissions, learned SeniorAdvocate Shri Deshmukh has relied upon following judgments:- *13* apeal 225a261o04(a)Neeraj Dutta vs. State (Government of NCT ofDelhi), (2023) 4 SCC 731.(b)P. Satyanarayana Murthy vs. District Inspector ofPolice, State of Andhra Pradesh and another, (2015) 10 SCC 152.12.Per contra, learned APP appearing for the State/prosecution has strongly opposed the prayer of the accused. Theevidence on record clearly proves beyond all doubts that theaccused are guilty and they have been rightly convicted bylearned Special Judge. Demand as well as acceptance is provedand there is corroboration of evidence to that effect. He,therefore, prayed for dismissal of appeals.13.After hearing the submissions of learned advocates,I have gone through evidence on record minutely. The points thatarise for determination are: (i) Whether, the sanction accorded forprosecution of the appellants is valid in law? And (ii) Whether,the prosecution has proved the demand and acceptance of illegalgratification beyond reasonable doubt?14.As far far as sanction granted by PW-1 Kamlakar