High Court
Legal Reasoning
CriAppeal-847-2005-15- down principles as regards to grant of sanction and the same arereproduced as under: “(a)It is incumbent on the prosecution to prove that the validsanction has been granted by the sanctioning authorityafter being satisfied that a case for sanction has beenmade out.(b)The sanction order may expressly show that thesanctioning authority has perused the material placedbefore him and after consideration of the circumstances,has granted sanction for prosecution. (c)The prosecution may prove by adducing the evidence thatthe material was placed before the sanctioning authorityand his satisfaction was arrived at upon perusal of thematerial placed before him. (d)Grant of sanction is only on administrative function andthe sanctioning authority is required to prima facie reachthe satisfaction that relevant facts would constitute theoffence.(e)The adequacy of material placed before the sanctioningauthority cannot be gone into by the Court as it does notsit in appeal over the sanction order. CriAppeal-847-2005-16- (f)If the sanctioning authority has perused all the materialsplaced before him and some of them have not been provedthat would not vitiate the order of sanction.(g)The order of sanction is pre-requisite as it is intended toprovide a safeguard to public servant against frivolous andvexatious litigants, but simultaneously an order ofsanction should not be construed in a pedantic mannerand there should not be hyper technical approach to testits validity.”Similarly, law is dealt and reiterated on the point of validity ofsanction order in the case of State of Karnataka v. Ameerjan (2007)11 SCC 273 and CBI v. Ashok Kumar Aggarwal (2014) 14 SCC 295. Keeping above settled legal position in mind, though groundand objection is raised regarding validity of sanction, in view of abovediscussed material and contents of the sanction order, there is nohesitation to hold that sanction is accorded after due satisfaction andon application of mind by PW3 to the material placed before him.Hence, in the considered opinion of this court, there is no merit in theabove ground raised before this court. CriAppeal-847-2005-17- 16.As regards to submission and ground raised, that thetestimonies of complainant and shadow witness are not consistent,also has no force. This court while re-examining and re-appreciatingthe evidence, has dealt with the substantive evidence of complainantas well as the shadow witness PW2. They are consistent and lendingsupport to each other on the aspect of both, accused personsapproaching more than once for asserting the demand and inpresence of independent witness i.e. shadow pancha, there is demandas well as acceptance. There is no reason for the shadow pancha tofalsely depose against accused. The submission about registration ofcrimes against complainant for violation of traffic rules and thereforethere is false implication does not hold merit. Except makingallegation to that extent, there is nothing to show that complainantwas motivated to falsely implicate accused persons. Here, in fact hisevidence shows that on several occasions his vehicle was intercepted,demanded for use without paying charges and on one occasion hehad to get the vehicle released by intervention of his uncle. It isthereafter, complainant has alleged that threats were issued by sayingthat they would see how he plies the vehicle. As discussed above, bothPW1 and PW2 have categorically deposed regarding demand andacceptance. There is both, pre-trap as well as post-trap panchanama.Therefore, the above ground also holds no merit. CriAppeal-847-2005-18- 17.The last objection and ground raised in appeal by learnedcounsel is that prosecution has failed to examine the veryInvestigating Officer and therefore it is his submission that entireexercise of alleged investigation and prosecution has been watereddown by non-examination of the Investigating Officer. This court is not at all convinced with the above ground thatfailure to examine Investigating Officer itself would be fatal to theprosecution. The Hon’ble Apex Court in the case of Bahadur Naik v.State of Bihar (2000) 9 SCC 153 has categorically held that non-examination of Investigating Officer as a witness is of no consequencewhen it could not be shown as to what prejudice has been caused tothe appellant by such non-examination. Such proposition is also time and again upheld in numerouscases by Hon’ble Apex Court as well as various High Courts. Here,except raising above ground, what prejudice has been caused to theaccused persons by non-examination of the Investigating Officer hasnot been put forth. As stated above, star witnesses are complainantand shadow pancha who are party to the demand and acceptance.Their evidence has been discussed and accepted as trustworthy and CriAppeal-847-2005-19- hence worthy of credence. That apart, no material contradictions oromissions are brought in their testimonies while both, complainantand shadow pancha, were in witness box so as to get it provedthrough Investigating Officer. Resultantly, examination ofInvestigating Officer, more particularly in this case, was a mereformality and as such non-examination of IO Mr. Joshi cannot betermed as fatal for the prosecution and to further overshadow thereliable testimonies of complaint and shadow witness. 18.In the light of above discussion, none of the grounds raisedbefore this court are worthy of credence or are so sufficient so as torender the prosecution evidence on re-appreciation to be doubtful. Nocase is made out on merits in appeal and so this court proceeds topass following order:ORDERThe appeal is hereby dismissed. [ABHAY S. WAGHWASE, J.]vre
Arguments
CriAppeal-847-2005-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 847 OF 20051.Ramesh s/o Kisan ShekadeAge : 40 years, Occ : Agri.,R/o. Maliwada, Shevgaon,Dist. Ahmednagar. (Died)Through Legal Representative1-A) Smt. Kumudini w/o Ramesh ShekadeAge 51 years, Occ : Household,R/o Maliwada, Shevgaon,District Ahmednagar.2.Ramesh s/o. Radhu ShindeAge : 29 years, Occ : Pan-Tapari,R/o. Rasane Nagar, Ghodegaon Road,Shrigonda, District Ahmednagar.… AppellantsVersusThe State of Maharashtra… Respondent…..Mr. N. K. Kakade, Advocate for the Appellants.Mr. S. M. Ganachari, APP for Respondent-State...... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 12.01.2024Pronounced on: 23.01.2024JUDGMENT : 1.Feeling aggrieved by the judgment and order of convictiondated 25.11.2005 passed by learned Judge, Special Court,Ahmednagar in Special Case (A/C) No. 2 of 2001 tried for offence CriAppeal-847-2005-2- punishable under Sections 7, 13(2) r/w Section 13 (1)(d) and Section12 of the Prevention of Corruption Act, 1988, originalaccused/convicts have preferred instant appeal.2.In brief, prosecution was launched by Anti Corruption Bureau[ACB], Ahmednagar setting up a case that accused nos. 1 and 2 werepolice constables attached to Shrigonda Police Station. That,complainant, owner of a jeep, was repeatedly obstructed and demandof hapta of Rs.300/- was made. That, one time even his vehicle wasasked for their proposed journey to Shirdi. He had refused to lend hisvehicle as there were other passengers in his vehicle. Therefore, abovedemand was repeatedly made form him and so he finally approachedAnti Corruption Department and lodged complaint with Dy.S.P. whoarranged a trap and accordingly, on 10.07.2000, demand of Rs.300/-was made by accused from complainant as graft and it was dulyaccepted. Hence, above charges.3.On being chargesheeted, accused were tried by Special Courtvide Special Case (A/C) No. 2 of 2001 during which prosecutionexamined PW1 complainant, PW2 Aswale who acted as pancha andPW3 Spl. Inspector General of Police. Relying on their testimonies,learned trial Judge convicted both accused and the same is now CriAppeal-847-2005-3- assailed by them before this court on various grounds raised in appealmemo.4.Learned counsel for the appellants would submit thatapparently it is a false implication. According to him, there wereseveral crimes against complainant for carrying excess passengers andviolating traffic rules and therefore instant complaint is motivated. Hefurther pointed out that at the outset prosecution could not establishthat there was any demand and gratification. According to him,complainant and other witness are not consistent and corroboratingeach other on material count. Secondly, Investigating Officer whoallegedly conducted investigation and chargesheeted accused has notbeen examined by prosecution which in fact proves fatal forprosecution. Thirdly, according to him, there is violation of Section 19of the Prevention of Corruption Act, 1988. Fourthly, even superiorofficer who allegedly was party to the trap has not been examined. 5.He next submitted that there was desperate attempt ofinvolving appellants as three times there were attempts to trap themunder the garb of seeking hapta i.e. on 15.06.2000, 17.06.2000 and03.07.2000. Resultantly, learned counsel would submit thatprosecution had planned to falsely implicate appellants by setting up CriAppeal-847-2005-4- complainant and witnesses. He further pointed out that in fact therewas no demand as alleged, rather amount was forcefully thrust in thepocket. There is no application of mind by sanctioning authority andentire trial was therefore vitiated for want of proper sanction. Hepointed out that in support of defence of false implication, accusedhad adduced evidence of defence witness and had therebyprobabilized their defence but, according to learned counsel, learnedtrial Judge has not considered and appreciated the evidence ofprosecution as well as the evidence of defence and has reached to anerroneous conclusion. He seeks reliance on The State of Maharashtrav. Chand Beg s/o Sharfu Beg 2015 ALL MR (Cri) 3865 ; BhagwanMahadeo Sathe v. State and another 2011 ALL MR (Cri) 1221 ;Jawansingh Ramsingh Gaud v. State of Maharashtra 2016 Cri.L.J.2526 ; C.B.I. v. Ashok Kumar Aggarwal 2014 AIR SCW 472 ; SurajMal v. The State (Delhi Administration) AIR 1979 SC 1408 and Stateof Maharashtra v. Rajabhau Alias Govind Vinayak DeshpandeAIROnline 2020 Bom 3137.6.In answer to above, learned APP pointed out that accusedpersons were admittedly police constables but they were collectinghapta regularly. They had repeatedly demanded hapta fromcomplainant and on account of failure to meet their demand, they CriAppeal-847-2005-5- had also taken away keys of his vehicle and had attached his vehicleby levelling false allegations. He further pointed out that there wasclear demand not once but repeatedly and therefore complainant hadapproached ACB. On his complaint, investigation was carried out andin presence of pancha, there was demand as well as acceptance.Anthracene powder quoted currency was found in the pocket ofaccused. Their hands were also examined on which traces ofanthracite powder were detected. He further pointed out that in thepocket of one of the accused, there was a chit containing numbers ofvarious vehicles from whose owners they were collecting hapta.According to him, independent witness PW2 has corroborated andsupported the testimony of complainant. Therefore, presumption asrequired under law comes into play. Their testimonies havingremained unshaken, are worthy of credence and as such it is hissubmission that learned trial Judge has correctly recorded the guiltand therefore, according to him, there is no merit in the appeal andhence he seeks the same to be dismissed.7.On re-appreciation and re-examination of the evidence onrecord placed before the trial court, it is seen that charge was framedvide Exhibit 4 alleging commission of above offence. Papers andrecord show that in support of its case, prosecution had adduced CriAppeal-847-2005-6- evidence of PW1 complainant, PW2 pancha and PW3 Spl. InspectGeneral, who was the then Superintendent of Police and theappointing and removing authority.PROSECUTION EVIDENCE8.The sum and substance of evidence of complainant PW1 atExhibit 9 is that he was an educated and unemployed person andtherefore, under a scheme meant for educated unemployed persons,he had purchased a jeep and had further obtained permit for carryingpassengers. According to him, he was plying the vehicle betweenShrigonda to Kashti. His complaint is that, on 15.06.2000, while hewas soliciting passengers at S.T. stand Shrigonda, three policepersonnel whom he named in the complaint approached him onmotorcycle and demanded his vehicle to enable them to go to Shirdi.According to him, he refused as there were two to three passengersalready sitting in the jeep. He deposed that, he was threatened bythose police personnel, by saying that they would see how he pliesvehicle on the road. According to him, two days thereafter i.e. on 17.06.2000, whilehe was carrying passengers, he was intercepted by same three policepersonnel and they forced passengers to get down. Police personnelnamely Bhalsing took away the vehicle and thereafter, upon CriAppeal-847-2005-7- indulgence of his uncle, his vehicle was returned. He deposed that for15 days he could not ply his vehicle. Again on 03.07.2000 presentappellant Ramesh Shekade questioned him for bringing the vehicleback on road and threatened to take action and further asked him topay hapta on failure of which he was told that he would not beallowed to ply the vehicle. He claims that he assured to pay theamount later on as he did not have the amount. After two to threedays, Shekade once again approached him at Shrigonda-Kshti roadand demanded hapta. Therefore, finally on 07.07.2000, he came toAhmednagar, approached ACB office, met Mr. Joshi, Dy.S.P. andlodged complaint Exhibit 10.He further deposed that he was asked to come on 10.07.2000.When he went to ACB office, two Government panchas were alreadypresent and they were introduced to him. He was asked to bringRs.300/- and so he handed over amount to the Dy.S.P. i.e. threecurrency notes of Rs.100/- each. Its numbers were noted in thepanchanama. He was shown the importance and use of anthracenepowder by demonstration. Two panchas were present there and hewas instructed that pancha no.1 would accompany him and he wasfurther told that amount was to be paid on demand and on itsacceptance, signal to be given by pulling the sleeve of the shirt. CriAppeal-847-2005-8- He further deposed that at relevant day, at 4.30 p.m., accusedno.1 Shekade came with accused no.2 Shinde and they asked himabout hapta upon which he allegedly told them that he would bringthe amount from relatives. While at bazar tal, around 5.50 p.m., bothaccused came on motorcycle. That, he was questioned if amount wasbrought and he answered in affirmative and that he removed amountfrom his pocket and held the amount in front of accused Shekade.Accused Shinde accepted the amount, counted it and on beingquestioned by Shekade, he affirmed that there were Rs.300/- andfurther accused Shinde gave the amount to Shekade who kept it in hispocket. The complainant stated that thereafter he gave signal uponwhich police staff came there. All the while PW2 pancha Aswale waswith him. Accused were caught. He identified them in the court to bethe same persons. That, thereafter they were taken to guest house andhands and pockets of accused were examined under Ultra Violatelight. That thereafter, they came back to police station where hisstatement was recorded. 9.PW2 in his evidence at Exhibit 19 deposed that he was workingas a clerk. He and one Vajinkar were sent to ACB office to act aspanchas and accordingly on 10.07.2000 they went there. They causedsignature over complaint Exhibit 10. He deposed that complainant CriAppeal-847-2005-9- handed over trap amount and its denomination numbers to be notedand demonstration of anthracene powder was shown to them. Hestated that he was instructed to act as pancha and remain withcomplaint and thereafter detailed pre-trap panchanama was drawn.He identified it to be at Exhibit 21. He further deposed that they wentto village Shrigonda and parked their vehicle near bazar tal. Around4.15 p.m. both accused approached on motorcycle and questionedcomplainant if amount was brought. He deposed that complainanttold them that amount is with his relatives and he will bring it andhand over near bazar tal. Thereafter, both accused went. This witnessand complainant walked towards bazar tal. Once again both accusedreturned on motorcycle and came near complainant and againaccused no.1 questioned whether amount was brought. Thereaftercomplainant removed the amount. Accused no.1 told to pay theamount to accused no.2. He further deposed that accused no.1questioned accused no.2 as to how much was the amount andaccused no.2 informed the amount to be Rs.300/-. Thereafter,accused no.2 handed over the amount to accused no.1, who kept it inhis shirt pocket. Immediately raiding party came and caught accused.He further deposed that hands of both accused were checked whichrevealed anthracene powder. He stated that at the instance of panchano.2, amount was recovered from the pocket of accused no.1 and it CriAppeal-847-2005-10- was tallied with the numbers noted in pre-trap panchanama andthereafter detailed post-trap panchanama was drawn which heidentified to be at Exhibit 22. He also deposed about attaching a chitwhich was also signed by him i.e. from the pocket of accused no.2. 10.Both, complainant and pancha are subjected to extensive crossby learned defence counsel. On going through the cross of PW1complainant, initially questions were put regarding complainantregistered against him regarding illegal transportation of passengers.Questions pertaining to some incident between his drivers, i.e. Javakand Lokhande, and PC Bhalsing were put to this witness regardingsome occurrence taking place on 15.06.2000 and 17.06.2000. He hadadmitted that on 05.07.2000 case was filed against his driverLokhande for parking vehicle in no parking zone and he was fined. Heflatly denied that his main complaint was against PC Bhalsing andGajare. Then there are questions regarding engaging one Advocatenamely Borude for looking after court matters. Omission was broughtregarding not stating in the complaint the place where amount was tobe paid or time of its payment. He admitted that he had notspecifically stated in the complaint that accused were told thatamount was to be paid at bazar tal. Admission is brought that officerKazi was also present during raid. He admitted that there is a pan CriAppeal-847-2005-11- stall of accused no.2 near the gate of ST stand. Rest all are denialsexcept admission that accused was standing with motorcycle parkedand that being a bazar day, there was rush.Even while under cross at the hands of accused no.2, omissionis brought to the extent that around 4.30 p.m. constable Shekadecoming along with Shinde on motorcycle; Shekade questioning as towhat happened about hapta amount and this witness telling themthat relatives have gone to bazar and that he would collect and givethe amount; that around 5.30 p.m. Shekade coming along withShinde and Shekade asking him if the amount was brought and heremoving the amount and giving it to Shinde who accepted it;Shekade questioning Shinde how much was the amount and Shindeanswering it to be Rs.300/- and Shekade accepting and keeping theamount in his pocket. He denied in cross that as he felt that the trapmay not be successful if he pays the amount while accused was onvehicle and therefore he gave false information to the accused thatamount is with the relatives. 11.On meticulously going through the cross of PW2, which is alsoextensive and lengthy, it is revealed that there are questions like whodid the typing work of the panchanama. He admitted that complaint CriAppeal-847-2005-12- Exhibit 10 was not written in his presence. That while informationwas being passed to him, complainant did not tell him about hapta.He is questioned about the distance between bazar tal and S.T. standand whether it is a busy road. Witness is unable to state whetherthere is pan stall owned by accused in the vicinity of bus stand. Hetoo admitted that complainant falsely stated about amount to be lyingwith his relatives. In para 11 and 12 answers are extracted to theextent that during their stay at the guest house, they had dinner andtyping work being undertaken. However, witness answers that heread the panchanama and thereafter caused signature. He hasanswered that accused no.1 folded the amount with both hands.However he denied that only one hand of accused no.1 shown tracesof the powder. 12.PW3 is the sanctioning authority who was Spl. InspectorGeneral of Police. 13.On hearing submissions of learned counsel for applicant, it isemerging that fundamental grounds raised before this court are that,firstly, there is no proper sanction; secondly, there is no corroborationto the testimony of complainant and thirdly, very Investigating Officerhas not been examined by prosecution. CriAppeal-847-2005-13- ANALYSIS14.On re-appreciating and re-analyzing the evidence on record thiscourts proceeds to deal with the above grounds of challenge.15.First attack is of no proper sanction. It is pointed out that PW3Sanctioning Authority in cross has admitted that he has received draftsanction but he was not carrying the same and further admitted thatin the sanction order, amount so allegedly demanded wasinterpolated. In view of such criticism, evidence of PW3 is put to scrutinywhich is at Exhibit 27. It transpires that he was officiating as a specialInspector General of Police. He claims that he received papers fromACB, Mumbai in crime no. 3011/2000 and he went through thepapers, FIR, pre-trap and post-trap panchanamas. That, he alsoperused the say tendered by accused as well as Investigation Officerand on going through the papers he came to the conclusion that it is afit case to accord sanction and accordingly he passed sanction orderwhich he identified to be at Exhibit 28. On going through Exhibit 28, it is observed that after noting thefactual foundation, he has observed that on fully examining the CriAppeal-847-2005-14- papers of investigation in crime no. 3011/2000 under Section 7,13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 and intothe allegations mentioned therein, he was of the opinion that theaccused persons should be prosecuted in the interest of justice in thecourt of competent jurisdiction for the above offences. It is furthernoted that he being Superintendent of Police, Ahmednagar at thattime and being appointing authority and also authority competent toremove accused persons from the post, do hereby for the purpose ofand as required by section 19(1)(c) of the Prevention of CorruptionAct, 1988, for taking cognizance of the offences by the court ofcompetent jurisdiction, accord sanction to the prosecution of accusedpersons. On carefully going through the above sanction order, it isevident that there is proper scrutiny of papers, allegations, complaintand further application of mind to the nature of accusations and ondue satisfaction, sanction seems to have been accorded. There is noinfirmity in the said sanction order. It would be fruitful to refer to the judgment of the Hon’ble ApexCourt in the case of State of Maharashtra Through C.B.I. v. Mahesh G.Jain 2014 ALL SCR 177 wherein the Hon’ble Apex Court has laid