High Court

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD936 CRIMINAL APPLICATION NO.2299 OF 2020Dadasaheb Sukhdeo Aandhale,Age 34 yrs., Occ. Service,R/o Ganesh Nagar, Beed,Tq. & Dist. Beed. … Applicant… Versus …1The State of MaharashtraThrough Police Inspector,Anti Corruption Office, Beed,Tq. & Dist. Beed. 2Kailas Narayanrao Dhole,Age 40 yrs., Occ. Agri.,R/o Ganesh Nagar, Georai,Tq. Georai, Dist. Beed. … Respondents...Mr. R.G. Hange, Advocate for applicantMr. G.A. Kulkarni, APP for respondent No.1Mr. Y.K. Bobade, Advocate for respondent No.2...CORAM :SMT. VIBHA KANKANWADI &ROHIT W. JOSHI, JJ.DATE:27th NOVEMBER, 2024 2936_Cri.Appln_2299_2020ORDER :(PER : SMT. VIBHA KANKANWADI, J. )1Present application has been filed initially for quashing FirstInformation Report vide Crime No.266/2020 dated 09.06.2020 registeredwith Police Station, Georai, Tq. Georai, Dist. Beed and by way of amendmentfor quashing the proceedings in Special Case (ACB) No.215/2023 pendingbefore learned Special Judge/District Judge-6, Beed, for the offencepunishable under Section 7 of the Prevention of Corruption Act, 1988(hereinafter referred to as “P.C. Act”). 2Heard learned Advocate Mr. R.G. Hange for applicant, learnedAPP Mr. G.A. Kulkarni for respondent No.1 and learned Advocate Mr. Y.K.Bobade for respondent No.2. 3Learned Advocate for the applicant has mainly contended thatthe applicant is challenging the proceedings mainly on legal point. Presentapplicant was serving as Talathi of village Georai around 09.06.2020. It isalleged that the applicant had demanded amount for 7/12 extract and 8-Aextract. After the investigation was over, Investigating Officer had sent theapplication for permission to prosecute the applicant, that is, under Section19 of the P.C. Act. By communication dated 30.09.2021 Sub Divisional 3936_Cri.Appln_2299_2020Officer, Beed had rejected the permission by giving elaborate reasons. Itappears that thereafter also the communication was continued by the AntiCorruption Department. By letter dated 08.09.2022 the Investigating Officerhad asked the Sub Divisional Officer, as to whether he had taken permissionfrom Law and Judiciary Department before rejecting the permission and if ithas not been taken, then it should be so referred. The said communicationhas been replied by the Sub Divisional Officer, Beed on 21.10.2022, whereinit is stated that by giving a detailed reasons the permission has been rejected.It was then told that it is not mentioned in the Government Resolution dated12.02.2013 that any such permission from Law and Judiciary Department isnecessary. Thereafter, it appears that once again a communication was madeto the Sub Divisional Officer, Beed for according permission/sanction. Againby communication dated 27.09.2023 the Sub Divisional Officer, Beed hadconfirmed the decision earlier taken of not to grant permission to prosecutethe applicant and the same reasons were adopted. It appears that thereafteralso the communication continued and thereafter the Forensic ScienceLaboratory report regarding the voice samples those were sent was receivedstating that the voice in the recorded conversation on the day of incident andthe sample that was later on taken matches. Thereafter, once again thematter was sent to Sub Divisional Officer, Beed seeking permission toprosecute the applicant. However, this time by communication dated 4936_Cri.Appln_2299_202006.11.2023 the Sub Divisional Officer, Beed had stated that in view of theGovernment Resolution No.Talathi-2023/pra.kra.8/E-10 dated 18.09.2023the competent authority, to accord permission/sanction or to refuse it, hasbeen given to Collector and, therefore, the Investigating Officer should makecorrespondence to Collector, Beed. Thereafter, the communication has beenmade to the Collector and by order dated 07.12.2023 the permission hasbeen granted by Collector, Beed to prosecute the applicant. This action ofgranting permission amounts to review of the order passed by thepredecessor, which is not permissible, as there is no review power with thesanctioning authority to review its own decision, when once refused. 4The learned Advocate for the applicant has further submittedthat even if we consider the impugned conversation, then it can be seen thatthe applicant had refused to accept the amount. Rather he has stated thatthe amount is not required to be given. Prosecution has invoked only Section7 of the P.C. Act, that is, in respect of alleged demand. If we consider the saidconversation, there was no categorical statement asking for the bribe.Therefore, on the merits also there was no evidence against the applicant;yet, the Investigating Officer by hurriedly getting the permission reviewedhas filed the charge sheet. It would be, therefore, unjust to ask the applicantto face the trial. 5936_Cri.Appln_2299_20205Per contra, the learned APP as well as learned Advocate forrespondent No.2 have objected the application and submitted that now theconversation between the applicant and respondent No.2 has been recordedand the FSL report says that the voice is that of the applicant and respondentNo.2. There was a clear demand from the applicant for the amount which hewas not entitled to. There was no financial transaction between the applicantand respondent No.2 and, therefore, the said amount was nothing but thebribe. Though the permission was refused twice earlier; yet, in view ofadditional evidence in the form of report of the FSL the competent authorityhas accorded sanction. It has been accorded by Collector, Beed and whetherit is after the subjective satisfaction would be considered at the time of trial.Therefore, case is not made out to exercise the powers under Section 482 ofthe Code of Criminal Procedure. 6At the outset, we would like to consider the point of sanctionfirst. All the details are already narrated. On two occasions i.e. on30.09.2021 and on 27.09.2023 Sub Divisional Officer and Sub DivisionalMagistrate, Beed had refused to accord sanction to prosecute the applicant,who was serving as Talathi. Now, the prosecution and the authority at Beedare taking help of Government Resolution dated 18.09.2023. By the saidGovernment Resolution it appears that the Government had taken a decision 6936_Cri.Appln_2299_2020that for giving sanction for prosecuting a Talathi (clause ‘C’), Collector wouldbe the appointing authority. Certainly this Government Resolution wouldcome into play prospectively and cannot act retrospectively. Taking intoconsideration the position that prior to 18.09.2023 the powers were stated tobe with Sub Divisional Officer, the rejection of the sanction at two earlieroccasions will have to be considered as by the competent authority and thenmerely because by Government Resolution the powers are given to someother authority. The said authority cannot decide the point, whether toaccord sanction or not afresh. Further, even as per the prosecution case, asthe additional evidence in the form of FSL report was received, the freshattempt has been made to get the sanction. On this point we rely on thedecision in State of Himachal Predesh vs. Nishant Sareen [(2010) 14 SCC527], wherein it has been held that - “In this case, the Supreme Court has held that whenever there is arefusal to grant sanction, it would not be open to the competentauthority to review such an order on same materials because power ofreview conferred upon the authority is not unbridled and unrestrictedand putting of some fetters on it’s power of review is essential toaccord finality to such an exercise.”The said decision in Nishant Sareen (supra) was relied by thisCourt in Chandan Tulsiram Jibhakate vs. The State of Maharashtra and others[2021 ALL MR (Cri.) 1089]. We would also like to rely on the decision in 7936_Cri.Appln_2299_2020Dhanraj Atmaram Nandagawli vs. The State of Maharashtra and others inWrit Petition No.806 of 2023 decided on 04.07.2024, to which one of us wasparty [SMT. JUSTICE VIBHA KANKANWADI, J.], wherein similar view wastaken. 7Here, it is to be noted that the said conversation was alreadybefore the sanctioning authority, which was in the form of panchnama andalso some part in the statement. What has been got through FSL report wasthe confirmation about the voice and not the contents. Therefore, when thecontents were already there, which were considered by the sanctioningauthority as undisputed fact, in other words, the said conversation wasconsidered by the sanctioning authority as that of between the applicant andrespondent No.2 itself, still by giving a reasoned order the permission wasrefused. Then in that case the FSL report has not made any difference, itcannot be considered as an additional evidence. Nothing has been done bythe Investigating Officer after the sanction was refused second time. The saidsample of the voice and the recording was already sent for analysis, whenapplication was made for according sanction to the competent authority.Therefore, the sanction now accorded by Collector, Beed on 07.12.2023amounts to review of the order, when the said authority was not empoweredto. When the sanction itself is defective for illegal, then it would be unjust to 8936_Cri.Appln_2299_2020ask the applicant to face the trial. 8When the charge sheet is produced, we have gone through thesame including the transcript of the conversation. By no stretch ofimagination it shows that there was a clear demand of amount. Therefore,on the merits also it would be unjust to ask the applicant to face the trial.Case is made out for exercise of powers under Section 482 of the Code ofCriminal Procedure. Hence, following order. ORDERi)Criminal Application stands allowed. ii)First Information Report vide Crime No.266/2020 dated09.06.2020 registered with Police Station, Georai, Tq. Georai, Dist. Beed andthe proceedings in Special Case (ACB) No.215/2023 pending before learnedSpecial Judge/District Judge-6, Beed, for the offence punishable underSection 7 of the Prevention of Corruption Act, 1988 stand quashed and setaside as against applicant viz. Dadasaheb Sukhdeo Aandhale. ( ROHIT W. JOSHI, J. )( SMT. VIBHA KANKANWADI, J. )agd