JUDGMENT
B.V. Chavan, J.
1. The appellant/original accused, has challenged his conviction and sentence for offences under section 161 of the Indian Penal Code and under section 5(1)(d) read with section 5(2) of Prevention of Corruption Act, 1947 along with the sentence of R.I. for a year and to pay a fine of Rs. 500/- on both counts in default R.I. for three months.
2. The appellant was charged on the following facts.
Madhaorao Gadekar (P.W. 3 ) was looking after the property of his brothers inspite of the partition amongst themselves. They held the landed properties at village Birsingpur and Deulghat. Madhaorao (P.W. 3) being the President of a Co-operative Society as per the rules of the Society, he could not obtain any loan in his name. Therefore, he had to obtain loan from the society in the name of his brother Yadeorao. At the material time, he approached the Secretary of the society one Deokar for obtaining a fresh loan in the name of his brother-Yadeorao. Deokar told him to repay the arrears. Accordingly, Madhaorao (P.W. 3) paid the arrears and met Deokar on 6-5-1983. Deokar thereupon advised him to bring a fresh 7/12 extract from the Patwari. Consequently Madhaorao (P.W. 3) approached the appellant who was the Patwari working at Deulghat on 7-5-1983 and demanded 7/12 extract in respect of the field belonging to his brother Yadeo. The appellant asked him to pay the arrears of land revenue. Madhaorao (P.W. 3) paid the arrears of land revenue and obtained receipt thereof. When he demanded the 7/12 extract from the appellant, the appellant asked him to come after 2/3 days, as his officers were in the village on that day. So Madhaorao (P.W. 3) approached the appellant on 10-5-1983. On that day, the appellant gave him evasive replies. Therefore, Madhaorao (P.W. 3) again approached him on 16-5-1983 in the shop of one Digambar Mistri and demanded 7/12 extract. However, the appellant told him that as his office was situated at Buldhana, he would give the extract wanted by him at Buldhana. Madhaorao then went to the office of the appellant at Buldhana on 18-5-1983. According to the prosecution, appellant asked Madhaorao (P.W. 3) that he would not give 7/12 extract unless an amount of Rs. 50/- was paid to him and asked Madhaorao that he should meet him in the office at Buldhana at 2 P.M. on the same day where he would give the 7/12 extract on receiving Rs. 50/-. It is because of this alleged demand of the appellant that Madhaorao (P.W. 3) approached the Anti Corruption Bureau at Buldhana and gave a complaint Ex. 26 at 12.30 noon on the same day. On account of this complaint C.P.I. Pund (P.W. 6) arranged the trap and accordingly called two panchas including Rupkumar Wadnagare (P.W. 4). The necessary preparation was made by treating the currency notes of Rs. 50/- which were to be given by Madhaorao (P.W. 3) to the appellant on being demanded by him, with Phenolphthalein powder. With this preparation the raiding party along with the Panchas proceeded to the office of the appellant. Madhaorao (P.W. 3) was instructed to give a signal by waving the handkerchief after the amount was accepted by the appellant. Rupkumar (P.W. 4) was instructed to accompany the complainant Madhaorao and the other Panch was instructed to remain with the raiding party.
3. Thereafter Madhaorao (P.W. 3) went to the office of the appellant at Buldhana. When he went inside he found the appellant present along with one Jadhav (D.W. 1) and Kayande who is examined as prosecution witness No. 2. After some time, the accused started preparing 7/12 extract for Madhaorao (P.W. 3). First 7/12 extract in respect of field situated at Birsingpur was prepared by the appellant. Jadhao (D.W. 1) who was a suspended patwari prepared the 7/12 extract for the complainant in respect of the field situated at Deulghat. In the mean time Revenue Inspector Joshi came inside the office of the appellant. He asked the complainant orally to offer him tea. Accordingly, complainant accompanied by the appellant, Revenue Inspector Joshi, Kayande (P.W. 2) and Jadhav (D.W. 2) went to the hotel of one Dhandukiya. Rupkumar (P.W. 4)-the panch witness followed them in the hotel. Complainant Madhaorao sat on a bench by the side of the appellant, whereas Joshi and Kayanade sat on another bench. Panch witness Rupkumar (P.W. 4) sat by their side and they had coffee. It is alleged that while they were drinking coffee, the appellant whispered to the complainant not to give the amount in presence of the Revenue Inspector Shri Joshi. After drinking coffee, complainant went to the counter to give money to the hotel owner. In the mean time, Joshi and Kayande went out of the hotel. After that, it is alleged that the appellant approached complainant Madhaorao and asked him to give him the amount of Rs. 50/- for supplying the copy of 7/12 extract. At that time, Rupkumar (P.W. 4)-panch witness came to the counter to pay for his own coffee. The complainant thereafter took out the currency note from the pocket of his banian by his right hand, kept them in the left hand and by counting them has handed over to the accused/appellant who accepted them by his right hand. The appellant kept the currency notes in the left pocket of his shirt. After that Rupkumar (P.W. 4) gave an agreed signal. In the mean time, the appellant had gone to the betal shop which was by the side of the hotel. C.P.I. Pund (P.W. 6) along with the raiding party approached the appellant and asked the appellant whether he has accepted the amount of Rs. 50/- from the complainant. The appellant admitted that he had accepted the amount of Rs. 50/-. Thereupon the procedure regarding identification of the notes, whether they were the same which were given to the complainant and accepted by the appellant was gone through and necessary Panchanama was made. After the Panchanama C.P.I. Pund and others along with the appellant went to the office of the appellant at Deulghat and seized the register of 7/12 extract from the appellant. After that C.P.I. Pund (P.W. 6) lodged a complaint against the appellant. The investigation was then completed and after obtaining the necessary sanction, the appellant came to be charged for the offences mentioned above.
4. The appellant pleaded not guilty to the charge framed against him by the learned Additional Sessions Judge. His defence was that he has been falsely implicated on account of `the enmity with the complainant. He has admitted that he did accept the amount of Rs. 50/- from the complainant Madhaorao but according to him that amount was accepted as arrears of land revenue from the complainant. Evidence has been led on behalf of the defence to show that since January 1983, Commissioner of Amravati had issued orders to Patwari not to issue 7/12 extracts unless arrears of land revenues are paid by cultivators. He examined Abdul Majidkha (D.W. 3)-the Naib Tahsildar for the purpose of proving the order Ex. 62 issued by him to the same effect. Therefore, the sum and substance of the defence of the appellant before the learned Sessions Judge was that he was asking the complainant to clear the arrears of land revenue and then take the copy of 7/12 extract. At the material time, according to the defence, complainant Madhaorao had paid the arrears of land revenue in respect of the land situated at Birsingpur only but had failed to make the payment of arrears of land revenue in respect of the land situated at Deulghat. According to the accused, he had asked the complainant to clear the arrears and then make an application for copy. His case is that, he had told the complainant that he was in arrears to the extent of Rs. 45 to 50/- on 18-5-1983 and the complainant told him that he was willing to make that payment of the arrears of land revenue. It is in such circumstances, according to the accused, he accepted the amount. According to him, in the presence of Kayande (P.W. 2) and Jadhao (D.W. 1) complainant asked him to accept Rs. 50/- towards the arrears of land revenue in the hotel itself, but the appellant told him that he will have to make account of the arrears of land revenue. However, the complainant insisted upon taking the arrears of land revenue in the hotel itself, and therefore, he accepted the amount of Rs. 50/-.
5. At the trial point regarding the competence of the Sub-Divisional Officer to accord sanction under section 6(1)(d) of the Prevention of Corruption Act for the prosecution of the appellant was raised. However, the learned Judge held that the sanction granted was valid as the Sub-Divisional Officer was competent to appoint as well as remove the Patwari. On merits, the learned Judge considered the prosecution case and ultimately came to the conclusion that the circumstances on record exclude the probability that accused might have accepted the amount of land revenue from Madhaorao (P.W. 3). On the other hand, according to the learned Sessions Judge, it was proved beyond doubt that the appellant had accepted Rs. 50/- as gratification or as a motive or reward for issuing copy of 7/12 extract to the complainant. Therefore, he being a public servant was guilty of the offence under section 161 of the Indian Penal Code as well as under section 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 1947. Consistent with this finding, the learned Judge convicted the accused for the said offence and sentenced him to undergo rigorous imprisonment as well as imposed the fine as stated earlier.
6. Shri Sirpurkar, the learned Counsel appearing for the appellant has in the first instance challenged the validity of the sanction order Ex. 42 accorded by Rajaram Akre (P.W. 5), the then Sub-Divisional Officer, Buldhana. The challenge is on the ground that the accused was appointed as Patwari by the Collector, Buldhana at the material time and, therefore, the Sub-Divisional Officer, Buldhana who was an officer subordinate to the Collector was not competent to accord the sanction as required by section 6(1)(c) of the Prevention of Corruption Act, 1947. Shri Sirpurkar placed strong reliance on a decision of this Court in Bhaurao v. State of Maharashtra, 1980 Mh.L.J. 445, in which it has been held, where the Collector is the appointing authority of a Talathi, sanction to prosecute granted under section 6(1)(c) of the Prevention of Corruption Act, 1947 by the Sub-Divisional Officer is not valid. On the other hand, Shri Sinha, the learned Additional Public Prosecutor strongly relied upon the decision also of this Court in Vasant Maroti Waikar v. State of Maharashtra, 1991 Mh.L.J. 1318 : 1991(3) Bom.C.R. 121 and urged that what is required to be seen in case of a sanction is whether a superior authority of the competent rank has applied its mind to the facts of the case and that the prosecution has been ordered in a situation where such course of action was essential. Shri Sinha contended that at the time when the sanction was accorded, Sub-Divisional Officer was equally a competent authority who could appoint as well as dismiss a Patwari, and therefore, in view of the observation in Vasant Maroti Waikar’s case (supra) the sanction order in the present case passed by the Sub-Divisional Officer was valid and in accordance with law. At a later stage, Shri Sirpurkar perhaps after making a little more research further cited another decision of the same Judge of this Court in Vishwanath Mahadeo Karkhanis v. State of Maharashtra, , in which the learned Judge has observed that a sanction order for prosecution passed without application of mind or by authority below requisite rank was invalid and the prosecution in such a case is rendered void abinitio.
7. In the present case, although initially there was some doubt as to who was the appointing authority so far as the appellant/accused is concerned, in this appeal, the appellant was allowed to produce the copy of the appointment order that was issued to him at the time of his appointment. It shows that his appointment was made by the Collector, Buldhana. Therefore, factually the position that obtained is that the appellant/accused was appointed as a Patwari by the Collector, Buldhana whereas the sanction order for prosecuting the appellant has been passed by the Sub-Divisional Officer Shri Akre (P.W. 5).
8. Section 6(1)(c) of the Prevention of Corruption Act, 1947 provides that no Court shall take cognizance of an offence punishable under section 161 of the Indian Penal Code or sub-section (2) of section 5 of the Prevention of Corruption Act alleged to have been committed by a public servant except with the previous sanction in the case of any other person by the authority competent to remove him from his office. The requirement, therefore, is that the sanction must be awarded by an authority who is competent to remove from the office the public servant concerned. As stated earlier, the appellant was appointed by the Collector initially. However, the sanction is accorded by the Sub-Divisional Officer. The question is, whether it can be said that the Sub-Divisional Officer is the competent authority to remove the appellant from service within the meaning of section 6(1)(c) of the Prevention of Corruption Act, 1947. It is precisely in such circumstances in Bhaurao Marotrao Manekar’s case (supra) that Waikar, J., came to the conclusion, that:
“In this view of the matter, reading sections 7(4) and 13(4) of the Code and reading both these provisions, subject to Article 311(1) of the Constitution, what follows is that the Sub-Divisional Officer purporting to act under section 13(4) of the Code is empowered, no doubt, to appoint Talathis in the Sub-Division in his charge and by virtue of section 16 of the Bombay General Clauses Act, the power to suspend or dismiss Talathi so appointed may be ingrained and included in it, but all the same he being subordinate in rank to the Collector in charge of the district administration, he cannot in the teeth of the constitutional provision of Article 311(1) dismiss a Talathi appointed by the Collector, though working under him in his sub-division. The powers to appoint the Circle Inspectors or Talathis or Kotwals by the Collector in his district and by the Sub-Divisional Officer in relation to his sub-division may be co-extensive and concurrent, but the Sub-Divisional Officer being an authority subordinate to the Collector cannot remove from service the said officer appointed by the Collector without doing violence to the constitutional provisions of Article 311(1) of the Constitution of India. The argument advanced by Shri Garud, the learned Assistant Government Pleader, that though the appellant was appointed by the Collector, he could be dismissed by the Sub-Divisional Officer, under whom he was working cannot, therefore, be accepted. Thus the sanction accorded by the Sub-Divisional Officer in the instant case was bad and it invalidates the trial since the learned Special Judge could not at all take cognizance of the offence, sought to be pitchforked on such an illegal sanction.”
9. Shri Sinha, Additional Public Prosecutor, however, submitted that the concept of law regarding sanction has undergone material change as could be seen from the observations of M.F. Saldanha, J., in Vasant Maroti Waikar’s case (supra), and therefore, applying the said ratio to the facts of the present case, the test that a superior officer of competent rank should apply his mind is satisfied. I have closely perused the decision in Vasant Maroti Waikar’s case (supra), particularly paragraph 9 which deals with this aspect. It appears from the opening sentence of the said paragraph that at the hearing of the appeal, the learned Counsel appearing in that case for the appellant accused No. 1 had not dealt with the sanction order point at all. However, still the learned Judge proceeded to record his views. The later observation that, it is now well settled law that the primary object of the insistence on a valid sanction is in order to ensure that a superior authority of competent rank has applied its mind to the facts of the case and that a prosecution has been ordered in a situation where such a course of action was essential, appear to be of general nature and the learned Judge does not appear to lay down any specific legal proposition as such, because immediately thereafter the learned Judge on facts held that the Additional Secretary, Home Department, undoubtedly, was a competent authority to accord the sanction and Exhibit 22 in that case very clearly indicated that the Additional Secretary had applied his mind to the facts of the case while forwarding the case papers to the Director General and that he had directed the issuance of the sanction for the prosecution. On these facts, he further concluded that under those circumstances, the technical objection raised that the Director General of Police was not the competent authority becomes wholly irrelevant, because it is very clear that not one but two high ranking authorities had applied their mind to the facts of the case and accorded the sanction and furthermore that the Director General of Police had acted under the authority delegated to him. From these observations, it seems that the learned Judge was satisfied that a competent authority which was the Additional Secretary, Home Department in that case, had applied its mind and then delegated the authority to issue the sanction order to Director General of Police. In that view, therefore, it does not lay down any proposition as such that even though the authority is not competent to remove a public servant from his office, yet he is competent to accord sanction under section 6(1)(c) of the Prevention of Corruption Act if he happens to be a sufficiently senior officer. The other authority pointed out by Shri Sirpurkar is Vishwanath Mahadeo Karkhanis’s case (supra), which was decided a little earlier than Vasant Waikar’s case, the learned Judge M.F. Saldanha, J., came to the conclusion that on the facts before him, he had no hesitation in holding that both the sanction orders were bad for non-application of mind. The question whether the sanction order in that case was invalid on the ground that it was issued by an authority below the requisite rank, does not appear to have been specifically raised and decided. However, while generally considering the law regarding sanction and its object, towards the end of para 6, it is observed;
“Where the authority concerned abdicates its responsibility by acting mechanically or where the sanction is obtained from an authority below the requisite rank as laid down by law the pre-condition for the prosecution itself being wanting, the entire trial gets vitiated.”
Therefore, even as a matter of general proposition, the learned Judge accepted the position that a sanction accorded by an authority below the requisite rank was void ab initio and the trial gets vitiated. In fact from both these decisions of M.F. Saldanha, J., it does not appear that his attention was invited to the provisions of Article 311(1) of the Constitution which was considered by Waikar, J., in Bhaurao Maroti Mankar’s case (supra) and by relying on the provisions of Article 311(1) of the Constitution it was held that, the Sub-Divisional Officer being an authority subordinate to the Collector cannot remove from service an officer appointed by the Collector without doing violence to the constitutional provisions of Article 311(1) of the Constitution of India. Neither this decision in Bhaurao’s case was referred to in the two decisions of M.F. Saldanha, J., (supra), nor anything has been pointed out to me that this Court had taken a different view from that taken by M.R. Waikar, J. in Bhaurao Marotrao Manekar’s case. So far as legal position is concerned, I personally see no reason to take a different view from the one taken by M.R. Waikar, J., in Bhaurao Marotrao Manekar’s case, which holds the field even today. That being the legal position, it will have to be held that the sanction order Ex. 42 accorded by the Sub-Divisional Officer, in this case, was bad in law and the learned trial Judge had no jurisdiction to take cognizance of the case on the basis of such illegal sanction.
10. However, since the matter was fully argued even on merits, I propose to record my finding on the merits of the case as well.
11. While narrating the facts, it is amply made clear that there is no dispute that on 19-5-1983 Madhaorao Gadekar (P.W. 3) paid an amount of Rs. 50/- to the appellant accused who was the Patwari of the village concerned and he was immediately caught red-handed in the trap that was arranged on previous information by C.P.I. Pund (P.W. 6). It is also not disputed that the appellant accused immediately on the same day by his say Ex. 46 inter alia stated before the Investigating Officer that he has accepted the said amount of Rs. 50/- towards the land revenue of the lands situated at Deulghat that belongs to the brother of Madhaorao. Question is, whether on the evidence that is led it can be held that the prosecution has established beyond reasonable doubt that the acceptance of this sum of Rs. 50/- was by way of illegal gratification by the accused for the purpose of issuing the 7/12 extract to Madhaorao for the land situated at Deulghat.
12. Now Madhaorao (P.W. 3) and Rupkumar (P.W. 4) the panch witness who was present in the hotel where the currency notes were exchanged are positive on three aspects. Firstly, that the amount was paid in the hotel. Secondly, when the accused, Madhaorao (P.W. 3), Rupkumar (P.W. 4) and Joshi (P.W. 1) as well as Kayande (P.W. 2) were having their coffee, accused whispered to Madhaorao (P.W. 3) not to pay the amount of Rs. 50/- in the presence of Joshi (P.W. 1) who was the Revenue Inspector and a superior officer of the accused. Thirdly, the amount of land revenue due for the lands at Deulghat was admittedly Rs. 45/-, whereas the amount accepted by the accused was Rs. 50/-. Coupled with these circumstances, Shri Sinha, the learned Additional Public Prosecutor also pointed out that taking into consideration the fact that the amount was accepted in a place like hotel and not the office and admittedly the 7/12 extracts were kept ready on being prepared by Jadhao (D.W. 1), it was clear that the acceptance of amount of Rs. 50/- was not towards the land revenue due on account of the land at Deulghat but by way of illegal gratification to give the 7/12 extract.
13. On the other hand, Shri Sirpurkar, the learned Counsel for the appellant pointed out that Kayande (P.W. 2) was also admittedly present in the hotel and Jadhao (D.W. 1) who was also present have deposed that the amount was accepted by the accused towards the land revenue dues and not only that, but Kayande (P.W. 2) who is the prosecution witness has not said anything about the alleged whisper by the accused to Madhaorao (P.W. 3) not to pay the amount in the presence of Joshi. He contended that in view of the said evidence of Kayande (P.W. 2) who was also the prosecution witness, the fact that the amount of Rs. 50/- was accepted by the accused towards the land revenue itself becomes equally probable and deserves to be accepted, particularly on the admitted position that instructions were issued earlier not to issue 7/12 extract unless the arrears of land revenue were cleared.
14. After examining the relevant evidence of these witnesses, I find that the prosecution has established that the payment of Rs. 50/- by Madhaorao (P.W. 3) and its acceptance by the accused/appellant was not towards the land revenue, but it was by way of illegal gratification only to give the 7/12 extract which the accused on earlier two occasions delayed under some pretext or the other. Even assuming that Madhaorao (P.W. 3) may have some grievance against the accused on account of certain transaction of land for which the accused as Revenue Inspector had entered the name of the purchaser of a portion of land in which Madhaorao was interested, yet so far as Rupkumar (P.W. 4)-a public servant is concerned, there was absolutely nothing as to why he should falsely depose that in the hotel the accused demanded the amount and Madhaorao paid it and also deposed that before Joshi (P.W. 1) and Kayande (P.W. 2) left the hotel, the accused had asked Madhaorao not to pay the amount in the presence of Joshi (P.W. 1). In my view, these two circumstances which are clinching circumstances coupled with the another circumstance viz., the payment being made in a hotel, clearly indicate that the amount was accepted by the accused in pursuance of his earlier demand by way of illegal gratification for giving the 7/12 extract to Madhaorao (P.W. 3). Therefore, if it were open to consider the matter on the basis that the sanction to prosecute was valid, I would have had no hesitation in accepting the prosecution case that the appellant/accused had accepted the amount in pursuance of his demand by way of illegal gratification for issuing the 7/12 extract of the lands belonging to the brother of Madhaorao situated at Deulghat.
15. However, since I have come to the conclusion that the sanction to prosecute (Ex. 42) was invalid on the ground that the Sub Divisional Officer was not competent to accord the sanction, the whole trial was vitiated and consequently the conviction as well as sentence of the accused is liable to be set aside.
16. The result is, Appeal is allowed. Conviction and the sentence imposed on the appellant accused under section 161 of Indian Penal Code and section 5(1)(d) read with section 5(2) of Prevention of Corruption Act, 1947 are set aside and the appellant accused is ordered to be set at liberty. His bail bond shall stand cancelled and fine if paid be refunded.