Case: Bhaiyalal Vs. State of Maharashtra

DUA, J.1. In this appeal special leave was granted by this Court only on the question of the legality of the sanction for the appellants prosecution. It is, therefore, unnecessary to narrate the facts in detail and only broad features of the case essential for our present purpose may be stated.2. The appellant who had been appointed as a Patwari, by order, dated October 23, 1937, and had taken charge of that office on April 14, 1937, was confirmed as such on April 31, 1943. It is not disputed that he was so appointed by the Sub-Divisional Officer. He was tried and convicted on September 27, 1968, by the Special Judge, Bhandara (Shri V. V. Joshi), for an offence punishable under Section 161, I.P.C., and also under Section 5(2), read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 (Act No. 2 of 1947). The allegation against him was that he had accepted from the complainant a sum of Rs. 25/- as illegal gratification on January 17, 1967, for the purpose of effecting a mutation in the complainants name in respect of the land purchased by him. The appellant was sentenced to rigorous imprisonment for one year separately for both the offence, the sentence to run concurrently.3. An appeal again this conviction was preferred to the High Court of Bombay and it was on appeal that on his behalf the precise objection which is pressed in this Court was for the first time raised. It was contended that the appellant had been appointed as a Patwari by the Deputy Commissioner and, therefore, the sanction for this prosecution granted by the Sub-Divisional Officer was not proper. The sanction by the Sub-Divisional Officer, it may be pointed out, was produced at the trial and marked a Ex. 9. The High Court entertained the objection and went into the matter at some length and after looking at the relevant entire in the two registers described as the Kanungos Patwari Register came to the conclusion that the appellant had been initially appointed a Patwari by the Sub-Divisional Officer in 1937 and was later in 1943 confirmed a such only by the Sub-Divisional Officer. The appellant resigned in 1953 and his resignation was accepted. But he was again taken back to duty by the order of the Board of Revenue, dated March 2, 1953 and was thereafter ordered by the Deputy Commissioner to join duty as a Patwari. On this point the High Court expressed itself thus:"Admittedly the accused was first appointed in 1937 by the S.D.O. It does appear from the register that his resignation became the subject-matter of some appeal or a revision before the Revenue Board and the Revenue Board appeared to have again ordered for his reinstatement and therefore he was taken on Duty by an order of the D.O. That in itself certainly does not show that his was merely taken on duty. He was already appointed on 14-11-37. A Patwari is appointed only by the S.D.O. under Rule 1 and Rule 10 of the C.P. Land Revenue Manual; but we are concerned with the Maharashtra Land Revenue Code in so far as the facts of this case are concerned."The High Court then proceeded to consider some of the provisions of the Maharashtra Land Revenue Code and came to the conclusion that under Section 13(4) of that Code the Sub-Divisional Officer is the person clothed with the power of appointing authority. The court also relied on the evidence of Shri Kapale, Sub-Divisional Officer, who had deposed that he was the appointing authority and had, therefore, as such, given the sanction to the appellants prosecution. On this reasoning the High Court repelled the appellants objection to the validity of his prosecution for want of proper sanction.4. In this Court the appellants learned advocate drew our attention to the C.P. Land Revenue Act (Central Provinces Act 2 of 1917), which was in force at the time of the appellants appointment. Section 10 and 11, read with clause (i) of Schedule II of this Act, quite clearly show that Sub-Divisional Officers are empowered to appoint Patwaris. The counsel relied on Section 43 of this Act. This section which falls in Chapter V dealing with Maps, Records and Boundaries undoubtedly provides that the Deputy Commissioner shall, subject to rule made under Section 227 appoint a Patwari to each circle for the maintenance and correction of the annual papers and for such other suites as the State Government may prescribe. But we are unable to hold as contended on behalf of the appellant that this section deprives the Sub-Divisional Officers of the power to appoint Patwaris conferred on them by virtue of Sections 10 and 11, read with clause (i) of Schedule II. A faint attempt was no doubt made on behalf of the appellant to persuade us to hold that Section 43 empowers only the Deputy Commissioner to appoint Patwaris and the Sub-Divisional Officer has no such power. But the appellants counsel ultimately felt constrained to give up this attempt and to concede that in the case in hand the appellant has in fact been appointed as a Patwari by the Sub-Divisional Officer in 1937 and later confirmed by the same authority in 1943.5. Our attention was invited to the provisions of the Maharashtra Land Revenue Code (Maharashtra Act No. XLI of 1966), which repealed the M.P. Land Revenue Code, 1954, which stated in turn in turn to have repealed the C.P. Act 2 of 1917. According to Section 7(4) of the Code of 1966, the Collector may appoint to each District as many parsons as he thinks fit as Circle Officers and Circle Inspectors to be in charge of a circle and one or more Talathis for a Saze and one or more Katwals or other village servants for each village or a group of villages, as he may deem fit. Talathis, according to Section 337(2) of his code corresponds to the Patwaris, unless the context shows a different intention. Relying on this provision the appellants counsel strongly contended that it was only the Collector who could appoint and, therefore, remove, a Patwari with the result that the sanction by the Sub-Division Officer in the present case was not a valid sanction. This argument is based on an incomplete picture of the provisions of this Code. Section 13(4) empowers the Sub-Divisional Officer, subject to the provisions of Chapter XIII, to perform all the duties and functions and to exercise all the powers conferred upon a all the duties and functions and to exercise all the power conferred upon a Collector by this Code or by any law for the time being in force, in relation to the Sub-Division in his charge. The provisions of this Code, therefore, do not necessarily vest the power of appointment of Patwaris solely in the Deputy Commissioners. In the Case in hand the appellant did not care to place on the record the order of, what he calls, his fresh appointment. His sole argument was that it was for the prosecution to prove by cogent evidence the condition precedent of a valid prosecution by producing on the record of this case proper sanction in accordance with law. The State having failed to do so the appellants prosecution must be quashed, said the counsel. The onus, according to his contention, could not shift to the accused and it through out remained on the prosecution and it was open to the appellant even in the High Court to rise this point for the first time. We are unable to hold on this argument that there is no proper sanction for the appellants prosecution. The statutory provisions and the evidence on the record are clearly against the appellants submission.6. This Court at the time of granting special leave directed the appeal to be heard on the special leave paper book and also sent for the record of this case. We find from the record that in the Trial Court the appellant had on March 29, 1968, presented an application questioning the validity of the sanction for his prosecution by relying inter alia on Section 6(1) of the Prevention of Corruption Act according to which (so far as relevant in this case) no court can take cognizance of an offence punishable under Section 161, I.P.C. or under Section 5(2) of the Prevention of Corruption Act alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office. In that application the appellant did not plead that he had been re-employed in 1953 by virtue of an order of the Deputy Commissioner. His challenge to the sanction was based on the following general assertion :"The applicant is holding office of Patwari. The competent and appropriate authority to appoint or remove the Patwari from his office, is Collector of the District. The Collector has not applied his mind to the facts of this case in the matter of one hoof domain safeguards available onto public servants against frivolous or vexatious prosecution ...... The S.D.O., Sakoli, is not a competent authority to sanction prosecution of the applicant in the matter of offence of corruption and bribery .........."7. The Trial Court went into the matter at some length and after referring to the provisions of the M.P. Land Revenue Code, 1954, relied upon on behalf of the appellant, observed that under Section 16 of that Code an Assistant or Deputy Collector was placed in charge of one or more sub-divisional Officer could exercise the powers of a collector who was called a Sub-Divisional Officer could exercise the powers of a Collector under a notification issued by the State Government. The Courts attention seems in this connection to have been invited to the notification issued by the M.P. Government, dated October 7, 1955, under sub-section (2) of Section 18 of that Code whereby the Government was pleased to direct all Sub-Divisional Officers to exercise the powers of the Collector as specified in the Schedule in that Code. Among the powers so delegated to the Sub-Divisional Officer which could be exercised by the Collector under the Code was the power to appoint Patwaris in each circle for maintenance and collection of annual paper and for the purpose of other duties. On this reasoning the Trail Court came to the conclusion that the Sub-Divisional Officer, Sakoli, was empowered to give a valid sanction to prosecute the appellant and it was not necessary to secure the sanction from the Collector. It appears that this conclusion was not seriously contested before the High Court and on appeal in that Court a new point was raised, based on the submission that the appellant having resigned from the service, was re-appointed as a Patwari by the Deputy Commissioner, and that was a fresh appointment. It was in these circumstances that the two registers containing the history sheet of the appellants service (Kanungos Patwari Registers) were produced in the High Court on behalf of the State. The entries in those registers were construed by the High Court in the manner already noticed by us. The High Court also relied on evidence of Shri Kapale, there Sub-Divisional Officer, and on the basis of his testimony and the entries in the two registers the appellants contention of having been appointed afresh after the acceptance of his resignation was repelled. The appellants counsel invited our attention to the entries in the two registers and tried to persuade us to hold that these entries establish the appellants fresh appointment as a Patwari and that the High Court was wrong in holding that the appellant was merely taken back into the service to which he had been appointed by the Sub-Divisional Officer in 1937 and confirmed in 1943. The conclusion of the High Court, in our opinion, is based on the valuation of the entries in the register and it does not disclose any infirmity which should expose it to challenge on appeal under Article 136 of the Constitution. The appellants contention is difficult to accept.8. We have, however, also looked at the entries in the two registers and we are in agreement with the view taken by the High Court. We find that in the first register the appellant was given warnings during his probationary period and was finely confirmed with effect from April 13, 1943, vide orders of the Sub-Divisional Officer, dated May 30, 1943. In the Second register we find the following entry :"Bhayalal who had tendered his resignation and whose resignation was accepted has been taken on duty by the Board of Revenue, vide order dated 2-8-1953 and accordingly he was taken on duty, vide D.Cs order, dated 27-3-53. His period of absence is treated as not on duty, vide R.B. order. He took over in P.C. 14 on 3-4-1953."The appellants service book is also on the record and the entries in that book do not give any indication that the appellant was appointed as a Patwari afresh in 1953. On the contrary the entries in the service book are suggestive of continuous service right from the appellants original appointment. The conclusion of the High Court on the construction of the entries in the register in the light of the evidence on the record seems to us to be unexceptionable in the light of the evidence on the record seems to us to be unexceptionable and once this conclusion is accepted the appellants challenge to the sanction must fail whether the case be considered to be governed by the provisions of the C.P. Act 2 of 1917 or of the M.P. Land Revenue Code of 1954 or of the Maharashtra Act XLI of 1966 (Maharashtra Land Revenue Code, 1966).9. A half-hearted argument was raised against the production of the two registers in the High Court but that was a matter in the discretion of that Court which as a general rule is not open to attack in this Court. It is not shown that in the exercise of this discretion there was any violation of a provision of law or that it was otherwise exercise arbitrarily or in a perverse manner and has prejudiced the appellant.10. As a last resort it was urged that the sentence is excessive. We do not think this Court can appropriately go into the question of sentence in this case which prima facie does not seem to be excessive. The question of sentence is normally a matter in the discretion of the Trial Court. For a public servant to ask for and accept bribe for performing his official duties is a very serious matter and it would be improper to show undue leniency in cases of corruption by such public servants.

Decision:
0[ds]But we are unable to hold as contended on behalf of the appellant that this section deprives theOfficers of the power to appoint Patwaris conferred on them by virtue of Sections 10 and 11, read with clause (i) of Schedule II. Afaint attempt was no doubt made on behalf of the appellant to persuade us to hold that Section 43 empowers only the Deputy Commissioner to appoint Patwaris and ther has no such power. But thel ultimately felt constrained to give up this attempt and to concede that in the case in hand the appellant has in fact been appointed as a Patwari by ther in 1937 and later confirmed by the same authority inargument is based on an incomplete picture of the provisions of this Code. Section 13(4) empowers theOfficer, subject to the provisions of Chapter XIII, to perform all the duties and functions and to exercise all the powers conferred upon a all the duties and functions and to exercise all the power conferred upon a Collector by this Code or by any law for the time being in force, in relation to thein his charge. The provisions of this Code, therefore, do not necessarily vest the power of appointment of Patwaris solely in the Deputy Commissioners. Inthe Case in hand the appellant did not care to place on the record the order of, what he calls, his fresh appointment. His sole argument was that it was for the prosecution to prove by cogent evidence the condition precedent of a valid prosecution by producing on the record of this case proper sanction in accordance with law. The State having failed to do so then must be quashed, said thes, according to his contention, could not shift to the accused and it through out remained on the prosecution and it was open to the appellant even in the High Court to rise this point for the firsttime. We are unable to hold on this argument that there is no proper sanction for theprosecution. The statutory provisions and the evidence on the record are clearly against thesubmission.6. This Court at the time of granting special leave directed the appeal to be heard on the special leave paper book and also sent for the record of this case. We find from the record that in the Trial Court the appellant had on March 29, 1968, presented an application questioning the validity of the sanction for his prosecution by relying inter alia on Section 6(1) of the Prevention of Corruption Act according to which (so far as relevant in this case) no court can take cognizance of an offence punishable under Section 161, I.P.C. or under Section 5(2) of the Prevention of Corruption Act alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office. In that application the appellant did not plead that he had beenin 1953 by virtue of an order of the Deputy Commissioner.conclusion of the High Court, in our opinion, is based on the valuation of the entries in the register and it does not disclose any infirmity which should expose it to challenge on appeal under Article 136 of the Constitution. Thecontention is difficult to accept.8. We have, however, also looked at the entries in the two registers and we are in agreement with the view taken by the High Court. We find that in the first register the appellant was given warnings during his probationary period and was finely confirmed with effect from April 13, 1943, vide orders of theOfficer, dated May 30,s service book is also on the record and the entries in that book do not give any indication that the appellant was appointed as a Patwari afresh in 1953. On the contrary the entries in the service book are suggestive of continuous service right from theoriginal appointment. The conclusion of the High Court on the construction of the entries in the register in the light of the evidence on the record seems to us to be unexceptionable in the light of the evidence on the record seems to us to be unexceptionable and once this conclusion is accepted thechallenge to the sanction must fail whether the case be considered to be governed by the provisions of the C.P. Act 2 of 1917 or of the M.P. Land Revenue Code of 1954 or of the Maharashtra Act XLI of 1966 (Maharashtra Land Revenue Code,do not think this Court can appropriately go into the question of sentence in this case which prima facie does not seem to be excessive. The question of sentence is normally a matter in the discretion of the Trial Court. For a public servant to ask for and accept bribe for performing his official duties is a very serious matter and it would be improper to show undue leniency in cases of corruption by such public servants.