1 [CASE NUMBER] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD [PRECEDENT] Dr. [ENTITY]. Petitioner. Versus [ENTITY] & Others. Respondents. Shri. [ENTITY], Advocate, appointed as amicus curiae. Shri. [ENTITY], Advocate, for respondent No.1 (absent). Shri. [ENTITY], Advocate, for respondent No.2. Shri. [ENTITY], Advocate, for respondent No.3. Shri. [ENTITY], Additional Public Prosecutor, for respondent No.5. With [CASE NUMBER] Dr. [ENTITY]. Petitioner. Versus [ENTITY] And Others. Respondents. Uploaded on - 06/05/2017 Downloaded on - 28/08/2017 00:38:27 2 [CASE NUMBER] Shri. [ENTITY], Advocate, appointed as amicus curiae. Shri. [ENTITY], Advocate, for respondent No.1. Shri. [ENTITY], Advocate, for respondent No.2. Shri. [ENTITY], Advocate, for respondent No.3. Coram: [ENTITY], J. Date: 25 April 2017 ORDER:
1) In the first proceeding the order made by the learned Judge of the Special Court Jalna constituted under the [ACT] in [CASE NUMBER] filed by the present petitioner is challenged and in [CASE NUMBER] the order made by the same Special Court in [CASE NUMBER] is challenged. Both the proceedings were filed as private complaints by the present petitioner for requesting the Court to take action for the offences punishable under [SECTION] of the [ACT] ("the Act") and [SECTION] and [SECTION] of the [ACT]. In both the matters, prayer was made to give direction to police to make investigation 3 [CASE NUMBER] under [SECTION] of the [ACT]. The learned Special Judge has dismissed the complaints by holding that the sanction under provision of [SECTION] of the Act was not there for making such order.
2) The complainant, party in person was allowed to argue the matters. In view of the intricate question of law involved in the matter, this Court had appointed learned counsel Shri. [ENTITY] to assist the Court as amicus curiae. It needs to be mentioned that he has worked hard and he has assisted the Court by showing the law developed till this date on the point involved. The learned counsels for the respondents, accused in the private complaints are also heard. Only one Advocate Shri. [ENTITY] did not turn up in [CASE NUMBER]. The learned Additional Public Prosecutor was also heard for the State.
3) In private [CASE NUMBER] the petitioner has made allegation against the Chief Officer of Municipal Council Partur, the Sanitary Inspector of the same 4 [CASE NUMBER] Municipal Council, one cashier of the same Municipal Council and one contractor, who is in business of scrap material. Allegation is made that huge quantity of scrap belonging to the Municipal Council was there which was weighing more than 10 tons is sold by the accused persons to accused No.4, the purchaser at meagre price. Allegation is made that for this sale, no procedure was followed and even no approval of any committee of general body of the Municipal Council was taken. Allegation is made that when amount of Rs.2.2 lakh was to be recovered, only amount of Rs.66,000/- was paid by the purchaser and remaining amount was never paid. It is the case of the complainant that he has collected necessary information under the [ACT] and he had made complaint to the District Collector. Allegation is made that the purchaser had even admitted that the amount was not paid but no action was taken and the Sanitary Inspector ultimately deposited some amount to see that no action is taken. According to the complainant, that conduct of the Sanitary Inspector of depositing some amount itself shows that they had committed offence of misappropriation. With these allegations the complaint 5 [CASE NUMBER] was filed for the offences punishable under the [ACT] like [SECTION], [SECTION]. [SECTION], [SECTION] of [ACT] were not mentioned in the complaint though the allegations make out the offence punishable under [SECTION] of the [ACT].
4) In private [CASE NUMBER] allegations were made against the Ex-President of Municipal Council, Partur, Clerk of the Electrical Division of the Municipal Council and one businessman of Aurangabad. Allegations were made that even when no electrical material was supplied by the businessman, amount of Rs.6.3 lakh was paid to him by cash as per the instructions of the accused No.1, the President of the Municipal Council. Allegation is made that the procedure for purchasing such material was not followed and in tender notice time of only 10 days was given when the time of 21 days was required to be given for tenders. Allegation is made that false entries were made in various registers to show that said material was actually supplied when the material was not supplied. In this matter also the complainant had made complaint to the District Collector but the Collector has not taken any 6 [CASE NUMBER] action. The businessman was uncle of the then President as per the contention of the complainant. He had prayed for taking action under the provisions of the [ACT] and also under [SECTION], [SECTION] etc of the [ACT]. Provisions of [SECTION] etc of the [ACT] were not mentioned though the allegations constitute that offence.
5) The submissions made and the aforesaid allegations show that the amounts involved were small but the fact remains that irregularity was found in both the matters. Submissions made show that departmental action was taken in one matter and increment of one accused is permanently stopped. As the concerned Department has taken some action this Court wanted to know as to why further step was not taken like giving report to police or granting sanction for prosecution. For that some orders were made by this Court. It appears that respondent No.2 [ENTITY] from [CASE NUMBER] was suspended and such statement was made before this Court on 26-6-2015. It was informed to the Court that the authority was thinking over to give 7 [CASE NUMBER] sanction but the authority was waiting for the decision of the departmental enquiry. This Court had expressed that the departmental enquiry is one thing and taking criminal action is other thing. Criminal action cannot be stopped for having decision of the departmental inquiry. In spite of some orders made by this Court of aforesaid nature, till today no criminal action is taken against the concerned by the Government. By order dated 5-4-2017 this Court had asked as to what is the intention of the Government but on that occasion also it was submitted that the office of the Collector and the superior officers are still thinking over the matter. In view of the aforesaid approach of the State Government and the Collector and as the matters are very old, this Court appointed Advocate Shri. [ENTITY] as amicus curiae to assist this Court and this Court expressed that this Court would be deciding both the matters.
6) Relevant contentions of the present petitions made in the complaints are already mentioned. It appears that there are allegations that the accused persons committed the offence of misappropriation of public 8 [CASE NUMBER] money, offence punishable under [SECTION] of the [ACT]. There is also allegation of creation of false record which may fall under [SECTION], [SECTION] of the [ACT]. Due to misconception, the complainant filed private complaint before the Special Court under the provisions of the [ACT]. In view of the decision of the Apex Court reported as (20[SECTION]) 10 SCC 705 ([ENTITY] v. M.K. Aiyappa) the learned Special Judge has held that even for making order under [SECTION] of the [ACT] sanction is necessary. As there is no sanction, both the complaints are dismissed. This case was involving the offences under the [ACT] and also the [ACT] and it can be said that due to involvement of the provisions of the [ACT] the observations were made by Apex Court that even for making order under [SECTION] of the [ACT], there needs to be sanction under [SECTION] of the [ACT].
7) The learned counsel appointed as amicus curiae took this Court through the observations made in 9 [CASE NUMBER] many other cases like :
(i) (2012) 3 SCC 64 (Subramanian Swamy v. Manmohan Singh); (ii) (1998) 1 SCC 226 (Vineetnarain v. Union of India);
(iii) (2006) 1 SCC 294 ([PRECEDENT]);
(iv) (2009) 8 SCC 617 (State of Madhya Pradeh v.
Sheetla Sahai);
(v) (2007) 1 SCC 1 ([PRECEDENT]);
(vi) (2015) [SECTION] SCC 87 (Inspector of Police v.
Battenapatla Venkata Ratnam);
(vii) (2015)12 SCC 231 (D.T. Virupakshappa v. C. Subash).
8) Reliance was placed by the present petitioner on a case reported as State of Bihar v. [ENTITY] Ram [2014 DGLS (Soft) 203] and it was submitted that at the stage of making order under [SECTION] of the [ACT] it is not necessary to insist for production of sanction order made under [SECTION] of the [ACT]. He submitted that in the case of [ENTITY] the Apex Court has laid down that 10 [CASE NUMBER] competency of the authority to give sanction or the question whether there was application of mind by the authority need not be decided at initial stage and such consideration is possible only when entire evidence has been given on such issue. There is no dispute over the proposition but in the present matter in view of the case of [ENTITY] (cited supra) different point is involved and there is no sanction at all in the present matter when the party-in-person is asking the Court to make order under [SECTION] of the [ACT]. He placed reliance on some cases decided by this Court. But there are cases of the Supreme Court on this point and so this Court is considering only the law laid down by the Supreme Court. Some cases are on the point of consideration of point of sanction at appellate stage but that point is also different.
9) The contentions made in the complaints if they are accepted as they are, it can be said that the complainant wants to prove that the public servants created false record and they misappropriated public money. Thus apparently the allegations constitute offences 11 [CASE NUMBER] punishable under [SECTION], [SECTION] and [SECTION] of the [ACT] and not the offences punishable under the provisions of the [ACT] mentioned in the complaint. It needs to be kept in mind that the provisions of the [ACT] prevail over the provisions of the [ACT] even for procedural purpose and so as observed by the Hon'ble Apex Court there needs to be compliance of provision of [SECTION] of the special enactment. In view of the observations made by the Apex Court in the case reported as [PRECEDENT] the act of misappropriation of public funds and fabrication of record cannot be called as act done in furtherance of or in discharge of public duty and in such cases Court cannot insist for sanction at any stage of the matter including for passing order under [SECTION] of the [ACT]. Thus the complainant/petitioner of the present matter under some misconception filed the complaints before the Special Court and asked the Special Court to take cognizance of the matter or to make order under [SECTION] of the [ACT] when no 12 [CASE NUMBER] sanction order was obtained under [SECTION] of the [ACT]. The order made by the learned Special Judge in view of the ratio of [ENTITY] case (cited supra) cannot be interfered with but it needs to be observed that the complainant can still approach Criminal Court like Judicial Magistrate, First Class either for taking cognizance of the matter or for making order under [SECTION] of the [ACT] for investigation on the allegations made by him in the complaint. The amendment made to [SECTION] of the [ACT] by which the proviso is added to give power to the Court to make any order even for investigation of the offences mentioned in [ACT] can be used provided that the procedure given in the said proviso is followed. The said proviso runs as under :
"Provided that, no Magistrate shall order an investigation under this section against a person who is or was a public servant as defined under any other law for the time being in force, in respect of the act done by such public servant while acting or purporting to act in the discharge of his official duties, except with the previous sanction under [SECTION] of the [ACT] or under any law for the time being in force:
[SECTION] [CASE NUMBER] Provided further that, the sanctioning authority shall take a decision within a period of ninety days from the date of the receipt of the proposal for sanction and in case the sanctioning authority fails to take the decision within the said stipulated period of ninety days, the sanction shall be deemed to have been accorded by the sanctioning authority."
10) In view of the aforesaid discussion, this Court holds that there are two options open to the present petitioner, original complainant as stated above. However it is not possible to interfere in the order made by the learned Judge of the Special Court. Thus both the proceedings need to be dismissed. This Court appreciates the efforts put in by learned counsel Shri. [ENTITY] for assisting this Court. This Court is directing to pay amount of Rs. 3000/- to the learned counsel through High Court Legal Services Sub Committee Aurangabad as he has incurred expenses for taking photo copies of the reported cases. In the result, both the proceedings are dismissed. The amount of Rs.3000/- is to be paid to the learned counsel through the High Court Legal Services Sub Committee Aurangabad.
([ENTITY], J.) rsl