1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPLICATION NO.3644 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra (Through Dy.S.P. Mr. M.A. Mane, Anti-Corruption Bureau, Satara) ...Applicant (Orig. Complainant) Vs. Shri Gautam Bhagwan Kakade ...Respondent (Orig. Accused) Mrs.A.A. Mane. A.P.P for the State Mr. M.S. Mohite, Advocate for the Respondent CORAM: SMT.ROSHAN DALVI, J. DATED: 1ST DECEMBER, 2009 P.C. 1.The Appeal is filed by the State against the order of acquittal of the respondent who was charged under the Prevention of Corruption Act by the Special Judge, (CBI)Satara. A trap was laid. Mr.Mohite the learned Advocate for the accused has produced copy of the evidence led in the trial Court. Evidence of only 3 witnesses has been led  the complainant, the panch and the I.O. Both the Advocates have referred to the 2 evidence of P.W.1 and 2, the complainant and the panch respectively with regard to the case of trap. 2.Mr. Mohite on behalf of the respondent on merits has endeavoured to show that the purpose for which the trap is stated to have been laid upon the respondent was not even available at the time of the trap. He has sought to show that the twin reasons for the trap was the bribe demanded for issue of Record of Rights in the 7x12 extracts and the N.A permission required to be granted for converting agricultural land to non- agricultural land for the purpose of development. Exhibit-62 are the 7x12 extracts which are stated to have been issued. Exhibit-67 is shown to be the N.A. Permission. . 3.The prosecution case has been that the N.A permission was obtained and given only for residential use. The complainant wanted to use his land upon development and construction for commercial use of starting Naturopathy Center. Under those circumstances the N.A permission Exhibit-67 would require modifications. Hence, the case of trap made out by the prosecution cannot be stated to be without reason. 4.The prosecution case has also shown that the respondent met the complainant in the open space where the trap 3 was laid. 5.Mr. Mohite argued on behalf of the respondents on merits that that was for investment in certain National Saving Certificates of Rs.5000/-(which was the amount involved in the trap). This shows the admission of the respondent s presence at the trap. Hence the case would require reconsideration in Appeal on merits. 6.Sanction of the prosecuting authority was obtained at the time the charge-sheet was filed in this case. The sanctioning authority is shown to have been summoned by the Court to appear to give direct evidence with regard to the sanction given by him. That authority would be the appointing/dismissing authority of the respondent who was a Talathi in the Tahasildar s office. Such competent authority is a Senior Government servant. He is enjoined to give evidence with regard to the sanction that he has granted which is a part of the charge-sheet. Despite the issue of summons he has not appeared. The learned Special Judge is not shown to have caused his appearance by issue of warrants or by following any other process under law. That would be a fatal error. An error in the criminal prosecution of a procedural nature which becomes fatal cannot be allowed to perpetuate as a criminal case would necessarily be required to be tried on merits for an honourable 4 acquittal. It, therefore, appears that though the learned Judge has issued the summons, the I.O has not caused the appearance of the witness in the Court despite issue of summons. The learned P.P has not cared to lead evidence of the Sanctioning Authority upon the summons issued. The learned Judge has not followed further procedure to cause the attendance of the witnesses in his Court. The learned Judge has most cursorily referred to the fact that the Sanctioning Authority is not examined by the prosecution and that therefore, there is no evidence on record to show how the sanction is accorded by the Sanctioning Authority. The witness was summoned and required to attend Court to lead direct evidence of the sanction granted. The case itself is required to be taken through the process of law in accordance with law. 7.It is seen that though sanction is obtained it has not been proved. It will be required to be proved upon the evidence of the competent authority. Whether or not it is proved would have to be considered by the trial Court as per the evidence. That entire procedure cannot be allowed to be left undone. 8.The Investigating Officer has been examined as P.W.3. In paragraph 6 of his examination-in-chief he has merely stated about the sanction being accorded to 5 prosecute the accused on 23 rd November 1999 and the fact that the sanction order was submitted along with the charge-sheet. The fact that the sanction was granted on 23 rd November 1999 is not disputed in the cross examination. However, that sanction cannot be taken to be proved through the evidence of the Investigating Officer. It would be required to be proved only through the evidence of the author of the sanction. 9.Mr. Mohite states that the Appeal may be admitted, if the Court finds a case to admit Appeal. However, the fact remains that the question of sanction would come up in Appeal. It would be futile to allow the appeal to remain on board until its hearing when the question of sanction already obtained by the prosecution but not proved is ironed out. It is seen that upon a mere lapse of the prosecution or the learned Judge no part of the evidence can be left unrecorded resulting in futility of the trial. What procedure was followed by the learned Judge in having compliance of Section 20 of the P.C. Act shall have to be seen from the Roznama of the Court. 10.The Appeal is admitted. 11.The Registrar (Judicial) shall call for the R & P of 6 Special Case No.14/1999 from the District & Sessions Court, Satara. 12.The Appeal shall be kept on board for further directions on 16 th December 2009 at 3 p.m. (SMT. ROSHAN DALVI, J.)