1 cr.apln.3015.09.odt mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3015 OF 2009 The State of Maharashtra ...Applicant (through Anti-Corruption Bureau, Pune) (Orig. Complainant) Vs. Popat Ramchandra Kumbhar ...Respondent( Orig. Accused) Mr. S.A. Shaikh, A.P.P for the Applicant/State Mr. P.M. Havnur for Respondent CORAM: SMT. ROSHAN DALVI, J. DATED : 28TH APRIL 2011 P.C. 1. The Applicant State has challenged the order of acquittal of the Respondent of an offence under the Prevention of Corruption Act, 1988 under the judgment and order dated 16th March 2009 of the learned Special Judge, Baramati District, Pune in Special Case No.25/2007. 2. The judgment has essentially considered that the sanction to prosecute the Respondent has not been correctly granted. The learned Judge has observed that the Sanctioning authority was not the CEO, and therefore, not the appointing and dismissing authority of the Respondent as even on the date of his evidence he was only a Project Officer, which is a post lower in grade than the CEO. Evidence of the Sanctioning Authority P.W. 4 shows that in 2007 he was working as Incharge CEO of the Z.P., Pune. At that time the accused was working as Senior Clerk in the Panchayat 2 cr.apln.3015.09.odt Samiti at Indapur. CEO was the appointing and removing authority of Class III servants such as the Respondent. He claims that on 6th November 2007 when he sanctioned the prosecution he was Incharge CEO. That charge was held by him in that short period when the prosecution was sanctioned and that CEO was on leave, thereafter he was no longer the Incharge CEO. Consequently, on the date of his examination-in-chief in Court he was only a Project Officer. 3. In the cross examination, he was asked whether he had brought the order under which he held charge as CEO and he had answered that he had not brought the order. However, he was not called upon to produce the order appointing him CEO. Consequently, that order did not come to be produced and is not a part of the record. 4. It is sought to be argued that P.W.4 is, therefore, not the correct sanctioning authority. 5. The Court has to determine whether or not P.W.4 was indeed the Sanctioning Authority only upon seeing documentary evidence of the appointment. No appointment of the Government Officer can be orally stated. No appointment of the Government Officer can be brushed aside unless seen from the documentary evidence. That is what the learned Judge has failed to do. If the learned Judge desired to proceed to conclude that the sanctioning authority had no authority to sanction prosecution it is incumbent upon him to satisfy himself about the authority or lack of authority. That could be done only by calling upon the witness to produce the order appointing him Incharge CEO that he claimed to be. 3 cr.apln.3015.09.odt 6. This Court had directed to produce the documentary record. That has been produced. The original order appointing P.W.4 as the Incharge CEO is dated 3rd November 2007. This is consequent upon the certificate of transfer of charge, certified true copy of which has been produced. These documents show that the original CEO one Mr. S.K. Bankar gave charge as he proceeded on medical leave on 26th October 2007 to P.W.4. P.W. 4 took charge on that date. He assumed that charge from that date as a Relieving Officer. The order in that behalf came to be passed on 3rd November 2007. From that date until he returned that charge to the CEO who had proceeded on leave, he continued to be holding that charge. Whilst he was Incharge CEO he had the powers as well as responsibilities of the CEO to discharge. One of such powers and responsibilities is sanctioning prosecution. As such CEO Incharge he would be the appointing and sanctioning authority. 7. In such capacity he has sanctioned prosecution on 6th November 2007. Consequently, the judgment of the learned Judge acquitting the accused on the ground that the Sanctioning Authority lacks the authority to sanction is seen to be incorrect and is seen to be incorrectly arrived at without calling for ascertaining, verifying and satisfying himself about the original order, which the learned Judge could have done under his powers of putting any questions to the witness or calling for further documents from any witness. 8. Consequently, the Judgment dated 16th March 2009 requires reconsideration. The order shown to this Court is not yet on record. It would have to be brought on record and reconsidered by the trial Court. 4 cr.apln.3015.09.odt 9. Counsel on behalf of the Respondent states that he does not agree that the case itself can be remanded to the Special Court, Baramati, Pune for further evidence on this aspect at present. Hence leave to appeal is granted. 10.Appeal to be kept on board for admission on 15th June 2011. Call for R & P. 11.In view of the short question of law involved as shown above and since both the parties are represented, the Appeal shall be disposed of at the stage of admission itself. 12.The xerox copy of the order of appointment of P.W.4 dated 3rd November 2007 as also the certificate of transfer of charge are kept on record and the original documents are returned to the learned Public Prosecutor. (SMT. ROSHAN DALVI, J.)