bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 1888 OF 2008 PETITION NO. 1888 OF 2008 PETITION NO. 1888 OF 2008 Ramesh Lingappa Kore ... Petitioner v/s The State of Maharashtra ... Respondent Mr.Vijay Killedar i/by Mr.Nitin Jamdar for the petitioner. Mr.Y.M.Nakhawa, A.P.P. for the respondent State. CORAM: CORAM: CORAM: A.V. POTDAR, J. A.V. POTDAR, J. A.V. POTDAR, J. DATED: DATED: DATED: 10TH FEBRUARY, 2009 10TH FEBRUARY, 2009 10TH FEBRUARY, 2009 P.C. P.C. P.C.: 1. By the present writ petition under Article 227 of the Constitution of India, the petitioner who was working as a Circle Officer, Taluka Malshiras, Dist. Solapur, has prayed that the order passed below Exh.4 in Special Case No.8 of 2007 be quashed and set aside and to allow the application filed by him at Exh.4 in the same case pending on the file of the Special Judge (Prevention of Corruption), Malshiras, Dist. Solapur, and discharge him from the said special case. 2. Heard advocate for both parties. 3. The learned A.P.P. appearing for the State, during 2 the course of the argument has taken me through the entire record and proceedings annexed alongwith the petition. The order under challenge is based on the grounds mentioned in paragraphs (i), (ii), (xi) and (xiv). During the course of the argument the learned counsel for the petitioner drawn my attention to Exh.1 to the complaint dated 9.8.2003 lodged by Dada Balu Rupanvar against the petitioner as well as the Tahsildar Shri Magdum. During the trap arranged, the petitioner - Circle Officer was arrested while accepting the sum of Rs.1000/-. After completion of the investigation, a proposal was sent to the Additional Secretary of Revenue and Forest Department against Tahsildar Shri Magdum and Circle Officer - the present petitioner Shri Kore. Vide letter dated 11.9.2006 to accord the sanction for prosecution of which copy is annexed at Exh.C, the Additional Secretary of the Revenue and Forest Department refused to accord a sanction for prosecution against Tahsildar Shri Magdum and opined that the Collector, Solapur, is capable to accord the sanction for prosecution against the present petitioner. Vide letter dated 13.2.2007, a representation was sent by the present petitioner to the Collector, Solapur, praying not to accord the sanction for prosecution against him. The said representation was rejected and sanction was accorded vide ltter dated 23.8.2007 by the Collector, 3 Solapur, to prosecute the petitioner under Sections 7, 13, 1(d) read with 13(2) of the Anti Corruption Act. Accordingly, chargesheet was filed against the present petitioner. Thereafter a case was registered as Special Case No.8 of 2007. An application was filed under Section 227 of the Code of Criminal Procedure for discharge vide Exh.4 by the present petitioner before the learned Special Judge. For the grounds stated in paragraph 7(A) to 7(G) of the application dated 8.1.2008, the application came to be rejected by order dated 1.8.2008. By the present writ petition these orders are under challenge. 4. During the course of the argument, the learned advocate appearing for the petitioner drawn my attention to the Government Notification-cum-Government Resolution dated 3.4.2000 of which a copy is annexed at Exh.B wherein my attention is drawn towards internal page No.3 clause 4(d)(i) which speaks that while proposal to accord the sanction follows, offence allegedly committed by the public servant under the Anti Corruption Act against the superior as well as subordinate officer wherein if the sanction for prosecution is refused for the prosecution against the superior officer, in such cases, no action be initiated against the subordinate officer. 4 5. So far as this Government Resolution-cum-Government Notification is concerned, it is not in dispute by the State Government. 6. Then the only question for consideration is, whether the alleged act at the hands of the petitioner is at his own as observed by the learned Special Judge in his order vide paragraphs 3 and 6 or whether the act committed by the present petitioner is for his superior officer Tahsildar. During the course of the argument the learned advocate for the petitioner as well as the respondent both have taken me through the complaint dated 9.8.2003. A careful perusal of this complaint vide Exh.A page 13 of the annexure, initially the bribe of Rs.10,000/- was demanded by Tahsildar to grant sanction to lay down the pipeline in Gut No.404 of Village Kurbav, Tal. Malshiras, Dist. Solapur. On negotiations this amount was reduced to Rs.5000/-. Directions/instructions were given by Tahsildar Shri Magdum that this amount to be paid to the present petitioner from whom he will collect that amount. However, the contents on internal page No.2 of the complaint, show that from time to time the complainant paid Rs.4000/- to the petitioner and assured that he will pay the balance amount of Rs.1000/- after the final 5 order is passed. Un-numbered paragraph 2 of the same page shows that on 26.7.2003 Shri Shivaji Pandurang Bhagwat handed over copy of the order passed by the Tahsildar to the complainant. Accordingly the complainant started to lay down the pipeline in Gut No.410/2. At that time, one Jadhav started creating disturbance in laying down the pipeline. Accordingly he contacted the Tahsildar in his office wherein Tahsildar asked the complainant why he has not paid the balance amount to the Circle Officer. He asked him to pay that amount to the petitioner and later on he will look into the matter. Accordingly, he contacted the Circle Officer Shri Kore and informed that the Tahsildar has instructed him to pay the balance amount to him. Accordingly he arranged for the amount and simultaneously lodged the complaint with the Anti Corruption Bureau against the present petitioner as well as the Tahsildar. Accordingly, on the basis of this complaint, trap was laid wherein the present petitioner was caught red-handed while accepting the bribe amount. From the facts stated in the complaint it is clear that the amount accepted by the present petitioner was not accepted for his own but was accepted for the Tahsildar. In the premises he has abetted to the offence committed by the principle offender the Tahsildar. In the premises of the observations of the learned Special 6 Judge while passing the order on the discharge application below Exh.4, observed in paragraphs 3 and 6 of the impugned order under challenged that, "looking to the text of the first information report, it appears that present accused also demanded bribe from the complainant since that order of Tahsildar was not executed", appears to be incorrect. Thus the fact is clear that the inference drawn by the learned Special Judge that the petitioner demanded and accepted the bribe amount for his own is not a correct conclusion drawn. If it is so, then the present petitioner is entitled for the benefit of the Government Resolution dated 30.4.2000 wherein it is held that if the sanction for prosecution is refused against a superior officer, if involved alongwith the subordinate officer, then no action be initiated against the subordinate officer. 7. For the discussion of the facts and the Government Resolution as stated in above para (supra), the writ petition is required to be disposed of with the following order:- O R D E R R D E R R D E R (i) The writ petition is allowed in terms of prayer clause 6(b) of the writ petition and 7 stands disposed of. (ii) Parties to bear their own costs.