IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.596 OF 1997 CRIMINAL APPEAL NO.596 OF 1997 CRIMINAL APPEAL NO.596 OF 1997 Shri Harisingh Bandusing Sable ) ) Adult, Occupation-Service, ) Commandant, S.R.P.F.Group No.7 ) Daund, Dist. Pune. )..Appellant (Org.Accused No.1) Versus The State of Maharashtra )..Respondents W I T H W I T H W I T H CRIMINAL APPEAL NO.587 OF 1997 CRIMINAL APPEAL NO.587 OF 1997 CRIMINAL APPEAL NO.587 OF 1997 Limbaraj Mohan More ) ) Age-Adult, Occupation: Retired ) Govt. Servant, R/at S.R.P.F. ) Group No.7, Daund, Dist. Pune. )..Appellant (Org.Accused No.2) Versus The State of Maharashtra )..Respondents. ---- Mrs.Rohini A.Wagn for the appellants. Mr.P.H.Hingorani, APP for the State. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 2nd May, 2006. Judgment :- Judgment :- Judgment :- 1. Both the aforesaid appeals have been filed impugning a judgment and order passed by a Special Judge, Pune on 18.9.1997 in Special case no.3/92. Since both the appeals arise out of a common : 2 : judgment and order the same are being disposed of by this common judgment and order. Criminal appeal no.596/97 has been filed by Harising Bandusing Sable who was the original accused no.1 in special case no.3/92. Criminal appeal no.587/97 was originally filed by Limbraj Mohan More who was original accused no.2 in special case no.3/92. The said Limbraj Mohan More expired during the pendency of his present appeal and appeal was carried forward by his heirs. By the impugned judgment and order accused no.1 Harisingh Bandusing Sable is convicted for the offences punishable under Sections 13(i) (a) & 14(i) (d) read with Section 13(2) of the Prevention of Corruption Act 1988 and sentenced to under-go RI for 3 years and to pay a fine of Rs.1000/- on each count, in default to suffer further RI for 1 month. He is also convicted for the commission of the offence under Section 12 of the Prevention of Corruption Act 1988 and sentenced to under-go RI for 2 years and to pay a fine of Rs.1000/- in default to suffer RI for one month. Under the impugned judgment and order accused no.2 Limbraj Mohan More was convicted for the offence punishable under Sections 13(1)(a) and 13(i) (d) of the Prevention of Corruption Act and sentenced to under-go RI for 3 years and to pay a fine of Rs.1000/- on each count, in default to under-go RI for one month on each count. He was further convicted under Section 7 of the Prevention of Corruption Act 1988 and sentenced : 3 : to under-go RI for 2 years and to pay a fine of Rs.1000/-, in default to under-go further RI for 1 month. The trial Court directed that the substantive sentences of both the accused would run concurrently. At the trial there was one other person by name Kanta Ganpat Kanade who was arraigned as accused no.3 in the trial. The trial Court acquitted accused no.3. Thus accused no.1 Harisingh Bandusing Sable and original accused no.2 Limbraj Mohan More were the 2 persons to file an appeal in this Court. 2. The brief facts of the prosecution case were as under :- (a) In the year 1990 accused no.1 Harising Sable (hereinafter referred to as ‘Sable’) was working as a Commandant of group no.VII of the Special Reserve Police which had its campus at the outskirts of Daund Taluka Daund, Dist. Pune. Accused no.2 Limbraj More (hereinafter referred to as ‘More’) was working as a PSI under Sable in the same group. (b) Between the periods 30.7.1990 and 1.8.1990 selection of new recruits to the special reserve police took place at Thane. For the purpose of this selection, the Government had formed a selection committee comprising of the commandant of group no.VII i.e. Mr.Sable, resident Deputy Collector, : 4 : Adivasi project officer, Social welfare officer and members of district sainik board. As per the order of the DIG the districts of Thane, Raigad and Ahmednagar were allotted to group VII of SRP and the selection committee was required to recruit candidates to group-VII only from these 3 districts. The name of the recruits who were to be considered had been forwarded by the employment exchange, social welfare office, Adivasi project officer and the district sainik board. In case any recruit had applied from the category of sportsman, his name was required to be forwarded by the office of the district sports officer. The candidates who were expected to be appointed had filled in their forms in their own hand writing. If they had applied from the sportsman category, they were required to furnish details in their application annexing sport certificates which was required to be varified. The minimum requirement for a candidate to apply from the sportsman category was that he was a sportsman who had participated at the district and state level. If the candidate was selected from the sports category, a special note to that effect was required to be taken in the recruitment register. The selection process included physical measurement and physical test. If the candidate did not pass these 2 tests, he was liable to be rejected. There was also a written test and an interview. As stated aforesaid, this entire process of recruitment : 5 : consumed a period of 3 days between 30.7.1990 and 1.8.1990 and resulted in the recruitment of 44 candidates of which, according to the prosecution, 14 were from the sports category. (c) That after the completion of the selection process on 10.8.1990, 42 new recruits out of the 44 who have been selected joined at the campus of group no.VII at Daund. On the same day i.e. 10.8.1990 a sheet clerk by name Bhavar put up appointment letters of all the new recruits before (PW 5) Prakash Gaikwad who was working as a senior clerk and accountant. (PW 5) Prakash Gaikwad initialed the order and forwarded the same to the adjutent officer Shri Survase. After Survase had signed the appointment orders the same were forwarded to commandant Sable but appointment orders were not issued to the new recruits as commandant Sable did not sign that orders. Not with standing this fact, part kit was issued to the new recruits on 13.8.1990 and the training of the recruits commenced. (d) On 27.8.1990 at about 10.30 A.M. 14 of the recruits who had been selected in the category of sportsman were called by accused More through a line policemen. They were rounded up and taken to the office of More. Accused More told these 14 new recruits that they had been called by the commandant Sable and saying so he took all of them to the : 6 : office of the Commandant. In his office accused Sable informed these 14 recruits that their sport certificates were bogus. He questioned them as to who had selected them and made a query as to how they would be able to play on the ground. He asked them to go back to their houses. That thereafter these 14 recruits came out of the office alongwith accused More. They asked accused no.2 as to why the commandant had spoken in this manner. Accused More assured them that he would look into the matter and thereafter returned back to the chamber of the commandant Sable. He came out of the chamber within 10 minutes and in front of the office of accused no.1 Sable, he informed the 14 recruits that it was the order of commandant Sable that each one of them was to bring Rs.10,000/- and they were to be granted leave for 2 days to enable them to collect the amount. Accused More informed the recruits that they were free to go to the chamber of commandant Sable to make enquiry. The complainant (PW 6) Suresh Patil and (PW 3) Rajendra Mengande were selected by the new recruits to make enquiry with the commandant Sable. Accused More asked them to request commandant Sable to show sympathy towards them and thereafter took both of them into the chamber of commandant Sable. On entering the chamber of commandant Sable the complainant Suresh Patil requested commandant Sable not to behave with them so rudely, to show sympathy towards them and to : 7 : find some way. They offered to pay whatever commandant Sable wanted. Commandant Sable asked the accused More to inform and to grant 2 days leave. The complainant suresh and (PW 3) Mengande then came out of the chamber of accused no.1 while accused no.2 More remained behind. After some time, More also came out of the chamber of commandant Sable and informed them that it was the order of the commandant Sable to bring Rs.10,000/- each and for that purpose 2 days leave has been granted to them. The new recruits informed accused More that it was difficult to arrange such a large amount. Accused More informed them that he had no personal interest in the matter but the same was the order of the commandant Sable. The new recruits returned to their barracks and at the barracks an inspector by name Kshirsagar asked these recruits to give the names of recruits who were proceeding on leave and accordingly names of such persons who were proceeding on leave were written down on a sheet (Exh.65). Thereafter these 14 recruits proceeded on leave. (e) On 22.8.1990 a 2nd appointment order in respect of the new recruits were put up before (PW 5) Prakash Gaikwad, by the establishment clerk Mr.BichuKale. Senior clerk (PW 5) enquired from the Bichukale as to what had happened regarding the 1st order and was informed that the first order was not : 8 : signed and that the commandant had asked for issuance of the fresh order. The Senior clerk Prakash Gaikwad then initialed the 2nd order and again forwarded the same to Mr.Survase. On 28.8.1990 Bichukale was informed by (PW 5) Prakash Gaikwad that he had received the appointment order with the signature of the Commandant Sable on stencil and office copy. Bichukale showed (PW 5) Prakash Gaikwad the office copy of that order and Prakash Gaikwad noticed that Sable had signed on that order and put a date of 10.8.1990. He also noticed that the date, which has been put up by him below his initial had been changed to 10.8.1990. (f) On 28.8.1990 till 31.8.1990, out of the 14 new recruits who had proceeded on leave some of them returned with some amounts and the money was paid either to accused no.2 More or to accused no.3 Kanade. The total amount collected and thus paid was Rs.78,000/-. (g) The Complainant (PW 6) Suresh Patil initially returned back without money but was sent back by accused no.2 More with a request that he should at least bring Rs.5000/-. The complainant then returned back to Thane and managed to collect Rs.5000/- from his brother but instead of paying the said amount he decided to approach ACB office at Pune. In the ACB office he met Dy.S.P. Kamble (PW : 9 : 23) and narrated the entire incident. His complaint was reduced to writing and after recording the complaint, Dy.S.P. Kamble prepared a trap. Dy.S.P. Kamble called 2 panchas by name Pandurang Damse and Salim Mustagi. The amount of Rs.5000/- brought by the complainant Suresh was taken by Dy.S.P.Kamble. Use of anthracene powder was demonstrated. Currency notes totalling Rs.5,000/- were kept on the right side pocket of the complainant with instructions not to touch these notes unless demanded by the accused. A detailed pre trap panchanama was prepared in the presence of both the panchas and thereafter at 5.30 P.M. on 1.9.1990 the complainant, panchas and police proceeded in a Govt. jeep to Daund. (h) After reaching the campus of group VII SRP at Daund, the complainant party alongwith panchas went walking towards the officers’ quarters of the campus. There complainant noticed that accused More and 2 other persons were taking meal on their dinner table. Accused More noticed their presence and asked them to remain outside. After completion of their meal accused no.1 came out of the quarter and asked them to accompany him to the room which was adjacent to the room in which they had been taking meals. The said room was only latched and was opened by accused More. Once accused More, the complainant and the panch Damse were inside the room, accused More asked the complainant as to by : 10 : which train he had arrived and was informed by the complainant that he had arrived by Madras train which had reached there by 8.00 P.M. After some more conversation accused More enquired from the complainant as to whether he had brought the amount. Complainant informed him that he had brought only half of the amount. Accused More asked him to show and to pay the same. Accused no.2 accepted the amount in his right hand and passed it into his left hand. He took one paper which was lying in the room and made a tick mark on the paper. Thereafter accused More passed on the currency notes from the left hand to right hand and started counting the same. While accused was counting the notes complainant came out of the room and gave signal as per the instructions. Thereafter immediately members of the raiding party reached there and complainant was asked to wait outside. (i) On entering the room (PW 23) Dy.S.P. showed his identity to the accused More and searched his person. Lights in the said room were put out and under ultra violet lamp no traces of anthracene powder were found on the persons of the raiding party. Then the hands of the accused were inspected and under the ultra violet lamp in darkness and light blue shining of anthracene powder was noticed on his right hand palm and finger. PW 23 Dy.S.P. seized those currency notes, ball pen, paper of : 11 : exercise book, diary and bed sheet for the purpose of investigation. One of the panchas collected currency notes and put them in an envelope after talling the numbers which envelope was sealed and signed by both the panchas. The bed sheet, diary, pen and paper on which anthracene powder was found were also sealed and put in separate envelopes. Those envelopes were also sealed and signed by the panchas. Dy.S.P.Kamble took search of the entire quarter and found cash of Rs.2000/- but the same was returned back to accused More. That thereafter a post trap panchanama was prepared at the same spot and was signed by the panchas. The complainant was also called into the room and his hands and clothes were inspected under ultra violet lamp. Anthracene powder was found on his right hand and right side pocket of his pant. A copy of the post trap panchanama (Exh.60) was also furnished to accused More. (j) That from the spot of the trap, raiding party went to the head office of the group and waited there at 15 minutes. They sealed the office under a separate panchanama (Exh.61). Thereafter police then conducted a house search of accused no.2. but nothing incriminating was found. The police party then returned to Pune. (k) On the next day morning i.e. 2.9.1999 the : 12 : police party again reached Daund in the morning. On 4.9.1990 at about 10.00 A.M. panchas were again called to the ACB office and after being shown the sealed envelopes in which anthracene powder and papers were kept, they verified under a panchanama (Exh.64) that the seal was intact. The detailed statement of the 2 panchas were recorded. Dy.S.P. Kamble then recorded the statement of inspector Jadhav, clerk Pawar and 15 witnesses and lodged a report on behalf of State at police station Daund (Exh.113). He sent that report alongwith covering letter (Exh.114) and alongwith the report he also dispatched the sealed articles such as currency notes, ball pen etc. On the same day he recorded statement of 13 recruits and the complainant. He also recorded statement of both the panchas on the same day. As 2.9.1990 was the sunday, he did not open the office of the commandant and the same was opened on 3.9.1990 by removing seal in the presence of Assistant commandant Survase. He seized the record and prepared a panchanama relating to the seizure of the record (Exh.63) and obtained the signature of the 2 panchas thereon. On 2.9.1990 he recorded the statement of Shivaji and 8 persons and he noticed involvement of accused no.3 Kanade. He impleaded him as accused no.3 in the investigation. On 3.9.1990 he went to the house of accused no.1 but could not take the house search as he was out of station, having been deputed to Pune for Ganpati : 13 : bandobast. (l) On 5.9.1990 Dy.S.P. took search of the house of commandant Sable but nothing incriminating was found. On 7.9.1990 he recorded the statement of P.A.Gaikwad (PW 5). He showed the paper at Exh.65 to the recruits and sent the diary (Exh.75) seized from the office of accused no.2 for identification of hand-writing. He recorded the statement of the relatives of the accused. He seized the certificate of the recruits from the office and verified their genuiness from the districts from where they were issued. Inspector Shivaji Kshirsagar produced a list of accused which was prepared when leave was granted to the recruits. Thereafter he proceeded to complete the investigation and on 31.12.1990 he sent a final report to his Superior. On 17.2.1992 he received the sanction for the prosecution of the accused and after receipt of such sanction, on 30.3.1993 he filed a charge-sheet against all the 3 accused. (m) After receipt of the charge-sheet, the trial Court framed the charges and proceeded with the trial. On behalf of the prosecution 24 witnesses were examined and voluminous documentary evidence was led. After the evidence was completed the statement of the accused came to be recorded. The accused did not lead any defence evidence. From the : 14 : 313 statement as also from the suggestions made to various witnesses, it is evident that the case of the accused was of total denial. It is also the defence that the accused had been deliberately blamed at the behest of certain officers and the police who are enmical to accused no.1. After taking into account the entire record, the trial Court convicted and sentenced the accused nos.1 & 2 and acquitted accused no.3. Being aggrieved by this judgment and order, the present two appeals have been filed. 3. After hearing both sides exhaustively and perusing the numerous documents, in my view the accused will have to be acquitted for the following reasons :- (a) In my view the sanction order has been issued without proper application of mind ; (b) That there are several serious lacunas and loopholes in the prosecution case of which benefit will have to be given to the accused. (c) The evidence falls short of proof of guilt of the accused being established beyond reasonable doubt as required by law. 4. On the first count which relates to the sanction : 15 : order being vitiated for non application of mind, one has only to peruse the evidence of the officer who has issued the sanction order. This officer is (PW 22) Shrinivas Jammu Nathan. At the relevant time when he was called upon to grant sanction he was holding the post of Additional Chief Secretary, Home Department, in the Govt. of Maharashtra. In his examination-in-chief he stated that he received the case papers of this case for sanction through the D.G. ACB Pune. He also received a report from the Director General of ACB for prosecution of the accused. Those papers were examined by the Home ministry in consultation with the department of Law & Judiciary and the same was put before the Government of Maharashtra for sanction purpose. That was approved on 2.1.1992. Thereafter formal sanction order was prepared and the same was again examined by the Law & Judiciary before he signed on it. Before signing the sanction order he perused all the papers, report and opinion of Law & judiciary and home department. After he read the papers he signed the sanction order. He proved his signature on the sanction order which was then exhibited at Exh.107. In the cross-examination of this witness however, his testimony given in relation to the application of his mind stood completely shattered. In his cross-examination he admitted that it was true that true facts must be presented before sanctioning authority before : 16 : granting sanction. He admitted that he did not remember as to whether he noticed any breach of procedure while appointing the candidates. He did not make any attempt to peruse the recruitment register. He did not remember as to whether any material was placed before him to show that these 14 recruits were selected from the category of sportsman. He has not taken any noting while according the sanction. He agreed that the statements recorded during the course of investigation were not to be signed by the witnesses. He candidly admitted that he did not peruse the statements of the 14 witnesses who have supposed to have paid the bribe. He also further admitted that he did not peruse any papers but only perused the report submitted by the Director of ACB Bombay and analysis made by the Home department. (emphasis provided). In this case all the 14 recruits were examined by the prosecution as star witnesses. Once the sanctioning officer admitted that he had not perused the statements of these 14 witnesses and further admitted that he did not peruse any papers except the papers and the analysis of the Home department, in my view, this by itself will deliver a fatal blow to the prosecution. It is well settled by a catena of judgments that the grant of sanction is very important for valid prosecution. It must be established to have been accorded after due application of mind. (See : Dhirajlal Dhirajlal Dhirajlal : 17 : Chatrabhuj Ratnagrahi Vs. State of Maharashtra Chatrabhuj Ratnagrahi Vs. State of Maharashtra Chatrabhuj Ratnagrahi Vs. State of Maharashtra reported in 1994(2) Bom.C.R. 610). reported in 1994(2) Bom.C.R. 610). reported in 1994(2) Bom.C.R. 610). It is also equally well settled that if the sanction is bad in law, the entire trial must be held to be void ab-initio (See : Anand s/o Gopal Gurve V/s. The Anand s/o Gopal Gurve V/s. The Anand s/o Gopal Gurve V/s. The State of Maharashtra reported in 1994(i) State of Maharashtra reported in 1994(i) State of Maharashtra reported in 1994(i) Bom.C.R.168). Bom.C.R.168). Bom.C.R.168). The Apex Court further laid down in this regard that for the grant of valid sanction- there must be independent application of mind to the facts of the case as also material and evidence collected during investigation by the authority competent to grant sanction is essential. (See : Mansukhlal Vithaldas Chauhan V/s. State of Gujarat Mansukhlal Vithaldas Chauhan V/s. State of Gujarat Mansukhlal Vithaldas Chauhan V/s. State of Gujarat reported in (1997) 7 Supreme Court Cases 622). reported in (1997) 7 Supreme Court Cases 622). reported in (1997) 7 Supreme Court Cases 622). In my view, once the sanctioning authority gave vital admissions of the nature referred to here-in-above, his sanction order stands vitiated for non application of mind. On this ground alone the entire prosecution must fail. 5. Be that as it may, I also intend to refer the merits of the case because I find that there are several lacunas of which the benefit must go to the accused. These may be enumurated as follows :- (i) It is the case of the prosecution that the 14 recruits from whom bribe was demanded were all appointed from the sports category. In this regard though the prosecution produced a file containing : 18 : 653 pages pertaining to the process leading to the recruitment of 44