criapl575.04 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 575/2004 The State of Maharashtra, through Public Prosecutor, High Court of Bombay, Bench at Aurangabad. ...Appellant. Versus Babasaheb Dadaba Kedar, Age : Major, Medical Officer, P.H.C. Shevgaon, District Ahmednagar, At present Civil Hospital, Ahmednagar. ....Respondent. Mr. S.G. Nandedkar, A.P.P. for Appellant/State. Mr. Joydeep Chatterji and Mr. Sandeep Deshmukh i/b Mr. H.U. Dhage, Advocate for respondent. CORAM : A.V. NIRGUDE, J. Date : 30th November, 2010. ORAL JUDGMENT:- 1 This appeal is filed by State against the judgment and order passed by the learned Special Judge, Ahmednagar dated 14/05/2004 in Special Case No. 9/1996 acquitting the respondent / accused for the offences punishable under Section 7(13)(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The learned judge held that the prosecution successfully proved the case of trap, the demand and acceptance of the bribe by the respondent. But he dismissed their case only because the prosecution witness No.3 the Under Secretary of Public Health Department was not only lacked competence to grant sanction for prosecuting the respondent but further held criapl575.04 2 that the witness did not even apply his mind while granting the sanction for the prosecution. The learned A.P.P. challenged both these findings. I will deal with his submission, while I will deal with these points one by one. 2. Point No.1 :- Whether the prosecution could prove that the prosecution witness No.3 the Under Secretary Public Health Department was competent authority to grant sanction for prosecution? 3. The prosecution witness No.3 in his deposition stated that in the year 1996 he was serving as under Secretary to the Government of Maharashtra in Public Health Department. He further stated that he was the appointing and removing authority of Class-I and Class-II officers working in Primary Health Center and the Public Health Department. Although he stated so, the prosecution documents Ex. 42 and 43 specifically mention that the competent authority to remove the respondent from his office was none else but the Secretary to the Government of Maharashtra, Public Health Department. Both these letters are brought on record by the prosecution. Ex. 42 is the letter issued by the Director of Public Health Services of the Maharashtra State to the Investigation Officer of this case. This letter apparently was sent to the Investigation officer pursuant to his query in respect of the information regarding competent authority who would issue sanction for prosecuting the respondent. The Directors specifically stated in his letter that the respondent could be removed from his office by the Secretary, Public Health Department. criapl575.04 3 Exh. 43 is similar letter on the same subject issued by the Civil Surgeon of Ahmednagar. He too mentioned that the competent authority, as far as the respondent was concerned, was the Secretary, Public Health Department. Despite this evidence, the prosecution witness No. 3 confidently stated in his deposition that he was the appointing and removing authority of Class-I and Class-II officers working in Primary Health Center. He has not clarified as to whether the Secretary, Public Health Department had specifically empowered him with such powers. He does not say that he is delegated with such powers. In order to overcome this obvious lapse in the prosecution case, the learned A.P.P. placed reliance on the provisions of the Maharashtra Government Rules of business and instructions. He placed reliance on Rule 12 and 13 which are quoted below. 12. All orders or instruments made or executed by on behalf of the Government of the State shall be expressed to be made by or by order of or executed in the name of the Governor. 13. Every order or instrument of the Government of the State shall be signed either by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or an Assistant Secretary or such other officer as may be specially empowered in that behalf and such signature shall be deemed to be proper authentication of such order or instrument.” 4. These rules apparently do not answer the difficulty faced by the prosecution. These rules do not say criapl575.04 4 that the power to remove the respondent or an employee like the respondent office co-existed with the Secretary, an additional secretary, a joint secretary, the Dy. Secretary and Under Secretary, and Assistant Secretary to the Government. If the Secretary in this case was the competent authority who would be able to remove the respondent from his office, it is he who would be competent to pass an appropriate order under Section 19 for grant of sanction for prosecuting an employee like the respondent. If he had delegated such power to his subordinate officers like the prosecution witness No.3, he was required to specifically empower him to act on his behalf and to use his power to pass such order. It is neither the case of the prosecution witness No.3 that the papers were sent to his department they were scrutinized by him. Thereafter, he recommanded grant of sanction for prosecution, he then sent the papers to the Secretary to the Government and he then specifically empowered him to put his signature on the formal order of granting of sanction etc. In absence of such a case and even otherwise from every angle, the prosecution fails to show that the prosecution witness No.3 was competent to remove the respondent from his office and thus was competent to pass the order. The learned judge of the trial Court observed almost the same thing, in her judgment while giving the impugned findings. 5. Point No.2 :- Whether the prosecution could prove that the prosecution witness No.3 had applied his mind before granting the sanction for prosecuting the criapl575.04 5 respondent? 6. The answer to this question is in negative. The learned judge of the trial Court rightly noticed the blatant discrepancy in the sanction order. The prosecution case alleged that it was Rangnath the complainant prosecution witness No. 1 who allegedly approached the respondent for issuance of a Medical certificate pertaining to the injuries sustained by Rangnath’s brother Kishan. Admittedly, Kishan was a School going boy then. The prosecution further alleged that the respondent demanded bribe of Rs. 300/- to Rangnath and then accepted the same at the time of the trap. The sanction order however, had at two places specifically mentioned that the respondent demanded and accepted the bribe from Kishan. During the cross examination, the prosecution witness No. 3 admitted that even though he went through the prosecution papers,he made no error in mentioning the name of the complainant as Kishan. He thus clearly indicated that he did not know the facts of the prosecution case at all. The learned A.P.P. however, asserted that the mentioning of name Kishan in the sanction order was a typographic mistake which inadvertently crept in the order. He suggested that probably the typist committed the error in the name and for that he said, the prosecution witness No. 3 can not be blamed. However, this argument is not acceptable because the prosecution witness No.3 was given sufficient opportunity to explain his position viz a viz the error in the name of the complainant. The prosecution witness No.3 criapl575.04 6 could have easily explained as to why the error that occurred in the order, he could have stated that he wanted to mention name of the complainant as Rangnath but it was probably the typist who had committed the error. Despite giving an opportunity to explain the error, during his cross examination, this witness made no attempt to give such explanation. It is obvious that he was not aware that there indeed occurred an error in the order which he had passed. As said above, this exposed the witness’s lack of knowledge on fact of this case. This also led the learned judge of the trial Court to hold that this witness had no occasion to read prosecution papers before signing the sanction order. Thus, the learned judge of the trial Court rightly held that the sanction in this case was granted without application of mind. The appeal should therefore, fail. ORDER The appeal stands dismissed. The bail bond of the accused if any, stands cancelled. (A.V. NIRGUDE, J) ts k/ok