Criapl.226/1999 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 226 OF 1999 Suresh S/o Dasrao Bangale Age : 32 years, Occ : Talathi, R/o Nandanwan colony, Aurangabad ..APPELLANT -VERSUS- The State of Maharashtra ..RESPONDENT ......... Mr. N.S. Ghanekar, advocate for appellant. Mr. S.G. Nandedkar, A.P.P. for respondent. ........ (CORAM : A.V. NIRGUDE, J) DATE : 14th December, 2010. ORAL JUDGMENT : 1. The appeal is filed against the judgment and order passed by the learned Special Judge, Aurangabad in Special Case No. 3 of 1993, convicting the appellant for the offence under Section 7 of the Prevention of Corruption Act and sentencing him to suffer rigorous imprisonment for six months and to pay fine of Rs. 1000/- and also sentencing him to suffer rigorous imprisonment for one year and to pay fine of Rs. 1000/- for the offence under Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. The State of Maharashtra, alleging that the appellant demanded and accepted the sum of Rs. 600/- as bribe from the complainant, prosecuted the appellant. 2. The case of the prosecution depended on the depositions of five witnesses out of which, the depositions of prosecution witness nos.1, 2 and 4 are important. The prosecution witness no.1 stated that in September, 1992, he executed a conditional sale deed of his land to one Madhavrao. He learnt that Madhavrao was trying to Criapl.226/1999 2 get the land mutated in his name on the basis of conditional sale deed. On 14th October, 1992, the appellant who was working as Talathi in the village called him to his office and told him that mutation entry would be taken in favour of Madhavrao but offered him not to effect such entry if he was paid Rs. 600/- as bribe. He said, he reported this incident to the Anti Corruption Bureau on 15th October, 1992 and then the trap was arranged on 16th October, 1992. According to the arrangement of the trap, this witness and the shadow panch proceeded to village Bazar Sangavi for offering the bribe to the appellant. The witness stated that when he met the appellant, the appellant asked him whether the amount was brought by him in presence of shadow panch. He said, he answered in affirmative. He said, he thereafter took tented currency notes and handed over to the appellant. The shadow panch also supported this story with slight variation. He only changed the place where the bribe was offered and delivered. The shadow panch specifically stated that in his presence appellant asked the complainant as to whether he has brought Rs. 600/- as told by him. He further stated, that the appellant further threatened hat if he would not bring the amount he would make entry in the name of Madhavrao. He said that the complainant took tainted currency notes from his pocket and handed them over to the appellant. He said, thereafter the appellant counted the currency notes and put then in the shirt pocket. As expected the Investigating Officer and other raiding party arrived there. They caught the appellant red handed and his hand and pocket found tainted with Anthracene powder and thus the trap succeeded. The learned Advocate appearing for the appellant tried to suggest that there is ample variation in the two depositions referred to above so as to deduce that these two witnesses did not Criapl.226/1999 3 corroborate each other on the material aspects of the case. However, I am not inclined to accept this submission. I have already given the relevant details of the depositions of these two witnesses and there is practically no variance between them. The only thing where the witnesses differ is in the place where the incident took place. According to the complainant, the incident took place at village Bazar Sangavi where the appellant was holding the meeting by sitting on Otta with a person. Whereas, the shadow panch too said that the incident took place at Bazar Sangavi but he said as under : "While we were passing through lane we met one person who was having spects and small hair. We both saluted him. At that time, I learnt that he was accused Bangale. Thereafter, complainant enquired with accused as to what happened about his work. Accused told complainant whether he had brought Rs. 600/- as told by him and if he had not brought amount he would make entry of the name of Mahdhavrao Khandagale in 7/12 extract." 3. It is thus clear that the shadow panch tries to tell us that when the incident took place, the appellant was walking in a lane and while parties were standing, the exchange took place. In my view, the variation is insignificant and would not fatal to the case. On other aspects both the witnesses are concurred. I have therefore, no hesitation to hold that the prosecution has proved the trap. 4. The learned Advocate appearing for the appellant then tried to suggest that this was false case due to the previous incident in Criapl.226/1999 4 which the complainant sustained loss due to the appellant’s report etc. The complainant admitted that due to certain report filed by the appellant, he could not get 4 Acres Gairan land but could get only 1 Acre land. He also admitted that he was unhappy because of this but apparently the incident of Gairan land and the incident in respect of conditional sale deed are two different unconnected cases and so the appellant would fail to show that the complaint was false. 5. The third point for argument of the learned Advocate appearing for the appellant is in respect of the sanction for prosecution. The prosecution witness no.4 deposed that at the relevant time he was the Sub-Divisional Officer and Deputy Collector of Vaijapur, Dist. Aurangabad and he said, after he received the letter of Dy.S.P. of Anti Corruption Bureau in respect of this case, he perused the record and granted sanction for prosecuting the appellant on 2nd May, 1993 . He further stated that the appellant was appointed by the Sub-Divisional Officer, Vaijapur on 8th May, 1983 and then said that as the Sub-Divisional Officer who was appointing authority of the appellant he being the Sub- Divisional Officer was entitled to accord the sanction for prosecuting him. During examination in chief of this witness, the witness was asked whether he had seen the order passed by the Sub-Divisional Officer appointing the appellant in 1983. To this, this witness stated that he would bring the original appointment order of the appellant before the Court on next date. The appellant during the cross examination all along tried to suggest to this witness that he was not the appointing authority and so he was not empowered to pass sanction order for prosecution. On the next date he did not produce the original appointment order which he promised to bring. Criapl.226/1999 5 He also admitted that he did not have original appointment letter of the appellant. 6 As against this, the appellant brought on record the letter dated 12th July, 1982 sent by the Collector, Aurangabad to him inviting him to appear for the entrance examination for the post of Talathi (Exhibit-31). The next document is of 30th August, 1982 in which the Collector informed the appellant that he was appointed as Trainee Talathi for a period of four months (between 01.09.1982 to 31.12.1982) (Exhibit-32). The third document the appellant produced was that the letter dated 27th September, 1982 again written by the Collector to the appellant informing that though he was appointed on the post of the trainee Talathi, he was also required to appear before the Divisional Selection Committee, Aurangabad as per the advertisement dated 22nd September, 1982. The tenor of these letters clearly indicates that it was the Collector of Aurangabad, who had appointed the appellant as a Trainee Talathi. No where in these letters there is any mention of the Sub- Divisional Officer or the Deputy Collector of Vaijapur as the Authority who would appoint the appellant as the Talathi. The question, therefore, is, how the prosecution witness no.4 assumed that he was competent to appoint and terminate the services of the appellant. In order to answer this the learned A.P.P. referred to the provisions of the Maharashtra Land Revenue Code, 1966 particularly the provisions of Chapter II which deals with the Revenue Officers, their powers, duties etc. The sub-Section 4 of Section 7 only mentions that the Collector of District might appoint one or more Talathi for a Sajja in his district. Then Section 13 enumerates the powers and duties of the Revenue Officers. The sub-Section 4 of Section 13 reads as under : Criapl.226/1999 6 “13(4) : The Sub-Divisional Officer shall subject to the provisions of Chapter XIII perform all the duties and functions and exercise all the powers conferred upon a Collector by this Code or any law for the time being in force, in relation to the sub-division in his charge: Provided that, the Collector may whenever he may deem fit direct any such Sub-Divisional Officer not to perform certain duties or exercise certain powers and may reserve the same to himself or assign them to any Assistant or Deputy Collector subordinate to the Collector: Provided further that, to such Assistant or Deputy Collector who is not placed in charge of a sub- division, the Collector shall, under the general orders of the State Government, assign such particular duties and powers as he may from time to time deem fit.” 7. The learned A.P.P. taking clue from the provisions referred to above asserted that even assuming that the Collector, Aurangabad had initially appointed the appellant as Talathi using his powers under Section 7 referred to above, such powers he said, co-exits with the Sub-Divisional Officer and so since he was not prohibited from using the powers conferred on him of the Collector, he was empowered to terminate the services of the appellant. To this the learned Advocate appearing for the appellant contended that even if the powers of the Collector are also given to the Sub-Divisional Officers or the Deputy Collectors such as the prosecution witness no.4 and assuming that the prosecution witness no.4 was not prohibited from using such powers, he said that once the Revenue Officer is appointed by the Collector, no other Officer sub-ordinate to the Collector would be entitled to terminate his services. Unless the Collector himself empowers such Officer to do so or unless the Collector delegates his powers to him to do so. 8 This submission has to be accepted and the argument of the learned A.P.P. has to be rejected in view of the ratio of the Criapl.226/1999 7 judgment of Supreme Court in the case of the Krishna Kumar Vs. Divisional Assistant Engineer, Central Railway and others reported in A.I.R. 1979 S.C. Page 1912. The question before the Supreme Court in that judgment was whether the appellant could have been removed from service by the Divisional Assistant Electrical Engineer though the appellant was appointed by the order issued by the Chief Electrical Engineer. It was suggested that since the power to appoint the appellant was also delegated to the Divisional Assistant Electrical Engineer, he was empowered to terminate the appellant’s services. The Supreme Court held as under. “Delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An officer sub- ordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latters power to make appointments to certain posts has been delegated to him. Since the appellant was appointed by the Chief Electrical Engineer and has been remove from service by an order passed by respondent No.1 who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellants appointment, it must be held that respondent 1 had no power to remove the appellant from service. The order of removal is in patent violation of the provisions of Article 311 (1) of the Constitution”. 9. This ratio is squarely applicable to the facts of this Case. It is amply proved by the appellant that he was appointed by the order of Collector, Aurangabad as Talathi. The subordinate officer to the Collector the prosecution witness No.4 who was at the relevant time working as the Sub Divisional Officer, granted sanction for prosecuting the appellant. Such sanction thus is invalid and the appellant thus is entitled to acquittal, in view of the fact that Criapl.226/1999 8 sanction is defective. The appellant deserves acquittal. ORDER a) The appeal is allowed. b) The appellant stands acquitted. c) Fine amount deposited by the appellant in the lower Court shall be refunded to him. (A.V. NIRGUDE, J.) ts k/ok