Case: Bhaiyalal Vs. State of Maharashtra

2. The appellant who had been appointed as a Patwari, by order, dated October 23, 1937, and had taken charge of that office on April 14, 1937, was confirmed as such on April 31, 1943. It is not disputed that he was so appointed by theOfficer. He was tried and convicted on September 27, 1968, by the Special Judge, Bhandara (Shri V. V. Joshi), for an offence punishable under Section 161, I.P.C., and also under Section 5(2), read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 (Act No. 2 of 1947). The allegation against him was that he had accepted from the complainant a sum of Rs. 25/as illegal gratification on January 17, 1967, for the purpose of effecting a mutation in thename in respect of the land purchased by him. The appellant was sentenced to rigorous imprisonment for one year separately for both the offence, the sentence to run concurrently.3. An appeal again this conviction was preferred to the High Court of Bombay and it was on appeal that on his behalf the precise objection which is pressed in this Court was for the first time raised. It was contended that the appellant had been appointed as a Patwari by the Deputy Commissioner and, therefore, the sanction for this prosecution granted by theOfficer was not proper. The sanction by theOfficer, it may be pointed out, was produced at the trial and marked a Ex. 9. The High Court entertained the objection and went into the matter at some length and after looking at the relevant entire in the two registers described as thePatwari Register came to the conclusion that the appellant had been initially appointed a Patwari by theOfficer in 1937 and was later in 1943 confirmed a such only by theOfficer. The appellant resigned in 1953 and his resignation was accepted. But he was again taken back to duty by the order of the Board of Revenue, dated March 2, 1953 and was thereafter ordered by the Deputy Commissioner to join duty as a Patwari. On this point the High Court expressed itself thusthe accused was first appointed in 1937 by the S.D.O. It does appear from the register that his resignation became theof some appeal or a revision before the Revenue Board and the Revenue Board appeared to have again ordered for his reinstatement and therefore he was taken on Duty by an order of the D.O. That in itself certainly does not show that his was merely taken on duty. He was already appointed onA Patwari is appointed only by the S.D.O. under Rule 1 and Rule 10 of the C.P. Land Revenue Manual; but we are concerned with the Maharashtra Land Revenue Code in so far as the facts of this case areHigh Court then proceeded to consider some of the provisions of the Maharashtra Land Revenue Code and came to the conclusion that under Section 13(4) of that Code theOfficer is the person clothed with the power of appointing authority. The court also relied on the evidence of Shri Kapale,Officer, who had deposed that he was the appointing authority and had, therefore, as such, given the sanction to theprosecution. On this reasoning the High Court repelled theobjection to the validity of his prosecution for want of proper sanction.

Reasoning:
But we are unable to hold as contended on behalf of the appellant that this section deprives theOfficers of the power to appoint Patwaris conferred on them by virtue of Sections 10 and 11, read with clause (i) of Schedule II. Afaint attempt was no doubt made on behalf of the appellant to persuade us to hold that Section 43 empowers only the Deputy Commissioner to appoint Patwaris and ther has no such power. But thel ultimately felt constrained to give up this attempt and to concede that in the case in hand the appellant has in fact been appointed as a Patwari by ther in 1937 and later confirmed by the same authority inargument is based on an incomplete picture of the provisions of this Code. Section 13(4) empowers theOfficer, subject to the provisions of Chapter XIII, to perform all the duties and functions and to exercise all the powers conferred upon a all the duties and functions and to exercise all the power conferred upon a Collector by this Code or by any law for the time being in force, in relation to thein his charge. The provisions of this Code, therefore, do not necessarily vest the power of appointment of Patwaris solely in the Deputy Commissioners. Inthe Case in hand the appellant did not care to place on the record the order of, what he calls, his fresh appointment. His sole argument was that it was for the prosecution to prove by cogent evidence the condition precedent of a valid prosecution by producing on the record of this case proper sanction in accordance with law. The State having failed to do so then must be quashed, said thes, according to his contention, could not shift to the accused and it through out remained on the prosecution and it was open to the appellant even in the High Court to rise this point for the firsttime. We are unable to hold on this argument that there is no proper sanction for theprosecution. The statutory provisions and the evidence on the record are clearly against thesubmission.6. This Court at the time of granting special leave directed the appeal to be heard on the special leave paper book and also sent for the record of this case. We find from the record that in the Trial Court the appellant had on March 29, 1968, presented an application questioning the validity of the sanction for his prosecution by relying inter alia on Section 6(1) of the Prevention of Corruption Act according to which (so far as relevant in this case) no court can take cognizance of an offence punishable under Section 161, I.P.C. or under Section 5(2) of the Prevention of Corruption Act alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office. In that application the appellant did not plead that he had beenin 1953 by virtue of an order of the Deputy Commissioner.conclusion of the High Court, in our opinion, is based on the valuation of the entries in the register and it does not disclose any infirmity which should expose it to challenge on appeal under Article 136 of the Constitution. Thecontention is difficult to accept.8. We have, however, also looked at the entries in the two registers and we are in agreement with the view taken by the High Court. We find that in the first register the appellant was given warnings during his probationary period and was finely confirmed with effect from April 13, 1943, vide orders of theOfficer, dated May 30,s service book is also on the record and the entries in that book do not give any indication that the appellant was appointed as a Patwari afresh in 1953. On the contrary the entries in the service book are suggestive of continuous service right from theoriginal appointment. The conclusion of the High Court on the construction of the entries in the register in the light of the evidence on the record seems to us to be unexceptionable in the light of the evidence on the record seems to us to be unexceptionable and once this conclusion is accepted thechallenge to the sanction must fail whether the case be considered to be governed by the provisions of the C.P. Act 2 of 1917 or of the M.P. Land Revenue Code of 1954 or of the Maharashtra Act XLI of 1966 (Maharashtra Land Revenue Code,do not think this Court can appropriately go into the question of sentence in this case which prima facie does not seem to be excessive. The question of sentence is normally a matter in the discretion of the Trial Court. For a public servant to ask for and accept bribe for performing his official duties is a very serious matter and it would be improper to show undue leniency in cases of corruption by such public servants.