Popat Shankar Sonawane vs State of Maharashtra

M.R. Saldanha, J.—The appellant, who at the relevant time, was a Police Head Constable posted at Peth Police Station, District Nasik, was alleged to have demanded a sum of Rs. 400/- as illegal gratification from one Laxman Hari Kadale in the third week of August 1984. A quarrel had taken place in the village and Kadale was the complainant and the prosecution alleges that the accused is supposed to have assured him that he would arrest all the 12 persons against whom Kadale had a complaint and that he would also make the case very strong if he was paid the amount of Rs. 400/- . Kadale being a poor villager and an illiterate person, he is alleged to have parted with a sum of Rs. 20/- on 28-4-1984 and promised to bring the sum of Rs. 200/- on 30-8-1984. He went to the Anti -Corruption Authorities and complained to them on 29-8-1984, pursuant to which a trap was arranged. On the evening of 30-8-1984, Kadale along with the panch Bhikha Bendkuli were both sent to the accused with the usual instructions that the money should be paid only if the accused demands the same and that a signal should be given. Accordingly, Kadale and the panch went to the police station, to the house of the accused and to several other places in search of him and finally, located him near the S. T. Stand from there, the three of them came back to the Police Station and Kadale alleges that he handed over the amount of Rs. 200/- to the accused who asked him whether he had brought the money and thereafter gave the necessary signal. The raiding party thereafter caught hold of the accused and they are alleged to have recovered the amount of Rs. 200/- from his left trouser pocket. On checking with a torch, signs of anthracene powder were noticed on the hands of the accused and on his clothes. The accused was placed under arrest, the investigations completed and a complaint filed before the Special Court. The learned Special Judge, Nasik, on a consideration of the evidence, convicted the accused for the offences punishable u/s 5(2) of the Prevention of Corruption Act, and u/s 161 of the Indian Penal Code and awarded him a sentence of R.I. for one year and to pay a fine of Rs. 200/- in default R.I. for three months under each head of charge, substantive sentences to run concurrently. The present appeal has been directed against this order.

Mr. Rajiv Patil, learned counsel appearing on behalf of the appellant has taken me through the prosecution evidence with a degree of meticulousness. His first submission is that the complainant Kadale has wrongly involved the appellant. He submits that merely because the complainant happens to be an illiterate villager coming from the poorer strata, the Court should not ipso facto accept his evidence as the learned trial Judge has done, because he was able to demonstrate to me that the evidence is not only inconsistent but there are material contradictions in it. Mr. Patil, while analysing this evidence, stated that admittedly, a serious incident had taken place in the village wherein one of the associates of the complainant had landed up in the hospital. The complainant had, therefore, gone to the police authorities and it is rather unfortunate that on each occasion, he had to travel a long distance on foot. The procedures such as panchnama, attachment of clothes, recording of statements, etc., were undoubtedly troublesome and the incident not being one of much seriousness vis-a-vis the police in so far as the injuries were not serious, Kadale has been asked to produce the different witnesses. Obviously, he was boiling with rage and was overanxious that as many as 12 people should be implicated in the incident, whether it is justified or not. Mr. Patil points out, that the complainant had gone through the P.S.I, and not through the accused. That this was in a case where the police had refused to act because a crime had been registered and, therefore, the role of the accused was minimal. Under these circumstances, the whole story put forward that the accused was to strengthen the case does give rise to some degree of doubt as to what exactly the correct state of affairs was. Mr. Patil then illustrates that in the present case, the complainant Kadale is alleged to have virtually gone around the town in circles on the evening of 30-8-1984 until they found the accused. They had no other business on that day except to hand over the money to the accused as directed by the A.C.B. authorities and it is, therefore, quite surprising that after meeting the accused at the S. T. Stand, that they would ask him to come all the way back to the police station only for this purpose. On the contrary, the evidence itself discloses that the accused went back to the police station, asked about the witnesses etc., and that he had gone there in connection with Kadale''s complaint. Mr. Patil then demonstrates that the panch in the present case was supposed to be a peon from the Zilla Parishad office. Why the A.C.B. could not have secured the services of a person of a higher designation for an important function of the present type, one does not know. The panch who is P.W.2 had almost turned hostile by stating that the panchnama was written out by the police and thereafter certain particulars filled in and his signature obtained. His evidence is also rather patchy and under normal circumstances, where the panch should corroborate the complainant, Mr. Patil points out that this panch has not only weakened but destroyed the complainant''s evidence. The sum total of the deposition of these two witnesses which is all that the prosecution has to rely on, does not inspire any confidence in the mind of the Court is the last submission of the learned counsel.

Mr. Palekar, the learned A.P.P. has stoutly defended these two witnesses. He states that Laxman is an illiterate poor villager but in spite of that, he has given evidence which is sufficiently forthright and the infirmities pointed out are but natural, according to Mr. Palekar, he states that the evidence of P.W.2, the panch is quite satisfactory on all material points and that the Court should make allowances for the few blemishes that do appear. It is the endeavour of the learned A.P.P. to point out, that this material is good enough to sustain a conviction because, on the main point regarding the evidence concerning the trap, the two witnesses corroborate each other.

One needs to take into account the fact that, admittedly, Laxman had gone to the A.C.B. and therefore, everything that proceeded in relation to the trap was under the instructions of the police and the statements that have been made by the two witnesses before the Court are identical to what is deposed to in all corruption cases. The prosecution, to my mind, has seriously slipped-up on certain material aspects, one of which is the fact that the presence of anthracene powder is a clinching circumstance. This powder which emits a glow when exposed to ultraviolet light, if found on the person of the accused or on his clothing or on the currency notes, is a considerably incriminating circumstance. It is quite elementary when the A.C.B. plans a trap, that they take along with them an ultra-violet light. A perusal of the present record shows that this was not done and there are some recitals in the panchnama to the effect that anthracene powder was detected on certain places on the basis of a torch which the police Inspector had with him.

Mr. Patil has attacked this aspect of the case very strongly and he has insisted that the Court should not, under any circumstance, allow this infirmity to be pardoned because, the finding of the anthracene powder is crucial and it is an admitted fact that the powder does not emit any glow under normal light. Having regard to the admissions of the panch and strengthened by this circumstances, Mr. Patil has submitted that the investigation is suspect and cannot be relied upon.

Learned counsel for the appellant is right when he points out to me that the prosecution case does not pass the test of credibility. This is a criminal case in which the consequences to the appellant are grave and under those circumstances, the duty cast on the shoulders of the prosecution is an equally serious one. There can be no laxity or compromise permissible in such cases, and having regard to the infirmities that have been demonstrated in the present proceeding, to my mind, it would be hazardous to base a conviction on such material.

It has been pointed out that the sanctity of a valid prosecution in corruption cases does not require to be re-stated. Once again, in the present case, the prosecution attempted to bring the sanction order on record by examining the Stenographer of the Senior Superintendent of Police. This witness was gullible enough to admit that beyond typing the sanction order, he had done nothing else. At the fag end of the trial, when the Court pointed out that this procedure was unsatisfactory, the then Superintendent of Police Mr. Ankola was produced as a witness. In the obvious hurry, admittedly, the prosecuting agency had not taken the trouble to brief him up. His evidence is rather classic in so far as he admits that the papers in relation to this matter were sent by the prosecuting agency to him in a sealed envelope along with the report and the draft sanction order. The sanctioning authority accorded sanction and returned the record that had been sent to him. He was good enough to admit in his cross-examination that he had taken the trouble to open the outer envelope without going through the labour of opening the inner envelope which contained the records of the case. It was in these circumstances, that he further went on to state in the witness box that even though there was a reference to the complainant having paid to the accused Rs. 20/ on 28-8-1984, that he did not accord sanction for prosecution in respect of this incident. If it is under these circumstances that the sanction to prosecute was accorded, it would be impossible for me to hold that the sanction was accorded after due application of mind.

While on this aspect of the case, I need to record that Mr. Palekar, learned A.P.P. rallied to the defence of the sanctioning authority by pointing out to me that there is nothing wrong if the A.C.B. authorities had forwarded a sanction order along with the record of the case. The learned A.P.P. is right when he states that there is no harm whatsoever if a draft sanction order is sent because, the form in which the sanction is to be accorded may certainly be pointed out to the sanctioning authority. What the law requires on the part of the sanctioning authority is that independently of the prosecuting authority, who may have come to the conclusion that the accused who is a public servant should be put on trial, that the case requires independent and judicious examination. The function of the sanctioning authority is not to put his approval on the draft sanction order sent to him. He is required to go through the exercise of examining the record sent to him, which again is not limited to merely looking at the report or the summary of the case as sent by the police because, that again is bound to be one-sided. If after a judicious assessment of the investigative papers the sanctioning authority comes to the conclusion, that it is a fit case in which a prosecution should be ordered, he would be certainly justified in according sanction. The sanctioning authority is again, not to proceed on the basis of presumptions, that merely because a trap was laid or merely because the police stated that there is a prima facie case, that sanction should follow as a matter of routine. If this were to be the position, the role of a sanctioning authority would become redundant and the law would not have made provisions for the accord of sanction.

This Court has had occasion to consider this aspect of the matter in some of the earlier decisions, notably in the case of Bhagwan Jathya Bhoir vs. State of Maharashtra, 1992 Cri.L.J. 1144 . This Court had taken the view that the fundamental purpose of prescribing the sanction procedure was in order to restrict prosecutions to those of the charges which are grave enough to warrant a prosecution. Single isolated instances of receipt of a small amount of money may not be grave enough to warrant the rigours of a prosecution because, I have had occasion to point out that this procedure would curtail almost two decades of litigation apart from the choking up of law Courts with the burden of frivolous case. Disciplinary proceedings also provide for punishments which can be adequate and commensurate with what is alleged and furthermore, the time factor would be considerably reduced. There would also be less of wastage of public time and money and the Courts would be saved from hundreds of these prosecutions such as the present one which apart from the burden inflicted in the judicious process, subjected the public servant to over a decade of trauma. The Supreme Court has had occasion to observe in the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, , as follows :

�The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned."

It is in this situation; that I am constrained to once again observe that the prosecuting authorities and the sanctioning authorities and in particular the prosecutors who are entrusted with the function of presenting the case before the trial Court should pay special attention to the observations made in the aforesaid judgments and to act strictly in accordance with law. The sanction order in the present case must, as of necessity, be struck down and as a consequence thereof, the proceedings themselves would stand vitiated. I have further held that even on merits, the prosecution case does not pass the test of credibility.

In the light of the aforesaid observations, the conviction and sentence awarded by the trial Court are set aside. The fine, if paid, is directed to be refunded. The bail bond of the appellant to stand cancelled.

Appeal allowed accordingly.