Allowed

Dada Bhimrao Sonawane v. the State of Maharashtra

Bombay HC2 Apr 2012APEAL/175/2001

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal against conviction under the Prevention of Corruption Act. The court held that the prosecution failed to establish a valid sanction because the sanctioning officer showed no application of mind and the original sanction order was missing, rendering the prosecution illegal.

What did the court decide?

The judgment of the Special Court and order in Special Case No. 3/1995 were quashed and set aside; any fine paid shall be refunded.

Dada Bhimrao Sonawane Vs the State of Maharashtra — Corruption | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO.175/2001

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Dada s/o Bhimrao Sonawane, Aged 35 years, Occupation: Service, Police Head Constable, B. No. 1669, Police Station Jinsi, Aurangabad.

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(Died) through Shobhabai Dadarao Sonwane. .. APPELLANT

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.. VERSUS ..

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The State of Maharashtra (Copy to be served on Government Prosecutor High Court of Bombay, Bench at Aurangabad.) .. RESPONDENT

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Mr. N. S. Ghanekar, Advocate for Appellant, Mr. K.S. Patil, A.P.P. for Respondent.

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CORAM : SMT. SADHANA S. JADHAV, J. DATED : APRIL 02, 2012.

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ORAL JUDGMENT

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The present appeal is being prosecuted by the wife of

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the original accused namely Dada s/o Bhimrao Sonwane. The original accused in Special Case No. 3/1995 decided by the Special Judge, Aurangabad , was convicted for offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.1000/- in default simple imprisonment for two months. The accused was also convicted for offence punishable under Section 13 (1)(d) read with 13 (2) of the Prevention of Corruption Act and sentenced to undergo imprisonment for one year and to pay fine of Rs.500/- in default simple imprisonment for one month. The original accused/convict expired during the pendency of the appeal and by an order dated 31.3.2006 leave was granted to the wife of the deceased to continue the appeal filed by her husband. Being aggrieved by the said judgment, the appellant had filed the present appeal.

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The case of the prosecution is that Dada Bhimrao Sonwane (hereinafter referred to as “appellant”) was attached to Zinsi Police Station as a Police Constable. One Mohammad Ali was married to Mehrunissa. A discordant note had struck between the couple and Mehrunissa had consumed poisonous oil . She was admitted in a Government Medical College

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Hospital, Aurangabad on 4.9.1994. A medico legal case was registered. The appellant was entrusted with the inquiry of the said medico legal case and he had recorded the statement of Mehrunissa.

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On 12.9.1994 Mohammad Syed Ali approached the office of Anti Corruption Bureau at Aurangabad and lodged a report alleging therein that there was a quarrel between him and Mehrunissa. The inquiry was with the appellant. On 5.9.1994 when he returned home after inquiring about the health of his wife, his mother informed him that the appellant had come home and has taken away the belongings of Mehrunissa. She further informed that the appellant had called Mohd. Syed to the Police Station. On 6.9.1994 at about 7 p.m., Mohd. Syed met the appellant. He threatened him and informed him that since the Senior Police Officer was not there, he should come on the next day at 9 a.m. On 7.9.1994, Mohd. Syed Ali went to the Police Station at 9 a.m. He met the appellant. He was again told that the Senior Police Officer was not present and, therefore, Mohd. Syed was asked to wait at home at about 4 p.m. At about 4 p.m. , the appellant went to the house of Mohd. Syed and again recorded the statement of his wife. He called the wife of Mohd. Syed, his mother and

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mother-in-law to the Police Station to remain present before the Senior Police Officer. They were told by the Senior Police Officer not to quarrel. While they were returning home, the appellant called Mohd. Syed and informed him that he would have to be arrested. Mohd. Syed requested him not to arrest and at that time the appellant demanded Rs.300/-. According to Mohd. Syed, since that day the appellant was visiting his house everyday and demanding money. On 11.9.1994, the appellant met him on the way and again demanded Rs.300/- and also threatened him of dire consequences on failure to pay the amount. The appellant is also alleged to have told Mohd. Syed to keep the amount ready at 9 p.m. Therefore, Mohd. Syed had lodged the report which is at Exh.15.

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The Officers of the Anti Corruption Bureau then summoned two panchas and it was decided to lay a trap. On 12.9.1994 a trap was laid at the residential premises of the complainant i.e. Mohd. Syed. The panch namely Latif was with the complainant. Late at night, the appellant came to the house of the complainant along with Constable Devilal Shikhare. The complainant is alleged to have asked the appellant as to what had happened to his case. The appellant is alleged to have told the complainant that the wife of the complainant had given the

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serious statement against him which would entail punishment for three months but he had tried to save him. The complainant told the appellant not to take action and he had arranged for Rs. 300/-. The complainant offered the amount. The appellant is alleged to have said that the work is of Rs.500/-. However, he agreed to accept Rs.450/-. Finally he agreed to accept Rs.300/and kept in his pocket. For the remaining amount, the complainant asked the appellant to speak with his father. The appellant was told by the father of the complainant that the remaining amount would be given lateron. The complainant then gave the signal to the raiding party. The raiding party accosted the appellant in the house. The appellant was trembling with fear and was worried about the future of his children. The appellant requested Savai. The appellant then asked Police Constable Savai to allow him to answer nature’s call. He was permitted to go and soon thereafter they heard the shouts. The persons who had gone with the appellant opened the door of the urinal and saw that there was knife in the stomach of the appellant. The appellant had stabbed himself. He was taken to Ghati Hospital. Police Constable Savai took the appellant to the hospital, returned and then continued with the panchanama. Thereafter Police Inspector filed a complaint at Jinsi Police Station which was registered at Crime No.17/1994.

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The Deputy Commissioner of Police had accorded sanction for prosecution on 28.12.1994. The case was registered as Special Case No. 3/1995. The prosecution examined 12 witnesses to bring home the guilt to the accused.

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PW1 is the complainant Syed Mohd. Syed Ali. In examination-in-chief, he has deposed as per his previous complaint lodged with the Anti Corruption Bureau. In the crossexamination, he has deposed that his wife had consumed castor oil. He felt humiliated when the Police visited his house. He has admitted that his wife had given four statements before the appellant and, therefore, he was summoned to the Police Station. The Police had caused compromise between the couple. He has admitted that although the accused had demanded gratification from him on several occasions, he did not complain about it to the Senior Police Officers. According to him, he got to know to the accused after the registration of the first offence against him under Section 498 of IPC and that the accused was taking keen interest in the case filed by his wife.

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PW2 Devilal Shikhare had accompanied the appellant to the house of the complainant on 12.9.1994. In fact PW2 was on patrolling duty. The appellant had requested PW2 to

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accompany him as he had to bring one person regarding inquiry in an application. Before accompanying the accused, he had handed over the rifle to his colleague and had retained the cartridges with him. After the trap had succeeded when the Police were recording the panchanama, PW2 went to the urinal along with the Police Constable. Soon thereafter, the appellant had also requested the Officers of ACP to permit him to go for urinal. On repeated requests by the appellant, the appellant was permitted to go for urinal. After sometime, the appellant was seen holding the knife on his stomach and had injured himself. It is admitted by PW2 that the hands and the pocket of the shirt of the appellant were checked in the light of ultra violate lamp before removing the tainted currency notes from his pocket. PW2 has admitted in the cross-examination that he had not heard the conversation between the complainant and the appellant before he entered into the room. He had not seen the staff of the Anti Corruption Bureau near the house of the complainant.

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PW3 Jagmohansingh Mayal who was the Senior Police

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Officer in Zinsi Police Station was the superior of the appellant. He has deposed before the Court that investigation of medico legal case of Smt. Mehrunnisa was given to the appellant. It is

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material to note that the complaint of Mehrunnisa and the

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subsequent compromise was not filed on record.

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PW11 is Abdul Latif who had acted as a panch at the time of trap. PW11 has deposed before the Court that on that day the complainant had told the appellant that he had arranged for Rs.300/- as instructed by him. However, the appellant told him that the work was worth Rs.500/- and not worth Rs.300/-. The complainant pleaded before the appellant about his poverty and, therefore, the appellant had agreed to accept Rs.50/- less. When the father of the complainant arrived in the room, the appellant and Constable Sikhare sat on the floor. The appellant then accepted the amount and thereafter raiding party had arrived on the spot and caught hold the hands of the appellant. After some time, the appellant went to the urinal, closed the door from the inside and stabbed himself by a knife. At that time the appellant was saying that he did not wish to survive and that they should take care of his children. The Rampuri knife with which the appellant had caused injury to himself, was seized under a panchanama. In the cross-examination, PW11 has stated that the time of accepting money by the appellant was 4 p.m. and they reached the house of the complainant at 4.15 p.m. This by itself would

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show that the panch PW11 was not present when the tainted

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notes were accepted by the appellant.

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In the cross-examination, PW11 has further admitted that the members of the family of the complainant were not present at the time of conversation between the complainant and the appellant. The complainant- PW1 has stated that the appellant had demanded the money and accepted the same in presence of his father, mother and Constable Sikhare. This admission of PW11 would fortify that he was not present when the amount was allegedly accepted. According to PW11, the panchanama was read over to him on the next day and his signatures were obtained. On 14.9.1994, the spot panchanama was read over to him and signatures were obtained. He has admitted that the signatures on the packets were obtained on 13.9.1994. The said panchanama was in respect of the seizure of the Rampuri knife. He has also admitted that the personal search of the accused was taken before he went to the urinal. It is material to note that Rampuri knife was not found with the appellant at the time of his personal search.

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PW10 Rameshwar Dahate was the then Assistant Commissioner of Police who had accorded sanction for

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prosecution of the appellant. He has deposed before the Court that on 16.12.1994 he had received a sealed envelop from the Office of the Anti Corruption Bureau. He read those papers, applied his mind to the said case papers and after being satisfied, he accorded sanction. PW10 has further deposed that he had prepared three copies from the draft sanction and on 28.12.1994, he accorded the sanction which is at Exh.34. In the cross-examination, he has admitted that there is no outward number of the covering letter issued by Superintendent of Police. In his personal file, he only had the photo copy of the draft sanction. He has deposed before the Court that the sanction order was dictated by him and prepared by his Steno. The witness was confronted with the sanction order which is at Exh.34 and he has deposed that he would be unable to tell whether Exh.34 is original, carbon or photo copy. He had produced the photo copy of the sanction order in the Court which is at Exh.35. It is material to note that Exhs. 34 and 35 appeared to be photo copies. The sanctioning authority has deposed before the Court that he had signed three copies of sanction order which was sent to Anti Corruption Bureau. There is a clear admission that the blanks filled in the sanction order which is at Exh.34 are in the handwriting of PW10 in respect of dates. He has been unable to state the name of the Steno who

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had typed the sanction order although he admits that he had only one Steno. He has admitted that the three copies of the sanction order and the copy retained in the office were prepared simultaneously. PW10 has further admitted that while seeing the papers of investigation, he does not remember whether he had read the complaint of Mehrunnisa. He had also not seen the record to ascertain whether the investigation of the said complaint was entrusted with the appellant. He would neither remember whether on the day of the trap investigation was pending. He was unable to tell the Court as to consequences under which he had accorded sanction to prosecute the appellant. The papers of investigation were sent back to the Office of the Anti Corruption Bureau along with the covering letter which is at Exh.36. On appreciation of evidence of PW10, it is clear that in the present case the sanction was accorded as a formality. There was no application of mind by the Sanctioning Authority. From the admissions of PW10, it can be safely inferred that PW10 had only signed and filled in the blanks mentioned in the draft sanction order. The original sanction order is not on record and, therefore, it is an idle formality which was followed by PW10.

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PW12 Ambadas Savai is the Investigating Officer. In

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the cross-examination, he has deposed that he had seen the draft proforma of sanction along with relevant papers. The proforma is not available. He has deposed before the Court that three sanction orders were received by the Office of Anti Corruption Bureau, one was in the file of the Court, the other one was with the Prosecutor and the third is kept with the Office which was produced at the time of his deposition. This admission has to be read in consonance with the admission of PW10 that he had signed three sanction orders. Exhs. 34 and 35 are the photo copies of the draft sanction. The original sanction is not placed on record and the prosecution has failed to establish that a valid sanction was obtained to prosecute the appellant.

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PW12 has further stated that after the trap had succeeded , the money was taken out by panch no.2. No personal search was taken at that time. Therefore, he would be unable to tell whether the knife was in the possession of the appellant. However, he has admitted that the appellant was allowed to go to the urinal only after the trap amount was recovered.

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The learned counsel appearing for the appellant has

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relied upon the judgment delivered in the case of Hanmantappa Murtayya Vijapure .vs. State of Maharashtra reported in 2004 Cri.L.J. 3001 wherein the appeal was allowed, as the sanction was found to be accorded without proper application of mind.

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In the above mentioned circumstances, it can be safely held that for want of valid sanction to prosecute, the appeal of the appellant would succeed. Hence the appeal is allowed. The judgment and order passed by the Judge, Special Court, Aurangabad in Special Case No.3 of 1995 deserves to be quashed and set aside. Fine amount, if paid, shall be refunded to the appellant.

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Dada Bhimrao Sonawane v. the State of Maharashtra

Case brief

What is this about?

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Dada Bhimrao Sonawane v. the State of Maharashtra

Case brief

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