Dismissed

Yashwant Balasaheb Gavade v. the State of Maharashtra

Bombay HC17 Sept 2021REVN/163/2021

Case brief

AI extract

What is this about?

In this revision, the High Court dismissed the applicant's challenge to the Special Court's order declining discharge under Section 227 Cr.P.C. in a corruption case. The court found material evidence of demand and acceptance of bribe sufficient to proceed with the trial and dismissed the revision.

What did the court decide?

Revision application dismissed; order of Additional Sessions Judge declining discharge upheld.

Yashwant Balasaheb Gavade Vs the State of Maharashtra — Corruption | Bombay HC (2021)

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Digitally signed by SHAMBHAVI SHAMBHAVI NILESH NILESH SHIVGAN SHIVGAN Date: 2021.09.20 19:26:40 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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REVISION APPLICATION NO.163 OF 2021

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Mr. Yashwant Balasaheb Gavade Age: 44 yrs., Indian Inhabitant, R/O:- B-1201, Athene, Lodha Paradise, Majiwada, Thane (West) … Applicant Vs The State of Maharashtra Through the ofce of Ld.APP, PWD Building, High Court, Mumbai In connection with FIR NO.II-54/2011 Registered by Anti-Corruption Bureau, Thane at Wagle Police Station, Thane ... Respondents

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Dr. Abhinav Chandrachud with Mr. Datta Mane for the Applicant.

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Mr. S.S.Hulke, APP for the Respondent-State.

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CORAM : SANDEEP K. SHINDE J. DATE : 17 th SEPTEMBER, 2021.

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ORAL JUDGMENT :

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1 Feeling aggrieved by the order dated 11 th

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January, 2021 in Special Case (ACB) No.33/2014, by

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which the Additional Sessions Judge, Thane declined to discharge the applicant under Section 227 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’ for short) and thus, the revision is preferred before this Court.

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2 Prosecution case in brief is that, the

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complainant was Electrical Contractor. He had installed electric transformer in one high rise building at Thane, for which clearances/permissions were required from the ofce of Electrical Inspector, Public Works Department, State of Maharashtra. Applicant was Assistant Electrical Inspector. He allegedly demanded Rs.95,000/- bribe from the complainant for issuing clearances/permissions. Thereupon, the complaint was lodged on 8 th April, 2011 with the Anti Corruption Bureau at Thane. Whereafter the complainant called the applicant on

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his mobile in presence of two pancha witnesses and conversation was recorded on Digital Video Recorder. Whereafter applicant, called complainant at his ofce, at Thane on Monday in the morning. Accordingly, on 11 th April, 2011, pre-trap panchanama was drawn. A DVR recorder was given to the complainant in presence of panchas. Complainant met the applicant in his ofce in morning hours. He recorded conversation with the applicant, on DVR. Transcript shows, the bribe amount was scaled down to Rs.30,000/-. Transcript suggests, the applicant would accept balance amount against further clearances/permissions in future. Whereafter, the complainant was called in the afternoon on the same day. Thereafter, verif i cation panchanama was drawn and Anthracine powder was applied to 30 currency notes of Shivgan 3/17

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Rs.1,000/- each. Currency note, numbers were noted in the panchanama. At around 5 p.m. complainant went to the ofce of the applicant with the panch witnesses. However, applicant and complainant went to canteen attached to ofce. Complainant recorded conversation. The transcript of the conversation shows, applicant f i nally agreed to issue the necessary permission required by the complainant, only against bribe of Rs.50,000/-. Thus, on 13 th April, 2021, second pre-trap panchanama was drawn. Anthracine powder was applied to thirty currency notes of Rs.1,000/- each and forty currency notes of Rs.500/- each. Particulars of currency notes were noted in the pretrap panchanama. A trap was laid at 11 a.m. in the ofce of the applicant. Both, the applicant and the complainant frst went into the canteen. Thereafter i

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both sat in ‘Santro’ car of the applicant, bearing registration no.MH-12-13G-8434, which was parked in the ofce compound. Applicant drove the car for short distance and again drove back to the ofce. The car was followed by the panchas at motor-cycle. Whereafter again applicant and the complainant went to the ofce. After sometime, complainant came out and gave pre-determined signal to the raiding party. The complainant informed raiding party that bribe was accepted by the applicant in the car. Inspector Dilip Patil introduced himself to the applicant. Thereafter the applicant opened the car with a key, which was with him. Till then, car was guarded and kept an eye on it by the members of raiding party. Whereafter Rs.50,000/- were recovered from the dash board of the car in presence of the pancha no.2, who was sitting on the

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front seat and Mr. Patil, sitting in the back seat of the car. Under violate lamp, tainted notes, hands of the applicant and clothes were seen and all these emitted bluish glow. Number of currency notes recovered from the car of the applicant tallied with the number that had been mentioned in the pre-trap panchanama. Another panchanama (Herein after called ‘Post-trap Panchanama’) was drawn recording all that had transpired during the raid. Conversation between the applicant and the complainant was recorded in DVR. Its transcript was prepared. Transcript is in two parts; before and after accepting bribe. Second part of the transcript shows, after accepting the, bribe, applicant asked M.K.Deshpande (Ofce Person) to hand over the required permissions/clearances to the applicant.

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3 Dr. Chandrachud, the learned counsel for

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the applicant has taken me through the f i nal report and submitted that, to constitute ofence under Section 7 of the Prevention of Corruption Act, 1988, it is necessary for the prosecution to prove that there was ‘demand’ of money and the same was voluntarily ‘accepted’ by the accused. His next submission is that, demand and acceptance of money for doing a favour in discharge of his ofcial duties is sine-qua-non to the conviction of the accused. It is submitted that the material on record falls short of these basic ingredients of the ofence and, therefore, there is no sufcient ground for proceeding against the accused. His another contention is, that presence of panchas, who accompanied the complainant, was not formal witness but virtually a, ‘star witness’ for

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prosecution, for it is he who requires to witness the demand and acceptance by the public servant. In

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support of this contention, Dr. Chandrachud has relied on the judgment of this Court in Achyutrao

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Dattatraya v. The State of Maharashtra reported in (1993) 1 Bom CR 479. In so far as the ‘demand’ of and acceptance being ingredients of ofence under the Prevention of Corruption Act, 1988 are concerned, Dr. Chandrachud relied on the judgment of the Apex Court in the case of Banarsi Dass v. State of Haryana reported in (2010) 4 Supreme Court Cases 450. It is further contended that neither the alleged ‘demand’ nor the ‘acceptance’ of money was seen or heard or witnessed by either pancha witnesses. Dr. Chandrachud thus, contended that evidence of acceptance of bribe/tainted currency notes is not

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borne out from the material and therefore, the applicant has been implicated in this case on mere suspicion. Dr. Chandrachud would contend that in the case of Sajjan Kumar v. CBI reported in (2010) 9 SCC 368 Page 1371 , the Hon’ble Apex Court had an occasion to consider the scope of Sections 227 and 228 of the Cr.P.C. Dr. Chandrachud would submit that one of the considerations, while exercising jurisdiction under Section 227 of the Cr.P.C. is that ; ”if two view are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal”. The contention is that nobody had seen, the applicant while ‘accepting’ the bribe, and, therefore, simply because, tainted

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currency, was found in the applicant’s car, that by itself would not amount to acceptance of bribe pursuant to demand. It is, therefore, argued that applicant has been implicated on suspicion, which was not ‘grave’ in nature. It is next contended that the sanction accorded to prosecute the applicant, is contrary to the settled principles of law and advice of law ofcer. It is submitted that sanction has been granted mechanically and without application of mind. In support of his contention, Dr. Chandrachud relied on the judgment of the Apex Court in Nanjappa v. State of Karnataka reported in (2015) 14 Supreme Court Cases 186 to contend that validity of the sanction could be gone into at any stage and not necessarily only during the course of the trial. In support of this proposition, Dr. Chandrachud would rely on paragraph 23 (Supra) Shivgan 10/17

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which reads as under:

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“23. Having said that there are two aspects which we must immediately advert to. The frst i relates to the efect of sub-section (3) to Section 19, which starts with a non obstante clause. Also relevant to the same aspect would be Section 465 CrPC which we have extracted earlier.

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23.1. It was argued on behalf of the State with considerable tenacity worthy of a better cause, that in terms of Section 19(3), any error, omission or irregularity in the order sanctioning prosecution of an accused was of no consequence so long as there was no failure of justice resulting from such error, omission or irregularity. It was contended that in terms of Explanation to Section 4, “error includes competence of the authority to grant sanction”. The argument is on the face of it attractive but does not, in our opinion, stand closer scrutiny.

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23.2. A careful reading of sub-section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order sufers from an error, omission or irregularity, unless of course the court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such error, omission or irregularity. Sub-section (3), in other words, simply forbids interference with an order passed by the Special Judge in appeal, confirmation or revisional proceedings on the ground that the sanction is bad save and except, in cases where the appellate or revisional court finds that failure of justice has occurred by such invalidity. What is noteworthy is that sub-

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section (3) has no application to proceedings before the Special Judge, who is free to pass an order discharging the accused, if he is of the opinion that a valid order sanctioning prosecution of the accused had not been produced as required under Section 19(1).

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23.3. Sub-section (3), in our opinion, postulates a prohibition against a higher court reversing an order passed by the Special Judge on the ground of any defect, omission or irregularity in the order of sanction. It does not forbid a Special Judge from passing an order at whatever stage of the proceedings holding that the prosecution is not maintainable for want of a valid order sanctioning the same.

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23.4. The language employed in sub-section (3) is, in our opinion, clear and unambiguous. This is, in our opinion, sufciently evident even from the language employed in sub-section (4) according to which the appellate or the revisional court shall, while examining whether the error, omission or irregularity in the sanction had occasioned in any failure of justice, have regard to the fact whether the objection could and should have been raised at an early stage. Sufce it to say, that a conjoint reading of sub-sections 19(3) and (4) leaves no manner of doubt that the said provisions envisage a challenge to the validity of the order of sanction or the validity of the proceedings including fnding, i sentence or order passed by the Special Judge in appeal or revision before a higher court and not before the Special Judge trying the accused.”

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. Dr. Chandrachud would also contend, that

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under violate lamp, hands of the complainant were seen but it did not emit bluish glow. This contention

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appears to be incorrect in view of the panchanama Page 107 last paragraph.

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4 Prosecution relied on three transcripts of

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conversations; two pre-trap panchanamas and one post-trap panchanama. Primary evaluation of these

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documents, imply, that the applicant demanded, the

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bribe, from the complainant for issuing ‘permissions’

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as required by him. In these proceedings, I do not see any reason to discard or disbelieve the transcripts. In fact, now report of Forensic Laboratory is on record. It shows, the auditory analysis recorded questioned voice exhibits of Shivgan 13/17

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speaker and specimen voice exhibit of speaker and subsequent spectographic analysis revealed that, questioned voice exhibits of speaker are similar to specimen voice. In so far as the ‘acceptance’ is concerned, although the acceptance was not seen by any of the pancha witnesses, fact remains that tainted currency notes were recovered from the car owned by the applicant. Ownership of the car is not in dispute. In fact, car door was opened, with a key, which was with applicant. Apparently, evidence does not suggest, possibility of ‘Planting’ money in the car. Rather, evidence convey, that the applicant and the complainant drove the car, just before recovery of tainted currency from the car. In fact, when the Investigating Ofcer disclosed his identity to the applicant and enquired about tainted money, he pleaded ignorance. Whereafter key, which was Shivgan 14/17

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with the applicant, a car was opened and in presence of pancha witness no.2 and the Investigating Ofcer Mr. Patil, Rs.50,000/- were recovered from dash board. Therefore, there is material on record suggesting acceptance of ‘bribe’ in pursuant to demand.

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5 In so far as the sanction is concerned, Dr.

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Chandrachud has argued that sanction is contrary to the opinion of the law ofcer attached to the ofce of the Anti Corruption Bureau. Dr. Chandrachud has also invited my attention to the reference made by the parent department of the applicant to the Department of Law & Judiciary, State of Maharashtra, for re-consideration of sanction, but request of Parent Department was declined.

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6 Be that as it may, although this Court is

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empowered to look into the validity of the sanction

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at any stage as held in Nanjappa (Supra) , however, nothing has been pointed out to show how

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it sufers from error, omission or irregularity.

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7 For the reasons stated above, in my view,

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there is sufcient material on record to proceed against the applicant. There is no illegality, impropriety in the order impugned in this revision application. In consequence thereof, revision is dismissed.

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8 It is made clear that observations made

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here-in-above be construed as expression of opinion

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for the purpose of revision only and the same shall

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not in any way infuence the trial in other proceedings.