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State of Maharashtra Vs. Govind Purushottam Shahane - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1974CriLJ18; 1973MhLJ314
AppellantState of Maharashtra
RespondentGovind Purushottam Shahane
Excerpt:
.....registrar of co-operative societies and if it came to the contrary conclusion it was open to the state government to accord sanction under section 6 (1) (c) of the prevention of corruption act and the sanction accorded in the instant case was therefore perfectly valid sanction accorded by the competent authority under section 6(1) (c) of the act. choudhari appearing for the respondent-accused contended that if the provisions of section 6 of the act were carefully scrutinised, it would appear clear that clauses (a) and (b) of sub-section (1) of section 6 of the act were clearly applicable to gazetted officers of the union government or state government and the only clause applicable in the case of the respondent-accused, who was non-gazetted officer, was clause (c) of sub-section (1) of..........the enquiry officer. however, the matter was taken up to the higher authorities and ultimately the state government, agricultural and co-operative department, by its order no. cen 1267/151-79-c.3 dated 30th september, 1970 accorded its sanction to prosecute the accused for the offence punishable under section 161, i. p. c. and section 5 (2) of the prevention of corruption act. thereafter a charge-sheet was submitted by the inspector on 2nd february, 1971 to the special judge at nasik. before the learned special judge a contention was raised on behalf of the respondent-accused that the sanction accorded by the government on 30th september, 1970 was not in conformity with the provisions of section 6 of the prevention of corruption act and was invalid and illegal and as such the court was.....
Judgment:
ORDER

Tulzapurkar, J.

1. This revision application has been preferred by the State of Maharashtra against the order passed by the learned Special Judge, Nasik in Special Case No. 2 of 1971 on 12th June, 1971 whereby the learned Special Judge discharged the respondent-accused in respect of offences under Section 161, I. P. C. and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act after holding that the sanction that had been accorded by the Government for prosecution of the respondent-accused was invalid and not in conformity with Section 6 (1) (c) of the Prevention of Corruption Act, 1947.

2. A few facts giving rise to the prosecution of the respondent-accused may be stated. The respondent-accused was employed in the Co-operative Department of the Government and at the material time was working as Extension Officer (Co-operation), Block Development Office at Malegaon. As such Extention Officer it was his duty to aid and attend to the registration of Co-operative Societies, It appears that some inhabitants of village Umrane had decided to establish a cooperative society by name 'Veer Bhaguji Adivasi Sahakari Samudayik Sheti Society' and the Chief Promoter of the Society was one Gangaram Fule Pawar. On 7th October, 1961 an application was made in the Office of the Block Development Officer, Malegaon, by the Chief Prompter for getting the society registered. The society was not registered for quite some time and the matter was pending with the respondent-accused as the Extension Officer (Co-operative), According to the prosecution, on 9th February, 1965 Gangaram Pawar accompanied by one Rajaram Patil the Sarpanch of the village met the accused at Malegaon in his office in connection with registration of the society. After some talk it appears that Rajaram Patil advised Gangaram Pawar to pay Rs. 100/- to the respondent-accused and assured Gangaram Pawar that on such payment being made the respondent-accused would see that registration of the society was done immediately. After some hesitation Gangaram Pawar ultimately offered to pay Rs. 100/- to the respondent-accused and inquired with him as to when he could make the payment whereupon the respondent-accused told Gangaram Pawar to bring the amount on Friday the 12th February, 1965. Thereafter Gangaram Pawar gave the information to the Police Inspector, Anti-Corruption. Nasik about all that had transpired between him and the respondent-accused. His information was reduced to writing in the form of complaint and thereafter the Inspector submitted his report to the Judicial Magistrate. First Class, Nasik and obtained his orders to investigate the offence. Thereafter the usual trap was arranged and ultimately the amount was paid to the respondent-accused and on being surrounded by the raiding party marked currency notes were found with the respondent and the amount was attached under panchanama. On completion of the investigation a report was submitted seeking sanction to prosecute the respondent-accused. It appears that the Registrar of Co-operative Societies had initially refused the sanction for prosecution and he did so after holding departmental enquiry against the respondent-accused and after accepting the finding of the Enquiry Officer. However, the matter was taken up to the higher authorities and ultimately the State Government, Agricultural and Co-operative Department, by its Order No. CEN 1267/151-79-C.3 dated 30th September, 1970 accorded its sanction to prosecute the accused for the offence punishable under Section 161, I. P. C. and Section 5 (2) of the Prevention of Corruption Act. Thereafter a charge-sheet was submitted by the Inspector on 2nd February, 1971 to the Special Judge at Nasik. Before the learned Special Judge a contention was raised on behalf of the respondent-accused that the sanction accorded by the Government on 30th September, 1970 was not in conformity with the provisions of Section 6 of the Prevention of Corruption Act and was invalid and illegal and as such the Court was incompetent to take cognizance of the offence. On this contention the learned Special Judge heard arguments both on behalf of the Government Pleader and on behalf of the respondent-accused and ultimately by his order dated 12th June, 1971 he discharged the respondent-accused holding that the sanction was invalid. The learned Judge took the view that the sanction was invalid for two reasons; (1) that it was not in confirmity with Section 6 (1) (c) of the Prevention of Corruption Act and (2) that the Government had not applied its mind to the facts of the case before issuing sanction. It is this order passed by the learned Special Judge that is being challenged by the State of Maharashtra in the present revision application.

3. Mr. Gambhirwala appearing for the State has contended before me that the findings of the learned Special Judge on both the aspects of the matter were clearly erroneous and the order was not sustainable. He admitted that the Registrar of Co-operative Societies was both the appointing authority as well as the authority which could remove the respondent-accused from his service and he further accepted the position that the Registrar at the initial stage after holding a departmental enquiry against the respondent-accused had refused to accord sanction for prosecution of the respondent-accused. He, however, urged that even so as superior authority it was open to the State of Maharashtra to review the order passed by the Registrar of Co-operative Societies and if it came to the contrary conclusion it was open to the State Government to accord sanction under Section 6 (1) (c) of the Prevention of Corruption Act and the sanction accorded in the instant case was therefore perfectly valid sanction accorded by the competent authority under Section 6(1) (c) of the Act. He also urged that the finding of the learned Special Judge that there was non-application of mind on the part of State Government to the facts of the case before according sanction was equally erroneous and in fact ran counter to the positive evidence that was led by the prosecution in the form of deposition of Mr. Anandrao, Under Secretary working in the Agriculture and Co-operation Department, Government of Maharashtra. On the other hand, Mr. Choudhari appearing for the respondent-accused contended that if the provisions of Section 6 of the Act were carefully scrutinised, it would appear clear that Clauses (a) and (b) of Sub-section (1) of Section 6 of the Act were clearly applicable to Gazetted Officers of the Union Government or State Government and the only clause applicable in the case of the respondent-accused, who was non-Gazetted Officer, was Clause (c) of Sub-section (1) of Section 6 and according to him, under that provision sanction could be accorded by the 'the authority competent to remove him from his office'. Mr. Choudhari urged that in this case it was an admitted position that it was the Registrar of Cooperative Societies who was the competent authority who could make an appointment of Extension Officer and was the competent authority who could remove such Extension Officer from that post and since admittedly in this case the Registrar of Co-operative Societies had refused to accord sanction, the power of according sanction had been exhausted and it was not open to the State Government either in supervisory capacity or in any other capacity to accord sanction for the prosecution of the respondent-accused. As regards the point about non-application of mind on the part of State Government, he contended that the sanction that had been issued by the State Government on the face of it did not show whether the State Government had considered the aspect that at the initial stage the Registrar of Co-operative Societies, which was the competent authority had refused to accord sanction and there was no further material on record to show that the State Government had found something wrong in the order passed by the Registrar for refusing sanction. As regards the evidence of Anandrao, he contended that Anandrao had admitted that he had no personal knowledge as to in what manner either the Secretary or the Minister had applied his mind but he had merely put his signature on the draft order according sanction for the prosecution of the respondent-accused. He, therefore, urged that in the circumstances it could not be said that the State Government had applied its mind to the facts of the case.

4. After considering the rival submissions put forward by Mr. Gambhirwala and by Mr. Choudhari and after considering the entire material on record it seems to me difficult to accept the submissions of Mr. Choudhari or to sustain the order passed by the learned Special Judge for the reasons which I shall presently indicate.

5. At the outset it may be stated that the learned Special Judge seems to have proceeded on the basis that under Clause (c) of Sub-section (1) of Section 6 of the Prevention of Corruption Act the sanction that has to be accorded can be accorded not by the Government but only by the authority competent to remove the accused from service and since in the instant case it was an admitted position that the Registrar was the competent authority to remove the respondent-accused from service, it was the Registrar who alone could have accorded sanction and not the State Government. This aspect of reasoning becomes clear from what he has stated in para 10 of his judgment. After quoting the relevant provisions of Section 6 (1) of the Prevention of Corruption Act and after observing that Clauses (a) and (b) relate to Gazetted Officers of either Union Government or the State Government, this is what the learned Judge has observed:

The accused was not a Gazetted Officer. Apparently, he is covered by Clause (c). It is not the case of the prosecution that he is covered by Clause (b). The sanction (Ex. 12) accorded by the Government in this case is not under Clause (b). As expressly mentioned therein (Ex. 12), it is accorded under Clause (c). Under Clause (c), the sanction is to be accorded not by the Government, but by the authority competent to remove the accused from service. As noted at the outset, the authority competent to remove the accused from service, is the Registrar, Co-operative Societies. The Registrar has refused the sanction. It should follow that in this case the sanction accorded by the Government is not in conformity with the provisions in Section 6 of the Act.

In my view, the assumption made in the aforesaid line of reasoning that the State Government could not accord sanction in the instant case because the authority competent to remove the accused from service was the Registrar of Co-operative Societies is clearly fallacious. It is true that, in view of the admitted position in the case, it is the Registrar of Co-operative Societies who is the appointing authority for the post of Extension Officer and it is that authority who is competent to remove the incumbent of that post. But it is equally clear that the Registrar has been delegated powers of the State Government to make such appointments and to remove incumbents from such posts under the Bombay Civil Services Rules and such action on the part of the Registrar as the Head of the Department would be under the general control and supervision of the State Government. It is under Rule 10 of the Bombay Civil Services (Classification and Recruitment) Rules that such power has been conferred upon the Head of Departments and Rule 10 runs as follows:

Recruitment to Subordinate Services shall be made by Heads of Departments and those Heads of Offices to whom powers have been delegated, subject to the provisions of these rules and under the general control of Government.

Now the Extension Officers, who were previously called the Assistant District Co-operative Officers, are included in the Subordinate Co-operative Service as will appear clear from pages 91 and 92 of the Hand-Book containing Recruitment Rules. It is under these rules and not under any enactment of Legislation that power to make appointments has been conferred upon the Heads of Departments, namely the Registrar of Co-operative Societies in the instant case. Obviously such appointments are to be made by the Heads of Departments subject to the general control of the State Government. Since the Registrar of Co-operative Societies has been the appointing authority, obviously power to remove an incumbent from the post would vest in him and it is in these circumstances that the position was accepted before the learned Special Judge that the Registrar of Co-operative Societies was the appointing authority and was also competent to remove the officer from that post. Anandrao who gave evidence on behalf of the prosecution before the learned Special Judge has categorically stated as follows:

For that post of appointing authority is the Registrar, Co-operative Societies. The Registrar is the authority competent to remove him from his office.

It is thus obvious that the action of the Registrar of Co-operative Societies as the Head of the Co-operative Department in either making an appointment or in removing the incumbent from the post would be under the general control of the State Government. In other words, his authority in both the matters is subject to supervisory control of the State Government. It would thus be clear that the Registrar is not any independent competent authority or any statutory authority to remove the respondent-accused from the post but his action in removing the incumbent from the post would be subject to final approval of the State Government. In other words the final appointing authority as well as removing authority in the case of persons employed in subordinate service would be the State Government, In the circumstances, it is difficult to accept the assumption made by the learned Judge that under Clause (c) sanction could be accorded not by the Government but only by the Registrar of Cooperative Societies. In this view of the matter, the reference to Article 154 of the Constitution made by the learned Special Judge in his order and the reasoning based on that provision would be irrelevant and inapplicable.

6. So far as the question of according sanction under Section 6 (1) (c) of the Prevention of Corruption Act is concerned, it is clear that the relevant provisions contain a safeguard enjoyed by the Government servants and the safeguard is that criminal prosecution for offences mentioned in the Act against Government servants should not be commenced without the previous sanction and sanction shall be accorded after all the pros and cons of the matter are considered by the competent authority. This provision under Section 6 (1) (c) will have to be considered in juxtaposition with Article 311 of the Constitution whereunder constitutional protection has been accorded to persons employed in civil service. Article 311 (1) runs as follows:

No person who is a member of a civil service of the Union or an All-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

The constitutional protection that is given to the civil servant is that no dismissal or removal from service of a civil servant would be effected by 'an authority subordinate to that by which he was appointed'. This does not mean that a civil servant could not be dismissed or removed from service by any authority which is superior to the appointing authority. In fact in the instant case having regard to the position obtaining under the Bombay Civil Services Classification and Recruitment Rules, it is clear that the Registrar of Co-operative Societies as the Head of the Department has power to make appointments to the posts of Extension Officers or has power to remove them from such posts, but such power has been expressly delegated to him subject to the general control of the State Government. In other words, it seems to me quite clear that the State Government has supervisory power over the action of the Registrar of Co-operative Societies in the matter of making appointment or removing the incumbent from the post. Looked at from this angle it is quite clear to me that the State Government would clearly fall within the expression 'the authority competent to remove him from his office' occurring in Clause (c) of Sub-section (1) of Section 6 of the Act. In this view of the matter it is impossible to accept the view of the learned Special Judge that sanction could not be accorded) by the State Government.

7. Mr. Choudhari for the respondent-accused, however, urged that in the instant case the material on record clearly shows that the Registrar of Co-operative Societies, who was the competent authority to remove the respondent-accused from his post, had applied his mind to the facts of the case, had ordered departmental enquiry to be conducted, had accepted the finding recorded by the Enquiry Officer and had thereafter come to the conclusion that the sanction could not be accorded and it was after the Registrar had thus refused to accord sanction that the matter was taken up to the higher authorities and the State Government had accorded its sanction. He argued that once the Registrar had refused to accord sanction, the power to accord sanction under Section 6 (1) (c) of the Act must be taken to hare been exhausted and it was not open to the State Government to accord sanction thereafter. It is not possible to accept this submission for the simple reason that the refusal of the Registrar of Co-operative Societies to accord sanction must be taken to be an intermediate order passed by the Registrar which was subject to review or revision by the State Government in its supervisory power and until the matter had been finally considered by the State Government it could not be said that the power to accord sanction got exhausted no sooner the Registrar indicated his refusal to accord sanction. He Urged that the Registrar as delegated authority had exercised the power invested in him and therefore unless the State Government had indicated by its reasons that the Registrar's exercise of power was either illegal or improper or mala fide the State Government could not reverse the Registrar's decision and accord its sanction. It is impossible to accept even this submission. In the first place, what the Registrar had done was clearly subject to supervisory power of the State Government. In view of Rule 10 of the Bombay Civil Services Classification and Recruitment Rules, this position is very clear and, therefore, even when the delegate had exercised his power in a particular way, it would be open to the principal who had delegated his powers to revise the decision of the delegate. Once it is held that the Registrar's decision was subject to the supervisory control of the State Government, then it cannot be accepted that such supervisory control could be exercised only in cases where the exercise of power by the delegate could be shown to be either illegal or improper or mala fide. On the same material it would be open to the State Government to come to a contrary con elusion, as after all it is an administrative decision. In the instant case the question was whether the prosecution against a pub-lie servant should be sanctioned or not and it is quite conceivable that on the material placed before him, the Registrar as the Head of the Department, took one view and on the same material the State Government had taken another view. Having regard to the aforesaid discussion, it seems to me clear that the finding of the learned Judge that the sanction accorded by the State Government in the instant case was not in conformity with the provisions of Section 6 (1) (c) of the Act cannot be sustained. In my view, the sanction produced at Ex. 12 in the case was perfectly valid sanction and the same is in conformity with the provisions of Section 6 (1) (c) of the Act.

8. I may mention that a similar view has been taken by the Division Bench of this Court in Criminal Appeal No. 1336 of 1968 decided on 6-8-1970 (Bom). In that case sanction to prosecute one of the accused who was a public servant for an offence under the Prevention of Corruption Act had been initially refused by the Deputy Inspector General of Police, who was the competent authority to remove that particular accused from service and thereafter sanction had been accorded by the State Government to prosecute that accused. It was contended that it was the Deputy Inspector General of Police who was the authority competent to remove the accused from service and not the State Government and hence sanction accorded was invalid. The contention was negatived on the ground that phrase 'authority competent to remove him from his service' occurring in Section 6 (1) (c) of the Prevention of Corruption Act had a reference to Article 311 of the Constitution and under that Article what was prohibited was removal of an incumbent from service by any authority subordinate to that by which he was appointed and the State Government which was superior authority could never be said to be incompetent to dismiss a person in the position of Sub-Inspector like the accused before the Court. I have indicated above how in the instant case the Registrar as the Head of the Co-operative Department while making appointment or while removing the incumbent from the post of Extension Officer is acting subject to the general control of the State Government under the relevant Recruitment Rules. It is, therefore, clear that the sanction produced in the case will have to be held as a valid one and in conformity With the provisions of Section 6 (1) (c) of the Prevention of Corruption Act.

9. It was next urged that there was no material on record to show that the State Government had applied its mind to the facts of the case while according sanction for the prosecution of the respondent-accused. What was pointedly brought to my notice by Mr. Choudhari was that in the entire order according sanction produced at Ex. 12 there was nothing to indicate that the State Government while considering the question of according sanction had considered the facts that the Registrar as the Head of the Department had directed departmental enquiry to be held against the respondent-accused, had confirmed the finding recorded by the Enquiry Officer and had thereafter refused to accord his sanction for the prosecution of the respondent-accused. It is not possible to accept this submission of Mr. Choudhari for the simple reason that one of the relevant recitals occurring in Ex. 12 runs as follows:

And whereas, the Government of Maharashtra after examining all the material before them and considering all the facts and circumstances disclosed therein are satisfied that there is a prima facie case against Shri G. P. Shahane;

The aforesaid recital clearly shows that ail the material was placed before the State Government in connection with the respondent-accused and all the facts and circumstances of the case were taken into account by the State Government before according its sanction and there is nothing on record which would warrant an inference that from the entire material that was considered by the State Government the material pertaining to the Registrar holding a departmental enquiry, considering the finding therein and refusing to accord sanction for the prosecution were excluded from such material. Apart from this aspect of the matter, there is positive evidence on record of Anandrao, Under Secretary, to the effect that all this material was considered by the State Government. This is what he has stated;

The Government received an -application dated 27-4-1967 by one V. P. Patil stating that the Registrar Co-operative Societies had refused sanction for the prosecution of G. P. Shahane. The Government called for the remarks of the Registrar. The Director of Anti-Corruption wrote to the Home Department that the Registrar had refused the sanction. The Home Department forwarded to us the papers of the investigation by the A. C. B. for action. We received the remarks (report) from the Registrar. He sent to us the papers of the Departmental inquiry also. The papers of the investigation, the papers of the departmental inquiry and the report of the Registrar were studied by our department. Then all the case papers with our note were submitted to the General Administration Department and to the Law and Judiciary Department seeking their advice. On receipt of the papers and the advice we submitted them to the Chief Secretary and the Government i.e. the Minister, for sanction. The Minister took the decision that the sanction be granted. On receipt thereof I issued the order of sanction.

In view of this material which has been placed on record it would be difficult to accept the contention that the Government while according its sanction had not applied its mind to these aspects, namely that the Registrar had directed a departmental enquiry to be held, that be bad accepted the finding of the Enquiry Officer and that he had refused his sanction for the prosecution of the respondent-accused. The entire material and the case papers were submitted to the State Government and it is on consideration of the entire material that the sanction has been accorded. There is, therefore, no substance in this contention urged by Mr. Choudhari on behalf of the respondent-accused. Some sort of reliance was placed on an admission given by Anandrao in his examination to the effect that he had come in Sachivalaya in August, 1969 and that he had no personal knowledge of the prior events and that when the draft of the order sanctioning prosecution came to him it was his duty to sign. In my view, nothing much turns on the question as to whether Anandrao was in service in Sachivalaya at the relevant time or not. Even if he was working as the Under Secretary in Sachivalaya at the relevant time he could not be expected to have personal knowledge about how the Chief Secretary looked at the matter or the Minister concerned viewed the matter and the officer working in Sachivalaya can undoubtedly only speak from the record that would be maintained in the department and it is from such record that Anandrao gave his evidence how the matter was considered in the department by the Secretary as well as by the Minister. He has undoubtedly put his signature to the order of sanction but as purely ministerial act which he was called upon to do and which he did. If it was the case of the respondent-accused that it was the Under Secretary who was to apply his mind to the facts of the case and accord sanction, this aspect that he had merely put his signature to the draft order would have assumed some importance. But this is not the position here. The sanction has been accorded by the State Government, that is to say, after the Chief Secretary and the Minister had applied their mind to the facts of the case and the decision to accord sanction was thus taken by the proper authority and it was only after a decision was taken that the Under Secretary did the ministerial act of putting his signature to the order of sanction. The material on record, therefore, does not suggest that there was non-application of mind on the part of the State Government while according sanction of the prosecution of the respondent-accused. In my view, the order of the learned Special Judge discharging the respondent-accused on the ground of invalidity of sanction deserves to be set aside.

10. I accordingly set aside that order; the sanction having been held to be valid one. The matter will go back to the learned Special Judge and he will dispose of the case in accordance with law.


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