K.U Chandiwal, J.:— P.C:
Heard. Rule made returnable forthwith.
2. The applicant-original complainant feels aggrieved by order of the learned Special Judge under Prevention of Corruption Act, Pune, dated 25.1.2012 accepting report under Section 169 of Cr.P.C tendered by the Investigating Officer, concerning respondent no. 1 - then Sub-Divisional Officer posed at Maval Sub-Division, Pune.
3. The prosecution case in brief is as under:—
Applicant desired to get converted the agricultural property in non-agricultural purpose for Petrol Pump, sanctioned in the name of his wife. An application was moved to the office of respondent no. 1 on 9.9.2010 The applicant was pursuing his matter for permission. He contacted Sheristedar of the said office (original accused no. 2 Mr. Soma). After 2 or 3 meetings, demand of Rs. 1 lakh was raised for clearing the file for non-agricultural permission. The amount of Rs. 1 lakh was scaled down to Rs. 75,000/-. There was demand verification by the Investigation Agency. A trap was arranged on 23.11.2010 and original accused no. 2 was found accepting Rs. 75,000/-, recorded in pre-trap panchanama and post trap panchanama with all details.
4. The crux of the matter is, the conversation between complainant/applicant and accused no. 1 on 22.11.2010 was recorded by the applicant as was directed by the Investigating Agency, which clearly prime facie reveals demand by accused-respondent no. 1.
5. A lame excuse was put by accused-respondent that he was on leave from 13.11.2010 to 20.11.2010 by affixing Sunday on 21.11.2010 The record illustrates, the entire events of trap and demand have come into force on 22.11.2010, therefore, relying on any news item by accused - respondent no. 1 of alleged demand by him on 18.11.2010, is of no consequence. It is a ruse created by accused-respondent no. 1.
6. A doubt was created to the communication or a recorded statement, by learned Senior Counsel, supported by Forensic Report. It is curious and speaks of tendency of the Investigator to shield a powerful officer. The affairs of raid was dated 21.11.2010 but the report from Forensic office is collected on 25.2.2013 and the officer or the accused-respondent desired this Court to act upon it. The report is not negative but it says tape is not in audible condition, still the communication of complainant, prima facie, need not be shattered with. It was his personal communication with accused-respondent no. 1 on 22.11.2010, which can be demonstrated in evidence.
7. The accused-respondent proceeding on leave or he had already approved sanction to Non-agricultural purpose, are the defences that could not be put in acceleration for Section 169 of Cr.P.C report, as the accused desired.
8. The learned Senior Counsel says, the Director General of Police (in short DGP) does not act as post office. Certainly correct, however, there is nothing before this Court that whatever has been reported by the Investigator to the office of DGP was placed before him in the same manner. He is not an appellate authority. Reference to the Police Manual, or Section 97 of Bombay Police Act is inconsequential.
Section 97 of Bombay Police Act reads as under:—
“97. A superior Police officer may himself perform duties imposed on inferior etc. A Police officer of rank superior to that of constable may perform any duty assigned by law or by a lawful order to any officer subordinate to him; and in case of any duty imposed on such subordinate, a superior where it shall appear to him necessary, may aid, supplement, supersede or prevent any action of such subordinate by his own action or that of any person lawfully acting under his command or authority, whenever the same shall appear necessary or expedient for giving more complete or convenient effect to the law or for avoiding an infringement thereof.”
Thus, effect of Section 97 could not be put for cause in respect of an Officer seeking approval of sanction through the Channel of DGP. The DGP was required and expected to transmit the papers to competent sanctioning authority at Government which part the learned DGP has failed to perform. He could not have treated himself as Judge, as is happened in the present case.
9. The opinion of Legal Advisor to the office of DGP was read by the learned Senior Counsel.
10. The legal Advisor has presumably a legal knowledge, could not adversely comment on supplementary statement of the complainant recorded during the trap, as the supplementary statement is signed by panch witness. He could have, prima facie, indicated his legal knowledge in proper frame which is lacking. He has no business at the end of report to write that case against accused no. 2 is weak, as this report could be flashed, used and raised as a defence by the concerned in the prosecution. Such unwanted effort will frustrate and fracture the prosecution.
11. Affidavit of Shri. Hemant V. Bhat though supports the accused-respondent, however, he should have also equally gone through the papers, he had no reason to accept the doubtful findings of CFSL in respect of recorded conversation between the complainant and accused-respondent no. 1. He has given reference to the Manual. There should not be contest to the Manual, however, it has been twisted for the benefits of the accused-respondent no. 1.
12. The learned Special Judge, basically travelled through the report or the opinion of the Advocate which was not expected. He has swayed away himself by accepting the defences. He should have gone through the root of the matter, applied his mind. There should not be dearth to a legal thought. He could have seen brazen attempt of a colourable exercise of power by a mighty officer, but the learned Special Judge missed the track.
13. Reference to the Judgment of “Vasanti Dubey v. State Of Madhya Pradesh ((2012) 2 SCC 731)”, was certainly misplaced. In the said case the Judge dealing with the matter was frustrated by the persistant negative report furnished by the police. However, on appreciation of material, the Supreme Court recorded, already there were findings of Lokayukta of a particular State of no material against the said accused. The learned Judge should not have ignored this aspect.
14. The Hon'ble Supreme Court in the matter of “State of Maharashtra Through CBI v. Mahesh G. Jain” in Criminal Appeal no. 2345 of 2009 decided on May 28, 2013 also indicated about the parameters concerning sanction.
15. In the result, the order of the learned Special Judge, accepting report under Section 169 of Cr.P.C is set aside. The report under Section 169 of Cr.P.C is rejected. The learned Special Judge or the Investigator to follow the legal course in the matter. Learned DGP to forward case papers to appropriate Sanctioning Authority to pass orders in accordance with law. Observations are prima facie in nature.
16. Rule made absolute accordingly.