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2017 Supreme(Bom) 539
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
T.V. NALAWADE, J.
Dr. Ramprasad Madhavlal Porwal - Petitioner
Versus
Alka Khaire & Others - Respondents
Criminal Writ Petition Nos. 1247 of 2014 & 242 of 2015
Decided On : 25-04-2017
For the Petitioner: Shri. Pawan B. Pawar, appointed as amicus curiae
For the Respondents: Shri. H.F. Pawar, Shri. V.A. Bagal, Shri. P.R. Katneshwarkar, Shri. A.A. Jagatkar
Important Point – In such cases Court cannot insist for sanction at any stage of the matter including for passing order under section 156(3) of the Code of Criminal Procedure.
Headnote:Indian Penal Code, 1860 - Sections 409, 468 and 471-Misappropriation of public funds.- Criminal action cannot be stopped for having decision of departmental enquiry.
It appears that respondent No. 2 `Ch` from Criminal Writ Petition No. 1247/2014 was suspended and such statement was made before the Court on 26.6.2015. It was informed to the Court that the authority was thinking over to give sanction but the authority was waiting for the decision of the departmental enquiry. The Court had expressed that the departmental enquiry is one, thing and taking criminal action is other thing. Criminal action cannot be stopped for having decision of the departmental inquiry. In spite of some orders made by the Court of aforesaid nature, till today no criminal action is taken against the concerned by the Government. By order dated 5.4.2017 the Court had asked as to what is the intention of the Government but on that occasion also it was submitted that the office of the Collector and the superior officers are still thinking over the matter. In view of the aforesaid approach of the State Government and the Collector and as the matters are very old, the Court appointed Advocate as amicus curiae to assist the Court and the Court expressed that the Court would be deciding both the matters.
Indian Penal Code, 1860 - Sections 409, 468 and 471-Prevention of Corruption Act, 1988, Section 19-Criminal Procedure Code, 1973, Section 156-Misappropria- tion of public funds.-Since case involving offences under Corruption Act and also Penal Code hence for order under Section 156 of Cr PC, sanction under Section 19(1) of Act is necessary.
There are two options open to the present petitioner, original complainant as stated above. However it is not possible to interfere in the order made by the Judge of the Special Court. Thus both the proceedings need to be dismissed. The Court appreciates the efforts put in by counsel for assisting the Court. The Court is directing to pay amount of Rs. 3,000/- to the counsel through High Court Legal Services Sub-Committee Aurangabad as he has incurred expenses for taking photo copies of the reported cases. In the result, both the proceedings are dismissed. The amount of Rs. 3,000/- is to be paid to the counsel through the High Court Legal Services Sub-Committee, Aurangabad.
Prevention of Corruption Act, 1988 - Section 19-Sanction for prosecution.-Since provisions of Corruption Act prevails over provisions of Cr PC hence compliance of provisions of Section 19 of Act is necessary.
It needs to be kept in mind that the provisions of the Prevention of Corruption Act prevail over the provisions of the Code of Criminal Procedure even for procedural purpose and so as observed by the Hon`ble Apex Court there needs to be compliance of provision of Section 19 of the special enactment. In view of the observations made by the Apex Court in the case reported as 1997 MhLJ Online (Cri) (SC) 1 : (1997) 5 SCC 326 (Shamboo Nath Mishra v. State of U.P.) the act of misappropriation of public funds and fabrication of record cannot be called as act done in furtherance of or in discharge of public duty and in such cases Court cannot insist for sanction at any stage of the matter including for passing order under Section 156(3) of the Code of Criminal Procedure. Thus the complainant/petitioner of the present matter under some misconception filed the complaints before the Special Court and asked the Special Court to take cognizance of the matter or to make order under Section 156(3) of the Code of Criminal Procedure when no sanction order was obtained under Section 19 of the Prevention of Corruption Act, 1988. The order made by the lid Special Judge in view of the ratio of Anil Kumar case (cited supra) cannot be interfered with but it needs to be observed that the complainant can still approach Criminal Court like Judicial Magistrate, First Class either for taking cognizance of the matter or for making order under Section 156(3) of the Code of Criminal Procedure for investigation on the allegations made by him in the complaint. The amendment made to Section 156(3) of the Code of Criminal Procedure by which the proviso is added to give power to the Court to make any order even for investigation of the offences mentioned in Prevention of Corruption Act, 1988 can be used provided that the procedure given in the said proviso is followed.
1. In the first proceeding the order made by the learned Judge of the Special Court Jalna constituted under the Prevention of Corruption Act, 1988 in Special Case No.6/2014 filed by the present petitioner is challenged and in Criminal Writ petition No.242/2015 the order made by the same Special Court in Special Case No.9/2014 is challenged. Both the proceedings were filed as private complaints by the present petitioner for requesting the Court to take action for the offences punishable under sections 7, 8, 13(1)(c)(d), (2) of the Prevention of Corruption Act 1988 ("the Act") and sections 161 and 34 of the Indian Penal Code. In both the matters, prayer was made to give direction to police to make investigation under section 156(3) of the Code of Criminal Procedure. The learned Special Judge has dismissed the complaints by holding that the sanction under provision of section 19(1) and (3) of the Act was not there for making such order.
2. The complainant, party in person was allowed to argue the matters. In view of the intricate question of law involved in the matter, this Court had appointed learned counsel Shri. Pawan B. Pawar to assist the Court as amicus curiae. It needs to be mentioned that he has worked hard and he has assisted the Court by showing the law developed till this date on the point involved. The learned counsels for the respondents, accused in the private complaints are also heard. Only one Advocate Shri. Hemantkumar F. Pawar did not turn up in Writ petition No.1247/2014. The learned Additional Public Prosecutor was also heard for the State.
3. In private complaint No.6/2014 the petitioner has made allegation against the Chief Officer of Municipal Council Partur, the Sanitary Inspector of the same Municipal Council, one cashier of the same Municipal Council and one contractor, who is in business of scrap material. Allegation is made that huge quantity of scrap belonging to the Municipal Council was there which was weighing more than 10 tons is sold by the accused persons to accused No.4, the purchaser at meagre price. Allegation is made that for this sale, no procedure was followed and even no approval of any committee of general body of the Municipal Council was taken. Allegation is made that when amount of Rs.2.2 lakh was to be recovered, only amount of Rs.66,000/- was paid by the purchaser and remaining amount was never paid. It is the case of the complainant that he has collected necessary information under the Right to Information Act and he had made complaint to the District Collector. Allegation is made that the purchaser had even admitted that the amount was not paid but no action was taken and the Sanitary Inspector ultimately deposited some amount to see that no action is taken. According to the complainant, that conduct of the Sanitary Inspector of depositing some amount itself shows that they had committed offence of misappropriation. With these allegations the complaint was filed for the offences punishable under the Prevention of Corruption Act like sections 7, 8, 13. Sections 409, 471 of Indian Penal Code were not mentioned in the complaint though the allegations make out the offence punishable under section 409 of the Indian Penal Code.
4. In private complaint No.9/2014 allegations were made against the Ex-President of Municipal Council, Partur, Clerk of the Electrical Division of the Municipal Council and one businessman of Aurangabad. Allegations were made that even when no electrical material was supplied by the businessman, amount of Rs.6.3 lakh was paid to him by cash as per the instructions of the accused No.1, the President of the Municipal Council. Allegation is made that the procedure for purchasing such material was not followed and in tender notice time of only 10 days was given when the time of 21 days was required to be given for tenders. Allegation is made that false entries were made in various registers to show that said material was actually supplied when the material was no
