Bombay High Court
Vijay S/O Gowardhan Patkar vs The State Of Maharashtra Thr. Deputy … on 10 March, 2025
2025:BHC-NAG:2486
Judgment
372 revn95.24
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.95 OF 2024
Vijay s/o Gowardhan Patkar,
aged about 57 years, occupation : service,
r/o behind bus stand,
Mahsool Colony, Taluka Akola,
district Akola. ..... Applicant.
:: V E R S U S ::
1. State of Maharashtra, through
Deputy Superintendent of Police,
ACB, Ambedkar Chowk, Washim,
district Washim.
2. Police Station Washim, through
its Police Station Officer,
Washim, district Washim. ..... Non-applicants.
Shri S.S.Dhengale, Counsel for the Applicant.
Shri V.A.Thakare, Additional Public Prosecutor for the
Non-applicants/State.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 21/02/2025
PRONOUNCED ON : 10/03/2025
JUDGMENT
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1. Heard learned counsel Shri S.S.Dhengale for the
applicant and learned Additional Public Prosecutor Shri
V.A.Thakare for the non-applicants/State.
2. The present revision is filed by the applicant
(accused) against order dated 20.4.2024 passed below
Exh.13 by learned Additional District Judge, Washim in
Special ACB Case No.26/2019.
3. By the said order impugned, the application filed
by the accused for discharge in connection with Crime
No.270/2018 registered with the non-applicant/police
station under Section 7(13)(1)(d) read with 13(2) of the
Prevention of Corruption Act, 1988 came to be rejected.
4. The accused is original accused No.1. He is
chargesheeted on an allegations that on 19.6.2018 he was
serving as Police Inspector and Incharge of Washim City
Police Station. Accused No.2 Vijay Rathod was serving as
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3
Head Constable and also Writer of the accused. One
Apparao Shinde is arraigned as an accused for the offence
under Sections 306 read with 34 of the IPC along with co-
accused Bhalerao. Said Apparao was also in service as a
Police Constable at Police Headquarters at Washim. Co-
accused Bhalerao was his close friend. Dattatraya Khadse
(the deceased) was also Police Constable at Police
Headquarters at Washim who committed suicide allegedly
due to the abetment at the hands of complainant Apparao
and his friend Bhalerao due to some money lending
transaction between them.
5. On 19.6.2018, the said complainant filed the
complaint by approaching Anti Corruption Bureau at
Amravati on allegation that the accused and the co-
accused demanded gratification amount from him for
filing of the chargesheet by preparing documents in his
favour. Accordingly, verification panchanama was drawn
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4
and veracity of the allegations was verified. After
following due procedure, the trap was led and co-accused
Vijay Rathod was caught while accepting the bribe
amount. After completion of the investigation,
chargesheet was filed against the accused and the co-
accused. The accused filed an application vide Exh.13 for
discharge on the ground that he has neither demanded
nor accepted the amount. Thus no offence is made out
against him under Section 7(13)(1)(d) read with 13(2) of
the Prevention of Corruption Act, 1988.
6. Another ground raised by him is that, in view of
Section 17 of the said Act, only the Deputy
Superintendent of Police is competent to carry out the
investigation. However, the investigation is carried out by
the Police Inspector. Thus, there is no compliance of said
Section 17 of the said Act. For that ground also, the
accused deserves to be discharged from the charges.
…..5/-
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5
7. Learned counsel for the accused submitted that
there was no demand and acceptance by the accused.
Thus, in absence of the demand, the accused cannot be
compelled to face the charges by facing the trial. There is
no evidence brought in the chargesheet showing that the
accused has demanded the bribe amount. The
complainant has also not filed any complaint to Anti
Corruption Bureau against the accused. The trap
panchanama also not discloses any involvement of the
accused either in the demand or acceptance of the
amount. The communication recorded during verification
panchanama also not discloses any demand on the part of
the accused. In view of Section 17 of the said Act, the
Deputy Superintendent of Police or police of equivalent
rank only can investigate the offences punishable under
the said Act. However, the investigation is carried out by
the police inspector who is neither authorized officer nor
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6
there is any proof of authorization to investigate into the
offence. Learned counsel, therefore, prays that the
application be allowed.
8. In support of his contentions, learned counsel for
the accused placed reliance on following decisions:
1. Union of India vs. Prafulla Kumar Samal
and anr, reported in (1979)3 SCC 4;
2. Mukhtiar Singh (since deceased) through
his LRs vs. State of Punjab, reported AIR 2017
SC 3382;
3. Satish Ganpatrao Suryawanshi vs. State of
Maharashtra, reported in AIR OnLine 2020
Bom 3089;
4. Waman s/o Malahri Jambhulkar vs. State
of Maharashtra, reported 2018(3) ABR (Cri)
26, and
5. Sunil s/o Bhalchanda Shinde vs. State of
Maharashtra and anr, reported in 2020(1)
Mh.L.J. (Cri) 304.
9. Per contra, learned Additional Public Prosecutor for
the State submitted that the verification panchanama
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discloses conversation between the accused and the
complainant which shows the demand by the co-accused
for the accused and the accused has also asked to fulfill
the said demand. He further submitted that the Director
General of Police, Maharashtra State, is competent
authority to remove the accused from service. As per the
Government Resolution dated 12.2.2013 issued by the
General Administrative Department, Maharashtra State,
Mumbai for purpose and as required by Section 19(1)(c)
of the Prevention of Corruption Act, 1988, has accorded
the sanction for the prosecution. He further submitted
that as per order dated 19.4.1989 issued by the Home
Department, Government of Maharashtra, in exercise of
the powers conferred by the first proviso to Section 17 of
the said Act, the Government of Maharashtra authorizes
all the Inspectors of Police in the Anti Corruption Bureau,
Maharashtra State to investigate any offence under the
…..8/-
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8
said Act and to make arrest therefor without a warrant.
Thus, there is an ample evidence to connect the accused
with the alleged offence. Even the strongest suspicion is
sufficient to frame charge against the accused and prays
for rejection of the application.
10. The accused has filed the application for discharge.
It is a settled principle of law at the stage of considering
an application for discharge the court must proceed on
the assumption that the material which has been brought
on the record by the prosecution is true and evaluate the
material in order to determine whether the facts emerging
from the material, taken on its face value, disclose the
existence of the ingredients necessary to constitute the
offence.
11. In Union of India vs. Prafulla Kumar Samal and anr
supra, also the Hon’ble Apex Court held that in exercising
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jurisdiction under section 227 of the Code the Judge
which under the present Code is a senior and experienced
Judge cannot act merely as a Post office or a mouth-piece
of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence
and the documents produced before the Court, any basic
infirmities appearing in the case and so on. This however
does not mean that the Judge should make a roving
enquiry into the pros and cons of the matter and weigh
the evidence as if he was conducting a trial. Learned
Judge while considering the question of framing the
charges under section 227 of the Code has the undoubted
power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused has been made out. The test to
determine a prima facie case would naturally depend
upon the facts of each case and it is difficult to lay down a
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rule of universal application. Where the materials placed
before the Court disclose grave suspicion against the
accused which has not been properly explained the Court
will be, fully justified in framing a charge and proceeding
with the trial. By and large however if two views are
equally possible and the Judge is satisfied that the
evidence produced before him while giving rise to some
suspicion but not grave suspicion against the accused, he
will be fully within his right to discharge the accused.
12. The Hon’ble Apex Court in the case of State of
Gujarat vs. Dilipsinh Kishorsinh Rao, reported in
MANU/SC/1113 2023, adverting to the earlier
propositions of law in its earlier decisions in the cases of
State of Tamil Nadu vs. N.Suresh Rajan and ors, reported
in (2014) 11 SCC 709 and The State of Maharashtra vs.
Som Nath Thapa, reported in (1996) 4 SCC 659 and The
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11
State of MP Vs. Mohan Lal Soni, reported in (2000) 6 SCC
338, has held as under:
“10. It is settled principle of law that at the stage of
considering an application for discharge the court
must proceed on an assumption that the material
which has been brought on record by the
prosecution is true and evaluate said material in
order to determine whether the facts emerging
from the material taken on its face value, disclose
the existence of the ingredients necessary of the
offence alleged. This Court in State of Tamil Nadu
vs. N.Suresh Rajan and ors, (2014) 11 SCC 709
adverting to the earlier propositions of law laid
down on this subject has held:
“29. We have bestowed our consideration to
the rival submissions and the submissions
made by Mr. Ranjit Kumar commend us. True
it is that at the time of consideration of the
applications for discharge, the court cannot
act as a mouthpiece of the prosecution or act
as a post office and may sift evidence in order…..12/-
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12
to find out whether or not the allegations
made are groundless so as to pass an order of
discharge. It is trite that at the stage of
consideration of an application for discharge,
the court has to proceed with an assumption
that the materials brought on record by the
prosecution are true and evaluate the said
materials and documents with a view to find
out whether the facts emerging therefrom
taken at their face value disclose the existence
of all the ingredients constituting the alleged
offence. At this stage, probative value of the
materials has to be gone into and the court is
not expected to go deep into the matter and
hold that the materials would not warrant a
conviction. In our opinion, what needs to be
considered is whether there is a ground for
presuming that the offence has been
committed and not whether a ground for
convicting the accused has been made out. To
put it differently, if the court thinks that the
accused might have committed the offence on
the basis of the materials on record on its
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13
probative value, it can frame the charge;
though for conviction, the court has to come
to the conclusion that the accused has
committed the offence. The law does not
permit a mini trial at this stage.”
13. Thus, the defence of the accused is not to be
looked into at this stage when the application is filed for
discharge.
14. What is to be seen is that, whether there is a
sufficient material to frame the charge. Even, strong
suspicion is sufficient to frame the charge.
15. Thus, the defence of the accused is not to be
looked into at this stage when the application is filed for
discharge.
16. The expression ‘the record of the case’ used in
Section 227 of the Code of Criminal Procedure is to be
understood as documents and material, if any, produced
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14
by the prosecution. The provisions of the CrPC do not
give any right to the accused to produce any document at
the stage of framing of the charge. The submissions of
the accused are to be confined to the material produced
by the investigating agency. The primary consideration at
the stage of framing of charge is the test of existence of a
prima facie case, and at this stage, the probative value of
materials on record need not be gone into.
17. At the stage of entertaining the application for
discharge under Section 227 of the CrPC, the court cannot
analyze or direct the evidence of the prosecution and
defence or the points or possible cross examination of the
defence. The case of the prosecution is to be accepted as it
is.
18. With the above principle, if the material in the
present case collected during the investigation is
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15
discussed, there is no dispute as to the fact that the
accused was serving as Police Inspector at the relevant
time and accused No.2 was serving as his Writer.
Complainant Apparao was also serving as a Police
Constable and was arraigned as an accused in connection
with committal of the suicide by another Police Constable
Dattatraya Khadse. As per his allegations, while releasing
him on anticipatory bail, he was directed to attend the
police station. Accordingly, he was attending the police
station. At the relevant time, the accused other co-
accused demanded from him gratification amount on
assurance that they would help him in the investigation.
On 15.6.2018, on behalf of the accused, co-accused Vijay
Rathod has demanded the amount. As the complainant
was not willing to pay the amount, he approached the
Anti Corruption Bureau at Amravati and lodged the
report. After registration of the crime, the investigating
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officer has verified genuineness of the allegation by
recording communication between the complainant and
both the accused. From the said communication, it
revealed that both the accused demanded the amount
towards gratification and the co-accused has accepted the
same. During the trap, the co-accused was found
accepting the amount. The communication recorded in
verification panchanama discloses that the accused has
also demanded the amount and asked the complainant to
do whatever the co-accused is asking to do and, therefore,
after obtaining the sanction, the chargesheet was filed
against the accused.
19. Thus, as far as the demand is concerned, the ample
material is on record to show involvement of the accused.
The specific communication between the complainant and
the accused recorded during verification panchanama in a
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17
digital voice recorder clearly shows his involvement in the
offence.
20. In rest of the decisions relied upon by learned
counsel for the accused observations are, the demand and
acceptance is after full-fledged trial.
21. As observed earlier, at this stage, whether material
to be considered is sufficient to frame charge, the court
cannot analyze or direct the evidence of the prosecution
and defence or the points or possible cross examination of
the defence. The case of the prosecution is to be accepted
as it is and, therefore, decisions supra are not helpful to
the accused.
22. The another ground raised by the accused is that
the investigation is not carried out in view of Section 17
of the said Act. As per the submissions, only the Deputy
Superintendent of Police can investigate any offence
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18
under the said Act without order of the Metropolitan
Magistrate or the Magistrate of First Class, as the case
may, or make arrest therefor without warrant. Section 17
of the said Act deals with persons authorized to
investigate. The said Section 17, is reproduced
hereinunder for reference:
“17. Persons authorized to investigate. –
Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974),
no police officer below the rank,
(a) in the case of the Delhi Special Police
Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay,
Calcutta, Madras and Ahmedabad and in any
other metropolitan area notified as such under
sub-section (1) of section 8 of the Code of
Criminal Procedure, 1973 (2 of 1974), of an
Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of
Police or a police officer of equivalent rank,
shall investigate any offence punishable under…..19/-
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19
this Act without the order of a Metropolitan
Magistrate or a Magistrate of the first class, as
the case may be, or make any arrest therefor
without a warrant:
Provided that if a police officer not below the
rank of an Inspector of Police is authorised by
the State Government in this behalf by general
or special order, he may also investigate any
such offence without the order of a
Metropolitan Magistrate or a Magistrate of the
first class, as the case may be, or makes arrest
therefor without a warrant:
Provided further that an offence referred to in
[clause (b) of sub-section (1)] [Substituted
‘clause (e) of sub-section (1)’ by Act No. 16 of
2018, dated 26.7.2018.] of section 13 shall not
be investigated without the order of a police
officer not below the rank of a Superintendent
of Police”s.
23. As far as the present case is concerned, Section
17(c) of the said Act is relevant which shows that
elsewhere, of a Deputy Superintendent of Police or a
police officer of equivalent rank, shall investigate any
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20
offence punishable under this Act without the order of a
Metropolitan Magistrate or a Magistrate of the first class,
as the case may be, or make any arrest therefor without a
warrant
24. Admittedly, in the present case, the entire
investigation is carried out by the Police Inspector and
only the chargesheet is filed by the Superintendent of
Police.
25. Learned Additional Public Prosecutor for the State
placed reliance on the order dated 19.4.2019 issued by
Home Department, Government of Maharashtra. The said
order specifically shows that in exercise of the powers
conferred by the first proviso to Section 17 of the said
Act, the Government of Maharashtra authorizes all the
Inspectors of Police in the Anti Corruption Bureau,
…..21/-
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21
Maharashtra State to investigate any offence under the
said Act and to make arrest therefor without a warrant.
26. The above said aspect is also dealt with by the
Hon’ble Apex Court in the case of in the case of the State
Inspector of Police Visakhapatnam vs. Surya Sankaram
Karri, reported in AIR 2007 SC (SUPP) 1860 wherein it
has been observed that when a statutory functionary
passes an order, that too authorizing a person to carry out
a public function like investigation into an offence, an
order in writing was required to be passed. A statutory
functionary must act in a manner laid down in the
statute. Issuance of an oral direction is not contemplated
under the Act. Such a concept is unknown in
Administrative Law. The statutory functionaries are
enjoined with a duty to pass written orders.
…..22/-
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22
27. In view of the above observations, in the present
case, the order dated 19.4.1989 issued by the Home
Department, Government of Maharashtra shows that the
Government of Maharashtra authorizes all the Inspectors
of Police in the Anti Corruption Bureau, Maharashtra
State to investigate any offence under the said Act and to
make arrest therefor without a warrant.
28. Thus, in view of first proviso to Section 17 of the
said Act, the Maharashtra State Government by issuing
written order authorized officers of the rank of Inspector
of Police to investigate the offence without the order of
the Metropolitan Magistrate or the Magistrate of First
Class.
29. Thus, applying the principles narrowed down by
the Hon’ble Apex Court and after sifting and weighing the
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evidence on record, there is a sufficient material against
the accused to frame the charge against him.
30. In this view of the matter, the order dated
20.4.2024 passed below Exh.13 by learned Additional
District Judge, Washim in Special ACB Case No.26/2019
whereby the application for discharge is rejected is legal
and proper one and no interference is called for. As such,
the revision being devoid of merits is liable to be
dismissed and the same is dismissed.
Revision stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …../-
Date: 12/03/2025 11:23:52
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