Sopan vs The State Of Maharashtra
2013 Latest Caselaw 154 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      CRIMINAL APPELLATE JURISDICTION




                                                                                   
                    CRIMINAL WRIT PETITION NO.2341 OF 2013




                                                           
    Sopan s/o.Bajirao Kekaye.                                       ...Petitioner
          versus
    The State of Maharashtra.                                       ...Respondent




                                                          
                                             ---

    Mr.C.P.Sengaonkar i/b. Mr.Runal Watulkar, for Petitioner.




                                              
    Mr.S.S.Pednekar, APP for Respondent-State.
                               ig            ---

                                              CORAM : M.L.TAHALIYANI, J.

DATED : 18th NOVEMBER, 2013

---

P.C. :

Admitted. Heard finally.

2. Heard learned Counsel Mr.C.P.Sengaonkar for petitioner and learned

Addl.P.P. Mr.S.S.Pednekar for Respondent-State.

3. This criminal writ petition impugns the order directing issuance of

process against the petitioner at the instance of respondent, directing the applicant

to answer the charges for the offence punishable under Sections 7, 13(1)(d) read

with Section 13(2) of Prevention of Corruption Act. The impugned order runs as

under:-

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"APP Smt.Jamdar for ACB present. H.C.Shri.Shelar attached to ACB present. IO Mr.Bagal is present.

Heard Ld. APP as well as IO. Perused the chargesheet. It appears that previously accused tried

by this court for the same offences but this court had acquitted him on the ground that the sanction has been accorded by the incompetent authority as well as after

appreciating other evidence on record in respect of alleged incident.

In the case of 'State of Karnataka

through CBI V/s. Shri.Nagraja Swami', Hon'ble Apex

Court has observed that even if a judgment either of acquittal or conviction is rendered by the court when

the sanction is invalid, then the said judgment is null and void and no course of law for want of jurisdiction because of invalid sanction and in such case after

obtaining a fresh sanction accused can be chargesheeted again.

Now IO has filed the chargesheet against the accused after obtaining fresh sanction from the competent authority for the prosecution of accused.

Therefore, in view of this factual development and the observation of the Hon'ble Apex Court the accused can be tried again by this court. Hence, issue process

against accused for the offences punishable u/ss 7, 13(1)(d) r/w. 13(d) of PC Act.

Adjd for appearance of accused to 25.02.2013."

4. Learned Counsel Mr.Sengaonkar has submitted that the petitioner

was earlier tried for the same offence in Sessions Case no.49 of 2003 by the

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Special Judge and was acquitted of the charges framed against him. It is

submitted by the learned Counsel that reliance placed by the learned Trial Court

on the case reported at (2005)8 Supreme Court Cases 370 (State of Karnataka

through CBI Vs. C.Nagarajaswamy) was misconceived. The learned Counsel has

submitted that in the case before Hon'ble Supreme Court though the trial was held

and 12 witnesses were examined, the learned Trial Judge had discharged the

accused for want of proper sanction. The issues framed in the said case by the

Trial Judge were as under:-

" 1. Whether the prosecution has proved that the

sanction accorded for the prosecution of the accused in this case is a valid sanction ?

2. Whether the prosecution has further proved beyond any reasonable doubt that the accused has committed the offences punishable under Section 7

and under Section 13(1)(d) read with Section 13(2) of

the Prevention of Corruption Act,1988 ?"

The learned Trial Judge had answered issue no.1 in negative and thereafter, did

not find it necessary to give any findings on issue no.2. Since issue no.1 was

answered in negative, the learned Trial Judge discharged the accused. The

Hon'ble Supreme Court was of the view that since the second issue was not

decided on merit, it was permissible to file fresh chargesheet after obtaining valid

sanction.

5. In the present case also the learned Trial Judge has come to the

conclusion that the sanction granted by the Deputy Commissioner of Police,

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Mumbai was not valid. However, what is pertinent to note is that the

learned Trial Judge has also given findings in respect of all the points for

determination framed by him. The points for determination framed by the learned

Trial Judge can be reproduced as under:-

"1. Whether the prosecution has proved that the accused, at about 3.00 p.m. on 2.10.2002, at Kandivali

traffic chowky, being a public servant, demanded and

attempted to obtain Rs.200/- from the complainant, as a gratification, other than legal remuneration, as a

motive or reward, for returning his driving licence and for not recovering fine amount from him or for not taking action against him under Motor Vehicles Act

and thereby committed an offence punishable under sec.7 of the Prevention of Corruption Act ?

2. Whether the prosecution has proved that the accused, at about 5.00 p.m. on 3.10.2002, at traffic

control branch, Kandivali division, Mumbai, demanded and accepted Rs.200/- from the complainant, as a gratification as a move or reward for

favouring him and thereby committed an offence punishable under sec.7 of the Prevention of Corruption Act ?

3. Whether the prosecution has proved that the accused committed criminal misconduct by abusing her position as public servant by demanding and accepting Rs.200/- from the complainant and thereby

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committed an offence punishable under sec.13(1)(d) r/w. 13(2) of the Prevention of Corruption Act ?

4. Whether the prosecution has proved that

sanction (Ex.19) accorded by Deputy Commissioner of Police, LA-II, Mumbai to prosecute the accused is legal and proper ?

5. What order ?"

Point nos.1 to 4 were answered in negative, and therefore, the petitioner was

acquitted.

6. As such it is abundantly clear that the ratio laid down by the Hon'ble

Supreme Court in the case of "State of Karnataka through CBI Vs.

C.Nagarajaswamy" could not have been made applicable to the case before the

Trial Judge. Since the petitioner was acquitted on merits as well as for want of

appropriate sanction, filing of fresh chargesheet after obtaining fresh sanction, to

my mind, amounted to double jeopardy and was hit by Section 300 of Cr.P.C. The

order of learned Trial Judge cannot be sustained and needs to be set aside. Hence,

I pass the following order:-

ORDER

(i) The order of the learned Trial Court asking the petitioner to answer

the charges for the offences punishable under Sections 7 and 13(1)(d) read with

Section 13(2) of Prevention of Corruption Act, is set aside.

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    (ii)    The petitioner is discharged of the said offences.

(iii) Writ petition, accordingly, stands disposed of.

(M.L.TAHALIYANI, J.)