Maganlal Namdeorao Patil vs State Of Maharashtra, Through Dy. ...
2016 Latest Caselaw 547 Bom

     Judgment                                           1                                   apl87.15.odt




                                                                                     
                   
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                NAGPUR BENCH, NAGPUR.




                                                            
                      CRIMINAL APPLICATION (APL) NO. 87  OF 2015




                                                           
     Maganlal Namdeorao Patil,
     aged about 67 years, Occupation :
     Retired, R/o. 82, Shastri Nagar Jalgaon, 




                                             
     Tq. and Distt. Jalgaon.
                              ig                                            ....  APPLICANT.

                                        //  VERSUS //
                            
     State of Maharashtra through
     Dy. Supdt. of Police, 
     Anti Corruption Bureau,
     Akola, Tq. and Ditt. Akola. 
      


                                                 .... NON-APPLICANT
                                                                    . 
      ______________________________________________________________
   



     Shri N.R.Saboo, Advocate for Applicant.  
     Shri A.D.Sonak, A.P.P. for Non-applicant. 
     ______________________________________________________________





                                  CORAM : Z.A.HAQ, J.

DATED : MARCH 11, 2016.

ORAL JUDGMENT :

1. Heard learned advocates for the respective parties.

2. RULE. Rule made returnable forthwith.

Judgment 2 apl87.15.odt

3. The applicant is being prosecuted for the offence

punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of

Corruption Act, 1988. The applicant filed application (Exh.18)

contending that the sanction granted under Section 19 of the

Prevention of Corruption Act is not legal and therefore, the prosecution

of the applicant is not proper and it has to be dismissed. The learned

Special Judge, by the order dated 1st March, 2011, observed that the

record shows that all the papers were sent by the officer of Anti

Corruption Bureau to the sanctioning Authority and after verifying the

entire record sanction was accorded by the sanctioning Authority

-Managing Director of the Federation. The applicant raised objection

that the Managing Director was not the appropriate authority to grant

sanction. The learned Special Judge recorded that this objection will

have to be considered at the trial after giving opportunity to the

sanctioning Authority to establish that the sanction was properly

accorded. The learned Special Judge dismissed the application.

4. The applicant filed another application (Exh.46) stating

that the submissions made on behalf of the applicant relying on the

judgment given in the case of State by Police Inspector Vs. T. Venkatesh

Judgment 3 apl87.15.odt

Murthy, reported in AIR 2004 SC 5117 were not considered and

therefore, the issue raised in the application (Exh.18) may be

reconsidered. The application (Exh.46) is dismissed by the learned

Special Judge by the impugned order. The applicant, being aggrieved

in the matter has field this application under Section 482 of the Code of

Criminal Procedure and under Article 227 of the Constitution of India.

5. Shri N.R. Saboo, learned advocate for the applicant has

submitted that the issue regarding legality of sanction has to be

considered and decided at the threshold as soon as it is raised and

adjudication cannot be deferred. It is further submitted that the issue

of legality of sanction under Section 19 of the Prevention of Corruption

Act, 1988 can be raised at any stage. In support of the submission

reliance is placed in the judgment given in the case of Nanjappa vs.

State of Karnataka, reported in 2015(8) SCALE 171 : 2015 ALL MR

(Cri) 3318.

It is submitted that the order passed by the learned Special

Judge on the application (Exh.18) is unsustainable and it has to be set

aside.

Judgment 4 apl87.15.odt

6. Shri A.D. Sonak, learned A.P.P. has supported the impugned

order. It is submitted that the applicant had filed application (Exh.46)

only to delay the prosecution. The learned A.P.P. submitted that the

case is pending since 2005 and it is only because of the dilatory tactics

adopted by the applicant. It is prayed that the application be

dismissed.

7.

After hearing the learned advocate for the applicant and

the learned A.P.P, I find that the impugned order does not suffer from

any patent illegality or error of jurisdiction.

The applicant raised an issue of fact that the Managing

Director of the Federation is not competent authority to accord sanction

under Section 19 of the Prevention of Corruption Act, 1988 to

prosecute the applicant who was working as Deputy Manager. The

learned Special Judge recorded that this issue will have to be

considered at the trial after giving opportunity to the sanctioning

Authority to establish that it is competent to accord sanction under

Section 19 of the Prevention of Corruption Act, 1988.

In the judgment given in the case of State by Police

Inspector Vs. T. Venkatesh Murthy (supra) the evidence of witnesses was

Judgment 5 apl87.15.odt

recorded and on that stage the Police Prosecutor filed application

praying that the question relating to validity of the sanction for

prosecution was required to be adjudicated first. The trial court

concluded that the sanction accorded by the Superintending Engineer

in that case was not sufficient to prosecute and discharge the accused.

The order was challenged before the Karnataka High Court in revision

which was dismissed. The matter was taken up to the Supreme Court

and while considering the matter, the Hon'ble Supreme Court

concluded that the validity of the proceedings would not be affected

only because there is any omission, error or irregularity in the matter of

according sanction, unless such omission, error or irregularity has

resulted in failure of justice. The Hon'ble Supreme Court set aside the

orders passed by the trial Court and the High Court and remitted the

matter to the trial Court to record findings in terms of clause (b) of sub-

section (3) and in terms of sub-section (4) of Section 19 of the

Prevention of Corruption Act, 1988. The above judgment does not

support the submission made on behalf of the applicant.

In the judgment given in the case of Nanjappa Vs. State of

Karnataka (supra) the Hon'ble Supreme Court has laid down that the

question regarding validity of sanction can be raised at any stage of the

Judgment 6 apl87.15.odt

proceedings. But again the effect of Section 19(3) of the Prevention of

Corruption Act, 1988 is dealt with and it is laid down that the order

passed by the Special Judge need not be interfered with on the ground

that the sanction is bad, save and except in cases where the appellate

or revisional Court finds that failure of justice has occurred by such

invalidity. Again this judgment does not support the submission made

on behalf of the applicant that the adjudication on the point of legality

of the sanction under Section 19 of the Prevention of Corruption Act,

1988 cannot be deferred.

8. In my view, the learned Special Judge has properly

exercised the jurisdiction. I see no reason to interfere with the

impugned order exercising inherent powers under Section 482 of the

Code of Criminal Procedure or exercising jurisdiction under Article 227

of the Constitution of India.

The application is dismissed.

As the prosecution is pending since more than 10 years

and as the applicant is aged about 68 years, it would be appropriate

that the learned Special Judge takes-up the case on priority.

JUDGE RRaut..