Prashant Jankar vs The State Of Maharashtra
2021 Latest Caselaw 17371 Bom

                                                Cri.REVN-307-2019.doc




       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

                Criminal Revision Application No. 307 / 2019

Prashant Jankar
Age : 35 years, Occ.-Service,
Residing at F2/102, Vinayak Thakur Complex,
Opp. Vimal Diary, Navghar Fetak Road,
Bhaindar (East) - 401105.                                     .. Applicant
               Versus.
The State of Maharashtra                                     .. Respondent


                                  ****

Mr. Sunil Kale i/by Mr. Omkar Nagwekar, Advocate for the Applicant. Mr. A.R. Patil, APP for State.

                                  ****

                         CORAM                : SANDEEP K. SHINDE J.
                         RESERVED ON          : 26th NOVEMBER, 2021.
                         PRONOUNCED ON : 14th DECEMBER, 2021.

Judgment : -

1.     Rule.

2. Rule made returnable forthwith. Heard. finally with the consent of the

parties.

Cri.REVN-307-2019.doc

3. This Revision Application under Section 397 read with 401 of the Code

of Criminal Procedure, 1973 questions correctness and legality of the order

dated 3rd April, 2019 below Exhibit - 7 in Special ACB Case No. 21/2013

passed by the Additional Sessions Judge, Thane.

4. Background facts :

Applicant is accused in Special ACB Case No. 21/2013. He was an employee

of Mira Bhaindar Municipal Corporation. Anti Corruption Bureau has

prosecuted him for alleged commission of offence under Section 7 r/w 13(1)

(d) and 13 (2) of the Prevention of Corruption Act (PC Act for short).

Applicant would assert that being a Public Servant, the cognizance offence

under the P.C. Act can be taken, only upon prior sanction by the authority

competent to remove him from the office, as contemplated under Section 19

(3) of the P.C. Act. His contention is that sanction dated 7 th October, 2013

accorded by the Commissioner, Mira Bhaindar Municipal Corporation, was not

a valid sanction. Reason is, that Commissioner is not an authority to remove

the Applicant from the office. His case is that though Section 53 of the

Maharashtra Municipal Corporation Act (said Act for short) has been

amended, but there is no corresponding amendment to Section 56 of the said

Cri.REVN-307-2019.doc

act, which provides for imposition of penalties including the penalty to remove

from the office. On this premise, he moved an application and urged before

the trial Court, that since issue as to validity of sanction goes to the root of the

matter and affects the jurisdiction of the Court to try the accused, it was

desirable to decide the issue at the threshold. As such the Applicant prayed ;

that "Prosecution be directed to lead evidence to prove the sanction and

question as to validity of sanction, be decided first before deciding any other

question."

5. As to competency of Commissioner, Mira Bhaindar Municipal

Corporation, to grant sanction under Section 19 of the P.C. Act, it may be

stated that a combined reading of Sub-section (3) and (4) of Section 19 of the

P.C. Act, 1988, makes the position clear that, notwithstanding anything

contained in the Code of Criminal Procedure, 1973; no finding, sentence and

order passed by a special Judge shall be reversed or altered by a court in appeal,

confirmation or revision on the ground of the absence of, or any error,

omission or irregularity in, the sanction required under sub-section (1), unless

in the opinion of that court, a failure of justice has in fact been occasioned

thereby. Clause (b) of Sub-section 3 of Section 19 shows that 'no court shall

Cri.REVN-307-2019.doc

stay the proceedings under this Act on the ground of any error, omission or

irregularity in the sanction granted by the authority, unless it is satisfied that

such error, omission or irregularity has resulted in a failure of justice'. The

"explanation" for the purposes of Section 19 is that error includes 'competency

of authority to grant sanction.' (emphasis supplied)

6. Here in this case, Applicant would contend that since 'validity of

sanction' can be decided at any stage of the proceedings, it be decided' at the

threshold, before deciding any other question. Applicant's contention requires

no consideration. It is to be rejected for the following reasons;

(i) in terms of clause (b) of Section 3 of Section 19 read with explanation 'error'

includes incompetency of authority to grant sanction and incompetency must

result in failure of justice;

(ii) whether incompetency of authority to grant sanction has resulted in a

failure of justice or not, cannot be decided at threshold and therefore more

appropriate stage for reaching the said conclusion would be only after evidence

in the case, as held in case of State of Bihar and Others Vs. Rajmangal Ram;

(2014) 11 SCC 388.

(iii) In the case of Prakash Singh Badal Vs. State of Punjab (2007) 1 SCC 1;

Cri.REVN-307-2019.doc

the Hon'ble Apex Court has held that Section 19(1) of the P.C. Act is a matter

of procedure and does not go to the root of jurisdiction.

(iv) In fact three Judge Bench, in the case of State of M.P. Vs. Virendra Kumar

Tripathi, (2009) 15 SCC 533; while considering the issue, namely the validity

of the grant of sanction by the Additional Secretary of the Department of Law

and Legislative Affairs of the Government of Madhya Pradesh instead of the

authority in the parent department, the Hon'ble Apex Court has held that in

view of Section 19(3) of the P.C. Act, interdicting a criminal proceeding mid-

course on ground of invalidity of the sanction order will not be appropriate

unless the Court reaches the conclusion that failure of justice had been

occasioned by any such error, omission or irregularity in the sanction.

(v) that failure of justice can be established not at the stage of framing of

charge but only after the trial has commenced and the evidence is led.

7. In that view of the matter and for the reasons above, Criminal Revision

Application deserves no consideration. It is dismissed. Rule is discharged.

                                                      (SANDEEP K. SHINDE, J.)
                                   Digitally signed
                        MOHAMMAD   by MOHAMMAD
                                   NAJEEB
Najeeb                  NAJEEB     MOHAMMAD
                        MOHAMMAD   QAYYUM
                        QAYYUM     Date: 2021.12.14
                                   14:24:59 +0530