Janardhan Madhavrao Udmale And ... vs The State Of Maharashtra
2021 Latest Caselaw 194 Bom

                                                                                1-CRI-REVN-ST-2085-2020.doc


                       Shailaja
                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             CRIMINAL APPELLATE JURISDICTION
                          CRIMINAL REVISION APPLICATION [STAMP] NO.2085 OF 2020


                       1.           Janardhan Madhavrao Udmale          ]
                                    Age: 67 years, Occ: Retired,        ]
                                    Currently r/at Flat No.9, Regancy   ]
                                    Heritage, D. Prabhag, Near          ]
                                    Kalewadi Fata, Wakad, Pune - 27.    ]

                       2.           Krushnath Vishnu Yadav              ]
                                    Age: 62 years, Occ: Retired,        ]
                                    Currently r/at Shree Bungalow,      ]
                                    Opp. Abhinav Pharmacy College,      ]
                                    Narhegaon, Pune - 411 041.          ]

                       3.           Baburao Bhau Shinde                 ]
                                    Age: 67 years, Occ: Retired,        ]
                                    Currently r/at. At Post Pokhale,    ]
                                    Taluka. Panhala, Dist. Kolhapur,    ]

                       4.           Prakash Bhagwatrao Desai,           ]
                                    Age: 71 years, Occ: Retired,        ]
                                    R/at. B/1/513, Plot No.21,          ]
                                    Rushabh Sneh, Nalavade Colony,      ]
                                    Samratnagar, Rajarampuri,           ]
                                    Kolhapur - 416 008.                 ]

                       5.           Jamil Ahmed Hiraji Shaikh,          ]
                                    Age: 68 years, Occ: Retired,        ]
                                    R/at. Aisha Empire, B-306,          ]
                                    Handewadi Road, Hadapsar-           ]
                                    411 028.                            ]

                       6.           Shekhappa Annu Koli                 ]
                                    Age: 58 years, Occ: Retired,        ]
                                    R/at. At Post Jat, Taluka-Jat,      ]
                                    District: Sangli.                   ]       Applicants
                                                                            [Accused No.1 to 6]


Shailaja S.   Digitally signed by Shailaja

                                                                                                1 of 25
              S. Halkude

Halkude       Date: 2021.01.07 15:12:32
              +0530
                                                 1-CRI-REVN-ST-2085-2020.doc


            Versus

The State of Maharashtra                  ]
(Through Sr. Inspector of Police),        ]
Anti Corruption Bureau, Satara.           ]    Respondent

                                 .....
Mr. Abhijeet Desai a/w Kuldip Pawar, for Applicants.
Ms. S.V. Sonavane, A.P.P, for Respondent-State.
                                 .....
            CORAM                   : PRITHVIRAJ K. CHAVAN, J.

            RESERVED ON             : 14th December, 2020.
           PRONOUNCED ON             : 6th JANUARY, 2021.
                                     [Through Video Conferencing]
P.C.


1.       Rule, returnable forthwith.       Heard finally with the

consent of the learned Counsel for the applicants and the learned

A.P.P.

2. Learned A.P.P waives service on behalf of respondent-

State.

3. Challenge in this revision application is to an order dated

1st July, 2020 below Exhibit 32 in Special Case A.C.B No.8 of 2013

passed by the learned Special Judge Satara under the provisions of

the Prevention of Corruption Act, 1988 (for short 'Act') rejecting an

application of discharge. The applicants are being prosecuted of

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the offence punishable under sections 13(1) (d) and 13 (2) of the

Act as well as under sections 465, 468, 471, 201 r/w section 34 of

the Indian Penal Code (for short 'I.P.C').

4. Facts germane for disposal of the revision application are

as follows;

The Maharashtra State Regional Transport Committee

vide it's letter No. Rap/Astha/UR/610 proposed to appoint Bus

Drivers in accordance with G.R. No.52/80 on 16 th February, 2004.

Two Regional Selection Committees were formed for selection and

recruitment of Drivers in Satara District. The Committees were

formed on 8th June, 2004. Applicant No.1-Janardhan Udmale was

the President of the first Committee whereas applicants No.2-

Krushnath Vishnu Yadav and applicant No.3-Baburao Bhau Shinde

were the committee members. The second committee was headed

by applicant No.4-Prakash Bhagwatrao Desai whereas applicants

No.5-Jamil Ahmed Hiraji Shaikh and 6-Shekhappa Annu Koli

were its members. The work assigned to those committees was for

the purpose of recruitment of Bus Drivers in Maharashtra State

Regional Transport Corporation (for short 'MSTRC') for Satara

District.

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On 16th May, 2007, Superintendent of Police, Anti

Corruption Bureau Satara issued a letter to the first informant Shri

U.B Afale, Police Inspector, Anti Corruption Bureau Satara. On the

basis of the said letter, an F.I.R bearing C.R. No.60 of 2007 was

registered against applicants No.1 to 6 for the offences punishable

under sections 13 (1) (d) and 13 (1) (2) of the Act at Satara Police

Station. There were allegations of overwriting in Annexure-B

forms and it has further been alleged that the applicants used

unsigned Annexure-B forms as genuine documents while assigning

the marks to the candidates. There were allegations of

miscalculations of the marks also.

On 5th August, 2008, Administrative Director made a written

representation to the State Government that there was no

commission of any illegal act while conducting driving test and,

therefore, requested the State Government to withdraw the

complaint registered against the applicants. The State

Government, therefore, rejected the permission under section 19

(1) (c) of the Act to prosecute the applicants, meaning thereby, the

sanction under section 19 (1) (c) of the Act was rejected by the

Deputy Chairman and Director of MSRTC. On 25th November,

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2010, Deputy Superintendent, Anti Corruption Bureau, Satara

submitted an application to the Special Court, inter alia, praying

for release of the applicants under section 169 of the Criminal

Procedure Code and for an order of grant of "A" Summary". By an

order dated 13th December, 2010, "A" Summary report was

accepted by the learned Judge. Thereafter, a fresh sanction under

section 19 (1) (c) was accorded by the Competent Authority on 6 th

February, 2012. After completion of the investigation, a charge-

sheet bearing No.18 of 2013 came to be filed in the Court of

Sessions, Satara. The applicants moved an application under

section 227 of the Cr. P.C seeking their discharge from the offence

before the Sessions Judge on 24 th February, 2016. The respondent

filed it's reply on 10th February, 2017. The learned Special Judge,

by the impugned order, rejected the application for discharge filed

by the applicants and, therefore, the applicants are before this

Court.

5. I heard Mr. Desai, learned Counsel for the applicants at

length as well as Ms. Sonawane, the learned A.P.P. I have also

meticulously gone through the record as well as the order

impugned.

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6. Mr. Desai, learned Counsel for the applicants would

argue that there is absolutely no material on record, much less,

any evidence of monetary transaction or obtaining any pecuniary

advantage or valuable things by any of the applicants from the

candidates whose driving tests were conducted by them. In short,

he contends that there is no iota of evidence attracting the

ingredients of sections 13 (1) (d) and 13 (1) (2) of the Act. Mr.

Desai submits that only allegations against the applicants are that

there are over writings and miscalculations which are only due to

the fact that the applicants were giving marks in a moving bus

while conducting the driving test of the candidates which,

according to him is quite natural.

7. Mr. Desai would also argue that earlier sanction was

refused by the Competent Authority pursuant to which even 'A'

Summary report has been filed which was accepted by the

Competent Authority and, therefore, this is a fit case of discharge.

While assailing the impugned order, Mr. Desai contends that the

learned Special Judge has not at all discussed anything qua section

19 of the Act though the learned Judge admits that earlier, the

sanction was refused. Nothing came to be recovered during the

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house search of the applicants. There is no statement indicating

their complicity in the alleged act of indulging into corrupt or

illegal means. None of the applicants had abused their position as

public servant and thereby, obtained anything for themselves or for

any other person or gained any pecuniary advantage.

8. In support of his contention, Mr. Desai has placed

reliance upon the following judgments;

(a) C.K. Jaffer Shariff Vs. State (through A.C.B), (2013) 1 Supreme Court Cases 205;

(b) Deepak Surana and others. Vs. State of Madhya Pradesh, (2016) 12 Supreme Court Cases 380;

(c) Nanjappa Vs. State of Karnataka, (2015) 14 Supreme Court Cases 186;

(d) Lalita Kumari Vs. Government of U.P and others, (2011) 11 Supreme Court Cases 331.

9. The learned A.P.P while countering submissions of Mr.

Desai vehemently urged to reject the revision application by

contending that not only there are deliberate over writings and

erasions but also miscalculations of the marks given to the drivers,

meaning thereby, those who were less skillful came to be recruited

by allocating more marks whereas those were kept on the waiting

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list or not recruited despite securing more marks. The learned

A.P.P drew my attention to a document dated 2 nd July, 2010 which

is the first order refusing sanction to prosecute the applicants.

Subsequent sanction was accorded in respect of applicant No.2 -

Krushnath Vishnu Yadav and applicant No.6-Shekhappa Annu Koli

as they were in service. It is contended that there was a mass scale

scam and corruption in recruitment of the drivers. She asserted

that the sanction dated 6 th February, 2012 was in existence at the

time of passing the impugned order. It is submitted that out of six

applicants, five were in service when the first sanction was refused

on 15th October, 2009. Applicant No.4 was not in service as he was

retired on 31st October, 2007.

10. In support of her submission, the learned A.P.P has

placed reliance on a judgment in the case of Station House Officer

CBI/ACB/Bangalore Vs. B.A. Srinivasan and another, (2020) 2

Supreme Court Cases 153. The legal position on the point of

discharge is well settled. What is required to be seen is as to

whether there exists a prima facie case. At the stage of framing

charge existence of sufficient ground for presuming that accused

has committed an offence is to be seen. The object of sections 227

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and 228 of the Cr. P.C is restricted only to the extent of satisfying

the Court that the accusation is not false or frivolous. It is not

expected that there should be strict proof while evaluating the

material placed on record. The Court is also not expected to see

whether case would end into conviction or acquittal. After having

considered the documents and material placed on record by the

prosecution, if it is prima facie noticed that an offence is a

probable consequence, a charge can be framed. It is equally

important to note that probative value of the evidence tendered on

record cannot be gone into as has been tried to be shown by Mr.

Desai, learned Counsel for the applicants.

11. As per the complaint, 227 vacant posts of Junior

Drivers were to be filled up for which two committees were

constituted. In all, 2489 applications were received till 31 st May,

2004. Out of those applications, 1485 candidates were called and

after scrutiny of their documents, 1025 candidates were found

eligible for the test. First Committee headed by applicant No.1 was

assigned with 483 candidates for scrutiny. Out of those

candidates, 331 found eligible. 94 candidates were found

ineligible and 58 candidates remained absent.

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12. Second committee was constituted on 15 th June, 2004

comprising with applicants No.4 to 6. This Committee declared

another 360 candidates eligible. Reports of both committees were

submitted. In all, 691 candidates were successful. Their driving

tests were conducted from 28th July, 2004 to 31st July, 2004. On

the basis of the marks given, 170 candidates were selected finally

and 17 candidates were kept on waiting list.

13. Senior Security Officer of MSRTC, Solapur, namely

G.D. Gaikwad had conducted an enquiry in respect of

malpractices/corruption in the selection. During the enquiry, it

had come on record that there were erasions and over writings in

the marks given to some of the candidates and, therefore, an F.I.R

came to be registered by Uday Afale, then A.C.B, Satara.

14. Deputy Chairman and Director of MSRTC being

Competent Authority, refused sanction under section 19 (1) (c) of

the Act by his communication dated 15th October, 2009. A perusal

of the said communication, inter alia, reveals that prima facie

there was no material or evidence on record that the applicants

had indulged in any corrupt or illegal means or have obtained for

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themselves or for any other persons any valuable thing or gained

any pecuniary advantage. Consequently, an application under

section 169 of Cr. P.C was moved by Deputy Superintendent,

Satara before the learned Judge seeking 'A' Summary report which

subsequently came to be granted by the Special Court.

15. It is pertinent to note that thereafter on 6 th February,

2012, Deputy Chairman had again scrutinized all the papers and

documents including the mark list shown in annexure 'B'

indicating several alterations, erasions and over writings in the

marks of the candidates. It appears that subsequently there was

due and proper application of mind by the Competent Authority. It

was noticed that the applicants Janardhan Udmale, Baburao

Shinde, Prakash Desai and Jamil Shaikh had, since retired from

the service were not 'public servants' and, therefore, no sanction

was accorded to prosecute them. Sanction was accorded qua

applicant No.2- Krushnath Yadav and applicant No.6 - Shekhappa

Koli in view of section 19 (1) (c) of the Act. It is pertinent to note

that the Deputy Superintendent ACB Satara moved an application

on 19th May, 2012 before the Special Court, Satara seeking

permission to file a charge-sheet against the applicants and for

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further investigation. The learned Special Court granted such

permission. It appears that the said order has not been challenged

by the applicants till date. After four years, the applicants have

preferred an application for discharge. It appears from the record

that the Committee headed by Mr. Janardhan Udamale took

driving test of 483 candidates, out of which 331 candidates were

eligible. It was noticed that there were erasions in the marks and

errors in the calculation in respect of 17 candidates. Out of those

17 candidates, 7 candidates were finally selected, thereby

facilitating pecuniary advantages/benefits to them and ultimately

causing loss to other candidates.

16. The second committee was headed by applicant No.4-

Prakash Desai. The committee took driving tests in respect of 542

candidates. Out of them, 350 candidates were found eligible and

166 were found ineligible. 16 candidates were absent. It was

noticed that the Committee had miscalculated the errors and

marks in respect of 51 candidates. Out of those 51 candidates, 15

candidates were finally selected who were less eligible. Thus,

prima facie, the material on record reveals that due to such

miscalculations and erasions, some advantage had been gained by

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the candidates who were not eligible above those who were

eligible as they could not secure the job opportunity. As has been

stated, wherever there were over writings or erasions, those parts

have neither been countersigned nor any endorsement to that

effect has been made. Moreover, both committees failed in

producing the marks gained by each of the candidates. It is a

matter of record that even in the departmental enquiry, applicant

No.1 -Janardhan Udmale and applicant No.4-Prakash Desai were

found guilty.

17. Statements of some of the candidates would prima

facie reveal the irregularities and miscalculations alleged to have

been committed by the applicants. The statement of one Dipak

Hanmant Jadhav reveals that he had applied for the post of Driver

in the year 2004 pursuant to an advertisement in the newspaper.

He belongs to scheduled caste category. His driving test was

conducted along with 25 to 30 other members on Satara Dahiwadi

Road. He drove bus about 5 to 6 kilometers. There were three

officers at that time. Two of them were sitting behind the driving

seat and one officer was sitting to his left side. Janardhan Udmale

and Krushnath Yadav were persons who conducted the driving

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test. He came to know that there were erasions and over writings

in the marks given in annexure 'B' as well as there were

miscalculations in the marks. He noticed the said miscalculations

as well as erasions. It reveals from his statement that due to such

over writings and miscalculations by the applicants, one Shamkant

Tukaram Ballal, Dilip Baburao Bhopate and Amarsingh Rajaram

Bhosale were finally selected from the category of scheduled caste.

They were benefited, however, he was kept in waiting list and

thereby, suffered loss. His statement further reveals that due to

such erasions, there was increase in the marks of Amarsinh

Bhosale in annexure 'B' from 64 to 66. Whereas, this witness had

secured 63 marks in the driving test. He secured 23 marks in the

personal interview; whereas Bhosale secured 19 marks. Even

then, due to the erasions and miscalculations in annexure 'B',

instead of him, Bhosale was selected and was appointed as Driver

in MSRTC. This witness being in the waiting list could not be

selected in 2004 but due to such acts of the applicants, was

appointed in the month of October, 2006 by which his

appointment was delayed by two years.

18. Similar is the statement of Rajendra Shankar Chavan,

Dilip Baburao Bhopate and Shayamkant Tukaram Ballal. Prima

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facie, there is material on record indicating forgery for the purpose

of cheating as well as using a forged document as genuine against

the applicants apart from criminal misconduct in view of the Act.

19. Mr. Desai, the learned Counsel has not commented

upon the miscalculations of the marks given to the candidates.

Nevertheless, miscalculations in the marks cannot and should not

be an excuse of a moving bus. Meaning thereby, no sane man will

accept that as the marks were written in a moving bus, there were

miscalculations. Apart from that, nothing has been said as to why

individual marks to each of the candidates have not been

furnished. It is equally important to note that wherever there are

over writings or erasions those have not been initialed which gives

rise to a reasonable doubt. Of course, these are all prima facie

observations limited for the purpose of framing charge and should

not be construed as observations on merits.

20. Mr. Desai has placed reliance on a judgment in case of

C.K. Jaffer Shariff Vs. State, (Through C.B.I), (2013) 1 Supreme

Court Cases 205. The ratio laid down by the Hon'ble Supreme

Court is that in an offence under section 13 (1) (d) of the

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Prevention of Corruption Act, dishonest intention is the gist which

is implicit in the words used i.e corrupt or illegal means and abuse

of position as a public servant. Relevant portion of the judgment

reads thus;

"The only allegation against the appellant is that he had prevailed upon RITES and IRCON to take the four employees in question on "deputation" for the sole purpose of sending them to London in connection with the medical treatment of the appellant. It is also alleged that neither RITES nor IRCON had any pending business in London and that none of the four persons had performed any duty pertaining to RITES or IRCON while they were in London; yet the to and fro air fare of all the four persons was paid by the above two public sector undertakings. On the said basis it has been alleged that the accused-appellant had abused his office and caused pecuniary loss to the two public Sector undertakings by arranging the visits of the four persons in question to London without any public interest.

The appellant besides working as the Minister of Railways was the Head of the two public sector undertakings in question at the relevant time. It also appears from the materials on record that the four persons while in London had assisted the appellant in performing certain tasks connected with the discharge of duties as a Minister. It is difficult to visualise as to how in the light of the above facts, demonstrated by the materials revealed in the course of investigation, the appellant can be construed to have adopted corrupt or illegal means or to have abused his position as a public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the aforesaid four persons. If the statements of the witnesses examined under

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Section 161 of CrPC show that the aforesaid four persons had performed certain tasks to assist the Minister in the discharge of his public duties, however insignificant such tasks may have been, no question of obtaining any pecuniary advantage by any corrupt or illegal means or by abuse of the position of the appellant as a public servant can arise. As a minister, it was for the appellant to decide on the number and identity of the officials and supporting staff who should accompany him to London if it was anticipated that he would be required to perform his official duties while in London. If in the process, the rules or norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13 (1) (d) is implicit in the words used i.e corrupt or illegal means and abuse of position as a public servant".

21. The facts in the said case and the one before this Court

are quite different. Dishonest intention of the applicants is

apparent from the face of the record as has been stated

hereinabove and, therefore, this cannot be a case of discharge as

prima facie there are strong circumstances against the applicants.

22. In case of Deepak Surana and others Vs. State of

Madhya Pradesh, (2016) 12 Supreme Court Cases 380, Special

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Judge has discharged the appellant from the offence under section

13 (1) (d) r/w 13 (2) and section 120B of the Indian Penal Code.

The High Court reversed the Special Judge's order discharging the

appellant from the charges of corruption and, therefore, the

appellant approached the Hon'ble Supreme Court. The relevant

portion of this judgment reads thus;

" In the present case, the agreements relied upon by the prosecution do not bear the signatures of the Appellants. This appeal challenges the judgment and order dated 01.10.2011 passed by the High Court of Madhya Pradesh, Jabalpur in Criminal Revision No.649 of 2008. The High Court was pleased to set aside the order passed by the Special Court discharging the present appellants of the charges levelled against them. The High Court had directed to release certain land from acquisition. Soon thereafter agreement to sell land was executed. The basic allegations in this FIR dated 31.03.1998 were to the effect that a conspiracy was hatched between certain public servants including the then Ministers, Additional Secretary and the owners of the land. The object of that conspiracy was stated to be conferring undue advantage upon the owners of the land. The FIR alleged commission of offences punishable under sections 13 (1) (d) read with 13 (2), Section 15 of the Prevention of Corruption Act, 1998 read with Section 120B of the Indian Penal Code.

Held, while allowing the appeals;

(1) The question here is whether the Appellants could be said to be involved in the conspiracy. The agreements in question were not even recovered from the custody of the Appellants

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and were recovered from the vendors themselves. The agreements being unilateral and not bearing the signatures of the Appellants, mere execution of such agreements cannot be considered as a relevant circumstance against the Appellants. There is nothing on record to indicate that the consideration mentioned in the agreement could be traced to the Appellants, nor is there any statement by any of the witnesses suggesting even proximity or meeting of minds between the Appellants and any of the other accused. In the circumstances, the view that weighed with the Special Judge was quite correct. The High Court was not justified in setting aside the order passed by the Special Judge. In our considered view, the material on record completely falls short of and cannot justify framing of charges against the Appellants".

23. On the basis of the facts before the Hon'ble Supreme

Court, it was found that there was no material on record justifying

framing of the charge as it is apparent that the agreements in

question were unilateral under signatures of the appellants.

However, in the case at hand, un-disputedly, the two committees

comprising the applicants had conducted tests and awarded marks

in which there are miscalculations as well as over writings which

raise a very strong suspicion with regard to an offence with which

they have been charge-sheeted. The ratio can be distinguished

accordingly.

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24. In case of Najappa Vs. State of Karnataka, (2015) 14

Supreme Court Cases 186 on the point of sanction under section

19 (1) of the Act, the Hon'ble Supreme Court held thus;

"(1) The present appeal must succeed on the short ground that in the absence of a valid previous sanction required under Section 19 of the Prevention of Corruption Act, 1988 the Trial Court was not competent to take cognizance of the offence alleged against the Appellant.

(2) Section 19 (1) of the Prevention of Corruption Act, 1988 is couched in mandatory terms and forbids courts from taking cognizance of any offence punishable under Sections 7, 10, 11, 13 and 15 against public servants except with the previous sanction of the competent authority enumerated in Clauses (a), (b) and (c) to Sub-section 1 of Section

19. The provision contained in sub-section (1) would operate in absolute terms but for the presence of Sub- section (3) to Section 19. The language employed in Sub-section (1) of Section 19 admits of no equivocation and operates as a complete and absolute bar to any court taking cognizance of any offence punishable under Sections 7, 10, 11, 13 and 15 of the Act against a public servant except with the previous sanction of the competent authority. A similar bar to taking of cognizance was contained in Section 6 of the Prevention of Corruption Act, 1947.

(3) The legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption Act is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the Court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of Clauses

(a), (b) and (c) to Section 19 (1). The question regarding validity of such sanction can be raised at

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any stage of the proceedings. The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for prosecution in accordance with law. If the Trial Court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non-

est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution.

(4) Effect of Sub-section (3) to Section 19 starts with a non-obstante clause. Also relevant to the same aspect would be Section 465 of the Code of Criminal Procedure which we have extracted earlier. It was argued on behalf of the State with considerable tenacity worthy of a better cause, that in terms of Section 19 (3), any error, omission or irregularity in the order sanctioning prosecution of an accused was of no consequence so long as there was no failure of justice resulting from such error, omission or irregularity. It was contended that in terms of explanation to Section 4, "error includes competence of the authority to grant sanction". The argument is on the face of it attractive but does not stand closer scrutiny. A careful reading of sub-section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order suffers from an error, omission or irregularity, unless of course the court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such error, omission or irregularity. Sub-section 3, in other words, simply forbids interference with an order passed by Special Judge in appeal, confirmation or revisional proceedings on the ground that the sanction is bad save and except, in cases where the appellate or

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revisional court finds that failure of justice has occurred by such invalidity. What is noteworthy is that Sub-section (3) has no application to proceedings before the Special Judge, who is free to pass an order discharging the accused, if he is of the opinion that a valid order sanctioning prosecution of the accused had not been produced as required under section 19 (1), sub suection (3) postulates a prohibition against a higher court reversing an order passed by the Special Judge on the ground of any defect, omission or irregularity in the order of sanction. It does not forbid a Special Judge from passing an order of whatever stage of the proceedings holding that the prosecution is not maintainable for want of a valid order sanctioning the same. The language employed in sub- section (3) is clear and unambiguous. This is sufficiently evident even from the language employed in Sub-section (4) according to which the appellate or the revisional Court shall, while examining whether the error, omission or irregularity in the sanction had occasioned in any failure of justice, have regard to the fact whether the objection could and should have been raised at an early stage. Suffice it to say, that a conjoint reading of Sub-sections 19 (3) and (4) leaves no manner of doubt that the said provisions envisage a challenge to the validity of the order of sanction or the validity of the proceedings including finding, sentence or order passed by the Special Judge in appeal or revision before a higher Court and not before the Special Judge trying the accused. The rationals underlying the provision obviously is that if the trial has proceeded to conclusion and resulted in a finding or sentence, the same should not be lightly interfered with by the Appellate or the revisional court simply because there was some omission, error or irregularity in the order sanctioning prosecution under Section 19 (1). Failure of justice is, what the appellate or revisional Court would in such cases look for. And while examining whether any such failure had indeed taken place, the Court concerned would also keep in mind whether the objection touching the

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error, omission or irregularity in the sanction could or should have been raised at an earlier stage of the proceedings meaning thereby whether the same could and should have been raised at the trial stage instead of being urged in appeal or revision".

(emphasis supplied)

25. The position of law is quite clear that the Competent

Authority can accord a fresh sanction for prosecution in

accordance with law which has been done in the case at hand. The

Competent Authority, as already discussed hereinabove, accorded

sanction in respect of the applicants Krushnath Yadav and

Shekhappa Koli, however, did not grant sanction in respect of rest

of the applicants since they were not public servants at the time of

granting sanction. It is not the case of the applicants that

cognizance of the offence has been taken by the Special Judge

sans previous valid sanction by the Competent Authority.

26. On the other hand, the learned A.P.P has relied upon a

judgment of the Hon'ble Supreme Court in case of Station House

Officer, CBI/ACB/Banglore Vs. B.A. Srinivasan and another, (2020)

2 Supreme Court Cases, 153. The ratio laid down by the Hon'ble

Supreme Court is that the protection under section 19 of the Act is

available to a public servant only till he is in employment and no

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sanction thereunder is necessary after a public servant has

demitted office or public servant is retired from the service. In the

case at hand, the Competent Authority in terms of an order dated

6th February, 2012 had rightly accorded sanction to prosecute the

applicants Krushnath Vishnu Yadav and Shekhappa Koli as they

were public servants and had not granted sanction in respect of

rest of the applicants as they had already demitted their office.

27. Having taken into consideration the material placed on

record as well as in light of the observations made hereinabove, no

interference is warranted in the impugned order. Needless to add

that the observations hereinabove are only for the purpose of

framing a charge and shall not be construed as observations,

commenting upon the merits of the case.

28. The revision application is thus devoid of merits and,

therefore, stands rejected. The learned Special Judge, Satara is

directed to dispose of the case as expeditiously as possible without

granting unnecessary adjournments. The applicant shall co-

operate in expediting the trial. Rule is discharged.

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29. This order will be digitally signed by the Personal

Assistant of this Court. All concerned shall act on production by

fax or e-mail of a digitally signed copy of this order.

[PRITHVIRAJ K. CHAVAN, J.]

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