Umakant S/O Somla Rathod vs State Of Mah. Thr. Pso, Ps, ...
2022 Latest Caselaw 7160 Bom

28.apl.732.22.jud                                                           1/5

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

                    CRIMINAL APPLICATION NO.732 OF 2022

Applicant                      Mr. Umakant s/o Somla Rathod,
                                    Age 41 Years, Occupation : Service,
                      :        R/o Quarter No.94/5/59, Police Line Takli,
                               Nagpur.
                               - Versus -
Non-Applicants        :   1)          State of Maharashtra,
                               Through its Police Station Officer,
                               Police Station Sitabuldi, District Nagpur.
                          2) Anti Corruption Bureau,
                             Through its Police Inspector,
                             Having its Office at Civil Lines,
                             Nagpur.

            =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                  Mr. R.R. Vyas, Advocate for the Applicant.
            Mrs. M.H. Deshmukh, Advocate for the Non-Applicants.
            =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

             CORAM         :      VINAY JOSHI, J.

             DATE          :      26th JULY, 2022.


ORAL JUDGMENT :-

Rule. Rule made returnable forthwith. With the consent of the

parties, the matter is heard finally.

02] The applicant has been arrayed as an accused in Crime No.6826/16,

dated 19/11/2016 for the offence punishable under Sections 7, 12, 13(1)(d)

read with 13(2) of the Prevention of Corruption Act, 1988 (hereinafter

28.apl.732.22.jud 2/5

referred to as 'Act' for short), for which final report has been filed (Special

Case No.30/2017). The applicant has applied for discharge inter alia

contending that the sanction for prosecution in terms of Section 19 of the Act

is defective. The learned Special Judge has rejected for discharge and,

therefore, applicant is before this Court.

03] Briefly stated, one Deepak Bhujade had lodged report bearing

Crime No.269/2016 for the offence punishable under Section 379 of the

Indian Penal Code alleging that one Sunil Bhaisare has committed theft of

Rs.5,00,000/-. The applicant being a Police Officer, the said crime was

entrusted with him for investigation. It is alleged by Sunil Bhaisare that the

applicant had approached to him and raised monetary demand of

Rs.15,00,000/- for settling the criminal case. Therefore, he had approached

to the Office of Anti Corruption Bureau and lodged the report against the

applicant. After obtaining prior sanction, charge-sheet has been filed.

04] It is primly argued that the learned trial Court has totally ignored

the provisions of Section 19 of the Act. The sanction to prosecute was not

accorded by the competent authority, who is competent to appoint and

remove the applicant. It is submitted that sanction, dated 29/07/2017 in

terms of Section 19(1)(c) was accorded by the Additional Commissioner of

Police, Nagpur, who is an Officer to the rank of a Deputy Inspector General of

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Police. It is submitted that the Deputy Inspector General of Police is an

authority subordinate in rank to the Director General of Police, who is an

appointing and removing authority for the applicant, a Police Sub-Inspector. It

is in these circumstances, the sanction is defective and, therefore, discharge is

claimed.

05] The State has opposed the application by supporting the impugned

order as well as relying on the Government Resolution dated 12/02/2013

authorizing Deputy General of Police to accord sanction.

06] It is not in dispute that the applicant was appointed as Police Sub-

Inspector. The applicant's appointment letter dated 20/08/2015 has been

placed on record, in which the applicant stands at Sr. 335. Inasmuch as, it is

also not in dispute that the sanction has been accorded by the Additional

Commissioner of Police, Nagpur. The applicant's learned Counsel would

submit that this Court has an occasion to deal with the similar issue in the

case of Balu Dasu Rathod vs. State of Maharashtra, through the Director

General of Police and others - 2019 SCC Online Bom 1809, wherein exactly

the same issues was considered by this Court and held that the sanction is

defective. Perusal of the said decision indicates that in said case also, the

prosecution was against the Police Sub-Inspector for which sanction was

accorded by the Additional Commissioner of Police, Thane. In that context, it

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has been observed that the appointing and removing authority for the Police

Sub-Inspector is the Director General of Police and thus sanction vitiates. The

learned A.P.P. conceded the position that the said order has not been

challenged by the State in appeal. Incidentally, it is brought to the notice that

the petitioner of said case viz. Balu Rathod was also appointed by the same

appointment order like the petitioner, who stands at Sr. No.284 in the same

appointment order.

07] In the above case, this Court has also considered the Government

Resolution, dated 12/02/2013 and held that it is not applicable. Thus, the

issue involved is squarely covered by the said decision of this Court.

Moreover, another decision of this Court in the case of State of Maharashtra,

Through A.C.B., B.M.U. vs. Ajay Ratansingh Parmar - 2022 SCC Online Bom

531 has been cited, wherein under similar circumstances, this Court has held

that for the post of Assistant Police Inspector, the Director General of Police is

the appointing and removing authority and the sanction accorded by the

Police Commissioner is defective. Therefore, the issue involved is no more res

integra and thus sanction being defective the impugned order is not

sustainable in the eyes of law and liable to be quashed.

08] The learned Counsel appearing for applicant also canvassed that the

prosecution itself was totally false and planted one. The complainant of the

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case was habitual offender, who has tried to entangle the applicant in order to

escape from the criminal case. In this regard, the applicant attracted my

attention towards two statements from the charge-sheet, which are of Milind

Totre, Deputy Superintendent of Anti Corruption Bureau (Page No.400) and

one Falgun Ghodmare, Police Inspector attached to Anti Corruption Bureau

(Page No.401) to contend that there has been attempt on behalf of the

complainant to give bribe, which has been already exposed. Be that as it may,

on the sole ground of defective sanction, the impugned order would not

survive.

9] In that view of the matter, the impugned order dated 07/10/2021

passed in Special ACB Case No.30/2021 is hereby quashed and set aside. The

applicant stands discharged. The non-applicants/State is at liberty to apply

for fresh sanction and file supplementary charge-sheet, if warrants so. In that

case, the competent sanctioning authority shall apply its mind and pass

appropriate orders in accordance with law.

10] The application stands disposed of. Rule is made absolute in the

above terms.

(VINAY JOSHI, J.) *sandesh

Digitally signed by JITENDRA JITENDRA BHARAT BHARAT GOHANE GOHANE Date:

2022.07.29 18:20:07 +0530