Bombay High Court

Sanjay S/O Mahadeo Ingle vs State Of Mah. Thr. Anti Corruption ... on 11 November, 2022

Bench: V. G. Joshi

                           Object 1




                                        1



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


              CRIMINAL WRIT PETITION NO. 530/2022


          Sanjay s/o Mahadeo Ingle,
          Age about 39 years, Occ-Service,
          R/o. Palshi (Kd), Post Palshi (Bk.),
          Tah. Khamgaon, Tah. & Dist. Buldana.

                                                     ... PETITIONER

                                      VERSUS

          State of Maharashtra
          through Anti Corruption Bureau,
          Khamgaon, Dist. Buldana.



                                                   ... RESPONDENT
_____________________________________________________________
       Mr. K.P. Sadavarte, Advocate for petitioner.
       Mr. S.M. Ukey, APP for respondent/State.

______________________________________________________________

     CORAM                                     : VINAY JOSHI, J.
     RESERVING THE JUDGMENT ON                 : 19/09/2022
     PRONOUNCING THE JUDGMENT ON               : 11/11/2022.




JUDGMENT :

RULE. Rule is made returnable forthwith.

2. Heard finally by consent of both the parties.

3. The petitioner raises a challenge to the order dated

30.06.2022, by which the Special Court has rejected application Exh.

56 claiming discharge. The petitioner (accused/Talathi) was facing the

prosecution for the offence punishable under Sections 7, 13(1)(d),

13(2) of the Prevention of Corruption Act ('PC Act'). The petitioner has

applied for discharge on account of invalid sanction to prosecute in

terms of Section 19 of the PC Act, however the Trial Court has declined

to discharge the petitioner. Hence, this petition.

4. The facts in brief are that the petitioner was appointed as a

Talathi and posted in Khamgaon, District Buldana. The complainant's

father had purchased a piece of agricultural land in Khamgaon, Dist.

Buldana. On 09.07.2015, the complainant met to the petitioner

seeking to carry mutation entry on the basis of sale-deed. The

petitioner has raised illegal demand of Rs. 2,000/- for taking mutation

entry. The complainant was reluctant to pay the bribe and therefore,

he has approached to the office of Anti Corruption Bureau. The

complaint was recorded. Necessary procedure was followed and raid

was conducted, on which the petitioner was caught by the Police while

accepting bribe amount of Rs. 2,000/-. The investigation was

completed. The necessary sanction for prosecution was obtained which

was followed by filing of charge-sheet in the Special Court.

5. The prosecution has examined in all four witnesses

including the Sanctioning Authority. On the basis of admission given

by PW-4 Sanctioning Authority, the petitioner has applied to the Special

Court for discharge on account of invalid sanction. It is contended that

the sanction to prosecute was accorded by the Sub Divisional Officer

('SDO') who was neither appointing nor removing authority for the

petitioner. It is contended that the petitioner was appointed on the

post of Talathi by the order of Collector whilst SDO has merely given a

posting to the petitioner, therefore the Collector is the competent

authority for according sanction, however the SDO has granted

sanction which is invalid. The learned Trial Court has considered the

submissions, however declined to entertain the application on the

ground raised therein by stating that charge was already framed long

back. The point of validity of sanction was not raised at earlier point of

time. Therefore, the question of sanction can be decided at the time of

conclusion of trial and accordingly rejected discharge application.

6. The learned counsel appearing for the petitioner would

submit that the petitioner was appointed as Talahti by the Collector

whilst the sanction was accorded by the SDO who was neither

appointing or removing authority and thus, the sanction to prosecute is

not in tune of Section 19(1)(c) of the PC Act. Per contra, the learned

APP has supported the impugned order as well as placed reliance on

the Government Resolution dated 30.05.1984 to contend that the SDO

is competent authority to accord sanction. Moreover, the learned APP

would submit that since charge has already been framed, now at

belated stage, the applicant cannot claim for discharge. In support of

said contention, the learned APP relied on the decision of the Supreme

Court in case of Ratilal Bhanji Mithani Vs. State of Maharashtra and

others, (1979) 2 SCC 179. On facts, he relied on the decision of this

Court in case of Vikas s/o. Baburao Marathe Vs. The State of

Maharashtra, 2015 ALL MR (Cri) 2988 to contend that the sanction is

valid.

7. In response, the learned counsel for the petitioner would

submit that invalid sanction renders the trial non est in the eyes of law

and therefore, the point of sanction can be questioned at any stage of

the proceedings. To support said contention, he relied on the decision

of the Supreme Court in case of Nanjappa Vs. State of Karnataka, 2015

ALL MR (Cri) 3318 (S.C.). Moreover, he has relied on the decision of

this Court in case of Balu Dasu Rathod Vs. The State of Maharashtra &

ors., 2019 ALL MR (Cri) 4480 to contend that even after recording of

evidence of witnesses, the aspect of validity of sanction can be gone

into and in proper case can be discharged on account of invalid

sanction.

8. The first point falls for consideration is about the

maintainability of discharge application at the midst of the trial. In

case of Ratilal Bhanji Mithani (supra), it is observed by the Supreme

Court that once a charge is framed in a warrant case, the Magistrate

has no power under the Code of Criminal Procedure ('Code') to

discharge accused and therefore, he can either acquit or convict the

accused. The said decision relates to a prosecution under the

provisions of Customs Act and the Imports and Exports Act. A private

complaint was filed alleging the offence under the aforesaid Act and in

that context, it has been held that once charge is framed in a warrant

case, there is no power under the Code to discharge the accused.

9. I have carefully examined the decision of the Supreme

Court in case of Nanjapp (supra). In the said case, the Supreme Court

has occasion to consider the importance of valid sanction in terms of

Section 19 of the PC Act. The Supreme Court took a resume of earlier

decisions in the field and ultimately held that if the Court proceed

despite invalidity attached to the sanction order, the same shall be

deemed to be non est in the eyes of law. It is observed in para 15 of the

decision that the question regarding validity of sanction can be raised

at any stage of the proceedings. Likewise, it is observed in para 16

that that it does not forbid a Special Judge from passing an order at

whatever stage of the proceedings holding that the prosecution is not

maintainable for want of valid order sanctioning the same. A careful

reading of said decision conveys that the statute precludes from taking

cognizance by the Court against the public servant except with the

previous sanction of an authority competent to grant such sanction in

terms of Section 19(1)(a)(b)(c) of the PC Act. Obvious, the

competence of the Court trying the accused depends upon the existence

of a valid sanction and the question of validity of sanction can be raised

at any stage of the proceedings.

10. In another decision of the Supreme Court in case of State of

Karnataka through CBI Vs. C. Nagarajaswamy with another connected

matter, (2005) 8 SCC 370, it has been observed in para 13 to 16 as

below:-

"13. The Appellant was proceeded against the Respondents under the Act. Section 5 of the Act provides for the procedure and powers of the Special Judge. Section 19 of the Act mandates that no court shall take cognizance of offence punishable under the provisions specified therein except with the previous sanction by the authorities specified therein.

14. Ordinarily, the question as to whether a proper sanction has been accorded for prosecution of the accused persons or not is a matter which should be dealt with at the stage of taking cognizance. But in a case of this nature where a question is raised as to whether the authority granting the sanction was competent therefor or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the

accused for the purpose of determination as to who could remove him from service.

15. Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regards sanction may be determined at an early stage.

16. But, even if a cognizance of the offence is taken erroneously and the same comes to the court's notice at a later stage a finding to that effect is permissible. Even such a plea can be taken for the first time before an appellate court."

11. The prosecution is under a special Act namely PC Act.

Section 19 of the PC Act puts a specific embargo on the Court to take

cognizance in absence of valid sanction. In view of decision of the

Supreme Court in case of Nanjapp ( supra), absence of sanction vitiates

the trial, meaning thereby it goes to the root of the case. It conveys

that the competency of the Sanctioning Authority can be tested at any

stage of the proceedings. In view of the special requirement of the

mandate of law, the general proposition that after framing of charge,

there could be no claim of discharge would not apply, especially in view

of the ratio laid down by the Supreme Court in case of Nanjapp

(supra).

12. In short, there is no embargo on the Trial Court to consider