Bombay High Court
Madhuri Bharat Upadhey vs The State Of Maharashtra on 29 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:4192
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.20/2020
MADHURI BHARAT UPADHEY ..APPLICANT
VS.
THE STATE OF MAHARASHTRA ..RESPONDENT
------------
Adv. Zubi Ansari a/w. Adv. Ritesh Thobde for the applicant.
Mr. S. H. Yadav, APP for the State.
ASI S. V. Koli, ACB, Solapur.
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CORAM : M. S. KARNIK, J.
DATE : JANUARY 29, 2024.
ORAL JUDGMENT :
1. Heard learned counsel for the applicant and learned
APP for the State.
2. The challenge in this revision application filed under
Section 397 of the Code of Criminal Procedure (Cr.P.C.) is to
an order dated 12/11/2019 passed by the Special Judge
(ACB), Solapur, below Exhibit-8 in Special Case (ACB)
No.15/2015.
3. The application (Exhibit - 8) was filed by the applicant
for discharging her as there is no sanction as required under
Section 19 (1) (c) of the Prevention of Corruption Act, 1988
(hereafter 'the PC Act' for short) from the competent
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authority.
4. The applicant was working as a junior clerk in
Lalbahdhur Shastri Primary School, Solapur. The allegation is
that the applicant demanded bribe of Rs.150/- for issuing
leaving certificate to the sister of the complainant. The
complainant reported the matter to the Anti-Corruption
Bureau (ACB). The demand was verified and the trap was
laid. The trap was successful. Accordingly, the offence under
Sections 7, 13(1)(d) read with Section 13(2) of the PC Act
was registered with the Jail Road Police Station, Solapur.
After the completion of the investigation, a proposal was
submitted by the prosecution to the Administrative
Committee of Sanmati Dnyan Prasarak Mandal, Solapur
(hereafter 'the said Mandal' for short) for sanction.
5. A reference needs to be made to page 87 of the paper-
book which is a letter addressed by the said Mandal to the
Assistant Police Commissioner, ACB, Solapur, which
indicates that the competent authority to remove the
applicant is the Managing Committee of the said Mandal. As
per the resolution of the said Mandal, the powers are
delegated to the Secretary of the said Mandal. Section 19(1)
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(c) of the PC Act relevant for the purpose of sanction by the
competent authority reads thus:-
"19. Previous sanction necessary for prosecution. - (1)
No Court shall take cognizance of an offence punishable under
[sections 7, 11, 13 and 15] alleged to have been committed by
a public servant, except with the previous sanction [save as
otherwise provided in the Lokpal and Lokayuktas Act, 2013] -
(a) in the case of a person [who is employed, or as the case
may be, was at the time of commission of the alleged offence
employed] in connection with the affairs of the Union and is
not removable from his office save by or with the sanction of
the Central Government, of that Government;
(b) in the case of a person [who is employed, or as the case
may be, was at the time of commission of the alleged offence
employed] in connection with the affairs of a State and is not
removable from his office save by or with sanction of the State
Government, of that Government;
(c) in the case of any other person, of the authority
competent to remove him from his office.
6. The Secretary of the said Mandal refused to give
sanction for the prosecution of the applicant. The
prosecution, thereafter, applied for the sanction to the
Director of Education (Primary), Pune, Maharashtra State.
The sanction was accordingly granted vide order dated
25/4/2016 by the Director of Education (Primary), Pune. The
trial Court was of the opinion that there was no quarrel
about the ratio in Sou. Jyoti Ramesh Upase vs. State of
Maharashtra1 which reads as under :-
"The service conditions of the petitioner are governed by
1 Crl. W.P. No.630/2013 decided on 21/10/2013.
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the provisions of the Maharashtra Employees of Private
Schools (Conditions of service) Regulation Act, 1977.
Appointing authority is the Management of the school as
defined under section 2(12) (c) of the Act and therefore,
competent authority to remove the petitioner from
service is the Management of the School. When the
Management refused to grant sanction there is no
sanction and the prosecution cannot continue without
proper sanction."
Having noted thus, the trial Court was of the opinion that
Section 4A of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 (hereafter 'the
Act, 1977' for short) was not brought to the notice of this
Court and since the same is not considered, the issue of
absence of sanction is to be raised during the trial in view of
the decision of the Supreme Court in CBI vs. Pramila
Virendra Kumar2. According to the trial Court, the present is
a case of defective sanction but not a case of no sanction at
all and therefore, in view of the ratio of the Supreme Court,
invalidity of sanction or the sanction being defective can be
raised during the trial and the matter cannot be disposed of
at the threshold.
7. Learned counsel for the applicant submitted that the
issue is no more res integra as the same is squarely covered
by the decisions of this Court in Pranita Prakashrao Katewale
2 Crl. Appeal No.1489/1490/2019 decided on 25/9/2019.
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vs. State of Maharashtra, through ACB, Yavatmal 3 and Anant
Shesharao Hadgekar and others vs. State of Maharashtra,
through the Police Inspector4.
8. Learned APP supported the order passed by the trial
Court and submitted that the aspect of invalidity of sanction
or otherwise cannot be decided at the threshold and the
matter must go to trial.
9. Having considered the rival submissions, I am of the
opinion that the impugned judgment and order of the trial
Court cannot be sustained and calls for interference in view
of the law settled by this Court in the case of Pranita
Prakashrao Katewala (supra) and Anant Shesharao
Hadgekar (supra).
10. The observations in the aforesaid decisions of this
Court squarely apply in the present facts as well. Relevant
to a decision on this application are the observations in
paragraphs 9 and 14 of Anant Shesharao Hadgekar (supra)
which reads thus:-
"9. There is no dispute about the fact that the petitioners are the
employees of the private school and are governed by the
M.E.P.S. Act. By virtue of provisions of section 4(6) of the M.E.P.S.
3 (2019) 3 AIR Bom R (Cri) 247.
4 (2019) 4 Bom CR (Cri) 516.
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Act, it is the Management which alone is competent to suspend,
dismiss or remove them from the employment. By virtue of
section 4A of the M.E.P.S. Act it is only when the Enquiry
Committee enquiring into the misconduct or misbehavour of an
employee unreasonably exonerates him that it empowers the
Director of Education to direct the Management to impose
penalty upon such an employee. It further empowers the
Director of Education to hold an enquiry if in spite of his
instructions the Management fails to initiate the action. By virtue
of Section 4(6) of the M.E.P.S. Act it is only the Management
which has the power to remove its employees. The powers
conferred upon the Director are only contingent. Therefore it
cannot be said that the Director of Education independently
derives any power under section 4A of the M.E.P.S. Act to
remove an employee of a private school. If such is the legal
position, by virtue of Section 19 of the Prevention of Corruption
Act it would be the Management of a private school which alone
would be competent to accord sanction and nobody else i.e. not
even the Director of Education can usurp that power.
14. For that matter, a coordinate bench of this Court at
Nagpur bench in Criminal Revision Application No. 198 of 2018;
Pranita Prakashrao Katewale Vs. The State of Maharashtra by
the judgment and order dated 10.07.2019 relying upon the
decision in case of Jyoti Ramesh Upase (supra) has considered
this aspect in the light of Government Resolution dated
05.11.2015 and has made following observations in para No. 15
and 16.
"15. In the backdrop of said position of law clarified by the
aforesaid Judgments of this Court, it cannot be said that
sanction granted in the present case for prosecution against
the applicant by the Director of Education was sustainable
because it was in terms of Government Resolution dated
05.11.2015. The said Government Resolution is nothing but
an executive instruction issued by the State and such
executive instructions can certainly not prevail over statutory
provisions of the MEPS Act and Rules and the aforesaid
judgment of this Court, wherein it has been categorically laid
down that only the management of the school has the power
and authority to grant sanction for prosecution of a teacher
or Headmistress for offences under the provisions of the
Prevention of Corruption Act, 1988. The said conclusion has
been given in the aforesaid judgment upon analysis of the
provisions of the MEPS Act and Rules and such position of law
cannot be circumvented by issuing executive instructions in
the form of aforesaid Government Resolution dated
05.11.2015.
16. Thus, the contention raised on behalf of non- applicant
State that the Director of Education was competent to grant
sanction for prosecution against the applicant in the present
case is wholly unsustainable and it is a fallacious argument
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raised on behalf of the non- applicant State that as long as
the Government Resolution dated 05.11.2015 exists and it is
not set aside, the Director of Education is entitled to grant
sanction. This is because in no case can an executive
instruction like the Government Resolution dated 05.11.2015,
prevail over the statutory provisions of the MEPS Act and
Rules and the Judgments rendered by this Court. Therefore, it
is found that the Court below committed a grave error in
rejecting the contention raised on behalf of the applicant
regarding defective sanction as ground for discharge".
11. In the present case, there is no dispute that the
competent authority in terms of Section 19(1)(c) of the PC
Act is the Secretary of the Management (Mandal) who
refused to give sanction for the prosecution of the applicant.
The Director of Education who granted the sanction has no
power or authority to grant such sanction. The present is not
a case where the question is of invalidity of sanction but a
clear case where the Director of Education has absolutely no
power or authority to grant such sanction. Due regard to the
mandate of Section 19 (1)(c) of the PC Act will have to be
kept in mind, in as much as, the Special Court cannot take
cognizance of the offence for want of sanction by the
competent authority. This is not a case of there being a
defective sanction, in which case the learned APP would
have been justified in contending that the question cannot
be decided at the threshold and should be raised during the
trial. The Director is not empowered to grant the sanction
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for prosecution so far as the applicant is concerned as he
cannot be regarded as an authority competent to do so
within the meaning of Section 19(1)(c) of the PC Act.
12. In the light of the observations of this Court in Anant
Shesharao Hadgekar (supra) in paragraph 9 which has
considered the scope of Section 4A of the Act, 1977, the
finding of the trial Court that Section 4A of the Act, 1977
was not brought to the notice of this Court in Sou. Jyoti
Ramesh Upase (supra) will have to be disregarded.
Resultantly, the application succeeds and is accordingly,
allowed.
13. The impugned order dated 12/11/2019 passed by the
Special Judge (ACB), Solapur, below Exhibit-8 in Special
Case (ACB) No.15/2015 is quashed and set aside. The
application (Exhibit 8) on the file of the Special Judge (ACB),
Solapur in the aforesaid Special Case is accordingly allowed.
14. The applicant stands discharged.
15. The criminal revision application is disposed of.
(M. S. KARNIK, J.)
Signed by: Diksha Rane
Designation: PS To Honourable Judge
Date: 29/01/2024 19:28:00
