Bombay High Court

Sudhir S/O Narayanrao Girde vs The State Of Maharashtra Thr. Pso, Ps, ... on 13 February, 2025

2025:BHC-NAG:1483




              Judgment

                                                              357 revn98.24

                                          1

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

                    CRIMINAL REVISION APPLICATION NO.98 OF 2024

              Sudhir s/o Narayanrao Girde,
              aged about 62 years, occupation: retired,
              r/o ward No.3, Bhagatsingh Chowk,
              taluka Nagbhid, district Chandrapur. ..... Applicant.

                                   :: V E R S U S ::

              State of Maharashtra,
              through Police Station Officer,
              Police Station Nagbhid,
              taluka and district Chandrapur.   ..... Non-applicant.

              Shri A.A.Naik, Senior Counsel assisted by Shri A.D.Hazare,
              Counsel for the Applicant.
              Shri V.A.Thakare, Additional Public Prosecutor for the Non-
              applicant State.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 27/01/2025
              PRONOUNCED ON : 13/02/2025

              JUDGMENT

1. By preferring this revision, the applicant has

challenged the order dated 26.10.2023 passed below

Exh.35 by learned Additional Sessions Judge, Chandrapur

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in Special (ACB) Case No.4/2016 for discharge under

Section 239 of the Code of Criminal Procedure.

2. The applicant is an employee of a private school

who was appointed as Assistant Teacher in "Sant

Vidyalaya, Mindala, taluka Nagbhid, district Chandrapur."

The said school is run by "Mahatma Jyotiba Fule

Magasvargiya Mandal, Mindala". On attaining the age of

superannuation, he retired as Assistant Teacher on

30.9.2019. On 3.11.2014, Dipak Natthuji Ambade, who

claims to have worked as Lecturer at "Sant Hardas Junior

Arts College, Mindala, approached the office of the Anti

Corruption Bureau (the bureau) at Chandrapur alleging

that co-accused Ashok Narayan Khandale, through the

applicant, informed him that the informant has to pay

Rs.3,50,000/- for regularizing his services from non-grant

to grant-in-aid basis. As he was not willing to pay the

amount, he approached the office of the bureau and

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lodged a complaint. On 3.11.2014, trap was arranged.

The verification of the demand was done in presence of

the panchas. On 3.11.2014, co-accused Ashok Narayan

Khandale was caught accepting the gratification amount.

The applicant was arraigned as an accused on an

allegation that he abetted commission of such crime.

Accordingly, he along with the co-accused was

chargesheeted for the offences punishable under Sections

7, 12, 13(1)(d), 13(2), and 9 of the Prevention of

Corruption Act, 1988 (the P.C.Act).

3. The applicant has filed an application vide Exh.35

for discharge under Section 239 of the Code. Initially, the

applicant has filed an application which came to be

rejected. Against the said order, revision bearing Criminal

Revision Application No.87/2021 was filed, but the same

was withdrawn with liberty to raise a ground of absence

of sanction. The application was filed on the ground that

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no sanction was obtained prior to prosecuting the

applicant. The cognizance is taken by the Special Court,

in absence of sanction, which is not permissible. It is

further contended that officer of the bureau issued

communication in the name of the Director of Education,

Secondary and Higher Secondary, dated 4.2.2016 for

obtaining the sanction. The Education Officer accorded

the sanction though he is not the competent authority.

The court cannot take cognizance against the accused on

invalid sanction.

4. Learned Senior Counsel Shri A.A.Naik for the

applicant, submitted that in view of the provisions of

Section 4 of the Maharashtra Employees of Private

Schools (Condition of Service) Regulation Act, 1977 (the

MEPS Act) and the Rules framed thereunder of the year

1981, the applicant being the employee of private school,

the Management which runs the school would be

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authority competent to remove him from the office within

the meaning of clause (c) of sub-section (1) of Section 19

of the P.C.Act. Pursuant to such provision, the officer of

the bureau has to obtain the sanction from the

Management. The officers of the bureau approached the

Education Officer and the Education Officer accorded the

sanction though he was not competent authority. In fact,

only the Management is competent to remove the

applicant from the employment under the provisions of

Section 4 of the MEPS Act. The Government could not

have power to accord the sanction and, therefore, the

Director of Education is not the competent authority. No

sanction was obtained from the competent authority

before launching the prosecution against the applicant.

He submitted that Section 2(12) of the MEPS Act defines

the Management. As there is no valid sanction, the

prosecution against the applicant in absence of the valid

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sanction vitiates the entire proceeding. Therefore, the

applicant is to be discharged from the charges.

5. In support of his contentions, learned Senior

Counsel for the applicant placed reliance on following

decisions:

1. Madhuri Bharat Upadhey vs. State of Maharashtra, reported in 2024 SCC OnLine Bom 266;

2. Anant Shesharao vs. State of Maharashtra, reported in 2019 SCC OnLine Bom 1829;

3. Pranita Prakashrao Katewale vs. State of Maharashtra, reported in 2019 SCC OnLine Bom 1221;

4. Sagar Ramchandra Vatkar vs. State of Maharashtra, reported in 2021(2) ABR (cri) 513;

5. Nanjappa vs. State of Karnataka, reported in (2015)14 SCC 186;

6. Prakash Singh Badal and anr vs. State of Punjab and ors, reported in (2007)1 SCC 1, and

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7. Criminal Writ Petition No.630/2013 (Sau.Jyoti Ramesh Upase vs. State of Maharashtra) decided by the Division Bench of this Court on 21.10.2013.

6. Per contra, learned Additional Public Prosecutor

Shri V.A.Thakare for the State submitted that the

applicant is prosecuted on an allegation of abetment. The

issue of validity of sanction can be raised during the trial

and not at this stage. The issue regarding the sanction

can be raised at the time of final arguments. At this stage,

the applicant is not entitled to raise an issue of sanction.

The applicant is charged for the offence that he abetted

the co-accused. In view of sub-section (3) of Section 19

of the P.C.Act, the issue as to the sanction cannot be raised

merely because there is an error or 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. He submitted that in the

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present case, no prejudice is caused to the applicant and,

therefore, the Special Court has rightly rejected the

application.

7. In support of his contentions, learned Additional

Public Prosecutor for the State placed reliance on

following decisions:

1. State of Karnataka Lok Ayikta Police vs. Subbegowda, reported in AIR 2023 SC 3770;

2. Criminal Appeal NO.4964/2024 (Central Bureau of Investigation vs. Jagat Ram) decided on 3.1.2024;

3. Special Leave Petition (Cri.) NO.2029/2018 (K.Ravi vs. State of Tamil Nadu and anr) decided on 29.8.2024;

4. State of Telangana vs. Managipet @ Mangipet Sarveshwar Reddy, reported in (2019)19 SCC 469;

5. Special Leave Petition (Cri.) No.7976/2023 (Bhisham Lal Verma vs. State of Uttar Pradesh and anr) decided on 30.10.2023;

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6. SLP (Cri.) No.9114/2019 (State of Punjab vs. Hari Kesh) decided on 7.1.2015, and

7. Petition for Special Leave to Appeal (Criminal) No.12289/2023 (Nara Chandrababu Naidu vs. The State of Andhra Pradesh and anr) decided on 16.1.2024.

8. There is no dispute about the fact that the

applicant is employee of the private school governed by

the MEPS Act. By virtue of provision under Section 4(6)

of the MEPS Act, no employee of a private school shall be

suspended, dismissed or removed or his services shall not

be otherwise terminated or he shall not be reduced in

rank by the Management, except in accordance with the

provisions of this Act and the Rules made in that behalf.

9. Thus, it is the management which alone is

competent to suspend or dismiss or remove employees

from the employment.

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10. By virtue of Section 4A of the MEPS Act, it is only

when the Inquiry Committee enquiring into the

misconduct or misbehaviour 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 inquiry if in spite of his

instructions the management fails to initiate the action.

11. By virtue of Section 4(6) of MEPS Act, it is only the

Mangement which has powers to remove its employees.

The powers conferred upon the Director of Education are

only contingent. Therefore, it cannot be said that the

Director of Education has any powers to remove an

employee under Section 4(1) of the MEPS Act who is

serving in private school.

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12. In the light of the above legal position, by virtue of

Section 19 of the P.C.Act, it would be the Management of

a private school which alone would be competent to

accord sanction and nobody else that is not even the

Director of Education can exercise that power.

13. Here, in the present case, the applicant serving as

Assistant Teacher is prosecuted on an allegation that he

abetted the other co-accused to accept the bribe amount.

The co-accused was found accepting the bribe amount.

After initial investigation, on 4.2.2016 the Investigating

Officer issued communication to the Director of Education

requesting for sanction against the applicant as well as

the other co-accused. By communication dated 4.4.2016,

the Director of Education has accorded the sanction. The

Director of Education, in view of Section 4(6) of MEPS

Act, is not the authority who can remove the applicant

from the employment. The office of the bureau has

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obtained such sanction under Section 19 of the P.C.Act

from the Director of Education who is not the competent

authority. The provisions of Section 19 of the P.C.Act

requires sanction to be accorded by an authority

competent to remove the employee from his office and in

view of the above discussion, it has been found that it is

the Management of such a private school which alone has

power to remove such an employee by virtue of sub-

section (6) of Section 4 of the of MEPS Act irrespective of

the Government Resolution dated 5.11.2015, the Director

of Education would not be competent to accord the

sanction under Section 19 of the P.C.Act. Therefore,

without going into the intricate question as to whether

the State Government could by an executive order

superseded the provisions of Section 19 of the P.C.Act and

without examining its virus, it can be safely concluded on

a conjoint reading of Section 19(1)(c) of the P.C.Act and

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sub-section (6) of Section 4 of the MEPS Act, that it is

only the Management of a private school which would be

competent authority to remove an employee of the school

being run by it and the Director of Education will not

have any such power. Consequently, the sanction to

prosecute the applicant accorded by the Director of

Education stating to have derived the power under the

Government Resolution dated 05.11.2015 is indeed an

illegal which goes to the root of the matter and the very

prosecution of the applicant.

14. Though learned Additional Public Prosecutor for

the State placed reliance on the decision in the case of

State of Karnataka Lok Ayikta Police vs. Subbegowda

supra, the facts of the case show though the issue of

validity of sanction was raised at the earlier point of time.

The same was not pressed by the accused and by

observing the said fact, the Hon'ble Apex Court held that

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the only stage open to the accused in that situation was to

raise the said issue at the final arguments in the trial in

accordance with law.

15. In Central Bureau of Investigation vs. Jagat Ram

supra, the Hon'ble Apex Court dealt with sub-section 3(a)

of Section 19 of the P.C.Act which states that no finding,

sentence or 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.

16. In the case of State of Telangana vs. Managipet @

Mangipet Sarveshwar Reddy supra, the Hon'ble Apex

Court considered that if an investigation was not

conducted by a police officer of the requisite rank and

status required under Section 17 of the Act, such lapse

would be an irregularity, however unless such irregularity

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results in causing prejudice, conviction will not be vitiated

or be bad in law.

17. The aspect of sanction is considered by the Hon'ble

Apex Court in the case of Nanjappa vs. State of Karnataka

supra wherein it is held that a plain reading of Section

19(1) leaves no manner of doubt that the same 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

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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 P.C.Act.

In the said judgment, the decision of Federal Court

in Basdeo Agarwalla vs. King Emperor AIR 1945 FC 16

was referred wherein it is held that, "in our view the

absence of sanction prior to the institution of the

prosecution cannot be regarded as a mere technical

defect. The clause in question was obviously enacted for

the purpose of protecting the citizen, and in order to give

the Provincial Government in every case a proper

opportunity of considering whether a prosecution should

in the circumstances of each particular case be instituted

at all. Such a clause, even when it may appear that a

technical offence has been committed, enables the

Provincial Government, if in a particular case it so thinks

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fit, to forbid any prosecution. The sanction is not intended

to be and should not be an automatic formality and

should not so be regarded either by police or officials.

There may well be technical offences committed against

the provisions of such an Order as that in question, in

which the Provincial Government might have excellent

reason for considering a prosecution undesirable or

inexpedient. But this decision must be made before a

prosecution is started. A sanction after a prosecution has

been started is a very different thing. The fact that a

citizen is brought into Court and charged with an offence

may very seriously affect his reputation and a subsequent

refusal of sanction to a prosecution cannot possibly undo

the harm which may have been done by the initiation of

the first stages of a prosecution. Moreover in our

judgment the official by whom or on whose advice a

sanction is given or refused may well take a different view

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if he considers the matter prior to any step being taken to

that which he may take if he is asked to sanction a

prosecution which has in fact already been started."

The Hon'ble Apex Court further observed that, "the

legal position regarding the importance of sanction under

Section 19 of the P.C.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 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

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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".

18. As far as the issue involved in the case in hand is

concerned, the Director of Education is incompetent

person to accord the sanction and this aspect is dealt with

by the Division Bench of this Court in case of Sau.Jyoti

Ramesh Upase vs. State of Maharashtra supra wherein it

is observed that, "the service conditions of the petitioner

are governed by the provisions of the Maharashtra

Employees of Private Schools (Conditions of Service)

Regulation Act, 1977 hereinafter referred to as Act of

1977. The petitioner has been working as the Head

Mistress of the school and as per the provisions of Act of

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1977 and the Rules framed thereunder, the appointment

of the petitioner has to be by the "Management" as

defined under Section 2(12)(c) of the Act of 1977.

Consequently, the Authority Competent to remove the

petitioner from the service is the Management of the

school. The Investigating Officer had sought the sanction

of the Management by the communication dated

22.10.2008 but the Management had refused to grant

sanction for the prosecution of the petitioner by the

resolution dated 3.1.2009. In our view the prosecution of

the petitioner is illegal and cannot be continued as it is

without there being proper sanction as required by the

provisions of Section 19(1)(c) of the Act of 1977".

19. Thus, even if the competence of the Government

Resolution dated 5.11.2015 is considered. In view of the

decision in the case of The Rajasthan State Industrial

Development and Investment Corporation vs. Subhash

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Sindhi Cooperative Housing Society, Jaipur and ors,

reported in (2013)5 SCC 427, in paragraph No.19, it is

held that, "executive instructions which have no statutory

force, cannot override the law. Therefore, any notice,

circular, guidelines etc. which run contrary to statutory

laws cannot be enforced".

As such, for this reason also, the sanction accorded

by the Director of Education based on such Government

Resolution cannot be said to be a valid sanction under

Section 19 of the P.C.Act.

20. A Coordinate Bench of this Court in cases of

Madhuri Bharat Upadhey vs. State of Maharashtra supra

and Anant Shesharao vs. State of Maharashtra supra and

Pranita Prakashrao Katewale vs. State of Maharashtra

supra held that the Director of Education has no power to

accord the sanction. In paragraph Nos.15 and 16, in

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Pranita Prakashrao Katewale supra this court held as

under:

"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

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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 raised on behalf of the non-applicant State that as long as the Government Resolution dated 05/11/2018 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 .....24/-

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grave error in rejecting the contention raised on behalf of the applicant regarding defective sanction as ground for discharge."

21. The present case is not a case where the question

of invalidity of sanction is raised, but it is 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 P.C.Act will have to be

kept in mind inasmuch as the Special Court cannot take

cognizance of the offence for want of sanction by the

competent authority. This is not case of defective sanction

and, therefore, the contention of learned Additional

Public Prosecutor for the State that the question cannot

be decided at the threshold and should be raised during

the trial cannot be accepted. The Director of Education is