Bombay High Court Maintains Discharge Order Against Public Servant
The Bombay High Court observed that the second trial is not forbidden upon obtaining a valid sanction.
The Nagpur Bench observed thus in a Criminal Writ Petition filed by the State against the Order of the Additional Sessions Judge by which the accused Public Servant was discharged.
A Single Bench of Justice Urmila Joshi-Phalke said, “In the light of the above, it is clear that validity of sanction at any stage renders the trial non-est in the eyes of law. It is also settled that second trial is not forbidden upon obtaining a valid sanction … Here, in the present case, the respondent/accused is facing corruption charges. Admittedly, charges of corruption is serious in nature and when it is alleged against a public servant who agrees to accept amount while performing his/her public duty.”
The Bench added that the discharge of the accused on these grounds would give wrong signal to the society.
Additional Public Prosecutor (APP) M.J. Khan appeared for the Petitioner/State while Advocate K.P. Sadavarte appeared for the Respondent/Accused.
Factual Background
The Respondent-accused was appointed as ‘Talathi’ in 2015 and posted at Khamgaon, District Buldhana. The Complainant’s father had purchased a piece of agricultural land and met the accused to carry out mutation entry on the basis of Sale Deed. It was alleged that the accused demanded Rs. 2,000/- for taking such mutation entry. As the Complainant was not desiring to pay the alleged bribe, he approached the office of the Anti-Corruption Bureau (ACB) and lodged a Complaint. On following procedure, a raid was conducted and the accused was allegedly caught while accepting bribe. Resultantly, chargesheet was filed in the Special Court and the accused applied for discharge on account of invalid sanction on the ground that the sanction to prosecute was accorded by the Sub-Divisional Officer (SDO) who was neither appointing nor removing authority for the accused.
The accused further submitted that he was appointed by the Collector’s Order whilst the SDO merely gave a posting and hence, the sanction was invalid. The Judge, however, declined to entertain the Application on the ground raised therein by saying that the charge was already framed long back. The point of validity of sanction was not raised at earlier point of time and the discharge application was rejected. The accused challenged this via Writ Petition, which was allowed with direction to the Special Court to decide the application afresh. The Special Court after considering the same, discharged the accused and hence, the State was before the High Court.
Reasoning
The High Court in view of the facts and circumstances of the case, remarked, “Thus, what is settled by various pronouncements is that not only grant of valid sanction is essential for taking cognizance by the court but also the question about validity of any such order could be raised at the stage of final arguments after the trial or even at the appellate stage. The legal position clarifying the importance of sanction under Section 19 of the PC Act is clear.”
The Court noted that 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) of the Prevention of Corruption Act, 1988 (PC Act).
“It would be only repetition to say that for proceedings to amount to a trial they must be held before a court which is in fact competent to hold them and which is not of opinion that it has no jurisdiction to hold them. A fortiori it would also follow that the ultimate order made by it by whatever name it is characterized cannot in law operate as an acquittal”it reiterated.
The Court further observed that the second trial is not forbidden upon obtaining a valid sanction.
“As observed earlier, cognizance is taken without a valid sanction though offences under Section 7 and 13(1) of the P.C.Act reveal that the whole trial is null and void”it also said.
While maintaining the order of discharge passed by the Special Judge, the Court granted liberty to the prosecution to obtain the sanction from the competent authority and ordered that on obtaining the sanction, in accordance with law, as the second trial is not forbidden, the accused can be prosecuted.
Accordingly, the High Court partly allowed the Writ Petition, maintained the discharge order, and granted liberty to the State to approach a competent authority seeking valid sanction by following due process of law.
Cause Title- State of Maharashtra v. Sanjay (Neutral Citation: 2025: BHC-NAG: 722)