Whether the court should acquit an accused for an offence under the Prevention of Corruption Act if there is not valid sanction for prosecution?

 The respondent/accused was appointed by the Secretary to the Government of Maharashtra vide appointment letter dated 27th September 1995. The sanction for prosecution has been granted by PW4, Under Secretary to the State of Maharashtra. PW4 in his cross-examination has admitted that he was 5th in the hierarchy after Principal Secretary, Secretary, Joint Secretary and Deputy Secretary. He also admitted that as per the Government Rules, only the appointing authority is empowered to remove the Government Servant. He admitted that he has not seen the appointment letter by which the respondent/accused was appointed by the Secretary to the State of Maharashtra. He in his cross-examination also admitted that in case of minor offences, sanction of prosecution should not be granted and departmental inquiry should be ordered. He admitted that he did not call for any papers relating to the matter nor did he put the note to the superior officer before granting the sanction to prosecute the respondent/accused. Let me now examine based on these facts, whether sanction was obtained from competent authority under Section 19 of the P. C. Act. Section 19(1)(b) of the P. C. Act provides that in the case of a person who is employed in connection with the affairs of the State and is not removable from his office save by or with the sanction of the State Government, the sanction for prosecution should be granted by the State Government and Section 19(1)(c) provides that in the case of any other person, the sanctioning authority would be the authority competent to remove the accused from his office. In the instant case, PW4-Under Secretary has admitted that the appointing authority of the respondent/accused is the Principal Secretary. If that be so, then under Section 19, the power to remove the respondent/accused would be with the Principal Secretary and, therefore, it is the Principal Secretary, who was supposed to sanction the prosecution under Section 19 and not the Under Secretary and, therefore, on this count, the prosecution should not have been initiated under the P. C. Act without obtaining the sanction of the appropriate authority. Therefore, the sanction having not been obtained by the competent authority, the impugned judgment acquitting respondent/ accused does not call for any interference. The view taken by me is supported by a decision of the Co-ordinate Bench of this Court in the case of State of Maharashtra Vs. Ramchandra Sudam Ingale 2008 SCC Online Bom 1765 and Gopal Vs. State of Maharashtra 2010 SCC Online Bom 600.

{Para 5}

6. PW4 in his cross-examination has also admitted that he did not call for any papers relating to the matter nor had he discussed this issue with his superior before granting the sanction. PW4 has thereby admitted that he has not applied his mind to the facts of the case before granting the sanction. Therefore, even on this count, the sanction granted by the Under Secretary (assuming he is empowered) is without application of mind and, therefore, such a mechanical sanction does not pass the test of Section 19 of the P. C. Act for launching the prosecution.

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 1301 of 2012

Decided On: 03.10.2023

The State of Maharashtra Vs. Anil Kacharu Shinde

Hon'ble Judges/Coram:

Jitendra Jain, J.

Citation: MANU/MH/3982/2023.

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