THE STATE OF MAHARASHTRA Vs. MADHAVRAO JALBAJI KARNALE

JUDGEMENT

(1.) HEARD . Rule. Rule made returnable forthwith and heard with the consent of parties.

(2.) THE State being aggrieved by the order dated 27.08.2014, passed by the Special Judge (PC Act), Aurangabad, below Exh. 63 in Special Case No. 37 of 2009, has filed present application. The respondent herein is being tried as an accused in Special Case No. 37 of 2009 for offences punishable under sections 7, 13 (1)(d) read with 13 (2) of the Prevention of Corruption Act, 1988. The substantive evidence of the sanctioning authority had commenced in the year 2010. The recording of substantive evidence was concluded on 21.10.2010. The sanctioning authority i.e. P.W. 1 -Mr. Shriprakash Waghmare had deposed before the Court that at the time of raid, the accused was working as an Assistant Sub -Inspector. After being satisfied that prima facie case was made out, P.W. 1 had accorded sanction, which is at Exh. 11. It was elicited in the cross -examination that Aurangabad city comes under Commissionerate since 1991. The witness had denied the suggestion that it is only the Commissioner of Police, who is empowered to accord sanction against an A.S.I. The Special Court had recorded substantive evidence of P.I. Yogesh Gawade in July, 2014. The Special Court had recorded substantive evidence of Mr. Ramnath Deorao Chopde, Dy. S.P., Anti -corruption Bureau on 11.08.2014.

(3.) THE prosecution had filed an application below Exh. 63. It was contended in the said application that the case is posted for evidence. However, it is a matter of record that on 11.08.2014, the recording of evidence had been completed. It is contended in the said application that at the time of raiding, the accused was P.S.I. and the competent authority to appoint and remove a person on the post of P.S.I. was Director General of Police, Maharashtra State, Mumbai, and therefore, the sanction of competent authority was essential. In order to enable the prosecution to send the case papers for want of sanction by the competent authority, the prosecution had solicited stay to the proceedings till the prosecution obtains sanction from the competent authority. Learned Special Judge has rightly rejected the application. Learned Special Judge had observed that the accused is facing trial since last five years and it is also observed that the prosecution had examined P.W. 1 in the year 2010 and at that stage itself the prosecution was fully aware that the sanction accorded to prosecute the accused is an invalid sanction. However, it appears that only because the accused in Special Case No. 6 of 2010 was acquitted in the judgment and order dated 03.12.2012, the prosecution had taken steps to obtain a fresh sanction, which would not be a valid sanction in the eyes of law. The sanction to prosecute a public servant cannot be treated as an idle formality. There is no question of reviewing sanction once accorded. Sending a matter for obtaining sanction to competent authority after recording of substantive evidence in a trial would amount to abuse of process of law. There is no question of subsequent authority according sanction as the trial had already proceeded and the prosecution had opened defence.