CENTRAL BUREAU INVESTIGATION Vs. MANOHAR BABURAO NANDANWAR

JUDGEMENT

(1.) Non applicant was prosecuted under Section 120B, 409, 471, 477A of the Indian Penal Code and under Section 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act 1988 in Special Case Nos. 37/2003 and 38/2003. The said Special Cases were lodged with Special Court under the Prevention of Corruption Act by Central Bureau of Investigation, Nagpur. In the said special cases, the non applicant filed applications below Exh.-41 and Exh.-48 respectively for discharge on the ground that the sanction granted to prosecute the non applicant was illegal. It is noticed that the applications at Exh.42 and 49 were filed by the present non applicant for examination of the sanctioning authority before the charge is framed. Those applications were granted by order dated 21.01.2003 by learned 4th Additional Sessions Judge and Judge, Special Court under Prevention of Corruption Act for C.B.I. Nagpur. Accordingly, the person, who had granted sanction, came to be examined and after his evidence was over, the learned Judge heard the learned Advocates for both the sides and discharged the non applicant by judgment and order dated 04.08.2005 by observing that the sanction granted was illegal.

(2.) Before this Court, the learned Special Counsel Mr. Ahirkar appearing on behalf of the applicant submitted that the procedure adopted by learned Judge, Special Court is patently incorrect and it was not open for the learned Judge to examine any witness before framing of charge. According to Mr. Ahirkar, since the procedure followed by learned Judge, Special Court was wrong, the finding recorded by the learned Judge deserves to be set aside. He further submitted that the learned Judge erred in discharging the present non applicant of various other offences, viz. offence punishable under Sections 120B, 409, 471, 477A of the Indian Penal Code, though for the purposes of those offences, question of sanction was not required to be gone into.

(3.) Learned Advocate Mr. Pathak, appearing on behalf of non applicant, contended that the learned Judge by passing order dated 21.01.2003 directed the sanctioning authority to lead evidence. He drew my attention to judgment of Rajsthan High Court in Ganesh and Ors. v. The State,1963 2 CrLJ 109. According to him, in the absence of express provisions in Section 240 of the Code of Criminal Procedure for taking evidence before charge, the Magistrate is not prevented from examining the witness under Section 311 at the time of considering framing of charge. The learned Advocate for the non applicant also contended that the application to examine sanctioning authority was filed by making use of provisions of Section 311 of the Code of Criminal Procedure. The learned Advocate for the non applicant tried to submit that if the learned Judge, Special Court has recorded a finding that the sanction granted was illegal, now it would not be proper to set aside the said order and call upon the prosecution to conduct trial against present non applicant. Learned Advocate for the non applicant supported impugned order dated 04.08.2005.