.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.713 OF 2004 Sarjerao Bacharam Desai, ] Adult, Occ.Service, ] R/o. Pernoli, Tal.Ajara, ] Dist. Kolhapur. ] ..APPELLANT Versus The State of Maharashtra.] ..RESPONDENT. .... Mr.B.R.Patil, Adv. for the Appellant. Mr.K.V. Saste, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 13th June, 2008. DATED : 13th June, 2008. DATED : 13th June, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Through this appeal, the appellant-orig.accused has challenged the judgment and order dated 7th May, 2004 passed by the learned Special Judge, Gadhinglaj in in Special Case No.1 of 2003. By the said judgment and order, the learned Special Judge convicted the appellant-orig.accused for the offence punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. For the offence punishable under Section 7 the applicant has been sentenced to suffer R.I. for two years and pay fine of Rs.2000/- in default R.I. for .(2). three months, and for the offence punishable under Section 13(1)(d) the applicant has been sentenced to suffer R.I. for three years and to pay fine of Rs.3000/- in default R.I. for six months. The learned Special Judge directed the substantive sentences of imprisonment to run concurrently. 2. The case of the prosecution is that the complainant submitted an application with the applicant who was working as Kamgar Talathi at Nesari to enter the names of his sons in the record of rights in the agricultural land at Nesari, District - Kolhapur. It is the further case of the complainant that the accused demanded and accepted Rs.200/- to do the said work. After completion of investigation, charge-sheet came to be filed. 3. Charge came to be framed against the appellant for the offence punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 The appellant pleaded not guilty and claimed to be tried. The defence of the accused person is that of total denial and false implication. After going through .(3). the evidence adduced by the prosecution, the learned Special Judge convicted and sentenced the appellant-orig.accused, as stated in para-1 above. Hence this appeal. 4. I have heard Mr.Patil the learned Counsel for the Appellant-orig.accused and Mr.Saste, the learned APP for the State. I have also perused the impugned judgment and order as well as the record pertaining to the present case. 5. In my view the appeal deserves to succeed on a single point i.e. the sanctioning authority did not have the power to accord sanction to prosecute the accused. Hence in such case, it is not necessary to advert to other evidence. In the present case, the sanction has been accorded by PW-5 Sou.Nandini Aavade. This witness has stated that she was the Sub-Divisional Officer at Gadhinglaj at the relevant time. The accused was working as Kamgar Talathi at Nesari sajja. The accused was appointed as Kamgar Talathi on 15.2.1974. She accorded the sanction in the said case to prosecute the accused. In her cross-examination this witness has admitted that .(4). the appointment of the present accused was not made by her. The accused was selected as Kamgar Talathi at Pernoli sajja Taluka Ajara. She has admitted that the appointment of Kamgar Talathis have been made by the District Collector. 6. The learned Counsel for the appellant has submitted that the appointment of Kamgar Talathi was made by the District Collector however PW-5 Sou.Nandini Aavade who is the Sub-Divisional Officer has accorded sanction to prosecute the accused. He submitted that the Sub-Divisional Officer being subordinate in the rank to the Collector could not have accorded sanction to prosecute the accused. In support of this contention, reliance was placed on two decisions of this Court in the case of Sakharam Trymbak Sakharam Trymbak Sakharam Trymbak Patil Vs. State of Maharashtra, Patil Vs. State of Maharashtra, Patil Vs. State of Maharashtra, reported in 1993 1993 1993 Mh.L.J. 276 Mh.L.J. 276 Mh.L.J. 276 and in the case of Bhaurao Marotrao Bhaurao Marotrao Bhaurao Marotrao Manekar Vs. State of Maharashtra Manekar Vs. State of Maharashtra Manekar Vs. State of Maharashtra reported in 1980 1980 1980 Mh.L.J. 445 Mh.L.J. 445 Mh.L.J. 445. In the case of Sakharam Patil (supra) the appointment of respondent who was Patwari was made by the Collector. The sanction to prosecute him was granted by Sub-Divisional Officer. This Court held that the Sub-Divisional .(5). Officer is an officer subordinate to the Collector, therefore the sanction granted by the Sub-Divisional Officer is invalid, hence conviction came to be set-aside. In the case of Bhaurao Manekar (supra) the accused was Talathi. The appointment was made by the Collector. However the Sub-Divisional Officer granted sanction for prosecuting the accused who was a Talathi. The Court held that sanction was not valid and delegation of power under Maharashtra Land Revenue Code does not empower the Sub-Divisional Officer to grant sanction if person is appointed by the Collector. The Court further observed that, "The Sub-Divisional Officer thus is subordinate in rank to the Collector, though there may not be any subordination in respect of powers and duties by virtue of sections 7(4) and 13(4) of the Code." In view of these facts, this Court held that the sanction was not legal and proper and hence the learned Special Judge could not have taken cognizance of the offence on the sanction granted by the Sub-Divisional Officer, which was bad and invalid in law. 7. Both the above decisions on which reliance .(6). is placed apply on all fours to the facts of the present case. Hence, the conviction of the appellant cannot be sustained. 8. In the result, the appeal is allowed. The judgment and order dated 7th May, 2004 passed by the learned Special Judge, Gadhinglaj in Special Case No.1 of 2003 is set aside. The appellant- Sarjerao Bacharam Desai is acquitted of the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Appellant is on bail. His bail bonds shall stand cancelled. Fine amount, if any, paid by the appellant shall be refunded to him. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)