1 9WP.394-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.394 OF 2011 Shri Ganesh Babusingh Rathod. ..Petitioner. Vs. State of Maharashtra and 4 others. ..Respondents. .......... Mr. Bhushan Walimbe, i/b. Preeti Walimbe, for the Petitioner. Mrs. M.H. Mhatre, A.P.P. for Respondent No.1 – State. Mr. Hiten Venegavkar, for Respondent Nos.2 to 4. Mr. S.H. Joshi, for Respondent No.5. .......... CORAM : A. M. KHANWILKAR AND P. D. KODE, JJ. DATED : 18th OCTOBER, 2011. P.C. 1. Heard Counsel for the Petitioner. 2. This Writ Petition, filed under Article 226 of Constitution of India, in essence, takes exception to the order dated 16.10.2010 passed by the J.M.F.C., 1st Court, Kalyan below Exh.1 in R.C.C. No.670 of 2009 and the decisions / communications of the Sanctioning Authority i.e. Collector, Thane dated 24.01.2011 read PPD 2 9WP.394-11 with 17.2.2009. 3. Briefly stated, it is the case of the petitioner that the petitioner filed a private complaint before the Court of Judicial Magistrate, First Class, Kalyan which came to be registered as RCC No.670 of 2009 pursuant to the liberty given by this Court in order dated 17.11.2009 in Criminal Writ Petition No.32 of 2009. The said complaint has been dismissed by the J.M.F.C., 1st Court, Kalyan vide order dated 16.10.2010 essentially for want of sanction from the competent authority as the accused named in the complaint were Public Servants. Admittedly, the petitioner had applied for grant of sanction to the Collector, Kalyan. However, no sanction was granted by the said Authority till the criminal Court dismissed the private complaint filed by him vide order dated 16.10.2010. 4. In view of the observations made by the criminal Court while disposing of the said complaint, the petitioner once again approached the Collector, Thane for grant of sanction in connection with the stated offences under Sections 120(b), 193, 196, 197, 198, 199, 465, 466, 468, 471, 474, 217, 218, 219 read 3 9WP.394-11 with 34 of Indian Penal Code. The Collector, Thane however by his communication dated 24.1.2011 read with 17.2.2009, has informed the petitioner that there is no provision to accord sanction to prosecute the named accused for offences referred to in the application. 5. We would assume that, what the Collector meant by the said observation, was that, there was no provision in the Right to Information Act requiring sanction to prosecute the authorities under the said Act. 6. As regards, the order of the Magistrate is concerned, we have no hesitation in taking the view that the Magistrate exceeded his authority in disposing of the complaint itself for want of sanction. The Magistrate ought to have kept the said complaint pending till final decision was taken by the Sanctioning Authority on the application made by the petitioner for grant of sanction. 7. The communication sent by the Collector dated 24.1.2011 read with 17.2.2009, by no standard can be construed as a just decision of the Sanctioning Authority – as it merely says that there is no provision to grant such sanction. This opinion 4 9WP.394-11 completely overlooks that the petitioner had applied to the Sanctioning Authority even after the order passed by the Magistrate, which request has been turned down by the Collector vide letter dated 24.1.2011. The question is whether the Collector was right in taking the view that there is no provision to accord sanction to prosecute the named accused who were authorities under the Right to Information Act for offences under the provisions of Indian Penal Code. 8. The Collector has completely glossed over the fact that the petitioner was seeking sanction to prosecute the authorities under the Right to Information Act in relation to offence which was punishable under the provisions of Indian Penal Code. For that, grant of sanction was a condition precedent for taking cognizance by the Court by virtue of Section 197 of Cr.P.C.. 9. In the circumstances, the view taken by the Collector that there is no provision to accord sanction for prosecution of the authorities under the Right to Information Act cannot be sustained in law. 10. As regards the decision of the Magistrate, as aforesaid, the 5 9WP.394-11 Magistrate should have called upon the petitioner to seek response from the Collector of rejection of the sanction on merits. The Magistrate instead proceeded to dispose of the complaint for want of sanction which has necessitated the petitioner to approach this Court challenging the order dated 16.10.2011 as well as the communication dated 24.1.2011 of the Collector and also earlier opinion of the Collector referred to in the Exhibit-X collectively which was incorporated in the communication dated 24.1.2011. 11. As a result, we proceed to pass the following order : [i] The communication / decision of the Collector dated 24.1.2011 read with communication dated dated 17.2.2009 is quashed and set aside and instead the Collector, Thane is directed to reconsider the request made by the petitioner for grant of sanction to prosecute the named accused who are incidentally authorities under the Right to Information Act, for IPC offfences, on its own merits in accordance with law, uninfluenced by his earlier decision. 6 9WP.394-11 [ii] In the interest of justice,we also deem it appropriate to set aside the order dated 16.10.2010 passed by the J.M.F.C., 1st Court, Kalyan below Exh.1 in R.C.C. No.670 of 2009 and instead restore the R.C.C. No.670 of 2009 to the file of the trial Court to be proceeded on its own merits in accordance with law. [iii] We hope and trust that the Collector shall take decision on the application made by the petitioner for grant of sanction as early as possible on its own merits in accordance with law. [iv] With these observations, Writ Petition is disposed of. Rule is made absolute accordingly. (P. D. KODE, J.) (A. M. KHANWILKAR, J.)