1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REV.APPLICATION NO.346 OF 2006 Rajendra Tatoba Magdum .. Applicant Versus State of Maharashtra .. Respondent Mr.S.R.Chitnis, Senior Advocate with Ms.V.R.Raje for applicant Mr.Rajesh More, A.P.P. for State Mr.J.C.Satpute for C.B.I. CORAM : S.C.DHARMADHIKARI, J. DATE : 17th January 2007 ORAL JUDGEMENT:- . Rule. Respondents waive service. By consent, rule made returnable forthwith and is heard. 2. This criminal revision application is directed against the order below Exh.34 in Special Case No.8 of 1998. The order under challenge was delivered on 23rd June 2006 and the 2 learned Special Judge (Prevention of Corruption Act Cases) Raigad held that the order of sanction for prosecution of the present applicant - original accused is legal, valid and proper and the trial can proceed further in pursuance of the same. 3. It is aggrieved by this order that the present revision application is filed. 4. Brief facts leading to the impugned order are, that the applicant original accused before me, is prosecuted and facing trial for offences punishable under section 7, 13(1), (d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short "P.C.Act"). The proceedings are in pursuance of a police report filed by Anti Corruption Bureau, Thane. The summons was issued against the petitioner and he filed an application, Exh.34 praying for discharge. The issue of discharge was argued on the basis that 3 the applicant while functioning as Asstt.Manager, Port Planning Department, Environment Section of JNPT during the month of January 1997 abused his official position inasmuch as he demanded and accepted illegal gratification from Mr.Uday Dinkar Sathe, Manager of M/s.Unique Nursery, Chinchawad, Pune for certifying bills of Unique Nursery for payment and for not raising objections to the said bills which M/s.Unique had submitted for the execution of the contract work pertaining to maintenance of gardens, lawns, trees, shurbs, abroculture/horticulture works for Port and JNPT township areas. It is alleged that M/s.Unique Nursery, Chinchawad, Pune had been awarded two contracts of arboriculture and horticulture works for port areas and JNPT Township areas and subsequently the contract for port area work was extended by issuing another work order. On 10th January 1997 at about 11.30 hrs. the said Shri Uday Sathe, Manager of M/s.Unique Nursery had submitted two bills of 4 Rs.2,61,413.84 for the period from 28th November 1996 to 27th December 1996 of Township area and another bill of Rs.1,71,958.60 for the period from 1st December 1996 to 31st December 1996 for Port Area in respect of execution of the aforesaid contract work. Accused while functioning as such was supposed to certify the aforesaid two bills for payments by the Finance Department after satisfying that the same were in order. On 10th January 1997 the accused demanded illegal gratification of Rs.75,000/- from the said Uday Sathe, Manager M/s.Unique Nursery, when the latter contacted the former in connection with the aforesaid two bills submitted in the office. The accused agreed to accept illegal gratification of Rs.25,000/- from the said Uday Sathe for certifying the aforesaid two bills and for not raising any queries thereon. On 13th January 1997 the accused repeated the aforesaid demand of illegal gratification of Rs.25,000/- from the said Uday Sathe, Manager, Unique Nursery 5 for the aforesaid purpose and agreed to accept the said amount of Rs.25,000/- on 14th January 1997. On 14th January 1997 the accused in pursuance of the aforesaid demand accepted the illegal gratification of Rs.25,000/- from the said Uday Sathe for the aforesaid purpose. The said acts on the part of accused constitute offences punishable under sections 7, 13(1)(d) read with 13(2) of P.C. Act, 1988. 5. The order of sanction issued on 5th May 1998 proceeds on the basis that the applicant was initially appointed in the Forest Department of the State Government as Range Forest Officer and sent on deputation to JNPT as Assistant Manager (Environment) Port and Planning Department. The prosecution proceeds on the basis that the sanction order is legal, valid and proper because although the applicant was sent on deputation to JNPT his initial appointment is by the State of Maharashtra as Range Forest Officer. Therefore, 6 even if the acts complained of are committed during the course of such deputation, initial appointment being as Range Forest Officer, under the State of Maharashtra, sanction for prosecution could have been granted only by the State of Maharashtra. In other words, the authority who had borrowed the services of the applicant on deputation could not have sanctioned his prosecution, even if the acts complained of were committed during the course of the Applicants’ work as Deputationist with JNPT (borrowing authority). 6. The applicant accused on the other hand urges that such a sanction is contrary to section 19 of P.C. Act and it is J.N.P.T. which was sanctioning authority as the acts complained of were committed during the course of applicant’s work as Asstt.Engineer (Environment) with J.N.P.T. That objection of the applicant accused is over-ruled and hence, instant revision 7 application. 7. Mr.Chitnis learned Senior Counsel appearing for applicant submits that the initial appointment of the applicant as Range Forest Officer is immaterial for the purposes of consideration of the issue of sanction. He submits that the applicant may have been sent on deputation to JNPT but it cannot be forgotten that JNPT is governed by Major Port Trust Act, 1963 which is an act of Parliament and the authority thereunder for all purposes including supervision and control of the employees is the Central Government. In other words, his submission is that the disciplinary control over the applicant is that of the Central Government and/or the authority under the Major Port Trust Act. This Act of parliament does not make any distinction between employees directly appointed by JNPT or by Central Government or whose services have been made over to the same. In 8 these circumstances, the applicant is an employee appointed in connection with the affairs of the Central Government. Therefore, the sanction ought to have been granted only by the Central Government. The Central Govt. having not granted the sanction, the order of sanction passed by the Government of Maharashtra, Revenue and Forest Deptt. is illegal. Mr.Chitnis has invited my attention to the office order pertaining to the applicant, issued on 7th August/12th August 1996. He has invited my attention to Chapter III of the Major Port Trust Act 1963 and contended that the power to make appointments whether temporary or permanent shall be exercisable by the Central Government after consultation with the Chairman of the Board. Section 25 provides for power to promote, grant leave etc. to employees of the Board. He submits that these provisions coupled with the power to make regulations conferred by section 28 would go to show that there is no substance in 9 the contentions of the prosecution that the initial appointment of the applicant being as Range Forest Officer under the State Government, it is the sanctioning authority. 8. Mr.Chitnis seeks to derive support from the fact that in the F.I.R. itself, it has been pointed out that the applicant being working with JNPT, the investigations were transferred to Anti Corruption Branch, CBI vide letter dated 18th March 1997, since the applicant accused is Central Government employee. According to Mr.Chitnis, this puts the matter beyond any controversy and, therefore, the sanction order is clearly vitiated in law. He submits that the learned Judge failed to appreciate this distinction so also the law laid down by the Supreme Court in the case of R.S.Nayak Vs. A.R.Antulay, reported in A.I.R. 1984 S.C. 684. He submits that the decision relied upon by the learned Special Judge in the case of R.R.Chari 10 Vs. State of U.P. reported in A.I.R. 1962 S.C. 1573 would not be applicable. Apart from the fact that said decision being distinguishable on facts, the principle laid down therein is no longer good law, in the light of the subsequent Constitution Bench decision of the Supreme Court in the case of Antulay (supra). 9. On the other hand, Mr.Satpute has supported the impugned order. In this context, it is pertinent to note that this Court directed that Union of India should be impleaded as party respondent to this revision application. State of Maharashtra is respondent No.1 whereas Union of India is respondent No.2. Notice was issued to respondent No.2, Union of India and Mr.Satpute appears for Union of India. Union of India supports the impugned order and takes a stand that the sanction order is legal, valid inasmuch as the Central Government is not the sanctioning authority. The sanction has been rightly given 11 by the State Government as the substantive appointment of the applicant is under the State Government. His services have been made over to the JNPT/Central Government on deputation basis. The law is very clear inasmuch as a person sent on deputation to another organisation does not become an employee of that organisation but continues as employee of the parent department. Therefore, the duration of applicant’s service with JNPT is immaterial. For the purposes of applicant’s service with JNPT, he is governed by the service regulations of JNPT and the statutory provision referred to by Mr.Chitnis. However, for the purpose of sanction for prosecution under the P.C. Act, the parent department alone would be the proper authority. Mr.Chitnis relied upon the following decisions in addition to the one in the case of Mr.A.R.Antulay. (supra) i) S.K.Bhatia Vs. C.B.I. (2004 Cri.L.J. 4730) 12 ii) Dilawar Singh Vs. Parvinder Singh (2005) 12 S.C.C. 709; 10. Mr.Satpute has relied upon the decision in the case of Mr.Chari (supra) and has contended that the view taken by the learned Judge is the only view possible in law. Additionally, Mr.Satpute relies upon a decision of the Supreme Court reported in A.I.R. 1975 S.C. 899 (V.K.Sharma Vs. State (Delhi Administration). He has also sought to distinguish the judgements relied upon by Mr.Chitnis. 11. For properly appreciating the rival contentions, a reference will have to be made to P.C.Act and more particularly Section 19 thereof. 12. A perusal of the same would indicate that the Act is framed for the purpose of curbing and 13 controlling the corrupt practices and criminal misconduct on the part of public servants. It is not disputed before me that the applicant is a public servant and covered by the P.C. Act. That the offences alleged against the applicant would fall within the purview of the P.C. Act is also not disputed for the purpose of present revision application. The only argument is with regard to the validity and legality of the sanction order. It appears that an application was preferred on 12th January 2006 by the applicant in the above special case alleging therein that in the light of the provisions contained in section 19 of the Act, the Special Judge will have to decide whether legal and valid sanction has been given by the authority competent to remove the applicant from his office. It is urged that the order of sanction for prosecution is not legal and valid. It does not comply with the requirements of law. It is not passed by the authority competent to do so. 14 In such circumstances, the application of the applicant prayed that the issue of legality and validity of the sanction be decided first and the prosecution be directed to lead evidence. 13. Upon this application a direction was issued with the consent and concurrence of prosecution by learned Special Judge on 2nd March 2006. The direction is that the prosecution must lead evidence on the point of sanction. 14. Accordingly, one Ambadas Vitala, retired Joint Secretary, Government of Maharashtra stepped into the witness box. 15. He states that at the time of his retirement he was working as Joint Secretary, Government of Maharashtra, Revenue and Forest Department. He was holding charge of Forest Department. He received papers of investigation in Crime No.19 of 1997 of CBI, ACB, Mumbai from 15 the Chief Conservator of Forest (Administration) Nagpur along with his letter. The Chief Conservator of Forest also forwarded to the witness report of CBI. Upon scrutiny of all the papers and a careful examination thereof as per the procedure, record was forwarded to the Secretary, Government of Maharashtra, Department of Law and Judiciary. The said department processed the papers and opined that prosecution should be launched. Thereafter, the papers were forwarded to the R & F.Dept. The Deputy Chief Minister of State of Maharashtra was also the Minister for Revenue and Forest Department. He gave approval for launching prosecution and, thereafter, the draft sanction order was prepared which was approved by L and J.D. and subsequently, issued on 5th May 1998. 16. In the cross examination on behalf of the applicant, a specific Question was put to the witness, and, he answered that the applicant’s 16 initial appointment was with the State of Maharashtra as Range Forest Officer. He was sent on deputation to JNPT. JNPT is Government of India undertaking. The witness stated that it is true that the service conditions of the Applicant during his period of deputation was, according to rules applicable to the employees of Central Government. As far as the work of the applicant is concerned, according to witness, the applicant was required to follow the guidelines issued by the JNPT. In para 5 of his deposition, the witness has answered that officials in the employment of Central Government are subject to jurisdiction of CBI whereas those in the employment of State Government are subject to the jurisdiction of ACB. J.N.P.T. is within the jurisdiction of Raigad district and it is correct that complaint was made to the officials of ACB at Thane. Offence was registered at Nhava Sheva police station. A suggestion was given to the witness that after the trap, investigation was 17 handed over to CBI but he denies the same. 17. Be that as it may, from the deposition of the witness it does not appear to me that he was questioned with regard to State Government’s competence and authority to sanction prosecution. All that has been done is to give some suggestions with regard to the investigations and the merits of the charges. Therefore, the issue of legality and validity of the sanction as urged before me was apparently raised during the course of oral arguments before the Special Judge. He having permitted raising of the same, in my view, it will be proper to deal with the issue of legality and validity of the sanction order. 18. At the outset, the Supreme Court has time and again observed that a sanction order should speak for itself. A sanction order showing prima facie application of mind is a valid sanction order. It is not necessary to mention in the 18 sanction order that the sanctioning authority or any one on his behalf has scrutinised the records and arrived at subjective sanction that sanction is necessary. While it is true that the prosecution is bound to prove that valid sanction is granted by the sanctioning authority, it is not as if the sanction order should be so elaborate like an order of court containing detailed reasons. Ultimately the object of grant of sanction is that the authority giving the sanction should be able to consider the evidence and material before it comes to a conclusion that prosecution in the circumstances be sanctioned or forbidden. In C.S.Krishnamurthy Vs. State of Karnataka reported in A.I.R. 2005 S.C.2790 the Supreme Court has observed thus:- "8. In this connection, a reference was made to a decision of the Constitution Bench in the case of R.S. Pandit Vs. State of Bihar reported in 19 (1963) Supp. 2 SCR 652 wherein their Lordships after referring to a decision of the Privy Council in the case of Gokulchand Dwarkadas Morarka Vs. The King (A.I.R 1948 PC 82) observed as under:- ." Section 6 of the Act also does not require the sanction to be given in a particular form. The principle expressed by the Privy Council, namely that the sanction should be given in respect of the facts constituting the offence charged equally applies to the sanction under Section 6 of the Act. In the present case all the facts constituting the offence of misconduct with which the appellant was charged were placed before the Government. The second principle, namely, that the facts should be referred to on the face of the sanction and if they do not so appear, the prosecution must prove them by extraneous evidence, is certainly sound having regard to the purpose of the requirements of a sanction". 9. Therefore, the ratio is sanction 20 order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself than the satisfction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. Moreso, as pointed out, the sanctioning authority has come in the witness box as witness No.40 and has deposed about his application of mind and after going through the report of Superintendent of Police, CBI and after discussing the matter with his legal department, he 21 accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is justified." In the context of section 197 of Cr.P.C. the Supreme Court has observed that the authority removing the public servant in office may be higher in rank to the appointing authority and its sanction for prosecution, therefore, is not invalid. In other words, a sanction for prosecution given by an authority higher than the appointing authority is valid. However, the sanction cannot be granted by any inferior authority. As far as competency of the authority is concerned, the issue will have to be decided in facts of each case, depending upon the employment of the public servant. 22 19. In the present case, the Special Judge has held that initial appointment of the applicant was not by the Central Government and, therefore, assuming that he was sent on deputation to the Central Government or any other authority, yet, he continue to be employee in connection with the affairs of the State Government. The State Government was, therefore, competent to remove him from service. In such circumstances, order of sanction by the State Government is legal and valid and not liable to be interfered with. 20. With the assistance of Mr.Chitnis and Mr.Satpute I have perused the relevant statutory provisions and the decisions brought to my notice. It is not possible for me to accede to the submissions of Mr.Chitnis that the decision relied upon by the learned Special Judge viz., R.R.Chari Vs. State of U.P. reported in A.I.R. 1962 S.C. 1573 is no longer a good law in the 23 light of the decision in the case of Mr.Antulay. Reliance by Mr.Chitnis on the observations of the Supreme Court in para 23 of Antulay’s case does not advance his case any further. Para 23 of this decision really emphasises the aspect that sections in the old P.C. Act and I.P.C. codified a well recognised truism that power has the tendency to corrupt. It is the holding of the office which gives an opportunity to use it for corrupt motives. Therefore, the corrupt conduct is directly attributable and flows from the power conferred on the office. This inter relation and inter dependence between an individual and office he holds is substantial and not severable. 21. There is a reference to power to grant sanction and the Supreme Court has reiterated the principle that grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government 24 servants against frivolous prosecution and the aforesaid requirement of sanction must, therefore, be strictly complied with before any prosecution could be launched against a public servant. It is true that the Supreme Court has observed in Antulay’s case that the authority which would be competent to judge whether there has been abuse or misuse of office by a public servant is the one competent to remove him from his office. The importance of conferring power to grant sanction on such an authority cannot be in doubt. 22. However, there is substance in the contention of Mr.Satpute that the decision in Antulay’s case must be confined to the issue before the Supreme Court viz., whether the sanction was necessary to prosecute Mr.Antulay for various offences alleged to have been committed by him when he was Chief Minister and a public servant. The case is under the old P.C. 25 Act and there, Antulay was held to be a "public servant" within the meaning of the said term as defined under section 21 of the I.P.C. However, Antulay resigned from his office with effect from January 20, 1982 but continued to be a sitting MLA. It is in such circumstances, that the question arose before the Supreme Court as to whether sanction was necessary for prosecution of Mr.Antulay, who was an MLA. Argument that MLA was a "public servant" within the meaning of the said expression as defined in I.P.C. and sanction to prosecute him was necessary. The Special Judge trying Mr.Antulay accepted the objection that sanction was necessary from the Speaker of the Maharashtra Legislative Assembly and that having not been placed on record, the discharge application deserves to be granted. Ultimately, the Supreme Court allowed the appeal preferred by Mr.Ramdas Nayak original complainant and set aside the order of Special Judge discharging Mr.Antulay. The Supreme Court held 26 that MLA is not a public servant. While it is true that during the course of deciding the wider issue, the Supreme Court referred to Chari’s case, however, perusal of para 19 of the decision of the Supreme Court in Antulay’s case would reveal that the reference is for the purpose of emphasising the need for sanction for prosecuting public servant. It was not a case of a person who is permanently and substantively appointed by the State Government and was on deputation. 23. The issue raised before me was neither raised nor was subject matter of decision of the Supreme Court in Antulay’s case. Hence, there is no substance in the contention of Mr.Chitnis that Chari’s case is impliedly over-ruled or is no longer good law in the light of the decision in A.R.Antulay’s case. 24. Now, it is necessary to refer to the decision in the case of Chari. The said decision 27 of the Supreme Court, according to Mr.Satpute, deals with an identical controversy. The argument before the Supreme Court was that Chari was permanent employee in a gazetted post under Government of Assam in 1941. His services were lent to Government of India. His first appointment was under the Government of Assam. He on transfer came to Delhi in the office of Master General of Ordnance and subsequently transferred to Kanpur as Assistant Iron and Steel Controller. He was later on made Iron and Steel Controller Kanpur circle and he held that post during the period covered by the charges which were held against him. Government of India wrote to Assam Government intimating that it has decided to Re-place the services of Chari at the disposal of Assam Government on the expiry of his leave period. It appears that the leave period was extended by the Central Government from time to time and it suspended Chari and later on arrested him. Thereafter, Govt. of India 28 accorded sanction for prosecution of Chari under section 197 Cr.P.C. on January 31, 1949.