ndm 1 5-apeal.1145.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1145 OF 2009 The State of Maharashtra. ... APPELLANT Vs. Gautam Bhagwan Kakade. ... RESPONDENT -------------- Mrs. A.A. Mane, APP for Applicant – State. Mr. M.S. Mohite for Respondent. -------------- CORAM : SMT. R.S. DALVI, J. DATE : 18 th December, 2009. P.C. 1 The appeal has been admitted on 01 st December, 2009 and the R&P was called for after the prosecution as well as the advocate for the Respondent were heard at length on the merits of the prosecution case as well as the requirement of the sanction to prosecute the Respondent herein. 2 It was noticed that sanction to prosecute the Respondent was granted by the Competent Authority on 30.10.1999. The trial had proceeded and three witnesses were examined. These were the complainant, the punch and the I.O. The Sanctioning Authority was not examined though sanction was admittedly granted. ndm 2 5-apeal.1145.09.sxw 3 The R&P now produced, show that three applications was made by the prosecution in writing on 23.02.2009, 12.03.2009 and 17.03.2009 for adjournments to obtain the presence of the Sanctioning Authority for leading his evidence. Initially two applications have been granted by which the trial stood adjourned from 23.02.2009 to 12.03.2009 and 12.03.2009 to 17.03.2009. The reason for first adjournment applied for 23.02.2009 was the marriage of the close relative of the Sanctioning Authority. The reason for the second adjournment granted on 12.03.2009 was that the Sanctioning Authority was busy in election duty. The reason for the third adjournment on 17.03.2009 was that the Sanctioning Authority was unable to come to Court due to election duty. 4 The reason for the first adjournment was completely personal and it was in the discretion of the Court to grant or refuse it. A government servant, who is responsible government officer, may be called upon to attend to his duty in giving evidence in the Court despite the marriage of his close relative. However, the learned Judge has used his discretion in allowing the Sanctioning Authority the adjournment on that ground. 5 The second and third adjournments are for the Sanctioning Authority to perform his professional duty at another place. It is common knowledge that the number of matters are adjourned in all the Courts to enable government officer including the police to perform the election ndm 3 5-apeal.1145.09.sxw duty during the period of election. The learned Judge has somehow not granted liberty to the Sanctioning Authority to perform that duty by refusal of the third adjournments. It is seen that only five days period was granted for the second adjournment and the government officer, who was on election duty, would not be able to attend the Court as much on the third date of hearing and as on the second date of hearing. Consequently, the purpose of granting the two adjournments to a date when election duty would not be over is self frustrating. It is because of the professional work of the public officer in performing another public duty that the entire prosecution case has gone by default. 6 It would therefore be completely unjust to consider the appeal until this error is remedied. In the interest of justice, the requirement of the recording of evidence of the Sanctioning Authority, who has admittedly sanctioned the prosecution since 1999 must be complied with. It is only then that the parties can be heard on the merits on their respective cases. 7 Hence without going into the merits of the appeal, the following order is passed: I. The order of the learned Special Judge-1, Satara dated 30.03.2009 is set aside for want of the evidence of the sanction alone. II. The case is remanded to the Court of the learned Special ndm 4 5-apeal.1145.09.sxw Judge-1, Satara for recording the evidence of the Sanctioning Authority. III. Both the parties shall be entitled to be heard upon their respective cases after that evidence is recorded. IV. The learned Judge shall reconsider the case entirely after that evidence is recorded. V. All contentions of all parties are kept open. 8 Criminal Appeal is disposed of accordingly. [ SMT. R.S. DALVI, J ]