1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL REVISION APPLICATION NO.536 OF 2009 The State of Maharashtra ...Applicant. v. Kalidas N. Bharate ...Respondent. Mr.S.N.Gawade, APP For the Applicant/State. Mr.D.S.Mhaispurkar, adv. For the Respondent. CORAM : J.H. BHATIA, J. DATED : JUNE 9, 2010 P.C. 1 Respondent/accused was in Government service as Superintendent in Education Department. He was trapped and was found accepting bribe of Rs.1,000/-. After investigation, charge-sheet was filed by the Deputy Superintendent of Police, Anti Corruption Bureau, Sangli in the Court of Special Judge at Sangli. It was registered as Special Case No.2/2008. Accused/respondent filed an application for discharge under Section 227 of the Cr.P.C. on the ground that no sanction was accorded by the Sanctioning Authority. It was brought to the notice of the trial Court that since the accused had not passed any requisite examination during the probation period, his services were terminated with effect from 17.2.2007 and as the accused was no more in the Government employment, sanction could not be accorded by the 2 Education and Sports Department. The learned trial Court allowed the application and discharged the accused for want of sanction to prosecute him for the offences punishable under the Prevention of Corruption Act. That order dated 22nd May, 2009 is challenged in the present revision application by the State. 2 The learned APP for the State contended that if the accused was public servant at the time of committing offence of corruption but was no more public servant when the Court was called upon to take cognisance of the case, it is not necessary to have any sanction for the prosecution of the accused and he finds support for this proposition from various authorities. In S.A.Venkataraman v. State of U.P. AIR 1958 SC 107, Their Lordships observed as follows in paragraph 16: “(16) In our opinion, in giving effect to the ordinary meaning of the words used in S.6 of the Act, the conclusion is inevitable that at the time a Court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of S.6 can apply. In the present appeals, admittedly, the appellants had ceased to be public servants at the time the Court took cognizance of the offences alleged to have been committed by them as public servants. Accordingly, the provisions of S. 6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority.” 3 This authority was reiterated by the Supreme Court in R.S.Nayak v. A.R.Antulay 1984 (2) SCC 183 (Paragraph 19) and again in Prakash Singh Badal & Anr. v. State of Punjab & Ors. AIR 2007 SC 1274. 3 The learned counsel for the accused/respondent fairly conceded that in view of this legal position, sanction was not required if the accused was not in service when the trial Court was called upon to take cognisance. However, the learned counsel for the accused/respondent points out that the order terminating service of the accused for not getting through appropriate departmental examination was revoked and he has been reinstated by the order dated 22nd October, 2008 and at present, he is in service. It appears that when the impugned order dated 22nd May, 2009 was passed, the order dated 22nd October, 2008 was not brought to the notice of the Court. The learned Special Judge had proceeded to pass the impugned order on presumption that the accused was not in service but also committed error in holding that sanction was necessary even though accused was not in service. It appears that the Sanctioning Authority had not considered the proposal for according sanction because at the relevant time accused was not in service. As he has been reinstated to the same post, sanction from the sanctioning authority will be necessary for his prosecution. For this 4 Sanctioning Authority will have to be given some reasonable time to consider the proposal. 3 For the aforesaid reasons, the impugned order is hereby set aside. However, the Sanctioning Authority shall consider the proposal to accord sanction for prosecution of the accused within four months from this day. Meanwhile, trial of the Special Case No.2/08 shall remain stayed. Thereafter if Sanctioning Authority fails to accord sanction for the prosecution of the accused, he shall be at liberty to move fresh application for discharge. (J.H. BHATIA,J.)