Cri. Application 5353/2010 1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 5353/2010 BHIMRAJ KONDIRAM TRIBHUVAN VS. THE STATE OF MAHARASHTRA _____________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________ Smt. Sadhana S. Jadhav,Advocate for appellant. Mr. S.N.Kendre,A.P.P. for respondent/State Date : 23rd December, 2010 1 Heard, 2 The applicant is allowed to amend bail application for including prayer for suspension of conviction. 3 This is a peculiar case where all the three prayers of the appellant / applicant should be granted. Since the appeal is filed and since the appellant is sentenced to suffer rigorous imprisonment for two years, as a matter of course, his substantive sentence deserves to be suspended and he deserves to be granted bail. There can be no difficulty on this count but the appellant also seeks suspension of his conviction which is Cri. Application 5353/2010 2 generally not granted in case where appellant is convicted for offences punishable under the provisions of the Prevention of Corruption Act, 1988. But this is a exceptional case where he deserves such relief. The case has checkered history. 4 The applicant was a public servant working as Assistant Registrar, Co- operative Societies. In 1998 he was trapped while accepting bribe from the complainant. He was immediately arrested and charge sheet was filed against him in 1999. Along with charge sheet, there was an order of sanction for prosecuting him. In due course, the applicant was tried in the year 2006 and the learned judge observing that the sanction was not valid, discharged the appellant/applicant from the case, holding that in absence of valid sanction, the Court would not have been taken cognizance of the case. He however, indicated that with a valid sanction the prosecution could proceed against the appellant afresh. In the year 2004 the appellant had retired from service. It seems, soon after the order of discharge was passed, the prosecution re-launched the case by filing a supplementary charge sheet. But even this time, admittedly they Cri. Application 5353/2010 3 did not obtain and filed a fresh sanction for prosecuting the appellant and they succeeded in convincing learned judge of the trial Court that since the supplementary charge sheet was filed in the year 2006 and by that time, since the appellant had retired from service, he no longer remained a public servant and they were not obliged to obtained a fresh sanction order for prosecuting him. The learned judge rather naively accepted the contention and without referring to any case law, held that in the year 2006, he was entitled to take cognizance of the case against the appellant without a valid sanction order. The conclusion is obviously erroneous because in the year 1998 when the incident took place and when the offence was committed, the appellant was a public servant when charge sheet was filed against him in the year 1999, he was a public servant. It really does not mater as to whether he subsequently retired from service. But the cognizance of the offence can not be taken unless a valid sanction is obtained from competent authority. This is because the accused commits an offence while he was a public servant. Had it not been so, he could not have been prosecuted as the provisions of the Act Cri. Application 5353/2010 4 would not be attracted and his act of acceptance of bribe would not amount to an offence under Section 7 of the Prevention of Corruption Act. In view of this, the appellant deserves suspension even of his conviction. ORDER a) The application for bail is allowed. b) The appellant / applicant be released on bail on suspending substantive sentence awarded to him, on his executing P.R. bond of Rs.10,000/- (Rs. Ten thousand) and on furnishing one surety in like amount before trial Court. c) For the reasons mentioned above, even order of conviction stands suspended till the disposal of the appeal. d) The parties to act upon copy of this order duly authenticated by Sirastedar of this Court. [A.V. NIRGUDE, J.] ts k/ok