Shamkant v. State of Maharashtra & Anr.

The present Revision Application is filed by the Applicant seeking quashing and setting aside of the order dated08.02.2008 passed by the learned Special Judge and AdditionalSessions Judge, Jalna, below Exhibit-134 in Special (SPA)No.2/2005, whereby the Applicant’s request for quashing of theprosecution and for discharge was rejected.

This Court vide its order dated 17.06.2008 admittedPage 1 of 13

the Revision and stayed the proceedings before the trial Courtinsofar as the Applicant is concerned. The present RevisionApplication is taken up for final hearing by consent of the parties.

The Applicant was arrayed as an accused in CrimeNo.141/2000 registered with Kadim Jalna Police Station foralleged irregularity and misappropriation committed by him whileperforming duties in the capacity of the Chief Executive Officer, Zilla Parishad, Jalna during the period of 08.08.1997 to13.10.1998 on the complaint of the Executive Engineer of the Rural Water Supply Department, Zilla Parishad, Jalna for theoffences punishable under Sections 120(B), 408, 409, 119, 465,109 of the Indian Penal Code and under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988.

The Applicant got retired on superannuation from the Government service on 30.04.2003. The prosecution hascompleted the investigation in the aforesaid crime and has filed acharge-sheet before the learned Special Judge, Jalna in respect ofthe said crime on 18.01.2005. The prosecution submitted a notealong with the charge-sheet that the sanction is being sought forprosecution of the Applicant accused along with the other co-accused from the competent authority and necessarycorrespondence in that regard is being made and after receipt ofthe sanction, the same would be produced before the Court andhence the trial shall not proceed.

The Applicant therefore filed an application on27.07.2007 before the learned Trial Court at Jalna on the groundPage 2 of 13

that, although the charge-sheet had been filed on 18.01.2005,sanction had not yet been accorded by the competent authority. The Applicant accordingly prayed for quashing of the prosecutionalleged against him for want of mandatory sanction. The learnedTrial Court called upon the prosecution to file its say. Theprosecution accordingly filed its say and prayed for rejection of theapplication. The Deputy Superintendent of Police, CID, Jalna, submitted a letter before the trial Court conveying that thesanction against the Applicant had been rejected by the Government vide order dated 07.12.2007. The Applicantthereafter filed one more written submission, Exhibit-202, on15.01.2008, praying for quashment of the prosecution against himon the ground of refusal of sanction by the Government. However, the learned Trial Court, vide the impugned order dated08.02.2008, was pleased to reject the application for quashment ofthe prosecution and for discharge of the Applicant..Being aggrieved by the order dated 08.02.2008thereby rejecting the application for discharge and quashment ofthe prosecution and against the Applicant, the Applicant has filedthe present Revision.

The learned Senior Counsel Mr. Deshmukh for the Applicant submits that the Applicant was exonerated in thedepartmental inquiry conducted by the Government for very samecharges vide communication issued by the Government dated17.05.2003. It is further submitted by the learned Senior Counselthat as the Government itself has refused the sanction by orderdated 07.12.2007 to prosecute the present Applicant, theprosecution of the Applicant in the aforesaid crime ought to havePage 3 of 13

been quashed. The learned Senior Counsel further submits thatthe learned trial Court has wrongly relied upon by the judgment inV.S. Goraya Vs. U.T. of Chandigarh reported in (2007) 6 SCC 397,as the facts of the said case is different from the present case. Thefacts in the case of V.S. Goraya (supra) show that the publicservant was dismissed from service at the time of filing of thecharge-sheet and taking of the cognizance by the trial Court, whereas in the present case the Applicant stood retired on30.04.2003 when the charge-sheet came to be filed on 18.01.2007.Thus the learned trial Court has wrongly applied the law in thecase of V.S. Goraya (supra) to reject the application filed by the Applicant for discharge.

The learned Senior Counsel relied upon the judgment ofthe Hon’ble Supreme Court in the case of State of Punjab Vs. LabhSingh reported in (2014) 16 SCC 807, particularly paragraph no.10, wherein the Hon’ble Supreme Court has held that the HighCourt was absolutely right in setting aside the order of the SpecialJudge as the Court could not have taken the cognizance, insofar asthe offences punishable under the Penal Code are concerned, asthe protection under Section 197 of the Code of CriminalProcedure is available to the public servant concerned even afterretirement.

The learned Senior Counsel further relied upon thejudgment of the Bombay High Court at its Nagpur Bench in thecase of Prakash s/o Shivram Natkar Vs. State of Maharashtra and Anr. in Criminal Revision Application No.61/2022 dated17.03.2025, wherein this Court has held that the ground raised by Page 4 of 13

the Applicant, insofar as the sanction is concerned, is a validground, as the object behind requiring sanction is to ensure that apublic servant does not suffer harassment on false allegations. Themandate of Section 19(1) of the Prevention of Corruption Act isclear and unambiguous, that the Court shall not take cognizancewithout sanction by the competent authority.

The learned Senior Counsel further submits that the Applicant was 65 years old when the Revision was filed and ispresently 83 years of age, and therefore relies upon the judgmentin Nanjappa v. State of Karnataka, Criminal Appeal No.1867 of2012, delivered by the Hon’ble Supreme Court to submit that the Applicant shall not be made to face trial at this age.

The learned Senior Counsel relied upon the judgmentin State of Punjab v. Partap Singh Verka, Criminal Appeal No.1943of 2024 (arising out of SLP (Crl.) No.6006 of 2019), delivered bythe Hon’ble Supreme Court, to submit that even while consideringan application under Section 319 of the Code of CriminalProcedure for addition of an accused, the Court cannot proceedfurther without first satisfying the requirements of Section 19 ofthe Prevention of Corruption Act. 11. Thus the learned Senior Counsel submits that takinginto consideration the aforesaid pronouncements of law by the Hon’ble Supreme Court and the High Court, the impugned orderdated 08.02.2008 is bad in law and is thus liable to be quashed andset aside. It is further submitted that the sanction to prosecute the Applicant was refused by the competent authority and as such in Page 5 of 13

the absence of any sanction to prosecute the Applicant, thecognizance of the charge-sheet could not have been taken by thelearned Special Court..The learned Senior Counsel further submits that thedefinition of the public servant does not exclude a retired publicservant from the purview of section 19 of the Prevention of the Corruption Act and as such even though the Applicant stoodretired at the time of filing of the charge-sheet, the sanction toprosecute the Application was must and in the absence of thesame the prosecution of the Applicant could not be sustained. Hetherefore prays for quashing and setting the aside the impugnedorder dated 08.02.2008.12.As against this, the learned APP submits that theimpugned order is just and proper and is passed on the correctappreciation of the law and has been pronounced by the Hon’bleSupreme Court in the various judgments. It is almost now a settledlaw that the sanction to prosecute the public servant for theoffences under the Prevention and Corruption Act is not requiredif the public servant had already retired on the date of cognizanceby the Court. He relies upon the judgment of the Hon’ble SupremeCourt in the case of S.A. Venkataramani Vs. State reported in AIR1958 SC 107, wherein a three-Judge Bench of the Hon’bleSupreme Court held in no uncertain terms that when the Court isasked to take cognizance, not only must the offence have beencommitted by a public servant, but the person accused must stillbe a public servant removable from his office by a competentauthority. Page 6 of 13

Cri. Revn.-53-2008.odt13.The learned APP further relied upon the judgment in Parkash Singh Badal and Another Vs. State of Punjab and Othersreported in (2007) 1 SCC 1, wherein the Hon’ble Supreme Courtwas pleased to hold that the question relating to the need ofsanction under Section 197 of the Code is not necessarily to beconsidered as soon as the complaint is lodged and on theallegations contained therein. This question may arise at any stageof the proceeding. The question whether sanction is necessary ornot may have to be determined from stage to stage..The learned APP further relies upon the observationsof the Hon’ble Supreme Court that the offence of cheating under Section 420, or for that matter the other offences relatable to Sections 467, 468, 471, and 120B, can by no stretch ofimagination, by their very nature, be regarded as having beencommitted by any public servant while acting or purporting to actin discharge of official duty. He therefore submits that sanctionunder Section 197 Cr.P.C. is not necessary even in respect ofoffences under the IPC.14.I have gone through the order dated 08.02.2008passed by the learned Additional Sessions Judge, Jalna, rejectingthe application filed by the Applicant for quashing of theprosecution and for discharge from the offences under the Prevention of Corruption Act, filed under Sections 13(2) and13(1)(d) of the said Act, along with Sections 120B, 408, 409, 112,465, and 109 of the Indian Penal Code, against the Applicant andother co-accused. A perusal of the charge-sheet shows that thereare serious allegations of criminal breach of trust by a publicservant, coupled with conspiracy and forgery with an intention to Page 7 of 13

cheat, against the present Applicant and other accused persons. The Applicant was working as Chief Executive Officer of the ZillaParishad, Jalna, at the relevant time between 08.08.1997 and13.10.1998.15.The perusal of the order dated 08.02.2008 shows thatthe learned trial Court considered the fact that the Applicant hadretired on 30.04.2003, whereas the charge-sheet came to be filedon 18.01.2005. The learned trial Court relied upon the judgment inV.S. Goraya (cited supra) and held that the facts of the saidauthority were identical to the facts of the present case, whereinthe Applicant is charged with offences punishable under Sections13(2) and 13(1)(d) of the Prevention of Corruption Act and heldthat since the petitioner was retired before filing of charge-sheet, sanction under Section 19 was not necessary. The very judgmentrelied upon by the learned Senior Counsel Mr. Deshmukh in thecase of State of Punjab Vs. Labh Singh (supra) would itself showthat the public servants in question had retired on 13.12.1999 and30.04.2000. The sanction to prosecute them was rejectedsubsequent to their retirement i.e. first on 13.09.2000 and later on24.09.2003. The Hon’ble Supreme Court in the case of Labh Singh(supra) was pleased to hold as under :

The public servants having retired from service there wasno occasion to consider grant of sanction under section 19of the PC Act. The law on the point is quite clear thatsanction to prosecute the public servant for the offencesunder the PC Act is not required if the public servant hadalready retired on the date of cognizance by the Court.

.In S.A. Venkataramani (supra) while construing Section6(1) of the Prevention of Corruption Act, 1947 which provision is Page 8 of 13

in pari materia with section 19(1) of the PC Act 1947, this Courtheld that no sanction was necessary in the case of a person whohad ceased to be the public servant at the time the Court wasasked to take cognizance. In a comparatively recent judgment ofthe Hon’ble Supreme Court, in the case of Station House Officer, CBI/ACB/Bangalore v. B.A. Srinivasan and Another, reported in2019 SCC 1324, the three-Judge Bench was pleased to hold asunder: “The protection available to a public servant while in serviceis not available after his retirement.” 16. The Hon’ble Supreme Court in State of Punjab v. LabSingh (supra) relied upon the judgments in C.R. Bansi v. State of Maharashtra, Kalicharan Mahapatra v. State of Orissa, and the Constitution Bench decision in K. Veeraswamy v. Union of India, had came to the conclusion that sanction to prosecute a publicservant for offences under the Prevention of Corruption Act is notrequired if the public servant has already retired on the date whencognizance is taken by the Court. Thus, the law on the aforesaidpoint stands settled and made applicable by variouspronouncements of the Hon’ble Supreme Court. In the presentcase as the Applicant had retired from service on 30.04.2003 andthe charge-sheet was filed thereafter in 2005, it cannot be saidthat the Applicant was a public servant on the date of filing of thecharge-sheet in Court, and as such, the sanction contemplatedunder Section 19 of the Prevention of Corruption Act was notnecessary. The contention of the present Applicant is thereforemisconceived and liable to be rejected. Page 9 of 13

905. Cri. Revn.-53-2008.odt17.Insofar as the other ground raised by the learnedSenior Counsel for the Applicant, pertaining to paragraph no.10 ofthe judgment of the Hon’ble Supreme Court in State of Punjab v.Lab Singh (supra) is concerned, the Hon’ble Supreme Court in Parkash Singh Badal and Another v. State of Punjab and Others(supra) has clearly held that the offence of cheating under Section420, or for that matter offences relatable to Sections 467, 468,471, and 120B, can by no stretch of imagination, by their verynature, be regarded as having been committed by any publicservant while acting or purporting to act in discharge of officialduty. In such cases, official status only provides an opportunity forcommission of the offence. Thus, it is clear that the offencesalleged to have been committed by the Applicant under the IndianPenal Code cannot be regarded as acts done or purported to bedone in furtherance of his official duties. The question relating tothe need of sanction under Section 197 of the Code is notnecessarily to be considered as soon as the complaint is lodged andon the allegations contained therein. This question may arise atany stage of the proceeding. The question whether sanction isnecessary or not may have to be determined from stage to stage. Hence, the second submission made by the Applicant with regardto paragraph no.10 of the judgment in State of Punjab v. LabhSingh (supra) is therefore liable to be rejected. 18. Insofar as the judgment relied upon by the learnedSenior Counsel in Prakash s/o Shivram Natkar (supra), it is clearfrom the facts of that case that it was not a case of a retired publicservant and the necessity under Section 19 of the Prevention of Corruption Act for sanction to prosecute a retired public servant. Page 10 of 13

The observations and findings of the said judgment thereforecannot be read as dealing with the case of a retired public servant. Thus, reliance on the aforesaid case, which does not consider thesituation of a retired public servant, would be of no assistance tothe Applicant, as the Applicant is a retired public servant. 19. The submission of the Applicant with regard toexoneration in the departmental inquiry is already settled by thejudgments of the Hon’ble Supreme Court in State Of N.C.T.Of Delhivs Ajay Kumar Tyagi, reported in (2012) 9 SCC 658, wherein the Hon’ble Apex Court considered various decisions and held thatcriminal proceedings and disciplinary proceedings based on thesame charge, and the fact that the accused was exonerated indisciplinary proceedings, by itself cannot be a ground for quashingthe criminal proceedings. A criminal case is decided on the basis ofthe evidence produced by the prosecution and cannot be rejectedon the basis of evidence in departmental proceedings or the reportof an inquiry officer. It is only in cases where the prosecution isbased solely on a finding in a disciplinary proceeding, and thesame is set aside by the superior authority, that the prosecutionmay be quashed, as the very foundation itself ceases to exist. Inthe present case, the prosecution of the Applicant is not basedupon charges proved against him in any inquiry report. The FIRfiled against the Applicant and other accused persons is anindependent initiation of criminal proceedings, which includeallegations of criminal conspiracy, criminal misappropriation, andcriminal breach of trust against the Applicant and other co-accused persons. It cannot be said to be based upon the findings of Page 11 of 13

the inquiry report, and as such, the same cannot form the basis forquashing the proceedings on the ground of exoneration of the Applicant in the disciplinary inquiry. 20. The submission made by the learned Senior Counsel forthe Applicant regarding the age of the Applicant, who is now 83years old, and the judgment relied upon pertaining toconsideration of the age of a senior citizen, is misconceived. In thepresent case, the Applicant himself obtained a stay of the trialagainst him by filing the present Revision Application, and this Court, vide order dated 17.06.2008, stayed the trial as against the Applicant. Thus, the Applicant cannot take undue advantage of hisown acts. Moreover, the judgment in Nanjappa v. State of Karnataka (supra), which considered the age of the accused, pertains to a different set of facts wherein the accused had alreadybeen convicted by the High Court by reversing the order ofacquittal passed by the Trial Court on a technical ground ofsanction. In the facts in the case of Nanjappa v. State of Karnataka(supra), is distinguishable and the same cannot be applied to thefacts of the present case. 21. Thus, taking into consideration the clearpronouncement of law on the aforesaid points raised by the Applicant, I do not find any error committed by the learned TrialCourt in rejecting the application for discharge and quashing ofthe prosecution filed by the Applicant. The Revision Application istherefore devoid of substance on merits and is hereby rejected. Page 12 of 13

905. Cri. Revn.-53-2008.odt22.Needless to mention, the interim relief of stay grantedto the trial as against the Applicant stands vacated. 23. Since the trial has remain stayed for 18 years by theinterim order dated 17.06.2008, and also taking into considerationthe age of the Applicant, it would be necessary in the interest ofjustice to direct the trial Court to decide the trial expeditiously. The trial Court is therefore requested to make an endeavour tocomplete the trial expeditiously and in any case not beyond oneyear. [ MEHROZ K. PATHAN ] JUDGENajeeb..Page 13 of 13