Sadhana S. Jadhav, J.

1. This is an application under section 389 of Code of Criminal Procedure, 1973 seeking suspension of conviction during pendency of the appeal. Applicant No. 1 herein is convicted for an offence punishable under section 13(1)(e) r/w 13(2) of Prevention of Corruption Act, 1988 and sentenced to suffer rigorous imprisonment for 3 years and fine of Rs. 1,00,000/- by Special Judge, vide Judgment and order dated 21/03/2014 in Special ACB case No. 42/2001. Being aggrieved by the said Judgment and Order, applicants herein have filed an appeal. Appeal is admitted. The substantive sentence of the applicants is suspended. Applicant No. 1 was sitting member of Legislative Assembly of the State Legislature of Maharashtra on the date of Judgment. To consider the application seeking suspension of conviction, it would be necessary to consider the rival submissions advanced by the learned counsel for the applicants and learned Government Pleader representing the State.

2. Submissions of the learned counsel for the applicant as follows.

3. Learned counsel for the applicants submits that the applicant No. 1 had firstly contested elections to the State Legislative Assembly in the year 1985, but was defeated. Thereafter, he contested the elections in 1990 and was elected. Since then, he has contested the elections to the State Legislative Assembly consecutively and has been elected in 1995, 1999, 2004 and 2009. He had sufficient funds to contest the elections. It is submitted that during the pendency of the trial also, he had contested the elections and was elected. He was a Minister of Social Welfare, Women and Child Welfare and Ex-Army Man Welfare Committee. It is contended that in the absence of granting of suspension of conviction, applicant No. 1 who is also amongst the elector and has worked for social cause would be deprived of, to contest ensuing elections for the period 2014 to 2019.

4. Learned counsel for the applicants submits that in 1999 Milind Yevtekar lodged a complaint before Special Court alleging therein that applicant No. 1 has amassed huge wealth disproportionate to his known source of income and that the said wealth is amassed while he was officiating as a public servant and hence, he has committed offences punishable under section Prevention of Corruption Act, 1988. On the basis of the said complaint, learned Judge was pleased to pass an order under section 156(3) of Code of Criminal Procedure, 1973. There was no valid sanction to prosecute him. That the learned Special Judge has not appreciated the evidence in its proper perspective. That the Judgment awarding conviction is based on surmises and conjecture and hence, the same is liable to be suspended during the pendency of the appeal.

5. Learned counsel for the applicants has placed reliance upon the Judgment of the Hon'ble Apex Court in the case of Anil Kumar and others v. M.K. Aiyappa and another reported in 2013 10, Supreme Court Cases, 705 : (2013 ALL SCR 3464) wherein Hon'ble Apex Court has referred to the Judgment in the case of Maqsood Sayed and has held that Special Judge/Magistrate cannot refer the matter under section 156(3) of Code of Criminal Procedure, 1973 against a public servant without a valid sanction order. Hon'ble Apex Court has thus held as follows.

"Once it was noticed that there was no previous sanction, the Magistrate could not order investigation against a public servant while invoking powers u/s. 156(3) of Code of Criminal Procedure, 1973."

Hon'ble Apex Court has referred to the Judgment in Criminal Appeal No. 257/2011 in the case of General Commanding Officer Vs. CBI reported in 2012 (2) Bombay Criminal, 623, Supreme Court Cases, wherein it was opined as follows.

"Thus, in view of the above, the law on the issue of sanction can be summarised to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public serv