JUDGMENT

K R Shriram, J. - This is an appeal impugning an order and judgment dated 23rd August 2005 passed by the Learned Special Judge, Bombay acquitting respondent (accused ) of charges framed under Section 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.

2. It is prosecution's case that accused was working as Inspector in the license department in "M" ward of BMC. Complainant, P.W.-1 who was, an unlicensed fruit vendor, contacted accused on 26th April 2002 and requested for supplying forms required to be submitted for obtaining license. Accused did not have the required forms but informed P.W.-1 that even without filling and submitting the forms accused can help him to get the license but for that P.W.-1 will have to give him Rs.300/-. Therefore, on 29th April 2002, P.W.-1 approached ACB and lodged his report. The offence came to be registered and M. J. Patil- I.O. (P.W-4) investigated the same. Panch witnesses were arranged and it was decided to trap accused on 30th April 2002. Pre-trap formalities were completed and complainant with shadow panch were given instructions as to how accused should be trapped. Prosecution apprehended accused when he was found demanding and accepting the bribe of Rs.300/- from complainant and the tainted money was also recovered from accused. Investigation was commenced, papers were sent to the competent authority (P.W.3) for sanction and after the sanction was received, charge sheet came to be filed. Defence case is of total denial and of false implication.

3. To drive home the charge, prosecution examined in all 4 witnesses namely; Complainant P.W.-1 Mohd. Badre Alam Mohd. Yunus Shaikh, P.W.-2 Subhash Borkar, Panch Witness, P.W.-3 Karun Shirvastav and P.W.-4 I.O.- Manoj Janardhan Patil

4. Based on the evidence recorded, accused was acquitted by the judgment impugned in this appeal. One moot point the court observed was that the sanction obtained was invalid. P.W.-3 K.C. Shirvastav has admitted in the examination in Chief that he was provided draft sanction in a sealed cover for granting of sanction for prosecution. In his cross-examination, P.W.-3 also admits that before granting of sanction, he was aware of the provisions of P.C. Act for grant of sanction and in the entire papers that he had perused, he did not come across any document that authorized a police inspector (P.W.-4) to investigate the case. P.W.-3 also admits that he was aware at the time he granted sanction, investigation in ACB case is required to be carried out by an officer of the rank of ACP. P.W.-3 after perusing Section 17(b) of P.C. Act, admits, in the city of Mumbai investigations under P.C. Act are not to be carried out by an officer below the rank of ACP. P.W.-3 also admits that he had not obtained any document from P.W.-4 authorising him to investigate the crime, nor he sought any clarification on that and alongwith papers he received draft sanction order. Trial Court came to a conclusion that the sanction, therefore, was not valid and it was granted without application of mind and in any case, investigation was not carried out by a competent officer as required under the law. The court also came to the conclusion that the sanction has been accorded without application of mind because P.W.-3 though claiming to be aware of the provisions of PC Act, with reference to grant of sanction and that the investigation in Bombay has to be carried out only by a person not below the rank of ACP, accorded sanction.

5. In Dhonaji Vyankatrao Ghatge Vs. State of Maharashtra, (1994) 2 BCR 213 the court held that sanction must not be mechanically granted and the sanction order, however, proved that would be, must indicate that the officer concerned carefully applied his mind to the material placed before him.

6. The sanctity of sanction has been considered and laid down by the Apex court in Balbhadra Parashar vs. State of Madhya Pradesh, (2016) AIR SC 1554 . The Apex court held that grant of sanction is not empty f