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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Revati Mohite Dere, V.G.Bisht, JJ.
Sanjay Janardan Dukre – Appellant
Versus
State of Maharashtra – Respondent
Criminal Writ Petition No. 9 of 2014
Decided On : 23-06-2022
M.J.Upadhyay, Advocate, A.R.Kapadnis, Advocate, Shailendra Chavan, Advocate
The necessity of proper sanction for prosecution under the Prevention of Corruption Act, 1988 and the right to a speedy trial under Article 21 of the Constitution of India
Headnote:
Sanction - Criminal Misconduct - Prevention of Corruption Act, 1988 - [SANCTION] - [CRIMINAL MISCONDUCT] - [Sec. 2(c), Sec. 7, Sec. 12, Sec. 13(2) r/w 13(1)(d)] - The court discussed the validity and legal implications of the sanction for the prosecution of the accused under the Prevention of Corruption Act, 1988. The judgment emphasized the necessity of proper sanction by a competent authority as a prerequisite for taking cognizance of the offense. The court also highlighted the bar against prosecuting and punishing a person for the same offense more than once, as enshrined in Sec. 300 of the Code of Criminal Procedure and Article 20 of the Constitution of India. The judgment cited legal precedents to support the conclusion that an illegal and invalid sanction renders the subsequent cognizance and trial null and void, and does not invoke the provisions of Sec. 300 of the Cr.P.C. or Article 20. The court emphasized the right to a speedy trial under Article 21 of the Constitution of India and directed the trial court to dispose of the matter within six months.
Fact of the Case:
The petitioner was accused of accepting a bribe, and the trial court initially acquitted the petitioner and another accused due to an illegal and invalid sanction for prosecution. Subsequently, the prosecuting agency obtained fresh sanction and filed a supplementary charge sheet, leading to the petitioner's re-summoning for retrial. The petitioner challenged the legality of the retrial through a writ petition.
Finding of the Court:
The court dismissed the writ petition, emphasizing the necessity of a proper sanction for prosecution and highlighting the right to a speedy trial. The court directed the trial court to dispose of the matter within six months.
Issues: Validity of retrial after illegal and invalid sanction, Right to a speedy trial
Ratio Decidendi: An illegal and invalid sanction renders subsequent cognizance and trial null and void, Right to a speedy trial under Article 21 of the Constitution of India
Final Decision: The writ petition was dismissed, and the trial court was directed to dispose of the matter within six months.
JUDGMENT
1. Rule. Rule made returnable forthwith. By consent, heard finally at the stage of admission.
2. By this petition, the petitioner has made following prayers :
"A] This Honourable Court be pleased to issue a writ of mandamus and call for records and proceeding from the file of Special Court, Mumbai in supplementary charge sheet bearing Special Case No. 78 of 2013 in Special Case No. 91 of 2001 in C. R. No. 18 of 2001 to consider the legality in prosecuting the petitioner for second time for the offences based on the same facts.
B] This Honourable Court be pleased to issue an order to stay the retrial in the supplementary charge sheet bearing Special Case No. 78 of 2013 in Special Case no. 91 of 2001 covered under C. R. No. 18 of 2001 on the file of learned Special Court, Mumbai, pending the hearing and final disposal of this Writ Petition.
C] This Honourable Court be pleased to set aside the process issued by the trial Court by taking cognizance after obtaining fresh sanction order dtd. 21/2/2012 and to prosecute the petitioner.
D] This Honourable Court be pleased to issue a writ of certiorari or an order in the nature of quashing the supplementary charge sheet bearing Special Case No. 78 of 2013 in Spl Case No. 91 of 2001 in C.R. No. 18 of 2001 filed by respondent against the petitioner."
3. We would notice the facts of the present case, which are as under :
On 28/3/2001 complainant Mr. C. Bhaskar lodged a complaint against accused Rajiv Karshandas Bhatia (A-1), then working as a Manager with Indira Sahakari Bank Ltd., Dharavi Branch, Mumbai, for demanding the bribe amount of Rs.1,000.00 from him for showing him favour in refunding the entire amount deposited in the saving bank account No.1235 of Indira Sahakari Bank Ltd., Dharavi Branch, Mumbai. The said accused also directed the complainant to pay Rs.1,000.00 to another accused, namely, Sanjay Dukre i.e. the present petitioner. As the complainant did not want to give bribe, he lodged the First Information Report (FIR) on 28/3/2001 with Anti Corruption Bureau, Mumbai, against A-1. A pre-trap panchnama was prepared and later on official from the Anti Corruption Bureau Office, Mumbai, carried out raid. The prosecution alleges that at the instance of A-1, the present petitioner accepted the said amount of Rs.1,000.00 and on verification was found in possession of the same. The petitioner's hands and clothes were examined in the light of ultraviolet lamp and the same reflected faint bluish glow of anthracene powder and also on his left side full pant pocket.
4. Investigation was carried out and after necessary sanction having been granted, chargesheet came to be laid against the A-1 and the present petitioner.
5. The learned Special Judge for Anti Corruption Bureau, Greater Mumbai, formulated following points for his determination, which are as under :
"POINTS :-
1. Does the prosecution prove that accused no.1 Rajiv Bhatia and accused no.2 Sanjay Dukare were the public servants as contemplated u/s. 2(c) of the Prevention of Corruption Act, 1988 ?
2. Whether there is a valid and legal sanction for the prosecution of the accused no.1 Rajiv Bhatia and accused no.2 Sanjay Dukare ?
3. Does the prosecution prove beyond reasonable doubt that accused no.1 Rajiv Bhata on 14/3/2001 at about 5.00 p.m. at the above referred Indira Sahakari Bank Ltd. at Dadar, Mumbai attempted to obtain Rs.2000.00, thereafter on 19/3/2001 agreed to accept Rs.1,000.00 at the above referred bank on 22/3/2001 at 5.00 p.m. and thereafter on 22/3/2001 at 5.00 p.m. at the above referred bank agreed to accept Rs.1,000.00 on 28/3/2001 at 4.00 p.m. at the above referred bank and on 28/3/2001 at about 4.30 p.m. in the above referred bank attempted to obtain and accepted through accused no.2 Sanjay Dukare, an amount of Rs.1000.00 as gratification other than legal remuneration for himself from the complainant Shri C. Bhaskar Parayar (P.W.1) for doing official act of issuing cheque of Rs.11,522.00 towards balance
