Sanction under Section 197 of the Code of Criminal Procedure is essential for prosecuting public servants; lack of such sanction renders prosecution void.

JUDGMENT :

S.M. MODAK, J.

1. I have already heard learned Advocate Shri Sudeep Pasbola assisted by Mr. Ayush Pasbola and learned APP.

2. The Respondent was working as Assistant Engineer, Maintenance, ‘E’ Ward from 1^st July 2005. On 25^th October 2012, he is transferred as Assistant Engineer, B.M.C. (Market Department). He was discharged by the Court of Additional Sessions Judge as per order dated 23^rd December 2014 for the offences punishable under Section 304 , 336, 337, 338, 268, 114, 201, 109 r/w 34 of the INDIAN PENAL CODE (page 67). He was Accused No.3. He along with the other Municipal employees were charge-sheeted for dereliction of duty in taking proper maintenance of the building known as “Babu Genu Municipal Market” situated at Mazgaon.

3. The building collapsed on 27^th September 2013. Total 61 occupants of the said building died and there are several injured as many as 31. The reason for collapse of building was unauthorized constructions carried out by the occupant - Ashok Kumar Mehta making structural changes. Initially, Dr. Prithviraj Chavan who was Deputy Superintendent of Zone-I filed FIR against said Ashokkumar Mehta and others with Shivdi Police Station. During the investigation, it was disclosed that the present Applicant has also failed to perform his duties.

4. The prosecution contention before the trial Court was there were number of official correspondence by the authorities of the Corporation about necessity of carrying out repairs. Even the higher officials have taken note of all these complaints and even the consultant by name Pentacle Consultants (I) Pvt. Ltd. was appointed. Even he gave report about extensive repairs being carried out. It was on 5^th November 2012. However, even though the concerned officers have tried to complete the procedure, prior to execution of work the building collapsed.

5. The Court of Additional Sessions Judge discharged the present Respondent predominantly for the reason material collected against the Applicant is not sufficient for establishing prima facie case against him. The Sessions Court considered the nature of his duties and liabilities, considering his transfer 10 months earlier to collapse of the building. The Sessions Court has discussed all these materials and gave reasoning why charge cannot be framed against him.

6. The legality of the said order is challenged by way of this Revision. It is also true that the issue of sanction was also raised before the Sessions Court. It is reflected in paragraph 32 of the impugned judgment. The prosecution contended that the sanction can be obtained lateron also during the pendency of the proceeding. That is why, the issue of sanction was not dealt with by the trial Court.

7. When this revision was pending, Police officers were pursuing with the Municipal Corporation for according the sanction. However, the Municipal Commissioner finally refused the sanction as per letter dated 15^th March 2021. The relevant correspondence were shown to me by learned APP and learned Advocate Shri Pasbola. There is no dispute that the Respondent is a Municipal employee. The correspondence which was brought to my notice is as follows:-

(i) Letter dated 25^th August 2014 by the Municipal Commissioner - Sitaram Kunte addressed to the Commissioner of Police, opining that provisions of Section 304 (I) of IPC cannot be attracted for the reason that Municipal Officers have not committed any heinous offence of culpable homicide not amounting to murder.

(ii) Assistant Commissioner of Police, Vadala Division, Mumbai again wrote to Municipal Commissioner on 5^th February 2015 reiterating the request for sanction. H