The validity of the sanction granted to prosecute a public servant must be confirmed by a competent authority; failure to do so renders the prosecution invalid.

JUDGMENT :

Sanjay A. Deshmukh, J.

1 This appeal is preferred by the convicted accused against the judgment dated 23^rd April, 2018 delivered by the learned Special Judge (P.C. Act), Aurangabad in Special Case (ACB) No.39 of 2015, by which the appellant was convicted under Section 235(2) of the Code of Criminal Procedure, 1973 (for short, “the Cr.P.C.”) for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short, “the PC Act”) and sentenced to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.5,000/-. In default, to suffer further simple imprisonment for 6 months. The appellant was further convicted for the offence punishable under Section 13(1)(d) read with Section 13(2) of the PC Act and sentenced to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.5,000/- and in default, to suffer further simple imprisonment for 6 months. Both the sentences were directed to be run concurrently.

2 The learned Senior Counsel for the appellant pointed out the report lodged by the complainant Mrs. Urmila Bokan against the appellant, stating that the appellant was found accepting the bribe amount. It is alleged that the appellant had demanded Rs.10,000/- from the complainant as bribe for not initiating chapter case against her and her family members. The trap was arranged and the appellant was arrested while accepting a bribe of Rs.5,000/-. Therefore, the report was lodged and the appellant was prosecuted. After recording the evidence, the learned Special Judge (P.C. Act), Aurangabad, held the appellant liable.

3 During the arguments, the learned Senior Counsel for the appellant submitted that apart from the merits of the case, the appellant has challenged the impugned judgment on the ground that there is no valid sanction to prosecute the appellant. He contended that the sanction to prosecute the appellant is not legal and correct and it was not granted by the competent authority, who is the appointing and removing authority of the appellant. He pointed out the sanction order, appointment order and the information received from the police department under the Right to Information Act, 2005, as well as the order of termination of the appellant under Rule 13(1) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 and Rule 3(3) of the Police Punishment and Appeal Rules, 1956. He submitted that the circular, which is pointed out and relied upon by the respondent / State dated 12^th February, 2013, authorizing above the rank of police officers to grant sanction as competent authority, who are superior officers to the District Superintendent of Police, Deputy Police Commissioner, is against the provisions of law and therefore, the sanction granted to prosecute the appellant is not sustainable. He further submitted that the evidence of sanctioning authority (PW-1) is shaken in the cross-examination. PW-1 Amitesh Kumar s/o Jugalkishor Prasad has admitted in his cross-examination that the Commissioner of Police, Aurangabad is inferior to Additional Director General of Police of Maharashtra. The sanction granted by PW-1 Amitesh Kumar, who was then Police Commissioner of Aurangabad, was inferior to the Additional Director General of Police of Maharashtra, who appointed the appellant.

4 The learned Senior Counsel for the appellant relied upon the following authorities:-

a) Balu Dasu Rathod Vs. State of Maharashtra, through the Director General of Police and others, 2019 SCC OnLine Bom 1809, in which the learned Single Judge of this Court in paragraph No.11 held as under:-

“11. That it has been also provided in the Schedule that a punishment of dismissal, compulsory retirement or removal from service cannot be inflicted upon the applicant by any authority lower in rank than that by which the applicant was appointed. That it is an undisputed position that the Additional Commissioner of Police, Thane, is not competent to remove the applicant from service and it is in these circumstances