The competency of the authority granting prosecution sanction must be determined during trial, and incompetency alone does not invalidate prosecution unless it results in a failure of justice.

JUDGMENT :-

1) These two Criminal Applications are filed by the Applicant challenging the Order dated 27 January 2023 passed on application at Exhibit- 84 and Order dated 12 December 2022 passed on application at Exhibit-118 seeking discharge in Special Case No.387 of 2020 and Special Case No.15 of 2019 respectively.

2) The issue involved in the present Applications is about entitlement of an accused to seek discharge on the ground of incompetency of the officer granting sanction for prosecution. According to Applicant, the crime alleged against him is referrable to his capacity as General Manager, (TEGS VII) for whom the Competent Authority for sanction of prosecution is Chairman and Managing Director and in his absence, the Executive Director. That his demoted designation of Assistant General Manager (SMGS V) has erroneously been taken into consideration for issuance of sanction by General Manager (HRM) HO, who is not the competent sanctioning authority.

3) Briefly stated, facts of the case are that Applicant joined Bank of Maharashtra on the post of Clerk and got promoted to various positions. He was working on the post of General Manager, which is Scale Grade VII level lost, during the relevant period of 2012 to 2014. In departmental proceedings, he was found guilty of misconduct relating to sanctioning of credit proposals during the years 2012 to 2014 and by order dated 1 December 2018, he came to be reverted from Top Executive Grade Scale VII (TEGS-VII), which is equivalent to the post of General Manager to the post of Senior Manager Grade Scale V (SMGS-V), which is equivalent to the post of Assistant General Manager, by fixing him at initial basic pay. Applicant has retired from service on attaining the age of superannuation on 31 January 2019.

4) Applicant has been arraigned as accused No.4 in Special Case No.387 of 2020 registered in CBI Court, Pune for offences punishable under Sections 120-B, r/w 409 and 420 of the IPC and Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act, 1988 (Act of 1988). He is also arraigned as accused No.8 in Special Case No. (ACB) No.15 of 2019 registered with CBI Court, Pune for offences punishable under Sections 120-B r/w 420, 465, 468 and 471 of the IPC and Sections 13(2) r/w 13(1)(d) of Act of 1988.

5) General Manager (HRM), Head Office has issued sanction orders dated 6 March 2019 and 17 March 2020 under Section 19(1)(c) of the Act of 1988 for Applicant’s prosecution in connection with both the cases. The Central Bureau of Investigations (CBI) has filed charge-sheets dated 30 March 2019 under Section 173 of the Code of Criminal Procedure, 1973 (the Code) in Special Case (ACB) No.15 of 2019 and on 25 June 2020 in Special Case No.387 of 2020.

6) In the above background, Applicant filed application at Exhibit-118 in Special Case (ACB) No.15 of 2019 seeking his discharge under the provisions of Section 227 of the Code. Similarly, the application was filed seeking discharge in Special Case No.387 of 2020. The Applicant sought discharge from both the cases essentially on the ground that the sanction for prosecution has not been given by the competent authority.

7) The discharge application filed in Special Case (ACB) No.15 of 2019 at Exhibit-118 has been rejected by the learned Special Judge, CBI by order dated 12 December 2022. Similarly, the discharge application filed at Exhibit-84 in Special Case No.387 of 2020 has been rejected by the learned Special Judge, CBI by order dated 27 January 2023. Both the orders are subject matter of challenge in the present Criminal Applications filed under the provisions of Section 482 of the Code.

8) Mr. Adwait Bhonde, the learned counsel appearing for Applicant would submit that the learned Special Judge has erred in rejecting the applications filed by the Applicant for discharge under Section 227 of the Code. That prosecution for offences punishable under the provisions of Act of 1988 requires a valid order of sanction for prosecution under pro