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IN THE COURT OF SPECIAL JUDGE FOR GREATER MUMBAI
APPLICATION (EXHIBIT14)
IN
A.C.B. SPECIAL CASE NO. 36 OF 2016
KEDU PANDURANG BHALERAO ]
Age: 75 years, Occupation: Retired. ]
Residing at A11 Kalika Apartment ]
Behind Kalika Mandira, ]
Old Agra Road, Nasik ]..Applicant/accused No.1
V/s.
The STATE OF MAHARASHTRA ]
(At the instance of A.C.B. Mumbai. ]
[Link]. 28/1992) ]..Respondent.
CORAM : HIS HONOUR SPECIAL JUDGE
FOR ACB, SHRI V.B. KAKATKAR
([Link].45)
DATE : 3rd AUGUST 2021
Advocate Mr. Mulik for applicant/accused.
Spl.P.P. Mr. Chavan for the State.
ORDER
The application is filed by accused Kedu Pandurang
Bhalerao for discharge under section 227 of the Code of Criminal
Procedure, 1973.
2. It is the case of the accused that he was working as
Maintenance Surveyor in the City Survey Office No. 9, Mumbai at the
time of alleged offence. Offence bearing number 28/1992 was
registered against the present accused and other persons under sections
120B, 465, 466, 467, 468, 471, 477 A, 420, 34 and section 109 of the
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Indian Penal Code, and 13 (2) read with 13 (1) (d) of the Prevention of
Corruption Act 1988.
3. Brief facts of the case of prosecution are as under: –
The task of finding out malpractices in increasing area of CTS No. 1258
and 1258/1 to 1258/5 of Vile Parle was handed over to ACB by the
Revenue and Forest Department of the Government of Maharashtra on
28/11/1988. As per the record, the total area of all these lands was
1179.6 m². The original owner Smt. G. K. Goradia requested the City
Survey Office for remeasurement and correction of the aforesaid lands.
Present accused measured the aforesaid lands on 26/02/1982 and
recorded the area as 1249.9 m². He recorded the statement of original
owner Smt. Goradia on the same day and put up a note for effecting
increase in the area. It is further alleged that the then CTSO Shri
Pradhan who is accused No. 1 (Now deceased), without scrutinizing the
plan approved the change of the area on the note of present accused.
Accordingly, the record of aforesaid lands what changed and additional
area was recorded without any sanction of S.L.R. No specific mistake in
the original record was also pointed out.
4. Initially the plan was submitted on behalf of the original
owner on 10/08/1977 in which the area was shown as 1179.38 m². The
architect [Link] (Accused No.5) submitted the amended plan for the
terrace and 5th of with increased plot area as 1249.90 m². The officers
of the Municipal Corporation did not verify the record and approved the
plan. Accordingly, IOD was also issued.
5. The Special Cell attached to the Anti Corruption Bureau
measured the land again on 04/06/1980 and recorded the area of
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aforesaid lands as 1189 m². This authority came to the conclusion that
the accused have committed an offence of Criminal Conspiracy and
Forgery of the property card of the aforesaid properties by falsely
increasing the plot area and by using the forged property card as
genuine and accordingly cheated the Municipal Corporation and
obtained various permissions and excess FSI.
6. This accused has further submitted that the prosecution has
not taken necessary sanction for prosecution from the government
against the present accused. There is no sufficient ground for
proceeding against the accused. He has prayed for discharge on the
following amongst other grounds: –
1. The accused is falsely implicated in this case and he
has nothing to do with the present offence.
2. The applicant is presently retired from the service by
superannuation.
3. The alleged act and conduct of the accused is
reasonably connected with the performance of the
accused under his official duties.
4. This court cannot take cognizance of the offence unless
the necessary sanction from the government to
prosecute the present accused is obtained. Therefore,
the cognizance taken by this court is bad in law.
7. For all the above reasons the present accused has prayed
for discharge. He has further relied upon the judgment in Sanjay s/o.
Laxman Kholapurkar V/s. State of Maharashtra reported at 2017
ALL MR (Cri) 1636 in which the criminal proceeding against the
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accused in that matter was squashed on the ground that the previous
sanction was not obtained from the government.
8. The investigation officer and the prosecution have filed say
at Exhibit 30 and objected the application on the following grounds;
The present accused was serving as Maintenance Surveyor
from February 1982 to December 1982 at City Survey Office,
Santacruz. He measured the aforesaid lands on 16/02/1982
and recorded their total area as 1249 m². Accordingly, the
record of the office was changed. The accused was unable to
explain the reason behind increased area. On the other hand,
he stated that he was having no knowledge of measurement
of land. The area was increased on the very next day of the
filing of the application for measurement by the original
owner.
9. It is further submitted by the prosecution that the present
accused is now retired and therefore a sanction from competent
authority is not necessary for filing a chargesheet against him. For all
these reasons the prosecution has prayed for rejection of the
application.
10. Considering the application and say filed by the
prosecution and Investigating Officer, following points arise for my
determination and my findings to them are as stated below for the
following reasons;
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Sr. POINTS FINDINGS
No
1 Whether sanction is necessary from the In the
competent authority for filing chargesheet Negative
against present accused as he was retired on
the date of filing of the chargesheet?
2 Whether the present accused is entitled for In the
discharge? Negative
3 What Order ? As per Final Order
R E A S O N S
AS TO POINT NOS.1 AND 2:
11. The scope of the application filed by the present accused is
very limited and that is whether he is entitled to discharge from the
present matter on the ground that no sanction was obtained from the
competent authority against him at the time of taking cognisance of the
offence? It prime facie appears from the record that the accused has
not disputed that he was working as Maintenance Surveyor at the City
Survey Office at Santacruz and he measured the disputed lands. At this
stage there is no dispute regarding the fact that there was change in the
total area of the lands after the measurement of those lands by the
present accused. There is no dispute regarding the fact that on the date
of filing of this chargesheet, present accused was retired. In the
circumstances now it is necessary to find out whether sanction of
competent authority is required to file a chargesheet against retired
government servant.
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12. I have heard learned advocate for present accused, learned
prosecutor and the investigation officer at length.
13. Section 156 and 190 of the Cr.P.C. were amended by the
State and the relevant amendments are;
The relevant proviso added to Sec. 156 of the Code of
Criminal Procedure are:
“Provided that, no Magistrate shall order an investigation
under this section against a person who is or was a public
servant as defined under any other law for the time being in
force, in respect of the act done by such public servant while
acting or purporting to act in the discharge of his official
duties, except with the previous sanction under section 197 of
the Code of Criminal Procedure, 1973 or under any law for
the time being in force.
: Provided further that, the sanctioning authority shall take a
decision within a period of ninety days from the date of the
receipt of the proposal for sanction and in case the
sanctioning authority fails to take the decision within the said
stipulated period of ninety days, the sanction shall be deemed
to have been accorded by the sanctioning authority.”.
The relevant proviso added to Sec. 190 of the Code of
Criminal Procedure are:
“Provided that, no Magistrate shall take cognizance of any
offence alleged to have been committed by any person who is
or was a public servant as defined under any other law for the
time being in force, while acting or purporting to act in the
discharge of his official duties, except with the previous
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sanction under section 197 of the Code of Criminal
Procedure, 1973 or under any law for the time being in force:
Provided further that, the sanctioning authority shall take a
decision within a period of ninety days from the date of the
receipt of the proposal for sanction and in case the
sanctioning authority fails to take the decision within the said
stipulated period of ninety days, the sanction shall be deemed
to have been accorded by the sanctioning authority.”
14. The accused has relied upon judgment in the case of
Sanjay S/O Laxman Kholapurkar Vs State of Maharashtra reported
in 2017 ALL MR (Cri) 1636.
The relevant Paragraphs state that,
11] In the case on hand, it is not in dispute that in the year
2016, when F.I.R. was lodged, applicant had retired from
service. So far as applicability of provisions of Section 197 of
the Code of Criminal Procedure to a retired public servant is
concerned, the Hon'ble Supreme Court in paragraph 19 in
State of Orissa vs. Ganesh Chandra Jew (supra) observed thus
:19. We may mention that that the Law Commission in its
41st Report in paragraph 15.123 while dealing with Section
197, as it then stood, observed "it appears to us that
protection under the section is needed as much after
retirement of the public servant as before retirement. The
protection afforded by the section would be rendered illusory
if it were open to a private person harbouring a grievance to
wait until the public servant ceased to hold his official
position, and then to lodge a complaint. The ultimate
justification for the protection conferred by Section 197 is the
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public interest in seeing that official acts do not lead to
needless or vexatious prosecution. It should be left to the
Government to determine from that point of view the
question of the expediency of prosecuting any public servant".
It was in pursuance of this observation that the expression
"was" come to be employed after the expression "is" to make
the sanction applicable even in cases where a retired public
servant is sought to be prosecuted.
12] The above proposition has been reiterated by the Hon'ble
Supreme Court in State of Punjab vs. Labh Singh [2015
(3) SCC (Cri) 601] relied upon by the learned A.P.P. and the
law is now well settled that protection under Section 197 of
the Code of Criminal Procedure is available to the public
servant even after retirement.
15. The relevant proviso added to section 156 and section 190
of the Code of Criminal Procedure does not state anything about the
retired public servant. These proviso makes it mandatory for the
Magistrate to ensure before taking cognizance that the competent
authority has granted sanction for prosecution against the accused. But
the ratio laid down by the honourable Bombay High Court in the case of
Sanjay referred above in which the judgement of honourable Supreme
Court in the case of State of Panjab Vs Labh Singh reported in 2015
(3) SCC (Cri) 601, it is very clear that the protection under section 197
of the Code of Criminal Procedure is available to the public servant even
after retirement.
16. In this regard the investigation officer has relied upon
judgement in the case of Abhay Singh Chautala Vs Central Bureau of
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Investigation reported in (2011) 7 Supreme Court Cases 141. It is
held that;
9. Against these two judgments as also the judgments in
Balakrishnan Ravi Menon v. Union of India [(2007) 1 SCC
45 : (2007) 1 SCC (Cri) 237] , K. Karunakaran v. State of
Kerala [(2007) 1 SCC 59 : (2007) 1 SCC (Cri) 251] and
Habibulla Khan v. State of Orissa [(1995) 2 SCC 437 :
1995 SCC (Cri) 382] , this Court had clearly laid down the
law and had held that where the public servant had
abused the office which he held in the check period but
had ceased to hold “that office” or was holding a different
office, then a sanction would not be necessary. The
learned Solicitor General appearing for the respondent
urged that the law on the question of sanction was clear
and the whole controversy was set at rest in Antulay case
[(1984) 2 SCC 183 : 1984 SCC (Cri) 172] which was
followed throughout till date. The Solicitor General urged
that the said position in law should not be disturbed in
view of the principle of stare decisis.
56. Thus, we are of the clear view that the High Court was
absolutely right in relying on the decision in Parkash
Singh Badal v. State of Punjab [(2007) 1 SCC 1 : (2007) 1
SCC (Cri) 193] to hold that the appellants in both the
appeals had abused entirely different office or offices than
the one which they were holding on the date on which
cognizance was taken and, therefore, there was no
necessity of sanction under Section 19 of the Act as held in
K. Karunakaran v. State of Kerala [(2007) 1 SCC 59 :
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(2007) 1 SCC (Cri) 251] and the later decision in Parkash
Singh Badal v. State of Punjab [(2007) 1 SCC 1 : (2007) 1
SCC (Cri) 193] . The appeals are without any merit and
are dismissed.
17. In the present matter, it is also necessary to see the
observations of the Hon’ble Supreme Court in the case of Station
House Officer CBI/ACB/Banglore Vs [Link] and Another
reported in 2020 (2) Supreme Court Cases 153.
The brief facts of the case are:
Respondent No.1 retired on 31102012 as Assistant
General Manager, Vijaya Bank. On 28102013, FIR being
No. RC 12(A)/2013 was registered pursuant to complaint
given by the General Manager, Vijaya Bank, Head Office,
Bangalore against Respondent 1 in respect of the offences
mentioned hereinabove. After completion of investigation,
chargesheet was filed on 31102014 against Respondent
1 and other accused in respect of said offences.
It was observed that,
“9. In the present case the public servants in question
had retired on 13121999 and 3042000. The sanction
to prosecute them was rejected subsequent to their
retirement i.e. first on 1392000 and later on 249
2003. The public servants having retired from service
there was no occasion to consider grant of sanction
under Section 19 of the PC Act. The law on the point is
quite clear that sanction to prosecute the public servant
for the offences under the PC Act is not required if the
public servant had already retired on the date of
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cognizance by the court. In S.A. Venkataraman v. State
[S.A. Venkataraman v. State, 1958 SCR 1040 : AIR 1958
SC 107 : 1958 Cri LJ 254] while construing Section 6(1)
of the Prevention of Corruption Act, 1947 which
provision is in pari materia with Section 19(1) of the PC
Act, this Court held that no sanction was necessary in
the case of a person who had ceased to be the public
servant at the time the Court was asked to take
cognizance. The view taken in S.A. Venkataraman [S.A.
Venkataraman v. State, 1958 SCR 1040 : AIR 1958 SC
107 : 1958 Cri LJ 254] was adopted by this Court in
C.R. Bansi v. State of Maharashtra [C.R. Bansi v. State of
Maharashtra, (1970) 3 SCC 537 : 1971 SCC (Cri) 143]
and in KalicharanMahapatra v. State of Orissa
[Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC
411 : 1998 SCC (Cri) 1455 : AIR 1998 SC 2595] and by
the Constitution Bench of this Court in K. Veeraswami v.
Union of India [K. Veeraswami v. Union of India, (1991)
3 SCC 655 : 1991 SCC (Cri) 734] . The High Court
[Sikandar Singh v. State of Punjab, Criminal Revision
No. 1743 of 2005, order dated 1712006 (P&H)] was
not therefore justified in setting aside the order passed
by the Special Judge insofar as charge under the PC Act
was concerned.”
Consequently, there was no occasion or reason to
entertain any application seeking discharge in respect of
offences punishable under the Act, on the ground of
absence of any sanction under Section 19 of the Act. The
High Court was also not justified in observing “that the
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protection available to a public servant while in service,
should also be available after his retirement”. That
statement is completely inconsistent with the law laid
down by this Court in connection with requirement of
sanction under Section 19 of the Act.
18. Learned Advocate for the accused submitted that the Law
laid down by the Hon’ble Supreme Court in is not in respect of Sec. 19
of the Prevention of Corruption Act. But careful reading of the
judgement in the case of Abhay Singh Chautala Vs Central Bureau of
Investigation reported in (2011) 7 Supreme Court Cases 141 shows that
the submissions on behalf of accused in the matter before this Court are
not correct.
19. In view of the above factual and legal position, I have come
to the conclusion that though the accused was a Public Servant within
the meaning of the Prevention of Corruption Act when the alleged act
was committed and FIR regarding the same was lodged, he ceased to be
so when the chargesheet was filed. He was not holding any public office
at the time of filing of the Chargesheet as he was retired. Therefore, in
view of the ratio laid down by the Honourable Supreme Court in the
case of Station House Officer CBI/ACB/Banglore Vs [Link]
and Another reported in 2020 (2) Supreme Court Cases 153, the
sanction is not required for taking cognisance of the offence against the
accused if the alleged offence is committed by the accused during his
tenure as a public servant and the cognisance is taken after his
retirement. For these reasons, I do not find any merit in the application
filed by this Accused for discharge. Hence, I answer point No. 1 and 2 in
the negative and proceed to pass the following order:
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O R D E R
Application (Exhibit14) is hereby rejected and stands
disposed of accordingly.
(VIDYADHAR B. KAKATKAR)
Special Judge for ACB,
City Civil & Sessions Court,
Date: 03.08.2021 [Link].
Dictated on: 03.08.2021
Typed on : 03.08.2021
Signed on : 03.08.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04.08.2021 AT 1.00 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room HHJ SHRI V.B. KAKATKAR
Number) (C.R. No.45)
Date of Pronouncement of 03.08.2021
Judgment/Order
Judgment/Order signed by P.O. on 03.08.2021
Judgment/Order uploaded on 04.08.20211
