Case Note & Summary
The applicant, an employee of Mira Bhaindar Municipal Corporation, was prosecuted by the Anti Corruption Bureau for offences under Section 7 read with 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. He contended that the sanction for prosecution dated 7th October 2013 granted by the Commissioner of the Corporation was invalid because the Commissioner was not the authority competent to remove him from office. He argued that under Section 53 of the Maharashtra Municipal Corporation Act, the Commissioner is the appointing authority, but Section 56, which provides for penalties including removal, had not been amended correspondingly. On this basis, he filed an application before the trial court seeking that the prosecution be directed to lead evidence on the validity of sanction as a preliminary issue. The trial court rejected this application. The applicant then filed a criminal revision application under Section 397 read with 401 of the Code of Criminal Procedure, 1973 before the High Court. The High Court examined the provisions of Section 19 of the PC Act, particularly sub-sections (3) and (4), which provide that no finding, sentence or order shall be reversed on the ground of absence of or error in sanction unless a failure of justice is occasioned. The court also considered the relevant provisions of the Maharashtra Municipal Corporation Act and held that the Commissioner, being the appointing authority under Section 53, is also the authority competent to remove the applicant under Section 56. Therefore, the Commissioner was competent to grant sanction. The court further held that the validity of sanction need not be decided as a preliminary issue; it can be considered at the stage of final arguments. Consequently, the revision application was dismissed.
Headnote
A) Criminal Procedure - Revision - Section 397 read with 401 CrPC - Scope - Revision against order refusing to decide validity of sanction as preliminary issue - Held, revision dismissed as trial court's order was correct and legal (Paras 3, 6).
B) Prevention of Corruption Act - Sanction - Section 19(3) and (4) - Validity of sanction - Preliminary issue - Held, validity of sanction need not be decided as a preliminary issue; it can be considered at the stage of final arguments (Para 6).
C) Prevention of Corruption Act - Sanction - Section 19 - Competent authority - Commissioner of Municipal Corporation - Held, combined reading of Sections 53 and 56 of Maharashtra Municipal Corporation Act shows Commissioner is the appointing authority and competent to remove, thus competent to grant sanction (Para 5).
Issue of Consideration
Whether the trial court was correct in refusing to decide the validity of sanction under Section 19 of the Prevention of Corruption Act, 1988 as a preliminary issue before proceeding with the trial.
Final Decision
Revision application dismissed. The order of the trial court dated 3rd April 2019 rejecting the application to decide validity of sanction as preliminary issue is upheld.
Law Points
- Sanction validity under Section 19 PC Act not a preliminary issue
- Section 19(3) and (4) PC Act bar reversal on sanction ground unless failure of justice
- Section 397 CrPC revision limited to correctness/legality of order
Case Details
2021 LawText (BOM) (12) 81
Criminal Revision Application No. 307 of 2019
Mr. Sunil Kale i/by Mr. Omkar Nagwekar, Advocate for the Applicant; Mr. A.R. Patil, APP for State
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Nature of Litigation
Criminal revision against order refusing to decide validity of sanction as preliminary issue in corruption case.
Remedy Sought
Applicant sought direction to prosecution to lead evidence on validity of sanction as preliminary issue.
Filing Reason
Applicant challenged the validity of sanction granted by Commissioner, Mira Bhaindar Municipal Corporation, contending Commissioner was not competent authority.
Previous Decisions
Trial court rejected the application (Exhibit 7) by order dated 3rd April 2019 in Special ACB Case No. 21/2013.
Issues
Whether the trial court was correct in refusing to decide the validity of sanction under Section 19 of the Prevention of Corruption Act, 1988 as a preliminary issue before proceeding with the trial.
Submissions/Arguments
Applicant argued that sanction dated 7th October 2013 by Commissioner was invalid because Commissioner is not the authority competent to remove him from office under Section 56 of Maharashtra Municipal Corporation Act.
State argued that Commissioner is the appointing authority under Section 53 and thus competent to remove, and validity of sanction need not be decided as preliminary issue.
Ratio Decidendi
The validity of sanction under Section 19 of the Prevention of Corruption Act, 1988 need not be decided as a preliminary issue; it can be considered at the stage of final arguments. The Commissioner of a Municipal Corporation, being the appointing authority under Section 53 of the Maharashtra Municipal Corporation Act, is competent to grant sanction under Section 19 of the PC Act.
Judgment Excerpts
This Revision Application under Section 397 read with 401 of the Code of Criminal Procedure, 1973 questions correctness and legality of the order dated 3rd April, 2019 below Exhibit – 7 in Special ACB Case No. 21/2013 passed by the Additional Sessions Judge, Thane.
As to competency of Commissioner, Mira Bhaindar Municipal Corporation, to grant sanction under Section 19 of the P.C. Act, it may be stated that a combined reading of Sub-section (3) and (4) of Section 19 of the P.C. Act, 1988, makes the position clear that, notwithstanding anything contained in the Code of Criminal Procedure, 1973; no finding, sentence and order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.
Procedural History
The applicant was accused in Special ACB Case No. 21/2013. He filed an application (Exhibit 7) before the Additional Sessions Judge, Thane, seeking that the prosecution be directed to lead evidence on the validity of sanction as a preliminary issue. The trial court rejected the application by order dated 3rd April 2019. The applicant then filed Criminal Revision Application No. 307 of 2019 before the Bombay High Court, which was heard and dismissed on 14th December 2021.
Acts & Sections
- Code of Criminal Procedure, 1973: Section 397, Section 401
- Prevention of Corruption Act, 1988: Section 7, Section 13(1)(d), Section 13(2), Section 19, Section 19(3), Section 19(4)
- Maharashtra Municipal Corporation Act: Section 53, Section 56
