Bombay High Court Considers Validity of Revised Sanction for Prosecution of Police Officer Under IPC for Kidnapping. Question Whether Fresh Material Required for Second Sanction Order Under Section 197 CrPC and Bar of Section 161 Maharashtra Police Act.

Criminal writ petition under Section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India, challenging the legality of an order rejecting discharge in a sessions case.

Quashing of the order dated 29.10.2015 passed below Exhibit 84 in Sessions Case No. 131 of 2012, and quashing of the proceedings for want of valid sanction; consequently, discharge of the petitioner.

Petitioner, an accused police officer, contended that no valid sanction exists under Section 197 CrPC and Section 161 of the Maharashtra Police Act, making the prosecution illegal.

The trial court rejected the petitioner's discharge application (Exhibit 84) on 29.10.2015, holding that the validity of the sanction would be decided at trial.

Can trial as against the petitioner be proceeded with in the absence of there being a valid sanction? Can an order of sanction which according to the Respondent is valid be revised? What are the circumstances under which an order of sanction already granted and/or refused be revised? Whether offence under Section 364A of IPC can be said to have been made out in the facts and circumstances of the case when it is not even the case of the prosecution that any act was committed demanding ransom and the demand for ransom was not by holding out a threat of causing death or hurt?

Whether a revised sanction is valid? Whether Section 364-A of the Indian Penal Code could be attracted in this case? Section 161 of the Maharashtra Police Act protects the petitioner against prosecution if the sanction to the prosecution has been granted after two years of the registration of the First Information Report. The alleged incident is said to have occurred on 30.6.2009 and 1.7.2009. An FIR was registered against the petitioner on 16.7.2009, under Sections 347, 364A, 385 read with 34 of the IPC. The first sanction was granted under Section 197 of the CrPC on 4.10.2011 for prosecuting the petitioner. On 28.5.2012, a revised sanction was accorded by the competent authority after the first sanction was cancelled. A charge sheet is filed on 19.6.2012. There is no challenge to the authority vested in the officer who had granted the first sanction and who has granted the second sanction. The report of the District Superintendent of Police, Jalgaon addressed to the Director General of Police, Maharashtra, dated 4.7.2009, does not mention Section 364A of the IPC and as such, Section 364A of the IPC was not attracted in the instant case. The revised sanction was challenged in Writ Petition No.2252 of 2012 before the learned Division Bench of this Court. By order dated 26.11.2014, the request of the petitioner to withdraw the petition, in the light of Dinesh Kumar Vs. Chairman, Airport Authority of India [AIR 2012 (5) SC 858], was accepted and the petition was disposed off, with liberty to approach the trial Court for discharge. Though all contentions were raised before the trial Court, it has failed to consider them and has brushed aside those contentions by concluding that the issue of validity of the sanction under Section 197 is a subject matter of trial, inasmuch as the effect of Section 161 of the Bombay Police Act was also not considered. Unless the sanction is valid under Section 197 of the CrPC, the prosecution cannot be permitted to proceed with the trial with an invalid sanction. In so far as the second sanction is concerned, whether the revised sanction is sustainable in the absence of any fresh material, needs to be considered. (Paragraphs 12 & 13 - L. Megha Naik Vs. State of Karnataka, CDJ 2015 Kar 300 and State of Punjab Vs. Mohd. Iqbal Bhatti - 2010 Cri.L.J.1436). When the material available before the Sanctioning Authority led to the first sanction, the second sanction could not have been granted, without any fresh material available. No fresh material was available for enabling the authorities to set aside the first sanction and issue a revised sanction. The judgment of the Honourable Supreme Court in the matter of K.K.Patel (supra) prohibits prosecution of a Police Officer if the act complained off has occurred more than two years prior to the sanction and if the said act was not under the colour of any duty or authority (Section 161 of the IPC). Though the FIR contains Section 364A, the said Section was sought to be deleted by the Investigating Officer by moving an application on 9.10.2009 before the learned Judicial Magistrate (FC), Chalisgaon, stating therein that as the High Court has passed an order dated 5.9.2009 in Criminal Application No.2786 and 2766 of 2009, Section 364A is sought to be deleted considering the observations of this Court. This Court had never made any observation that Section 364A deserves to be deleted. The Supreme Court by it's order dated 24.1.2011, set aside the order of this Court and observed that the petitioner ought not to have been granted anticipatory bail. A statement was made on behalf of the State that the Police investigating the matter have found that Section 364A of the IPC is not attracted and the petitioner is being prosecuted under other provisions. Taking the shelter of the order of the Honourable Supreme Court, the second sanction order has been passed on 28.5.2012, thereby granting sanction under Section 197 by including Section 364A. Such a second sanction could not have been granted without there being additional material. Only if additional material is available and the same is convincing, then the Sanctioning Authority could have passed the second sanction order. The supplementary statement recorded by Digambar Mali on 31.10.2011 does not constitute additional material. Similarly, a fresh statement of the complainant Dr. Uttamrao Dhanaji Mahajan, dated 25.2.2011, would not constitute fresh or additional material. The statement of the son of the complainant Dr. Manoj Uttamrao Mahajan, dated 25.10.2011, also does not amount to fresh or additional material. The statement of Kedarsing Dharma Patil, recorded on 25.10.2011 would not amount to fresh material. Similarly, those statements which were recorded on 25.10.2011 and thereafter on 31.10.2011, do not amount to fresh material or additional material so as to conclude that there was new material available before the Sanctioning Authority. The comparative chart indicating material before the Sanctioning Authority as on the first sanction dated 4.10.2011 and the material as on the second sanction dated 28.5.2012, was placed before the trial Court which has been discarded by the trial Court on the ground that this material can be considered only at the stage of the trial. Four issues have been formulated by the petitioner on page No.10 of the memo of the petition, which are being placed before this Court, on the basis of which, the petitioner seeks discharge.

Rule. Rule made returnable forthwith and heard finally by the consent of the parties. the petitioner is praying for discharge only on the ground of there being no 'valid sanction'. (a) Can trial as against the petitioner be proceeded with in the absence of there being a valid sanction? (b) Can an order of sanction which according to the Respondent is valid be revised? (c) What are the circumstances under which an order of sanction already granted and/or refused be revised? (d) Whether offence under Section 364A of IPC can be said to have been made out in the facts and circumstances of the case when it is not even the case of the prosecution that any act was committed demanding ransom and the demand for ransom was not by holding out a threat of causing death or hurt?

FIR No.145/2009 registered on 16.7.2009 under Sections 347, 364A, 385 read with 34 IPC. First sanction under Section 197 CrPC granted on 4.10.2011. Revised sanction accorded on 28.5.2012 after cancellation of first sanction. Charge sheet filed on 19.6.2012. Petitioner filed discharge application (Exhibit 84) under Section 227 CrPC. Sessions Court rejected application on 29.10.2015. Petitioner then filed the present criminal writ petition under Section 482 CrPC and Article 227 of the Constitution.

• Code of Criminal Procedure, 1973: 482, 197, 227
• Constitution of India, 1950: 227
• Indian Penal Code, 1860: 347, 364A, 385, 34
• Maharashtra Police Act, 1951: 161