Bombay High Court
SAIRA SHAIKHversusSTATE OF GOA, THROUGH CBI/ACB/GOA
- Disposal
- Disposed of
Holding
A court cannot take cognizance of offences under the Prevention of Corruption Act or the IPC against a public servant without a valid prior sanction under Section 19 of the PC Act and Section 197 of the CrPC, rendering the cognizance and charge‑framing orders void and necessitating the discharge of the accused.
Summary
The CBI filed a chargesheet alleging that a senior customs officer (Accused No.1) conspired with a private businessman (Accused No.2) and his employees (Accused Nos.3 and 4) to fraudulently award work orders to fictitious firms between 2017‑2019. The Special Judge took cognizance and, after a post‑factum sanction under Section 19 of the Prevention of Corruption Act, discharged the accused of IPC offences but framed charges under the PC Act. The accused filed criminal revision applications challenging the lack of a valid sanction at the time cognizance was taken, while the State sought to uphold the charge‑framing. The High Court held that without a valid prior sanction under Section 19 of the PC Act and Section 197 of the CrPC, the trial court had no jurisdiction to take cognizance of either PC Act or IPC offences, rendering the orders void. Consequently, the orders framing charges were quashed and all accused (except Accused No.3, whose discharge was confirmed) were discharged. The State’s revision seeking to sustain the charge‑framing was dismissed.
Issues considered
- The trial court’s jurisdiction to take cognizance of offences under the Prevention of Corruption Act and the IPC without a prior valid sanction under Section 19 of the PC Act and Section 197 of the CrPC.
- Whether the post‑factum sanction can validate the earlier cognizance and charge‑framing.
- Whether the conspiracy alleged against the private accused can stand in the absence of a valid charge against the public servant.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 197, 239
- Indian Penal Code, 1860 — s. 120-B, 420, 468, 471
- Prevention of Corruption Act, 1988 — s. 13(1)(d), 13(2), 19, 7
Subjects
- Prevention of Corruption Act
- Criminal Revision
- Sanction under Section 19
- Section 197 CrPC
- Conspiracy
- Procurement fraud
- Public servant
- Jurisdiction
Judgment
2026:BHC-GOA:1960
CRIR 207.2026, CRIR 208.2026, CRIR 8.2024 & CRIR 209.2026
Sonam
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL REVISION APPLICATION NO. 207 OF 2026
1. Ms. Saira Shaikh
Daughter of Mr. Hussain F. Shaikh,
Occupation: Housewife,
R/o House No. 7/140, Bhatlem,
Near Sati Temple, Panaji, Goa.
Currently in UK with spouse
Mr. Imran Shaikh.
Versus ... Applicant
The State of Goa,
(through CBI/ACB/Goa),
Bungalow F-1, Type VI Quarters,
GMC Quarters, Bambolim, Goa. … Respondent
Mr. Vilas P. Thali with Mr. Rajdeep Prabhugaonker and Mr.
Rasik Borkar, Advocates for the Applicant.
Ms. Asha Desai, Special Public Prosecutor with Ms. S. Dessai,
Advocate for CBI.
WITH
CRIMINAL REVISION APPLICATION NO. 208 OF 2026
Charudatta Ozarkar
S/o. Madhukar Ozarkar
Aged about 50 years,
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Occ:-Business
Indian Inhabitant,
R/at. CPWD Quarters No.9,
Type 2, M Ukundnagar ,Pune
… Applicant
Versus
The State of Maharashtra,
To be served
Through CBI/ ACB/Goa,
Through Public Prosecutor,
High Court, Goa … Respondent
Mr. Vikash Sonwakshi (through V.C.), Advocate for the
Applicant.
WITH
CRIMINAL REVISION APPLICATION NO. 8 OF 2024
Moham Kapse,
Aged 63,
Residing at 15/302,
Hill View Society,
Megathane, Borivali (E)
Mumbai, Maharashtra 400066. … Applicant
Versus
The State of Goa
Through CBI/ACB, Goa.
Office of the Supt. Of Police, CBI,
Anti-Corruption Branch,
Bungalow No. F-1, Type-VI,
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GMC Quarters,
National Highway NH-17,
Bambolim, Goa-403202.
… Respondent
Mr. H. G. Dharmadhikari with Ms. Marilyn Alvares and Ms
Lalita Phadke, Advocates for the Applicant.
Ms. Asha Desai, Special Public Prosecutor with Ms. S. Dessai,
Advocate for CBI.
WITH
CRIMINAL REVISION APPLICATION NO. 209 OF 2026
State
Thr. CBI, ACB, Goa,
Anti Corruption Branch,
Bungalow No. F-1,
Type VI, GMC Quarters,
NH-17, Bambolim,
Goa-403202. …Applicant
Versus
1. Mr. Mohan Kapse,
Resident of 15/302,
Hill View Society,
Megathane, Borivali (E),
Mumbai.
2. Mr. Charudatta Ozarkar,
Resident of CPWD Quarters No. 9,
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Type 2 Quarter,
Mukundnagar, Pune.
3. Ms. Nagma Shaikh,
Resident of House No. 551,
Dr. Gama Pinto Road,
Panaji, Goa.
4. Ms. Saira Shaikh,
Resident of House No. 7/140,
Bhatlem, Near Sati Temple,
Panaji, Goa.
Currently residing at UK with
Spouse Mr. Imran Shaikh. …Respondents
Ms Asha Desai, Special Public Prosecutor with Ms. S. Dessai,
Advocate for the Applicant.
Mr. H. G. Dharmadhikari with Ms Marilyn Alvares and Ms Lalita
Phadke, Advocates for Respondent No.1.
CORAM : VALMIKI MENEZES, J.
RESERVED ON : 3RD SEPTEMBER, 2026
PRONOUNCED ON : 1ST OCTOBER, 2026.
JUDGMENT:
1. Registry to waive office objections in Criminal Revision
Application No. 120/2024(F), Criminal Revision Application
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No. 296/2024 and Criminal Revision Application No.
207/2024(F) and register the matters.
2. These Criminal Revision Applications No. 08/2024 (filed
by Accused No.1-Mohan Kapse), 208/2026 (filed by Accused
No.2 Charudatta Ozarkar) 207/2026 (filed by Accused No.4-
Saira Shaikh) and 209/2026 (filed by the State) challenge order
dated 10.11.2023 passed by the Special Judge, South Goa at
Margao, in Special Case (SPCC) No. 2 of 2022, arising from FIR
No. RC 2(A)/2020-CBI/ACB/GOA registered on 07.01.2020 by
the CBI under Section 120-B r/w Sections 420, 468 and 471 IPC
and from Chargesheet which came to be filed on 27.12.2021
under Section 120-B r/w Section 420, 468 and 471 IPC and
Sections 7, and 13(2) r/w 13(1)(d) of the Prevention of
Corruption Act, 1988. By the impugned order, the Sessions Court
has discharged Accused No.1, 2 and 4 of the offences under
sections Section 420, 468 and 471 r/w 120-B IPC but directed
charge to be framed under Section 7, and 13(2) r/w 13(1)(d) of
the Prevention of Corruption Act, 1988 (the PC Act); the
impugned order has discharged Accused No.3 in toto.
FACTS
3. An FIR was registered on 07.01.2020 by the Central
Bureau of Investigation (Goa) alleging that between 2017 and
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2019, Mohan Kapse (Accused No.1), then Assistant
Commissioner of Customs, Goa, entered into a criminal
conspiracy with Charudatta Ozarkar (Accused No.2), a private
person, to defraud the Customs Department. Accused No.1 is
alleged to have dishonestly issued 114 work orders for furniture,
electrical and renovation work at the Customs House, Goa out of
which 80 of them were issued without following tender
procedure, to four fictitious firms (M/s Apna Bazar, M/s Stylo,
M/s Manoj Enterprises and M/s Mahalaxmi Trading Co.), floated
by Accused No.2. Accused No.3 (Ms. Nagma Shaikh) and
Accused No.4 (Ms. Saira Shaikh) , who were employees of
Accused No.2, allegedly created forged supporting documents
(quotations, rent agreements, etc.) to open bank accounts and
obtain the work orders.
A chargesheet was filed on 29.12.2021 for offences under
Section 120-B read with Sections 420, 468 and 471 IPC, and
Section 13(2) read with Section 13(1)(d), and Section 7, of the
PC Act (as amended in 2018) against all four accused.
4. The Special Judge took cognizance on 29.04.2022 of the
offences under the PC Act, in the absence of any sanction under
Section 19 of the Act and issued summons to the four Accused.
Sanction under Section 19 of the Act was granted by Government
of India-Ministry of Finance, Department of Revenue Central
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Board of Indirect taxes and Customs by the Office of the Chief
Vigilance Officer, on 05.05.2022 and produced before the trial
court on 01.06.2022.
5. The Accused No.1, 3 and 4 on 07.10.2022 filed
Applications for discharge under section 239 CrPC at Exhibit-
44, 42 and 43 respectively; the State vide replies dated
16.11.2022 opposed the said applications to which the Accused
No.1 filed his rejoinder on 19.07.2023, the Accused No.3 and 4
filed joint synopsis ; the Accused No.2 filed application for
discharge on 03.02.2023 to which the State filed its reply on
01.03.2023 and synopsis on 28.04.2023 to which the Accused
No.2 filed rejoinder dated 09.08.2023.
6. By the impugned order dated 10.11.2023, the Special Judge
discharged Accused No.1, Accused No.2 and Accused No.4 of
the offences under Sections 420, 468, 471 r/w Section 120-B IPC
but directed that charge be framed against them under Section
13(2) r/w Section 13(1)(d) and Section 7 of the PC Act; the Trial
Court discharged Accused No.3 in toto, of all offences under both
the PC Act and the IPC. This order framing charge under
Prevention of Corruption Act is assailed by the Accused No.1,2
and 4, whereas the State has assailed the said order directing the
discharge of Accused No.1,2 and 4 for offences under IPC and
for discharging Accused No.3 of all offences.
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SUBMISSIONS
7. Advocate for the Applicant/Accused No.4 (Saira), Mr.Vilas
Thali in Criminal Revision Application No. 207/2026 has
advanced the following submissions:
a. That this Accused is not Government employee and
could therefore never be charged for offences under the PC
Act.
b. That post facto sanction granted under Section 19 of
the PC Act, itself vitiates the order of taking cognizance of
the offence under the PC Act, and therefore the Trial Court
ought to have discharged all Accused.
c. It was submitted that once the Accused No.1, who
was a Government employee was discharged, the facts that
constitute the charge under the PC Act are so related, that
the private Accused would necessarily have to be
discharged under the PC Act.
d. On merits, the learned Counsel submits that the
allegations in the charge sheet is that Accused No.4 was
part of the conspiracy by which the Local Purchase
Committee, of which Accused No.1 was a member,
allotted work orders to Accused No.2; that merely because
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Accused No.4 was an employee of Accused No.2, and in
the absence of any imputation or specific facts being
alleged to demonstrate how Accused No.4 was privy to the
conspiracy with Accused No.1, there was no material to
frame charge against Accused No.4.
e. Reliance has been placed on the following case law:
i. Hori Ram Singh v/s The Crown1
ii. Shree Kantiah Ramayya Munnipalli v/s
State of Bombay2
iii. Amrik Singh V/s State of Pepsu3
iv. Matajog Dobey v/s H.C. Bhari4
v. Pukhraj v/s State of Rajasthan5
vi. B.Saha v/s M.S. Kochar6
vii. Manohar Nath Kaul v/s State of Jammu
and Kashmir7
viii. Shambhoo Nath Misra v/s State of U.P.8
ix. State of Kerala v/s Padmanabhan Nair9
1
1939 SCC OnLine FC 2
2
(1954) 2 SCC 992
3
1955 SCC OnLine SC 102
4
1955 SCC OnLine 44
5
(1973) 2 SCC 701
6
(1979) 4 SCC 177
7
(1983) 3 SCC 429
8
(1997) 5 SCC 326
9
(1999) 5SCC 690
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x. Dilawar Singh v/s Parvinder Singh10
xi. Central Bureau of Investigation Versus
Akhilesh Singh11
xii. Neera Yadav v/s CBI12
xiii. Parkash Singh Badal v/s State of
Punjab13
xiv. State of M.P v/s Sheetala Sahai14
xv. Shri Atchut Mucund Alornekar v/s CBI15
xvi. Dr. Arun Kumar Chowdhary v/s State of
U.P16
xvii. Rajib Ranjan v/s Vijay Kumar17
xviii. I.O.P v/s Battenpatla18
xix. Tridev Jan Kalyan Samiti v/s U.K
Subuddhi19
xx. Nanjappa v/s State of Karnataka20
xxi. N.K. Ganguly v/s CBI21
10
(2005) 12 SCC 709
11
(2005)1 SCC 478
12
2006 SCC OnLine All 141
13
(2007) 1 SCC 1
14
(2009) 8 SCC 617
15
2012 SCC OnLine Bom 1256
16
2013 SCC OnLine All 540
17
(2015) 1 SCC 513
18
(2015) 13 SCC 87
19
2015 SCC OnLine MP 7725
20
(2015 14 SCC 186)
21
(2016) 2 SCC 143
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xxii. Surinderjit Singh Mand and Anr v/s
State of Punjab and anr.22
xxiii. Indra Devi v/s State of Rajasthan23
xxiv. A. Srinivasulu v/s State24
xxv. State of Punjab v/s Partap Singh
Verka25
xxvi. Krishna Bhagwan Kotak Versus State
Of Maharahstra26
xxvii.CBI v/s Ramesh Chander Diwan27
8. Advocate for the Applicant/Accused No.1, Mr. H.G
Dharmadikari in Criminal Revision Application No. 8/2024 has
advanced the following submissions:
a. That since no previous sanction was obtained prior to
the order of taking cognizance, and this being a mandatory
provision of section 19 of the Act, the only option to the
Trial Court, following the ratio in Nanjappa (supra) was to
discharge the Accused No.1.
22
(2016) 8 SCC 722
23
(2021) 8 SCC 768
24
(2023) 13 SCC 705
25
2024 SCC OnLine SC 1659
26
2024 SCC OnLine BOM 2811
27
2025 SCC OnLine SC 871
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b. That no previous sanction has been taken under
Section 197 of CrPC for offences under IPC in relation to
Accused No.1; in the absence of such sanction, cognizance
could never had been taken by the Trial Court of those
offences.
c. That there is no offence made out from the facts in the
Chargesheet under Section 7 of the PC Act, as the material
to the Chargesheet does not state that there was any
demand or acceptance of gratification; it was submitted
that the essential ingredients of the offence under Section
13(1) (d) of the PC Act, such as undue advantage being
taken by the Accused of his position have not been made
out.
d. Reliance has been placed on the following case law:
i. Vasant Tukaram Mandavkar v/s LIC of
India28
ii. Jamil Akhtar v/s State of West Bengal29
iii. Manoranjan Prasand Choudary v/s
State of Bihar30
iv. P.A Mohandasv/s State of Kerala31
28
1996 (3) LLN 449
29
(2001) SCC OnLine Cal 128
30
(2002) 10 SCC 688
31
(2003) 9 SCC 504
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v. State of Madhya Pradesh v/s Sheetla
Sahai and Ors32
vi. Nanjappa (Supra)
vii. Jatan Kumar Garg v/s Satyanarayan
Tiwari ILR33
viii. Rajani Dabar v/s State of MP34
ix. A. Srinivasulu (supra)
x. C. Surendranath & Anr v/s State of
Kerala35
xi. Pradeep Kumar v/s State of Kerala36
xii. N.K Ganguly (supra)
xiii. State of Goa v/s Babu Thomas37
xiv. Dilawar Singh (supra)
xv. Yuvraj H Ladhwa v/s State of Gujarat
and Ors., vide Judgement dated
22.09.2023 in R/Criminal Revision
Application No.242 of 2013 passed by the
High Court of Gujarat
xvi. Anjani Kumar v/s State of Bihar38
32
(2009) 8 SCC 617
33
2017 MP 467
34
ILR 2018 MO 253
35
CDJ 2024 Ker HC 058
36
2024 SCC OnLine Ker 277
37
(2005) 8 SCC 130
38
CDJ 2008 SC 763
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xvii. State through CBI v/s B.L Verma and
Another39
xviii. Shoukkathali v/s State of Kerala40
xix. Munna Prasad Verma v/s State of U.P
and Anr41
xx. Dalip Kaur and Ors v/s Jagnar Singh
and Anr42
xxi. Anil Kumar Bose v/s State of Bihar43
xxii. Sachidanand Sharma v/s State of
Jharkhand and Anr44
xxiii. Vazhuthacaud R. Narendran Nair v/s
State of Kerala45
xxiv. M.S Banga v/s State of West Bengal and
Anr46
xxv. C.Chenga Reddy and Ors v/s State of
A.P47
39
(1997) 10 SCC 772
40
CDJ 2005 Ker High Court 502
41
(2022) 10 SCC 169
42
(2009) 14 SCC 696
43
(1974) 4 SCC 616
44
2024 SCC OnLine Jhar 191
45
2024 SCC OnLine Ker 862
46
2004 SCC OnLine Cal 443
47
(1996) 10 SCC 193
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xxvi. Dr.Naimuddin @Naim Ahmad v/s
District Judge Etah and Ors48
xxvii.A.Jafferullah v/s T.Stanes and Co.Ltd49
xxviii. Ratan Babulal Lath v/s State of
Karnataka50
xxix. M.Narayan Nambiar v/s State of
Kerala51
9. Advocate for the Applicant/Accused No.2 (Charudatta
Ozarkar), Mr. Vaibhav Ugle in Criminal Revision Application
No.208/2026 has adopted the arguments advanced on behalf of
Accused Nos. 1 and 4. Though served, Accused No.3 has chosen
not to appear in the Criminal Revision Application filed by the
State.
10. Special Public Prosecutor Adv. Ms. Asha Desai Appearing
for the State in Criminal Revision Application No.207 of 2024
and for Respondent No.1 in Criminal Revision Applications No.
08/2024, 208/2026 and 207/2026 has advanced the following
submissions:
a. It was submitted that once sanction is granted for
prosecution of Accused No. 1 under Section 19 of the
48
2004 SCC OnLine All 887
49
(1994) 80 Comp Cas 759
50
2021 SCC OnLine SC 875
51
1962 SCC OnLine Sc 85
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P.C. Act, for offences under Sections 7, 13 (1)(d) and
13(2) of that PC Act, the offences of which Accused No.
1 has been Charge-sheeted under the Indian Penal Code
(Section 420 Section 468 and Section 475 read with
Section 120B), the sanction under Section 19 of the PC
Act would suffice and cover all offences under IPC; it
was further submitted that the sanction granted in the
present matter to prosecute Accused No. 1, even though
refers to the offences under the PC Act, must be
considered as a sanction under Section 197 Cr. P.C. for
all offences. Reliance is placed to buttress the
submissions on Prakash Singh Badal (supra).
b. It was then submitted that since ex-post facto
sanction was accorded to the Chargesheet, the Trial
Court ought not to have discharge the Accused, without
assessing the material in the Chargesheet; it was
submitted that there is enough material in the
Chargesheet to frame a charge against the four Accused.
c. Reliance has been placed on the following:
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i. Union of India v/s Praful Kumar
Samal52
ii. Shivendranath Verma v/s Union of India
vide order dated 22.07.2024 in Criminal
Appeal No.3019 of 2024 arising out of
SLP (Cri) No.12708/2023
iii. Neera Yadav (supra)
iv. I.O.P v/s Battenapatla Venkata Rtanam
(supra)
v. Padmanabhan Nair (supra)
vi. Manohar Nath Kaul (supra)
vii. Rajib Ranjan (supra)
viii. Dr. Arun Kumar Choudhary (supra)
CONSIDERATIONS:
11. Before considering submissions at the Bar, note would
have to be taken of certain relevant facts, which are not in
dispute. Accused No. 1 is admittedly a Public Servant (Assistant
Commissioner of Customs, Goa) employed with the Central
Government between the period of 2017 to 2019, when the
offence is alleged to have taken place. He has been discharged
52
(1979) 3 SCC 4
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by the Trial Court of offences under IPC, but charged for the
offences under PC Act. Accused Nos.2 to 4 are admittedly not
Public Servants. They have been roped in as conspirator with
Accused No. 1 applying Section 120B IPC. They have been
discharged of offences under IPC and charged under offences
under PC Act. Accused No. 3 has been discharged of offences,
both under IPC and PC Act.
12. The offence by Accused No.1 under the PC Act and IPC is
alleged to have taken place between the years 2017 to 2019;
according to the Chargesheet, it is alleged that whilst Accused
No. 1 was posted in Goa and functioning as the Senior most
Member of the Purchase Committee at Customs, Goa, he has
conspired with Accused No.2 from whom he obtained fake
quotations from non-existent firms of the Accused No. 2 at
exorbitant rates for purchase of office furniture, electronics and
electrical items; that based on this fake quotations Work Orders
were issued to Accused No. 2 on these fictitious firms and
payments were made to them. Accused Nos. 3 and 4 were
respectively employees of the Accused No. 2 during this period.
13. The Chargesheet came to be filed on these allegations on
29.12.2021, admittedly without obtaining sanction under Section
19 of the PC Act, nor under Section 197 of the Cr.P.C. to
prosecute Accused No. 1. The Trial Court, in the absence of
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sanction took cognizance of the offence and passed an order
doing so on 29.04.2022, and the Accused were summoned to
appear before it. Sanction was accorded for prosecution of
Accused No.1 on 05.05.2022, restricted to Section 19 of the PC
Act. The sanction order does not grant sanction for prosecution
of offences under Sections 420, 468, 471 read with Section 120B
IPC. the sanction order was produced before the Trial Court only
on 01.06.2022. It is only thereafter that the four Accused moved
applications for their discharge, on which the present impugned
order was passed.
14. In these background facts, the following point for
determination requires to be considered:
(a) Whether in the absence of sanction under Section 19 of
the PC Act and under Section 197 Cr.P.C. to prosecute the
Accused No. 1, he and the Accused Nos. 2 to 4 are required
to be discharged?
(b) Whether a case has been made out from the material on
record for discharge of the four Accused on merits?
15. For the purpose of answering the point for determination,
it would be apposite to refer to some of the decisions of the
Hon’ble Supreme Court on the subject. In B. L. Verma (supra),
the Supreme Court was dealing with the challenge by the CBI to
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the order of the High Court holding that lack of sanction to
prosecute a person under Section 197 Cr. P.C., would not
empower the designated Court to take cognizance of the offences
under the IPC, against a Public Servant. Whilst upholding the
view of the High Court and confirming this position of law, the
Supreme Court also considered, what would be the effect if
sanction under Section 197 Cr. P.C. was granted after discharge.
The relevant parts of the Judgment are quoted below:
“5. We agree with …………
The High Court has rightly found that that would not oust the
necessity of sanction under Section 197 CrPC to take cognizance of
the offence. The expression "no court shall take cognizance of such
offence except with the previous sanction" occurring in Section 197
CrPC unmistakably shows that the bar on the exercise of powers by
the court to take cognizance is mandatory and the previous sanction
from the competent authority for prosecution of the public servant,
who is accused of having committed an offence either in the
execution of his duties or in the purported execution of his duties is
essential to take cognizance Thus in the absence of sanction under
Section 197 CrPC the court of the Chief Metropolitan Magistrate
could not have taken cognizance of the offence against the
respondent and the High Court, therefore, committed no error in
directing the dropping of proceedings against him, in the absence of
such a sanction.
6. We do not find any reason to interfere with the impugned order of
the High Court dated 4-12-1996.
7. However, before parting with this order, we would like to clarify,
lest there be any ambiguity, that the direction of the High Court to
drop the proceedings against the respondent was on account of want
of sanction under Section 197(1) CrPC, and should the competent
authority hereafter grant sanction under Section 197 CrPC, It will
be perfectly valid and open to the petitioner herein to activate the
prosecution against the respondent and the order of the High Court
dated 4-12-1996 or this order shall not come in the way of the court
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to take cognizance nor shall the orders come in the way of the
competent authority to grant sanction under Section 197 CrPC, after
considering the facts and circumstances of the case if the CBI applies
for obtaining sanction. Nothing said hereinabove shall, however, be
construed as any expression of opinion on the merits of the case, and
the competent authority of the court as the case may be, shall decide
the matter on its own merits.”
16. The Supreme Court has therefore opined that cognizance
could not have been taken of the offence against the Public
Servant in the absence of the sanction accorded under Section
197 Cr. P.C., but however observed that should such sanction be
granted by the competent authority, it would be perfectly valid
and open to the CBI to activate the prosecution against the
Accused and the earlier order of discharge or refusal to take
cognizance would not come in the way of grant of sanction or of
the Court to take cognizance after such grant.
17. In Babu Thomas (supra), a Chargesheet was filed under the
PC Act and for offences under IPC. A sanction order under
Section 19 had been filed along with the Chargesheet. The
sanction order was issued by the Company Secretary of the Goa
Shipyard, a Central Government undertaking, but subsequently
a fresh sanction order was filed after cognizance was taken by
the correct competent authority. In these facts, the Supreme
Court has made the following observation:
“12. As already noticed, the sanction order is not a mere irregularity,
error or omission. The first sanction order dated 2-1-1995 was
issued by an authority that was not a competent authority to have
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issued such order under the Rules. The second sanction order dated
7-9-1997 was also issued by an authority, which was not competent
to issue the same under the relevant a rules, apart from the fact that
the same was issued retrospectively w.e.f. 14-9-1994, which is bad.
The cognizance was taken by the Special Judge on 29-5 1995
Therefore, when the Special Judge took cognizance on 29-5-1995,
there was no sanction order under the law authorising him to take
cognizance. This is a fundamental error which invalidates the
cognizance as without jurisdiction. b
13. This being the law, we are unable to sustain the submission of
learned counsel for the appellant.
14. Having regard to the gravity of the allegations levelled against
the respondent, we permit the competent authority to issue a fresh
sanction order by an authority competent under the Rotes and
proceed afresh against the respondent from the stage of taking
cognizance of the offence and in c accordance with law.”
18. Thus, in Babu Thomas (supra), what has been held is that
cognizance taken by Special Court on the basis of a sanction
which was not competently issued, invalidates the cognizance of
the offence and is cognizance taken without jurisdiction. As a
consequence of upholding the invalidity of the order taking
cognizance, the Supreme Court permitted the competent
authority to issue a fresh sanction order and to proceed afresh
against the Accused.
19. In Nanjappa (supra), the Supreme Court was considering a
case where the High Court had reversed an order of acquittal
passed by the Trial Court and convicted the Appellant for
offences under the PC Act. Before the High Court, it was held
that since the validity of the sanction order was not questioned
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prior to conclusion of the trial, the Accused was precluded from
raising this issue at the Appellate stage. The Supreme Court
allowed the Appeal on the short ground that in the absence of a
valid previous sanction required under Section 19 of the PC Act,
the Trial Court was not competent to take cognizance of the
offence against the Accused. Note must be taken of the fact that
in Najappa (supra), a sanction under Section 19 of the PC Act
was in fact produced, but the arguments advanced for the
Accused was that mere production of the sanction would not
preclude the Special Judge at any stage of the proceedings to hold
that the prosecution was not maintainable for want of a valid
order. In that case, the Trial Court had held the sanction
produced, to be invalid since it was issued by authority
incompetent to grant the sanction. In the background of these
facts, the following observations of the Supreme Court would be
of relevance:
“22.The legal position regarding the importance of sanction under
Section 19 of the Prevention of Corruption Act is thus much too clear
to admit equivocation. The statute forbids taking of cognizance by the
court against a public servant except with the previous sanction of an
authority competent to grant such sanction in terms of clauses (a), (b)
and (c) to Section 19(1). The question regarding validity of such
sanction can be raised at any stage of the proceedings. The
competence of the court trying the accused so much depends upon the
existence of a valid sanction. In case the sanction is found to be invalid
the court can discharge the accused relegating the parties to a stage
where the competent authority may grant a fresh sanction for the
prosecution in accordance with law. If the trial court proceeds,
(despite the invalidity attached to the sanction order, the same shall
be deemed to be non est in the eyes of law and shall not forbid a
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second trial for the same offences, upon grant of a valid sanction for
such prosecution.
23. Having said that there are two aspects which we must immediately
advert to. The first relates to the effect of sub-section (3) to Section
19, which starts with a non obstante clause. Also relevant to the same
aspect would be Section 465 CrPC which we have extracted earlier.
23.1. It was argued on behalf of the State with considerable tenacity
worthy of a better cause, that in terms of Section 19(3), any error,
omission or irregularity in the order sanctioning prosecution of an
accused was of no consequence so long as there was no failure of
justice resulting from such error, omission or irregularity. It was
contended that in terms of Explanation to Section 4, "error includes
competence of the authority to grant sanction". The argument is on
the face of it attractive but does not, in our opinion, stand closer
scrutiny.
23.2. A careful reading of sub-section (3) to Section 19 would show
that the same interdicts reversal or alteration of any finding, sentence
or order passed by a Special Judge, on the ground that the sanction
order suffers from an error, omission or irregularity, unless of course
the court before whom such finding, sentence or order is challenged
in appeal or revision is of the opinion that a failure of justice has
occurred by reason of such error omission or irregularity. Sub-section
(3), in other words, simply forbid Interference with an order passed
by the Special Judge in appeal, confirmation or revisional
proceedings on the ground that the sanction is bad b save) and except,
in cases where the appellate or revisional court finds that failure of
justice has occurred by such invalidity. What is noteworthy is that sub-
section (3) has no application to proceedings before the Special
Judge, who is free to pass an order discharging the accused, if he is
of the opinion that a valid order sanctioning prosecution of the
accused had not been produced as required under Section 19(1).
23.3) Sub-section (3), in our opinion, postulates a prohibition against
a higher court reversing an order passed by the Special Judge on the
ground of any defect, omission or irregularity in the order of sanction.
It does not forbid a Special Judge from passing an order at whatever
stage of the proceedings holding that the prosecution is not
maintainable for want of a valid order sanctioning the same.
23.4. The language employed in sub-section (3) is, in our opinion,
clear and unambiguous. This is, in our opinion, sufficiently evident
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even from the language employed in sub-section (4) according to
which the appellate or the revisional court shall, while examining
whether the error, omission or irregularity in the sanction had
occasioned in any failure of justice, have regard to the fact whether
the objection could and should have been raised at an early stage.
Suffice it to say, that a conjoint reading of sub-sections 19(3) and (4)
leaves no manner of doubt that the said provisions envisage a
challenge to the validity of the order of sanction or the validity of the
proceedings including finding, sentence or order passed by the
Special Judge in appeal or revision before a higher court and not
before the Special Judge Trying the accused.
23.5 The rationale underlying the provision obviously is that if the
trial has proceeded to conclusion and resulted in a finding or
sentence, the same should not be lightly interfered with by the
appellate or the revisional court simply because there was some
omission, error or irregularity in the order sanctioning the
prosecution under Section 19(1). Failure of justice is, what the
appellate or revisional court would in such cases look for. And while
examining whether any such failure had indeed taken place, the Court
concerned would also keep in mind whether the objection touching
the error, omission or irregularity in the sanction could or should have
been raised at an earlier stage of the proceedings meaning thereby
whether the same could and should have been raised at the trial stage
instead of being urged in appeal or revision.
24. In the case at hand, the Special Court not only entertained the
contention urged on behalf of the accused about the invalidity of the
order of sanction but found that the authority issuing the said order
was incompetent to grant sanction The trial court held that the
authority who had issued the sanction was not competent to do so, a
fact which has not been disputed before the High Court or before us.
The only error which the trial court, in our opinion, committed was
that, having held the sanction to be invalid, it should have discharged
the accused rather than recording an order of acquittal on the merit
of the case.”
20. What can be observed from Nanjappa (supra), was that the
decision was passed not under circumstances that cognizance
was taken in the absence of an order of sanction under Section
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19, but whether, the Trial Court could invalidate the sanction
order, which was produced along with the Chargesheet at the end
of the trial.
21. Nanjappa (supra) was considered by the Supreme Court in
Shivendranath Verma (supra), where the Supreme Court upheld
the orders of the Trial Court refusing to take cognizance of the
offence under the PC Act in the absence of sanction by the
competent authority. Whilst upholding this contention, the
Supreme Court considered the order of sanction obtained after
the order of cognizance was passed and held that the ratio in
Nanjappa (supra) would not extend and operate as invalidating
the sanction granted after the order taking cognizance was
passed.
22. In Prakash Singh Badal (supra) the Supreme Court has
examined the validity of proceedings initiated under the PC Act
and IPC in the absence of lack of sanction under Section 197 of
the Cr. P.C., in that context, it has observed that the offence of
cheating under Section 420 or those under Section 467, 468, 471
and 120 B of the IPC can by most sketch of imagination, by their
very nature be regarded as having being committed by public
servant, by acting or purporting to act in discharge of official
functions. This Judgment has however been clarified by the
Hon’ble Supreme Court in a later Judgment of A. Srinivasalu
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(supra), and the context in which the Hon’ble Supreme Court
made such observations in Prakash Sing Badal (supra).
Referring to the observations in para 50 of Prakash Singh Badal
(supra), the Supreme Court held as under:
“52. Shri Padmesh Mishra, learned counsel for the respondent
placed strong reliance upon the observation contained in para 50 of
the decision of this Court in Parkash Singh Badal v. State of
Punjab17 It reads as follows. (SCC pp. 37-38, para 50)
"50. The offence of cheating under Section 420 or for that matter
offences relatable to Sections 467, 468, 471 and 120-B can by no
stretch of imagination by their very nature be regarded as having
been committed by any public servant while acting or purporting to
act in discharge of official duty. In such cases, official status only
provides an opportunity for Commission of the offence."
(emphasis supplied)
53. On the basis of the above observation, it was contended by the
learned counsel for the respondent that any act done by a public
servant, which constitutes an offence of cheating, cannot be taken to
have been committed while acting or purporting to act in the
discharge of official duty
54. But the above contention in our opinion is far-fetched. The
observations contained in para 50 of the decision in Parkash Singh
Badal17 are too general in nature and cannot be regarded as the
ratio flowing out of the said case. If by their very nature, the offences
under Sections 420, 468, 471 and 120-B cannot be regarded as
having been committed by a public servant while acting or
purporting to act in the discharge of official duty, the same logic
would apply with much more vigour in the case of offences under the
PC Act. Section 197 e of the Code does not carve out any group of
offences that will fall outside its purview. Therefore, the observations
contained in para 50 of the decision in Parkash Singh Badal 17
cannot be taken as carving out an exception judicially, to a statutory
prescription. In fact, Parkash Singh Budal17 cites with approval the
other decisions (authored by the very same learned Judge) where
this Court made a distinction between an act, though in excess of the
duty, was reasonably connected with the discharge of official duty
and an act which was merely a cloak for doing the objectionable act.
Interestingly, the proposition laid down in Rakesh Kumar Mishra 14
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was distinguished in para 49 of the decision in Parkash Singh
Badal17, before the Court made the observations in para 50
extracted above.
55. No public servant is appointed with a mandate or authority to
commit an offence. Therefore, if the observations contained in para
50 of the decision in Parkash Singh Badal 17 are applied, any act
which constitutes an offence under any statute will go out of the
purview of an act in the discharge of official duty. The requirement
of a previous sanction will thus be rendered redundant by such an
interpretation.”
23. Applying the ratio of the Judgments referred to above, to
the facts of the present case, grant of sanction under Section 19
of the PC Act would be a prerequisite for taking cognizance of
the offences under the PC Act against Accused No. 1, who was a
Government Servant. Accused Nos. 2 to 4 have been roped in by
applying Section 120-B, and have sought to be charged as
conspirator for offences under the PC Act along with the Accused
No. 1. Clearly from the record, as on the date that the Trial Court
took cognizance of the offences (29.04.2022) under Sections 7,
13(2) and 13(1) (D) of the PC Act, there was no order of sanction
in place. The order of sanction under Section 19 was filed on
01.06.2022. The order dated 29.04.2022, taking cognizance of
the offences under the PC Act and IPC against Accused No. 1
was clearly without jurisdiction and is therefore liable to be
quashed and set aside. Consequently, therefore the impugned
order dated 10.11.2023 directing charge to be framed against
Accused No. 1 for offences under the PC Act is without
jurisdiction and must be set aside.
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24. In addition, the record reveals that the sanction order dated
05.05.2022 permits prosecution of the Accused No.1 for offences
which are restricted to the PC Act, and no sanction is granted
under Section 197 Cr. P.C. to prosecute this Accused for offences
under the IPC. The Bar to take cognizance of an offence against
the Accused No. 1, Government Employee in the absence of
sanction under Section 197 Cr. P.C. would therefore apply, and
consequently, the order dated 29.04.2022 taking cognizance of
the offence under IPC against this Accused would be without
jurisdiction. In these facts therefore, the arguments for the State
that a sanction under 19 of the PC Act granted to prosecute
Accused No. 1 for offences under that Act must be considered to
be deemed sanction for the purpose of Section 197 Cr. P.C., to
prosecute that Accused for the offences under IPC must be
rejected.
25. Having held that the order taking cognizance of offences
under the PC Act or under the IPC passed against Accused No. 1
was without jurisdiction, there is no other option but to hold that
taking cognizance of the same offence against Accused Nos. 2 to
4, who are alleged to be part of the very same conspiracy with
the Accused No.1, was without jurisdiction. Accused Nos. 2 to 4,
could certainly not be charged with an offence under the PC Act
in the absence of a charge being framed against Accused No. 1;
this would be much less so in the case of taking cognizance of
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such offences, both under PC Act and IPC, allegedly committed
by Accused Nos. 2 to 4, the cognizance would have not been
taken against Accused No. 1 himself. Having gone through the
allegations in the Chargesheet, it is quite clear that the conspiracy
as alleged therein demonstrates that the facts constituting the
alleged offence against Accused Nos. 2 to 4, are so related to the
offence alleged against Accused No. 1, that if Accused No. 1
could not be charged, the charge must fail against Accused Nos.
2 to 4. Consequently, therefore the order of taking cognizance of
offences, both under PC Act and under IPC would necessarily
have to be quashed and consequently any order to frame charge
against them cannot be sustained.
26. On the findings given by me above, I answer the first point
for determination in the affirmative. Since the orders taking
cognizance of the offences, both under PC Act and under IPC
against Accused Nos. 1 to 4 are without jurisdiction, these
Accused stand discharged.
27. This brings me to the second point for determination
framed above. After considering the decision of the Supreme
Court in Najappa (supra), and upholding the order of the High
Court quashing the order of taking cognizance, in
Shivendranath Verma (supra), the Supreme Court left it open to
the prosecution, who had obtained sanction subsequent to filing
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of the Chargesheet, to press for examining the Chargesheet along
with such subsequent order of sanction, and permitted the Trial
Court to examine if a fresh order of cognizance could be passed.
It has been urged by the State, that this Court, in the
circumstances of this case, and in the light of the fact that the
order of sanction had been filed before the Trial Court
subsequent to the cognizance being taken, should take a similar
course, and permit the Trial Court to examine the Chargesheet
afresh for deciding whether the cognizance should be taken in
the light of the subsequent sanction. After considering this
submission and the specific facts of this case, as stated in the
material produced with the Chargesheet, I am of the opinion, that
no such purpose would be served of leaving the case open for the
Trial Court to reconsider whether cognizance should be taken
after considering the order of sanction.
28. On examining the material produced with the Chargesheet,
the following facts become evident. The Accused No. 1 Mohan
Kapse was the Assistant Commissioner of Customs and part of
the Purchase Committee between 15.06.2017 and 08.11.2019,
when he is alleged to have influenced the decisions of the
Committee to award contracts to Accused No. 2 on the basis of
fake quotations at exorbitant rates. The Chargesheet also alleges
that Accused No. 2 had given fake quotations in the name of
several of his non existing firms. It is also alleged in the
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Chargesheet that the Accused No.1 would pressurize the other
two members of the Committee, who were his subordinates to
sign the quotations and based on such decisions, the contracts
could be awarded to fictitious firms of the Accused No. 2.
29. From the materials produced with the Chargesheet, the
other members of the Committee between July, 2017 and
December, 2019 were the following persons:
July 2017 to December 2017 Mr.R.R.Naik
( Superintendent Custodian)
January 2018 to May 2018 Mr. K.L Naik
( Superintendent Custodian)
July 2018 to January 2019 Mr.S.L Morudkar (late) and
Mr.Kishore Nagvekar
( Superintendent Custodian)
February 2019 to December Mr.Vishwas Gaigole
2019 ( Superintendent Custodian)
July 2017 to July 2018 Mr.Stanley Colaco
( Superintendent Vigilance)
July 2018 to December 2019 Ms.Sahita Soman
( Superintendent Vigilance)
30. The Chargesheet however nowhere referred to any of the
statements of the other Committee members, recorded during
investigation, that alleged coercion, or pressure being exerted by
the Accused No. 1 on them to allot contracts to the firms of the
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Accused No. 2. Even then, what follows by logic is that all the
other committee members ought to have been roped in as
Accused, as part of the decision making process, which the State
alleges was to defraud the exchequer. This is even more so, since
all these committee members were Government Employees in
the level of Superintendents in the Customs department.
31. According to the Chargesheet, the process of effecting
purchases for the Department, according to Delegation of
Financial Powers, originates with Commissioner of Customs,
Goa, who is designated as Head of Department and has full
financial powers to accord expenditure. According to the
procedure for procurement, the proposal originates from the
Commissioner of Customs, after which the Purchase Committee
comprising of Accused No. 1 and any two of the Superintendents
who are listed in a table at the aforementioned paragraph are
required to obtain quotations after completing a market survey,
which quotations are required to be maintained under sealed
cover and opened at the meeting of the Purchase Committee. The
final decision as to whether the purchase is to be effected, is
taken ultimately by the Commissioner, on the recommendation
of the Purchase Committee of the best quotation.
32. Considering the procedure to be followed, and if the
imputations in the Chargesheet are to be taken at their face value,
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the Commissioner of Customs, Goa and all other members of the
Purchase Committee would be as responsible in the decision
making process, which the Chargesheet alleges, was influenced
by Accused No. 1 for gains, which was dishonest. What is glaring
is that the prosecution has chosen to leave out the Commissioner
of Customs and all members of the Purchase Committee from
being charged as Accused and has singled out the Accused No.
1. From the material annexed to the Chargesheet, it is difficult to
understand how the Accused No. 1 was a privy to the conspiracy
with Accused Nos. 2, 3 and 4, in the absence of the final decision
maker i.e. the Commissioner of Customs and the other members
of the Purchase Committee. This becomes even more evident
from the fact that the Commissioner of Customs was never
examined and there is no statement in the Chargesheet referring
to the Commissioner’s statement.
33. Accused Nos. 3 and 4 are admitted employees of Accused
No. 2. There is absolutely no imputation of any participation of
Accused No. 3 in the alleged conspiracy, though there are
reference made to the fact that Accused No. 3 was the sister of
the Accused No. 4 and was working as a Sales Executive in the
shop of Accused No. 2. There is no material on record to
demonstrate how Accused No. 3 participated in the conspiracy.
As far as Accused No. 4 is concerned, it was alleged that she in
order to help Accused No. 2, with whom she was employed,
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opened an account on her name under the style of “Creative
Enterprises” to facilitate Accused No. 2 to submit quotations on
the name of this concern and ultimately to receive payments on
the basis of the lowest quote picked by the Purchase Committee.
However, even going by this fact, the material on the
Chargesheet, does not prima facie establish, how there was
conspiracy amongst Accused Nos. 1, 2 and 4, in the absence of
roping in the other members of the Purchase Committee and the
Commissioner of Customs to put the final decision as Accused.
From the material in the Chargesheet, none of the offences
specified in Sections 7 and 13 of the PC Act can be said to have
been prima facie made out, for the purpose of formulating a
charge under those Sections. No purpose would be served, under
these circumstances in continuing the prosecution of this
Chargesheet in the light of the observations made herein, as the
case is bound to fail. It is in these circumstances, I am of the
opinion that following the course taken by the Hon’ble Supreme
Court in Shivendranath Verma (supra) by quashing and setting
aside the order of taking cognizance and directing framing of
charge against Accused Nos. 1, 2 and 4 under the PC Act, serves
absolutely no purpose, as the Trial Court, even if it considers the
post facto sanction granted, on the basis of the material in the
Chargesheet ought not to take cognizance of the offences under
the PC Act against these Accused.
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34. For all the aforementioned reasons, the Criminal Revision
Applications Nos. 08/2024 of Accused No. 1, Criminal Revision
Application No. 208/2026 of Accused No. 2, Criminal Revision
Application No. 207/2026 of Accused No. 4 are allowed and the
order taking cognizance of the offences under Sections 7, and
13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and
Sections 120-B r/w Section 420, 468 and 471 IPC stand quashed
and set aside, consequently, they stand discharged. For reasons
stated above, the Criminal Revision Application filed by the
State bearing Criminal Revision Application No. 209/2026
stands dismissed. The discharge of Accused No. 3 is confirmed.
35. Criminal Revision Application No. 207/2026, Criminal
Revision Application No. 208/2026, Criminal Revision
Applications Nos. 08/2024 and Criminal Revision Application
No. 209/2026 stand disposed of.
VALMIKI MENEZES, J.
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