Bombay High Court
Shamkant Dattatraya Thombre vs The State Of Mah And Anr on 17 February, 2026
2026:BHC-AUG:6830
905.Cri.Revn.-53-2008.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Revision Application No. 53 Of 2008
Shamkant s/o Dattatraya Thombre ...Applicant
Versus
State of Maharashtra And Another ...Respondents
APPEARANCES :
Mr. Rajendra Deshmukh a/w
Senior Advocate for Applicant : Mr. Hashmi Ubaid and
Mrs. Shital i/by Mr. R.G. Dodiya
Addl.PP for Respondent/State : Mr. A. S. Shinde
CORAM : MEHROZ K. PATHAN, J.
Date On Which The Arguments Were Heard : 3 FEBRUARY 2026
rd
Date On Which The Judgment Is Pronounced : 17th FEBRUARY 2026
JUDGMENT :
1. The present Revision Application is filed by the
Applicant seeking quashing and setting aside of the order dated
08.02.2008 passed by the learned Special Judge and Additional
Sessions Judge, Jalna, below Exhibit-134 in Special (SPA)
No.2/2005, whereby the Applicant’s request for quashing of the
prosecution and for discharge was rejected.
2. This Court vide its order dated 17.06.2008 admitted
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the Revision and stayed the proceedings before the trial Court
insofar as the Applicant is concerned. The present Revision
Application is taken up for final hearing by consent of the parties.
3. The Applicant was arrayed as an accused in Crime
No.141/2000 registered with Kadim Jalna Police Station for
alleged irregularity and misappropriation committed by him while
performing duties in the capacity of the Chief Executive Officer,
Zilla Parishad, Jalna during the period of 08.08.1997 to
13.10.1998 on the complaint of the Executive Engineer of the
Rural Water Supply Department, Zilla Parishad, Jalna for the
offences punishable under Sections 120(B), 408, 409, 119, 465,
109 of the Indian Penal Code and under Sections 13(2) and 13(1)
(d) of the Prevention of Corruption Act, 1988.
4. The Applicant got retired on superannuation from the
Government service on 30.04.2003. The prosecution has
completed the investigation in the aforesaid crime and has filed a
charge-sheet before the learned Special Judge, Jalna in respect of
the said crime on 18.01.2005. The prosecution submitted a note
along with the charge-sheet that the sanction is being sought for
prosecution of the Applicant accused along with the other co-
accused from the competent authority and necessary
correspondence in that regard is being made and after receipt of
the sanction, the same would be produced before the Court and
hence the trial shall not proceed.
5. The Applicant therefore filed an application on
27.07.2007 before the learned Trial Court at Jalna on the ground
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that, although the charge-sheet had been filed on 18.01.2005,
sanction had not yet been accorded by the competent authority.
The Applicant accordingly prayed for quashing of the prosecution
alleged against him for want of mandatory sanction. The learned
Trial Court called upon the prosecution to file its say. The
prosecution accordingly filed its say and prayed for rejection of the
application. The Deputy Superintendent of Police, CID, Jalna,
submitted a letter before the trial Court conveying that the
sanction against the Applicant had been rejected by the
Government vide order dated 07.12.2007. The Applicant
thereafter filed one more written submission, Exhibit-202, on
15.01.2008, praying for quashment of the prosecution against him
on the ground of refusal of sanction by the Government. However,
the learned Trial Court, vide the impugned order dated
08.02.2008, was pleased to reject the application for quashment of
the prosecution and for discharge of the Applicant.
. Being aggrieved by the order dated 08.02.2008
thereby rejecting the application for discharge and quashment of
the prosecution and against the Applicant, the Applicant has filed
the present Revision.
6. The learned Senior Counsel Mr. Deshmukh for the
Applicant submits that the Applicant was exonerated in the
departmental inquiry conducted by the Government for very same
charges vide communication issued by the Government dated
17.05.2003. It is further submitted by the learned Senior Counsel
that as the Government itself has refused the sanction by order
dated 07.12.2007 to prosecute the present Applicant, the
prosecution of the Applicant in the aforesaid crime ought to have
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been quashed. The learned Senior Counsel further submits that
the learned trial Court has wrongly relied upon by the judgment in
V.S. Goraya Vs. U.T. of Chandigarh reported in (2007) 6 SCC 397,
as the facts of the said case is different from the present case. The
facts in the case of V.S. Goraya (supra) show that the public
servant was dismissed from service at the time of filing of the
charge-sheet and taking of the cognizance by the trial Court,
whereas in the present case the Applicant stood retired on
30.04.2003 when the charge-sheet came to be filed on 18.01.2007.
Thus the learned trial Court has wrongly applied the law in the
case of V.S. Goraya (supra) to reject the application filed by the
Applicant for discharge.
7. The learned Senior Counsel relied upon the judgment of
the Hon’ble Supreme Court in the case of State of Punjab Vs. Labh
Singh reported in (2014) 16 SCC 807, particularly paragraph no.
10, wherein the Hon’ble Supreme Court has held that the High
Court was absolutely right in setting aside the order of the Special
Judge as the Court could not have taken the cognizance, insofar as
the offences punishable under the Penal Code are concerned, as
the protection under Section 197 of the Code of Criminal
Procedure is available to the public servant concerned even after
retirement.
8. The learned Senior Counsel further relied upon the
judgment of the Bombay High Court at its Nagpur Bench in the
case of Prakash s/o Shivram Natkar Vs. State of Maharashtra and
Anr. in Criminal Revision Application No.61/2022 dated
17.03.2025, wherein this Court has held that the ground raised by
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the Applicant, insofar as the sanction is concerned, is a valid
ground, as the object behind requiring sanction is to ensure that a
public servant does not suffer harassment on false allegations. The
mandate of Section 19(1) of the Prevention of Corruption Act is
clear and unambiguous, that the Court shall not take cognizance
without sanction by the competent authority.
9. The learned Senior Counsel further submits that the
Applicant was 65 years old when the Revision was filed and is
presently 83 years of age, and therefore relies upon the judgment
in Nanjappa v. State of Karnataka, Criminal Appeal No.1867 of
2012, delivered by the Hon’ble Supreme Court to submit that the
Applicant shall not be made to face trial at this age.
10. The learned Senior Counsel relied upon the judgment
in State of Punjab v. Partap Singh Verka, Criminal Appeal No.1943
of 2024 (arising out of SLP (Crl.) No.6006 of 2019), delivered by
the Hon’ble Supreme Court, to submit that even while considering
an application under Section 319 of the Code of Criminal
Procedure for addition of an accused, the Court cannot proceed
further without first satisfying the requirements of Section 19 of
the Prevention of Corruption Act.
11. Thus the learned Senior Counsel submits that taking
into consideration the aforesaid pronouncements of law by the
Hon’ble Supreme Court and the High Court, the impugned order
dated 08.02.2008 is bad in law and is thus liable to be quashed and
set aside. It is further submitted that the sanction to prosecute the
Applicant was refused by the competent authority and as such in
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the absence of any sanction to prosecute the Applicant, the
cognizance of the charge-sheet could not have been taken by the
learned Special Court.
. The learned Senior Counsel further submits that the
definition of the public servant does not exclude a retired public
servant from the purview of section 19 of the Prevention of the
Corruption Act and as such even though the Applicant stood
retired at the time of filing of the charge-sheet, the sanction to
prosecute the Application was must and in the absence of the
same the prosecution of the Applicant could not be sustained. He
therefore prays for quashing and setting the aside the impugned
order dated 08.02.2008.
12. As against this, the learned APP submits that the
impugned order is just and proper and is passed on the correct
appreciation of the law and has been pronounced by the Hon’ble
Supreme Court in the various judgments. It is almost now a settled
law that the sanction to prosecute the public servant for the
offences under the Prevention and Corruption Act is not required
if the public servant had already retired on the date of cognizance
by the Court. He relies upon the judgment of the Hon’ble Supreme
Court in the case of S.A. Venkataramani Vs. State reported in AIR
1958 SC 107, wherein a three-Judge Bench of the Hon’ble
Supreme Court held in no uncertain terms that when the Court is
asked to take cognizance, not only must the offence have been
committed by a public servant, but the person accused must still
be a public servant removable from his office by a competent
authority.
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13. The learned APP further relied upon the judgment in
Parkash Singh Badal and Another Vs. State of Punjab and Others
reported in (2007) 1 SCC 1, wherein the Hon’ble Supreme Court
was pleased to hold that the question relating to the need of
sanction under Section 197 of the Code is not necessarily to be
considered as soon as the complaint is lodged and on the
allegations contained therein. This question may arise at any stage
of the proceeding. The question whether sanction is necessary or
not may have to be determined from stage to stage.
. The learned APP further relies upon the observations
of the Hon’ble Supreme Court that the offence of cheating under
Section 420, or for that matter the other offences relatable to
Sections 467, 468, 471, and 120B, 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. He therefore submits that sanction
under Section 197 Cr.P.C. is not necessary even in respect of
offences under the IPC.
14. I have gone through the order dated 08.02.2008
passed by the learned Additional Sessions Judge, Jalna, rejecting
the application filed by the Applicant for quashing of the
prosecution and for discharge from the offences under the
Prevention of Corruption Act, filed under Sections 13(2) and
13(1)(d) of the said Act, along with Sections 120B, 408, 409, 112,
465, and 109 of the Indian Penal Code, against the Applicant and
other co-accused. A perusal of the charge-sheet shows that there
are serious allegations of criminal breach of trust by a public
servant, coupled with conspiracy and forgery with an intention to
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cheat, against the present Applicant and other accused persons.
The Applicant was working as Chief Executive Officer of the Zilla
Parishad, Jalna, at the relevant time between 08.08.1997 and
13.10.1998.
15. The perusal of the order dated 08.02.2008 shows that
the learned trial Court considered the fact that the Applicant had
retired on 30.04.2003, whereas the charge-sheet came to be filed
on 18.01.2005. The learned trial Court relied upon the judgment in
V.S. Goraya (cited supra) and held that the facts of the said
authority were identical to the facts of the present case, wherein
the Applicant is charged with offences punishable under Sections
13(2) and 13(1)(d) of the Prevention of Corruption Act and held
that since the petitioner was retired before filing of charge-sheet,
sanction under Section 19 was not necessary. The very judgment
relied upon by the learned Senior Counsel Mr. Deshmukh in the
case of State of Punjab Vs. Labh Singh (supra) would itself show
that the public servants in question had retired on 13.12.1999 and
30.04.2000. The sanction to prosecute them was rejected
subsequent to their retirement i.e. first on 13.09.2000 and later on
24.09.2003. The Hon’ble Supreme Court in the case of Labh Singh
(supra) was pleased to hold as under :
“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 cognizance by the Court.”
. In S.A. Venkataramani (supra) while construing Section
6(1) of the Prevention of Corruption Act, 1947 which provision is
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in pari materia with section 19(1) of the PC Act 1947, 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. In a comparatively recent judgment of
the Hon’ble Supreme Court, in the case of Station House Officer,
CBI/ACB/Bangalore v. B.A. Srinivasan and Another, reported in
2019 SCC 1324, the three-Judge Bench was pleased to hold as
under:
“The protection available to a public servant while in service
is not available after his retirement.”
16. The Hon’ble Supreme Court in State of Punjab v. Lab
Singh (supra) relied upon the judgments in C.R. Bansi v. State of
Maharashtra, Kalicharan Mahapatra v. State of Orissa, and the
Constitution Bench decision in K. Veeraswamy v. Union of India,
had came to the conclusion that sanction to prosecute a public
servant for offences under the Prevention of Corruption Act is not
required if the public servant has already retired on the date when
cognizance is taken by the Court. Thus, the law on the aforesaid
point stands settled and made applicable by various
pronouncements of the Hon’ble Supreme Court. In the present
case as the Applicant had retired from service on 30.04.2003 and
the charge-sheet was filed thereafter in 2005, it cannot be said
that the Applicant was a public servant on the date of filing of the
charge-sheet in Court, and as such, the sanction contemplated
under Section 19 of the Prevention of Corruption Act was not
necessary. The contention of the present Applicant is therefore
misconceived and liable to be rejected.
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17. Insofar as the other ground raised by the learned
Senior Counsel for the Applicant, pertaining to paragraph no.10 of
the judgment of the Hon’ble Supreme Court in State of Punjab v.
Lab Singh (supra) is concerned, the Hon’ble Supreme Court in
Parkash Singh Badal and Another v. State of Punjab and Others
(supra) has clearly held that the offence of cheating under Section
420, or for that matter offences relatable to Sections 467, 468,
471, and 120B, 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. Thus, it is clear that the offences
alleged to have been committed by the Applicant under the Indian
Penal Code cannot be regarded as acts done or purported to be
done in furtherance of his official duties. The question relating to
the need of sanction under Section 197 of the Code is not
necessarily to be considered as soon as the complaint is lodged and
on the allegations contained therein. This question may arise at
any stage of the proceeding. The question whether sanction is
necessary or not may have to be determined from stage to stage.
Hence, the second submission made by the Applicant with regard
to paragraph no.10 of the judgment in State of Punjab v. Labh
Singh (supra) is therefore liable to be rejected.
18. Insofar as the judgment relied upon by the learned
Senior Counsel in Prakash s/o Shivram Natkar (supra), it is clear
from the facts of that case that it was not a case of a retired public
servant and the necessity under Section 19 of the Prevention of
Corruption Act for sanction to prosecute a retired public servant.
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The observations and findings of the said judgment therefore
cannot be read as dealing with the case of a retired public servant.
Thus, reliance on the aforesaid case, which does not consider the
situation of a retired public servant, would be of no assistance to
the Applicant, as the Applicant is a retired public servant.
19. The submission of the Applicant with regard to
exoneration in the departmental inquiry is already settled by the
judgments of the Hon’ble Supreme Court in State Of N.C.T.Of Delhi
vs Ajay Kumar Tyagi, reported in (2012) 9 SCC 658, wherein the
Hon’ble Apex Court considered various decisions and held that
criminal proceedings and disciplinary proceedings based on the
same charge, and the fact that the accused was exonerated in
disciplinary proceedings, by itself cannot be a ground for quashing
the criminal proceedings. A criminal case is decided on the basis of
the evidence produced by the prosecution and cannot be rejected
on the basis of evidence in departmental proceedings or the report
of an inquiry officer. It is only in cases where the prosecution is
based solely on a finding in a disciplinary proceeding, and the
same is set aside by the superior authority, that the prosecution
may be quashed, as the very foundation itself ceases to exist. In
the present case, the prosecution of the Applicant is not based
upon charges proved against him in any inquiry report. The FIR
filed against the Applicant and other accused persons is an
independent initiation of criminal proceedings, which include
allegations of criminal conspiracy, criminal misappropriation, and
criminal breach of trust against the Applicant and other co-
accused persons. It cannot be said to be based upon the findings of
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the inquiry report, and as such, the same cannot form the basis for
quashing the proceedings on the ground of exoneration of the
Applicant in the disciplinary inquiry.
20. The submission made by the learned Senior Counsel for
the Applicant regarding the age of the Applicant, who is now 83
years old, and the judgment relied upon pertaining to
consideration of the age of a senior citizen, is misconceived. In the
present case, the Applicant himself obtained a stay of the trial
against him by filing the present Revision Application, and this
Court, vide order dated 17.06.2008, stayed the trial as against the
Applicant. Thus, the Applicant cannot take undue advantage of his
own acts. Moreover, the judgment in Nanjappa v. State of
Karnataka (supra), which considered the age of the accused,
pertains to a different set of facts wherein the accused had already
been convicted by the High Court by reversing the order of
acquittal passed by the Trial Court on a technical ground of
sanction. In the facts in the case of Nanjappa v. State of Karnataka
(supra), is distinguishable and the same cannot be applied to the
facts of the present case.
21. Thus, taking into consideration the clear
pronouncement of law on the aforesaid points raised by the
Applicant, I do not find any error committed by the learned Trial
Court in rejecting the application for discharge and quashing of
the prosecution filed by the Applicant. The Revision Application is
therefore devoid of substance on merits and is hereby rejected.
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22. Needless to mention, the interim relief of stay granted
to the trial as against the Applicant stands vacated.
23. Since the trial has remain stayed for 18 years by the
interim order dated 17.06.2008, and also taking into consideration
the age of the Applicant, it would be necessary in the interest of
justice to direct the trial Court to decide the trial expeditiously.
The trial Court is therefore requested to make an endeavour to
complete the trial expeditiously and in any case not beyond one
year.
[ MEHROZ K. PATHAN ]
JUDGE
Najeeb..
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