JUDGMENT : 1. In this criminal application, filed under Section 482 of the Code of Criminal Procedure challenge is to the order dated 15.01.2020 passed by the learned Special Judge, Akola, whereby the learned Special Judge rejected the application made by the applicant/accused for his discharge in Special ACB Case No.01/2013. 2. Background facts:- The non-applicant No.2 is the informant. On his report lodged at Ramdaspeth Police Station Akola crime bearing No.3024/2007 under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 was registered against the accused. It is the case of prosecution that non-applicant No.2, at the relevant time was working as lecturer at Mundada Jr. College, Malegao, District Washim. The college management had passed resolution to introduce a subject “Computer Science” in the college on no grant basis. The proposal needed consent and approval of the Government. The proposal was required to be sent to the Government through proper channel. Initially, it was required to be put up before the office of District Vocational Education and Training Officer Grade-1 Akola. Through the office of District Vocational Education Officer the proposal was required to be sent to Mantralaya Mumbai for final approval. 3. The accused, at the relevant time was District Vocational Education and Training Officer at Akola. The proposal was put up before the accused by non-applicant No.2 with necessary documents for approval and for issuance of no objection certificate. The accused, on 21.07.2007, issued a letter to the college and pointed out some discrepancies in the proposal. The college was called upon to rectify the discrepancies. The accused on 12.03.2007 personally visited junior college at Malegaon and discussed the issue with non-applicant No.2. After due deliberation non-applicant No.2 promised that the proposal would be put up after removing the objections. It is stated that during the discussion, the accused demanded Rs.5,000/- from non-applicant No.2 as a bribe for forwarding the proposal to the Government of Maharashtra. The accused further told non-applicant No.2 that the proposal would be rejected on a technical ground, if the amount demanded was not paid. Non-applicant No.2 initially expressed his inability to pay the amount in lump sum, but agreed to pay Rs.2,000/- on 13.03.2007 as a part payment. Non-applicant No.2 visited the office of accused and submitted the proposal with necessary documents. It is stated that non-applicant No.2 was not willing to pay the amount. Non-applicant No.2 initially expressed his inability to pay the amount in lump sum, but agreed to pay Rs.2,000/- on 13.03.2007 as a part payment. Non-applicant No.2 visited the office of accused and submitted the proposal with necessary documents. It is stated that non-applicant No.2 was not willing to pay the amount. He, therefore, lodged the complaint against the accused. Anti Corruption Bureau Officer thereafter by following the procedure conducted the raid and apprehended the accused while accepting the bribe amount of Rs.2,000/- on 13.03.2007. After investigation in the crime, charge sheet came to be filed. Learned Special Judge took the cognizance of the offence. 4. The accused made the application for discharge under Section 227 of the Code of Criminal Procedure. It is his case that the allegations made against him are false. He did not demand bribe from non-applicant No.2. There is no evidence to frame the charge against him. On the false report of non-applicant No.2, the case was filed against him. 5. It is further contended that sanction for prosecution of the accused is not valid sanction. It is the case of the accused that in respect of the same prosecution earlier on three occasions, the sanction was refused by the competent authority. The order, refusing sanction on three occasions, was reviewed without any new material and without recording the reasons. The sanction obtained thus is not legal and valid. The cognizance taken by the learned Judge was not proper. 6. This application was opposed by the State. It is the contention of the State that the crime committed by the accused is serious in nature. On the basis of the complaint of non-applicant No.2 the trap was laid and accused was apprehended red handed while accepting the bribe. There is ample evidence on record to establish the complicity of the accused in the commission of crime. The material collected during the course of investigation was submitted to the authority with the proposal for according sanction. Sanction was accorded after consideration of the material. The sanction is legal and valid. The prosecution has to lead the evidence and establish the circumstances which led to review to the earlier orders refusing the sanction. 7. The learned Judge considered the material on record as well as the submissions touching the issue of sanction and rejected the application. 8. Sanction was accorded after consideration of the material. The sanction is legal and valid. The prosecution has to lead the evidence and establish the circumstances which led to review to the earlier orders refusing the sanction. 7. The learned Judge considered the material on record as well as the submissions touching the issue of sanction and rejected the application. 8. I have heard Shri S. V. Sirpurkar, learned Advocate for the accused and Smt. Mayuri Deshmukh, learned APP for the State. Non-applicant No.2 though served has not appeared before the Court. 9. Learned Advocate for the accused submitted that undisputedly the sanction for prosecution of the accused on earlier three occasions was rejected by the competent authority. Learned Advocate submitted that the sanction accorded on review of earlier three orders of refusal of sanction is not valid and legal. Learned Advocate pointed out that it is not the case of the prosecution that after rejection of the sanction thrice any new material was placed before the competent authority with the proposal for sanction. Learned Advocate submitted that review of the order of rejection of sanction on the same material is not legal and proper. Learned Advocate pointed out from the order of sanction that there is no mention in the order as to why reconsideration and review became necessary. Learned Advocate in order to seek support to his submissions placed heavy reliance on two decisions of the Supreme Court namely 1. State of Punjab and another vs. Mohammed Iqbal Bhatti reported in (2009) 17 SCC 92 and 2. State of Himachal Pradesh Vs. Nishant Sareen reported in (2010) 14 SCC 527 . Relying upon these two decisions learned Advocate submitted that legal position on the issue has been settled by the Hon’ble Supreme Court and therefore, the order passed by the learned Special Judge cannot be sustained. Learned Advocate submitted that on this ground the entire prosecution against the accused has been vitiated and therefore, the accused is required to be discharged from the case. 10. Learned APP submitted that on three occasions the sanction was refused by the concerned Authority without recording proper reasons. Learned APP submitted that proposal was therefore, submitted to the competent authority and the competent authority was satisfied that the material on record is sufficient to prosecute the accused. 10. Learned APP submitted that on three occasions the sanction was refused by the concerned Authority without recording proper reasons. Learned APP submitted that proposal was therefore, submitted to the competent authority and the competent authority was satisfied that the material on record is sufficient to prosecute the accused. Learned APP submitted that earlier three orders refusing sanction for prosecution are required to be kept aside. Learned APP submitted that competent authority found the material given with fresh proposal sufficient to make out the case against the accused and therefore, the sanction was accorded. Learned APP submitted that the issue with regard to review of the sanction and the circumstances which led to review are required to be established by leading evidence. Learned APP submitted that on the basis of the contention of the accused, at this stage, he cannot be discharged. Learned APP submitted that competent authority at the time of evidence is bound to lead the evidence and prove the circumstances which warranted the review of the earlier three orders and grant of sanction to prosecute the accused. Learned APP submitted that the decisions relied upon by learned Advocate for the accused are not helpful to the case of the accused at this stage. 11. In order to appreciate the rival submissions the undisputed facts need to be stated at the out set. It is undisputed that on three occasions sanction to prosecute the accused was refused by the competent authority. The first order of refusal of sanction is dated 08.04.2011, 2nd order is dated 06.07.2011 and 3rd order is dated 13.10.2011. The order of sanction in question is dated 25.03.2013. It is undisputed that by this order dated 25.03.2013 earlier three orders refusing the sanction for prosecution of the accused came to be reviewed. It is not the case of prosecution that after refusal of sanction new material was collected and submitted to the competent authority seeking review of the earlier orders refusing sanction. On the contrary, it is the case of prosecution that on the basis of very same material, the sanction was sought from the competent authority and it was accorded on 25.03.2013. It is undisputed that by order dated 25.03.2013 the refusal of sanction thrice was reviewed. The question is whether the review of sanction in the facts and circumstances was in accordance with law. It is undisputed that by order dated 25.03.2013 the refusal of sanction thrice was reviewed. The question is whether the review of sanction in the facts and circumstances was in accordance with law. In my view, in order to address this issue, it is necessary to consider the settled legal position from two decisions relied upon by the learned Advocate for the accused. 12. The identical issue fell for consideration of Hon’ble Supreme Court in the case of State of Punjab and another vs. Mohammed Iqbal Bhatti (supra). In the case before the Hon’ble Supreme Court, the sanction was refused by order dated 15.12.2003. The matter was again placed before the competent authority for sanction and sanction was granted on 14.09.2004 for prosecution of the accused. The legality of the said order was challenged before High Court of Punjab and Harayana. The High Court allowed the challenge and held that the state has no power to review the order of sanction. This order was challenged before the Hon’ble Apex Court. The Hon’ble Supreme Court maintained the order of Punjab and Haryana High Court. The observations from paragraph numbers 6, 7 and 9, 20 and 21 are relevant for the purpose of this case and the same are extracted below:- 6. Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the authority concerned is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts. 7. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidence must be considered by it. The sanctioning authority must apply its mind on such material facts and evidence collected during the investigation. 7. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidence must be considered by it. The sanctioning authority must apply its mind on such material facts and evidence collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidence may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. It is also well settled that the Superior Courts cannot direct the sanctioning authority either to grant sanction or not to do so. The source of power of an authority passing an order of sanction must also be considered. (See Mansukhlal Vithaldas Chauhan v. State of Gujrat) [ (1997) 7 SCC 622 ]. The authority concerned cannot also pass an order of sanction subject to rectification of a higher authority. 9. In the aforementioned situation, the High Court, opined: "Once the Government passes the order under Section 19 of the Act or under Section 197 of the Code of Criminal Procedure, declining the sanction to prosecute the official concerned, reviewing such an order on the basis of the same material, which already stood considered, would not be appropriate or permissible. The Government is expected to act consciously and cautiously while taking such serious decisions. The perusal of the record shows that pointed queries had been raised to be answered by the Vigilance Bureau but no answer was forthcoming nor any had been submitted subsequently which culminated into passing of the later order dated September 30, 2004. We refrain ourselves from mentioning the queries which had been raised but it would suffice to say that the queries were never answered at the relevant time when the order dated December 15, 2003 had been passed nor was the same ever commented upon as no answers were placed before the competent authority for passing the impugned order dated September 30, 2004. 20. It was, therefore, not a case where fresh materials were placed before the sanctioning authority. No case, therefore, was made out that the sanctioning authority had failed to take into consideration a relevant fact or took into consideration an irrelevant fact. 20. It was, therefore, not a case where fresh materials were placed before the sanctioning authority. No case, therefore, was made out that the sanctioning authority had failed to take into consideration a relevant fact or took into consideration an irrelevant fact. If the clarification sought for by the Hon'ble Minister had been supplied, as has been contended before us, the same should have formed a ground for reconsideration of the order. It is stated before us that the Government sent nine letters for obtaining the clarifications which were not replied to. 21. The High Court in its judgment has clearly held, upon perusing the entire records, that no fresh material was produced. There is also nothing to show as to why reconsideration became necessary. On what premise such a procedure was adopted is not known. Application of mind is also absent to show the necessity for reconsideration or review of the earlier order on the basis of the materials placed before the sanctioning authority or otherwise.” 13. The Hon’ble Apex Court in the case of State of Himachal Pradesh vs. Nishant Sareen reported in (2010) 14 SCC 527 has considered the identical issue. In this case, the Hon’ble Apex Court has considered the decision in the case of State of Punjab and another vs. Mohammad Iqbal Bhatti (supra). The Hon’ble Apex Court approved the view taken in Bhatti’s case. The observations from paragraph Nos. 12, 13 and 14 are relevant for the purpose of this case where the legal position is enunciated. These paragraphs are extracted below. “12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. 13. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such a course. 14. Insofar as the present case is concerned, it is not even the case of the appellant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent order dated 15.03.2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible.” 14. In my view, the issue involved before this Court if appreciated in the teeth of law laid down in the above stated two decisions, it leaves no manner of doubt in my mind that on facts as well as in the law the order passed by learned Special Judge cannot be sustained. In my view, the issue involved before this Court if appreciated in the teeth of law laid down in the above stated two decisions, it leaves no manner of doubt in my mind that on facts as well as in the law the order passed by learned Special Judge cannot be sustained. The legal position culled out from the decisions is that:- the order of refusal of sanction cannot be reviewed unless and until the fresh material has been collected and submitted to the competent authority with a request to review the earlier sanction order and grant the sanction. A change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. The order refusing a sanction can be reviewed on the basis of fresh material collected by the Investigating Agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in the light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted. 15. In the backdrop of the above, the facts of the case on hand needs consideration. Undisputedly the proposal for review of sanction was submitted on the basis of the self same material which was submitted on the earlier three occasions. The order according sanction, in the backdrop of refusal of sanction thrice, was expected to state the reasons. Perusal of the sanction order would show that it is conspicuously silent about the refusal of the sanction thrice on the proposal of the investigating officer. Similarly, sanction order dated 25.03.2013 is conspicuously silent about the reasons for the review of the three orders refusing the sanction. It has not been stated in the sanction order that the material submitted earlier for consideration was not properly considered while refusing the sanction. The authority according the sanction in view of the refusal of sanction thrice was required to record the reasons for review. The order does not mention the reasons. It is seen that the competent authority has not even made a passing reference of the refusal of sanction thrice before this order. The authority according the sanction in view of the refusal of sanction thrice was required to record the reasons for review. The order does not mention the reasons. It is seen that the competent authority has not even made a passing reference of the refusal of sanction thrice before this order. In my view, in this case the review of refusal of sanction on earlier three occasions if examined in the teeth of law laid down in the decisions cited supra would show that it does not pass the legal test. It needs to be stated that if the authority was aggrieved by the refusal of sanction, for one reason or the other, the remedy available to the authority was to challenge the order of refusal of sanction before the Court of law. Non-applicant No.1 did not challenge the earlier orders of refusal of sanction in the Court of law. Instead of challenging the said order before Court of law, on the self same material the review of the orders was sought and it was granted. In my view, therefore, this sanction has to be held to be illegal. 16. Learned APP relied upon decisions in the case of Sajjan Kumar Vs. Central Bureau of Investigation reported in (2010) 9 SCC 368 and Tarun Jit Tejpal and State of Goa and another reported in (2020) 17 SCC 556 and submitted that at the stage of deciding the discharge application the scope of inquiry is limited. The evidence on record cannot be appreciated. Learned APP submitted that the circumstances which led to the review of three orders of refusal of sanction are required to be placed on record in the form of evidence. Learned APP submitted that without granting an opportunity to adduce the evidence and to justify the review of the earlier sanction orders, on the basis of the decisions relied upon by the learned Advocate for the accused, the accused cannot be discharged. In my view, this submission cannot be accepted. The facts of this case are crystal clear. The issue raised by the accused can be crystallized on the basis of available material and by applying the law to the said material. 17. Learned APP further pointed out that the sanction was refused on three occasions by stating the unacceptable reasons or for that matter without any reason. The facts of this case are crystal clear. The issue raised by the accused can be crystallized on the basis of available material and by applying the law to the said material. 17. Learned APP further pointed out that the sanction was refused on three occasions by stating the unacceptable reasons or for that matter without any reason. In my view, in order to redress such grievance the remedy available to the non-applicant No.1 was to challenge the order of refusal of sanction before the Court of law. It was not done. Similarly, the order according the sanction is silent about the mistake or short comings noticed by competent authority in the earlier orders of refusal of sanction. 18. In my view, the case of the accused is fully covered by two decisions of Hon’ble Apex Court relied upon by the learned Advocates for the accused. In my view, therefore, the learned Special Judge was not right in rejecting the application made by the accused. It is seen that learned Special Judge has not properly considered the issue raised by the accused. It is seen that learned Judge has also not properly considered the decision in the case of State of Punjab and Another Vs. Mohammed Iqbal Bhatti (supra). In my view, therefore, the order passed by the learned Special Judge is required to be set aside. 19. Accordingly, this application is allowed. 20. The order passed by the learned Special Judge, Akola dated 15.01.2020 is quashed and set aside. As a result of this, the application made by the accused at Exh.05 is allowed. 21. The accused- Kamlakar s/o Sharad Visale is discharged from Special ACP case No.01/2013 for the offences punishable under Sections 7, 13 (1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988. 22. Criminal Application stands disposed of.