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Madhya Pradesh High Court · body

1998 DIGILAW 516 (MP)

Loknath Gupta v. State Of M. P. Through C. B. I.

1998-07-23

DIPAK MISRA

body1998
ORDER Dipak Misra, J. 1. As common questions of law are involved in these applications referred Under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') they were heard analogously and are disposed by this common order. For the sake of clarity and convenience the facts set forth in the M. Cr. C. No. 5356/97 are herein adumbrated. 2. The accused-petitioner is facing prosecution for offences punishable Under Section 7(13)(1)(d) read with Section 13(2) of the Prevention of Corruption Act, (hereinafter referred to as 'the Act') in Special Case No. 37/90 in the Court of Vth Additional Sessions Judge/Special Judge (CBI), Jabalpur. In the aforesaid case the prosecution filed charge-sheet along with the sanction purported to have been granted by one Shri M. Mandal, the Chief General Manager, State Bank of India. When the question of proving sanction arose the prosecution instead of examining the said Shri Mandal, examined one Raman Bihari Shrivastava, Dy. General Manager (Vigilance) who identified the signature of Shri Mandal. It is put forth in the petition that in cross-examination the said witness admitted that he has no personal knowledge about the grant of sanction. It is also in his deposition, as stated in the petition, that the Central Bureau of Investigation (in short 'CBI') had submitted a report along with a letter for grant of sanction and the letter reflected the written contents. But this letter was not produced by the witness. Thereafter an application was moved by the accused-petitioner Under Section 91 of the Code stating that as per the evidence of Raman Bihari Shrivastava the Chief Vigilance officer who has been examined as PW-5 the CBI had submitted a report against the petitioner and on the basis of the report certain notes were prepared. It was set forth in the said petition that production of the said report and file was necessary for the purpose of enquiry, trial and further cross-examination of the aforesaid witness. It was also pleaded that the sanction has not been granted after due consideration of the material on record but in a mechanical manner by sanctioning authority and, therefore, the report is essential to be produced. The said application was resisted by the prosecution which claimed privilege in respect of the said document Under Sections 123 and 124 of the Evidence Act, 1872. The said application was resisted by the prosecution which claimed privilege in respect of the said document Under Sections 123 and 124 of the Evidence Act, 1872. The learned trial Judge came to the conclusion that the document in question was not a privilege document but the production of the same was not warranted. The learned trial Judge further held that the examination of the sanctioning authority is not necessary and the order of sanction can be proved by other evidence. He also opined that the prayer for calling for the note sheet and other documents was not justified. The learned Judge further opined if the prosecution failed to prove sanction as required under the law the accused can take advantage of the same at appropriate time. Being of this view he rejected the application preferred Under Section 91 of the Code. The said order is the cause of grievance of the petitioner. 3. Assailing the aforesaid order Mr. S.C. Datt, learned senior counsel for the petitioner has contended that the learned trial Judge has committed gross illegality in rejecting the prayer of the accused-petitioner inasmuch as the petitioner could have proved that the order granting sanction has not been done on the basis of the report and there has been no independent application of mind by the said authority. It is his further submission that the learned Special Judge while dealing with the prayer of the petitioner for production of the report and other necessary documents has opined with regard to the validity of the order of sanction which amounts to prejudging of the matter and, therefore, order passed by him incurs the liability to be lanceted by this Court in exercise of inherent jurisdiction. It is further urged by the learned senior counsel that the grant of sanction goes to the very root of the matter and when the defence has made an attempt to expose the mechanical approach of the prosecution it has been denied the opportunity which amounts to miscarriage of justice warranting interference by this Court. 4. Resisting the aforesaid submissions, learned counsel for the respondents Mr. 4. Resisting the aforesaid submissions, learned counsel for the respondents Mr. D. K. Shrivastava has contended the order passed by the learned trial Judge is impregnable as the learned Special Judge has rightly negatived the prayer of the defence by observing that if there is any inadequacy in proving and justifying order of sanction, the defence can take advantage of the same. It is also put forth by him that the defence has no right to seek a direction from the Court directing the prosecution to produce certain documents as far as the grant of sanction is concerned. 5. Before I advert to deal with the rival contentions raised at the Bar, it is appropriate to refer to Section 19 of the Act, which deals with the sanction. The said provision reads as under :- "19. Previous Sanction necessary for prosecution. - (1) No Court shall take cognizance of an offence punishable Under Sections 7, 10, 11,13 and 15 alleged to have been committed by a public servant except with the previous sanction - (a) in the case of a person who is employed in connection with the affairs of the union and is not removable from his office save by or with the sanction of the Central Government of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by the Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) - (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; (b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no Court shall stay the proceeding under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceeding. (4) In determining under Sub-section (3) whether the absence of, or any error, omission or irregularity in such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation. - For the purposes of this section - (a) error includes competency of the authority to grant sanction, (b) a sanction required for prosecution included reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature." The aforesaid section which was previously Section 6 of the Prevention of Corruption Act (II of 1947) has been interpreted and dealt with by the Apex Court and many High Courts in a catena of decisions. At this juncture I may usefully refer to the decision rendered in the case of Major Somnath v. Union of India, 1971 Cr.LJ. 1422 wherein their Lordships held as under :- "For a sanction to be valid it must be established that the sanction was given in respect of the facts constituting the offence with which the accused is proposed to be charged. 1422 wherein their Lordships held as under :- "For a sanction to be valid it must be established that the sanction was given in respect of the facts constituting the offence with which the accused is proposed to be charged. Though it is desirable that the facts should be referred to in sanction itself, nonetheless, if they do not appear on the face of it the prosecution must establish aliunde by evidence that these facts were placed before the sanctioning authority......" In the case of Mohd. Iqbal Ahmad v. State of Andhra Pradesh, AIR 1979 SC 677 their Lordships lucidly registered the view as under :- ".....It is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. XX XX XX XX XX ........ because what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. because what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must, therefore, be strictly complied with before any prosecution can be launched against the public servant concerned." I may further refer to the decision rendered in the case D. Venkatasan v. State, 1997 Cr.L.J. 1287 wherein the High Court of Madras held as under:- ".......It is well settled by the judicial pronouncements that according sanction to prosecute a Government Servant by a Competent Authority Under Section 19 of the Prevention of Corruption Act is not a mere mechanical process and an empty formality but it is to be attached with every sacrosanctity inbuilt by the statute itself for the reason that frivolous implications of the public servants roping in false criminal cases could be avoided and for the said avowed object in mind, legal fiction has been pronounced by the Courts of Law in according sanction for prosecution. The sanctioning authority must apply its mind in full, that would mean that he has to refer all the case records and identify the case and grounds on which the satisfaction was arrived at on the basis of which sanction has to be accorded." This being the position of law with regard to the validity of sanction, the next question that arises for consideration about the proof of sanction. In this regard I may profitably refer to the decision rendered in the case of Ayyasamy and Anr. v. State, 1996 Cr.LJ. 119 wherein it has been held as under:- "......The grant of sanction is not an idle formality but a solemn and sacrosanct act which provided protection to Public Servants against frivolous prosecutions. This requirement of law has not been complied with before launching prosecution against the appellants. v. State, 1996 Cr.LJ. 119 wherein it has been held as under:- "......The grant of sanction is not an idle formality but a solemn and sacrosanct act which provided protection to Public Servants against frivolous prosecutions. This requirement of law has not been complied with before launching prosecution against the appellants. It is thus seen that in according sanction to a prosecution as contemplated Under Section 6 of the Prevention of Corruption Act, the sanctioning authority should necessarily apply its mind and get itself satisfied that case for sanction has been made out, constituting the offences. The prosecution has to prove this in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that facts placed before the Sanctioning Authority and the satisfaction arrived at by it." In the case of N.M. Rajendran v. State, 1996 (2) Crimes 420 a learned Judge of the Madras High Court while dealing with the concept of sanction and the role of prosecution registered the view as under :- "........this would mean however that the burden of proof is clearly on the prosecution to show that the sanction accorded in a given case is valid in law and such burden includes proof that the Sanctioning Authority has accorded the sanction with reference to the facts to which the proposed prosecution was to be based and that in this context, it has become essential for all the facts which were relied on to be referred on the face of the sanction, or it might be proved by independent evidence that the sanction was accorded for prosecution after those facts had been placed before the Sanctioning Authority. It is also to be noted that mere identification of an error or omission or irregularity in according the sanction by the Sanctioning Authority is not enough but however, that identification must result in the failure of justice to the aggrieved person and if that was so, then the amended section as a whole above referred to, clearly demonstrate that the sanction accorded in whatever form must be held as not valid in law. What is meant by error as explained in the said provision is inclusive and mutually exclusive to be decided by the Court on the basis of its discretion." Thus, the burden is on the prosecution to prove that the sanction has been properly granted and the Court has to adjudge the validity of sanction keeping in view the cumulative effect of the evidence adduced before the Court by the prosecution. Submission of Mr. Datt, learned counsel for the petitioner, is that it was a singuine effort on the part of the defence to show that there has been no proper grant of sanction and to establish that as a matter of fact, the record, notesheet and other documents were called for. Submission of Mr. Datt is that on a perusal of the records and by effective cross-examination the defence could have established whether there has been application of mind or not. It is also contended by him that Section 91 of the Code confers a right on the parties to summon the documents to put the controversy to rest and it becomes desirable in the interest of fair trial. It is also highlighted by Mr. Datt that in absence of documents the defence is at a disadvantage to make effective cross-examination and impeach the accuracy, credibility and the general value of the evidence. In support of his contention he has placed reliance on the decisions rendered in the case of K. B. Verma v. State, 1975 Cr.LJ. 980 and Shri Satish Mehra v. State, JT 1996(7) SC 6. The gravamen of his contention is that the accused is entitled to call for the documents from the custody of the competent authority to corrode the case of the prosecution with regard to the sanction and that being in the realm of fair trial, the prayer should have been accepted. That apart, contends Mr. Datt, that if at the time of framing of charge the accused is permitted to produce the materials in support of his discharge, he can maintain an application Under Section 91 of the Code, seeking direction from the Court to the competent authority to produce the documents which were brought to his notice at the time of grant of sanction to dislodge the foundation that there has been non-application of mind which makes the sanction invalid in the eye of law. Grant of sanction is a sacrosanct act and is intended to provide a safeguard to the public servant against frivolous and vexatious litigation and an order of sanction cannot be passed in a mechanical manner. Satisfaction of the Sanctioning Authority is essential to validate an order granting sanction. But the burden is on the prosecution and in order to show that the sanction has been accorded in a valid manner as per law, it must prove that the Competent Authority had satisfied itself that case for sanction has actually been made out. In view of the aforesaid, my humble view is that an application Under Section 91 of the Code is not tenable and the learned trial Judge has rightly opined that it would be open to the defence to challenge the validity of the sanction. The aforesaid view of the learned trial Judge deserves the stamp of approval of this Court. However, I may observe that it would be open to the defence to challenge the validity of sanction from all aspects and the learned trial Judge shall consider the same at the appropriate stage without being influenced by the observations made by him on the previous occasion. 6. Consequently, these applications, being devoid of merit, stand dismissed.