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2001 DIGILAW 602 (CAL)

Bappaditya Roy v. State of West Bengal

2001-09-14

NARAYAN CHANDRA SIL

body2001
JUDGMENT The present revisional application under Section 482 of the Code of Criminal Procedure, 1973 was directed for quashing the proceeding in Special Case No.3 of 2000 pending before the learned Additional Sessions Judge, First Court, Nadia-cum-learned Special Court under Prevention of Corruption Act, 1988 and all orders passed therein including the orders dated 1.3.2000 and 21.11.2000 arising out of Kotwali Police Station Case No. 13 dated 12.1.1999. 2. It is the allegation of the prosecution that the petitioner, Bappaditya Roy while holding the post of Sub-Divisional Controller, Food and Supply, Krishnanagar was caught red handed at the time of receiving bribe of Rs. 5,000/- from one Paritosh Karmakar. The case was instituted against him for committing offence under Sections 7/13 of the Prevention of Corruption Act, 1988. After investigation chargesheet was submitted along with purported sanction order being No. CON-69/FS dated 14.2.2000 issued by Mr. Dipak Rudra, the Commissioner, Food and Principal Secretary, Food and Supplies Department, Government of West Bengal. The petitioner challenged the propriety of the said sanction order inasmuch as the Commissioner Food and Principal Secretary, Food and Supplies Department, Government of West Bengal was not authorised to grant sanction for prosecution against the petitioner and as such the initiation of the proceeding and all subsequent actions thereon are all void, illegal and without jurisdiction. The said sanction order was not issued either in the name of the Governor of the State who is the appointing authority of the petitioner or under his order and as such the same is without the authority of law. It is stated in the revisional application that the learned trial Judge after having placed reliance on the opinion of the Legal Remembrancer of the Government of West Bengal came to the conclusion that the sanction order was valid. 3. The certified copies of the relevant orders dated 1.3 2000 and 21.11.2000 have been annexed in the file. By order dated 1.3.2000 cognizance of the offence had been taken and by the order dated 21.11.2000 Sri Dipak Kumar Saha Roy, the learned Judge, Second Special Court, Nadia came to the conclusion that the sanction order was duly passed by the Officer concerned under proper authority. 4. The xerox copy of the said sanction order has been annexed in the file and it appears therefrom that Mr. 4. The xerox copy of the said sanction order has been annexed in the file and it appears therefrom that Mr. Dipak Rudra, I.A.S., Commissioner, Food and Principal Secretary, Food and Supplies Department claimed himself to be the authority competent to remove the petitioner from the office and, accordingly, he accorded sanction order under Section 19(1) of the Prevention of Corruption Act, 1988 for the prosecution of the petitioner. It is true that the Governor of the State is the appointing and dismissing authority of the petitioner but the Governor of the State exercises his function through several instrumentalities and functionaries. The Commissioner, Food and Principal Secretary, Food and Supplies is one of such functionaries who performs and discharges the functions on behalf of the Governor of the State. Only the competence of the Commissioner, Food and Principal Secretary, Food and Supplies Department in according sanction for prosecution has been challenged in the present revisional application. 5. Article 166 of the Constitution of India contained the provisions that all executive actions of the Government of a State shall be expressed to be taken in the name of the Governor and orders and other instruments made and executed in the name of Governor shall be authenticated in such manner as may be specified in the rules made by the Governor. (Underline for emphasis) Thus, if the sanction accorded by the State Government under the Prevention of Corruption Act is in accordance with the provisions of Article 166(1) of the Constitution, and it is duly authenticated as per Clause (2) of Article 166 as specified in the rules framed under Clause (3) of Article 166 of the Constitution accords total and absolute immunity to such an instrument expressed in the name of the Governor and it cannot be called in question on the ground that it is not an order or instrument made or executed by the Governor. But, it will always remain open to the accused to challenge the validity of that order on the ground that such an order was not based on the satisfaction of the appropriate authority. The Government of West Bengal having followed the provisions of Article 166 of the Constitution framed the rules of business as under :- "Government of West Bengal RULES OF BUSINESS Under Article 166(3) of the Constitution of India Notification No. 1209 A.R. Dated the 5th June, 1964. The Government of West Bengal having followed the provisions of Article 166 of the Constitution framed the rules of business as under :- "Government of West Bengal RULES OF BUSINESS Under Article 166(3) of the Constitution of India Notification No. 1209 A.R. Dated the 5th June, 1964. In exercise of the power conferred by Clause (3) of Article 166 of the Constitution of India, and in supersession of all previous rules made in this behalf, the Governor of West Bengal is pleased to make the following rules, namely :- 1. These. rules may be called the West Bengal Rules of Business. 2. In these rules, unless the context otherwise requires :- (a) "Article" means an article of the Constitution of India; (b) "Council" means the Council of Ministers constituted under Article 163; and "Cabinet" means the Committee of the Council referred to in Rule 11 ; (c) "Secretary" means a Secretary to the Government of the State; and includes- The Chief Secretary, the Additional Chief Secretary, a Special Secretary; an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary and an Assistant Secretary; (d) "Schedule" means the Schedule appended to these rules. 3. The General Clauses Act, 1897, applies for the interpretation of these rules as it applies for the interpretation of a Central Act. " The rank of the Principal Secretary who had accorded sanction in the instant case is in between the Chief Secretary and the Secretary to the Government of West Bengal. Thus, it is apparent that the sanction in question was accorded having followed the manner as described in the notification of the Government of West Bengal made under Clause (3) of Article 166 of the Constitution. 6. In fact in the instant case, a copy of this impugned sanction order appears to have been annexed in the instant revisional application and it appears therefrom that Mr. Dipak Rudra, I.A.S, Commissioner, Food and Principal Secretary, Food and Supplies Department claimed himself to be the authority competent to remove the said Sri Bappaditya Roy from the office and as such he had accorded sanction under Section 19 (1) of Prevention of Corruption Act, 1988 for the prosecution of the said Sri Roy. It further appears that Mr. Rudra had followed a model sanction order in according sanction against the revisionist. It further appears that Mr. Rudra had followed a model sanction order in according sanction against the revisionist. When the Government accords sanction for prosecution such sanction has always got a presumptive value under Section 114 (c) of the Evidence Act that the official acts have been regularly performed and in such circumstances the burden is heavier on the accused to rebut the same. Once such burden is discharged by the accused it becomes incumbent for the prosecution to produce necessary records to establish that after application of mind and consideration thereof to the subject grant or refusing to grant sanction was made by the appropriate authority. And all this can only be determined on taking evidence, but not before that. 7. It appears from the records that earlier another revisional application was filed by this revisionist and the same was disposed of by Hon'ble Mr. Justice Amit Talukdar by His order dated 28.4.2000 in C.R.R. No. 1472 of 1999 with the observations that since the chargesheet had been submitted the petitioner was given liberty to take all points at the appropriate stage before the learned trial Judge and with the direction upon the learned trial Judge to proceed with the said case with utmost despatch. But, now it appears that in spite of that order the case could not be disposed of by the learned trial Court probably for filing of this present revisional application. 8, Before drawing the conclusion it is felt expedient to mention for the interest of Justice that the way and the manner, the learned trial Judge, Mr. Dipak Saha Roy had disposed of the petition in which the competence of the sanctioning authority was challenged before him, do not appear to be proper at all. It appears from the order No. 13 dated 21.9.2000 passed in Special Case No.3 of 2000 that the learned trial Judge directed the prosecution to produce documentary evidence to show that the sanction order was actually accorded by the Governor or any other competent authority before the same was communicated by the said Commissioner and in compliance with that order the prosecution had submitted the opinion of the Legal Remembrancer of the Government of West Bengal before the learned trial Court. The learned trial Judge Mr. Saha Roy thus by his order No. 16 dated 21.11. The learned trial Judge Mr. Saha Roy thus by his order No. 16 dated 21.11. 2000 in the said case had, inter alia, opined as below :- "In my view, since Legal Remembrancer, Government of West Bengal after perusal of the documents filed before him by the concerned department, has given his opinion to the fact that the sanction order was issued by the Commissioner concerned in accordance with the law there is no ground to ignore his opinion." 9. The Legal Remembrancer of Government of West Bengal is no way superior to any Court. We would like to make it clear that the Legal Remembrancer of the Government of West Bengal is also an instrumentality of the Government and his opinion has got no binding force upon the Court. A copy of this judgment may be served upon Mr. Dipak Saha Roy, the learned trial Judge concerned through the Registry for his future guidance. 10. Accordingly, in view of what has been stated in the foregoing lines the present revisional application is dismissed on contest. The learned trial Court is directed to dispose of the case with utmost alacrity. The interim order, if any, stands vacated. A copy of this judgment be sent to the learned Lower Court forthwith.