Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 686 (CAL)

Kalyan Kumar Roy v. State

2001-10-18

Debiprasad Sengupta

body2001
JUDGMENT Debiprasad Sengupta, J.: The present revisional application is directed against an order dated 4.5.2001 passed by the learned Judge, 1st Special Court, Alipore, South 24-Parganas in Special Case No.3 of 1999 thereby rejecting the application filed by the petitioner under section 239 of the Code of Criminal Procedure. C.B.I case No. R.C. 46/98 dated 12.11.98 of C.B.I/ACB/Calcutta was started on the basis of a complaint lodged by one Chhedilal Show. It was alleged that the accused petitioner, Commercial Supervisor (Parcel) Sealdah Railway Station, Eastern Railway, demanded bribe of Rs. 100/- from the complainant for booking two parcels which were above the permissible weight. On such complaint a trap was laid by the C.B.I officers accompanied by the independent witnesses. The accused was thereafter caught red handed by the C.B.I officers while taking the bribe. 2. The investigating agency after completion of investigation obtained necessary sanction under section 19(1)(c) of the Prevention of Corruption Act, 1988 and submitted charge-sheet before the learned Judge, Special Court. At the stage of consideration of charge the accused petitioner filed an application under section 239 Cr. P.C praying for discharge from the case. Such application under section 239 Cr.P.C was rejected by the learned Judge, 1st Special Court, Alipore, who framed charges under sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act. Next date was fixed on 4.6.2001 for appearance and framing of formal charge. 3. It is at this stage the petitioner has come up before this court challenging the order dated 4.5.2001 passed by the learned Judge, 1st Special Court, Alipore. The first point raised by Mr. Roy, learned Advocate of the petitioner is that in the present case sanction was accorded only in respect of offence under section 7 of the Prevention of Corruption Act, but there was no sanction, as it appears from the sanction order itself, in respect of the offences under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act. According to Mr. Roy, no sanction having been accorded for the offences under section 13(2)/13(1) (d) of the Act, cognizance taken thereof and all further proceeding pursuant thereto al e void ab initio and accordingly the same should not be allowed to continue any further. In support of his contention Mr. According to Mr. Roy, no sanction having been accorded for the offences under section 13(2)/13(1) (d) of the Act, cognizance taken thereof and all further proceeding pursuant thereto al e void ab initio and accordingly the same should not be allowed to continue any further. In support of his contention Mr. Roy relies upon a judgement of the Bombay High Court reported in 1992 Cr.L.J. 3064 (Anand Gopal Gurue vs. State of Maharashtra). On perusal of the said judgement it appears that in the said case sanction for prosecution was accorded for offences under sections 409, 420, 120B I.P.C. and section 5 (1) (c) (d) read with section 5 (2) of the Prevention of Corruption Act. But the trial court framed charges under sections 468/34, 465 and 471/34 I.P.C. for which no sanction was accorded. The trial proceeded and ultimately the accused was convicted and sentenced by the learned trial Judge. Appeal was preferred before the High Court. The order of conviction and sentence was set aside and the accused was acquitted of the charges. It was held that framing of charge and trial of offences, which are not included in the sanction order, is ab initio void. The second point raised by Mr. Roy, learned Advocate of the petitioner is that the allegation is the demand and acceptance of a paltry sum of Rs. 100/-and it is a single isolated instance and in absence of no other instance of misconduct the sanctioning authority should have considered, by applying the doctrine of triviality, that prosecution was not the only appropriate remedy. The third point raised by the petitioner's learned Advocate is that in the present case it is alleged that the accused is said to have made endorsement at about 5.45 p.m. and at about 7.10 p.m. the complainant paid him Rs. 100/- as bribe, which is highly improbable. According to Mr. Roy, it is clear from the allegation itself that no favour was shown for which the alleged money was paid as the work was already over. 4. Mr. Roy, learned Advocate relies on a judgement of Bombay High Court reported in 1993 Cri.L.J. page 3175 (Omprakash Shankarlal Sharma vs. State of Maharashtra). According to Mr. Roy, it is clear from the allegation itself that no favour was shown for which the alleged money was paid as the work was already over. 4. Mr. Roy, learned Advocate relies on a judgement of Bombay High Court reported in 1993 Cri.L.J. page 3175 (Omprakash Shankarlal Sharma vs. State of Maharashtra). In the said judgement it was held by the learned Single Judge of Bombay High Court as follows: "The charge against him taken at its highest was that he is alleged to have demanded and received a paltry amount of Rs. 50/-. Having regard to the fact that it was a single isolated instance and that there was no other instance of misconduct against the accused, the sanctioning authority ought to have considered as to whether the misconduct alleged against him was grave enough to warrant a prosecution wherein the law prescribes a minimum sentence of one year rigorous imprisonment. The law in this regard has been considered in some detail by me in an earlier decision of this Court in the case of Bhagwan Jathya Bhoir vs. State of Maharashtra , 1992 Mah L J 979 : 1992 Cri.L.J 1144. The view taken there was that in situation of this type, the ends of justice could certainly have been adequately served by instituting disciplinary proceedings and that in so far as the sanctioning authority had not considered this all important aspect of the matter that it cannot be said that he has applied his mind judicially to the facts of the case." The next judgement relied upon by the petitioner's learned Advocate is reported in 1991 Cri.L.J.462 (Harekrishna Patnaik vs. The State of Orissa). In the said judgement it was held by the learned Single Judge of Orissa High Court as follows:- "The order of sanction is only with respect to prosecution under section 5(1)(c) read with section 5(2) of the P.C. Act, and not under section 5(1)(d). The very evidence ofP.W.16 also discloses such fact. In the said judgement it was held by the learned Single Judge of Orissa High Court as follows:- "The order of sanction is only with respect to prosecution under section 5(1)(c) read with section 5(2) of the P.C. Act, and not under section 5(1)(d). The very evidence ofP.W.16 also discloses such fact. In that view of the matter it must be held that there is no sanction for prosecution of the appellant under section 5 (1) (d) of the P.C. Act and hence his conviction and sentence under that section must be set aside, which is so done." The next judgement relied upon by the learned Advocate of the petitioner is reported in 1992 Cri.L.J. 1144 (Bhagaban Jathya Bhoir vs. State of Maharashtra). In the said judgement the learned Single Judge of Bombay High court held as follows: "The present case is one where unfortunately, had the sanctioning authority applied its mind to the fact that this was a trifling incident and a single isolated case, and not a case of habitual bribe-taking the authority could have straightway ordered disciplinary proceedings against the employee concerned and punishment that bears a nexus to the charge alleged against the accused, if established, could have been awarded to him. In this view of the matter, the sanction order will have to be quashed and struck down on the ground that there has been total non-application of mind on the part of the sanctioning authority." "The appeal is accordingly allowed. The conviction and sentence recorded against the accused are set aside. The bail bond of the accused to stand cancelled. The fine, if paid, be refunded to him." 5. Mr. Ranjan Roy learned Advocate appearing for the C.B.I submits, in reply to the arguments advanced by the learned Advocate of the petitioner, that all the judgements referred to above have no manner of application in the present case. In all the cases referred to above the accuseds were convicted and sentenced by the trial court. In appeal against order of conviction and sentence such judgements were delivered. So, in the trial court prosecution was given full and adequate opportunity to prove its case. The present case is still at the stage of framing of charge. In all the cases referred to above the accuseds were convicted and sentenced by the trial court. In appeal against order of conviction and sentence such judgements were delivered. So, in the trial court prosecution was given full and adequate opportunity to prove its case. The present case is still at the stage of framing of charge. At this stage, when the learned Judge on being satisfied regarding the prima facie case framed charges, the prosecution should not be deprived of the opportunity to prove its case in the trial. Whether this is a case of single isolated incident or a case of habitual bribe taking, can only be decided by the trial court after recording evidence. It is further submitted by Mr. Roy, learned Advocate of the C.B.I that it cannot be a principle of law that the sanctioning authority in minor cases or in isolated or single instances of corruption, should close the matter on the ground that sanction is withheld. According to Mr. Roy, amount of money involved in a case under the Prevention of Corruption Act is immaterial. The learned Advocate of the C.B.I. relies on a judgement of the Hon'ble Supreme Court reported in 2000 Supreme Court Cases (Crl.) 1486 State of Delhi vs. Cyan Devi & Ors.). The Hon'ble Supreme Court in the said judgement held as follows: "In the backdrop of the factual position discussed above, the question formulated earlier arises for our consideration. The legal position is well settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under section 482 Cr.P.C seeking for the quashing of charge framed against them the court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the trial court has framed a charge against an accused the trial must proceed without unnecessary interference by a Superior Court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained as exceptional cases." The next judgement relied upon by Mr. Roy, learned Advocate of the C.B.I is reported in 2001 Supreme Court Cases (Crl.) 685 (Om Wati & Anr. vs. State). In the said judgement it was held by the Hon'ble Apex Court as follows: "At the stage of passing the order in terms of section 227 of the Code, the court has merely to peruse the evidence in order to find out whether or not there is a sufficient ground for proceeding against the accused. If upon consideration, the court is satisfied that a prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of section 228 of the Code. Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the Court can discharge the accused. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage. This court in Street Atyachar Virodhi Parishad vs. Dilip Nathumal Chordia cautioned the High Courts to be loath in interfering at the stage of framing the charges against the accused. Self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the Court in the face. The opinion on many matters can differ depending upon the person who views it. There may be as many opinions on a particular point, as there are courts but that would not justify the High Court to interdict the trial. Generally, it would be appropriate for the High Court to allow the trial to proceed." 6. As regards the sanction accorded for prosecution the learned Advocate of the C.B.I. refers to the provision of section 19(3) of the Prevention of Corruption Act, which runs as follows: "Notwithstanding anything contained in the Code of Criminal Procedure, 1973,- (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 proceedings 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 proceedings." Referring to the aforesaid provision of law Mr. Roy submits that even assuming that sanction was accorded for prosecution of the offence under section 7 of the Prevention of Corruption Act, 1988, the prosecution under section 13(2) read with section 13(1)(d) of Act cannot be vitiated. According to Mr. Roy the only thing which is to be considered is whether any failure of justice has been caused. In the present case no such failure of justice has been caused. According to Mr. Roy the only thing which is to be considered is whether any failure of justice has been caused. In the present case no such failure of justice has been caused. The sanction order itself shows that all the materials were placed before the sanctioning authority, who accorded sanction on proper application of mind. 7. The learned Advocate of the C.B.I. submits, relying upon the aforesaid decisions and the provisions of law submits that the present proceeding is at the stage of framing of charge. The learned trial Judge, on being satisfied regarding the prima facie case, framed charge against the accused petitioner. At this stage this court should not interfere with the proceeding and the prosecution should be given full opportunity to prove its case. 8. I have heard the learned Advocates of the respective parties. I have perused the relevant papers and documents which are annexed to the present application. I have also gone through the judgements referred to above. As regards the point of sanction I am of the view that simply because of non-mentioning of section 13 (2)/13 (1) (d) in the sanction order the proceeding cannot be vitiated. The sanction order itself shows that all the relevant papers and documents were placed before the sanctioning authority, who accorded sanction on proper application of mind. The accused/petitioner also knows the particulars of the offence which he is being tried for. In such circumstances, it cannot be said that any failure of justice has been caused or the accused has been prejudiced in any way. So, in view of section 19 (3) of the Prevention of Corruption Act, 1988, since no failure of justice has been caused in the present case, I am of the view that it will not be proper for this court to interfere with the proceeding on the ground of sanction. 9. The submission of the petitioner's learned Advocate about the paltry sum of Rs. 100/- accepted by the accused and that being the solitary instance, the sanctioning authority should have considered that criminal prosecution is not the only remedy and the authority should have directed a disciplinary proceeding against the accused, cannot be accepted. In a case under the Prevention of Corruption Act the amount involved is immaterial. 100/- accepted by the accused and that being the solitary instance, the sanctioning authority should have considered that criminal prosecution is not the only remedy and the authority should have directed a disciplinary proceeding against the accused, cannot be accepted. In a case under the Prevention of Corruption Act the amount involved is immaterial. Such a view cannot be taken by this court that the sanctioning authority in minor cases or in isolated instance of corruption should close the matter. 10. As regards the other points raised by the petitioner's learned Advocate, I am of the view that such points can only be decided by the trial court after recording evidence. Once the trial court has framed charge on being satisfied regarding the prima facie case, the trial must proceed without any interference by this court and the prosecution should be given a full and adequate opportunity to prove its case. In view of the discussion made above, I find sufficient merit in the submission made by the learned Advocate of the C.B.I. In my view this is not a fit case for interference by this court. 11. The revisional application accordingly fails and the same is dismissed. The interim order earlier granted stands vacated. The learned Judge, 1st Special Court, Alipore is directed to proceed with the trial and to conclude the same with utmost expedition. Revisional application dismissed.