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2004 DIGILAW 111 (BOM)

Khaja Mohinuddin v. State of Maharashtra

2004-01-27

D.G.DESHPANDE, P.S.BRAHME

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JUDGMENT (ORAL) D.G. Deshpande, J. — Heard the learned counsel for the respective parties. 2. This appeal is filed against the order of the Special Judge, Gadchiroli, dated 28.7.2002, by which the prayer of the accused for bail was rejected by the Special Court. The counsel for the appellants directly relied on the Division Bench Judgment of this Court in the case of Mohammad Gausuddin Wali Mohammad v. State of Maharashtra1. The present accused ad the said Mohammad Gausuddin S/o Wali Mohammad were prosecuted in POTA and both the cases are same. In that case, the Division Bench of this Court taken into consideration all the important aspects and also took note of the fact that till the Special Court took cognizance of the case. There was no sanction as it was requisite under Section 50 of the Prevention of Terrorists Act. 3. The learned Additional Public Prosecutor could not dispute that when the Special court had taken cognizance in the matter. Sanction was not granted and that the sanction was subsequently accorded by the Government. However, the learned Additional Public Prosecutor tried to rely upon a judgment of the apex Court in the case of State of Bihar v. P.P. Sharma2 . Our attention was drawn to para 67 of judgment which reads as under: “67. It is equally well settled that before granting sanction the authority or the appropriate Govt. must have before it the necessary report and the material facts which prima facie establish the commission of offence charged for and that the appropriate Government would apply their mind to those facts”. The order of sanction only is an administrative act and not a quasi judicial nor a lis involved. Therefore, the order of sanction need not contain detailed reasons in support thereof as was contended by Sri Jain. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard. The question of giving an opportunity to the public servant at that stage as was contended for the respondents does not arise. Proper application of mind to the existence of a prima facie evidence of the commission of the offence is only a pre-condition to grant or refuse to grant sanction. When the Government accorded sanc-tion, S. 114(E) of the Evidence Act raises presumption that the official acts have been regularly performed. Proper application of mind to the existence of a prima facie evidence of the commission of the offence is only a pre-condition to grant or refuse to grant sanction. When the Government accorded sanc-tion, S. 114(E) of the Evidence Act raises presumption that the official acts have been regularly performed. The burden is heavier on the accused to establish the contra to rebut that statutory presumption. Once that is done then it is the duty of the prosecution to produce necessary record to establish that after application of mind and consideration thereof to the subject the grant or refusing to grant sanction was made by the appropriate authority. At any time before the Court takes cognizance of the offence the order of sanction could be made. It is settled law that issuance of the process to the accused to appear before the Court is sine quo non of taking cognizance of the offence. The emphasis of S. 197(1) or other similar provisions that “no Court shall take cognizance of such offence except with the previous sanction” posits that before taking cognizance of the offence alleged there must be before the Court the prior sanction given by the competent authority. Therefore, at any time before taking cognizance of the offence it is open to the competent authority to grant sanction and the prosecution is entitled to produce the order of sanction. Filing of charge-sheet before the Court without sanction per se is not illegal, nor a condition precedent. A perusal of the sanction order clearly indicates that the Govt. appears to have applied its mind to the facts placed before it and considered them and then granted sanction. No evidence has been placed before us to come to a different conclusion. Accordingly we hold that the High Court committed manifest error of law to quash the charge-sheets on those grounds.” 4. However, in our opinion, the said judgment of the Apex Court is of no use to the respondent insofar as this bail application is concerned. In that case, before the Court had taken the cognizance, the sanction was accorded to the prosecution under Sections 409, 420, 468, 470, 120B of Indian Penal Code and Section 7 of the Essential Commodities Act. In that case, before the Court had taken the cognizance, the sanction was accorded to the prosecution under Sections 409, 420, 468, 470, 120B of Indian Penal Code and Section 7 of the Essential Commodities Act. In the instant case, the accused are being prosecuted under POTA and the Division Bench, in the judgment referred to above, has clearly held after scrutiny of the entire record that on the date when Special Court has taken cognizance of the offence, there was no valid sanction. Therefore, it is clear that the facts of the case before the Division Bench of this Court and the facts of the case before the Apex Court are totally different. Since the present appellants - accused are also co-accused with Mohammad Gausuddin Wali Mohammad, at whose instance the Criminal appeal was filed, and the Division Bench gave its order, then this appeal for bail has to be allowed because the judgment of the Division Bench is actually in the same case. The facts are same and the accused are co-accused. The Court has taken cognizance in the matter, admittedly on the date on which there was no sanction under Section 50 of Prevention of Terrorists Act. Thereafter, without going into other aspects of the matter, we allow this appeal and pass the following order : 5. The impugned order of the Special Court is quashed and set aside sofaras it relates to rejection of the bail to the accused - appellants and the appellants - accused are released on bail subject to furnishing a cash surety of Rs. 5,00,000/-. (Rs. Five laksh only) each with one surety in the like manner. They will not enter jurisdiction of Gadchiroli District till the trial is over they shall stay at Warangal and report to Police Station Mathwada (Warangal) three times a week i.e. on every Monday, Wednesday and Saturday till ‘the conclusion of their trial. Criminal Appeal is disposed of accordingly. Appeal allowed. 1. 2003 All MR (Cri) 1107. 2. 1991 Cr.i.L.J. 1438.