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2008 DIGILAW 749 (ORI)

KHETRABASI SAHU v. STATE (G. A. DEPARTMENT)

2008-08-26

M.M.DAS

body2008
JUDGMENT : M.M. Das, J. - In this application u/s 482 of the Code of Criminal Procedure, 1973 (for short, 'the Code'), the Petitioner, who is an accused in T.R. Case No. 478 of 2007/51 of 1990 pending before the Learned Special Judge, Vigilance, Balasore, has sought for quashing the said criminal proceeding against him. 2. Prosecution alleges that in the year 1988, the Petitioner was posted as a Junior Clerk in the office of the Inspector of Schools, Keonjhar. He demanded and accepted illegal gratification of Rs. 100/ from the complainant, a L.I.C. Agent, for effecting deduction from the premium of some teachers in private schools, whose pay bills were being passed by the Inspector of Schools. On such complaint being made, a trap was made on 5.9.1988 in course of which tainted notes were recovered from the shirt pocket of the Petitioner. 3. The Petitioner alleges that after completion of the investigation, the Superintendent of Police, Vigilance, B.D. Cuttack wrote to the Inspector of Schools, Keonjhar Circle for according sanction as required u/s 19 (1)(c) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act'). The Inspector of Schools, Keonjhar in his letter dated 21.6.1989 refused to accord sanction and, instead, suggested for dropping the criminal prosecution and to deal with the matter departmentally. The Inspector of Schools was the authority competent in law to accord sanction. However, the Investigating Agency moved the Director of Public Instruction, Orissa, Bhubaneswar, suppressing the fact of refusal of sanction by the Inspector of Schools. The Director without being aware of the fact of refusal of sanction by the competent authority, accorded sanction and on the basis of the said sanction, prosecution was launched against the Petitioner. The Petitioner alleges that certain letters were called for after the Investigation Officer, P.W. 11 was examined in Court. The said P.W. 11 was recalled for further cross-examination and during such further cross-examination, he has admitted the fact that sanction was refused by the competent authority, i.e., the Inspector of Schools. P.W. 5 was examined who proved the sanction order Ext. 22 and there is nothing in his evidence to show that the Director was aware of the fact of refusal of sanction by the Inspector of Schools. 4. Mr. P.W. 5 was examined who proved the sanction order Ext. 22 and there is nothing in his evidence to show that the Director was aware of the fact of refusal of sanction by the Inspector of Schools. 4. Mr. D.P. Das, Learned Counsel appearing for the Petitioner strenuously urged that suppression of the above fact of moving the Inspector of Schools and refusal of sanction by him, amounts practicing fraud and the action of the Investigating Agency in obtaining the sanction by fraudulent means vitiates the subsequent action of the prosecution. He contended that such fraud having been played by the prosecution, the criminal proceeding is liable to be quashed. He further contended that the reasons for enacting the provision with regard to obtaining prior sanction for prosecution of a public servant u/s 19 of the Act is to protect the honest public servant from harassment of facing unwarranted prosecution and the letter of the Inspector of Schools refusing to accord sanction goes to show that he was satisfied that the Petitioner was victimized by the complainant. On these grounds, according to Mr. Das, the action of the Investigating Agency in prosecuting the Petitioner is vitiated by mala fide and the resultant criminal prosecution is, therefore, liable to be quashed. 5. A further plea has been taken by the Petitioner that as the occurrence took place in the year 1988 and even though two decades have passed, the criminal proceeding has not been finalized for no fault of the Petitioner, the constitutional right to speedy trial of the Petitioner has been frustrated and consequently, the Petitioner has been put to agonizing hardship, physically, financially and psychologically and has been seriously prejudiced, as after such a long period, it has become impossible for him to establish his innocence by adducing evidence in order to bring before the Court, the actual facts that transpired two decades back. The Petitioner filed a petition before the Learned Special Judge, Vigilance praying for dropping the proceeding on the aforesaid grounds and the Learned Special Judge by his Order Dated 19.3.2008 rejected the prayer of the Petitioner. Mr. Das, therefore, contended that the said order of rejection by the Learned Special Judge is without due application of judicial mind and this Court in the facts of this case, should quash the criminal proceeding in its entirety. 6. Mr. Mr. Das, therefore, contended that the said order of rejection by the Learned Special Judge is without due application of judicial mind and this Court in the facts of this case, should quash the criminal proceeding in its entirety. 6. Mr. Srimant Das, Learned Counsel appearing on behalf of the Vigilance Department, on the contrary, submitted that during framing of charge in the case, no petition was filed by the accused for discharge on the ground of lack of sanction. With regard to the question that the Inspector of Schools being the competent authority to accord sanction, having refused to do so, the prosecution cannot lie against the Petitioner, Mr. Das relying upon the decision in the case of Sampuran Singh Vs. State of Punjab submitted that obtaining sanction from a higher authority can be accepted as a sanction u/s 19 of the Act and the same cannot be treated to be amounting to failure of justice just because the competent authority has not accorded sanction. He further contended that question of lack of sanction is to be raised at the earliest stage which the Petitioner has failed to do. Mr. Das further contended that under Sub-section (3) of Section 19 of the Act, no finding, sentence or order passed by a Special Judge can be reversed or altered by a Court in appeal or revision on the ground of the absence or any error, omission or irregularity in, the sanction required under Sub-section (1), unless in the opinion of the Court, a failure of justice has, in fact, been occasioned thereby. For the above contentions, Mr. Das relied upon the decisions in the cases of Satya Narayan Sharma Vs. State of Rajasthan State (Anti Corruption Branch) Govt., of N.C. T. of Delhi and Anr. v. Dr. R.C. Anand and another,. (2004) 28. OCR (SC) 361 and State by Police Inspector v. Sri T. Venkatesh Murthy, (2004) 29 OCR (SC) 457. In the case of Sampuran Singh (supra), the Supreme Court analyzing the provision of Section 6(1) (c) of the P.C. Act, 1947, which stipulates that the sanctioning authority must be competent to remove the person from office and taking into consideration Article 311(1) of the Constitution that the removing authority cannot be subordinate in rank to the appointing authority, held that by necessary implication, the removing authority may be higher in rank to the appointing authority. The authority competent to remove the Petitioner in the said case was the Chief Engineer. But the sanction was accorded not by the Chief Engineer who was competent to remove him from the office, but by the Chief Minister, who was holding the port folio of Irrigation at the relevant time. In the relevant rule of the Punjab Public Works Department (Irrigation Branch) Overseers Engineering State Service, Class - III, Rules, 1955, the appointing authority of the Sectional Officer is the Chief Engineer. It was, therefore, held that the removing authority could not be inferior or subordinate in rank to the Chief Engineer in view of Article 311(1) of the Constitution. The Chief Minister concerned is not inferior or subordinate to the Chief Engineer. Under Article 311, the authority to remove should not be subordinate to that by which he was appointed. This does not mean that the power cannot be exercised by an authority higher than the appointing one, as Article 311 does not require that dismissal or removal must be ordered by the same authority, which made the appointment. It was, therefore, held by the Supreme Court that the sanction to prosecute the Petitioner therein by the Chief Minister, who was holding the port folio of Irrigation at the relevant time, is not invalid. 7. Applying the ratio of the above decision to the facts of the present case, it is found that the sanction accorded by the Director, who is undisputedly a higher authority than the Inspector of Schools, who was the appointing authority, having the power to remove the Petitioner from service, cannot be treated to be an invalid sanction. 8. In the case of State (Anti Corruption Branch) (supra), the Supreme Court was dealing with a case, where also a trap was led against the accused from which money with positive tests indicating presence of Phenolphthalein was recovered. Sanction for prosecution was accorded by the governing body of AIIMS. The Supreme Court was examining that whether such sanction was legally sustainable when the President, who is the Chairman of the Governing Body, had suggested that sanction was not to be granted. It was found in the facts of the said case that the sanctioning body was not the President and it was the Governing Body. The Supreme Court was examining that whether such sanction was legally sustainable when the President, who is the Chairman of the Governing Body, had suggested that sanction was not to be granted. It was found in the facts of the said case that the sanctioning body was not the President and it was the Governing Body. It was further found that it was not necessary on the part of the concerned authority for recording reasons to differ from the view expressed by the President while according sanction for prosecution as the President had no role. In view of such facts involved in that case, this Court is of the opinion that the ratio of the said case may not be strictly applicable to the facts of the present case. In the case of State by Police Inspector (supra), the Supreme Court analyzing the scope and ambit of Section 19 of the Act, while sitting in appeal over the judgment of the Karnataka High Court, which upheld the order of discharge passed by the Trial Court, held that a combined reading of Sub-sections (3) and (4) of Section 19 of the Act makes the position clear that notwithstanding anything contained in the Code, no finding, sentence and order passed by a Special Judge shall be reversed or altered by a Court in appeal 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. Giving a meaning to the expression "failure of justice", the Supreme Court observed that the said expression is too pliable or facile an expression, which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of Environment (1977) 1 All.E.R. 813 : 1978 AC 359 ) . The criminal Court, particularly, the superior Court should make a close examination to ascertain whether there was really a failure of justice or it is only a camouflage. (See Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 ). 9. of Environment (1977) 1 All.E.R. 813 : 1978 AC 359 ) . The criminal Court, particularly, the superior Court should make a close examination to ascertain whether there was really a failure of justice or it is only a camouflage. (See Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 ). 9. Examining the facts of the said case, the Supreme Court has laid down that merely because there is any omission, error or irregularity in the matter of according sanction that does not affect the validity of the proceeding unless the Court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. It was further held that this logic is also applicable to the Appellate or Revisional Court with regard to the point at which such question can be raised. The Supreme Court has held in the said decision that the requirement of Sub-section (4) about raising the issue, at the earliest stage, was also not considered by the High Court. Holding as above, the order under appeal was set aside. 10. Applying the law as it stands, as has been discussed above, to the facts of the present case, it is clear that nothing has been brought before this Court or was brought before the Court below to show that the sanction having been granted by an authority, who is higher than the appointing/removing authority of the Petitioner, a failure of justice has been occasioned. Further as already held above, the sanction having been accorded by an authority higher than the appointing/removing authority, the same cannot be construed to be amounting to no sanction. However, while neither interfering with the order passed by the Learned Special Judge rejecting the prayer of the Petitioner to drop the proceeding nor acceding to the prayer of the Petitioner to quash the criminal proceeding in its entirety, this Court dismisses the CRLMC and directs that as the case relates to an occurrence of the year 1988, the Learned Special Judge shall do well to complete the trial of the case by the end of November, 2008. Parties are directed to cooperate in the trial and the Learned Special Judge shall not grant adjournments on the prayer of any of the parties unless such prayer is made under bona fide and genuine grounds/circumstances.