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2009 DIGILAW 97 (CHH)

JAGDISH v. STATE OF C. G.

2009-03-17

DHIRENDRA MISHRA

body2009
ORDER Shri Dhircndra Mishra, J. :- 1. The petitioner by the instant criminal revision under Sections 397 & 401 of the Cr.P.C. has questioned the legality, validity and correctness of the dider dated 18.3.2008 passed in Special Case No.2/04 whereby learned Special Judge under Prevention of Corruption Act, Bilaspur has rejected the application questioning validity of sanction for prosecution of the petitioner. .2. From perusal of the impugned order it appears that the petitioner filed an application before the Special Court questioning the validity of sanction for prosecution. The said application was rejected by the Special Court vide order dated 27.11.2004 with an observation that the objection raised by the applicant relating to validity of sanction was pre-mature since the trial had not concluded and the grounds challenging the validity of sanction could be considered at the time of judgment. The petitioner's Criminal Revision No.54/05 was allowed by this Court vide order dated 15.9.2006, the order of Special Judge was set aside and the Special Judge was directed to decide the question regarding validity of sanction after giving an opportunity to the prosecution to adduce evidence relating to the materials which form basis for grant of sanction by the sanctioning authority. After passing of the order ,dated 15.9.2006 the evidence of authority sanctioning prosecution was recorded and thereafter objection of the petitioner against the sanction for prosecution was rejected vide impugned order. From perusal of the impugned order it also appears that both the parties have closed their evidence and the matter was fixed for final hearing. 3. Learned counsel for the petitioner submits that sanctioning authority has accorded sanction without application of his mind and the sanction has been granted without examining the documents of case. On the request of the respondent the sanctioning authority mechanically added a figure of Rs.5,00,000/- in the order of sanction without referring to the documents. He also ignored the discrepancy regarding amount demanded by the petitioner in the two complaints which clearly show that it is the case of false implication. Further referring to Paragraph No. I 3 of the deposition of the sanctioning authority before Court, it was argued that sanction was accorded only on the basis of complaint of Ex.P-l without application of mind and without considering the explanation of the petitioner-accused. Relying upon the judgment in the matter of Mansukhlal Vithaldas Chauhan Vs. Further referring to Paragraph No. I 3 of the deposition of the sanctioning authority before Court, it was argued that sanction was accorded only on the basis of complaint of Ex.P-l without application of mind and without considering the explanation of the petitioner-accused. Relying upon the judgment in the matter of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat it was argued that validity of sanction depends on the applicability of mind by the sanctioning authority to the facts ofthe case as also to the material and evidence collected during investigation. Sanctioning Authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. His mind should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. Further relying upon the decision of the Hon'ble Supreme Court in the matter of PK. Pradhan Vs. State of Sikkim it is argued that it is well settled that question of sanction under Section 197 of Cr. P.C. can be raised at any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. 4. On the other hand, learned counsel for the State contended that learned Special Judge, in due compliance of the order of this High court and after considering the arguments advanced by the petitioner in detail, has rejected the objection against the sanction for prosecution vide impugned order. From perusal of the evidence of the sanctioning authority also it would be evident that the sanction was accorded after going through the documents & statements of witnesses and after due application of mind. The Special Court, on due appreciation of the documents available on record including the order of sanction, has passed the impugned order which does not call for interferences. I have heard learned counsel for the parties. 6. Briefly stated, case of the prosecution against the petitioner is that complainant-Baljeet Bhatia had applied for grant of bar license, the petitioner demanded Rs.5,00,000/- for forwarding his application after recommendation and also demanded Rs.50,000/- as first installment. I have heard learned counsel for the parties. 6. Briefly stated, case of the prosecution against the petitioner is that complainant-Baljeet Bhatia had applied for grant of bar license, the petitioner demanded Rs.5,00,000/- for forwarding his application after recommendation and also demanded Rs.50,000/- as first installment. The complainant lodged a written complaint with the Special Police Establishment, Raipur. After registering the offence under Section 7 of the Prevention of Corruption Act, 1988 (for short 'the Act'), trap was arranged and the petitioner was caught red handed while accepting Rs.50,000/- from the complainant. After investigation charge sheet under Sections 7, 13(1)( d) & 13 (2) of the Act was filed after obtaining sanction from the sanctioning authority. Sanction was granted by the Additional Secretary, Law & Legislative Department, State of M.P. vide order dated 27.2.1998. From perusal of the order of sanction it reveals that the sanctioning authority, after going through the documents described in Schedule-A & statement of witnesses described in Schedule- B, has accorded sanction for prosecution of the petitioner. 7. In the matter of Mansukhlal Vithaldas Chauhan I on the application of appellant/accused investigation was entrusted to an independent officer who submitted a fresh report against the appellant. The Gujarat Vigilance Commission approached the Government to grant sanction for prosecuting the appellant. The Government however did not immediately grant sanction. Consequently, the complainant filed a writ petition under Article 226 of the Constitution of India in the High Court of Gujarat. Partially allowing the writ petition of the complainant the High Court directed to accord sanction under the relevant provisions of the Act to prosecute the appellant and in view of the judgment of Gujarat High Court the appellant/accused was prosecuted and sentenced by the Special Judge and his conviction was subsequently upheld by the High Court. In these circumstances, the Hon'ble Apex Court has held that sanction to prosecute the accused was accorded under the direction of Gujarat High Court without application of mind by the sanctioning authority. 8. Chapter- V of the Act deals with the sanction for prosecution and other miscellaneous provisions. Section 19 stipulates that 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 of the Central Government, State Government or authority competent to remove him from his office. Section 19 stipulates that 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 of the Central Government, State Government or authority competent to remove him from his office. Sub-section (3) of Section 19 contemplates that no finding shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction, unless failure of justice has occasioned thereby. Whereas, sub-section (4) of Section 19 stresses on raising plea at the appropriate time. Sub-sections (3) & (4) of Section 19 of the Act are reproduced herein below for ready reference: (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 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. (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 includes 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. 9. In the matter of Prakash Singh Badal & another Vs. 9. In the matter of Prakash Singh Badal & another Vs. State of Punjab and Haryand the Hon 'ble Apex Court while considering the effect of sub-sections . (3) & (4) 6fSection 19 of the Act has held thus: "29. The effect of sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In sub-section (3) the stress is on "failure of justice" and that too "in the opinion of the court". In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of jurisdiction as observed in para 95 of Narasimha Rao case. Sub-section (3)( c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the old Act [Section 19(2) of the Act] question relates to doubt about authority to grant sanction and not whether sanction is necessary. " Further considering the stage at which the question regarding validity of sanction is to be raised in Paragraph No.48 it has been held that "there is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial". 10. In the matter of Lalu Prasad Alias Lalu Prasad Yadav Vs. State of Bihar4 the Hon'ble Apex Court, underlining the distinction between Section 197 of Cr. P. C. and Section 19 of the Act in the matters of grant of sanction, has held thus :- "10. It may be noted that Section 197 of the Code and Section 19 of the Act operate in conceptually different fields. In cases covered under the Act, in respect of public servants the sanction is of automatic nature and thus factual aspects are of little or no consequence. Conversely, in a case relatable to Section 197 of the Code, the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus with the discharge of duties. Conversely, in a case relatable to Section 197 of the Code, the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus with the discharge of duties. Position is not so in case of Section J 9 of the Act." 11. In the matter of Hem Chand Vs. State of Jharkhamf the Hon'ble Apex Court while considering the scope under Section 397 ofthe Cr.P.C. against rejection of application for discharge has held that at the stage of funning of charge, the Court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidence is brought on record at the trial. The court at the stage of framing charge exercises a limited jurisdiction. It would only see as to whether a prima facie case has been made out. Whether a case for probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the trial court. At that stage, the revisional court would not delve deep into the matter for the purpose of appreciating the evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any. 12. If we apply the principles of law laid down in the aforesaid judgments, we find that the sanctioning authority, in its order according sanction, has prima facie referred to various documents and statements of witnesses submitted before him for according sanction and on due consideration thereof after recording satisfaction that prima facie offence punishable under Sections 7, 13 (1)( d) & 13 (2) of the Act is made out against the petitioner, accorded sanction for prosecution. Whether the error, omission or irregularity in grant of sanction would result in failure of justice is a matter that is to be considered at the conclusion of trial on the basis of evidence adduced by the respective parties in this regard. The whole prosecution cannot be thrown at the threshold on this ground. 13. Whether the error, omission or irregularity in grant of sanction would result in failure of justice is a matter that is to be considered at the conclusion of trial on the basis of evidence adduced by the respective parties in this regard. The whole prosecution cannot be thrown at the threshold on this ground. 13. On the basis of aforesaid discussion, it is held that there is no substance in this criminal revision, the same deserves to be dismissed and is accordingly dismissed. No order as to costs. Revision Dismissed.