Research › Search › Judgment

Patna High Court · body

2011 DIGILAW 2120 (PAT)

Ajay Kumar Sinha v. State Of Bihar

2011-09-30

ADITYA KUMAR TRIVEDI

body2011
JUDGEMENT Aditya Kumar Trivedi, J. 1. Heard learned counsel for the petitioners and learned APP. 2. Petitioner has filed instant petition purported to be under Section 482 of the Cr.P.C. for quashing of order dated 8.03.2011 passed by learned Special Judge, CBI, Patna in Special Case No. 2 of 2011, RC2A/2011 whereby and whereunder petitioner Ajay Kumar Sinha has been summoned to face trial for an offence punishable under Section 7 and 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988. 3. Simple submission on behalf of the petitioner is that the aforesaid cognizance happens to be in contravention of Section 19 of the Prevention of Corruption Act because of the fact that the sanction in whatever manner accorded does not appear to be by the competent authority so designated by the State Bank of India so communicated vide letter no. CDO/P&HRD-CM/40/2004-5. So submitted that as the sanction has not been accorded by the authority competent to accord sanction therefore, sanction available on the record is legally not recognizable. Not only this, it has further been pleaded that presence of sanction is condition precedent for taking cognizance and as there appears to be no valid sanction on the record, therefore, the order impugned is non avocative and is accordingly, fit to be quashed. 4. To support his plea, also relied upon (2003) 9 SCC 504 , (2002) 10 SCC 686 , AIR 1978 SC 1745 , AIR 2000 SC 3187 , 2005(8) SCC 370 . 5. It has further been submitted that by letter referred above issued by the State Bank of India, the power has been vested to the authority who was Deo Prasad Majumdar, who on the relevant date was on leave and in the aforesaid background the second man Sri Ashish Kumar Roy was merely an in-charge, who was not at all vested with the adequate power through the aforesaid letter to discharge the function which Mr. Deo Prasad Majumdar was entrusted to and thereby the sanction accorded by the aforesaid Ashish Kumar Roy was not a valid 3 sanction as it was not granted by the competent authority. Deo Prasad Majumdar was entrusted to and thereby the sanction accorded by the aforesaid Ashish Kumar Roy was not a valid 3 sanction as it was not granted by the competent authority. So submitted that in the aforesaid facts and circumstances of the case, the sanction whatever appears to be, is a defective sanction whereupon the court of justice cannot rely, therefore, the sanction in its present form happens to be non-est in the eye of law and should be accordingly rejected. When there happens to be no valid sanction, then in that event, the order of cognizance became inoperative, illegal, without jurisdiction. 6. While controverting the submission advanced on behalf of the petitioner, it has been submitted on behalf of the State,(CBI) that petition is defective one as State Bank of India has not been impleaded as a party. Further submitted that the State Bank of India was competent enough to disclose the status of Ashish Kumar Roy whether he was competent to accord sanction or not in pursuance of letter no.CDO/P&HRD-CM/40/2004-5. Apart from this, it has also been submitted that when the query was made during pendency of this petition, the State Bank of India reported that Ashish Kumar Roy was fully competent to grant sanction in place of Deo Prasad Majumdar who on the relevant date i.e. on 28.02.2011 was on leave as communicated vide letter no. VIG/GEN/SHKS/17 dated 15th April 2011. So submitted that the argument so raised on behalf of the petitioner appears to be fallacious and is accordingly fit to be rejected. 7. Prosecution of public servant has been viewed through 4 suspicious eye so that they should not be victimized by unscrupulous litigants who being frustrated in their nefarious gain, stood in revenge by launching a malicious prosecution. That happens to be reason behind that not only under general penal provision rather in special Acts also, an embargo has been put by application of sanction. That means to say, sanction is a theme which shields the public servant from the hands of unscrupulous litigants and that is the reason behind that the power has been vested in that particular authority who, in normal phenomenon appears to be the appointing authority before whom all the relevant documents, papers, material on the basis of which prosecution is sought for, has to be placed and whose opinion overshadow the whole events. The manner of consideration has further been identified not in routine manner, in mechanical way rather it should at least disclose the application of mind and that was the need of the hour while earlier Prevention of Corruption Act, 1957 was there. Subsequently, it has been felt that on account of non strict compliance of the aforesaid procedure, the judicial dictum gone in favour of culprit having their safe escape and so, while substituting it by Prevention of Corruption Act, 1988, the same was taken cared of and on ground thereof, there has been appearance of certain provisions under Section 19 of the Prevention of Corruption Act. To see the aforesaid changes, it looks better to reproduce Section 19 of the Prevention of Corruption Act, 1988. " 19. Previous sanction necessary for prosecution.- (1) 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,- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government,; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (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. " 8. The presence of more particularly sub-section-3 of Section 19 virtually brought a revolutionary change in the basic concept of Section 19 of the Prevention of Corruption Act and the error, omission, or irregularity while according sanction has been found to be insufficient for hammering upon the propriety of the sanction. That means to certain relaxation has been recognized while according sanction were not identified as a major defect nullifying order of the Court, until and unless the Court comes to a conclusion that a failure of justice on this score has occasioned. 9. That means to certain relaxation has been recognized while according sanction were not identified as a major defect nullifying order of the Court, until and unless the Court comes to a conclusion that a failure of justice on this score has occasioned. 9. The aforesaid event has also been taken note of while deciding the issued reported in 2011 (3) PLJR 566 wherein so many decisions have been taken note of and relevant concluding paragraph happens to be paragraph-25, 26 and 27 which are as follows:- "25. under the circumstances, there is no doubt that a judicial order is not be set aside whenever a plea of illegal investigation or invalid sanction is raised, unless the Court concludes that failure of justice has occasioned thereby. Being thus clear on the principle of law, I must proceed to examine the facts of the cases in hand. Admittedly, all the petitioners herein were allegedly arrested while accepting bribe and are sought to be prosecuted for such an act. In the facts of the case this Court has now to judge whether the order of cognizance/non-discharge despite the flawed sanction orders amounts to failure of justice. 26. After having considered that the dominant intent or the objective of the amended Act is to book the corrupt and the amendment in the Act by way of introduction of Section 19(3) (4) is evidently to strengthen the provisions and ensure that the prosecution is not scuttled on grounds of technicalities, it is difficult to appreciate how a Court can absolve a person arraingned before it where it finds that the accused has blatantly done something which is punishable in law and, that too, merely on the basis of a procedural lapse, such as omission in mentioning provisions of law, or sanction by a delegated authority. In my opinion, in the background facts, no failure of justice will occasion on the prosecution of the present petitioners. On the contrary, justice and rule of law will suffer, if they are not prosecuted. 27. The next ancillary argument on behalf of the petitioners is that from reading of Section 19(3) of the Prevention of Corruption Act, it appears that when Section 19 sub-clause (3) was amended, by saying "no finding, sentence or order", it means trammel is imposed on the Courts only after a conviction is recorded while exercising powers of Appeal or Revision. The next ancillary argument on behalf of the petitioners is that from reading of Section 19(3) of the Prevention of Corruption Act, it appears that when Section 19 sub-clause (3) was amended, by saying "no finding, sentence or order", it means trammel is imposed on the Courts only after a conviction is recorded while exercising powers of Appeal or Revision. However, I am not inclined to accept such a simplistic argument since finding sentence or order is relatable to "appeal, confirmation or revision" and here the word revision? is not used in a restrictive manner as revision against conviction alone and, in my, understanding it relates to any order including order of cognizance or an order of non-discharge. " 10. On this score, I would further like to refer another decision as reported in 2009 (15) SCC 533 and the relevant paragraphs are 8, and 9 which are as follows:- "8. So far as the defect in sanction aspect is concerned, the circular on which the High Court has placed reliance needs to be noted. The Circular in question is dated 9-2-1988 the relevant portion reads as follows: "The Government also decided that before giving approval of prosecutions, the Principal Secretary, Law and Legal Department will obtain the advice of department concerned ". A bare perusal of the paragraph shows that before giving approval for prosecution, advice of the department concerned was necessary. The question arises whether the absence of advice renders the sanction inoperative. Undisputedly the sanction has been given by the Department of Law and Legislative Affairs. The State Government had granted approval of the prosecution. As noted above, the sanction was 8 granted in the name of the Governor of the State by the Additional Secretary, Department of Law and Legislative Affairs. The advice at the most is an interdepartmental matter. 9. Further, the High Court has failed to consider the effect of Section 19(3) of the Act. The said provision makes it clear that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court of appeal on the ground of absence of/or any error, omission or irregularity in sanction required under sub-section (1) of Section 19 unless in the opinion of the court a failure of justice has in fact been occasioned thereby. 11. 11. Under aegis of settled legal principle, when the fact of the case is dealt with, it is evident that on a complaint made by Umesh Kumar that petitioner, who was a responsible officer of State Bank of India and was entrusted to sanction loan, had demanded repeatedly graft over which trap was materialized. After concluding investigation, charge-sheet has been submitted followed with taking of cognizance by the order impugned. 12. Whether this stage happens to be proper stage, for that I would like to refer 2009 (15) SCC 533 and the relevant para happens to be para-10 which is as follows:- " 10. In the instant case there was not even a whisper or pleading about any failure of justice. The stage when this failure is to be established is yet to be reached since the case is at the stage of framing of charge whether or not failure has in fact been occasioned was to be determined once the trial commenced and evidence was led. In this connection the decisions of this Court in State v. T. Venkatesh Murthy and in Prakash Singh Badal v. State of Punjab need to be noted. That being so the High Court?s view quashing the proceedings cannot be sustained and the State?s appeal deserves to be allowed which we direct." 13. Thus, after taking into account the relevant law as well as the factual aspect, the prayer of the petitioner is found to be non- maintainable in the eye of law and is accordingly negativated. Consequent thereupon the instant petition is rejected.