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2012 DIGILAW 1055 (RAJ)

Atul Kumar Dixit v. State of Rajasthan

2012-04-24

NISHA GUPTA

body2012
Hon'ble GUPTA, J.—This petition has been filed under Section 482 Cr.P.C. against the order dated 22.2.2012 whereby the application filed by the petitioner under Section 91 Cr.P.C. has been dismissed. 2. The short facts of the case are that on source information, CBI has lodged an FIR No. RC JAI 2004 A 0026 at P.S. SPE, CBI, Jaipur on 29.11.2004. After detailed and prolonged investigation, charge-sheet has been filed against the present petitioner and prosecution sanction was accorded against the present petitioner on 25.10.2005 by the sanctioning authority, namely, Shri Devi Singh, Assistant Engineer, National Insurance Co. 3. The contention of the present petitioner is that the sanction has been given after deliberations at the instance of the CBI. So much so, a draft sanction was sent to the sanctioning authority with appropriate guidelines by the CBI and sanction has been accorded in mechanical manner without proper application of mind under the influence of the CBI. 4. The next contention of the present petitioner is that in view of the aforesaid circumstances, whatever communications transpired between the sanctioning authority, CBI and the Vigilance Cell of the company is highly significant for fair trial and to see whether proper application of mind was there while according prosecution sanction. The present petitioner moved application to call for the communications transpired between the sanctioning authority and the CBI, which was rejected on the ground that the communi-cations are privileged under Sections 123 and 124 of the Evidence Act. 5. It has been contended that the impugned order is per se illegal and liable to be quashed. He has also submitted before this Court that in other case, pending before same Judge, No. 43/2008, relevant communications regarding according of prosecution sanction have been called for but in the present case, his application has been rejected. 6. The contention of the learned Public Prosecutor is that it is not in the public interest to disclose the communications but nothing has been asserted why it is not in public interest to communicate the document or what public interest is going to be infringed by disclosing the documents, narration of which has been placed before this Court in Para No. 6 of this petition. 7. 7. The counsel for the petitioner has placed reliance on the judgment delivered in the case of Kunjanam Antony C. Kalliath vs. State of Kerela (AIR 1964 Kerela 274), wherein scope of Sections 123 and 124 has been discussed which reads as under:- "The principles with regard to the privilege under S. 124 are that a person who is summoned to produce the document should bring it into Court even if there is any objection to its production or to its being admitted in evidence under Sec. 123 or Sec. 124. The Court will decide on the validity of the objection and he is not entitled to withhold the evidence if the objection is over-ruled. In enquiring into the validity of the objection the Court will of course, bear in mind that it should not exercise its powers in such a way as to occasion the mischief, which the law providing for the objection is designed to guard against. If it is a claim or privilege under S. 124, the Court may inspect the document in its discretion. If the Court comes to the conclusion that the communication in question was mad to a public officer in official confidence, it will have to uphold the privilege claimed under Sec. 124 and leave the public officer concerned to decide whether or not to disclose the communication. The final decision of both, the departmental head who had been summoned to produce the document as well as the presiding Judge, should be governed by only one consideration, namely, whether the disclosure would result in any injury being caused to the public interest as the section gives effect to the principle that public interest must be paramount and private interest must give way when there is conflict between public and private interests." 8. The scope of Section 124 of the Evidence Act has also been explained in the judgment delivered in the case of Excelsior Film Exchange and Ors. vs. Union of India & Ors. (AIR 1968 Bombay 322), wherein it has been held as under:- "Section 124 confers right on the public officers to claim privilege from disclosure of confidential communications. But before exercising that right, the officer concerned must come to the conclusion that the disclosure of such document would be detrimental to the public interest. vs. Union of India & Ors. (AIR 1968 Bombay 322), wherein it has been held as under:- "Section 124 confers right on the public officers to claim privilege from disclosure of confidential communications. But before exercising that right, the officer concerned must come to the conclusion that the disclosure of such document would be detrimental to the public interest. He is the sole judge to decide that fact but his decision should not be arbitrary or capricious. He should not claim privilege merely because such disclosure would either advance the case of the adversary or damage his case. The only relevant consideration which should weigh with him is that the disclosure of such document would prejudice the public interests. If honestly comes to the conclusion that it would adversely prejudice the public interest, he in exercise of the discretion vested in him should claim privilege from disclosing such document. But, exercise of such privilege should not be abused. Section 124 should in no event be resorted to as a cloak to shield the truth from the Court." 9. In State Bank of India & Ors. vs. D.C. Aggarwal & Anr. ( AIR 1993 SC 1197 ), the Hon'ble Apex Court has held as under:- "....but we propose to confine only to the question of effect of non-supply of CVC recommendations as if the order was invalid and void on this score only it is not necessary to decide any other issue. Law on natural justice is so well settled from series of decisions of this Court that it leaves one bewildered, at times, that such bodies like State Bank of India, who are assisted by hierarchy of law officers, commit such basic and fundamental procedural errors that court are left with no option except to set aside such orders. Imposition of punishment to an employee, on material which is not only not supplied but not disclosed to him, has not been countenanced by this Court. Procedural fairness is as much essence of right and liberty as the substantive law itself." 10. The communications between the CBI and the sanctioning authority are of utmost importance to the present petitioner in effectively defending himself and disallowing of the application will certainly curtail his right of fair trial. 11. Procedural fairness is as much essence of right and liberty as the substantive law itself." 10. The communications between the CBI and the sanctioning authority are of utmost importance to the present petitioner in effectively defending himself and disallowing of the application will certainly curtail his right of fair trial. 11. Looking at the law propounded by various High Courts and Apex Court, the paramount consideration is whether the disclosure would result in any injury being caused to the public interest. Nothing has been shown that how the disclosure of communication between the CBI and sanctioning authority would result in any injury to the public interest. 12. Hence, this petition deserves to be allowed and is hereby allowed and the application filed by the petitioner under Section 91 Cr.P.C. is allowed and the CBI is directed to present the documents before the trial Court, which have been narrated in para No. 6 of this petition.