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2012 DIGILAW 288 (PAT)

Ajay Kumar Prasasd v. State of Bihar

2012-02-17

ADITYA KUMAR TRIVEDI

body2012
JUDGMENT Aditya Kumar Trivedi, J.- Petitioner Ajay Kumar Prasad has challenged the order dated 13.01.2010 passed by Special Judge. (Vigilance) 1 Patna in Vigilance P.S. Case No. 114/2009 corresponding to Special Case No. 91/2009 whereby and whereunder petitioner has been summoned to face trial for an offence punishable under Sections 409. 120-B of the IPC read with Section 7/13(2). 13 (1)(d) of the Prevention of Corruption Act. 2. Bereft of unnecessary details. instant case has been registered on account of having the petitioner falling under trap while accepting Rs.1 Lac in lieu of bribery to give undue-advantage to Avinash Kumar Singh who was Industrial Electrical Consumer and who on account of exorbitant bill so tendered approached for getting it corrected. 3. Apart from other grounds over which no emphasis was drawn up by the learned counsel for the petitioner during course of argument confined his argument relating to sanction so granted in accordance with Section 19 of the P.C. Act. 4. While assailing the sanction order it has been submitted on behalf of the petitioner that he happens to be General Manager-cum-Chief Engineer of Bihar Electricity Board and taking into account his status the appointing authority as well as the authority to remove him from his service happens to be the Board and not an individual. Therefore it was the Board who appears to be competent to accord sanction. So far present case is concerned the sanction has been issued by the Joint Secretary. Bihar State Electricity Board vide Memo No. 32 dated 12.1.2010 (Annexure-3) who was not at all competent to issue the same and consequent thereupon the order of the cognizance passed by the Special Judge. Patna, on the basis of the aforesaid illegal sanction order happens to be contrary to the spirit of law and suffering from inherent defect and consequent thereupon, the same is fit to be set aside. 5. To support his plea, learned counsel for the petitioner referred a decision of the Hon'ble Apex Court. State of Goa v. Babu Thomas: 2005 AIR SC 3608 and accordingly submitted that the order impugned is fit to be set aside. 6. 5. To support his plea, learned counsel for the petitioner referred a decision of the Hon'ble Apex Court. State of Goa v. Babu Thomas: 2005 AIR SC 3608 and accordingly submitted that the order impugned is fit to be set aside. 6. Further by supplementary affidavit-counter meeting with averment of counter-affidavit it has been submitted that whatever power has been vested to the Board over issuance of sanction happens to be under "the old Act namely, Electricity (Supply) Act 1948 which has subsequently been replaced by Electricity Act 2003. There is no resolution of Board under the new Act empowering for grant of sanction, therefore Annexure-B which has been filed on behalf of Bihar State Electricity Board justifying the action during course of grant of sanction appears to be non-est in the eye of law and accordingly, on this score also the sanction order (Annexure-3) appears to be incompetent in the eye of law. Because of the fact that sanction is sine qua non for taking of cognizance and as there happens to be no valid sanction on the record hence the order of cognizance appears to be cryptic one and should not be allowed to survive. So submitted that in any view of the matter, in absence of valid sanction, the order impugned loses its sanctity validity and identity and on account thereof. it cannot be allowed to survive. 7. Contrary to it, it has been argued on behalf of Bihar State Electricity Board and to this effect counter-affidavit has also been filed raising the plea that from plain reading of Annexure-3, it is evident that Bihar State Electricity Board has accorded sanction for prosecution of the petitioner. The resolution of the Board was only communicated by the Joint Secretary, Arun Kumar Sinha under inter arrangement in pursuance of Annexure-2, a letter sent by S.P., Vigilance, Bihar, Patna addressed to Chairman, Bihar State Electricity Board. Therefore, the status of Secretary is not of according sanction rather he simply communicated the resolution of the Board to the authority concerned as he was administratively authorized to communicate the same. 8. It has further been submitted that Chairman of the Board has been found to be competent to accord sanction for prosecution in light of resolution of the Board so notified vide Notification No. 230 dated 30.08.2000 (Annexure-A) with regard to the officers above the rank of Electrical Executive Engineer. 8. It has further been submitted that Chairman of the Board has been found to be competent to accord sanction for prosecution in light of resolution of the Board so notified vide Notification No. 230 dated 30.08.2000 (Annexure-A) with regard to the officers above the rank of Electrical Executive Engineer. It has further been submitted that before according sanction, the materials were duly considered by the Chairman and after being satisfied with the facts of the case, learned Chairman accorded sanction which was so communicated by the Joint Secretary in accordance with regulation 30 of Bihar Electricity Board Regulation 1973. As such, it has been submitted that the sanction accorded by the Chairman happens to be just, legal, proper and in likewise manner, the order of cognizance happens to be. As such, the instant petition is fit to be dismissed. 9. After going through the respective pleadings as well as hearing respective learned counsels, the sole question for present consideration happens to be whether the sanction order (Annexure-3) in its present form could form basis for taking of cognizance? 10. Before coming to the point under controversy, I would like to draw salient feature whatever emerges: The status of petitioner is non-controverted. While Annexure-3 shows it to be the resolution of the Board as per Annexure-A the Chairman has been entrusted to grant sanction. Therefore, there happens to be inconsistency amongst Annexure-3 in consonance with Annexure-A even taking into account assessment of B.S.E.B. The authority concerned in the background of aforesaid conflicting factual aspect is yet to be properly identified who could exercise the power of granting sanction in accordance with Section 19 of the P.C. Act. Admittedly, the previous law known as Electricity (Supply) Act, 1948 has been repealed and substituted by new legislation known as Electricity Act, 2003. Whatever resolution has been placed by the Bihar State Electricity Board vide relevant annexures certainly appears to be notified during course of continuance of 1948 Act. What repercussion it will have, if not regulated in accordance with new Act is another question, which neither of the party has been able to explain. However, learned counsel for the petitioner simply addresses that on account of such persisting procedural fault, Annexure-3 (sanction order) cannot be identified as valid one. 11. What repercussion it will have, if not regulated in accordance with new Act is another question, which neither of the party has been able to explain. However, learned counsel for the petitioner simply addresses that on account of such persisting procedural fault, Annexure-3 (sanction order) cannot be identified as valid one. 11. Thus, from the aforesaid discussion, the crux of the present litigation happens to be what should be the ultimate step to be permitted that too in the present circumstances when simply order of cognizance has been passed and which happens to be the matter under challenge. 12. First of all, it looks pertinent to incorporate Section-19 of the P.C. Act: "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." 13. The controversy with regard to competency of a sanction authority the text. which at an earlier occasion was found to be a good ground for setting aside judgments of conviction compelled the legislature to give a protection on this score which led insertion of sub-section (3) in Section-19 wherein it has been made clear that unless and until it is being shown by the accused that a failure of justice has occurred on account of error omission or irregularity during course of grant of sanction and is perceived by the Court. the finding cannot be nullified. Under sub-section (4), a rigor has been put upon the shoulder of the accused to raise the plea at an earliest. the finding cannot be nullified. Under sub-section (4), a rigor has been put upon the shoulder of the accused to raise the plea at an earliest. As per explanation error includes competency of the authority to grant sanction and therefore present controversy comes within the definition of error. 14. Application of sub-section (4) as it appears has some sort of relaxation because of the fact that as per judicial pronouncement the stage of cognizance appears to be premature because it happens to be the pre-stage of trial at which stage neither failure at justice could be legally entertainable nor could it be perceived, For better appreciation, 2009(15) SCC 533 . relevant paragraph-10 is quoted below :- "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." 15. In another decision reported in 2011 Cr LJ 1770 relevant paragraph-12 also deals with the same issue which is as follows: "Same remained the position regarding sanction. In the absence of anything to show that any defect or irregularity therein caused a failure of justice, the plea is without substance. A failure of justice is relatable to error, omission or irregularity in the sanction. Therefore, a mere error, omission or irregularity in the sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby Section 19(1) of the PC Act. 1988 is a matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the Court under Cr PC, it cannot be said that an invalid police report is the foundation of jurisdiction of the Court to take cognizance. 1988 is a matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the Court under Cr PC, it cannot be said that an invalid police report is the foundation of jurisdiction of the Court to take cognizance. (Vide Kalpnath Rat AIR 1998 SC 201: 1997 AIR SCW 4166) (supra); State of Orissa v. Mrutunjaya Panda, AIR 1998 SC 715 :(1998 AIR SCW 403); State by Police Inspector v. Sri T. Venkatesh Murthy, (2004) 7 SCC 763 : (AIR 2004 SC 5117 : 2004 AIR SCW 5869); Shankerbhai Laljibhai Rot v. State of Gujarat. (2004) 13 SCC 487 ; Prakash Singh Badal and another v. State of Punjab and others, AIR 2007 SC 1274: (2001 AIR SCW 1415); and M.C. Mehta v. Union of India and others, (Taj Corridor Scam), AIR 2007 SC 1087 ): (2007 AIR SCW 1025). 16. Therefore, the plea of the petitioner is not at all found to be ripen in the background of the present stage of the case more particularly taking into account the principle formulated through the judicial dictum as referred above. 17. The decision so cited on behalf of the petitioner is not applicable in the facts and circumstances of the case because the fact appears to be quite different as at two different occasions two sanction orders were issued by two independent authorities contradicting each other status which has been taken into consideration under para-11 of the aforesaid judgment. 18. So far the issuance of Annexure-3 by Joint Secretary is concerned, for that I would like to refer paragraphs-8 and 9 of the 2009(15) SCC 533 : "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. 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 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 inter-departmental matter. 21. 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. 20. Thus taking into account the totality of the event, the prayer of the petitioner for the present appears to be premature. Consequent thereupon petition is dismissed. 21. However, petitioner will be at liberty to show at appropriate stage of the trial that on account of error, omission or irregularity whatever may be according to him during grant of sanction failure of justice has incurred and the Court concerned without being influenced by the order impugned will deal with the matter in accordance with law. Petition dismissed.