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2018 DIGILAW 590 (ORI)

Manoranjan Samal v. State of Orissa (Vig. )

2018-06-18

S.K.SAHOO

body2018
JUDGMENT S. K. SAHOO, J. - The petitioner Manoranjan Samal has filed this revision petition under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973 to set aside the impugned order dated 16.02.2016 passed by the learned Special Judge (Vigilance), Balasore in T.R. Case No.47 of 2010 in rejecting his petition under Section 239 of Cr.P.C. for discharge with a further prayer to set aside the impugned order dated 13.09.2016 in framing charges under Section 13(2) read with Section 13(1)(d)(ii) and Section 7 of the Prevention of Corruption Act, 1988 (hereafter for short ‘1988 Act’). The said case arises out of Balasore Vigilance P.S. Case No.17 of 2010. 2. The case was registered under Section 7 of 1988 Act on 20.05.2010 on the first information report submitted by one Kali Charan Sahoo of village-Rajpur wherein he stated that he is a business man dealing with paddy and used to collect paddy from different cultivators of Balasore and Bhadrak districts and sell it at Medinipur of West Bengal. He further stated that he was making necessary tax payment at R.M.C. as per the rules of the Government at the rate of two per cent on the fixed rate of paddy and used to produce the tax payment receipts at Forest Gate, Jaleswar before the staff of R.M.C. It is further stated in the F.I.R. that the employees of R.M.C. who were posted at the Forest Gate namely Srustidhar Behera, Market Sarkar and the petitioner who was the yardman were demanding Rs.50/- to Rs.300/- from each vehicle for passing through the gate. If the demand was not fulfilled, both the accused persons were not leaving the vehicles and not putting stamp on the receipts and even they used to take away the receipts of the R.M.C. If the vehicles carrying paddy were passing the gate without complying the demand of both the accused persons then they were to pay further tax in the border toll gate. The R.M.C. staff posted in the gate were collecting bribe forcibly from all the businessmen dealing with paddy and rice. The R.M.C. staff posted in the gate were collecting bribe forcibly from all the businessmen dealing with paddy and rice. It is further stated that on 21.05.2010 in the morning hours, he would carry trucks load of paddy purchasing it from Bhadrak to Medinipur and he has already made necessary tax payment at R.M.C., Bhadrak and obtained receipts and he was expecting that while passing through the R.M.C. gate at Rajghat, for the purpose of stamping the receipts, the two accused persons would demand Rs.550/- otherwise they would not put any stamp. He further asserted that against his will, he was going to make payment of bribe money of Rs.550/- to the two accused persons including the petitioner. During course of investigation, the trap was laid after making preparation to lay a trap and the petitioner and the co-accused Srustidhar Behera were caught while demanding and accepting the bribe money from the informant. The informant and other witnesses gave their statements relating to demand and acceptance of bribe money. The fingertips washes of the accused persons were taken in sodium carbonate solution which proved positive. The chemical examiner found traces of phenolphthalein powder in the material exhibits. After obtaining sanction for prosecution from Sub-collector -cum- Chairman, R.M.C., Jaleswar, Balasore, charge sheet under Sections 13(2) read with 13(1)(d) and Section 7 of 1988 Act was submitted against the petitioner and co-accused Srustidhar Behera on 20.09.2010. On submission of charge sheet, the learned Special Judge (Vigilance), Balasore took cognizance of the offences which was challenged by the petitioner before this Court in an application under Section 482 of Cr.P.C. in CRLMC No.1479 of 2012 and the same was dismissed as not pressed on 18.07.2012 with a liberty to file appropriate application at the stage of framing of charge. At the stage of framing of charge, when the petitioner filed a petition for discharge, the learned trial Court has been pleased to hold that a strong prima facie case with regard to the demand of illegal gratification is available against both the accused persons. It was further held that meticulous examination of the materials at that stage is not necessary and accordingly, the petition was dismissed vide order dated 16.02.2016 and subsequently on 13.09.2016 the learned trial Court framed the charges. 3. Mr. It was further held that meticulous examination of the materials at that stage is not necessary and accordingly, the petition was dismissed vide order dated 16.02.2016 and subsequently on 13.09.2016 the learned trial Court framed the charges. 3. Mr. Harmohan Dhal, learned counsel appearing for the petitioner challenging the impugned orders contended that there are discrepancies in the statement of the informant recorded under Section 164 Cr.P.C. vis-a-vis with that of the overhearing witness relating to the acceptance and recovery of bribe. He argued that both the informant and the overhearing witness in their statements recorded under Section 161 Cr.P.C. have implicated co-accused Srustidhar Behera to have made the demand and accepted the bribe money and in view of such statements, no prima facie case is made out against the petitioner. It is further contended that since the petitioner was working as Yardman of R.M.C., Jaleswar, the Sub-Collector, Balasore –cum- Chairman, R.M.C., Jaleswar was not the competent authority to accord sanction for prosecution against the petitioner as he was neither the appointing authority nor the disciplinary authority and it is the Market Committee of the R.M.C. who is the appointing authority and disciplinary authority in respect of a Yardman and since the Market Committee has not accorded any sanction for prosecution of the petitioner, the continuance of prosecution against the petitioner on the basis of sanction given by an incompetent authority is bad in law. Mr. Dhal, citing some of the provisions of the Odisha Agricultural Produce Markets Act, 1956 (hereafter ‘1956 Act’) and the Odisha Agricultural Produce Markets Rules, 1958 (hereafter ‘1958 Rules’) submitted that the provisions of the 1956 Act and 1958 Rules make it clear that it is the Market Committee who is the appointing authority as well as disciplinary authority of the petitioner and not the Chairman of R.M.C. He asserted that since valid sanction is the pre-requisite for taking cognizance of any offence under the 1988 Act as stipulated under Section 19 of the said Act, the learned trial Court was not justified in not dealing with the contentions raised relating to invalid sanction while considering the petition for discharge. Learned counsel relied upon the decisions of the Hon’ble Supreme Court in case of Nanjappa -Vrs.- State of Karnataka reported in A.I.R. 2015 S.C. 3060, State of Goa -Vrs.- Babu Thomas reported in A.I.R. 2005 S.C. 3606 and Parkash Singh Badal -Vrs.- State of Punjab reported in A.I.R. 2007 S.C. 1274. Mr. Sangram Das, learned Standing Counsel for the Vigilance Department on the other hand while not countering the invalidity of the sanction order contended that the plea of invalid sanction is different than absence of sanction and such a plea being essentially a question of fact is to be determined during course of trial and the petitioner is at liberty to raise such issue at the appropriate stage which is to be decided by the learned trial Court in accordance with law. Learned counsel emphatically contended that the learned trial Court has rightly not dealt with the contentions raised relating to invalid sanction while considering the petition for discharge otherwise any finding thereon would have given scope to the petitioner to say that the Court has already pre-judged a vital issue. He argued that discrepancies if any, in the statements of the informant vis-à-vis the overhearing witness is to be appreciated by the learned trial Court at the appropriate stage and at this stage, it is not expected of the Court to hold a mini trial. It is further contended that not only there are prima facie materials on record against the petitioner for framing the charges but also there is no illegality or infirmity in the impugned orders passed by the learned trial Court and therefore, the revision petition should be dismissed. Learned counsel apart from relying upon the decision of the Hon’ble Supreme Court in case of Parkash Singh Badal (supra) also placed reliance in the cases of Dinesh Kumar -Vrs.- Chairman, Airport Authority of India reported in (2012) 1 Supreme Court Cases 532 and Director, C.B.I. -Vrs.- Ashok Kumar Aswal reported in (2015) 16 Supreme Court Cases 163. 4. In view of sub-Section (1) of Section 5 of 1988 Act, a Special Judge in trying the accused persons shall follow the procedure prescribed by the Cr.P.C., for the trial of warrant cases by the Magistrates. Chapter XIX of Cr.P.C. deals with the trial of warrant cases by the Magistrates. 4. In view of sub-Section (1) of Section 5 of 1988 Act, a Special Judge in trying the accused persons shall follow the procedure prescribed by the Cr.P.C., for the trial of warrant cases by the Magistrates. Chapter XIX of Cr.P.C. deals with the trial of warrant cases by the Magistrates. Section 239 of Cr.P.C. which appears in the said chapter enumerates as to when the accused shall be discharged. In view of such provision, when the Magistrate considers the charge against the accused to be groundless which means without any basis or foundation, the accused can be discharged. For arriving at such a conclusion, the Court has to consider the police report and the documents sent with it under Section 173 of Cr.P.C. The Court can also make examination of the accused, if it is necessary. Opportunity of hearing has to be provided to both the prosecution and the accused at that stage. The truth, veracity and effect of the materials proposed to be adduced by the prosecution during trial are not to be meticulously adjudged. The likelihood of the accused in succeeding to establish his probable defence cannot be a ground for his discharge. The object of discharge under Section 239 of Cr.P.C. is to save the accused from unnecessary and prolonged harassment. When the allegations are baseless or without foundation and no prima facie case are made out, it would be just and proper to discharge the accused to prevent abuse of process of the Court. If there is no ground for presuming that accused has committed an offence, the charges must be considered to be groundless. The ground may be any valid ground including the insufficiency of evidence to prove the charge. When the materials at the time of consideration for framing the charge are of such a nature that if unrebutted, it would make out no case whatsoever, the accused should be discharged. In case of Amit Kapoor -Vrs.- Ramesh Chander reported in (2012) 9 Supreme Court Cases 460, it is held as follows:- “12. Section 397 of the Code vests the Court with the power to call for and examine the records of an inferior Court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. Section 397 of the Code vests the Court with the power to call for and examine the records of an inferior Court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the Court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher Court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C. xxx xxx xxx xxx 17. Framing of a charge is an exercise of jurisdiction by the trial Court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the Court is required to consider the ‘record of the case’ and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the Court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Under both these provisions, the Court is required to consider the ‘record of the case’ and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the Court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the Court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code. xxx xxx xxx xxx 19. At the initial stage of framing of a charge, the Court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the Court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage..... 20. The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial Court or the inferior Court, as the case may be. Though the Section does not specifically use the expression ‘prevent abuse of process of any Court or otherwise to secure the ends of justice’, the jurisdiction under Section 397 is a very limited one. Though the Section does not specifically use the expression ‘prevent abuse of process of any Court or otherwise to secure the ends of justice’, the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a Court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily....... “ In case of State of Madhya Pradesh -Vrs.- Mohanlal Soni reported in A.I.R. 2000 S.C. 2583, it is held that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the accused. If the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that accused committed the particular offence then the charge can be quashed. In case of State of M.P. -Vrs.- Awadh Kishore Gupta reported in (2004) 1 Supreme Court Cases 691, it is held that when charge is framed, at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate materials and documents on records but it cannot appreciate evidence. 5. Adverting to the contentions raised by the learned counsel for the petitioner relating to the discrepancies in the statement of the informant vis-a-vis the overhearing witness, it appears that in the first information report itself, the demand of bribe money by both the accused persons including the petitioner from each vehicle for passing through the gate finds place. The informant in his 161 Cr.P.C. statement has also stated about the demand of Rs.600/- made by the petitioner and the co-accused just before the trap and acceptance of bribe money by co-accused Srustidhar Behera. The over hearing witness Dhruba Charana Behera in his 161 Cr.P.C. statement has also corroborated the statement of the informant in that respect. The informant in his 161 Cr.P.C. statement has also stated about the demand of Rs.600/- made by the petitioner and the co-accused just before the trap and acceptance of bribe money by co-accused Srustidhar Behera. The over hearing witness Dhruba Charana Behera in his 161 Cr.P.C. statement has also corroborated the statement of the informant in that respect. In the 164 Cr.P.C. statement, the informant has also stated about the demand of bribe by both the accused persons including the petitioner and acceptance of bribe money by co-accused Srustidhar Behera. Of course in the 164 Cr.P.C. statement, the over hearing witness has stated in a different manner that the petitioner accepted the bribe money but since appreciation of evidence is not permissible at this stage and no finding can be given as to whether in view of the contradictory 164 Cr.P.C. statement of the over hearing witness, it would be sufficient or not for convicting the petitioner, I am unable to accept the contention of petitioner’s counsel that in view of such discrepancies, no prima facie case is made out against the petitioner. 6. Before dealing with the next submission made by the learned counsel for the petitioner relating to invalid sanction, it would be worthwhile to discuss the citations placed by the respective parties. In case of Nanjappa -Vrs.- State of Karnataka reported in A.I.R. 2015 S.C. 3060, it is held as follows:- “15. The legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption Act is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the Court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of clauses (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the Court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid, the Court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for prosecution in accordance with law. The competence of the Court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid, the Court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for prosecution in accordance with law. If the trial Court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non-est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution. 16......The first relates to the effect of Sub-section (3) to Section 19, which starts with a non-obstante clause......What is noteworthy is that sub-Section (3) has no application to proceedings before the Special Judge, who is free to pass an order discharging the accused, if he is of the opinion that a valid order sanctioning prosecution of the accused had not been produced as required under Section 19(1).....It does not forbid a Special Judge from passing an order at whatever stage of the proceedings holding that the prosecution is not maintainable for want of a valid order sanctioning the same. The language employed in sub-Section (3) is, in our opinion, clear and unambiguous.....Suffice it to say, that a conjoint reading of Sub-sections 19(3) and (4) leaves no manner of doubt that the said provisions envisage a challenge to the validity of the order of sanction or the validity of the proceedings including finding, sentence or order passed by the Special Judge in appeal or revision before a higher Court and not before the Special Judge trying the accused...” In case of State of Goa -Vrs.- Babu Thomas reported in A.I.R. 2005 S.C. 3606, it is held as follows:- “10. In the present case, the appellant does not dispute that the sanction order dated 2.1.95 was issued under the signatures of the Company Secretary. There was no reference to the decision/resolution being passed by the Board of Directors pursuant to which the sanction order was issued under the signatures of the Company Secretary. It is also not disputed that the second sanction order dated 7.9.97 issued by the Chairman and Managing Director of the Company also did not refer to any resolution/decision taken by the Board collectively pursuant to which the second sanction order was issued. It is also not disputed that the second sanction order dated 7.9.97 issued by the Chairman and Managing Director of the Company also did not refer to any resolution/decision taken by the Board collectively pursuant to which the second sanction order was issued. In the facts and circumstances, as adumbrated above, the view taken by the High Court cannot be said to be unjustified. xxx xxx xxx xxx 12......According to the counsel for the appellant no failure of justice has occasioned merely because there was an error, omission or irregularity in the sanction required because evidence is yet to start and in that view the High Court has not considered this aspect of the matter and it is a fit case to intervene by this Court. We are unable to accept this contention of the counsel. The present is not the case where there has been mere irregularity, error or omission in the order of sanction as required under Sub-section (1) of Section 19 of the Act. It goes to the root of the prosecution case. Sub-section (1) of Section 19 clearly prohibits that the Court shall not 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 as stated in clauses (a), (b) and (c). 13. As already noticed, the sanction order is not a mere irregularity, error or omission. The first sanction order dated 2.1.95 was issued by an authority that was not a competent authority to have issued such order under the Rules. The second sanction order dated 7.9.97 was also issued by an authority, which was not competent to issue the same under the relevant rules, apart from the fact that the same was issued retrospectively w.e.f. 14.9.94, which is bad. The cognizance was taken by the Special Judge on 29.5.95. Therefore, when the Special Judge took cognizance on 29.5.95, there was no sanction order under the law authorising him to take cognizance. This is a fundamental error which invalidates the cognizance as without jurisdiction.” In case of Parkash Singh Badal -Vrs.- State of Punjab reported in A.I.R. 2007 S.C. 1274, it is held as follows:- “29.The effect of Sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. This is a fundamental error which invalidates the cognizance as without jurisdiction.” In case of Parkash Singh Badal -Vrs.- State of Punjab reported in A.I.R. 2007 S.C. 1274, it is held as follows:- “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 considered not 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 root of jurisdiction as observed in para 95 of the Narasimha Rao’s case [ (1998) 4 SCC 626 ] . 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. xxx xxx xxx xxx 48. The sanction in the instant case related to offences relatable to Act. 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.” In case of Dinesh Kumar -Vrs.- Chairman, Airport Authority of India reported in (2012) 1 Supreme Court Cases 532, it is held as follows:- “9. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal (2007) 1 SCC 1 expressed in no uncertain terms that the absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, in Parkash Singh Badal : (2007) 1 SCC 1 , this Court referred to invalidity of sanction on account of non-application of mind. 10. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, in Parkash Singh Badal : (2007) 1 SCC 1 , this Court referred to invalidity of sanction on account of non-application of mind. 10. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorised or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind - a category carved out by this Court in Parkash Singh Badal : (2007) 1 SCC 1 , the challenge to which can always be raised in the course of trial.” In case of Director, C.B.I. -Vrs.- Ashok Kumar Aswal reported in (2015) 16 Supreme Court Cases 163, it is held as follows:- “15. All the above apart, time and again, this Court has laid down that the validity of a sanction order, if one exists, has to be tested on the touchstone of the prejudice to the accused which is essentially a question of fact and, therefore, should be left to be determined in the course of the trial and not in the exercise of jurisdiction either under Section 482 of the Code of Criminal Procedure, 1973 or in a proceeding under Article 226/227 of the Constitution.” 7. Keeping in view the citations placed by the respective sides, it is not in dispute that it was specifically urged on behalf of the petitioner before the learned trial Court during the hearing of the discharge petition as appears from the impugned order that the authority which accorded sanction for prosecution against the petitioner was not competent one. The learned trial Court did not deal with such aspect. In view of Chapter XIX of Cr.P.C., which deals with trial of warrant cases by Magistrates which is applicable to the trial of offences under the 1988 Act as envisaged under Section 5, it can be said while considering the discharge petition under Section 239 of Cr.P.C., the trial has commenced. In view of Chapter XIX of Cr.P.C., which deals with trial of warrant cases by Magistrates which is applicable to the trial of offences under the 1988 Act as envisaged under Section 5, it can be said while considering the discharge petition under Section 239 of Cr.P.C., the trial has commenced. The submission of learned Standing Counsel for the Vigilance Department that ‘trial’ commences only with recording of evidence is basically fallacious. In case of The State of Bihar -Vrs.- Ram Naresh Pandey reported in A.I.R. 1957 S.C. 389, it is held as follows:- “9. There is hardly anything in this definition which throws light on the question whether the word ‘trial’ is used in the relevant Section in a limited sense as excluding an inquiry. The word ‘trial’ is not defined in the Code. ‘Trial’ according to Stroud’s Judicial Dictionary means “the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal” [Stround’s Judicial Dictionary, 3rd Ed., Vol. 4, p. 3092.] and according to Wharton’s Law Lexicon means “the hearing of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the laws of the land” [Wharton’s Law Lexicon, 14th Ed., p. 1011.]. The words ‘tried’ and ‘trial’ appear to have no fixed or universal meaning. No doubt, in quite a number of Sections in the Code to which our attention has been drawn the words ‘tried’ and ‘trial’ have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those Sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. That meaning attaches to the words in those Sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration.” In case of V.C. Shukla -Vrs.- State through C.B.I. reported in A.I.R. 1980 S.C. 962, it is held as follows:- “48........We are, however, unable to agree with this argument because it appears that the enactment of Section 251-A by virtue of the amendment of 1955, the words ‘commencement of trial’ were introduced for the first time which clearly denote that the trial starts in a warrant case right from the stage when the accused appears or is brought before the Court. This appears to us to be the main intent and purpose of introducing the words ‘commencement of trial’ by the amendment Act of 1955 which did not appear in the Code of 1898 or in the various amendments made before the Act of 1955 to the Code. Thus, if the trial begins at that stage, it cannot be said that the proceedings starting with Section 251-A onwards amount to an inquiry within the meaning of Section 2(j) of the Code. Furthermore, it would appear that the amendment of 1955 in fact simplified the entire procedure for trial of warrant cases by a Magistrate by not requiring the Magistrate to record any evidence before framing of the charge or discharging the accused. All that the Magistrate had to do was to satisfy himself that the documents referred to in Section 173 had been furnished to the accused and if that had not been done, to direct that the documents should be furnished. Thereafter, the Magistrate on consideration of the documents referred to in Section 173 only and without recording any evidence, was to examine the accused if he considered necessary, and after hearing the parties proceed either to frame the charge or to discharge the accused. In other words, the simplified procedure introduced by the amendment of 1955, which is now retained by the Code in Ss. 238 to 240, amounts to a trial from beginning to end. In other words, the simplified procedure introduced by the amendment of 1955, which is now retained by the Code in Ss. 238 to 240, amounts to a trial from beginning to end. The fact that no evidence is to be recorded before framing of the charge and the Magistrate has to proceed only on the documents referred to under Section 173, i.e., the statement recorded in the case diary, and other papers or materials collected by the police, clearly shows that these proceedings are not an inquiry at all because the scheme of the Code generally appears to be that whenever an inquiry is held, evidence or affidavits have to be recorded by the Court before passing an order. This, therefore, an additional reason to hold that the proceedings starting from Section 251-A in the previous Code and Section 238 in the Code of 1973, do not amount to an inquiry at all but amount to the starting of a trial straightaway. Contrasted with the procedure which prevailed under the Code of 1898, prior to the amendment of 1955, there was express provision for recording of evidence before the charge and that procedure undoubtedly amounted to an inquiry which has now been dropped by the amendment of 1955 and retained by the Code. For these reasons, therefore, we are satisfied that the proceedings starting with Section 238 of the Code including any discharge or framing of charges under Section 239 or Section 240 amount to a trial. The question of a pre-trial, as suggested by the counsel for the appellant, does not arise on a plain interpretation of the language of Ss. 238 and 239 which were the same as Section 251-A under the Code of 1898 as amended by the Act of 1955.” In case of Hanumantsing Kubersing -Vrs.- State of Madhya Pradesh reported in ILR (1995) MP 526, a Full Bench of Madhya Pradesh High Court held that in warrant cases instituted on a police report, proceedings starting with Section 238 including discharge or framing of charges under Section 239 or Section 240 amount to a trial. If the trial commenced at the stage of Section 239 of Cr.P.C. and issue relating to the legality and validity of the sanction order can be raised in the course of trial, since the petitioner raised such issue before the trial Court during consideration of his discharge petition, it was improper on the part of the Court not to deal with the same and not to apply its mind to such vital issue. Courts are there in India to decide an issue raised in a case legally, impartially and objectively and not to act at its whim and pleasure. An order dismissing the discharge petition and framing of charges against an accused undoubtedly decides an important aspect of the trial and it is the duty of the Court to apply its judicial mind to the materials and come to a clear conclusion that prima facie case has been made out on the basis of which it would be justified in framing charges. The contention raised by the learned Standing Counsel for the Vigilance Department that any finding at that stage relating to invalid sanction or otherwise would have given scope to the petitioner to say that the Court has already pre-judged a vital issue, is equally fallacious. Since in view of the ratio laid down in case of Nanjappa (supra), in case the sanction is found to be invalid, the Court can discharge the accused and the petitioner was raising such issue before the trial Court, he cannot have any grievance on the consideration of such issue. If after consideration, the finding goes against him, he can approach the higher Court but certainly he cannot say that the Court has prejudged the issue. A Court should be fully aware of its power, limitations at each stage of the proceeding otherwise there is every chance of failure of justice. 8. Now the question which crops up for consideration is whether the Sub-Collector, Balasore –cum- Chairman, R.M.C., Jaleswar was the competent authority to accord sanction for prosecution under Section 19(1) of 1988 Act against the petitioner who was the Yard man of R.M.C., Jaleswar? If the answer is given in affirmative then the trial would continue till its logical end. However, if the answer is given in negative then the order of taking cognizance and obviously the order of framing charges would be quashed. If the answer is given in affirmative then the trial would continue till its logical end. However, if the answer is given in negative then the order of taking cognizance and obviously the order of framing charges would be quashed. To consider this vital issue, the discussions of some of the provisions of the 1956 Act and the 1958 Rules are necessary. Section 2(viii) of the 1956 Act states that the Market Committee means a committee established under Section 5. Section 5 of the 1956 Act deals with establishment of Market Committee by the State Government for every market area. Section 6 of the 1956 Act deals with constitution of Market Committee which shall consist of seventeen members which, inter alia, indicates that there shall be a Chairman and a Vice- Chairman for every Market Committee, who shall be nominated by the State Government. Section 9 of the 1956 Act empowers the Market Committee to employ such officers and employees as may be necessary for the management of the market and to pay such officers and employees such salaries as the Market Committee thinks fit. Rule 33(1) of the 1958 Rules states that the Market Committee for proper management of the market may appoint such officers and servants as may be necessary and in view of Rule 33(4), the Market Committee shall be the Disciplinary Authority in respect of all officers and servants of the Committee. Rule 25 of the 1958 Rules deals with the functions and powers of the Chairman which, inter alia, states that the Chairman shall be the controlling and supervising officer of the Market Committee and all officers and servants of the Market Committee shall, subject to the rules and the direction, if any, given by the Market Committee, be subject to his control. Rule 26 of the 1958 Rules, inter alia, states that every meeting of Market Committee shall be presided by the Chairman who is also entitled to speak and vote on all questions at the meeting and all questions which may come up before the Committee at any meeting shall be decided by the vote of the majority of the members present at the meeting and in every case of equality of votes, the President of the meeting shall have and exercise a second or casting vote. In view of the aforesaid Sections of 1956 Act and 1958 Rules, it is clear that the Market Committee is the Appointing Authority as well as Disciplinary Authority so far as the petitioner is concerned who was the Yard man of R.M.C., Jaleswar, Balasore. The Chairman is one of the members of Market Committee who has to be nominated by the State Government. The Chairman is of course the controlling and supervising officer of the Market Committee and all the officers and servants of the Market Committee are under his control and he has to preside over every meeting of the Market Committee but he cannot be said to be alone the competent sanctioning authority for prosecution of the petitioners for alleged commission of offences under the 1988 Act. The sanction aspect for prosecution has to be considered by the Market Committee and not alone by the Chairman. Obviously the majority decision of the Market Committee in that respect would prevail. There is even nothing on record that the Chairman has been entrusted by the Market Committee to take decision relating to sanction of prosecution of the petitioner. No decision/resolution of the Market Committee is there pursuant to which the sanction order was passed. Even though in the sanction order, the Sub- Collector, Balasore -cum- Chairman, R.M.C., Jaleswar has mentioned that he is the competent authority to remove the petitioner, therefore, he accorded sanction for prosecution of the petitioner after going through the relevant prosecution papers but in view of the foregoing discussions, the observation of the Chairman, R.M.C. is misconceived. A single Judge of Punjab and Haryana High Court in case of Jarnail Singh and Ors. -Vrs.- State of Punjab (CRA-S- 418-SB of 2005 and CRA-S-404-SB of 2005) decided on 07.04.2015 held as follows:- “16. This Committee consists of the Chairman of the Committee, as its President, District Mandi Officer or his nominee, not below the rank of an Assistant District Mandi Officer as expert representative and two other representatives, one each out of the Scheduled Castes and Ex- Servicemen, to be nominated by the Committee from amongst its members. As such, it is the Committee who can take disciplinary action and impose penalties and give punishment to the delinquent officials of the Punjab Market Committees. Sanction order Ex. PW5/A shows that sanction to prosecute was given by the Chairman alone. As such, it is the Committee who can take disciplinary action and impose penalties and give punishment to the delinquent officials of the Punjab Market Committees. Sanction order Ex. PW5/A shows that sanction to prosecute was given by the Chairman alone. Chairman, Market Committee, is one of the members of the Committee. May be the Chairman is the President of the Committee but he alone is not competent to give sanction to prosecute. Sanction order Ex. PW5/A nowhere states that meeting of the Committee was called for according sanction to prosecute the accused/appellants or their matter was considered by the Committee and thereafter, the Committee being satisfied that the accused/appellants have committed the offence under Section 7 and 13(i)(d)/13(2) of the Act and only then accorded sanction. As sanction to prosecute was not given by the authority, which was competent to give sanction and was also the punishing authority, the sanction is not a valid sanction. Chairman of the Market Committee, of course written in sanction order that he is competent to dismiss the accused/appellants yet this observation of the Chairman is misconceived. He alone cannot do so. It is the Committee who can dismiss the accused/appellants. “State of Goa v. Babu Thomas : 2005(4) RCR (Criminal) 349 (SC)” is the judgment of the Division Bench of the Hon’ble Apex Court of India. It is fully applicable to the present case. In the aforesaid judgment the power of appointment and dismissal vested in Board of Directors. Sanction for prosecution was issued by Chairman of the company. Under those circumstances, it was held by the Hon’ble Apex Court that it is not valid sanction. Order of Court taking cognizance was set aside. 17. In the case in hand as well, power of appointment and dismissal is with the Committee whereas the sanction for prosecution has been given by the Chairman alone. As such, it is not a valid sanction and for this very reason, the Court cannot take cognizance and the accused/appellants are entitled to acquittal.” The learned Standing Counsel for the Vigilance Department did not counter the invalidity of sanction order. Therefore, in view of the relevant provisions of the 1956 Act and the 1958 Rules, the sanction order issued by the Sub-Collector, Balasore –cum- Chairman, R.M.C., Jaleswar for prosecution of the petitioner for offences under 1988 Act is invalid. Therefore, in view of the relevant provisions of the 1956 Act and the 1958 Rules, the sanction order issued by the Sub-Collector, Balasore –cum- Chairman, R.M.C., Jaleswar for prosecution of the petitioner for offences under 1988 Act is invalid. When there is an express legal bar enacted in the 1988 Act to the very taking of cognizance of offences, inter alia, under Sections 7 and 13 of the Act by the Court except with previous sanction by the competent authority and such a bar is intended to provide specific protection to an accused, as the sanction order in respect of the petitioner is held to be invalid being granted by an incompetent authority which goes to the root of the prosecution case, on a careful analysis, I am of the view that impugned orders are liable to be set aside. I am conscious of the fact that the power of quashing the charge framed in terms of Section 240 of Cr.P.C. should be exercised very sparingly and with circumspection and that too in the rarest of rare cases but since I am of the view that quashing in the present case is absolutely essential to prevent patent miscarriage of justice and to do real and substantial justice, I have to accept the prayer made in this petition, however in view of the observation made in case of Nanjappa (supra), the prosecution is at liberty to obtain a fresh sanction order for prosecution of the petitioner from the competent authority and proceed in accordance with law. 9. In the light of foregoing discussion, I am of the considered opinion that the impugned orders passed by the learned trial Court in rejecting the petition filed by the petitioner under Section 239 of Cr.P.C. and framing of charges under Section 7 and Section 13(2) read with Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 against the petitioner is not sustainable in the eye of law and the same is hereby set aside. Anything said or any observation made in this judgment shall not influence the mind of the learned trial Court to adjudicate the trial in respect of co-accused Srustidhar Behera in accordance with law. Accordingly, the CRLREV petition is allowed. CRLREV allowed.