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2021 DIGILAW 416 (GAU)

State of Arunachal Pradesh v. Er. Dani Gambo

2021-06-22

NANI TAGIA

body2021
JUDGMENT : Nani Tagia, J. 1. Heard Mr. O. Pada, learned Spl. P.P., SIC, appearing on behalf of the petitioner-State of Arunachal Pradesh. Also heard Mr. T.T. Tara, learned counsel, assisted by Mr. S.R. Rabha, learned counsel, appearing on behalf of the private Respondents No. 1 to 16 and 19 to 21. 2. As regards Respondent No. 17, it is submitted by Mr. Rabha, learned counsel, that the said respondent No. 17, in the meantime, has expired. 3. Office Note, dated 25.06.2018, indicates that Officer-in-Charge of Itanagar Police Station had returned the served notice in respect of Respondent No. 18. 4. Office Note, dated 10.04.2018, also indicates that AD cards in respect of Respondents No. 22 & 23 have been received back after causing service of notices on the said respondents. In view thereof, notices on all the respondents have been duly served. 5. This is a criminal revision petition under Section 397 read with Section 482 of the Code of Criminal Procedure, 1973, preferred by the State of Arunachal Pradesh, praying for setting aside of the impugned order, dated 21.12.2017, passed by the learned Special Judge (PCA), Yupia, in PCA Case No. 01/2016 (YPA) corresponding to SIC(Vig.) PS. Case No. 05/2011 whereby all the respondents/accused persons have been discharged u/s. 239 of the Code of Criminal Procedure, 1973, from the charges u/ss. 120(B)/420/409 of the Indian Penal Code read with Sections 13 (1)(c)(d) & 13(2) of the Prevention of Corruption Act, 1988. 6. The facts leading to the filing of the instant revision petition, briefly, be stated, as under: Pursuant to a complaint, dated 29.4.2011, filed by one Sri J.T. Takam, before the Officer-in-Charge of Yazali Police Station, alleging that the officials of the Public Works Department, Yazali Division, had misused huge amount of fund meant for the projects, namely, (i) construction of road from Jop to Silsango, (ii) construction of road at KVK, Yachuli, and (iii) construction of road from Loth to Chambang; Yazali Police Station Case No. 05/2011 u/s. 409 of the Indian Penal Code was registered. At a later point of time, the said Yazali Police case was transferred to the SIC(Vig.) PS, Chimpu, Itanagar, and the same was reregistered as SIC(Vig.) P.S. Case No. 05/2011. On completion of the investigation, the SIC (Vig.) had filed the charge-sheet before the learned Special Judge (PCA), Yupia, vide Charge-Sheet No. 06/2015, dt. At a later point of time, the said Yazali Police case was transferred to the SIC(Vig.) PS, Chimpu, Itanagar, and the same was reregistered as SIC(Vig.) P.S. Case No. 05/2011. On completion of the investigation, the SIC (Vig.) had filed the charge-sheet before the learned Special Judge (PCA), Yupia, vide Charge-Sheet No. 06/2015, dt. 14.9.2015, which was forwarded by a letter, dated 14.10.2015, by the Officer-in-Charge, SIC (Vig.) PS, Chimpu, Itanagar (Annexure-2 series), against all the respondents/accused persons u/ss. 120(B)/420/409 of the Indian Penal Code read with Sections 13(1)(c)(d) & 13(2) of the Prevention of Corruption Act, 1988. In the said Charge-Sheet, it is stated that during the further course of investigation, few more persons are found to be liable for prosecution in the instant case where prosecution sanction is being prayed for and that the prosecution sanction granted and any other development, shall be submitted through a supplementary charge-sheet. Thereafter, the learned Special Judge(PCA), Yupia, vide impugned order, dated 21.12.2017, has passed the order u/s. 239 of the Code of Criminal Procedure, 1973, discharging all the respondents/accused persons from the charges under Sections 120(B)/420/409 of the IPC read with Sections 13 (1) (c)(d) & 13(2) of the PC Act, 1988, for want of prosecution sanction as required under Section 197 of the Code of Criminal Procedure, 1973, as well as Section 19 of the Prevention of Corruption Act, 1988. 7. An additional affidavit has been filed by the Deputy Superintendent of Police(SIC), Government of Arunachal Pradesh, on 22.03.2018, to indicate that prosecution sanction in respect of 21 nos. of official respondents have, now, been granted by the competent authority of the Government of Arunachal Pradesh through the Commissioner, PWD, Government of Arunachal Pradesh, Itanagar, vide Memo. No. SPWD-290/2014 dated 16.03.2018, which is stated to have been filed along with the supplementary charge-sheet before the Court of the learned Special Judge(PCA), Yupia. 8. In the affidavit-in-opposition filed on behalf of Respondents No. 1 to 16 and 19 to 21, the said respondents, while not denying the factual aspects of the contentions raised by the petitioner, contended in paragraph No. 30(I) of the affidavit-in-opposition, as follows: "30(I). The deponent begs to state that the contents of para(I) are denied. 8. In the affidavit-in-opposition filed on behalf of Respondents No. 1 to 16 and 19 to 21, the said respondents, while not denying the factual aspects of the contentions raised by the petitioner, contended in paragraph No. 30(I) of the affidavit-in-opposition, as follows: "30(I). The deponent begs to state that the contents of para(I) are denied. It is stated that the Ld Special Court was within its jurisdiction to dismiss the petition on the ground of absence of prosecution sanction as the competent authority under Section 19 of the PC Act 1988 i.e. Public Works Department, Government of Arunachal Pradesh in its letter No. SPWD-290/2014/631 dated 31.03.2015 to the Superintendent of Police denied the permission on merit i.e. insufficient evidence to establish culpability of the respondents, herein. The Competent Authority further vide its letter No. SPWD-290/2014/87-88, dated 08.02.2017 to Deputy Superintendent of Police, Special Investigation Cell(Vigilance), Arunachal Pradesh categorically stated, "this department has already examined the case for issuance of prosecution sanction against 15 officers of Ziro and Yazali Divisions and due to insufficient record/evidence Government did not issue prosecution sanction against the officers in question. Government decision was conveyed to Superintendent of Police, Special Investigation Cell(Vigilance)". Once the Competent authority had denied the permission, the Ld Special Court had no other option but to discharge the accused. The case of Arambam Thomchou Singh vs Union of India, 2010 (1) GLT 510 is irrelevant to the present case as in the case of Arambam Thomchou Singh, no prosecution sanction was sought in terms of Section 197(1) of the Cr.P.C. before initiating the prosecution. In the present case, prosecution sanction was sought from the Competent Authority after due investigation and the permission was denied "due to insufficient record/evidence" against the accused and once it was denied on merit, the Court had no option but discharge the accused." 9. Mr. Pada, learned Special P.P., SIC, has contended that the power and jurisdiction to pass a discharge order pre-supposes the Court, having the power and jurisdiction to frame the charge(s). Mr. Pada, learned Special P.P., SIC, has contended that the power and jurisdiction to pass a discharge order pre-supposes the Court, having the power and jurisdiction to frame the charge(s). Learned Special P.P., SIC, has further contended that in the instant case, as there was no prosecution sanction granted for prosecution of any of the respondents by the competent authority at the time when the impugned discharge order, dated 21.12.2017, was passed by the learned Special Judge(PCA), Yupia; the learned Special Judge (PCA), Yupia, could not have taken cognizance of the charge-sheet filed against the respondents in PCA Case No. 01/2016 (YEA) corresponding to SIC(Vig.) P.S. Case No. 05/2011 u/ss. 120(B)/420/409 of the IPC read with Sections 13(1)(c)(d) & 13(2) of the PC Act, 1988; the impugned order, dated 21.12.2017, passed by the learned Special Judge(PCA), Yupia, is, therefore, without jurisdiction and the same is liable to be set aside and quashed. Learned Special P.P., SIC, has placed reliance on a decision of this Court, in the case of Arambam Thomchou Singh Vs. Union of India & Ors., reported in (2010) 1 GLT 510. 10. Mr. Tara, learned counsel for the respondents, on the other hand, has contended that in the absence of the prosecution sanction granted to the respondents for their prosecution in PCA Case No. 01/2016(YPA) corresponding to SIC(Vig.) P.S. Case No. 05/2011 u/ss. 120(B)/420/409 of the IPC read with Sections 13(1)(c)(d) & 13(2) of the PC Act, 1988; the learned Special Judge(PCA), Yupia, had no option but to discharge all the respondents from the charges filed against them. The learned counsel has further contended that in passing the impugned order, dated 21.12.2017, the learned Special Judge(PCA), Yupia, had acted well within the bounds of power conferred on it u/s. 239 of the Code of Criminal Procedure, 1973. In support of his contention, Mr. Tara, learned counsel for the respondents, has placed reliance on two decisions of the Hon'ble Apex Court rendered in the case of State of Maharashtra Vs. Priya Sharan Maharaj, (1997) 4 SCC 393 and Dilawar Balu Kurane Vs. State of Maharashtra, (2002) 2 SCC 135 . 11. Rival submissions advanced by the learned counsels for the contesting parties have received due consideration of this Court. 12. Priya Sharan Maharaj, (1997) 4 SCC 393 and Dilawar Balu Kurane Vs. State of Maharashtra, (2002) 2 SCC 135 . 11. Rival submissions advanced by the learned counsels for the contesting parties have received due consideration of this Court. 12. From the rival pleadings of the contesting parties, it appears, that there has been no dispute on the fact that in pursuance of PCA Case No. 01/2016(YPA) corresponding to SIC(Vig.) P.S. Case No. 05/2011 u/ss. 120(B)/420/409 IPC read with Sections 13 (1)(c)(d) & 13(2) of the PC Act, 1988; the SIC (Vig.) PS, Itanagar, had filed a charge-sheet before the Court of the learned Special Judge (PCA), Yupia, vide Charge-Sheet No. 06/2015, dated 14.09.2015, which was forwarded by a letter, dated 14.10.2015, by the Officer-in-Charge, SIC(Vig.) PS, Itanagar, against all the respondents/accused persons u/ss. 120(B)/420/409 of the IPC read with Sections 13(1)(c)(d) & 13(2) of the Prevention of Corruption Act, 1988. It has also not been disputed that at the time when the impugned order, dt. 21.12.2017, was passed by the learned Special Judge(PCA), Yupia; no sanction was granted for prosecution of the respondents in PCA Case No. 01/2016(YPA) corresponding to SIC (Vig.) P.S. Case No. 05/2011 u/ss. 120(B)/420/409 of the IPC read with Sections 13(1)(c)(d) & 13(2) of the PC Act, 1988. 13. At page 8 and 9 of the impugned order, dated 21.12.2017, the learned Special Judge (PCA), Yupia, had recorded as follows:- "It is an admitted fact that the 21 accused persons are alleged to have committed the above mentioned offence of having misappropriated the Govt. amount while they were discharging their duty as a public servants. And as provided U/S 19 of PCA and Section 197 of CrPC, the Govt. should have given prior prosecution sanction for prosecuting the accused persons. But there is no any Prosecution sanction available in the case record to show that if it was ever obtained. Section 19 of PCA, 1988 speaks of Previous sanction necessary for prosecution-It states that (1) No Court shall take cognizance of an offence punishable U/S 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except without the previous sanction. There is no any prosecution sanction available in the case record nor the SPP, SIC (VIG) appeared before the Court to give any explanation with regard to the same. There is no any prosecution sanction available in the case record nor the SPP, SIC (VIG) appeared before the Court to give any explanation with regard to the same. In the premises aforesaid, on the basis of the submission made by the learned defence counsels and the citations placed by the learned defence counsel, this Court is barred from taking cognizance of the case." Thus, from the impugned order, dated 21.12.2017, passed by the learned Special Judge(PCA), Yupia, as well; it is abundantly clear that no prosecution sanction had been granted by the competent authority for prosecution of the respondents in PCA Case No. 01/2016(YPA) corresponding to SIC(Vig.) P.S. Case No. 05/2011 u/ss. 120(B)/420/409 of the IPC read with Sections 13(1)(c)(d) & 13(2) of the PC Act, 1988. 14. In the light of the above, what calls for determination of this Court is, whether in the absence of a prosecution sanction granted to the respondents who are admittedly the public servants within the meaning of Sections 21 and 2(c) the Indian Penal Code and Prevention of Corruption Act, 1988, respectively; could the learned Special Judge(PCA), Yupia, have passed the impugned order, dated 21.12.2017, discharging all the respondents u/s. 239 of the Code of Criminal Procedure, 1973. 15. The question formulated hereinabove, have been answered by this Court in the case of Arambam Thomchou Singh (supra) wherein this Court in paragraphs No. 12 to 15 of the said judgment, has held as follows: "(12) While considering the order, dated 06.06.2008, it needs to be noted that when prosecution of a person, in respect of an offence, requires sanction in terms of Section 197 of the Code, no cognizance can be taken by any Court of such an offence, which requires sanction, without requisite sanction having been accorded by the appropriate Government. In the present case, therefore, the learned Court below could not have taken cognizance of the offences aforementioned, against the present petitioner and others, without requisite sanction having been granted by the appropriate authority if such sanction for their prosecution was a legal necessity. (13) What is, now, of paramount importance to note is that when a Court proceeds with a case, wherein no cognizance could have been taken without sanction, entire proceeding of such a case, held by the Court, would be without jurisdiction. (13) What is, now, of paramount importance to note is that when a Court proceeds with a case, wherein no cognizance could have been taken without sanction, entire proceeding of such a case, held by the Court, would be without jurisdiction. Consequently, in such a proceeding, the Court will not have the power to frame charge and when a Court does not have the power to frame charge, the question of the Court discharging the accused, facing such a trial, would not rise. Discharge by a Court is possible only when the Court is competent to frame charge. The appropriate course, is such a case, would be that whenever a Court finds that., no cognizance can be taken by it of an offence, because of want of requisite sanction, the Court must stop the proceeding forthwith making it clear that it had no jurisdiction to take cognizance and, then, return the report of the police, which he had received, under Section 173 (2). The Magistrate must make it also clear to the Investigating Agency that the Court would have no jurisdiction to try the accused unless sanction is obtained. If the appropriate authority grants sanction, and with the sanction, so granted, the investigating agency re-submits the police report, there would be no impediment in taking cognizance of the offence (s) unless the period of limitation, if any, bars taking of such cognizance. When the period of limitation sets in, the delay, if any, can be condoned by taking recourse to the provisions of the Code. Such condonation would, however, require issuing of a notice to show cause to the accused against proposed condonation of delay and it is upon hearing the accused that the delay can be condoned. (see State of Maharashtra Vs. Sharat Vinayak Dongre : AIR 1995 SC 23). If, however, the appropriate authority does not grant sanction and the police report is submitted with the information that the appropriate Government has declined to grant sanction, the Magistrate shall, after having issued notice to the informant and hearing him, pass such order (s) as may be deemed appropriate. (See Bhagwant Singh Vs. Commissioner of Police, (1985) 2 SCC 537 and Rosendra Chandra Das Vs. State of Assam & Ors., reported in 2008 (4) GLT 155). (See Bhagwant Singh Vs. Commissioner of Police, (1985) 2 SCC 537 and Rosendra Chandra Das Vs. State of Assam & Ors., reported in 2008 (4) GLT 155). (14) In the present case too, it was impermissible to discharge the accused-petitioner as has been done by the learned Court below, for, whatever had been done by the learned Court below, from the stage of taking of cognizance until the day of discharge, were without jurisdiction and must be treated as non est in law. Whatever had been brought on record would consequently stand washed off the record as being without jurisdiction. (15) I may have to point out that in Baij Nath Prasad Tripathi Vs. State of Bhopal: AIR 1957 SC 494 , the Apex Court has made it clear that when a Court is not competent to try an accused, e.g., in a case, wherein the requisite sanction, under Section 6 of the Prevention of Corruption Act, for prosecution of the accused, had not been obtained, the trial, as whole, is null and void. In such a case, observed the Apex Court, there was no conviction or acquittal in force and such a trial does not bar a subsequent trial of an accused on obtaining proper sanction. The earlier proceeding, according to the Apex Court, being null and void, the accused cannot be said to have been prosecuted and punished. In yet another case, namely, Ukha Kolhe Vs. State of Maharashtra: AIR 1963 SC 1531 , the Apex Court has pointed out that when a Court had no jurisdiction to try and yet tried and accused, the trial stands vitiated and, in such a case, an order of re-trial would mean that the entire record of the earlier proceeding would stand washed out from the record." 16. I am in respectful agreement with the law laid down by this Court in the case of Arambam Thomchou Singh (supra), and firmly of the view that in the present case also, as there was no prosecution sanction granted by the competent authority for prosecution of any of the respondents at the time of passing of the impugned discharge order, dated 21.12.2017; the learned Special Judge (PCA), Yupia, could not have taken cognizance of the Charge-Sheet so filed. Consequently, the learned Special Judge(PCA), Yupia, in the instant case, did not have the power to frame charge(s) against the respondents/accused persons and when a Court does not have the power to frame charge(s), the question of the Court discharging the respondents/accused persons does not arise. The impugned discharge order, dated 21.12.2017, passed by the learned Special Judge, Yupia, u/s. 239 of the Code of Criminal Procedure, 1973, discharging the respondents/accused persons from the charges u/ss. 120(B)/420/409 of the IPC read with Sections 13(1)(c)(d) & 13(2) of the PC Act, 1988, therefore, lacks jurisdiction and is liable to be set aside and quashed. 17. The two decisions of the Hon'ble Apex Court relied on by Mr. Tara, learned counsel for the respondents, pertains to the materials to be considered by the Court while framing a charge with a view to find-out if there is any ground for presuming that the accused has committed any offence and therefore, the said decisions are not relevant in the instant case as we are not considering the legality of the charges framed rather what we are concerned in the instant case is the very jurisdiction of the learned Special Judge, Yupia, to pass the impugned order, dated 21.12.2017, discharging all the respondents, when it had no power and jurisdiction to frame the charges itself. 18. For the reasons and discussions made hereinabove, the impugned order, dated 21.12.2017, passed by the learned Special Judge (PCA), Yupia, discharging all the respondents, herein, in PCA Case No. 01/2016 (YPA) corresponding to SIC(Vig.) P.S. Case No. 05/2011 u/ss. 120(B)/420/409 of the IPC read with Sections 13(1)(c)(d) & 13(2) of the PC Act, 1988, accordingly, stands set aside and quashed. 19. Consequent upon setting aside of the impugned order, dated 21.12.2017, passed by the learned Special Judge(PCA), Yupia, and also in view of the fact that prosecution sanction against all the respondents have now been granted by the competent authority as noted hereinabove; the Court of the learned Special Judge(PCA), Yupia, shall proceed with the trial of the case as had already been directed by this Court vide order, dated 24.3.2021, with right earnest and conclude the same as expeditiously as possible. 20. The instant criminal revision petition stands allowed and stands disposed in terms above.