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2023 DIGILAW 992 (BOM)

Sabaji Shetye v. State of Goa

2023-04-18

M.S.KARNIK

body2023
JUDGMENT/ORDER 1. This criminal revision application under Sec. 397 of the Code of Criminal Procedure, 1973 ('Cr PC' for short) takes exception to the order dtd. 11/1/2023 passed by the Special Judge, North Goa at Panaji in SPCC No.1/2023. The facts in brief are as under. 2. The applicant was working at the relevant time with the Government of Goa being member of the Goa Civil Services. In the year 2016, the applicant was posted as Additional Collector at Panaji. In respect of processing 4 applications for the purpose of obtaining NOC for storage of explosives under the provisions of Explosive Act, it was alleged that the applicant demanded various amounts. There were as many as 3 traps laid which failed. On 6/6/2017, the 4th trap was laid. On the basis of the aforesaid trap, the applicant was arrested. The Anti-Corruption Branch, Department of Vigilance, submitted an application dtd. 21/6/2018 to the Chief Secretary for grant of sanction against the applicant for prosecution under the provisions of Prevention of Corruption Act, 1988 (hereinafter referred to as 'the P.C. Act', for short). The Chief Secretary granted sanction vide order dtd. 7/11/2018. 3. When the purported sanction was granted by the Chief Secretary, there was neither a draft chargesheet nor any evidence placed before the Chief Secretary. It was noticed by the Government that the sanction was granted by the then Chief Secretary in the absence of any draft charge-sheet and without the entire materials being produced. The Government, therefore, decided that the file should be placed before the Competent Authority for obtaining proper sanction. Accordingly, the Anti-Corruption Branch submitted a proposal dtd. 1/12/2021 before the Chief Secretary for grant of sanction. Along with the said request the entire draft charge-sheet, documents and all the materials were sent to the Chief Secretary. The Chief Secretary thereafter sent the said file for obtaining the sanction from the competent authority namely the Minister for Personnel, who in the present case also happens to be the Chief Minister of the State. The Competent Authority by a detailed and reasoned order dtd. 7/1/2022 refused to grant sanction. 4. The Chief Secretary thereafter sent the said file for obtaining the sanction from the competent authority namely the Minister for Personnel, who in the present case also happens to be the Chief Minister of the State. The Competent Authority by a detailed and reasoned order dtd. 7/1/2022 refused to grant sanction. 4. Briefly stated that the competent authority observed that the case of the prosecution that there was demand made by the applicant is inherently improbable as the applicant had already cleared two files and two files were already referred for opinion to the other authorities much prior to the date when the alleged trap dtd. 6/6/2017 was conducted. Further, after going through the material, the competent authority held that there is no demand for gratification/bribe of whatsoever nature disclosed in the record. 5. Based on the aforesaid order dtd. 7/1/2022, the ACB filed 'A' Summary before the District And Sessions Judge, North Goa. Notice was issued to the informant as the ACB had filed a closure report. Informant gave no objection for closure of the case. 6. The trial Court was of the opinion that once the Chief Secretary has granted his sanction there was no question of the draft chargesheet being sent for approval and then to seek further sanction without there being any change in circumstances as regards the facts of the case. The learned Special Judge relied upon the decision in the case of State of H.P. V/s. Nishant, (2011) 3 SCC (Cri.)836. to form an opinion that a sanction earlier granted cannot be reviewed. Further, the learned Special Judge noted that the accused, at the time the final report was considered, had retired. Relying upon the decision of the Supreme Court in the case of Kalicharan Mahapatra v/s. State of Orissa, (1998) 6 SCC 411 . the learned Special Judge was of the opinion that the Court can take cognizance of the offences without any sanction. The Special Court, therefore, rejected the application for granting 'A' Final Summary and took cognizance of the offence. The registry was directed to register the case. 7. Assailing the impugned order, Shri Shirish Gupte, learned Senior Advocate submitted that the learned Special Judge failed to consider the effect of the amendment to Sec. 19(1)(b) which was brought into force w.e.f. 26/7/2018. The registry was directed to register the case. 7. Assailing the impugned order, Shri Shirish Gupte, learned Senior Advocate submitted that the learned Special Judge failed to consider the effect of the amendment to Sec. 19(1)(b) which was brought into force w.e.f. 26/7/2018. It is submitted that by virtue of the amendment even in respect of a retired public servant the Court cannot take cognizance of the offences punishable under Ss. 7, 11 and 13 of the P.C. Act without the previous sanction of the competent authority. Relying upon the Official Gazette of the Government of Goa, it is submitted that the Competent Authority to grant sanction is the Minister of the concerned department and not the Chief Secretary. It is further submitted that in any case once the 'A' Final Summary report is filed by the investigating agency, there was no need for the Special Judge to take cognizance of the offences. Learned senior advocate urged that even the informant was not insisting on proceeding with the matter, in fact he gave his no objection to the 'A' summary report, and therefore prayed that the petition be allowed. Learned Senior Advocate in support of his submission relied upon the decision of the High Court of Allahabad in Anil Kumar Shukla v/s. Centra Bureau of Investigation, 2020 4 AllLJ 562 . 8. Shri S. G. Bhobe, learned Public Prosecutor appearing on behalf of the respondents assisted this Court by inviting my attention to the findings recorded by the Special Judge. Shri Bhobe supported the filing of the 'A' Summary as the sanction under Sec. 19 of the P.C. Act was refused by the Competent Authority. 9. Heard learned counsel at length. It is not in dispute that the Chief Secretary had issued a sanction order 7/11/2018 under Sec. 19 of the P.C. Act. Thereafter, in view of the dictum of the Supreme Court in the case of Central Bureau of Investigation v/s. Ashok Kumar Agarwal, (2014) 14 SCC 295 . the ACB thought it fit to place the entire draft charge-sheet and the materials before the Chief Secretary. The Supreme Court has summarised the legal propositions in the matter of consideration of the materials before granting sanction under the P.C. Act. Paragraphs 13 to 16 are relevant from the perspective of the present controversy and which read thus:- '13. the ACB thought it fit to place the entire draft charge-sheet and the materials before the Chief Secretary. The Supreme Court has summarised the legal propositions in the matter of consideration of the materials before granting sanction under the P.C. Act. Paragraphs 13 to 16 are relevant from the perspective of the present controversy and which read thus:- '13. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. 14. It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty. 15. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge-sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non-application of mind. 16. In view of the above, the legal propositions can be summarised as under: 16.1. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. 16.2. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. 16.3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. 16.4. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. 16.5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.' (emphasis mine) 10. 16.5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.' (emphasis mine) 10. When the sanction was initially granted by the Chief Secretary, the entire relevant record was admittedly not placed before him. Pursuant to the purported first sanction, the draft chargesheet and the entire material collected through the investigations came to be later placed before the Chief Secretary. It was realised that it is the Minister in charge of the concerned department which is the competent authority in terms of the Official Gazette dtd. 18/12/2003. Moreover, in view of the decision of the Supreme Court in Central Bureau of Investigation v/s. Ashok Kumar Agarwal (supra), the government thought it fit to consider the issue of grant of sanction or otherwise on the basis of the entire materials in terms of the principles laid down by the Supreme Court. The order refusing the sanction by the competent authority is a reasoned order after considering the entire materials on record. In my opinion, the order refusing sanction is not in the nature of review of the first order granting sanction. In the first instance, it was realised that the Chief Secretary is not the Competent Authority for the purpose of grant of sanction under Sec. 19 of the PC Act. Secondly, it was noticed that the entire materials in terms of the decision of the Supreme Court was not before the Competent Authority. The purported sanction order dtd. 7/11/2018 of the Chief Secretary was without jurisdiction. It cannot be said that the exercise by the Minister-in-charge, who is the Competent Authority, upon consideration of the entire materials placed before him by the ACB thereby refusing to grant sanction amounts to review of the sanction order dtd. 7/11/2018. In fact, the exercise tantamounts to following the correct procedure by the Authority competent to consider the question of grant of sanction or otherwise. Such exercise is not unwarranted or without jurisdiction. 11. In my opinion, the learned Special Judge fell in error in construing the order refusing sanction as an order passed in the nature of a review. 7/11/2018. In fact, the exercise tantamounts to following the correct procedure by the Authority competent to consider the question of grant of sanction or otherwise. Such exercise is not unwarranted or without jurisdiction. 11. In my opinion, the learned Special Judge fell in error in construing the order refusing sanction as an order passed in the nature of a review. Their Lordships in the case of State of H.P. V/s. Nishant (supra) have observed that in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the material is reconsidered by the sanctioning authority and in the light of fresh materials an opinion is formed that sanction to prosecute a public servant may be granted, there may not be any impediment to adopt this course. Though in the present case the sanction is refused, however, the principle in State of H.P. V/s. Nishant (supra) is applicable to this case. The Competent Authority took into consideration the draft charge-sheet and the entire materials while refusing sanction which was not before the Chief Secretary when the sanction was earlier granted by him. The application made by the ACB dtd. 1/12/2021 which is at page 93 of the paper-book reveals that it is upon receiving the sanction for prosecution, the final draft charge-sheet was prepared and a note was placed before the superiors for approval of draft charge-sheet in order to file charge-sheet against the applicant. In the present facts, the learned Special Judge committed an error in holding that the order refusing sanction is illegal. 12. In any case, apart from what is observed herein before, I find that the learned Special Judge has virtually interfered with the order refusing sanction which exercise, in my opinion, is without jurisdiction and unwarranted. It is of course open for the trial Court to test whether the order granting sanction is valid or not. Once sanction is refused, in view of the clear mandate of Sec. 19, the trial Court could not have taken cognizance of the offence. The Supreme Court in the case of State of Karnataka v/s. Ameer Jan, (2007) 11 SCC 273 . Once sanction is refused, in view of the clear mandate of Sec. 19, the trial Court could not have taken cognizance of the offence. The Supreme Court in the case of State of Karnataka v/s. Ameer Jan, (2007) 11 SCC 273 . has observed that ordinarily the sanctioning authority is the best person to judge as to whether a public servant concerned should receive protection under the Act by refusing to accord sanction for his prosecution or not. For the aforementioned purpose, indisputably, application of the mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. In the present case, the sanction is refused by a reasoned order. Neither the complainant nor the investigating agency has proceeded to challenge the refusal of the sanction by resorting to appropriate proceedings. The trial Court should not have gone into the issue whether the Competent Authority is justified in refusing the sanction. In fact, the complainant gave his no objection for filing the 'A' Summary report. On an interpretation of amended Sec. 19 of the P.C. Act, if a sanction is not required for taking cognizance, the question will be different. It is for the aggrieved to adopt an appropriate remedy challenging an order of refusal of sanction. The validity of an order refusing sanction could not have been tested by the trial Court in the present case. 13. One more aspect needs to be considered. At the stage when cognizance of the offence was taken by the Special Judge, the applicant had retired. At the time of commission of the offence, the applicant was working as Additional Collector with the Government of Goa. The Special Judge was of the opinion that in respect of a retired government servant, sanction under Sec. 19 is not necessary and, therefore, took cognizance of the offences. According to me, but for the amendment of 2018 to Sec. 19 of the P.C. Act, I would have hesitated to interfere with the impugned order. Sec. 19 of the P.C. Act, post amendment of 2018, which has a material bearing on the controversy reads thus:- '19. Previous sanction necessary for prosecution.- (1) No Court shall take cognizance of an offence punishable under [Ss. Sec. 19 of the P.C. Act, post amendment of 2018, which has a material bearing on the controversy reads thus:- '19. Previous sanction necessary for prosecution.- (1) No Court shall take cognizance of an offence punishable under [Ss. 7, 11, 13 and 15] alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)], - (a) in the case of a person [who is employed, or as the case may be, was at the time of commission of the alleged offence 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, or as the case may be, was at the time of commission of the alleged offence 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: [Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-sec., unless - (i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and (ii) the court has not dismissed the complaint under Sec. 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding: Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant: Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-sec., endeavour to convey the decision on such proposal within a period of three months from the date of its receipt: Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month: Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary. Explanation.-For the purposes of subsec. (1), the expression "public servant" includes such person- (a) who has ceased to hold the office during which the offence is alleged to have been committed; or (b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.] (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-sec. (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-sec. (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-sec. (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. (4) In determining under sub-sec. (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 Sec., - (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.' (Emphasis mine) 14. The Special Judge was of the opinion that there is no need for sanction as the applicant had retired on the date it took cognizance of the offence. Let me consider the controversy in the perspective of the 2018 amendment of Sec. 19 P.C. Act. The applicant was employed as Additional Collector at the time of the alleged offence. The investigation proceeded. The cognizance was taken after the applicant retired. For the present matter, what is relevant is Sec. 19(1)(b) of Chapter V of the P.C. Act which deals with sanction for prosecution and other miscellaneous provisions. The portion (who is employed, or as the case may be, was at the time of commission of the alleged offence employed) was substituted by Act 16 of 2018, for "who is employed" (w.e.f. 26/7/2018). The intention of substituting the bracketed portion is obvious. The intention appears to be to protect the government servant who was in employment at the time of the commission of the alleged offence. It may be that at the time when cognizance of an offence is taken, the accused is transferred on deputation to some other department or agency or he has resigned or he may have superannuated. What appears to be material is that at the time of commission of the alleged offence he was in employment. Such a protection is necessary to avoid any unjustified persecution. 15. The purpose of bringing in the amendment, as can be seen from the language of Sec. 19(1)(b), is obviously to obviate any discrimination in the matter of grant or refusal of sanction between a person who is employed and a person who has retired at the time of taking cognizance. The language of Sec. 19(1)(b) is clear and unambiguous. 15. The purpose of bringing in the amendment, as can be seen from the language of Sec. 19(1)(b), is obviously to obviate any discrimination in the matter of grant or refusal of sanction between a person who is employed and a person who has retired at the time of taking cognizance. The language of Sec. 19(1)(b) is clear and unambiguous. The protection of Sec. 19 is available to the applicant who has retired on the date of cognizance is to be taken can also be deciphered from the explanation to sub-sec. 1 of Sec. 19. Clause (a) of the explanation would cover the case of the applicant who was holding the office when the alleged offence was committed by him but has ceased to hold the office in view of his retirement. Clause (b) of the explanation would apply to a case where the person against whom the allegation of committing the offence is made is holding the office other than the office during which the offence is alleged to have been committed. For instance, in respect of a public servant who is transferred/sent on deputation/repatriated. 16. My attention is invited by the learned Senior Advocate to the decision of the High Court of Allahabad (Lucknow Bench) in the case of Anil Kumar Shukla (supra) where a similar issue as involved in the present case has been dealt with. I am in respectful agreement with the view taken in Anil Kumar Shukla (supra). 17. In the case of State through CBI v/s. Raj Kumar Jain, (1998) 6 SCC 551 . the Hon'ble Supreme Court examined the scope of Sec. 6 of the Prevention of Corruption Act, 1947, which is almost similar to sub-sec. 1 of Sec. 19 of the Act. In paragraph 5, Their Lordships observed thus: "5. From a plain reading of the above Sec. it is evidently clear that a court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above Sec., the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions." 18. I find that the decisions relied by the trial Court in the case of Kalicharan Mahapatra (supra), J & K v/s. Charan Dass Puri, (1999) 5 SCC 738 . I find that the decisions relied by the trial Court in the case of Kalicharan Mahapatra (supra), J & K v/s. Charan Dass Puri, (1999) 5 SCC 738 . and Prakash Singh Badal and another V/s State of Punjab and others, (2007) 1 SCC (Cri) 193. were rendered on an interpretation of Sec. 19(1) as it then stood prior to its amendment in 2018. Post the amendment, the public servant would include a person who was holding the office when the offence was committed and has since retired. Such a retired person like the applicant would also be entitled to the protection of Sec. 19 of the P.C. Act. 19. I am conscious that the offence was committed prior to the amendment. The stage of taking cognizance arose post amendment. The mandate of Sec. 19 of the P.C. Act is implicit that no Court shall take cognizance of the offence punishable thereunder, except with the previous sanction of the competent authority. As on the date of taking cognizance the amended provision had taken effect and was in force. The object of Sec. 19 of the P.C. Act which creates a bar to the Court from taking cognizance of offences enumerated therein except with the previous sanction of the competent authority set out is to save the public servant from harassment and frivolous or unsustainable allegations. Existence of a valid sanction is a per-requisite for taking cognizance of the enumerated offences alleged to have been committed by the public servant. The Supreme Court in R. S. Nayak vs. A. R. Antulay, (1984) 2 SCC 183 . held that a trial without a valid sanction is a trial without jurisdiction. In my opinion, at the stage of considering whether to take cognizance or not, though the applicant has retired will be covered by the amended Sec. 19 of the P.C. Act. The applicant cannot be deprived of the limited protection of a valid sanction only because the offence alleged was committed prior to the amendment. 20. The impugned order is set aside. The trial Court may pass consequential orders on the basis that it cannot taken cognizance as there is no valid sanction under Sec. 19 of the P.C. Act. 21. The Criminal Revision Application is disposed of.