Arun Krishnarao Hazare vs Central Bureau of Investigation

T.P. Sharma, J.—This petition is directed against the order dated 17-9-2008 passed by the Special Judge (CBI Cases), Raipur in Special Case No. 4/2007 whereby learned Special Judge has dismissed the objection/application filed on behalf of the applicant for acquittal on the ground that sanction for prosecution is not in accordance with law.

The order impugned is challenged on the ground that the applicant who is a public servant is protected in terms of Section 19 of the Prevention of Corruption Act, 1988 (for short ''the Act'') and without any legal and proper sanction the Court is not competent to take cognizance of the offence alleged against him, and the applicant may raise the ground relating to competency of sanction at any stage even after framing of charge. Thus, the Court has committed illegality by not considering the application which the applicant has filed after framing of charge.

I have heard learned Counsel for the parties and perused the order impugned, copy of the alleged sanction order, copy of the statement of the Sanctioning Authority recorded by the Special Court, copies of other documents especially Annexure P-12, dated 16-5-2006 written by the SECL to the complainant & Annexure P-13, dated 10-8-2006 written by the Staff Officer (Civil), Dipka Area to the complainant relating to black topping of coal tipper road including maintenance for three years from CHP BSES junction of Dipka Expansion Project to Dy. GM Office, Gevra Project in Gevra Area.

Mr. R.P. Joshi, learned Counsel for the applicant, submits that the applicant was posted as General Manager (Civil) in SECL, Bilaspur, a trap case against the applicant has been registered by the CBI vide Crime No. RC0092006A0013 and investigated. Finally charge-sheet has been tiled before the Special Judge (CBI Cases), Raipur. The applicant is facing trial for offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act. For taking cognizance of the offence alleged against the applicant sanction for prosecution is sine qua non in accordance with Section 19 of the Act. The prosecution is required to show prima facie by placing material that the entire material has been placed before the Sanctioning Authority for according sanction and after examining the material so placed and after application of mind & subjective satisfaction, the Sanctioning Authority has accorded sanction for prosecution against the applicant. Mr. R.P. Joshi further submits that sanction for prosecution is not a mere formality and the Sanctioning Authority after examining the material may accord sanction or may refuse sanction to prosecute the public servant for the offence of corruption.

In the instant case, the applicant was not entrusted with the duty and he was not competent to provide site for road construction or to extend the period of contract or to foreclose the contract without invoking penalty clause, i.e., the alleged official duty for which the alleged demand of gratification is made was not within the control of the applicant, it was not his official duty, as such, he was not in a position to misuse his post, therefore, there was no cause for demanding and accepting illegal gratification and the applicant has not demanded and accepted the illegal gratification.

The Sanctioning Authority, i.e., Partha Section Bhattacharyya (P.W. 1), Chairman-cum-Managing Director, Coal India Limited has not examined the entire material, even the entire material has not been produced before him at the time of according sanction. He has specifically admitted in his deposition that he has not enquired into the matter. The Vigilance Department has not sent statement of the witnesses or the documents except the list of witnesses and list of documents. He has only examined the statement of the complainant and he has examined the documents dated 3-4-2006, 10-4-2006 and 15-5-2006, but he has not examined the reply given by the Company to the complainant because same was not produced before him. Mr. R.P. Joshi also submits that in absence of examination of the entire material the sanction accorded by the Sanctioning Authority is not in accordance with law, it suffers from infirmity and on the basis of such infirmity in the sanction order which is not in accordance with law, continuation of proceeding/trial against the applicant would amount to abuse of the process of law. After examining Partha Section Bhattacharyya (P.W. 1), the applicant has applied before the Trial Court for recalling or taking cognizance on the basis of the statement of the Sanctioning Authority, but the same has been dismissed on the sole ground that after framing of charge, the Court is not competent to revoke its own order. Learned Counsel for the applicant further submits that the present applicant has initiated proceeding against the complainant for black listing him on the basis of forged documents of experience submitted by the complainant prior to registration of crime and to save himself from black listing and any adverse situation effecting his career & business, the complainant has lodged false complaint against the applicant before the CBI, as such, the applicant has been falsely implicated in the crime in question.

Learned Counsel for the applicant has placed reliance in the matter of State of Karnataka through CBI Vs. C. Nagarajaswamy, , in which it has been held by the Apex Court that if the Court has taken cognizance of the offence erroneously and the same comes to the Court''s notice at a later stage a finding to that effect is permissible. Learned Counsel has further placed reliance in the matter of Parkash Singh Badal and Another Vs. State of Punjab and Others, , in which it has been held by the Apex Court that question as to absence of sanction can be agitated at threshold of trial, but question as to vitiation has to be raised during trial. The prosecution is required to place ordinarily the entire material before the Sanctioning Authority and the Sanctioning Authority must after examining the record satisfy himself that whether there is ground for according sanction or not. Learned Counsel also placed reliance in the matter of State of Karnataka v. Ameerjan (2007) 11 SCC 273 , in which it has been held by the Apex Court that the sanction order must be demonstrative of the fact that there had been proper application of mind on the part of the Sanctioning Authority. Materials collected by the prosecution should be placed before the Sanctioning Authority. Reliance has also been placed by learned Counsel for the applicant in the matter of State Vs. Ravinder Singh, , in which the Delhi High Court has held that "sanction for prosecution is a pre-requisite for taking cognizance of an offence and prosecution for that offence by a Special Judge under the said Act and if at any stage on the basis of material before the Special Judge or it is otherwise brought to the notice of the Special Judge that the basis of cognizance, i.e., the sanction suffers from any vice, infirmity or illegality to argue that the Special Judge has to still proceed with the remaining evidence will be an exercise in futility and not only an exercise in futility but will be a great burden on public exchequer and time which is in paucity of the Court is concerned".

On the other hand, Miss Sharmila Singhai, learned Counsel appearing for CBI submits that the prosecution has produced all essential documents and material before the Sanctioning Authority for according sanction. Vigilance Department of the Sanctioning Authority has also inquired into the matter and produced description of the case along with other documents and after examining the entire material produced by the prosecution as also the Vigilance Department of the Sanctioning Authority and after satisfying himself, the Sanctioning Authority has accorded sanction. The sanction order contains all the details of incidence and it also contains all the documents and statement which the Sanctioning Authority has examined at the time of according sanction. The sanction order, in the instant case, is a speaking order and a public document, it is admissible in evidence without any proof.

In order to constitute the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act it is not necessary that the public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under the Act. In other words, it is not necessary that a public servant must do something in connection with his own duty, but if a public servant takes money from third party by corrupt or illegal means, then he misused his official duty. Defence was required to take the objection of illegality and impropriety of sanction at the very initial stage at the time of taking cognizance or at the time commencement of trial, i.e., date of framing of charge, it has not taken such ground and after commencement of trial and after examining the witness how has accorded sanction, the applicant has filed the application, same is not tenable and the Trial Court is not competent to recall the order framing charge or to revoke its own order which is not permissible in the criminal justice system.

Section 19 of the Act deals with previous sanction necessary for prosecution. Sub-section (3) of Section 19 of the Act says that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity, in the sanction required under Sub-section (1). In accordance with the provisions of Sub-section (4) of Section 19 of the Act, the question regarding legality and propriety of sanction should be heard and decided at any earlier stage in the proceedings. Sub-sections (3) and (4) of Section 19 of the Act reads as follows:-

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) no finding, sentence, or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;

(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under Sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

In the instant case, the applicant is facing trial for offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act and the Special Judge (CBI Cases), Raipur has framed charges against the applicant on 20-3-2008. Learned Special Judge has examined Partha Section Bhattacharyya (P.W. 1) who has accorded sanction against the applicant. On 18-4-2008 the applicant has filed an application for acquittal on the ground that the sanction accorded by the Sanctioning Authority is not in accordance with law and the same is not a valid sanction. After affording opportunity of hearing to the parties, learned Special Judge has rejected the application mainly on the ground that after taking into consideration the sanction order, the Court has taken cognizance and has framed charges, and after framing of charges, the Court is not competent to review its own order or competent to recall its own order.

In accordance with Sub-section (4) of Section 19 of the Act the accused may file objection against the cognizance taken on the basis of invalid sanction order at any earlier stage in the proceeding, i.e., before or at the stage of commencement of trial. In the case of Parkash (supra), the Apex Court has held in Para 48 that-

The sanction in the instant case related to the offences relatable to the 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 the case of State of Karnataka through CBI (supra) the Apex Court has held that-

Ordinarily, the question as to whether a proper sanction has been accorded for prosecution of the accused persons or not is a matter which should be dealt with at the stage of taking cognizance. But in a case of this nature where a question is raised as to whether the authority granting the sanction was competent therefore or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the accused for the purpose of determination as to who could remove him from service.

Grant of proper sanction by a Competent Authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regards sanction may be determined at an early stage. [See Ashok Sahu v. Gokhul Saikia , Birendra K. Singh Vs. State of Bihar, ]

But, even if a cognizance of the offence is taken erroneously and the same comes to the Court''s notice at a later stage a finding to that effect is permissible. Even such a plea can be taken for the first time before an Appellate Court. [See B. Saha and Others Vs. M.S. Kochar, and K. Kalimuthu Vs. State by D.S.P., ]

While dealing with the question of stage of raising objection relating to sanction in the case of Birendra (supra), the Apex Court has held that such objection relating to sanction could be raised at the stage of argument on charge. Para 3 of the said order reads thus:

We are of the opinion that the stage for raising such objection could be when the accused are called upon to address arguments under Sections 227 and 228 of the Code of Criminal Procedure. Such a stage would reach only if the case is committed to. the Court of Session. The advantage for the accused and the State as well as for the complainant to wait till then is that the order of committal would be supported by the materials envisaged in Section 202 of the Code and the question can be considered in the light of such materials also. We permit the appellant to raise the contention relating to sanction u/s 197 of the Code before the Sessions Court at the appropriate stage mentioned above. If any such contention is raised, the name shall be dealt with and disposed of by a speaking order by the Sessions Court untrammelled by any observations made in the impugned order. It is needless to say that the appellant shall be released on bail if he files an application for the same on such conditions as the Chief Judicial Magistrate, Gaya, deems fit to impose.

But if cognizance of the offence is taken erroneously and the same comes to the Court''s notice at the later stage, then the Court is competent to record finding to the effect at later stage. In the cases of K. Kalimuthu (supra) and B. Saha (supra), the Apex Court has held that need/requirement of sanction can be considered even at the appellate stage. In both the cases, it was under dispute that whether sanction to prosecute a public servant is necessary or not and the accused has committed offence while discharging his official duty or in connection with discharge of his official duty. On the basis of these two judgments, the Apex Court in the case of State of Karnataka through CBI (supra), has held that if cognizance of the offence is taken erroneously and the same comes to the Court''s notice at a later stage a finding to that effect is permissible even at the appellate stage.

In Ravinder Singh''s case (supra), it has been held by the Delhi High Court that it appears that the Special Judge has examined the Sanctioning Authority and after hearing the parties, discharged the accused even after framing of charge on the basis that the sanction has been accorded by the Sanctioning Authority without application of mind. The High Court has dismissed the revision filed against such order after arriving at a final conclusion that the order of the Special Judge is legal, just and proper in the facts and circumstances of the case. It appears that after framing charge against the accused, the Special Judge in this case has not followed the procedure prescribed for trial of warrant case in accordance with Sections 240 - 243 and 248 of the Code of Criminal Procedure, 1973. The Special Judge was only competent to acquit the accused after framing of charge, but he was not competent to discharge the accused after framing of a charge at any later stage even in terms of Sub-section (2) of Section 245 of the Cr.PC which is applicable to the cases instituted otherwise than on police report.

Law relating to need/requirement of sanction for prosecution and stage of making any objection is very clear. In terms of Section 19(3)(a) of the Act no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1), unless in the opinion that Court, a failure of justice has in fact been occasioned thereby.

In the light of pronouncement in the cases of Parkash (supra) and Ameerjan ''s case (supra), it is clear that the question as to absence of sanction can be agitated at threshold of trial, but if cognizance has been taken erroneously, then it may be agitated at any stage, even at the appellate stage. However, after framing of charge or at the later stage if a question of proper sanction is raised, then the only course left for the Court is to decide the same at the stage of final decision of the case.

As regards application of mind and placing the entire material before Sanctioning Authority, the Trial Court has examined the Sanctioning Authority namely, Partha Section Bhattacharyya (P.W. 1) who has specifically stated in Paras 4, 10, 11, 12, 14, 15 and 16 of his evidence that he has examined the documents, summary report of CBI, description of the case and the documents produced by his Vigilance Department and on the basis of the said documents as also after subjective satisfaction, after due application of mind, he accorded the sanction. It is not necessary that each and every document should be placed before the Sanctioning Authority, but ordinarily the documents collected by the prosecution should be placed before the Sanctioning Authority. In this case, the Sanctioning Authority has not only examined the documents collected on behalf of the prosecution, but he has also examined the documents collected after inquiry by the Vigilance Department and description of the case prepared by the Vigilance Department. Defence has cross-examined this witness (P.W. 1) at length relating to production of different documents and report by'' CBI and Vigilance Department and he has specifically admitted relating to those documents. Evidence of Partha Section Bhattacharyya (P.W. 1) is sufficient to draw inference that the Sanctioning Authority has accorded sanction not only on the basis of documents collected and produced by the CBI, i.e., the prosecution, but he has also examined the documents and report produted by the Vigilance Department after making necessary inquiry. This shows that this witness who is competent to accord sanction has taken sufficient precautions to ensure for issuance of groundless or frivolous sanction order.

In order to constitute offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act, it is not necessary that the public servant should demand or accept illegal gratification in connection with his own duty only but if he demands or receives gratification by corrupt or illegal means from others, same is termed as misconduct.

Question regarding absence of sanction can be agitated at the threshold of trial, but need of sanction, in any case, may be agitated even after taking cognizance at a later stage, if the Court has erroneously taken cognizance. But after taking cognizance on the basis of any sanction order, objection may be raised regarding validity of sanction order on the basis of absence of application of mind or subjective satisfaction and the same may be decided at the time of conclusion of trial.

Learned Trial Court has rejected the objection which was filed by the applicant after taking cognizance on the basis of sanction order. The Trial Court has not committed any illegality or infirmity in passing the order impugned. Proceedings pending before the Trial Court, in this case, is not abuse of the process of the Court.

In the result, there is no substance in the petition, same is liable to be dismissed and it is accordingly, dismissed, at the admission stage itself.

Consequently, I.A. No. 1/2008 stands disposed of.