Karam Chand vs State of Punjab

Swatanter Kumar, J.

The petitioner is working as a clerk in the municipal Council, Dina Nagar. An F.I.R. No. 48 of 1986 under Section 5(2) of the Prevention of Corruption Act and Section 161 of Indian Penal Code was registered against the petitioner and another accused at Police Station, Dina Nagar, The F.I.R. was registered on the basis of a statement of one Shri Sucha Singh who was running a meat shop at G.T. Road, Maharani Gate, Dina Nagar. According to him the petitioner and one Shambhu Nath Singla, the executive officer, had demanded bribe of Rs. 2000/ for giving him a licence for running the meant shop. Rs. 1500/ were to be paid to Mr. Singla while Rs. 500/ to be paid to the petitioner, Both these accused were summoned by the learned Special Judge, Gurdaspur, in corruption case No. 2 of 1987, which was finally disposed of vide judgment dated 3.6.1988. The relevant part of the judgment passed the learned trial Court reads as under :

"A valid sanction is a condition precedent for prosecution, and where the sanction is invalid it takes away the jurisdiction of the Court to try the case. The defect in sanction thus has vitiated the trial of both the accused in respect of all the offences and resultantly they are discharged of the bail bonds."

A sanction to prosecute the accused was given by the Administrator, Municipal Committee on 16.8.1987 while admittedly the appointing authority of the petitioner was Director, Local Bodies. Taking into consideration the stand of the accused, the Special Judge, vide order dated 3.6.1983, had discharged both the accused and had held that lack of proper sanction had vitiated the trial of both the accused. The competent authority is stated to have accorded its sanction for prosecution of the accused through the Secretary, Government of Punjab, Department of Local Government, copy of which is annexed hereto as Annexure P/3. On the basis of this sanction again challan was filed in the Court on 1.9.1989 and charge was framed against the petitioner on 25.9.1989.

It is this subsequent filing of challan and all the proceedings arising therefrom which are assailed in this petition.

On the aforestated facts the contention of learned counsel for the petitioner is that the petitioner stood discharged vide order dated 3.6.1988 passed by the learned Special Judge and thereafter there is no proper and valid sanction permitting institution of fresh proceedings or presentation of a challan against the petitioner. According to the learned counsel for the petitioner as there is no sanction against the petitioner, the Court had no jurisdiction to summon the accusedpetitioner, frame a charge or take any proceedings in furtherance thereto.

Reply to this petition has been filed on behalf of the State without disputing aforestated facts but it is argued on behalf of the State that vide order dated 4.6.1988 it is only Shambhu Nath Singh who was discharged and there was proper sanction against the petitioner which entitles the State to continue with the proceedings and jurisdiction of the Special Judge is not ousted for lack of sanction as argued by the learned counsel for the petitioner.

In order to appreciate the rival contentions raised on behalf of the parties it is relevant to refer to the sanction allegedly granted by the competent authority after the discharge of the accused vide order dated 3.6.1988. The order of sanction while making a reference to the facts of the case, concludes in the following manner :

"Now, therefore, in pursuance of the provisions of section 6 of the Prevention of Corruption Act, 1947 as amended upto date, the President of India being the competent authority to dismiss/remove from office, the said Shambhu Nath Singla, Executive Officer, do hereby accord sanction for prosecution of the said Shambhu Nath Singla under section 5(2) of the Prevention of Corruption Act, 1947 and under section 161 of the Indian Penal Code and any other offence committed by him during the course of the same transaction and for taking cognizance of the said offences by the court of the competent jurisdiction."

A bare reading of the above referred paragraph of the order dated 3.6.1988 of the Court of competent jurisdiction and the subsequent alleged sanction makes it clear beyond doubt that both the accused were discharged by the learned Special Judge and lack of proper sanction was held to had vitiated the trial against both the accused. While the subsequent sanction only refers to Mr. Shambhu Nath Singla and the name of the petitioner does not even find a mention either in the recitals of the order or in the operative part. It is admitted before me that order dated 3.6.1988 was not assailed by the State before the Court of competent jurisdiction. Thus, the order of discharge of the present petitioner also became final between the parties.

Apparently there is no sanction after the order of discharge against the petitioner. Lack of such sanction hits the very jurisdiction of the Court to commence and continue proceedings against an accused. There cannot be any dispute to the settled principles of law that a proper and valid sanction is a sinequanon to institution and commencement of the proceedings against an accused who is challan or charged under Section 5(2) of the Prevention of Corruption Act.

A proper and valid sanction is not only condition precedent for institution of such proceedings but also vitiates the entire proceedings before the Court because it has the effect of divesting the Court of its jurisdiction which the Court of competent jurisdiction would have but for absence of valid and proper sanction being on record of the Court.

A Magistrate or a Court of competent jurisdiction is said to have taken cognizance of an offence when it applies its mind to pass any order in its capacity as a Court. In the absence of a valid and proper sanction where it is so prescribed by law Court is even prohibited from taking cognizance of such offence because once a Court applies its judicial mind with an intent of passing an order in enquiry or trial, the Court would certainly be concerned with this aspect of the matter. In the case of Janardhan Dass Gram Sachiv v. Prem Chand Ex. Sarpanch and others, 1993(3) R.C.R. 336 , a Bench of this Court held as under:

"The learned counsel for the petitioner has referred to Soumyndra Narain Chowdhry v. State (Through CBI, New Delhi) 1992 Crl. LJ 1472, where it was observed that it was not tenable to take cognizance without the required sanction under the Prevention of Corruption Act. The conclusion is that the present petition succeds and the complaint pending at Kurukshetra is hereby quashed."

In the case of State through C.B.I. v. Ravinder Singh, 1995(2) RCR 264 , upon discussion of the provisions applicable to the cases of the present kind, the Court held as under:

"It would be seen that sanction as mentioned in Section 19 of the Act is a prerequisite 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 courts concerned. To test further the contention of the learned counsel for the State that evidence ought to have been recorded by the Special Judge, what would be the net result, even if I assume that the evidence could have been recorded, the ultimate finding again would be to acquit the accused, because the basic foundation on which the Court has takes cognizance suffered from illegality. The Special Judge, after coming to a finding on the basis of all the evidence and material held that there was no legal sanction. Having come to the conclusion that the sanction was not legal, it was incumbent on the Special Judge to discharge the accused. The authorities cited by the learned counsel for the petitioner is of no help to the case of the petitioner. In the absence of proper, legal and valid sanction, the Special Judge will not have the jurisdiction to take cognizance of the offence thereby implying that if the Special Judge after coming to a conclusion that there was no legal sanction, still chooses to proceed in the matter, then the proceedings will be without jurisdiction and illegal."

It need not even be reiterated that the relevant time to which a valid and proper sanction for prosecution of government servant must relate to is the time, when the court taken cognizance of the offence in accordance with law. Even this question could well be considered in support of the case pleaded by the petitioner on the basis of the judgment of the Supreme Court in the case of R.S. Nayak v. A.R. Antulay, A.I.R. 1984 Supreme Court 684, where the Court held as under:

"The relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 is the date on which the Court is called upon to take cognizance of the offence of which he is accused."

In view of the aforestated judgments and the fact that as a matter of fact there is no sanction whatsoever on Court record subsequent to the judgment of the learned Special Judge dated 3.6.1988, I have no hesitation in holding that the Special Judge has no jurisdiction to continue the proceedings against the accusedpetitioner. The entire exercise would be in futility because even before this Court it is not the case of the State that on date a sanction as a matter of fact much less valid and proper sanction exists. The previous sanction having been held not to be a proper sanction and consequent discharge of the accused petitioner, the later action is of no consequence and cannot be of any aid to the State.

Another ground which has been urged before me is an inordinate delay on the part of the State and resultant unnecessary harassment to the petitioner also vitiates the proceedings before the learned Special Judge. Admittedly the offence relates to the period of February, 1986. Earlier the accused was discharged on 3.6.1988 and he has been summoned again to face the trial now which is continuing without any fruitful proceedings on the basis of a fresh sanction dated 1.9.1989. I have already noticed above that the sanction dated 1.9.1989 relates only to Shambhu Nath Singla and not to the petitioner. In the absence of such sanction the proceedings could not continue and in any case for the alleged offence of demanding Rs. 500/ for issuing a licence to the meat shop the petitioner has been exposed to unnecessary litigation and harassment. The entire period of 10 years commencing from 1986 till today and not placing on record a proper sanction till date, remains totally unexplained by the respondent. In this regard reference can be made to a recent judgment of the Supreme court in the case of M/s Munshi Ram Ram Niwas v. Collector, Food and Supplies Department and others, JT 1991(4) S.C. 151, where the court observed as follows :

"During the course of arguments learned counsel for the appellant submitted that though a criminal prosecution is pending against the appellant Ram Niwas but no effective progress has been made in the case except filing of challan. It appears to us that the State is not serious in pursuing the criminal proceedings and even otherwise more than 10 years have already elapsed to the alleged commission of the offence. It would be against the interest of justice to further continue any criminal proceedings in the case. We, therefore, direct to drop the criminal proceedings launched and pending against the appellant Shri Ram Niwas in the present matter."

Thus, the contention of the learned counsel for the petitioner that inordinate delay and inaction on the part of the State has resulted in serious prejudice and harassment to the petitioner, deserves to be considered with acceptance.

For the reasons aforestated this petition is allowed. The F.I.R. No. 48 dated 13.2.1986 under Section 5(2) of Prevention of Corruption Act and Section 161 I.P.C. registered at Police Station, Dina Nagar and all the subsequent proceedings arising therefrom are quashed. The order of discharge passed by the learned trial Court dated 3.6.1988 which continued in favour of the petitioner has to be maintained.