Neel Chand Suman vs State of Rajasthan

Prashant Kumar Agarwal, J.—The accused-petitioner by way of this Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. has challenged the order dated 20.01.2014 passed by the Special Judge (Prevention of Corruption Cases) No. 3, Jaipur Metropolitan, Jaipur in Sessions Case No. 131/2013 whereby the learned trial Court has ordered to frame charge against the petitioner for the offences under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter to be referred as "the Act") on the ground that the prosecution sanction under Section 19 of the Act is invalid as it has been granted by a person, who was not competent to grant it.

Brief relevant facts for the disposal of this revision petition are that FIR No. 68/2009 came to be registered against the petitioner for the aforesaid offences at Principal Police Station, ACD, Jaipur on the premise that the petitioner, who at the relevant time, was posted as a Lower Division Clerk in the office of Commercial Taxes Officer, Jhunjhunu demanded Rs. 500/- as gratification and he obtained the aforesaid amount on 30.03.2009 from the complainant-Shri Sanjay Khan. On the basis of written complaint made by the complainant the aforesaid FIR was registered and after investigation charge-sheet was filed against the petitioner and cognizance was taken against him on 27.05.2010. The learned trial Court after hearing both the parties by passing the impugned order rejected the plea taken by the petitioner that the competent authority entitled to grant prosecution sanction against the petitioner was his removal authority i.e. Commissioner, Commercial Taxes Department, whereas the sanction order dated 27.1.2010 has been issued by the Deputy Commissioner (Administration), Commercial Taxes, Bikaner, who is a officer sub-ordinate to the competent authority.

It was submitted by the learned counsel for the petitioner that the petitioner was appointed as Lower Division Clerk vide order dated 16.10.1990 by the Commissioner, Commercial Taxes Department, Rajasthan and thus, Commissioner is his appointing authority and he continues to be so till date and according to Article 311 of the Constitution of India, a person holding a civil post under a state cannot be removed from his office by an authority sub-ordinate to that by which he was appointed. It was further submitted that as the sanction under Section 19 of the Act is required to be granted by an authority who is competent to remove a public servant from his office, it follows that the sanctioning authority cannot be lower than the appointing authority in respect of those public servants to whom Article 311 of the Constitution is applicable. It was also submitted that while deciding about the authority competent to remove a public servant, Article 311(1) of the Constitution has to be taken into consideration and Section 19 of the Act must be interpreted in the light of the requirement of Article 311 of the Constitution. Attention of the Court was also invited to the fact that the petitioner was suspended from service vide order dated 2.4.2009 by the Commissioner which also shows that Commissioner continued to be his appointing/removal authority.

On the other hand, learned Public Prosecutor submitted that vide sanction order dated 27.1.2009, Deputy Commissioner (Admn.), Central Taxes Department, Bikaner has claimed to be competent to remove the petitioner from his office, so it is a question of fact to be decided by the trial Court after considering the evidence produced by the parties about the authority competent to accord sanction required under Section 19 of the Act as it is well settled legal position that Court may presume that an official act has been regularly performed unless it is rebutted. It was further submitted that as per clause (a) of sub-section (3) of Section 19 of the Act, an order passed by a Special Judge cannot be reversed or altered in revision on the ground of any error, omission or irregularity in the order of sanction unless in the opinion of the Court a failure of justice has infact been occasioned thereby. It was thus submitted that mere error in sanctioning order itself does not automatically result into failure of justice and it is for the accused to satisfy the Court, on the basis of the evidence produced during trial, that infact such failure has occasioned and his rights have been adversely affected. Inviting attention of the Court towards clause (a) of the explanation to Section 19 of the Act, it was contended that "error" includes competency of the authority to grant sanction. It was also contended that even if for the sake of arguments it is admitted that in the present case prosecution sanction has not been granted by the competent authority, even then merely by that reason, the impugned order cannot be set aside.

I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions and the case law.

Relevant portion of sub-section (1) of Section 19 of the Act provides that no Court shall take cognizance of an offence allegedly to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office whereas clause (a) of sub-section (3) provides 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, or of any error, omission or irregularity in the sanction unless in the opinion of the Court, a failure of justice has infact been occasioned thereby.

In the case of State of Bihar and Others Vs. Rajmangal Ram, AIR 2014 SC 1674 : (2014) AIRSCW 2101 : (2014) CriLJ 2300 : (2014) 4 SCALE 338 , the issue for consideration before the Hon''ble Supreme Court was "Whether a criminal prosecution ought to be interfered with by the High Courts at the instance of an accused who seeks mid-course relief from the criminal charges levelled against him on grounds of defects/omissions or errors in the order granting sanction to prosecuture including errors of jurisdiction to grant such sanction ?" It was observed by the Hon''ble Court that specific provisions have been incorporated in Section 19(3) of the Act as well as in Section 465 of the Code of Criminal Procedure which, inter alia make it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the Court a failure of justice has been occasioned. It was further observed that a more appropriate stage for reaching the conclusion, whether failure of justice has been occasioned or not, would be only after evidence in the case had been led on the issue in question.

In the case of State of M.P. Vs. Virendra Kumar Tripathi, (2009) 14 JT 62 : (2009) 6 SCALE 593 : (2009) 15 SCC 533 : (2009) 7 SCR 89 , it was held by the Hon''ble Court that sub-section (3) of Section 19 of the Act makes it clear that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court of appeal on the ground of absence of/or any error, omission or irregularity in sanction required under sub-section (1) of Section 19 of the Act, unless in the opinion of the Court a failure of justice has infact been occasioned thereby. It was further held that the stage when this failure is to be established is yet to be reached since the case is at the stage of framing of charge. Whether or not failure has in fact been occasioned was to be determined once the trial commenced and evidence was led.

In the case of C.B.I. Vs. Ashok Kumar Aggarwal, AIR 2014 SC 827 : (2014) 2 CCR 561 : (2014) CriLJ 930 : (2014) 2 RCR(Criminal) 213 : (2013) 14 SCALE 280 , Hon''ble Apex Court in clear terms held that the stage of examining the validity of sanction is during trial and the same cannot be examined during the stage of inquiry or at pre-trial stage.

In the case of Dinesh Kumar Vs. Chairman, Airport Authority of India and Another, (2011) 13 SCALE 132 , it was observed by the Hon''ble Court that 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. It was also observed that once cognizance for offence is taken by the trial Court, the question of validity of sanction is open for consideration by the trial Court and accused has liberty to raise it before the trial Court after evidence is led by the parties.

In the case of Ashok Tshering Bhutia Vs. State of Sikkim, AIR 2011 SC 1363 : (2011) CriLJ 1770 : (2011) 2 JCC 1153 : (2011) 2 RCR(Criminal) 99 : (2011) 2 SCALE 735 : (2011) 4 SCC 402 : (2011) 2 SCC(Cri) 258 : (2011) AIRSCW 1505 , it was held that a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is a matter of procedure and does not go to the root of jurisdiction and once the cognizance has been taken by the Court under Cr.P.C., it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance.

The well settled legal position emerging from the aforesaid decisions in brief may be stated in the following words "A finding, sentence or order passed by a Special Judge (trial Court) can not be reversed or altered by a Court of appeal, confirmation or revision or by the High Court exercising its power under Section 482 Cr.P.C. or Article 226 of the Constitution of India on the ground of mere error, omission or irregularity in the order of sanction including grant of it without application of mind or on the ground of non-availability of material before the sanctioning authority or on the ground of bias of the sanctioning authority or the order of sanction having been given by an authority not authorized or competent to grant sanction as it is a matter of procedure and it does not go to root of jurisdiction more particularly when cognizance has already been taken by the trial Court. A finding, sentence or order so passed by the trial Court can be reversed or altered only when it is found by the Court that as a result of such error, omission or irregularity a failure of justice has infact occasioned and the same can be considered during the course of trial after evidence is led by the parties and not at the threshold or at the stage of framing of charge. It is for the accused, on the basis of evidence made available on record during trial, to satisfy the Court that failure of justice has occasioned to him as a result of the defect or irregularity in the sanction. But so far as absence of sanction is concerned, it goes to the root of the matter and it could be raised at the inception and the threshold also by an aggrieved person.

In view of the above well settled legal position as in the present case after cognizance was taken by the trial Court charges were framed against the petitioner and evidence is yet to be led by the parties, I do not find any illegality or perversity in the impugned order requiring interference by this Court and, therefore, the revision petition being meritless is, hereby, dismissed with liberty to the petitioner to raise all objections regarding order of sanction during trial after evidence is led by the parties. The stay application is also dismissed.