Pushyamitra Mishra and Others vs C.B.I.

Sanjay K. Agrawal, J.—The applicant No. 1 at the relevant time was working as a Regional Officer in Central Regional Office AICT Bhopal on deputation and the applicant No. 2 at that time was working as an Associate Professor in Maulana Azad National Institute of Technology, Bhopal. The applicant No. 1 had allegedly sent ineligible members including applicant No. 2 with the team of expert committee for the purpose of inspection, whereas the applicant No. 2 is alleged to have obtained huge illegal gratification from the private educational institute to extend favour in the inspection as a member of expert committee and consequently both are facing trial for offences punishable under Sections 7 , 13(2) read with 13(1)(d) & 13(1)(a) of the Prevention of Corruption Act, 1988 (hereinafter called as P.C. Act) and Section 120-B of the Indian Penal Code (hereinafter called as ''IPC'').

The Director (Dr. Appu Kuttan K.K.), Maulana Azad National Institute of Technology, Bhopal being authority competent to remove the applicants by its order dated 22.11.2012 granted sanction for prosecution against the applicants under Section 19(1)(c) of the P.C. Act for the aforesaid offences.

On 15.04.2014 Dr. Appu Kuttan K.K. - Director, MANIT Bhopal sanctioning authority was examined as prosecution witness No. 1. Immediately thereafter, applicants moved an application under Section 19 of the P.C. Act before the Special Judge, CBI, Raipur stating inter alia that the sanctioning authority has now been examined and he has not supported the case of the prosecution with regard to grant of sanction. It has further been stated that the statement of the said witness would show that the order granting sanction has been passed without due application of mind as draft sanction order was forwarded by CBI to the said sanctioning authority and none of the relevant documents were produced before the said authority. It was also pleaded that said prosecution witness has candidly admitted the factum of his incompetence to grant sanction against the present applicants for the alleged offences and relied upon paragraphs 8, 10, 12, 13, 14, 19 & 21 of his statement to claim that there is no valid sanction order to prosecute the applicants for the aforesaid offences and therefore the application be allowed and prosecution against the applicants be dropped in the interest of justice.

The Non-applicant/CBI filed its reply to the said application opposing it and stated that the cognizance of the offences has already been taken and the charges have also been framed and only three witnesses have been examined and as such, application is premature and at this stage the application deserves to be dismissed being substance less.

The learned Special Judge, CBI by its impugned order rejected the application finding inter alia that at this stage, only three prosecution witnesses have been examined out of 48 charge-sheet listed witnesses and the prosecution has sufficient and ample opportunity to fully prove that the order of sanction was granted by sanctioning authority in accordance with law, notwithstanding the statement made by Dr. Appu Kuttan K.K. and further held that the finding with regard to failure of justice cannot be recorded at this stage being unsafe and premature.

Feeling aggrieved and dissatisfied with the order rejecting their application this revision petition under Section 397 read with Section 401 of Cr.P.C. has been filed by the applicants herein questioning the legality, validity and correctness of the impugned order.

Mr. Saurabh Dangi, learned counsel appearing for the applicants would submit that the sanctioning authority Dr. Appu Kutta K.K. has been examined by the prosecution as prosecution witness No. 1 and his statement specially paragraphs 8, 19 & 20 would clearly indicate that the sanctioning authority has not applied its mind to the facts of the case before granting sanction for prosecution against the applicants under Section 19(1)(c) of P.C. Act as said authority has blindly signed the draft sanction order which was sent by the CBI Officer to the sanctioning authority. Elaborating his submission Mr. Dangi would further submit that the Director, MANIT had no right and authority to grant sanction for prosecution against the applicants as such jurisdiction to grant sanction is vested with Board of Directors MANIT and placed reliance upon decision of the Supreme Court in the matter of State of Bihar and Others Vs. Rajmangal Ram, .

Mr. Kishore Bhaduri, learned counsel appearing for Central Bureau of Investigation/non-applicant would submit that at present CBI has only examined three witness including sanctioning authority out of 48 charge-sheet listed witnesses and as such CBI has sufficient opportunity in its hand to establish, if not readily established the fact, that all the relevant documents were placed before the sanctioning authority before sanction was granted against the applicants and the fact of competence of the sanctioning authority to grant sanction can also be further established during the course of trial and it is premature at this stage to permit the applicants to raise such a plea of sanction only upon the sole statement of Dr. Appu Kuttan K.K. sanctioning authority especially when the sanction order is a speaking order clearly indicating application of mind and authority of Director MANIT to grant order of sanction against the applicants. He would also submit that the applicants have failed to establish failure of justice on the alleged ground in order of sanction as there is no whisper in the application demonstrating or complaining failure of justice on alleged grant, therefore the learned Special Judge is absolutely justified in rejecting the application filed by the applicants and no interference is warranted in exercise of revisional jurisdiction of this Court under Section 397 /401 of Cr.P.C. and placed reliance upon the decision of the Supreme Court rendered in case of Rajmangal Ram (Supra).

I have heard learned counsel for the parties and given thoughtful consideration to the rival submissions made therein and also gone through the records available with utmost circumspection.

The short question that arises for consideration is whether the learned Special Judge, CBI is justified in rejecting the application filed by the applicants under Section 19 of the P.C. Act for discharge holding such an application to be premature?

Before proceeding further in the matter, it would be apt to notice the pertinent observation of Their Lordships of the Supreme Court in the matter of Manzoor Ali Khan Vs. Union of India (UOI), , which states that- "A fine balance has to be maintained between need to protect a public servant against mala fide prosecution on the one hand and the object of upholding the probity in public life in prosecuting the public servant against whom prima facie material in support of allegation of corruption exists, on the other hand."

Turning back to the principal controversy, facts of the case as highlighted by the parties would show that immediately after the prosecution witness No. 1 Dr. Appu Kuttan K.K. was examined, the applicants claimed discharge on the ground of incompetence of the sanctioning authority to accord sanction for prosecution as well the non-application of mind by the sanctioning authority while granting sanction against the applicants as alleged that the relevant documents were not produced at the time of sanction before the sanctioning authority relying the statement of Dr. Appu Kuttan K.K. in their support. The question for consideration would be whether at the stage when only few prosecution witnesses including sanctioning authority have been examined and remaining witnesses are yet to be examined, it would be permissible for the Court trying the offences to allow the applicants to raise the question of validity or otherwise of sanction for prosecution by appreciating the sole testimony of sanctioning authority or postpone it for a later stage of trial/or an appropriate stage during trial.

The law in this regard is very well settled. The question of grant of sanction is essentially a question of fact and sanction order should not be interdictated at the threshold and at the best it should be left to be determined in the course of trial. [see State of M.P. Vs. Dr Krishna Chandra Saksena, , Parkash Singh Badal and Another Vs. State of Punjab and Others, , Dinesh Kumar Vs. Chairman, Airport Authority of India and Another, and The Director, Central Bureau of Investigation and Others Vs. Ashok Kumar Aswal and Others .]

Now the question would be what is the meaning of "course of trial"? The word "course" denotes movement from one point to another and expression "in course of" not only implies a period of time during which movement is in progress but also postulates a connected relation. In the matter of State of Travancore-cochin and Others Vs. Shanmugha Vilas Cashew Nut Factory and Others, Their Lordships of the Supreme Court have defined the meaning of word "course" as under:--

"49. The word "course" conveys the idea of a gradual and continuous flow, an advance, a journey, a passage or progress from one place to another Etymologically it means and implies motion, a forward movement. The phrase "in the course of" clearly has reference to a period of time during which the movement is in progress"

Similarly, in the matter of Commissioner of Income Tax, New Delhi (Now Rajasthan) Vs. East West Import and Export (P) Ltd., (Now Known as Asian Distributors Ltd.), Jaipur, , Their Lordships of the Supreme Court have defined the meaning of word "course" in the following way:--

"8. ''Course'' ordinarily conveys the meaning of a continuous progress from one pint to the next in time or space and conveys the idea of a period of time; duration and not a fixed point of time. "In the course of such previous year" would, therefore, refer to the period commencing with the beginning of the previous year and terminating with the end of the previous year...."

The word "trial" is not defined in the Code. "Trial" according to Stroud''s Judicial Dictionary means "the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal" and according to Wharton''s Law Lexicon means "the hearing of a cause, civil or criminal, before a Judge who has jurisdiction over it, according to the laws of the land". The words "tried" and "trial" appear to have no fixed or universal meaning. In the matter of Union of India and others Vs. Major General Madan Lal Yadav (Retd.), , Their Lordships of the Supreme Court have defined the meaning of word "trial" in following way:--

"19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial."

Mr. Dangi, learned counsel for the applicants, as well as Mr. Bhaduri, learned counsel for non-applicant-CBI, both have placed implicit reliance on the decision of the Supreme Court in the matter of Rajmangal Ram (supra) to buttress their respective submissions. In the said judgment Their Lordships formulated following question of law for determination:--

"Whether a criminal prosecution ought to be interfered with by the High Court at the instance of an accused who seeks mid-course relief from the criminal charges leveled against him on grounds of defects/omissions or errors in the order granting sanction to prosecute including errors of jurisdiction to grant such sanction?"

Their Lordships considered the above-stated question thread bare and finally answered the question in paragraph 10 as under:--

"10. The High Court in both the cases had also come to the conclusion that the sanction orders in question were passed mechanically and without consideration of the relevant facts and records. This was treated as an additional ground for interference with the criminal proceedings registered against the Respondents. Having perused the relevant part of the orders under challenge we do not think that the High Court was justified in coming to the said findings at the stage when the same were recorded. A more appropriate stage for reaching the said conclusion would have been only after evidence in the cases had been led on the issue in question."

Relying upon the aforesaid conclusion Mr. Dangi, learned counsel, would submit that the evidence with regard to grant of sanction has been led by the prosecution as sanctioning authority has already been examined to prove the question of grant of sanction, whereas it is the claim of Mr. Bhaduri learned counsel for CBI, that still sufficient number of witnesses are in their possession who are yet to be examined and the question of grant of sanction with reference to application of mind/production of relevant record before the sanctioning authority and the competence of the said authority to grant sanction can still be better proved, if not already proved by the prosecution, therefore the evidence in issue in question has not been led fully and therefore, extending the benefit of law laid down by the Supreme Court in case of Rajmangal Ram (supra), revision petition deserves to be dismissed.

The sanction for prosecution granted by competent authority under Section 19(1)(c) of the P.C. Act clearly states that applicant No. 1 created circumstances by entertaining a fake complaint by ordering expert visit to six private institutes of Chhattisgarh misusing his office as he was holding the post of Regional Officer, Central Regional Office, AICTE, Bhopal at the relevant point of time and by constituting an expert team headed by Shri Sanjay Soni applicant No. 2 herein comprising of the expert of his own choice which enable the applicant No. 2 Sanjay Soni to visit said institutes and put the management of the institute in fear of losing approval of AICTE and applicant No. 2 Sanjay Soni obtained huge illegal gratification of Rs. 11,71,000/- and other valuable articles for the said institutes. Not only this the said sanction order clearly records that the Director of MANIT is an authority competent to remove the applicants from their respective posts and thereafter satisfaction has been recorded that in the interest of justice applicants be put to trial in court of competent jurisdiction for offences under Sections 7 , 13(2) read with 13(1)(d) and 13(1)(a) of the P.C. Act and Section 120-B of the IPC.

In his statement before the court Dr. Appu Kuttan K.K. the then Director, MANIT and sanctioning authority has clearly stated that he has gone through the documents produced by the CBI and sanction order bears his signature and he has accorded sanction for prosecution against the applicants after applying his mind. With regard to the competence to remove the applicants from their respective posts, he has clearly stated that he was competent authority to remove applicants from their office without any prior approval from the Board of Governor. Thus, the sanction order itself is quite vivid about the application of mind and the competence of Director MANIT to remove the applicants from their respective posts.

Way back, in the year 1958 in the matter of Indu Bhusan Chatterjee Vs. The State of West Bengal, a submission was raised before the Supreme Court that the sanctioning authority did not apply his mind to the facts of the case but blindly signed readymade sanction order prepared by the police. Their Lordships of the Supreme Court have held that when the sanction order is eloquent enough then the sanction order is valid in law. It has been held as under:--

"9. ...It is true that he did not himself dictate or draft the sanction, but Mr. Bokil has stated in the clearest terms, in his examination-in-chief, that before he accorded sanction he went through all the relevant papers. There is no reason to distrust this statement of Mr. Bokil, nor has the High Court, while granting the certificate of fitness, done so. He was an officer of high rank in the Railway and must have been fully aware that the responsibility of according the sanction against an official of the Railway subordinate to him lay upon him. It is inconceivable that an officer of the rank of Mr. Bokil would blindly sign a ready-made sanction prepared by the police. Apparently, the sanction already drafted contained all the material facts upon which the prosecution was to be launched, if at all, concerning the acceptance of the bribe by the appellant on May 12, 1952. When Ex. 6 was placed before Mr. Bokil other relevant papers were also placed before him. It is significant that Mr. Bokil was not cross-examined as to what the other relevant papers were and in the absence of any question being put to Mr. Bokil we must accept his statement that the papers placed before him were relevant to the only question before him whether he should or should not accord his sanction to the prosecution of the appellant. Mr. Bokil said, and we see no reason to distrust his statement, that before he accorded his sanction he went through all these papers and after being satisfied that sanction should be given he accorded his sanction. It is true that he did not call for any record in connection with the matter from his office nor did he call for the connected claim cases or find out as to how they stood. It was not for Mr. Bokil to judge the truth of the allegations made against the appellant, by calling for the records of the connected claim cases or other records in connection with the matter from his office. The papers which were placed before him apparently gave him the necessary material upon which he decided that it was necessary in the ends of justice to accord his sanction."

The statement of law laid down in the Indu Bhushan Chatterjee (Supra) has been followed subsequently by the Supreme Court in the matter of C.S. Krishnamurthy Vs. State of Karnataka--> , and it has been held as under in paragraph nine:--

"9. Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as Witness 40 and has deposed about his application of mind and after going through the report of the Superintendent of Police, CBI and after discussing the matter with his Legal Department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is justified."

A careful perusal of the order of sanction dated 22.11.2012 would show that the sanction order is a speaking and comprehensive order running into five pages and it gives the complete details of the allegation supported by material against the applicants. At present only sanctioning authority Dr. Appu Kuttan K.K. has been examined to prove the order of sanction and the prosecution has an ample opportunity in its hand to lead additional evidence, if any, to prove the fact that all the relevant documents were produced before him at the time of grant of sanction and also to prove the competence of Dr. Appu Kuttan K.K.-Director to grant sanction for prosecution. In the considered opinion of this Court, midway merely on the basis of statement of one prosecution witness that is sanctioning authority the validity or otherwise of the order of sanction cannot be gone into especially when the sanction order itself is eloquent enough and particularly when the prosecution claims, and has in their disposal, the other charge-sheet listed witnesses to support the plea of their valid order of sanction to prosecute the applicants, that would amount to holding a mini trial to consider the validity or otherwise of sanction order by appreciating the evidence on record, that too on the basis of unfinished evidence of prosecution. The law doesn''t permit mini trial at this stage.

There is an additional reason to uphold the order of Special Judge that the applicants have even not whispered about the failure of justice by such an error omission/irregularity in the order of sanction as required by Section 19(3)(a) of the P.C. Act, 1988 in their application filed before the Special Judge (CBI). The said provision states as under:--

"19. Previous sanction necessary for prosecution.-

(1) ****

(2) ****

(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;"

The Supreme Court (Constitution Bench) in the matter of P.V. Narsimha Rao Vs. State (CBI/SPE), , have held that requirement of sanction under Section 19(1) of P.C. Act is a matter relating to procedure and the absence of sanction doesn''t go to the root of the jurisdiction of the Court. Their Lordships pertinently observed as under:--

"95. ...The requirement of sanction under Section 19(1) is intended as a safeguard against criminal prosecution of a public servant on the basis of malicious or frivolous allegations by the interested persons. The object underlying the said requirement is not to condone the commission of an offence by a public servant. The inapplicability of the provisions of Section 19(1) to a public servant would only mean that the intended safeguard was not intended to be made available to him. The rigour of the prohibition contained in sub-section (1) is now reduced by sub-section (3) of Section 19 because under clause (a) of sub-section (3) it is provided 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 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. This would show that the requirement of sanction under sub-section (1) of Section 19 is a matter relating to the procedure and the absence of the sanction does not go to the root of the jurisdiction of the court. It must, therefore, be held that merely because there is no authority which is competent to remove a public servant and to grant sanction for his prosecution under Section 19(1) it cannot be said that a Member of Parliament is outside the purview of the 1988 Act."

Similarly, in the matter of Parkash Singh Badal and Another Vs. State of Punjab and Others, , Their Lordships of the Supreme Court while considering sub-section (3) of Section 19 of the P.C. Act have held that the "failure of justice" should be there and that too "in the opinion of the court" paragraph 29 of the judgment reports as under:--

"29. The effect of sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In sub-section (3) the stress is on "failure of justice" and that too "in the opinion of the court". In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of jurisdiction as observed in para 95 of Narasimha Rao case. Sub-section (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the old Act [Section 19(2) of the Act] question relates to doubt about authority to grant sanction and not whether sanction is necessary."

In the matter of Rammangal Ram (Supra) Their Lordships of the Supreme Court have held in no uncertain terms that any error, omission or irregularity in sanction would include authority to grant sanction doesn''t vitiate the eventual conclusion in the trial including the conviction unless failure of justice has occurred and at the intermediary stage a criminal prosecution cannot be nullified on account of any such error or irregularity in sanction order without arriving at satisfaction that failure of justice has been occasioned.

The applicants have filed an application for discharge before the Special Judge, CBI running into nine pages claiming discharge but did not mention a word in the said application as to how such an illegality/alleged incompetence of sanctioning authority to grant sanction for prosecution has resulted in failure of justice, though the said application is very well drafted in all other respects except omitted to state as to how failure of justice has occasioned; as the application is conspicuously and blissfully silent in this regard. The applicants even in the revision petition preferred before this Court, no such ground of failure of justice on account of the alleged illegality in the order of sanction appears to have been raised.

Mr. Dangi, learned counsel for applicants, has argued before this Court that the failure of justice is apparent as in absence of sanction for prosecution the applicants could not have been prosecuted in view of the provisions contained in Section 19(1)(c) of the P.C. Act, and placed reliance upon the decision of the Supreme Court in the case of Central Bureau of Investigation v. Ashok Kumar Agrawal (2014) 14 SCC 295, in which it has been held that failure of justice must be relatable to error omission or irregularity in the grant of sanction and it must be established that the accused had suffered some disability or detriment in protections available to him and observed as under:--

"19. ...It has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian Criminal Jurisprudence. "Prejudice" is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there has been serious prejudice caused to him with respect to either of these aspects, and that the same has defeated the rights available to him under legal jurisprudence, the accused can seek relief from the court."

The Supreme Court in Ashok Kumar Agrawal (Supra) has also considered earlier decision of the Supreme Court in case of Ashok Tshering Bhutia Vs. State of Sikkim, , in which it has been held that mere omission or irregularity in sanction is not considered to be fatal unless it has resulted in the failure of justice. Paragraph 25 of the report as under:--

"25. Same remained the position regarding sanction. In the absence of anything to show that any defect or irregularity therein caused a failure of justice, the plea is without substance. A failure of justice is relatable to error, omission or irregularity in the sanction. Therefore, 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 P.C. Act, 1988 is a matter of procedure and does not go to the root of the 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 applicants have not pleaded in their application as to how the alleged illegality in the sanction order resulted into failure of justice pointing out prejudice in relation to investigation or trial and the ground projected by learned counsel for the applicants would not fall within the meaning of failure of justice under Section 19(3)(a) of the P.C. Act at this stage and thus the learned Special Judge, CBI is absolutely justified in rejecting the application filed under Section 19(1) of the P.C. Act for their discharge by the impugned order leaving the question open for the applicants to be raised at an appropriate stage, in which I do not find any jurisdictional error or illegality warranting interference in exercise of revisional jurisdiction under Section 397 read with Section 401 of the Code of Criminal Procedure.

As a fallout and consequence of the above-stated discussion, the revision petition being sans merit requires to be dismissed and is accordingly dismissed. However, it is made clear that the trial court would proceed with the trial without being influenced by any observations made hereinabove, as this Court has considered the facts of the case to decide the correctness of the impugned order and said court would decide all the points including question of sanction on its own merit in accordance with law.