Udai Narain vs State of U.P.through C.B.I.

Bhagwin Din, J.—This is a Criminal Revision directed against the order dated 2572001 passed by the Special Judge Anti Corruption (Central), U.P. Lucknow in Criminal Case No. 39 of 1998, State v. Udai Narain and another, by which the trial Court rejected the objection raised by the accusedrevisionist and held that the prosecution sanction dated 851996, accorded against the accused revisionist by Tarsem Lal, the Under Secretary, Government of India is complete and valid.

The facts and the circumstances giving rise to the present revision as narrated in the chargesheet are that revisionist Udai Narain was functioning as Additional Collector, Central Excise at Allahabad/Lucknow during November, 1993 and while functioning as such, on 8111993, Shri N.P. Tiwari, Dy. S.P. (CBI) accompanied by Inspectors B.C. Sharma, Ashok Babu, Haripal Sehgal, Chief Manager, PNB Sadar Bazar Branch, Lucknow, A.A. Kazmi, Dy. Manager (Vig.) PCI. RO, Lucknow, C.A. Ram Sundaram, Manager, PNB, Zonal Office, Lucknow intercepted a Fiat Car bearing Registration No. MEN14 accompanied by the revisionist and the coaccused Abdul Aziz Reshamwala at Amausi Airport and saw the transaction of Rs. Two Lacs as bribe. Shri N.P. Tiwari, Dy. S.P. (CBI) recovered a Brief Case containing 400 currency notes each off Rs. 500 denomination amounting to Rs. 2,00,000 (Rs. Two Lacs only). It is alleged that those currency notes were brought by Abdul Aziz Reshamwala for payment to the revisionist Udai Narain as demanded by him for getting settled his matter relating to seizure of Indian currency of Rs. 21,23,050 as illegal gratification other than legal remuneration from the said businessman. Shri N.P. Tiwari, Dy. S.P. (CBI) prepared the search and recovery memo, sealed the currency notes in an envelope in the presence of the witnesses and the C.B.I. Officers. He also prepared the seizure memo thereat.

On the basis of the search and seizure memo a case vide RC No. 39 (A)/93 CBI/Lucknow was registered and aforesaid N.P. Tiwari, Dy. S.P. (CBI) completed the investigation and after obtaining impugned sanctionorder, filed chargesheet in the Court of the Special Judge, Anti Corruption (Central) U.P., Lucknow.

The revisionist challenged the validity of the sanction for prosecution against him under Section 120B IPC and Sections 8, 10, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The trial Court rejected the objection and held the sanction for prosecution valid by the impugned order, hence the revision.

Heard Shri Nandit Srivastava, the learned Counsel appearing for the revisionist and Shri Bireshwar Nath, the Standing Counsel appearing for the opposite party.

Section 19(1) of the Prevention of Corruption Act, 1988 (hereinafter to be referred as ''Act'') contemplates that �No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction;

(a) in the case of a person who is 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, or that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with 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.�

The Legislature wisely has framed Section 19 of the Prevention of Corruption Act, 1988 so as to provide an umbrella of protection of Government servants against frivolous prosecution. Therefore, Section 19(1) of the Act provides that no Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant. A trial without a valid sanction has been held to be a trial without jurisdiction by the Court. Without a valid sanction, render the proceedings in the Court ab initio void.

Having the above view in the mind, the prosecution in this case obtained sanction under Section 19 of the Act by the Minister, In charge of the Finance Department contained in Annexure No. 3 to the memo of the revision. It is now wellsettled that issue of sanction should be decided first without entering into the merits of the case. Therefore, the prosecution examined P.W. 1 Tarsem Lal, the Under Secretary, Government of India. He has stated that on 851996, he was Additional Secretary in the Finance Department, Government of India. The Additional Collector, Central Excise is the Officer of GroupA. The President of India is the competent authority to remove the GroupA Officers from service. He has further stated that the sanction order granted by the President of India and under the Government of India Authentication Rules, the sanction order is prepared. He has also stated that he had sent for grant of sanction order with the C.B.I. report and other papers like statements etc. The sanction order for prosecution against accused Udai Narain was accorded by the President of India after examining the papers and having come to the conclusion that prima facie the commission of offences is made out. Though, he has stated that the sanction order was prepared by him and submitted to the president of India for consent.

In crossexamination, he has stated that for the purpose of grant of prosecution sanction, the file was not placed before the President of India but it was sent to the Finance Minister of Government of India. He has further stated that he has brought the departmental file relating to the prosecution sanction, which contains the statements of the accused, Udai Narain and Abdul Aziz Reshamwala. No papers other than these papers are on the record. He volunteered that there is a C.B.I. report in the file. The file also contains a list, which does not disclose that the statements of the witnesses were also kept in the said file. From the records, it appears that the file contained only those papers, which he had brought with him. In this file there is no mention that besides the report of the C.B.I. and the statements of the accusedpersons, any other document was on the file which was sent with the report of the S.P. (CBI) to the Minister concerned for grant of sanction for prosecution against accused Udai Narain. Not only this, he has also admitted in crossexamination that it is true that the file, which was supplied by the department, he has brought to the Court. He showed his inability to tell that the file contained any other material relating to the sanction order. He has further stated that the Minister concerned put his signature on the file and wrote nothing. He has further admitted that he himself did not take the file before the Minister concerned. He was also not present at the time the Minister concerned took the decisions to put his signature on the file. He does not know the attitude of the Minister concerned at the crucial moment, he signed the file. He also does not know as to which paper the Minister perused before he signed. He has further admitted that there is no difference between the draft sanction order sent by the C.B.I. and the draft sanction order prepared by him. He has also admitted that there is no other file except the file, which he has brought with him.

Accused Udai Narain challenged the validity of the sanction order alleged to have been granted by the Finance Minister. However, the Special Judge Anti Corruption (Central) U.P. Lucknow has refused to accept the objections raised by accused Udai Narain and has held that the sanction order obtained by the C.B.I. for prosecution of accused Udai Narain was obtained from the competent authority and the competent authority granted sanction after application of mind. Therefore, it is valid. However, it will be taken into consideration in the course of trial.

Aggrieved of the above order, accused Udai Narain has filed the present revision on variety of grounds mainly that there was no application of mind by the authority who had issued the sanction for prosecution and that the authority who had issued the prosecution sanction was not competent.

The learned Counsel appearing for the revisionist in support of submissions relied on the decisions rendered by the Hon''ble Supreme Court in R.S. Nayak v. A.R. Antualey, reported in 1984 SCC (Crl) 172, State of Tamil Nadu v. M.M. Rajendran, reported in 2000 (1) JIC 55 (SC): 1998 (9) SCC 268, Madan Mohan Singh v. State of U.P., reported in 1954, Crl. L.J. 1656 Ale Hasan v. State of U.P., reported in 1991 ACC 447 and also produced the copy of the judgment of Allahabad High Court in Crl. Revision No. 1419/78, Kedar Nath v. State of U.P., and confirmed by Hon''ble Supreme Court in Criminal Appeal No. 88 of 1979, State of U.P. Through CBI v. Kedar Nath.

On the other hand the learned Counsel appearing for the CBI has contended that the revisionist failed to establish that the authority other than the Finance Minister, Government of India was competent to accord sanction for his prosecution. Therefore, he cannot challenge the validity of the sanction order. Reliance has been placed on the decision of Hon''ble Supreme Court in Shivendra Kumar v. State of Maharashtra, reported in 2000 Crl. L.J. 4675. He has further urged that the trial Court in the impugned order has very clearly held that:

As I have mentioned above that before commencement of the trial, the prosecution sanction should be proved by the appropriate material duly proved by competent witness because in the case of R.S. Nayak v. A.R. Antualey, (supra) the Hon''ble Supreme Court has laid downs the guidelines that:

(A) The authority entitled to grant sanction must apply its mind.

(B) The authority must apply its mind to the facts of the case.

(C) The authority must apply its mind to the evidence collected and other incidental facts before according sanction.

The Hon''ble Supreme Court has further held that �a grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants.� The trial Court, therefore, must have examined the validity of prosecution sanction, having regard to the evidence led by the CBI. The trial without valid sanction is beyond the jurisdiction of the Court. Therefore, it is essential to make a decision by even the revisional Court, if the sanction for prosecution of the revisionist is valid and launching of the prosecution against him is justified or not?

In the case in hand, after hearing the parties'' Counsel, it is to be examined whether the guidelines laid down by Hon''ble the Supreme Court as above have been strictly adhered to or not by the Minister concerned while according the prosecution sanction against the revisionist. From the statement of P.W. 1 Tarsem Lal, it appears that the file which he has brought with him, in the Court, only was sent to the Minister concerned for permitting sanction for prosecution of the revisionist. He has admitted in his statement that the departmental file, which is with him, contains only the C.B.I. report and the statements of Udai Narain, the revisionist and coaccused Abdul Aziz Reshamwala. It appears to me from deposition that all the relevant material including the statements of the witnesses recorded by the Investigating Officer had not been placed before the Minister concerned for consideration. The Minister, therefore, did not have occasion to consider, before permitting the sanction for prosecution of the revisionist, the materials which prima facie make out that the revisionist has committed the offence under the Act. Mere a detailed report of the CBI and the statement of the accusedpersons cannot be held to be a complete record required to be considered for granting sanction.

In the case of State of Tamil Nadu v. M.M. Rajendran, (supra) the Hon''ble Supreme Court held that it appears that the Commissioner of Police had occasioned to consider a report of the Vigilance Department. Even if, such report is detailed one, such report be held to be the complete records required to be considered for sanction on application of mind to the relevant materials on records. Therefore, it cannot be held that the view taken by the High Court that there was no proper sanction in the instant case is without any basis.�

The other instance of nonapplication of mind by the authority in this case is that the authority (Finance Minister) had put his signature on the file and wrote nothing. Mere putting the signature on the file does not itself stand a proof that the authority had gone through the material placed before it, before according the sanction. P.W. 1 Tarsem Lal, the Under Secretary, the Government of India has stated that he was not present when the relevant papers were placed before the Minister concerned and also that he did not take file to the office of the Minister for obtaining sanction for prosecution of the revisionist. This Court in the case of Kedar Nath v. State of U.P., (Supra) held �that from the statement of Sri Kalra, it is clear that he was not present when the relevant papers were placed before the Minister concerned for obtaining his sanction for prosecution of the applicant. As such in the absence of any evidence to indicate the application of mind by the Minister concerned the mere endorsement of his signatures is in my opinion, not sufficient indication of the fact that the said Minister had perused the facts of the case, applied his mind thereto and arrived at the conclusion that sanction of prosecution should be granted.� The C.B.I. filed Criminal Appeal No. 88 of 1979 before the Hon''ble Supreme Court. The Hon''ble Supreme Court held that:

�Heard learned Counsel on both sides and perused the records.

We do not find any sound reason compelling us to interfere with the judgment of the High Court. Hence the Criminal Appeal is dismissed.�

It may also be mentioned here that the competent authority issued sanction order for prosecution of the revisionist under Section 19(1)(c) of the Act which provides that no Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction in the case of any other person, of the authority competent to remove him from his office. The revisionist was working as Additional Collector, Central Excise and Customs employed in connection with the affairs of the Union of India. Section 19(1)(a) of the Act provides that in the case of a person who is 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, no Court shall take cognizance of an offence alleged to have been committed by such officer except with the previous sanction. Thus, the sanction ought to have been accorded under Section 19(1)(a) and not under Section 19(1)(c).

The mention in the last Para of the sanction order that �President does hereby accord the sanction under Section 197 of the Code of Criminal Procedure, 1973 (Act II of 1974) and Section 19 (1)(c) of the Prevention of Corruption Act, 1988 (Act No. 49 of 1988) for the prosecution of the said Udai Narain for the said offences.....� indicates that the Minister concerned had not applied his mind. Not only this in the last lines of the same paragraph of the sanction order, it is mentioned that �any other offences punishable under other provisions of law in respect of the acts aforesaid and for taking cognizance of the offences by a Court of competent jurisdiction.� The inclusion of these words suggests that the authority was not satisfied with the material information that accused Udai Narain (revisionist) has committed an offence punishable under Section 120B IPC, and Sections 8, 10 and 13(2) read with Section 13(1)(d) of P.C. Act, 1988 and no other offence alleged to have been committed by him. For that reason, in the prosecution order the words �and any other offences punishable under other provisions of law� have crept in. This Court has held in Deewan Chand v. State of U.P., reported in 1991 Crl. L.J. 3239, that �the sanction which has been reproduced above clearly mentions the facts and also goes to show that the sanction was accorded on a consideration of the said facts and material produced before Shri P. Sahai. It cannot be said that the sanction is a bald one and it does not contain the requisite facts before the General Manager and that the General Manager has not applied his mind to the facts of the case; that he accorded sanction in a mechanical manner just by signing on the sanction prepared by the office. The Investigating Officer desired sanction under Section 6(1)(c) of the Prevention of Corruption Act. Therefore, there was no question of the appellant being tried under any other provision of law.� In this aspect of the matter it is not understood as to why the words �and any other offences punishable under other provisions of law in respect of the acts aforesaid� were added towards the end of paragraph 32.� In this case as well, the C.B.I. report was placed before the Minister concerned for consideration and sanction of the prosecution of the revisionist which indicates that the offence has been committed by an employee of Central Government then, there was no occasion for the Minister concerned to add in the last that the sanction is accorded under Section 19(1)(c) of the P.C. Act and also accorded sanction for prosecution of the revisionist for any other offence punishable under other provisions of law in respect of the acts aforesaid.

It is evident from the above that no other materials except the C.B.I. report and the statements of revisionist Udai Narain and accused Abdul Aziz Reshamwala were produced before the Minister concerned. The statements of the witnesses recorded by the Investigating Officer or other material which were necessary to be considered before according prosecution sanction must have been gone through, were not produced. Thus, there was no application of mind by the Minister concerned while sanctioning prosecution of the revisionist who is a public servant.

Shri Bireshwar Nath, the learned Counsel appearing for the C.B.I. urged that the Hon''ble Supreme Court in Sivendra Kumar v. State of Maharashtra, (supra) has held that �the protection is not intended to be an absolute and unqualified immunity against criminal prosecution. In a case where it is seen that a sanction order has been passed by an authority who is competent under the laws to represent the State Government, the burden is heavy on the party who challenges the authority of such order to show that the authority competent to pass the order of sanction is somebody else and not the officer who has passed the sanction order in question.� In the aforesaid cited case, the competence of the authority who has passed the Sanction order was disputed. In the case in hand, the competence of the Finance Minister who sanctioned the prosecution of the revisionist has not been challenged. The validity of sanction order in this case has been assailed on the ground that relevant material had not been produced before the Minister concerned and he did not apply his mind while he granted sanction for prosecution of the revisionist.

In view of the above facts and legal proposition of law, I am of the view that the impugned sanction order is not valid and deserves to be quashed.

As the observation by the Special Judge Anti Corruption (Central) U.P., Lucknow holding that;

is not justified. The fact whether the sanctioning authority had applied its mind has to be decided at this very threshold of the commencement of the trial because no prosecution can be launched against a public servant without previous valid sanction. The order dated 2572000 passed by the Special Judge, Anti Corruption (Central) U.P., Lucknow thus, deserves to be quashed.

The revision is allowed. The impugned order dated 2572000 is quashed and the prosecution sanction dated 851996 is also held not valid and the same is hereby, quashed. The C.B.I. however will be at liberty to obtain valid sanction for prosecution of the revisionist afresh and launch prosecution according to law.

Revision allowed.