Vinod Kumar And Another vs Central Bureau Of Investigation And Ors

Sujoy Paul, J

These petitions filed under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) take exception to the order dated 27.06.2019 and 28.08.2018 respectively whereby the applications preferred by the petitioners under Section 19 of the Prevention of Corruption Act, 1988 (PC Act) read with Section 197 of Cr.P.C. dated 01.09.2017 were rejected by the Court below.

The prosecution has filed a charge-sheet against the petitioners for allegedly committing offence under Section 13(1)(d) read with Section 13(2) of PC Act and Sections 120-B, 420, 467, 468 and 471 of IPC. The petitioners assailed the sanction order before this Court in Cr.R. No.593/2016 and M.Cr.C. No.5724/2016. By common order dated 12.01.2017 (Annexure-P/16) both the matters were dismissed. The petitioner - Vinod Kumar assailed the aforesaid order of this Court before the Apex Court. The order dated 21.08.2017 (Annexure-P/17) shows that the SLP was withdrawn with the liberty to raise the question of sanction before the trial Court.

Shri Ajay Mishra, learned senior counsel submits that in view of the liberty granted by Supreme Court by order dated 21.08.2017, the order of this Court dated 12.01.2017 (Annexure-P/16) has lost its significance moreso, when in the previous order dated 12.01.2017 (Annexure-P/16) many contentions of petitioners were not properly dealt with. The order impugned dated 27.06.2019 needs to be examined a afresh and for this purpose, the previous order of this Court dated 12.01.2017 will not be a hurdle.

Learned senior counsel assailed the impugned order by contending :

(i) The offences allegedly committed by petitioners are under various provisions of PC Act and the IPC. However, the sanction on the strength of which trial is going on was issued under Section 19 of the PC Act. There is no separate sanction order issued under Section 197 of Cr.P.C. and, therefore, the impugned order and the trial is liable to be quashed.

(ii) The factual matrix of this case shows that the petitioners bona fidely acted in due discharge of official duties. Accordingly, the action of respondents runs contrary to the judgments Matajog Dubey Vs. H.C. Bhari (AIR 1956 SC 44), B. Saha Vs. M.S. Kochar (1979 (4) SCC 177), Rakesh K. Mishra Vs. State of Bihar, 2006 (1) SCC 557, Center for PIL Vs. Union of India, 2005 (8) SCC 202, State of H.P. Vs. M.P. Gupta, 2004 (2) SCC 349, R.P. Khare Vs. State of M.P., 2006 (4) MPLJ 436 and State of M.P. Vs. Sheetla Sahai and others, 2009 (8) SCC 617.

(iii) The prosecution could not establish that the entire material/evidence was produced before the Sanctioning Authority for independent application of mind and in absence thereof, sanction order is illegal in view of the principles summerised in the case reported in CBI Vs. Ashok Agarwal, 2014 (14) SCC 295.

(iv) Sanction obtained on the basis of police report without producing the evidence/material collected during investigation is illegal and is in utter violation of principles laid down in the case reported in State of Karnataka Vs. Ameerjan, 2007 (11) SCC 273.

(v) The sanction order was passed by an incompetent authority. The Central Provident Fund Commissioner is not competent to grant prosecution sanction against the petitioners in view of B.K. Samal Vs. State of West Bengal, 1998 Current Law Reporter Calcutta 398.

(vi) The statutory power of grant of sanction under Section 19 could have been exercised by an officer holding the post on substantive basis and not by an Officer holding the post on current charge basis. Reliance is place on Ramratan Vs. State, AIR 1964 MP 114, S.S. Tyagi Vs. CBI, 1995 Cr.L.J.2972.

(vii) The petitioners were appointed by a statutory body, order of prosecution sanction could be passed by competent authority statutorily authorized for this purpose.

(viii) The instant prosecution without there being any valid sanction cannot be permitted to be continued in view of Baijnath Prasad Tripathi Vs. State of Bhopal, AIR 1957 SC 494 and Nanjappa Vs. State of Karnataka, 2015 (14) SCC 186.

(ix) Lastly, sub-sections (3) & (4) of Section 19 of the PC Act creates bar to challenge the legality and propriety of any order or sentence passed by the trial Court during appeal and revision and, therefore, the impugned order needs to be tested in the instant proceedings itself. Learned senior counsel in support of his aforesaid submissions filed legal synopsis.

Sounding a contra note, Shri J.K. Jain, learned Asst. Solicitor General opposed the said contention. Shri Jain urged that the petitioners have unsuccessfully challenged the sanction order in the previous round of litigation. The order of this Court dated 12.01.2017 (Annexure-P/16) makes it clear that no fault could be established in the sanction order. The petitioners withdrew the SLP from the Supreme Court with certain liberty. However, the Apex Court did not interfere with the order of this Court dated 12.01.2017 and, therefore, the said order is still in force. Shri Jain also filed brief written submission on behalf of respondent.

No other point was raised by learned counsel for the parties.

We have heard learned senior counsel for the parties at length and perused the record.

As to Point Nos.(i) & (ii) :

(a) Section 3 of PC Act empowers the Special Judge to try any offence punishable under the PC Act coupled with the power to try regarding "conspiracy" to commit or attempt to commit or any abetment of the offences specified in Clause (a). Section 40 of the PC Act envisaged that in Chapter V-A and in Sections 109 and 110 of IPC, the word "offence" means a thing punishable under the Indian Penal Code or under any special or local law as hereinafter defined. In Section 41 of IPC, a special law has been defined as "a law applicable to a particular subject". A conjoint reading of Sections 40 and 41 of IPC would show that the PC Act would be a "special law". Thus, in our considered opinion, the offence under Section 120-B and other sections for which petitioners are being tried also become punishable under the PC Act which is a special enactment for that purpose. Since sanction under Section 19 of PC Act has already been obtained, there is no separate requirement to obtain sanction under Section 197 Cr.P.C. for prosecuting the petitioners under aforesaid sections of IPC. We find support in our view from the judgment of Delhi High Court in the case reported in 2009 SCC OnLine Delhi 1992/2009 (159) DLT 636 (Dharambir Khattar Vs. CBI).

(b) Pertinently, in Dharambir Khattar (supra), the Delhi High Court considered a Full Bench judgment of Allahabad High Court dated 25.01.2006 passed in Criminal Revision (P) No.2282/2004 (Neera Yadav Vs. CBI), whereby the Full Bench negatived the contention of the accused that sanction both under Section 197 Cr.P.C. as well as under Section 19 of PC Act was necessary for prosecuting them under Section 13 of PC Act. Interestingly, a reference was made by the Full Bench to the decision of Supreme Court in Harihar Prasad Vs. State of Bihar, 1972 (3) SCC 89 and Kali Charan Mahapatra Vs. State of Orissa, 1998 (6) SCC 411. We are in respectful agreement with the view taken by the Delhi High Court in Dharamvir Khattar (supra). Thus, the first point raised by learned senior counsel deserves to be rejected.

(c) As a consequence of decision of Point No.(i) against the petitioners, Point No.(ii) deserves simple rejection because Section 197 of Cr.P.C. cannot be pressed into service for the reasons stated hereinabove.

As to Point Nos. (iii) to (ix) :

(a) Indisputably, the petitioners assailed the same sanction order in Cr.R. No.593/2016 and M.Cr.C. No.5724/2016 which were dismissed on 12.01.2017. The petitioners raised all possible grounds in the previous round of litigation but the same were repelled. The petitioner - Vinod Kumar withdrew the SLP from the Apex Court with liberty to raise the question of sanction before the trial Court. In our considered opinion, no interference was made by the Apex Court in the order of this Court dated 12.01.2017. It was the petitioners who have decided to withdraw the SLP. The Apex Court has not made any observation that the order of this Court dated 12.01.2017 will not come in the way of the petitioners if they raise the question of sanction before the trial Court. Thus, we are unable to persuade ourselves with the argument of learned senior counsel that in view of liberty given by Supreme Court to raise the question of sanction before the trial Court, the previous order of this Court dated 12.01.2017 pales into insignificance.

(b) The petitioners raised various grounds while assailing the sanction order before this Court in the previous round. Once SLP is withdrawn against the said order, it is no more open to the petitioners to urge that in the previous order, the ground raised by the petitioners were either not considered or not properly considered. The petitioners could have assailed the sanction order on all possible grounds in one go and he cannot be permitted to file petitions after petitions to assail the sanction order by contending that certain points were either not raised in the previous round or were not properly considered. We say so in view of the settled legal position. The legal journey on this aspect may be seen. In 1951 SCR 344 (Janardan Reddy Vs. State of Hyderabad), Fazal Ali J. observed as under:

"It is true that there is no such thing as the principle of constructive res judicata in criminal case, but there is such a principle as finality of judgments, which applies to criminal as well as civil cases and is implicit in every system.................."

[Emphasis Supplied]

The Apex Court in Bhagat Ram Vs. State of Rajasthan, 1972 (2) SCC 466 considered the judgments in Samba Sivam Vs. Public Prosecutor, Federation of Malaya (1950) AC 458, wherein it is held that the maxim "res judicata" is no less applicable to criminal than to civil proceedings. The Apex Court quoted the said judgment with approval in the case of Pritam Singh Vs. State of Punjab, AIR 1956 SC 415.

In view of these judgments, we have no scintilla of doubt that for the purpose of validity of sanction, we are bound by the order passed by this Court in the previous round on 12.01.2017.

The matter may be viewed from another angle. In King Vs. Wilkes, 77 CLR 511, Dixon J. opined that the question of issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the re-litigation of issues which are settled by prior litigation.

Similarly, in Marz Vs. Queen, 96 CLR 62, the High Court of Australia held as under:

".........It is enough that an issue or issues have been distinctly raised or found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding, may be made by one of them against the other"

[Emphasis Supplied]

The same view is followed by the Americal Courts regarding the issue estoppel. [See: Sealfron Vs. United States, 1948 332 US Rep 575]. These judgments were quoted with approval by Supreme Court in 1974 (3) SCC 469 (Masud Khan Vs. State of U.P.) and in State of A.P. Vs. Kokkiliagada Meerayya, 1969 (1) SCC 161.

The Point Nos.(iii) to (ix) deserve rejection in view of the previous binding order passed by this Court on 12.01.2017. The petitioners cannot be permitted to re-agitate these points in this round of litigation. For the reasons mentioned hereinabove, no case is made out for interference under Section 482 of Cr.P.C. Resultantly, both the petitions (M.Cr.C. Nos.28411/2019 and 391/2019) are dismissed. No cost.