M.K. Gupta vs Cbi Ghaziabad
2013 Latest Caselaw 6103 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
COURT NO. 50
 

 
CRIMINAL REVISION NO. 1859 OF 2013
 

 
Revisionist - M. K. Gupta
 

 
Opposite parites : C.B.I., Ghaziabad
 

 
Counsel for the Revisionist  : Sri Manish Tiwary
 

 
Counsel for opposite party : Sri Anurag Khanna
 

 
Hon'ble Anil Kumar Sharma, J
 

 
	Heard parties' counsel at length and perused the record.
 
2.	This revision challenges the order dated 14.6.2013 passed by Special Judge, CBI 1st, Ghaziabad on the application of the revisionist for dropping the proceedings of Special Case no. 10/2011 CBI Vs. Mahendra Kumar Gupta u/s 7 Prevention of Corruption Act for want of sanction of his prosecution.
 
3.	Facts

germane to the revision that as culled out from the affidavit of the revisionist and counter affidavit filed by the opposite party are that pursuant to the complaint dated 21.8.1993 of complainant Prem Pal Varshney case at Crime no. RC-17(A)/93-DAD was registered u/s 7 Prevention of Corruption Act under the orders of Superintendent of Police, CBI, SPE, Dehradun. The revisionist was caught red handed by the CBI while demanding and accepting bribe of Rs. 2,500/- from the complainant in presence of panch witnesses. The investigation culminated in to closure report, but the same was rejected by the Special Judge, Anti-Corruption, Dehradun vide order dated 29.8.1998 by taking cognizance against the revisionist he was summoned. During pendency of the investigation a departmental inquiry was conducted and the revisionist was exonerated from the charges leveled against him which were quite similar to the allegations made in the instant case. The revisionist challenged the order in Criminal Revision no. 1127 of 1999 in this Court, which had been finally dismissed on 27.5.2013. Thereafter on 14.6.2013 an application was filed by the revisionist in the trial Court for dropping the proceedings for want of sanction of his prosecution inter alia stating that after his arrest on 24.8.1993, he was released on bail by the CBI. Thereafter the department suspended him, an enquiry was instituted. He was exonerated of the charges, his suspension was revoked and he joined duties on 24.7.1995. On the date when the Court took cognizance against him he was in service. It has been further stated as per provisions of Section 19 of the Prevention of Corruption Act, sanction for prosecution is necessary before taking cognizance against the accused for the offence punishable under Section 7 of the Act. Since at the time of taking cognizance by the Court or till today there was or is no sanction for his prosecution, therefore, he cannot be prosecuted in the case. He has concluded that he was not aware of the legal position, so he could not take this plea earlier. This application of the revisionist was disposed of by the learned trial Court on 14.6.2013 with the following order:

"Accused is not present. Learned Special Judge, CBI, Dehradun had summoned the accused in the year 1998. The revision of the order of Special Judge was dismissed by Hon'ble High Court on 14.03.2012. In the given circumstances, accused must appear in Court in person though he is appearing through learned counsel. This Court is not empowered to revise its own order which ever it was passed by learned predecessor. The order of this Court as told by learned counsel is under challenge before Hon'ble High Court hence further issuance of process is kept in abeyance till next date for want of further direction, if any by Hon'ble High Court."

4. Aggrieved with the above order, the revisionist has come up in revision.

5. I have heard Sri Manish Tiwary, learned counsel for the revisionist and Sri Anurag Khanna, learned counsel for the CBI at length and perused the record as well as the law cited at the Bar.

6. The above history of the case shows that the revisionist was aware about the entire facts of the case right from the order of taking cognizance by the Court after rejecting closure report submitted by the opposite party, as his application for exemption of personal appearance was rejected on 19.3.1999 and had challenged the orders of the trial Court taking cognizance in Criminal Revision no. 1527 of 1999, wherein the proceedings of the case were stayed initially for three months, but the interim order stood extended from time to time and ultimately the revision was dismissed after hearing parties' counsel on 27.5.2013. Admittedly for about 15 years the revisionist did not at any point of time raised the plea regarding absence of sanction of his prosecution u/s 19 of the Act. In the application dated 14.6.2013 and in the affidavit filed in the revision, the revisionist has stated that he was not aware of the fact and law regarding necessary previous sanction under the Prevention of Corruption Act. The revisionist is literate person and was discharging duties of a public servant, so he cannot be equated with a rustic litigant. It is trite that ignorance of law is no excuse. In order to appreciate the arguments advanced by the learned counsel for the revisionist, it is necessary to have a look at Section 19 of Prevention of Corruption Act, which reads, thus -

"19. Previous sanction necessary for prosecution - (1) 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, of that Government;

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

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub- section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(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;

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation.-- For the purposes of this section,--

(a) sanction includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

No doubt as per the above provisions previous sanction of the competent authority is necessary for prosecution of a public servant for taking cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15. However, sub-section (4) of the Act provides that in determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. In the instant case, the Court has taken cognizance on the closure report submitted after investigation by the CBI. Not only Criminal Revision no. 1127 of 1999 was filed by the revisionist in this Court but he has also filed two other applications under Section 482 being numbers 15116 and 19594 of 2013 wherein he has prayed for quashing the order dated 19.4.2013 and for stay of the order dated 22.5.2013 respectively passed by the trial Court, but in none of them he did not take plea regarding absence of sanction. Further Sub-section 19 (3) (a) of the Act 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 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. Thus, to sustain the plea of the revisionist he has to demonstrate that failure of justice has occasioned for want of previous sanction for his prosecution.

7. Learned counsel for the revisionist has vehemently argued, that the revisionist has been exonerated in the departmental proceedings of the charges levelled against him pertaining to the incident in question, and in such circumstances the competent authority could not have granted sanction for his prosecution in the case. Per contra learned counsel for the opposite party has submitted that this fact would not affect the criminal case pending against the revisionist. In support of his arguments, learned counsel for the revisionist has placed reliance on the cases of Abdul Wahab Ansari Vs. State of Bihar 2000 (8) SCC 500, P. K. Pradhan Vs. State of Sikkim Represented by the The CBI 2001 (6) SCC 704 and Sankaran Moitra Vs. Sadhna Das and another 2006 (4) SCC 584. All these cases pertain to the provisions of Section 197 Cr. P. C. Suffice it to say that the provisions of Section 197 of the Code are not in pari materia with the provisions of Section 19 of the Prevention of Corruption Act and as such the above cases would not help the revisionist at all, as is clear from the provisions of Sub-section 19 (4) which empowers the Court to have regard of the fact whether the objection could and should have been raised at any earlier stage in the proceeding while considering the issue pertaining to absence of, or any error, omission or irregularity in such sanction. No such lever had been to the Court by the Legislature in Section 197 Code of Criminal Procedure.

8. It is not be out place to refer to the case of Lal singh Vs. State of Gujarat and another JT 1998 (9) SC 467, where a Bench of three Hon'ble Judges considered the plea of the appellant raised for the first time in appeal whether in terms of sub-section (2) of Section 20-A of Terrorist and Disruptive Activities (Prevention) Act, 1987, the Court having taken cognizance of a defective sanction order, the trial would vitiate? The Hon'ble Court answered the question in negative after noticing the provisions of Section 465 Cr. P. C. Sub-section (2) of this Section 465 of the Code is in pari materia with ingredients of sub-section (4) of Section 19 of the Prevention of Corruption Act. It was held that when the objection with regard to defective sanction could and should have been raised at an earlier stage in the proceedings and has not been raised, mere error or irregularity in any sanction of prosecution becomes ignorable. The instant case pertains to absence of sanction for prosecution of the revision, but he did not take this plea for about 15 years and enjoyed the interim order of this Court for such a long period. Absence of previous sanction for prosecution is also covered by Section 19 (4) of the Prevention of Corruption Act, so it ought to have been taken by the revisionist at the earliest i. e. in Criminal Revision no. 1127 of 1999. He is in the habit of rushing to this Court even against the procedural interlocutory orders of the trial Court. Thus, it cannot be believed that he had no knowledge about the fact and law regarding the previous sanction under the Prevention of Corruption Act.

9. Now as regards exoneration of the revisionist in departmental enquiry pertaining to accusations levelled against him in the instant case in concerned learned counsel for the revisionist has placed heavy reliance on the case of P. S. Rajya Vs. State of Bihar 1996 ((9) SCC 1, wherein on identical charges the appellant was exonerated in departmental proceedings and on peculiar facts of the case, the criminal proceedings initiated against him were quashed. On the other hand, learned counsel for the CBI placing reliance on the case of State of N. C. T. of Delhi Vs. Ajay Kumar Tyagi 2012 (8) SCALE 424 has contended that the Apex Court after considering the ratio given in P. S. Rajya (Supra) and several other cases has clearly held that the exoneration in the departmental proceedings ipso facto would not result into the quashing of the criminal prosecution. I have carefully perused both the reports and has no hesitation in accepting the argument of the learned counsel for the opposite party. In the case of Ajay Kumar Tyagi (supra), the Apex Court after referring to various cases has held that the decision in case of P. S. Rajya (Supra) does not lay down any proposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or the evidence has to be quashed. Thus, the ratio given in the case of Ajay Kumar Tyagi (Supra) applies with full force on the facts of the instant case.

10. For the foregoing reasons, I conclude that the learned trial Court has not at all erred in declining the prayer of the revisionist as contained in his application dated 14.6.2013. Thus the revision fails and is accordingly dismissed.

(Anil Kumar Sharma, J)

September 27, 2013

Imroz/