Bombay High Court
Romesh Mirakhur vs The State Of Maharashtra And Anr on 12 October, 2017
Bench: Ranjit More
cr.wp 59.16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 59 OF 2016
Shri Romesh Mirakhur, age 54 years ]
Indian Inhabitant of Mumbai having ]
Office at Bank of India, Star House -2 C- ]
4, G, Block, 6th Floor, Bandra Kurla ]
Complex, Bandra (East), Mumbai 400 ]
051, and residing at C-102, Bank of ]
India, Nirman Towers, Rajmata Jijabai ]
Road, Andheri (E), Mumbai 400 093. ] .....Petitioner
(Orig.Accused No.21 in
CBI Spl.Case No.117 of
2013)
Versus
1 The State of Maharashtra ]
1. Central Bureau of Investigation, ]
A Economic Offences Wing, Mumbai, ]
having office at Universal Insurance ]
Building 4th Floor, Sir P.M.Road, Fort, ]
Mumbai. ]
2 Shri Tarlochan Singh, age 61 years, ]
Indian Inhabitant of Mumbai, General ]
Manager and Competent Authority ]
(since Retired), Bank of India, Main ]
Branch, M. G. Road, Fort, Mumbai - ]
400 001. ]
3 Bank of India, Main Branch, ]
M.G.Road,Fort, Mumbai - 400001. ] .....Respondents
Mr. Manoj S. Mohite i/b. Mr.Shantanu Rajendra Phanse, advocate for the
petitioner.
Mrs. P. P. Shinde, APP for the State.
Ms. Rebecca Gonsalvez, advocate for the CBI.
Mrs.Racheeta Dhuru along with Ms.Minal S. Naik i/b. Nahush Shah Legal,
advocates for the respondent Nos. 2 and 3.
Shubhada S Kadam 1/22
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CORAM : RANJIT MORE &
SMT.SADHANA JADHAV, JJ.
DATE OF RESERVING : 13th SEPTEMBER, 2017.
DATE OF PRONOUNCEMENT : 12th OCTOBER, 2017.
JUDGMENT : (Per Ranjit More, J.)
Rule. Rule is made returnable forthwith and by consent of
learned counsel for the respective parties, the matter is heard finally.
2. Heard Mr. Mohite, learned counsel for the petitioner,
Ms.Gonsalvez, learned counsel for the Central Bureau of Investigation
(CBI), Mrs.Dhuru, learned counsel for the respondent Nos. 2 and 3 and
Ms.Shinde, learned APP for the State.
3. The petitioner has invoked the jurisdiction of this Court under
Article 226 of the Constitution of India and Section 482 of the Code of
Criminal Procedure, 1973, to challenge the order dated 22 nd January,
2015, passed by the respondent No.2- the then General Manager and
competent authority of Bank of India according sanction for the
petitioner's prosecution under Section 19(1) (c) of the Prevention of
Corruption Act, 1988 (for the sake of brevity " the PC Act") and Section
120-B read with Section 420, 467, 468 and 471 of the Indian Penal Code,
1860 (for the sake of brevity "the IPC").
Shubhada S Kadam 2/22
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4. On 24th February, 2012, FIR bearing RC NO.5/E/2012 was
registered by the CBI-EOW under Sections 120-B, 420, 467, 468 and 471
of the IPC on the written complaint of Shibaram Naskar, Dy.Zonal
Manager, Mumbai Zone, Bank of India, Mumbai, against Mr.Rajesh
Choradia, Mr. Sachin Shah, Mr.Sajjan Kumar and Mr.Govind Salgaonkar
and others. During investigation, the role of the petitioner in the said
crime was surfaced and, therefore, the petitioner was arraigned as
accused No.21. On 10th September, 2013, the CBI applied to the Bank of
India for sanction to prosecute petitioner under Section 19 of the PC Act.
On 30th December, 2013, the CBI filed charge-sheet in the Court of the
Special Judge against the accused including the present petitioner in the
said CR for the offences punishable under Section 120-B read with
Sections 420, 467, 468 and 471 of the IPC and Section 13(2) read with
Section 13(1)(d) of the PC Act. The charge-sheet makes a reference that
so far as the petitioner is concerned, his sanction order is awaited and
the same will be filed in the Special Court immediately on its receipt.
The allegation against the petitioner is that, though he was aware about
the negotiations of bills under the forged Letters of Credit, he allowed
negotiation of the said bills in favour of the 3rd party (non-customer of
the Bank) without following Bank's guidelines, KYC norms, verifying
genuineness of business and in the absence of important documents
such as delivery challan duly signed by the applicant of LC for receipt of
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goods and also failed to report the same to higher authorities as
attempted fraud.
5. The case of the petitioner is that the competent authority
refused sanction to prosecute him in the subject FIR on three occasions
viz. 26th October, 2013, 1st March, 2014 and 25th July, 2014. Despite this,
on the 4th occasion, the competent authority granted sanction to
prosecute him by sanction order dated 22 nd January, 2015. It is the
petitioner's contention that once a sanction to prosecute is refused by
the competent authority by passing an order, the same cannot be
reviewed or reconsidered subsequently in the absence of change in
circumstances/material.
6. On the contrary, the stand of the respondent No.2-competent
authority, respondent No.3-Bank of India and CBI is that, there is only
one sanction order authorizing the petitioner's prosecution which is
impugned in the present petition and, earlier orders, which the
petitioner has referred as sanctions orders, are not at all sanction orders
but they are simply tentative views regarding petitioner's prosecution
given by the competent authority for the consideration of the higher
authorities of the Bank.
Shubhada S Kadam 4/22
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7. Mr. Mohite, learned counsel for the petitioner, took us
through the documents at Exhibits "A, B and C", which he obtained under
the Right to Information Act, 2005 and submitted that the competent
authority in an unequivocal terms rejected the sanction for the
petitioner's prosecution. He submitted that there is no change in the
circumstances or any additional material against the petitioner so as to
warrant sanction for the petitioner's prosecution at the subsequent
stage. He relied upon the decision in State of Himachal Pradesh
versus Nishant Sareen (2010) 14 SCC 527 in support of his contention
in this regard and submitted that the impugned decision deserves to be
quashed and set-aside.
8. Mrs. Dhuru, learned counsel for the respondent Nos.2 and 3
contested the petition. She relied upon the affidavit of the respondent
No.2 filed in reply to the petition. She maintained that there is only one
order of sanction, which is impugned in the present petition and, the
earlier orders, which the petitioner claimed to be orders refusing
sanction to prosecute him, are merely tentative views and cannot be
termed as sanction orders.
9. Ms. Gonsalvez, learned counsel for the CBI, placed on record
confidential correspondence between the Bank of India, CBI and the
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Central Vigilance Commission (for the sake of brevity "the CVC") and
pointed out that since there was a difference of opinion, the matter
regarding the petitioner's sanction was referred to the CVC, which
ultimately advised grant of sanction for the petitioner's prosecution for
the said offences. Ms. Gonsalvez also maintained that there is only one
sanction, which is impugned in the present petition and, the earlier
orders relied upon the petitioner, are only tentative views/internal
correspondence. It is reiterated by Ms. Gonsalvez that the earlier
communications indicating refusal to grant sanction are only expression
of opinion. She submitted that the impugned sanction was received by
the CBI on 30th January, 2015 from the Chief Vigilance Officer (for the
sake of brevity "the CVO") -Bank of India. Thereafter, the CBI placed the
sanction order on record in CBI Special Case no.117 of 2013 and the
Court took cognizance and issued summons to the petitioner on 9 th
September, 2015. She submitted that since the Court has taken
cognizance of the sanction order and issued summons to the petitioner,
the sanction order can only be challenged at the stage of trial. She has
relied upon Division Bench decision of this Court in Vivek Batra versus
Union of India and ors. 2014 CRI. L.J.450. and and the decisions of the
Apex Court in Dinesh Kumar versus Chairman, Airport Authority of
India and anr. AIR 2012 SCC 858 and C.B.I. Versus Ashok Kumar
Aggarwal AIR 2014 SCC 827 .
Shubhada S Kadam 6/22
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10. We have gone through the petition along with the annexures
thereto especially "Exhibits A, B and C", under which, the petitioner
claimed that sanction to prosecute him had been refused. "Exhibit A" is
a tabular chart in respect of the petitioner in the subject FIR registered
by the CBI-EOW Mumbai. The first column pertains to allegations
levelled by CBI, the 2nd column is about the comments of the competent
authority and the 3rd column is about comments of the CVO. The
allegations of the CBI in the first column are noted by the competent
authority in the second column. So far as the 3 rd column is concerned,
the same is blank and there are no notings as such. The chart runs into
13 pages viz. page Nos. 48 to 61. At the end of the chart, in the 2 nd
column, the General Manager, National Banking Group (W),who is the
competent authority has signed the same and recorded the comment
that he is not inclined to grant sanction for prosecution of the
petitioner. The document at "Exhibit B" is also a tabular chart in respect
of the observations of the CVC dated 5th February, 2014, pertaining to
the petitioner in the matter of fraud in discounting of letters of credit at
Chakala Branch. This chart has three columns. The 1st column is about
CVC observations, the 2nd column is about factual position and the 3 rd
column is about comments of the competent authority. The chart runs
into 3 pages. At the end of the 3 rd column of the said chart, the
competent authority opined that the Bank has initiated departmental
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action against the petitioner in consultation with CVC for service
misconduct reportedly committed by him and that the Bank is free to
impose any penalty permissible under the Rules, that too after
consulting the CVC, he did not find any ground and justification to accord
sanction for prosecution against the petitioner. The 3 rd document runs
into 13 pages viz. pages 66 to 78. In the first paragraph of this
document, it is mentioned that it has been brought to the notice of the
competent authority that the bank has been advised by the CVC to
accord sanction for prosecution against the petitioner on the grounds
mentioned in clause (1) of the chart. In the second paragraph, it is stated
that the comments of the competent authority are being given on the
basis of the Bank's record. Thus, this document has two columns. The
1st column is about ground for according sanction for prosecution as per
advice of Expert Committee of CVC and the 2nd column is about the
comments of the competent authority. At paragraph 6 of the said
document, the competent authority has opined to decline sanction for
petitioner's prosecution.
11. The confidential correspondence placed on record by Ms.
Gonsalvez revealed that Bank of India, vide their letter dated
19th November, 2013, informed the CBI that the matter has been
referred to CVC for their advise regarding sanction for prosecution
Shubhada S Kadam 8/22
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against the petitioner. The CVC, thereafter, by its letter dated 9 th January,
2014, informed the CBI that a joint meeting had been convened on
22nd January, 2014 with the Joint Director, CBI, EO-Zone II, Mumbai and
the CVO, Bank of India. Accordingly, the joint meeting was held on
22nd January, 2014, in the office of the CVC, New Delhi, which was
attended by the Joint Director, CBI, EO-Zone II, Mumbai, I.O. and
concerned officials from the Bank of India. After analyzing the
arguments of the respective parties in the joint meeting and after
examining the case in its entirety, the CVC observed that there appears
to be a case for prosecution against the petitioner and advised sanction
for the petitioner's prosecution and, accordingly, the CVC vide their
letter dated 5th February, 2014 informed the CBI and Bank of India about
the same. The CVC, thereafter, by its letter dated 7 th May, 2014, informed
the CBI that a meeting of a Committee of Experts proposed to be chaired
by the Vigilance Commissioner, CVC, has been proposed on 20 th May,
2014. Accordingly, the meeting of Committee of Experts was held in the
office of the CVC, New Delhi on 20 th May, 2014, which was attended by
the Joint Director, CBI, EO-Zone II, Mumbai, I.O. and concerned officials
from the Bank of India. In pursuance of the decision taken in this
meeting, the CVC vide its letter dated 16th June, 2014, informed the CBI
and Bank of India that it had accepted the recommendations of the
Expert Committee and advised grant of sanction for prosecution against
Shubhada S Kadam 9/22
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the petitioner. The respondent No.2 thereafter passed a detailed order
granting sanction for the petitioner's prosecution on 22 nd January, 2015,
which was forwarded to the CBI on 30th January, 2015 and the CBI placed
the same on record in CBI Special Case No.117 of 2013 on 11 th March,
2015. The Court, thereafter, took cognizance of the same and issued
summons to the petitioner on 9th September, 2015.
12. In the light of the above correspondence between the CVC,
Bank of India and CBI, let us consider the rival contentions of the parties.
The petitioner claimed that earlier on three occasions,
sanction to prosecute him was refused and by the impugned order,
sanction for his prosecution was granted without there being any change
in circumstances/any additional material. On the contrary, it is the
stand of respondents that there is only one sanction order and, the
documents, on which, the petitioner has relied are only internal
correspondence.
The question similar to the one involved in the present
petition fell for consideration before a Division Bench of this Court in
Vivek Batra (supra). In this case, the petitioner argued that by an order
dated 27th April, 2012, the competent authority refused sanction to
prosecute him. However, subsequently a new incumbent acting as a
competent authority issued order dated 9th October, 2012, thereby
Shubhada S Kadam 10/22
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granting sanction for petitioner's prosecution and that order is
impugned in the petition. The argument of the petitioner was that the
second decision dated 9th October, 2012 is vitiated in law as the said
decision amounts to review of the order dated 27th April, 2012, refusing
sanction to prosecute the petitioner. It was also further argued that the
new incumbent acting as competent authority could not have reviewed
or reconsidered the earlier decision to refuse sanction save and except
in exceptional circumstances.
Per contra, the learned counsel for the respondent-Union of
India submitted that there is no merit in the petitioner's argument that
on 27th April, 2012, the sanctioning authority passed an order refusing
the sanction for his prosecution. It was submitted that there was no
such order or decision and, therefore, there was no question of it being
reviewed by the sanctioning authority. It was further submitted that
there was only one order on the point of sanction and that is the
impugned order dated 9th October, 2012, granting sanction to prosecute
the petitioner. Prior to this, there has been no order or decision, but the
file noting would indicate that it was a continuing process of
deliberations and discussions. Such deliberations and discussions at a
departmental level is a usual and normal thing. It was further submitted
that the notings in the file during the course of department discussions
and deliberations do not constitute an order or decision of the
Shubhada S Kadam 11/22
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Government or the competent authority. At the best, these notings are
opinions of several officers in the concerned Department.
The Division Bench relied upon the decision of a Five Judge
Constitutional Bench of the Apex Court in Bachhittar Singh v. State of
Punjab reported in AIR 1963 SC 395 and especially paragraphs 9 and 10
therein, which reads as follows :
"9. The question, therefore, is whether he did in fact make
such an order. Merely writing something on the file does
not amount to an order. Before something amounts to an
order of the State Government two things are necessary.
The order has to be expressed in the name of the
Governor as required by cl.(1) of Art.166 and then it has to
be communicated. As already indicated, no formal order
modifying the decision of the Revenue Secretary was ever
made. Until such an order is drawn up the State
Government cannot, in our opinion, be regarded as bound
by what was stated in the file. As long as the matter rested
with him the Revenue Minister could well score out his
remarks or minutes on the file and write fresh ones.
10. The business of State is a complicated one and has
necessarily to be conducted through the agency of a larger
number of officials and authorities. The Constitution,
therefore, requires and so did the Rules of Business
framed by the Rajpramukh of Pepsu provide, that the
action must be taken by the authority concerned in the
name of the Rajpramukh. It is not till this formality is
observed that the action can be regarded as that of the
State or here, by the Rajpramukh. We may further observe
that, constitutionally speaking, the Minister is no more than
an adviser and that the head of the State, the Governor or
Rajpramukh, is to act with the aid and advice of his Council
of Ministers. Therefore, until such advice is accepted by the
Shubhada S Kadam 12/22
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Governor whatever the Minister or the Council of Ministers
may say in regard to a particular matter does not become
the action of the State until the advice of the Council of
Ministers is accepted or deemed to be accepted by the
Head of the State. Indeed, it is possible that after
expressing one opinion about a particular matter at a
particular stage a Minister or the Council of Ministers may
express quite a different opinion, one which may be
completely opposed to the earlier opinion. Which of them
can be regarded as the 'order' of the State Government?
Therefore, to make the opinion amount to a decision of the
Government it must be communicated to the person
concerned. In this connection we may quote the following
from the judgment of this Court in the State of Punjab v.
Sodhi Sukhdev Singh, AIR 1961 SC 493 at P.512:
"Mr.Gopal Singh attempted to argue that before the final
order was passed the Council of Ministers had decided to
accept the respondent's representation and to reinstate
him, and that, according to him, the respondent seeks to
prove by calling the two original orders. We are unable to
understand this argument. Even if the Council of Ministers
had provisionally decided to reinstate the respondent that
would not prevent the Council from reconsidering the
matter and coming to a contrary conclusion later on, until a
final decision is reached by them and is communicated to
the Rajpramukh in the form of advice and acted upon by
him by issuing an order in that behalf to the respondent."
Thus it is of the essence that the order has to be
communicated to the person who would be affected by that
order before the State and that person can be bound by
that order. For, until the order is communicated to the
person affected by it, it would be open to the Council of
Ministers to consider the matter over and over against and,
therefore, till its communication the order cannot be
regarded as anything more than provisional in character."
Shubhada S Kadam 13/22
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The Division Bench thereafter made following observations in
paragraph 41 of its judgment which reads as under :
"41. We have seen this note and very carefully. What we
find from perusal thereof is that the DOP&T has not agreed
with the views of the Department of Finance. Rather it
cautions and once again reiterates the position that
insufficiency of evidence collected by the CBI is a matter
which can be tested in a Court of law. That is not within the
province of the Sanctioning Authority. The views of the
DOP&T are conveyed to the Department of Finance and
the Department of Revenue in order to enable the
Disciplinary Authority i.e. Minister of Finance to take a final
decision in the matter and pass a final speaking order. This
communication far from directing any review or seeking to
review a decision or order earlier made, reiterates the legal
position. It outlines the procedure for passing an order or
taking a decision in the matter. It is nothing but a view of the
DOP&T expressed in writing and communicated to the
Department of Finance. Thus, from the available record one
cannot find any order refusing the sanction, but only issuing
an administrative warning or imposing minor penalty on the
Petitioner. There is no such order as is claimed. Therefore,
it is not as if the circular dated 03.05.2012 being issued by
the DOP&T that an exercise in reviewing the earlier
decision or order particularly refusing the sanction
commenced. There was no order and hence, no question
arises of its review. The only order that we find is the
order granting the sanction and that is made on 09.10.2012.
It is duly communicated. Once this is the only order, then,
there is no question of reviewing any earlier order or
decision. If the order dated 09.10.2012 is the original order
and not an order in review as claimed, then, the whole
foundation for the argument of absence of sanction must
fail. This edifice is built upon only the file notings and which
according to Mr. Desai culminate in a final order refusing
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the sanction. Once we have found on perusal of all files that
there are several notings, views and opinions and there is
no order as claimed and particularly dated 27.04.2012,
then, the order of sanction dated 09.10.2012 is the only
order. It is not an order made in review. In our view, it is an
order made after considering all views and opinions and
carefully and fully examining the materials."
Thus the Division Bench came to the conclusion that the
order dated 9th October, 2012 is the only order of sanction for
prosecution and there is no other order as claimed by the petitioner
particularly order dated 27th April, 2012.
13. Reverting to the present case, in order to see whether the
documents at Exhibits A, B and C are the orders refusing sanction to
prosecute petitioner or there is only one order according sanction to
prosecute the petitioner, which is impugned in the petition, a reference
must be made to the document at "Exhibit E" annexed by the petitioner
to the petition. This document is a letter dated 5 th February, 2015,
written by the petitioner to the Public Information Officer, Bank of India,
Head Office, under the Right to Information Act, 2005. By this letter, the
petitioner sought information of several queries. For our purpose,
queries at serial Nos. 2, 3 and 7.a. are relevant which are reproduced
herein below :
"1....
2. Whether at any point of time the sanction for prosecution of the
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applicant was declined by the competent authority of the Bank? If
yes please advise the number of times it was declined and provide
copy of the findings/comments, letter/communication etc.
declining the sanction for prosecution by the competent Authority
of the Bank.
3. After declining the sanction for prosecution of the Applicant,
whether the competent/sanctioning/disciplinary authority has
reviewed their earlier decision of declining the sanction for
prosecution of the applicant? If yes, please provide copy of
communication issued by such authority giving sanction for
prosecution of the applicant.
4....
7....
a. Dates on which the request for sanction of prosecution in the
above cases of Chakala Branch was declined by the General
Manager (NBG West) sometime during the period from 01.9.2013
to till date."
At "Exhibit F" is a letter dated 26 th February, 2015, by which,
the Central Public Information Officer-Bank of India replied to the above
letter of the petitioner dated 5th February, 2015. The reply to query Nos.1
to 3 is as follows:
"Reply to points nos 1 to 3 : The Competent Authority had
offered his tentative views on sanction for prosecution which
were reviewed on 3 occasions in consultation with
CBI/CVC/Ministry of Finance (DFS). As regards the copies of
the statements of witnesses and other papers which you have
sought for, please note that the same cannot be parted
with, as the papers sought for are related to the report of
Central Bureau of Investigation (CBI), an institution
exempted from the purview of RTI Act as per second
schedule of the Act. For the aforesaid reasons we are
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unable to provide the information sought for in these
points."
Reply to query No.7.a. is as under :
"Reply to point No.7(b) : The tentative views regarding
prosecution was given by the Controlling Authority, General
Manager (NBG West) on 26.10.2013, 01.03.2014 and
25.07.2014."
Thus the above reply makes it clear that the documents at
Exhibits A, B and C, on which the petitioner has heavily relied upon in
order to contend that earlier sanction for his prosecution was rejected,
are only tentative views of the competent authority and they are not
final orders refusing sanction for his prosecution.
14. Be that as it may, as referred above the "Exhibits A, B and C"
are in tabular chart, in which, allegations of the CBI against the
petitioner are mentioned and the same are commented upon by the
competent authority. However, in pursuant of this tabular chart, neither
separate orders were passed by the competent authority nor the same
was communicated to the CBI, therefore, we are of the considered
opinion that documents at "Exhibits A, B and C" are merely tentative
views of the competent authority or departmental notings and, by no
stretch of imagination, they can be construed as orders refusing
sanction for the petitioner's prosecution.
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15. The record revealed that the respondent No.2-competent
authority passed the sanction order against the petitioner and
communicated the same to the CVO, Head Office, Vigilance Department
by his letter dated 22nd January, 2015. The CVO, in turn, by his letter
dated 30th January, 2015 forwarded the sanction order to the CBI.
Thereafter, the CBI filed the same on record in CBI Special Case No.117
of 2013. Thus, this order is the only order which is communicated to the
CBI on the basis of which cognizance is taken by the Special Court and
process is issued against the petitioner.
16. This takes us to consider the decision of the Apex Court in
Nishant Sareen (supra) cited by Mr. Mohite, learned counsel for the
petitioner. The Apex Court has made the following observations in
paragraphs 12 and 13 which are reproduced hereinbelow:
"12. It is true that the Government in the matter of grant or
refusal to grant sanction exercises statutory power and that
would not mean that power once exercised cannot be exercised
again or at a subsequent stage in the absence of express power
of review in no circumstance whatsoever. The power of review,
however, is not unbridled or unrestricted. It seems to us sound
principle to follow that once the statutory power under Section
19 of the 1988 Act or Section 197 of the Code has been exercised
by the Government or the competent authority, as the case may
be, it is not permissible for the sanctioning authority to review
or reconsider the matter on the same materials again. It is so
because unrestricted power of review may not bring finality to
such exercise and on change of the Government or change of
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the person authorised to exercise power of sanction, the matter
concerning sanction may be reopened by such authority for the
reasons best known to it and a different order may be passed.
The opinion on the same materials, thus, may keep on changing
and there may not be any end to such statutory exercise.
13. In our opinion, a change of opinion per se on the same
materials cannot be a ground for reviewing or reconsidering the
earlier order refusing to grant sanction. However, in a case
where fresh materials have been collected by the investigating
agency subsequent to the earlier order and placed before the
sanctioning authority and on that basis, the matter is
reconsidered by the sanctioning authority and in light of the
fresh materials an opinion is formed that sanction to prosecute
the public servant may be granted, there may not be any
impediment to adopt such course."
Perusal of the above observations, makes it clear that mere
change of opinion per se on the same materials cannot be a ground for
reviewing or reconsidering the earlier order refusing to grant sanction.
However, it is permissible in a case where fresh materials have been
collected by the investigating agency subsequent to the earlier order
and placed before the sanctioning authority. It is clear from the ratio of
this decision that once the sanction order is refused, in the absence of
fresh materials, it cannot be reviewed or reconsidered. In our
considered opinion, this decision does not come to the rescue of the
petition inasmuch as we have held that there is only one sanction order
and the earlier documents, on which, the petitioner has heavily relied
upon are merely tentative views or department notings.
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17. In Dinesh Kumar (supra), the appellant therein was being
prosecuted for the offences punishable under the PC Act. On
4th November, 2009, the sanctioning authority granted sanction to
prosecute the appellant. After the sanction order was challenged by the
appellant in the High Court on 26th November, 2009, the charge-sheet
was filed by the CBI against the appellant on 30th November, 2009 in the
Court of Special Judge, Ernakulam. Following that, summons came to be
issued to the appellant on 18th December, 2009. The learned Single
Judge of the High Court dismissed the writ petition. The appellant
preferred an intra-court appeal before the Division Bench of the High
Court. The Division Bench dismissed the appeal on 29 th September,
2010 and observed that it was open to the appellant to question the
validity of the sanction order during trial on all possible grounds and the
CBI could also justify the order of granting sanction before the Trial
Judge. The argument of the appellant before the Apex Court was that he
had challenged the legality and validity of the sanction order at the first
available opportunity, even before the charge-sheet was filed and,
therefore, the Division Bench was not justified in relegating the appellant
to agitate the question of validity of sanction order in the course of trial.
The appeal was opposed by the respondent by contending that where
validity of the sanction order is sought to be challenged on the ground of
non-application of mind, such challenge can only be made in the course
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of trial. The Division Bench of the Apex Court relied upon the decision of
the Apex Court in Parkash Singh Badal and anr. versus State of
Punjab and ors. AIR 2007 SC 1274 and held that the issue of 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. This
decision is squarely applicable to present case as we have already held
that there is only one sanction order, and the legality and validity of the
same can be challenged in the course of trial.
Mr. Mohite, learned counsel for the petitioner, distinguished
this decision by submitting that he has not challenged the sanction on
the ground of validity on account of non-application of mind but, he has
challenged the impugned order as the same is passed in the absence of
any fresh material. We are not inclined to accept this submission as we
have already held that there is only one sanction order.
18. The issue as to at which stage the validity of sanction order
can be raised fell for consideration before the Apex Court in Ashok
Kumar Aggarwal (Supra) . The Apex Court followed the earlier decision
of the Division Bench in Dinesh Kumar (supra) and in paragraph 47
held that undoubtedly, the stage of examining the validity of sanction is
during the trial.
Shubhada S Kadam 21/22
cr.wp 59.16.doc
19. Taking totality of the facts and circumstances into
consideration, we find that there is only one sanction order which is
impugned in this petition. The contention of the petitioner that earlier
thrice sanction was refused cannot be accepted and, therefore, the
validity of the impugned sanction order cannot be questioned during the
course of trial. The petition is devoid of any merit and the same is,
accordingly, dismissed. Rule is discharged.
[SMT. SADHANA JADHAV, J.] [RANJIT MORE, J.]
Shubhada S Kadam 22/22
