State Through Central Bureau Of ... vs Ravinder Singh
1995 Latest Caselaw 62 Del

JUDGMENT

Vijender Jain, J.

(1) This is a petition filed by the State under Sections 397 and 401 of the Code of Criminal Procedure 1973 on behalf of the Central Bureau of Investigation for setting aside the order dated 21st July, 1992 passed by Special Judge under Prevention of Corruption Act, 1947 (now amended in 1988). The main thrust of the arguments of Mr.S.Lal, learned counsel for the petitioner, is that after Magistrate has recorded the evidence of PW-1 i.e. Mr.P.G.Gavai, who was a former Lt.Govemor of Delhi, the Special Judge ought to have finished the whole evidence of the State and could not have discharged the accused. Another argument raised by learned counsel for the petitioner is that even if the said Mr.Gavai has deposed as a witness before the

(2) Special Judge, the State could have produced other evidence to show that. the sanction was proper. Mr.Lal has vehemently contended that it was illegal on the part of the-Special Judge to have decided the question of sanction on the evidence of one person only i.e. PW-1. In support of his arguments he has cited . Yet another contention has been raised by Mr.Lal is that the provisions of Section 245(2) of the Code of Criminal Procedure ( in short "Cr.P.C.") will not be applicable to the present case as Sections 244 and 245 are applicable to cases which are instituted otherwise than on police report. Mr.Lal has also drawn the attention of this Court to Section 242 of the Cr.P.C. in support of his arguments that the Special Judge has to proceed to take all the evidence before he could pass any order of acquittal. Mr.Lal has further contended that the Special Judge has no power to discharge the accused after the charge has been framed by the Court.

(3) Repelling the contentions of Mr.Lal, Mr.K.B.Andley, learned counsel for the respondent, has argued that the present case is one under the provisions of Prevention of Corruption Act and is a warrant case to be tried by a Magistrate, who is designated as a Special Judge under the provisions of Prevention of Corruption Act. He has argued that provisions of Chapter-19 of the Cr.P.C. shall be applicable to the present case which also include Sections 244 and 245. What Mr.Andley has contended is that in view of Section-19 of the Prevention of Corruption Act, the cognizance cannot be taken by any Court in the absence of any sanction. Mr.Andley has further contended that the sanction has to be valid, legal and should not suffer from any infirmities such as non-application of mind or the same should not be otherwise bad in law. Mr.Andley has argued that if there is no valid sanction or the Court during the course of hearing comes to the conclusion that the sanction is vitiated, then the Court has no other alternative but to discharge or acquit the accused because the very foundation on which the prosecution has been launched, cognizance has been taken, will not be in existence.

(4) I have given my careful consideration to the arguments advanced by learned counsel for both the parties. It will be necessary for me to advert to the evidence of PW-1, who admittedly was the sanctioning authority at the relevant time. In his evidence, PW-I has stated in the cross-examination I -

"A PART from the C.B.I, report and the nothings of the officers of Delhi Admn. no other material was placed before me at the time of obtaining sanction.

Ido not remember having seen the statements of the witnesses and the documents of the case at the time of according sanction.

I have seen the sanction file. The statements of the witnesses and the documents prepared are annexure by the C.B.I, during investigation of the case are not on the file, even today.

THE statements of the witnesses recorded earlier, in the court of Sessions Judge, Delhi were not placed before me for perusal before I accorded the sanction.

I did not know at that time, that the main shadow witness S.N.Kakria, had not supported the prosecution case in his statement before the Special Judge. -

4.It is interesting to note the following answer of the PW-1 I -

"I was acting not as a judge but as an administrator and the only factor which weighed me whether I should give or refuse sanction having regard to the fact that the earlier case against the accused had failed for want of proper sanction."

(5) On the basis of these evidence of the PW-1, who was the sanctioning authority, the Special Judge came to the finding that the statements of witnesses and the documents to be sent with the police report under Section 173 of the Cr.P.C. were not on file even on the date of the examination of the PW-1 and, therefore, were never put to him. The Special Judge has further recorded in the impugned order that the I - "THE statement of Shri P.G.Gavai in the court that he does not remember having seen the statements and documents only implies that they were not seen by him. This leads to the inference that the relevant material was not scrutinised and mind was not applied before granting sanction."

(6) The Special Judge has further taken note of the fact that what weighed with PW-1 in according the sanction was not any objective consideration on the basis of material before him but a consideration that the previous sanction was not a valid sanction and, therefore, he had to accord the sanction. What he did was to make good the deficiency in competence and nothing more as the conclusion drawn by the Special Judge. It is a clear case at the first instance that non-placing the statements, which were recorded under Section 161 of the Cr.P.C. of Ram Narain and S.N.Kakria as well as no material or report as prepared under Section 173 of' the Cr.P.C. was placed before the sanctioning authority. Looking at the deposition of the PW-I it is a case where the Court has rightly come to irresistible conclusion that there was total non- application of mind while granting sanction.

(7) Let me deal with the arguments advanced by Mr.Lal that once the charge has been framed the Special Judge has no power to discharge the accused. Section 242(3) of Cr.P.C. is as under 1-

"ON the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution.

PROVIDED that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross- examination."

(8) The arguments of learned counsel for the petitioner that the Special Judge was under an obligation to proceed to take all such evidence as may be produced in support of the prosecution and without taking all the evidence, the Special Judge has no jurisdiction after framing of charge to discharge, the accused suffers from basic infirmity. The case before me is one under Prevention of Corruption Act. Section-19 of the Act postulates that no Court can take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15, alleged -to have been committed under this Act without the prior sanction of the competent authority. Section-19 of the Act is as under I -

"PREVIOUS sanction necessary for prosecution I -

(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 in connection 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 grad by the authority, unless it is satisfied that such en emission 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 an' omission or irregularity in, such sanction has occasir 'suited in a failure of justice the court shall have reg 'ct whether the objection could and should have be grant to authority the of competency es (a section,- this purposes )r - Ex proceedings. in stage earlier

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

(9) It would be seen that sanction as mentioned in Section 19 of the Act is a pre-requisite for taking cognizance of an offence and prosecution for that offence by a Special Judge under the said Act and if at any stage on the basis of material before the Special Judge or it is otherwise brought to the notice of the Special Judge that the basis of cognizance i.e. the sanction suffers from any vice, infirmity or illegality to argue that the Special Judge has to still proceed with the remaining, evidence will be an exercise in futility and not only an exercise in futility but will be a great burden on public exchequer and time which is in paucity of the Courts concerned. To test further the contention of the learned counsel for the State that evidence ought to have been recorded by the Special Judge, what would be the net result, even if I assume that the evidence could have been recorded, the ultimate finding again would be to acquit the accused, because the basic foundation on which the Court has taken cognizance suffered from illegality. The Special Judge, after coming to a finding on the basis of evidence, which was led before him, applied his judicial mind and on the basis of all the evidence and material held that there was no legal sanction. Having come to the conclusion that the sanction was not legal, it was incumbent on the Special Judge to discharge the accused. The authorities cited by the learned counsel for the petitioner is of no help to .the case of the petitioner. In the absence of proper, legal and valid sanction, the Special Judge will not have the jurisdiction to take cognizance of the offence thereby implying that if the Special Judge after coming to a conclusion that there was no legal sanction, still chooses to proceed in the matter, then the proceedings will be without jurisdiction and illegal.

(10) Considering the matter from any angle, the impugned order of the Special Judge is legal, just and proper in the facts and circumstances of the case. I see no infirmity in the said impugned order and for the reasons recorded above, I dismiss the revision petition with no order as to costs.