Kushal Kumar vs Cbi & Anr.
2008 Latest Caselaw 1973 Del

                     Reportable
*            HIGH COURT OF DELHI AT NEW DELHI

+            Writ Petition (Crl.) No.771/2006 and
             Crl.M.A. No.3046/2006

                                    Date of decision: 7.11.2008

#     KUSHAL KUMAR                          ...... PETITIONER

!                  Through : Mr.R.K. Kapoor, Advocate

                            Versus

$     C.B.I. & ANR.                         .....RESPONDENTS

                   Through : Harish Gulati, Advocate with
                              Mr.     Aninya     Malhotra,
                              Advocate for R-1.
                              Mr. R.M. Tewari, Adv. for R-2.

%

      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?                Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                       Yes

                         JUDGMENT

ARUNA SURESH, J.

1. Present writ petition has been filed by the

Petitioner challenging sanction granted by the

Director (Services), Department of Personnel and

Training, Ministry of Personnel, Public Grievance

and Pension, Government of India, New Delhi

under Section 19 (1) (a) of Prevention of

Corruption Act, 1988 (hereinafter referred to as

„PC Act‟) for prosecution of the Petitioner for

offences under Sections 7/13(2)/13 (1) (d) PC Act

read with Section 120 B of Indian Penal Code (IPC)

in case FIR No.RCAC12004A0003 dated 17th

March, 2004 registered by CBI, ACUI, New Delhi

under Section 7 of the P.C. Act on the complaint of

Dr. I.S. Yadav, Medical Practioner, Yadav Hospital,

Rewari (Haryana).

2. In brief, the prosecution case is that Petitioner

Kushal Kumar was working as Recovery Officer in

the office of DRT Chandigarh and was accused of

demanding bribe of Rs.30,000/- from complainant

Dr. I.S. Yadav through Recovery Inspector A.K.

Shukla for confirmation of auction of property

belonging to M/s. Ajay Metals and Others in favour

of the complainant. M/s. Ajay Metals and Ors. had

raised some loan from State Bank of India, Rewari

and since it failed to pay the loan, the State Bank of

India initiated proceedings in Debt Recovery

Tribunal-II, Chandigarh wherein a decree in favour

of the Bank was passed and as per the recovery

certificate, the State Bank of India was entitled to

recover a sum of Rs.72,89,296.76 with cost of the

suit and interest @ 16.05 per annum. After

completion of the procedural requirements, the

property mortgaged with the Bank was auctioned

in a public auction. Dr. I.S. Yadav being the highest

bidder out of nine bidders who had participated in

the auction was declared the successful bidder

with his bid of Rs.36 lakhs. Dr. I.S. Yadav deposited

a demand draft for Rs.10.65 lakhs on the spot. One

of the guarantors/judgment debtors Subhash

Chander Sharma filed objection application against

the auction sale of the property. Petitioner being

the Recovery Officer, DRT-II, issued notice to the

auction purchaser for 5.3.2004. The State Bank of

India filed a reply to the said notice on 5.3.2004

seeking rejection of the objection and confirmation

of the sale in favour of Dr. I.S. Yadav. The matter

was adjourned to 16.3.2004. In between, a notice

was allegedly issued to Dr. I.S. Yadav for

appearance on 10.3.2004 and when he appeared

on the said date and sought time to file reply, he

was directed to appear on the date which was

already fixed. A complaint was lodged on

17.03.2004 with the allegations that A.K.Shukla

demanded bribe of Rs.30,000/- from Dr. I.S. Yadav

for himself and on behalf of the Petitioner for

confirmation of sale of the auctioned property and

for handing over the possession of the same to Dr.

I.S. Yadav to which, Dr. I.S. Yadav declined.

3. CBI conducted trap proceedings in the presence of

independent witnesses and A.K. Shukla was caught

red handed demanding and accepting bribe from

Dr. I.S. Yadav on 17.3.2004 at New Delhi Railway

Station. It was during the investigation of the case

that CBI came to know that the Petitioner had

entered into criminal conspiracy with A.K.Shukla

and it was in pursuance of the said conspiracy,

A.K.Shukla demanded and accepted bribe from Dr.

I.S. Yadav for himself and for the Petitioner and

also that Petitioner was conducting the matter in

such a way so as to coerce the complainant by

unauthorizingly summoning and harassing him to

succumb to the demand of bribe made by A.K.

Shukla. After completion of the investigation, CBI

sought necessary sanction from the concerned

authorities under Section 19 of the PC Act which

was accorded as prayed on 24.6.2005.

4. Mr. R.K. Kapoor, learned counsel for the Petitioner

has submitted that the sanction order dated

24.6.2005 was bad and illegal on the following

grounds:-

(1) That the grant of sanction was unwarranted

and was without application of mind and lack

of judicious approach and the sanction was

granted in a mechanical manner;

(2) The sanction order was in violation of the

principles of natural justice being violative of

provision of Article 14 read with Article 21 of

the Constitution of India;

(3) The Petitioner had performed the judicial act

within the parameters provided under the

recovery proceedings to be followed in

accordance with the provisions of 2nd

Schedule appended to the Income Tax Act,

1961 and the Income Tax (Certificate

Proceedings) Rules, 1962 as the mandatory

requirement of issuance of a notice under the

provisions of proviso to Rule 63 (2) of the said

provision was followed by the Petitioner in

discharge of his official duties;

(4) The petitioner was within his right to permit

the person affected by the objections to be

heard before passing an order on the

objections and therefore the notice was

accordingly issued by the Petitioner to the

auction purchaser and since the Petitioner

conducted the proceedings in accordance

with the DRT Act, no irregularity in the

official act is involved and the sanction order

is bad in law;

(5) No sanction has been obtained under Section

197 Cr.P.C. as the Petitioner had acted in

discharge of his official duties and in the

absence of the sanction under Section 197

Cr.P.C., no prosecution could be filed against

the Petitioner in the absence of legal and

valid sanction order;

(6) From the analysis of the evidence collected by

the Investigating Officer it is obvious that the

sanction was unmindful and was made

without assessing and analyzing the evidence

collected against the petitioner during the

investigation.

5. All these objections have been refuted by the

respondents and it is impressed upon by the

learned counsel for the respondents that sanction

for prosecution against a public servant on the

charges of corruption was considered by the

Central Government in accordance with the

provisions of law laid down in Section 19 of the

P.C. Act and not under Section 197 Cr.P.C. and no

sanction under Section 197 Cr.P.C. was required.

The sanction was properly accorded by the

concerned authorities after applying its mind and is

therefore legal and valid. It is further submitted

that objections filed by Mr. Subhash Chander

Sharma did not fill the requisite condition and were

liable to be dismissed but were entertained by the

Petitioner despite the fact that Dr. I.S. Yadav had

deposited the remaining amount of the bid on

4.3.2006 i.e. within the stipulated period and the

proceedings adopted by the Petitioner were

unwarranted and against the procedure and law

and therefore the sanction accorded by the

Department is legal and valid and the charge sheet

has been rightly filed against the Petitioner and the

petition, therefore, is liable to be dismissed.

6. Section 19 of The Prevention of Corruption Act,

1988 reads as follows:-

"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 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-

(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, 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 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) Error 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."

7. Thus, Section 19 (1) of the PC Act makes it clear

that for prosecution of offences under Sections 7,

10, 11, 13 and 15 of the PC Act, sanction is

required from the Central Government or the State

Government as the case may be. No finding or

order passed by Special Judge can 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 and so accorded under sub Section (1) of

Section 19 of PC Act, unless court is of the opinion

that the sanction order has caused failure of

justice. Court has to satisfy itself that an error,

omission or irregularity found in the sanction order

has resulted into failure of justice before, such

sanction order is declared as illegal or invalid.

8. The impugned sanction order is dated 24th June,

2005. Perusal of the sanction order makes it clear

that the Sanctioning Authority had considered the

evidence collected by the Investigating Agency

during the investigation of the case and it was after

assessment of the evidence, that the authority was

pleased to accord sanction under Section 19(1)(a)

of PC Act for the prosecution of Petitioner for

offences under Section 120-B IPC read with

Section 7 & 13(2) read with Section 13(1)(d) of PC

Act and Section 7 & 13 (2) read with Section

13(1)(d) of PC Act or any other offence punishable

under other provisions of law in respect of the

aforesaid acts and for taking cognizance of the said

offences by the court of competent jurisdiction.

9. Learned counsel for the Petitioner has submitted

that sanction order is nothing but verbatim

reproduction of the charge sheet. For that

purpose, he has referred to few lines appearing at

different places in the sanction order. The fact

remains, from the entire reading of the sanction

order, it cannot be said that it is mechanical and

charge sheet has been reproduced in the sanction

order. Charge sheet was filed in the court only

after the sanction was accorded to the CBI to

prosecute the Petitioner. Therefore, the charge

sheet could not have been reproduced by the

sanctioning authority in the order according

sanction to the prosecution to file charge sheet

against the Petitioner in the Special Court of CBI,

nor, it was so done. To say whether sanction has

been properly accorded by the Sanctioning

Authority, the court has only to see if the sanction

is not unmindful and has not been accorded in a

mechanical manner. Validity of sanction depends

on the applicability of mind by the Sanctioning

Authority to the facts of the case as well as the

evidence collected by the Investigating Agency

during the investigation and therefore, the

Sanctioning Authority has to apply its own

independent mind for granting genuine sanction

whether prosecution has to be sanctioned or not.

10. The order of sanction in a given case must ex facie

disclosed that the sanctioning authority had

considered the evidence and other material placed

before it. The court is not required to sift and

weigh evidence collected by the Investigating

Officer during the investigation of the case to know

if the sanction order was valid and was neither

unmindful nor was passed in a mechanical manner.

Relevancy of evidence collected is an aspect which

has to be examined by the court at the stage of

trial and not by this Court for invalidating the

sanction. Therefore, it cannot be said that the

impugned sanction was granted in a mechanical

manner. The sanction was granted vide a detailed

order wherein all the facts and evidence collected

by the Investigating Agency during the

investigation against the Petitioner has been

discussed.

11. In 'C.S. Krisnamurthy v. State of Karnataka,

2005 SCC (Cri) 923', the principles to be kept in

mind by the court as regards validity of sanction

order have been discussed as follows:-

Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the

satisfaction of the sanctioning authority is apparent by reading the order......"

12. Officer signing the sanction order is not required

to state that he had personally scrutinized the file

and had arrived at the required satisfaction. The

allegations made in the First Information Report

(FIR) and the order granting sanction if true, would

clearly establish that the accused was rightly

prosecuted and was guilty of a criminal

misconduct. The truthfulness of the allegations

and the establishment of the guilt can only take

place when the trial proceeds without any

interruption. Therefore, it cannot be presumed that

there was no application of mind when the sanction

of the Government was obtained.

13. In 'State of Bihar v. P.P. Sharma, IAS, 1992

Supp. (1) SCC 222,' it was observed:-

"It is equally well settled that before granting sanction the authority or the appropriate Government must have before it the necessary report and the material facts which prima facie establish the commission of offence charged for and the appropriate Government would apply

their mind to those facts. The order of sanction is only an administrative act and not a quasi-judicial one nor is a lis involved. Therefore, the order of sanction need not contain detailed reasons in support thereof as was contended by Shri Jain. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard.

The question of giving an opportunity to the public servant at that stage as was contended for the respondents does not arise. Proper application of mind to the existence of prima facie evidence of the commission of the offence is only a precondition to grant or refuse to grant sanction. When the Government accorded sanction, Section 114 (e) of the Evidence Act raises presumption that the official acts have been regularly performed............."

14. In the present case, the sanctioning authority

considered the material placed before it, relevant

facts and evidence collected including the

transcript of the tape recorded. The consideration

of evidence implies application of mind. The order

of sanction ex facie discloses that the sanctioning

authority had considered the evidence and other

material placed before it. This court in exercise of

its power under Section 482 of the Criminal

Procedure Code (Cr.P.C.) is not to assess the

sanction order as if it were sitting in appeal or

revision for a sanction to be valid. What is

required to be established is that the sanction was

given in respect of facts constituting the offence

with which the accused is proposed to be charged.

It might be desirable that the facts should be

referred to in the sanction order itself, nonetheless

if they do not appear on the face of it, the

prosecution must establish by adducing evidence

that those facts propounding the offence against

the accused were placed before the sanctioning

authority. It is, therefore, necessary to first

examine the order of sanction to ascertain on what

facts it has been accorded. Examination of the

sanction order makes it clear that not only

evidence has been discussed and taken care of by

the sanctioning authority, it has also referred to

the facts leading to prosecution of the Petitioner.

15. In 'State of Karnataka v. Ameerjan, (2007) 11

SCC 273', it was observed:-

9. We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.

10. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayukta. Even the said report has not been brought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police, Karnataka Lokayukta had placed on record the materials collected on investigation of the matter which would prima facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the

accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as (sic to) the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced."

16. Perusal of the sanction order dated 24.6.2005

amply shows that the evidence placed before the

sanctioning authority was relied on and has been

looked into before according the same. Facts

pertaining to the case as well as evidence placed

after due investigation has been put forth in the

order. Audio cassette wherein the complainant

recorded conversation between himself and

A.K.Shukla was also placed before the sanctioning

authority and as per the recorded talks it was

mentioned in the order that talks of bribe took

place between A.K.Shukla and complainant.

Accordingly, a trap was laid by team of CBI officers

and Inspector V.M. Mittal and two independent

witnesses and A.K.Shukla accused was caught red-

handed while demanding and accepting bribe of

Rs.30,000/- from complainant I.S. Yadav. This is a

trap case and the investigating agency had already

recorded statement of the complainant and the

sanctioning authority amongst other evidence also

considered the statement of the complainant.

17. Therefore, in my view, the sanctioning authority

had reached the satisfaction that the relevant facts

constituting the offence under Sections 7/13(2) / 13

(1) (d) of PC Act read with Section 120 B IPC for

which prosecution was required to be initiated

against the Petitioner were made out from the

evidence collected during investigation while

according the requisite sanction under Section 19

of P.C. Act. This sanction order was accorded with

application of mind and after perusal of the

material placed before the sanctioning authority.

18. Learned counsel for the petitioner has emphasized

that the impugned sanction is invalid as no

sanction under Section 197 Cr.P.C. has been

accorded though offence under Section 120-B IPC

is also allegedly made out against the Petitioner.

The operative part of the sanction order reads as

follows:-

"NOW, THEREFORE, Central Government doth hereby accord sanction Under Section 19(1)(a) of Prevention of Corruption Act, 1988 for the prosecution of said Shri Kushal Kumar U/s. 120-B Indian Penal Code r/w U/s.7 & 13(2) r/w 13(1) (d) of Prevention of Corruption Act 1988 and Section 7 & 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 or any other offence punishable under other provisions of law in respect of the aforesaid acts and for taking of cognizance of the said offences by the Court of Competent Jurisdiction."

19. I do not find any infirmity or illegality in this order.

For the offence of criminal conspiracy punishable

under Section 120-B IPC and also under Sections

7/13(2) / 13 (1) (d) of P.C. Act are concerned , they

cannot be said to be of the nature mentioned in

Section 197 Cr.P.C. It is not the part of the duty of

a public servant while discharging his official duty

to enter into a criminal conspiracy or to indulge in

criminal misconduct. Want of sanction under

Section 197 Cr.P.C. is therefore no bar under the

facts and circumstances of the case. The real

question is whether acts complained of in the given

case were directly concerned with the official duty

of the public servant. Offence under Section 120-B

IPC and also under various provisions of the PC Act

cannot be said to be of the nature falling in the

meaning of Section 197 Cr.P.C. Reference is made

to 'Harihar Prasad v. State of Bihar, (1972) 3

SCC 89'.

20. In 'Sate of Kerala v. V. Padmanabhan Nair,

(1999) 5 SCC 690', while relying upon Harihar

Prasad v. State of Bihar's case, it was observed:-

"6. The correct legal position, therefore, is that an accused facing prosecution for offences under the PC Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. So the High Court was at any rate wrong in quashing the prosecution proceedings insofar as they related to offences under the PC Act.

7. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B of IPC sanction under Section 197 of the Code is a

condition precedent for launching the prosecution is equally fallacious. This Court has stated the correct legal position in „Shreekantiah Ramayya Munnipalli v. State of Bombay, AIR 1955 SC 287‟ and also „Amrik Singh v. State of Pepsu, AIR 1955 SC 309‟ that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad‟s (supra) as follows: (SCC p.155, para 66)

"As far as the offence of criminal conspiracy punishable under Section 120-B read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."

21. Hence, a public servant who committed offence

within the meaning of PC Act while he was a public

servant can be prosecuted with the sanction

contemplated under Section 19 of the Act if he

continues to be a public servant when the court

took cognizance of the offence and he cannot seek

protection under Section 197 Cr.P.C.

22. The plea that he was discharging his official duties

as a public servant and therefore no prosecution

under Section 120-B IPC could have been lodged

against him without obtaining sanction of the

appropriate authorities under Section 197 Cr.P.C.

does not hold water since a person who is involved

in offence under Section 19 of the Act cannot be

said to be discharging his official duties at the time

when the alleged offence was committed to seek

protection under Section 197 Cr.P.C., as it is not

part of the duty of the public servant to enter into a

criminal conspiracy to commit an offence of

bribery.

23. Learned counsel for the Petitioner has referred to

Section 33 of the DRT (The Recovery of Debts Due

to Banks and Financial Institutions) Act, 1993 and

Rule 82 of IInd Schedule appended to the Income

Tax Act, 1961 to say that the acts allegedly

committed by the Petitioner indicating his

involvement for offences under the PC Act were in

the discharge of his official duties.

24. As pointed out above, Petitioner under the

circumstances cannot seek protection under

Section 197 Cr.P.C. He entered into a criminal

conspiracy with Mr. A.K.Shukla, Recovery

Inspector for taking bribe for Rs.30,000/- from the

complainant; Dr. I.S. Yadav for confirmation of

sale of the auctioned property and handing over

possession of the said auctioned property to the

complainant. Petitioner, therefore, cannot be

entitled even to seek protection under the Judicial

Officers (Protection) Act as claimed and for that

matter The Judges (Protection) Act, 1985 as

claimed because corruption in no manner can be

considered the act done during the discharge of

official duties by the Petitioner while in service.

25. I need not assess evidence collected by the

prosecution respondent during the investigation

of the case at this stage as it is likely to prejudice

the interest of the parties and it is not so required.

It is for the trial court to consider the submissions

which might be raised by the Petitioner at the

stage of argument on charge to come to a

conclusion if prima facie there is sufficient

evidence to proceed against the Petitioner under

Sections 7/13(2) / 13(1) (d) PC Act read with

Section 120-B IPC.

26. Hence, I find no merit in this petition and the same

is accordingly dismissed.

ARUNA SURESH (JUDGE) November 07, 2008 vk