K.C.Singh vs Cbi
2011 Latest Caselaw 3869 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment delivered on: August 10, 2011

+      CRIMINAL APPEAL No.976/2010

       K.C. SINGH                                   ....APPELLANT

                    Through:   Mr. D.N. Goburdhun, Advocate with
                               Mr. P. Bagchi, Advocate.

                        Versus

       CBI                                           .....RESPONDENT
                    Through:   Mr. Harish Gulati, Advocate with
                               Mr. Anindya Malhotra, Advocate.


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J. (ORAL)

1. K.C.Singh, the appellant herein, vide impugned judgment dated

24th July, 2010 in corruption case No. 37/2004, RC No. DAI-2001-A-

0029/CBI/ACB/New Delhi and the consequent order on sentence dated

27th July, 2010 has been convicted for the offences under Section 7 &

13(2) read with Section 13(1)(d) of P.C.Act, 1988 for having demanded

illegal gratification of ` 5000/- from the complainant for issue of bus

permit (on transfer) pursuant to his application and accepting the

amount from his partner Nawab Khan to undergo RI for the period of 03

years and also to pay fine of ` 2500/-, in default, to undergo RI for a

period of 03 months on respective charges. Feeling aggrieved by the

aforesaid conviction and order on sentence, the appellant has

preferred this appeal.

2. The appellant, in his grounds for appeal, apart from challenging

the impugned judgment on merits, has taken a plea that the impugned

judgment is liable to be set aside for the reason that the cognizance

taken in this case is bad as the order granting sanction for the

prosecution of the appellant is illegal, having been issued without

application of mind to the facts and circumstances of the case.

3. Learned Sh. D.N. Goburdhun, Advocate appearing for the

appellant submitted that as per the scheme of Section 19 of the

Prevention of Corruption Act, 1988, a public servant accused of

having committed an offence under Section 7,10,11,13 & 15 of the

P.C. Act is protected from prosecution unless there is a valid

sanction for his prosecution accorded by the competent authority as

envisaged in Section 19 of the P.C. Act, 1988. It is submitted that in

the instant case, the sanction order relied upon by the prosecution is

invalid and bad in law for the reason that the aforesaid sanction

order has been passed arbitrarily without any application of mind to

the material collected during investigation by the sanctioning

authority. In support of this contention, learned counsel for the

appellant has referred to the testimony of the competent authority

PW3 Ms. Sindhu Shree Khullar, the then Secretary (Transport),

wherein she admitted that along with the request for grant of

sanction for prosecution of the appellant, SP, CBI had also forwarded

the draft sanction order. Learned counsel contended that

comparison of draft sanction order with the sanction order Ex.PW3/A

would show that it is the verbatim copy of the draft, which gives rise

to an inference that the competent authority has accorded sanction

for prosecution of the appellant arbitrarily without referring to the

incriminating material collected during investigation by signing on

verbatim copy of the draft sanction order. Learned counsel

contended that aforesaid inference finds strength from the fact that

the draft sanction order Mark DX-I as well as sanction order

Ex.PW3/A records in Para 9 "that the said washes were sent to CFSL

for opinion of the expert vide letter No. 3220 dated 29 th March,

2001" meaning thereby that if at all the sanctioning authority had

considered the material placed before it, it had considered the CFSL

report mentioned in Para 9, which obviously is not the CFSL report

regarding chemical analysis of hand washes and pant pockets wash

allegedly collected during raid. This is evident from the CFSL report

No. CFSL-2001/C-0138 and not report CFSL-2001/C-0176 dated 30th

April, 2001. From this, learned counsel for the appellant has urged

this court to infer that sanction has been accorded by the

sanctioning authority either on the basis of wrong CFSL report or

without referring to the material collected during investigation, as

such, it is contended that sanction order is bad in law, having been

issued arbitrarily without application of mind to the material

collected during investigation, by appending signatures on the

verbatim copy of the draft sanction order sent by S.P., CBI. Learned

counsel submitted that from the above, it is apparent that the

cognizance taken by the learned Special Judge was also bad in law,

therefore, the entire trial stands vitiated and the conviction of the

appellant is liable to be set aside. In support of this contention,

learned counsel for the appellant has relied upon the judgment of

Supreme Court in the matter of State of Karnataka Vs.

Ameerjan, (2007) 11 SCC 273.

4. Learned counsel appearing for the CBI, on the contrary, has

refuted the above contention. He submits that witness PW3 Sindhu

Shree Khullar was not confronted with this aspect of the matter, as

such, the appellant cannot take advantage of this infirmity because

he did not seek any explanation for this infirmity from the witness.

Learned Prosecutor has also relied upon the judgment of Supreme

Court in the matter of State (Anti-Corruption Branch), Govt. of

NCT of Delhi & Anr. Vs. Dr. R.C.Anand & Anr., 2004 (4) SCC 615

wherein, the Supreme Court did not attach any importance to non-

production of report of the expert pertaining to tape-recording

before the sanctioning authority at the time of grant of sanction.

5. I have considered the rival submissions and perused the

record. Section 19 of the Prevention of Corruption Act, 1988

provides for a complete bar on the powers of the court to take

cognizance of the offences punishable under Sections 7, 10, 11, 13

& 15 of the P.C. Act against a public servant except with the

previous sanction of the sanctioning authority as defined under

Section 19 (a) to (c) of the P.C. Act. The object behind this provision

is to provide a reasonable protection to the public servant against

undue harassment by disgruntled elements against whom he might

have taken some decision during the course of his official duty. The

grant of sanction, thus, is a solemn function which, the sanctioning

authority is required to perform with due care and due application of

mind to the material placed before him/her along with the request

for sanction for prosecution.

6. In the matter of State of Karnataka Vs. Ameerjan (supra),

the Supreme Court, while dealing with the role of sanctioning

authority while granting the sanction for prosecution under P.C. Act

observed thus:

"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".

7. The Privy Council, in Gokulchand Dwarkadas Morarka Vs.

King, AIR 1948 PC 82, opined that the object of the provision for

sanction is that the authority giving it should be able to consider for

itself the evidence, before it comes to a conclusion that the

prosecution in the circumstances be sanctioned or forbidden,

stating:

"In Their Lordships'view, to comply with the provisions of Clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since Clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction."

The said decision has been referred to by the Supreme Court, with approval, in Jaswant Singh V. State of Punjab".

From the above, it is obvious that the concerned authority, while

considering the request for grant of sanction for prosecution, is

expected to apply his/her mind carefully to the incriminating

material collected during investigation, failing which, the sanction

order would not pass the test of validity.

8. The case of the prosecution is that after the recovery of bribe

money from the appellant, he was made to dip his respective hands

in freshly prepared Sodium Carbonate solution, which in both

events, turned pink. Similarly, the left side pocket wash of his pant

was also dipped in Sodium Carbonate solution. It also turned pink.

The respective hand washes and the left side pant pocket wash

were seized in separate bottles. During investigation, those washes

were sent to CFSL and as per the CFSL report Ex.PW1/A, being

report No. CFSL-2001/C-0176 dated 30th April, 2001, chemical

analysis of the washes confirmed the presence of phenolphthalein in

the respective washes. From this scientific evidence, the

prosecution is seeking to support the ocular evidence regarding

demand and acceptance of bribe by the appellant. Thus, it is

obvious that CFSL report is a very important piece of evidence and

the sanctioning authority was expected to carefully consider the

same. However, perusal of the sanction order Ex.PW3/A, which

admittedly is the verbatim copy of the draft sanction order sent by

SP, CBI, so far as facts of the case are concerned, reveals that it

refers to some other CFSL report being CFSL-2001/C-0138 dated 21st

March, 2001 and not the CFSL report pertaining to this case. This

factor, by itself, shows non-application of mind by the sanctioning

authority to the material collected during investigation of the case.

Had PW3 Sindhu Shree Khullar perused the CFSL report, this

infirmity would not have occurred in the sanction order Ex.PW3/A.

This infirmity coupled with the fact that sanction order is verbatim

copy of the draft sanction order wherein the similar error is there, is

clear indication of the fact that the sanction order Ex.PW3/A is the

result of non-application of mind by the sanctioning authority.

Accordingly, it does not stand the scrutiny of law and is liable to be

quashed.

9. Since the sanction for prosecution accorded against the

appellant is invalid, the cognizance taken by the learned Special

Judge is bad in law in view of Section 19 of the P.C. Act, therefore,

the entire trial stands vitiated for want of a valid sanction. Thus,

under the circumstances, I am constrained to accept the appeal and

set aside the impugned judgment of learned Special Judge dated

24.07.2010 and consequent order on sentence.

10. The appellant is accordingly acquitted. It is, however, made

clear that this order shall not prevent the CBI from filing fresh

charge sheet after obtaining valid sanction from the competent

authority.

11. Appeal stands disposed of.

(AJIT BHARIHOKE) JUDGE

AUGUST 10, 2011 akb