Gujarat High Court
Yuvraj Honnosa Ladhwa vs State Of Gujarat on 22 September, 2023
Bench: M. R. Mengdey
NEUTRAL CITATION
R/CR.RA/242/2013 JUDGMENT DATED: 22/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 242 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE M. R. MENGDEY Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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YUVRAJ HONNOSA LADHWA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR NITIN M AMIN(126) for the Applicant(s) No. 1
MS SHILPA R SHAH(796) for the Respondent(s) No. 2
MR RONAK RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 22/09/2023
ORAL JUDGMENT
1. The present application has been filed by the applicant -
original accused under Section 397 r/w 401 of the Code of
Criminal Procedure (herein after referred to as the "Code")
challenging the order dated 22.10.2012 passed below Exh.26 in
Special Case No. 15 of 2006 by Additional City Sessions Judge
(ACB), Court No.19, Ahmedabad (City).
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2. The facts and circumstance giving rise to filing of present
application are as under:-
2.1 On 17.08.2005, an FIR came to be registered for offences
punishable under the provisions of Prevention of Corruption Act
against the accused persons including the present applicant.
2.2 As per the case of prosecution, one Bharatbhai
Somnathbhai Valand (Nai), on 17.08.2005, had declared before
the Police Inspector, ACB that since long he was suffering from
Blood Pressure and his Doctor had advised him to have liquor
permit and consume some liquor everyday. He, therefore, on
25.07.2005, visited the office of Prohibition situated at Victoria
Garden, where the present applicant was present. He informed
him about his intention of getting a liquor permit. The applicant
apprised him of the documents required for the purpose and
demanded Rs.8000/- towards illegal gratification.
2.3 On the basis of the said information, an offence was
registered with A.C.B. Police Station, Ahmedabad (City) being
C.R.No.14 of 2005 against the present applicant and other
accused persons for the offence punishable under Sections 7,
12, 13(1)(d), 1, 2, 3 and Section 13(2) of the Prevention of
Corruption Act, 1988 (herein after referred to as the "Act").
2.4 The concerned Police Station, after conclusion of
investigation, approached the authority i.e. Commissioner and
Additional Director General of Police (Prohibition and Excise),
Meghaninagar, Ahmedabad with the material collected during
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investigation against the applicant and other accused, for getting
sanction under Section 19 of the Act.
2.5 The concerned authority did not accord any sanction for
prosecuting the present applicant for the offence in question.
The first informant, therefore, approached this Court by filing
Special Criminal Application No.704 of 2006, which was
disposed of vide order dated 21.04.2006 by directing the
concerned authorities to decide the representation filed by the
first informant. The said representation was also discarded by
the concerned authorities. The first informant, therefore,
approached the Special Court by filing an application Exh.26 in
Special Case No.15 of 2006 to issue process against the present
applicant for the offence in question in exercise of powers under
Section 190 of the Code. The Special Court, vide impugned
order, was pleased to allow the said application and ordered
issuance of process against the present applicant under Section
190 of the Code for the aforesaid offences.
3. Being aggrieved and dissatisfied with the same, the
applicant has preferred present application.
4. Learned advocate for the applicant has submitted that the
FIR in question was lodged by the respondent - first informant
on 17.08.2005. On the basis of the said information, a trap was
organized on 18.08.2005. The present applicant was not found
present at the time of trap. The prosecuting agency had
forwarded all the material collected by it against the present
applicant to the concerned authority for obtaining sanction for
prosecuting the present applicant under Section 19 of the Act.
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The concerned authority, after considering the material
forwarded to it for the purpose, had been pleased to accord
sanction for prosecution against the accused persons except the
present applicant. Thus, no sanction was accorded by the
concerned authority to prosecute the applicant.
4.1 Learned advocate for the applicant has submitted that the
first informant had also approached this Court by filing above
referred Special Criminal Application, which was disposed of by
this Court by directing the first informant to make
representation to the concerned authorities and the concerned
authorities were directed to consider the said representation in
accordance with law. The first informant had accordingly, made
a representation on 07.03.2011 i.e. after the period of more than
5 years. The said representation was turned down by the
concerned authorities. Therefore, the first informant had
approached the Special Court by filing an application below
Exh.26. The Special Court has committed a grave error in
ordering to issue process against the present applicant for the
offences mentioned herein above by taking shelter of Section 190
of the Code.
4.2 Learned advocate for the applicant has submitted that the
provisions of the Act would have an overriding effect over the
provisions of the Code and sanction under Section 19 of the Act
is required to be obtained. Without such sanction, no Court can
take cognizance of the offence punishable under the provisions
of the Act. The Special Court has committed a grave error in
taking cognizance of the offence under the provisions of the Act
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against the present applicant without any sanction being
accorded in that regard under Section 19 of the Act. He,
therefore, submitted to allow the present application and quash
and set aside the order impugned in the present application.
4.3 Learned advocate for the applicant has relied upon the
judgment of the Apex Court in case of Dilawar Singh Vs.
Parvinder Singh @ Iqbal Singh & Anr reported in (2005) 12
SCC 709. He has also relied upon the judgment of this Court
dated 16.03.2010 passed in Special Criminal Application
No.1095 of 1995.
5. Learned APP has opposed the present application, inter
alia, contending that the demand for illegal gratification was
made by the present applicant, and therefore, the present
applicant appears to be the main accused in the present case.
When the sanctioning authority has granted the sanction for the
prosecution of the other co-accused, the sanction to prosecute
the present applicant is also deemed to have been granted by the
sanctioning authority, the present applicant being the main
accused.
5.1 Learned APP has submitted that under the provisions of
Section 190 of the Code, the Special Court is authorized to take
cognizance of an offence, and therefore, the Special Court has
rightly ordered issuance of process against the present applicant
for the offences in question. The Special Court does not appear
to have committed any error in passing the impugned order. He,
therefore, submitted to dismiss the present application.
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6. Though served, nobody appears for the respondent no.2-
first informant.
7. Heard learned advocates for the parties and perused the
material available on record. As narrated in the FIR, the first
informant wanted to obtain a liquor permit, and therefore, had
approached the office of the present applicant where the present
applicant had demanded certain documents from the first
informant and had also demanded a sum of Rs.8000/- towards
illegal gratification. On the basis of the said information, a trap
was organized against the present applicant on the next day. The
prosecuting agency, after conclusion of investigation, had
approached the sanctioning authority with relevant material for
obtaining sanction for prosecution of the present applicant and
the other co-accused under Section 19 of the Act. The
Sanctioning Authority accorded sanction for prosecution of the
accused persons except the present applicant. Thus, there was
no sanction issued by the sanctioning authority under Section
19 of the Act. Section 19 of the act reads as under:-
"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
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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."
8. Upon bare perusal of the provisions of Section 19 of the
Act, it is clear that there is an express bar against taking
cognizance of an offence punishable under the provisions of
Sections 7, 10, 11, 13 & 15 of the Act without there being any
sanction, as provided in Section 19 of the Act. In present case,
when there was no sanction accorded by the sanctioning
authority to prosecute the present applicant for the offence
punishable under Sections 7, 12, 13(1)(d), 1, 2, 3 and 13(2) of
the Act, the Special Court was barred from taking cognizance for
these offences against the present applicant.
9. The Special Court while allowing the application below
Exh.26 and ordering to issue process against the present
applicant for the offences in question has taken recourse to the
provision of Section 190 of the Code. The Apex Court in its
judgment in case of Dilawar Singh (Supra) has observed in
Paragraph No.4 as under:-
"4. In our opinion, the contention raised by the learned counsel for the
appellant is well founded. Sub-section (1) of Section 19 of the Act,
which is relevant for the controversy in dispute, reads as under :
"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
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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 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."
This section creates a complete bar on the power of the Court to 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 of the competent authority
enumerated in clauses (a) to (c) of this sub-section. If the sub-section
is read as a whole, it will clearly show that the sanction for
prosecution has to be granted with respect to a specific accused and
only after sanction has been granted that the Court gets the
competence to take cognizance of an offence punishable
under Sections 7, 10, 11, 13 and 15 alleged to have been committed
by such public servant. It is not possible to read the section in the
manner suggested by learned counsel for the respondent that if
sanction for prosecution has been granted qua one accused, any other
public servant for whose prosecution no sanction has been granted,
can also be summoned to face prosecution."
10. While dealing with the provisions of Section 190 and
Section 319 of the Code, the Apex Court has observed in
Paragraph No.8 as under:-
"8. The contention raised by learned counsel for the respondent
that a Court takes cognizance of an offence and not of an
offender holds good when a Magistrate takes cognizance of an
offence under Section 190 Cr.P.C. The observations made by
this Court in Raghubans Dubey v. State of Bihar (supra) were
also made in that context. The Prevention of Corruption Act is a
special statute and as the preamble shows this Act has been
enacted to consolidate and amend the law relating to the
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prevention of corruption and for matters connected therewith.
Here, the principle expressed in the maxim Generalia
specialibus non derogant would apply which means that if a
special provision has been made on a certain matter, that
matter is excluded from the general provisions. (See
Venkateshwar Rao v. Govt. of Andhra Pradesh AIR 1966 SC
828, State of Bihar v. Yogendra Singh AIR 1982 SC 882
and Maharashtra State Board of Secondary Education v.
Paritosh Bhupesh Kumar Sheth AIR 1984 SC 1543). Therefore,
the provisions of Section 19 of the Act will have an overriding
effect over the general provisions contained in Section 190 or
319 Cr.P.C. A Special Judge while trying an offence under
the Prevention of Corruption Act, 1988, cannot summon another
person and proceed against him in the purported exercise of
power under Section 319 Cr.P.C. if no sanction has been
granted by the appropriate authority for prosecution of such a
person as the existence of a sanction is sine qua non for taking
cognizance of the offence qua that person."
11. In view of the aforesaid proposition of law laid down by the
Apex Court, the Special Court could not have taken cognizance
of the offence in question against the present applicant without
there being any sanction accorded to prosecute him by the
sanctioning authority under Section 19 of the Act. The Special
Court has therefore committed a grave error in passing the
impugned order. Hence, the present application is hereby
allowed. The order dated 22.10.2012 passed below Exh.26 in
Special Case No. 15 of 2006 by Additional City Sessions Judge
(ACB), Court No.19, Ahmedabad (City) is hereby quashed and set
aside. Rule is made absolute to the aforesaid extent.
Sd/-
(M. R. MENGDEY,J)
GIRISH
