Madhya Pradesh High Court
Pradeep Singh vs The State Of Madhya Pradesh on 17 April, 2023
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 17th OF APRIL, 2023
M.CR.C. NO. 11066 OF 2023
BETWEEN:-
PRADEEP SINGH SON OF LATE SHRI
GOPAL SINGH JADON, AGE 51 YEARS,
OCCUPATION GOERNMEN SERVANT,
ADDRESS VILLAGE AND POST KATHON,
TEHSIL BIJAYPUR, DISTRICT SHEOPUR
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI N. HARIHARAN - SENIOR ADVOCATE WITH
SHRI YOGESH KUMAR GUPTA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH,
THROUGH CENTRAL BUREAU OF
INVESTIGATION, BHOPAL
.....RESPONDENT
(BY SHRI HIMANSHU JOSHI - DEPUTY SOLICITOR GENERAL FOR
RESPONDENT)
.........................................................................................................
This application coming on for admission this day, JUSTICE ANIL
VERMA passed the following:
ORDER
The applicant has preferred this petition under section 482 of the
Code of Criminal Procedure for quashment of impugned order dated
24.2.2023 whereby the learned trial court has directed that objection
raised by applicant in respect of prosecution sanction order be decided
after completion of trial as per law laid down by the Hon'ble Apex court
in case of State of Himachal Pradesh Vs. Nishant Sareen (2010) 14 SCC
527.
The facts giving rise to the present petition are that Central
Bureau of Investigation (CBI) has registered a case on 12.9.2009 against
the applicant, the then TDM Khargone (at present under suspension) in a
trap for alleged demand of bribe from a contractor, Mr. R.K. Patidar.
CBI laid the trap on 12.2.2009 and allegedly recovered Rs. 1,20,000/-
from the upper drawer of the office table of applicant. The bribe
allegedly was demanded for passing the bills of complainant for laying
of optical fibre cable (OFC) at USO Nandgaon and for giving the
approval of work for laying of OFC at Khangwara site. Thereafter the
Vigilance Commission, Government of India vide order dated 3.2.2010
has not granted permission for launching prosecution against the
applicant.
The applicant has filed an application under section 19 of
Prevention of Corruption Act on 29.11.2011 by stating that vide order
dated 24.2.2010 the Central Vigilance Commission has not granted
permission for prosecution sanction against the applicant. The
competent authority having become functus-officio after passing order
dated 14.7.2010 was not empowered to review the said order on the
same material/evidence. The learned trial court erred in not appreciating
that once it is brought to the notice of the court that sanction is void ab-
initio, it ought to consider same and not allow continuance of the
proceedings based on such a sanction. The Hon'ble Apex court vide
order dated 8.5.2015 directed that it will be open to the petitioner to
raise the issue of sanction on the basis of the decision rendered in State
of Himachal Pradesh Vs. Nishant Sareen (2010) 14 SCC 527 and as
contemplated under section 19(4) of the Prevention of Corruption Act,
1988. But the trial court apart from not following the direction of the
Hon'ble Apex court has also attempted to sit judgment over the order of
the Hon'ble Apex Court. The view adopted by the trial court in the
impugned order obviously amounts to recall of its earlier order dated
9.1.2017 which is impermissible in law. Hence he prays that impugned
order dated 24.2.2023 be quashed.
Learned counsel for CBI fairly admits that the question regarding
sanction of prosecution basically relates to jurisdiction of the court,
therefore, it should be decided first.
Both the parties heard at length and perused the record.
From perusal of the impugned order, it appears that the trial court
directed that the objection raised by the accused in connection with
sanction of prosecution will be considered on merit at the time of
decision after completion of trial in the light of the law propounded in
case of Nishant Sareen (supra). But it is noteworthy that such type of
objection regarding sanction of prosecution directly relates to the
jurisdiction of the court and question of such jurisdiction is a question
of law which goes to the root of the case, which should be decided first.
The Hon'ble Apex court in case of Budha Mal Vs. State of Delhi
(Criminal appeal No. 17 of 1952 disposed of on 3/10/1952) had clearly
ruled that absence of a valid sanction affected the competence of the
court to try and punish the accused. The Court observed as under:-
"We are satisfied that the learned Sessions Judge was right
in the view he took. Section 403 Cr.P.C. applies to cases
where the acquittal order has been made by a court of
competent jurisdiction but it does not bar a retrial of the
accused in cases where such an order has been made by a
court which had no jurisdiction to take cognizance of the
case. It is quite apparent on this record that in the absence of a
valid sanction the trial of the appellant in the first instance
was by a Magistrate who had no jurisdiction to try him."
The Hon'ble Apex court in case of Nanjappa Vs. State of
Karnataka reported in (2015) AIR SCW 4432 has held as under:-
"15. The legal position regarding the importance of
sanction under section 19 of the Prevention of Corruption is
thus much too clear to admit equivocation. The statute forbids
taking of cognizance by the Court against a public servant
except with the previous sanction of an authority competent
to grant such sanction in terms of clauses (a), (b) and (c) to
Section 19(1). The question regarding validity of such
sanction can be raised at any stage of the proceedings. The
competence of the court trying the accused so much depends
upon the existence of a valid sanction. In case the sanction is
found to be invalid the court can discharge the accused
relegating the parties to a stage where the competent authority
may grant a fresh sanction for prosecution in accordance with
law. If the trial court proceeds, despite the invalidity attached
to the sanction order, the same shall be deemed to be non-est
in the eyes of law and shall not forbid a second trial for the
same offences, upon grant of a valid sanction for such
prosecution."
From perusal of the record it also appears that learned trial court
has not complied with the order dated 8.5.2015 passed by the Hon'ble
Apex court regarding consideration of legal issue of sanction. Learned
trial court has dismissed the application of applicant without considering
the contention raised by applicant regarding jurisdiction. Learned
counsel for the State also admits that such issue should be decided first.
Therefore, trial court has committed error of law and fact.
In view of the law laid down by the Hon'ble Apex court in case of
Nanjappa (supra) the impugned order passed by trial court appears to be
bad in law. Therefore, this petition under section 482 of Cr.P.C. is
allowed and impugned order dated 24.2.2023 passed by learned trial
court is hereby quashed.
The trial court is directed to proceed in the matter in accordance
with law and first of all hear both the parties on the question of
jurisdiction in respect of validity of prosecution sanction in compliance
to order dated 8.5.2015 passed by Hon'ble Apex court in view of the
decision by the Hon'ble Apex court rendered in Nishant Sareen case
(supra).
(VIVEK RUSIA) (ANIL VERMA)
J U D G E J U D G E
BDJ
Digitally signed by BHUNESHWAR DATT
DN: c=IN, o=HIGH COURT OF MADHYA
BHUNESH PRADESH BENCH INDORE, ou=HIGH COURT
OF MADHYA PRADESH BENCH INDORE,
2.5.4.20=3fb5bcda9fd75d95d6c7cdcbd092e
e5a74a94a5534aed3a66d9385cfcfc201e0,
WAR DATT
postalCode=452001, st=Madhya Pradesh,
serialNumber=89FD75A8D0C99E05779A327
974E46BC85102826CE0604B211E4C91102B4
D1269, cn=BHUNESHWAR DATT
Date: 2023.04.20 14:37:50 +05'30'
