IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.04.2010 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Crl.R.C.No.405 of 2010 P.Pandian Sunderrajan .. Petitioner Versus State represented by Inspector of Police CBI/ACB, Chennai .. Respondent Criminal revision filed under Section 397 r/w 401 Cr.P.C., against the order in Crl.M.P.No.849 of 2009 dated 26.03.2010 in C.C.No.28 of 2003, on the file of the IX Additional Special Judge for CBI Cases, Chennai. For Petitioner : Mr.L.Chandrakumar For Respondent : Mr.N.Chandrasekaran Special Public Prosecutor for CBI Cases ORDER
The revision petitioner herein is the accused in C.C.No.28 of 2003, on the file of the XI Additional Judge for CBI Cases, Chennai and he is facing trial for offences under Sections 120-B r/w 420 IPC, 477-A IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act.
2. The petitioner filed a petition before the trial Court, seeking discharge on the ground that the sanction for prosecution against the accused was given by the incompetent authority and as such the sanction was invalid. The petition filed by the petitioner was dismissed by the trial Court and aggrieved by the said order, the petitioner herein had preferred this criminal revision petition.
3. The learned counsel for the petitioner submitted that the petitioner was working as Chief Commercial Clerk in Southern Railway and the competent authority is only the General Manager, Southern Railway and the sanction is accorded only by the Senior Divisional Commercial Manager who is the competent authority. Without a valid sanction, the court cannot take cognizance of the complaint and valid point goes to the route of the case can be challenged by the petitioner at any point of time, but the trial Court has dismissed the petition stating that the trial was in progress.
4. The learned counsel for the petitioner also relied on the decisions of the Honourable Supreme Court as follows:
a) 1984 (2) SCC 183 (R.S.Nayak vs. A.R.Antulay) wherein it has been observed as follows:
“The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office.”
b) 2008(5) SCC 130 (State of Goa vs. Babu Thomas) wherein it has been held as follows:
“12……..Therefore, when the Special Judge took cognizance on 29.05.1995, there was no sanction order under the law authorizing him to take cognizance. This is a fundamental error which invalidates the cognizance as without jurisdiction.”
c) 2006(4) SCC 584 (Sankaran Moitra vs. Sadhna Das and Another) wherein it has been held as follows:
“22.Learned counsel for the complainant argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of this Court earlier cited, clearly indicate that a prosecution hit by that provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. We cannot therefore accede to the request to postpone a decision on this question.”
d) CDJ 2009 SC 1604 (State of Madhya Pradesh Versus Sheetla Sahai and Others), wherein it has been held as follows:
“Reliance has been placed by Mr.Tulsi on Parkash Singh Badal v. State of Punjab and Others [(2007) 1 SCC 1] wherein this Court held:
38.The question relating to the need of sanction under Section 197 of the Code is not necessary to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.”
5. Per contra, the learned Special Public Prosecutor submitted that 37 witnesses have been examined so far and only few more witnesses have to be examined. The sanction witness has already been examined as P.W.2 as early as on 18.08.2004 and sanction order also was marked as Ex.P.3. Though the Chief Examination was completed, the witness has not chosen to cross examine him and the cross examination was differed. But so far no step has been taken by the defence to cross examine the said witness. But after five years, unnecessarily the petitioner filed a petition seeking discharge. The learned Special public Prosecutor also submitted that as per Ex.P.3, sanction order, P.W.2 has mentioned that he is the competent authority and in the evidence also it is stated that he must initiate the disciplinary action against the petitioner and he has power to remove him from service.
6. The learned Special Public Prosecutor also submitted that after framing charges, the trial Court has got no power to discharge the accused and as such, the petition filed by the petitioner before the trial Court is not maintainable and the trial Court also rightly relied on the decision of this Honorable High Court rendered in Crl.R.C.No.583 of 2007 dated 09.02.2010.
7. This Court considered the submissions and perused the records. P.W.2 sanctioning authority was examined by the trial Court. The charges were framed against the petitioner and other accused on 01.06.2004. Thereafter, the trial commenced and P.W.2 sanctioning authority was examined by the trial Court on 18.08.2004. P.W.2 had stated in his evidence, that he is the competent authority to take disciplinary action against the accused including removal of service and the sanction order also was marked as Ex.P.3. P.W.2 has not been cross examined and the cross examination has been deferred at the request of the accused. Of course, according to the petitioner, it is only the General Manager who is the competent authority, but it is a matter to be decided by the trial Court. Prima facie it appears that P.W.2 has given evidence that he is the competent authority and his evidence also remains unchallenged so far.
8. In the decision cited by the learned counsel for the petitioner reported in CDJ 2009 SC 1604 (State of Madhya Pradesh vs. Sheetla Sahai and others), it is held as follows:
“29. The effect of sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In sub-section (3) the stress is on “failure of justice” and that too “in the opinion of the court”. In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the “failure of justice” is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of jurisdiction as observed in para 95 of Narasimha Rao case. Sub-section (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the old Act [Section 19(2) of the Act] question relates to doubt about authority to grant sanction and not whether sanction is necessary.”
9. Of course the invalid sanction is a fundamental error which invalidates the cognizance as without jurisdiction, but at the same time, in this case though the charges having been framed and the sanctioning authority having been examined as P.W.2, whether the sanction already accorded is valid or not is a matter to be decided by the trial Court at the end of the trial.
10. It is also observed by this Honourable High Court in Crl.R.C.No.583 of 2007 as follows:
“15.The learned Counsel would further submit that in the case on hand, as soon as P.W.1 was put in the box, at the earliest point of time, during cross examination, the question of sanction was raised and therefore, as per the said judgment, there would be no purpose in allowing the petitioner to undergo the ordeal of trial and so he should be discharged. In this regard, I have to state that in the Code of Criminal Procedure, there is no provision enabling the trial Court to discharge the accused after the trial has commenced. Though it is claimed by the learned Counsel for the petitioner that Section 19 of the Prevention of Corruption Act has got an inbuilt provision under which such discharge, even after framing of charges, is possible, I do not find any merit in the said submission. Section 19 of the Prevention of Corruption Act 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 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 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 any 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.”
19. In Bharat Parikh Vs. Central Bureau of Investigation and another reported in (2008) 3 Supreme Court Cases (Crl.) 609, in paragraph No.19, the Honourable Supreme Court has held as follows:
“19. … At the stage of framing of charge the submissions on behalf of the accused have to be confined to the material produced by the investigating agency. The accused will get an opportunity to prove the documents subsequently produced by the prosecution on the order of the Court, but the same cannot be relied upon to reopen the proceedings once charge has been framed or for invocation of the High Court’s powers under Section 482 of the Code of Criminal Procedure.”
This is, more particularly, a case falling under the provisions of the Prevention of Corruption Act instituted by the Central Bureau of Investigation. Therefore, the argument of the learned Counsel for the Petitioner that in so far as the power of the trial court to discharge after the trial has commenced, there is vast difference between the cases falling under the Prevention of Corruption Act and the cases falling under any other penal enactment is only to be rejected. There can be no doubt that the Prevention of Corruption Act, being a special enactment will override the provisions of the Code of Criminal Procedure. Of course, it is also true that the Prevention of Corruption Act is both substantive as well as procedural. In so far as Section 19 of the Act is concerned, it is purely procedural. If I find any conflict between the procedure contemplated under Section 19 of the Prevention of Corruption Act and the procedure contemplated under the Code of Criminal Procedure, then this Court can hold Section 19 can only prevail upon.
20. In so far as the power to discharge an accused after the framing of charges is concerned, I find no provision in Section 19 of the Act or in any other provisions of the said Act to empower the Magistrate to do so. Similar provision is not found in the Code of Criminal Procedure also. Therefore, Section 19 of the Act cannot be interpreted in such a manner to empower the Magistrate to discharge an accused after the trial has commenced.
23. The learned Counsel for the Petitioner would rely on a decision in State of Goa Vs. Babu Thomas reported in 2005(6) Supreme 547 to substantiate his contention that the sanction is bad in law if the authority who issued the sanction is not the authority competent to remove the Public Servant from office. Regarding this legal proposition, there can be no doubt at all. Once it is held that the authority who issued sanction lacks jurisdiction, there can be no difficulty in holding that the sanction is bad. But, whether the sanction in this case is bad or not is a matter to be appreciated by the trial court at the stage of judgment and not at this stage.”
11. In view of the ratio laid down by this Court in the case cited supra and also with regard to the fact that already 37 witnesses have been examined and the sanctioning authority P.W.2 has also been examined, this Court is of the considered view that the petition filed by the petitioner before the trial Court seeking discharge is not maintainable. This Court does not find any infirmity in the order passed by the trial Court.
12. In the result, the revision petition is dismissed. Consequently M.P.No.1 of 2010 is closed.
ksr
To
1.The Special Judge for CBI Cases, Chennai
2.The Inspector of Police,
CBI/ACB/Chennai
3.The Special Public Prosecutor for CBI Cases,
Chennai