Manoranjan Samal vs State Of Orissa (Vig.) ......... Opp. ... on 18 June, 2018

[Cites 29, Cited by 1]

Orissa High Court

Manoranjan Samal vs State Of Orissa (Vig.) ......... Opp. ... on 18 June, 2018

Bench: S.K. Sahoo

IN THE HIGH COURT OF ORISSA, CUTTACK

CRLREV No. 298 of 2016

An application under section 401 read with section 397 of the
Code of Criminal Procedure, 1973 in connection with T.R. Case
No.47 of 2010 pending on the file of Special Judge (Vigilance),
Balasore.
---------------------------

Manoranjan Samal ......... Petitioner

-Versus-

State of Orissa (Vig.) ......... Opp. party

For Petitioner: - Mr. Harmohan Dhal
P.K. Mohanty-2
G.C. Sahu

For Opp. Party: - Mr. Sangram Das
Standing Counsel
(Vig. Department)
----------------------------
P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO
---------------------------------------------------------------------------------------------------
Date of Judgment: 18.06.2018
---------------------------------------------------------------------------------------------------

S. K. Sahoo, J. The petitioner Manoranjan Samal has filed this

revision petition under section 401 read with section 397 of the

Code of Criminal Procedure, 1973 to set aside the impugned

order dated 16.02.2016 passed by the learned Special Judge

(Vigilance), Balasore in T.R. Case No.47 of 2010 in rejecting his
2

petition under section 239 of Cr.P.C. for discharge with a further

prayer to set aside the impugned order dated 13.09.2016 in

framing charges under section 13(2) read with section

13(1)(d)(ii) and section 7 of the Prevention of Corruption Act,

1988 (hereafter for short '1988 Act'). The said case arises out of

Balasore Vigilance P.S. Case No.17 of 2010.

2. The case was registered under section 7 of 1988 Act

on 20.05.2010 on the first information report submitted by one

Kali Charan Sahoo of village-Rajpur wherein he stated that he is

a business man dealing with paddy and used to collect paddy

from different cultivators of Balasore and Bhadrak districts and

sell it at Medinipur of West Bengal. He further stated that he was

making necessary tax payment at R.M.C. as per the rules of the

Government at the rate of two per cent on the fixed rate of

paddy and used to produce the tax payment receipts at Forest

Gate, Jaleswar before the staff of R.M.C. It is further stated in

the F.I.R. that the employees of R.M.C. who were posted at the

Forest Gate namely Srustidhar Behera, Market Sarkar and the

petitioner who was the yardman were demanding Rs.50/- to

Rs.300/- from each vehicle for passing through the gate. If the

demand was not fulfilled, both the accused persons were not

leaving the vehicles and not putting stamp on the receipts and
3

even they used to take away the receipts of the R.M.C. If the

vehicles carrying paddy were passing the gate without complying

the demand of both the accused persons then they were to pay

further tax in the border toll gate. The R.M.C. staff posted in the

gate were collecting bribe forcibly from all the businessmen

dealing with paddy and rice. It is further stated that on

21.05.2010 in the morning hours, he would carry trucks load of

paddy purchasing it from Bhadrak to Medinipur and he has

already made necessary tax payment at R.M.C., Bhadrak and

obtained receipts and he was expecting that while passing

through the R.M.C. gate at Rajghat, for the purpose of stamping

the receipts, the two accused persons would demand Rs.550/-

otherwise they would not put any stamp. He further asserted

that against his will, he was going to make payment of bribe

money of Rs.550/- to the two accused persons including the

petitioner.

During course of investigation, the trap was laid after

making preparation to lay a trap and the petitioner and the co-

accused Srustidhar Behera were caught while demanding and

accepting the bribe money from the informant. The informant

and other witnesses gave their statements relating to demand

and acceptance of bribe money. The fingertips washes of the
4

accused persons were taken in sodium carbonate solution which

proved positive. The chemical examiner found traces of

phenolphthalein powder in the material exhibits. After obtaining

sanction for prosecution from Sub-collector -cum- Chairman,

R.M.C., Jaleswar, Balasore, charge sheet under sections 13(2)

read with 13(1)(d) and section 7 of 1988 Act was submitted

against the petitioner and co-accused Srustidhar Behera on

20.09.2010.

On submission of charge sheet, the learned Special

Judge (Vigilance), Balasore took cognizance of the offences

which was challenged by the petitioner before this Court in an

application under section 482 of Cr.P.C. in CRLMC No.1479 of

2012 and the same was dismissed as not pressed on 18.07.2012

with a liberty to file appropriate application at the stage of

framing of charge.

At the stage of framing of charge, when the

petitioner filed a petition for discharge, the learned trial Court

has been pleased to hold that a strong prima facie case with

regard to the demand of illegal gratification is available against

both the accused persons. It was further held that meticulous

examination of the materials at that stage is not necessary and

accordingly, the petition was dismissed vide order dated
5

16.02.2016 and subsequently on 13.09.2016 the learned trial

Court framed the charges.

3. Mr. Harmohan Dhal, learned counsel appearing for

the petitioner challenging the impugned orders contended that

there are discrepancies in the statement of the informant

recorded under section 164 Cr.P.C. vis-a-vis with that of the

overhearing witness relating to the acceptance and recovery of

bribe. He argued that both the informant and the overhearing

witness in their statements recorded under section 161 Cr.P.C.

have implicated co-accused Srustidhar Behera to have made the

demand and accepted the bribe money and in view of such

statements, no prima facie case is made out against the

petitioner. It is further contended that since the petitioner was

working as Yardman of R.M.C., Jaleswar, the Sub-Collector,

Balasore -cum- Chairman, R.M.C., Jaleswar was not the

competent authority to accord sanction for prosecution against

the petitioner as he was neither the appointing authority nor the

disciplinary authority and it is the Market Committee of the

R.M.C. who is the appointing authority and disciplinary authority

in respect of a Yardman and since the Market Committee has not

accorded any sanction for prosecution of the petitioner, the

continuance of prosecution against the petitioner on the basis of
6

sanction given by an incompetent authority is bad in law. Mr.

Dhal, citing some of the provisions of the Odisha Agricultural

Produce Markets Act, 1956 (hereafter '1956 Act') and the Odisha

Agricultural Produce Markets Rules, 1958 (hereafter '1958

Rules') submitted that the provisions of the 1956 Act and 1958

Rules make it clear that it is the Market Committee who is the

appointing authority as well as disciplinary authority of the

petitioner and not the Chairman of R.M.C. He asserted that since

valid sanction is the pre-requisite for taking cognizance of any

offence under the 1988 Act as stipulated under section 19 of the

said Act, the learned trial Court was not justified in not dealing

with the contentions raised relating to invalid sanction while

considering the petition for discharge. Learned counsel relied

upon the decisions of the Hon'ble Supreme Court in case of

Nanjappa -Vrs.- State of Karnataka reported in A.I.R. 2015

S.C. 3060, State of Goa -Vrs.- Babu Thomas reported in

A.I.R. 2005 S.C. 3606 and Parkash Singh Badal -Vrs.- State

of Punjab reported in A.I.R. 2007 S.C. 1274.

Mr. Sangram Das, learned Standing Counsel for the

Vigilance Department on the other hand while not countering the

invalidity of the sanction order contended that the plea of invalid

sanction is different than absence of sanction and such a plea
7

being essentially a question of fact is to be determined during

course of trial and the petitioner is at liberty to raise such issue

at the appropriate stage which is to be decided by the learned

trial Court in accordance with law. Learned counsel emphatically

contended that the learned trial Court has rightly not dealt with

the contentions raised relating to invalid sanction while

considering the petition for discharge otherwise any finding

thereon would have given scope to the petitioner to say that the

Court has already pre-judged a vital issue. He argued that

discrepancies if any, in the statements of the informant vis-à-vis

the overhearing witness is to be appreciated by the learned trial

Court at the appropriate stage and at this stage, it is not

expected of the Court to hold a mini trial. It is further contended

that not only there are prima facie materials on record against

the petitioner for framing the charges but also there is no

illegality or infirmity in the impugned orders passed by the

learned trial Court and therefore, the revision petition should be

dismissed. Learned counsel apart from relying upon the decision

of the Hon'ble Supreme Court in case of Parkash Singh Badal

(supra) also placed reliance in the cases of Dinesh Kumar

-Vrs.- Chairman, Airport Authority of India reported in

(2012) 1 Supreme Court Cases 532 and Director, C.B.I.
8

-Vrs.- Ashok Kumar Aswal reported in (2015) 16 Supreme

Court Cases 163.

4. In view of sub-section (1) of section 5 of 1988 Act, a

Special Judge in trying the accused persons shall follow the

procedure prescribed by the Cr.P.C., for the trial of warrant

cases by the Magistrates. Chapter XIX of Cr.P.C. deals with the

trial of warrant cases by the Magistrates. Section 239 of Cr.P.C.

which appears in the said chapter enumerates as to when the

accused shall be discharged. In view of such provision, when the

Magistrate considers the charge against the accused to be

groundless which means without any basis or foundation, the

accused can be discharged. For arriving at such a conclusion, the

Court has to consider the police report and the documents sent

with it under section 173 of Cr.P.C. The Court can also make

examination of the accused, if it is necessary. Opportunity of

hearing has to be provided to both the prosecution and the

accused at that stage. The truth, veracity and effect of the

materials proposed to be adduced by the prosecution during trial

are not to be meticulously adjudged. The likelihood of the

accused in succeeding to establish his probable defence cannot

be a ground for his discharge. The object of discharge under

section 239 of Cr.P.C. is to save the accused from unnecessary
9

and prolonged harassment. When the allegations are baseless or

without foundation and no prima facie case are made out, it

would be just and proper to discharge the accused to prevent

abuse of process of the Court. If there is no ground for

presuming that accused has committed an offence, the charges

must be considered to be groundless. The ground may be any

valid ground including the insufficiency of evidence to prove the

charge. When the materials at the time of consideration for

framing the charge are of such a nature that if unrebutted, it

would make out no case whatsoever, the accused should be

discharged.

In case of Amit Kapoor -Vrs.- Ramesh Chander

reported in (2012) 9 Supreme Court Cases 460, it is held as

follows:-

"12. Section 397 of the Code vests the Court
with the power to call for and examine the
records of an inferior Court for the purposes of
satisfying itself as to the legality and regularity
of any proceedings or order made in a case. The
object of this provision is to set right a patent
defect or an error of jurisdiction or law. There
has to be a well-founded error and it may not be
appropriate for the Court to scrutinize the
orders, which upon the face of it bears a token
of careful consideration and appear to be in
10

accordance with law. If one looks into the
various judgments of this Court, it emerges that
the revisional jurisdiction can be invoked where
the decisions under challenge are grossly
erroneous, there is no compliance with the
provisions of law, the finding recorded is based
on no evidence, material evidence is ignored or
judicial discretion is exercised arbitrarily or
perversely. These are not exhaustive classes,
but are merely indicative. Each case would have
to be determined on its own merits.
13. Another well-accepted norm is that the
revisional jurisdiction of the higher Court is a
very limited one and cannot be exercised in a
routine manner. One of the inbuilt restrictions is
that it should not be against an interim or
interlocutory order. The Court has to keep in
mind that the exercise of revisional jurisdiction
itself should not lead to injustice ex-facie. Where
the Court is dealing with the question as to
whether the charge has been framed properly
and in accordance with law in a given case, it
may be reluctant to interfere in exercise of its
revisional jurisdiction unless the case
substantially falls within the categories
aforestated. Even framing of charge is a much
advanced stage in the proceedings under the
Cr.P.C.
xxx xxx xxx xxx
11

17. Framing of a charge is an exercise of
jurisdiction by the trial Court in terms of Section
228 of the Code, unless the accused is
discharged under Section 227 of the Code.
Under both these provisions, the Court is
required to consider the 'record of the case' and
documents submitted therewith and, after
hearing the parties, may either discharge the
accused or where it appears to the Court and in
its opinion there is ground for presuming that
the accused has committed an offence, it shall
frame the charge. Once the facts and ingredients
of the Section exists, then the Court would be
right in presuming that there is ground to
proceed against the accused and frame the
charge accordingly. This presumption is not a
presumption of law as such. The satisfaction of
the Court in relation to the existence of
constituents of an offence and the facts leading
to that offence is a sine qua non for exercise of
such jurisdiction. It may even be weaker than a
prima facie case. There is a fine distinction
between the language of Sections 227 and 228
of the Code. Section 227 is expression of a
definite opinion and judgment of the Court while
Section 228 is tentative. Thus, to say that at the
stage of framing of charge, the Court should
form an opinion that the accused is certainly
guilty of committing an offence, is an approach
12

which is impermissible in terms of Section 228 of
the Code.
xxx xxx xxx xxx
19. At the initial stage of framing of a charge,
the Court is concerned not with proof but with a
strong suspicion that the accused has committed
an offence, which, if put to trial, could prove him
guilty. All that the Court has to see is that the
material on record and the facts would be
compatible with the innocence of the accused or
not. The final test of guilt is not to be applied at
that stage.....
20. The jurisdiction of the Court under Section
397 can be exercised so as to examine the
correctness, legality or proprietary of an order
passed by the trial Court or the inferior Court, as
the case may be. Though the section does not
specifically use the expression 'prevent abuse of
process of any Court or otherwise to secure the
ends of justice', the jurisdiction under Section
397 is a very limited one. The legality,
proprietary or correctness of an order passed by
a Court is the very foundation of exercise of
jurisdiction under Section 397 but ultimately it
also requires justice to be done. The jurisdiction
could be exercised where there is palpable error,
non-compliance with the provisions of law, the
decision is completely erroneous or where the
judicial discretion is exercised arbitrarily....... "
13

In case of State of Madhya Pradesh -Vrs.-

Mohanlal Soni reported in A.I.R. 2000 S.C. 2583, it is held

that at the stage of framing charge, the Court has to prima facie

consider whether there is sufficient ground for proceeding

against the accused. The Court is not required to appreciate the

evidence to conclude whether the materials produced are

sufficient or not for convicting the accused. If the evidence which

the prosecution proposes to produce to prove the guilt of the

accused, even if fully accepted before it is challenged by the

cross-examination or rebutted by the defence evidence, if any,

cannot show that accused committed the particular offence then

the charge can be quashed.

In case of State of M.P. -Vrs.- Awadh Kishore

Gupta reported in (2004) 1 Supreme Court Cases 691, it is

held that when charge is framed, at that stage, the Court has to

only prima facie be satisfied about existence of sufficient ground

for proceeding against the accused. For that limited purpose, the

Court can evaluate materials and documents on records but it

cannot appreciate evidence.

5. Adverting to the contentions raised by the learned

counsel for the petitioner relating to the discrepancies in the

statement of the informant vis-a-vis the overhearing witness, it
14

appears that in the first information report itself, the demand of

bribe money by both the accused persons including the petitioner

from each vehicle for passing through the gate finds place. The

informant in his 161 Cr.P.C. statement has also stated about the

demand of Rs.600/- made by the petitioner and the co-accused

just before the trap and acceptance of bribe money by co-

accused Srustidhar Behera. The over hearing witness Dhruba

Charana Behera in his 161 Cr.P.C. statement has also

corroborated the statement of the informant in that respect. In

the 164 Cr.P.C. statement, the informant has also stated about

the demand of bribe by both the accused persons including the

petitioner and acceptance of bribe money by co-accused

Srustidhar Behera. Of course in the 164 Cr.P.C. statement, the

over hearing witness has stated in a different manner that the

petitioner accepted the bribe money but since appreciation of

evidence is not permissible at this stage and no finding can be

given as to whether in view of the contradictory 164 Cr.P.C.

statement of the over hearing witness, it would be sufficient or

not for convicting the petitioner, I am unable to accept the

contention of petitioner's counsel that in view of such

discrepancies, no prima facie case is made out against the

petitioner.
15

6. Before dealing with the next submission made by the

learned counsel for the petitioner relating to invalid sanction, it

would be worthwhile to discuss the citations placed by the

respective parties.

In case of Nanjappa -Vrs.- State of Karnataka

reported in A.I.R. 2015 S.C. 3060, it is held as follows:-

"15. The legal position regarding the importance
of sanction under section 19 of the Prevention of
Corruption Act 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
16

offences, upon grant of a valid sanction for such
prosecution.
16......The first relates to the effect of sub-
section (3) to section 19, which starts with a
non-obstante clause......What is noteworthy is
that sub-section (3) has no application to
proceedings before the Special Judge, who is
free to pass an order discharging the accused, if
he is of the opinion that a valid order sanctioning
prosecution of the accused had not been
produced as required under section 19(1).....It
does not forbid a Special Judge from passing an
order at whatever stage of the proceedings
holding that the prosecution is not maintainable
for want of a valid order sanctioning the same.
The language employed in sub-section (3) is, in
our opinion, clear and unambiguous.....Suffice it
to say, that a conjoint reading of sub-sections
19(3) and (4) leaves no manner of doubt that
the said provisions envisage a challenge to the
validity of the order of sanction or the validity of
the proceedings including finding, sentence or
order passed by the Special Judge in appeal or
revision before a higher Court and not before the
Special Judge trying the accused..."

In case of State of Goa -Vrs.- Babu Thomas

reported in A.I.R. 2005 S.C. 3606, it is held as follows:-
17

"10. In the present case, the appellant does not
dispute that the sanction order dated 2.1.95 was
issued under the signatures of the Company
Secretary. There was no reference to the
decision/resolution being passed by the Board of
Directors pursuant to which the sanction order
was issued under the signatures of the Company
Secretary. It is also not disputed that the second
sanction order dated 7.9.97 issued by the
Chairman and Managing Director of the
Company also did not refer to any
resolution/decision taken by the Board
collectively pursuant to which the second
sanction order was issued. In the facts and
circumstances, as adumbrated above, the view
taken by the High Court cannot be said to be
unjustified.
xxx xxx xxx xxx
12......According to the counsel for the appellant
no failure of justice has occasioned merely
because there was an error, omission or
irregularity in the sanction required because
evidence is yet to start and in that view the High
Court has not considered this aspect of the
matter and it is a fit case to intervene by this
Court. We are unable to accept this contention
of the counsel. The present is not the case
where there has been mere irregularity, error or
omission in the order of sanction as required
under sub-section (1) of section 19 of the Act. It
18

goes to the root of the prosecution case. Sub-
section (1) of section 19 clearly prohibits that
the Court shall not 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 as
stated in clauses (a), (b) and (c).
13. As already noticed, the sanction order is not
a mere irregularity, error or omission. The first
sanction order dated 2.1.95 was issued by an
authority that was not a competent authority to
have issued such order under the Rules. The
second sanction order dated 7.9.97 was also
issued by an authority, which was not competent
to issue the same under the relevant rules, apart
from the fact that the same was issued
retrospectively w.e.f. 14.9.94, which is bad. The
cognizance was taken by the Special Judge on
29.5.95. Therefore, when the Special Judge took
cognizance on 29.5.95, there was no sanction
order under the law authorising him to take
cognizance. This is a fundamental error which
invalidates the cognizance as without
jurisdiction."

In case of Parkash Singh Badal -Vrs.- State of

Punjab reported in A.I.R. 2007 S.C. 1274, it is held as

follows:-
19

"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 considered not 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 root of jurisdiction
as observed in para 95 of the Narasimha Rao's
case [(1998) 4 SCC 626] . 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.
xxx xxx xxx xxx
48. The sanction in the instant case related to
offences relatable to Act. There is a distinction
between the absence of sanction and the alleged
invalidity on account of non-application of mind.
The former question can be agitated at the
threshold but the latter is a question which has
to be raised during trial."
20

In case of Dinesh Kumar -Vrs.- Chairman, Airport

Authority of India reported in (2012) 1 Supreme Court

Cases 532, it is held as follows:-

"9. While drawing a distinction between the
absence of sanction and invalidity of the
sanction, this Court in Parkash Singh Badal
(2007) 1 SCC 1 expressed in no uncertain terms
that the absence of sanction could be raised at
the inception and threshold by an aggrieved
person. However, where sanction order exists,
but its legality and validity is put in question,
such issue has to be raised in the course of trial.
Of course, in Parkash Singh Badal : (2007) 1
SCC 1, this Court referred to invalidity of
sanction on account of non-application of mind.
10. In our view, invalidity of sanction where
sanction order exists, can be raised on diverse
grounds like non-availability of material before
the sanctioning authority or bias of the
sanctioning authority or the order of sanction
having been passed by an authority not
authorised or competent to grant such sanction.
The above grounds are only illustrative and not
exhaustive. All such grounds of invalidity or
illegality of sanction would fall in the same
category like the ground of invalidity of sanction
on account of non-application of mind - a
category carved out by this Court in Parkash
Singh Badal : (2007) 1 SCC 1, the challenge to
21

which can always be raised in the course of
trial."

In case of Director, C.B.I. -Vrs.- Ashok Kumar

Aswal reported in (2015) 16 Supreme Court Cases 163, it

is held as follows:-

"15. All the above apart, time and again, this
Court has laid down that the validity of a
sanction order, if one exists, has to be tested on
the touchstone of the prejudice to the accused
which is essentially a question of fact and,
therefore, should be left to be determined in the
course of the trial and not in the exercise of
jurisdiction either under section 482 of the Code
of Criminal Procedure, 1973 or in a proceeding
under Article 226/227 of the Constitution."

7. Keeping in view the citations placed by the

respective sides, it is not in dispute that it was specifically urged

on behalf of the petitioner before the learned trial Court during

the hearing of the discharge petition as appears from the

impugned order that the authority which accorded sanction for

prosecution against the petitioner was not competent one. The

learned trial Court did not deal with such aspect.

In view of Chapter XIX of Cr.P.C., which deals with

trial of warrant cases by Magistrates which is applicable to the

trial of offences under the 1988 Act as envisaged under section
22

5, it can be said while considering the discharge petition under

section 239 of Cr.P.C., the trial has commenced. The submission

of learned Standing Counsel for the Vigilance Department that

'trial' commences only with recording of evidence is basically

fallacious.

In case of The State of Bihar -Vrs.- Ram Naresh

Pandey reported in A.I.R. 1957 S.C. 389, it is held as

follows:-

"9. There is hardly anything in this definition
which throws light on the question whether the
word 'trial' is used in the relevant section in a
limited sense as excluding an inquiry. The word
'trial' is not defined in the Code. 'Trial' according
to Stroud's Judicial Dictionary means "the
conclusion, by a competent tribunal, of
questions in issue in legal proceedings, whether
civil or criminal" [Stround's Judicial Dictionary,
3rd Ed., Vol. 4, p. 3092.] and according to
Wharton's Law Lexicon means "the hearing of a
cause, civil or criminal, before a judge who has
jurisdiction over it, according to the laws of the
land" [Wharton's Law Lexicon, 14th Ed., p.
1011.]. The words 'tried' and 'trial' appear to
have no fixed or universal meaning. No doubt, in
quite a number of sections in the Code to which
our attention has been drawn the words 'tried'
and 'trial' have been used in the sense of
23

reference to a stage after the inquiry. That
meaning attaches to the words in those sections
having regard to the context in which they are
used. There is no reason why where these words
are used in another context in the Code, they
should necessarily be limited in their connotation
and significance. They are words which must be
considered with regard to the particular context
in which they are used and with regard to the
scheme and purpose of the provision under
consideration."

In case of V.C. Shukla -Vrs.- State through C.B.I.

reported in A.I.R. 1980 S.C. 962, it is held as follows:-

"48........We are, however, unable to agree with
this argument because it appears that the
enactment of section 251-A by virtue of the
amendment of 1955, the words 'commencement
of trial' were introduced for the first time which
clearly denote that the trial starts in a warrant
case right from the stage when the accused
appears or is brought before the Court. This
appears to us to be the main intent and purpose
of introducing the words 'commencement of
trial' by the amendment Act of 1955 which did
not appear in the Code of 1898 or in the various
amendments made before the Act of 1955 to the
Code. Thus, if the trial begins at that stage, it
cannot be said that the proceedings starting with
24

section 251-A onwards amount to an inquiry
within the meaning of Section 2(j) of the Code.
Furthermore, it would appear that the
amendment of 1955 in fact simplified the entire
procedure for trial of warrant cases by a
Magistrate by not requiring the Magistrate to
record any evidence before framing of the
charge or discharging the accused. All that the
Magistrate had to do was to satisfy himself that
the documents referred to in section 173 had
been furnished to the accused and if that had
not been done, to direct that the documents
should be furnished. Thereafter, the Magistrate
on consideration of the documents referred to in
section 173 only and without recording any
evidence, was to examine the accused if he
considered necessary, and after hearing the
parties proceed either to frame the charge or to
discharge the accused. In other words, the
simplified procedure introduced by the
amendment of 1955, which is now retained by
the Code in Ss. 238 to 240, amounts to a trial
from beginning to end. The fact that no evidence
is to be recorded before framing of the charge
and the Magistrate has to proceed only on the
documents referred to under section 173, i.e.,
the statement recorded in the case diary, and
other papers or materials collected by the police,
clearly shows that these proceedings are not an
inquiry at all because the scheme of the Code
25

generally appears to be that whenever an
inquiry is held, evidence or affidavits have to be
recorded by the Court before passing an order.
This, therefore, an additional reason to hold that
the proceedings starting from section 251-A in
the previous Code and section 238 in the Code
of 1973, do not amount to an inquiry at all but
amount to the starting of a trial straightaway.
Contrasted with the procedure which prevailed
under the Code of 1898, prior to the amendment
of 1955, there was express provision for
recording of evidence before the charge and that
procedure undoubtedly amounted to an inquiry
which has now been dropped by the amendment
of 1955 and retained by the Code. For these
reasons, therefore, we are satisfied that the
proceedings starting with section 238 of the
Code including any discharge or framing of
charges under section 239 or section 240
amount to a trial. The question of a pre-trial, as
suggested by the counsel for the appellant, does
not arise on a plain interpretation of the
language of Ss. 238 and 239 which were the
same as section 251-A under the Code of 1898
as amended by the Act of 1955."

In case of Hanumantsing Kubersing -Vrs.- State

of Madhya Pradesh reported in ILR (1995) MP 526, a Full

Bench of Madhya Pradesh High Court held that in warrant cases
26

instituted on a police report, proceedings starting with section

238 including discharge or framing of charges under section 239

or section 240 amount to a trial.

If the trial commenced at the stage of section 239 of

Cr.P.C. and issue relating to the legality and validity of the

sanction order can be raised in the course of trial, since the

petitioner raised such issue before the trial Court during

consideration of his discharge petition, it was improper on the

part of the Court not to deal with the same and not to apply its

mind to such vital issue. Courts are there in India to decide an

issue raised in a case legally, impartially and objectively and not

to act at its whim and pleasure. An order dismissing the

discharge petition and framing of charges against an accused

undoubtedly decides an important aspect of the trial and it is the

duty of the Court to apply its judicial mind to the materials and

come to a clear conclusion that prima facie case has been made

out on the basis of which it would be justified in framing charges.

The contention raised by the learned Standing Counsel for the

Vigilance Department that any finding at that stage relating to

invalid sanction or otherwise would have given scope to the

petitioner to say that the Court has already pre-judged a vital

issue, is equally fallacious. Since in view of the ratio laid down in
27

case of Nanjappa (supra), in case the sanction is found to be

invalid, the Court can discharge the accused and the petitioner

was raising such issue before the trial Court, he cannot have any

grievance on the consideration of such issue. If after

consideration, the finding goes against him, he can approach the

higher Court but certainly he cannot say that the Court has pre-

judged the issue. A Court should be fully aware of its power,

limitations at each stage of the proceeding otherwise there is

every chance of failure of justice.

8. Now the question which crops up for consideration is

whether the Sub-Collector, Balasore -cum- Chairman, R.M.C.,

Jaleswar was the competent authority to accord sanction for

prosecution under section 19(1) of 1988 Act against the

petitioner who was the Yard man of R.M.C., Jaleswar? If the

answer is given in affirmative then the trial would continue till its

logical end. However, if the answer is given in negative then the

order of taking cognizance and obviously the order of framing

charges would be quashed.

To consider this vital issue, the discussions of some

of the provisions of the 1956 Act and the 1958 Rules are

necessary. Section 2(viii) of the 1956 Act states that the Market

Committee means a committee established under Section 5.
28

Section 5 of the 1956 Act deals with establishment of Market

Committee by the State Government for every market area.

Section 6 of the 1956 Act deals with constitution of Market

Committee which shall consist of seventeen members which,

inter alia, indicates that there shall be a Chairman and a Vice-

Chairman for every Market Committee, who shall be nominated

by the State Government. Section 9 of the 1956 Act empowers

the Market Committee to employ such officers and employees as

may be necessary for the management of the market and to pay

such officers and employees such salaries as the Market

Committee thinks fit. Rule 33(1) of the 1958 Rules states that

the Market Committee for proper management of the market

may appoint such officers and servants as may be necessary and

in view of Rule 33(4), the Market Committee shall be the

Disciplinary Authority in respect of all officers and servants of the

Committee. Rule 25 of the 1958 Rules deals with the functions

and powers of the Chairman which, inter alia, states that the

Chairman shall be the controlling and supervising officer of the

Market Committee and all officers and servants of the Market

Committee shall, subject to the rules and the direction, if any,

given by the Market Committee, be subject to his control. Rule

26 of the 1958 Rules, inter alia, states that every meeting of
29

Market Committee shall be presided by the Chairman who is also

entitled to speak and vote on all questions at the meeting and all

questions which may come up before the Committee at any

meeting shall be decided by the vote of the majority of the

members present at the meeting and in every case of equality of

votes, the President of the meeting shall have and exercise a

second or casting vote.

In view of the aforesaid sections of 1956 Act and

1958 Rules, it is clear that the Market Committee is the

Appointing Authority as well as Disciplinary Authority so far as

the petitioner is concerned who was the Yard man of R.M.C.,

Jaleswar, Balasore. The Chairman is one of the members of

Market Committee who has to be nominated by the State

Government. The Chairman is of course the controlling and

supervising officer of the Market Committee and all the officers

and servants of the Market Committee are under his control and

he has to preside over every meeting of the Market Committee

but he cannot be said to be alone the competent sanctioning

authority for prosecution of the petitioners for alleged

commission of offences under the 1988 Act. The sanction aspect

for prosecution has to be considered by the Market Committee

and not alone by the Chairman. Obviously the majority decision
30

of the Market Committee in that respect would prevail. There is

even nothing on record that the Chairman has been entrusted by

the Market Committee to take decision relating to sanction of

prosecution of the petitioner. No decision/resolution of the

Market Committee is there pursuant to which the sanction order

was passed. Even though in the sanction order, the Sub-

Collector, Balasore -cum- Chairman, R.M.C., Jaleswar has

mentioned that he is the competent authority to remove the

petitioner, therefore, he accorded sanction for prosecution of the

petitioner after going through the relevant prosecution papers

but in view of the foregoing discussions, the observation of the

Chairman, R.M.C. is misconceived.

A single Judge of Punjab and Haryana High Court in

case of Jarnail Singh and Ors. -Vrs.- State of Punjab (CRA-

S-418-SB of 2005 and CRA-S-404-SB of 2005) decided on

07.04.2015 held as follows:-

"16. This Committee consists of the Chairman of
the Committee, as its President, District Mandi
Officer or his nominee, not below the rank of an
Assistant District Mandi Officer as expert
representative and two other representatives,
one each out of the Scheduled Castes and Ex-
Servicemen, to be nominated by the Committee
31

from amongst its members. As such, it is the
Committee who can take disciplinary action and
impose penalties and give punishment to the
delinquent officials of the Punjab Market
Committees. Sanction order Ex. PW5/A shows
that sanction to prosecute was given by the
Chairman alone. Chairman, Market Committee,
is one of the members of the Committee. May be
the Chairman is the President of the Committee
but he alone is not competent to give sanction to
prosecute. Sanction order Ex. PW5/A nowhere
states that meeting of the Committee was called
for according sanction to prosecute the
accused/appellants or their matter was
considered by the Committee and thereafter, the
Committee being satisfied that the
accused/appellants have committed the offence
under Section 7 and 13(i)(d)/13(2) of the Act
and only then accorded sanction. As sanction to
prosecute was not given by the authority, which
was competent to give sanction and was also the
punishing authority, the sanction is not a valid
sanction. Chairman of the Market Committee, of
course written in sanction order that he is
competent to dismiss the accused/appellants yet
this observation of the Chairman is
misconceived. He alone cannot do so. It is the
Committee who can dismiss the
accused/appellants. "State of Goa v. Babu
Thomas : 2005(4) RCR (Criminal) 349 (SC)" is
32

the judgment of the Division Bench of the
Hon'ble Apex Court of India. It is fully applicable
to the present case. In the aforesaid judgment
the power of appointment and dismissal vested
in Board of Directors. Sanction for prosecution
was issued by Chairman of the company. Under
those circumstances, it was held by the Hon'ble
Apex Court that it is not valid sanction. Order of
Court taking cognizance was set aside.

17. In the case in hand as well, power of
appointment and dismissal is with the
Committee whereas the sanction for prosecution
has been given by the Chairman alone. As such,
it is not a valid sanction and for this very reason,
the Court cannot take cognizance and the
accused/appellants are entitled to acquittal."

The learned Standing Counsel for the Vigilance

Department did not counter the invalidity of sanction order.

Therefore, in view of the relevant provisions of the 1956 Act and

the 1958 Rules, the sanction order issued by the Sub-Collector,

Balasore -cum- Chairman, R.M.C., Jaleswar for prosecution of

the petitioner for offences under 1988 Act is invalid. When there

is an express legal bar enacted in the 1988 Act to the very taking

of cognizance of offences, inter alia, under sections 7 and 13 of

the Act by the Court except with previous sanction by the
33

competent authority and such a bar is intended to provide

specific protection to an accused, as the sanction order in

respect of the petitioner is held to be invalid being granted by an

incompetent authority which goes to the root of the prosecution

case, on a careful analysis, I am of the view that impugned

orders are liable to be set aside. I am conscious of the fact that

the power of quashing the charge framed in terms of

section 240 of Cr.P.C. should be exercised very sparingly and

with circumspection and that too in the rarest of rare cases but

since I am of the view that quashing in the present case is

absolutely essential to prevent patent miscarriage of justice and

to do real and substantial justice, I have to accept the prayer

made in this petition, however in view of the observation made

in case of Nanjappa (supra), the prosecution is at liberty to

obtain a fresh sanction order for prosecution of the petitioner

from the competent authority and proceed in accordance with

law.

9. In the light of foregoing discussion, I am of the

considered opinion that the impugned orders passed by the

learned trial Court in rejecting the petition filed by the petitioner

under section 239 of Cr.P.C. and framing of charges under

section 7 and section 13(2) read with section 13(1)(d)(ii) of the
34

Prevention of Corruption Act, 1988 against the petitioner is not

sustainable in the eye of law and the same is hereby set aside.

Anything said or any observation made in this

judgment shall not influence the mind of the learned trial Court

to adjudicate the trial in respect of co-accused Srustidhar Behera

in accordance with law.

Accordingly, the CRLREV petition is allowed.

..............................
S.K. Sahoo, J.

Orissa High Court, Cuttack The 18th June 2018/Sukanta

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