Jharkhand High Court
Prakash Chandra Mishra vs State Of Jharkhand Through Vigilance on 9 January, 2020
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1030 of 2018
Prakash Chandra Mishra, son of late Dibya Singh Mishra, Aged
about 59 years, Resident of Opposite Electricity Board Guest
House, Doranda, Namkum Road, Kusai Colony, Doranda, P.O.
& P.S.- Doranda, District - Ranchi
... ... Petitioner
Versus
1. State of Jharkhand through Vigilance
2. Principal Secretary-cum-Legal Remembrancer, Law (Justice)
Department, Govt. of Jharkhand, Project Building, P.O. &
P.S.- Dhurwa, District - Ranchi.
3. Union of India through the Under Secretary, Govt. of India,
Ministry of Environment, Forest & Climate Change,
Vigilance Division, Indira Paryawaran Bhawan, Jorbag
Road, Aliganj, New Delhi - 110003 ... ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Bhanu Kumar, Advocate
: Ms. Bharti Kumari, Advocate
For the U.O.I. : Mr. Rajiv Sinha, A.S.G.I.
Mr. Niraj Verma, Advocate
For the A.C.B. : Mr. T. N. Verma, Advocate
For the State : Mr. Jai Prakash, A.A.G.-I
Mr. Yogesh Modi, Advocate
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13/09.01.2020 Heard Mr. Bhanu Kumar alongwith Ms. Bharti Kumari,
the learned counsels appearing for the petitioner.
2. Heard Mr. Rajiv Sinha, learned Assistant Solicitor General of India alongwith Mr. Niraj Verma, the learned counsel appearing for the Union of India.
3. Heard Mr. T. N. Verma, learned counsel appearing for the Anti-
Corruption Bureau, Ranchi.
4. Heard Mr. Jai Prakash, learned Additional Advocate General-I alongwith Mr. Yogesh Modi, learned counsel appearing for the State of Jharkhand.
25. This petition has been filed for the following reliefs:
(a) For quashing the Order No. 15/J dated 15.04.2015 in connection with Vigilance Special Case No. 66 of 2010 corresponding to Vigilance P.S. Case No. 49 of 2010 issued by the Principal Secretary-cum-Legal Remembrancer, Law (Justice) Department, Jharkhand, Ranchi by which sanction for prosecution of the petitioner under Sections 420, 120B, 467, 468, 471, 109, 409 and 406 of IPC has been granted under Section 197(1)(b) of Cr.P.C.
which, according to the petitioner, is without proper application of mind.
(b) For quashing the Order No. 15011/4/2015-AVU dated 08.02.2018 issued by the Under Secretary, Government of India, Ministry of Environment, Forests & Climate Change, Vigilance Division, New Delhi by which sanction for prosecution of the petitioner under Sections 406, 409, 420, 467, 468, 471, 120(B), 109 of IPC and Sections 13(2) r/w 13(1)(D) of the Prevention of Corruption Act, 1988 has been granted under Section 19 of the Prevention of Corruption Act, 1988 which, according to the petitioner, is without proper application of mind.
(c) For quashing the order taking cognizance dated 26.02.2018 passed by the learned Special Judge (A.C.B.), Ranchi in Vigilance (Special) Case No. 66(A)/2010 corresponding to Vigilance P.S. Case No. 49 of 2010.
6. The learned counsel for the petitioner has submitted as under:
(i) One order dated 09.09.2010 (Annexure-1) was passed by this Court in a Public Interest Litigation being W.P.(PIL) No. 4597 of 2009 with W.P.(PIL) No. 2772 of 2009 wherein, inter alia, liberty was given to the petitioners of the said case to file First Information Report with the police station and this very order forms the basis of initiation of the criminal proceedings against the petitioner, although the 3 petitioner was not impleaded as a party respondent in the said case.
(ii) One Bhola Nath Singh had filed a written complaint before the Director General, Vigilance, State of Jharkhand, Ranchi for lodging First Information Report against four persons in which the petitioner was named as accused no.
4 in the capacity of the then Director, Sports pertaining to conduct of 34th National Games at Ranchi. However, the informant i.e. Bhola Nath Singh had mentioned in the written information dated 27.09.2010 (Annexure-4) that it is apparent from the facts stated therein that the accused nos. 1 to 3 have resorted to several acts of misappropriation, defalcation and embezzlement of public funds and in turn, trying to shift their liability upon the then Chief Minister, Sports Minister and Director, Sports. The learned counsel for the petitioner submits that accordingly it was crystal clear that although the petitioner was named as accused no. 4, but he had no role in the alleged act of misappropriation, defalcation and embezzlement of public fund.
(iii) It is the specific grievance of the petitioner that although the petitioner was not impleaded as respondent in the said Public Interest Litigation, still without any preliminary enquiry conducted against the petitioner, an F.I.R. (Annexure-5) was lodged vide Vigilance P.S. Case No. 49/2010 dated 06.10.2010 under Sections 420, 120B, 467, 468, 471, 109, 409, 406 of Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against four persons including the petitioner. It has been pointed out by the learned counsel for the petitioner that surprisingly in the written information, the name of the petitioner was at serial no. 4, whereas in the First Information Report, the name of the 4 petitioner has been mentioned at serial no. 3, which indicates mala fide intention of the Vigilance Bureau.
(iv) The learned counsel further submits that there is clear provision in the order dated 07.02.1983 (Annexure-6) issued by the Chief Secretary, Cabinet (Vigilance) Department, Government of Bihar that prior approval of the Chief Minister and Chief Secretary is mandatory for initiation of enquiry and lodging of the First Information Report against members of All India Service. He submits that since petitioner belongs to the cadre of Indian Forest Service, it was necessary to obtain prior approval, but without approval of the competent authority, the F.I.R. was lodged which is wholly illegal.
(v) While coming to the merits of the case, the learned counsel submits that for the purchase of items for 34th National Games at Ranchi, a special tender committee was constituted vide Notification No. 884 dated 19.04.2008 consisting of eight persons including the petitioner and therefore, the purchase of items was done on the basis of collective decision of the aforesaid special tender committee under the chairmanship of Secretary, Art, Culture, Sports and Youth Affairs department.
(vi) After investigation, charge-sheet was submitted vide Charge-sheet No. 2/15 dated 09.01.2015 interalia against the petitioner and the investigation is continued. Submissions regarding sanction for prosecution granted by the State Government
(vii) The sanction for prosecution dated 15.04.2015 against the petitioner was granted by the Principal Secretary-cum- Legal Remembrancer, Law (Justice) Department, Jharkhand, Ranchi. Sanction for prosecution dated 08.02.2018 against the petitioner has also been granted by the Under Secretary, Government of India, Ministry of 5 Environment, Forests & Climate Change, Vigilance Division, New Delhi. Both the sanction orders are impugned in the present petition. It is not in dispute that subsequently supplementary charge-sheet has been submitted by the prosecution, but the same is not on record of the present case.
(viii) The learned counsel further submits that he has obtained the relevant file regarding grant of sanction dated 15.04.2015 by the Principal Secretary-cum-Legal Remembrancer, Law (Justice) Department, Jharkhand, Ranchi under Right to Information Act, 2005 (Annexure-
11). By referring to the file noting (Annexure-11), the learned counsel submits that file note clearly goes to show that no approval of the competent authority was taken before lodging of First Information Report against the petitioner. File note clearly goes to show further that without obtaining the memorandum of evidence, decision for grant of sanction for prosecution was taken and mentions that on the basis of telephonic talk between the Special Secretary and Principal Secretary of Forest and Environment Department, in view of the Letter dated 08.01.2015 of the Additional Superintendent of Police, Vigilance, file was put up before the Special Secretary, Forest and Environment Department, Government of Jharkhand for grant of sanction and the sanction was accorded by the Hon'ble Chief Minister.
(ix) The learned counsel submits that the Superintendent of Police, Vigilance Bureau, Ranchi vide Letters dated 22.10.2014, 02.12.2014 and 20.01.2015, as contained in Annexure-22-series and the Cabinet (Vigilance) Department, Jharkhand vide Letter dated 18.02.2015 (Annexure-23), pressurized the Principal Secretary, Forest and Environment Department, Jharkhand, Ranchi for 6 grant of sanction for prosecution against the petitioner and accordingly, the order of sanction is in teeth of the judgments passed by the Hon'ble Supreme Court. He has also referred to the Letter dated 08.01.2015 of the Additional Superintendent of Police, Vigilance Bureau, Ranchi contained at Annexure-18 of the present petition, wherein the Additional S.P., Vigilance, after citing some decisions of the Hon'ble Supreme Court, has vehemently requested for grant of sanction for prosecution against the petitioner, which is wholly illegal.
(x) It is submitted by the learned counsel for the petitioner that on the basis of the Letter dated 08.01.2015 of Additional S.P., Vigilance Bureau, Ranchi, merely on telephonic talk, sanction for prosecution was granted against the petitioner, which is a glaring and classical example of non-application of mind on the part of the controlling department because it is the administrative department only, who is the competent authority to apply its mind and then to grant sanction for prosecution as per the settled law.
(xi) The learned counsel for the petitioner has further referred to the File Note to show that once again approval of the Hon'ble Chief Minister, Jharkhand was obtained for grant of sanction for prosecution without examining relevant documents and on the basis of telephonic talk, which is wholly illegal.
(xii) The learned counsel for the petitioner, by referring to the aforesaid file notings, submits that the records of the case would reflect that there is total non-application of mind while granting sanction and the sanction itself was granted under the pressure of some of the officers of the Vigilance Department. In this background, he submits 7 that there has been no independent application of mind while granting sanction for prosecution of the petitioner. Submissions regarding sanction for prosecution granted by the Central Government
(xiii) The learned counsel for the petitioner further refers to the sanction for prosecution dated 08.02.2018 granted by the Under Secretary, Government of India, Ministry of Environment, Forests & Climate Change, Vigilance Division, New Delhi and submits that the perusal of the aforesaid sanction order goes to show that only on the alleged ground that the petitioner visited sports department after his transfer and some pages were missing as also large number of files pertaining to the National Games were seized from the residence of the petitioner, the sanction for prosecution has been granted.
(xiv) The learned counsel for the petitioner submits that the petitioner was repatriated on 30.09.2009 to the Forest Department from the Sports Department and immediately, relevant files were handed over to the Treasurer of National Games Organizing Committee upon the orders of working Chairman and Secretary, Sports Department. He further submits that in the charge- sheet or in the audit report, there is no mention about the tempering of any evidence in the files. He submits that it is a usual practice that shadow files of important files are kept by senior officials from the point of safety and security. The learned counsel further submits that no prima facie allegation of commission of offence pertaining to misappropriation, embezzlement or forgery has been found against the petitioner and therefore, the impugned order of grant of sanction is wholly illegal and is an example of non-application of mind.
8(xv) The learned counsel for the petitioner has further referred to a circular dated 25.05.2015 said to have been issued by the Central Vigilance Commission. The learned counsel submits that it has been provided in the said circular that sanction has to be granted within a period of three months after complete and conscious scrutiny of the whole record and application of mind. In the case of the petitioner, although the F.I.R. was lodged on 06.10.2010, sanction was granted after lapse of 5 years in violation of the guidelines and that too, on the basis of telephonic talk without application of mind. Therefore, the guidelines of the aforesaid circular and also the guidelines of the Hon'ble Supreme Court have been violated and the impugned order of sanction is wholly without jurisdiction.
(xvi) The learned counsel for the petitioner further refers to Annexure-15 which is dated 27.10.1999, to submit that the Department of Personnel & Training, Government of India has issued a letter to all the Chief Secretaries on the point of sanction for prosecution under the provisions of Prevention of Corruption Act, 1988, wherein it has been mentioned that previous sanction of appropriate administrative authority for launching prosecution against a public servant is mandatory. He further submits that the said letter provides for a checklist, which has to be followed before sending proposal by the State Government to the Government of India for grant of sanction. He submits that in the present case, the said circular has been violated. He submits that the Hon'ble Chief Minister is the competent authority, but surprisingly enough, approval of the Hon'ble Chief Minister for offence under the provisions of Prevention of Corruption Act, 1988 was not obtained and therefore, the 9 impugned order of sanction under the Prevention of Corruption Act, 1988 is vitiated and cannot be sustained in the eyes of law. He further submits that although the sanction for prosecution for offence under the Indian Penal Code was granted by the Hon'ble Chief Minister, however, the sanction for prosecution with regard to offence under the Prevention of Corruption Act was not granted and no approval of the Hon'ble Chief Minister was obtained. Accordingly, he submits that the order granting sanction for prosecution under the provisions of Prevention of Corruption Act, 1988, which has been granted by the Government of India, is wholly illegal. (xvii) The learned counsel for the petitioner submits that vide Letter No. 3374 dated 26.06.2015 (Annexure-17), the Deputy Secretary, Forest & Environment Department, Government of Jharkhand sent a letter to the Director, Vigilance, Ministry of Environment, Forests & Climate Change, New Delhi for grant of sanction for prosecution for offence under Prevention of Corruption Act, 1988 without obtaining approval of the Hon'ble Chief Minister and such action is against the guidelines contained in the DoPT Circular dated 28.07.2014 (Annexure-25). Other Submissions (xviii)The learned counsel for the petitioner has further referred to the Annexure-19, which is an order dated 21.05.2015 passed in the bail application of the petitioner along with other co-accused in B.A. No. 1305 of 2015 with B.A. No. 2405 of 2015, wherein it has been observed by this Court that the petitioner alone cannot be held responsible for the decision taken by the executive board and this Hon'ble Court, in the bail order, has been pleased to observe that there is no allegation against the petitioner that there was any personal wrongful gain to him in the entire 10 transaction. The learned counsel submits that considering the observations made by this Court in the bail order which can be taken to be a finding, no prima facie case or any criminal offence or criminality appears to have been made out against the petitioner. Accordingly, he submits that the entire criminal proceedings including the sanction order as well as the order taking cognizance are fit to be set-aside.
(xix) Learned counsel for the petitioner, while referring to the Charge-sheet, has submits that from the perusal of the charge-sheet, it goes to show that the basis of filing of the charge-sheet is nothing, but the audit report of the Accountant General in which there is alleged irregularity of Rs.28.38 Crores in purchase of items for National Games and there is no allegation regarding complicity of the petitioner in any misappropriation or embezzlement of any money out of public exchequer.
(xx) The learned counsel further submits that the audit is governed by the provisions of Regulations on Audit and Accounts and there is specific provision for fixing responsibilities upon individual for finding their guilt. He further submits that in the present case, without complying with Audit Regulation, responsibility has been fixed upon the petitioner at the very preliminary stage. Accordingly, he submits that the audit report by itself cannot be a basis for prosecution, unless the same takes the final shape after due deliberation by the competent authority.
(xxi) The learned counsel further refers to his representation before the Director, Vigilance, Ministry of Environment, Forests and Climate Change, Government of India which was said to be filed on 23.11.2015. He submits that vide Letter dated 25.01.2016, Ministry of Environment, Forests 11 & Climate Change, Government of India had returned the representation dated 23.11.2015 of the petitioner to the State Government for its comments and to furnish the same alongwith relevant documents to the Government of India. He further submits that the impugned order of sanction against the petitioner by the Government of India does not mention about the consideration of representation submitted by the petitioner, which indicates that the representation of the petitioner was not at all considered by the competent authority while granting sanction for prosecution, which reflects non- application of mind with regard to the materials placed before the concerned authority.
Challenge to order taking cognizance (xxii) While assailing the order taking cognizance, the learned counsel for the petitioner has submitted that the learned Special Judge (A.C.B.), Ranchi, has taken cognizance vide order dated 26.02.2018 in a cryptic and routine manner without proper application of judicial mind and without even prima facie examining whether the offences pertaining to relevant sections of the Indian Penal Code and the Prevention of Corruption Act, have been made out or not. The learned Special Judge (A.C.B.), Ranchi has taken cognizance only on the basis of the fact that the sanction for prosecution has been granted against the petitioner under Indian Penal Code and Prevention of Corruption Act and accordingly, the order taking cognizance is fit to be set-aside as it suffers from non- application of judicial mind by the learned Special Judge (A.C.B.), Ranchi.
(xxiii) The learned counsel for the petitioner submits that in the counter-affidavit filed by the respondents, they have referred to a judgment dated 25.09.2019 passed by the 12 Hon'ble Supreme Court in the case of Central Bureau of Investigation (CBI) Etc. Vs. Mrs. Pramila Virendra Kumar, wherein it has been held that there is a distinction between absence of sanction and alleged invalidity on account of non-application of mind. The absence of sanction no doubt can be agitated at the threshold, but the invalidity of the sanction is to be raised during the trial. The learned counsel submits that the aforesaid judgment is based upon the ratio laid down in the case of "Dinesh Kumar Vs. Chairman, Airport Authority of India and Another" reported in (2012) 1 SCC 532. He submits that in the aforesaid case i.e. the case of Dinesh Kumar, reliance was placed upon the judgment passed by the Hon'ble Supreme Court in the case of Prakash Singh Badal. However, the Hon'ble Supreme Court, in another case reported in (2007) 11 SCC 273 (State of Karnataka Vs. Ameerjan) in Para-17 has clearly laid down that the judgment passed in the case of Prakash Singh Badal is not an authority with regard to the stage as to when the sanction can be challenged. The learned counsel submits that otherwise also, since the cognizance has already been taken, it can be said that the trial of case has already begun and therefore, as per the law laid down by the Hon'ble Supreme Court in its judgment dated 25.09.2019, the petitioner cannot be deprived of the opportunity of challenging order granting sanction for prosecution, which according to the petitioner, is wholly invalid and nullity in the eyes of law.
(xxiv) The learned counsel, in support of the aforesaid submissions, has also referred to the following judgments:-
(a) (1998) 1 SCC 226 (Vineet Narain and Others Vs. Union of India and Another), Para-58(I)(15);13
(b) (2010) 14 SCC 527 (State of Himachal Pradesh Vs. Nishant Sareen); Paras-7 and 9;
(c) (2014) 14 SCC 295 (Central Bureau of Investigation Vs. Ashok Kumar Aggarwal and analogous case); Paras-13, 14, 58 and 59;
(d) (2017) 14 SCC 809 (Girish Kumar Suneja Vs. Central Bureau of Investigation); Paras-74 and 76;
(e) (2009) 17 SCC 92 (State of Punjab and Another Vs. Mohammed Iqbal Bhatti); Para 6 and 7;
(f) (2007) 11 SCC 273 (State of Karnataka Vs. Ameerjan); Paras- 10 and 17;
(g) (2002) 6 SCC 543 (Raj Kishor Roy Vs. Kamleshwar Pandey and Another); Para-8 and
(h) (2006) 1 SCC 294 (Romesh Lal Jain Vs. Naginder Singh Rana and Others); Para-33.
(xxv) Learned counsel for the petitioner, at the end, submits that the provisions of Section 482 of Code of Criminal Procedure vest this Court with inherent jurisdiction to secure the ends of justice and the present case is a glaring example of the abuse of process of law. He submits that considering the facts and circumstances of the present case, the entire criminal proceedings including the order taking cognizance as well as the sanction for prosecution be quashed and set-aside.
(xxvi) Learned counsel for the petitioner, while referring to the aforesaid judgments, submits that there has been clear procedural irregularity in grant of sanction, non-
application of mind and complete failure of justice and therefore, the entire proceeding against the petitioner be set-aside.
Arguments of the opposite parties
7. The learned counsel for the opposite parties, on the other hand, submits that in the judgment dated 25.09.2019 passed by the Hon'ble Supreme Court in Criminal Appeal Nos. 1489-1490 of 14 2019, a clear distinction has been drawn between absence of sanction and the invalidity of sanction. The learned counsel further submits that the Hon'ble Supreme Court has clearly held that the invalidity of sanction, if any, is required to be considered at the stage of trial.
8. The learned counsel further submits that the petitioner is alleging non-application of mind and the same can only be considered once the sanctioning authority deposes before the learned court below and is examined and cross-examined.
9. The learned counsel for the opposite parties then submits that the recent judgment of the Hon'ble Supreme Court has followed the judgment passed in the case of "Dinesh Kumar Vs. Chairman, Airport Authority of India and Another" which is reported in (2012) 1 SCC 532, wherein a distinction has been drawn between absence of sanction and invalidity of sanction on account of non-application of mind.
10. The learned counsel for the opposite parties also submits that the judgment which has been relied upon by the petitioner, which is reported in (2007) 11 SCC 273 (State of Karnataka Vs. Ameerjan), was itself passed after trial and the sanctioning authority was examined before the learned trial court and at that stage, the legality and validity of the sanction was being considered. The learned counsel submits that the order of sanction need not mention every meticulous detail of the materials placed before the authority, rather the same is sufficient to be sustained on the ground that it reflects application of mind.
11. The learned counsel for the opposite parties has referred to the judgment which has been relied upon by the petitioner which is reported in (2014) 14 SCC 295 (Central Bureau of Investigation Vs. Ashok Kumar Aggarwal and analogous cases) and has referred to Para-12 of the said judgment, which in turn, refers to another judgment reported in (1996) 11 SCC 439, wherein it has 15 been held that all the relevant evidence which would have tilted the balance in favour of the accused was required to be considered only at the stage of trial. The learned counsel has referred to Section 465(1) of the Code of Criminal Procedure as well as Section 19(3) of Prevention of Corruption Act, 1988 to submit that there is clear provision that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
12. Learned counsel for the opposite parties further submits that even if, for the sake of arguments, the argument of the petitioner regarding certain irregularities in application of mind while granting sanction is accepted, the petitioner has not been able to make any case regarding failure of justice. In such view of the matter, even assuming everything against the opposite parties, the impugned proceedings or the order of sanction need not be quashed in exercise of power under Section 482 of the Code of Criminal Procedure.
13. The learned counsel for the opposite parties, by referring to the order of sanction passed by the Union of India, has submitted that the order of sanction dated 08.02.2018 reflects the allegation against the petitioner that evidences have been found that the petitioner used to visit the Sports Department even after his transfer and used to lock himself there with the National Games files. Thereafter, some pages were missing from the files and it is alleged that the petitioner had indulged in tempering of evidence. It has also been mentioned that a large number of files pertaining to National Games were seized from the 16 residence of the petitioner. It has been further alleged that the petitioner, by taking advantage of his post, has favoured ineligible persons /agencies and has caused loss to the government exchequer.
14. Learned counsel for the opposite parties also submits that considering the judgments which have been relied upon by the petitioner, the alleged acts of the petitioner cannot be said to be in discharge of official duty and it is well settled that if the alleged offence does not come within the purview of acts or omissions in discharge of official duty, a person can be prosecuted even in absence of sanction. The learned counsel further submits that the points which have been raised by the petitioner in connection with the illegality, irregularity or non- application of mind regarding sanction for prosecution on the basis of file notings, the same are required to be considered by the learned trial court when the sanctioning authority appears as a witness and these documents are required to be proved before the learned court below. Admittedly, the petitioner is yet to be handed over the police papers and the petitioner would have an occasion to point out to the learned court below on the basis of materials collected during investigation to show whether any case is prima facie made out against him or not. At the stage of cognizance, it is sufficient to submit that there is enough material against the petitioner to sustain the order taking cognizance.
15. The learned counsel for the opposite parties further submits that the order of sanction which has been passed by the State Government also indicates that the authority had gone through the materials produced including the First Information Report, case-diary, supervision note and documents. He submits that accordingly, it cannot be said that the order granting sanction for prosecution suffers from non-application of mind or the materials were not placed before the authority concerned.
1716. The learned counsel, by referring to the impugned order taking cognizance, also submits that the learned court below has not merely based the order taking cognizance on the sanction order, but has also perused the charge-sheet, related case-diary as well as the sanction order to pass the order taking cognizance. He further submits that the order of sanction passed by the Union of India reflects the allegations which have come up against the petitioner during investigation.
17. The learned counsel for the opposite parties has further referred to another judgment passed by the Hon'ble Supreme Court which is reported in (2019) SCC OnLine SC 1522 [Vinod Kumar Garg Vs. State (Government of National Capital Territory of Delhi)] and has referred to Para-25 thereof to reiterate that a mere error, omission or irregularity in sanction is not considered to be fatal, unless it has resulted in failure of justice or has been occasioned thereby. It has also been held that Section 19(1) of the Act is a matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter, the trial.
18. The learned counsel for the opposite parties further submits that it has been alleged by the petitioner that directions in connection with certain circulars have been violated. He submits that such allegation, if any, is required to be substantiated before the learned court below by cogent evidence. Otherwise also, the same are merely instructions issued by the competent authority and any violation thereof, even if accepted to be true, cannot be fatal to the litigation. This is over and above the fact that the allegation against the petitioner in the impugned proceedings appears not to have been done in discharge of his official duty and accordingly, 18 absence or presence of sanction may not be fatal to the entire litigation.
Findings of this court
19. After hearing the learned counsel appearing on behalf of the parties, this Court finds that one W.P (PIL) No.4597 of 2009 with W.P (PIL) No.2772 of 2009 was filed before this Court in which Bhola Nath Singh was one of the petitioners. In the said case, an order dated 09.09.2010 was passed and this Court recorded that the grievance of the petitioners of the said case was that certain criminal acts have been done for which they are in possession of substantial evidence to establish the case. This Court simply observed that if that being so, the petitioners of the said case could choose to file an F.I.R with the police and the learned Advocate General assured that if the F.I.R is lodged, the State would investigate the matter with all seriousness. On the suggestion made by the learned Advocate General, it was observed by this Court that the petitioners of the said case may choose to file the complaint before the Vigilance Department.
20. The petitioner has also filed the final report submitted in the instant case which is Charge-sheet No. 2/15 dated 09.01.2015 under Sections 406, 409, 420, 467, 468, 471, 120B, 109 of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988. It has also been mentioned in the charge- sheet that the investigation is continued. Upon perusal of the charge-sheet, it appears that the charge-sheet has been submitted against the present petitioner as well as the co- accused namely S. M. Hasmi.
21. It further appears that cognizance has been taken by the learned court below vide order dated 26.02.2018 against the petitioner pursuant to the Charge-sheet No. 2/15 dated 09.01.2015, which is also impugned in the present case.
22. As per the order taking cognizance, the sanction orders against another co-accused namely S. M. Hasmi was not submitted and 19 the investigation was said to be pending against one co-accused namely, R. K. Anand. It further appears that as per the order taking cognizance, the record of the petitioner was split and was numbered as Vigilance (Special) Case No. 66(A)/2010 for supply of police paper and the other split up record was numbered as Vigilance (Special) Case No. 66(B) of 2010 awaiting sanction order and final form. Learned counsel for the Anti-Corruption Bureau, Ranchi, during the course of argument, has submitted that supplementary charge-sheet has been submitted against a few other co-accused persons in the present case, although the supplementary charge-sheet is not on record.
23. Learned counsel for the petitioner, during the course of argument, has submitted that the petitioner has not yet received the entire police-paper and accordingly, the stage of filing his discharge petition, has not yet arrived.
24. From the perusal of the records of this case, it appears that sanction for prosecution dated 15.04.2015 has been granted by the State of Jharkhand under Section 197(1)(b) of the Code of Criminal Procedure for prosecution under Sections 420, 120B, 467, 468, 471, 190, 409 and 406 of the Indian Penal Code. However, learned counsel for the petitioner has submitted that the Section 190 of Indian Penal Code has been wrongly mentioned and it should have been Section 109.
25. Further, this Court finds that another sanction order for prosecution of the petitioner is dated 08.02.2018 wherein sanction for prosecution of the petitioner has been granted by the Government of India for alleged offences punishable under Sections 406, 409, 420, 467, 468, 471, 120(B), 109 of IPC and Sections 13(2) r/w 13(1)(D) of the Prevention of Corruption Act, 1988 and for any other offence or offences made out from the facts and circumstances mentioned in the order of sanction punishable under the provision of any law in respect of the 20 alleged acts and for taking cognizance of the said offence by a court of competent jurisdiction.
26. The learned counsel for the petitioner has raised a point that the petitioner is not a party to the aforesaid Public Interest Litigation and accordingly, the order passed by this Court in Public Interest Litigation may not prejudice the case of the petitioner in any manner.
Considering the nature of observations, which have been made by this Court in the aforesaid Public Interest Litigation, this Court is of the considered view that there is nothing against the petitioner as such. It has been simply observed that if there is any material in connection with the alleged offence, F.I.R can certainly be filed. There is nothing on record to show that the petitioner has been charge-sheeted only because one Public Interest Litigation was filed. Rather it appears that an F.I.R was filed and the matter was investigated, materials were collected during investigation, the sanction orders were obtained from the State as well as from the Union of India and the learned court below considered the materials collected during investigation and has taken cognizance of offence. Therefore, this Court is of the considered view that the petitioner not being a party in the Public Interest Litigation, the order dated 09.09.2010 has no bearing in the matter.
27. The learned counsel for the petitioner has further raised a point that one of the petitioners namely, Bhola Nath Singh in the Public Interest Litigation, had filed a written complaint and in the initial written complaint, the allegation was made only against accused nos. 1 to 3 and the petitioner was accused no.4. Subsequently, when the Vigilance P.S. case was instituted, the petitioner has been mentioned at Sl. No.3 and according to the present petitioner, this shows malafide intention of the Vigilance Bureau. The learned counsel for the petitioner has also raised a grievance that no preliminary enquiry was 21 conducted against the petitioner and the Vigilance P.S. case was instituted. He has submitted that institution of the case against the petitioner was against certain Circular issued by the Chief Secretary, Cabinet (Vigilance) Department, Government of Bihar dated 07.02.1983 which mentions that prior approval of the Chief Minister and the Chief Secretary is mandatory for initiation of enquiry and lodging of F.I.R against Members of All India Service.
This Court is of the considered view that the accused number given to the petitioner in the initial complaint or in the ultimate F.I.R, does not make any difference and merely because the petitioner was named as accused no.4 in the initial complaint and in the vigilance case, his name was mentioned at Sl. No.3, the same does not reflect any mala fide intention of the Vigilance Department. There is no whisper of any mala fide, alleged by the petitioner against any person and no person has been made party by name to show any malicious action. So far as the Circular issued by the Department in connection with lodging of F.I.R and preliminary enquiry etc. is concerned, the same at best can be said to be reflecting certain procedural matter and cannot be said to be fatal to the present criminal proceedings. The manner in which the F.I.R has been lodged, the enquiry, investigation etc. have been conducted and the prejudice, if any, caused to the petitioner by such acts or omissions, has to be taken care of by the learned court below at the stage of trial and the same cannot be a ground to quash the entire criminal proceedings against the petitioner in exercise of powers under Section 482 of Cr.P.C. under the facts and circumstances of this case.
28. The main thrust of argument of the petitioner, during the course of hearing, is that the impugned orders of sanction suffer from complete non-application of mind and he has also submitted that the complete records for consideration of 22 sanction was not put up before the competent authority. The learned counsel for the petitioner has referred to certain note- sheets obtained under right to information Act, 2005 to allege that the complete records were not placed before the authority while granting prosecution sanction. The petitioner has also referred to certain letters issued by the officers of Anti- Corruption Bureau to allege that the sanction for prosecution was given under pressure.
29. So far as note sheet, which has been produced by the petitioner under Right to Information Act and the order granting sanction are concerned, this Court finds that the same itself, is a matter of evidence and the application or non-application of mind while granting sanction for prosecution is essentially a matter of trial, wherein the sanctioning authority is required to be examined and cross-examined by the parties. It is just to be observed that at this stage it cannot be said by referring to the file notings that the materials were not placed before the authority for grant of sanction. Prima-facie, the order of sanction itself reflects consideration of material. Merely because there are certain references to telephonic conversation, the same itself does not indicate non-application of mind or non- consideration of material or any external influences in grant of sanction.
30. So far as certain communications which are alleged to have been issued by authorities from Vigilance referring to certain Supreme Court's Judgment in the matter of grant of sanction for prosecution is concerned, this Court, at this stage, is of the considered view that merely because in a communication, certain Supreme Court's judgment is referred, it cannot be said that by reference of such judgment, an authority has been pressurized to grant sanction for prosecution. Rather the Supreme Court's judgments are considered and quoted at various places to throw light as to how and in what manner, the 23 power is to be exercised. The same are guiding factors and cannot be said to have been utilized to pressurize anybody. The order granting sanction does not reflect that the sanction has been granted merely on the dictates of any person, rather it reflects application of independent mind.
31. However, above observations are mere prima facie observations and are being made only because of the reason that the petitioner has made arguments on such point. However, these observations will have no bearing on the trial and it will be open for the learned trial court to consider the plea of the petitioner at appropriate stage in accordance with law.
32. This Court further finds that in the order granting sanction passed by the Union of India, which is under Indian Penal Code as well as under Prevention of Corruption Act, 1988, serious allegations have been mentioned against the petitioner and it has been argued by the learned counsel for the opposite parties that such acts and omissions cannot be said to be in discharge of official duty. Since the sanction for prosecution has been granted, there is no need at this stage to pronounce on the point whether the alleged act/omissions were in discharge of official duty or not and it is certainly for the learned court below to examine all the aspects of the matter at the stage of trial which are essentially matters of evidence.
33. In the judgment passed by the Hon'ble Supreme court reported in (2006) 1 SCC 294 (Romesh Lal Jain Vs. Naginder Singh Rana and Others), it has been held in Para-33 that an order of sanction in terms of Section 197 of Cr.P.C. is required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same. A plea relating to want of sanction although desirably should be considered at an early stage of the proceedings, but 24 the same would not mean that the accused cannot take the said plea or the court cannot consider the same at a later stage. Each case has to be considered on its own facts. Furthermore, there may be cases where the question as to whether the sanction was required to be obtained or not would not be possible to be determined unless some evidence is taken, and in such an event, the said question may have to be considered even after the witnesses are examined.
This judgment does not help the petitioner in any manner whatsoever.
34. The learned counsel for the petitioner has also relied upon Para-
8 of the judgment passed by the Hon'ble Supreme court reported in (2002) 6 SCC 543 (Raj Kishor Roy Vs. Kamleshwar Pandey and Another) wherein it has been reiterated that for invoking protection under Section 197 of the Code, the acts of the accused, complained of, must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, and the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. It has been reiterated that the question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. It has also been reiterated that there can be cases when it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what accused did was in discharge of official duty. It has been held that in such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. Similar view has been taken in the judgments passed by the Hon'ble Supreme Court reported in (2006) 1 SCC 294 (Romesh 25 Lal Jain Vs. Naginder Singh Rana and Ors.) and (2002) 6 SCC 543 (Raj Kishor Roy Vs. Kamleshwar Pandey and Anr.).
The aforesaid judgments also do not help the petitioner in any manner whatsoever as this court is also of the considered view that the legality and validity of sanction for prosecution as well as the requirement of sanction for prosecution under Section 197 of Cr.P.C , though it has been granted in the present case, are itself matters of evidence and trial and cannot be appreciated at this stage of the proceedings under the facts and circumstances of this case.
35. So far as the judgment, reported in (1998) 1 SCC 226 (Vineet Narain and Ors. Vs. Union of India and Anr.) is concerned, the petitioner has relied upon Para-58(I)(15) of the judgment which reads as follows:-
"58(I)(15). Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG's office."
This Court finds that although the present case was lodged as back as in the year 2010, but investigation continued and final form was prepared only on 09.01.2015 and thereafter, the matter was placed for grant of sanction. The sanction was granted by the State Government on 15.04.2015. Certainly, the period would commence not from the date of institution of the FIR, but from the date when the matter is placed before the competent authority for grant of sanction for prosecution. Considering the aforesaid dates of charge sheet and grant of sanction, this court finds that there is hardly any delay in grant of sanction for prosecution and accordingly, the judgment does not help the petitioner in any manner whatsoever. So far as sanction for prosecution by the Central Government is concerned, the same is of the year 2018, but no argument has been advanced as to when the matter was placed before the 26 competent authority for grant of sanction. Moreover, the learned counsel for the petitioner has not pointed out any statutory provision giving any time limit for the authority to grant sanction for prosecution and corresponding consequences for non-adherence to such time limit. The fact remains that the investigation in the matter was continued and supplementary charge-sheet has been submitted only in the year 2018.
36. The learned counsel for the petitioner has relied upon Paras-18 and 19 of the judgment reported in (1997) 7 SCC 622 (Mansukhlal Vithaldas Chauhan Vs. State of Gujarat) which are as follows:-
"18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority.
19. Since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction"
was taken away and it was compelled to act mechanically to sanction the prosecution."
27This judgment has also been followed in the judgment passed by the Hon'ble Supreme Court reported in (2010) 14 SCC 527 (State of Himachal Pradesh Vs. Nishant Sareen) and also in (2009) 17 SCC 92 (State of Punjab and Another Vs. Mohammed Iqbal Bhatti).
37. This Court finds that it has been held by the Hon'ble Supreme Court that the validity of sanction would depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, materials and evidence have been considered by the sanctioning authority, consideration implies application of mind. It has also been held that the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other materials placed before it and this fact can also be established by extrinsic evidence by placing the relevant files before the court to show that all the relevant facts were considered by the sanctioning authority. Accordingly, the arguments of the petitioner that the representation filed by the petitioner has not been considered as there is no mention about the representation in the order of sanction for prosecution is devoid of any merits and cannot be appreciated at this stage as the order granting sanction for prosecution need not mention every material which were placed before the sanctioning authority for grant of sanction.
Paragraphs-18 and 19 of the aforesaid judgment, as quoted above, themselves go to show that the order of sanction need not reflect every material which have been collected during investigation, but what it should reflect is the application of mind on the materials collected during investigation.
It would be relevant to refer to Paras-74 and 76 of another judgment relied upon by the petitioner reported in (2017) 14 SCC 809 (Girish Kumar Suneja Vs. Central Bureau of Investigation) wherein the expression "a fundamental error in 28 procedure which has occasioned a failure of justice" has been considered by the International Court of Justice who has expressed the view that to constitute a failure of justice, an error in procedure is fundamental when it is of the kind where the fundamental right of a staff member to present his case, either orally or in writing is denied. This court is of the considered view that the said observation by the International Court of Justice was with regards to procedure before a tribunal. The matter of grant or refusal of sanction for prosecution is a purely Administrative Act of the competent authority and the only requirement is independent application of mind on the materials required to be placed before the authority and the order granting or refusing sanction should reflect application of mind. The Hon'ble Supreme court in the aforesaid judgment has held in para 77 as follows:-
"77. An allegation of "failure of justice" is a very strong allegation and use of an equally strong expression and cannot be equated with a miscarriage of justice or a violation of law or an irregularity in procedure- it is much more. If the expression is to be understood as in common parlance, the result would be that seldom would a trial reach a conclusion since an irregularity could take place at any stage, inadmissible evidence could be erroneously admitted, an adjournment wrongly declined, etc. To conclude, therefore, Section 19(3)(c) of the PC act must be give a very restricted interpretation and we cannot accept the overbroad interpretation canvassed by the learned counsel for the appellants."
In view of the aforesaid, the judgment relied upon by the petitioner does not apply to the facts and circumstances of this case.
38. In the present case, upon perusal of both the impugned orders of sanction, they ex facie reflect application of mind and they refer to available documents, FIR, Charge sheet, case diary, etc..
2939. This Court finds that the said judgment which is reported in (1997) 7 SCC 622 (supra) does not help the petitioner under the facts and circumstances of this case. In the said case before the Hon'ble Supreme court, it was an extreme circumstance where the concerned High Court had issued directions for grant of sanction and consequently, no discretion was left to the authority to apply independent mind while granting sanction for prosecution.
In the instant case, there are no corresponding facts, rather certain letters were issued by the Vigilance Commissioner referring to certain judgments of the Hon'ble Supreme Court with a request to grant sanction. It was just in the realm of request and it cannot be said that the sanctioning authority was dictated by issuance of such letter. Even the order granting sanction for prosecution does not reflect such pressure upon the sanctioning authority. The aforesaid observation is being made by this Court only at this stage and all the aspects of the matter with regards to sanction for prosecution are essentially matters of evidence which are required to be considered at the stage of trial. This Court finds that the impugned order of sanction dated 08.02.2018 granted by the Central Government also reflects the application of mind and some of the portions of the sanction order is quoted hereunder:
"Whereas, Shri P.C. Mishra, IFS, JHK: 83, the then Addl. Principal Chief Conservator of Forests, Ranchi while working as Director, NGOC abused his official position as he entered into criminal conspiracy and made various financial irregularities while organizing 34th National Games held in Ranchi in the year 2011.
Whereas, Shri Bhola Nath Singh, r/o Fulbabu Ashram, Jhil Road, Ranchi lodged a complaint with police which registered the case no.49/2010 dated 6.10.2010 against a) Shri R.K. Anand, Working Chairman, National Games Organising Committee (NGOC), b) Shri S.M. Hashmi, Organizing Secretary, NGOC, c) Shri Prakash Chandra Mishra, Director, NGOC and d) Shri Madhukant Pathak, Treasurer, NGOC on 30 the basis of financial irregularities alleged to have been committed by them in organizing the 34th National Games held in Ranchi in the year 2011 u/s 406 /409 /420 /467 /468 /471 /120(b)/109 IPC and 13 r/w 13(1) of P.C. Act 1988.
Whereas, as per Memorandum of Association (MOA), the duties assigned to Shri P.C Mishra, Director, NGOC was to monitor the progress of work, issue all tenders and sign all agreements on behalf of NGOC with consultations of Organizing Secretary - I and Organizing Secretary - II (infrastructure). Shri P.C. Mishra, IFS was a member of Tender Committee, Executive Board as well as of Core Committee. He was also a member of Special Committee constituted for purchasing of materials. Shri P.C. Mishra, IFS has not followed the due procedure in various tenders/procurement of articles and services.
Whereas, The AG Jharkhand in his Audit Report submitted vide Memo No. I.R. No.OAD-NC-241/2009-10 points out various financial irregularities committed by Shri P.C. Mishra, IFS which caused loss to the Govt. Exchequer. Whereas, Vigilance Bureau, Ranchi submitted evidences against Shri P.C Mishra, IFS in the Special Vigilance Court, Ranchi are that: -
a) Evidences has been found that Shri P.C Mishra used to visit the sports department even after his transfer and used to lock himself there with the National Games files. Thereafter, some pages were missing from the files. Thus, Shri P.C Mishra had indulged in tampering of evidences.
b) A large number of files pertaining to National Games were seized from the residence of Shri P.C Mishra, IFS.
Shri P.C Mishra, IFS was arrested on 14.10.2014 and sent to Judicial custody. Charge Sheet no.2/2015 dated 09.01.2015 was submitted to the Special Vigilance Court, Ranchi.
Whereas, Shri Prakash Chandra Mishra by taking advantage of his post has favoured ineligible persons/agencies and caused loss to the Govt. Exchequer.
And Whereas, the aforesaid acts on the part of Shri Prakash Chandra Mishra, IFS prima facie disclose commission of cognizable offences punishable under Section 406/409/420/467/468/471/120B/109 IPC and 13(2) r/w 13(1)(D) of Prevention of Corruption Act, 1988 and substantive offences thereof.
And Whereas, the President of India, being the authority competent to remove Shri Prakash Chandra Mishra, IFS, after 31 fully and carefully examining the materials/records placed before him and taking into account the available evidence, including case registered on 6.10.2010 and considering facts and circumstances of the case and after going through the state of witnesses, documents collected during the investigation and other relied upon documents/material furnished by the Anti- Corruption Bureau, Ranchi in respect of the said allegation, is satisfied that Shri Prakash Chandra Mishra, IFS should be prosecuted in a Court of Law for the aforesaid offences."
40. So far as the judgment which has been relied upon by the petitioner which is reported in (2014) 14 SCC 295 (Central Bureau of Investigation Vs. Ashok Kumar Aggarwal and analogous case) is concerned, the petitioner has relied upon Paras-13, 14, 58 and 59 of the said judgment which are quoted as under :-
"13. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
14. It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
58. The most relevant issue involved herein is as at what stage the validity of sanction order can be raised. The issue is no more res integra. In Dinesh Kumar v. Airport Authority of India this Court dealt with the issue and placing reliance upon the judgment in Parkash Singh Badal v. State of Punjab, came to the conclusion as under:32
"13. In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the trial court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal...."
(emphasis supplied)
59. Undoubtedly, the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the stage of inquiry or at pre-trial stage."
This Court is of the considered view that the learned counsel for the opposite parties has rightly submitted that the legality and validity of sanction for prosecution is to be considered at the stage of trial. It has been held by the Hon'ble Supreme Court that in every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and the sanction had been granted in accordance with law. Thus, even as per this judgment, the legality and validity of sanction and its application of mind have to be considered at the stage of trial.
41. So far as the judgment which is reported in (2007) 11 SCC 273 (State of Karnataka Vs. Ameerjan) is concerned, the same also does not apply to the facts and circumstances of this case. In the said case, non-application of mind was apparent as the sanction order was passed solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayukta. There are no such glaring facts in the present case calling for interference in the orders granting sanction for prosecution at the stage of cognizance. Moreover, the said judgment was rendered after the sanctioning authority had deposed before the learned court below as a witness.
33It has also been submitted by the learned counsel for the petitioner that the Hon'ble Supreme Court in the said judgment has observed that judgment passed in the case of Parkash Singh Badal is not an authority for the proposition that even when an order of sanction is held to be wholly invalid or nullity or suffers from total non-application of mind, the same cannot be quashed. However the said observation in connection with the case of Parkash Singh Badal does not apply to the facts and circumstances of this case as the learned counsel for the petitioner has failed to satisfy this Court, at this stage, that the order of sanction is a nullity or invalid or it suffers from total non-application of mind calling for any interference by this court under Section 482 of Cr.P.C. to quash the sanction orders for prosecution of the petitioner and hence, to quash the order taking cognizance against the petitioner.
42. This Court finds that the present case is squarely covered by the ratio of the judgment dated 25.09.2019 passed by the Hon'ble Supreme Court in Cr. Appeal Nos. 1489 - 1490 of 2019 (Central Bureau of Investigation -versus- Mrs. Pramila Virendra Kumar and another) which has been relied upon by the opposite parties. In the said case, the concerned High Court had reached at a conclusion that the sanction for prosecution was defective as the procedure of providing opportunity for explanation was not followed. The Hon'ble Supreme court in Para-13 of the said judgment held that absence of sanction can be agitated at the threshold, but invalidity of sanction is to be raised during trial. In the present case, the petitioner has challenged the validity of sanction. Para-13 of the said judgment is quoted hereinbelow for ready reference:-
"13. Further the issue relating to validity of the sanction for prosecution could have been considered only during trial since essentially the conclusion reached by the High Court is with regard to the defective sanction since according to the High 34 Court, the procedure of providing opportunity for explanation was not followed which will result in the sanction being defective. In that regard, the decision in the case of Dinesh Kumar vs. Chairman, Airport Authority of India, (2012) 1 SCC 532 relied upon by the learned Additional Solicitor General would be relevant since it is held therein that there is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The absence of sanction no doubt can be agitated at the threshold but the invalidity of the sanction is to be raised during the trial. In the instant facts, admittedly there is a sanction though the accused seek to pick holes in the manner the sanction has been granted and to claim that the same is defective which is a matter to be considered in the trial."
43. The learned counsel for the petitioner has also advanced his argument by referring to the order taking cognizance and has submitted that the same has been passed only by referring to the orders of sanction for prosecution. This Court finds that the order taking cognizance mentions not only the sanction orders for prosecution, but also mentions about the court having perused the materials collected during investigation. Accordingly, this Court finds that the order taking cognizance reflects application of judicial mind and therefore, the contention of the petitioner that the order taking cognizance reflects non-application of judicial mind, is hereby rejected.
44. As a cumulative effect of the aforesaid findings, this Court does not find any merit in the present petition, which is hereby dismissed.
45. However, it is observed that dismissal of this case will not prejudice the case of the petitioner at the stage of trial and it will be open to the petitioner to raise all the points during trial as per law.
46. Interim order, if any, stands vacated.
3547. Pending interlocutory application, if any, is dismissed as not pressed.
48. Let a copy of this order be immediately communicated to the learned court below.
(Anubha Rawat Choudhary, J.) Pankaj/Saurav