Madras High Court
Er.M.Anbazhagan B.E vs State Represented By on 3 January, 2014
Author: S.Palanivelu
Bench: S.Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.01.2014
CORAM:
THE HONOURABLE MR.JUSTICE S.PALANIVELU
Criminal Revision Case Nos.1536/2011, 1804/2011 and 26/2012
Er.M.Anbazhagan B.E., : Petitioner/Accused-2
[in Crl.R.C.No.1536/2011]
B.Ravindran : Petitioner/Accused-4
[in Crl.R.C.No.1804/2011]
Babu : Petitioner/Accused-3
[in Crl.R.C.No.26/2012]
Vs.
State Represented by:
The Deputy Superintendent of Police
CB CID, Vellore
[Crime No.1/1998.] : Respondent
[in all Crl.R.Cs.]
PRAYER: Criminal Revision cases are filed under Section 397 r/w 401 of the Code of Criminal Procedure, against the orders dated 12.10.2011 made in Crl.M.P.Nos.4941 of 2011, 8193 of 2011 and 8192 of 2011 in C.C.No.455 of 2010 on the file of the Judicial Magistrate No.1, Thiruvannamalai.
For Petitioner : Mr.A.L. Namacivayam
[in Crl.R.C.No.1536/2011]
For Petitioner : Mr.K. Duraisamy
[in Crl.R.C.No.1804/2011] Senior Counsel for
M/s.Muthumani Doraisamy
For Petitioner : Mr.N. Subramani
[in Crl.R.C.No.26/2012]
For Respondent : Mr.C. Emilias
[in all Crl.R.Cs.] Additional Public Prosecutor
COMMON ORDER
1. Since all the three revision petitioners are accused 2 to 4 in C.C.No.455 of 2010 on the file of the Judicial Magistrate No.1, Thiruvannamalai and the matter to be decided is similar in nature in all the three petitions, this Common Order is pronounced.
2. The petitioner in Crl.R.C.No.1536/2011 is Assistant Executive Engineer and other two petitioners in Crl.R.C.Nos.1804 of 2011 and 26 of 2012 are Assistant Engineers in TWAD Board, Vellore. Certain irregularities were found out in their official work i.e., alleging that the first accused being the super check measuring officer and bill passing authority with the intention to misappropriate the Government money had neglected his duties and he had failed to super check measure the entire earth work and the soil classification recorded by A2 to A4 and effectively assisted and abetted the offence committed by A2 to A5 and inflated the estimate to the tune of Rs.2,04,055/- and misappropriate the same. To this effect The Deputy Superintendent of Police CB CID, Vellore has filed Charge Sheet thatA1 to A4 are liable to be punished u/s 409, 465, 466, 468, 471 and 420 I.P.C. R/w 120-B and 109 I.P.C. At the outset the case was registered u/s/. 120-B, 409, 420, 466, 463 and 471 IPC and Sec.13(2) r/w 13(1) (c) & (d) of Prevention of Corruption Act 1988. It is significant to note that at the inception the case was registered under the above sections, while filing charge sheet, the provisions of Prevention of Corruption Act were deleted. The present petitioners are A2 to A4 in the case.
3. Core averments contained in the Discharge Petitions filed by the petitioners separately, are as follows:
It is the admitted case of the respondent that the accused 1 to 4 are are public servants. Before launching the charge sheet the respondent has to obtain necessary sanctionfrom the competent authority mandated under Section 197 (2)Cr.P.C. Without obtaining the sanction, the respondent has laid the charge sheet. 1st Accused Murugan filed such a discharge petition before the trial court and the said court has refused to accept his request and dismissed the accused on the ground that already charges have been framed. Aggrieved against the order, 1st accused filed Crl.R.C.No.66 of 2003 before the High Court and the High Court was pleased to quash the proceedings against him on the ground that the sanction has not been obtained before filing the charge sheet. The Review Petition and the appeal before the Hon'ble Supreme Court of India, filed by the respondents were dismissed that the sanction under Section 197 of Cr.P.C.has not been obtained before initiating the criminal proceedings. Since these petitioners are also public servants, sanction from the competent authority is necessary before filing the charge sheet. Since no sanction has been obtained, the petitioners may be discharged from the case for want of sanction to prosecute them. The question of sanction can be considered at any stage of proceedings.
4. In the Common Counter filed by the respondent, it is alleged as under:
4.(a) During the course of the pending trial, the respondent obtained orders for sanction of prosecution for all three accused persons from the authorities concerned i.e., the Managing Director of TWAD Board, Chennai on 28.9.2011. These petitions filed by the petitioners are not at all maintainable since these petitioners are responsible for classification of soil and also each and every measurement recorded by A-4. Section 197 Cr.P.C.does not attract to these petitioners since they were removed from service only by the Head of the Department and not by the Government.
4.(b) The respondent police conducted the investigation in a proper, impartial and fair manner in accordance with law. All the mandatory provisions have been complied with by the respondent during the court of the investigation. The respondent police registered and investigated the case and charge sheet was also laid before the Judicial Magistrate No.1 Thiruvannamalai. Hence, there is no necessity to stay all the proceedings in C.C.No.455 of 2010. The petitioners have filed these petitions only in order to escape from the clutches of law and also to drag on the further proceedings of the case pending before the trial Court. After hearing both sides, the learned Judicial Magistrate No.I Thiruvannamalai, has dismissed all the three petitions. Hence, the petitioners are before this Court.
Point for consideration:
5. Whether valid grounds are made out to consider discharge of the petitioners?
Point:
6. The essential contention of both the petitioners are that sanction for prosecution to prosecute the petitioners are not obtained before filing charge sheet and hence taking cognizance of case against the petitioners is not lawful and on this ground, the petitioners deserve to be discharged.
7. First accused by name Murugesan filed application in C.R.P.No.6722 on the file of the Judicial Magistrate No.1, Thiruvannamalai to discharge him from the case. The learned Judicial Magistrate refused to discharge him by turning down prayer in his application. The matter was carried in revision before this Court by the first accused and this Court allowed the revision after observation that since there is no sanction of the competent authority, the proceeding is vitiated and the petitioner deserves to be discharged and also observed that it is clear that the prosecution has filed this case against the petitioner before getting proper sanction and therefore, the impugned proceedings against the petitioner are liable to be quashed and accordingly the same is quashed and hence the revision is allowed. Thereupon the State preferred appeal in Crl.A.No.512 of 2006 on the file of the Honourable Supreme Court. After hearing the case the Supreme Court has dismissed the Criminal Appeal, observed as follows:
"We have heard the learned counsel for the appellant. It is clear from the impugned judgment that the state itself in an earlier litigation between the parties had taken the positive stand that the sanction was being sought. The prosecution nevertheless commenced without the sanction having been obtained. The High Court was therefore justified in quashing the proceedings on the ground that the sanction under Section 197 of the Cr.P.C.had not been obtained before initiating the criminal proceedings against the respondent. We thus find no merit in the appeal. Dismissed."
8. Armed with the order passed by the Supreme Court as above, the learned counsel for the petitioners would contend that the co-accused in this case has been given a benefit of discharge in this case and hence, the petitioners being co-accused in this case are also entitled to get the same by saying that the petitioners got accused with the right of discharge on the allowing of application for discharge filed by a co-accused in the same case, and in support of their contention, they have cited a decision of mine reported in M.L.J.(Crl.) 2012 1 323 [State Rep.by the Inspector of Police v. K.P.Jai Xavier] wherein I have followed the decision of the Honourable Supreme Court and passed order as follows:
"32. A Full Bench of the Supreme Court in its decision JT 1992 (6) S.C.85 [Kameshwar Sing & Ram Babu Singh and others v. State of Bihar] has held that when other accused are granted benefit of doubt, the non-appealing co-accused are also entitled for the same grant and consequential acquittal. The same view has been expressed by the Division Bench of this Court in 1999 (1) L.W. Crl.11 [Sobitharaj /6others v. State rep. by Inspector of Police, Kanyakumari District.].
The learned Senior Counsel also submits that not only at the time of trial such benefit will go to the accused but also at the time of interlocutory proceedings, such as, quashing of criminal proceedings against the accused or seeking for discharge from the case. In 1998 Crl.L.J.4091 (1) [Ashok Chaturvedi and others v. Shitul H. Chanchani and another] the Supreme Court while quashing the private complaint laid against accused persons, it was also also quashed the criminal proceedings against other accused, who did not prefer special leave petition."
9. The respondent obtained sanction to prosecute the petitioners on 28.9.2011 long after taking cognizance of the case from the Managing Director of TWAD Board, Chennai. No sanction was obtained for prosecuting the petitioners prior to taking cognizance of the alleged offences against them. The Court has to bear in mind before deciding the question whether it is proper and lawful, the march of law in this regard and the legal proposition governing the field.
10. The Honourable Supreme Court on previous occasions in so many cases that if sanction for prosecution u/s 197 Cr.P.C. were not obtained before initiating the criminal proceedings against the accused there is every justification for the Court to quash the proceedings. The following judgments relied upon by the learned counsel for the petitioners are as follows:
1. AIR 2000 SC 3187 [Abdul Wahab Ansari v. State of Bihar and another] "It is not necessary for us to multiply authorities on this point and bearing in mind the ratio of the aforesaid cases and applying the same to the facts of the present case as indicated in the complaint itself, we have no hesitation to come to the conclusion that the appellant had been directed by the Sub-Divisional Magistrate to be present with police force and remove the encroachment in question and in course of discharge of his duty to control the mob, when he had directed for opening of fire, it must be held that the order of opening of fire was in exercise of the power conferred upon him and the duty imposed upon him under the orders of the Magistrate and in that view of the matter the provisions of Section 197(1) applies to the facts of the present case. Admittedly, there being no sanction, the cognizance taken by the Magistrate is bad in law and unless the same is quashed qua the appellant, it will be an abuse of the process of Court. Accordingly, we allow this appeal and quash the criminal proceeding, so far as the appellant is concerned."
In the above case Their Lordships were pleased to refer earlier decision of Supreme Court.
2. 1995 Supp 4 SCC 552 [S.G. Nain v. Union of India]
11. The learned Additional Public Prosecutor Mr.C. Emilias, has placed reliance upon the following decisions, in support of his contention that the sanction for the competitive authority can be obtained at any stage of the proceedings, following are the authorities:
1. 2012 (3) SCC 64 [Subramanian Swamy v. Manmohan Singh and Another]
2. (2008) 9 SCC 140 [Bholu Ram v. State of Punjab and Another] "... ... Moreover, a point as to need or necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings. Hence, proceedings could not have been quashed on the ground of want of sanction in the present case. The order of the Revisional Court deserves to be set aside even on the ground."
12. The learned Additional Public Prosecutor would also cite a decision rendered by a Constitutional Bench of the Honourable Supreme Court reported in AIR 1957 SC 494 [Baij Nath Prasad Tripathi v. State of Bhopal] in which the operative portion is as follows. In this case it is held that sanction against the accused has to be obtained before taking cognizance of the case by the Court and if the Court takes cognizance of the case after sanction and tries the case it would be a court of incompetent jurisdiction:
"Assuming, however, that in certain cases one Magistrate may take cognizance and another Magistrate may try an accused person, it is difficult to appreciate how any Court can try the petitioners of these cases in the absence of a sanction in view of the mandatory provisions of s. 6 of the Prevention of Corruption Act, 1947. If no Court can take cognizance of the offences in question without a legal sanction, it is obvious that no Court can be said to be a Court of competent jurisdiction to try those offences and that any trial in the absence of such sanction must be null and void, and the sections of the Code on which learned counsel 1 for the petitioners relied have really no. bearing on the matter. Section 530 of the Code is really against the contention of learned counsel, for it states, inter alia, that if any Magistrate not being empowered by law to try all offender, tries him, then the proceedings shall be void. Section 529 (e) is merely an exception in the matter of taking cognizance of an offence under s. 190, sub-s. (1), clauses. (a) and (b); it has no bearing in a case where sanction is necessary and no sanction in accordance with law has been obtained."
13. The facts of the said case are to the effect that the petitioner Baij Nath Prasad Tripathi who was Sub-Inspector of Police in the then State of Bhopal, was prosecuted by the Special Judge, Bhopal and convicted for the offences under Section 161 of I.P.C.and Section 5 of the Prevention of Corruption Act, 1947, without sanction for prosecuting him having not been filed. He carried the matter in appeal and the Appellate Court, the Judicial Commissioner of Bhopal quashed the trial holding that it was ab initio invalid for non-production of sanction order by the prosecution before taking cognizance of the offence by the Court below against the accused. Hence, the Chief Commissioner of Bhopal passed an order under Section 7(2) of the Criminal Law Amendment Act, 1952, that the accused should be tried by another Special Judge, Bhopal, for certain offences under the Prevention of Corruption Act r/w Section 161 of I.P.C. The accused contended that he could not be prosecuted and tried again for he same offences under the order above.
14. Another Special Judge was nominated for trying the accused held that the whole trial was null and void and he could not take cognizance of the offences in question and quashed the proceedings. In this case sanction order was given by the Chief Secretary to Government of Bhopal on 7.2.1956. Hence, the petitioner/accused moved the Supreme Court. After dealing with the facts as above, the Supreme Court proceeded to decide the case by observing thus as stated above.
15. The learned counsel for the petitioners would contend that in fact the above said decision is in favour of the petitioners and the view of the Supreme Court is that sanction has to be obtained beforeever the cognizance taken by Court against the accused, and obtaining of sanction after taking cognizance of the offences is not valid in law.
16. In the consistent view taken by the order of Supreme Court in this regard, as evident from the authorities cited above and on account of the judicial pronouncement of Full Bench and Constitutional Bench of the Supreme Court the contention of the petitioners is that sanction order has to be obtained before taking cognizance of the offence and getting sanction subsequent to taking cognizance of the offences is invalid, which could not be cured. This point is answered in favour of the petitioners. In the light of the observations recorded by this Court guided by the authoritative and illuminating judicial pronouncements, the petitioners deserve to be discharged from the case and the Order passed by the Court below is liable to be set aside and it is accordingly set aside.
17. In fine, all the Criminal Revision Cases are allowed, setting aside the Common Order passed by the Court below, granting discharge of the petitioners from the case.
03.01.2014
Index : Yes
Internet : Yes
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Note: Issue order copy on 10.01.2014
To
1.The Judicial Magistrate No.1,
Thiruvannamalai.
2.The Public Prosecutor,
High Court, Madras.
S.PALANIVELU, J.
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Pre-delivery Common Order in:
Crl.R.C.Nos.1536/2011, 1804/2011
and 26/2012
03.01.2014