Karnataka High Court
M L Gopichander vs State By Cbi/Spe Bellary Road on 7 January, 2010
I CrLR}'IO19/08 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 07"' DAY OF JANUARY 2010 BEFORE THE HON'BLE MRJUSTICE A.S.PACHHAPUR_E A. CRIMINAL REVISION PETITION NO.1019/2,(:)03_o=iA' BETWEEN * " " ML. Gopichander, Aged about 50. S/o. M.Loganathan, New No.9, Harleys Road, 2 Kilpark, Chennai 600 010. PETITIONER/s (Sri. S.G. Bhagawan : S.l3;*$'nman.?Vi.Adif;};~ AND ' State by CB1! -A Ganganagar, Bangalore _ RESPONDENT/S
{Sri. Ashok Héiranah&lli;*v_A&'0;.) €§ri_niinal Revision Petition is filed under Section 319?" R./iR'...VT4Q1 EvC'=ri.P.C praying to set aside the order dt. A 4.8..2f.iO3 pgisévéié-;_di::by the XXI Addl. C.C and S.J.. Bangalore in Sp1.EC3C..l}Io." 200/89 and discharge the petitioner. Criminal Revision Petition having been heard Eandfreserved, coming on for pronouncement of orders. this A I the Court. made the following:
,3 CI'1.RP E019/O3 pecuniary advantage to Accused Nos.2 and 3 to the extent of Rs.43.96.340--00.
After the investigation was held. the chargeshe'eti.V'caij1ig_v4 to be filed against the petitioner and other anal"
when the matter was posted for hearing Nos.2 and 3 submitted the applicationittnder if Cr.P.C. wherein the said accused accorded for the prosecution bf' the petitioner herein is invalid reported in 1932 Cr1.L.J. 72o__ and does not have the jurisdictiori"'to.__tr3r{the-:first_Vaecusedand therefore they requested toipéidisjcharge theaccused on the ground that the sari-ctiioni grantAed_iiis.. After the'4"fi:Iing.fof". application, the prosecution 2/_P.W.»1z Mr;S'u'fl'der Babu, the Deputy General Mmggrr eACentra'l.V:O'£fice, Andhra Bank, Hyderabad and in his = tevideuceiithe documents Exs.P.1 and P.2 were marked. The i:a__'Ciourt belovifafter hearing the Public Prosecutor for the CBI theycounsel for the accused rejected the application of the accused and held that there is prima facie material to rfainie the charge against the accused for the offence ad';
Crl.RP 101.9/O3 punishable under Section 120~B readwith Section 420 {PC and Section 5 {2} readwith 5(1) (d) of the Preventicgnhsof Corruption Act, 1947 (hereinafter called as the 'Old. short} and to frame the charge as against Accused__l$l'os.2:fand 3.3 The Trial Court opined that grant the sanction and that before gran'ting' the sanction it has looked into all these documents 're1evant_l_for llthefiplurpose of taking the decision and grante/§U¢s'Ay4alid the application filed under Section also rejected. Aggrieved by the, who has approached this
3. have counsel for the petitioner and also the the respondent. The point that arise"for clonsideration is:
V V 'A order of the Court below i "the":.application of Accused 3105.2 and l * Al.&._.fileVd 'cadet Section 239 Cr.P.C. is illegal and p'erve'rse.'?"' V " :4. It is the contention of the learned counsel for the petitioner that PW.1 who was the Deputy General Manager, it :l_4Ce'ntlral Office, Andhra Bank had no authority or competency to grant the sanction as he was not the authority to remove :34 6 Crl.RP £019/O3
6. I have perused the sanction order at Ex.P.2, the sanction file at Ex.P.1. the deposition of PW.1 and aIso'"--the records collected during the investigation.
7. It is not in dispute that the Chairman. cf i, the appointing authority in respectfliof PW.1 who granted the sanction' Depu-tgfli i Manager and states in his evidencevthat he in of the Deputy General Manager anthority considered the facts and to prosecute the petitioner. "order at Ex.P.2 reveals that the material placed before in the sanction order. he states " I, Y.Sundara Babu, l)ep.ut'y_i4(ireneral Manager. being the authority' cornpetent to remove the said Sri.M.L.Gopichander *frn5'mo office"'i'after,_fully carefully examining the rnateriais pluaced.;- in regard to the said allegations and °"circusxntan_c~es_of the cse consider that the said » ,/Ifif'S§'i;.M.L.Gopichander shouid be prosecuted in the Court of «:35; vforfthe offence detailed above." Further. he states that acfcords the sanction under Section 6 {1} (c) of the Old Act the prosecution of the petitioner for the said offences and Cr1.RP10i9/O3 any other offences punishable under other provisions of law in respect of the acts aforesaid and for taking cognizance of the said offences in a Court of competent jurisdiction_:--__ So this order of PW.1 was passed on 22.12.1988. to the record of investigation and PW.1 in his ord<er"has:V*s V' the mention that he has gone throughall.'thefreco1'tls V such circumstances has granted the sanction';
8. There is no serious chalierige byhthe peti-tiorier so: far i' as the prima facie material. availahleihagainst hirn to prosecute for the offence under the :.of"thei'I3l_d Act and also IPC. The main contentionof'theVpeti_tioner:'i.sthat PW.1 had no competlencyfto sanction as he was not the appointing'.a1ithoritjr'«'on th_el'i'-date when the order Ex.P.2 was passed by * ., A V .])E'zirinng.pthe coarse, the circular issued by the Andhra has been produced and it reveals the delegation of disciplinary powers to the Deputy General " Manager and it is stated --
_ _ A "Where a zone is headed by a Deputy General manager, he will be the Disciplinary if Authority for all officers in JMGSJ. MMGJ1 and MMGS-III and the General Manager will be the C1'I.RP 1019/O3 Appellate Authority and Executive Director will be the Reviewing Authority".
The above instructions are issued Disciplinary Authorities/Appellate Authorities ' -- it are 'l advised to note the powers entrustevdnitollthexu exercise the same. So far as the falls within the category of the 'oi'fi::pers.Vin.. as per this circular. it is the vDeputy&v.€ren.eral"Manager',---who is the disciplinary authority and dispute that the disciplinary authority to remove an official from the--vservicVe'--; "
10. Thellreciérds':ijeveal;t'hat efte} the completion of the investigationiin respect. of . tlhepcharges referred to above. the chargehseet ca'ine'v to on 4.10.1989. and it is after v,ie.ying chargesheet that the learned Special Judge t'o_Voi;_l'the -vcogn.i_i'ance and issued the summons to the petitioner accused. The circular of the Central Caffice ei' Audhrail Bank was issued on 19.7.1933 delegating the 'to the Deputy General Managers and this circular was rnuch prior to the taking of cognizance by the learned Judge. So to this extent. I do not find any illegality in A "the order of sanction.
%e.
9 C'1'1.R.P 10.19/03
11. But anyhow, the counsel for the petitioner contends that there was no resolution by the Board» of Directors to delegate the powers of a Disciplinary to the Deputy General Manages and thereforegflitli. "
contention that the Circular dated 19,.7~.~1.Q88 ii in law. The cross examination ofv:?&W;'l'~reveals Chairmamcum-Managing Director _vis.y..theii for the post held by the petitionery_a:nd.:_that the '--petitioner was holding the post of MM»Il (n;jlidd:ggc..iy:1anagement Grade 2] at the time of according..tli.e:=sanct.ion';'Jl*le._'states that the Board has delegatedifirhiie service to him during theviirelleveaiut according sanction. But no where in the cross .ex:'i1yinatien'.V...there is any challenge to the evidence of 'reVgardi;ng'nthe passing of the resolution by the Bo_ar.d of Directoi's._ ____ __In the circumstances, the mere non Vp1jo»diic»tipii.,_of the" resolution of the Board of Directors itself is not. snfficient"ft_oV';hold that the delegation of powers to the l'3eputyE"Gen--erai"l\danager is either invalid or illegal. it 'If?_., Now, even assuming that there is some error, oinis*sion or irregularity in the sanction required under sub~ "section [1] of the Prevention of Corruption Act, it is necessary Mes.
10 C1'1.RP 1019/O3 for the petitioner to prove that a failure of justice has infact been occasioned due to such an error. on1issio2€1:i"'»tor irregularity. Though under the Old Act or the New"
are penal provisions in respect of a criminal grant of sanction for prosecuting an"oMfficia1'i..gis procedure and in this context. if though the petitioner has been iehairgesheveted forv_:th~eWoffence under the Old Act. the chargeshne~et:"gcan1e. to before the Court after the cominginto Act and the cognizance was talfgenh the grant of sanction is provision is prospective liar as the validity or invalidityirof concerned, they will have to be looked.._intro the of the provisions contained in the N'éfi' Acts V-
.' *._1i3. 'lThe4x'A.pex Court in the decision reported in AIR [Ptaul Varghese Vs. State of Kerala and another) it held that ..j_iihe.sanction to prosecute the public servant and it the iregquirernent of the prior sanction is a matter of procedure 'Tand"cineis not go to the root of jurisdiction. It also held that Section 19 {3} (c) further reduces the rigor of prohibition 2' H c_:r1.R1> 2019/03 under Section 19 {I}. Apart from this. Section 19 (3) {a} of the New Act reads as under:
"(a) no finding, sentence or order passe~d..;j by a Special Judge shall b reversed or altered V by a Court in appeal. confirmationor revis'ion .
on the ground of the absence of. orAA4ar:.yl".perror,: 4' omission or irregularityp in. 2 it required under sub-section__v'('~1.), un1ess.inli..vthe""v-- opinion of that Court. 3 failur'e«_of in} fact been occasioned':'therel:i3'7ll:ll"ii So the provision provides omission or irregularity in thesarictiion the order passed by the' opinion of the Court, a failure been occasioned thereby. The Courtl"-bellow consideration the material placed on record and has that there is prima facie case _.~egains_t'5the_u'petitio'nerV___anVd other accused for the abovesaid loffenpcesp .and>,_i"n__ such circumstances has taken into consideratvioiaftheh"Question of sanction and held that it is V valid.
Even assuming for the time being that there is V' some error. omission or irregularity in the order at Ex.1'-'.2. it necessary for the petitioner to prove that such error. E2 Crl.RP E019/03 omission or irregularity has occasioned in the failure of justice. s
15. So far as the provisions of Section 19 "the M Act are concerned. the grant of sanction "
intended only to safeguard a public prosecution and also to give anv4l'~o.}::iportuniit.yiA.Vito it sanctioning authority to consideriithgg.r;ireurnstane.esVfliniiyrhich the sanction has been soxight the officwer. The Apex Court in the decision gaps.-at 1953 so 993 ( Kapur Chand held that the sanction to a;;..__o'ffeiieeV_:isg_not an ingredient of the offence; ;iertainslit'o"'t1V:1e procedure. So far as the irregularity in: sanction, the High Court of Kerala in the"-,ldecVi'si_on~_sreflorted in 2001 Cri.L.J. 4448 "[A:hamgeci, Kalnad VsL"St_ate of Kerala) held that an order not rngentionin-g that it __Was issued by order of Governor itself does not render.Vtlre--..sanVction void. In 2004 (7) sec 763 (State by Police uuinsjiectolr Vs. T.Venkatesh Murthy} the Apex Court ..o..,'¢"of1sir1ering" the invalid sanction held that merely because _t11e'r._e"is" omission, error or irregularity in the matter of ':'_4a'ce.ording sanction that does not affect the validity of the l""proceeding unless the Court records the satisfaction that V; C1'1.RP 1019/03 such error, omission or irregularity has resulted in failure of justice.
16. The learned counsel for the petitioner_-'hash'fila'c--§§d-.. . reliance on the decision of the Apex Court reported» A_IR__l 1997 so 3400 {Mansukhlal Vithaldas:
Gujarat) wherein it has been held by the V sanction for the prosecution undlelli-'ir.T_Sl1e.::tionll6. Act passed by the sanctionfliiig in obedience of mandamus Court is not valid. So also, he~vp'lac'fe;d reliance decision of the Apex Court reported' Vs. State of Kerala):'i'Wh'erAe§;;: lCou_rt""clonsidering the lack of sanction for competent authority in the circumstances-ggwfjat the AS-escrebtary (Vigilance) was authorised grantiipsanctpionionly____on 23.04.1994 and the sanction was laccowrded b.y'the.:authority prior to the said date and the Apex Court:l:eldl.tlia~t._ thesanction was without jurisdiction and the proceed'ing's . have to be quashed due to the non "l.v.Acoprnpliance"' of Section 19 of the New Act. He also placed l_re_li'a._nc'e"on the decision of the Apex Court reported in AIR SC 269 {Nagaraj Vs. State of Mysore] wherein the Apex 14 C1'i.RP1O1.9/O3 Court has held that the sanction is necessary to prosecute the officer. .
17. The counsel for the petitioner also decision reported in (2006) 7 sec 172 (statepliispecptor Police. Vishakhapatnam Vs. Surya Sanltararn Apex Court taking into consideration Section 19 of the New Acts sjfor prosecution was granted a perst?tIiVi_:'¥1o"tiA'authorised;in law, held that it is without juristiictionv and there was nothing to shosf'that the power to accord sanction and5QfVi_n'_ the _citfcumstances the Apex Court held that :'thtet'gi-that sanc.ti'on b'.y"him was vitiated in law. Even this lprinciplellclioes 'not-.,pa'1;ply to the facts on hand as PW.1 to whoxinyithep'pourersmiof disciplinary authority we_re vv..de_legat'e~ti h'ao_ grantcr_i_____the sanction Ex.P.2. So all other decisions i.°.eferred'*t_o by the learned counsel for the petitioner pertaipnsyitovltini---absence of sanction and the prosecution of an V officers' A. V"'1\tow, as could be seen from the facts in the ddecisio~I:"referred to above, they do not apply to the facts on ':han_dj Here is a case wherein the sanction has been accorded hi, 1:3 Crl.RP 1.0.19/O3 by PW.}. the Deputy General Manager as per Ex.P.2 and the only contention is that PW.1 had no competency to grantthe sanction. but at the same time. the prosecution has the circular dated 19.7.1988 delegating the "
PW.1. the Deputy General Managereasg it authority and hence. he had the petitioner from the service and'in"'the for the reason that the resolution':-hasenot.hbeen produced, may be that it is an error,i:§g,:,,g,>.gulgarity, there is a sanction order produced prosecute the petitioner for oi;iEii¢g::stated 'Hence, the facts are altogether differen_tt'rorri thetfacjtsvtin the decisions referred to supra.
19. lassuminlig for time being that the offence is saidggto have Eseen committed under the Old Act. it is :''.relevant to"'inote,_t_hat there is no provision under the Old Act liite v{3)_(:a)3n view of the provisions of Section 465 i Cr.P.C.-.,__'l'he provision reads:
a ."_':'465. Finding or sentence when greversible by reason of error, omission or irregularity 16 C:'1.RP 1019/03 (1) Subject to the provisions hereinbefore contained. no finding sentence or order passed by a court of competent jurisdiction shall be 9.
reversed or altered by a Court of confirmation or revision on account o.f__'§u.;yv:,ii'V. 9' error, omission or irregularity in-ifhe~--c,o1n_'plaint,e summons, warrant. - proc1arr'>2,atior1,.:' order,"
judgment or other proceedings before" or dupzrieiagiv 2 trial or in any inquiry or'*-either 9 under this code, or any errorior.firegularityyginfi any sanction for the.,_pi=osecut.ioin',.._unl'ess in the opinion of that court, allraiaire oflvjiiistiice has infact been - ..
(2); any error, omission " any proceeding under this "c'ode,:VA3or error. or irregularity in an» prosecution ahs occasiolrleepdl a failure"oif'_.justice, the court shall have regards-.to"tlhe 'V;-'Tact whether the objection ciolulcl-sandyshouldiiave been raised at an earlier ' 9 stage_ in the" proceedings. "
"So" as ceiulci be seen from the above said provisions, even though... the offence is alleged to have been committed '~.d4'unider'lth,e (lid Act. the provisions of Section 465 Cr.P.C. and Slection"3 (a) of the New Act are similar. The Apex Court in "t,heV'decision referred to in AIR 1999 SC 3706 (Central Bureau M. E7 CI'I.RP 1019/03 of Investigation vs. V.K.Sehgal and another} wherein there was conviction and sentence for the offence under the provisions of the Old Act, the Apex Court by invokingthe provisions of Section 465 Cr.P.C. held that the sanction or invalid sanction cannot be a ground . the conviction and the sentence for the..offenceVund:éi'» 4_"n'A.)VIcis- Act. It also further held that by add'ing::th..e' eiaphiariatiisgi-es,.¢_he._:i said embargo is further widenedtc-.'_tihe effect sanction was granted by an authoérity Vzvholllwaslnjot ijstrictly competent to accord appellate as well as revisional Courts are with the conviction anciserttence 1; m'ere1y"on,t_hat ground. So as could be seen froingthevfde«cisions.' referred to above and the facts on hand_,"the Court heloixililhas come to the conclusion that there is primap faeie 'material against the petitioner for goffericieis referredflmto supra and then considered the que_sti_onV=regarc;ling"_:.the validity of the sanction and relying _ nupon' evvidengze of PW.1, the documents at Exs.P.1 and P2 to "the conclusion that there is valid sanction to .prosecute the petitioner. It is relevant to note that even the peltitioner does not say anything about the failure of justice o/g.
18 CILRP 1019/O3 having occasioned due to the error or irregularity in granting the sanction by PW.1.
20. The learned counsel for the respondentVlV".aI:so'«V. contended that this revision is not rnaintainable"-« in lawxC'and.'_"i on this aspect of the matter. he relied iipon the prov§i'si.ons:'.aof"--t Section 19 {3} (c) of the New Act which°'reads' as 2 " C A "19. 3. (e) no shall gstayl proceedings under this Act on"any.other'groundV} and no court shall "'9_§:e1'¢*éliél'_'x Powersvliioii revision in relation to ii any e.iVnj'te-rlocviitolryporder passed in any/ inquiry;.,_trial.lfiother proceedings.""1:-_c _ On this "a.spect:?iof matlter, he has also placed reliance oriflthe uiireptirted._d'ecision of the High Court of New Delhi in c"ri.1i.a.1y?o,34o'/2603 and CrI.A.No.7751/2008 V..{DharaJ_r°xi5;!'a.ir_x'I€.hattar"«Vs_,_vCentral Bureau of Investigation) VW1_f1erein_p the Hon'bv}.e High Court taking into consideration the prolirisicnsxoi:uSectiVon 19 (3) of the New Act and relying upon the deci'sion inlithe case of V.C.Shukla Vs. CBI (1980) Supp. 92__heIEi' that in terms of Section 19 (3) (c) of the New Act, nolrelir'i'sibn petition could be maintainable in the High Court lagainist an order on charge or an order on framing charge ii"p'assed by the Special Court. But any how, it is relevant to Q .
19 C1'l.RPiO19/O3 note that the Accused Nos.2 and 3 submitted an application to discharge them on the ground that there is sanction and the Court below has taken into the said application and held that the sanction it not think that the principles laid Delhi would be applicable to the facts iloniihanidflas it"
matter pertaining to the grant of sanction; V g g _ _. V
21. The old Act was repeale'd.__an_d thie"«NVeAwAVVé\ct was enacted in view of the nlenacep of c.orru'ption~ was found to be enormously increased ar,t.d~.il:T to-.rd.er' 'to consolidate the amending law rel:ati:ng'_gtoirévention Corruption Act and matters c;;:1iiec:.§i¢i had come into force. it is relevant' toVnote:"that_:'the_Act is a social legislation to curb illegal activities' servants and has to be liberally _.~c.onstr_ué:,d as to*ad_vance its object and not liberally in i'avour~ of 'accu__sed. While interpreting the provisions of the AAic.t..t'theiufConrtS has to see that the object of the Act is achieved a'nd"in this context. the interpretation has to be .. .Witl1out recourse to technicalities to consider the :vali'd_iit'y"of the sanction and therefore, the substantial purpose ':'_for.wlhich the Act is enacted has to be looked into. A 20 C1'l.RP 1019/03
22. On consideration of the material placed on record and the law pertaining to sanction and its validity, I am of the opinion that the petitioner has not made out grounds to hold that there is any such illegality irrthex' of the Courts below in rejecting the application. Accused Nos.2 and 3. The petitioner has'r:ot._made" o_n.t_:
such grounds to call for any interference. The orderiznpngned is legal and valid and there are'-vnoxrnerits. in..AthisV'>rei?ision. Hence, 1 answer the point in negati.\?_e- and proceed to pass the following:
Sd/-5 Judge