Ashok Rana vs Special Police Establishment ... on 10 May, 2018

[Cites 19, Cited by 4]

Madhya Pradesh High Court

Ashok Rana vs Special Police Establishment ... on 10 May, 2018

This criminal revision has been preferred against the impugned order dated 26.02.2018 (Annexure P/5) passed by the Special Judge, Prevention of Corruption Act, Katni (M.P.) in SPC No.02/2017 whereby the learned Special Judge rejected the application of the petitioner questioning the validity of sanction accorded by the competent authority under Section 19(1)(b)(c) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the PC Act"), observing that the issue could be examined during trial, and the order dated 10.03.2018 (Annexure P/6) of framing of charge under Section 7 and Section 13(1)(d) read with Section 13(2) of the PC Act against the petitioner.

2. This revision has been filed claiming the following reliefs :-

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1. Set aside the order dated 04.03.2017 (Annexure P/2);

2. set aside the orders dated 26.02.2018 (Annexure P/5) and dated 10.03.2018 (Annexure P/6) passed by the learned Special Judge, Prevention of Corruption Act, Katni in SPC No.02/2017;

3. This Hon.Court may be pleased to discharge the petitioner from the offence under Sections 7,13(1)

(d) and 13(2) of the Prevention of Corruption Act, 1988, in SPC 02/2017 pending before Special Judge (Prevention of Corruption Act), Katni (M.P.);

4. This Hon.Court may be pleased to pass any other order or orders that are deemed fit and proper in the facts and circumstances of the case.

3. The facts giving rise to filing of present revision in nut shell are that the complainant lodged a complaint on 18.05.2016 to the Special Police Establishment, Lokayukta, Jabalpur stating that a case against him under the Atrocities Act has been registered in Police Station-AJAK-Katni and the petitioner, posted as CSP, demanded Rs.50,000/- as bribe to weaken the case and to quickly put up the charge sheet, since the complainant was unwilling to pay the amount of bribe, he prayed for an action against the petitioner. On the basis of the complaint, Special Police Establishment took up the investigation, and a trap carried out, seized the bribe amount in the drawer of applicant's table and after obtaining sanction filed the charge sheet before the learned THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1727/2018 (Ashok Rana Vs. Special Police Establishment and others)

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Special Judge. The petitioner challenged the validity of sanction by filing an application dated 14.09.2017. The learned Special Judge heard the said application and dismissed the same vide order dated 26.02.2018 holding that it was not the appropriate stage to decide as to whether sanction granted by the competent authority was invalid, and thereafter proceeded and framed the charges under Section 7 and 13(1)(d) read with Section 13(2) of the PC Act against the petitioner. Hence, this revision.

4. The validity of sanction order dated 04.03.2017 is assailed on the ground that the sanction order was passed by the officer who was not competent to accord sanction and the competent authority has not applied its mind to accord sanction for prosecution and no documents relating to the case were placed before the competent authority. It is contended that the officer who was not competent to accord sanction, prepared the draft of sanction which was simply placed before the competent authority without any relevant documents and the competent authority without applying its mind, accorded sanction for prosecution. Further placing reliance on the judgments of Supreme Court in case of Central Bureau of Investigation vs. Ashok THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1727/2018 (Ashok Rana Vs. Special Police Establishment and others)

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Kumar Aggarwal (2014) 14 SCC 295 and Nanjappa vs. State of Karnataka (2015) 14 SCC 186 , it is submitted that 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. It is stated that the grant of sanction is not a mere formality, hence the provision in regard to sanction must be observed with complete strictness keeping in mind the protection available to accused against whom the sanction is sought.

5. The law in this regard is no longer res integra. In State of Maharashtra through Central Bureau of Investigation vs. Mahesh G.Jain reported in (2013) 8 SCC 119, the Supreme Court has observed that grant of sanction is irrefragably a sacrosanct act and is intended to provide safeguard to a public servant against frivolous and vexatious litigations. Satisfaction of the sanctioning authority is essential to validate an order granting sanction, and after referring to various decisions the Supreme Court has culled out the following principles :-

"(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1727/2018 (Ashok Rana Vs. Special Police Establishment and others)

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authority after being satisfied that a case for sanction has been made out;

(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution;

(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him;

(d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence;

(e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order;

(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction;

(g) The order of sanction is a pre-requisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity."

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6. In Supdt. Of Police (CBI) vs. Deepak Chowdhary reported in (1995) 6 SCC 225,the Supreme Court has ruled that :

"5.............The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction."

7. In R.Sundararajan vs. State reported in (2006) 12 SCC 749, while dealing with the validity of the order of sanction, the Supreme Court has expressed thus :-

""14...............it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated."

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8. In the present case, It is not in dispute that the sanctioning authority is the State Government and the sanction order is signed by Shri Das Upper Secretary in the name of the Hon'ble Governor of State of M.P.

9. On perusal of the sanction order dated 04.03.2017, we find it to be very comprehensive as all the facts and circumstances have been clearly mentioned in six pages that the sanction order runs into. The sanction order speaks of consideration of entire material including the case diaries, the documents collected during investigation, the FSL report, statements of witnesses, etc. The relevant part thereof reads as under :-

^^14- vkosnd }kjk fn;s x;s vkosnu i= ,oa VªkUlfdzIV rFkk izkjfEHkd dk;Zokgh] iwjd dk;Zokgh ,oa Vªsi dk;Zokgh ds nkSjku rS;kj fd;s x;s tIrh iapukek] nLrkost tIrh rFkk ekSds ij lEiUu dh xbZ Vªsi dk;Zokgh ds le; rS;kj fd;s x;s dk;Zokgh iapukek ,oa lhycan 'khf'k;ksa ds ?kksyksa foKku iz;ksx'kkyk ,Q-,l-,y- lkxj dh /kukRed fjiksVZ] dFku vfHk;kstu lk{khx.k ds vk/kkj ij vkjksih Jh v'kksd jk.kk mi iqfyl v/kh{kd ¼vtkd½ ftyk dVuh ds }kjk vius inh; drZO;ksa ds fuoZgu esa yksd lsod ds in dk nq:i;ksx dj oS/k ikfjJfed ls fHkUu ikfjrks"k.k ¼fj'or½ dh ekax dh] ,oa ml ekax dh iwfrZ gsrq 15]000@&:i;s dh jkf'k vkosnd ls izkIr dh] ;g ÑR; /kkjk 7] 13¼1½ Mh] 13 ¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e 1988 ds varxZr vijk/k ds fy;s vfHk;kstu LohÑfr tkjh fd;s tkus gsrq izFke n`"V;k i;kZIr vk/kkj gSA 15- vr% rn~uqlkj jkT; 'kklu }kjk /kkjk&19¼1½¼ch½¼lh½ Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 ,oa /kkjk 197 n.M izfØ;k lafgrk 1973 }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq;s] vkjksih Jh v'kksd jk.kk mi iqfyl v/kh{kd ¼vtkd½ ftyk dVuh dks n.Muh; mDr vijk/k ds fy;s vFkok ,sls vU;

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vijk/k ;k vijk/kksa ds fy;s tks izdj.k esa fl) gks] l{ke U;k;ky; }kjk laKku fy;s tkus gsrq vfHk;kstu lafLFkr djus dh LohÑfr iznku djrk gSA** This prima facie shows that there has been application of mind and the material on record has been examined by the authority concerned before according the sanction.

10. In Kootha Perumal vs. State reported in (2011) 1 SCC 491, it has been held that the sanctioning authority when granting sanction on an examination of the statements of witnesses as also the material on record, it can safely be concluded that the sanctioning authority has duly recorded its satisfaction and ,therefore, the sanction order is valid.

11. More over, there is nothing in law which requires a statement to be made by the sanctioning authority that he had personally scrutinized the file and arrived at the required satisfaction. When the sanction order itself is very expressive, then in that case the argument that particular material was not properly placed before the sanctioning authority for according sanction and the authority has not applied its mind, becomes unsustainable.

12. In Central Bureau of Investigation vs. Ashok Kumar Aggarwal (supra), the Supreme Court has considered the question as to what is the proper stage to THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1727/2018 (Ashok Rana Vs. Special Police Establishment and others)

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examine the issue of validity of sanction, after relying on the decision of Dinesh Kumar vs. Airport Authority of India reported in (2012) 1 SCC 532 has held thus :-

"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."

The Supreme Court has also relied on the case of State of M.P. vs. Krishna Chandra Saksena reported in (1996) 11 SCC 439 in para 12, thus :-

"8............the sanctioning authority was satisfied after complete and conscious scrutiny of the records produced in respect of the allegation against the accused. Now the question whether all the relevant evidence which would have tilted the balance in favour of the accused if it was considered by the sanctioning authority before granting sanction and which was actually left out of consideration could be examined only at the stage of trial when the sanctioning authority comes forward as a prosecution witness to support the sanction order if challenged during the trial. As that stage was not reached the prosecution could not have been quashed at the very inception on the supposition that all relevant documents were not considered by the sanctioning authority while granting the impugned sanction." (Emphasis added)

13. Similarly, in Parkash Singh Badal vs. State of Punjab reported in (2007) 1 SCC 1,the Supreme Court THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1727/2018 (Ashok Rana Vs. Special Police Establishment and others)

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while considering the provisions contained in Section 19(1), (2),(3) and (4) of the PC Act has held thus :-

"48. The sanction in the instant case related to offences relatable to Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial."

14. In view of the above, we find no force in the submission of the learned counsel that entire material was not perused before issuing the sanction order. As already indicated above, the sanction order refers to the entire evidence collected in the matter, hence, the same is not defective. Further more, it is already settled in the case of Central Bureau of Investigation vs. Ashok Kumar Aggarwal (supra) and Parkash Singh Badal vs. State of Punjab (supra) that the validity of sanction on account of non-application of mind is a question which has to be raised during trial only.

15. Though in the present revision challenge is also made to the order of framing of charge, but no arguments were addressed to this Court on the said point. In the case of Amit Kapoor vs. Ramesh Chander and another reported in (2012)9 SCC 460, the Supreme Court, after THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.1727/2018 (Ashok Rana Vs. Special Police Establishment and others)

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analyzing various judgments of the Court has culled out some principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Criminal Procedure Code, 1973 or together, as the case may be :

27.3 .The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10 It is neither necessary nor is the court called upon to hold a full fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

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16. It is evident from the order sheets that the Special Judge, after hearing the arguments of the parties and on examination of the entire material produced by the prosecution, came to the conclusion that prima facie case for framing charge against the petitioner under Section 7 and Section 13(1) (d) read with Section 13(2) of the PC Act is made out and rightly framed the charge accordingly vide order dated 10.03.2018.

17. In view of aforesaid, we find no merit and substance in this revision, same is accordingly dismissed.

Ordered accordingly.

                         (S.K.Seth)                                   (Nandita Dubey)
                           JUDGE                                         JUDGE

        jitin


JITIN KUMAR CHOURASIA
2018.05.14 13:22:26 +05'30'

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Madhya Pradesh High Court