Madras High Court
T.C.Loganathan vs State Rep. By on 25 April, 2006
Author: K.N.Basha
Bench: K.N.Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25/04/2006
CORAM
THE HON'BLE MR.JUSTICE K.N.BASHA
Criminal Appeal No.843 of 1998
T.C.Loganathan ..Appellant
-Vs-
State rep. by
CBI / ACB
Chennai. ..Respondent
Criminal Appeal filed under Section 374 of Cr.P.C. against the
Judgment dated 22.10.1998 on the file of the Xth Additional Sessions Judge,
Chennai.
!For Appellant : Mr.M.Ravindran
Senior Counsel
^For Respondent : Mr.N.Chandrasekaran
Special Public Prosecutor
for C.B.I.
:JUDGMENT
The appellant in this appeal is challenging the conviction and sentence imposed on him by the learned Special Judge for CBI cases (X Additional Sessions Judge, Chennai) made in C.C. No.136/97 by the judgment dated 22.10.1998, convicting and sentenci he appellant under the following offences:
i)Under Section 409 IPC - Five years R.I. and Rs.5,000/- fine i/d 6 months R.I.
ii)Under Section 420 IPC - Three years R.I. and Rs.3,000/- fine i/d 3 months R.I.
iii)Under Section 477-A IPC - Three years R.I. and Rs.3,000/- fine i/d 3 months R.I.
iv)Under Section 477-A IPC - Three years R.I. and Rs.3,000/- fine i/d 3 months R.I.
v)Under Section 420 IPC - Three years R.I. and Rs.3,000/- fine i/d 3 months R.I.
vi)Under Section 467 IPC - Five years R.I. and Rs.5,000/- fine i/d 6 months R.I.
vii)Under Section 468 IPC - Three years R.I. and Rs.3,000/- fine i/d 3 months R.I.
viii)Under Section 471 r/w 465 IPC - One year R.I. and Rs.1,000/- fine i/d 1 month R.I.
ix)Under Section 201 IPC - Two years R.I. and Rs.2,000/- fine i/d 2 months R.I.
x)Under Section 13(1)(c) & (d) r/w.13(2) of PC Act - Two years R.I. and Rs.2,000/- fine i/d 2 months R.I.
2. The learned Trial Judge also ordered sentence to run concurrently for the first nine charges and separately for the tenth charge.
3. The appellant faced trial in the following backdrop:
i) The case of the prosecution is that the accused while working as Cashier in the Indian Overseas Bank, Nazarathpet Branch, misappropriated a sum of Rs.94,400/- from the three accounts pertaining to P.W.3, P.W.4 and P.W.5 under the Account Numbers , 6964 and 6967 respectively. P.W.3 is the brother of P.Ws.4 and 5. It is also alleged by the prosecution that the accused misappropriated the amount in the above said accounts by making fraudulent entries in the account books during the period of Octo ber 1991 to August 1992.
ii) P.W.2 is the Branch Manager of the Indian Overseas Bank, Nazarathpet Branch during the period of July 1993. He has stated that there were three Assistants, seven Clerks and one Sub-staff and one Sweeper working in his branch and the accused rking as a cashier in that branch. It is the responsibility of the cashier to receive the money and also to pay the amount to the customers. During September 1992, the accused was transferred to some other branch. Thereafter it is stated by P.W.2 that on verification in respect of accounts for the month of August 1992 with the month of September 1992, there were some variations. It is further stated by P.W.2 that P.W.10, Special Assistant also verified and perused the documents. P.W.4, one of the acc ount holders, presented her application which is Ex.P.5, and the said P.W.4 was introduced by the accused and also the accused signed in Ex.P.5.
P.W.2 further stated that he was working with the accused for more than two years and therefore, he is well acquainted with the signature of the accused. On 29.08.1991, P.W.4 started an account by depositing an amount of Rs.10,000/- under the Pay-in-Slip, Ex.P.6 and it was signed by the Special Assistant, P.W.10. The Account Number of P.W.4 is 6964. The extra ct is marked as Ex.P.7 and the Pass Book is marked as Ex.P.8. It is also further stated by P.W.2 that there are variations in the accounts in respect of PWs.3 to 5. It is also stated by PW.2 that on verification and perusal of relevant documents, it was disclosed that the accused, by making false representation and also by making false credit entries in the books of account in respect of the account holders viz., P.Ws.3 to 5, committed the offence of misappropriation by forging the signatures of accoun t holders, Viz. P.Ws.3 to 5. It is further stated by P.W.2 that by forging the signatures of the above said account holders, the accused withdrawn amounts from their accounts without the knowledge of the account holders, by misusing or abusing and by il legal means as a public servant during the relevant period, got pecuniary advantage to the tune of Rs.94,400/- and thereby committed offence of misappropriation and cheating the Indian Overseas Bank, Nazarathpet Branch and the accused had caused loss to the Bank.
iii) Through P.W.2, prosecution marked the following documents:
Ex.P.5 - Account opening form for Kalyani (P.W.4) Ex.P.6 - 29.8.91 Pay in slip with above form (Rs.1000/-) Ex.P.7 - Extract of statement of above account Ex.P.8 - Passbook of Kalyani Ex.P.9 - Cheque book register maintained by Bank Ex.P.10 - Entry for issuing Cheque book for P.W.4 Ex.P.11 -4.5.92 Pay in slip in the account of P.W.4 for Rs.30,000/-
Ex.P.12 -20.7.92 Pay in slip in the account of P.W.4 for Rs.20,000/-
Ex.P.13 -14.10.92 Pay in slip in the account of P.W.4 for Rs.60,000/-
Ex.P.14 - 18.12.91 Debit Voucher for Rs.7,000/- from the account of P.W.4 Ex.P.15 - 26.6.92 Debit Voucher for Rs.10,000/- from the account of P.W.4 Ex.P.16 - 19.2.92 Withdrawal slip for Rs.2,500/- from the account of P.W.4 Ex.P.17 - 5.6.92 Withdrawal slip for Rs.10,000/- from the account of P.W.4 Ex.P.18 - 20.7.92 Cheque issued by P.W.4 to P.W.3 for Rs.30,000/-
Ex.P.19 - 11.8.92 Cheque issued by P.W.4 to P.W.3 for Rs.60,000/-
Ex.P.20 - Ledger entry for above transactions Ex.P.21 - 23.9.92 Letter by P.W.2 to Zonal Manager about the above transactions.
Ex.P.22 - Letter by Appellant to P.W.2
iv) Prosecution also examined P.W.3, one of the account holders in the same branch and who is the brother of account holders P.Ws.4 and 5. Through P.W.3, Prosecution marked the following documents:
Ex.P.27 - Account opening form for P.W.3
Ex.P.28 - Sample signatures of P.W.3
Ex.P.31 - Passbook
Ex.P.32 - 29.8.91 Pay in slip for Rs.20,000/- in the
account of P.W.3
Ex.P.34 - 4.5.92 Pay in slip for Rs.40,000/- in the
account of P.W.3
Ex.P.53 - 4.5.92 Pay in slip for Rs.30,000/- in the
account of P.W.5
Ex.P.36 - 20.7.92 Withdrawal slip for Rs.20,000/- from the
account of P.W.3
Ex.P.56 - 20.7.92 Cheque for Rs.30,000/- by P.W.5 to P.W.3
Ex.P.41 - 12.11.91 Ratification cheque by P.W.3 for
Rs.10,000/-
Ex.P.42 - 1.10.91 Ratification cheque by P.W.3 for
Rs.5,000/-
Ex.P.43 - 14.5.92 Ratification cheque by P.W.3 for
Rs.10,000/-
Ex.P.44 - 10.8.92 Ratification cheque by P.W.3 for
Rs.10,000/-
Ex.P.58 - 11.2.92 Ratification cheque by P.W.5 for
Rs.4,900/-
Ex.P.59 - 8.2.92 Ratification cheque by P.W.5 for
Rs.5,000/-
Ex.P.24 - 18.12.91 Ratification cheque by P.W.4 for
Rs.7,000/-
Ex.P.25 - 26.6.92 Ratification cheque by P.W.4 for
Rs.10,000/-
v) Prosecution has not marked any documents from the another
account holder, P.W.4. Prosecution, by examining P.W.5, yet another account holder, marked the following documents:
Ex.P.46 - Account opening form
Ex.P.47 - Sample signatures
Ex.P.49 - Passbook
Ex.P.57 - Forged letter of P.W.5 to P.W.2
Ex.P.54 - 18.2.92 Debit vouchers for Rs.5,000/- from the
account of P.W.5
Ex.P.55 - 11.2.92 Debit vouchers for Rs.4,900/- from the
account of P.W.5
vi) Prosecution also examined P.W.6, Branch Officer and P.W.7,
Clerk-cum-Typist, in the branch. Through P.W.6, the following documents were marked:
Ex.P.69 - Ledger extract for S.B.A/c. of P.Ws.3, 4
& 5 as on 29.7.92
Ex.P.29&50 - Extract of Chequebook register
(Ex.P.9-N.T.)
Ex.P.70,71&72 - 5.5.92 - Letters by P.W.6 to P.Ws.3, 4 & 5 Ex.P.23 - Letter by Appellant to P.W.2 along with notification of cheques.
Ex.P.26 - Specimen signatures of P.W.4 along with
passbook.
Ex.P.33 - 29.8.91 Account transfer voucher for P.W.3
Ex.P.35 -14/15-5-92 Debit voucher for Rs.10,000/- from
the account of P.W.3
Ex.P.37 -11/10-8-92 Debit voucher for Rs.10,000/- from
the account of P.W.3
Ex.P.38 -1/3-10-91 Debit voucher for Rs.5,000/- from the
account of P.W.3
Ex.P.39 -5.10.1991 Withdrawal slip for Rs.5,000/- from the
account of P.W.3
Ex.P.40 -12.11.91 Debit voucher for Rs.10,000/- from the
account of P.W.3
Ex.P.48 - Account statement of P.W.5
Ex.P.52 - 29.8.91 Pay in slip for Rs.10,000/- in the
account of P.W.5
Ex.P.66 -15.10.92 Pay in slip for Rs.1,200/- into the
account of Appellant
vii) Prosecution marked through P.W.7, Ex.P.45 - Ledger extract of
P.W.3. Prosecution marked through P.W.10, Special Assistant, Ex.P.63 - S.B. A/c Receipt Book, and through P.W.11, marked Ex.P.76 - Specimen signature of Appellant obtained by the igating Officer, P.W.18. P.W.11, UDC, Zonal Textile Office, Government of India, has been examined to speak about the specimen signatures obtained from the accused by P.W.18, Investigating Officer. P.W.11 was examined to speak about the accused obtaini ng loan from him. P.Ws.12 and 13 were examined to speak about the loans obtained from them, by the accused. Prosecution also examined the witnesses P.Ws.14 to 16 and also P.W.17, Handwriting Expert. P.W.17, after his examination in respect of the specim en signatures obtained in the relevant documents produced before him, has given his opinion under Ex.P.87.
viii) P.W.18, who is the DSP, CBI, registered the case in R.C.No.44(A)/92 on 16.10.1992 against the accused, under Sections 420, 467, 468, 471 IPC and 13(2) r/w 13(1)(d) of PC Act, 1988 as per the orders of the Superintendent of Police. Ex.P.89 is FIR. It is stated by P.W.18 that the case was registered on the basis of source of information collected by the branch. He took investigation on 10.11.1992 and thereafter he had collected various documents from the Manager, Indian Overseas Bank, Nazarat hpet Branch under Seizure Memos Ex.P.90 and Ex.P.91 respectively. On 12.11.1992, he has collected 7 items of documents under Seizure Memo Ex.P.92. P.W.18 already examined P.W.9 and recorded his statement. On 13.11.1992, P.W.18 collected 12 items of do cuments from the Indian Overseas Bank, Nazarathpet Branch under Seizure Memo Ex.P.93 and examined the witnesses P.Ws.3 and 10 and recorded their statements. On 17.11.1992, P.W.7 was examined and her statement was recorded. On 19.11.1992, P.W.18 collect ed 9 items of documents from the Indian Overseas Bank, Nazarathpet Branch under Seizure Memo Ex.P.94 and recorded the statement of P.W.6. On 20.11.1992, P.W.18 examined P.W.2 and another witness viz., R.Ramkumar. On 21.11.1992, P.W.18 examined and reco rded the statement of P.W.8. On 23.11.1992 and 24.11.1992, P.W.18 obtained the specimen writing and signature of the accused and questioned in the presence of independent witness and thereafter on 27.11.1992, P.W.18 examined and recorded the statement o f P.Ws.4 and 5. Thereafter P.W.18 obtained the specimen signatures and writings of P.Ws.4 and 5. On 18.12.1992, P.W.18 sent the questioned documents to the handwriting expert along with specimen and admitted writings for comparison and opinion through the Superintendent of Police. On 28.12.1992, P.W.18 collected 3 items of documents from the Indian Overseas Bank, Nazarathpet Branch along with a covering letter of the Manager dated 26.12.1992 under Ex.P.95. He examined P.Ws.14 and 15 and on 29.12.19 92, he conducted the house search of the accused. He collected 4 items of documents under Ex.P.96. He also recorded the statements of P.W.7 and P.W.9. On 30.12.1992, he examined and recorded the statement of P.W.16 and further examined P.W.2. On 31.1 2.1992, he examined and recorded the statement of P.W.12 and another witness. On 11.01.1993, he collected 3 documents under Seizure Memo Ex.P.97.
ix) Thereafter, further investigation was taken up by P.W.19, Inspector of Police. P.W.19 perused the entire records and also obtained the handwriting expert's opinion, P.W.17. Thereafter, P.W.19 obtained the Sanction Order for the prosecution accused from P.W.1, Vigilance Officer of Indian Overseas Bank, Head Office, Chennai. Ex.P.4 is the Sanction Order. After completion of investigation, P.W.19 filed the charge sheet against the accused for the offences under Sections 409, 420, 467, 468, 467 r/w 471, 468 r/w 471 IPC and 477A IPC and 201 IPC and u/s 13(2) r/w 13(1)(c) & (d) of P.C. Act, 1988.
x) Prosecution, in order to prove its case, examined P.Ws.1 to 18 and filed Ex.P.1 to Ex.P.97.
xi) When the accused was questioned under Section 313 Cr.P.C, in respect of incriminatory materials made appearing against him through the evidences adduced by the prosecution, he has come forward with the version of total denial and he has stat he has been falsely implicated in the case. The accused has not chosen to examine any witness on his behalf, nor marked any documents.
4. Mr.M.Ravindran, learned Senior Counsel appearing for the appellant, restricted his contention only in respect of sanction order, Viz. Ex.P.4, accorded by P.W.1, Vigilance Officer of the Indian Overseas Bank, Head Office, Chennai, for initiat cution against the accused. The learned Senior Counsel made it very clear that he is not going into the merits of the case and he is only questioning the sanction order Ex.P.4, accorded by P.W.1 for initiating prosecution against the accused.
5. It is pointed out by the learned Senior Counsel that P.W.1, Viz. Vigilance Officer of Indian Overseas Bank, Head Office, Chennai has accorded the Sanction Order, Ex.P.4. P.W.1 has categorically stated in his evidence that he is the Discipli ority against the accused as per the Bipartite Settlement dated 14.12.1966 and its subsequent amendments. At the outset, the learned Senior Counsel contended vehemently that P.W.1, Vigilance Officer, is not at all competent to accord sanction as he is no t empowered with the power to appoint or remove the accused. It is also further contended by the learned Senior Counsel that the prosecution placed reliance on Ex.P.1 to Ex.P.3, viz., Notice of Circular of nomination of Disciplinary Authorities dated 23 .03.1988 (Ex.P.1), the Industrial Relations Department Notice containing permanent circular dated 23.03.1988 in respect of the operational instructions dated 10.04.1990 (Ex.P.2), and the certificate dated 27.02.1995 issued to P.W.1 empowering him to act as Disciplinary Authority in the matter relating to domestic enquiries as per their Circular No.200/88 dated 23.03.1988 and No.1/90-91 dated 10.04.1990 issued by industrial Relations Department (Ex.P.3). The certificate, Ex.P.3 further discloses that P. W.1 was attached to Enquiry Cell of Vigilance Department since 14.06.1989. It is further contended by the learned Senior counsel placing reliance on the above said documents, Viz. Exs.P.1 to P.3, that the power of sanction has been conferred only to the General Manager who is the appointing authority as per the provisions of Prevention of Corruption Act and that power to sanction cannot be applicable to other officers. The learned Senior Counsel also pointed out in his contention as stated above, tha t P.W.1 categorically stated even in his chief examination that the power to appoint the accused is vested with the General Manager and the same was delegated to P.W.1 who was the Vigilance Officer. The learned Senior Counsel vehemently contended that t he said delegation of power is illegal and also placed reliance on a decision of the Apex Court in Bk.Sardari Lal Vs. Union of India and Others reported in AIR 1971 SC 1547. The learned Senior Counsel also, by placing reliance on the above said judgment , submitted that P.W.1 cannot be the sanctioning authority and any sanction given by him is not valid in the eye of law.
6. The learned Senior Counsel contended that it is the settled principle of law that sanction is not an empty formality and it is a shield for the Government servants protecting them from unnecessary and unwarranted proceedings without any reasonabl ounds or materials.
7. It is further contended by the learned Senior Counsel by placing reliance on the provision under Section 19 of the Prevention of Corruption Act, 1988, that taking cognizance of an offence by the Court without proper sanction from the competent au ity is in contravention of mandatory provision contained under Section 19 of the Act. In support of the above said contention, the learned Senior Counsel strongly placed reliance on the decision of the Supreme Court in State of Goa Vs. Babu Thomas repor ted in (2005) 8 SCC 130. In view of the above said decision, the learned Senior Counsel further contended and submitted that the sanction accorded by incompetent authority would amount to failure of justice as contemplated under Section 19 Clause-3 of t he Prevention of Corruption Act, 1988.
8. Mr.N.Chandrasekaran, learned Special Public Prosecutor, on the other hand, submitted that there is absolutely no illegality in the sanction order passed by the Vigilance Officer of Indian Overseas Bank, P.W.1. It is further submitted by the Special Public Prosecutor that P.W.1 has categorically stated that though the General Manager is the appointing authority, the power can be delegated to any other officer concerned. It is also contended by the learned Special Public Prosecutor that P.W. 1 also stated in his evidence that under Ex.P.1/Notice of Circular of nomination of Disciplinary Authorities dated 23.03.1988, Ex.P.2/the Industrial Relations Department Notice containing permanent circular dated 23.03.1988 in respect of the operational instructions dated 10.04.1990 and Ex.P.3/the certificate dated 27.02.1995 issued to P.W.1 empowering him to act as Disciplinary Authority in the matter relating to domestic enquiries as per their Circular No.200/88 dated 23.03.1988 and No.1/90-91 dated 1 0.04.1990 issued by industrial Relations Department, he has been appointed as disciplinary authority by the bank and on the strength of the above said documents Viz. Ex.P.1 to Ex.P.3, P.W.1, accorded sanction on the perusal of the relevant materials prod uced before him. It is also contended by the learned Special Public Prosecutor that the defence has not even put a suggestion to P.W.1 that he is not at all empowered or authorised to accord sanction. The learned Special Public Prosecutor further conte nded that the defence has come forward with this plea for questioning the sanction order at the belated stage and that too, at the stage of appeal. Therefore, the learned Special Public Prosecutor contended that the argument put forward by the learned S enior Counsel for the appellant questioning the sanction order is unsustainable in law.
9. It is further contended by the learned Special Public Prosecutor that even assuming that P.W.1 is not competent to accord sanction for initiating criminal prosecution against the accused, it would not amount to "failure of justice" as contemplate der Section 19 Clause 3 of the Act and also under Section 465 Cr.P.C. The learned Special Public Prosecutor in support of his contentions, placed reliance on the decision of the Apex Court in K.Veeraswami Vs. Union of India and others reported in 1991 ( 3) SCC 655 which deals with the aspect of sanction. The learned Special Public Prosecutor also placed reliance on yet another decision in Central Bureau of Investigation Vs. V.K.Sehgal and Another reported in 1999 SCC (Crl.) 1494.
10. I have given my careful and anxious consideration to the rival contentions put forward by either side.
11. The entire perusal of the evidence of P.W.1, who has accorded sanction, Ex.P4, in this case for the purpose of initiating prosecution against the accused clearly shows that P.W.1 is the Vigilance Officer of the Indian Overseas Bank, Head Office, nnai. It also discloses that P.W.1 has categorically stated even in his Chief Examination that the power to appoint the accused is vested with the General Manager and the same was delegated to him as per the proceedings dated 14.12.1966. The undisputed fact remains that the prosecution has not chosen to mark the vital document as per the proceeding dated 14.12.1966, delegating the power of the General Manager to the Vigilance Officer, P.W.1. It is also relevant to note that P.W.1 during his cross-exam ination categorically stated that there is absolutely no mention about his power to accord sanction in Ex.P.1 to Ex.P3. It is also stated while narrating the facts that Ex.P1 is the Circular of nomination of disciplinary authorities, dated 23.03.1988 in respect of the Bipartite Settlement dated 14.12.1966 and its subsequent amendments regarding the appointment of disciplinary authorities. Ex.P.2 is the circular from Indian Overseas Bank, Central Office, Chennai, issued by the Industrial Relations Depar tment. Ex.P.3 is the certificate empowering P.W.1 who is the Vigilance Officer regarding the power as a disciplinary authority in the matter relating to domestic enquiries. Therefore, it appears that prosecution has chosen to mark these documents, Viz. Ex.P.1 to Ex.P.3 through P.W.1, the Vigilance Officer, who has accorded sanction Ex.P.4, in this case, only for the purpose of substantiating the prosecution case that the power to accord the sanction is vested with P.W.1. But P.W.1 has categorically st ated that there is absolutely nothing in Ex.P.1 to Ex.P.3 in respect of his power to accord sanction either directly or through delegation.
12. The version of the learned Special Public Prosecutor that there is no suggestion put to P.W.1 to the effect that P.W.1 is not competent to accord sanction is unacceptable as it is already pointed out that in the chief examination P.W.1 categoric stated that the power to appoint the accused is vested with the General Manager and the same was delegated to the Vigilance Officer, P.W.1. Further, it is also relevant to note that the prosecution has not chosen to produce the document dated 14.12.196 6 through the said documents viz., Bipartite Settlement dated 14.12.1966 the power was delegated to P.W.1. Further P.W.1 also categorically admitted in his cross-examination that there is no mention about his power to accord sanction in Exs.P.1 to 3.
T herefore, in view of the above said categorical statements of P.W.1, there is absolutely no need for the defence to make any suggestion to the effect that P.W.1 is not competent to accord sanction.
13. Further, as stated above, the prosecution for the reasons best known to it, has withheld the production of the vital document dated 14.12.1966 for the delegation of power of appointment and removal of the accused in favour of P.W.1. Therefor Court is left with no other alternative except to draw adverse inference against the prosecution under Section 114(1)(g) of Indian Evidence Act. Added to this serious infirmity in respect of according sanction, the categorical reasons given by P.W.1 dur ing his cross examination, as stated above, clearly shows that the prosecution has miserably failed to establish that P.W.1 is competent to accord sanction in this case. One more aspect also to be taken into consideration is the specific admission of P. W.1 during his cross examination that only, in his capacity as disciplinary authority, he is having power to remove the accused from his post and only under such disciplinary authority, he has accorded sanction order Ex.P4 in this case. Therefore, in vie w of the specific admission made by P.W.1 during his cross-examination, coupled with the fact of non production of the vital document dated 14.12.1966, delegating and empowering the power of P.W.1 to appoint and remove the accused in this case, in my vie w, clearly destroys the prosecution version that the sanction order is valid and in view of these findings, I am of the considered view that P.W.1 is not competent to accord sanction to prosecute the accused.
14. Now Mr.M.Ravindran, learned Senior Counsel appearing for the appellant contended that the sanction order issued by an incompetent authority is a fundamental error which invalidates the very cognizance taken by the Court and the learned Senio l also placed reliance on the decision of the Hon'ble Supreme Court of India in State of Goa Vs. Babu Thomas reported in (2005) 8 SCC 130. On the other hand, Mr.N.Chandrasekaran, learned Special Public Prosecutor contended that even assuming that the s anction order was passed by an incompetent authority under Section 19(3) of the Prevention of Corruption Act, 1988 unless it is shown that a failure of justice has been occasioned, in view of the illegality in according sanction by an incompetent authori ty, the defence cannot contend that the very cognizance taken by the Court is illegal and vitiates the entire proceedings. The learned Special Public Prosecutor placed reliance on the decision of the Hon'ble Supreme Court in K.Veeraswami Vs. Union of In dia and others reported in 1991(3) SCC 655 and also another decision of the Apex Court in Central Bureau of Investigation Vs. V.K.Sehgal and Another reported in 1999 SCC (Crl.) 1494.
15. In the decision of the Hon'ble Supreme Court of India in K.Veeraswami Vs. Union of India and others reported in 1991(3) SCC 655, cited by the learned Special Public Prosecutor, the Hon'ble Supreme Court of India discussed the questions relat he applicability of Section 5 and 6 of the Prevention of Corruption Act, 1947 to the removal of the Judges of the High Courts and Supreme Court including the Chief Justice of India and also considered the point of according sanction by an competent autho rity. The Apex Court also held by majority that the sanction for prosecution of a Judge is not required after he ceased to hold the office since he had retired from the service on attaining the age of superannuation and therefore he was not a public ser vant on the date of filing the charge sheet. It is also relevant to note that there is no discussion in the decision of the Apex Court, as cited supra, regarding the point viz., according sanction by an incompetent authority. Yet another decisi on cited by the Special Public Prosecutor is 1999 SCC (Crl.) 1494 in the case of Central Bureau of Investigation Vs. V.K.Sehgal and Another. In that decision, the Hon'ble Supreme has held that, "Section 465 Cr.P.C. debars a court of appeal or revision from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity".
It is also held in the very same decision that the accused who had not raised the question of sanction at the trial stage cannot possibly sustain such a plea made for the first time in the Appellate Court.
16.However, Mr.M.Ravindran, learned Senior Counsel for the appellant,placed reliance on the decision of the Hon'ble Supreme Court of India in K.KALIMUTHU Vs. STATE reported in (2005) 4 SCC 512 and contended that the question of validity of sanction r can be raised at any stage. It is held by the Apex Court in that decision that the said question is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein and that the question may arise at any sta ge of the proceeding.
17. As far as this case is concerned, as a matter of fact, that the defence put questions to P.W.1 regarding his competency for according sanction and elicited answers to the effect that there is no mentioning in Exs.P.1 to P.3 to the effect that P. is having power to accord sanction. Therefore even during the examination of P.W.1, the defence raised the question of competency of P.W.1 to accord sanction in this case.
18. It is also relevant to note the decision rendered by the Hon'ble Supreme Court of India in MANSUKHLAL VITHALDAS CHAUHAN VS. STATE OF GUJARAT reported in 1997 (7) SCC 622. In that decision, the Apex Court has held that, "The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions. Sanction is a weapon to ensure discouragement of frivolous and vex atious prosecution and is a safeguard for the innocent but not a shield for the guilty."
It is further held by the Apex Court in the very same decision that, two authorities viz., Under Secretary as well as the Secretary of the same Department have deposed that they had accorded sanction and in view of the inconsistent statement of facts by two authorities, it was held by the Apex Court that sanction was void ab initio. It is also made clear by the Hon'ble Supreme Court in the very same decision as follows :
"Section 6(2) is clarificatory in nature inasmuch as it provides that if any doubt arises whether the sanction is to be given by the Central Government or the State Government or any other authority, it shall be given by the appropriate Government or the authority, which was competent to remove that person from the office on the date on which the offence was committed. This rule is a departure from the normal rule under which the relevant date is the date of taking cognizance of the offence". (Para 13)
19. The decision cited by the learned Senior Counsel for the appellant in STATE OF GOA VS.BABU THOMAS reported in (2005) 8 SCC 130 is squarely applicable to the questions involved in this case viz., the competency of the authority to accord sanction he Apex Court has held in that decision as follows :
"10. Learned counsel for the appellant, however referred to sub-section 3 of Section 19 of the Act. Sub-section 3 of Section 19 reads as under:
"19. (3) Notwithstanding anything contained in the Code of Criminal Procedure , 1973 (2 of 1974), -
(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-secti 1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justi
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings."
11. Referring to the aforesaid provisions, it is contended by learned counsel for the appellant that the Court should not, in appeal, reverse or alter any finding, sentence or order passed by a Special Judge on the ground of the absence of any error, omi ssion or irregularity in the sanction required under sub-section (1), unless the Court finds that a failure of justice has in fact been occasioned thereby. In this connection, a reference was made to the decision of this Court rendered in the case of St ate v. T.Venkatesh Murthy. Reference was also made to the decision of this Court in the case of Durga Dass v. State of H.P. where this Court has taken the view that the Court should not interfere in the finding or sentence or order passed by a Special Judge and reverse or alter the same on the ground of the absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless the Court finds that a failure of justice has in fact been occasioned, thereby. According t o the counsel for the appellant no failure of justice has occasioned merely because there was an error, omission or irregularity in the sanction required because evidence is yet to start and in that view the High Court has not considered this aspect of t he matter and it is a fit case to intervene by this Court. We are unable to accept this contention of the counsel. The present is not the case where there has been mere irregularity, error or omission in the order of sanction as required under sub-sect ion (1) of Section 19 of the Act. It goes to the root of the prosecution case. Sub-section (1) of Section 19 clearly prohibits that the Court shall not take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been com mitted by a public servant, except with the previous sanction as stated in clauses (a), (b) and (c)."
"12. As already noticed, the sanction order is not a mere irregularity, error or omission. The first sanction order dated 2-1-1995 was issued by an authority that was not a competent authority to have issued such order under the Rules. The second sanct ion order dated 7-9-1997 was also issued by an authority, which was not competent to issue the same under the relevant rules, apart from the fact that the same was issued retrospectively w.e.f. 14-9-1994, which is bad. The cognizance was taken by the Sp ecial Judge on 29-5-1995. Therefore, when the Special Judge took cognizance on 29-5-1995, there was no sanction order under the law authorising him to take cognizance. This is a fundamental error which invalidates the cognizance as without jurisdictio n."
21. Therefore, in view of the above said principle of law laid down by the Apex Court, I am of the considered view that the said decision is squarely applicable to the questions involved in this case regarding the validity of the sanction accord W.1 and in view of the aforesaid reasons and as already held that P.W.1 is not competent to accord sanction and as such this is a fundamental error which invalidated the cognizance taken by the learned Judge, is without any jurisdiction which vitiates th e entire proceedings.
22. Therefore, the appeal is allowed and the conviction and sentence imposed on the appellant is set aside. In view of the gravity of the offences alleged by the prosecution, it is open to the prosecution to obtain sanction order from the compe hority as per the rules and regulations and to initiate fresh proceedings in accordance with law from the stage of taking cognizance of the offences.
km/gg To
1.The X Additional Sessions Judge, Chennai.
2.thro' The Principal Sessions Judge, Chennai.
3.The CBI / ACB, Chennai.
4.The Public Prosecutor, High Court, Madras.