Rajasthan High Court - Jaipur
Satish Chandra Mathur And Ors. vs State Of Rajasthan on 25 March, 2003
Equivalent citations: 2003CRILJ3413, RLW2003(4)RAJ2482, 2003(3)WLC161
JUDGMENT Goyal, J.
1.Both the petitions under Section 482 Cr.P.C. are being decided vide common order as some of the facts and point of law involved are common.
2. Briefly narrated the facts of both the petitions are as under :-
Misc. Petition No. 508/2000 ;- One F.I.R. No. 6(A)/92 was registered against the accused petitioner Satish Chandra Mathur and two other accused persons namely Rameshwar and Om Prakash Gupta. After investigation, charge-sheet came to filed against Satish Chandra and Rameshwar Balai under Section 120B IPC, read with Section 468, 467, 471 and 409 IPC and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (in short the Act, 1988) for committing criminal breach of trust of a sum of Rs. 48,000/- and making false entries in the records and subsequently a sum of Rs. 24,000/- was re-deposited in loan accounts of the consumer. It was further observed by the Investigation Officer that additional chargesheet against Om Prakash would be submitted after obtaining the sanction for prosecution.
Learned Special Judge (C.B.I. Cases), Jaipur registered the Criminal Case No. 34/1992 and framed the charges as stated hereinabove. The accused persons pleaded not guilty. The prosecution examined as many as 12 witnesses. The accused were examined as provided under Section 313 Cr.P.C. Final submissions were heard and three points for determination were framed by the learned Trial Judge. The first point for determination was as to whether accused Satish Chandra Mathur was a public servant and sanction for prosecution is valid. It was held by the learned Judge that at the relevant time accused Satish Chandra being Branch Manager was a public servant, but sanction for prosecution was given without application of mind, hence sanction for prosecution was not valid and in absence of valid sanction, cognizance could not have been taken against the accused Satish Chandra. Consequently, Satish Chandra was acquitted vide judgment dated 6.11.1998. It was further held that co-accused Rameshwar was prosecuted for the offence of criminal conspiracy with accused Satish Chandra, hence he was also acquitted.
Thereafter, sanctioning authority i.e. Chairman, Arawali Kshetriya Gramin Bank was approached for sanction of prosecution but the sanctioning authority declined sanction on the ground that the accused Satish Chandra has already undergone sufficient mental tension by way of contesting the case in the Court all these years and now no useful purpose would be served in granting sanction at this later stage. Therefore, charge-sheet only under I.P.C. offences punishable under Sections 120B, 409, 467, 468, 471 I.P.C. was filed against the accused petitioner and two other persons namely Om Prakash Gupta and Rameshwar Balai in the year 1999. Criminal Case No. 5/1999 was registered in the Court of learned Additional Judicial Magistrate (S.P.E. Cases), Jaipur City, Jaipur.
An application was moved under Section 300 Cr.P.C. on 9.5.2000 by two accused persons Satish Chandra and Rameshwar with the averments that since they have already been acquitted after trial, they cannot be prosecuted again on the same facts. Learned Magistrate dismissed this application on the ground that earlier decision was not on merits, hence Section 300 Cr.P.C. is not applicable. It was also observed in view of the judgment of the Hon'ble Apex Court delivered in State of T.N. v. M.M. Rajendran (1), that if the order of sanction is found to be invalid, finding on the merits about the prosecution case is not permissible and the proper course would be to drop the proceedings and it would be open to the State to proceed afresh after obtaining the necessary sanction. Feeling aggrieved, the accused petitioner approached this Court by way of this petition under Section 482 Cr.P.C.
Petition No. 932/2001 :- This petition has been directed by the accused petitioner Madhav Saran against the order dated 24.7.2001 whereby the learned Special Judge (C.B.I. Cases), Jaipur took cognizance against the accused petitioner under Sections 7 and 13(2) read with Section 13(1)(d) of the Act, 1988. The relevant facts in brief are that earlier a charge-sheet came to be filed against the accused petitioner for the said offences. Criminal Case No. 3/1993 was registered in the Court of learned Special Judge, C.B.I. Cases, Jaipur. According to prosecution, the accused petitioner was working as a Registrar of Companies at Jaipur. On 25.8.1992, a raid was held at the residence of the petitioner and a sum of Rs. 1,000/- taken as bribe from one Sh. Sharda Kant Sharma was recovered from the petitioner. Charges were framed. The prosecution examined six witnesses. The statement of last witness namely Sh. Vishwapati Trivedi, who accorded the sanction for the prosecution was recorded by the learned Judge on 18.2.2000 and during the cross-examination, an application was moved on behalf of the prosecution wherein it was prayed that before the matter is further proceeded, the arguments on the issue of grant of prosecution sanction be heard. Senior Public Prosecutor conceded before the Trial Court that prosecution sanction is not proper, hence these proceedings may be dropped and in view of the judgment of Hon'ble the Apex Court delivered in State of T.N. v. M.M. Rajendran's case (supra) after obtaining afresh sanction the accused may be prosecuted again. Hence vide judgment dated 23.2.2000 learned Special Judge dropped the proceedings of the Criminal Case No. 3/1993 and issued a further direction that after obtaining afresh prosecution sanction, the accused may be prosecuted again.
Thereafter, having obtained the necessary prosecution sanction afresh charge-sheet came to be filed on 24.7.2001 and the cognizance was taken on that day as stated hereinabove.
In the case of accused petitioner Satish Chandra learned counsel Sh. Rathore argued that the petitioner was acquitted in absence of proper sanction for prosecution, hence he is not liable to be tried again for the same offence. Learned Public Prosecutor supported the impugned order dated 6.6.2000. He submitted that judgment dated 6.11.2000. He submitted that judgment dated 6.11.1998 was not on merits in absence of the proper sanction, even the cognizance could not have been taken and the whole trial was null and void.
3. I have considered the rival submissions and the judgments relied upon by learned counsel for the petitioner learned Public Prosecutor. Section 300 Cr.P.C. provides that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence. A perusal of the judgment dated 6.11.1998 goes to show that the learned Judge acquitted the accused petitioner on the sole ground that prosecution sanction was not proper. He did not consider the case on merits in absence of prosecution sanction. The learned Judge was not competent even to take cognizance. Thus, the judgment dated 6.11.1998 would not operate a bar for fresh prosecution. Learned Public Prosecutor relied upon Yusofalli Mulla Noorbhoy v. The King (2), wherein the accused appellant was tried in the Court of Presidency Magistrate under Section 13(1) read with Section 5 of the Ordinance for the offence of hoarding. He was also separately charged under Section 13(1) read with Section 6 of the Ordinance for the offence of profiteering. He pleaded not guilty. The Magistrate proceeded with the case. Thereafter the accused was acquitted on the ground that this charge-sheet was filed without proper sanction. Thus it is the incompetence of the prosecution to proceed against the accused without sanction as provided for in law. Thereafter, fresh prosecution was initiated against the accused appellant for the same offences and on the same facts after obtaining fresh prosecution sanction, but the learned Magistrate acquitted the appellant holding that the fresh prosecution was barred under Section 403 of Cr.P.C. (old Cr.P.C). The Privy Council following the decision of the Federal Court delivered in Basdeo Agarwalla v. King-Emperor (3), came to the conclusion that sanction was bad and the prosecution incompetent, hence the order of acquittal was passed without jurisdiction and could only operate as order of discharge and thus fresh prosecution was not barred. Similar view was taken by the Hon'ble Supreme Court in Baij Nath Prasad Tripathi v. The State of Bhopal and Anr. (4), wherein it was held that whole trial was null and void in absence of prosecution sanction and it cannot be said that there was any conviction or acquittal in force within the meaning of Section 403 Cr.P.C. (new Section 300 Cr.P.C.). Such a trial does not bar a subsequent trial. Following the view of the Privy Council and the Supreme Court (both supra), the Hon'ble Apex Court held in Mohammad Safi v. The State of West Bengal (5), that where the accused, who was tried earlier by a Special Judge on the basis of a charge-sheet under Section 409 I.P.C., was acquitted after the conclusion of the trial not on merits but on the erroneous conclusion that the Court had no jurisdiction to take cognizance of the offence on the police challan, the subsequent trial and conviction of the accused for the same offence by the Court were not barred by the provisions of Section 403 Cr.P.C. The earlier trial was no trial at all and the order passed therein was not an order of acquittal as contemplated by Section 403 (1) old Cr. P.C. Thus in view of these judgments of Hon'ble Privy Council and the Hon'ble Apex Court, the judgment dated 6.11.1998 was not on merits and the accused petitioner was acquitted only on account of improper sanction. Therefore, Section 300(1) Cr.P.C. is not attracted. The next submission made by learned counsel Sh. Rathore was that in absence of prosecution sanction second charge-sheet even for I.P.C. offences was not maintainable and further the sanction for I.P.C. offences was also necessary as provided under Section 197 Cr.P.C. Reliance is placed upon Akki Veeraiah v. State (Inspector, Special Police Establishment), (6). The facts of this case were that two accused persons were charge-sheeted for offences under Sections 408 and 477(a) read with Section 120B I.P.C. The first accused was a booking Clerk in Railway and the second accused was a clerk in the booking office. They entered into a conspiracy to commit breach of trust of railway funds and to commit other illegal acts. According to para 13 of this judgment a clerk under the Railway Act cannot be prosecuted as a public servant under Section 409 I.P.C. and thus the accused were charge-sheeted for that very reason only under Section 408 I.P.C. Therefore, no question of choosing between Section 409 IPC and Section 5(1)(c) of the Prevention of Corruption Act, 1947 arises. In this view Sub-section (4) of Section 5 does not confer any option on the prosecution to proceed against a public servant under Section 5(1)(c) or under Section 408 IPC. In para 24 of this judgment it was held that in the present case the essential facts are that the two government servants who are public servants within the meaning of Section 21 of Indian Penal Code received amounts by selling tickets and dishonestly misappropriating them. The said essential facts, if established, clearly make out an offence under Section 5(1)(c) of the Act, 1947 and therefore, the previous sanction of the superior officer was a condition precedent for the filing of the complaint. By ignoring one of the essential facts, the prosecution cannot evade the stringent provisions of Section 5 and file a complaint under Section 408 of Indian Penal Code, In the instant case before this Court first charge-sheet was filed under various Sections of I.P.C. including Section 409 I.P.C. and under Sections of the Act, 1988. Second charge-sheet was filed only under I.P.C. offences including the Section 409 IPC as the sanctioning authority declined to accused the sanction on the ground that the accused has already undergone sufficient mental tension by way of contesting the case in the Court all these years. Therefore, it is not the case where the prosecution evaded the stringent provisions of the Act, 1988. Similar view was taken in K.P. Sinha v. Aftabuddin (7) and Varindmal v. Radha Krishna and Ors. (8). It was argued and rightly so by learned Public Prosecutor that in view of the judgment of Hon'ble the Apex Court delivered in State of T.N. v. M.M. Rajendran's case (supra) the prosecution applied for afresh prosecution sanction but the same was not accorded, hence the charge-sheet was filed only under I.P.C. offences including Section 409 I.P.C. It is significant to say here that Section 409 I.P.C. provides punishment with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, whereas the offence under Section 13(1)(d) of the Act, 1988 is punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine. Thus the offence under Section 409 I.P.C. is graver than the offence under Section 5 of the Act, 1947. Since the sanctioning authority declined to accord the sanction required for the offence under Section 13 of the Act, 1988, charge-sheet under I.P.C. offences including Section 409 I.P.C. which was a graver offence than the offence under Section 13 of the Act, 1988 is not covered under Section 300(1) Cr.P.C. This view finds support from the judgment of A.P. High Court delivered in N. Brahmeswararao v. The Sub Inspector of Police, Vinukonda and others, (9), cited by learned counsel for the petitioner. The facts of the case before the Andhra Pradesh High Court were that a complaint under Section 343, 347 I.P.C. respectively punishable with imprisonment of two years and three years was filed against two police officers. The allegations were that the accused persons allegedly confined two persons in police lock up and demanded illegal gratification. An objection was taken by the accused persons in that in the the Court should not have taken cognizance of the offences except with the previous sanction of the competent authority as required under Section 6(1)(c) of the Act, 1947. The Magistrate allowed this application and declined to proceed with the case any further. It was held in para 4 of this judgment that the law is well settled that when the facts alleged in a complaint disclose primarily an offence to prosecute to which a sanction is necessary, it would not be open to the prosecutor to evade the requirement of sanction by any device so as to prosecute the offender under some other Section of law not requiring a sanction. It is also well settled that when a person commits several offences in the course of same transaction and if the more serious offence requires a previous sanction, it would not be open to the prosecution to ignore the serious charge and prosecute the offender for the less serious charges which do not require previous sanction. In the case before the Andhra Pradesh High Court, the offence under Section 5 of the Prevention of Corruption Act is a more serious offence than the offences under Sections 343 and 347 I.P.C. Thus the order of the Magistrate was found to be justified. But in the present case before this Court the offence under Section 409 I.P.C. is graver than the offence under the Act, 1988, hence the objection raised by learned counsel Sh. Rathore is not acceptable and this view finds support from para 5 and para 7 of this judgment. According to para 5 of this judgment. According to para 5 of this judgment the Hon'ble Apex Court in Baijnath's case (supra) held that no sanction under Section 197(1) Cr.P.C. was necessary for the prosecution of the accused for the offence under Section 409 I.P.C. even though the accused committed the offence punishable under Section 477A read with Section 109 I.P.C. in respect of which sanction was necessary. It was held that offence under Section 477A is a minor offence when compared with the offence punishable under Section 409 I.P.C., no sanction under Section 197(1) Cr.P.C. was necessary for the prosecution of the accused for the offence under Section 409 I.P.C. In Durga Charan's case (1966 Cri. L.J. 1043) (SC) the Hon'ble Apex Court pointed out that the prosecution of the accused under Section 353 I.P.C. is not invalid though his prosecution under Section 166 I.P.C. is invalid for want of the necessary sanction in so far as the offence under Section 186 I.P.C. is for less grave than the offence under Section 353 I.P.C. Thus the offence under Section 409 I.P.C. is graver than the offence under Section 13 of the Act, 1988, the prosecution for the graver offence under Section 409 I.P.C. is permissible and no prosecution sanction was required for submitting the second charge-sheet-only under I.P.C. offences. Thus petition No. 508/2000 has got no force.
4. In the case of accused petitioner Madhav Saran, learned senior counsel Sh. S.R. Bajwa contended that the impugned order dated 24.7.2001 is bad in law as the petitioner was acquitted of the charges vide judgment dated 23.2.2000 in absence of invalid sanction and this judgment was passed after examining six prosecution, witnesses. According to learned senior counsel Sh, Bajwa there is no such provision in Cr.P.C. providing the dropping of the proceedings. He referred Sections 239, 248 and 321 of Cr.P.C. According to learned senior counsel Sh. Bajwa Section 239 Cr.P.C. provides that if upon considering the police report and the documents and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. Section 248 Cr.P.C. makes a provision for acquittal or conviction at the conclusion of the trial and Section 321 Cr.P.C. provides that the Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried, and upon such withdrawal (a) if it is made before charge has been framed, the accused shall be discharged (b) if it is made after a charge has been framed, he shall be acquitted. Thus, according to learned counsel there is no such provision regarding the dropping of the criminal proceedings and the order dated 23.2.2000 amounts to acquittal as this order was passed after framing the charges. It was next submitted that the judgment of the Hon'ble Supreme Court delivered in State of T.N. v. M.M. Rajendran's case (supra) is not applicable as the facts of the present case are quite different from the facts of the case of State of T.N. v. M.M. Rajendran's case (supra) and rule of sub-silentio is attracted. A decision not expressed, not accompanied by reasons and not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 that which has escaped in the judgment is not ratio decidendi. This is the rule of sub-silentio, in the technical sense when a particular point of law was not consciously determined. This view was taken by the Hon'ble Apex Court in Arnit Das v. State of Bihar (10). In Delhi Administration (Now N.C.T. of Delhi) v. Manohar Lal (11), it was held by Hon'ble Supreme Court that merely because the Supreme Court has issued directions in some other cases to deal with the fact situation in those other cases in the purported exercise of its undoubted inherent and plenary powers to do complete justice, the High Court, could not afford to assume to itself the powers or jurisdiction to do the same or similar things. It was further held that the High Court and all other Courts in the country were no doubt ordained to follow and apply the law declared by this Court, but that does not absolve them of the obligation and responsibility to find out the ratio of the decision and ascertain the law, if any, so declared from a careful reading of the decision concerned and only thereafter proceed to apply it appropriately, to the cases before them. Learned counsel Sh. Bajwa on the basis of this judgment contended that the judgment in State of T.N. v. M.M. Rajendran's case (supra) was delivered in the facts of that case as law point as to whether the second cognizance is permissible in was not considered and further the provisions of Section 19 of the Act, 1988 were also not considered, hence the rule of sub-silentio would apply. In Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. (12), the Hon'ble Apex Court took the similar view and held that the Court should not place reliance on decisions without discussing as to how the fact situation of the decision on which reliance is placed. Per contra learned Public Prosecutor raised preliminary objection that the prayer of the Public Prosecutor before the learned Trial Court to drop the proceedings with a liberty to file fresh charge-sheet after obtaining valid prosecution sanction was not seriously opposed by learned counsel for the accused petitioner, hence the accused petitioner can not dispute the second charge-sheet. Judgment dated 23.2.2000 reveals that learned defence counsel did not seriously oppose the aforesaid prayer made by learned Public Prosecutor before the Trial Court. But only on this ground the contention of learned Public Prosecutor cannot be accepted that the accused petitioner is debarred from filing this petition as there can be no estoppel against the provisions of law. Learned Public Prosecutor placed reliance upon the judgments cited and discussed hereinabove dealing with the case of the petitioner Satish Chandra and contended that in absence of the valid prosecution sanction, the learned Trial Judge had no power even to take cognizance and the order of taking cognizance and the subsequent trial were null and void, hence the afresh prosecution after obtaining prosecution sanction is not barred.
5. I have given my thoughtful consideration to the rival submissions. Keeping in view the judgments delivered in Yusofalli Mulla's case (supra) Privy Council, Baij Nath Prasad Tripathi's case (supra) and Mohammed Safi's case (supra) earlier trial in absence of valid prosecution sanction was null and void, hence second charge-sheet having obtained fresh sanction cannot be termed as bad in law and this view finds support from the judgment delivered in State of T.N. v. M.M. Rajendran's case (supra). The contention of learned counsel Sh. Bajwa that rule of sub-silentio would apply, is not acceptable in this case. The brief facts of State of T.N. v. M.M. Rajendran's case (supra) are that the accused was a sub-inspector of police. He was prosecuted for the offence under Section 7, 13(2) read with Section 13(1)(d)(i)(ii) of the Prevention of Corruption Act. He was convicted and sentenced by learned Additional Sessions Judge, Madras. In appeal the Madras High Court came to the finding that all the relevant materials including the statements recorded by the Investigation Officer has not been placed for consideration by the sanctioning authority and only a report of the vigilance department was placed before him and thus the said criminal case was not maintainable in want of proper sanction. The Hon'ble Apex Court held that view taken by the High Court that there was no proper sanction cannot be held to be without any basis. Therefore, the Supreme Court held that it, however, appears to us that if the sanction had not been accorded for which the criminal case could have been initiated against the respondent, there was no occasion either for the trial Court or for the appeal court to consider the prosecution case on merits. Therefore, the High Court need not have made the finding on merits about the prosecution case. We make it clear that finding made by the courts on the merits of the case will stand expunged and will not be taken into consideration in future. In our view, the High Court should have passed the appropriate order by dropping and not entering into the question of merits after it had come to the finding that the proceeding was not maintainable for want of sanction. It is, however made clear that it will be open to the appellant-State of Tamil Nadu to proceed afresh against the respondent after obtaining necessary sanction if the State so desires. Keeping in view the clear verdict of Hon'ble Apex Court, the contentions of learned senior counsel Sh. Bajwa cannot be accepted. Rule of sub-silentio would not apply in the instant case. In this case, the Trial Court vide judgment dated 23.2.2000 dropped the proceedings only on the ground that P.W. 6 Sh. Vishwapati Trivedi accorded the prosecution sanction without gong through all the materials evidence collected during the investigation. Therefore, this contention that there is no such provision regarding dropping of the case in Cr.P.C. the judgment dated 23.2.2000 would amount to acquittal cannot be accepted as the Hon'ble Apex Court clearly held that the High Court should have passed the appropriate order by dropping the proceedings. In the instant case also the learned Trial Judge came to this finding that in absence of valid sanction, the criminal case against the accused petitioner was not maintainable. Thus, he rightly dropped the proceedings. Therefore, this petition has also got no force.
10. Consequently, both the petitions along with the stay applications are hereby dismissed.