Bombay High Court
Central Bureau Of Investigation vs Manohar Baburao Nandanwar on 30 September, 2009
Author: R. Y. Ganoo
Bench: R. Y. Ganoo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH NAGPUR
Criminal Revision Application No. 62/2007
Central Bureau of Investigation,
Anti Corruption Branch, CGO Complex,
C-Wing, Seminary Hills, Nagpur.
.. APPLICANT
.. Versus ..
Manohar Baburao Nandanwar,
Chief Permanent Way Inspector,
Central Railway Depot (Stores),
Ajni, Nagpur. .. NON APPLICANT
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Mr. S. B. Ahirkar, Special Counsel for applicant.
Mr. T. S. Pathak, Advocate for non applicant.
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CORAM:- R. Y. GANOO, J.
DATED :- 30th September, 2009
JUDGMENT
1. Non applicant was prosecuted under Section 120-B, 409, 471, 477-A of the Indian Penal Code and under Section 13 (1) (c) and (d) read with Section 13(2) of the Prevention of Corruption Act 1988 in Special Case Nos. 37/2003 and 38/2003. The said Special Cases were lodged with Special Court under the Prevention of Corruption Act by Central Bureau of Investigation, Nagpur.
In the said special cases, the non applicant filed applications below Exh.-41 and Exh.-48 respectively for ::: Downloaded on - 09/06/2013 15:08:25 ::: 2 discharge on the ground that the sanction granted to prosecute the non applicant was illegal. It is noticed that the applications at Exh.42 and 49 were filed by the present non applicant for examination of the sanctioning authority before the charge is framed. Those applications were granted by order dated 21.01.2003 by learned 4th Additional Sessions Judge and Judge, Special Court under Prevention of Corruption Act for C.B.I. Nagpur.
Accordingly, the person, who had granted sanction, came to be examined and after his evidence was over, the learned Judge heard the learned Advocates for both the sides and discharged the non applicant by judgment and order dated 04.08.2005 by observing that the sanction granted was illegal.
2. Before this Court, the learned Special Counsel Mr. Ahirkar appearing on behalf of the applicant submitted that the procedure adopted by learned Judge, Special Court is patently incorrect and it was not open for the learned Judge to examine any witness before framing of charge. According to Mr. Ahirkar, since the procedure ::: Downloaded on - 09/06/2013 15:08:25 ::: 3 followed by learned Judge, Special Court was wrong, the finding recorded by the learned Judge deserves to be set aside. He further submitted that the learned Judge erred in discharging the present non applicant of various other offences, viz. offence punishable under Sections 120-B, 409, 471, 477-A of the Indian Penal Code, though for the purposes of those offences, question of sanction was not required to be gone into.
3. Learned Advocate Mr. Pathak, appearing on behalf of non applicant, contended that the learned Judge by passing order dated 21.01.2003 directed the sanctioning authority to lead evidence. He drew my attention to judgment of Rajsthan High Court in Ganesh & Others..vs..The State; 1963 (2) Cr. L. J. 109.
According to him, in the absence of express provisions in Section 240 of the Code of Criminal Procedure for taking evidence before charge, the Magistrate is not prevented from examining the witness under Section 311 at the time of considering framing of charge. The learned Advocate for the non applicant also contended that the application ::: Downloaded on - 09/06/2013 15:08:25 ::: 4 to examine sanctioning authority was filed by making use of provisions of Section 311 of the Code of Criminal Procedure. The learned Advocate for the non applicant tried to submit that if the learned Judge, Special Court has recorded a finding that the sanction granted was illegal, now it would not be proper to set aside the said order and call upon the prosecution to conduct trial against present non applicant. Learned Advocate for the non applicant supported impugned order dated 04.08.2005.
4. I have considered the rival submissions.
Considering the fact that the non applicant was prosecuted under the provisions of the Prevention of Corruption Act, it was absolutely necessary for the learned Judge, Special Court to adopt the procedure, which is required to be adopted for conducting the Sessions Trial. In such case, there is no question of Section 240 of the Code of Criminal Procedure getting attracted to the present case from any angle. It is also required to be mentioned that the provisions of Section 311 of the Code of Criminal Procedure regarding ::: Downloaded on - 09/06/2013 15:08:25 ::: 5 examining a particular witness are to be used by using judicial discretion and in a proper case. The view taken by learned Judge that it would be appropriate to examine the sanctioning authority first before framing of charge then question can be decided whether the charge should be framed or not, is found not in consonance with the well settled provisions of law as well as procedure to be followed.
5. The learned Judge, Special Court, by passing order dated 04.08.2005 came to the conclusion that the non applicant deserves to be discharged of all the charges for which he was facing the charge. In my view, even if the learned Judge came to the conclusion that the non applicant is required to be discharged of the offences under the Prevention of Corruption Act for want of proper sanction, still it was not open for the learned Judge to discharge the non applicant of the offences under the Indian Penal Code. For that, the learned Judge ought to have followed the procedure commencing from Section 226 of the Code of Criminal Procedure.
::: Downloaded on - 09/06/2013 15:08:25 ::: 66. It is noted that the learned Judge, Special Court proceeded to record a finding that the sanction was bad before framing of charge. This procedure adopted by learned Judge is contrary to the well established principle as regards conducting the trial. On account of this, I am inclined to observe that order dated 04.08.2005 is illegal and is required to be set aside. Needless to mention that the evidence given by the sanctioning authority on the basis of which order dated 04.08.2005 came to be passed is required to be quashed and set aside.
7. In the circumstances, now the learned Judge, Special Court will conduct the matter and dispose of the same in accordance with the provisions of law. At one stage, the learned Advocate for the non applicant contended that the sanction granted to prosecute the non applicant is patently illegal and if the said stand is being taken by the non applicant, he may adhere to that stand and attend to the matter in accordance with the provisions of law. At what stage the said stand can be taken by the non applicant need not be mentioned by this ::: Downloaded on - 09/06/2013 15:08:25 ::: 7 Court.
8. For the reasons mentioned aforesaid, following order is passed to dispose of the application.
(a) Judgment and order dated 04.08.2005 passed below Exh.-41 in Special Case No. 37/2003 (old Special Case No. 11/1997) and below Exh.-48 in Special Case No. 38/2003 (old Special Case No. 13/1997) is set aside.
(b) Special Case Nos. 37/2003 and 38/2003 are restored to the file of learned Judge, Special Court under Prevention of Corruption Act for C.B.I., Nagpur, who shall now attend to the said special cases in accordance with the provisions of law.
(c) The evidence recorded that of the sanctioning authority pursuant to order dated 21.01.2003 is quashed and set aside.
(d) No views are expressed on merits of the matter as also question of correctness of sanction.
JUDGE kahale ::: Downloaded on - 09/06/2013 15:08:25 :::