Kushal Kumar vs Cbi & Anr. on 7 November, 2008

[Cites 31, Cited by 2]

Delhi High Court

Kushal Kumar vs Cbi & Anr. on 7 November, 2008

1. Present writ petition has been filed by the Petitioner challenging sanction granted by the Director (Services), Department of Personnel and W.P.(Crl.) No771/2006 Page 1 of 26 Training, Ministry of Personnel, Public Grievance and Pension, Government of India, New Delhi under Section 19 (1) (a) of Prevention of Corruption Act, 1988 (hereinafter referred to as „PC Act‟) for prosecution of the Petitioner for offences under Sections 7/13(2)/13 (1) (d) PC Act read with Section 120 B of Indian Penal Code (IPC) in case FIR No.RCAC12004A0003 dated 17th March, 2004 registered by CBI, ACUI, New Delhi under Section 7 of the P.C. Act on the complaint of Dr. I.S. Yadav, Medical Practioner, Yadav Hospital, Rewari (Haryana).

2. In brief, the prosecution case is that Petitioner Kushal Kumar was working as Recovery Officer in the office of DRT Chandigarh and was accused of demanding bribe of Rs.30,000/- from complainant Dr. I.S. Yadav through Recovery Inspector A.K. Shukla for confirmation of auction of property belonging to M/s. Ajay Metals and Others in favour of the complainant. M/s. Ajay Metals and Ors. had raised some loan from State Bank of India, Rewari and since it failed to pay the loan, the State Bank of W.P.(Crl.) No771/2006 Page 2 of 26 India initiated proceedings in Debt Recovery Tribunal-II, Chandigarh wherein a decree in favour of the Bank was passed and as per the recovery certificate, the State Bank of India was entitled to recover a sum of Rs.72,89,296.76 with cost of the suit and interest @ 16.05 per annum. After completion of the procedural requirements, the property mortgaged with the Bank was auctioned in a public auction. Dr. I.S. Yadav being the highest bidder out of nine bidders who had participated in the auction was declared the successful bidder with his bid of Rs.36 lakhs. Dr. I.S. Yadav deposited a demand draft for Rs.10.65 lakhs on the spot. One of the guarantors/judgment debtors Subhash Chander Sharma filed objection application against the auction sale of the property. Petitioner being the Recovery Officer, DRT-II, issued notice to the auction purchaser for 5.3.2004. The State Bank of India filed a reply to the said notice on 5.3.2004 seeking rejection of the objection and confirmation of the sale in favour of Dr. I.S. Yadav. The matter was adjourned to 16.3.2004. In between, a notice W.P.(Crl.) No771/2006 Page 3 of 26 was allegedly issued to Dr. I.S. Yadav for appearance on 10.3.2004 and when he appeared on the said date and sought time to file reply, he was directed to appear on the date which was already fixed. A complaint was lodged on 17.03.2004 with the allegations that A.K.Shukla demanded bribe of Rs.30,000/- from Dr. I.S. Yadav for himself and on behalf of the Petitioner for confirmation of sale of the auctioned property and for handing over the possession of the same to Dr. I.S. Yadav to which, Dr. I.S. Yadav declined.

3. CBI conducted trap proceedings in the presence of independent witnesses and A.K. Shukla was caught red handed demanding and accepting bribe from Dr. I.S. Yadav on 17.3.2004 at New Delhi Railway Station. It was during the investigation of the case that CBI came to know that the Petitioner had entered into criminal conspiracy with A.K.Shukla and it was in pursuance of the said conspiracy, A.K.Shukla demanded and accepted bribe from Dr. I.S. Yadav for himself and for the Petitioner and also that Petitioner was conducting the matter in W.P.(Crl.) No771/2006 Page 4 of 26 such a way so as to coerce the complainant by unauthorizingly summoning and harassing him to succumb to the demand of bribe made by A.K. Shukla. After completion of the investigation, CBI sought necessary sanction from the concerned authorities under Section 19 of the PC Act which was accorded as prayed on 24.6.2005.

4. Mr. R.K. Kapoor, learned counsel for the Petitioner has submitted that the sanction order dated 24.6.2005 was bad and illegal on the following grounds:-

(1) That the grant of sanction was unwarranted and was without application of mind and lack of judicious approach and the sanction was granted in a mechanical manner;

(2) The sanction order was in violation of the principles of natural justice being violative of provision of Article 14 read with Article 21 of the Constitution of India;

(3) The Petitioner had performed the judicial act W.P.(Crl.) No771/2006 Page 5 of 26 within the parameters provided under the recovery proceedings to be followed in accordance with the provisions of 2nd Schedule appended to the Income Tax Act, 1961 and the Income Tax (Certificate Proceedings) Rules, 1962 as the mandatory requirement of issuance of a notice under the provisions of proviso to Rule 63 (2) of the said provision was followed by the Petitioner in discharge of his official duties;

(4) The petitioner was within his right to permit the person affected by the objections to be heard before passing an order on the objections and therefore the notice was accordingly issued by the Petitioner to the auction purchaser and since the Petitioner conducted the proceedings in accordance with the DRT Act, no irregularity in the official act is involved and the sanction order is bad in law;

(5) No sanction has been obtained under Section W.P.(Crl.) No771/2006 Page 6 of 26 197 Cr.P.C. as the Petitioner had acted in discharge of his official duties and in the absence of the sanction under Section 197 Cr.P.C., no prosecution could be filed against the Petitioner in the absence of legal and valid sanction order;

(6) From the analysis of the evidence collected by the Investigating Officer it is obvious that the sanction was unmindful and was made without assessing and analyzing the evidence collected against the petitioner during the investigation.

5. All these objections have been refuted by the respondents and it is impressed upon by the learned counsel for the respondents that sanction for prosecution against a public servant on the charges of corruption was considered by the Central Government in accordance with the provisions of law laid down in Section 19 of the P.C. Act and not under Section 197 Cr.P.C. and no sanction under Section 197 Cr.P.C. was required. W.P.(Crl.) No771/2006 Page 7 of 26 The sanction was properly accorded by the concerned authorities after applying its mind and is therefore legal and valid. It is further submitted that objections filed by Mr. Subhash Chander Sharma did not fill the requisite condition and were liable to be dismissed but were entertained by the Petitioner despite the fact that Dr. I.S. Yadav had deposited the remaining amount of the bid on 4.3.2006 i.e. within the stipulated period and the proceedings adopted by the Petitioner were unwarranted and against the procedure and law and therefore the sanction accorded by the Department is legal and valid and the charge sheet has been rightly filed against the Petitioner and the petition, therefore, is liable to be dismissed.

6. Section 19 of The Prevention of Corruption Act, 1988 reads as follows:-

"19. Previous sanction necessary for prosecution.

(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public W.P.(Crl.) No771/2006 Page 8 of 26 servant, except with the previous sanction, -

(a) In the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) In the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(c) In the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973-

(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, irregularity in, the W.P.(Crl.) No771/2006 Page 9 of 26 sanction required under sub-section (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 justice;

(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 inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation. -For the purposes of this section, -

(a) Error includes competency of the authority to grant sanction;

(b) A sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the W.P.(Crl.) No771/2006 Page 10 of 26 sanction of a specified person or any requirement of a similar nature."

7. Thus, Section 19 (1) of the PC Act makes it clear that for prosecution of offences under Sections 7, 10, 11, 13 and 15 of the PC Act, sanction is required from the Central Government or the State Government as the case may be. No finding or order passed by Special Judge can 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 and so accorded under sub Section (1) of Section 19 of PC Act, unless court is of the opinion that the sanction order has caused failure of justice. Court has to satisfy itself that an error, omission or irregularity found in the sanction order has resulted into failure of justice before, such sanction order is declared as illegal or invalid.

8. The impugned sanction order is dated 24th June, 2005. Perusal of the sanction order makes it clear that the Sanctioning Authority had considered the W.P.(Crl.) No771/2006 Page 11 of 26 evidence collected by the Investigating Agency during the investigation of the case and it was after assessment of the evidence, that the authority was pleased to accord sanction under Section 19(1)(a) of PC Act for the prosecution of Petitioner for offences under Section 120-B IPC read with Section 7 & 13(2) read with Section 13(1)(d) of PC Act and Section 7 & 13 (2) read with Section 13(1)(d) of PC Act or any other offence punishable under other provisions of law in respect of the aforesaid acts and for taking cognizance of the said offences by the court of competent jurisdiction.

9. Learned counsel for the Petitioner has submitted that sanction order is nothing but verbatim reproduction of the charge sheet. For that purpose, he has referred to few lines appearing at different places in the sanction order. The fact remains, from the entire reading of the sanction order, it cannot be said that it is mechanical and charge sheet has been reproduced in the sanction order. Charge sheet was filed in the court only after the sanction was accorded to the CBI to W.P.(Crl.) No771/2006 Page 12 of 26 prosecute the Petitioner. Therefore, the charge sheet could not have been reproduced by the sanctioning authority in the order according sanction to the prosecution to file charge sheet against the Petitioner in the Special Court of CBI, nor, it was so done. To say whether sanction has been properly accorded by the Sanctioning Authority, the court has only to see if the sanction is not unmindful and has not been accorded in a mechanical manner. Validity of sanction depends on the applicability of mind by the Sanctioning Authority to the facts of the case as well as the evidence collected by the Investigating Agency during the investigation and therefore, the Sanctioning Authority has to apply its own independent mind for granting genuine sanction whether prosecution has to be sanctioned or not.

10. The order of sanction in a given case must ex facie disclosed that the sanctioning authority had considered the evidence and other material placed before it. The court is not required to sift and weigh evidence collected by the Investigating W.P.(Crl.) No771/2006 Page 13 of 26 Officer during the investigation of the case to know if the sanction order was valid and was neither unmindful nor was passed in a mechanical manner. Relevancy of evidence collected is an aspect which has to be examined by the court at the stage of trial and not by this Court for invalidating the sanction. Therefore, it cannot be said that the impugned sanction was granted in a mechanical manner. The sanction was granted vide a detailed order wherein all the facts and evidence collected by the Investigating Agency during the investigation against the Petitioner has been discussed.

11. In 'C.S. Krisnamurthy v. State of Karnataka, 2005 SCC (Cri) 923', the principles to be kept in mind by the court as regards validity of sanction order have been discussed as follows:-

Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the W.P.(Crl.) No771/2006 Page 14 of 26 satisfaction of the sanctioning authority is apparent by reading the order......"

12. Officer signing the sanction order is not required to state that he had personally scrutinized the file and had arrived at the required satisfaction. The allegations made in the First Information Report (FIR) and the order granting sanction if true, would clearly establish that the accused was rightly prosecuted and was guilty of a criminal misconduct. The truthfulness of the allegations and the establishment of the guilt can only take place when the trial proceeds without any interruption. Therefore, it cannot be presumed that there was no application of mind when the sanction of the Government was obtained.

13. In 'State of Bihar v. P.P. Sharma, IAS, 1992 Supp. (1) SCC 222,' it was observed:-

"It is equally well settled that before granting sanction the authority or the appropriate Government must have before it the necessary report and the material facts which prima facie establish the commission of offence charged for and the appropriate Government would apply W.P.(Crl.) No771/2006 Page 15 of 26 their mind to those facts. The order of sanction is only an administrative act and not a quasi-judicial one nor is a lis involved. Therefore, the order of sanction need not contain detailed reasons in support thereof as was contended by Shri Jain. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard.

The question of giving an opportunity to the public servant at that stage as was contended for the respondents does not arise. Proper application of mind to the existence of prima facie evidence of the commission of the offence is only a precondition to grant or refuse to grant sanction. When the Government accorded sanction, Section 114 (e) of the Evidence Act raises presumption that the official acts have been regularly performed............."

14. In the present case, the sanctioning authority considered the material placed before it, relevant facts and evidence collected including the transcript of the tape recorded. The consideration of evidence implies application of mind. The order of sanction ex facie discloses that the sanctioning authority had considered the evidence and other material placed before it. This court in exercise of W.P.(Crl.) No771/2006 Page 16 of 26 its power under Section 482 of the Criminal Procedure Code (Cr.P.C.) is not to assess the sanction order as if it were sitting in appeal or revision for a sanction to be valid. What is required to be established is that the sanction was given in respect of facts constituting the offence with which the accused is proposed to be charged. It might be desirable that the facts should be referred to in the sanction order itself, nonetheless if they do not appear on the face of it, the prosecution must establish by adducing evidence that those facts propounding the offence against the accused were placed before the sanctioning authority. It is, therefore, necessary to first examine the order of sanction to ascertain on what facts it has been accorded. Examination of the sanction order makes it clear that not only evidence has been discussed and taken care of by the sanctioning authority, it has also referred to the facts leading to prosecution of the Petitioner.

15. In 'State of Karnataka v. Ameerjan, (2007) 11 SCC 273', it was observed:-

W.P.(Crl.) No771/2006 Page 17 of 26

9. We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.

10. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayukta. Even the said report has not been brought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police, Karnataka Lokayukta had placed on record the materials collected on investigation of the matter which would prima facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the W.P.(Crl.) No771/2006 Page 18 of 26 accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as (sic to) the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced."

16. Perusal of the sanction order dated 24.6.2005 amply shows that the evidence placed before the sanctioning authority was relied on and has been looked into before according the same. Facts pertaining to the case as well as evidence placed after due investigation has been put forth in the order. Audio cassette wherein the complainant recorded conversation between himself and A.K.Shukla was also placed before the sanctioning authority and as per the recorded talks it was mentioned in the order that talks of bribe took place between A.K.Shukla and complainant. Accordingly, a trap was laid by team of CBI officers and Inspector V.M. Mittal and two independent witnesses and A.K.Shukla accused was caught red- handed while demanding and accepting bribe of W.P.(Crl.) No771/2006 Page 19 of 26 Rs.30,000/- from complainant I.S. Yadav. This is a trap case and the investigating agency had already recorded statement of the complainant and the sanctioning authority amongst other evidence also considered the statement of the complainant.

17. Therefore, in my view, the sanctioning authority had reached the satisfaction that the relevant facts constituting the offence under Sections 7/13(2) / 13 (1) (d) of PC Act read with Section 120 B IPC for which prosecution was required to be initiated against the Petitioner were made out from the evidence collected during investigation while according the requisite sanction under Section 19 of P.C. Act. This sanction order was accorded with application of mind and after perusal of the material placed before the sanctioning authority.

18. Learned counsel for the petitioner has emphasized that the impugned sanction is invalid as no sanction under Section 197 Cr.P.C. has been accorded though offence under Section 120-B IPC is also allegedly made out against the Petitioner. W.P.(Crl.) No771/2006 Page 20 of 26 The operative part of the sanction order reads as follows:-

"NOW, THEREFORE, Central Government doth hereby accord sanction Under Section 19(1)(a) of Prevention of Corruption Act, 1988 for the prosecution of said Shri Kushal Kumar U/s. 120-B Indian Penal Code r/w U/s.7 & 13(2) r/w 13(1) (d) of Prevention of Corruption Act 1988 and Section 7 & 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 or any other offence punishable under other provisions of law in respect of the aforesaid acts and for taking of cognizance of the said offences by the Court of Competent Jurisdiction."

19. I do not find any infirmity or illegality in this order.

For the offence of criminal conspiracy punishable under Section 120-B IPC and also under Sections 7/13(2) / 13 (1) (d) of P.C. Act are concerned , they cannot be said to be of the nature mentioned in Section 197 Cr.P.C. It is not the part of the duty of a public servant while discharging his official duty to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 Cr.P.C. is therefore no bar under the W.P.(Crl.) No771/2006 Page 21 of 26 facts and circumstances of the case. The real question is whether acts complained of in the given case were directly concerned with the official duty of the public servant. Offence under Section 120-B IPC and also under various provisions of the PC Act cannot be said to be of the nature falling in the meaning of Section 197 Cr.P.C. Reference is made to 'Harihar Prasad v. State of Bihar, (1972) 3 SCC 89'.

20. In 'Sate of Kerala v. V. Padmanabhan Nair, (1999) 5 SCC 690', while relying upon Harihar Prasad v. State of Bihar's case, it was observed:-

"6. The correct legal position, therefore, is that an accused facing prosecution for offences under the PC Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. So the High Court was at any rate wrong in quashing the prosecution proceedings insofar as they related to offences under the PC Act.

7. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B of IPC sanction under Section 197 of the Code is a W.P.(Crl.) No771/2006 Page 22 of 26 condition precedent for launching the prosecution is equally fallacious. This Court has stated the correct legal position in „Shreekantiah Ramayya Munnipalli v. State of Bombay, AIR 1955 SC 287‟ and also „Amrik Singh v. State of Pepsu, AIR 1955 SC 309‟ that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad‟s (supra) as follows: (SCC p.155, para 66) "As far as the offence of criminal conspiracy punishable under Section 120-B read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."

W.P.(Crl.) No771/2006 Page 23 of 26

21. Hence, a public servant who committed offence within the meaning of PC Act while he was a public servant can be prosecuted with the sanction contemplated under Section 19 of the Act if he continues to be a public servant when the court took cognizance of the offence and he cannot seek protection under Section 197 Cr.P.C.

22. The plea that he was discharging his official duties as a public servant and therefore no prosecution under Section 120-B IPC could have been lodged against him without obtaining sanction of the appropriate authorities under Section 197 Cr.P.C. does not hold water since a person who is involved in offence under Section 19 of the Act cannot be said to be discharging his official duties at the time when the alleged offence was committed to seek protection under Section 197 Cr.P.C., as it is not part of the duty of the public servant to enter into a criminal conspiracy to commit an offence of bribery.

W.P.(Crl.) No771/2006 Page 24 of 26

23. Learned counsel for the Petitioner has referred to Section 33 of the DRT (The Recovery of Debts Due to Banks and Financial Institutions) Act, 1993 and Rule 82 of IInd Schedule appended to the Income Tax Act, 1961 to say that the acts allegedly committed by the Petitioner indicating his involvement for offences under the PC Act were in the discharge of his official duties.

24. As pointed out above, Petitioner under the circumstances cannot seek protection under Section 197 Cr.P.C. He entered into a criminal conspiracy with Mr. A.K.Shukla, Recovery Inspector for taking bribe for Rs.30,000/- from the complainant; Dr. I.S. Yadav for confirmation of sale of the auctioned property and handing over possession of the said auctioned property to the complainant. Petitioner, therefore, cannot be entitled even to seek protection under the Judicial Officers (Protection) Act as claimed and for that matter The Judges (Protection) Act, 1985 as claimed because corruption in no manner can be considered the act done during the discharge of W.P.(Crl.) No771/2006 Page 25 of 26 official duties by the Petitioner while in service.

25. I need not assess evidence collected by the prosecution respondent during the investigation of the case at this stage as it is likely to prejudice the interest of the parties and it is not so required. It is for the trial court to consider the submissions which might be raised by the Petitioner at the stage of argument on charge to come to a conclusion if prima facie there is sufficient evidence to proceed against the Petitioner under Sections 7/13(2) / 13(1) (d) PC Act read with Section 120-B IPC.

26. Hence, I find no merit in this petition and the same is accordingly dismissed.

ARUNA SURESH (JUDGE) November 07, 2008 vk W.P.(Crl.) No771/2006 Page 26 of 26

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