Uttarakhand High Court
Ravindra Prasad vs State Of Uttarakhand & Anr on 30 May, 2019
Author: Lok Pal Singh
Bench: Lok Pal Singh
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. application (C482) No.1272 of 2012
Ravindra Prasad .....Applicant
Versus
State of Uttarakhand & Anr. ....Respondents
Mr. Arvind Vashishtha, Senior Advocate assisted by Ms. Monika Pant,
Advocate for the applicant.
Mr. P.S. Bohara, A.G.A. for the respondent State.
List of cases referred:
i) Mauvin Godinho v. State of Goa (2018) 3 SCC 358
ii) T.K. Ramesh Kumar v. State Through Police Inspector (2015) 15 SCC 629
iii) Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986
iv) Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330
v) State of T.N. vs. M.M. Rajendran (1998) 9 SCC 268
vi) Mansukhlal Vithaldas Chauhan vs. State of Gujarat (1997) 7 SCC 622
vii) Prafula Kumar Samal and another (1979) 3 SCC 4
JUDGMENT
Hon'ble Lok Pal Singh, J.
By means of present criminal misc.
application u/s 482 Cr.P.C., applicant seeks to quash the order dated 19.09.2012 passed by Special Judge, Anti-Corruption, Vigilance, Dehradun as well as the entire proceedings of Special Sessions Trial No.35 of 2009 State v. Ravindra Prasad, relating to offence punishable under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act, 1988.
2. Facts necessary for proper adjudication of the case are that the applicant joined the services on 09.11.1983 as Junior Engineer and hold different posts till 17.02.2009 and reached upto the post of Executive Engineer. On 22.05.2008 Director, Vigilance Establishment, Dehradun wrote a letter to the Principal Secretary, Vigilance, Government of Uttarakhand, submitting the report of the suo moto confidential preliminary inquiry, conducted by the 2 Vigilance Establishment against the applicant, mentioning therein that, four properties belonging to the applicant and his wife, has been acquired by the applicant by misuse of his official position in illegal manner, and accordingly proposed to the government to carry out an open investigation against the applicant for disproportionate asset. Pursuant to said letter, an F.I.R. was registered at P.S. Vigilance, Sector Dehradun on 25.08.2008. The gravamen of the allegations are that between the check period 1983 to 14-4-2008 the applicant has established a petrol pump in the name of his wife Tehsil Kicha District Udham Singh Nagar and has spent a sum of Rs.60,00,000/- approx; applicant has purchased a land measuring 0.2385 hectare in the name of his wife, amounting to Rs.3,00,000/-, applicant has constructed a residential house with the name of his wife in the year 2003-04 at Vijay Park, Dehradun, with the cost of Rs.30-40 lacs, applicant has further purchased a land at G.M.S. Road, Dehradun in the sum of Rs.25,00,000/- approx. Thereafter, matter was investigated. During the course of investigation, a raid was conducted in the house of the applicant and Rs.54,70,000/- in cash, gold and silver jewellery worth Rs.2,47,759/-, FDR in the shape of Rs.1,00,000/- and insurance policies of different amounts, NSC of Rs.7500/-, bank account in the sum of Rs.21,13,101/- along with valuable household items were recovered. On 17.4.2009, previous sanction to prosecute the applicant was granted by the Government. Thereafter, on 18.04.2009, charge-sheet was submitted against the applicant under Sections 13(1) (e) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short, the Act). On submission of charge- sheet, trial court took cognizance in the matter.
3Thereafter, the case was fixed for framing of charges. Meanwhile, the applicant submitted his written submissions, for discharge. State also filed its written submissions before the court. Special Judge, Anti- Corruption, Vigilance, Dehradun, vide order 19.09.2012, passed an order holding that prima facie is made out against the applicant for framing of charge under Section 13(1) (e) r/w 13(2) of the Act and ordered to frame charge accordingly.
3. Learned Senior Counsel appearing for the petitioner would contend that the check period to check the assets of the applicant was from 1983 to 14.4.2008 but this was later unilaterally extended from the year 1983 to 17.02.2009 in the charge-sheet wherefor no permission was sought from the government.
4. Learned Senior Counsel would further contend that amount of Rs.54,70,000/- recovered from the dwelling house of the applicant during a raid on 17.02.2009 was the legitimate advance money received by the applicant through sale of applicant's land to one Mr. Jai Chand. He would submit that an agreement to sale was entered into between the applicant and Mr. Jai Chand on 14.02.2009 at Dehradun whereby Mr. Jai Chand agreed to purchase the land of the applicant for a total sale consideration of Rs.1,15,17,500/-. He would further contend that this amount of Rs.54,70,000/- is out of the check period but respondent no.1 in its final inquiry report have included this amount also which is arbitrary and illegal.
45. Learned counsel would further contend that the order of sanction passed by the State Government is illegal, unreasonable and is total result of non- application of mind. He would contend that at the time of obtaining sanction, entire material was not placed before the Sanctioning Authority. He would contend that no case diary was ever made available to the sanctioning authority for consideration but the Sanctioning Authority in its order dated 17.04.2009 whereby sanction has been accorded to launch prosecution against the applicant, has mentioned that he has perused the entire documents, oral evidence and case diary. To buttress his submissions, learned counsel would place on following decisions of Hon'ble Apex Court:-
i) T.K. Ramesh Kumar v. State Through Police Inspector2.
"17. Further, it is noticed that PW-2, the employer of the appellant, who is a seniormost IAS Officer, while exercising his statutory power under Section 19 of the Act is required to apply his mind very carefully while granting sanction to prosecute the appellant herein under the Act. He has accorded sanction for the prosecution of the appellant on the charges of demand and acceptance of illegal gratification by the appellant from the complainant for issuance of a Katha Certificate of the property. In the evidence of PW2 before the Special Judge at para 5 of his examination-in-chief he has categorically stated that the sanction was accorded by him for the prosecution against the appellant under Sections 7, 13(1)(d) read with Section 13(2) of the Act. The demand made for payment of illegal gratification for change of Katha as well as issuance of Katha Extract, this would clearly go to show that there is non application of mind on the part of the sanctioning authority for according 5 sanction to prosecute the appellant on the above charges. On this count also the appellant must succeed.
18. In this regard it would be useful to refer to the decision of this Court in the case of Mansukhlal Vithaldas Chauhan v. State Of Gujarat, (1997) 7 SCC 622, which reads thus:
19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
ii) State of T.N. vs. M.M. Rajendran5 "1. ...Before the High Court, it was alleged by the appellant that the said criminal case was not maintainable for not obtaining proper sanction required to be given by the appropriate authority for proceeding under the Prevention of Corruption 6 Act. The trial court, however, proceeded on the footing that proper sanction was accorded by the City Commissioner of Police, Madras who was the proper authority to grant sanction against the accused. The High Court, has come to the finding that all the relevant materials including the statements recorded by the Investigating Officer had not been placed for consideration by the City Commissioner of Police, Madras because only a report of the Vigilance Department was placed before him. The High Court has also come to the finding that although the Personal Assistant to the City Commissioner of Police, Madras has deposed in the case to substantiate that proper sanction was accorded by the City Commissioner of Police, the witness has also stated that the report even though a detailed one was placed before the Commissioner by him and on consideration of which the Commissioner of Police had accorded the sanction, it appears to us that from such deposition, it cannot be held conclusively that all the relevant materials including the statements recorded by the Investigating Officer had been placed before the Commissioner of Police. It appears that the Commissioner of Police had occasion to consider a report of the Vigilance Department. Even if such report is a detailed one, such report cannot be held to be the complete records required to be considered for sanction on application of mind to the relevant materials on records. Therefore, it cannot be held that the view taken by the High Court that there was no proper sanction in the instant case is without any basis.
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 7 consideration in future. In our view, the High Court should have passed the appropriate order by dropping the proceeding 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. The appeal is accordingly disposed of."
iii) Mansukhlal Vithaldas Chauhan vs. State of Gujarat6 "17. Sanction lifts the bar for prosecution. 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. (See: Mohd Iqbal Ahmed v. State of Andhra Pradesh: (1979CriLJ633). Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for the innocent but not a shield for the guilty.
18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (See also: Jaswant Singh v. :
(1957)IILLJ696SC ; State of Bihar & Am. vs P.P. Sharma : 1991CriLJ1438 .
19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and 8 evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."
6. I have heard learned counsel for the parties and perused the entire material available on file as well as have gone through the case-laws cited by counsel for the applicant.
7. Before going any further, it would be apt to reproduce Section 227 of The Code of Criminal Procedure (for short, Cr.P.C.), which is as under:-
"227. Discharge.- If, upon consideration of the record of the case and documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceedings against the accused, he shall discharge the accused and record his reasons for so doing."9
8. The law with regard to framing of charge is no more res integra having been settled in catena of decisions. Under Section 227 of Cr.P.C., the trial court has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. In the case at hand, the trial court, after hearing the parties and on perusal of material available as well as after considering the written submissions filed by the respective parties, has recorded its prima facie satisfaction before passing the order impugned. In the order impugned, learned Judge has observed that the applicant in his written arguments himself admits that investigation was initiated against him for amessing disproportionate assets for the check period 1983 to 14.04.2008; applicant also admits that in this period movable and immovable assets purchased by him starting from petrol pump to number or residential accommodations as well as movable assets. The contents of written arguments filed him are self explanatory to draw prima facie inference to frame charge against him.
9. Hon'ble Apex Court in Mauvin Godinho v. State of Goa1, has observed as under:-
"12. At the outset it would be pertinent to note the law concerning the framing of charges and the standard which courts must apply while framing charges. It is well settled that a court while framing charges under Section 227 of the Code of Criminal Procedure should apply the prima facie standard. Although the 10 application of this standard depends on facts and circumstance in each case, a prima facie case against the accused is said to be made out when the probative value of the evidence on all the essential elements in the charge taken as a whole is such that it is sufficient to induce the court to believe in the existence of the facts pertaining to such essential elements or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. [Refer Sajjan Kumar v. CBI5; State v. A. Arun Kumar6; State v. S. Selvi7.]
13. Having thoughtfully considered the arguments advanced by respective learned counsel and upon going through the record, particularly the impugned judgment, in the light of sequence of events, prima facie, it cannot be said that no case can be made out against the accused--appellants. Allegedly, the Notifications dated 15-5-1996 and 1-8-1996 were issued without the approval of Cabinet and by violation of rules. Looking at the facts of the case in a holistic manner, we do not think it necessary to go into the aspect of thorough examination of merits of the case, particularly when the issue is still at the stage of framing of charges only. There is no error in framing charges, as suggested by the High Court, when presumably the material on record obligated the Court to do so."
10. Hon'ble Apex Court in Union of India v. Prafula Kumar Samal and another7 has held as under:-
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under section 227of the Code has the undoubted power to sift and weigh the evidence for the limited 11 purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
11. In so far as the judgments relied upon by learned Senior Counsel is concerned, in the case of T.K. Ramesh Kumar2, at the time of obtaining sanction, entire evidence was not placed before the sanctioning authority for its consideration and the sanctioning authority accorded the sanction without perusal of evidence. However, in the present case, entire material was placed before the sanctioning authority at the time of obtaining sanction. Thus, the ratio of the said judgment is not applicable to the facts and 12 circumstances of the present case. In the case of M.M. Rajendran3, only a report, though detailed one, was placed before the Commissioner and no other relevant material was produced before the sanctioning authority, whereas in the case at hand, the order of sanction would itself goes to show that before granting sanction, the sanctioning authority perused the entire documents relating to prosecution, oral evidence and the case diary. Thus, this judgment is again of no help to the petitioner. Next, in Mansukhlal Vithaldas Chauhan4 the High Court had issued a direction to the Secretary to grant sanction and compelled him to proceed only in one direction and to act only in one way, namely, to sanction the appellant's prosecution. The High Court put the Secretary in a piquant situation. While the Act gave him the discretion to sanction or not to sanction the appellant's prosecution, the judgment gave him no choice except to sanction the prosecution as any other decision would have exposed him to an action in contempt for not obeying the mandamus issued by the High Court. Again, this judgment is not applicable to the facts and circumstances of the present case. While granting sanction, the sanctioning authority has to apply its independent mind. There is no need to scrutinize the entire evidence. Prima facie satisfaction of the sanctioning authority is sufficient.
12. Lastly, as regards the argument advanced by learned Senior Counsel for the petitioner that the amount of Rs.54,70,000/- recovered during raid, is out of the check period, this Court finds that when the raid was conducted in regard to disproportionate asset the cash amount of Rs.54,70,000/- was found in the 13 applicant's house. At this stage, it cannot be said that the amount so recovered does not pertain to the check period. In this regard, an unregistered agreement to sale has been procured by the applicant to justify the said amount whereas Section 17 of the Registration Act prescribes compulsory registration of agreement to sale having sale consideration of more than Rs.100/-. Furthermore, it is well settled in law that at the stage of framing charge, roving and fishing enquiry is impermissible and a mini trial cannot be conducted. At the stage of framing of charge, the defence of the accused cannot be put forth.
13. It is also the settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction. Inherent jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. The applicant, in the instant case, is unable to pass those tests.
14. Hon'ble Apex Court in Amit Kapoor vs. Ramesh Chander and another3 has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations, as made from the record of the case and the documents submitted therewith, prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may 14 interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists.
15. The Hon'ble Apex Court in the case of Rajiv Thapar and others vs. Madan Lal Kapoor4 has held as under:-
"28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/ complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/ complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held."15
16. In view of foregoing discussion, there is no merit in the present criminal misc. application u/s 482 Cr.P.C. Same is dismissed accordingly.
(Lok Pal Singh, J.) 30.05.2019 Rajni