Allahabad High Court
Mahant Prasad Ram Tripathi @ M.P.R. ... vs State Through C.B.I./Acb Lucknow on 10 November, 2022
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 10 Case :- APPLICATION U/S 482 No. - 633 of 2018 Applicant :- Mahant Prasad Ram Tripathi @ M.P.R. Tripathi Opposite Party :- State Through C.B.I./Acb Lucknow Counsel for Applicant :- Nandit Kumar Srivastava,Aishwarya Mishra Counsel for Opposite Party :- Bireshwar Nath Hon'ble Dinesh Kumar Singh,J.
1. Present petition under Section 482 Cr.P.C. has been filed for quashing of the prosecution of the petitioner in Criminal Case No.117 of 2015, State through C.B.I. versus Shashi Mohan and Anr under Section 120-B IPC, and Sections 7, 13(2) read with 13 (1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "PC Act") pending before Special Judge, C.B.I., Court No.4, Lucknow.
Further prayer has been made for keeping the execution of the non-bailable warrant in abeyance till disposal of the present petition.
2. The petitioner had approached this Court earlier in a petition filed under Section 482 Cr.P.C. being petition No.116 of 2018 with the following prayers:-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to pass an appropriate order for keeping the execution of non bailable warrant in abeyance till the disposal of the pending Application for dropping of petitioner's prosecution/discharge on the ground of invalid and illegal Sanction for Prosecution, so as to meet the ends of justice.
and/or this Hon'ble Court may further be pleased to pass any other order or orders which this Hon'ble Court may deem fit & proper in the interest of justice."
3. The said petition was disposed of by this Court vide order dated 12.01.2018 which reads as under:-
"Heard learned counsel for the applicants and learned A.G.A. for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed to keep the execution and operation of the Non Bailable Warrants issued on 03.01.2018 against the applicant in Criminal Case No.117/2015 (State through C.B.I V.s Shashi Mohan and another) under Section 120-B I.P.C and Section 7 & 13 (2) read with 13(1)(d) Prevention of Corruption Act, 1988 Learned counsel for the applicant informed to this Court that said matter is listed on 24.01.2018 at learned Special Judge, C.B.I, Court No.4. Applicant is directed to appear before learned Special Judge, C.B.I, Court No. 4, Lucknow on the date fixed and till then Non Bailable Warrant dated 03.01.2018 is kept in abeyance.
With the aforesaid directions, this application is finally disposed of."
4. The petitioner was posted as Chief Executive Officer at Cantonment Board, Fatehgarh on 4th August, 2014. The instant case, RC0062015A0009 was registered by C.B.I./A.C.B., Lucknow on 9th May, 2015 against Shashi Mohan, Ward Member, Fatehgarh Cantonment Board, District Farrukhabad under Section 7 of the PC Act on the basis of complaint received from one Haider Ali working as Contractor with M/S Dilip Kumar. In the complaint, it was alleged that accused, Shashi Mohan had demanded an illegal gratification/commission/bribe of Rs.1,56,000/- from the complainant on behalf of the petitioner to process the payment for the work done by the contractor which was allotted to the contractor on 28.08.2014 in pursuance to the tendering process.
5. The complaint was marked to Mr. S.N. Srivastava. Inspector, C.B.I./A.C.B., Lucknow for verification which was discreetly verified on 9th May, 2015 in presence of independent witness, Ajit Kumar working as Office Superintendent, Office of ADEN, North Eastern Railway, Fatehgarh. During verification, the conversion held between the complainant and suspected person, Shashi Mohan was recorded in Digital Voice Recorder, transferred in CDs and marked as Q-1, which would disclose the demand of bribe by the accused, Shashi Mohan.
6. During verification of the complaint, verification memo of the verification proceedings and transcript of incriminating portion of the accused recorded was prepared mentioning that the accused, Shashi Mohan demanded bribe from the complainant of Rs.1,56,000/- on behalf of the petitioner. An additional demand of Rs.60,000/- was also made at the rate of Rs.20,000/- each on behalf of the three i.e. Shashi Mohan, Anwar Jamal whose wife Ms. Shama was a Ward Member and Shiv Kumar, whose daughter Ms Avanthi was also Ward Member.
7. On 10th May, 2015 a team comprising nine C.B.I. Officials and two independent witnesses namely, Ajit Kumar and Dharampal both from Indian Railways, the complainant and Mohd. Shakeel Qureshi, employee of the complainant assembled in Suit No.1, Officers Rest House, North Eastern Railway, Fatehgarh District Farrukhabad on 10th May, 2015 at 8:30 AM. Purpose of assembly was explained to all present and written complaint dated 7th May, 2015 of Haider Ali in Hindi version was shown and read over to all. The complainant, Haider Ali acknowledged that the said complaint was in his handwriting and bore his signatures. Verification memo disclosing the demand of bribe by the accused, Shashi Mohan was also shown to all and every members of the team confirmed that there was demand of bribe by accused, Shashi Mohan.
8. A practical demonstration regarding use of Phenolphthalein powder and its reaction with the solution of Sodium Carbonate and water was shown before all present including the witnesses and they were explained the chemical reaction of Phenolphthalein powder with the solution to Sodium Carbonate.
9. The complainant could arrange Rs.2,00,000/- against demanded bribe amount of Rs.2,16,000/- by the accused, Shashi Mohan. Details like denomination, G.C. notes, number etc., of the aforesaid bribe amount of Rs.2,00,000/- produced by the complainant was mentioned in pre-trap memorandum dated 10th May, 2015. Phenolphthalein powder on the G.C. notes amounting to Rs.2,00,000/- was applied. Personal search of the complainant was conducted, and he was not allowed to keep anything except his handkerchief, mobile phone. Two wads of Phenolphthalein treated G.C. notes of denomination 500 amounting to Rs.1,00,000/- were kept in the right side pant pocket of the complainant while rest two wads of the Phenolphthalein treated G.C. notes of denomination 500 amounting to Rs.1,00,000/- were kept in the left side pant pocket of the complainant. He was specifically instructed not to touch the said Phenolphthalein treated G.C. notes of Rs.2,00,000/- until demanded by accused, Shashi Mohan.
10. Witness, Ajit Kumar was directed to act as shadow witness. Haider Ali disclosed that accused, Shashi Mohan does not talk freely in front of strangers. Accordingly, it was directed that Mohd. Shakeel Qureshi would accompany Haider Ali for meeting accused-Shashi Mohan. Witness, Ajit Singh would follow them discreetly keeping a visible distance and to position himself as such that he could see the transaction and overhear the conversion as far as practically possible.
11. After completion of pre-trap proceedings at about 11:00 Hours on 10th May, 2015, the aforesaid C.B.I. team along with both the independent witnesses and the complainant, Haider Ali, Mohd. Shakeel Qureshi left the Suit No.1, Officers Rest House, North Eastern Railway, Fatehgarh, for residence of Shashi Mohan at Kasim Bagh, Cantonment, Fatehgarh. Bribe amount of Rs.2,00,000/- was handed over to Shashi Mohan at around 11:15-16 A.M. on 10.5.2015, and after receiving signal from Haider Ali and the complainant, all other team members including two witnesses rushed towards the car of the complainant, where the complainant-Haider Ali and accused-Shashi Mohan were present. Haider Ali and Mohd. Shakeel Quereshi pointed towards persons sitting in the back seat of the car who was busy in counting the notes who was identified as Shashi Mohan, Ward Member, Ward No.2 Cantonment Board, Fatehgarh who demanded and accepted bribe from Hyder Ali.
12. The accused-Shashi Mohan disclosed that he demanded and accepted the bribe amount on behalf of the petitioner who was posted as Chief Executive Officer of Fatehgarh Cantonment, Anwar Jamal whose wife was a Ward Member and Shiv Kumar, whose daughter was also a Ward Member and himself. He further told that out of Rs.2,16,000/- demanded by him Rs.1,56,000/- were accepted by him on the instance of the petitioner for onward transfer to him and rest Rs.60,000/- was to be distributed among Anwar Jamal, Shiv Kumar and himself. He also disclosed that earlier also he collected bribe for the petitioner from other contractors and had transferred it to him.
13. On being directed, Shashi Mohan made a call at Mobile No.9838919102 to the petitioner from his Mobile No.9450008078 at about 12:28 P.M. Speaker of the phone of accused-Shashi Mohan was switched on, and his conversation with the petitioner over phone was heard by all and was also recorded in blank Digital Voice Recorder. In that conversation, the petitioner initially acknowledged the words communicated to him by accused-Shashi Mohan regarding his acceptance of Rs.1,56,000/- at the rate of 6% on his behalf from Haider Ali. Later, he directed him to meet him in the office and not to talk to him over phone. Thereafter, the recorded conversation was transferred into a blank CD in presence of independent witnesses and the same was sealed, marked as Q-3 and signed by the independent witnesses. This conversation was also transferred in another CD which was marked as investigation copy Q-3 for investigation purposes.
14. Recovered amount of Rs.2,00,000/- from accused-Shashi Mohan which was handed over by the complainant, was sealed under the signature of both the independent witnesses. Hand wash of right and left hand of accused-Shashi Mohan was obtained with Sodium Carbonate water, which turned pink, sealed in two separate clean glass bottles marked LHW and RHW. In the same manner, right hand wash of the complainant was sealed in another clean glass bottle marked as CRHW.
15. Office of the petitioner was searched and file pertaining to the tender of M/S Dilip Kumar was seized in presence of witnesses.
16. Personal search of the accused-petitioner was made, and he was arrested. Search on residential premises of accused-Shashi Mohan was also carried out. Specimen voice of the accused-Shashi Mohan was obtained with his consent after being explained its purpose in presence of independent witnesses. Said recording was also transferred in Blank CD and marked as S-1, sealed and signed by all persons including independent witnesses. Specimen voice of the petitioner was also obtained as Exh.S-2. Compact disks having sample voice were sent to Central Forensic Science Laboratory, New Delhi for expert opinion and same had been received.
17. The allegation is that conversation between accused-Shashi Mohan and the petitioner would disclose that he had accepted the bribe of Rs.1,56,000/- on behalf of the petitioner. C.F.S.L. report confirmed involvement of the accused in demanding and accepting the bribe. C.B.I. after conducing the investigation filed charge-sheet under Sections 120B IPC, 7/13(2), 13(1)(d) PC Act against the accused-Shashi Mohan and the petitioner.
18. Despite the order dated 12.01.2018 passed by this Court in earlier petition filed under Section 482 Cr.P.C. No.116 of 2018 directing the petitioner to appear before the trial court on 24.01.2018 and till then the Non Bailable Warrant dated 03.01.2018 was kept in abeyance, the petitioner did not appear on 24.01.2018, but thereafter on 30.01.2018, filed another application challenging the validity of the sanction order for prosecuting him. It is alleged that the petitioner has submitted false residential address and to evade process of law. It was found that he was not residing at his native place. Though the petitioner was not mentioned in the F.I.R. verification memo and Pre-Trap Memorandum, his role emerged during the course of investigation as co-accused. Allegedly, Shashi Mohan demanded and accepted bribe from the complainant on behalf of the petitioner in furtherance of criminal conspiracy amongst themselves.
19. Heard Mr.Nandit Srivastava, learned Senior Advocate assisted by Mr.Pranjal Krishna and Mr. Anurag Singh, learned counsel appearing for the C.B.I.
20. Main contention of Mr.Nandit Srivastava, learned Senior Advocate assisted by Mr. Pranjal Krishna, learned counsel for the petitioner is that earlier the competent authority had refused sanction for prosecution against the petitioner. This recommendation was forwarded to the Ministry of Defence. The denial of sanction was after considering the material placed before the competent authority i.e. D.G.D.E., and there was no fresh material before the competent authority to issue fresh impugned sanction order dated 17th August, 2016 (Annexure-8), which is evident from the communication issued by Director, Vigilance, Ministry of Defence, Government of India on 10th February, 2016 (Annexure-5).
21. It has been further submitted by learned Senior Advocate that second sanction order for prosecuting the petitioner on the same material is not legally sustainable under the law without there being any material/evidence before the competent authority. He, therefore, has submitted that second sanction order dated 17.08.2016 is void ab initio, and thereby rendering all the proceedings including taking cognizance and summoning the petitioner null and void being without jurisdiction as jurisdiction goes to the root of the matter.
22. In support of the aforesaid contention, learned Senior Advocate has placed reliance on the judgment in the case of State of Himanchal Pradesh vs Nishant Sareen (2010) 14 SCC 527.
23. Learned Senior Advocate has further submitted that issue of validity of the prosecution sanction goes to the roots of the jurisdiction of the Court under the PC Act, and if the prosecution sanction is not valid all the proceedings are void ab initio. In support of this submission learned Senior Advocate has placed reliance on the judgment in the case of R.S. Nayak vs A.R.Antulay: (1984) 2 SCC 183.
24. The question of validity of prosecution sanction can be raised at any stage and, therefore, the petitioner had raised this issue before the learned Special Judge, CBI. However, learned Judge had proceeded to take cognizance for offence against the petitioner. In support of the aforesaid contention, he has placed reliance on the judgment in the case of Suresh Kumar Bhikham vs Pradeep Ajay Bhushan Jain (1988) 1 SCC 205 to submit that question of sanction can be considered at any stage of proceedings, and same view has been reiterated in the case of Nanjappa vs State of Karnataka: (2015) 4 SCC 186 wherein it has been held that question regarding validity of sanction to prosecute under Section 19 of the PC Act can be raised at any stage of proceedings.
25. The competence of the Court trying the accused depends upon the existence of a valid sanction, and if the Court finds that the sanction is invalid, the accused can get discharged. However, the competent authority may grant a fresh sanction for prosecution in accordance with law. If the trial court proceeds despite the invalidly attached to the sanction order, proceedings would be non est in the eyes of the law. However, the same shall not forbid the trial of the accused after grant of valid sanction for prosecution.
26. Further, ground to challenge the sanction order is that Director General Defence State is not the authority competent to remove the petitioner from his office, and the petitioner was appointed by his Excellency, Hon'ble the President. Since the impugned sanction order has not been issued by the Ministry of Defence, which is competent authority, therefore, sanction order is not valid and liable to be quashed.
27. Mr.Anurag Singh, learned counsel appearing for the C.B.I. opposing the petition has submitted that entire submissions made on behalf of the petitioner by the learned Senior Advocate are wholly misconceived and based on incorrect and wrong premises. He has submitted that communication dated 10th February, 2016 (Annexure-5) is not refusal of sanction to prosecute the petitioner by the competent authority but on the recommendation of the competent authority to not issue sanction for prosecution against the petitioner, matter was referred to the Central Vigilance Commission for consideration and concurrence by the Ministry of Defence which is evident from the communication itself.
28. Mr. Anurag Singh, learned counsel appearing for the C.B.I. has further submitted that as per the office memorandum dated 06.11.2006 issued by the Ministry of Personnel, Public Grievance & Pensions, Department of Personnel and Training, Government of India, Order 399/33/2006-AVD-III in cases investigated by the Central Bureau of Investigation against any public servant who is not removable from his office except with the sanction of the President, the C.B.I. forwards its final report of investigation to the C.V.C. and also simultaneously endorses a copy of the report to the administrative Ministry/Department concerned, the competent authority shall within three weeks is required to formulate its tentative view regarding the action to be taken and seek the advice of the C.V.C. in the matter.
29. The C.V.C., thereafter, would tender its advice within ten days to the concerned administrative Ministry/Department, which shall finalize its view in the matter within a week and issue orders for sanction for prosecution accordingly. If the C.V.C. on reconsideration advices, for grant of sanction, the concerned Ministry/Department will issue the requisite orders immediately. However, if the concerned Ministry/Department proposes not to accept the reconsidered advice of the C.V.C., the case will be referred to the Department of Personnel and Training for a final decision.
30. In cases in which an authority other than the President is competent to sanction prosecution, and that authority does not propose to accord such sanction, it is required to report the case to the Central Vigilance Commission and take further action after considering the Central Vigilance Commission's advice. If the Central Vigilance Commission advises grant of sanction for prosecution but the Ministry /Department concerned proposes not to accept such advice, the case should be referred to this DOPT for a final decision.
31. Mr.Anurag Singh, learned counsel appearing for the C.B.I. has drawn attention to the amendment made in the Government of India (Allocation of Business) Rules, 1961 on 30th, September, 1986 which provide for authorities competent to grant sanction from prosecution of public servant. According to amended rules in case of a government servant sanction for prosecution for an offence is required to be accorded by the Department which is the Cadre Controlling authority for the service of which he is a member, and in any other case, by the Department in which he was working at the time of commission of the alleged offence. It is further provided that notwithstanding anything contained in the Rule, the President may, by general or special order, direct that in any case or class of cases the sanction shall be accorded by the Department of Personnel and Training.
32. Mr.Anurag Singh, learned counsel appearing for the C.B.I. has further submitted that there is no order earlier than the order dated 17th August, 2016 for refusing or accepting sanction for prosecution of the petitioner. Internal communication dated 10the February, 2016 cannot be read to be as refusal of sanction by the competent authority for prosecuting the petitioner.
33. It has been further submitted by Mr.Anurag Singh, learned counsel that when the communication dated 10th February, 2016 was addressed at that time C.F.S.L. Report regarding voice samples and conversation between accused, Shashi Mohan and the complainant and the petitioner was not received. After the C.F.S.L. report had been received, entire material was reconsidered including C.F.S.L. report and the competent authority has granted sanction, which is legal, valid, just and proper.
34. It has been further submitted that there is no substance in the arguments of learned Senior Advocate that Director General of Defence State was not a competent authority for granting or denying the sanction inasmuch as from the communication dated 10th February, 2016 it is clear that D.G.D.E. is a competent authority for granting or refusing sanction for prosecution of the petitioner and on the said communication the petitioner has placed great reliance on his submission.
35. It has been further submitted that D.G.D.E. is the competent authority to remove the petitioner from service by virtue of powers delegated to D.G.D.E. under Rule 12 of CCS (CCA) Rules, 1967 read with Recruitment Rules and, therefore, the sanction order dated 17th August, 2016 has been issued by the competent authority. It has been further submitted that the petition has no merit and substance and is liable to be dismissed.
36. I have considered the submissions of Mr.Nandit Srivastava, learned Senior Advocate assisted by Mr.Pranjal Krishna and Mr. Anurag Singh, learned counsel appearing for the C.B.I.
37. Sum and substance of the arguments of learned Senior Advocate is that once sanction for prosecution of the petitioner was refused by the competent authority after considering the material placed by the C.B.I., which is evident from the order/communication dated 10th February, 2016, no fresh sanction on the same material could have been granted by the competent authority and even otherwise Director General of Defence State is not competent authority to grant or refuse the sanction. As the sanction is not a valid sanction, order of cognizance and further proceedings against the petitioner undertaken by Special Judge are void and illegal.
38. Communication dated 10th February, 2016 would read as under:-
"Most Urgent By Fax Government of India Ministry of Defence D (Vigilance) New Delhi, the 10th February, 2016 Subject: Request for grant of prosecution sanction-CBI Case No.RC0062015A0009/3301 dated 16.09.2015 against Shri Shashi Mohan, Ward member and vice president of Fatehgarh Cantonment Boards and others.
This has reference to DGDE note no.109/COMF/FATEHGARH/CB/VIG/DE dated 28.08.2015 and 02.12.2016 whereby it has recommended prosecution sanction against Shri Shashi Mohan, Ward Member but denied the same against Shri MPR Tripathi, CEO Fatehgarh.
2. The matter has been examined in the Ministry and the competent authority has decided to grant prosecution sanction against Shri Shashi Mohan ward member and Vice President of Fatehgarh Cantonment Board.
3. The matter has been considered in respect of Shri MPR Tripathi, CEO and keeping in view the following facts:-
(i) Though the complainant has mentioned in the complaint that Shri Tripahti has been demanding a bribe of Rs.1.56 Lakh, it appears that no verification regarding the demand made by Shri Tripathi has been done by the CBI. It is only Shri Shashi Mohan who has mentioned during the verification of the complaint that Shri Tripathi has asked for that money.
(ii) No evidence has been furnished by the CBI that any bribe has been demanded by Shri Tripathi from Shri Haider Ali.
(iii) Nothing incriminating was found in the searches carried out by CBI soon after the trap in the office and residential premises of Shri Tripahti.
(iv) The only evidence against Shri Tripathi is an audio CD containing a short conversation between Shri Shashi Mohan and Shri Tripathi which does not appear to be conclusive.
It appears that there is no direct evidence against Shri Tripathi nor there is any evidence to suggest that he demanded money from Shri Haider Ali. No verification of the complaint by Shri Haider Ali against Shri Tripathi was done by CBI. In view of this, the competent authority has approved that there does not seem to be enough evidence available on record for grant of prosecution sanction against Shri Tripathi. Accordingly, in pursuance of Rule 11.2 Chap, VIII of Vigilance Manual, the case is being forwarded to the CVC for consideration and concurrence.
4. Further, DGDE is requested to issue necessary orders denying Prosecution sanction for Shri MPR Tripathi, CEO being the competent authority under intimation to this Ministry.
Sd/- 10.02.2016 (Atul Kumar Singh) Director (Vigilance) 23012304"
39. It is no longer res integra that valid sanction by the competent authority under Section 19 of the PC Act is sine qua non for taking cognizance for an offence against a public servant. If the sanction is held to be invalid, entire proceeding undertaken by the trial court would be void.
40. The Supreme Court in the case of R.S. Nayak (supra) in para 19 on this issue has held as under:-
"19. Section 6 bars the court from taking cognizance of the offences therein enumerated alleged to have been committed by a public servant except with the previous sanction of the competent authority empowered to grant the requisite sanction. Section 8 of 1952 Act prescribes procedure and powers of Special Judge empowered to try offences set out in Section 6 of 1947 Act. Construction of Section 8 has been a subject to vigorous debate in the cognate appeal. In this appeal we will proceed on the assumption that a Special Judge can take cognizance of offences he is competent to try on a private complaint. Section 6 creates a bar to the court from taking cognizance of offences therein enumerated except with the previous sanction of the authority set out in clauses (a), (b) and (c) of sub-section (1). The object underlying such provision was to save the public servant from the harassment of frivolous or unsubstantiated allegations. The policy underlying Section 6 and similar sections, is that there should not be unnecessary harassment of public servant. (See C.R. Bansi v. State of Maharashtra [(1970) 3 SCC 537 : 1971 SCC (Cri) 143 : AIR 1971 SC 786 : (1971) 3 SCR 236] .) Existence thus of a valid sanction is a prerequisite to the taking of cognizance of the enumerated offences alleged to have been committed by a public servant. The bar is to the taking of cognizance of offence by the court. Therefore, when the court is called upon to take cognizance of such offences, it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as public servant. Undoubtedly, the accused must be a public servant when he is alleged to have committed the offence of which he is accused because Sections 161, 164, 165 IPC and Section 5(2) of the 1947 Act clearly spell out that the offences therein defined can be committed by a public servant. If it is contemplated to prosecute public servant who has committed such offences, when the court is called upon to take cognizance of the offence, a sanction ought to be available otherwise the court would have no jurisdiction to take cognizance of the offence. A trial without a valid sanction where one is necessary under Section 6 has been held to be a trial without jurisdiction by the court. (See R.R. Chari v. State of U.P. [AIR 1962 SC 1573 : (1963) 1 SCR 121 : (1962) 2 Cri LJ 510] and S.N. Bose v. State of Bihar [AIR 1968 SC 1292 : (1968) 3 SCR 563 : 1968 Cri LJ 1484] .) In Mohd. Iqbal Ahmad v. State of A.P. [(1979) 4 SCC 172 : 1979 SCC (Cri) 926 : AIR 1979 SC 677 : (1979) 2 SCR 1007] it was held that a trial without a sanction renders the proceedings ab initio void. But the terminus a quo for a valid sanction is the time when the court is called upon to take cognizance of the offence. If therefore, when the offence is alleged to have been committed, the accused was a public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant, he has ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. This approach is in accord with the policy underlying Section 6 in that a public servant is not to be exposed to harassment of a frivolous or speculative prosecution. If he has ceased to be a public servant in the meantime, this vital consideration ceases to exist. As a necessary corollary, if the accused has ceased to be a public servant at the time when the court is called upon to take cognizance of the offence alleged to have been committed by him as public servant, Section 6 is not attracted. This aspect is no more res integra. In S.A. Venkataraman v. State [AIR 1958 SC 107, 112 : (1958) SCR 1040 : 1958 Cri LJ 254] this Court held as under:
"In our opinion, in giving effect to the ordinary meaning of the words used in Section 6 of the Act, the conclusion is inevitable that at the time a court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of Section 6 can apply. In the present appeals, admittedly, the appellants had ceased to be public servants at the time the court took cognizance of the offences alleged to have been committed by them as public servants. Accordingly, the provisions of Section 6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority."
And this view has been consistently followed in C.R. Bansi case [(1970) 3 SCC 537 : 1971 SCC (Cri) 143 : AIR 1971 SC 786 : (1971) 3 SCR 236] and K.S. Dharmadatan v. Central Government [(1979) 4 SCC 204 : 1979 SCC (Cri) 958 : (1979) 3 SCR 832 : 1979 Cri LJ 1127] . It therefore appears well-settled that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 is the date on which the court is called upon to take cognizance of the offence of which he is accused."
41. Further, in the case of Nanjappa vs State of Karnataka: (2015) 14 SCC 186 in para 22 it has been further reiterated that Section 19 of the PC Act forbids taking of cognizance by the Court against public servant except with the previous sanction of a competent authority to grant such sanction in terms of Cause (a), (b) and (c) of Section 19(1) of PC Act.
It would be apt to extract para 22 of the said judgment:-
"22. The legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption Act is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of clauses (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with law. If the trial court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution."
42. It is also settled that sanction accorded by an authority not competent to accord sanction can be without jurisdiction and nullity as held in the case of State Inspector of Police vs Surya Sankaran Karri, 2006 Cri.L.J. 4598.
43. Section 19 of the PC Act reads as under:-
"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 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 (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-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 any 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 sanction of a specified person or any requirement of a similar nature."
44. The Supreme Court in the case of Prakash Singh Badal & Anr vs State of Punjab & Ors: (2007) 1 SCC 1, while considering intent and scope of Sub-sections 3 and 4 of Section 19 of the PC Act held that error, omission or irregularity in sanction would not be fatal unless it has resulted in failure of justice. Section 19 (1) is a matter of procedure and does not go to the root of jurisdiction.
Para 29 of the aforesaid judgment would read as under:-
"29. The effect of sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In sub-section (3) the stress is on "failure of justice" and that too "in the opinion of the court". In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of jurisdiction as observed in para 95 of Narasimha Rao case [(1998) 4 SCC 626 : 1998 SCC (Cri) 1108] . Sub-section (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the old Act [Section 19(2) of the Act] question relates to doubt about authority to grant sanction and not whether sanction is necessary."
45. In the said judgment, it has been further held that requirement under Section 19 is that incriminating material should be placed before sanctioning authority in order to apply his mind and take a decision for grant of sanction whether there is an application of mind or not, would depend on facts and circumstances of each case. There is a distinction between absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial.
Paras 47 and 48 of the aforesaid judgment in Prakash Singh Badal's case (supra) would read as under:-
"47. The sanctioning authority is not required to separately specify each of the offences against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalised guidelines in that regard.
48. The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial."
46. Sanction order can be challenged on several grounds such as non availability of the matter before sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority etc. The Supreme Court in the case of Dinesh Kumar v Airport Authority of India (2012) 1 SCC 532 has held that all such grounds of invalidity or illegality of sanction would fall in the category on sanction being invalid on account of non application of mind and can always be raised in the course of trial. Para 9 to 11 of the aforesaid judgment which are relevant are extracted hereunder:-
"9. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] expressed in no uncertain terms that the question of absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, in Parkash Singh Badal [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] , this Court referred to invalidity of sanction on account of non-application of mind.
10. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorised or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind--a category carved out by this Court in Parkash Singh Badal [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] , the challenge to which can always be raised in the course of trial.
11. In a later decision, in Ameerjan [(2007) 11 SCC 273 : (2008) 1 SCC (Cri) 130] , this Court had an occasion to consider the earlier decisions of this Court including the decision in Parkash Singh Badal [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] . Ameerjan [(2007) 11 SCC 273 : (2008) 1 SCC (Cri) 130] was a case where the trial Judge, on consideration of the entire evidence including the evidence of the sanctioning authority, held that the accused Ameerjan was guilty of commission of offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. However, the High Court overturned the judgment of the trial court and held that the order of sanction was illegal and the judgment of conviction could not be sustained."
47. In the recent judgment in the case of Central Bureau of Investigation vs Pramila Virendra Kumar Agarwal & Anr : (2019) SCC OnLine SC 1265, the Supreme Court has reiterated that validity of sanction for prosecution could be considered only during the trial. Para 11 of the said judgment is extracted hereunder:-
"11. Further the issue relating to validity of the sanction for prosecution could have been considered only during trial since essentially the conclusion reached by the High Court is with regard to the defective sanction since according to the High Court, the procedure of providing opportunity for explanation was not followed which will result in the sanction being defective. In that regard, the decision in Dinesh Kumar v. Airport Authority of India [Dinesh Kumar v. Airport Authority of India, (2012) 1 SCC 532 : (2012) 1 SCC (Cri) 509 : (2012) 2 SCC (L&S) 532] relied upon by the learned Additional Solicitor General would be relevant since it is held therein that there is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The absence of sanction no doubt can be agitated at the threshold but the invalidity of the sanction is to be raised during the trial. In the instant facts, admittedly there is a sanction though the accused seek to pick holes in the manner the sanction has been granted and to claim that the same is defective which is a matter to be considered in the trial."
48. Grant or refusal to grant sanction is a statutory power. That power once exercised can be reviewed but the review cannot be on the same material or reconsideration of the decision for grant or refusal the sanction cannot be made on the same material. A change of opinion per se on the same material cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction but in a case where fresh material has been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the mater is reconsidered by the sanctioning authority and in the light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, such an order would not be an invalid order. The Supreme Court in the case of State of Himanchal Pradesh vs Nishant Sareen (2010) 14 SCC 527 in para 12 and 13 has held as under:-
"12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us a sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise.
13. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such a course."
49. The questions which fall for consideration are that;
(i) Whether there was an order passed by the competent authority refusing grant of sanction for prosecution of the petitioner, and such an order was communicated to the C.B.I.?
(ii) Whether the order dated 17th August, 2016 is a second order by the competent authority whereby the sanction for prosecution of the petitioner was accorded and same was based on the same material which was placed before the competent authority earlier?; and
(iii) Whether the order dated 17th August, 2016 granting sanction for prosecution of the petitioner would amount to non application of mind and, therefore, is invalid ?
50. Mr.Nandit Srivastava, learned Senior Advocate has not disputed that except for the order/communication dated 10th February, 2016 there is no order of refusal of sanction by the competent authority for prosecuting the petitioner. The aforesaid communication has been extracted hereinabove. Perusal of the said communication would disclose that it was an internal communication between the Director General of Defence Estate, Ministry of Defence and Central Vigilance Commission. In pursuance to the said communication neither a separate order was passed/issued by the competent authority nor the same was communicated to the C.B.I. refusing to grant sanction for prosecution of the petitioner. Said communication cannot be construed as order refusing sanction for prosecution of the petitioner.
51. Order dated 17th February, 2016 is the only order which was communicated to the C.B.I. and on the basis of said order cognizance has been taken by the Special Court and process had been issued against the petitioner. The judgment relied on by the learned Senior Advocate in the case of Nishant Sareen (supra) is not applicable to the facts and circumstances of the present case inasmuch as there is only one sanction order and the earlier communication on which the petitioner has heavily relied on is merely a tentative view and a departmental noting and same cannot be held to be an order.
52. Business of the Government is a complicated one and has necessarily to be conducted through the Agency of a large number of officials and authorities. Notings/communications are not the decision unless a final order is drawn up regarding granting or refusing sanction. Internal communication/noting cannot be deemed to be the orders refusing or granting sanction as held in the case of Bachhittar Singh vs State of Punjab & Anr AIR 1963 SC 395.
53. The Supreme Court in the case of Sethi Auto Service Station & Anr vs Delhi Development Authority & Ors: (2009) 1 SCC 180 has held that a noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration. Internal notings are not meant for outside exposure. Internal notings on communication do not culminate into executable order. Para 14 and 15 of the said judgment which are relevant are extracted hereunder:-
"14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned.
15. In Bachhittar Singh v. State of Punjab [AIR 1963 SC 395 : 1962 Supp (3) SCR 713] , a Constitution Bench of this Court had the occasion to consider the effect of an order passed by a Minister on a file, which order was not communicated to the person concerned. Referring to Article 166(1) of the Constitution, the Court held that order of the Minister could not amount to an order by the State Government unless it was expressed in the name of the Rajpramukh, as required by the said article and was then communicated to the party concerned. The Court observed that business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. Before an action is taken by the authority concerned in the name of the Rajpramukh, which formality is a constitutional necessity, nothing done would amount to an order creating rights or casting liabilities to third parties. It is possible, observed the Court, that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion which may be opposed to the earlier opinion. In such cases, which of the two opinions can be regarded as the "order" of the State Government? It was held that opinion becomes a decision of the Government only when it is communicated to the person concerned."
54. In the case of Vivek Batra vs Union of India & Ors : (2017) 1 SCC 69 wherein it was argued that earlier Finance Minister had referred the matter back to the Central Vigilance Commission for sanction of the prosecution of the petitioner in said case and, therefore, sanction for prosecution stood declined and grant of sanction by the successor Finance Minister would not be a valid sanction for prosecution, held that as no final order refusing sanction was issued, subsequent sanction by the new Finance Minister would not be invalid only for the reason that in administrative notings different authorities had opined differently before the competent authority took the decision in the matter. In the said judgment reliance has been placed in the case of Jasbir Singh Chhabra vs State of Punjab : (2010) 4 SCC 192 and Sethi Auto Service Station (supra).
55. In view of the aforesaid law, the Court is of the firm view that the communication dated 10th February, 2016 is not a final order refusing sanction for prosecution of the petitioner. There is only one order i.e. order dated 17th August, 2016 granting sanction. Communication dated 10th February, 2016 is internal correspondence and not an order, therefore, the petitioner cannot take advantage of the said communication to say that earlier competent authority had refused sanction for prosecution of the petitioner. Order dated 17th August, 2016 is not a second order but is the only order of sanction for prosecution of the petitioner.
56. Even otherwise order of sanctioning prosecution of the petitioner dated 17th August, 2016 would disclose application of mind by the authorities on the facts and material placed before it. When the tentative opinion was formed which is evident from the communication dated 10th February, 2016 at that time opinion of C.F.S.L. report about voice sample, communication between the petitioner and co-accused etc., was not on record. C.B.I. after obtaining C.F.S.L. report has placed the same before the competent authority and the competent authority thereafter issued order dated 17th August, 2016. Therefore, it cannot be said that the order dated 17th August, 2016 has been issued without application of mind or there has been non application of mind as has been submitted by learned Senior Advocate.
57. The petitioner has been delaying the trial proceedings on one pretext or the other. Earlier he has been granted an interim order by this Court vide order dated 8th February, 2018.
58. In view of the aforesaid, this Court does not find any substance in the petition which is hereby dismissed.
59. Interim order, if any, stands vacated.
60. The petitioner is granted time till 21.11.2022 to appear before the trial court and apply for regular bail. In case the petitioner appears and applies for regular bail, his bail application shall be considered expeditiously in accordance with law.
(Dinesh Kumar Singh, J.) Order Date :- 10.11.2022 prateek