Madras High Court
Tmt.Kanimozhi vs State Rep. By on 20 August, 2014
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.08.2014 CORAM: THE HON'BLE MR.JUSTICE M.VENUGOPAL Crl. O.P.No.9506 of 2014 and M.P.No.1 of 2011 Tmt.Kanimozhi ... Petitioner /A2 Versus State Rep. by Deputy Superintendent of Police, Vigilance and Anti Corruption, Salem Cell, Salem-4. ... Respondent PRAYER: This Criminal Original Petition filed under Section 482 of Code of Criminal Procedure, praying to call for the records in Spl.C.C.No.4 of 2006 on the file of the Learned Chief Judicial Magistrate and Special Judge, Coimbatore and quash the same. For Petitioner : Mr.R.N.Chandrasekaran For Respondent : Mr.A.N.Thambidurai Additional Public Prosecutor O R D E R
The Petitioner/A2 has focused the present Criminal Original Petition, praying for passing of an order by this Court in calling for the records in Spl.C.C.No.4 of 2006 on the file of the Learned Chief Judicial Magistrate cum Special Judge, Coimbatore and to quash the same.
2. According to the Learned counsel for the Petitioner/A2, the Petitioner's husband, is presently an Advocate and earlier he was serving as Commissioner of Municipality from the year 1976 and further he was promoted as Regional Director of Municipal Administration, Tiruppur. Further, during the year 1997-1999, the Petitioner's Husband was serving as Director of Tamilnadu Institute of Urban Studies, Coimbatore. From the year 1999-2004, he served as Regional Director of Municipal Administration, Salem.
3. The Learned counsel for the Petitioner/A2, contends that according to the Respondent, during the period from 18.08.1999 to 28.06.2004, the Petitioner/A2 with the connivance and abetment of her husband had committed a criminal misconduct and that a case was registered during the year 2003 against them and they were arrayed as A1 and A2 in respect of the purported offence under Section 109 IPC r/w 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988.
4. The Learned counsel for the Petitioner/A2 submits that Petitioner/A2, had not abetted her husband A1 and further, she had not committed any misconduct. Also, the Learned counsel for the Petitioner/A2, takes a plea that the Respondent had filed a charge sheet against the Petitioner/A2 and her husband A1 before the Learned Chief Judicial Magistrate and Special Judge, Coimbatore in Spl.C.C.No.4 of 2006, after a lapse of three years period without necessary sanction.
5. Advancing his arguments, the Learned counsel for Petitioner/A2, strenuously contends that in the instant case on hand there is no prior sanction, which is a mandatory requirement in terms of Section 197 of Cr.P.C., and Section 19 of the Prevention of Corruption Act, 1988.
6. Added further, the Learned counsel for the Petitioner/A2 proceeds to submit that the authority concerned was to act both in terms of Cr.P.C., and in terms of the Prevention of Corruption Act, 1988 and the said Act is a sacrosanct one and strictly the ingredients of Section 197 Cr.P.C., and Section 19 of the Prevention of Corruption Act, 1988, are to be followed.
7. The Learned counsel for the Petitioner/A2, projects an argument that the Petitioner/A2, is a House wife and including her in the malicious charge sheet frivolously had invaded her 'Fundamental Right' and also destructed her 'personal freedom'.
8. Expatiating his submission, the Learned counsel for the Petitioner/A2 contends that the trial Court had committed an error in taking cognizance of the offence without prior sanction from the competent authority.
9. The Learned counsel for the Petitioner/A2, submits that the allegations levelled against the Petitioner/A2's husband viz., A1, were on the basis of anonymous petition and undue influence developed by his colleagues and the same are not sustainable in the eye of Law.
10. That apart, it is represented on behalf of the Petitioner/A2, that A1, is an 'Income Tax Assessee' and he is maintaining satisfactory accounts for his income. Also, that the Petitioner/A2, is also maintaining satisfactory accounts and she has a PAN card bearing No.AEEPG400N.
11. The primordial submission of the Learned counsel for the Petitioner/A2 is that the trial Court had framed charges against the Petitioner/A2 without prior sanction and the same is liable to be set aside by this Court in furtherance of substantial cause of justice.
12. The Learned counsel for the Petitioner/A2 takes a stand that the Respondent/Prosecution had left out 18 years of income, but had taken into consideration only 10 years of income and as such the calculation made by the Respondent is an illegal one.
13. The Learned counsel for the Petitioner/A2 brings it to the notice of this Court that in the instant case, FIR was registered on 25.08.2003 and after a lapse of three years, sanction to prosecute the Petitioner/A2's husband was granted on 05.01.2006. Further the trial Court had taken cognizance of the case in Spl.C.C.No.4 of 2006 on 15.03.2006.
14. The Learned counsel for the Petitioner/A2, cites the decision of the Hon'ble Supreme Court in Anil Kumar and Others V. M.K.Aiyappa and Another reported in 2014 (1) SCC (Cri) at page 35 and 36, whereby and whereunder, it is held as under:
Where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order under Section 19(1) of the Prevention of Corruption Act, 1988 (PC Act). The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the Learned Special Judge which, in our view, has stated no reasons for ordering investigation. (Para 11) Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668, followed The submission by the appellants (complainants) that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) of the PC Act would be rendered otiose, is difficult to accept. Section 19(3) of the PC Act has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. Therefore, there is no error in the order passed by the High Court. (Paras 21 to 23)
15. Further, in the aforesaid decision at Page No.36, it is also observed thus:
The word 'Cognizance' has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge under the Prevention of Corruption Act, 1988 refers a complaint for investigation under Section 156(3) Cr.P.C., obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 Cr.P.C. and the next step to be taken is to follow up under Section 202 Cr.P.C. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage. (para 15)
16. The Learned counsel for the Petitioner/A2, seeks in aid of the decision of this Court in R.Gunalan V. The State by Deputy Superintendent of Police, Vigilance and Anti-Corruption Department, Erode Wing, Erode District, reported in 2012 (3) CTC 38, whereby and whereunder it is held as follows:
The necessity for 'independent witness' in cases involving trap cases is emphasised in various decisions as the evidence of bribe giver is in the nature of an accomplice and therefore, his story, prima facie, would be of suspect. It is held that before any court could act on his testimony, corroboration in material particulars is necessary. In C.M.Girish Babu Vs. CBI (2009-3-SCC-779), the Honourable Supreme Court, while dealing with the case under the Prevention of Corruption Act, 1988, by referring to its previous decision in Suraj Mal Vs. State (Delhi Admin.) (1979-4-SCC-725) held that mere recovery of tainted money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused, when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the Prosecution against the accused and the said view is reiterated in a recent decision of the Honourable Supreme Court reported in State of Kerala and another Vs. C.P.Rao (2011-6-SCC-450). (para 17)
17. Further, in the aforesaid decision at Special Page 39, it is further held as follows:
As held by the Honourable Supreme Court in various cases that the need for sanction has arisen because it is in public interest that a public servant should be saved from the harassment of frivolous or unsubstantiated allegations. Grant of sanction is not an idle formality or an acrimonious exercise, but a solemn and sacrosanct act which affords protection to Government servants and must therefore be strictly complied with before any prosecution can be launched against a public servant concerned. It is also held that the impugned order of conviction cannot be reversed on the ground of irregularity in the sanction unless failure of justice has occasioned thereby. (para 26)
18. The Learned counsel for the Petitioner/A2 cites the decision of Hon'ble Supreme Court in Chandran Ratnaswami V. K.C.Palanisamy and Others, reported in 2013 Cri.L.J at page 2938 wherein it is observed that the power of the police under Section 156 of Cr.P.C and Article 21 of the Constitution of India is not unlimited and the said power should be exercised within the limits prescribed by the Code of Criminal Procedure and further it should not result in destruction of personal freedom.
19. Apart from the above, the Learned counsel for the Petitioner/A2, cites the following decisions.
(a) In the decision in Prabir Kumar Pradhan V. State of Orissa, reported in 2012 Crl.L.J 4394, it is held that the mandatory requirements of prior sanction to take cognizance of offence under Section 19 of the Prevention of Corruption Act was not followed and that the sanction was taken after the order of cognizance and the said sanction cannot cure the defect.
(b) In the decision in Ravikumar V. State Rep. by the Deputy Superintendent of Police, PE/CBI/ACB/Chennai, reported in 2012 (3) MLJ (Cri) 368, it is held that when there is non application of mind on the part of the sanctioning authority, who accorded sanction, the said sanction order is illegal and invalid.
(c) The Learned counsel for the Petitioner/A2 invites the attention of this Court to the order dated 28.03.2013 in W.P.No.6812 of 2013, wherein at Paragraph Nos.6 and 7, it is observed and held as under:
6. If the respondents had already launched prosecution even before the Government granted sanction for prosecution, the same may vitiate the charge memo, but would not vitiate the sanction order. The judgment of the Division Bench of this Court in M.S.Vijayakumar V. The Chairman and Managing Director, Indian Overseas Bank, arose completely under different circumstances. In the said case, departmental proceedings were initiated culminating in a penalty. The request for sanctioning prosecution was rejected earlier and the Division Bench found that the decision not to sanction prosecution was withdrawn later, due to pressure from extraneous sources. Therefore, in paragraph 35 of its judgment, the Division Bench of this Court found that such a sanction order, which was passed due to extraneous considerations, especially after declining sanction earlier, was vitiated.
7. But, in this case, the impugned order is the first order sanctioning prosecution. The order was passed almost about seven years ago. Therefore, at this distance of time, it is not open to the petitioners to challenge the order sanctioning prosecution. More over, the only ground on which the petitioners challenge the sanction order, is actually a defence to the criminal case and cannot be used to assail the sanction order. Hence, this writ petition is dismissed. However, it will be open to the petitioners to raise all defences in the Criminal case. There shall be no order as to costs. Consequently, M.P.Nos.1 and 2 of 2013 are also dismissed.
(d) The Learned counsel for the Petitioner/A2 relies on the decision of this Court reported in S.Nagoor Meeran and Another V. State by Inspector of Police, Vigilance and Anti Corruption, Tirunelveli, reported in (2012) 4 MLJ (Cri.) 714 at Special Page 715, wherein it is interalia held that the investigating officer has no qualms over substituting his assessment of family expenditure of the accused for that of an expert and that the prosecution failed to prove its case.
20. Continuing further the Learned Counsel for the Petitioner/A2, relies on the following decisions.
(i) In the decision of the Hon'ble Supreme Court in C.K.Jaffer Sharief V. State (Through CBI), reported in (2013) 1 MLJ (Crl) 90 (SC), it is observed that the appellant was the Head of two Public Sector Undertakings in question at the relevant time and it also appears from the materials on record that four persons while in London had assisted the appellant in performing certain tasks connected with the discharge of duties as a Minister and held that there was no question of obtaining any pecuniary advantage by any corrupt or illegal means or by abuse of the position of the appellant as a public servant, can arise and further it was held that there was no dishonest intention to obtain an undue pecuniary advantage.
(ii) In the decision of the Hon'ble Supreme Court in Kamlesh Verma V. Mayawati and Others, reported in (2013) 8 SCC 320, at Page Nos.321 and 322, it is observed and held as under:
In the present case, the same arguments and same earlier orders passed by the Supreme Court in Taj Corridor matter are advanced by the new counsel for the review petitioner which were advanced earlier in the main case (i.e. Writ petition by Ms.Mayawati, respondent herein) by the then counsel for CBI as well as old counsel of the review petitioner. In paras 18 to 23 of the order dated 6-7-2012 in Mayawati, (2012) 8 SCC 106 which is under review, the very same contentions were made, dealt with and duly considered at length and it was clarified that anything beyond the Taj Corridor matter was not the subject-matter of reference before the Taj Corridor Bench [M.C.Mehta, (2003) 8 SCC 696 and M.C.Mehta, (2003) 8 SCC 711] and Cbi was not justified in proceeding with the second FIR against Ms. Mayawati since the order dated 18.9.2003 [ M.C.Mehta, (2003) 8 SCC 696] did not contain any specific direction regarding lodging of the FIR in the matter of disproportionate assets case against Ms.Mayawati. Therefore, inasmuch as the very same point has been urged once again, in the light of the settled principles relating to review of judgments and orders, same is impermissible. In such circumstances and in the light of enormous decisions, there is no material within the parameters of review jurisdiction to go into the earlier order dated 6.7.2012 in Mayawati, (2012) 8 SCC 106 . (Paras 24 to 26) Further, the earlier writ petition filed by Ms. Mayawati was disposed of on the basis of relief sought for, contents of the second FIR dated 5.10.2003 and earlier directions of the Supreme Court relating to the Taj Heritage Corridor Project particularly the order dated 18.09.2003 in M.C.Mehta, (2003) 8 SCC 696. It is also made clear that the Supreme Court while disposing of the said writ petition, had not gone into any other aspect relating to the claim of CBI, present petitioner or the stand of the writ petitioner therein i.e. Ms.Mayawati except the directions relating to the Taj Heritage Corridor Project which was the only lis in the writ petition. Hence, nothing was said or expressed beyond the subject matter of that dispute. (Paras 26 and 27)
(iii) In the decision of the Hon'ble Supreme Court in State of Maharashtra V. Wasudeo Ramchandra Kaidalwar, reported in (1981) 3 SCC at Page Nos.199 and 200, it is held as follows:
The expression 'burden of proof' has two distinct meanings, (1) the legal burden, i.e., the burden of establishing the guilt and (2) the evidential burden i.e., the burden of leading evidence. In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and that burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. [para 13] Section 5(1)(e) is a self-contained provision. The first part of it casts a burden on the prosecution and the second on the accused. The onus on the accused is implicit in the words for which the public servant cannot satisfactorily account in Section 5(1)(e).' The words known sources of incomes in Section 5(1)(e) mean sources known to the prosecution and the prosecution is not required to disprove all possible sources of income. [para 12].
To substantiate the charge under Section 5(2) read with Section 5(1)(e) the prosecution must prove the following facts before it can bring a case under Section 5(1)(e), namely, (1) the accused is a public servant; (2) the nature and extent of the pecuniary resources of property which were found in his possession; (3) what were his known sources of income, i.e. Known to the prosecution; and (4) such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under Section 5(1)(e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the accused public servant is that the accused is not bound to prove his innocence beyond all reasonable doubt. All that he need to do is to bring out a preponderance of probability. [ para 12]
(iv) In the decision of the Hon'ble Supreme Court in DSP, Chennai V. K.Inbasagaran, reported in (2006) 1 MLJ (Crl.) 293 at Page No.294, it is laid down as follows:
Sec.5(3) of the Act only lays down a rule of evidence and makes a departure from the established principles of criminal law on the question of burden of proof by raising a presumption of guilt in certain circumstances against the public servant. But the initial burden is on the prosecution to establish that the accused had acquired wealth disproportionate to his known source of income. The accused has to offer satisfactory explanation to disprove. [para 15]
(v) In the decision of this Court in State rep. by Dy. Superintendent of Police, Vigilance and Anti Corruption, Cuddalore Detachment V. K.Ponmudi and Others, reported in (2007) 1 MLJ (Crl) 100, at Special Page Nos.102 and 103, it is held as follows:
It is not merely the possession of property disproportionate to the known sources of income that constitutes offence, but it is the failure to satisfactorily account for such possession that makes the possession objectionable and offending the law. In exercise of the powers under Section 227 of Cr.P.C., the Judge has undoubted power to sift and weight the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; Judge cannot act merely as a post office or a mouthpiece 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, but should not make a roving enquiry into the pros and cos of the matter and weigh the evidence as if he is conducting a trial.
(vi) In the decision of the Madurai Bench of this Court in R.Markandan (died) / Pushpavalli V. State by its Inspector of Police, SPE/CBI/ACP, Chennai, reported in (2012) 3 MLJ (Crl) 629, it is held as follows:
The Court is of the opinion that income from known sources would exceed the value for the alleged disproportionate assets. In such a view of this matter, it ought to be necessarily observed that there was no disproportionate assets at the hands of the appellant at the end of the check period. This point is answered accordingly. The appeal deserves to be allowed. [para 22]
(vii) In the decision of this Court in M.S.Vijayakumar V. The Chairman and Managing Director, Indian Overseas Bank and two others, reported in 2012-2-TLNJ 297 (Civil), at Special Page Nos.311 and 312 in paragraph No.17, it is observed as follows:
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 prosecution. (See Mohd.Iqbal Ahmed V. State of A.P., (1979) 4 SCC 172). Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. Also, in Paragraph No.19, it is observed as under:
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.
21. The pith and substance of the contentions advanced on behalf of Petitioner/A2 is that in the absence of prior sanction order in respect of A1, the accused need not unnecessarily undergo the ordeal and mental agony of facing the unnecessary trial proceedings and in the interest of justice, the quash petition filed by the Petitioner/A2, may be allowed by this Court.
22. Per contra, the Learned Additional Public Prosecutor for the Respondent, contends that during the investigation, it was found that the petitioner's husband viz., A1, and the Petitioner/A2, mother-in-law and father-in-law of A1, held assets at the beginning of the check period as on 01.01.1993 valued at Rs.2,23,719/- and A1 and the Petitioner/A2 held the assets valued at Rs.54,77,477/- at the end of the check period as on 31.03.2003.
23. The Learned Additional Public Prosecutor for the Respondent submits that the income of A1 and Petitioner/A2 from known sources during the check period from 01.01.1993 to 31.03.2003 was arrived at Rs.42,14,707/-, which is shown in Statement No.III. Also, that the expenditure of A1 and Petitioner/A2 and other family members were calculated at Rs.42,67,648/- during the check period, as shown in Statement No.IV. Resultantly, there was an excess expenditure of Rs.52,941/- during the check period. That apart the assets in possession of A1 and the Petitioner/A2 during the check period was valued at Rs.52,53,758/-, as shown in Statement No.V. As such, the percentage of assets acquired by A1 and Petitioner/A2 with a value of Rs.53,06,699/- worked out at 125.9%.
24. The Learned Additional Public Prosecutor for the Respondent contends that the Petitioner/A2's husband viz., A1, had committed an offence under Section 13(2) r/w 13(1)(2) of Prevention of Corruption Act, 1988, as the investigation disclosed the possession of disproportionate assets to the known sources of income and the Petitioner/A2 committed offence under Section 109 IPC r/w 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988.
25. Continuing further, the Learned Additional Public Prosecutor for the Respondent brings it to the notice of this Court that the Respondent/Prosecution had taken into account the Income tax payment particulars and that was included in the Statement No.IV.
26. The Learned Additional Public Prosecutor for the Respondent vehemently submits that the investigating officer carried out investigation in a very transparent fashion and obtained the sanction for prosecution from the competent authority i.e., The Secretary to Government, Municipal Administration and Water Supply Department, Chennai in respect of A1 and filed the charge sheet against him and Petitioner/A2, before the trial Court.
27. Also, that the Learned Additional Public Prosecutor for the Respondent refers to Crl.O.P.Nos.23561 of 2006 and 26794 of 2011 filed by the Petitioner/A2 and her husband-A1 before this Court and submits that on 27.06.2012, this Court at Paragraph Nos.10 to 12, had observed the following and dismissed both the Criminal Original Petitions.
10. Even with regard to properties which stand in the name of the second accused, who is the wife of the first accused, it is only the public servant, who is bound to explain satisfactorily. On his failure to explain, it is open to the investigating officer to file his final report. The observation made by this Court in (2007) 1 MLJ (Crl) 100 (cited supra) that the clubbing of the properties is erroneous, is not acceptable. I am not in a position to agree with the observation made by this Court that the clubbing of the properties of the other accused is erroneous and the accused cannot be asked to explain the source of income of others with reference to the properties standing in their names.
11. When some of the formal ministers of Tamil Nadu were prosecuted under Section 13(1)(e) of the Prevention of Corruption Act, their kith and kins were also arrayed as co-accused to face the offence under Section 13(1)(e) of Prevention of Corruption Act r/w Section 109 of IPC. A question was raised as to whether the other persons were liable to be prosecuted along with the public servant for the offences under Sections 109 IPC r/w 13 (1)(e) of Prevention of Corruption Act. Though it was contended that non public servant has no role in the trial of the said offence as he cannot conceivably be tagged with the public servant for the offence under Section 13(1)(e) of the Prevention of Corruption Act, the said contention was rejected by the Hon'ble Supreme Court. In the decision reported in (1999) 6 SCC 559 (Cited supra), the Hon'ble Supreme Court held that the offence under Section 13(1)(e) of the PC Act can be abetted by non public servants and also observed that only mode of prosecuting the offence is through trial envisaged in the PC Act.
12. In this particular case, even the statement of the second accused has been recorded which is shown as item NO.134 in the list of documents filed by the prosecution along with the final report. As there is no merit, both the petitions are dismissed. Consequently, connected miscellaneous petitions are closed.
28. Furthermore, it comes to be known that the Crl.O.P.No.7189 of 2014 filed by the A1 (petitioner's husband) was dismissed as withdrawn by this Court on 04.04.2014.
29. The categorical stand taken on behalf of the Respondent is that in the present case, the Respondent registered the First Information Report on 25.08.2003 and only after obtaining the prosecution sanction order from the competent authority, the charge sheet was filed before the trial Court against the Petitioner/A2 and her husband, A1.
30. It cannot be gainsaid that the aim of Section 197 Cr.P.C., is to guard against any frivolous or vexatious or malicious proceedings against a public servant without obtaining the opinion of his Superior.
31. It is to be noted that in an application under Section 197 of Cr.P.C., the following requisites are to be satisfied. They are:-
(i)The offence mentioned therein must be committed by the public servant.
(ii) The public servant employed in connection with the affairs of the Union or a State is not removable from his office save by or with the sanction of the Central Government or the State Government as the case may be.
(iii)The protection is available only when the purported act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act.
(iv)If in doing his official duty, he has acted in excess of his duty, but there is reasonable connection between the act and the performance of the official duty, the excess would not be a sufficient ground to deprive the public servant of protection.
(v)The question is not as to the nature of the offence such as wehter the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity.
(vi)Before the invocation of Section 197 of Cr.P.C., it should be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and purview of his official duty.
(vii) The act can be performed in discharge of his official duty as well as in dereliction thereof.
(viii) As regards the public servants are concerned the cognizance of any offence, by any Court, is barred in terms of Section 197 of the Code of Criminal Procedure, unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The mandatory element of the protection afforded to a public servant is brought out by the expression 'no Court shall take cognizance of such offence except with the previous sanction'. It is to be kept in mind that the employment of the words, 'no' and 'shall' make it clear that the bar on the exercise of power by the Court to take cognizance of any offence is absolute and complete as per the decision of Hon'ble Supreme Court in State of Orissa V. Ganesh Chandra Jew, reported in AIR 2004 SC 2179.
32. Coming to the aspect of Section 19 of the Prevention of Corruption Act, 1988, it is to be pointed out that the said Section speaks of 'previous sanction' necessary for prosecution. In fact, Section 19(1) 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 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 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.
33. It is to be stated that whether the act complained of in a given case would require sanction or not is an essential question of fact as opined by this Court.
34. A 'sanction' is an order directing the prosecution of a particular person/individual and the said information is passed on to the authorities who are responsible for initiating prosecution in the subject matter in issue.
35. It cannot be gainsaid that the grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence.
36. The issue of sanction would depend on evidence to be let in whether the impugned acts were preformed in an official capacity.
37. In this connection, this Court aptly points out that no Court can take cognizance of an offence punishable under Sections 7, 10,11, 13 and 15 of the Prevention of Corruption Act, 1988, except with the previous sanction of competent authority as per the decision in Dr.Jaswant Singh Vs. State of Punjab and another, reported in 2006 (4) Law Herald Punjab & Haryana 3147.
38. At the stage of grant of sanction for prosecution, opportunity of hearing is not visualised in terms of Section 197 of Cr.P.C., as opined by this Court. Further, the sanctioning authority is not required to consider the defences of the accused at the time of passing such order.
39. The sanction has to be obtained before cognizance and sanction to prosecution is not an empty ritualistic formality. In the considered opinion of this Court, it is a requisite pre-condition to proceed further in the manner known to law.
40. At this juncture this Court recalls and recollects the decision of Hon'ble Supreme Court in Prakash Singh Badal V. State of Punjab, reported in 2007 (1) SCC 1, wherein it is observed and held that Mere error, omission or irregularity in sanction is not considered fatal unless it has resulted in failure of justice or has been occasioned thereby.
41. As far as the present case is concerned admittedly, the charges were framed against A1 and Petitioner/A2 by the trial Court and the case is slated for examination of L.Ws.1 and 2 on 02.09.2014, as informed by the Learned Additional Public Prosecutor appearing for the Respondent.
42. After framing of the charges against A1 and Petitioner/A2, by the trial Court, this Court is of the considered view that the only option available to the Petitioner/A2 and A1 is to take part in the trial of the main proceedings. In the instant case on hand, at the risk of repetition, this Court points out that earlier the FIR was registered on 25.08.2003, the sanction order was obtained on 05.01.2006 and the offence was taken cognizance on 15.03.2006. Only after obtaining the sanction order from the competent authority, the Respondent/Complainant/Prosecution had laid the charge sheet against the Petitioner/A2 and A1.
43. The sanction order in question relates to the year 2006. It transpires that after a lapse of nearly 7 years, the petitioner's husband A1 and Petitioner/A2 had filed W.P.No.6812 of 2013, before this Court seeking the relief to quash the sanction order issued in G.O.Ms.No.5, Municipal Administration and Water Supply (ME2) Department dated 05.01.2006. This Court while dismissing the writ petition on 28.03.2013, clearly held that the challenge to the sanction order was actually a defence to the criminal case and cannot be used to assail the sanction order. Also, this Court granted liberty to the writ petitioners to raise all defences in the criminal case.
44. Before that, the Petitioner/A2 filed Crl.O.P.No.23561 of 2006 before this Court under Section 482 of Cr.P.C., praying to call for records in Spl.C.C.No.4 of 2006 on the file of the Learned Chief Judicial Magistrate and Special Judge, Coimbatore and to quash the same. Likewise, the Petitioner/A2's husband viz., A1 filed Crl.O.P.No.26794 of 2011 seeking the similar relief and this Court ultimately dismissed both the Criminal Original Petitions, finding no merits in them.
45. It is to be pointed out that when earlier Crl.OP.No.23561 of 2006 filed by the Petitioner/A2 and Crl.O.P.No.26794 of 2011 filed by her husband A1, with the same allegation and for the same relief were dismissed by this Court on 27.06.2012, then, it is not open to the present Petitioner/A2 to file the instant Crl.O.P.No.9506 of 2014 before this Court to agitate the same points once again. At this stage, this Court pertinently points out that Principles of 'Res Judicata' squarely applies.
46. At this stage, this Court very pertinently points out that even if there are strong suspicions / materials against the accused, then it is open to the trial Court to frame necessary charges. At the time of framing necessary charges, a Court of Law, is not expected to go into the probative value of material evidence collected by the prosecution. Also that the trial Court cannot evaluate the evidence relied on by the prosecution in a golden scale.
47. No wonder the trial Court at the time of framing necessary charges against the accused concerned will have to take into consideration the final report submitted by the Respondent/Police under Section 173(2) Cr.P.C., together with the Annexures sent with it. At the time of framing charges, the accused can be heard by a Court of Law and except that the accused cannot have a say in the matter. Also that, it is the prerogative right of the concerned competent Court to hear the accused at the time of framing the charges. In effect, the real test for deciding whether the charge ought to be considered groundless or without basis is that whether the materials are such that even if unrebutted make out no case whatsoever. It is true that a Court of Law is to apply its mind to the facts and the attendant circumstances of the case bearing in mind the salient features of the offence for which an accused is sought to be charged.
48. It is to be pointed out that a Court of Law under Section 482 Cr.P.C., is not to undertake the conduct of an enquiry in regard to the reliability or genuineness or otherwise of the allegations made in the complaint/FIR. In fact, the extraordinary power cannot be exercised by the Court according to whims and fancies, etc. Furthermore, the inherent power ought not to be exercised by the Court to stifle a legitimate prosecution. Whether the grounds on which, the proceedings are sought to be quashed, could be raised before the trial Court, the proceedings would not be quashed on a petition filed under Section 482 of Cr.P.C., in the considered opinion of this Court.
49. If a complaint prima facie discloses a case, which requires a deeper probe then the proceedings of the trial Court cannot be quashed by the Hon'ble High Court by exercising its inherent power under Section 482 of Cr.P.C.
50. Whether the accused are innocent / guilty of the charges, the evidence is not to be looked into by a Court of Law and the same is to be considered during the trial of main case. The appreciation / evaluation of evidence can only be made during the stage of trial in the main case, as opined by this Court.
51. Ordinarily, the criminal proceedings initiated before a trial Court by the concerned aggrieved party should not be scuttled. It is to be remembered that the issue of cognizance may be raised and determined at any time after the cognizance as per the decision of Hon'ble Supreme Court in P.K.Pradhan V. State of Sikkim, reported in AIR 2001 SC 2547.
52. There can be no two opinion of the fact that there is no limitation specified for any relief sought for under Section 482 of Cr.P.C., as the said provision is only to prevent an abuse of process of any Court or otherwise to secure the ends of justice.
53. In the upshot of qualitative and quantitative discussions as mentioned supra and also this Court on an over all assessment of the facts and circumstances of the case in an integral manner comes to an inevitable conclusion that the Petitioner/A2 has not made out a prima facie case for allowing the present quash petition by this Court. Also this Court holds that the present Crl.O.P.No.9506 of 2014, filed by the Petitioner/A2, is barred by the Principles of 'Res Judicata' as stated in Paragraph No.45 of this Order. Consequently, the Criminal Original Petition fails.
54. In the result, the Criminal Original Petition is dismissed. It is open to the Petitioner/A2 to raise all factual and legal pleas before the trial Court at the time of trial of the main case in Spl.C.C.No.4 of 2006 and the trial Court is directed to take into consideration of the same in a fair, just and dispassionate manner and to dispose of the main case in Spl.C.C.No.4 of 2006 as expeditiously as possible by examining the witnesses preferably on a day-to-day basis and also keeping in mind the relevant provisions of the Criminal Procedure Code. For the completion of the trial of the main case, the parties are directed to render their unstinted co-operation and assistance. Consequently, the connected Miscellaneous Petition is closed.
20.08.2014 Index: Yes Internet: Yes ars To
1. The Chief Judicial Magistrate and Special Judge, Coimbatore.
2. The Deputy Superintendent of Police, Vigilance and Anti Corruption, Salem Cell, Salem-4.
3. The Public Prosecutor, High Court, Madras.
M.VENUGOPAL.J., ars Crl.O.P.No.9506 of 2014 20.08.2014
1.Anil Kumar and Others V. M.K.Aiyappa and Another reported in 2014 (1) SCC (Cri) at page 35 and 36
2.R.Gunalan V. The State by Deputy Superintendent of Police, Vigilance and Anti-Corruption Department, Erode Wing, Erode District, reported in 2012 (3) CTC 38
3.Chandran Ratnaswami V. K.C.Palanisamy and Others, reported in 2013 Cri.L.J at page 2938
4.Prabir Kumar Pradhan V. State of Orissa, reported in 2012 Crl.L.J 4394
5.Ravikumar V. State Rep. by the Deputy Superintendent of Police, PE/CBI/ACB/Chennai, reported in 2012 (3) MLJ (Cri) 368,
6.S.Nagoor Meeran and Another V. State by Inspector of Police, Vigilance and Anti Corruption, Tirunelveli, reported in (2012) 4 MLJ (Cri.) 714
7. Page No.37 2013 (1) MLJ (Cri) 90 SC 8.Page No.43 2013 (8) SCC 320 9.Page No.61 1981 (3) SCC 199 10.Page No.79 (2006) MLJ (Crl.) 293 11.Page No.99 (2007) 1 MLJ (Crl.) 100 12.Page No.122 (2012) 3 MLJ (Crl.) 629
13.Page No.146 (2012) 2 TLNJ 297 (Civil)