Delhi District Court
Cbi vs 1. C. S. Khairwal on 5 March, 2016
IN THE COURT OF SH. PITAMBER DUTT, SPECIAL JUDGE
(PC ACT) CBI-02 CENTRAL, TIS HAZARI COURTS, DELHI
Unique ID No.02401R0052022001
CC No.14/11
CBI VERSUS 1. C. S. Khairwal
2. Sunil Khairwal
ORDER
1. Vide this order I shall decide an application filed by accused No.1 C. S. Khairwal for seeking dropping of proceedings against him for want of proper sanction.
2. It is averred in the application that present case is pending before the court in which prosecution has falsely implicated accused C. S. Khairwal for allegedly possessing assets disproportionate to his income. The CBI seized government documents of sterling value from the official residence of accused No.1 C. S. Khairwal and same were withheld both from the court and also from the sanctioning authority. The same were returned to accused C. S. Khairwal on the orders of the court after CC No.14/11 CBI VS C. S. Khairwal & Ors. 1 being in possession of CBI for six years.
3. It is further averred that during investigation in order to offer explanation within the ambit of section 13(1)(e) of the Prevention of Corruption Act, 1988, the accused No.1 C. S. Khairwal handed over various documents to the investigating agency to vindicate his innocence however in utter disregard of the Cardinal Principles of Criminal Jurisprudence, the explanation furnished by accused C. S. Khairwal deliberately withheld by the investigating agency and without placing the same before the sanctioning authority, sanction order dated 05.02.1998 was obtained.
4. It is further averred that the prosecution has examined PW-18 Sh. Jaswant Singh, Under Secretary, Union of India to prove grant of sanction by the competent authority for prosecution of accused C. S. Khairwal. It is further averred that it has been said time and again by the Hon'ble Apex Court that the grant of sanction is not a mere ritual but is a serious obligation on the part of the competent authority wherein the CC No.14/11 CBI VS C. S. Khairwal & Ors. 2 sanctioning authority has to apply its independent mind as to whether the public servant should be subjected to prosecution or not. It is further averred that PW-18 has made it amply clear that none of the parameters carved out by the Hon'ble Apex Court has been adhered to. On the contrary, the evidence on record gives pictorial depiction of the fact that sanction order has been passed in a mechanical manner without due application of mind and in fact sanction order Ex. PW18/1 is nothing but a reproduction of draft sanction forwarded by the investigating agency along with SP report. By way of this application, it is prayed that the proceedings against accused C. S. Khairwal may be dropped for want of proper sanction.
5. The CBI has filed reply of this application making averments that the case was registered on 07.02.1996 against accused C. S. Khairwal under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988. After completion of investigation, charge sheet was filed against him as well as against his son Sunil CC No.14/11 CBI VS C. S. Khairwal & Ors. 3 Khairwal under section 120B read with section 420/468/471 IPC and under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 after obtaining sanction for prosecution against accused C. S. Khairwal from the competent authority. It is further averred that the case is pending before the court for prosecution evidence. Accused No.1 C. S. Khairwal is a prime accused in this case and has been charged for the possession of disproportionate assets to the tune of Rs.3,28,89,131/- along with other co-accused persons. It is further averred that the report of SP with enclosures conveying the result of investigation of the case was forwarded to the Secretary, Department of Personnel & Training, New Delhi on 10.11.1997. The draft sanction order was sent to the competent authority as a model/sample for the purpose of assistance of sanctioning authority. The competent authority after going through the material mentioned in the SP report, calendar of oral and documentary evidence and the enclosures had applied its mind and accordingly granted CC No.14/11 CBI VS C. S. Khairwal & Ors. 4 the sanction for prosecution. It is further averred that well settled position of law that mere sending of draft sanction order does not render the sanction order illegal. The other averments have been denied in the reply. It is prayed that the application filed by accused C. S. Khairwal being devoid of merits be dismissed.
6. Sh. D. S. Kohli, Ld. counsel for accused C. S. Khairwal contended that the sanction order Ex. PW18/1 does not qualify the basic requirements of the Hon'ble Apex Court to sustain application of mind by the sanctioning authority and same has been passed without relevant material in the form of FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant documents collected by the investigating agency. He further contended that it was incumbent upon the investigating agency that the entire relevant record should be placed before the sanctioning authority but the same was not placed. Only SP report and draft sanction order has been placed by the CBI before the competent authority CC No.14/11 CBI VS C. S. Khairwal & Ors. 5 for passing the sanction order which is not proper. He further contended that the statements of 18 witnesses was recorded by the prosecution agency after 10.11.1997 i.e the date on which the report of SP and draft sanction order was sent to the sanctioning authority which clearly shows that these statements was never sent for consideration of the sanctioning authority. He further contended that the sanction order Ex. PW18/1 is not an outcome of the due application of mind of sanctioning authority on the contrary, it is a crafty act of a Desk Officer on which PW-18 has put his signature. He also contended that the prosecution has not obtained any sanction order as required under section 197 Cr. P. C to prosecute accused C. S. Khairwal. Thus for want of sanction under section 197 Cr. P. C, the proceedings is liable to be dropped. Ld. counsel for accused C. S. Khairwal has relied upon the judgments titled as "N. K. Ganguly Vs CBI" in Criminal Appeal no.798, 799, 800, 801, 930/2015 and Criminal appeal No.1537/2015 arising out of SLP (Crl.) No.9838/2015 & 9612/2015 CC No.14/11 CBI VS C. S. Khairwal & Ors. 6 decided on 19.11.2015, "Nanjappa Vs State of Karnataka" reported as VI (2015) SLT 223 AND "CBI Vs Ashok Kumar Aggarwal" reported as 2014 CRl. LAW Journal 930 SC, "Ashok Kumar Aggarwal Vs CBI" WP (Crl.) No.1401/2002, Crl. Revision Petition No.338/2014, Crl. M.A. No.9095 & 10597/2014 decided on 13.01.2016.
7. Per contra, Sh. Mohd. Shakeel, Ld. Senior PP for CBI has contended that the sanction order Ex. PW18/1 was passed by the competent authority after applying its mind on the basis of relevant material produced by the CBI for consideration. He further contended that there is no infirmity in the sanction order Ex. PW18/1 passed by the competent authority. It is well settled law that mere sending of draft sanction order does not make the sanction order illegal. He further contended that the matter is at the stage of evidence and the testimony of PW-18 clearly shows that the competent authority has satisfied itself from the material placed before it that a prosecutable case is made out against accused C. S. Khairwal under the relevant provision of law. He also CC No.14/11 CBI VS C. S. Khairwal & Ors. 7 contended that the satisfaction of the competent authority is required for passing sanction order under section 19 of the Prevention of Corruption Act, 1988 to prosecute public servant. He further contended that no sanction under section 197 Cr. P. C is required in this case as section 197 Cr. P. C talks about only qua an act which has been performed in discharge of official duty. Whereas accused C. S. Khairwal has accumulated huge disproportionate assets from his known sources and committed an act of cheating and forgery and by no stretch of imagination their acts come within the purview of discharge of his official duty, therefore sanction under section 197 Cr. P. C was not needed. He prayed that application filed by accused may be dismissed. Ld Senior PP for CBI has relied upon the judgments titled as "C. S. Krishnamurthy Vs. State of Karnataka" (2005) 4 SCC 81, "State of Bihar & Ors. Vs Rajmangal Ram" reported as (2014) 11 SCC 388 AND "Vinod Kumar Garg Vs State" reported as 2009 Crl. L. J 3224.
CC No.14/11 CBI VS C. S. Khairwal & Ors. 8
8. I have heard Sh. D. S. Kohli, Ld. counsel for accused C. S. Khairwal, Ld. Senior PP on behalf of CBI, perused application and reply thereto. I have also perused sanction order Ex. PW18/1, the testimony of PW-18 and personal file of accused C. S. Khairwal regarding grant of sanction to prosecute him, which has been summoned from the DOPT. The plea raised by accused C. S. Khairwal vide this application is that sanction order Ex. PW18/1 has been passed without seeing the entire relevant material related to this case, therefore, same is bad in law and proceeding against him are liable to be dropped for want of proper sanction.
9. To decide this plea, it is necessary to see the section 19 of the Prevention of Corruption Act, 1988 which talks about sanction for prosecution as a pre- condition against public servant which reads as under:-
Section 19 Previous sanction necessary for prosecution - No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 & 15 alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)] -CC No.14/11 CBI VS C. S. Khairwal & Ors. 9
(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.
(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, 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 CC No.14/11 CBI VS C. S. Khairwal & Ors. 10 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 interlocatory 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 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.
10. A perusal of section 19 of the Prevention of Corruption Act 1988 makes it absolutely clear that no court can take cognizance against the public servant for the offence punishable under section 7, 10, 11, 13 & 15 of the Prevention of Corruption Act unless the authority CC No.14/11 CBI VS C. S. Khairwal & Ors. 11 who is competent to remove such public servant has accorded sanction to prosecute such public servant. The prosecution has placed on record the sanction order dated 05.02.1998 Ex. PW18/1 which has been signed by Sh. Jaswant Singh, Under Secretary to the Government of India whereby sanction was awarded to prosecute accused C. S. Khairwal who was the public servant. On the basis of this sanction order, the Ld. Predecessor of this court took the cognizance and framed charges against both the accused persons.
11. The issue is whether the sanction in this case has been accorded as per the law or not? Ld. counsel for accused C. S. Khairwal has relied upon judgment passed by the Hon'ble Delhi High Court in case titled "Ashok Kumar Aggarwal Vs CBI" (Supra). He has relied upon para-44, 45, 46 & 55 of the said judgment which are reproduced herein below:
"para-44 This issue is also no longer re- integra, the Hon'ble Supreme Court in the case of State of Karnataka Vs. C. Nagarajaswamy, reported as MANU/SC/1119/ 2005 : (2005) 8 SCC 370, held as follows:-CC No.14/11 CBI VS C. S. Khairwal & Ors. 12
"Ordinarily, the question as to whether a proper sanction has been accorded for prosecution of the accused persons or not is a matter which should be dealt with at the stage of taking cognizance. But in a case of this nature where a question is raised as to whether the authority granting the sanction was competent therefore or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the accused for the purpose of determination as to who could remove him from service. Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regard sanction may be determined at an early stage. But, even if a cognizance of the offence is taken erroneously and the same comes to the court's notice at a later stage a finding to that effect is permissible. Even such a plea can be taken for the first time before an appellate court."
Para-45 The Supreme Court, replying on C. Nagarajaswamy (supra) has held in Nanjappa Vs State of Karnataka, reported as MANU/SC/0788/2015 : 2015 (8) SCALE 171, that what is important is that the grant of a valid sanction is essential before the court takes cognizance. The court held as follows:-
"13. What is important is that, not only was the grant of a valid sanction held to be essential for taking cognizance by the Court, but the question about the validity of any such order, according to this Court, could be raised at the stage of final arguments after the trial or even at the appellate stage."
Para-46 The Court relied on the earlier decisions in Yusofalli Mulla Vs. The King reported as MANU/PR/0016/1949 : AIR 1949 CC No.14/11 CBI VS C. S. Khairwal & Ors. 13 PC 264, Basdeo Agarwalla Vs King Emperor reported as MANU/FE/0002/1945 : AIR 1945 FC 16 and Budha Mal Vs. State of Delhi Criminal Appeal No.17 of 1952 decided on 03.10.1952, and further went on to state that the validity of sanction affects the competence of the court to try the accused, and if the trial court proceeds despite invalidity of sanction then the proceedings before the trial court are rendered non-est. It was as follows:-
"6. A plain reading of section 19(1) (supra) leaves no manner of doubt that the same is couched in mandatory terms and forbids courts from taking cognizance of any offence punishable under section 7, 10, 11, 13 & 15 against public servant except with the previous sanction of the competent authority enumerated in clauses (a), (b) &
(c) to sub section (1) of section 19. The provision contained in sub section (1) would operate in absolute terms but for the presence of sub-section (3) to section 19 to which we shall presently turn. But before we do so, we wish to emphasis that the language employed in sub section (1) of section 19 admits of no equivocation and operates as a complete and absolute bar to any court taking cognizance of any offence punishable under section 7, 10, 11, 13 & 15 of the Act against the public servant except with the previous sanction of the compete authority...
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8. In Yusofalli Mulla's case (supra) the Privy Council was examining whether failure to obtain sanction affected the competence of the Court to try the accused. The contention urged was that there was a distinction between a valid institution of a prosecution on the one hand and the competent of the court to hear and determine the CC No.14/11 CBI VS C. S. Khairwal & Ors. 14 prosecution, on the other. Rejecting the connection that any such distinction existed, this court observed:
"The next contention was that the failure to obtain a sanction at the most prevented the valid institution of a prosecution, but did not affect the competency of the court to hear and determine a prosecution which in fact was brought before it. This suggested distinction between the validity of the prosecution and the competence of the court was pressed strenuously by Mr. Page, but seems to rest on no foundation. A Court cannot be competent to hear and determine a prosecution the institution of which is prohibited by law and section 14 prohibits the institution of a prosecution in the absence of a proper sanction. The learned Magistrate was no doubt competent to decide whether he had jurisdiction to entertain the prosecution and for that purpose to determine whether a valid sanction had been given, but as soon as he decided that no valid sanction had been given the court became incompetent to proceed with the matter. Their Lordship agreed with the view expressed by the Federal Court In Agarwalla's case AIR (32) 1945 F.C. 16 that a prosecution launched without a valid sanction in a nullity."
9. The Federal Court had in Basdeo Agarwalla's case (supra), summed up the legal position regarding the effect of absence of a sanction in the following words:-
"In our view the absence of sanction prior to the institution of the prosecution cannot be regarded as a mere technical defect. The cause in question was obviously enacted for the purpose of protecting the citizen, and in order to keep the Provincial Government every case a proper opportunity of considering whether a CC No.14/11 CBI VS C. S. Khairwal & Ors. 15 prosecution should in the circumstances of each particular case be instituted at all. Such a clause, even when it may appear that a technical offence has been committed, enables the Provincial Government if in a particular case it so thinks fit, to forbid any prosecution. The sanction is not intended to be and should not be automatic formality and should not so be regarded either by police or officials. There may well be technical offences committed against the provisions of such an Order as that in question, in which the Provincial Government might have excellent reason for considering a prosecution undesirable or inexpedient. But this decision must be made before a prosecution is started. A sanction after a prosecution has been started in a very different thing. The fact that a citizen brought into court and charged with an offence may very seriously affect his reputation and a subsequent refusal of sanction to a prosecution cannot possibly undue the harm with may have been done by the initiation of the first stage of a prosecution. Moreover in our judgment the official by whom or on whose advice a sanction is given or refused may well take a different view if he considers the matter prior to any step being taken to that which he may take if he is asked to sanction a prosecution which has in fact already been started."
10. So also the decision of this Court in Budha Mal Vs State of Delhi (Criminal Appeal No.17 of 1952 disposed of on 03.10.1952), this Court had clearly ruled that absence of a valid sanction affected the competence of the Court to try and punish the accused. This court observed:
"We are satisfied that the learned Sessions Judge was right in the view he took. Section 403 Cr. P. C applies to cases where the acquittal order has been made by a court of CC No.14/11 CBI VS C. S. Khairwal & Ors. 16 competent jurisdiction but it does not bar a retrial of the accused in cases where such an order has been made by a court which had no jurisdiction to take cognizance of the case. It is quite apparent on this record that in the absence of a valid sanction the trial of the appellant in the first instance was by a Magistrate who had no jurisdiction to try him."
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15. The legal position regarding the importance of sanction under section 19 of the Prevention of Corruption in 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) & (C) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of 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 prosecution in accordance with law. If the trial Court proceeds, despite the invalidity attach 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."
Para-55 In relation to the question of validity of sanction order dated 21.06.2002, the facts that are germane are that neither the SP's Report dated 30.10.2001 nor the documents annexed therewith allude to the Reply to LR dated 27.06.2001, that evinces that the Fax CC No.14/11 CBI VS C. S. Khairwal & Ors. 17 in question was in fact a genuine one and backs the case of the petitioner. The notings of the officials of the Department of Revenue bearing reference Nos.F. No. 16/1/99-Ad.I-C and F. No.16/1/99/Ad.ED, validate that this document was not sent to the sanctioning authority. The opinion of the Ministry of Finance dated 05.04.2011 also emphasizes the fact that the sanction order dated 21.06.2002 was passed without due application of mind by the sanctioning authority. The Office Memorandum of CVC dated 13.04.2015 further states that the sanction order dated 21.06.2002 was not in accordance with the guidelines laid down under the CBI Manual reiterated by the DoP&T in Circular dated 26.03.2015, wherein it is provided that the CBI has to send the entire record of investigation to the sanctioning authority to obtain sanction for prosecution against a public officer. The letter of the PMO dated 19.02.2015 also directs the Department of Revenue to decide the representation of the petitioner to the latter in light of the opinion of the Ministry of Law & Justice dated 05.04.2011.
12. Para-71 & 72 of the said judgment is also relevant which are reproduced herein below:
"Para-71. The sanction order dated 21.06.2002 is a verbatim copy of the draft sanction order sent along with the SP's report on 30.10.2001 and illustrates non- application of mind by the sanctioning authority. I have gone through and compared the draft sanction order and the sanction order dated 21.06.2002 and it clearly appears that the sanctioning authority has given its imprimature to the draft sanction order without applying its mind to the relevant material. The sanction order dated 21.06.2002 as well as the SP's CC No.14/11 CBI VS C. S. Khairwal & Ors. 18 report dated 30.10.2001 do not allude to the reply to LR dated 27.06.2001 or the relevant Fax dated 13.01.1998 sent by the Swiss Bank Corporation to Mr. Barjatya. Thus, the sanction order itself does not reflect that the afore-stated relevant documents were examined by the sanctioning authority before granting sanction for prosecution. The sanctioning authority who, purportedly went through the above-mentioned documents, as per the notings of the then Hon'ble Finance Minister, is not even the sanctioning authority that signed the sanction order dated 21.06.2002.
Para-72. In the light of the afore-stated circumstances, I am of the view that the case of the prosecution flounders when seen in light of the documents that did not form a part of the documents sent to the sanctioning authority. Therefore, it would be travesty of justice to call it a mere irregularity. There indeed has occasioned a failure of justice, of which the trial court has failed to take cognizance at the stage of framing of charges even after specific contentions were made on behalf of the petitioner in this regard. In view of the foregoing, the sanction order dated 21.06.2002 is invalid for want of due application of mind by the sanctioning authority. Consequently, the cognizance taken by the Special Judge, CBI in framing charges against the petitioner vide order on charge dated 17.12.2005 in RC No.S18 E0001 1999 is non-est, void ab-initio, bad in law and in gross violation of the provisions of section 19(1) POCA."
13. Ld. counsel for accused has also relied upon judgment titled "Nanjappa Vs State of Karnataka" (Supra). In the said judgment, the Hon'ble CC No.14/11 CBI VS C. S. Khairwal & Ors. 19 Supreme Court of India has observed in para-16 which reproduced herein below :
"A careful reading of Sub-section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order suffers from an error, omission or irregularity, unless of course the Court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such error, omission or irregularity. Sub-section (3), in other words, simply forbids interference with an order passed by Special Judge in appeal, confirmation or revisional proceedings on the ground that the sanction is bad save and except, in cases where the Appellate or Revisional Court finds that failure of justice has occurred by such invalidity. What is noteworthy is that Sub-section (3) has no application to proceedings before the Special Judge, who is free to pass an order discharging the accused, if he is of opinion that a valid order sanctioning prosecution of the accused had not been produced as required under section 19(1). Sub-section (3), in our opinion, postulates a prohibition against a higher court reversing an order passed by the Special Judge on the ground of any defect, omission or irregularity in the order of sanction. It does not forbid a Special Judge from passing an order at whatever stage of the proceedings holding that the prosecution is not maintainable for want of a valid order sanctioning the same."
14. The Hon'ble Supreme Court of India in "CBI Vs CC No.14/11 CBI VS C. S. Khairwal & Ors. 20 Ashok Kumar Aggarwal" (Supra) has held in para-8 that "In view of the above, the legal propositions can be summarized as under:-
(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance CC No.14/11 CBI VS C. S. Khairwal & Ors. 21 with law.
15. On the basis of above judgments, Ld. counsel for accused C. S. Khairwal contended that sanction order Ex. PW18/1 is invalid as the entire relevant material was not produced before the competent authority by the CBI, as PW-18 himself has admitted in his cross examination that statements recorded under section 161 Cr. P. C are not there in the file pertaining to the sanction of accused C. S. Khairwal. The complete relevant record was not produced before the sanctioning authority which is evident from the fact that the statements of more than 18 witnesses was recorded even after obtaining sanction order, thus the sanction order is not invalid.
16. The Hon'ble Delhi High Court in "Vinod Kumar Garg Vs State" (Supra) has held in para-9 that "In this case the sanction order Ex. PW1/A has been proved by PW1 by appearing in the witness box. He himself was the sanctioning authority. The only point raised by learned counsel for the appellant to discredit his testimony is that in his cross- examination he has admitted that the statement recorded under section 161 Cr. P. C and the seizure memo were not produced before him. However, I do not find that in his cross-examination any suggestion has CC No.14/11 CBI VS C. S. Khairwal & Ors. 22 been put which might go to show that if such material would have been before him, he would have taken a different view. Even otherwise, it is well settled that adequacy or inadequacy of the material before the sanctioning authority cannot be gone into by us by sitting as a court of appeal over the sanction order. Once the order granting sanction shows that all the available material were placed before the sanctioning authority, the sanction order stands proved.
17. The Hon'ble Supreme Court of India in case titled "State of Bihar & Ors. Vs Rajmangal Ram" (Supra) has held in para-4 that "The object behind the requirement of grant of sanction to prosecute a public servant need not detain the court save and except to reiterate that the provisions in this regard either under the Code of Criminal Procedure or the Prevention of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute an honest public servant for acts arising out of due discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. The test, therefore, always is whether the act complained of has a reasonable connection with the discharge of official duties by the government or the public servant. If such connection exists and the discharge or exercise of the governmental function is, prima facie, founded on the bonafide judgment of public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay any motivated, ill-founded and frivolous prosecution against the public servant. However, realizing that the dividing line between an CC No.14/11 CBI VS C. S. Khairwal & Ors. 23 act in the discharge of official duty and an act that is no, may, at times, get blurred thereby enabling certain unjustified claims to be raised on behalf of the public servant so as to derive undue advantage of the requirement of section, specific provisions have been incorporated in section 19(3) of the Prevention of Corruption Act as well as in section 465 of the Code of Criminal Procedure which, inter alia, make it clear that any error, omission and irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the court a failure of justice has been occasioned. This is how the balance is sought to be struck.
18. Ld. Senior PP for CBI has relied upon the judgment in case titled as "State of Tamil Nadu Vs Damodaran"
reported as 1993 Suppl. (1) SCC 221. In the said judgment, the Hon'ble Supreme Court of India has held that "Non application of mind and grant of sanction mechanically by sanctioning authority basis of acquittal by High Court, High Court deeply influenced in its decision by the fact that a model sanction order was enclosed with the record sent to the sanctioning authority- held, acquittal not justified, there was no infirmity in the order granting sanction.
19. The Hon'ble Supreme Court of India in "C. S. Krishnamurthy Vs. State of Karnataka" (supra) has CC No.14/11 CBI VS C. S. Khairwal & Ors. 24 held that Para-7 "This sanction order was proved by Mr. Parthasarthy, Deputy General Manager of Bangalore Telecom as PW-40, he was competent authority to accord sanction and he accorded the sanction for prosecution of the accused for the alleged offence on 28.02.1990 as per Ex. P-83. He deposed that SP, CBI sent a report against the accused and he perused the report and accorded the sanction as per Ex. P-83. He deposed that he was satisfied that there was a case for prosecuting the accused for the alleged offence. He admitted that he received a draft sanction order and a draft sanction order was also examined by the Vigilance Cell and then it was put up before him. He also deposed that before according sanction he discussed the matter with the Vigilance Cell. He also admitted that he was not a law man, therefore, he discussed the legal implication with a legally qualified officer in the Vigilance Cell. He has denied the suggestion that he did not apply his mind in according sanction. It is no doubt true that sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecution against public servant from harassment. But, the sanction should not be taken as a shield to protect corrupt and dishonest public servant. In the present case, a perusal of the sanction order itself shows that Sh. C. S. Krishnamurthy's income from all known sources between the period from 25.05.1964 to 27.06.1986 was Rs.7,91,534.93. That income was from salary, GPF, advances, rental income, interest amount from bank accounts and loan amount received from LIC towards house constructions, and dividend income, interest amount and gain in respect of chits received from Navyodaya Sahakara Bank, CC No.14/11 CBI VS C. S. Khairwal & Ors. 25 Vyyalikaval House Building Cooperative Society, Vishalam Chit funds and Reliance Industries, loan received from friends and family members, gain towards sale of scooter/car, sale proceeds of jewellery and income received by family members and the total expenditure incurred by the accused during this period of Rs.2,41,382.85 and the total assets acquired by the accused both movable and immovable from 25.05.1964 to 27.06.1986 is Rs.9,51,606.66p. Therefore, the accused has to account for difference between the two. The sanction itself shows that there is something to be accounted for by the accused. When the sanction itself is very expressive, then in that case, the arguments that particular material was not properly placed before the sanctioning authority for according sanction and the sanctioning authority has not applied its mind becomes unsustainable. When sanction order is itself is eloquent enough, then in that case only formal evidence has to be produced by the sanctioning authority or by any other evidence that the sanction was accorded by a competent person with due application of mind. In the present case, learned Additional Sessions Judge took a very narrow view that all the papers were not placed before the court to show that their was proper application of mind by the sanctioning authority. The view taken by Learned Special Judge was not correct and the learned Single Judge correctly set aside the order. In this connection, we may refer three-judge Bench decision of this court in "Indu Bhushan Chatterjee Vs State of West Bengal" in which a similar argument was raised that the sanctioning authority did not apply his mind to the facts of the case but merely perused the draft prepared by the police and did not investigate the truth of the offence. The learned Judges after perusing the sanction order read with evidence of Mr. Bokil held CC No.14/11 CBI VS C. S. Khairwal & Ors. 26 that there was a valid sanction accorded by a competent person. In this case, the accused was charged under section 161 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act. The accused was paid a sum of Rs.100/- in marked currency as illegal gratification at Coffee House for clearing some claims entrusted to him and same was found in his possession. Sanction for prosecution of the appellant was sought from PW-5. Mr. Bokil as a competent authority to grant sanction, came in the witness witness box and he deposed that he accorded sanction for prosecution after proper application of mind. On these facts the learned Judges observed that Ex. 6 on the face of it disclosed a valid sanction for prosecution. In the sanction order it was disclosed that the accused had accepted a bribe of Rs. 100/- for clearing claim cases and he was trapped. Though the sanctioning authority who came in the witness box could not answer some questions in cross-
examination, yet this Court held that sanction itself is eloquent read with evidence of the sanctioning authority and the same is valid. In the present case, the facts contained in the sanction order read with evidence of the sanctioning authority makes it clear that sanction was properly accorded and is valid.
Para-8 In this connection, a reference was made to a decision of the Constitution Bench in the case of "R. S Pandit Vs. State of Bihar" wherein Their Lordship after referring to a decision of the Privy Council in the case of "Gokulchand Dwarkadas Morarka Vs R" observed as under:-
"Section 6 of the Act also does not require the sanction to be given in a particular form. The principle expressed by the Privy Council, namely that the sanction should be CC No.14/11 CBI VS C. S. Khairwal & Ors. 27 given in respect of the facts constituting the offence charged equally applies to the sanction under section 6 of the Act. In the present case all the facts constituting the offence of misconduct with which the appellant was charged were placed before the Government. The second principle, namely, that the facts should be referred to on the fact of the sanction and if they do not so appear, the prosecution must prove them by extraneous evidence, is certainly sound having regard to the purpose of the requirements of a sanction".
Para-9 Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness 40 and has deposed about his application of mind and after going through the report of the Superintendent of Police, CBI and after discussing the matter with his Legal Department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by the learned Single Judge of the High Court is justified.
20. In the light of above legal preposition, let me examine the plea raised by Ld. counsel for accused C. S. CC No.14/11 CBI VS C. S. Khairwal & Ors. 28 Khairwal that sanction order Ex. PW18/1 has not been passed in accordance with the law as all the relevant material was not produced before the sanctioning authority.
21. For appreciating the contention raised by Ld. counsel for accused C. S. Khairwal, this court has summoned the sanction file of accused C. S. Khairwal from the Department of Personnel & Training which has been produced by their officer. A perusal of the personal file regarding grant of sanction to prosecute accused C. S. Khairwal shows that request was received by the Central Government for according sanction under section 19(1) of the Prevention of Corruption Act, 1988 against accused C. S. Khairwal for launching prosecution against him under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988.
22. The said request was received by Sh. D. P. Khatri, Desk Officer on 13.11.1997 who asked for produced of legal opinion sought by the CBI on that issue. CBI had CC No.14/11 CBI VS C. S. Khairwal & Ors. 29 submitted the legal opinion so obtained. Thereafter a detailed note running from pages 2 to 8 was prepared by Sh. D. P. Khatri, Desk Officer dated 28.11.1997 mentioning that it seems that CBI has been able to built a strong prima facie case against accused C. S. Khairwal. Vide that note, the matter was referred to CVC for advice as to whether it is a fit case for grant of sanction by the Central Government under section 19(1) of the Prevention of Corruption Act, 1988 against accused C. S. Khairwal.
23. The CVC vide its noting dated 03.12.1997 signed by Sh. Mange Lal, Under Secretary had given advice to prosecute accused C. S. Khairwal. On the basis of recommendation and advice of CVC, a detailed note dated 02.01.1998 was prepared by Sh. D. P. Khatri, Desk Officer, Department of DOPT for obtaining orders of Hon'ble Prime Minister of India, being Minister Incharge of Department of Personnel & Training, for according sanction of the Central Government under section 19(1) of the Prevention of Corruption Act, 1988 CC No.14/11 CBI VS C. S. Khairwal & Ors. 30 against accused C. S. Khairwal.
24. The said note was put up before the then Hon'ble Prime Minister of India as Minister of Incharge, who approved for grant of sanction on behalf of Central Government, appointing/removing authority of accused, for prosecution against accused C. S. Khairwal as proposed. The said approval was conveyed by Sh. R. K. Ghose, Director, Prime Minister's Office, New Delhi on 03.02.1998. Pursuant to the approval by the then Hon'ble Prime Minister of India, the sanction order dated 05.02.1998 Ex. PW18/1 was signed by PW-18 Jaswant Singh, the then Under Secretary to the Government of India whereby he conveyed the grant of sanction to prosecute accused C. S. Khairwal.
25. A perusal of the sanction file of accused C. S. Khairwal further shows that CBI had presented before the Central Government, detailed SP report consisting of 55 pages along with annexure-I commencing from pages No.56 to 60 showing the details of income of accused C. S. Khairwal and his family members. The CBI had also CC No.14/11 CBI VS C. S. Khairwal & Ors. 31 submitted statement showing details of expenses incurred during the check period as annexure-II commencing from pages No.61 to 63 and statement showing details of assets acquired during check period as annexure-III which starts from pages No.64 to 74, calender of oral evidence commences from pages No.75 to 85, calender of documentary evidence commencing from pages No.86 to 92, draft sanction order from pages No.93 to 99, list of documents from pages No.100 to 102, list of witnesses tarts from pages No.103 to 105.
26. On the basis of material produced by the CBI, the Central Government examined the case against accused C. S. Khairwal. The Central Government had also seen the legal opinion sought by the CBI from its legal advisor on the allegation against the accused and also sought opinion of CVC, which recommended prosecution against the accused. Thereafter the entire facts were presenting before the then Hon'ble Prime Minister of India, who was competent authority to accord sanction. The then Hon'ble Prime Minister of India had accorded CC No.14/11 CBI VS C. S. Khairwal & Ors. 32 his permission to pass sanction order to prosecute accused C. S. Khairwal as required under section 19(1) of the Prevention of Corruption Act, 1988. On that basis sanction order Ex. PW18/1 was issued by Sh. Jaswant Singh, the then Under Secretary, Government of India.
27. A perusal of sanction order Ex. PW18/1 clearly shows that para-2 of the sanction order shows that total income of accused C. S. Khairwal, his wife Smt. Anu Khairwal, his son Sunil Khairwal, his daughter Ms. Manju Khairwal and his acquaintances Sh. K. C. Sharma and his father Sh. Birbal Khairwal was found to be Rs. 30,71,924/- from all known sources of their income during the check period. Out of this income, a sum of Rs. 10,34,102/- accrued to accused C. S. Khairwal, out of which he had carry home income of Rs.5,51,156.30 only. In para-3 of the sanction order Ex. PW18/1, it is mentioned that the total expenditure incurred by accused C. S. Khairwal and his family members including his two children and wife during the check period from 16.07.1974 to 28.02.1996 has been worked out as Rs. CC No.14/11 CBI VS C. S. Khairwal & Ors. 33 17,19,583/-. Para-4 of the sanction stipulates that accused C. S. Khairwal and his family members during the check period from 16.07.1974 to 28.02.1996 had likely saving of Rs.13,52,341/-. Para-5 of the sanction order stipulates that accused C. S. Khairwal had acquired assets to the tune of Rs.3,28,80,350/- out of which immovable assets, alone account for Rs. 2,38,53,675/- and movable assets come to the extent of Rs.,90,26,275/- and also include concealed cash worth Rs.7,60,000/- and gold ornaments worth Rs.2,54,900/- recovered during the investigation. Para-6 stipulates that accused C. S. Khairwal could not give satisfactory answer/explanation for being found in the possession of the disproportionate assets worth Rs.3,15,28,101/- as on 18.02.1996.
28. A perusal of sanction order Ex. PW18/1 clearly shows that it consists all the details which include the total income of accused C. S. Khairwal & his family members during the check period and expenditure incurred by them during the check period. The probable CC No.14/11 CBI VS C. S. Khairwal & Ors. 34 saving of accused after deducting the expenditure from the income of accused and his family members, should have been to the extent of Rs.13,52,341/-. Whereas during the check period he was found to have acquired assets to the extent of Rs.3,28,80,350/- (Three Crores, Twenty Eight Lacs, Eighty Thousand, Three Hundred Fifty Only) and after deducting the probable saving of Rs.13,52,341/-, disproportionate assets to the tune of Rs.3,15,28,101/- was found in possession of accused on 18.02.1996 qua which accused C. S. Khairwal could not give any satisfactory reply.
29. The said fact has been examined by the Central Government which is clear from the personal file of accused C. S. Khairwal minutely. The matter was also examined by CVC who accorded its permission to grant sanction to prosecute accused C. S. Khairwal and after obtaining permission from CVC, the then Hon'ble Prime Minister of India approved the sanction to prosecute accused C. S. Khairwal which has been conveyed vide sanction order dated 05.02.1998 Ex. PW18/1. CC No.14/11 CBI VS C. S. Khairwal & Ors. 35
30. The prosecution has examined Sh. Jaswant Singh, the then Under Secretary, Government of India as PW-18 who had put his signature over sanction order Ex. PW18/1. In his examination in chief recorded on 31.03.2015, PW-18 stated that he passed the sanction order Ex. PW18/1. But during his cross examination recorded on 20.07.2015, he stated that he simply communicated the sanction vide sanction order Ex. PW18/1 to the CBI.
31. During cross examination a question was put to PW-18 that whether personal file of accused No.1 C. S. Khairwal contains statement of witnesses recorded under section 161 Cr. P. C or documents collected by the investigating agency to substantiate conclusion of SP report. The said question was answered by PW-18 after seeing the personal file of accused C. S. Khairwal that the said file does not contain statement of witnesses recorded under section 161 Cr. P. C or the documents collected by the investigating agency.
32. On the basis of said answer, Ld. counsel for CC No.14/11 CBI VS C. S. Khairwal & Ors. 36 accused C. S. Khairwal claimed that the statements of witnesses recorded by CBI during investigation were not placed before the competent authority. Ld. counsel for accused C. S. Khairwal has further pointed out that even statements of 19 witnesses were recorded subsequent to submission of SP report by the CBI, therefore, the complete relevant material was not placed by the CBI before the competent authority thus the sanction order Ex. PW18/1 is bad in law.
33. The said contention of Ld. counsel for accused C. S. Khairwal is not tenable for the simple reason that the personal file of accused C. S. Khairwal having noting regarding grant of sanction to prosecute him as sought by the CBI. The said file is containing detailed SP report along with annexures related to the income of accused C. S. Khairwal and his family members and assets acquired by him during the check period. The said file also contained calender of oral evidence which consists name of 114 prosecution witnesses. The calender of witnesses clearly stipulates against each witness that CC No.14/11 CBI VS C. S. Khairwal & Ors. 37 which fact he would prove. The file also contained the list of documentary evidence having been collected by CBI during investigation, draft sanction order and list of witnesses.
34. The official of DOPT who produced the file before the court has stated that the CBI had produced bulky material which was returned to the CBI after granting sanction. Be that as it may. The sanction order Ex. PW18/1 has been issued after due concurrence of CVC and the Hon'ble Prime Minister of India.
35. The Central Government headed by the Hon'ble Prime Minister of India who was also the Minister Incharge of Department of Personnel and Training applied its mind on the allegations leveled against accused C. S. Khairwal and accorded permission to issue sanction to prosecute him as per section 19(1) of the Prevention of Corruption Act, 1988. The sanction order Ex. PW18/1 was signed by the then Under Secretary to the Government of India on 05.02.1998 who has been examined as PW-18 before the court. CC No.14/11 CBI VS C. S. Khairwal & Ors. 38
36. The sanction order Ex. PW18/1 contained the details of income of accused C. S. Khairwal and his family members. The sanction order also contained the details of expenditure and their probable saving during the check period. The sanction order Ex. PW18/1 also contained the details of disproportionate assets acquired by accused C. S. Khairwal during the check period which comes to the tune of Rs.3,28,80,350/- as on 18.02.1996. After deducting the probable saving of accused C. S. Khairwal and his family members, disproportionate assets come to the tune of Rs.3,15,28,101/- for which he failed to give any explanation.
37. No doubt that CBI has not placed statement of all the witnesses before the Central Government as statements of 19 witnesses was recorded subsequent to sending SP reports. But the requirement of Law is to submit all the relevant material before the sanctioning authority to form its opinion on the issue of sanction. The CBI had submitted the requisite material to the Central Government and the competent authority after CC No.14/11 CBI VS C. S. Khairwal & Ors. 39 examining the material so submitted by CBI, approved the grant of sanction to prosecute the accused.
38. When the competent authority was satisfied about the existence of prosecutable case against the accused on the basis of the material submitted before it, and accorded its approval then the sanction order Ex. PW18/1 can not be termed as bad in law merely on the ground that statements of all the witnesses recorded under section 161 Cr. P. C was not submitted before the competent authority. The satisfaction of the competent authority is the spirit of section 19 of Prevention of Corruption Act, 1988.
39. The sanction order is a speaking one which itself shows that there was sufficient material for proceedings against accused C. S. Khairwal for acquiring disproportionate assets worth Rs.3,15,28,101/- for which he could not furnish satisfactory reply. It is relevant to mention that the total income of accused C. S. Khairwal and his family members have been computed as Rs. 30,71,924/- from their all known sources of income. CC No.14/11 CBI VS C. S. Khairwal & Ors. 40 Whereas, the disproportionate assets found to have been possessed by accused during the check period was Rs.3,28,80,350/- which was more than 10 times to the entire income of accused C. S. Khairwal and his family members from their all known sources of income. The said fact itself shows that the sanction was accorded by the competent authority after satisfying itself regarding disproportionate assets acquired by accused C. S. Khairwal.
40. Ld. counsel for accused C. S. Khairwal has further pointed out that the sanction order Ex. PW18/1 is verbatim to the draft sanction order submitted by the CBI along with the SP report which means that competent authority has not applied its mind and passed the sanction order mechanically.
41. I have seen the sanction order Ex. PW18/1 and also draft sanction order contained in the personal file of accused C. S. Khairwal. No doubt that the sanction order Ex. PW18/1 and the draft sanction order are verbatim. But vide sanction order Ex. PW18/1, the then Under CC No.14/11 CBI VS C. S. Khairwal & Ors. 41 Secretary of Government of India conveyed the sanction to prosecute accused C. S. Khairwal, which was accorded by the then Hon'ble Prime Minister of India i.e Head of the Central Government who accorded permission after perusal of the relevant material against accused C. S. Khairwal. Merely that the sanction order Ex. PW18/1, which was dictated by the Desk Officer in the office, is verbatim to the draft sanction order submitted by the CBI, it would not vitiate the sanction so accorded by the Central Government who was the removal authority of accused C. S. Khairwal.
42. In view of above facts and circumstances, I am of the considered view that Central Government was the competent authority to remove accused C. S. Khairwal from his services. The Central Government headed by the then Hon'ble Prime Minister of India examined the allegations leveled against accused C. S. Khairwal on the basis of material produced by the CBI. They also sought opinion obtained by the CBI from their legal experts and also obtained the permission from CVC CC No.14/11 CBI VS C. S. Khairwal & Ors. 42 which was duly accorded and thereafter matter was considered by the Central Government for grant of sanction to prosecute accused which was ultimately approved by the then Hon'ble Prime Minister of India and the approval was conveyed by the Under Secretary to the Government of India vide sanction order dated 05.02.1998 Ex. PW18/1. The sanction order Ex. PW18/1 has thus been passed in accordance with law and I find no infirmity in it.
43. Ld. counsel for accused has also contended that accused has been charged under section 120B/471 IPC but the prosecution has not obtained any sanction under section 197 Cr. P. C which is mandatory for proceedings against any public servant. In support of his plea, Ld. counsel has relied upon the judgment in case titled as "N. K. Ganguly Vs CBI" (supra) In the said judgment in para-25 the Hon'ble Supreme Court of India has held that "From a perusal of the case law referred to supra, it becomes clear that for he purpose of obtaining previous sanction from the appropriate government under section 197 CC No.14/11 CBI VS C. S. Khairwal & Ors. 43 of Code of Criminal Procedure, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the Respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the Respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government Under Section 197 of Code of Criminal Procedure was required to be taken by the Respondent, before taking cognizance and passing an order issuing summons to the Appellants for their presence".
44. Section 197 Cr.P.C. talks about sanction for prosecution of Judges and public servants which reads as under:-
197 Cr. P. C. Prosecution for Judges and public servants.-
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous CC No.14/11 CBI VS C. S. Khairwal & Ors. 44 sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of he Armed forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government"
occurring therein, the expression "State Government" were substituted.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
45. A perusal of section 197 Cr.P.C. shows that no CC No.14/11 CBI VS C. S. Khairwal & Ors. 45 Court shall take cognizance for the offences against a public servant if the offence alleged to have been committed by him / her while acting or purporting to act in discharge of his / her official duties. The sine qua non for application of section 197 Cr.P.C. is that offences for which accused is charged must relate to their performance of official duties.
46. In "General Officer Commanding, Rashtriya Rifles Vs. Central Bureau of Investigation and Another with Additional Director General, Army Head Quarters Vs. Central Bureau of Investigation"
reported as (2012) 6 Supreme Court Cases 228, in para 82, Hon'ble Supreme Court has held as under:
Para82. "Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant. The act complained of may fall within the descriptions of the action CC No.14/11 CBI VS C. S. Khairwal & Ors. 46 purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have a reasonable connection, interrelationship or is inseparable connection with discharge of his duty, he becomes entitled for protection of sanction."
47. The Hon'ble Supreme Court in "Chaudhary Parveen Sultana Vs. State of West Bengal" reported as AIR 2009 SC 1409 has held that "All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of section 197 Cr.P.C. On the other hand, there can be cases of misuse and / or abuse of powers vested in public servant which can never be said to be a part of the official duties required to be performed by him as mentioned in Bhagwan Prasad Srivastava's case (Supra), the underlying object of section 197 Cr.P.C. is to enable the authorities to scrutinize the allegations made against a public servant to shield him / her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of section 197 Cr. P.C, and have to be considered de hors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned."
CC No.14/11 CBI VS C. S. Khairwal & Ors. 47
48. In a recent judgment of Hon'ble Supreme Court of India titled "Inspector of Police & Ors. Vs. Battenapatla Venkata Ratnam" reported as 2015 Criminal Law Journal 2942, the Hon'ble Supreme Court of India has held that "Public servants have, in fact, been treated as a special category under section 197 Cr. P.C. to protect them from malicious or vexatious prosecution. Such protection from harassment is given in public interest; the same cannot be treated as shield to protect corrupt officials. in Subramanium Swamy Vs. Manmohan Singh and another at paragraph 74, it has been held that the provisions dealing with section 197 Cr.P.C. must be construed in such a manner as to advance the cause of honesty, justice and good governance. To quote:
"74. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption".CC No.14/11 CBI VS C. S. Khairwal & Ors. 48
49. A perusal of the above pronouncement of the Hon'ble Apex Courts of India makes it absolutely clear that if the act complained against a public servant relates to discharge of his / her official duties then sanction u/s 197 Cr. P. C is required. But if the offence alleged against the public servant has nothing to do with the discharge of his / her official duties or tentamounts to misuse of his official position as an instrument of corruption, in such case, sanction u/s 197 Cr.P.C. is not required.
50. The prosecution filed the present case against accused C. S. Khairwal, Sunil Khairwal and one K. C. Sharma, who died during the pendency of the case even before framing of charge and the proceedings were terminated against him vide order dated 06.03.2003.
51. The allegations leveled in the charge sheet against the accused persons were that accused C. S. Khairwal had acquired huge disproportionate assets and could not give any explanation for acquiring disproportionate assets. The CBI also alleged that accused C. S. Khairwal CC No.14/11 CBI VS C. S. Khairwal & Ors. 49 entered into a criminal conspiracy with his son Sunil Khairwal and make use of a forged Will of his father Late Sh. Birbal Khairwal as genuine. The Ld. Predecessor of this court has ordered to frame charges against both the accused persons vide order dated 15.07.2009 under section 120B & 471 IPC and under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988.
52. The plea raised by Ld. counsel for accused C. S. Khairwal at this stage is that accused was also charged under section 120B & 471 IPC but no sanction has been obtained for the said offence as required under section 197 Cr. P. C, therefore, the proceedings against accused is required to be dropped.
53. A perusal of the allegations leveled against both the accused persons in the charge sheet filed by the CBI shows that accused C. S. Khairwal being the public servant acquired huge disproportionate assets beyond the known sources of income of his entire family members and therefore, committed an offence CC No.14/11 CBI VS C. S. Khairwal & Ors. 50 punishable under section 13(2) read with section 13(1)
(e) of the Prevention of Corruption Act, 1988. They have also been charged that for justifying the disproportionate assets acquired by accused C. S. Khairwal, he entered into a criminal conspiracy with his son Sunil Khairwal and pursuant to the said criminal conspiracy he made use of a forged Will of his father Sh. Birbal Khairwal dated 17.09.1987 for which charges under section 120B, 471 IPC have been framed against both the accused persons.
54. The act of using a forged Will of his father Sh. Birbal Khairwal as genuine by no stretch of imagination can come within the purview of an official work done by a public servant. The allegations leveled against accused C. S. Khairwal for commission of an offence punishable under section 120B & 471 IPC has no connection whatsoever with an act in connection of discharge of his official duty, therefore no sanction under section 197 Cr. P. C was necessary for prosecuting accused C. S. Khairwal for the offence punishable under section 120B CC No.14/11 CBI VS C. S. Khairwal & Ors. 51 & 471 IPC.
55. In view of above facts and circumstances, I am of the considered view that Central Government, being the competent authority to remove accused C. S. Khairwal from his service, has accorded sanction as per clause 19 of the Prevention of Corruption Act, 1988, to prosecute him after examining the relevant material submitted by the CBI and I find no infirmity in the sanction order Ex. PW18/1. I am also of the considered view that the offence alleged against accused C. S. Khairwal under section 120B and section 471 IPC has nothing to do with discharge of his official duty, therefore there is no requirement of any sanction under section 197 Cr. P. C. Accordingly, the application filed by accused C. S. Khairwal for dropping the proceedings against him for want of proper sanction is not sustainable, same is accordingly dismissed.
(ANNOUNCED IN THE OPEN COURT TODAY I.E ON 05.03.2016) (PITAMBER DUTT) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI CC No.14/11 CBI VS C. S. Khairwal & Ors. 52