Uttarakhand High Court
Dr. Swetabh Suman vs Central Bureau Of Investigation Cbi on 1 February, 2019
Author: Ravindra Maithani
Bench: Ravindra Maithani
Reserved Judgment
Judgment reserved on 31.01.2019
Date of Delivery on 01.02.2019
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Misc. Application No. 82 of 2018
Dr. Swetabh Suman .......Petitioner
Vs.
Central Bureau of Investigation CBI ....Respondent
Mr. Aditya Singh, Advocate present for the petitioner.
Mr. Ejaz Khan, Sr. Advocate, assisted by Mr. Satish Garg, and Mr. Surinder Kumar, Advocates
for the respondent/CBI.
Hon'ble Ravindra Maithani, J.
This criminal miscellaneous application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') has been filed seeking the following reliefs:-
(i) To set aside the impugned order dated 01.08.2017 passed by Ms. Shadab Bano, Ld. Spl. Judge CBI at Dehradoon due to 'absence of sanction' in this case, in the interest of Justice.
(ii) To drop the proceedings of the trial in the above case due to 'absence of sanction', in the interest of Justice.
(iii) To stay the further proceedings of the CBI Case No.12/2010, during the pendency of the present Criminal Miscellaneous Application."
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(iv) Pass any other order which this Hon'ble Court may deem fit and proper in the interest of Justice, in favour of the petitioner."
2. Before appreciating the arguments, it would be apt to recapitulate the history of this litigation. This case has come up before this Court, on the question of sanction for the third time.
3. A charge-sheet was filed against the petitioner in RC 16(A)/2005-SCR, New Delhi dated 02.08.2005 under section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act,1988, which is the basis for institution of CBI Case No.12 of 2010, CBI Vs. Swetabh Suman and others, in the court of Special Judge, Anti-Corruption (CBI), Dehradun. (It is hereinafter referred to as 'the criminal case')
4. Initially when the charge-sheet was filed and cognizance was taken, a criminal misc. application no. 1166 of 2010 was filed by the petitioner, raising various issues relating to cognizance as well as sanction to prosecute. This Court vide order dated 04.04.2011 decided the petition. Insofar as the issue of valid sanction is concerned, the court observed and held as hereunder:- 3
"2. Insofar as the second contention is concerned, admittedly, there is sanction to prosecute. Applicant contends that the Hon'ble Finance Minister, who is in- charge of the Department, by making an endorsement in the file, has expressed reservation pertaining to grant of sanction to prosecute until the queries made in the endorsement are looked into. It is stated that since those have not been done, there is no valid sanction to prosecute. Since the sanction to prosecute has been issued by the person competent to issue the same, if the same is in violation of any direction issued by the Hon'ble Finance Minister, it is open to the Hon'ble Finance Minister to take such recourse to law as is available to him but to the world at large sanction having been accorded by the person competent to accord the same should be treated to be a valid sanction."
5. With regard to cognizance order, the Court in its order dated 04.04.2011, interalia, observed that:
"3....................The Code says, only when discharge is not granted, Magistrate is competent to frame charge. In the circumstances, what the applicant is seeking from this Court, he is entitled to seek from the Magistrate. It would not be proper, in view of the legislative mandate, for this Court to do what the Legislature has asked the magistrate to do at the first instance. It would be appropriate, 4 therefore, for the applicant to seek discharge from the Magistrate. In the event, applicant is not discharged and he has grievance for not having been discharged, it shall be open to him to take such recourse to law, including re- approaching his Court............."
6. The petitioner again filed an application 952-B in the criminal case raising further the issue regarding sanction. This application 952-B was rejected by the trial court vide order dated 19.11.2016. This order dated 19.11.2016 was challenged by the petitioner in criminal misc. application no. 70 of 2017, which was rejected and in very strong words, the Court held that this is abuse of process of law because the question of sanction had already attained finality by order dated 04.04.2011 passed by this Court in Criminal Misc. Application no. 1166 of 2010. In paragraph no.12, the Court has observed and held as hereunder:-
"12. Learned counsel for the respondent-CBI has drawn the attention of this Court to paragraph no.8 of the C-482 Petition No.1166 of 2010. Petitioner has specifically assailed the sanction order and has asked for summoning of record and thereafter, quashing the entire charge-sheet. Thereafter, the petitioner has filed a separate application bearing no.952B again challenging the sanction order dated 21.05.2010. It amounts to abuse of process of Court. 5 Petitioner cannot be permitted to rake up the same issue repeatedly which has already been conclusively settled by this Court in C-482 No.1166 of 2010."
7. The criminal case proceeded further and evidence of PW21 Rajneesh Mohan Singh, Under Secretary, Government of India was recorded on 19.05.2017. Thereafter, an application was again filed by the petitioner with the following prayers :-
"(i) The ongoing trial, in the absence of sanction may kindly be dropped in the interest of justice and fair play.
(ii) That the applicant/accused may kindly be discharged in the interest of justice in the aforesaid circumstances.
(iii) Any other relief which this Hon'ble Court deems fit may kindly be granted in favour of the applicant/accused in the interest of justice."
8. Learned Trial Court vide impugned order dated 01.08.2017 dismissed the application of the petitioner. Aggrieved, the instant petition has been filed under section 482 of the Code.
9. Learned counsel for the petitioner has urged that the earlier orders of this Court dated 04.04.2011 and 10.03.2011, cannot operate as res-judicata and the 6 learned court below has committed an error in holding that those orders operate as res-judicata and restrains the petitioner to raise the issue further.
10. Learned counsel has argued that after order dated 10.03.2017 was passed by this Court in C-482 No.70 of 2017, PW21 Rajneesh Mohan Singh was examined in the criminal case. He categorically stated in paragraph no.13 of his statement that in the file, the Hon'ble Finance Minister had nowhere given sanction to prosecute the petitioner. It gave afresh cause of action to petitioner to further file an application for dropping the proceedings of criminal case. It is argued that till the examination of PW21 Rajneesh Mohan Singh, the case of the petitioner was of "invalid sanction", but after the statement of PW21, it becomes a case of "no sanction".
11. It is argued that learned Court below has wrongly interpreted the statement of PW21 Rajneesh Mohan Singh and has wrongly held that the sanction is legal.
12. Learned counsel has also argued that the respondent has not only to prove that the sanction was given but prosecution has to establish and satisfy the 7 Court by leading evidence that the entire relevant fact has been placed before the sanctioning authority and the authority has applied its mind on the same and that the sanction has been granted in accordance with law.
13. In support of his contention, learned counsel for the petitioner has placed reliance on the principles as laid down in the case of CBI Vs. Ashok Kumar, 2014 (14) SCC
295.
14. On the other hand, Mr. Ejaz Khan, learned counsel for the respondent urged that PW21 Rajneesh Mohan Singh is not Sanctioning Authority. He is the person who has authenticated the sanction. He is Under Secretary in the Ministry. He was asked certain questions in the cross-examination, without showing the original documents, which he wanted to see, as he has stated in paragraph no.12 of his statement. Therefore, a part of his statement cannot be construed to assume that there is no sanction to prosecute.
15. Learned counsel further argued that any notings on the file has nothing to do with sanction for prosecution because notings are for internal matter and not for 'outside exposure'. He referred to the principles as laid 8 down in the case of Vivek Batra Vs. Union of India and others, (2017) 1 SCC 69. In paragraph no.14 of which, Hon'ble Court, interalia, held that:
14. It trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure."
16. It is argued that the text is to be tested in context and not in isolation. The competent authority has accorded sanction for prosecution, therefore, there is no irregularity in the order passed by the learned court below and the petition deserves to be rejected.
17. This Court is conscious of the fact that this is a petition under section 482 of the Code. This Court cannot re-appreciate any evidence or facts. The Court can only read what is apparent on the record. In the case of R.P. Kapur Vs. State of Punjab, AIR 1960 Supreme Court 866, Hon'ble Supreme Court has elaborated about the scope of 9 section 482 of the Code and has, interalia, observed as hereunder:
"6. .....................................It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing 10 the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the a11egations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge................."
18. Further in the case of State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, Hon'ble Supreme Court has observed as hereunder:
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of 11 the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the 12 same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be 13 exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
19. This court in Criminal Misc. Application No.70 of 2017 held that the question of sanction had already gained finality by virtue of order dated 04.04.2011 passed in Criminal Misc. Application no. 1166 of 2010. It's effect has to be seen. It is true that the question of sanction can be agitated at any stage, but can the same issue be agitated many times in the same proceedings?
20. Learned counsel for the petitioner argued that had the question of sanction gained finality by virtue of Court's order dated 04.04.2011 passed in Criminal Misc. Application 1166 of 2010, what was the need for prosecution to examine PW21 Rajneesh Mohan Singh.
21. On 04.04.2011, the file notings were definitely referred to before this Court in Criminal Misc. Application No. 1166 of 2010. The Court, in paragraph 2 of its order, recorded that it is contended that; "the Hon'ble Finance 14 Minister, who is in-charge of the department, by making an endorsement in the file, has expressed reservation pertaining to grant of sanction to prosecute until the queries made in the endorsement are looked into", but the court held; that "since, the sanction to prosecute has been issued by the person competent to issue the same, if the same is in violation of any direction issued by the Hon'ble Finance Minister, it is open to the Hon'ble Finance Minister to take such recourse to law as is available to him, but to the world at large, sanction having been accorded by the person competent to accord the same should be treated to be a valid sanction."
22. This is what has been laid down in the case of Vivek Batra, when the Hon'ble Court has categorically observed that internal noting are not meant for 'outside exposure'. The question of notings made by the competent authority was definitely raised in Criminal Misc. Application 1166 of 2010, and it was finally decided. PW21 Rajneesh Mohan Singh was examined by the prosecution to prove the sanction order, which was authenticated by him. Here, it would be pertinent to mention that in the counter affidavit of the respondent, in paragraph no.22, it is categorically stated that as per the authentication orders and others instruments (Rules) 15 1958 framed under article 77(2) of the Constitution, Under Secretary was empowered to sign and authenticate the order of sanction granted by the Sanctioning Authority.
23. PW21 Rajneesh Mohan Singh has, in paragraph no.2 of his statement, categorically stated that the competent authority has sent the file to him to issue sanction for prosecution and the approval of competent authority to prosecute the petitioner had been obtained. In paragraph no.3 of his statement, PW21 Rajneesh Mohan Singh has categorically stated that he has authenticated the order. PW21 Rajneesh Mohan Singh has proved the sanction order in his capacity as the Authenticating Officer. Issue regarding notings had, in fact, gained finality on 04.04.2011 and further on 10.03.2017, when this Court in Criminal Misc. Application No.70 of 2017 held that the petitioner cannot be permitted to rack up the same issue repeatedly on the same ground and it amounts to abuse of process of law. The order of this Court dated 10.03.2017 was a final order. Learned trial court has not committed any error in holding that the issue regarding sanction had already attained finality.
24. Learned counsel for the petitioner has argued that what is written in the notings is also to be proved by 16 the prosecution, as held by the Hon'ble Supreme Court in the case of Central Bureau of Investigation Vs. Ashok Kumar Aggarwal, specially in paragraph no.16.5, which reads as under:-
"16.5 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 with law."
25. In fact, in this case, once such sanction was accorded, but in view of certain clerical error, the matter was again taken to the Sanctioning Authority. While signing the note-sheet, the competent authority has also observed as hereunder:-
"Facts and figures should be verified carefully before putting up papers for approval."
26. As discussed hereinbefore, the issue of the notings as mentioned in paragraph no.24 above, had already gained finality on 04.04.2011 in Criminal Miscellaneous Application No. 1166 of 2010. PW21 Rajneesh Mohan Singh, in paragraph no.13 of his statement, was confronted with the copy of the note sheet, 17 page 46/N and 47/N and on the basis of it, the witness has stated that on this note-sheet, Hon'ble Finance Minister nowhere accorded approval to prosecute. On the basis of this statement of PW21 Rajneesh Mohan Singh, it is being argued that there is no sanction.
27. Learned counsel for the respondent would urge that what is noted by the competent authority at the time of approval was for internal matter to caution the officials, so that they may not commit such mistake in future and accordingly, according to learned counsel, the observation of the competent authority was ordered to be circulated on 26.04.2010 by the concerned Secretary, which is evident from the note-sheet, page 47/N. After processing the file, sanction to prosecute was issued and it was authenticated by PW21 Rajneesh Mohan Singh. Sanction order reveals that it was issued after due consideration of the matter, therefore, it is urged that the statement of PW21 Rajneesh Mohan Singh cannot be read in isolation. Entire text has to be read in context and accordingly, learned trial court has rightly held that the sanction is legal.
28. On the other hand, on this point, learned counsel for the petitioner argued that the text has to be read as it is and PW21 Rajneesh Mohan Singh has 18 categorically stated that on the file notings approval for sanction to prosecute is not recorded, therefore, approval cannot be read into those notings. According to learned counsel, there is nothing like reading the text in the context.
29. No text can be ever appreciated in isolation. It has always to be tested in context. Notings of the competent authority on note-sheet 47/N, as reproduced in paragraph 25 above, is apparently words of caution, as argued by learned counsel for the respondent. These words of caution, as per the remarks on note-sheet 47/N itself were directed to be circulated to the officials. It is apparently not denial to sanction. As stated hereinbefore, PW21 Rajneesh Mohan Singh has, in paragraph nos. 2 and 3 of his statement, categorically stated that in the file notings, the competent authority's approval to prosecute was obtained and thereafter, he authenticated the order. The statement has to be read in its entirety and that is what was done by learned court below, which rightly held that this is not a case of no sanction, instead, the sanction order is valid.
30. With the foregoing observation, this Court is of the view that there are no reasons, which may warrant 19 interference of this Court in exercising its jurisdiction under section 482 of the Code and accordingly, the petition deserves to be dismissed.
31. The Court would like to observe here that in the instant case, at the stage of cognizance, sanction order was challenged vis-à-vis file notings and it was rejected by this Court vide its order dated 04.04.2011 passed in Criminal Misc. Application no. 1166 of 2010. Petitioner did not stop here. During trial, he again filed another application challenging the legality of sanction. It was also rejected by the trial court and this order of the trial court was again challenged by the petitioner in this Court under section 482 of the Code. In this Criminal Misc. Application no. 70 of 2017, this Court categorically held that the petitioner is raising the same issue again and again and it is abuse of process of law. Paragraph no.12 of this judgment has already been cited hereinbefore.
32. The same issue has been raised by the petitioner giving it alleged support of the statement of PW21 Rajneesh Mohan Singh. Basically, what was shown to PW21 Rajneesh Mohan Singh was the file notings and he was required to read those notings, which he did not author.
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33. Considering all these facts, this Court is of the view that in fact the petitioner is abusing the process of the law, therefore, this petition should be dismissed with costs.
34. Accordingly, the instant petition is dismissed, with costs of Rs.1,00,000/- (Rupees One Lakh). Petitioner shall deposit this costs within the next two weeks with the Uttarakhand State Legal Services Authority at Nainital.
(Ravindra Maithani, J.) (Vacation Judge) Ujjwal