Delhi District Court
Cbi vs . Rakesh Kumar & Ors. Cc No.: 47 / 11. on 8 March, 2013
CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013
IN THE COURT OF : SH. KANWALJEET ARORA :
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
FIR NO. : RC - 1 (S) / 2006 / SIU1 /CBI/
Branch/SCRI/New Delhi dated
27.03.2006.
Under sec. : 120B r/w section 420, 468, 471
IPC and 13 (2) r/w sec.13(1)(d)
of Prevention of Corruption Act
IN THE MATTER OF:
CBI VS. RAKESH KUMAR & ORS.
C.C.NO.: 47 / 2011.
Dated: 08th March 2013.
O R D E R :
1. "Summoning of an accused in a criminal case is a serious matter.
Criminal law cannot be set into motion as a matter of course."
2. This is what was observed by Hon'ble Supreme Court in case titled "Pepsi Food Limited & Ors. Vs. Special C.C.No.: 47 / 2011 Page No.1 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 Judicial Magistrate & Ors" reported as 1997 SCC (Cri.)1400.
3. Subjecting any individual to undergo "criminal trial" is an encroachment / restriction on his fundamental right to "life and liberty". As per the constitutional mandate enshrined in Article 21 of Constitution of India, granted to each and every citizen of the country, no one can be deprived of his right to life and liberty, except by the due "process of law". Thus, if anyone accused of any offence, is to be subjected to criminal trial, then the same has to be in conformity to the procedures established by law. As whenever a particular procedure is prescribed by law, then all other procedures to do the same are proscribed.
4. No doubt, the courts are an important cog in the wheels of administration of criminal justice system, which is obligated to provide a corruption free society. Simultaneously, the courts have to remain mindful of statutory protection provided to the public servants which prohibits the court from taking cognizance of an offence C.C.No.: 47 / 2011 Page No.2 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 under Prevention of Corruption Act, against a public servant in absence of a valid sanction order from the competent authority.
5. To discharge the onerous duty to provide a corruption free society, the administration of "Criminal Justice System" is required to be revamped. However, that is required to be done in such a manner so that the majesty of "Rule of Law" is neither undermined nor defeated. A balanced approach is required to be adopted giving strict interpretation to the clauses of the penal provisions and simultaneously being mindful of the inviolable constitutional rights granted to the accused, so as to ensure fair trial.
6. Central Bureau of Investigations (CBI) had initiated the present proceedings against Rakesh Kumar, a public servant and others, on the allegations that he, in furtherance of a criminal conspiracy with his coaccused, C.C.No.: 47 / 2011 Page No.3 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 illegally indulged in human trafficking, and for that he misused his official position, cheated the government and thus misconducted himself for extraneous considerations.
7. On acquisition of information regarding illegal human trafficking on the part of Rakesh Kumar, Former Director General, Indian Council for Cultural Relations (hereinafter referred to as ICCR), Central Bureau of Investigations had sought approval of Ministry of External Affairs, Government of India, under section 6A of Delhi Special Police Establishment Act 1946 and registered a preliminary inquiry no.4(S)/2005 on 22.11.2005.
8. After conducting the preliminary inquiry, it was revealed that in the year 2005, Rakesh Kumar had entered into a criminal conspiracy with Shiv Kumar Sharma, Hargulab Singh and others to facilitate empanelment of a bogus cultural group "Mehak Punjab Di" and under the guise of said group, by misusing his official position, he had illegally trafficked 9 C.C.No.: 47 / 2011 Page No.4 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 individuals to Germany out of which one Hargulab Singh returned back and whereabouts of other eight persons are still not available.
9. On the basis of this preliminary inquiry, RC No.1(S)/2006/SIU1/CBI/SCR1/New Delhi was registered on 27.03.2006 under section 120B IPC r/w section 420, 403, 467, 468 and 471 IPC and section 13 (2) r/w section 13(1)
(d) of Prevention of Corruption Act, 1988 against Rakesh Kumar and others.
10. After registration of the case, it was investigated. On conclusion of the investigations, charge sheet was submitted in court for trial of accused Rakesh Kumar, Shiv Kumar Sharma, Balwinder Kaur and Gurbej Singh for offence punishable under section 120B IPC r/w section 420, 468 and 471 IPC and section 13 (2) r/w section 13(1) (d) of Prevention of Corruption Act, 1988. C.C.No.: 47 / 2011 Page No.5 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013
11. After hearing Ld.Counsels for the accused persons as well as Ld.PP for CBI, this court finding a primafacie case for proceeding against the accused persons vide orders dated 02.06.2012, passed an order for framing of charges against Rakesh Kumar and coaccused persons. Requisite charges under relevant sections of IPC and Prevention of Corruption Act, were accordingly framed on 08th June 2012, to which all the accused persons had pleaded not guilty.
12. Prosecution was thereafter called upon to substantiate its case by leading evidence. To do so, prosecution had examined some of the witnesses listed in the list of witnesses, including PW5 Sh.Deb Nath Shaw, for the purposes of proving the sanction order dated 10.12.2007 qua accused Rakesh Kumar, the public servant, which was proved on record as Ex.PW.5/A.
13. It is at this stage, when the matter was listed for further prosecution evidence, that accused Rakesh C.C.No.: 47 / 2011 Page No.6 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 Kumar came up with the present application dated 15.01.2013 seeking a relief that the proceedings qua him be stopped as there is no requisite sanction for his prosecution, as required u/s 19(1) of Prevention of Corruption Act, 1988. In the said application, it is contended that the sanction to prosecute a public servant is the prerequisite for taking cognizance for an offence under Prevention of Corruption Act. It is stated that as there is no valid sanction for prosecution granted by the competent authority, therefore, the same goes to the root of the case and the case cannot and should not proceed against accused Rakesh Kumar. It is contended that the present application be decided at this stage itself, before letting the prosecution to carry on with its remaining evidence.
14. Notice of this application was given to CBI.
Reply to the present application was filed, which was taken on record.
C.C.No.: 47 / 2011 Page No.7 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013
15. It is pertinent to mention here that the matter is still at the stage of recording of prosecution evidence. Prosecution is yet to complete and close its evidence. Meaning thereby that prosecution still can bring and lead further evidence on this aspect as well (though with permission of the Court). However, as Ld.Counsel for accused / applicant has insisted that his application be considered and disposed off at this stage, on the basis of evidence of prosecution and other material already on record. So be it.
16. I have heard the arguments advanced on this application by Sh.Mukul Sharma, Advocate, Ld.Counsel for accused / applicant Rakesh Kumar as well as by Sh.Sanjay Kumar, Ld.Senior Public Prosecutor for CBI.
17. It is contended by Sh.Mukul Sharma, Advocate, Ld.Defence Counsel that CBI for the purposes of proving the sanction to prosecute the accused, has relied upon the sanction order dated 10.12.2007, which bears C.C.No.: 47 / 2011 Page No.8 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 signatures of Sh.Deb Nath Shaw, the then Joint Secretary (CNV) and CVO, Ministry of External Affairs, New Delhi. He further contended that Sh.Deb Nath Shaw, is the only witness, listed in the list of witnesses by the prosecution to prove this sanction order. It is contended that prosecution has neither placed on record nor relied upon any other note sheet or the file prepared in the ministry for the purposes of proving the sanction order.
18. Sh.Mukul Sharma, Advocate, Ld.Defence Counsel vociferously contended that on the basis of cross examination of this witness conducted by him, wherein he was confronted with the note sheets Ex.PW.5/DX and Ex.PW.5/DY, it is apparent that the competent authority to grant sanction which in this case was the Minister of External Affairs, on behalf of Central Government, had neither applied his mind nor granted any sanction for prosecution of Rakesh Kumar. He contended that as the sanction order dated 10.12.2007 Ex.PW.5/A, neither bears signatures of Minister of External Affairs nor was placed C.C.No.: 47 / 2011 Page No.9 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 before him for his approval, therefore it cannot be construed as a valid sanction order. He further contended that this sanction order bears signatures of PW5 Deb Nath Shaw, who admittedly was not the competent authority to grant sanction.
19. Another limb of his contention was that, there is nothing on record to show that PW5 was in any way, authorised by the then Minister of External Affairs, to sign the sanction order, which he even otherwise, could not have granted, as Minister of External Affairs was himself suppose to act in a delegated authority on behalf of President of India and he could not have further delegated his powers to anyone to grant or accord the sanction for prosecution of accused Rakesh Kumar.
20. Another line of attack to the sanction order Ex.PW.5/A made by Sh.Mukul Sharma, Advocate was that the testimony of PW5 is not trustworthy. He contended that this witness has deliberately given a false statement C.C.No.: 47 / 2011 Page No.10 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 in court as, on one hand, he stated that no draft sanction order was sent by CBI to their department and on the other hand, on being confronted with Ex.PW.5/DX and Ex.PW.5/DY, the excerpts from the file of the department, he stated that perhaps draft sanction order was submitted by CBI to their department. Ld.Defence Counsel contended that the said draft sanction order was deliberately not placed on record by the prosecution as the present sanction order Ex.PW.5/A is the verbatim copy of the same, which in itself would have established the non application of mind, on the part of the sanctioning authority.
21. Countering these contentions, it is submitted by Ld.Senior Public Prosecuter for CBI that from the files of the department and more particularly Ex.PW.5/DX and Ex.PW.5/DY which are the excerpts of the note sheet prepared, it is apparent that the then Minister of External Affairs has expressly granted the approval for grant of sanction to prosecute the accused. He contended that the note sheet Ex.PW.5/DX as well as Ex.PW.5/DY itself C.C.No.: 47 / 2011 Page No.11 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 reveals that all the material including the report on conclusion of investigations along with the statement of witnesses, was placed before the then Minister of External Affairs, along with the observations of his subordinate officers, for his approval.
22. Ld.PP for CBI contended that the signatures of the then Hon'ble Minister of External Affairs, on the file depicts the grant of approval by the sanctioning authority. He contended that the sanction order Ex.PW.5/A was prepared only on grant of approval by the Minister of External Affairs. He contended that merely because it was signed by PW5, that does not make PW5, the sanctioning authority. Sanction to prosecute the accused was granted by Minister of External Affairs in terms of Ex.PW.5/DX and Ex.PW.5/DY. It is contended by Ld.PP for CBI that it is only on approval of Minister of External Affairs that Ex.PW.5/A was executed and signed by PW5. C.C.No.: 47 / 2011 Page No.12 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013
23. Ld.Sr.PP for CBI relying upon certain precedents contended that merely because CBI had forwarded a draft sanction to the concerned department, that in itself does not vitiate the grant of sanction by the competent authority. The competent authority had granted the sanction only after considering the material placed before it and after reaching the conclusion that in the given circumstances, there is enough material for grant of sanction for prosecution of accused Rakesh Kumar.
24. I have considered the rival contentions in the light of the precedents relied upon. I have also perused the deposition of PW5, the sanction order Ex.PW.5/A as well as the excerpts of the file, prepared in the department for processing the request of CBI regarding grant of sanction for prosecution ie.Ex.PW.5/DX and Ex.PW.5/DY.
25. Before proceeding to advert upon the submissions advanced, it is pertinent to make mention of Section 19 of Prevention of Corruption Act, which is C.C.No.: 47 / 2011 Page No.13 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 reproduced as under: SECTION 19 : PREVIOUS SANCTION NECESSARY FOR PROSECUTION :
(1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government ;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government ;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (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 given by that Government or authority which C.C.No.: 47 / 2011 Page No.14 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) :
(a) No finding, sentence or order passed by a Special judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under subsection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby ;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in failure of justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under subsection (3) whether the absence thereof, or any error, omission or irregularity in, such sanction has occasioned or resulted in failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.C.C.No.: 47 / 2011 Page No.15 of 42
CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 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.
26. The object and character of this provision is evidently emanating from the words used in the Section by the Legislature : "No Court shall take cognizance of such offence, except with the previous sanction". Use of words "No" and "shall" makes it abundantly clear that the bar on the exercise of power of the Court to take cognizance of an offence is absolute and complete. As per Black's Law Dictionary, the word "cognizance" means jurisdiction or the exercise of jurisdiction. In common parlance, it means "taking notice of". In view thereof, in absence of the sanction, the court is precluded from even taking notice of the offence or exercising its jurisdiction, in respect of a public servant. C.C.No.: 47 / 2011 Page No.16 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013
27. Thus, the provision has been imparted a mandatory character and has been held so by various authoritative pronouncements by Hon'ble Apex Court. While holding grant of sanction to be a prerequisite or sinequanon for taking cognizance, regard is to be had to the fact that it can be a shield to discourage vexatious prosecution of innocent public servant, but it should not be permitted to be used as a weapon against the prosecution by the guilty.
28. The importance of this provision and the obligation of the sanctioning authority was stated by Hon'ble Apex Court in case titled "R.S.Nayak Vs. A.R.Antulay"
reported as AIR 1984 SC 684, wherein it was held that :
"... In catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality, but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecution and the aforesaid requirement must, therefore, be strictly complied with before any prosecution could be launched against public servant."C.C.No.: 47 / 2011 Page No.17 of 42
CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013
29.
"The concept of sanction for prosecution by a superior is so inextricably woven into the fabric of the enactment that the pattern is incomplete without it. The provision for sanction is like the keystone in the arch of enactment. Remove the keystone of sanction and the arch crumbles."
which His Lordship said in the case titled "K.Veeraswami Vs. Union of India" reported as (1991) 3 SCC 655.
30. In the backdrop of aforementioned observations of Hon'ble Supreme Court and the law on the subject, I would now delve upon the contentions raised on behalf of the accused visavis, the deposition of PW5 coupled with the other material on record, to find out as to whether the sanction for prosecution of accused Rakesh Kumar was not granted by the competent authority under section 19(1) of Prevention of Corruption Act, as alleged and if so, what would be its implications.
C.C.No.: 47 / 2011 Page No.18 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013
31. There is no doubt that a sanction order for prosecution by a competent authority is the sinequanon for proceeding against a public servant for any offence under the provisions of Prevention of Corruption Act, 1988, failing which no cognizance of offence can be taken and if taken, the proceedings conducted thereafter becomes nonest.
32. In a catena of judgements, Hon'ble Apex Court has held that prosecution for the purposes of proving the sanction, is not required to lead the evidence of the authority who accorded sanction. In case titled Mohd.Iqbal Ahmed Vs. State of Andhra Pradesh, reported as 1979 SCC (Crl.)926, Hon'ble Apex Court has held that an order of valid sanction can be proved by the sanctioning authority in two ways either :
(i) By producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction : or C.C.No.: 47 / 2011 Page No.19 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013
(ii) By adducing evidence alliuned to show that the facts were placed before the sanctioning authority and the satisfaction arrived at, by it.
33. It was contended by Sh.Mukul Sharma, Ld.Defence Counsel that the sanctioning authority, which in this case was Minister of External Affairs, has not been examined by the prosecution to prove the sanction order. He further contended that Ex.PW.5/A purportedly the sanction order dated 10.12.2007 relied upon by the prosecution, does not bear signatures of the Minister of External Affairs, but was signed by PW5 Deb Nath Shaw. He contended that PW5 was not the competent authority to grant sanction and as per deposition of PW5, Ex.PW.5/A was never put up before the Minister of External Affairs, therefore, the alleged sanction order Ex.PW.5/A cannot and does not depict the intention of the competent authority to accord sanction, nor the same was signed or issued by the competent authority. He contended that in absence of a valid sanction order, no cognizance could have been taken against accused Rakesh Kumar. He vociferously contended C.C.No.: 47 / 2011 Page No.20 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 that as in the present case, the cognizance was taken on the basis of an invalid sanction order, therefore the present proceedings be stopped qua accused Rakesh Kumar.
34. I did consider the submissions advanced visa vis material on record.
35. No doubt, by grant of a sanction order, the accused is saddled with the liability to be prosecuted, however, grant of sanction has been held to be an administrative function only of the competent authority.
36. It has been a settled principle of law that for a sanction order, which has been held to be an administrative function, no specific type, design, form or particular words, have been prescribed. In accordance with the requirement of justice, all that the order of sanction is required to show or reveal is that, all the relevant materials were placed before the sanctioning authority and that the said authority did consider those materials and C.C.No.: 47 / 2011 Page No.21 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 the order sanctioning the prosecution, resulted therefrom.
37. What the court has to see, is whether or not, the sanctioning authority at the time of giving sanction, was or was not aware of the facts constituting the offence and applied its mind on the same, for grant of sanction.
38. In the present case, it is not disputed that the competent authority to grant sanction in this case was Minister of External Affairs. This is also an admitted fact that as per the administrative procedure, any file along with its matter and material is placed before Minister of External Affairs, through a process and procedure which is in vogue. File passes through hierarchy of officers alongwith the observations and recommended actions and then reaches the Minister of External Affairs for his approval.
39. It was contended by Ld.Defence Counsel that apart from placing on record the alleged sanction order C.C.No.: 47 / 2011 Page No.22 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 dated 10.12.2007 Ex.PW.5/A, prosecution has not filed any other document or note sheet which attended the grant of the sanction for prosecution. It was further contended that no file prepared in the ministry was either annexed with the sanction order or was relied upon by the prosecution, therefore an adverse inference should be drawn against the prosecution.
40. I do not find any merits in the contentions advanced by Ld.Defence Counsel as mere non production of the proceedings of the government, does not vitiate the sanction order. More particularly in view of the fact that accused can and may insist upon the production of those government proceedings during the course of trial and more particularly, the cross examination of the witness.
41. In the present case, PW5 was confronted with the excerpts of the notesheet prepared during the government proceedings, which resulted from the request made to the department by CBI on the basis of documents C.C.No.: 47 / 2011 Page No.23 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 submitted by them, with the Ministry of External Affairs while requesting for grant of sanction for prosecution of accused. It is apparent from cross examination of PW5 that he admitted the excerpts of the proceedings which led to sanction order Ex.PW.5/A. This in itself reveals that the notesheet and the proceedings are in existence and as deposed so, available with the department.
42. It is apparent on perusal of Ex.PW.5/DX that a detailed note in the present case was prepared on the basis of the CBI Report, submitted with the department on "illegal human trafficking case involving Rakesh Kumar and other officials and nonofficials". The said note delineates all the relevant facts including the evidence collected by the investigating agency, during the course of investigations and the role assigned to Rakesh Kumar and other accused persons. It is apparent from this note that the report submitted by CBI was properly scrutinised for the requested action and this detailed note was approved by the Minister of External Affairs, which is apparent as C.C.No.: 47 / 2011 Page No.24 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 the same bears his signatures.
43. Signatures of Minister of External Affairs on Ex.PW.5/DX, proved by PW5 during his deposition reflects and depicts his approval, whereby it is evident that straight away sanction was not granted and an advice of CVC was also sought as per section 10, Chapter 7 of Vigilance Manual (F/E). Further, the Minister of External Affairs has also approved that the draft sanction order for prosecution be vetted by Joint Secretary (L & T).
44. If this note is read in conjunction to the subsequent note Ex.PW.5/DY, it is apparent that even CVC has conveyed its advice on this aspect which was considered by the sanctioning authority. Vide this note, certain actions against Rakesh Kumar including the issuance of sanction for prosecution were recommended for approval of the sanctioning authority. It is apparent that the sanctioning authority ie. Minister of External Affairs in this case had granted its approval by putting his C.C.No.: 47 / 2011 Page No.25 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 signatures at Point B on Ex.PW.5/DY.
45. PW5 during the course of his cross examination has categorically deposed that the detailed note on the basis of CBI Report, coupled with the material collected during investigations was placed before Minister of External Affairs, alongside the concurrence of recommended actions of CVC and the Hon'ble Minister after applying his mind had granted his approval for grant of sanction to prosecute accused Rakesh Kumar.
46. Ex.PW.5/DX and Ex.PW.5/DY, the notes prepared in the ministry and relied upon by the accused himself as they were shown to the witness during his cross examination themselves reveals that the notes are eloquent. From these notes, all the proceedings right from the receipt of request of CBI for grant of sanction in the department till its final approval by the Minister of External Affairs are crystal clear. These notes coupled with deposition of PW5 establishes that all the material C.C.No.: 47 / 2011 Page No.26 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 constituting the offence alongwith the recommended action was placed before the competent authority for his approval. Signatures of the Minister of External Affairs depicts the grant of approval by him on the basis of the entire material placed before him.
47. It is contended by Ld.Defence Counsel that the sanctioning authority has not made any observation and has merely put his signatures at Point B, that cannot ipso facto be considered as, grant of approval for sanction. He contended that Minister of External Affairs at best, had approved the suspension of Rakesh Kumar which is mentioned from Point C to C on Ex.PW.5/DY.
48. I do not find any merits in the contentions advanced by Ld.Defence Counsel, in the light of deposition of PW5, coupled with Ex.PW.5/DY with which the witness was confronted during the course of his cross examination. C.C.No.: 47 / 2011 Page No.27 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013
49. It is apparent that Ex.PW.5/DY along with other record was put up before the sanctioning authority and the sanctioning authority by putting his signatures at Point B, has accorded its approval on all the measures against accused as recommended in Para4 of the note. Portion C to C was only a clarification written by the subordinate staff to the recommended actions mentioned in Para4. Admittedly, the Minister while putting his signatures on Ex.PW.5/DY has not written any specific order / direction. But then it is not necessary or required of the Minister agreeing to the recommended actions to pass any specific order / directions. His signatures are sufficient indicator of his approval on the basis of available material. Further, PW5 also deposed that this practice was invogue in the Ministry that signatures of the Minister, used to be construed as his grant of approval and this deposition of PW5 was not disputed by Ld.Defence Counsel, as no such suggestion was put to him during his cross examination that no such practice was invogue.
C.C.No.: 47 / 2011 Page No.28 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
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50. Had the sanctioning authority granted approval only for the written portion C to C as suggested by Ld.Defence Counsel, then there would have been a specific observation of the sanctioning authority to that effect on Ex.PW.5/DY, but that was not to be. In view thereof and in absence of any observation of Minister of External Affairs over and above his signatures at Point B on Ex.PW.5/DY, it is apparent that the approval was granted for all the recommended actions, mentioned in Para4 and not only for the written portion C to C, which was an extended clarification of the portion D to D.
51. Next contention of Ld.Defence Counsel assailing the deposition of PW5 was twinfold. He had contended that PW5 deliberately gave a false deposition and had suppressed the fact that a draft sanction order was forwarded to their department by the CBI. To supplement the same, he contended that the said draft was withheld by CBI from the court as the present sanction order is verbatim copy of said draft, so submitted with the C.C.No.: 47 / 2011 Page No.29 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 Ministry by CBI.
52. This contention of Ld.Defence Counsel is also devoid of any merits. Deposition of any person recorded in court, is to be seen and considered that the same is recorded after lapse of a considerable period of time from the date, to which the said fact relates. Then power of perception, retention and description of retained facts, differs from person to person. In the present case, what PW5 was supposed to depose was an act done in his official capacity. Considering the nature of office held by PW5, he is not supposed to retain or memorise all the acts done by him during his tenure, in his official capacity. PW5 during his cross examination had also clarified his stand that during his examinationinchief, as he had not see the official file, therefore, he was not in a position to say, as to whether any draft sanction order was submitted to the Ministry or not, by the CBI. On being confronted with the note sheets Ex.PW.5/DX and Ex.PW.5/DY, he admitted the fact that draft sanction order was forwarded C.C.No.: 47 / 2011 Page No.30 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 to them by CBI.
53. Deposition of PW5, in view of the above, cannot be discarded or thrown over board. A witness who is supposed to testify in court about the official act done, can only depose so, with the aid and assistance of the concerned official records. As those records are made for such future references and only because of the fact that human memory isl imited and fallible. But that does not make such a witness unreliable. More particularly, when he on being shown the official record, admitted that the draft sanction order was sent by CBI alongwith their report and request for grant of sanction for prosecution.
54. The question which now emerges is merely because a draft sanction order was sent by CBI to the concerned department, will that vitiates the entire proceedings, which led to the final sanction order Ex.PW. 5/A. C.C.No.: 47 / 2011 Page No.31 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
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55. The answer to the same is "No". Considering the material on record.
56. It has been held by Hon'ble High Court of Bombay in case titled "Bhagwan Jathya Bhoir Vs. State of Maharashtra" reported as 1992 Cr.L.J. 1144(Bombay), that the procedure adopted by the investigating agency in forwarding a draft sanction order to the sanctioning authority after summarising all evidence and requesting him to examine the record and to accord sanction if satisfied, is not improper.
57. Further, in another case titled "K.Nachimuthu Vs. State" reported as 1994 Cr.L.J 2760, Hon'ble High Court of Madras had held that a sanction order cannot be assailed for nonapplication of mind when the sanctioning authority had adopted the draft sent to them by the investigating agency, only after through scrutiny of the facts constituting the offence and then signing it.
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58. It is further a settled proposition of law that there is no specific form or design in which the sanction order is to be worded. Further, the law does not require that the sanctioning authority should draft the sanction order himself. It can be drafted by any Law Officer of the department.
59. In the backdrop of above, what emerges is that even if a draft sanction order is submitted by the investigating agency along with its report to the sanctioning authority, that in itself is no ground to hold the sanction order invalid. It is to be seen that the sanctioning authority had or had not considered and seen all the facts leading to constitution of the offence alleged and after satisfying itself, had accorded the sanction.
60. In the present case as discussed hereinabove, it is apparent from the notes Ex.PW.5/DX and Ex.PW.5/DY, that the detailed recommendations coupled with CBI C.C.No.: 47 / 2011 Page No.33 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 report and material collected during investigations were put up before the Minister of External Affairs and he after seeing the same, had accorded his approval for grant of sanction.
61. It is further evident from the deposition of PW5 more particularly his cross examination as well as Ex.PW.5/DX and Ex.PW.5/DY that the draft sanction order submitted by CBI to the department was vetted by Joint Secretary (Law and Treaties). It was that draft which was put up before Minister of External Affairs, as Ex.PW.5/DY, which was finally approved and culminated in Ex.PW.5/A.
62. In view of above discussion, I do not find any merits in the contention of Ld.Defence Counsel that the draft sanction order submitted by CBI with department has been deliberately withheld, therefore adverse inference be drawn and sanction order Ex.PW.5/A be held as inoperative or invalid.
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63. This has led me to the last contention of Ld.Defence Counsel, which he had raised to assail the sanction order Ex.PW.5/A. It is contended that the same has been signed by PW5, who admittedly was not the sanctioning authority, therefore, no cognizance could have been taken on this sanction order.
64. I do not find any merits in this contention of Ld.Defence Counsel. Merely because PW5 had signed this sanction order, that in itself, does not make him the sanctioning authority. It is pertinent to mention the operative portions of Ex.PW.5/A, which are required to be seen in the light of deposition of PW5 on record. The operative portions of sanction order Ex.PW.5/A dated 10.12.2007 are as under:
10. And whereas, the Central Government being the authority competent to remove Shri Rakesh Kumar from office, after fully and carefully examining the material placed before it ie.statement of witnesses recorded under section C.C.No.: 47 / 2011 Page No.35 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 161 Cr.P.C and other relied upon documents forwarded by the investigating agency in regard to the said allegations and circumstances of the case, considers that Shri Rakesh Kumar, the erstwhile Director General, ICCR, New Delhi, should be prosecuted in the Court of Law for commission of aforesaid offences.
11. Now, therefore, the Central Government do hereby accord sanction under section 19 of P.C.Act, 1988, to prosecute Shri Rakesh Kumar, the erstwhile DG, ICCR, New Delhi, for committing the said offences and for any other offences arising out of the aforesaid acts and punishable under law in respect of the acts aforesaid and for taking cognizance of the said offences by Court of competent jurisdiction.
By order and in the name of the President of India.
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65. PW5 during the course of his deposition had categorically stated that he had made certain observations in the file / note sheets Ex.PW.5/DX and Ex.PW.5/DY and the same were placed before the Minister of External Affairs. He categorically stated that the Minister of External Affairs, had seen the file which contained FIR, Statement of witnesses recorded by CBI coupled with the documents and other material collected during investigations, whereafter, the then Minister, applied his mind and issued directions for grant of sanction for prosecution of accused Rakesh Kumar.
66. He deposed that he on the basis of these directions, had then issued and signed the sanction order Ex.PW.5/A. It is also apparent from his cross examination that he categorically stated that even the draft sanction order duly vetted by Joint Secretary (L&T) Division in Ministry of External Affairs, was put up before the Minister of External Affairs who approved the same on the basis of which, the sanction order Ex.PW.5/A was prepared. C.C.No.: 47 / 2011 Page No.37 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 He categorically denied the suggestions that these documents were never put up before Minister of External Affairs.
67. In view of this oral and documentary evidence on record, I am of the considered opinion that merely because Ex.PW.5/A was signed by PW5 Deb Nath Shaw, that does not make him the sanctioning authority, or vitiates, the approval granted by the then Minister of External Affairs for prosecution of Rakesh Kumar.
68. I am fortified to arrive at this conclusion as the facts of the present case are exactly similar to the one which came up before Hon'ble Supreme Court in the case titled "State of Rajasthan Vs. Tara Chand" reported as AIR 1973 SC 2131, wherein the Supreme Court has held that : "Where the facts constituting the offence appear on the face of the sanction accorded by the Chief Minister, it is not necessary for the prosecution to lead separate evidence to show that the relevant facts were placed C.C.No.: 47 / 2011 Page No.38 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
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before the Chief Minister." Hon'ble
Supreme Court further held that the facts Chief Minister signed the sanction order for prosecution on the file and not the formal sanction produced in Court, which bears the signatures of Special Secretary to the Government makes no material difference.
69. This observation of Hon'ble Supreme Court was also relied upon in another case titled "Nanjibhai Ratnabhai Chaudhari Vs. State of Gujarat" reported as 1991 Cr.L.J. 2313 (Gujarat).
70. In the present case, it is apparent on perusal of the detailed note Ex.PW.5/DX and Ex.PW.5/DY which bears signatures of Minister of External Affairs, that all the facts constituting the offence and the material collected by the investigating agency were placed before the then Minister of External Affairs, who after perusal of the same, had appended his signatures on Ex.PW.5/DX and thereafter had accorded his approval on the recommended actions mentioned in Para4 of Ex.PW.5/DY, by putting his C.C.No.: 47 / 2011 Page No.39 of 42 CBI Vs. Rakesh Kumar & Ors. CC No.: 47 / 11.
Dated : 08.03.2013 signatures at Point B. Merely because, Ex.PW.5/A, the formal sanction order is not signed by the Minister of External Affairs, that does not vitiates the sanction order, as the same was issued only after grant of approval of the Minister of External Affairs for prosecution of Rakesh Kumar. The signatory to Ex.PW.5/A thus, was only an issuing authority and that too, on the basis of the approval accorded by the competent authority, which in this case was Minister of External Affairs. PW5 had signed this sanction order as per the "Allocation of Business Rules"
conveying that it was granted by Central Government, the competent authority. In view thereof, there is no question of any delegation of powers by Hon'ble Minister to PW5.
As the sanction order though signed by PW5 was in fact granted and approved by the Minister of External Affairs.
71. Consequently, the argument advanced that PW5, signatory to Ex.PW.5/A, could not have issued the sanction order as he did not have any power to do the same, is devoid of any merits.
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72. Even otherwise, Ld.Defence Counsel has not placed anything on record to show that from the sanction order Ex.PW.5/A or from the proceedings which led to passing of the sanction order, any failure of justice has resulted to the accused Rakesh Kumar.
73. In view of these facts and circumstances coupled with the above discussion, the application filed on behalf of accused no.1 Rakesh Kumar, stands rejected.
74. Before parting with this order, I would hasten to add that nothing mentioned hereinabove, shall tantamount to any expression on the merits of the case, as evidence is yet to be led by the Prosecution and if so desired, by the accused persons.
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75. Matter be now listed for prosecution evidence on 02 April, 2013.
nd Announced in open court on 08 Day of March, 2013.
th (KANWAL JEET ARORA) SPECIAL JUDGE : CBI (PC ACT), DWARKA COURTS, NEW DELHI.
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