Orissa High Court
Prabir Kumar Pradhan vs State Of Orissa ...... Opp. Party on 17 July, 2012
Equivalent citations: 2012 CRI. L. J. 4394, (2012) 120 ALLINDCAS 559 (ORI), (2013) 80 ALLCRIC 76, (2013) 1 CRIMES 632, (2012) 2 ORISSA LR 604, (2012) 53 OCR 155
Author: I.Mahanty
Bench: Indrajit Mahanty
THE HIGH COURT OF ORISSA : CUTTACK
CRLMC NO.1484 OF 2004
In the matter of an application under Section 482 of the Code of
Criminal Procedure.
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Prabir Kumar Pradhan ...... Petitioner
-Versus-
State of Orissa ...... Opp. Party
For Petitioner : M/s. D.P. Dhal, S.K. Dash &
P.K. Routray.
For Opp. Party : Additional Standing Counsel
(Vigilance Department)
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PRESENT:
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.
Date of hearing and judgment: 17.07.2012
I. Mahanty, J.The present application under Section 482 Cr.P.C. has been filed by the petitioner-Prabir Kumar Pradhan with a prayer to quash the order dated 31.07.2002 passed in T.R. Case No.76 of 2002, whereby, the learned Special Judge (Vigilance), Bhubaneswar has been pleased to take cognizance of the offence under Section 13(2) 2 read with Section 13(1)(d) of P.C. Act & 120-B I.P.C. against him along with three others.
2. Mr. Dhal, learned counsel for the petitioner vehemently submits that as on the date of passing of the order of cognizance i.e. on 31.07.2002, the petitioner was working as Executive Engineer, Rural Works Division, Cuttack and as stipulated in Section 19 of the Prevention of Corruption Act, 1988 (In short 'P.C. Act'), the learned Special Judge (Vigilance), Bhubaneswar was not competent to take cognizance of the offence against the present petitioner purportedly on the ground that the mandatory sanction as required to take cognizance under Section 19 of the said Act for the proceeding had not been obtained.
Mr. Dhal further submits that, in fact, while the charge sheet was submitted on 8.7.2002, the impugned order of cognizance was passed on 31.07.2002 and no sanction had been obtained by the prosecution by the said date. He further submits that the petitioner who was admittedly a public servant was sought to be prosecuted in the present proceeding, the court of the learned Special Judge (Vigilance), Bhubaneswar ought not to have passed the order of cognizance on 31.07.2002, since, no previous sanction had been obtained by the prosecution nor was any order of sanction produced 3 before the court by the said date, as stipulated in Section 19 of the P.C. Act, 1988.
3. Learned counsel for the petitioner in support of his contentions placed reliance on the following three judgments i.e. (1) Surendra Nath Swain v. State of Orissa and 7 others, 2005(II) OLR 714, (2) Dilawar Singh v. Parvinder Singh Alias Iqbal Singh and Another, (2005) 12 S.C.C. 709, (3) State through Central Bureau of Investigation v. Parmeshwaran Subramani & Anr., (2009) 44 OCR (SC) 606.
4. Mr. P.K. Pani, learned Additional Standing Counsel for the Vigilance Department, fairly submits that, in fact, on the date of passing of the impugned order of cognizance i.e. on 31.07.2002, no sanction had been obtained by the prosecution by the said date. He further fairly submits that no sanction whatsoever was produced before the court on the date the order of cognizance was passed. It was further submitted that from amongst the four accused persons, only the present petitioner was continuing as the Government servant as on the date of the prosecution and prior sanction as contemplated under Section 19 of the P.C. Act, 1988 was mandatory for a court to take cognizance of such offence. But while making the submissions as noted hereinabove, Mr. Pani, placed reliance on the judgments of the Hon'ble Supreme Court in the case of State of T.N. V. M.M. 4 Rajendran, (1998) 9 SCC 268 as well as in the case of State of Karnataka through C.B.I. v. C. Nagarajaswamy, A.I.R. 2005 S.C. Vol-8, 370.
Considering the submissions advanced, it would be useful here to quote Section 19(1) of the Prevention of Corruption Act, 1988.
"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."
5. There is no dispute at the bar about the mandatory requirement of "prior sanction" for the purpose of passing of the order of cognizance by the competent court. Admittedly, at the time, the impugned order was passed i.e. on 31.07.2002, no sanction had been obtained by the prosecution for prosecuting the present petitioner. It is also a further fact that, the prosecution did obtain sanction order from the competent authority but only on 18.03.2004. Therefore, in the light of the limited facts which are noted here in, the issue that 5 arises for consideration in the proceeding is, as to whether "post facto sanction" can be given and whether such post facto sanction, can cure the defect in the filing of the charge sheet and passing the impugned order of cognizance. The aforesaid issue was framed by this Court vide its order dated 12.08.2004 and the said issue is no longer res integra, in view of the decision cited at the bar.
In the Case of Dilawar Singh v. Parvinder Singh Alias Iqbal Singh and Another, (2005) 12 S.C.C. 709, the Hon'ble Supreme Court came to hold in paragraphs-4 & 7 that:
"4. In our opinion, the contention raised by the learned counsel for the appellant is well founded. Sub-section(1) of Section 19 of the Act, which is relevant for the controversy in dispute, reads as under:
"19. Previous sanction necessary for prosecution.-(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office."
This section creates a complete bar on the power of the court to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 6 alleged to have been committed by a public servant, except with the previous sanction of the competent authority enumerated in clauses (a) to
(c) of this sub-section. If the sub-section is read as a whole, it will clearly show that the sanction for prosecution has to be granted with respect to a specific accused and only after sanction has been granted that the court gets the competence to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by such public servant. It is not possible to read the section in the manner suggested by the learned counsel for the respondent that if sanction for prosecution has been granted quo one accused, any other public servant for whose prosecution no sanction has been granted, can also be summoned to face prosecution.
7. In State of Goa v. Babu Thomas decided by this Bench on 29.09.2005, it was held that in the absence of a valid sanction on the date when the Special Judge took cognizance of the offence, the taking of cognizance was without jurisdiction and wholly invalid. This being the settled position of law, the impugned order of the High Court directing summoning of the appellant and proceeding against him along with Jasbir Singh, ASI is clearly erroneous in law."
6. Apart from the aforesaid judgment which has been relied upon by the petitioner, it would also be necessary to refer to the citation relied upon by the prosecution, in the case of State of T.N. v. M.M. Rajendran, (1998) 9 S.C.C. 268. In the said case, the Hon'ble Supreme Court came to conclude that, if the High Court came to a finding that necessary prior sanction had not been obtained in a prosecution on an allegation under the Prevention of Corruption Act, 1988, the High Court need not have made the finding on merits of the 7 case and hence concluded that "Therefore, the High Court need not have made the finding on merits about the prosecution case. We make it clear that finding made by the courts on the merits of the case will stand expunged and will not be taken into consideration in future. In our view, the High Court should have passed the appropriate order by dropping the proceeding and not entering into the question of merits after it had come to the finding that the proceeding was not maintainable for want of sanction."
Reliance was also made on the case of State of Karnataka through C.B.I. v. C. Nagarajaswamy, A.I.R. 2005 S.C. Vol-8, 370. In the facts and circumstances of the said case, the Hon'ble Supreme Court was dealing with two judgments passed in two separate criminal appeals and the relevant portion of which is noted hereunder:
Criminal Appeal No.1279:
The Respondent herein was working as a Junior Telecom Officer in Shankarapuram Telecom Exchange. One R. Veera Prathap made a complaint that he had demanded an illegal gratification for showing official favour whereupon a case in Crime No.R.C.34A/1994 was registered. A charge sheet was filed therein and the Special Judge for CBI cases, Bangalore by an order dated 16.07.1999 took cognizance of an offence under Section 7 of the Prevention of Corruption Act, 1988 (for short "the Act"). In the trial, 12 witnesses were examined. The statement of Respondent under Section 313 of the Code was also recorded.8
The learned Special Judge formulated two points for his determination:
"1. Whether the prosecution has proved that the sanction accorded for the prosecution of the accused in this case is a valid sanction?
2. Whether the prosecution has further proved beyond any reasonable doubt that the accused has committed the offences punishable under S.7 and under S.13(1)(d) R/w. S 13(2) of the Prevention of Corruption Act, 1988?
In regard to point No.1, the learned Special Judge was of the opinion that the sanction for prosecution accorded by P.W.11 was illegal and in that view of the matter, the same was determined in favour of the Respondent. In view of his findings as regard point No.1, the learned Special Judge did not record any finding on point No.2 and directed as under:
"Accused C. Nagarajaswamy is hereby discharged from the proceedings and his bail bonds stand cancelled."
A fresh charge sheet was filed after obtaining an order of sanction which came to be challenged before the High Court by the Respondent in an application filed under Section 482 of the Code.
The Hon'ble Supreme Court in the aforesaid case placed reliance on the earlier judgments rendered by it in Baij Nath Prasad Tripahty vs. The State of Bhopal, (1957) SCR 650 and in the case of Mohammad Safi Vs. The State of West Bengal, AIR 1966 SC 69 and accepted the contentions on behalf of the petitioner that in a case where an appropriate order of sanction was not passed, the court will have no jurisdiction to take cognizance thereof and as such the judgment passed therein shall be illegal and of no effect, but a subsequent trial with proper sanction is not barred. 9
7. Having heard learned counsel for the respective parties, taking note of the submission made by them and by referring to the various judgments relied upon by both the parties, this Court is of the considered view that the impugned order of cognizance dated 31.07.2002, passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No.76 of 2002 suffers from gross miscarriage of justice, inasmuch as, the learned Special Judge, Vigilance ought not to have taken cognizance on 31.7.2002 against the present petitioner, since, admittedly, no sanction had been obtained by the prosecution for prosecuting the present petitioner on the date the order of cognizance was passed. Further, since the order of cognizance was ex-facie without jurisdiction, the sanction received thereafter cannot cure such inherent defect.
8. Apart from the above, on reading of the impugned order, it appears that the said order has been passed mechanically without applying judicial mind to the facts and circumstances of the case and while the learned Special Judge (Vigilance), Bhubaneswar in the impugned order has noted that he "perused the sanction order", it is a sad to take note of the fact that admittedly, no such "sanction order" itself existed on the date of the order of cognizance i.e. on 31.07.2002. This Court is compelled to express its dissatisfaction in this regard.
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9. In view of the aforesaid conclusions/findings arrived at in the case, the CRLMC is allowed and the order of cognizance dated 31.07.2002 against the present petitioner-Prabir Kumar Pradhan, passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No.76 of 2002 is hereby quashed.
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I.Mahanty,J.
ORISSA HIGH COURT : CUTTACK 17th July, 2012/P.K.Pradhan