Madras High Court
C.J.Christopher Signi vs The State Represented By on 10 November, 2021
Crl.R.C.(MD)No.410 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON :20.06.2022
PRONOUNCED ON: 18.07.2022
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.410 of 2022
C.J.Christopher Signi : Petitioner
Vs.
The State represented by
The Inspector of Police,
Vigilance and Anti Corruption,
Kanyakumari Detachment @ Nagercoil. : Respondent
PRAYER : Criminal Revision Case has been filed under Section 397(1) r/w 401
Cr.P.C., to call for the records of the order in Crl.M.P.No.4336/2021, in Special
Case No.2 of 2020, on the file of the Special Judge-cum-Chief Judicial
Magistrate, Kanyakumari District at Nagercoil, dated 10.11.2021 and set aside
the same.
For Petitioner : Mrs.L.Victoria Gowri
For Respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
https://www.mhc.tn.gov.in/judis
1/17
Crl.R.C.(MD)No.410 of 2022
ORDER
This Criminal Revision is directed against the order passed in Crl.M.P.No. 4336 of 2021 in Special Case No.2 of 2020, dated 10.11.2021, on the file of the Special Judge-cum-Chief Judicial Magistrate, Kanyakumari District at Nagercoil, dismissing the petition for discharge filed under Section 227 Cr.P.C.
2. The petitioner is the sole accused in Special Case.No.2 of 2020, on the file of the Court of the Chief Judicial Magistrate, Kanyakumari District at Nagercoil. The case of the prosecution is that the accused was working as an Electrical Inspector, Tirunelveli from 22.02.2018 to 23.11.2018, that on 22.09.2018 at about 04.00p.m., the accused inspected the 20KVA Generator installed by him at M/s Elim Nets, 16/25-1, Alankottai Main Road, Ganapadhipuram, Kanyakumari District and demanded Rs.10,000/- as illegal gratification to issue safety certificate for the generator, that when the complainant met the accused again on 26.09.2018 at about 06.00p.m., at M/s S.M.Mukki Marine Engine Gear Boxes Pvt., Ltd., at Thovalai, Kanyakumari District, the accused reiterated his earlier demand and subsequently reduced the amount to Rs.8,000/-, that the accused on 23.11.2018 at about 16.20 hours at MJC Clothes Care at Azhagappapuram, Kanyakumari District reiterated his earlier demand of bribe and accepted Rs.8,000/- from the complainant and that thereby, the petitioner had committed the offence punishable under Section 7(a) https://www.mhc.tn.gov.in/judis 2/17 Crl.R.C.(MD)No.410 of 2022 of the Prevention of Corruption Act, 1988 (as amended by Act 16 of 2018). The respondent, after completing the investigation has laid the final report and the case was taken on file in Special Case No.2 of 2020 and is pending on the file of the Chief Judicial Magistrate, Nagercoil.
3. It is not in dispute that the petitioner/accused has earlier filed a petition in Crl.O.P.(MD)No.1940 of 2021 under Section 482 Cr.P.C., to call for the records pertaining to the charge sheet in Special Case No.2 of 2020, on the file of the Chief Judicial Magistrate, Nagercoil and quash the same and that this Court, vide order dated 22.06.2021, dismissed the said petition. It is evident from the records that thereafter, the petitioner/accused has filed a petition under Section 227 Cr.P.C., in Crl.M.P.No.4336 of 2021 seeking discharge from the case in Special Case No.2 of 2020, pending on the file of the Chief Judicial Magistrate, Nagercoil.
4. The respondent police has filed a counter statement raising serious objections.
5. The learned Chief Judicial Magistrate, after enquiry, has passed the impugned order dated 10.11.2021 dismissing the discharge petition. Aggrieved by the dismissal order, the accused has come forward with the present revision petition.
https://www.mhc.tn.gov.in/judis 3/17 Crl.R.C.(MD)No.410 of 2022
6. The main grounds raised by the petitioner/accused for seeking discharge are as follows:
(i) The sanctioning authority, who was working as Principal Secretary to Government, Highways and Minor Ports Department, has no authority to accord sanction for prosecution against the petitioner/accused, that the sanction order was given after six months from the receipt of request dated 19.09.2019 and that the sanctioning authority has not applied his mind before according sanction for prosecution;
(ii) The main ingredients of vigilance cases are demand, acceptance and recovery – but in the present case, there is no demand made by the petitioner as alleged by the prosecution and without any demand from the petitioner, the defacto complainant lodged the above complaint and on the basis of which, F.I.R., came to be registered;
(iii) Since the petitioner/accused is “A” Grade officer, the investigation has to be done by the Deputy Superintendent of Police, but in the present case, the investigation was conducted by the https://www.mhc.tn.gov.in/judis 4/17 Crl.R.C.(MD)No.410 of 2022 Inspector of Police;
(iv) The confession alleged to have been taken from the accused is inadmissible in evidence, as there is no recovery made by the Investigating Officer from the petitioner – the respondent has not produced the CCTV camera which were available in the locality – the respondent police has not followed the procedures contemplated in the Code of Criminal Procedure as well as the Prevention of Corruption Act;
7. Regarding the sanction for prosecution, it is the specific contention of the prosecution that Thiru.Karthik, I.A.S., who was working as Principal Secretary to Government, Highways and Minor Ports Department, was also holding full additional charge of the post of the Principal Secretary to Government, Energy Department at Secretariat, Chennai from 06.02.2020 onwards, that he had received the file relating to the sanction and prepared the sanction order as per G.O.(Ms)No.17, Energy(D-2) Department, dated 24.03.2020 and the sanction order was signed by the said Karthik on 08.04.2020, that Thiru.S.K.Prabhkar was working as the Prinicipal Secretary, Energy Department subsequently from 08.11.2020 and that therefore, the sanction was given by the competent authority and as such, the same is very much valid and https://www.mhc.tn.gov.in/judis 5/17 Crl.R.C.(MD)No.410 of 2022 legal.
8. Regarding the alleged delay, it is the further contention of the prosecution that the date of receipt of the file from DVAC is not 19.09.2019 and it is the date of submission of report by the Investigating Officer to the Director, DVAC.
9. At the outset, this Court is constrained to say that the sanction for prosecution is contemplated to afford a reasonable protection to the public servants in the discharge of their official function, but the same should not be taken as a shield to protect the corrupt and dishonest public servants. No doubt, the learned Counsel for the petitioner has relied on the following decisions of the Hon'ble Supreme Court to canvass their contention that the sanction is invalid, which are as follows:
(i) In State Of Karnataka through CBI vs C. Nagarajaswamy reported in CDJ 2005 SC 774, wherein the Hon'ble Apex Court held as follows:
“15. 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 therefor or not, at the stage of final arguments after trial, the same may have to be https://www.mhc.tn.gov.in/judis 6/17 Crl.R.C.(MD)No.410 of 2022 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.
16. 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. [See Ashok Sahu Vs. Gokul Saikia and Another, 1990 (Supp) SCC 41 and Birendra K. Singh Vs. State of Bihar, JT 2000 (8) SC 248]”
(ii) In Romesh Lal Jain vs Naginder Singh Rana and Others reported in CDJ 2005 SC 852, wherein the Hon'ble Apex Court held as follows:
“48. The question as to whether an order of sanction would be found essential would, thus, depend upon the facts and circumstances of each case. In a case where ex facie no order of sanction has been issued when it is admittedly a pre-requisite for taking cognizance of the offences or where such an order apparently has been passed by the authority not competent therefor, the court may take note thereof at the outset. But where the validity or otherwise of an order of sanction is required to be considered having regard to the facts and circumstances of the case and furthermore when a contention has to be gone into as to whether the act alleged against the accused has any direct nexus with the discharge of his official act, it may be permissible in a given situation for the court to examine the said question at a later stage.” https://www.mhc.tn.gov.in/judis 7/17 Crl.R.C.(MD)No.410 of 2022
10. It is necessary to refer the decisions of the Hon'ble Supreme Court in State of Telangana Vs. Sri Managipet @ Mangipet Sarveshwar Reddy reported in (2019)9 SCC 87, wherein it was held as follows:
“ 36. The High Court has rightly held that no ground is made out for quashing of the proceedings for the reason that the investigating agency intentionally waited till the retirement of the Accused Officer. The question as to whether a sanction is necessary to prosecute the Accused Officer, a retired public servant, is a question which can be examined during the course of the trial as held by this Court in K. Kalimuthu. In fact, in a recent judgment in Vinod Kumar Garg v. State (Government of National Capital Territory of Delhi)19, this Court has held that if an investigation was not conducted by a police officer of the requisite rank and status required under Section 17 of the Act, such lapse would be an irregularity, however unless such irregularity results in causing prejudice, conviction will not be vitiated or be bad in law. Therefore, the lack of sanction was rightly found not to be a ground for quashing of the proceedings.”
11. The learned Additional Public Prosecutor appearing for the respondent would submit that mere error, omission or irregularity in sanction is not considered to be fatal, unless it has resulted in failure justice or has been https://www.mhc.tn.gov.in/judis 8/17 Crl.R.C.(MD)No.410 of 2022 occasioned thereby and relied on the judgment of the Hon'ble Supreme Court in State by Police Inspector vs Sri. T. Venkatesh Murthy reported in (2004)7 SCC 763, wherein the Hon'ble Apex Court held as follows:
“7. A combined reading of sub-sections (3) and (4) make the position clear that notwithstanding anything contained in the Code no finding, sentence and 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 sub-section (1), unless in the opinion of that court a failure of justice has in fact been occasioned thereby.
14. In the instant case neither the Trial Court nor the High Court appear to have kept in view the requirements of sub-section (3) relating to question regarding "failure of justice". Merely because there is any omission, error or irregularity in the matter of according sanction that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. The same logic also applies to the appellate or revisional court. The requirement of sub- section (4) about raising the issue, at the earliest stage has not been also considered. Unfortunately the High Court by a practically non- reasoned order, confirmed the order passed by the learned trial judge. The orders are, therefore, indefensible. We set aside the said orders. It would be appropriate to require the trial Court to record findings in terms of clause (b) of https://www.mhc.tn.gov.in/judis 9/17 Crl.R.C.(MD)No.410 of 2022 sub-section (3) and sub-section (4) of Section 19.
12. In State Of Bihar and Others vs Rajmangal Ram (Crl.A.Nos.708 to 710 of 2014, dated 31.03.2014), the Hon'ble Apex Court has held that in view of Section 19(3) of the PC Act, interdicting a criminal proceeding mid-course on ground of invalidity of the sanction order will not be appropriate unless the court can also reach the conclusion that failure of justice had been occasioned by any such error, omission or irregularity in the sanction. It was further held that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and evidence is led. The Hon'ble Supreme Court has further specifically observed that more appropriate stage for reaching the said conclusion would have been only after evidence in the cases had been led on the issue in question.
13. As already pointed out, the petitioner has already filed a Criminal Original Petition under Section 482 Cr.P.C., for quashing the charge sheet and in that petition, he has raised two grounds and the first one is with respect to sanction and the second one is with respect to want of demand for money. No doubt, as rightly contended by the learned Counsel for the petitioner, just because the petition filed under Section 482 Cr.P.C., to quash the charge sheet is dismissed by the High Court, the same will not debar or prevent that accused from seeking discharge of the case before the trial Court, by invoking Section https://www.mhc.tn.gov.in/judis 10/17 Crl.R.C.(MD)No.410 of 2022 227 Cr.P.C.
14. The learned Chief Judicial Magistrate has rightly applied the decision of the Hon'ble Supreme Court in Harish Dahiya alias Harish and another Vs. State of Punjab and Others reported in (2019)18 SCC 69, wherein the Hon'ble Supreme Court has held that the grounds for quashing a criminal proceedings and the grounds for application for discharge are completely different and the two jurisdictions are completely different. The Hon'ble Supreme Court has further held that merely because an earlier application to quash the entire prosecution under Section 482 Cr.P.C. was dismissed, the trial Court could not decline to consider the application for discharge on that ground. As already pointed out, the learned Chief Judicial Magistrate, by rightly applying the said dictum, has considered the discharge application on merits and dismissed the same.
15. But at the same time, it is pertinent to note that the petitioner has mainly canvassed the ground relating to sanction for quashing the charge sheet and this Court, while exercising its jurisdiction under Section 482 Cr.P.C., considered the same and rejected the same and the relevant portion of the order is extracted hereunder for better appreciation:
“ In view of the submissions made by the learned Counsel on either side and on perusal of the materials available on record, this https://www.mhc.tn.gov.in/judis 11/17 Crl.R.C.(MD)No.410 of 2022 Court is of the view that after due investigation, when charge sheet is laid before the competent jurisdictional Court, raising of objections cannot be allowed by this Court. It is for the petitioner to agitate the same before the trial Court during trial. Hence, this petition is liable to be dismissed as not maintainable.
In the result, this Criminal Original Petition is dismissed and the points for consideration is answered against the petitioner and in favour of the respondent prosecution. The petitioner is at liberty to agitate his right regarding sanction before the trial Court concerned.”
16. Considering the above, the learned Judge of this Court, while exercising the power under Section 482 Cr.P.C., has specifically held that the said aspect relating to sanction can be agitated at the trial before the concerned Court. Admittedly, the petitioner/accused has not challenged the said order passed by this Court in Crl.O.P.(MD)No.1940 of 2021, dated 22.06.2021. As already pointed out, in the discharge petition also, the petitioner has raised the issue relating to sanction as the main ground for discharge. Hence, this Court is at loss to understand as to how the petitioner can canvass the very same ground when the same was rejected by this Court. Hence, this Court has no hesitation to hold that the petitioner is estopped from raising that plea again, when he is at liberty to agitate the said issue at the trial before the concerned Court.
17. Regarding the other ground of want of demand for money, as already pointed out, the petitioner has also canvassed that aspect before this Court in the https://www.mhc.tn.gov.in/judis 12/17 Crl.R.C.(MD)No.410 of 2022 petition filed under Section 482 Cr.P.C., and the learned Judge of this Court has specifically held that the other contentions raised with regard to demand, delay etc., cannot be gone into by this Court and it is for the petitioner/accused to agitate them during trial as his valuable defence.
18. The learned Additional Public Prosecutor appearing for the respondent would submit that there are specific allegations with regard to demand made by the petitioner and it is for the prosecution to prove the same at the trial and as such, the same cannot be gone into at this stage, that too in the discharge application.
19. As already pointed out, the petitioner has also raised another ground that the investigation should have been done by the Deputy Superintendent of Police and not by the Inspector of Police. The learned Additional Public Prosecutor appearing for the respondent would submit that as per G.O.Ms.No. 269, P&AR (Per.N), dated 04.06.1990, the Government of Tamil Nadu had notified that under the first Proviso to Section 17 of the Prevention of Corruption Act, all the Inspector of Police of the Directorate have been authorized to exercise the powers of investigation and arrest mentioned in that proviso, but excluding the powers to arrest without a warrant, any officer belonging to Group A or B in the pay scale, the maximum of which is above Rs.3,500/-. He would https://www.mhc.tn.gov.in/judis 13/17 Crl.R.C.(MD)No.410 of 2022 further submit that in the case on hand, the petitioner was arrested only by the Deputy Superintendent of Police, Vigilance and Anti-corruption, Kanyakumari Detachment at Nagercoil and only on the basis of the approval given by the Superintendent of Police, V&AC, Southern Range, the F.I.R., came to be registered and the case was investigated.
20. The learned Additional Public Prosecutor appearing for the respondent has also produced the copy of the Government Order in G.O.(Ms) No.155, Personnel and Administrative Reforms (N) Department, dated 26.10.2010, wherein the orders were issued to the Inspectors of Police of the Directorate of Vigilance and Anti-Corruption, to exercise the powers of investigation and arrest specified in the said proviso, but excluding the power to arrest without a warrant, any officer belonging to Groups “A” and “B” in the pay scale, the maximum of which is above Rs.11,100/-.
21. Considering the above, the objections of the petitioner are absolutely devoid of substance and the same are liable to be rejected.
22. Now coming to the other aspects, the non-production of CCTV camera, which is available in the locality, the registration of F.I.R without any enquiry, improper investigation, as rightly observed by the learned Chief Judicial https://www.mhc.tn.gov.in/judis 14/17 Crl.R.C.(MD)No.410 of 2022 Magistrate, are the aspects that cannot be gone into at this stage and are matter for trial.
23. Considering the above, the impugned order of the learned Chief Judicial Magistrate, Nagercoil dismissing the discharge application cannot be found fault with. Hence, this Court concludes that the Criminal Revision Case is devoid of merits and the same is liable to be dismissed.
24. In the result, the Criminal Revision Case is dismissed.
18.07.2022 Index : Yes/No Internet : Yes/No SSL Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To
1. The Special Court-cum-Chief Judicial Magistrate Court, Kanniyakumari District at Nagercoil.
2. The Inspector of Police, Vigilance and Anti Corruption, https://www.mhc.tn.gov.in/judis 15/17 Crl.R.C.(MD)No.410 of 2022 Kanyakumari Detachment @ Nagercoil.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 16/17 Crl.R.C.(MD)No.410 of 2022 K.MURALI SHANKAR, J.
SSL PRE-DELIVERY ORDER MADE IN Crl.R.C.(MD)No.410 of 2022 18.07.2022 https://www.mhc.tn.gov.in/judis 17/17