Delhi District Court
Cbi.... vs ....Ashok Kumar Aggarwal & Others. on 28 July, 2007
IN THE COURT OF SHRI G.P.MITTAL : SPECIAL JUDGE :
DELHI
CBI....VS....ASHOK KUMAR AGGARWAL & OTHERS.
R.C. 6(E)/1999/CBI/SIU (IX)/ N.D.
CC NO. 55/2002
ORDER.
1.Accused S/Sh.Ashok Kumar Aggarwal (hereinafter referred to as the applicant) , Vijay Kumar Aggarwal, Mohan Lal Aggarwal, Ram Bilas Aggarwal, Mrs. Urvashi Aggarwal, Mrs. Sangeeta Aggarwal, Mrs. Manju Aggarwal, Smt. Sita Devi, Shri Shish Ram and Shri SM Jindal have been sent up to this court to face trial for the offence punishable U/s. 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 read with Section 120-B IPC read with Section 109, 419, 420, 467, 468 and 471 IPC.
2. Since applicant Ashok Kumar Aggarwal is a public servant sanction dated 26.11.2002 was obtained by the CBI Under Section 19 of the Prevention of Corruption Act, 1988 (for short the Act) for prosecution of the applicant, which is a condition precedent for taking cognizance against the applicant for an offence punishable Under Section 7, 10, 11, 13 and 15 of the 2 Act. The case of the applicant is that the sanction obtained by the CBI is not valid and therefore the cognizance taken is bad and he is entitled to be discharged.
3. According to the case of the prosecution, the applicant entered Indian Revenue Service in the year 1985. The applicant and his family members had incorporated various companies since the year 1985 and had created capital therein by bogus entries, some of which were in the names of non existent persons. It is the case of the prosecution that some of the account opening forms and specimen signature cards from which the money had traveled to the various companies were found to be filled up in the handwriting of applicant Ashok Kumar Aggarwal ; some pay in slips for deposit of the money in respect of certain accounts were also found to be in the handwriting of applicant Ashok Kumar Aggarwal. At the moment, I am not concerned with the details of the allegations of the prosecution as I am simply to decide whether a valid and a legal sanction had been accorded by the sanctioning authority for prosecution of the applicant or not. The gravamen of the charge against the applicant is that he was found to have accumulated disproportionate assets to the tune of Rs.12,04,46,936.78.
34. According to the case of the applicant, the investigations were not being conducted fairly and impartially by the Investigating Officers; rather they were abusing and misusing their office in order to falsely implicate the applicant. The applicant, therefore, filed a Criminal Writ Petition No. 938 of 2001 in Hon'ble Delhi High Court seeking transfer of the cases from the officers investigating the case to some other high ranking CBI Officers. On 5.4.2002, the Investigating Officers of the two RCs i.e. RC No. S18(E)- 0001/1999 dated 29.1.1999 and (for short RC No.1/99) RC No. S 19 /E-0006/1999 dated 7.12.1999 (for short RC No.6/99) informed the Hon'ble Delhi High Court that the investigation in both the RCs was complete; in RC No.1/99 a proposal seeking sanction had already been sent to the Revenue Secretary and other concerned authorities, while in RC No.6/99 the Joint Director, CBI was processing the final report submitted by the Investigating Officer. It has been pleaded that in view of the affidavit the following order was passed by the Hon'ble Delhi High Court on 9.4.2002 :-
"In view of this position, both sides agree to the disposal of this petition by the following order :-
Revenue Secretary and/or other concerned authorities who are seized of RC SI 8/99 are directed to examine and consider the record of investigation 4 fairly and objectively taking in regard all relevant factors and circumstances and then pass appropriate orders under law within two months from receipt of this order.
Director CBI is also directed to examine the investigation record of RC SI 9/99 and to consider all relevant aspects and factors in the light of petitioner's complaints and to pass appropriate orders under law in the matter within two months from the receipt of this orders. "
5. The applicant alleges that the Director, CBI failed to consider the complaints made by the applicant and to pass appropriate orders thereon and instead proceeded to obtain sanction for prosecution against the applicant. On 3.6.2002, the applicant received a letter dated 31.5.2002 from Director, CBI asking the applicant to seek an appointment with Director, CBI over phone in the said case. According to the applicant, the said letter was an eye wash and an empty formality because before that date, the SP CBI vide his letter dated 24.5.2002 had already sought the sanction for prosecution of the applicant from the Revenue Secretary. The applicant vide his letter dated 4.6.2002 requested Director, CBI that the proposal for seeking prosecution of the applicant may be kept in abeyance and the applicant may be given an opportunity of handing over his complaints and explaining the same in person in compliance with the 5 direction of the Hon'ble Delhi High Court vide order dated 9.4.2002. However, the applicant was not afforded any such opportunity by the Director, CBI. The applicant therefore made written representations to the Chief Vigilance Commissioner. He also met Shri N.Vithal, Chief Vigilance Commissioner and was informed that the CVC had supported the proposal for sanction for prosecution against the applicant based on SP's report only. According to the applicant, in case no.1/99 the Revenue Secretary had granted sanction on 21.6.2002 only on the basis of SP's report in complete violation of the orders dated 9.4.02 passed by Delhi High Court (Case RC 1/99 is the other case against the applicant). In the instant case i.e. RC 6/99, there was lot of pressure upon the sanctioning authority from Director, CBI and therefore Director General had preferred to offer no comments to the SP's report. According to the applicant, since the directions of Hon'ble Delhi High Court vide order dated 9.4.2002 in Writ Petition no. 938/2001 were not being complied with by Director, CBI and by the Revenue Secretary, the applicant filed Misc. Petition No.1049/2002 claiming relief inter alia seeking direction to the Director, CBI for considering and examining the complaints/representations of the applicant as well as Income Tax Assessment Record of the family members 6 of the applicant fairly and objectively and then to pass an appropriate order in compliance of the earlier order dated 9.4.2002.
6. The applicant alleges that despite issuance of show cause notice dated 27.11.2002 by the Hon'ble Delhi High Court, Dr. V.K. Singh, Under Secretary (V&L) Section, CBDT under pressure from the officials of the CBI issued sanction letter ante dating his signatures as on 26.11.2002. It has been submitted that it is borne out from the record that the statements of the witnesses recorded U/s. 161 Cr.PC., statements recorded before the Magistrate U/s. 164 Cr.PC., the case diaries and the documents were never sent to the Sanctioning Authority. The sanction letter refers to a number of documents marked Q (series) which were also never sent to the Sanctioning Authority. If there was to be application of mind, the CBI ought to have sent statements of all the witnesses recorded U/s. 161 or 164 Cr.PC. ; the representation dated 10.6.2002 made by the applicant to the Revenue Secretary informing that the CBI had deliberately and illegally clubbed the assets of the family members in his hands ; representation dated 28.6.2002 made to Revenue Secretary alongwith the copies of Income Tax Assessment Orders for the check period in respect of 7 the either companies owned by Shri Vijay Kumar Aggarwal, brother of the applicant Ashok Kumar Aggarwal ; representation dated 3.7.2002 made to the Revenue Secretary annexing therewith copies of income tax and wealth tax orders for the check period of the parents, brothers, their wives and three HUF of the applicant ; representation dated 19.8.2002 addressed to Director General (Vig.) CBDT annexing therewith copies of the audited balance sheet of the companies owned by Shri Vijay Aggarwal; representation dated 6.11.2002 addressed to Director, CBI alongwith the copies of income tax and wealth tax assessment order of the check period of the family members of the applicant Ashok Kumar Aggarwal as well as the company owned by his brother; representation dated 7.11.2002 addressed to the Hon'ble Finance Minister alongwith the annexure. However, these documents were never considered by the sanctioning authority. On the other hand, alongwith the SP's report, list of only 278 witnesses was sent, whereas the charge sheet filed on 5.12.2002 contains list of 366 witnesses. The sanctioning authority could not have the opportunity of fairly applying its mind to the facts of the present case in as much as alongwith the SP's report, list of only 282 documents were sent , whereas alongwith the charge 8 sheet filed on 5.12.2002, 1220 documents have been filed. The statements of the witnesses Rajinder Kumar Gaoenka, Pawan Kumar Jindal, Rajesh Kumar Jindal were recorded by the Investigating Officer on 10.5.2002, 16.5.2002 and 16.5.2002 respectively after the statement had been made by the Senior Counsel of CBI on 4.4.2002 in the Hon'ble Delhi High Court that investigation in the case has been completed. Statement of 10 witnesses from Sl.No.PW340 to PW349 were recorded by the Investigating Officer from 18.9.2002 to 16.10.2002 i.e. well after sending the SP's report and therefore also there cannot be proper application of mind by the sanctioning authority.
7. In reply to the application, it has been submitted that there was absolutely no reason nor any instance of any abuse of office by the CBI Officer investigating the two RCs referred to above and therefore there was no question of transfer of investigation from the officers handling the cases. This case was registered on normal functioning of branch and there was no question of grudge of any type against the applicant. The CBI denied that order dated 9.4.2002 passed by Hon'ble Delhi High Court was not complied with or that the letter from Office of Director, CBI was an eye wash. It was denied that there was any kind of pressure by the 9 CBI upon the CVC or on the Office of Revenue Secretary, or any other officer. It was stated that the Revenue Secretary and Chief Vigilance Commissioner under law were not obliged to give any hearing to the applicant. The allegations of forgery on the part of the Investigating Officer were denied. It was stated that the legality or otherwise of clubbing the assets of the family members of the applicant with the applicant irrespective of the fact that they were independent income tax and wealth tax assessee shall be judged by the court after examining the charge sheet and the documents collected during investigation. It was stated that all the required material was placed before the sanctioning authority for its perusal. It was submitted that the parallel investigation by the sanctioning authority was not permissible.
8. I have heard Shri Ram Jethmalani, Learned Senior Advocate on behalf of the applicant and Shri N.K.Sharma, Learned Special Public Prosecutor on behalf of the CBI and have perused the record.
9. Existence of a valid sanction is a condition precedent to institution of the prosecution under section 19 of the Act. The intention of the legislature in providing for sanction in respect of the offences mentioned in Section 19 is to afford a reasonable protection to the 10 public servants in the discharge of their official functions and to save them from unnecessary harassment by vexatious proceedings. The section is intended to safeguard the innocent public servants and is not to shield the guilty.
10.It has been urged by the learned counsel for the applicant that as per the case of the prosecution only SP's report was sent to the sanctioning authority. It had two annexure in the shape of list of witnesses and list of documents ; statement of some of the witnesses were recorded after sending SP's report and thus there could not have been any opportunity to examine the statements of the said witnesses. It has been argued that the representations made to various authorities before grant of sanction were not sent to the sanctioning authority and thus there was just one side of the story before the sanctioning authority. It has been urged that to facilitate the sanctioning authority to apply its mind to form an opinion whether sanction should be granted or not, the CBI ought to have sent various representations made by the applicant to different authorities. The learned counsel for the applicant has pointed out that the representation dated 10.6.2002 made by the applicant to the Revenue Secretary informing that the CBI had deliberately and 11 illegally clubbed the assets belonging to his family members in his hands which assets were duly assessed by the income tax and wealth tax authorities were not sent to the sanctioning authority ; the representation dated 28.6.2002 made to Revenue Secretary annexing therewith copies of income tax assessment orders for the check period (1.4.90 to 4.3.99) for the 8 companies owned by Shri Vijay Kumar Aggarwal, brother of the applicant was also not sent to the sanctioning authority. It has been pointed out that similarly the representation dated 3.7.2002 made to Revenue Secretary alongwith copies of income tax and wealth tax assessment orders for the parents, brothers and their wives and three HUF, representation dated 19.8.2002 to Director General Vigilance, CBDT, New Delhi alongwith the copies of audited balance sheet of the companies owned by Shri Vijay Kumar Aggarwal, representation dated 6.11.2002 addressed to Director, CBI alongwith copies of income tax and wealth tax assessment orders during the check period in respect of the family members of the applicant as well as the companies owned by his brother were not put up before the sanctioning authority. Thus the sanctioning authority, it was argued, was kept in dark about the full facts of the present case.
1211. It has been urged that as per D.S.P.Chennai.Vs. K.Inbasagaran - (2006) 1 SCC 420 once the assets are assessed in the name of the family member of the public servant the same cannot be clubbed with the assets of the public servant.
12.The learned counsel of the applicant has taken me through the sanction order dated 26.11.2002 issued by the order and in the name of President of India by Shri V.K. Singh, Under secretary to the Govt. of India and has strenuously canvassed before me that the documents as mentioned in para 27 of the sanction order were admittedly not sent to the sanctioning authority. The statement of facts in para 27 "that the sanction was granted after carefully considering the material placed before him . . . . . . .including the statements of witnesses recorded by the Investigating Officer U/s. 161 Cr.PC. and statements recorded before Magistrate U/s. 164 Cr.PC." is not factually correct, which would go to show that the sanctioning authority did not apply its mind to the facts of the case and put his signatures on the dotted lines at the behest of the senior officers of the CBI. It is thus argued that in the present case the non application of mind is writ large. The cognizance taken is therefore bad and the applicant is entitled to be discharged.
1313. The learned counsel for the applicant has urged that it is now well settled that the case diaries , statement of witnesses recorded U/s. 161 Cr.PC. by the Investigating Officers , statement of witnesses U/s. 164 Cr.PC. recorded by the Magistrate, if any, and all the relevant material must be sent to the sanctioning authority. He has also referred to the photo copy of a letter No.21/33/98-PD written to all the DIsG and all the Superintendent of Police of CBI by the Assistant Inspector General of Police, CBI wherein a reference to the judgment of the Hon'ble Supreme Court in State of Tamil Nandu. Vs. M.M.Rajendran - 1998 SCC (Cri.) 1000 was made and it was impressed that alongwith the SP's report the branches must send the copies of all the relied upon "relevant material" including the statements of witnesses recorded by the Investigating Officer U/s. 161 Cr.PC. and the statements U/s. 164 Cr.PC. recorded by the Magistrate to the authority competent to grant sanction for prosecution. The learned counsel for the applicant has contended that as per the covering letter dated 24.5.2002 written by Shri B.K. Sharma, DIG, CBI to the Additional secretary, Administration whereby the SP's report was sent to him for obtaining the sanction for prosecution from the competent authority would clearly show that it was 14 only a list of witnesses and list of documents which were annexed with the SP's report and thus the CBI itself had not complied with the circular dated 1.12.98 and impliedly the judgment of the Hon'ble Supreme Court in State of Tamil Nadu.Vs.M.M.Rajendran (supra) which by itself would show that all the relevant material was not placed before the sanctioning authority to apply its independent mind and decide whether the sanction should be granted or should be refused. Apart from State of Tamil Nadu..Vs. MM Rajendran (supra), the learned counsel for the applicant heavily relies upon State. Vs. Ravinder Singh, 57(1995) - DLT 506 , Mansukh Lal Vithal Dass Chauhan. Vs. State of Gujrat - (1997) 7 SCC 622 , Suresh Kumar Bhikam Chand Jain. Vs. Pandey Ajay Bhushan & Ors - (1998) 1 SCC 205.
14. The learned counsel for the applicant also relies upon State of Orissa. Vs. Debender Nath Padhi, (2005) 1 SCC 568 on the proposition that the admitted documents can be seen to analyse if there was application of mind by the sanctioning authority.
15. It has been contended by the learned counsel for the applicant that where a public servant has asserted that the offence allegedly committed by him is related in 15 some manner with the discharge of his official duty, it is the duty of the court as also the defence counsel to raise such a plea and to get it decided. Reliance is placed on Amrender Kumar Singh. Vs. The State of Bihar and another - 1989 Patna LJR 122 ; State. Vs. Lal Dass & others - AIR 1953 Bombay 177 ; T.C. Nichodemus Vs. State of Madras - AIR 1955 Madras
581.
16. The learned counsel for the applicant has placed reliance on Gokul Dass Dwarka Dass Morarka. Vs. The King - AIR 1948 PC 82 ; I.V. Subba Rao. Vs. State of Madras - AIR 1949 Madras 710; State. Vs. Hira Nand
- AIR 1958 MP 2 on the proposition that full facts must be placed before the sanctioning authority and it is the duty of the prosecution to prove that the sanction was accorded in relation to the facts of the case.
17. On the other hand, it has been urged by the learned Special Public Prosecutor that full facts and the relevant material should be placed before the sanctioning authority, but it is nowhere the requirement of law that the case diaries or statements of all the witnesses whether U/s. 161 Cr.PC. or U/s. 164 Cr.PC. and all the documents must be sent to the sanctioning authority. The learned Special Public 16 Prosecutor relies on State. Vs. SN Mehra - 1953 Cri.L.J. 1310; Indu Bhushan Chatterjee. Vs. State of W.B. - AIR 1958 SC 148; Ram Sagar Pandit .Vs. State of Bihar
- 1964 (2) Cri.LJ 65; Bhagabat Nath. Vs. State of Orissa - 1980 Cri.L.J. 461 ; M.Srinivasula Reddy .Vs. State Inspector ACB - 1993 Cri.L.J. 558; Pardeep Kumar .Vs. State of Jharkhand - 2002 Cri.L.J. 3796 ; C.S.Krishnamurthy. Vs. State of Karnataka - 2005 SCC (Cri.)923 .
18. The learned Special Public Prosecutor submits that where the sanction order is self contained i.e. where all the material facts are incorporated in the sanction order, the application of mind is apparent from the sanction accorded by the competent authority. In such circumstances, the sanction cannot be challenged atleast at the initial stage i.e. before framing of the charge. The learned Special Public Prosecutor has referred to Narayan. Vs. State - 1956 Cr.LJ 227 ; Indu Bhushan Chatterji. Vs. State of West Bengal - AIR 19558 SC 148 ; State of Bihar & Anr. Vs. PP Sharma & Anr., - 1999 Cr.LJ 1438 ; M. Srinivasula Reddy. Vs. State Inspector, ACB, Nellore Range, Nellore,- 1993 Cr. LJ 558 ; Mohd. Iqbal M. Shaikh & Ors. Vs. State of Maharashtra - 1998 SCC (Cri) 1064 ; C.S. Krishnamuthy. Vs. State of Karnatka - 2005 SCC (Cri) 17 923 ; State Through Inspector of Police . Vs. N. Narasimachary - 2005 (3) JCC 1840 ; Shantierbhai Lalji Bhai Rot. Vs. State of Gujrat - (2006) 1 SCC (Cri) 346 ; Ahmed Kalnad & etc. Vs. State of Kerala - 2001 Cri.L.J. 4448 and Prakash Singh Badal & Anr. Vs. State of Punjab - (2007) 1 SCC (Cri) 193.
19. The learned Special Public Prosecutor argues that the sanctioning authority is under an obligation to go through the facts of the case and all the relevant material submitted to it by the prosecuting agency, but the sanctioning authority is neither under any obligation nor any duty is caste upon it to give a hearing to the accused or to consider his representation before deciding the matter of grant or refusal of sanction for prosecution. The learned Special Public Prosecutor has pressed into service Babu Ahmad and others. Vs. The State - 1985 Cri.L.J. NOC 78; Superintendent of Police, CBI. Vs. Deepak Chaudhary & Ors. - 1996 Cri.L.J. 405 ; S.K.Awasthi. Vs. State of UP - 2007 Cri.L.J. 382 ; Jagjit Singh. Vs. State of Punjab, 1996 (1) CC Cases 544.
20.I have given my thoughtful consideration to the contentions raised on behalf of the parties. I shall be dealing with the same one by one.
1821. There is no dispute about the proposition of law as laid down in State of Orissa. Vs. Debender Nath Padhi (supra) which has been relied upon by both the parties that at the preliminary stage of framing of charge or deciding validity of sanction, the accused cannot be permitted to produce any document (which may even be of unimpeachable character of sterling quality) but the material on record can very well be referred to by the accused to urge that a prima facie case is not made out against him. Satish Mehra. Vs. Delhi Administration - (1996) 9 SCC 766 was specifically overruled by the Hon'ble Supreme Court in State of Orrisa Vs. Debender Nath Padhi. Om Parkash Sharma. Vs. CBI Delhi - (2000) 5 SCC 679 has also been referred to by the learned counsel for the applicant. The observations made in para 6 of the judgment that if the accused could produce any reliable material even at the initial stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice were held to be obiter dicta. Om Parkash .Vs. CBI Delhi (supra) is therefore not applicable, to the facts of the present case.
1922. In State. Vs. Lal Dass & Others (supra) it was held by the Hon'ble Bombay High Court that it was the duty of the Judges and Magistrates to consider the question of sanction wherever the public servants are charged before then and it was the duty of the lawyers to take the point of sanction at the earliest stage and invite the judge or the magistrate to decide it before proceeding with the merit of the case. This was an authority on obtaining sanction Under Section 197 Cr.P.C. If no sanction for prosecution has been obtained for an offence which has been committed by a public servant in the discharge of his official duty or acting under colour of his office, proceeding with the trial would be useless as obtaining sanction would be a condition precedent for taking cognizance against the public servant. In the instant case sanction for prosecution is there. What is being challenged by the applicant is the validity of the sanction on the ground of non application of mind?. T.C.Nichodemus. Vs. State of Madras (supra), Amrender Kumar Singh. Vs. State of Bihar (supra) are also not applicable to the facts of the present case in view of the fact that sanction for prosecution has been obtained in this particular case and it will be a matter of evidence during trial to see whether there was application of mind or not for the reasons which I shall mention hereinafter.
2023.The main thrust of argument of the learned Senior Counsel for the applicant is that in this particular case the non application of mind is apparent for the reasons stated hereinabove. It is true that it is borne out from the letter dated 24.5.2002 written by the DIG that only SP's report alongwith the list of witnesses and list of documents were sent to the sanctioning authority. It is also true that some representations as has been referred in para 6 of the order are claimed to have been made by the applicant to the Revenue Secretary and various other authorities. This part of the defence of the applicant cannot be taken into consideration on the basis of State of Orissa. Vs. Debender Nath Padhi (supra). It is also borne out from para 27 of the sanction order dated 26.11.2002 and the letter dated 24.5.2002 that the factum of considering the case diaries, statements of the witnesses under section 161 Cr.PC. recorded by the Investigating Officer and under section 164 Cr.PC. recorded before the Magistrate was not factually correct. Would all this show non application of mind on the face of it without affording an opportunity to the prosecution to prove the sanction and the application of mind ?.
2124. In State of Tamil Nadu. Vs. M.M. Rajendran (supra) on which heavy reliance is placed by Learned Senior Counsel for the applicant, a report of vigilance had been placed before the City Commissioner of Police, Madras, who was the sanctioning authority in respect of a Sub Inspector of Police facing allegations of corruption. It was held by the Hon'ble Madras High Court that the relevant materials including the statements recorded by the Investigating Officer had not been placed for consideration by City Commissioner of Police and the conviction of the Sub Inspector of Police was set aside on the ground of invalid sanction. The Hon'ble Supreme Court while dismissing the appeal held that even if the report of Vigilance Department is a detailed one, the same cannot be held to be the complete record required to be considered for sanction on application of mind to the relevant materials on record. This authority is not applicable to the facts of the present case for two reasons; firstly, because the prosecution is yet to lead evidence to prove the application of mind and secondly, because in the present case, it was not the report of the vigilance department, which had been sent to the sanctioning authority, but was the SP's report. The SP's report contained the list of witnesses (though some witnesses were added later on) and list 22 of some documents. It contained the allegations of the prosecution, the names of witnesses and the gist of the statements of the relevant witnesses. It had been specifically mentioned in the letter dated 24.5.2002 through which the SP's report was forwarded to the sanctioning authority that the SP's report was being sent for consideration for according sanction and that the documents were not being enclosed as the same were in large quantity. It had been mentioned in the letter that the investigating officer of the case will show the documents and also explain the evidence as and when required. Thus, it was for the sanctioning authority to decide whether the material sent was sufficient for grant of sanction or to seek the documents and the statement of witnesses from the Investigating Officer as was stated in the letter dated 24.5.2002. Sanctioning authority is not to go into the falsity or truthness of the material collected by the prosecution, because this is within the domain of the court and not the sanctioning authority. In Jagjit Singh. Vs. State of Punjab - 1996 (1) CC Cases 544 (HC) it was held by the Hon'ble Punjab & Haryana High Court that the sanctioning authority cannot hold parallel investigation for the purpose of deciding whether the sanction should be granted or refused.
2325. At this stage a reference may be made to Dharam Saroop. Vs. The State - AIR 1953 Allahabad 37 where the question of sufficiency of facts to be placed before the sanctioning authority came up for consideration. In para 13 of the report it was held by His Lordship as under :-
" . . . . . . . The discretion to sanction prosecution is vested solely in the sanctioning authority and is absolute. Its exercise cannot be questioned in a Court of Law. The satisfaction of the sanctioning authority is entirely subjective. He is the judge of the materials that should be placed before him for enabling him to accord the sanction. If the facts placed before him are not sufficient to enable him to exercise his discretion properly, he will ask for more particulars but it is for him and him alone to determine this matter. The courts are concerned only with one matter_to find whether sanction for the particular prosecution was in fact accorded by the proper authority. If the record shows that the sanction was in fact accorded and the sanction was in respect of the particular transaction which is the subject matter of the charge against the accused, the requirements of the law are fully satisfied."24
26. In almost similar circumstances sanction for prosecution granted by the competent authority on the basis of the SP's report in C.S.Krishnamurthy. Vs. State of Karnataka (supra) was held to be valid and proper. I would like to extract a part of para 7 of the report hereunder:-
" This sanction order was proved by Mr. V.Partharasarthy Deputy General Manager of Bangalore Telecom as PW40, he was competent authority to accord sanction and he accorded sanction for prosecution of the accused for the alleged offence on 28.2.90 as per Ex.P.83. He deposed that S.P. CBI sent a report against the accused and he perused the report and accorded the sanction as per Ex.P.83. He deposed that he was satisfied that there was a case for prosecuting the accused for the alleged offence. He admitted that he received a draft sanction order and a draft sanction order was examined by the Vigilance Cell and then it was put up before him. . . . . . ."
27. In State. Vs. Ravinder Singh (supra) relied upon by the Learned Senior Counsel for the applicant, the Learned Special Judge had discharged the accused on the ground that the sanction was invalid on account of non application of mind after the sanctioning authority had been examined in the court. In this case the prosecution is yet to examine the sanctioning authority.
2528. In Mansukh Lal Vithal Dass Chauhan. Vs. State of Gujarat (supra) the settled proposition of law was reiterated that the validity of the sanction would depend upon the material placed before the sanctioning authority and the fact that the material and evidence so placed has been considered by the sanctioning authority. It was held that the order of sanction must ex-facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant file before the court to show that all the relevant facts were considered by the sanctioning authority. The authority thus relied upon on behalf of the applicant does not help him at this stage. Infact a number of authorities i.e. Mohd. Iqbal M.Sheikh & others. Vs. State of Maharashtra (supra); C.S. Krishnamurthy. Vs. State of Karnataka (supra); State through Inspector of Police. Vs. K.Narsimhachary (supra) relied upon by the Learned Special Public Prosecutor are on this very proposition that either the sanction order itself may indicate application of mind or the evidence can be led during trial to prove the application of mind.
2629. The contention raised on behalf of the applicant that the various representations made to Revenue Secretary and other authorities were not placed before the sanctioning authority would not be of any avail on the ground that an accused is not entitled to any hearing by the sanctioning authority before according the sanction. A reference in this connection can be fruitfully made to Babu Ahmed & others. Vs. The State (supra); Superintendent of Police. Vs. Deepak Chaudhary & others (supra); S.K. Awasthi. Vs. State of U.P. (supra).
30. A photo copy of a circular dated 1.12.1998 purported to be issued by Assistant Inspector General of Police to all the DIsG and all Superintendent of Police, wherein it was emphasized that all relied upon relevant material including statement of witnesses recorded by the Investigating Officer under section 161 Cr.PC. as well as statements U/s. 164 Cr.PC. recorded by the Magistrate should be sent to the competent authority for grant of sanction for prosecution. As stated herein above, this circular cannot be relied upon by the applicant in view of State of Orissa. Vs. Debender Nath Padhi (supra). Assuming that such a circular was issued and is taken into consideration, it is not binding on the court and it cannot be said that without sending 27 the statements of witnesses U/s. 161 Cr.PC. and U/s. 164 Cr.PC. the sanction granted would be per se invalid on account of non application of mind.
31. The contents of para 27 of the sanction order dated 26.11.2002 stating that the case diaries, documents collected by the Investigating Officer during the course of investigation, statements of witnesses U/s. 161 Cr.PC. and U/s. 164 Cr.P.C. were considered by the sanctioning authority may be factually incorrect in view of the letter dated 24.5.2002 written by the DIG of the CBI, which shows that these documents had not been sent. However, this statement by itself at this stage cannot be construed as non application of mind by the sanctioning authority. If the charges are framed against the accused and the case goes for trial, the sanctioning authority shall get an opportunity to explain this discrepancy. The sanction order mentions detailed facts of the case and as to how the applicant has been charged to be possessing assets disproportionate to the known sources of income which itself shows application of mind. The authority DSP, Chennai. Vs. K. Inbasagaran (supra) is of no help to the applicant at this stage, as it will be seen only at the appropriate stage, whether the assets in the name of any of the co accused could be linked to the 28 applicant or conspiracy between the applicant and the other accused persons.
32. In Ahmad Kalnad . Vs. State of Kerala (supra), the sanction was challenged on the grounds inter alia that on the date of grant of sanction i.e. 28.1.89 the Prevention of Corruption Act 1988 had come into force, but inspite of this the sanction order purport to grant sanction invoking power under the Prevention of Corruption Act 1947; the sanction for prosecution was granted against some of the persons, who had retired and who had died. It was held by the Hon'ble Kerala High Court that the sanction cannot be held to be invalid at the initial stage because the sanctioning authority can produce the file before the court and explain the circumstances in which the file was dealt in his department and the circumstances under which the sanction was granted. It was observed that the fact as to how the names of retired and expired persons found place in sanction order are matters which can be explained by the sanctioning authority during the course of evidence and the criminal revision petition preferred by the petitioners against the order of the Special Judge rejecting their plea to stop the proceedings on the ground of invalidity of the sanction was dismissed by the Hon'ble Kerala High Court. In 29 Parkash Singh Badal. Vs. State of Punjab (supra) it was held that there is distinction between absence of sanction and the invalidity of sanction on account of non application of mind. It was held that former question can be agitated at the thresh hold but later is a question which has to be raised during trial. It was contended by the Learned Senior Counsel for the applicant that these observations were just the passing remarks and were not the matter in issue before the Hon'ble Supreme court. With due respect, I may submit that even the obiter dicta is binding on this court.
33.In view of the foregoing discussion, I am of the view that it cannot be said at this stage that the sanction granted by the competent authority is invalid. The applications dated 1.5.2003 and 12.9.2005 are therefore dismissed.
Announced in open court.
Dated: 28.7.2007 (G.P.Mittal)
Special Judge: Delhi.
30
CBI....vs..Ashok Aggarwal etc.
24.7.07
Present: Shri N.K.Sharma, Special PP for CBI.
Accused Ashok Aggarwal, Vijay Aggarwal, Sheesh Ram and SM Jindal are on bails with Shri Ashok Soni,adv.
Accused Mohan Lal Aggarwal, Ram Bilas Aggarwal, Urvashi Aggarwal, Sita Devi, Manju Aggarwal & Sangita Aggarwal are absent. On their behalf, exemption applications have been moved.
Ld.PO is on leave.
As per directions, to come up for orders for 28.7.07.
Reader.
24.7.2007 31 28.7.07 Present: Shri N.K.Sharma, Special PP for CBI.
Accused Ashok Aggarwal, Vijay Aggarwal, Sheesh Ram and SM Jindal are on bails with Shri Ashok Soni,adv.
Accused Mohan Lal Aggarwal, Ram Bilas Aggl, Urvashi Aggarwal, Sita Devi, Manju Aggarwal & Sangita Aggarwal are absent. On their behalf, exemption applications have been moved. They are exempted for today only.
Vide separate order, the applications dated 1.5.2003 and 12.9.2005 are dismissed.
To come up for args. on charge for 29/9/07, 1/10/07 and 3/10/07.
Special Judge:Delhi 28.7.07 32 33 34