Calcutta High Court
Central Bureau Of Investigation vs B.K. Samal on 3 March, 2002
Equivalent citations: (2002)2CALLT220(HC)
JUDGMENT A. Talukdar, J.
1. Grinding halt suffered by Special Court Case No.2 of 2000 in view of the Order dated 11.4.2001 of the learned Judge, 5th Special Court, Calcutta for want of sanction and imposition of Section 167(5)(ii) Cr. P.C. has persuaded the Central Bureau of Investigation (here-in-after referred to as' the CBI') to approach this Court for setting aside the same in this Revisional Application.
2. Crisp and contains submission was made by its learned special public prosecutor confining to the illegality of the order as the question of sanction was not a matter of any consequence and he relied on the decisions of the Supreme Court in-(A) State of M.P. v. Bhoomji and Ors. : 2001 SCC(Cri.) 1373 and (B) Satya Narayan Sharma v. State of Rajasthan: 2002 SCC (Cri.) 39; and that the question of infraction of Section 167 Clause (5) Sub-clause(ii) of the Code of Criminal Procedure (for short. ' the said Code') was also no longer res Integra in view of the decision of Nirmal Kanti Roy. v. State of West Bengal: AIR 1988 SC 2322. The learned Special Public Prosecutor for the CBI has prayed for setting aside the order and for re-rolling the procedure allowing it to reach its logical conclusion.
3. This was opposed by the learned senior advocate for the accused.
4. Elaborate submissions were made by the learned senior advocate, duly assisted by Shri S.S. Roy and Shri S. Bhattacharya, to the fact that in view of Section 5(D) of the Employees Provident Fund Act, 1952 as the sanction was not given by the proper Authority, the sanction was totally bad and the prosecution could not be Initiated on the basis of such defective sanction. He referred to Section 19 of the Prevention of Corruption Act and submitted that unless there was any proper sanction the proceeding could not subsist in view of the embargo imposed by Section 19 of the Prevention of Corruption Act. He next submitted that earlier this Court by a Judgment and Order dated 15.5.98 had quashed the proceedings for defective sanction and liberty was given to the appropriate Authority to consider the question of sanction for prosecution afresh. However, the earlier sanction was simply repeated and proper compliance of this Court's Order was not made and he further submitted that the petition filed on behalf of the accused was not properly adverted to by the CBI and the statements made in paragraphs 1 to 9 questioning the grant of sanction was termed as "admitted as a matter of record' without denying the same. Accordingly, he has prayed for maintaining such order and dismissing the Revlslonal Application.
5. The learned senior advocate further referred to the decision of the learned single Judge of this Court reported in 1998 C Cr.LR (Cal) 398 in connection with the self-same case(B.K. Samal @ Bijoy Kumar Sasmal v. 1, State of West Bengal; 2. Inspector of Police, CBI/ ACB./Calcutta) and submitted that earlier this very petitioner had approached this Court for quashing the proceedings of Special Case No.1 of J997 and the learned single Judge of this Court allowed the prayer of the petitioner and quashed the proceeding on the ground of Invalid sanction as the sanction Authority had no locus standi to accord the same sanction and the said learned single Judge "while quashing the proceeding pending in the Court below liberty is given to the appropriate authority to consider the quesiton of sanction for prosecution afresh against the petitioner if such authority thinks fit and proper on due consideration of the materials appearing against the petitioners."
6. The learned senior advocate appearing for the accused has submitted that pursuant thereof what took place was a mere ritualistic chanting of the procedural formula. He submitted that the Authority merely repeated the said mistake which was earlier censored by this Court and having found fault with the same this Court had earlier set aside the said sanction but against on the basis of the same defect fresh cognizance was taken and the proceeding was again initiated which was totally bad in law according to him.
7. Anxious consideration has been given by me to the rival contentions of the learned Special Public Prosecutor and the learned senior advocate in the light of the decisions cited and the statutory position. Having heard the submissions made at the Bar with class-room attention I am of the view that if I am to fall in line with proto-type model of the heritage approach which has been taken, I am afraid, that the cause of Justice will be in jeopardy. I have to barge out from the existing conventional theme and should endeavour to demystify the pale of mist which has gathered in the horizons of the proceeding which has suffered a jinxed voyage on account of some technicalities and superficial enigma which, if allowed to subsist then I am again afraid that the Criminal Justice System of the modern time would have to be placed in the Jurraslc Park of ancient history rather than tend to be in tune with the clarion call of modern times when there is a loud cry for revamping the Criminal Justice System.
8. I find that the arguments of the learned senior advocate for the petitioner with regard to the defect in the sanction need not arrest the attention of the Court beyond a certain time as I find from a careful consideration of the fresh sanction order accorded on 9th September, 1999 by the Additional Central Provident Fund Commissioner clearly shows the proper application of mind of the said Authority. The said Order of sanction which speaks of consideration of the entire fact of the prosecution case and manifests a clear application of the Authority cannot in any way persuade a Court to believe that the said sanction order has operated to the prejudice of the accused on account of any defect or he will be precluded in taking an effective defence. This is a clear position.
9. Rummaging through the Lower Court Records I find by the Order No. 1 dated 24.3.2000 upon receipt of the charge sheet and the fresh sanction order and on proper compliance of all the legal formalities the same was presented; the learned Judge-in-Charge on the said date not having the power to take up the matter fixed 5.5.2000 for the said purpose when it was against adjourned for want of power. Ultimately, on 8.6.2000 the learned Judge:-
" .....hearing the mater in connection with cognizance. Perused the Charge Sheet, sanction order and Statements along with the case - Diary and cognizance of the offence is taken in compliance of Section 173(5) Cr.P. Code. Issue summons against accused, B.K. Samal under Section 7 of prevention of corruption Act, 1988........."
10. This was on 8.6.2000, the accused entered appearance on 28.8.2000 and was enlarged on Bail. Thereafter from 4.9.2000 dates were being given for supply of copies and inspection of documents by the Accused. On 15.12.2000 the learned Judge after the accused completed the inspection of documents fixed 22.1,2001 for hearing out the charge but as the Court was vacant the next date was fixed on 14.2.2001. A petition was taken out on behalf of the accused on the ground that the earlier cognizance taken on the basis of a defective sanction was quashed by this Court and that there was a direction that the Central Board of Trustees and in the event of restitution being taken by the Board empowering Chairman to accord sanction for prosecution to an Assistant provident Fund Commissioner under Section 19 of the PC Act, 1988 only the Chairman can accord sanction but none else and according has prayed for discharging the accused person along with the ground for violation of Section 167(5) of the said Code as there could not be any redelegation of power with regard to the grant of sanction. By the impugned order of 11.4.2001 the learned Judge acceded to the prayer of the accused and recorded the Order of discharge accepting both the points canvassed by the accused through the petition dated 14.2.2001.
11. There are reasons more than one for Interfering with the said Order. The Return filed by the said CBI which is appeared at page 23 of the Lower Court Records, on 23.3.2001 brought its learned Special Public Prosecutor was not at all adverted to by the learned Judge. The learned Judge found fault with the sanction as -
".....while it is alleged in the sanction order that the demand for bribe was made at 7th floor of 44, Park Street, Calcutta - 16 the Charge Sheet, on the other hand, shows that the demand was made at 8th floor of the said building" :-
and that "..... the grant of sanction in the Instant case is not a careful and conscientious act of the sanction authority upon full application of his mind to the facts before him. but a routine and mechanically one."
12. On the contrary, I find that full and complete satisfaction of the sanctioning authority was given to the facts constituting the offence and all the legal formalities as has been outlined in the Judgment of B.K. Samal @ Bijoy Kumar Samal v. I. State of West Bengal; 2. Inspector of Police, CBI/ ACB/Calcutta) (supra) by a learned single Judge of this Court, Having been observed in the order of Sanction the Order of discharge cannot be sustained and has to be set aside.
13. The question which has errupted in the light of the impugned Order passed by the learned trial Court need not be gone into beyond a certain limit. Since the days when the Privy Council had pondered over the question of Sanction in Gokul Chand Dwarbadas Morarka v. The King Emperor ; much water has flown in the Ganges in the meanwhile and the position has perhaps now been crystallised by the decision of the Supreme Court in P.K. Prodhan v. State of Sikkim reported in 2001 SCC (cri) 1234 .
14. Wherein the Supreme Court has held: the question of sanction can be raised any time after the cognigance of framing of charge or even after a conclusion of trial. In other words definitely an tills score the trial cannot be nipped in the bud, more so when there. Even at the cost of repetatlon I am to say that the Order of according fresh sanction has been in tune with the legal principles and the learned trial Court with due respect, I must say has screened the Order of sanction with such a myopic eye that the true picture did not appear and if I may say so again with due respect to the learned trial Court that the order passed by this Court earlier in B.K. Samal @ Bijoy Kumar Samal v. 1. State of West Bengal; 3. Inspector of Police, CBI/ACB./ Calcutta) (supra)--the tenor of the High Court's earlier order was not appreciated in its true perspective.
15. Since the dawn of enactment of the earlier Prevention of Corruption Act the question of sanction has haunted the spectre of the Court entrusted with the task of dealing with such type of cases, as if the last word has not been spoken on this concept. Perhaps the shadow of the said concept has loomed large in the arena of the trial Court which was persuaded to pass the impugned Order. The question of sanction that loo a proper sanction is no longer an anathema in the modern day Criminal Jurisprudence; no longer can it be said that - perhaps the Prosecution Case has to be down loaded from the dockets of the trial Court for want of sanction or proper sanction as if, the Prosecution was either a free tripper or not holding a proper ticket and undergoing a journey which it was otherwise debarred.
Perhaps that is not so.
16. To-day we are. In such a cross-road that the Prosecution cannot be jettisoned on account of flea bite and utterly technical syndromes.
17. Criminal Justice has to be salvaged from the wings of technical and other Impromptu snags.
18. This is the hour to retrieve; not to castigate.
19. Tradition bound views should gave place to a realistic approach, otherwise we will be running away from the reality; and refusing to face the truth which is impediment of ultimate justice.
20. The decision of State of M.P: v. Bhooraji and Ors., (supra) is absolutely apposite and fits in the fact situation of the Instant case. I fully agree with the learned Special Public Prosecutor for the CBI that in the light of the ratio of the decision of State of M.P. v. Bhooraji and Ors., (supra), the objection of the defence cannot stand. I am also in concurrence with the decision of Satya Narayan Sharma v. State of Rajasthan (supra) and unless it can be shown that there is a failure of Justice, the broad spectrum analysis of defect in sanction, cannot be a sine qua non for the Court to come to the aid of the erring accused. A sanction was there. I have also, for myself taken up a plain reading of the order of sanction. I do not find any infirmity in the same which would stand in the way for conducive trial and would operate to the disinterest of the accused.
21. Even if it is accepted that there was some technical laps, could it be said that simply for this the prosecution should fail? If not, then the Order has to be set aside and with due respect to the learned senior advocate for the accused, I am unable to fall in line with his submission with regard to the Infraction of the question of sanction as it is otherwise found to be quite in order and is not absolutely abdominal so as to totally scare away the prosecution from the forecourt of Justice.
22. Now with regard to the portion of the Order of the learned Judge with regard to infraction of Section 167(5)(ii) of the said Code. Here also I found myself in total agreement with the submission of the learned Special Public Prosecutor for the CBI as the decision of Nirmal Kantt Roy v. State of West Bengal (supra) very much stares at the face and the Order of the learned trial Court has to be set aside as after submission of the Charge sheet the said provision has no manner of application.
23. Accordingly, the order passed by the learned trial Court is set aside and the proceeding which is by now practically reached its gerlatric stage on account of observance of some heritage formulas are restored to file and the learned Judge is requested to forthwith proceed with the trial from the stage where It was untimely wrongly abandoned with utmost despatch within the mandate of Section 309(1) of the said Code and endeavour to be made by the learned Judge to conclude the trial as early as possible preferably within a period of six months from the date of communication of this order keeping in mind that the proceeding has already suffered a roller-coaster movement and two consecutive Journeys before this Court -one at the behest of the accused, another at the behest of the CBI to countenance Orders which were not palatable to either of them and to see that no unnecessary adjournment is given so that it will tend to spill the trial beyond the time schedule.
24. After switching on the moribund proceedings of Special Court Case No. 2 of 2000 this Court now further requests the learned trial Judge to begin the exercise as suggested herelnabove forthwith upon receipt of this order.
25. Registry is directed to send down a copy of this order along with the Lower Court Records for onward communication to the learned trial Court within a few hours from now.
Revisional Application allowed.