Allahabad High Court
Arvind Mishra vs Central Bureau Of Investigation Thru. ... on 25 August, 2022
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 10 Case :- APPLICATION U/S 482 No. - 6257 of 2019 Applicant :- Arvind Mishra Opposite Party :- Central Bureau Of Investigation Thru. S.P. A.C.B. Lucknow Counsel for Applicant :- Pranshu Agrawal,Raghvendra Pandey Counsel for Opposite Party :- A.S.G.,Anurag Kumar Singh Hon'ble Dinesh Kumar Singh,J.
1. Heard Mr. Pranshu Agrawal, learned counsel for the accused-applicant, as well as Mr. Anurag Kumar Singh, learned counsel for respondent-Central Bureau of Investigation, and gone through the record.
2. By way of this application under 482 CrPC, the applicant has prayed for quashing of the order dated 15.07.2019 passed by the learned Special Judge, Anti-Corruption, CBI (West), Lucknow by means of which application filed by the CBI under Section 33 of The Indian Evidence Act,1872 (hereinafter referred to as 'Evidence Act') in Criminal Case No.502 of 2016 (State through CBI V. Arvind Mishra) for reading the evidence, recorded in the proceedings of Criminal Case No.04 of 2001, RC No 30(A) of 1999 and, treating it to be relevant for Criminal Case No.502 of 2016, has been allowed.
3. Facts of the case are that the applicant is an accused in Criminal Case No.502 of 2016, under Sections 120-B, 409, 420, 468 and 471 IPC read with Section 7 and Sections 13(2) read with Sections 13(1)(d) of the Prevention of Corruption Act, 1988 (for short 'Act of 1988'), arising out of RC No.30(A) of 1999, Police Station CBI/ACB, Lucknow.
4. The trial of the said case is pending before the learned Special Judge, Anti-Corruption, CBI, West, Lucknow. The earlier trial, arising out of the RC No.30(A) of 1999, was conducted vide Criminal Case No.04 of 2001. The evidence of all the witnesses got recorded and the statement of the accused-applicant was also recorded under Section 313 CrPC. However, after final argument on behalf of the CBI and the accused-applicant, the learned trial Court, vide judgment and order dated 30.11.2015 held that the prosecution sanction was invalid. Thus, the accused-applicant was discharged. The learned trial Court had, however, observed that the competent authority could grant fresh sanction for prosecution, in accordance with law. The CBI obtained fresh order dated 16.05.2016 for prosecution of the accused-applicant and filed same charge-sheet on 12.08.2016 before the trial Court with fresh sanction order. After charge got framed, the CBI preferred an application under Section 33 of the Evidence Act dated 27.03.2019 for admitting the evidence of the proceedings of Criminal Case No.04 of 2001, arising out of the same RC No.30(A) of 1999, in Criminal Case No.502 of 1916 in the present trial.
5. The learned trial Court has allowed the said application vide the impugned order dated 15.07.2019.
6. Mr. Pranshu Agrawal, learned counsel for the applicant, submits that the invalid sanction for prosecution of a public servant makes the entire trial proceedings null & void; once the trial proceedings of Criminal Case No.04 of 2001 were void ab initio, the evidence of the said trial, which was rendered as null & void, cannot be read in subsequent trial, which takes place after the valid sanction has been accorded for prosecution of the accused-applicant. The learned counsel has placed reliance upon judgment reported in AIR 1957 SC 494 (Baij Nath Prasad Tripathi V. State of Bhopal and another) to submit that in absence of valid sanction, no Court can take cognizance of the offence in question. In absence of the valid sanction, no Court can be said to be the Court of competent jurisdiction to try those offenes and the trial, in absence of such sanction, is null & void. Learned counsel submits that in (2015) 14 SCC 186 (Nanjappa V. State of Karnataka) it has been observed that in absence of previous valid sanction, as per requirement under Section 19 of the Prevention of Corruption Act, 1988 (for short 'PC Act'), the trial Court was not competent to take cognizance of the offence. The absence of valid sanction under Section 19 (1) of the PC Act goes to the very root of the prosecution case inasmuch as the said provision prohibits any Court from taking cognizance of any offence punishable under Sections 7, 10, 13 and 15 of the PC Act against the public servant, except with the previous sanction granted by the competent authority. If the trial proceeds, despite the invalidity attached to the sanction order, proceedings would be deemed to be non-est in the eyes of law. However, the second trial for the same offence would not be forbidden upon grant of valid sanction for such prosecution.
7. The learned counsel has also placed reliance upon the judgment reported in AIR 1953 Cal. 339 (Sudhindra Nath V. The State) to submit that evidence in judicial proceedings, which had taken place without jurisdiction, cannot be permitted in evidence under Section 33 of the Evidence Act in subsequent trial. The leaned counsel has also placed reliance upon judgment of this Court in (2008) 3 ADJ 413 (Lallan Prasad V. State of U.P. and Noorul Haq) to submit that in absence of a proper and valid sanction earlier the trial Court was incompetent to take cognizance and record any evidence. It was a defect, which could not be cured by the Court itself, as it was a fundamental legal defect inasmuch as, in absence of proper and legal sanction, the Court was incompetent to take cognizance and record the evidence. The Court could not have taken cognizance for want of proper and legal sanction and, it would not have proceeded further and, after proper sanction, denovo trial has to take place. It has also been submitted that if it is a denovo trial, the evidence that was led in the previous trial, cannot be received in the subsequent denovo trial. The learned counsel, therefore, submits that the impugned order passed by the learned trial Court is unsustainable in the eyes of law. The earlier trial was coram non judice, therefore, he submits that this application may be allowed.
8. On the other hand, Mr. Anurag Kumar Singh, learned counsel for the respondent-CBI, submits that the object and purpose of the PC Act is to consolidate and amend the law relating to prevention of corruption and to make the corruption laws more effective by widening their coverage and strengthening the provisions. The New Act seeks to provide for speedy trial of offences punishable under the PC Act in public interest as the legislature had become aware of the corruption amongst the public servants as held in (2014) 8 SCC 682 (Subramanian Swamy V. Director, Central Bureau of Investigation and another).
9. Learned counsel for the respondent-CBI submits that FIR as RC No. No.30(A) of 1999 was registered against the accused-applicant and since then 23 years have already passed. In the earlier trial, in Case No.04 of 2001, arising out of the same RC, as many as 9 witnesses were examined and the accused-applicant had cross-examined them. However, the trial Court vide its order dated 30.11.2015 had held that the sanction for prosecution was invalid and granted liberty to take a fresh sanction. Even, thereafter more than 7 years have passed, and considering these facts, the learned trial Court has allowed the application under Section 33 of the Evidence Act vide the impugned order. It is further submitted that the accused-applicant is not prejudiced in any manner inasmuch as he had already cross-examined 9 witnesses, produced by the CBI, in detail. It has also been submitted that some of the witnesses had died during the course of trial in Case No. 04 of 2001 and production of the ramaining witnesses would not be possible in the present case. The learned counsel has submitted that the provisions of Section 33 of the Evidence Act are applicable in the present case as the evidence given by the witnesses, during the course of trial of Case No.04 of 2001, are undoubtedly relevant for the purpose of proving the prosecution case in the present case. When the presence of the witnesses cannot be secured without an amount of further delay and expense, the provisions of Section 33 of the Evidence Act can be invoked. Recalling the witnesses, who were cross-examined in Case No. 04 of 2001, particularly, when some of them had died, would not be feasible inasmuch as 23 long years have gone-by since lodging of the FIR as RC No.30(A) of 1999.
10. The learned counsel for the CBI has submitted that the judgment in Nanjappa V. State of Karnataka (supra), relied upon by the learned counsel for the accused-applicant, is not relevant in respect of issue involved in the present case. In the case of Nanjappa V. State of Karnataka (supra), it was only held that in absence of valid sanction order, the judicial proceedings would be non-est in the eyes of law. The question of applicability of privisions of Section 33 of the Evidence Act was not an issue in the said case. It has been further submitted that the subsequent trial, after valid sanction is granted, does not amount to double jeopardy under Article 20 of the Constitution of India. The learned counsel for the prosecution-CBI has further submitted that even if it is re-trial, after obtaining valid and proper sanction, the evidence, earlier recorded by the trial Court in Case No.04 of 2001, would not get frustrated. The accused-applicant has failed to prove that how he is prejudiced if the evidence which was recorded earlier is read in the present trial in Case No.502 of 2016.
11. I have considered the submissions advanced on behalf of both the parties.
12. Section-33 of the Evidence Act, on which the fate of the case hinges, reads as under:-
"33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.--Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided-- that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation.--A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."
13. The trials of Case Nos.04 of 2001 and 502 of 2016, arise out of one and the same RC No.30(A) of 1999, between the same parties. The accused-applicant had full opportunity to cross-examine the witnesses produced in Case No.04 of 2001 and, in fact, he cross-examined all the witnesses produced by the prosecution. The parties are the same in the first trial, in Case No.04 of 2001, and second trial, in Case No. 502 of 2016. The accused-applicant has himself admitted that some of the witnesses had died and 23 years have passed since lodging of the FIR as RC No.30(A) of 1999. It is not in dispute that the production of the prosecution witnesses would be extremely difficult, rather the same is impossible. Even if some of the witnesses are alive, their presence would be obtained with an amount of further delay and, therefore, in these circumstances, the learned trial Court has allowed the application of the prosecution under Section 33 of the Evidence Act.
14. Short question, which false for consideration by this Court, is whether the evidence led in the trial of Case No.04 of 2001, which case got dismissed on the finding recorded by the learned trial Court that the sanction order for prosecution of the accused-applicant under Section 19 of the PC Act was improper and invalid, can be taken/read in the subsequent trial in Case No.502 of 2016. The Supreme Court in the case of Nanjappa V. State of Karnataka (supra) was dealing with the issue that whether the trial, after proper sanction, would amount to double jeopardy or not. The question regarding applicability of Section 33 of the Evidence Act was not involved in the said case. It cannot be said that the evidence, recorded in trial of Case No.04 of 2001, was not in judicial proceedings. The proceedings of earlier trial and subsequent trial both are judicial proceedings.
15. According to Section 33 of the Evidence Act, the relevancy of certain evidence for proving, in subsequent proceeding, the evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding. So far as the proceedings of the present case are concerned, requirement of Section 33 of the Evidence Act are fully satisfied. It is not case of the accused-applicant that the requirement of the Section 33 of the Evidence Act are not satisfied in the present case. It is not the case of the accused-applicant that the earlier Court, before which the trial of Case No.04 of 2001 was conducted, did not have jurisdiction over the offence, but the accused-applicant was acquitted only on the ground that there was no proper and valid sanction under Section 19 of the PC Act for his prosecution. There is a distinction between complete lack/want of jurisdiction and existence of jurisdiction and its irregular and improper exercise.
16. Considering the aforesaid discussions, I am of the opinion that ingredients of Section 33 of the Evidence Act are fully applicable in the facts of the present case. The accused-applicant is not prejudiced in any manner by the impugned order. The evidence, recorded earlier, was in judicial proceedings, and the evidence cannot become non-est merely on the ground that the proceedings were dropped because of improper/invalid sanction under Section 19 of the PC Act. Therefore, I do not find any error committed by the learned trial Court in allowing the application of the CBI and, thus, the present application fails, which is hereby dismissed.
[D.K. Singh, J.] Order Date :- 25.8.2022 MVS/-