Patna High Court - Orders
Sri Narayan Choudhary vs The State Of Bihar Through Vig on 24 April, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ No.746 of 2011
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Sri Narayan Choudhary, son of Late Laxmi Narayan Choudhary, resident of
village-Saguna, P.S.-Raj Nagar, District- Madhubani, at present Revenue
Karamchari, Halka No.2, Buxar Prakhand Buxar, District-Buxar.
.... .... Petitioner.
Versus
The State of Bihar through Vigilance, Investigation Bureau, Bihar, Patna.
.... .... Respondent.
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Appearance:
For the Petitioner : Mr. Laxmi Narayan Das, Adv.
Mr. Akhilesh Dutta Verma, Adv.
For the Vigilance : Mr. Ramakant Sharma, Sr. Adv. LO I/c Vig.
Mr. Patanjali Rishi, Adv.
Mr. Kedar Singh, Adv
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
C.A.V. ORDER
6. 24-04-2012Petitioner has prayed for quashing of charge which has been framed against him vide order dated 04.05.2009 in connection with Special Case No.26 of 2008 arising out of Vigilance P.S. Case No.38 of 2008.
Vigilance P.S. Case No.38 of 2008 leading to registration of Special Case No.26 of 2008 was on the basis of apprehension of petitioner raid handed while accepting RS.3200/- from complainant Narayan Choudhary.
Contention on behalf of petitioner is that instant prosecution happens to be bad in law as well as on facts, hence is fit to be quashed. Then submitted that there is no material on the record which could justify framing of charge against the petitioner. Apart from factual aspect, legal aspect has also been -2- raised. So far factual aspect is concerned, it has been submitted that there was no occasion for the petitioner to demand bribe and accept bribe as on the day of occurrence so alleged as no petition for mutation was filed on behalf of complainant hence there was no occasion for the petitioner to demand. Because of the fact that no work was pending before the petitioner on the alleged date, as such there was no occasion for him to demand and accept the bribe money.
So far legal aspect is concerned, it has been submitted that sanction order is not at all recognizable in the eye of law because of the fact that no relevant papers were ever produced by the vigilance before the competent authority which the petitioner came to know after obtaining necessary information under Right to Information Act. Therefore, submission is that the sanction order, in absence thereof, appears to be outcome of mechanical process which is not at all permissible in accordance with Section 19 of the Act. To support his plea the learned counsel for the petitioner referred (1998) 3 SCC 267, 2007 (ii) SCC 273. Order dated 03.03.2011 passed in Cr. Misc. No.44151 of 2008, order dated 07.02.2012 passed in Cr. Misc. No.18584 of 2008, order dated 23.03.2012 passed in Cr.W.J.C. No.487 of 2011.
Further it has been submitted that for the same cause -3- petitioner was put under Departmental proceeding whereunder he was exonerated. As such criminal proceeding is not at all warranted. To support his plea, also referred 2011(3) PLJR 566, (1996) 9 SCC 1, (2010) 1 PLJR 715. So submission is that in the background of the aforesaid legal principal, instant prosecution is fit to be quashed.
At the other hand, the learned Special P.P., Vigilance submitted that the charge has already been framed, therefore the plea raised by the petitioner is not at all maintainable. Then submitted that petitioner was apprehended under trap by the Vigilance Department while accepting Rs.3200/- as bribe. The aforesaid materials were already placed before the Sanctioning Authority therefore plea of the petitioner that no material was placed before the Sanctioning Authority is not found correct. Even as per own submission of petitioner from Annexure-5 it is evident that relevant documents which could be found sufficient to form opinion for granting sanction was already placed before the Sanctioning Authority. Whatever materials, which were not placed as per submission made by petitioner were not considered to be a requirement for granting sanction. Therefore, the plea of the petitioner is not at all tenable.
Further submitted that there has been plea of the -4- petitioner that on the alleged date no petition was filed on behalf of complainant Brij Kishore Prasad happens to be wrong as from the receiving register a copy of which is Annexure-2 was itself obtained by the petitioner showing presence of receiving of petitioner but the date, appears to be managed by the petitioner as the petitioner has an access. Apart from this, petitioner was apprehended raid handed while accepting bribe. If no work was to be performed by the petitioner then why the complainant would have paid the amount and for what reason the petitioner had accepted the same. For the present there is concrete material available on record to authenticate the same.
So far outcome of departmental proceeding is concerned, from Annexure-8 of the supplementary affidavit, it is evident that on account of failure on the part of Presenting Officer and further due to collusiveness of the local office none of the witnesses were either noticed nor they were examined and so without examination of witness, the proceeding was dropped and during said course, the Enquiring Officer incorporated the plea of the petitioner without any verification as well as without considering the fact that aforesaid averments so incorporated happens to be the defence of the petitioner. As such, submitted that plea of the petitioner for the present happens to be -5- misconceived.
The prevention of Corporation Act, 1988 has seen a radical change from its original Act of 1947 followed with amended Act of the year 1964. In Section 19, certain privilege has been infused to ward of the objection to be raised at the initial stage over sanctity as well as propriety of order of sanction. For better appreciation Section 19 is incorporated hereinafter:
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.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or 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;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation -6- to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation.--For the purposes of this section,--
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.
Therefore legal barbican in proceeding with the trial on account of error, omission or irregularity during course of granting of sanction has now been stretched to such extent that until and unless a prejudice is shown to be caused, that goes beyond the purview. That happens to be reason behind that in a decision reported in 2007(1) SCC 1 (Prakash Singh Badal Vs. State of Punjab) the aforesaid event has been perceived and held that "unless it has been resulted in failure of justice or occasioned thereby, the same cannot be put under challenge." Subsequently, it has again been subject to consideration in Ashok Tasring Ghusia Vs. State of Sikkim reported in 2011(2) BLJ 93 (SC). Recently it has again been subject to consideration in Rajindra Versus State reported in 2012 Cr.L.J page 699. For better appreciation the relevant para is quoted below:
9. This Court has in Mansukhlal Vithaldas Chauhan 1 considered the significance and importance of sanction under the P.C. act. It has been observed therein that the sanction is not intended to be, nor is an empty -7- formality but a solemn and sacrosanct act which affords protection to government servants, against frivolous prosecutions and it is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. This Court highlighted that validity of a sanction order would depend upon the material placed before the sanctioning authority and the consideration of the material implies application of mind.
10. The provisions contained in Sections 19(1), (2), (3) and (4) of the P.C. Act came up for consideration before this Court in Parkash Singh Badal and another (AIR 2007 SC 1274). In paras 47 and 48 of the judgment, the Court held as follows:
―47: The sanctioning authority is not required to separately specify each of the offences against the accused public servant. This is required to be done at the stage of framing of charge. Law required that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalized guidelines in that regard.
48: The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial.‖
11. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal 5 expressed in no uncertain terms that the absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, in Parkash Singh Badal 5 this Court referred to invalidity of sanction on account of non-application of mind. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias -8- of the sanctioning authority or the order of sanction having been passed by an authority not authorized or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like ground of invalidity of sanction on account of non-application of mind - a category carved out by this Court in Parkash Singh Badal5, the challenge to which can always be raised in the course of trial.
12. In a later decision, in the case of Aamir Jan 4 , Court had an occasion to consider the earlier decisions of this Court including the decision in the case of Parkash Singh Badal5,. Amerjan (AIR 2008 SC 108) was a case where the Trial Judge, on consideration of the entire evidence including the evidence of sanctioning authority, held that the accused Ameerjan was guilty of commission of offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act. However, the High Court overturned the judgment of the Trial Court and held that the order of sanction was illegal and the judgment of conviction could not be sustained. Dealing with the situation of the case wherein the High Court reversed the judgment of the conviction of the accused on the ground of invalidity of sanction order, with reference to the case of Parkash Singh Badal5, this Court stated in Ameerjan4 in para 17 of the Report as follows:.
―17. Parkash Singh Badal5, therefore, is not an authority for the proposition that even when an order of sanction is held to be wholly invalid inter alia on the premise that the order is a nullity having been suffering from the vice of total non-applicability of mind. We, therefore, are of the opinion that the said decision cannot be said to have any application in the instant case.‖
13. In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the Trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the Trial Court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal5, and not unjustified.
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Therefore, for the present the plea of the petitioner on this score appears to be premature.
Now, coming to the another aspect, relating to non- permitting the prosecution in the background of having been exonerated in departmental proceeding, less said is better. As per Annexure-8, 9 of supplementary affidavit, it is evident that the conduction of departmental proceeding was an eye wash. Neither Presenting Officer took pain to notice the witnesses nor any step was taken therefor. However, the C.O. was noticed who informed that no witness is present.
So the outcome of such kind of departmental proceeding is not all justifying application of the principle laid down by the Hon'ble Apex Court, because of the fact that in those cases which has been referred by the learned counsel, there was full-fledges departmental enquiry conducted by Central Vigilance Commission duly concurred by U.P.S.C. Because there was no consideration of charges during course of conduction of departmental proceeding for want of no- production of witness, hence having been exonerated during course thereof, did not justify the submission raised on behalf of petitioner.
In the facts and circumstances of the case, I do not -10- see merit in the petition filed on behalf of petitioner. Accordingly, same is rejected.
(Aditya Kumar Trivedi, J) PN/-