advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, May 29, 2013

SANCTION FOR PROSECUTION NECESSARY OR NOT/ VALID OR NOT, APPELLANT COURT CAN DECIDED IT =whether the High Court of Judicature at Bombay in Criminal Application No. 2648 of 2007 is justified in refusing to grant leave to file an appeal by the Central Bureau of Investigation, Anti Corruption Branch, Mumbai (for short “the CBI”) against the learned Special Judge had acquitted the respondent No. 1 under Sections 7, 13 (1) (d) read with 2 of the Prevention of Corruption Act, 1988 (For brevity “the Act”) principally on the foundation that the sanction granted by the competent authority was defective and illegal as there was non-application of mind which would show lack of satisfaction.- It is well settled that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. - (a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. (b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution. (c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him. (d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. (e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. (f)If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction. (g) The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity.= It is well settled in law that it is obligatory on the part of the appellate court to scrutinize the evidence and further its power is coextensive with the trial court. It has power to consider all the matters which weighed with the trial court and the reasons ascribed by it for disbelieving or accepting the witnesses. It is incumbent on the High Court to analyse the evidence, deal with the legal issues and deliver a judgment. Thus, there is no merit in the submission that it should be remanded to the learned trial Judge. Apart from the aforesaid reason, we are also not inclined to remit the matter to the learned trial Judge as there would be another round of hearing before the learned trial Judge which is avoidable. It has to be kept uppermost in mind that remit to the trial court has to be done in very rare circumstances, for it brings in procrastination in the criminal justice dispensation system which is not appreciated. 20. Consequently, the appeal is allowed, the judgment of the High Court and the conclusion of the learned trial Judge pertaining to the validity of sanction are set aside and the matter is remitted to the High Court. As we have not dealt with any other finding recorded by the learned trial Judge, it has to be construed that there has been no expression of opinion on the merits of the case on those counts. The High Court shall be well advised to consider all the aspects barring what has been dealt with in this appeal while dealing with the application for grant of leave.

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2345 OF 2009
State of Maharashtra Through C.B.I.
...Appellant
Versus
Mahesh G. Jain ...Respondent
J U D G M E N T
Dipak Misra, J.
The singular question that emanates for
consideration in this appeal is 
whether the High Court of
Judicature at Bombay in Criminal Application No. 2648 of
2007 is justified in refusing to grant leave to file an appeal
by the Central Bureau of Investigation, Anti Corruption
Branch, Mumbai (for short “the CBI”) to assail the
judgment and order dated 8th September, 2006 in Special
Page 2
Case No. 62 of 2000 by the Court of Special Judge for
Greater Bombay whereby the learned Special Judge had
acquitted the respondent No. 1 under Sections 7, 13 (1)
(d) read with 2 of the Prevention of Corruption Act, 1988
(For brevity “the Act”) principally on the foundation that
the sanction granted by the competent authority was
defective and illegal as there was non-application of mind
which would show lack of satisfaction.
2. At the very outset, it is condign to state that as we
are only dealing with a singular issue it is not
necessary to state the facts in detail. Suffice it to
state one Satish P. Doshi, proprietor of Shree Travels,
the complainant, had given his vehicles to State Bank
of India on contract basis and was entitled to receive
hire charges for his vehicles periodically. The
complainant experienced certain difficulties in
getting his cheques and Tax Deducted at Source
certificates. When he approached the accused respondent, he demanded illegal gratification which
was not acceded to by the complainant. Despite
consistent refusal by the complainant, the demand of
2Page 3
the accused was persistent which constrained the
complainant to approach the CBI with a written
complaint. The CBI took up the investigation and the
raiding party carried out a trap operation, seized the
bribe amount of Rs.1000/-, sent the seized article to
the CFSL, obtained the sanction order and ultimately
on 5.10.2000 filed the charge-sheet before the
learned Special Judge. After the trial was over the
learned Special Judge adverted to all the issues and
answered all of them in the affirmative against the
accused but acquitted him solely on the base that
the sanction order was defective and illegal and that
went to the very root of jurisdiction of the court.
3. Grieved by the aforesaid judgment of acquittal, the
CBI filed an application for grant of leave and the
learned single Judge of the High Court of Bombay
declined to grant leave on the ground that it was
doubtful whether the sanctioning authority had, in
fact, actually applied its mind while granting
sanction. The High Court further opined that the
view taken by the learned Special Judge in that
3Page 4
regard was a plausible one being not contrary to
material on record and hence, it did not require any
interference.
4. We have heard Mr. Sidharth Luthra, learned
Additional Solicitor General appearing for the
appellant, and Mr. V.N. Bachawat, learned senior
counsel appearing for the respondent.
5. Section 19(1) of the Act postulates that 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. The said provision enumerates
about the competent authorities. In the case at
hand, the competence of the authority who has
granted sanction is not in question. The only aspect
that is required to be scrutinized whether the order
granting sanction is valid in law.
6. Grant of sanction is irrefragably a sacrosanct act and
is intended to provide safeguard to public servant
against frivolous and vexatious litigations.
4Page 5
Satisfaction of the sanctioning authority is essential
to validate an order granting sanction. This Court in
Jaswant Singh v. State of Punjab1
 was
considering the validity and effect of the sanction
given under Section 6(1) of the Prevention of
Corruption Act, 1947. After referring to the decisions
in Basdeo Agarwala v. Emperor2
 and
Gokulchand Dwarkadas Morarka v. The King3
,
the Court opined as follows: -
“It should be clear from the form of the sanction
that the sanctioning authority considered the
evidence before it and after a consideration of
all the circumstances of the case sanctioned the
prosecution, and therefore unless the matter
can be proved by other evidence, in the
sanction itself the facts should be referred to
indicate that the sanctioning authority had
applied its mind to the facts and circumstances
of the case.”
In the said case, the two-Judge Bench had
reproduced the order of sanction and opined that if the
same, strictly construed, indicated the consideration by
the sanctioning authority of the facts relating to the
receiving of the illegal gratification by the accused. We
1
 AIR 1958 SC 124
2
 AIR 1945 FC 18
3
 AIR 1948 PC 84
5Page 6
think it apt to reproduce the order of sanction in that case:
-
“Whereas I am satisfied that Jaswant Singh
Patwari son of Gurdial Singh Kamboh of village
Ajaibwali had accepted an illegal gratification of
Rs.50 in 5 currency notes of Rs.10
denomination each from one Pal Singh son of S.
Santa Singh of village Fatehpur Rajputan, Tehsil
Amritsar for making a favourable report on an
application for allotment of an ahata to S. Santa
Singh father of the said S. Pal Singh.
And whereas the evidence available in this
case clearly discloses that the said S. Jaswant
Singh Patwari had committed an offence under
S. 5 of the Prevention of Corruption Act.
Now therefore, I, N.N. Kashyap, Esquire
I.C.S. Deputy Commissioner, Asr, as required by
S. 6 of the Prevention of Corruption Act of 1947,
hereby sanction the prosecution of the said S.
Jaswant Singh Patwari under S. 5 of the said
Act.”
We have quoted the aforesaid order only to highlight
the approach of this Court pertaining to application of
mind that is reflected in the order.
7. In Mohd. Iqbal Ahmed v. State of Andhra
Pradesh4
 this Court lucidly registered the view that
it is incumbent on the prosecution to prove that a
valid sanction has been granted by the sanctioning
authority after being satisfied that a case for sanction
4
 AIR 1979 SC 677
6Page 7
has been made out constituting an offence and the
same should be done in two ways; either (i) by
producing the original sanction which itself contains
the facts constituting the offence and the grounds of
satisfaction and (ii) by adducing evidence aliunde to
show the facts placed before the Sanctioning
Authority and the satisfaction arrived at by it.
It is
well settled that any case instituted without a proper
sanction must fail because this being a manifest
defect in the prosecution, the entire proceedings are
rendered void ab initio. 
8. In Superintendent of Police (C.B.I.) v. Deepak
Chowdhary and others5
 it has been ruled that the
grant of sanction is only an administrative function,
though it is true that the accused may be saddled
with the liability to be prosecuted in a court of law.
What is material at that time is that the necessary
facts collected during investigation constituting the
offence have to be placed before the sanctioning
authority and it has to consider the material. Prima
5
 (1995) 6 SCC 225
7Page 8
facie, the authority is required to reach the
satisfaction that the relevant facts would constitute
the offence and then either grant or refuse to grant
sanction.
9. In C.S. Krishnamurthy v. State of Karnataka6
 it
has been held as follows: -
“...sanction order should speak for itself and in
case the facts do not so appear, it should be
proved by leading evidence that all the
particulars were placed before the sanctioning
authority for due application of mind. In case
the sanction speaks for itself then the
satisfaction of the sanctioning authority is
apparent by reading the order.”
10. In R. Sundararajan v. State by DSP, SPE, CBI,
Chennai7
, while dealing with the validity of the order
of sanction, the two learned Judges have expressed
thus: -
“it may be mentioned that we cannot look into
the adequacy or inadequacy of the material
before the sanctioning authority and we cannot
sit as a court of appeal over the sanction order.
The order granting sanction shows that all the
available materials were placed before the
sanctioning authority who considered the same
in great detail. Only because some of the said
materials could not be proved, the same by
itself, in our opinion, would not vitiate the order
6
 (2005) 4 SCC 81
7
 (2006) 12 SCC 749
8Page 9
of sanction. In fact in this case there was
abundant material before the sanctioning
authority, and hence we do not agree that the
sanction order was in any way vitiated.”
11. In State of Karnata v. Ameerjan8
 it has been
opined that an order of sanction should not be
construed in a pedantic manner. But, it is also well
settled that the purpose for which an order of
sanction is required to be passed should always be
borne in mind. Ordinarily, the sanctioning authority is
the best person to judge as to whether the public
servant concerned should receive the protection
under the Act by refusing to accord sanction for his
prosecution or not.
12. In Kootha Perumal v. State through Inspector
of Police, Vigilance and Anti-Corruption9
, it has
been opined that the sanctioning authority when
grants sanction on an examination of the statements
of the witnesses as also the material on record, it can
safely be concluded that the sanctioning authority
has duly recorded its satisfaction and, therefore, the
sanction order is valid.
8
 (2007) 11 SCC 273
9
 (2011) 1 SCC 491
9Page 10
13. From the aforesaid authorities the following
principles can be culled out: -
(a) It is incumbent on the prosecution to prove that
the valid sanction has been granted by the sanctioning
authority after being satisfied that a case for sanction
has been made out.
(b) The sanction order may expressly show that the
sanctioning authority has perused the material placed
before him and, after consideration of the
circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the
evidence that the material was placed before the
sanctioning authority and his satisfaction was arrived at
upon perusal of the material placed before him.
(d) Grant of sanction is only an administrative
function and the sanctioning authority is required to
prima facie reach the satisfaction that relevant facts
would constitute the offence.
10Page 11
(e) The adequacy of material placed before the
sanctioning authority cannot be gone into by the court
as it does not sit in appeal over the sanction order.
(f)If the sanctioning authority has perused all the
materials placed before him and some of them have not
been proved that would not vitiate the order of
sanction.
(g) The order of sanction is a pre-requisite as it is
intended to provide a safeguard to public servant
against frivolous and vexatious litigants, but
simultaneously an order of sanction should not be
construed in a pedantic manner and there should not be
a hyper-technical approach to test its validity.
14. Keeping in view the aforesaid principles it is to be
seen whether the order of sanction granted by the
sanctioning authority withstands scrutiny or not. For
the aforesaid purpose it is necessitous to reproduce
the order of sanction in entirety: -
“WHEREAS, it is alleged that Shri Mahesh
Gandmal Jain, Accounts Clerk working in Office
Administration Department, State Bank of India,
11Page 12
Corporate Centre, Mumbai while working as
such on 03.04.2000, abused his official position,
in as much as demanded and accepted illegal
gratification from Satish P. Doshi, Proprietor of
Shree Travels, Matunga, Mumbai for handling
over TDS Certificates in the form of 16A of
Income Tax Act, in respect of Shree Travels.
WHEREAS, it is alleged that in pursuance
of aforesaid demand, Shri Mahes Gandmal Jain,
Accourt Clerk, on 03.04.2000 accepted the
illegal gratification of Rs. 1000/- from Shri Satish
P. Doshi for the aforesaid purpose at the office
of Shree Travels situated at 445, Mahilashram
Road, Somaya Building No. 2, Matunga Central
Railway, Mumbai-19, before the panch witness
when Mahesh Gandmal Jain was caught red
handed by the officers of CBI, ACB, Mumbai.
AND WHEREAS, the said acts on the part of
Shre Mahesh Gandmal Jain constitute offences
punishable under Section 7, 13 (2) r/w. 13(1)(d)
of Prevention of Corruption Act, 1988.
AND WHEREAS, I, Shri Yeshwant Balkrishna
Kelkar, Asst. General Manager, Office
Administration Dept., State Bank of India,
Corporate Centre, Mumbai, being the authority
competent to remove the said Shri Mahesh
Gandmal Jain, Accounts Clerk, Office
Administration Dept., State Bank of India,
Corporate Centre, Mumbai from office after fully
examining the material, documents i.e.
Statement of witnesses under the provisions of
Section 161 of Criminal Procedure Code 1973,
FIR, CFSL Opinion and other relevant documents
placed before me in regard to the said above
allegations and the facts and circumstances of
the case, consider that the said Shri Mahesh
Gandmal Jain has committed the offences and
he should be prosecuted in the court of law for
the said offences.
12Page 13
NOW, therefore, I, Shri Yeshwant
Balkrishna Kelakar, Asst. General Manager,
Office Administration Dept., State of Bank of
India, Corporate Centre, Mumbai, do hereby
accord sanction under Section 19(1)(c) of the
Prevention of Corruption Act, 1988 for the
prosecution of the said Shri Mahesh Gandmal
Jain for the said offences and any other offences
punishable under the provisions of any law in
respect of the acts aforesaid and for taking
cognizance of the said offences by the court of
competent jurisdiction.
Date : 04.10.2000 (Illegible)
(SHRI Y.B. KELKAR)
ASST. GENERAL MANAGER (OAD)
& APPOINTING AUTHORITY”
15. Reserving our opinion on the same for the present we
shall proceed to deal with the reasons for treating the
said order of sanction as invalid and improper by the
learned trial Judge. The learned trial Judge has
referred to the sanction order Ext.13 and the
forwarding letter Ext. 14 and, thereafter, proceeded
to observe that the order of sanction is completely
bereft of elementary details; that though the date is
not mentioned in the FIR, the authority has
mentioned the date in the sanction order; that the
order of sanction is delightfully vague; that the
13Page 14
amount of bribe that finds place in the sanction order
was told to him and he had no personal knowledge
about it; that the minimum discussion is absent in
the order of sanction; that grant of sanction being not
an idle formality it was incumbent on the competent
authority to ascribe proper reasons on perusal of the
materials; that there is no material to show the
existence of objective material to formulate the
subjective satisfaction; that the authority has granted
sanction in an absolute mechanical manner; and that
the order of sanction does not reflect sincerity of
approach. The High Court, while dealing with the
said reason, has really not discussed anything except
stating that a possible view has been taken by the
learned trial Judge and in appeal it cannot substitute
the findings merely because any other contrary
opinion can be rendered in the facts of the case.
16. Presently, we shall proceed to deal with the contents
of the sanction order. The sanctioning authority has
referred to the demand of the gratification for
handing over TDS certificate in Form 16A of the
14Page 15
Income-tax Act, the acceptance of illegal gratification
by the accused before the panch witnesses and how
the accused was caught red handed. That apart, as
the order would reveal, he has fully examined the
material documents, namely, the FIR, CFSL report
and other relevant documents placed in regard to the
allegations and the statements of witnesses recorded
under Section 161 of the Code and, thereafter, being
satisfied he has passed the order of sanction. The
learned trial Judge, as it seems, apart from other
reasons has found that the sanctioning authority has
not referred to the elementary facts and there is no
objective material to justify a subjective satisfaction.
The reasonings, in our considered opinion, are
absolutely hyper-technical and, in fact, can always be
used by an accused as a magic trick to pave the
escape route. The reasons ascribed by the learned
trial Judge appear as if he is sitting in appeal over the
order of sanction. True it is, grant of sanction is a
sacrosanct and sacred act and is intended to provide
a safeguard to the public servant against vexatious
15Page 16
litigation but simultaneously when there is an order
of sanction by the competent authority indicating
application of mind, the same should not be lightly
dealt with. The flimsy technicalities cannot be
allowed to become tools in the hands of an accused.
In the obtaining factual matrix, we must say without
any iota of hesitation that the approach of the
learned trial Judge as well as that of the learned
single Judge is wholly incorrect and does not deserve
acceptance.
17. At this stage, we think it apposite to state that while
sanctity attached to an order of sanction should
never be forgotten but simultaneously the rampant
corruption in society has to be kept in view. It has
come to the notice of this Court how adjournments
are sought in a maladroit manner to linger the trial
and how at every stage ingenious efforts are made to
assail every interim order. It is the duty of the court
that the matters are appropriately dealt with on
proper understanding of law of the land. Minor
irregularities or technicalities are not to be given
16Page 17
Everestine status. It should be borne in mind that
historically corruption is a disquiet disease for
healthy governance. It has the potentiality to stifle
the progress of a civilized society. It ushers in an
atmosphere of distrust. Corruption fundamentally is
perversion and infectious and an individual perversity
can become a social evil. We have said so as we are
of the convinced view that in these kind of matters
there has to be reflection of promptitude, abhorrence
for procrastination, real understanding of the law and
to further remain alive to differentiate between
hyper-technical contentions and the acceptable legal
proponements.
18. We shall presently deal with the course of action that
is required to be undertaken in the case at hand.
Had the High Court dealt with the appeal on merits,
we would have proceeded to deal with justifiability of
the same. The High Court has declined to grant
leave solely on the ground that the conclusion
reached by the learned trial Judge pertaining to
validity of sanction being justified, the judgment of
17Page 18
acquittal did not warrant interference. There has
been no deliberation on the merits of the case.
19. At this juncture, we may note that Mr. Luthra
submitted that the matter should be remitted to the
High Court to deal with the application for grant of
leave as per law. Per contra, Mr. Bachawat, learned
senior counsel, submitted that if this Court would
think of remitting the entire matter it should be
remanded to the learned trial Judge as he has not
appropriately dealt with the real issues, for he has
been guided by the impropriety and validity of
sanction. On a perusal of the judgment of the
learned trial Judge we find that he had recorded his
conclusions on every aspect. He has not rested his
conclusion exclusively on sanction. True it is, he has
acquitted the accused on the ground that the order
of sanction is invalid in law but simultaneously he has
dealt with other facets. Thus, remitting the matter to
the trial court is not warranted. If the High Court
thinks it apt to grant leave, it has ample power to
deal with the appeal from all the spectrums. It is well
18Page 19
settled in law that it is obligatory on the part of the
appellate court to scrutinize the evidence and further
its power is coextensive with the trial court. It has
power to consider all the matters which weighed with
the trial court and the reasons ascribed by it for
disbelieving or accepting the witnesses. This has
been so held in Laxman Kalu v. State of
Maharashtra10 and Keshav Ganga Ram Navge v.
The State of Maharashtra11
. Needless to
emphasise that the High Court, while hearing an
appeal against conviction, can scan the evidence and
weigh the probabilities. 
It is incumbent on the High
Court to analyse the evidence, deal with the legal
issues and deliver a judgment. Thus, there is no
merit in the submission that it should be remanded
to the learned trial Judge. Apart from the aforesaid
reason, we are also not inclined to remit the matter
to the learned trial Judge as there would be another
round of hearing before the learned trial Judge which
is avoidable. It has to be kept uppermost in mind
that remit to the trial court has to be done in very
10 AIR 1968 SC 1390
11 AIR 1971 SC 953
19Page 20
rare circumstances, for it brings in procrastination in
the criminal justice dispensation system which is not
appreciated.
20. Consequently, the appeal is allowed, the judgment of
the High Court and the conclusion of the learned trial
Judge pertaining to the validity of sanction are set
aside and the matter is remitted to the High Court.
As we have not dealt with any other finding recorded
by the learned trial Judge, it has to be construed that
there has been no expression of opinion on the
merits of the case on those counts. The High Court
shall be well advised to consider all the aspects
barring what has been dealt with in this appeal while
dealing with the application for grant of leave.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
[Dipak Misra]
New Delhi;
May 28, 2013.
20

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.