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

Tuesday, October 18, 2016

The prosecution case is that the appellant has amassed the assets valued at Rs.1,27,38,353/- in his name and in the names of his wife and minor son during the check period 04.01.1993 to 31.03.2004, which is disproportionate to the known sources of his income. The investigation took almost six years to get completed, which revealed that a sum of Rs.56,30,296/- was invested by the appellant through Benami transactions in the names of his wife and son in two companies, namely, M/s. ARJ Impex Private Limited and M/s. Malik Hospitality Services Private Limited. According to CBI, the appellant’s wife Priyanka Batra incorporated a company, M/s. ARJ Impex Limited, to engage in import-export business, and then sold her shares in the company to her two uncles, namely, Karan Singh and Vijay Kumar. The company’s main source of income was unsecured loans obtained from various companies and individuals, many of which were never paid back, several of these loans were from Priyanka Batra herself. Further, though the sale of income of the company was minimal, it acquired assets of Rs.85,70,770/- during the check period. It appears that Karan Singh and Vijay Kumar had incorporated another company called M/s. Malik Hospitality Services, whose main source of income was unsecured loans from various individuals and companies. The company had acquired assets of Rs.20,52,013/- and had unrepaid loans of Rs.26,77,000/- during the check period. Priyanka Batra was connected to Malik Hospitality Services as a public notice appeared in Nav Bharat Times, showing her as the intended purchaser of a property that was to be bought for the company.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2491 OF 2014

Vivek Batra                                  … Appellant

                                   Versus

Union of India and others                          … Respondents

                               J U D G M E N T


Prafulla C. Pant, J.


      This appeal is directed against judgment and order  dated  29.10.2013,
passed by the High Court of Judicature at Bombay in Criminal  Writ  Petition
No. 3654 of 2012,  whereby  the  petition  challenging  the  sanction  dated
09.10.2012 for  prosecution  of  the  appellant  under  Section  13  of  the
Prevention of Corruption Act, 1988 is dismissed.

Brief facts of the case are that the appellant is an  officer  of  cadre  of
Indian Revenue Service (for short  “IRS”),  who  entered  into  the  service
through 1992 batch.  It is stated that an  FIR  RC  No.  BA1/2005/A0017  was
registered  on  04.04.2005  by  Central  Bureau   of   Investigation   (CBI)
(Respondent No. 4) in  respect  of  disproportionate  assets  to  the  known
sources of the appellant.  The prosecution case is that  the  appellant  has
amassed the assets valued at Rs.1,27,38,353/- in his name and in  the  names
of his wife and minor son during the check period 04.01.1993 to  31.03.2004,
which is  disproportionate  to  the   known  sources  of  his  income.   The
investigation took almost six years to get completed, which revealed that  a
sum  of  Rs.56,30,296/-  was  invested  by  the  appellant  through   Benami
transactions in the names of his wife and  son  in  two  companies,  namely,
M/s. ARJ Impex Private Limited and M/s. Malik Hospitality  Services  Private
Limited.   According  to  CBI,   the   appellant’s   wife   Priyanka   Batra
incorporated a company, M/s. ARJ Impex Limited, to engage  in  import-export
business, and then sold her  shares  in  the  company  to  her  two  uncles,
namely, Karan Singh and Vijay Kumar.  The company’s main  source  of  income
was unsecured loans obtained from various companies  and  individuals,  many
of which were never paid back, several of these  loans  were  from  Priyanka
Batra herself.  Further, though the  sale  of  income  of  the  company  was
minimal, it acquired assets of Rs.85,70,770/- during the check  period.   It
appears that Karan Singh and Vijay Kumar had  incorporated  another  company
called M/s. Malik Hospitality Services, whose  main  source  of  income  was
unsecured loans from various individuals and  companies.   The  company  had
acquired assets of Rs.20,52,013/- and had unrepaid loans  of  Rs.26,77,000/-
during the check period.  Priyanka Batra was connected to Malik  Hospitality
Services as a public notice appeared in Nav Bharat  Times,  showing  her  as
the intended purchaser of a property that was to be bought for the company.

The appellant was  arrested  on  02.09.2010,  and  after  about  three  days
released  on  bail.   He  was  placed  under  suspension  by  the  authority
concerned.  The CBI sought sanction for prosecution of  the  appellant  from
the competent authority on which the file was processed, and  at  the  first
stage on 03.05.2011 advice of Central Vigilance Commission (CVC) was  sought
by the Finance Department.  On 01.09.2011,  the  CVC  recommended  that  the
sanction for prosecution be  granted.   The  department  concerned  (Finance
Department) endorsed the matter again on 01.11.2011  for  fresh  opinion  of
the CVC.  But the CVC,  through  its  Office  Memorandum  dated  02.11.2011,
reiterated its opinion.  The  Finance  Department  thereafter  referred  the
matter to Department of Personnel and Training (for short  “DOPT”)  for  its
views.  The DOPT did not appreciate the  stand  of  the  Finance  Department
that the sanction should be accorded only if  the  CBI  provides  sufficient
evidence  and  communicated  the  same  through  letter  dated   29.03.2012.
However, it observed that administrative warning  could  be  issued  to  the
appellant  for  not  intimating  the  transactions  to  Finance  Department.
Through letter dated 28.05.2012, the DOPT  conveyed  that  insufficiency  of
evidence can be tested in the court of law and sanction for prosecution  can
be  granted.   Finally,  the  competent  authority,  vide  its  order  dated
09.10.2012,  granted  sanction  for  prosecution  of  the   appellant,   who
challenged the same before the High Court in the writ  petition,  which  was
dismissed by the impugned order.

Mr. K.K. Venugopal, learned  senior  counsel  appearing  on  behalf  of  the
appellant,  argued  that  there  was  categorical  opinion  of  the  Finance
Department that the evidence laid before it  was  not  sufficient  to  grant
sanction for prosecution.  It is pointed out that there  was  difference  of
opinion between Finance Ministry and the CVC.   Not  only  this,  even  DOPT
opined that warning to the officer  could  be  sufficient.   It  is  further
submitted  that  the  earlier   competent   authority   (Finance   Minister,
Government of India) had referred the matter back to the CVC, as  such,  the
sanction for prosecution stood declined, and grant of the  sanction  by  the
successor Finance Minister cannot  be  said  to  be  a  valid  sanction  for
prosecution.  It is further argued  that  the  Rules  of  Business  are  not
followed, as such, it cannot be said that the sanction was accorded  by  the
competent authority.  In support of  his  argument  learned  senior  counsel
placed reliance on Nazir Ahmad v. King-Emperor[1], and argued that  where  a
power is given to do a certain thing in a certain way,  the  thing  must  be
done in that way or not at all.

We have considered the submissions of learned senior  counsel,  and  perused
the record.


Before further discussion, we thing it just and  proper  to  quote  relevant
part of Government of India (Allocation  of  Business)  Rules,  1961.   Sub-
rules (3) and (4) of Rule 3 of the Rules read as under: -


“(3)  Where sanction for the prosecution of any person for  any  offence  is
required to be accorded –

If he is a  Government  servant,  by  the  Department  which  is  the  Cadre
Controlling authority for the service of which he is a member,  and  in  any
other case, by the Department in  which  he  was  working  at  the  time  of
commission of the alleged offence;

If he is a public servant other than a Government servant, appointed by  the
Central Government, by the Department administratively  concerned  with  the
organization in which he was working  at  the  time  of  commission  of  the
alleged offence; and


In any other case, by the Department which administers the Act  under  which
the alleged offence is committed;


Provided that where, for offences alleged to have been  committed,  sanction
is required under  more  than  one  Act,  it  shall  be  competent  for  the
Department which administers any of such Acts to accord sanction  under  all
such Acts.

(4)   Notwithstanding anything contained  in  sub-rule  (3),  the  President
may, by general or special order, direct that in any case or class of  case,
the sanction shall be by the Department of Personnel and Training.”


There is no dispute that for an IRS officer Cadre Controlling  Authority  is
the Finance Minister of the Government of India.   In  Bachhittar  Singh  v.
The State of Punjab[2], Constitution Bench of this Court has held  that  the
business of the State is  a  complicated  one  and  has  necessarily  to  be
conducted through the agency of large number of officials and authorities.
In Jasbir Singh Chhabra and others v. State of Punjab  and  others[3],  this
Court held as under: -

“35. It must always be remembered that in a  democratic  polity  like  ours,
the functions of the Government are carried out by different individuals  at
different levels. The issues and policy matters which  are  required  to  be
decided by the Government are dealt with by several  functionaries  some  of
whom may record notings on the files favouring a particular person or  group
of persons. Someone may suggest a particular line of action, which  may  not
be conducive to public  interest  and  others  may  suggest  adoption  of  a
different mode in larger public interest. However,  the  final  decision  is
required to be taken by the designated authority keeping in view the  larger
public interest. The notings recorded in the files cannot be made basis  for
recording a finding that the ultimate decision taken by  the  Government  is
tainted by mala fides or is influenced by extraneous considerations……”

In Sethi Auto Service Station and another  v.  Delhi  Development  Authority
and others[4], this Court observed as under: -
“14. It is trite to state that notings in a departmental file  do  not  have
the sanction of law to be an effective order. A noting by an officer  is  an
expression of his viewpoint on the subject. It is no more  than  an  opinion
by an officer for internal use and consideration of the other  officials  of
the department and for the benefit of the final  decision-making  authority.
Needless to add that internal notings are not meant  for  outside  exposure.
Notings in the file  culminate  into  an  executable  order,  affecting  the
rights of the parties,  only  when  it  reaches  the  final  decision-making
authority in the department, gets  his  approval  and  the  final  order  is
communicated to the person concerned.”

In view of the law laid down by this Court, as above, we are of the  opinion
that the sanction cannot be held invalid only for the  reason  that  in  the
administrative notings different authorities have opined differently  before
the competent authority took the decision in the matter.  It is not  a  case
where the Finance Minister was not the  competent  authority  to  grant  the
sanction.   What  is  required  under  Section  19  of  the  Prevention   of
Corruption Act, 1988 is that  for  taking  the  cognizance  of  an  offence,
punishable under Sections 7, 10, 11, 13 and 15 of the Act committed  by  the
public servant,  is  necessary  by  the  Central  Government  or  the  State
Government, as the case may be, and in the case of a public servant, who  is
neither employed in connection with affairs of the Union or the State,  from
the authority competent to remove him.  Sub-section (2)  of  Section  19  of
the Act provides that 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
authority, such sanction shall be given  by  that  Government  or  authority
which could have been competent  to  remove  the  public  servant  from  his
office at the time when the offence was  alleged  to  have  been  committed.
Sub-section (3) of Section 19 of the  Prevention  of  Corruption  Act,  1988
provides as under: -

“(3)  Notwithstanding anything contained in the Code of Criminal  Procedure,
1973 (2 of 1974), -

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;

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;

no court shall stay the proceedings under this Act on any other  ground  and
no  court  shall  exercise  the  powers  of  revision  in  relation  to  any
interlocutory  order  passed  in  any  inquiry,  trial,  appeal   or   other
proceedings.”

Having gone  through  the  copy  of  note-sheets  relating  to  sanction  in
question placed before us as part of  rejoinder  affidavit,  it  is  evident
that there had been proper application of mind on the part of the  competent
authority before the sanction was accorded.  Our perusal of the said  record
does not indicate that any decision was taken by  the  competent  authority,
at any point of time, not to grant sanction so as to give  the  decision  to
grant sanction the colour of a review of any  such  earlier  order,  as  has
been contended before us.  The opinion of  CVC,  which  was  reaffirmed  and
ultimately prevailed in  according  the  sanction,  cannot  be  said  to  be
irrelevant for the reason that clause  (g)  of  Section  8  of  the  Central
Vigilance Commission Act, 2003 provides that it is one of the  functions  of
the CVC to tender advice to the Central Government on such  matters  as  may
be referred to it by the Government.

For the reasons, as discussed above, we find no  reason  to  interfere  with
the impugned order passed by the High Court dismissing  the  writ  petition.
Accordingly, the appeal is dismissed.  The interim order  dated  25.11.2014,
passed by this Court, is hereby vacated.  The trial  court  is  directed  to
conclude the trial expeditiously.  However, we  clarify  that  we  have  not
given any opinion as to the merits of the case.  There shall be no order  as
to costs.

                                                             ……………………………..J.

                                                              [Ranjan Gogoi]



                                                             ……………………………..J.

                                                          [Prafulla C. Pant]

New Delhi;

October 18, 2016.




                                                     -----------------------
[1]    AIR 1936 PC 253
[2]    [1962] Supp. 3 SCR 713
[3]    (2010) 4 SCC 192
[4]    (2009) 1 SCC 180


No comments:

Post a Comment

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