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TMI Blog2013 (11) TMI 1754X X X X Extracts X X X X X X X X Extracts X X X X ..... ropose to say that the validity should be examined during the stage of inquiry or at pretrial stage. It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. - Criminal Appeal No. 1838 of 2013 - - - Dated:- 22-11-2013 - Dr. B.S. Chauhan And S.A. Bobde, JJ. JUDGMENT Dr. B.S. Chauhan, J. 1. This appeal has been preferred against the impugned judgment and order dated 3.10.2007 passed by the High Court of Delhi at New Delhi all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed by the CBI before the Court of Special Judge on 5.12.2002 and on the basis of the same, the court took cognizance and issued summon to the Respondent on 10.1.2003. F. The Respondent challenged the validity of the sanction by filing an application dated 1.5.2003 and a similar application was again filed on 12.9.2005. The learned Special Judge heard the said applications and dismissed the same vide order dated 28.7.2007, holding that it was not the appropriate stage to decide as to whether sanction granted by the competent authority was invalid. G. The Respondent filed a Revision Application Under Sections 397, 401 r/w 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as the ' Code of Criminal Procedure ') for setting aside the said order of the Special Judge dated 28.7.2007. The said petition was contested by the Appellant. However, the High Court vide impugned judgment and order set aside the order of the Special Judge and remanded the case to record a finding on the question of any failure of justice in according sanction and to examine the sanctioning authority, as a witness even at pre-charge stage, if it deems fit. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the Revenue Secretary to examine and consider the record of the investigation fairly and objectively, by taking into consideration all relevant facts and circumstances and then proceed with the case. By the said order, the Director, CBI was also asked to examine the investigation record of the case and to consider all relevant aspects and factors in the light of the representation of the Respondent and to pass appropriate orders within a stipulated period of two months. In such a fact-situation; the issue of sanction has to be considered at a pre-charge stage and such a void sanction cannot be a foundation for a valid trial. In pursuance of the impugned order, the Special Judge has summoned the then sanctioning authority and the latter filed an affidavit before the Special Judge that relevant material was not placed before him at the relevant time. The Appellant suppressed all these facts and obtained the interim order from this Court. The conduct of the Appellant disentitles it for any relief from this Court. Further placing reliance on the judgments of this Court in Costao Fernandes v. State AIR 1996 SC 1383; and Center for PIL and Anr. v. UOI and Ors. : AIR 2001 SC 80, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose, in A. Sanjeevi Naidu etc. v. State of Madras and Anr. AIR 1970 SC 1102, is not applicable as in the case of grant of sanction, the statutory authority has to apply its mind and take a decision whether to grant sanction or not. 10. This Court in Ashok Tshering Bhutia v. State of Sikkim AIR 2011 SC 1363, while dealing with the issue whether invalid sanction goes to the root of jurisdiction of the Court which would vitiate the trial and conviction, held that in the absence of anything to show that any defect or irregularity therein caused a failure of justice, the contention was without any substance. The failure of justice would be relatable to error, omission or irregularity in the grant of sanction. However, a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in the failure of justice or has been occasioned thereby. 11. The court must examine whether the issue raised regarding failure of justice is actually a failure of justice in the true sense or whether it is only a camouflage argument. The expression 'failure of justice' is an extremely pliable or facile an expression which can be made to fit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing officers to give strict adherence to the said observations made by this Court. The CBI manual was amended accordingly, adding paragraph 22.16, wherein it was directed that in view of the said judgment in M.M. Rajendran (Supra), it was imperative that alongwith SP's report, the branches must send the copies of all the relied upon relevant material including the statements of witnesses recorded by the investigating officers Under Section 161 Code of Criminal Procedure as well as statements Under Section 164 Code of Criminal Procedure recorded by the Magistrate to the authority competent to grant sanction for prosecution . Further, the investigating officer concerned shall be deputed to the competent authority to produce the relevant material for perusal of the competent authority and this fact be recorded in the case diary of the case concerned. Paragraph 22.16 of the CBI manual reads as under: On completion of investigation in a case covered in item 22.15.1 and 22.15.2, even the CBI shall send its report to the administrative authority alongwith relevant statements of witnesses recorded during investigation and the documents. The judgment of the Supreme Court in St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pertinent to note that the sanction order speaks of consideration of the entire material including the case diaries and documents collected during the course of investigation and statements recorded Under Section 161 Code of Criminal Procedure and statements recorded by the Magistrate Under Section 164 Code of Criminal Procedure The learned Special Judge dealt with the issue in its order and brushed aside the same observing that the same may be factually incorrect, and there was a letter on record showing the true picture that the relevant documents had not been sent to the sanctioning authority. However, it is open to the prosecution during the course of trial to examine the sanctioning authority where such a discrepancy can be explained. The learned Special Judge has wrongly labeled such a fact which goes to the root of jurisdiction and clearly shows that the extent to which there could be application of mind was a mere discrepancy. The relevant part of the order of the Special Judge reads: The contents of Para 27 of the sanction order dated 26th November, 2002 stating that the case diaries, documents collected by the investigating officer during the course of investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he trial court to record the findings in terms of Clause (b) of Sub-section (3) and Sub-section (4) of Section 19 of the Act. 32. Hence, the impugned order, passed by the learned Special Judge is set aside and the matter is remanded back to the trial court with direction to record a finding in terms of Clause (b) of Sub-section (3) and Sub-section (4) of Section 19 of the Act. The trial court, if it deems fit, for this purpose, can examine the sanctioning authority as a witness even before charge, keeping in view the provisions of Section 311 Code of Criminal Procedure. 20. The aforesaid concluding paragraphs of the judgment give rise to questions as to what is the proper stage to examine the issue of sanction; as well as relating to the applicability of the provisions of Section 19(3)(b) and 19(4) of the Act 1988. Section 19(1) reads as under: 19. (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) xx xx xx (2) xx xx xx (3) Notwithstanding anything contained in the Code of Criminal Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, were not enclosed with the SP's report. It further revealed that an order was passed by the High Court directing the Revenue Secretary and the Director (CBI) to examine the grievance of the Respondent/accused and to dispose of his representations in this regard. 23. In Commissioner of Police v. Gordhandas Bhanji AIR 1952 SC 16, this Court held as under: We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself..... Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order. (Emphasis ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases also the administrative Ministry concerned should consult the Ministry of Law and accept their advice. 27. The Respondent had given a representation on 13.3.2003 making various averments, inter-alia, that there was no evidence to indicate that the relevant material/record had been separately examined by the Vigilance Wing of the department, and for the verification of which the Finance Minister had requisitioned the records. The Appellant, CBI brushed aside the said representation on the pretext that the issue of validity of sanction was sub-judice. 28. It has further been averred therein that before the court, the Special PP of CBI has stated that no relevant material had been placed before the sanctioning authority except the SP's report as is evident from the order dated 11.7.2007. The relevant part of the order reads as under: It is conceded by Shri N.K. Sharma, Ld. Special PP that only SP's report alongwith list of evidence oral and list of evidence documentary were sent to the sanctioning authority for the purpose of according sanction. 29. The representation made by the Respondent was considered at various levels. The letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of witnesses and List of documents will be provided, if necessary. (Emphasis added) Thus, it is evident that even on the date the draft sanction was sent, the investigation was not complete. 33. It appears from the facts and figures given in the report, particularly from the Income Tax returns/assessment orders of the Respondent and his family members, that there has not been a fair assessment regarding the income of the Respondent and other family members as shown by them in their income-tax returns and it is far from satisfaction, as is evident from the preliminary enquiry report dated 17.9.1995. Same remained the position regarding the assessment of the value of the apartments purchased by the Respondent at Barakhamba Road, New Delhi, if compared with the property purchased by the Indian Oil Corporation in the same locality. 34. The judgment delivered by the Delhi High Court in the case of Vijay Aggarwal, brother of the Respondent, in Writ Petition (Crl.) No. 675 of 2001 against the officers of the CBI impleading them by name, make it evident that very serious allegations had been made against the said officers of having acted with oblique m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and the Law Ministry gave its opinion. The salient features thereof are that the sanction had been accorded without considering and examining the relevant material as the same had not been sent by the CBI and even thereafter despite being requested by the Vigilance Department of CBDT, the Vigilance, CBI did not send the relied upon documents to the authorities. 37. Similarly, it is also evident from the records that the Ministry of Finance, Department of Revenue had written a letter dated 11.3.2011 to the Law Department seeking the said opinion and earlier the Directorate General of Income Tax (Vigilance) had also sent a letter to the Law Ministry seeking its opinion. Thus, the concerned authorities had sought legal opinion of the Law Ministry on the issue. 38. The CVC Manual provides that opinion of the Law Ministry was to be accepted by the other departments in such cases. However, the Respondent claims that the said legal opinion was subsequently withdrawn. Whether the legal opinion could be validly withdrawn or not can be considered by the trial court while considering the validity of the sanction. 39. It may also be pointed out that afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsisting of income tax record of the Petitioner. The Apex Court has held in DSP Chennai v. K. Inbasagaran (2006) 1 SCC 420 that: Income tax return and assessment orders are relevant in a case of disproportionate assets. Paragraph 24 mentioning relevant part of sanction order has already been quoted hereinabove. 42. Thus, it becomes crystal clear that the statements of 28 witnesses were not even mentioned in the SP's report. Similarly, there was no reference to the 938 documents in the said report and there had been no reference to the income tax returns and assessment orders so far the Respondent and his family members were concerned therein. 43. The present special leave petition was drawn/drafted on 20.11.2007 and filed thereafter. Interim order was granted by this Court on 10.12.2007. In the special leave petition it has not been disclosed that the Special Judge, after remand, entertained the matter and issued summons to the then sanctioning authority i.e. Hon'ble Finance Minister, and in response thereto, an affidavit dated 3.11.2007 had been filed by the then sanctioning authority, disclosing that no material had been considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal... 47. Undoubtedly, the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the stage of inquiry or at pretrial stage. 48. However, in the instant case, the fact-situation warrant a different course altogether as the impugned order had already been partly complied with before filing the petition before this Court. The Appellant admittedly did not disclose the material facts in this petition. Had the said facts been disclosed perhaps this Court would not have entertained this petition and the matter could have been concluded by the Trial Court much earlier. The affidavit filed by the sanctioning authority may tilt the balance in favour of the Respondent if duly supported by the deponent and not disclosing the material fact i.e. filing of such an affidavit by the sanctioning authority before the Special Judge, indicates serious and substantial prejudice to the Respondent. The material on record reveals that it could be a case of serious prejudic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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