R/CR.RA/954/2019 JUDGMENT DATED: 28/03/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 954 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BHANUBEN MANGABHAI BAGDA & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2
MR HK PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 28/03/2024
ORAL JUDGMENT
Order dated 07/05/2019 passed below Exh.41 and Exh.43
in Special 9ACB) Case No.6 of 2015 by the learned 4th Additional
Sessions Judge, Junagadh is sought to be challenged in this
revision filed under Section 397 read with section 401 of Cr.PC
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whereby the discharge application preferred by the petitioners –
accused came to be dismissed.
2. The short facts of the case are that present petitioners –
org. accused came to be caught red handed while demanding
and accepting the bribe amount of Rs.2,50,000/- from the org.
complainant and to that effect offence came to be registered
under Sections 7, 12, 13(1)d and 13(2) of the Prevention of
Corruption Act, 1988 (for short the Act). After registration of the
offence, investigation conducted and at the end of the
investigation, charge-sheet came to be filed.
2.1 Upon filing of the charge-sheet, the accused preferred
discharge application which came to be rejected by the
impugned order and thus present revision is preferred to
challenge the said order.
3. Heard Mr.Ashish Dagli, learned Advocate for the
petitioners-accused and learned APP Mr.H K Patel for
respondent – State.
4. Learned Advocate for the petitioners Mr.Dagli would
submit that sanction for prosecution granted in the present case
is invalid. It is submitted that when the alleged raid took place,
both the accused were working in Junagadh District; but later
on they got to transferred to some other District. He would
further submit that sanction for prosecution is not granted by
the Head of the Police Department at Junagadh; but S.P.,
Panchmahal at Godhra as well as Commissioner of Police, Rajkot
City where the accused were serving at the time of filing of the
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charge-sheet has granted the sanction.
4.1 Learned Advocate Mr.Dagli would further submit that
sanction for prosecution can only be granted by the Head of the
Department when the raid was conducted and where the
accused was serving. Thus, the sanction for prosecution granted
in the charge-sheet is invalid. The learned Sessions Judge has
failed to understand this aspect and as such committed serious
error in rejecting the application seeking discharge. He would
further submit that appropriate sanction for prosecution goes to
the root of the case. Since in the present case, there is invalid
sanction, it will not permit the learned Court below to take
cognizance and to prosecute the accused for the alleged offence.
4.2 Learned Advocate Mr.Dagli would further submit that issue
of power to grant sanction for prosecution is also involved in the
matter. The learned Sessions Judge has not understood this
issue in its proper perspective and committed serious error of
law. Learned Advocate Mr.Dagli would further submit that
petitioner no.1 was working as Woman PSI, Class-III and
petitioner no.2 was working as Unarmed Police Constable, Class
– III, in Junagadh Taluka Police Station at the time of alleged
raid. Both the petitioners were appointed by SP, Jungadh; but in
the case on hand, sanction for prosecution was granted by the
SP, Panchmahal at Godhra and Commissioner of Police, Rajkot
City. They are not the authority equivalent to the appointing
authority. He would submit that in view of Article 311 of the
Constitution of India, the person having higher authority to the
appointing authority are required to grant permission for
prosecution. It was submitted that granting of sanction to
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prosecute the accused are serious matter and the sanctioning
authority is required to go through the entire material placed
before it for its consideration and has to record the subjective
satisfaction about necessity of granting the sanction.
4.3 Learned Advocate Mr.Dagli would further submit that
Section 19 of the Act start with the non-abstaint clause. Purpose
of Section 19 of the Act is to save the government officer from
frivolous litigation. He would further submit that in the present
case on going through the sanction for prosecution, it prima
facie appears that sanctioning authority has not applied its
mind; nor has recorded subjective satisfaction before granting
the sanction and thus the sanction itself is invalid; however the
learned Special Judge did not consider this aspect and
committed serious error of law.
4.4 In nutshell, learned Advocate for the petitioner has argued
on two aspects. Firstly, the sanction for prosecution is invalid
and secondly, that authority which has granted sanction is
lacking power.
4.5 Learned Advocate for the petitioners has relied upon the
following authorities in support of his submission:
1. AIR 1960 ALL 40 Danpat vs. State
2. 1979 4 SCC 172 Mohd. Iqbal Ahmed Vs. State of A.P.
3. 1993 4 CCR 3288 Gopalbhai Mohanbhai Nagoda Vs. State
4. SCRA NO. 1095 OF 1995 Rajiv Madhav Shanbhag Vs.
State of Gujrat.
5. 1998 1 GLH 248 Mansukhlal Vithhaldas Chuahan Vs.
State of Gujarat.
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6. 1999 0 AIJEL SC 4559 CBI VS. V.K. SEHGAL.
7. 2002 1 SCC 149 Mahendra Lal Das vs. State of Bihar.
8. 2012 0 AIJEL SC 50956 Rattiram Vs. State of M.P thro'
Inspector of Police.
4.6 By making above submissions, learned advocate Mr.Dagli
would submit to allow this revision application by quashing and
setting aside the impugned order, and to discharge the petitioner
from accusation.
5. Learned APP on the other hand referring to Section 19 of
the Act, more particularly sub-section (c) of Section 19(1) of the
Act would submit that the authority competent to remove the
petitioners–accused from his office is authority empowered and
authorized to issue sanction for prosecution. He would further
submit that in the present case when the charge-sheet was filed,
one of the accused was serving in the office of the SP,
Panchmahal at Godhra and another was serving at Rajkot and
respective head of the office gave the sanction for prosecution
being the authority to remove them from service and therefore
there is no illegality in granting sanction for prosecution as they
are competent authority. Also it is argued that validity of
sanction can be examined during trial, it cannot be basis for
discharging the accused. He would therefore submit to dismiss
this revision application.
6. Having heard the learned Advocates for the parties, at the
outset, let refer to Section 19 of the Act.
“19. Previous sanction necessary for prosecution.
(1) No Court shall take cognizance of an offence punishable
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under [sections 7, 11, 13 and 15] [Substituted 'sections 7, 10,
11, 13 and 15' by Act No. 16 of 2018, dated 26.7.2018.]alleged
to have been committed by a public servant, except with the
previous sanction,
(a) in the case of a person [who is employed, or as the case may
be, was at the time of commission of the alleged offence
employed][Substituted 'who is employed' by Act No. 16 of 2018,
dated 26.7.2018.] 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, or as the case may
be, was at the time of commission of the alleged offence
employed] [Substituted 'who is employed' by Act No. 16 of 2018,
dated 26.7.2018.]in connection with the affairs of a State and is
not removable from his office save by or with 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;
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(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 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.”
7. The question of absence of sanction can be raised at the
inception and at the threshold as it goes to the root of the
matter. In absence of sanction, no Court can take cognizance of
the offence under the Prevention of Corruption Act and therefore
question of absence of sanction can be and has to be addressed
at the first instance and even before the inception of special case
under the Act. But, once the sanction exists, its legality and
validity is not to be questioned as it is a matter of trial and can
be decided during the trial.
8. The object behind the requirement of grant of sanction to
prosecute a public servant need not detain the court save and
except to reiterate that the provisions in this regard either under
the Code of Criminal Procedure or the Prevention of Corruption
Act, 1988 are designed as a check on frivolous, mischievous and
unscrupulous attempts to prosecute a honest public servant for
acts arising out of due discharge of duty and also to enable him
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to efficiently perform his duties cast on him by virtue of his
office. If the act complained off under the Prevention of
Corruption Act has a reasonable connection with the discharge
of official duties by the government or the public servant. If such
connection exists and the discharge or exercise of the
governmental function is, prima facie, founded on the bonafide
judgment of the public servant, the requirement of sanction will
be insisted upon so as to act as a filter to keep at bay any
motivated, ill-founded and frivolous prosecution against the
public servant. However, realising that the dividing line between
an act in the discharge of official duty and an act that is not,
may, at times, get blurred thereby enabling certain unjustified
claims to be raised also on behalf of the public servant so as to
derive undue advantage of the requirement of sanction, specific
provisions have been incorporated in Section 19(3) of the
Prevention of Corruption Act as well as in Section 465 of the
Code of Criminal Procedure which, inter alia, make it clear that
any error, omission or irregularity in the grant of sanction will
not affect any finding, sentence or order passed by a competent
court unless in the opinion of the court a failure of justice has
been occasioned. This is how the balance is sought to be struck.
9. In State of Bihar vs. Rajmangal Ram [2014 (11) SCC 388,
the Hon’ble Supreme Court after examining the purport of
Section 19(3) and Section 465 of the Code of Criminal Procedure,
in paragraph 7, 8, 10 and 11 held the following:
“7. In a situation where under both the enactments any error,
omission or irregularity in the sanction, which would also
include the competence of the authority to grant sanction, does
not vitiate the eventual conclusion in the trial including the
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conviction and sentence, unless of course a failure of justice
has occurred, it is difficult to see how at the intermediary stage
a criminal prosecution can be nullified or interdicted on
account of any such error, omission or irregularity in the
sanction order without arriving at the satisfaction that a failure
of justice has also been occasioned. This is what was decided by
this Court in State by Police Inspector V/s. T. Venkatesh
Murthy, (2004) 7 SCC 763 (paras 10 and 11), wherein it has
been inter alia observed that,
"14. ..Merely because there is any omission, error or
irregularity in the matter of according sanction, that does
not affect the validity of the proceeding unless the court
records the satisfaction that such error, omission or
irregularity has resulted in failure of justice."
8. The above view also found reiteration in Prakash Singh Badal
and Another V/s. State of Punjab and Others, (2007) 1 SCC 1
(para 29), wherein it was, inter alia, held that mere omission,
error or irregularity in sanction is not to be considered fatal
unless it has resulted in failure of justice. In Prakash Singh
Badal (supra) it was further held that Section 19(1) of the PC
Act is a matter of procedure and does not go to the root of
jurisdiction. On the same line is the decision of this Court in R.
Venkatkrishnan V/s. Central Bureau of Investigation, (2009) 11
SCC 737. In fact, a three Judge Bench in State of Madhya
Pradesh V/s. Virender Kumar Tripathi, (2009) 15 SCC 533,
while considering an identical issue, namely, the validity of the
grant of sanction by the Additional Secretary of the Department
of Law and Legislative Affairs of the Government of Madhya
Pradesh instead of the authority in the parent department, this
Court held that in view of Section 19 (3) of the PC Act,
interdicting a criminal proceeding mid-course on ground of
invalidity of the sanction order will not be appropriate unless
the court can also reach the conclusion that failure of justice
had been occasioned by any such error, omission or irregularity
in the sanction. It was further held that failure of justice can be
established not at the stage of framing of charge but only after
the trial has commenced and evidence is led (Para 10 of the
Report).
xxx xxx xxx xxx
10. In the instant cases the High Court had interdicted the
criminal proceedings on the ground that the Law Department
was not the competent authority to accord sanction for the
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prosecution of the respondents. Even assuming that the Law
Department was not competent, it was still necessary for the
High Court to reach the conclusion that a failure of justice has
been occasioned. Such a finding is conspicuously absent
rendering it difficult to sustain the impugned orders of the High
Court.
11. The High Court in both the cases had also come to the
conclusion that the sanction orders in question were passed
mechanically and without consideration of the relevant facts
and records. This was treated as an additional ground for
interference with the criminal proceedings registered against the
respondents. Having perused the relevant part of the orders
under challenge we do not think that the High Court was
justified in coming to the said findings at the stage when the
same were recorded. A more appropriate stage for reaching the
said conclusion would have been only after evidence in the
cases had been led on the issue in question.”
10. In Major M. C. Ashish Cinappa vs. Central Bureau of
Investigation (SLA(CRI) No.2576 of 2019) dated 22/09/2021, the
Hon’ble Apex Court has held in second unnumbered paragraph
as under:
“The contention urged on behalf of the petitioner is that the rial
Court has taken cognizance of the offence without there being
valid sanction as per the provision of Section 19 of the
Prevention of Corruption Act, 1988.
It is undisputed that cognizance has already been taken and
trial is in progress. This Court in Dinesh Kumar v. Chairman,
Airport Authority of India and Another (2012) 1 SCC 532 has
held that the validity of sanction order can also be raised in the
course of trial which reads as under:
"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 be have erred in leaving the question of
validity of sanction open for consideration by the trial
court and giving liberty to the appellant raise to 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 Badal vs. State of Punjab (2007) 1 SCC 1
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and not unjustified."
Since the cognizance has already been taken against the
petitioner and the trial is in progress, it is open for the
petitioner to raise the question of validity of sanction during the
course of trial and the Trial Court is bound to consider the said
question at an appropriate stage.”
11. The argument to the effect has been canvassed by learned
advocate Mr.Dagli that when alleged raid took place, both the
petitioners were working in the office of SP, Junagadh and
therefore, SP, Junagadh is the only competent authority to grant
the sanction for prosecution and thus sanction for prosecution
granted by SP, Panchmahal at Godhra and Commissioner of
Police, Rajkot is invalid. He would further submit that law
requires that the sanction should be granted by the appointing
authority or higher officer where the accused were employed on
the day of raid. It is also sought to be argued that in the present
case sanction for prosecution has been granted by the respective
authority where the accused was serving on the day when the
charge-sheet was filed and therefore, it was invalid sanction.
These argument has no substance in view of the aspect that
section 19(1)(c) of the Act empowering the authority to grant the
sanction for prosecution which authorized to remove the accused
from his office. In the present case, it is not the case of the
petitioners that SP, Panchmahal at Godhra or CP, Rajkot had no
authority to remove them from the office. Thus, they are
competent authority to issue sanction for prosecution. To be
noted that accused got to transferred after the alleged raid and
when charge-sheet was filed, they were working in the office of
SP, Panchmahal at Godhra and Commissioner of Police, Rajkot
respectively and therefore they are authorized officer/s to issue
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sanction for prosecution.
12. In section 19 of the Act, the Legislature has used the word
“Who is employed” which is relatable to the time of holding office.
Accordingly, no sanction is required for prosecution of a public
servant for abuse of his previous office which he is not holding
any more even though he holds another public office at the time
of taking cognizance. (Reference Subramanium Swamy vs.
Manmohan Singh (2012) 1 SCC 577).
13. In the present case, sanction has been granted by the
authority which is competent to remove the petitioners – accused
from the office. A strange argument came from the petitioners
that sanction for prosecution should be given by the higher
authority than the appointing authority of the accused. This is
not the requirement of Section 19 of the Act. The validity or
illegality of the sanction cannot be a ground in view of Section
19(3) of the Act unless a failure of justice has been occasioned.
Section 465 of the code is also applicable to the facts of the
present case. In nutshell, since the beginning the petitioners
have no case. There is authority for giving sanction for
prosecution and it can be examined during the trial; but by no
means it is a ground to move the discharge application. No
doubt, discharge application is a valuable right of the applicant;
but it cannot be moved on frivolous and untenable ground or
against the principles of law. Section 19(1)(a) read with Section
19(3) of the Act read with section 465 of the Code takes sufficient
care of every contentions raised by learned advocate for the
petitioners. This appears to be a designed approach on the part
of the petitioners / accused to stall the proceedings under the
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Act. The ACB Case is registered in the year 2015 wherein raid
was conducted in the year 2014; yet the trial is not commenced.
No charge is framed till date which reflects from the report of the
trial Court. Thus, it is implies that under the pretext of filing
discharge application having no legal or tenable grounds to
exists, the petitioners have successfully detained the prosecution
for almost 10 years. This is frivolous application and deserves to
be condemned by imposing costs.
14. Yet another judgment may also be referred in case of
Central Bureau Of Investigation (Cbi) Etc. Versus Pramila
Virendra Kumar Agarwal [2020 (17) SCC 664] wherein the
Hon’ble Apex Court has addressed this issue again in paragraph
13 as under:
“13. Further the issue relating to validity of the sanction for
prosecution could have been considered only during trial since
essentially the conclusion reached by the High Court is with
regard to the defective sanction since according to the High
Court, the procedure of providing opportunity for explanation
was not followed which will result in the sanction being
defective. In that regard, the decision in the case of Dinesh
Kumar vs. Chairman, Airport Authority of India, (2012) 1 SCC
532 relied upon by the learned Additional Solicitor General
would be relevant since it is held therein that there is a
distinction between the absence of sanction and the alleged
invalidity on account of non-application of mind. The absence of
Licenced to : Adv.Urvashi Purohit . Page 5 of 5 sanction no
doubt can be agitated at the threshold but the invalidity of the
sanction is to be raised during the trial. In the instant facts,
admittedly there is a sanction though the accused seek to pick
holes in the manner the sanction has been granted and to claim
that the same is defective which is a matter to be considered in
the trial.”
15. The authorities relied upon by the learned advocate for the
petitioner would not render any assistance and therefore the
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same is not required to be discussed.
16. For the foregoing reasons, the revision must fail and is
dismissed with the cost quantified at Rs.10,000/- each to be
paid by the each of the petitioners with the Gujarat High Court
Advocates Bar Association Library within seven days from today
and to produce the copy of receipt thereof.
(J. C. DOSHI,J)
sompura
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