1. This petition filed under Section 482 of the Code of Criminal Procedure, 1973/. (for short 'Cr.P.C.'), prays for quashing order dated 28.5.2014 passed by Additional Sessions Judge (Court No.9), Sitapur, vide which application filed by the petitioner has been dismissed. The petition also challenges all the proceedings in Sessions Trial No.3 of 2011 arising out of Case Crime No.534 of 1998 under Sections 284, 304A I.P.C. and Section 13(2) Prevention of Corruption Act, 1988, Police Station Kotwali, District Sitapur.
2. Relevant sequence of events required to be considered is that father of respondent no.2 died in a surgery conducted by Dr. Arun Kumar Maurya, petitioner no.1 and one Dr. Ashok Kumar Verma. The matter was reported to the police. Sufficient incriminating material has been collected by the investigating agency under Chapter XII Cr.P.C., whereupon chargesheet prepared on 4.7.2011 under Section 173 Cr.P.C. was filed on 10.7.2011. Charges were framed against the petitioner on 25.5.2012.
3. It appears that sanction to prosecute the petitioner and his co-accused was granted vide order 11.7.2012, which was filed before the trial court on 29.10.2012.
4. It is the admitted case of the petitioner that the charges framed on 25.5.2012 against the petitioner and his co-accused were not challenged by the petitioner in revisional jurisdiction, or in jurisdiction under Section 482 Cr.P.C.
5. An application was made on 18.2.2013 raising a technical objection that cognizance of the offence had been taken by the the trial court, without there being an order of sanction to prosecute. In such circumstances, the trial is vitiated and the proceedings be quashed.
6. The trial court has dealt with the issue vide the impugned order and has dismissed the application of the petitioner. The trial court has relied on 2004(13) SCC 705, Ashok Mehta & anr. v. Ram Asrey & anr.; AIR 1966 SC 220, Baijnath v. State of M.P./J.V. College v. State of M.P.; AIR 1956 SC 44, Mata Jog Dubey v. H.C. Behari. In effect, it has been held that the petitioner did not challenge the order taking cognizance or framing of charge at appropriate stage.
7. I have heard the learned counsel and have considered the law on the issue.
8. The short contention of learned counsel for the petitioner is that cognizance of the offence could not have been taken without grant of sanction to prosecute the petitioner (Public Servant). Admittedly, charges were framed before grant of sanction to prosecute. A mandatory legal condition has been violated, hence the proceedings are vitiated and be quashed.
9. On the issue, a case decided by the Hon'ble Supreme Court of India, (1998) 2 SCC 414, State of Orissa v. Mrutunjaya Panda, needs to be noticed. In the said case, respondent-accused was tried and convicted of certain offences including under Prevention of Corruption Act, 1988, by Special Judge. In appeal the High Court concurred with the findings recorded by the trial court to the effect that illegal gratification was received by the respondent-accused. The High Court, however, set aside the conviction of the respondent solely on the ground that there was no valid sanction to prosecute him.
10. The said judgment of the High Court was challenged in the Hon'ble Supreme Court of India by the State of Orissa. The following has been held by the Hon'ble Supreme Court of India in para 2 of the said judgment :-
"On perusal of the impugned judgment we find that the High Court's attention was not drawn to the provisions of Section 465 of the CrPC which expressly lays down, inter alia, that any error or irregularity in any sanction for the prosecution shall not be a ground for reversing an order of conviction by the appellate Court unless in the opinion of that Court a failure of justice has in fact been occasioned thereby. The section further lays down that in determining whether any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage of the proceedings. In view of the above provisions the High Court was required to decide, after recording a finding that there was some error or irregularity in the sanction, whether such error or irregularity occasioned a failure of justice and further whether such objection regarding the validity of the sanction was raised in the trial court. Admittedly, the above point was not raised in the trial court nor do we find anything on record from which it can be said that the error or irregularity in the sanction (even if we assume that the finding of the High Court in this regard is correct) did occasion any failure of justice. In that view of the matter it must be said that the High Court was not at all justified in acquitting the respondent on the ground that there was no valid sanction to prosecute him. Since on facts, the concurrent findings of the Courts below are based on proper appreciation of evidence and supported by cogent reasons the judgment of the High Court has got to be reversed."(Emphasis supplied by me)
11. Recording thus the appeal was allowed and conviction and sentence of the respondent-accused was restored.
12. Provisions of Section 465 Cr.P.C. need to be noticed. Section 465 Cr.P.C. reads as under:-
"465. (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.
(2)In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
13. Section 197 Cr.P.C., inter alia, provides that when any person, who is or was a Judge or Magistrate or a Public Servant, not removable from his office, save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence, except with the previous sanction of the employer, who might be State Government or Central Government, as the case may be, as provided in the provision. The provisions of Section 19 of the Prevention of Corruption Act 1988 (for short 'P.C. Act') are similar to the provisions of Section 197 Cr.P.C. and have been incorporated with the same purpose, i.e. to save a public servant from vexatious and malicious prosecution.
14. For considering the legality of the impugned order, this court needs to consider the purpose of grant of sanction to prosecute; ingredients of an order granting or denying sanction to prosecute; under what circumstances the sanction order shall result in vitiating proceeding and under what circumstances proceedings can be quashed in context of sanction order.
15. Consideration of provisions of section 197 Cr.P.C. and Section 19 of the P.C. Act indicates that they afford protection to Government Servants against frivolous prosecution. The provisions are a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
16. The language of the provisions suggests that grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom sanction is sought. 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.
17. If the sanctioning order on its face indicates that all the relevant material, i.e. F.I.R., disclosure statements, recovery memos, draft chargesheet and other materials on record were placed before the sanctioning authority and if it is discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction has been granted in accordance with law. This becomes necessary in case the Court is to examine the validity of the order of sanction, inter alia, on the ground that the order suffers from the vice of total non-application of mind.
18. It is, thus, obvious that the prosecution has to satisfy the Court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order.
19. In every individual case, however, the Court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned, on the material placed before it. It is so necessary for the reason that there is an obligation on the part of the sanctioning authority to discharge its duty to give or withhold sanction, only after having full knowledge of the material facts of the case.
20. In the absence of anything to show that any defect or irregularity in grant of sanction had caused a failure of justice, it is to be considered whether invalid sanction goes to the root of jurisdiction of the Court, which would vitiate the trial and conviction. 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.
21. 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 extremely pliable or facile expression which can be made to fit into any sentence. Thus, the Court must endeavour to find out the truth. There would be "failure of justice" not only by unjust conviction, but also by acquittal of the guilty as a result of unjust or negligence in failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and safeguarded, but they should not be over-emphasized to the extent of forgetting that the victims also have certain rights.
22. It has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian Criminal Jurisprudence. "Prejudice" is incapable of being interpreted in its generic sense and apply to criminal jurisprudence. Plea of "Prejudice" has to be in relation to investigation or trial, and not matters falling beyond their scope. Once the accused is able to show that there has been serious prejudice caused to him with respect to either of these aspects and the same has defeated the rights available to him under legal jurisprudence, accused can seek relief from the Court (vide C.B.I. v. Ashok Kumar Agarwal, AIR 2014 SC 827).
23. In Ashok Kumar Agarwal's case (supra) the legal propositions were summarized as follows (para 8):
(a)The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b)The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c)The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d)The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e)In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.
24. The issue whether all the relevant material had been placed before the sanctioning authority and whether non-consideration of relevant material could have tilted the balance in favour of the accused, can be examined by the Trial Court when sanctioning authority comes forward as a prosecution witness to support sanction order. While dealing with the issue the Hon'ble Supreme Court of India in State of M.P. v. Dr. Krishna Chandra Saksena, (1996) 11 SCC 439, held as follows (relevant portion):
"...the sanctioning authority was satisfied after complete and conscious scrutiny of the records produced in respect of the allegation against the accused. Now the question whether all the relevant evidence which would have tilted the balance in favour of the accused if it was considered by the sanctioning authority before granting sanction and which was actually left out of consideration could be examined only at the stage of trial when the sanctioning authority comes forward as a prosecution witness to support the sanction order if challenged during the trial. As that stage was not reached the prosecution could not have been quashed at the very inception on the supposition that all relevant documents were not considered by the sanctioning authority while granting the impugned sanction." (Emphasis supplied by me).
25. In the case in hand, the sequence of events, noted above, indicates that chargesheet was filed on 10.7.2011. Charges were framed against the petitioner on 25.5.2012. Sanction to prosecute the petitioner was granted vide order dated 11.7.2012 and the said order was filed in the trial court on 29.10.2012.
26. The objection in regard to sanction to prosecute was taken after framing of charge vide application dated 18.2.2013.
27. It is not the case of the petitioner that there is an error or irregularity in the order granting sanction to prosecute. It is also not the case of the petitioner that failure of justice has occasioned.
28. The prosecution evidence is yet to be recorded and therefore the trial is at the initial stage.
29. Sanction to prosecute is a matter of procedure and does not go to the root of jurisdiction. In such circumstances, merely on technical objections as raised by the petitioner it cannot be held that the proceedings are vitiated.
30. Considering the facts and circumstances of the case, this court is of the considered opinion that there being neither any error or irregularity in sanction, nor failure of justice having been pointed out, no illegality can be traced in the impugned order. The impugned order does not lack jurisdiction.
31. The petitioner is an accused, including for offence under the Prevention of Corruption Act, 1988. Merely because sanction to prosecute the petitioner was taken after framing of charge, would not be a circumstance sufficient to hold that the proceedings are vitiated. This is particularly so because trial has not yet begun. This court is further of the considered opinion that the aberration in filing sanction to prosecute after framing of charge has not resulted in failure of justice. It is not the case of the petitioner that sanction to prosecute the petitioner is invalid. It has not been shown to this court that the sanction to prosecute has vitiated the trial. It has not been shown that there is a defect or irregularity in grant of sanction which has resulted in failure of justice.
32. Taking a cue from the judgment rendered by the Hon'ble supreme Court of India in Ashok Kumar Agarwal's case (supra) it was imperative for the petitioner to show that failure of justice is relatable to error, omission or irregularity in the grant of sanction, so as to seek relief of quashing of proceedings. The petitioner has not even pleaded failure of justice and therefore no interference is called for in these proceedings.
33. The contention of the petitioner that sanction to prosecute was not obtained before framing of charge, in itself, is not sufficient to quash the proceedings, for the reasons detailed above.
34. In view of the above, the petition is dismissed.
Order Date :- 11.7.2014/A.Nigam