JUDGMENT [ENTITY], J.
Page 2663
1. The petitioner has filed this revision petition under [SECTION], [SECTION] and [SECTION] [ACT] for setting aside of the impugned order dated 28th July, 2007, passed by Shri [ENTITY], Special Judge, CBI, Delhi. Along with this petition, an application under [SECTION] [ACT] has been filed, seeking stay of the proceedings in the trial court.
2. Notice of this petition was issued to the CBI and in the first instance, as requested by learned Counsel for the parties, arguments on application for stay of the proceedings before the trial court have been heard. So, it is not necessary for this Court, at this stage, to express any opinion on the merits of the respective contentions.
3. The petitioner, who is a public servant, along with other co-accused, have been sent up for trial for offence under [SECTION] read with [SECTION] of the [ACT] (for short as Act) read with [SECTION] [ACT], read with [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT]. CBI obtained sanction dated 26th November, 2002, before filing the present charge sheet against the petitioner, under [SECTION] of the Act, which is a condition precedent for taking cognizance for offence under [SECTION] of the Act.
4. The case of the petitioner before the trial court was that sanction obtained by the CBI is not valid and, therefore, cognizance taken is bad and he is entitled to be discharged.
5. Vide the impugned order, the learned Special Judge, after considering the submissions of the petitioner as well as CBI, held that:
It cannot be said at this stage that the sanction granted by the competent authority is invalid.
6. It has been contended by learned Counsel for the petitioner that entire record of the investigation was never put before the sanctioning authority and the petitioner's representations, establishing his innocence, were totally suppressed from the sanctioning authority. The sanction, without application of mind to the entire records and papers of investigation, particularly the record minus the material that goes to establish the innocence of the accused, is a fraud on the law as well as on the Court and it invalidates the sanction. An invalid sanction is no sanction in the eyes of law, it is no nest. The sanctioning authority in the sanction order has recorded that except for a report, nothing else has been received in the Department and the sanctioning authority directed that all the materials including the income tax records should be collected from CBI so that it can dispose of the petitioner's complaint. This attempt of the sanctioning authority to justice was frustrated by CBI since it refused to comply with the sanctioning authority requisition on the ground that the matter was sub judice.
7. Learned Counsel for the petitioner has relied upon various correspondence placed on record, which I shall deal hereinafter.
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8. Further, it is contended that the charge sheet relies upon 366 witnesses, whereas the list annexed to the SP's report mention only 278 witnesses. 88 witnesses were not even mentioned in the list and the statement of not even a single witness, out of 366 witnesses was sent to the sanctioning authority. Moreover, the charge sheet refers to 1220 documents, whereas the list attached to the SP's report only mention 282 documents. Thus, 938 documents were withheld from the sanctioning authority including documents consisting of income tax record of the petitioner. The Apex Court has held in [PRECEDENT] that:
Income tax return and assessment orders are relevant in a case of disproportionate assets.
9. So, it is contended that whatever material existed that should have been sent and in the absence of that material, the Sanctioning Authority could not appraise whether the contentions in the SP's report are true or false. It is also an admitted fact that only SP's report Along with list of witnesses, list of evidence (oral) and list of evidence(documentary) was sent to the sanctioning authority for the purpose of according sanction and learned Special Judge has recorded this fact that the covering letter of SP's report says that besides this, no other document has been sent. The learned Counsel for the petitioner, in support of his contentions, cited various judgments namely:
In Re: C.O.I. Manoranjan Pd. Choudhary v. State of Bihar [PRECEDENT] by [PRECEDENT]. Appeal No. 2[SECTION]/2004 decided on 29.9.2005 by Supreme Court [PRECEDENT] [PRECEDENT].
[SECTION]. Further, it has been contended by learned Counsel for the petitioner that though it is correct that under [SECTION] of the Act, 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. However, this is subject to the rider "unless the Court is satisfied that such error, omission or irregularity has resulted in a failure of justice". In the present case, on the face of it, there is a failure of justice, since the sanctioning authority has not considered all the documents, on which the prosecution is relying upon as the sanctioning authority was not sent the statement of witnesses and all the documents and as such, the bar of stay of the proceedings, will not apply to the facts of the present case.
[SECTION]. On the other hand, it has been contended by learned Counsel for CBI that the application filed by the petitioner, seeking stay of the proceedings in the trial court is not maintainable in view of the bar contained in [SECTION] of the Act. The Apex Court in [PRECEDENT] has held that:
In cases under the [ACT], no stay can be granted.
12. In the present case, vide impugned order, the learned Special Judge has overruled the objections raised by the petitioner and the aforementioned judgment of Apex Court would apply in full force to the present case.
[SECTION]. The next contention of learned Counsel for C.B.I. is that it is an admitted position that an order of sanction exists and the challenge is only qua application of mind. The petitioner will get full opportunity to cross-examine the sanctioning authority with regard to the application of mind during the course of evidence and the sanction under the Act, does not go to the root of jurisdiction and as such no interim order should be granted to impede the progress of the trial. In support, learned PP for the CBI has cited following decision of Apex Court namely:
[PRECEDENT].
Page 2666 [PRECEDENT] [PRECEDENT]
14. The short question arises for consideration at this stage is as to whether sanction as envisaged under [SECTION] of the Act, accorded in this case, is valid or not and whether there are grounds for staying the trial court proceedings, till the present petition filed by the petitioner is disposed of.
[SECTION]. [SECTION] of the [ACT] read as under:
19. Previous sanction necessary for prosecution:
(1) No court shall take cognizance of an offence punishable under [SECTION], [SECTION], [SECTION], [SECTION], and [SECTION] alleged to have been committed by a public servant, except with the previous sanction,-
(a) in the case of a person who is employed 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 in connection with the affairs of a State and is not removable from his office save by or with the 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 proceeding 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.
16. According to Clause 3(b) of this Section, 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. However, this bar "of not granting stay" can be lifted only if the court is satisfied that "such error, omission or irregularity in the sanction granted has resulted in a failure of justice".
17. So the question to be seen is, as to whether there has been "a failure of justice" in this case or not.
18. For this purpose, it would be necessary to refer to certain admitted documents which have been placed on record by the petitioner.
19. The first document is letter dated 12 May, 2004, written by [ENTITY], Joint Secretary(Revenue), Ministry of Finance, Department of Revenue to the Director General of Income Tax(Vigilance). As per this letter, the petitioner has made allegation that the Department had processed the case for prosecution without examining the investigation records including case diaries, documents collected, statement of witnesses etc. that were relied upon by the CBI. It further states that the concerned Vigilance file has been examined in this Department and, prima facie, it appears that the records relied upon by the CBI were not received in the office of DGIT (Vigilance) and were obviously, therefore, not examined before sanction of prosecution. This was also pointed out to the Vigilance Department, including [ENTITY]'s predecessor, by the Revenue Secretary during discussions. It is, therefore, necessary that the concerned records including those of the I.T. Department for the relevant period be requisitioned from the CBI and examined by the Vigilance Wing of the Income Tax Department. The finding of the examination may be sent to them within [SECTION] days, based on which a final view will be taken on the representation of Sh. [ENTITY].
20. The next letter is dated 17th May, 2004, sent by Additional Director of Investigation(Vigilance) to the Deputy Inspector General of Police, CBI. The relevant portion of this letter read as under:
Kindly refer to your letter No. 164/3/S 19 1999 E 0006 dated 24-5-2002 on the above subject wherewith the SP's report No. 3 dated 25-5-2002 in the above case had been forwarded to the Department of Revenue. As mentioned in the said letter, the relied upon documents, being large in quantity, were not enclosed. Although the sanction for prosecution had been accorded in the case after considering the fact brought out in the CBI's report, as also the report Page 2668 of subsequent examination conducted by the Vigilance Wing of the Department, the Charged Officer Sh. [ENTITY] has represented before the Secretary (Revenue), challenging the sanction on the ground that the Department had not examined the investigation records, including the case diaries, documents collected, statement of witnesses, etc. that were relied upon by the case diaries, documents collected, statement of witnesses, etc. that were relied upon by the CBI. Directions have now been received from the O/o Secretary (R), that the concerned records may now be obtained from the CBI and examined, so that the officer's representation may be disposed of.
I am directed to request you to kingly provide all the relied upon documents, as referred in your letter dated 24-5-2002, as also all the relevant income tax records which are in CBI custody, to enable compliance to the directions received from the O/o Secretary (R). In case it is not possible to provide the original records, as above, authenticated copies thereof may be given endorsed. The matter may kindly be treated as most urgent.
21. Vide its reply dated [SECTION]th June, 2004, the DIG of Police, CBI informed Mr. [ENTITY] that the request has been examined by the CBI and since the accused officer has already filed a petition in the trial court, challenging the validity of prosecution sanction order and the matter is pending consideration in the trial court and as such is sub judice.
22. So, from this correspondence, prima facie, it appears that the CBI had not sent the complete record to the sanctioning authority as desired by it. Moreover, as per order dated [SECTION]th July, 2007 of the learned Special Judge, it has been conceded by learned PP for CBI that only SP's report Along with list of evidence(oral) and list of evidence(documentary) were sent to the sanctioning authority for the purpose of according sanction.
23. So, it stands conclusively established, that only SP's report Along with list of evidence (oral) and list of evidence (documentary) were sent to the sanctioning authority for the purpose of according sanction. In other words, statement of witnesses and other relevant documents, were admittedly not sent to the sanctioning authority, which is CBI's own case.
24. The relevant portion of the sanction order reads as under:
And whereas the Central Government, after fully and carefully considering the material placed before him and taking into account the available evidence, including the case diaries and documents collected by the investigating officer during the course of investigation and statements of witnesses including the statements of witnesses recorded by the investigation officer under [SECTION] [ACT] and statements recorded before Magistrates under [SECTION] [ACT] with regard to the said allegations and circumstances of the case, is satisfied that Shri [ENTITY] should be prosecuted in the competent Court of Law for the above mentioned offences and any other offences if made out on these facts.
25. According to it, the sanctioning authority has considered the material placed before it including the case diaries and documents collected by the Page 2669 investigating officer during the course of investigation and statements of witnesses including the statements of witnesses recorded by the investigating officer under [SECTION] [ACT] and statements recorded before the Magistrate under [SECTION] [ACT]
26. Whereas, it is the case of CBI before the Special Judge, that only "SP's report Along with the list of evidence(oral) and list of evidence(documentary) were sent to the sanctioning authority for the purpose of according sanction."
27. The learned Special Judge in the impugned order has also taken note of this fact and the relevant portion of it reads as under:
The contents of para 27of the sanction order dated 26th November, 2002, stating that the case diaries, documents collected by the investigating officer during the course of investigation, statements of witnesses under [SECTION] [ACT] and under [SECTION] [ACT] were considered by the sanctioning authority may be factually incorrect in view of the letter dated 24th May, 2002, written by the DIG of the CBI, which shows that this document had not been sent. However, this statement by itself at this stage cannot be construed as non-application of mind by the sanctioning authority. If the charges are framed against the accused and the case goes for trial the sanctioning authority shall get an opportunity to explain this discrepancy.
28. So, this fact mentioned in the sanction order dated 26th November, 2002 stating that "case diaries and documents collected by the investigating officer during the course of investigation, statement of witnesses under [SECTION] [ACT] and under [SECTION] [ACT] were considered by the sanctioning authority" is factually incorrect. It leads to the conclusion that before according sanction, the sanctioning authority has not considered the entire material available with the investigating agency, particularly the evidence of the witnesses recorded under [SECTION] [ACT], under [SECTION] [ACT] and case diaries and the documents. Only list of witnesses and list of evidence (oral and documentary) were sent to the sanctioning authority. So, in the light of these facts, it has to be seen as to whether it has resulted "in failure of justice" as envisaged in [SECTION] of the Act.
29. On this point, decision of Apex Court in Sri [PRECEDENT] (supra) may be referred to. In that case, Apex Court held that neither the trial court nor the High Court appear to have kept in view the requirements of sub-section relating to question "failure of justice". Merely because there is any omission, error or irregularity in the matter of according sanction that does not affect the validity of the proceedings unless the court records the satisfaction that such error, omission, or irregularity has resulted in failure of justice. Interpreting [SECTION] of the Act, it held:
A combined reading of Sub-sections (3) and (4) make the position clear that notwithstanding anything contained in the Code no finding, sentence and order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of Page 2670 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.
[SECTION] is also relevant. It shows that no Court shall stay the proceedings under the 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.
Sub-section (4) postulates that in determining under Sub-section (3) whether the absence of, or any error, omission or irregularity in the 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 appended to the Section is also of significance. It provides, that for the purpose of [SECTION], error includes competency of the authority to grant sanction.
The expression "failure of justice" is too pliable or facile an expression, which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon the simile is borrowed from Lord [ENTITY] in Town Investments Ltd. v. Deptt. Of Environment (1977) 1 all E.R. 8[SECTION] : 1978 AC 359. The criminal court, particularly the superior Court should make a close examination to ascertain whether there was really a failure of justice or it is only a comouflage. See [PRECEDENT].
It would also be relevant to take note of [SECTION] and [SECTION] of the Code, which read as follows:
462. PROCEEDINGS IN WRONG PLACE:
No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
[SECTION]. FINDING OR SENTENCE WHEN REVERSIBLE BY REASON OF ERROR, OMISSION OR IRREGULARITY:
(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 the court a failure of justice has in fact been occasioned thereby.
Page 2671 (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.
In [PRECEDENT]. , the true essence of the expression "failure of justice" was highlighted. [SECTION] of the Code in fact deals with "finding or sentences when reversible by reason of error, omission or irregularity", in sanction.
In the instant case neither the Trial Court nor the High Court appear to have kept in view the requirements of Sub-section (3) relating to question regarding "failure of justice". 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. The same logic also applies to the appellate or revisional court. The requirement of Sub-section (4) about raising the issue, at the earliest stage has not been also considered. Unfortunately the High Court by a practically non-reasoned order, confirmed the order passed by the learned trial judge. The orders are, therefore, indefensible. We set aside the said orders. It would be appropriate to require the trial Court to record findings in terms of [SECTION] and [SECTION].
30. In the present case, petitioner has raised objections to the validity of sanction at the very initial stage, i.e. even before arguments on charge could be advanced. However, the trial court has not recorded any finding in terms of [SECTION] and [SECTION] of the Act, that non production of the relevant material before the sanctioning authority at the time of grant of sanction "has not resulted in a failure of justice".
31. Under these circumstances, it would be appropriate to require the trial court to record the findings in terms of [SECTION] and [SECTION] 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 [SECTION] and [SECTION] 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] [ACT].
33. The trial court shall decide this matter within three months from today and thereafter, aggrieved party can seek appropriate remedy under the law available to it.
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34. Parties are directed to appear before the trial court on 6th October, 2007 at 2. p.m.
35. In view of the above directions, no further orders are called for and petition stands disposed of accordingly.
36. Copy of this order be sent forthwith to the trial court.