Crl.A. No. 163/2004 Page 1 of 36 “REPORTABLE” * HIGH COURT OF DELHI AT NEW DELHI + CRL. APPEAL No. 163/2004 Date of decision : February 06, 2009 # SATISH KUMAR ..... Appellant ! Through : Mr. Padam Singh, Adv. with Mr. Bhanu Pratap Singh, Adv. Mr. Prem Pratap Singh,Adv. Mr. S.Lal, Adv. Versus $ C.B.I. ... Respondent ^ Through : Mr. R.M. Tewari,Adv. % CORAM: HON'BLE MS. JUSTICE ARUNA SURESH (1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest ? Yes J U D G M E N T ARUNA SURESH, J. 1. Under challenge in this appeal is the judgment of conviction and order on sentence of the Special Judge dated 12.02.2004 and 13.02.2004 respectively whereby the appellant was convicted for offences under Sections Crl.A. No. 163/2004 Page 2 of 36 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,1988 (hereinafter referred to as „the Act‟) and was sentenced to undergo Rigorous Imprisonment for one year and pay a fine of Rs. 5,000/- in default to further undergo Rigorous Imprisonment for three months for offence under Section 7 of the Act and was further sentenced to undergo Rigorous imprisonment for one year and six months and pay a fine of Rs. 10,000/- in default to further undergo Rigorous Imprisonment for six months for offence under Section 13(2) of the Act. Substantive sentences were ordered to run concurrently. 2. Appellant was posted as Sub-Inspector at Police Station Nand Nagri in March, 1998. Appellant had arrested Rajesh Kumar in some case registered at Police Station Nand Nagri. Rajesh Kumar happened to be the son of complainant; Smt. Anaro Devi. Complainant had filed a written complaint on 24.03.1998 with C.B.I. alleging that appellant had demanded a bribe of Rs.4,000/- from her on 23.03.1998 for getting her son released on bail when she had gone to Karkardooma Courts, Shahdara, Delhi on 23.03.1998. She was required to pay bribe money before 30.03.1998. Since she did not want to pay bribe money, she filed the complaint. Accordingly, Crl.A. No. 163/2004 Page 3 of 36 a case was registered against the appellant and Inspector K. Babu was entrusted with the investigation of the case. A trap was laid at the Police Station Nand Nagri. Appellant received the bribe money of Rs. 4,000/- from the complainant. The currency notes treated with phenolphthalein powder, when washed with solution of Sodium Carbonate, changed their colour to pink. The appellant was arrested after his hand wash and left side pocket of the pant wash also turned into pink. After completion of the investigation, charge-sheet was filed against him. 3. The Special Judge framed charges under Section 7 and 13(2) read with Section 13(1)(d) of the Act against the appellant and conducted the trial of the case. He found sufficient evidence against the appellant and convicted him for the said offences vide his detailed judgment dated 12.02.2004. Aggrieved by the said judgment and order on sentence, the present appeal has been filed. 4. Learned counsel for the appellant, Mr. Padam Singh, has argued that the trial court erred gravely in not considering the fact that the sanction was not proper and legal as sanctioning authority did not give the grounds of satisfaction, sanction is not a simple formality but is a safeguard to the interest of the public Crl.A. No. 163/2004 Page 4 of 36 servant against frivolous and vexatious prosecution. The trial court failed to consider that statement under Section 161 Cr.P.C. and report under Section 173 Cr.P.C. were not put up before the sanctioning authority and the sanctioning authority had not scrutinized them nor did he apply his mind before granting sanction and therefore the sanction order being bad in law, the trial court had no jurisdiction to take cognizance of the offence and proceed with the trial of the case. 5. It is submitted by the learned counsel for the appellant that the validity of the sanction was challenged by the learned defence counsel appearing before the trial court but, the trial court failed to consider the same. 6. Mr. R.M. Tewari, learned APP for the State argued that the sanction order was never challenged by the appellant before the trial court and therefore, appellant cannot be allowed to agitate this issue for the first time in appeal. 7. In para 12 of the judgment, the trial court dealt with the sanction order Exhibit PW-7/A, and observed as follows: “The sanction for prosecution of the accused was granted by P.W.7 Shri S.B.K. Singh, who was posted as D.C.P., Crl.A. No. 163/2004 Page 5 of 36 North-East District, Delhi. He has proved the order of sanction Ex. PW7/A which he had communicated to S.P., C.B.I., vide his letter E. PW 7/B. The validity of this sanction order has not been challenged during the course of arguments.” 8. In para 16 of the judgment, the trial court again observed that appellant had not challenged the factum or validity of sanction for prosecution of the appellant. Thus, it is clear that the appellant did not challenge the validity of the sanction order at any stage before the trial court, not even at the stage of addressing final arguments. He accepted the validity. Therefore the trial court had no occasion to deal with the objections as raised by the appellant in this appeal. Besides, having conceded to the validity of the sanction, the appellant cannot be permitted to agitate this issue for the first time in appeal. 9. Learned counsel for the appellant has submitted that even if validity of the sanction order was not challenged before the trial court, the appellant has every right to challenge it in appeal. 10. I do not find much force in these submissions as, Section 19(3)(a) and Section 19(4) of the Act puts restriction on the powers of the appellate court to set aside the conviction on the grounds of absence of, or Crl.A. No. 163/2004 Page 6 of 36 any error, omission, or irregularity in the sanction required under sub-Section 1 of the said Section, unless the Court is of the opinion that a failure of justice has in fact been occasioned thereby. For determining whether the absence of or any error, omission or irregularity in such sanction has occasioned or resulted in a failure of justice, the court has to have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. 11. Section 19(3)(a) and 19(4) read as follows: “19. Previous sanction necessary for prosecution (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 or, 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) xxx xxx xxx xxx (c) xxx xxx xxx xxx (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 Crl.A. No. 163/2004 Page 7 of 36 any earlier stage in the proceedings.” 12. A combined reading of sub-sections 3 and 4 of Section 19 of the Act makes it clear that Section 19 of the Act has an overriding effect on the provision of the Criminal Procedure Code, and hence no finding sentence and order passed by a Special Judge can 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), except when in the opinion of that court a failure of justice has in fact been occasioned thereby. Explanation to the Section also becomes relevant and also is of significance as it provides that for the purposes of Section 19, error includes competency of the authority to grant sanction. 13. Coming to the facts of this case, this court has to take into consideration the fact that the objection to the validity of the sanction was not raised by the appellant in the trial court i.e. at any earlier stage in the proceedings, which is a major factor and therefore puts restriction on this court to consider the validity of the sanction as challenged. Failure of justice has to be ascertained by the criminal court particularly the superior court by close examination to ascertain Crl.A. No. 163/2004 Page 8 of 36 whether there was really a failure of justice or it is only a camouflage. Merely because there is an 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. Reference is made to State by Police Inspector v. T. Venkatesh Murthy - 2004(7) SCC 763. 14. In this case as pointed out above, no such objection to the validity of the sanction was raised in the trial court. When the appellant failed to raise the question of valid sanction, the trial proceeded to its logical end by making judicial scrutiny of the entire material and since the case has ended in conviction, there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a check under Section 19 of the Act is to safeguard public servants from frivolous or mala fide or vindictive prosecution was frustrated. Once, the judicial filtering process is over on completion of the trial, the purpose of providing for the initial sanction would bog down to a surplusage. An appellant who did not raise such an Crl.A. No. 163/2004 Page 9 of 36 objection at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court. 15. In Central Bureau of Investigation v. V.K. Sehgal & Anr. - (1999) 8 SCC 501 where no such objection was raised by the respondents at the trial stage and the issue was raised for the first time in appeal and accepted by the appellate court and the order of the appellate court was challenged by the Central Bureau of Investigation by filing this special leave petition, it was observed: “A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the fact of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court. In Kalpnath Rai v. State (through CBI) this Court has observed in para 29 thus: “29. Sub-section (2) of Section 465 of the Code is Crl.A. No. 163/2004 Page 10 of 36 not a carte blanche for rendering all trials vitiated on the ground of the irregularity of sanction if objection thereto was raised at the first instance itself. The objection has been raised at the earlier stage in the proceedings. It is only one of the consideration to be weighed but it does not mean that if irregularity in the sanction would spoil the prosecution and transmute the proceedings into a void trial.” 11. In a case where the accused failed to raise the question of valid sanction the trial could normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.” 16. In the instant case, the Supreme Court also took into consideration, the fact that the Prevention of Corruption Act, 1947 was repealed by the Prevention of Crl.A. No. 163/2004 Page 11 of 36 Corruption Act, 1988. Under the old Act, the need for a valid sanction for prosecution was incorporated in Section 6 whereas in the new Act of 1988, Section 19 was incorporated and Section 19 of the new Act specifically made provision regarding appeal and revision. Hence, the appeal and revision which were entirely being governed by the provisions of the Code of Criminal Procedure are now being governed by Section 19 of the new Act which contains such provision regarding appeal and revision which is incorporated in Section 27. Section 19(3)(a) of the Act was also interpreted in the following manner : “It is a further inroad into the powers of the appellate court over and above the trammel contained in Section 465 of the Code which has been dealt with supra. Under Section 19(3)(a) no order of conviction and sentence can be reversed or altered by a court of appeal or revision even “on the ground of the absence of sanction” unless in the opinion of that court a failure of justice has been occasioned thereby. By adding the explanation the said embargo is further widened to the effect that even if the sanction was granted by an authority who was not strictly competent to accord such sanction, then also the appellate as well as revisional courts are debarred from interfering with the conviction and sentence merely on that ground.” 17. In view of the proposition of law as discussed above, the appellant cannot be allowed to raise the plea of invalid Crl.A. No. 163/2004 Page 12 of 36 sanction for the first time in appeal nor this court is empowered to consider the objection to the validity of sanction raised for the first time in appeal, especially when, the appellant who ought to have raised this plea before the trial court did not raise any such objection at any stage of the proceedings before the trial court. The appellant, therefore, cannot be allowed to agitate that the sanction was improper before this court especially when, he has failed to show that improper sanction has resulted into failure of justice. 18. Much has been argued by the learned counsel for the appellant that the sanction was granted in a mechanical manner and the sanctioning authority Shri B.K. Singh (PW-7) had not applied his mind to his satisfaction that there was no evidence and material on the record which made out an offence under Section 7 and 13(2) read with Section 13(1)(d) of the Act while granting sanction to C.B.I. to prosecute the appellant. He has also argued that since witness had not brought the sanction file before the Court, the sanctioning authority had no material before it for grant of sanction and he signed the draft proforma of sanction as produced before him by SP, CBI, along with the letter of request. 19. All these submissions are based on presumptions, Crl.A. No. 163/2004 Page 13 of 36 supposition and conjunctures and are not born out from the record. Shri B.K. Singh, specifically deposed that he had perused the material submitted before him and after having applied his mind, he granted the sanction for prosecution as per order Exhibit PW-7/A under his signatures. He had denied the suggestion that he had signed the draft proforma of sanction sent to him by S.P., C.B.I. along with the letter of request. Simply because, the witness did not bring the file to the Court on the basis of which he had issued the sanction order does not in any manner mean that he had not gone through the material, which of course, included the statement of the witness, the documents collected during the investigation and other material which was necessary to be scrutinized to grant sanction for prosecution. 20. Reference of the learned counsel for the appellant on Mansukhlal Vitthaldas Chauhan vs. State of Gujarat – (1997) 7 SCC 622 to support his submission is of not much help to him. In the said case also, it was held that validity of the sanction would depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, materials and evidence have been considered by the sanctioning Crl.A. No. 163/2004 Page 14 of 36 authority. Consideration implies application of mind. What is required is the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the court to show that all the relevant files were considered but it is not a must that such file should be placed before the court. It is pertinent to mention here that there was never any request made by the appellant before the trial court to insist upon the sanctioning authority to produce the file which was the basis of grant of sanction for prosecution of the appellant. Rather it is agitated by the counsel for the appellant that since the file was not produced before the court, there was no file before the sanctioning authority when the sanction was accorded. Mansukhlal case, therefore belies the submissions made on behalf of the appellant. It cannot be presumed that since the file was not produced before the court, it was not produced before the sanctioning authority, the sanction was not valid. 21. Learned counsel for the appellant has referred to V.Venkata Subbarao v. State 2007 - Cr.L.J. (S.C.) Page 754 to support his submissions that since vital Crl.A. No. 163/2004 Page 15 of 36 documents showing involvement of the appellant had not been produced before the sanctioning authority, the sanctioning authority had no occasion to apply his mind to the entire material on record and therefore the sanction was invalid. Para No. 23 of the said judgment reads as follows: “It is also accepted that before the sanctioning authority the vital documents showing involvement of MRO had not been produced, the sanctioning authority, therefore, did not have any occasion to apply their mind to the entire material on record and in that view of the matter, the sanction is, therefore, vitiated in law. Conduct of the officers of the respondent who had taken recourse to suppression very de-serves serious condemnation.” 22. Thus, it is clear that in the said case, it was accepted in the evidence by the sanctioning authority that vital documents showing involvement of MRO had not been produced and therefore, the court held that sanctioning authority had no occasion to apply its mind to the entire material on record as the same was not before it. The facts before this court are different. PW-7 has categorically stated that material including the statement of the witnesses under Section 161 Cr.P.C. were read and considered by him and therefore, it was only after applying his mind that he granted sanction to Crl.A. No. 163/2004 Page 16 of 36 the prosecution to prosecute the appellant under the Act. 23. Learned counsel has also tried to emphasize that where two views are possible in the prosecution case then the version favourable to the accused should be adopted and since sanction in this case becomes doubtful, the benefit of doubt should be given to the appellant. To support his submissions he has referred to Sharad Birdhi Chand Sharda v. State of Maharashtra - 1984 Cr.L.J. SC 1738. This case has no relevance to the present case as it does not relate to sanction. It is a decision on merits of the case where a married woman had committed suicide by taking potassium cyanide and the evidence of the witnesses examined by the prosecution was assessed, sifted and weighed on merits by the court while giving benefit of doubt to the appellant. 24. Under these circumstances, the challenge to the validity of sanction order is not sustainable especially when there is nothing to show that the alleged defect or irregularity in sanction caused failure of justice to the appellant. In Shankerbhai Laljibhai Rot v. State of Gujarat (2004) 13 SCC 487, it was held that in the absence of anything to show that any defect or Crl.A. No. 163/2004 Page 17 of 36 irregularity in sanction caused failure of justice, the plea of irregular sanction was without substance. 25. Perusal of the sanction order Exhibit PW-7/A makes it clear that the sanctioning authority took into consideration the statement of the witnesses recorded under Section 161 Cr.P.C. by the Investigating Officer and other material placed before him while granting sanction to C.B.I to prosecute the appellant for offences under Section 7 and 13(2) read with Section 13(1)(d) of the Act. Therefore, it cannot be said that the sanction order was unmindful, mechanical and without application of mind. The sanctioning authority had only to see whether the facts stated in the complaint prima facie disclosed the commission of an offence or not. Hence, the sanction order was valid and did not lead to any grave injustice to the appellant even if it suffered from any irregularity or error or omission as alleged. 26. Second limb of the arguments of the learned counsel for the appellant is that prosecution witnesses have made contradictory statement before the learned trial judge and therefore on the basis of contradictory statements, the trial judge should not have concluded and based its judgment for conviction and sentence of the appellant. The prosecution case does not stand as Crl.A. No. 163/2004 Page 18 of 36 it failed to prove that there was demand made by the appellant from the complainant for Rs. 4,000/- as gratification for ensuring the release of complainant‟s son Rajesh Kumar on bail; the trial court also failed to appreciate that the money was lifted by some CBI staff from behind the trunk kept in the room of the appellant and was not recovered from the possession of the appellant and that the money was kept by the complainant behind the trunk from where it was recovered during the period appellant left his room after talking to the complainant and came back to his room after 10-15 minutes, leaving complainant and Anil Kumar in his room and that therefore, it is a clear case of plantation. 27. Learned counsel for the CBI has submitted that Section 7 of the Act does not speak of demand as a pre-requisite for its applicability to an offence of gratification committed by a public servant and therefore, no demand was required to be proved by the prosecution and that the ingredients of Section 7 are complete in this case when read with Section 13(1)(d) of the Act. The prosecution has been