1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR Criminal Application No. 3659/2009 Vasant Bhagwan Tidke, aged 69 years, Occ. retired Police Constable Outpost Alegaon, Police Station Channi, Dist. Akola, Originally r/o Babhulgaon, dist. Akola. .. APPLICANT .. Versus .. 1. State of Maharashtra, thr. its Police Station Ural, Dist. Akola. 2. State of Maharashtra, thr. its Anti Corruption Bureau, Akola. ..NON APPLICANTS --------------------------------------------------------------------------------- Mr. A. S. Mardikar, Advocate for applicant. Mr. S. S. Doifode, A.P.P. for non applicants. --------------------------------------------------------------------------------- CORAM:- S. S. SHINDE, J. Date of Reserving the order :- 16.12.2009 Date of Pronouncing the order:- 19.12.2009 P. C. 1. This application is filed challenging order dated 26.11.2009 passed by Judge, Special Court, Akola below Exh.-75 in Special Case No. 1/2001. By impugned order, the application filed by applicant under Section 311 2 of the Code of Criminal Procedure to summon the Sanctioning Authority i.e. Superintendent of Police, Akola as a Court witness is rejected by Court below. 2. Learned counsel for the applicant submitted that defence of the applicant is that he had to receive amount spent by him towards fuel and, therefore, said amount was not bribe amount but the amount spent by him for purchase of fuel while shifting Raju, son of the complainant, to Akola. It is further submitted that before seeking sanction, all the documents including statement of Shri Kalpande was appended with the papers. The sanctioning authority without applying its mind granted sanction for the prosecution of the applicant. It is further submitted that the sanctioning authority had not applied his mind and there is no reference to the statement of driver of the Jeep namely Santosh in the probable defence of the applicant. Therefore, learned counsel would submit that it is necessary to summon the sanctioning authority as Court witness. It is further submitted that finding of the Special Judge cannot be reversed or altered by the 3 Court in appeal on account of absence, error, omision or illegality in the sanction except when failure of justice is occasioned. Thus, if the applicant is convicted he will have no chance to make any grievance about the sanction being either defective or omission in respect of the sanction. In these circumstances, the order passed by Special Judge is required to be set aside. 3. Learned counsel for the applicant, in support of his contention relied upon judgment of the Hon’ble Apex Court in Mohd. Iqbal Ahmed ..vs.. State of Andhra Pradesh; AIR 1979 Supreme Court 677. Learned counsel, placing reliance on the aforesaid judgment, would submit that the Hon’ble Supreme Court in that case refused permission to the prosecution to substantiate its contention that the sanctioning authority had applied its mind to the facts constituting the offence. The learned counsel further submitted that granting sanction to prosecute is a serious matter and it cannot be dealt with casually without referring to the documents produced before the sanctioning authority. Therefore, the 4 learned counsel would submit that this application deserves to be allowed. 4. Learned counsel further placed reliance on the reported judgment of this Court in Jagannath Maruti Tekade ..vs.. State of Maharashtra; 1991 Mh. L. J. 976 and submitted that the sanction order must pass requisite test of legality. If there is n application of mind, the sanction order is vitiated and the accused is entitled for the benefit. 5. On the other hand, the learned A.P.P. supported impugned judgment passed by Courts below and submitted that the Court has properly appreciated the contentions of the applicant as well as State and then rejected the application. 6. After hearing counsel for the applicant and learned A.P.P. for the State, I am of the considered view that the application is devoid of merits. The same deserves no consideration for the discussion hereinbelow. 5 7. The prosecution examined in all three witnesses and evidence was closed. Case was fixed for statement of accused under Section 313 of the Code of Criminal procedure. At this stage, the applicant/ accused filed an application under Section 311 of the Code of Criminal procedure for summoning the sanctioning authority as Court witness. The Hon’ble Supreme Court, in the case of Mohd. Iqbal Ahmed cited supra, held that, ‘It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it’. 8. It is also required to be noted that while entertaining the application the Court below has 6 considered all these aspects in the light of pronouncements of the Hon’ble Apex Court. And while referring to the Authorities cited before it, in para 12 and 13 of its order, held as under:- “12. So also, it is resolved that the Hon’ble Supreme Court in the case of Md. Iqbal Ahmed Vrs State of AP 1979 Cr.L.J. 633 (SC) and in the case of State of Rajasthan Vrs. Dr. A. K. Dutta AIR 1981 SC has held that the requirement of proving the sanction can be done in any two ways- either by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction or by adducing evidence aliunde to show the facts were pleaded before the Sanctioning Authority and the satisfaction arrived at by it. In the case of CBI, Hyderabad Vrs. P. Muthuraman 1996 Cr.LJ 3638, it was held that signature on the sanction should be proved either by the Sanctioning Authority or by his subordinate officer or clerk who has seen the Sanctioning Authority or who is acquainted with the signature of the Sanctioning Authority. Once the signature is proved and if the sanction order is a speaking order, then the matter ends there, otherwise 7 evidence should be adduced to prove that the Sanctioning Authority had perused the material before according sanction which may not be in particular form. In the case of Babarali Ahmedali Vrs State of Gujarat 1991 Cr. LJ 1269 (Guj) it was held that if facts appear on the face of sanction then there is no question of proving it by leading evidence of authority who has accorded sanction to prosecute. No separate evidence is required to be led to show that relevant facts were placed before the authority. If the facts are not appearing on the face of the sanction, then it can be proved by independent evidence that sanction was accorded after those facts had been placed before the Sanctioning Authority. In the case of State Vrs. K. Narasimhachary 2006 Cr.L.J. 518 (SC), it is held that prosecution sanction order being a public document, there may not be a need to summon Sanctioning Authority as prosecution witness provided the prosecution proves that all the relevant material was placed before the Sanctioning Authority and the sanction was accorded thereafter. There are several other judgments of the Hon’ble Supreme Court and other High Courts reiterating the above legal position. 8 13. Further, it is resolved that, therefore, in the light of the catena of judgments on the subject, it is evident that if the sanction is accorded by the competent Sanctioning Authority and it contains the facts constituting the offence and the grounds of satisfaction, there is no requirement for the prosecution to summon the Sanctioning Authority for their personal evidence to prove the validity of the sanction. If at all necessary, the same can be corroborated by producing the original sanction and by examining the person conversant with the signature of Sanctioning Authority. Accordingly, there is no requirement for the prosecution to insist on personal evidence of Sanctioning Authority for proving the validity of the sanction, as the same can be proved adequately by otherwise.” 9. At this juncture, it is also necessary to consider the Provisions of Section 311 of the Code of Criminal Procedure, which relevant for adjudication of the controversy in the matter. Section 311 of the Code of Criminal Procedure reads as under:- 9 “311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” Bare perusal of provisions of Section 311 of the Code of Criminal Procedure would show that if the Court feels that, it is necessary to summon, examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case, said section can be invoked. In the present case, the applicant filed application at the stage when his statement was to be recorded under Section 313 of the Code of Criminal Procedure. 10 10. It would not be out of place to mention that in case the prosecution fails to establish its case of proper sanction as the Hon’ble Supreme Court held in the case of Mohd. Iqbal Ahmed cited supra, the case instituted by prosecution without proper sanction must fail. It is incumbent upon the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it was satisfied that a case for granting sanction has been made out constituting the offence. This burden is on the prosecution to prove that valid sanction has been granted by the sanctioning authority. It is not necessary that the sanctioning authority should be summoned as witness to prove valid sanction and it can be done even by producing the original sanction which itself contains fact constituting offence and the grounds of satisfaction. 11. The sanction order is a public document thus the same was exhibited in the evidence. The Judge, Special Court, Akola has properly considered the submissions of the applicant as well as prosecution and has given sufficient reasons to reject the application. The 11 impugned judgment is supported by sufficient reasons and calls for no interference. It is needless to mention that in case prosecution fails to prove that there was proper sanction, certainly benefit would go to applicant/accused. 12. In view of above, the Application is rejected. Miscellaneous applications, if any pending, stand disposed of. JUDGE kahale