IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.677 of 1996 Decided on: 17th June, 2010 State of H.P …..Appellant. VERSUS Narinder Paul Soodan and others …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the Appellant: Mr.Vivek Singh Thakur, Additional Advocate General with Mr.Rajesh Mandhotra, Dy.Advocate General. For the Respondents: Mr.Vinay Thakur, Advocate. Deepak Gupta,Judge (Oral) This appeal by the State is directed against the judgement dated 30.11.1995 delivered by the Learned Special Judge, Kangra District at Dharamshala in Sessions Case No.4-N/94 whereby he acquitted the accused of having committed offences punishable under Sections 409, 420, 467, 471 read with Section 120-B of the Indian Penal Code and Sections 13(I)(c) and 5(2) of the Prevention of Corruption Act, 1947. 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 2. The main ground which weighed with the learned Trial Court for acquitting the accused was that the sanction accorded by the sanctioning authority under Section 197 of the Code of Criminal Procedure had been granted without application of mind. It would be pertinent to mention here that the learned Trial Court itself has in its own judgment recorded that it has not gone into the evidence in detail since the case of the prosecution was liable to be thrown out on the short ground that sanction is illegal. It is true that some comments have been made by the learned Trial Court on the merits also but since the learned Trial Court itself held that it has not gone into the evidence in detail, these findings of the learned Trial Court cannot be held to be binding. 3. The order of the sanction which has been passed in this case reads as follows:- “Confidential Govt. of Himachal Pradesh, Public Works Department. “ORDER” Whereas it is alleged that Shri N.P.Soodan (Shri Narinder Paul Soodan) while functioning as Junior Engineer in HP. PWD, Sub Divn. Indora, District Kangra, (Himachal Pradesh) during the year 1981, entered into criminal conspiracy with S/Shri Roop Lal Store Munshi and Nardev Singh Store Chowkidar and in connivance with them he misappropriated 40 bitumen drums …3… valuing Rs.14,000/- by making a fictitious entry in the stock out door register/bincard against indent No.19/1977 dated 11.3.1981, received from the Assistant Engineer, HP.PWD, Sub Divn. No.II, Nurpur (HP) and showed its despatch to that Sub Divn.No.II, through departmental truck No.HPK-701, wrongly, whereas actually the said bitumen drums were not sent to HP.PWD, Sub Divn.No.II, Nurpur but transported in a private truck No.HPK-7935 to the open market for illegal sale. And whereas the said Shri Narinder Paul Soodan while working a Junior Engineer in the above mentioned Sub Divn. also made a fake entry of 200 bitumen drums in the stock account of June, 1981, and the bincard against the so called indent No.38/888 and tried to show the same quantity of bitumen drums in excess in the store with a malafide intention of misappropriation of said bitumen drums in connivance with S/Shri Roop Lal Store Munshi and Nardev Singh Store Chowkidar. And whereas the said acts constitute offence punishable under Sections 409/420/120-B/467/471, IPC and Section 5(2) Prevention Act, 1947 (now Section 31(2) of P.C.Act, 1988). And whereas the Govt. of Himachal Pradesh/undersigned after fully and carefully examining the material with regard to the said allegations and the circumstances of the case considers that the said S/Shri Narinder Paul Sudan son of Shri Daya Shanker Sudan, Post Office and P.S. Indora District Kangra, HP., Junior Engineer, Roop Lal Store Munshi son of Changnu Ram Harijan, r/o village Merra Hathli Brancy Indora District Kangra, HP. Shri Nardev Singh Chowkidar HP, PWD. Store Kandrori s/o Rasal Singh Rajpur, r/o Samkehar Guglara, P.S Shahpur District Kangra, HP should be prosecuted in the Court of law for the said offences. Now therefore, the undersigned hereby accords sanction under Section 197 Cr.P,C and Section 19 of the Prevention of Corruption Act, 1988 or the prosecution of S/Shri Nardev Singh Store Chowkidar, Narinder Paul Sudan Junior Engineer and Roop Lal Store Munshi for the said offences and any other offence punishable under the provision of law in respect of the aforesaid and taking of cognizance of the said offence by a Court of competent jurisdiction. Sd/-XXXXXXX Sd/- XXXXXXX Dy.Superintendent of Police S.K.Aggarwal (Vigilance) Anti-Corruption Chief Engineer (North) Unit N.Z. Dharmshala Himachal Pradesh,PWD Dharmshala-176215 Dated 23.7.1994” …4… Sh.S.K.Aggarwal, the then Chief Engineer who granted the sanction appeared as PW/1. In his examination-in-chief, he clearly stated that he saw the record, applied his mind and thereafter granted sanction for prosecution. In cross-examination, he admitted that it was not possible for him to recollect after lapse of time what was the exact record which was seen by him before according the sanction. The learned Trial Court came to the conclusion that the sanctioning authority, i.e., Chief Engineer had not carefully examined the material before him with regard to the allegations and the circumstances of the case and there was nothing on record to show what was the material placed before the Chief Engineer on consideration of which he accorded sanction for the prosecution of the accused. It also came to the conclusion that the order Ext.PA quoted here-in-above showed that the relevant facts pertaining to the case were not available when this order was prepared and signed. There can be no manner of doubt that the grant of sanction is not an idle formality. A person who …5… has been given the power to accord such sanction must do so after going through the record of the case. We need not refer to the large number of authorities cited before us but may only make a reference to the latest judgment of the Apex Court in State of Karnataka Vs. Ameer Jan. AIR 2008 (95) SC(1)1088, page 108 wherein the Apex Court held as follows:- “7. We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not. 8. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayuktha. Even the said report has not been bought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police Karnataka Lokayuktha had placed on record the materials collected on investigation of the matter which would prima facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as to the materials placed before the said …6… authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced.” In the present case, the facts are totally different. In the case before the Apex Court, the order of sanction was in the following terms:- “In exercise of the powers conferred under Section 19(1)(c) of the Prevention of Corruption Act, 1988, I hereby accord sanction to prosecute Shri Ameerjan, Second Division Assistant in the office of the Registrar of Firms and Societies, Bangalore, Urban District, Bangalore for offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 in the competent court of law.” The order itself did not show that any material had been seen before granting the sanction. It is only when the sanctioning authority appeared in Court that for the first time, he stated that he had granted sanction relying upon the report issued by the Inspector General of Police, Lokayukta of Karnataka. This report was also not produced in Court. The facts of the present case are totally different. The sanctioning order Ext.PA clearly records the brief facts of the case and indicates that the accused Narinder Paul Soodan while functioning as Junior Engineer misappropriated 40 bitumen drums valuing Rs.14,000/-. The order also records that he made a fake entry of 200 bitumen drums in the stock account of …7… June, 1981 and gives reference to the indent number by which such entry was made. The order of sanction also records that the sanctioning authority after fully and carefully examining the material with regard to the said allegations and circumstances of the case considered it expedient that the accused should be criminally prosecuted and thereafter accorded sanction. In our considered view, the learned Trial Court gravely erred in holding that this order did not disclose application of mind on behalf of the sanctioning authority while granting sanction. The sanctioning authority is not required to discuss the entire evidence in detail. All that is required is that the order should show independent application of mind before granting sanction. In our view, the order itself showed that there was independent application of mind by the sanctioning authority who appeared as PW/1 and again reiterated that he had seen the record, applied his mind and thereafter, granted sanction. Therefore, the judgment of the learned Trial Court is liable to be set aside on this ground alone. We realize that this case is a very old one but we feel that we ourselves should not go into the merits of the case since the learned Trial Court did not touch upon …8… the evidence in detail and we do not want that the accused should be prejudiced in any manner. The learned Trial Court is best suited to give a judgment in detail on all the material aspects. We, therefore, remand the case to the learned Trial Court. We direct the learned Trial Court to ensure that the matter is heard as early as possible on the basis of evidence already on record and decided the same on or before 31st October, 2010. The accused are directed to appear before the Trial Court on 19th July, 2010. We may make it clear that any observation made by us while disposing of the case have been made only for the purpose of this case and shall not be taken any expression on the merits of the main appeal. The appeal is disposed of in the aforesaid terms. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 17th June, 2010 (Sanjay Karol) (m) Judge …9…