:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.623 OF 2000 APPEAL NO.623 OF 2000 APPEAL NO.623 OF 2000 Central Bureau of Investigation, Mumbai (Through D. Shanmugham, PI/CBI/ACB/Mumbai) ...Appellant V/s 1. Anil Jaisukhlal Jagirdar B/12, 2nd floor, Tejkiran Co-op. Hsg., Society, Ram Mandir Road, Vile Parle (E), Mumbai-400 057 2. The State of Maharashtra ..Respondents Mr.J.C. Satpute for the appellant Mr. Viren V. Vashi with Mr. P.D. Desai for respondent No.1 Smt.V.V. Kejriwal A.P.P. for the State. CORAM CORAM CORAM : R.M.S. KHANDEPARKAR AND : R.M.S. KHANDEPARKAR AND : R.M.S. KHANDEPARKAR AND A.A. A.A. A.A. SAYED, JJ. SAYED, JJ. SAYED, JJ. DATE DATE DATE : 29TH JANUARY, 2008 : 29TH JANUARY, 2008 : 29TH JANUARY, 2008 ORAL ORAL ORAL JUDGMENT (PER R.M.S. KHANDEPARKAR,J.) JUDGMENT (PER R.M.S. KHANDEPARKAR,J.) JUDGMENT (PER R.M.S. KHANDEPARKAR,J.) 1. Heard. The appellant challenges the judgment and order dated 29th of August, 1997 passed by the learned Special Judge for Greater Bombay, in Special Case No.21/1988 (RC. 57/1986). By the impugned judgment and order the respondent has been acquitted of the offence punishable under section 5(2) r/w 5(i)(e) of the Prevention of Corruption Act 1947 (hereinafter called as the Said Act), while giving :2: benefit of doubt to the respondent. 2. The respondent was charged for the offence punishable under the above quoted sections of the said Act for having found in possession of moveable and immovable property to the extent of Rs. 6,89,926/- disproportionate to his known source of income and for which he could not satisfactorily account for while he was in employment of Dena Bank, a Nationalised Bank as the Regional Manager thereof during the period between 1961 to June, 1986. It was the case of the respondent whether the amounts or assets were obtained out of the amount accumulated from the savings of the accused and his family members. The prosecution examined six witnesses. PW 1 Harijindersingh Mohansingh Babrah, a retired Works Manager from Indoswept Pvt. Ltd., PW 2 Sudamrao Tukaram Kale, employee from the Collectors Office, a panch to the panchanama dated 25th July, 1986, PW 3 Sadanand Tukaram Padte, Central Excise Inspector, as panch to panchanama dated 25th July, 1986, PW 4 S. Doreswamy, General Manager of Dena Bank to establish the sanction order, PW 5 Ramesh Chandappa Amte, Postal Assistant, Pune City Post Office, as panch to :3: panchanama dated 26th July, 1986 and PW 6 Prabhakar Baburao Shinde, Inspector, CBI, Investigating Officer. The prosecution has also produced large number of documents. The defence on its part, apart from submitting written statement along with documents, examined DW 1 Hansa Jahagirdar, wife of accused and DW 2 Bina Mehta, daughter of the accused in support of his defence. 3. The impugned judgment is sought to be challenged on the various grounds, including that the findings arrived at by the learned Special Judge are not borne out from the evidence on record and that the trial Court erred in taking note of the documents which were neither proved nor produced in evidence by following procedure under law. It was also sought to be contended that the claim of the respondent that the amount for the purpose of acquisition of assets was generated through the income of his wife and daughter was accepted by the trial Court without there being any supportive documentary or cogent oral evidence in that regard. It is also submitted on behalf of the appellant that once the prosecution had disclosed assets with the accused disproportionate to :4: the known source of income, the burden was upon the accused to furnish satisfactory explanation for such assets and to establish that the accused did not possess the wealth beyond disproportionate to the known source of his income. 4. The learned advocate appearing on behalf of the respondent on other hand while strenuously contesting the claim on behalf of the prosecution submitted that there was inherent lacuna in the prosecution in as much as that the respondent was sought to be prosecuted for the offence punishable under the said Act without compliance of section 6 of the Said Act. It was sought to be contended on behalf of the respondent that no prosecution under the said Act could have been initiated and the Court could not have taken cognizance of any offence punishable under the said Act without prior sanction from the competent authority and in the case in hand no such sanction for prosecution of the respondent was ever issued by the competent authority and in that regard the attention was drawn to the testimony of PW 4 S.Doreswamy. The learned advocate appearing for the appellant however, submitted that there was :5: no objection raised with necessary seriousness by the respondent about the alleged absence of valid sanction by the competent authority to prosecute the respondent before the trial Court and therefore, it is too late for the respondent to contend that the Court could not interfere in the impugned order on the ground of alleged lack of sanction by the competent authority. He has further submitted that PW 4 or other prosecution witnesses were never called upon to produce any such sanction order before the conclusion of the trial and therefore, if the respondent is allowed to raise this point it will result in great prejudice to the prosecution. He further submitted that the respondent being fully aware that on merits he has no case in the matter, he wants to defeat the prosecution on technical ground. It was also submitted on behalf of the appellant that in the absence of the proper challenge to the sanction at a relevant time, there was no occasion for the prosecution to produce any further evidence in support of grant of sanction other than the testimony of PW 4. 5. The law on account of requirement of prior :6: sanction in case of prosecution for the offence punishable under section 5(2) of the said Act is well settled by catena of decisions, apart from the fact that section 6 of the said Act is very clear in that regard. 6. Section 6 of the Said Act reads thus:- "Previous sanction necessary for prosecution - (1) No court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code, or under sub-section (2) or sub-section (3-A) of 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 the Central Governemnt; (b) in the case of a person who is employed in conection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Governemnt; (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 whether the previous sanction as required under sub-section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would :7: have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed." 7. Plain reading of the above provisions of law would reveal that no Court can take cognizance of the offence under Section 5(2) of the said Act except with previous sanction of the competent authority. Thus, there is a specific bar prescribed for the Court to take cognizance of any offence punishable under section 5(2) of the said Act without prior sanction by the competent authority when such offence is said to have been committed by any person to whom the provisions of the said Act are applicable. In other words, section creates embargo over the power of the Court to take cognizance for the offence punishable under section 5(2) of the said Act alleged to have been committed by any public servant except with previous sanction from the competent authority. In case of employees of nationalised banks, there is no dispute that the matter would be covered by section 6 (1)(c). 8. The Apex Court in Dilawar Singh V. Parvinder Dilawar Singh V. Parvinder Dilawar Singh V. Parvinder Singh Singh Singh Alias Iqbal Singh and another Alias Iqbal Singh and another Alias Iqbal Singh and another, reported in 2005 :8: 12 SCC 709, after taking notice of its earlier decisions in State through CBI V. Rajkumar Jain, State through CBI V. Rajkumar Jain, State through CBI V. Rajkumar Jain, 1998 6 SCC 551, Jaswant Singh V. State of Punjab, Jaswant Singh V. State of Punjab, Jaswant Singh V. State of Punjab, AIR 1958 S.C. 124 and State of Goa V. Babu Thomas, State of Goa V. Babu Thomas, State of Goa V. Babu Thomas, 2005 8 SCC 130 had ruled that the existence of a sanction is sine qua non for taking cognizance of the offence qua that person when the prosecution is under the said Act. 9. In the case in hand though it is sought to be contended that on merits there is absolutely no case for the respondent and the trial Court had relied upon inadmissible evidence while acquitting the respondent, since the matter relating to the sanction goes to the root of the matter and the law being very clear that in the absence of sanction, the Court cannot take cognizance of the offence punishable under the said Act, it would be necessary before dealing with other points sought to be canvassed on behalf of the appellant to consider whether in the case in hand the trial Court had jurisdiction or not to take cognizance of the offence punishable under section 5(2) of the said Act in relation to the respondent. :9: 10. It is not in dispute that as regards the sanction is concerned, the evidence led by the prosecution is in the form of testimony of PW 4 Shri S.Doreswami. The said PW 4 in his examination-in-chief had deposed that in January, 1988 he was attached to Dena Bank as a General Manager, in-charge of Personnel Administration, Social Banking and he had accorded sanction for prosecution in the case in hand. He had produced the sanction order dated 29/1/1988 and has further deposed that it was sanctioned by him. He has also stated that he was competent to appoint as well as terminate the services of the respondent and he had accorded sanction after being satisfied himself about the facts of the case. The sanction order dated 29.1.1988 is on record as Exh.47. With that the examination-in-chief of witnesses was concluded. In the cross-examination the deponent stated that his competency to take disciplinary proceedings against the respondent was based on the resolution passed by the Borad of Directors of the Bank. He was however, unable to produce a copy of the said resolution, as he had ceased to be in the employment by the bank by :10: that time. He denied the suggestion that he was not empowered to sanction the prosecution or that he was not competent to appoint or remove the respondent from service. He also denied that the sanction as granted was without application of mind and without considering the case put forth by the respondent. 11. The sanction order dated 29.1.1988 after referring to the various facts and figures in relation to the alleged disproportionate assets with the respondent reads that " I, Shri S. Doreswmy, General Manager-Personnel, Administration & Social Banking, Dena Bank, Head Office, Bombay 400 005, being the authority competent to remove the said Shri Anil Jaysukhlal Jagirdar from office after fully and carefully examining the material before me in regard to the said allegations and the circumstances of the case consider that Shri A.J. Jagirdar should be prosecuted in court of law for the said offences. NOW, THEREFORE, I do hereby accord sanction under section 6 (1)(c) of Prevention of Corruption Act, 1947 (Act II of 1947) for the prosecution of Shri Anil Jaysukhlal Jagirdar". 12. In other words, the prosecution tried to establish its case in relation to the compliance of section 6 of the, said Act by examining PW 4 and by placing on record the sanction order dated 29.1.1988 :11: Exh.47. Apart from the said testimony and Exh.47 admittedly there is no other evidence placed on record in relation to the alleged grant of sanction. 13. Perusal of the said testimony and the sanction order disclose that PW 4 has claimed to have issued the sanction order for prosecution of the respondent in his capacity as the authority competent to appoint and terminate the services of the respondent. At the same time, the said competency to appoint and terminate the services of the respondent is based on the resolution of the Bank’s Board of Directors. In other words, the deponent in no uncertain terms admitted that he in his capacity as the General Manager, in-charge of Personnel Administration Social Banking, was not empowered to appoint or dismiss the respondent. But such competency was on account of delegations power in that regard by the Board of Directors of the Bank. Independently of the said resolution, the deponent had no such power. In such circumstances, it cannot be disputed that it was absolutely necessary for the prosecution to place on record the resolution of the Board of Directors of the Bank as also the material which could disclose :12: the authority to the Directors to delegate the disciplinary power to the deponent by virtue of resolution of the Board of Directors. It is not in dispute that the prosecution has neither produced any copy of the resolution of the Board of Directors, which could reveal of disciplinary powers to have been delegated to the deponent PW 4. The prosecution has also not produced any material which could reveal that such delegation could be by way of Board resolution. The testimony of PW 4 specifically reveals that the respondent had challenged the authority of PW 4 not only to grant the sanction but also his competency to appoint or remove the respondent from the service. In other words, the prosecution was put on guard and was made fully aware even in the course of the trial that the respondent was disputing the competency or authority of the PW 4 to grant the sanction for prosecution of the respondent. Undoubtedly, there was suggestion even about non application of mind while granting sanction which was required to be made good, by producing necessary documents in that regard in case the sanction on face of it does not disclose such application of mind by the authority. Be it as it :13: may, the fact remains that the evidence on record nowhere discloses any cogent material which could reveal that PW 4 was fully empowered in terms of the provisions of law to take disciplinary proceedings and consequently to grant sanction in terms of section 6(1)(c) of the said Act. 14. The contention on behalf of the appellant that the prosecution was never called upon to produce any such document disclosing delegation of the power to PW 4 to grant sanction under the said Act is totally devoid of substance. Sanction being the sine qua non for prosecution of a person under the said Act, the burden to prove the existence of valid sanction by the competent authority would always rest upon the prosecution. It is not necessary for the accused to wake up the prosecution in that regard. It would be for the prosecution itself to place on record cogent evidence in support of compliance of the mandate of section 6 of the said Act, failing which the cognizance of the matter by the Court itself would be rendered bad in law ab-initio. Being so, irrespective of other grounds on which impugned order is sought to be challenged and even though there is :14: no cross appeal as such in the matter, obviously because, the accused has no such opportunity on account of acquittal by the trial Court, the fact remains that the cognizance of the offence punishable under section 5(2) of the said Act by the Special Court was itself bad in law ab-initio, and that is apparent on the face of the record and therefore same cannot be ignored by this Court. It is apparent that cognizance was ab initio bad in law and on that count entire exercise was a futility in law. 15. In the course of argument the learned advocate appearing for the appellant also sought to produce a copy of the resolution of the Board of Directors which was objected to on behalf of the respondent. The question of allowing the appellant to produce such resolution across the Bar does not arise at all. Even otherwise as rightly submitted on behalf of the respondent, there would be no opportunity to the respondent to cross-examine the witness in relation to such resolution, if the appellants are allowed to produce such copy of the resolution across the Bar. It is settled law that the evidence in a case has to be produced by following procedure prescribed for :15: production of the evidence and same has to be done at appropriate stage. At least by complying the mandate of section 319 of Criminal Procedure Code. In the absence of such procedure being adopted, question of allowing the appellant to produce copy of the resolution across the Bar at this stage does not arise at all. 16. For the reasons stated above, therefore, since entire cognizance itself was bad in law ab initio, the question of going into the merits of this case does not arise and on this count itself there is no case for interference in the impugned order of acquittal of the respondent passed by the trial Court. For the reasons stated above therefore, appeal fails and is hereby dismissed with no order as to costs. (R.M.S.KHANDEPARKAR,J) (R.M.S.KHANDEPARKAR,J) (R.M.S.KHANDEPARKAR,J) ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)