Ashok Kumar v. C.B.I.

(1) JCC 666 and State Through CBI v. Ravinder Singh (1995) 2 Crimes 85, the impugned order deserves to be quashed and petitioner ought to be discharged. On the contrary Ms. Sonia Mathur, Standing Counsel for respondent-CBI relies upon decisions reported in Dinesh Kumar v. Chairman Airport Authority ofIndia &Anr. (2012) 1 SCC 532, State ofNCT ofDelhi v. Ajay Kumar Tyagi 2012 (8) Scale 424, State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568, C.S.Krishnamurthy v. State of Karnataka (2005) 4 SCC 81, State Through SPE AND CBIA.P. v. M.Krishna Mohan & Anr. AIR 2008 SC 368 and Crl.M.C.No.531/2013 titled J.KSharma v. CBI decided on 19^ August, 2013 by this Court, to contend that impugned order does not suffer from any illegality or infirmity and no case for quashing of FIR/RC is made out and so, both these petitions oughtto Crl.M.C.No.1944/2007 &3911/2012 Page 3 be dismissed. Upon considering the submissions advanced by both the sides and on perusal of FIR/RC case, impugned order, material on record and the decisions cited, I fmd that exoneration in departmental proceedings cannotbe a ground to halt the criminalproceedings at the threshold. On this aspect pertinent observations ofApex Court in Ajay Kumar Tyagi {supra) are as under:- "We are, therefore, ofthe opinion that the exoneration in the departmental proceeding ipsofacto would not result into the quashing ofthe criminalprosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the veryfoundation goes and the prosecution may be quashed. But the principal will not apply in the case of the departmental proceedings as the criminal trial and the departmental proceedings are held by two different entities. Further they are not in the same hierarchy. " So far as the alleged irregularities in grant of sanction for petitioner's prosecution is concerned, it would be worthwhile to refer to sub-section 3 of Section 19 ofPrevention of Corruption Act, 1988, which reads as under "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of1974),— (a)Nofinding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground ofthe absence of. Crl.M.C.No.l944/2007& 3911/2012, Page 4 or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, afailure ofjustice has infact 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 satisfies that such error, omission or irregularity has resulted in a failure ofjustice.

(c) no court shall stay the proceedings 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 otherproceedings. " Distinction between the absence of sanction and invalidity of the sanction granted for prosecution has been aptly dealt with by the Apex Court in Dinesh Kumar {supra) and the settled legal position succinctly reiterated as under:- "In our view, invalidity ofsanction where sanction order exists, can be raised on diverse grounds like non availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorized or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity, or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind - a category carved out by this Court in Parkash Singh Badal, the challenge to which can always be raised in the course oftrial " BBBBBBggaBBBBBgaS Crl.M.C.No.1944/2007 & 3911/2012 Page 5 Trial court vide impugned order of26^ September, 2012 has rightly dismissed petitioner's application for discharge in view of the dictum of Apex Court in Dinesh Kumar (supra). It needs no reiteration that where sanction order exists, but its legality and validity is put to question, such issue has to be raised in the course of trial. The scrutiny at the stage of charge is quite limited one. On this aspect, pertinent observations of Apex Court in Amit Kapoor v. Ramesh Chander and Another (2012) 9 SCC 460 are as under: - "At the initial stage offraming of a charge, the court is concerned not withproofbut with a strong suspicion that the accused has committed an offence, which, ifput to trial, couldprove him guilty. All that the court has to see is that the material on record and the facts would he compatible with the innocence ofthe accused or not. The final test ofguilt is not to be applied at the stage." In the considered opinion of this Court, the impugned order of 26^ September, 2012 does not suffer from any palpable error. Instead of dealing with above-captioned first petition on merits, it is deemed appropriate to relegate petitioner to trial court to urge grounds taken in above-captioned first petition as at hearing on the charge an efficacious remedy is available to petitioner. Consequentially, both these petitions are disposed of with liberty to petitioner to assail the validity of the sanction granted for his prosecution this FIR/RC case after cross-examining the sanctioning authority on the grounds raised in this petitions. The question of validity/invalidity of grant of sanction for petitioner's prosecution in this FIR/RC case is left open to be considered by the trial court at the appropriate stage after Crl.M.C.No.l944/2007& 3911/2012 Page 6 deposition of sanctioning authority is complete. Both these petitions and the applications are accordingly disposed ofwhile refraining to comment upon merits ofthis case, lest it may prejudice either side at trial. Trial Court record be sent back forthwith. JNIL GAUR) Judge OCTOBER 07, 2013 vn