Ashok Kumar Aggarwal v. CBI

(27) The petitioner, aggrieved by the order dated 07.09.2001 instituted a Criminal Miscellaneous Petition No.3741/2001 assailing the said order. (28) This Court by way of the judgment and order dated 20.08.2007 set aside the order dated 07.09.2001 on the ground that the latter order was procured by suppression of material facts. The CBI carried the said judgment and order dated 20.08.2007 to the Hon'ble Supreme Court of India. The Criminal Appeal No.1837/2013 instituted on behalf of the CBI assailing the order dated 20.08.2007 passed by this Court was dismissed by the Hon'ble Supreme Court of India vide order dated 22.11.2013 and the trial court was directed to look into the matter of grant of tendering pardon to the said Mr. Abhishek Verma afresh. (29) In terms thereof, the CBI moved an application before the trial court stating therein that it no longer supported the case of Mr. Abhishek Verma for being granted pardon and made an Approver in the subject case in RC No.SI[8] E0001 1998, in view of his criminal antecedents. (30) Mr. Abhishek Verma through an application dated 31.07.2014, made before the Special Judge, CBI, Delhi has retracted from his earlier statement under Section 164 of the Code, implicating the petitioner herein, asserting that the said statement was made under threat, coercion and intimidation from the investigating officer. (31) In the meantime, the petitioner instituted a Writ Petition (Criminal) No.938/2001 on 31.07.2001 alleging therein that the investigation was being conducted in an impartial, unfair and mala fide manner and seeking transfer of the same from the Investigating Officer in the subject case to some other senior officer of the CBI. This Court by way of its order dated 09.04.2002 directed as follows:- “In view of this position, both sides agree to the disposal of this petition by the following order: Revenue Secretary and/or other concerned authorities who are seized of RCS 18/99 are directed to examine and consider the record of investigation fairly and objectively taking in regard all relevant factors and circumstances and then pass appropriate order under law within two months from receipt of this order. Director, CBI is also directed to examine the investigation record of RCS 19/99 and to consider all relevant aspects and factors in the light of petitioner's complaints and then to pass appropriate orders under law in the matter within two months from receipt of this order.” (32) The petitioner submitted a representation dated 23.04.2002 before the official respondents requesting them to consider all the relevant documents including the material relied upon by the CBI before granting sanction for prosecution of the petitioner herein. (33) The sanction order dated 21.06.2002, impugned herein, was issued by the Government of India, Ministry of Finance, Department of Revenue. It would be pertinent to point out that the said order dated 21.06.2002 granting sanction was a verbatim copy of the draft sanction order that accompanied the communication dated 30.10.2001, dispatched by the CBI to the sanctioning authority. (34) A charge sheet was filed against the petitioner on 28.06.2002 which is the subject matter of challenge in the present petition. (35) After the charge sheet was filed, the petitioner made two representations to the Revenue Secretary dated 29.07.2002 and 13.08.2002 praying for the withdrawal of the order granting sanction for prosecution of the petitioner dated 21.06.2002 in light of the LR dated 29.01.2001 and its reply by the Competent Authority in Switzerland dated 27.06.2001. (36) While considering these representations, the officers of the Department of Revenue noted that various representations were made by the petitioner to the Revenue Secretary since 05.11.2001. The office notings bearing reference F.No.16/1/99- Ad.I-C made by senior officers of the Department of Revenue are reproduced below:-

(51) The PMO had requested the Department of Revenue to afford a personal hearing to the petitioner in light of the opinion of the Law Ministry and requested for an early hearing from the Department of Revenue vide its letters dated 19.02.2015 and 18.04.2015. (52) In this regard this Court vide order dated 06.08.2015 observed that no steps had been taken by the Department of Revenue to hear the petitioner and it had not proceeded to call him in view of a noting by the Director of the Department of Revenue. The order of this Court dated 06.08.2015 is reproduced below: “ An application for adjournment has been circulated on behalf of Mr Sanjeev Narula, learned Central Government Standing Counsel (CGSC) appearing on behalf of the Union of India. Mr Ram Jethmalani, learned senior counsel appearing on behalf of the petitioner, opposes the said application for adjournment on the ground that the matter is part-heard before this court and the respondents herein have been seeking time all along. Mr Jethmalani, learned senior counsel has handed over a copy of a communication dated 19.02.2015 from the Prime Minister’s Office to the Secretary, Department of Revenue which reads as under:- “PRIME MINISTER’S OFFICE South Block New Delhi-110011 Please find enclosed a copy of a selfexplanatory representation dated 17.12.2014, received in this office from Shri Ashok Kumar Aggarwal, IRS (Income Tax)

2. The undersigned is directed to request the Department of Revenue to afford a personal hearing to Shri Aggrawal and then take a decision in the light of the Supreme Court orders dated 22.11.2013 and Law Ministry’s advice. This office may be apprised of the decision taken. Sd/- (V. Sheshadri) Director Tel. No. 23013485 Secretary, Department of Revenue PMO ID no.600/31/c27c2015-ES.[2] Dated: 19.02.2015”, Mr ethmalani states that the Secretary, Department of Revenue has not paid any heed to the above communication. It is observed that the present petition inter alia challenges the validity of the sanction granted by the competent authority for the prosecution of the petitioner. Mr Ajay Kalra, learned counsel appearing on behalf of Mr Narula, CGSC, states that the latter is in a personal difficulty and, therefore, unavailable today. Mr Kalra, learned counsel, further submits that the CGSC shall be available to make his submissions on Monday, i.e., 10.08.2015. Mr S.Kumar, Under Secretary, Department of Revenue, is present in court along with the original file. A perusal of the said file reveals that in response to the communication dated 19.02.2015, the Department of Revenue has not taken any steps to hear the petitioner and has not proceeded to call him in view of a noting by the Director of the Department of Revenue to the following effect:- “The matter is subjudice in various Courts, including the High Court, as mentioned in para 4 above. The view taken by the Department that prosecution sanction given by DOR in RC No. S-18/E-0006/99 is in order, has also been filed in the High Court in Writ Petition (Crl.) 1401/2002 and conveyed in all other litigation. Therefore, it precludes Department from giving a personal hearing or any other intervention in the issue, while the case is subjudice. May please decide.” On a query from the court Mr S.Kumar, Under Secretary, Department of Revenue, states that he has only joined the Department recently and is not aware whether a communication as desired by the Prime Minister’s Office in this behalf has been forwarded to them. There is no gainsaying that the Prime Minister’s Office has to be accorded the highest respect and held in the highest esteem, and ought to have been informed of the decision taken by the Director of the Department of Revenue at the earliest opportunity. Mr. Kalra, learned counsel appearing on behalf of UOI, states that he shall obtain instructions in this behalf and apprise the court on the next date of hearing. Renotify on 10.08.2015. A copy of this order be given dasti under signature of Court Master to counsel for the parties.” (53) In view of the foregoing order, a copy of communication dated 07.08.2015 was handed over to this Court on 10.08.2015 wherein it was stated that the petitioner was to be accorded a personal hearing on 24.08.2015 at 02:30 PM by the Department of Revenue in the Chamber of the Under Secretary of the Government of India. The Counsel appearing on behalf of the official respondents assured the court that a decision by way of a speaking order will be taken. In view of this assurance the matter was adjourned for further hearing. (54) Subsequently, when the matter came up for hearing on 02.09.2015, the counsel appearing on behalf of the official respondents urged that a decision had been taken by the Department of Revenue on the representation dated 25.08.2015 made on behalf of the petitioner and was pending approval of the Hon'ble Finance Minister. The said representation made by the petitioner has been rejected by way of order dated 07.09.2015.

6. The facts as are relevant for the disposal of Criminal Revision Petition No.338/2014 relating to RC No.SI[9] E0006 1999 dated 07.12.1999 are as follows: (1) The CBI registered a preliminary enquiry No.SI[9] 1999 E0002 on 17.09.1999 against the petitioner for disproportionate assets to the tune of Rs.8,38,456/- during the period 1985 to 1999, and after the conclusion of the preliminary enquiry it was alleged that the petitioner had acquired disproportionate assets worth Rs.40,42,234/- against an income of Rs.73,39,672/-, which comes out to be approximately 55% of disproportionate income to his total income. (2) A Regular Case was registered on 07.12.1999 as RC No.S19 E0006 1999 in respect of the said disproportionate assets. (3) Further investigations alleged that the disproportionate assets were to the tune of Rs.12,04,46,938/- which was 7615.45% of his known source of income during the check period from 01.04.1990 to 04.03.1999. It was also alleged that the petitioner was involved in money laundering, and for channeling his illgotten wealth had established a number of companies wherein his family members were the founding Directors. (4) The CBI then sent a letter to the Ministry of Finance dated 24.05.2002 for accord of necessary sanction for prosecution of the petitioner. The same was accompanied by a Superintendent of Police’s Report (hereinafter referred to as the ‘SP’s Report dated 24.05.2002’) of 163 pages containing a detailed gist of the relevant statements and documents including the information on income tax returns, etc. The covering letter of the SP's Report dated 24.05.2002 stated as follows: “The SP’s report sent herewith may please be treated as a secret document and no reference to it may be made in the sanction order when issued. In case the Ministry/Department, due to some reasons wants to depart from the material placed on record for issuing sanction, the matter may please be discussed with the undersigned so that the sanction for prosecution so accorded not found wanting legally. Since the relied upon documents are very large in quantity, they are not being enclosed. The Investigating Officer of this case Shri V.K. Pandey, will show the documents and also explain the evidence as and when required. Further List of witnesses and List of documents will be provided, if necessary.” (5) It is the case of the petitioner that the Investigating Officer continued with the investigation and recorded the statements of as many as 13 witnesses between 10.05.2002 to 16.10.2002, out of which statements of 10 witnesses were recorded after sending the SP’s report dated 24.05.2002 to the sanctioning authority. (6) The CVC after examining the said case advised the Ministry of Finance to grant sanction for prosecution. As per the respondents the Investigating Officer visited the Directorate of Income Tax (Vigilance) in September 2002 and placed necessary documents for the perusal of the Additional Director, Income Tax (Vigilance), who was seized of the matter pertaining to the sanction for prosecution of the respondent. (7) The Finance Minister accorded sanction vide order dated 02.11.2002 and as a consequence thereof, the sanction order was issued vide order dated 26.11.2002 under the seal and signature of the Under Secretary (V&L), Ministry of Finance. The order at para 27 reads as follows: “27......And whereas the Central Government, after fully and carefully considering the material placed before him and taking into account the available evidence including the case diaries and documents collected by the Investigating Officer during the course of investigation and statements of witnesses including the statements of witnesses recorded by the investigating officer u/s 161 Cr.P.C. and statements recorded before Magistrate u/s 164 Cr.P.C. with regard to the said allegations and circumstances of the case, is satisfied that Shri Ashok Kumar Aggarwal should be prosecuted in the competent Court of Law for the above mentioned offences and any other offences if made out on these facts." (55) In the meantime, the petitioner instituted a Writ Petition (Criminal) No.938/2001 on 31.07.2001 alleging therein that the investigation was being conducted in an impartial, unfair and mala fide manner and seeking transfer of the same from the Investigating Officer in the subject case to some other senior officer of the CBI. This Court by way of its order dated 09.04.2002 directed as follows:- “In view of this position, both sides agree to the disposal of this petition by the following order: Revenue Secretary and/or other concerned authorities who are seized of RCS 18/99 are directed to examine and consider the record of investigation fairly and objectively taking in regard all relevant factors and circumstances and then pass appropriate order under law within two months from receipt of this order. Director, CBI is also directed to examine the investigation record of RCS 19/99 and to consider all relevant aspects and factors in the light of petitioner's complaints and then to pass appropriate orders under law in the matter within two months from receipt of this order.” (8) A Charge Sheet was filed by the CBI before the Court of Special Judge, CBI, Delhi on 05.12.2002, on the basis of the same, the court took cognizance and issued summons to the petitioner on 10.01.2003. (9) There were various representations by the petitioner challenging the validity of the sanction order dated 26.11.2002 addressed to the Department of Revenue, and while considering the said representations the Joint Secretary (Revenue), Ministry of Finance, Department of Revenue, addressed a letter dated 12.05.2004 to the Director General of Income Tax (Vigilance). The said letter stated as below: “The concerned Vigilance file has been examined in this Department and, prima facie, it appears that the records relied upon by the CBI were not received in the office of DGIT (Vigilance) and were obviously, therefore, not examined before sanction of prosecution.This was also pointed out to the Vigilance Department, including your predecessor, by the Revenue Secretary during discussions. It is, therefore, necessary that the concerned records including those of the I.T. Department for the relevant period be requisitioned from the CBI and examined by the Vigilance Wing of the Income Tax Department. The finding of the examination may be sent to them within 10 days, based on which a final view will be taken on the representation of Sh. Ashok Aggarwal.” (10) The Additional Director of Investigation (Vigilance), then sent a letter dated 17.05.2004 to the Deputy Inspector General of Police, CBI. The said letter stated as follows: “Kindly refer to your letter no. 164/3/S 19 1999 E 0006 dated 24-5-2002 on the above subject wherewith the SP's report No.3 dated 25-5-2002 in the above case had been forwarded to the Department of Revenue. As mentioned in the said letter, the relied upon documents, being large in quantity, were not enclosed. Although the sanction for prosecution had been accorded in the case after considering the fact brought out in the CBI's report, as also the report of subsequent examination conducted by the Vigilance Wing of the Department, the Charged Officer Sh. Ashok Aggarwal has represented before the Secretary (Revenue), challenging the sanction on the ground that the Department had not examined the investigation records, including the case diaries, documents collected, statement of witnesses, etc. that were relied upon by the case diaries, documents collected, statement of witnesses, etc. that were relied upon by the CBI. Directions have now been received from the O/o Secretary (R), that the concerned records may now be obtained from the CBI and examined, so that the officer's representation may be disposed of. I am directed to request you to kingly provide all the relied upon documents, as referred in your letter dated 24-5- 2002, as also all the relevant income tax records which are in CBI custody, to enable compliance to the directions received from the O/o Secretary (R). In case it is not possible to provide the original records, as above, authenticated copies thereof may be given endorsed. The matter may kindly be treated as most urgent.” (11) The Deputy Inspector General, CBI in response to the letter dated 17.05.2004 sent its letter dated 15.06.2004 to the Director General Income Tax (Vigilance) stated that the petitioner has already filed a petition in the trial court challenging the validity of the sanction for prosecution dated 26.11.2002, the matter is pending consideration in the trial court and is subjudice. This makes it apparent that the relevant documents were sought expost facto and were in fact never dispatched to the Department of Revenue on the ground that the matter was subjudice. (12) The petitioner challenged the validity of the sanction order dated 26.11.2002 on the ground that no documents or records were sent to the sanctioning authority for the grant of sanction except for the SP’s Report dated 24.05.2002, by filing an application dated 01.05.2003 before the Special Judge (CBI). The learned Special Judge heard the said applications and dismissed the same vide order dated 28.07.2007, holding that it could not be determined at that particular stage that the order granting sanction dated 26.11.2002 was invalid. However, the Special Judge was constrained to observe that the case diaries, documents collected by the IO during the course of the investigation, statement of witnesses under section 161 and 164 of the Code were not considered by the sanctioning authority. (13) Further, during trial the Special Public Prosecutor appearing on behalf of the official respondents on 11.07.2007, has conceded that only the SP’s Report dated 24.05.2002 along with a list of evidence (oral and documentary ) were sent to the sanctioning authority for the purpose of according the sanction dated 26.11.2002. The order dated 11.07.2007 passed by the Special Judge, CBI, Delhi is reproduced as below: “CBI vs. Ashok Kumar Aggarwal etc. 11.7.07 Present: Shri N.K. Sharma, Special PP alongwith Dy. S.P. Rajiv Dwevedi, Pairvi Officer. "Accused Ashok Kumar Aggarwal, Vijay Aggarwal, Shish Ram Sainin and SM Jindal on bail with Mr. Ram Jethmalani, Senior Adv. alongwith Mrs. Lata Krishnamurthy and Mr. Girish Shukla, Adv." Accused Smt. Urvashi Aggarwal, Smt. Sita Devi, Smt. Manju Aggarwal, Smt. Sangita Aggarwal, Ram Vilas Aggarwal, and Mohanlal Aggarwal are absent. they are exempted for today only on applications moved. It is submitted by Shri Ram Jethmalani, Ld. senior Advocate that he does not press his prayer for leading evidence on the point of sanction as initially submitted in the affidavit dt.04.05.2002 of the accused Ashok Aggarwal. It is conceded by Shri. NK Sharma, Ld. Special PP that only SPs report alongwith list of evidence oral and list of evidence documentary were sent to the sanctioning authority for the purpose of according sanction. Args. on the point of sanction concluded. Put up for orders on 24.07.2007. Sd/- Special Judge: Delhi:11.7.07” (14) This order of the Learned Special Judge was challenged by the petitioner by way of Revision Petition No.589/2007 filed before this Court. This Court vide its order dated 03.10.2007 set aside the order of the learned Special Judge dated 28.07.2007. It was observed that the documents collected during investigation were not produced before the sanctioning authority and remanded the matter back to the learned Special Judge directing him to record a finding in terms of clause (b) of sub-section (3) and subsection (4) of Section 19 of POCA that whether the nonproduction of relevant material has resulted in any ‘failure of justice’. The said order reads as follows:

Act, that non production of the relevant material before the sanctioning authority at the time of grant of sanction “has not resulted in a failure of justice”.

31. Under these circumstances, it would be appropriate to require the trial court to record the findings in terms of clause (b) of sub-section (3) and sub-section (4) of Section 19 of the Act.

32. Hence, the impugned order, passed by the learned Special Judge is set aside and the matter is remanded back to the trial court with direction to record a finding in terms of clause (b) of sub-section (3) and subsection (4) of Section 19 of the Act. The trial court, if it deems fit, for this purpose, can examine the sanctioning authority as a witness even before charge, keeping in view the provisions of Section 311 CrPC.

33. The trial court shall decide this matter within three months from today and thereafter, aggrieved party can seek appropriate remedy under the law available to it.” (15) Pursuant to the directions of the High Court proceedings were initiated before the Special Judge. On a direction by the Special Judge by way of order dated 12.10.2007, the former Hon'ble Finance Minister, who was the sanctioning authority when the subject sanction order dated 26.11.2002 was passed, filed an affidavit dated 03.11.2007. The relevant contents of the said affidavit are as below: “4. I confirm the statement of facts in Paragraph 8 and 24 of the Order of the Hon'ble High Court. No statement of witnesses or the documents relied in the charge sheet are ordinarily forwarded to the Finance Minister of the day. What is sent is a draft order, whereafter 'sanctioning' by the Minister in normally a routine acceptance of that draft. What was considered by me was only that which was sent or recommended to me. If the obligation was to consider more than which was sent then that has not been done, therefore, unwittingly prejudice might have been caused and justice miscarried. I leave it to the court to decide the matter.” (16) On a VIP reference by the Ministry of Finance, the Ministry of Law & Justice tendered its opinion on the validity of sanction order dated 26.11.2002. The opinion of the Ministry of Law & Justice stated as below: “8. In another linked matter RC SI[9] 1999 E0006 dated 07.12.1999, regarding alleged disproportionate assets in possession of Shri Aggarwal, sanction has also been accorded only on the basis of SP's Report 24.5.2002 (F/D). It may be noted that while forwarding the aforesaid SP's Report No. 3, the relied upon documents were not forwarded by the CBI on the pretext of being voluminous. it is seen that on a representation made by Shri Aggarwal, the Department of Revenue had examined and scrutinized the case file of vigilance department and it was established that the sanction order dated 26.11.2002 (F/N in linked file vol. III) had been granted without considering and examining the relevant material as the same had not been sent by the CBI. thereafter, despite being requested by Vigilance Department CBDT, CBI did not send the relied upon documents to the authorities (pp1812-1815, 1821, 1824 and 1826 of the linked file Vol. VI)

9. the said sanction order dated 26.11.02 was challenged before the Trial Court and during the arguments, it was fairly conceded by the ld. counsel of CBI on 11.02.2007 that only SP's Report along with the list of documents had been sent to the Sanctioning Authority (F/E in linked file Vol. VI). It is further noticed from the file that the lists sent along with the Sp's report were incomplete. From the file, it is further noticed that a Crl. Rev. Petition NO. 589/2007 filed by Sh. Aggarwal, the High Court of Delhi vide order dated 03.10.2007 (F/F in link file Vol. VI) had conclusively held that before according the sanction the sanctioning authority had not considered the entire material since the same was never sent by the CBI and the declaration in the aforesaid sanction order that before according sanction, the relied upon material had been, considered and examined by the sanctioning authority is incorrect (paras 23 and 28 of the Order).

10. It is also important to note here that subsequently the sanctioning authority (i.e. the then Finance Minister) had filed an affidavit dated 03.11.2007 in the Trial Court (F/G) wherein statement of facts in paragraphs 8 and 24 of the order of the High Court 3.10.2007 were confirmed. In other words, it is undisputed that the list annexed with the SP's Report were incomplete and the statement of not even a single witness was sent to the sanctioning authority. Attention is invited to the following portion of the affidavit.” (17) Thereafter, the CBI moved the Hon'ble Supreme Court of India vide Criminal Appeal No.1838/2013 impugning the order of this Court dated 03.10.2007. The Hon'ble Supreme Court also observed that the documents collected during investigation were not placed before the sanctioning authority. However, without commenting on the validity of the sanction, the Supreme Court vide order dated 22.11.2013 upheld the order dated 03.10.2007 of this Court. (18) The matter was remanded back to the learned Special Judge as a consequence of the order of the Supreme Court dated 22.11.2013 to decide on the issue whether the withholding of documents or material, which were not placed before the sanctioning authority has resulted ‘in any failure of justice’. The learned Special Judge vide the impugned order dated 24.5.2014 observed that withholding of documents would have caused prejudice to the petitioner if in a situation when the documents or materials withheld, had been produced and considered by the sanctioning authority, it was of such a kind or nature or having an information that it would have persuaded the sanctioning authority, to consider not to give sanction to prosecute the petitioner. In this respect the Special Judge held that the petitioner was not able to produce any such document before it. Consequently, the learned Special Judge held that there had been no ‘failure of justice’ in the instant case vide order dated 24.05.2014, impugned herein. (19) Subsequently, it is seen from the Office Memorandum bearing reference F. No.31/2/2014-Vig that a D.O. No.8298/3/1/99(Pt file)/2011/UW IV dated 05.08.2011 sent by Joint Director & Spl. IGP, Head of Zone, Economic Offences, CBI received by Law Secretary (Dy. No. 2378/LS) on 08.08.2011, wherein it was mentioned inter-alia that: “…….the legal opinion of Ministry of Law & Justice dated 05.04.2011 given by the M/o Law has direct bearing on the ongoing trial/writs/SLPs arising out of two cases, it is felt that the said opinion should be examined by the CBI in the interest of justice.” (20) The then Law Secretary after receiving D.O. No.8298/3/1/99(Pt file)/2011/UW IV, reconsidered and withdrew the opinion of the Ministry of Law & Justice dated 05.04.2011 vide FTS No.2378/LS/2011 dated 08.08.2011, without a speaking order. (21) With regard to this revision of opinion by the Law Secretary vide FTS No.2378/LS/2011 dated 08.08.2011, the CVC vide OM No.014/ITX/016/241902 dated 20.03.2014 asked the Ministry of Law & Justice to submit the entire factual matrix in relation to the withdrawal of opinion dated 05.04.2011 by the Law Secretary on 08.08.2011. The Ministry of Law & Justice opined that the withdrawal of opinion by the Law Secretary was contrary to regular procedure adopted by the Ministry. (22) Thereafter, the CVC vide its Office Memorandum No.014/ITX/016/280 dated 13.04.2015 observed that the order on sanction dated 26.11.2002 was not in conformity with the guidelines reiterated by the DoP&T in Circular dated 26.03.2015.

7. Mr. Ram Jethmalani, learned Senior Counsel appearing on behalf of the petitioner would urge that the sanction order dated 21.06.2002, which is the genesis of the cognizance taken by the Special Judge, CBI, Delhi in the subject case in RC No.SI[8] E0001 1999 is invalid since apart from the SP’s report dated 30.10.2001 and the draft sanction order that accompanied the said report, no other documents were sent to the sanctioning authority which circumstance is enough by itself to invalidate the sanction order dated 21.06.2002. It is then urged by Mr. Jethmalani that if the sanctioning authority would have had the benefit of examining the reply to the LR as well as the relevant Fax dated 13.01.1998, it would have been apparent to him that the charges levelled against the petitioner to the effect that the Fax in question was forged, fabricated and had been planted on the top of the Fax machine of Mr. Barjatya, was false and frivolous and it may have led him to deny sanction to prosecute the petitioner, as sought by the CBI.

8. Mr. Jethmalani, learned senior counsel would then urge that the order granting sanction dated 26.11.2002 was also invalid, as no record of investigation or statements of witnesses were perused by the sanctioning authority before the grant of sanction. Reliance was placed on the orders and judgments of the High Court dated 03.10.2007 and of the Honb'le Supreme Court dated 22.11.2013, to demonstrate that no record of investigation was sent to the sanctioning authority apart from the SP’s report dated 24.05.2002. Further, reliance was placed on the affidavit dated 03.11.2007 of the then Finance Minister before the Special Judge and the statement of the Special Public Prosecutor before the Special Judge on 11.07.2007 conceding that no record of investigation was sent to the sanctioning authority before grant of sanction order dated 26.11.2002.

9. Mr. Jethmalani, learned Senior Counsel for the petitioner has invited my attention to the order dated 21.01.2003 passed by this Court whereby it directed the learned Special Judge, CBI, Delhi to decide the application of discharge filed on behalf of the petitioner, as well as the question of validity of the sanction, as expeditiously as possible, to urge that the learned Special Judge, CBI, Delhi fell into error in framing charges, without examining the said questions as to whether the sanction order dated 21.06.2002 was rendered invalid, as a consequence of the omission on the part of the Competent Authority to consider the relevant documents.

10. Mr. Jethmalani, learned Senior Counsel appearing on behalf of the petitioner has also invited the attention of this Court to the notings made by the Ministry of Finance, Department of Revenue in its reference bearing F.No.16/1/99-Ad.ED dated 01.10.2014considering the opinion of the Ministry of Law & Justice dated 05.04.2011, invalidating the sanction orders dated 21.06.2002 and 26.11.2002. It is submitted that the aforementioned notings are further endorsed by the CVC in its Office Memorandum dated 13.04.2015 and the letters of the PMO dated 19.02.2015 and 18.04.2015 requesting the Department of Revenue to afford a personal hearing to the

11. In order to substantiate the afore-stated submissions, reliance has been placed on the decisions of the Hon'ble Supreme Court in State of Tamil Nadu vs. M. M. Rajendran, reported as (1998) 9 SCC 268 and Mansukhlal

V. Chauhan vs. State of Gujarat, reported as AIR 1997 SC 3400.

12. Mr. Jethmalani, learned Senior Counsel appearing on behalf of the petitioner would urge that the issue as to whether the sanction granted by the Competent Authority to prosecute the petitioner was valid or otherwise ought to have been determined by the Special Judge, CBI, Delhi at the time of taking cognizance, in terms of the provisions of Section 19(1) of POCA and, therefore, the Special Judge, CBI, Delhi failed to discharge the duty required by law in omitting to determine the said issue at the time of framing of charge in RC No.SI[8] E0001 1999. Mr. Jethmalani, learned Senior Counsel would then urge that the Special Judge, CBI, Delhi was duty bound to determine the question of validity of sanction along with the application of discharge in terms of the directions passed by this Court in the present petition by way of order dated 21.01.2003.

13. Mr. Jethmalani, learned Senior Counsel would also urge that in terms of the provisions of Section 19(1) of POCA, which is a jurisdictional provision, no cognizance could have been taken at all by the Special Judge, CBI in the absence of a valid sanction. It was further urged that the provisions of Section 19 of the POCA specifically provide for consideration of the issue as to whether the sanction is valid or not at the following stages:- (a) Firstly, under the provisions of Section 19(1) POCA where the court takes cognizance of the offence punishable under Sections 7,10,11,13 and 15, alleged to have been committed by a public servant, at which juncture the absence of a valid sanction operates as a complete bar. (b) Secondly, at a stage consequent upon a finding, sentence or order passed by the Special Judge, CBI when it is assailed in any appeal, confirmation or revision, instituted by the person aggrieved by the order of conviction and sentence under the provisions of POCA.

14. Mr. Jethmalani, learned senior counsel would urge that it is only at the second stage as aforementioned that the court adjudicating the appeal, confirmation or revision has to determine whether a failure of justice has occasioned on account of any error, omission or irregularity in the grant of sanction.

15. Mr. Ram Jethmalani, learned Senior Counsel appearing on behalf of the petitioner would then urge that in fact sub-Section (4) of Section 19 of POCA also requires the Court to consider in every such appeal, confirmation or revision the fact as to whether the objection should and could have been raised at an earlier stage in the proceedings. It was pointed out that as observed in the order of this Court dated 03.10.2007, the petitioner had raised the objections of validity of sanction order dated 26.11.2002 at the very initial stage i.e. even before arguments on charge could be advanced.

16. Therefore, the submissions made on behalf of the petitioner are that the Special Judge, CBI cannot take cognizance of an offence punishable under Sections 7,10,11,13 and 15 of POCA unless it has determined the validity or otherwise of a sanction for prosecution of a public servant. In this behalf reliance was placed on the decision of the Privy Council in Gokulchand Dwarkadas Morarka vs. The King, reported as AIR (35) 1948 PC 82.

17. It has furthermore been urged on behalf of Mr. Jethmalani, learned Senior Counsel appearing on behalf of the petitioner that the non-obstante requirement in Section 19(3) of POCA relates only to the Code, as specifically stipulated therein and consequently that provision does not override the mandate of the provisions of Section 19(1) of POCA. It was argued that section 19(3) POCA is only applicable to courts exercising revisional or appellate jurisdiction and the Special Judge is not bound by the requirement to look into ‘failure of justice’ under section 19(3) POCA. It was therefore submitted that the Special Judge while passing the impugned order dated 24.05.2014, lost sight of the bar to take cognizance under Section 19(1) POCA, in the absence of a valid sanction, and that the Special Judge erroneously applied the principle as contained in the provisions of Section 19(3) POCA in this behalf.

18. In order to buttress his submissions, Mr. Jethmalani, learned Senior Counsel has referred to the decision of the Supreme Court in Nanjappa vs. State of Karnataka, reported as 2015 (8) SCALE 171, to urge that the order of the Special Judge dated 24.05.2014 is bad in law so far as it delves into the question of ‘failure of justice’ caused to the petitioner.

19. Mr. Jethmalani, learned Senior Counsel on behalf of the petitioner would also urge that there has been grave prejudice caused to the petitioner for the reason that the sanctioning authority was bound to consider the entire material of investigation and was prevented from doing so; and the orders on sanction dated 21.06.2002 and 26.11.2002 were passed without affording the protection under section 19(1) POCA and section 197 of the Code to the petitioner. It was also urged that a valid sanction is a pre-requisite to taking cognizance of an offence under the POCA, and since the Special Judge has taken cognizance despite there being an invalid sanction, the petitioner has been deprived of the protection provided under section 19(1) POCA. This has further caused prejudice to the petitioner. The prejudice caused to the petitioner is both legal and factual.

20. Insofar as, the threshold objection with respect to the maintainability of the present petition on the grounds that it raises disputed questions of fact on behalf of the official respondents is concerned, Mr. Jethmalani, learned Senior Counsel urged that the facts as gleaned from the documents, material and affidavits on record, led inevitably and inescapably to the conclusion that the relevant documents were not placed before the sanctioning authority, thereby, vitiating the grounds of sanction and the order dated 21.06.2002.

21. In other words, it was urged on behalf of the petitioner that since the order framing charges dated 17.12.2012 returned no finding on the validity of the order granting sanction, this Court ought to exercise its extraordinary powers under Article 226 of the Constitution of India to quash the subject Charge Sheet on the basis of the submissions afore-stated. In order to buttress this submission, reliance was placed on State of Haryana & Ors. vs. Bhajan Lal, reported as 1992 SCC (Suppl.) 1 335; Pepsi Food Ltd. vs. Special Judicial Magistrate & Ors. reported as 1998 (5) SCC 749; State of West Bengal vs. Swapan Kumar Guha, reported as 1982 (1) SCC 561; State of Orissa vs. Debendra Nath Padhi reported as (2005) 1 SCC 568.

22. Mr. Jethmalani, learned Sr. counsel appearing on behalf of the petitioner would also urge that the investigation conducted by the CBI in the subject criminal cases is tainted with mala-fides.

23. Further, Mr. Jethmalani, learned Senior counsel appearing on behalf of the petitioner invited the Court's attention to the mala-fide conduct displayed by the official respondents in not reinstating the petitioner till date despite the order dated 22.11.2013 of the Hon'ble Supreme Court in Civil Appeal No.9454/2013.

24. On the contrary, Mr. Sanjeev Narula, learned Central Government Standing Counsel and Mr. Sanjeev Bhandari, learned Special Public Prosecutor appearing on behalf of the Union of India and the CBI respectively would urge that the present writ petition under Articles 226/227 of the Constitution of India is not maintainable as it raises disputed questions of facts. In order to strengthen this submission, reliance was placed on Union of India vs. T.R. Verma, reported as (1958) SCR 499, K.K. Das Chouhary vs. State of West Bengal, reported as (1972) 2 SCC 420 and State of Bihar vs. P.P. Sharma, reported as (1992) Suppl. 1 SCC 222.

25. Learned counsel on behalf of the official respondents would then urge that this Court cannot look into the validity of the order granting sanction at this stage and that question can only be determined after evidence is adduced during trial. Reliance was placed on the decision of the Hon’ble Supreme Court in State of Maharashtra vs. Mahesh G. Jain reported as

26. Furthermore, learned counsel appearing on behalf of the official respondents, based on the assumption that the relevant documents were placed before the sanctioning authority and were duly examined by it, would urge that the orders granting sanction dated 21.06.2002 and 26.11.2002 were valid.

27. The issues raised in the present writ petition were crystallized by the Hon'ble Supreme Court of India in Criminal Appeal No.353/2007 vide order dated 15.03.2007 had directed as follows:- “When the matter was heard on 12.03.2007, we requested the learned Additional Solicitor General to place before us the notings made on the file on 18.06.2005, 27.12.2005 and 15.01.2007 for our perusal and for issuing further directions. Accordingly, the relevant file was placed before us. We perused the file, in particular, the observations made on 18.06.2005 (page 55 of the file), 17.12.2005 (page 57 of the file) and 15.01.2007 (page 59-64 of the file) by the Hon’ble Minister of Finance. Since the writ petition is pending, we request the High Court to peruse these notings and the observations made by the Hon’ble Finance Minister and thereafter issue appropriate directions to the parties to the action. Since the challenge is pending consideration before the High Court, we request the High Court to take up both the issues of maintainability and the validity of sanction for the prosecution simultaneously and decide the same on merits and in accordance with law and after affording opportunity to the parties to the action.”

28. In view of the foregoing, the issues that require adjudication and determination in the Writ Petition (Criminal) No.1401/2002 are:-

(i) Whether the present petition is maintainable under

Articles 226/227 of the Constitution of India in view of the assertion made on behalf of the official respondents to the effect that it requires this Court to determine disputed questions of fact?

(ii) Whether the order passed by the learned Special Judge,

CBI, Delhi on 17.12.2005 framing charges under Sections 120B IPC read with sections 468/469/471 IPC and Section 7 and 13(2) read with section 13(1) (d) of POCA is vitiated on account of the circumstance that the order dated 21.06.2002 granting sanction to prosecute the petitioner is non-est, void ab-initio, invalid and in violation of this Court’s order dated 09.04.2002 in Writ Petition (Criminal) No.938/2001 instituted by the petitioner herein?

29. The sole issue that arises for determination in Criminal Revision Petition No.338/2014 is whether the sanction order for prosecution dated 26.11.2002 is invalid and in violation of this Court's order in Writ Petition(Criminal) No.938/2001 instituted by the petitioner herein for nonproduction of relevant material as well as for want of due application of mind by the sanctioning authority?

30. For the determination of the issues raised in the present petition, it is necessary for brevity to reproduce the following statutory provisions:

(i) Section 19 of the POCA:-

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(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 as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (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 of, 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) 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 satisfied that such error, omission or irregularity has resulted in a failure of justice;

(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 other proceedings. (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 any earlier stage in the proceedings. Explanation.—For the purposes of this section,— (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

(ii) Section 197 of the Code of Criminal Procedure, 1973:-

(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted. (3A) 1 Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magis- trate or public servant is to be conducted, and may specify the Court before which the trial is to be held."

(iii) Section 8 of the Central Vigilance Commission Act, 2003

8. Functions and powers of Central Vigilance Commission.-

1. The functions and powers of the Commission shall be to a. exercise superintendence over the functioning of the Delhi Special Police Establishment in so far as it relates to the investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 or an offence with which a public servant specified in sub-section (2) may, under the Code of Criminal Procedure, 1973, be charged at the same trial; b. give directions to the Delhi Special Police Establishment for the purpose of discharging the responsibility entrusted to it under sub-section (1) of section 4 of the Delhi Special Police Establishment Act, 1946: Provided that while exercising the powers of superintendence under clause (a) or giving directions under this clause, the Commission shall not exercise powers in such a manner so as to require the Delhi Special Police Establishment to investigate or dispose of any case in a particular manner; c. inquire or cause an inquiry or investigation to be made on a reference made by the Central Government wherein it is alleged that a public servant being an employee of the Central Government or a corporation established by or under any Central Act, Government company, society and any local authority owned or controlled by that Government, has committed an offence under the Prevention of Corruption Act, 1988 or an offence with which a public servant may, under the Code of Criminal Procedure, 1973, be charged at the same trial; d. inquire or cause an inquiry or investigation to be made into any complaint against any official belonging to such category of officials specified in sub-section (2) wherein it is alleged that he has committed an offence under the Prevention of Corruption Act, 1988 and an offence with which a public servant specified in subsection (2) may, under the Code of Criminal Procedure, 1973, be charged at the same trial; e. review the progress of investigations conducted by the Delhi Special Police Establishment into offences alleged to have been committed under the Prevention of Corruption Act, 1988 or the public servant may, under the Code of Criminal Procedure, 1973, be charged at the same trial; f. review the progress of applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act, 1988; g. tender advice to the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government on such matters as may be referred to it by that Government, said Government companies, societies and local authorities owned or controlled by the Central Government or otherwise; h. exercise superintendence over the vigilance administration of the various Ministries of the Central Government or corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government: Provided that nothing contained in this clause shall be deemed to authorize the Commission to exercise superintendence over the Vigilance administration in a manner not consistent with the directions relating to vigilance matters issued by the Government and to confer power upon the Commission to issue directions relating to any policy matters;

2. The persons referred to in clause (d) of subsection (1) are as follows:— a. members of All-India Services serving in connection with the affairs of the Union and Group ‘A’ officers of the Central Government; b. such level of officers of the corporations established by or under any Central Act, Government companies, societies and other local authorities, owned or controlled by the Central Government, as that Government may, by notification in the Official Gazette, specify in this behalf: Provided that till such time a notification is issued under this clause, all officers of the said corporations, companies, societies and local authorities shall be deemed to be the persons referred to in clause (d) of sub-section (1).

(iv) Para 22.16 of The CBI Manual, 2005:-

"22.16 On completion of investigation in cases covered in items 22.15.[1] & 22.15.[2] above, the CBI shall send its report to the Administrative Authority along with the relevant statement of witnesses recorded during investigation and the documents. The Supreme Court judgment in the State of Tamil Nadu v. M.M. Rajendran reported in 1999 SCC (Criminal) 1000 and the Circular No.21/33/98-PD dated 6.5.1999 issued by the policy division are also referred to in this regard."

(v) Circular no.21/33/98-PD of CBI reads as follows:-

for prosecution. The concerned officers incharge of the case may also be deputed to produce the relevant materials for perusal by the competent authority and this fact be recorded in the case diary of the case.”

31. I have heard the rival contentions of counsel appearing on behalf of the parties, examined the documents, and perused the official records placed before me in a sealed cover.

32. With regard to the first issue requiring determination i.e. the issue of maintainability, it would be necessary to collate the undisputed facts that emerge from the material on record and the submissions of the counsel on behalf of the parties:

1) A raid was in fact conducted in the office premises of Mr. Barjatya on 01.01.1998.

2) During the raid the Fax in question was recovered from the top of the Fax Machine of Mr. Barjatya.

3) Mr. Barjatya was arrested in connection therewith on 28.01.1998.

4) Mr. Barjatya sent a Fax to the Swiss Bank Corporation dated 30.01.1998(the date was allegedly mentioned wrongly) inquiring as to why the Fax in question was sent to him, and to this the Swiss Bank Corporation replied vide relevant Fax dated 13.01.1998 stating that the Fax in question has been sent to him by mistake and was not supposed to be sent to his Fax Number. The Swiss Bank Corporation in its communication further stated that the Fax in question must have reached Mr. Barjatya due to a transmission error as it is impossible to dial so many wrong numbers.

5) Mr. Barjatya conducted a self serving investigation on his own and sent Mr. Mandeep Kapur, Chartered Accountant to Switzerland, who procured a letter from one Mr. Eric Huggenberger, an attorney of the Swiss Bank dated 17.02.1998 to the effect that the Fax in question was a forgery and was never written by the Swiss Bank Corporation. Mr. Mandeep Kapur, further procured a letter dated 20.3.1998 from the Swiss Bank, stating that Mr. Huggenberger was an authorized attorney of the former bank.

6) On a complaint instituted by Mr. Barjatya and based on the material provided by him, an investigation was conducted into the allegation that the Fax in question was forged and fabricated and had been planted by the

7) A criminal case bearing RC No.SI8/1999/E0001 came to be registered on a 29.01.1999 under Section 120B IPC read with Sections 195/467/469/471 IPC and section 7 and 13(2) read with section 13(1)(d) POCA against ‘unknown officials of Delhi Zone of Enforcement Directorate’ on the basis of the complaint filed by Mr. Barjatya.

8) During investigations Mr. Abhishek Verma made a statement that he had forged and planted the Fax in question at the instance of the petitioner in lieu of the promise that he would be rewarded as an informant once the Fax in question was seized.

9) Mr. Abhishek Verma was made an approver and was tendered pardon vide order dated 07.09.2001 by the Trial Court. The trial court further observed that in absence of the testimony of Mr. Abhishek Verma the case of the prosecution may not be proved.

10) The order granting pardon to Mr. Abhishek Verma dated 07.09.2001 was set aside by this court in Crl. M.P. 3741/2001 vide judgment and order dated 20.08.2007 on the ground that the former order was procured by suppression of material facts.

11) The Supreme Court further upheld the decision of the High Court dated 20.08.2007 in Criminal Appeal NO. 1837/2013 instituted on behalf of the CBI, vide judgment and order dated 22.11.2013 and asked the trial court to look into the matter of grant of tender of pardon to Mr. Abhishek Verma, afresh.

12) Pursuant thereto, the CBI moved an application in the trial court that it does not support the case of Mr. Abhishek Verma for becoming an approver and grant of pardon in view of his criminal antecedents.

13) Mr. Abhishek Verma also moved an application dated 31.07.2014 before the learned Special Judge stating that he was coerced and threatened for life by the IO in the instant case to give a false statement against the petitioner. In view thereof, he retracted his statement u/s 164, Cr.P.C. implicating the petitioner.

14) At the instance of the CBI a LR was issued by the Competent Authority in India dated 29.01.2001 requesting the Competent Authority in Switzerland to investigate on certain questions and provide certain documents to the investigating authority in India. It is noticed that the questions posed in the LR dated 29.01.2001 are ill-directed and based on the assumption that the Fax in question is a forged one. On 27.06.2001 a reply was received from the Competent Authority in Switzerland stating that even though the Fax in question was sent by the Swiss Bank on 22.12.1997, the same was not sent to the Fax Number of Mr. Barjatya and reached the latter by mistake. The LR itself presumptuously refers to the Fax in question as a ‘forged’ document, thus prejudging the allegations levelled against the petitioner.

15) The Reply to the LR dated 27.06.2001 pertinently did not respond to the query in the LR which required the details of any other account operated by Mr. Barjatya along with other persons named in the LR. The Reply to the LR dated 27.06.2001, in turn asked for further details such as date of birth, address etc. of the persons named in the LR. The Reply to LR also did not confirm the genuineness of the letters procured by Mr. Mandeep Kaur, Chartered Accountant and relied upon by the CBI to charge the petitioner. Admittedly, no further information was sought by the Indian Authorities, and no such details were provided to the Swiss Bank Corporation as were asked for by the latter in the reply to the LR dated 27.06.2001. The reply to the LR, thus, suppresses more than it reveals.

16) On 30.10.2001 a SP’s Report accompanied by a Draft Sanction Order and a list of documents and witnesses was submitted to the sanctioning authority vide reference NO. 9582/3/Cr/1(E)/99-SIU-VIII for grant of sanction of prosecution. From the perusal of the file it is seen that the Reply to LR dated 27.06.2001 although listed at Sl. NO. 41 of the list of documents sent along with the SP’s Report dated 30.10.2001, is not itself annexed in the file.

17) The SP’s report dated 30.10.2001 finds no mention of the Reply to the LR dated 27.06.2001 or the relevant Fax dated 13.01.1998.

18) Consequently, an order granting sanction was passed by the sanctioning authority on 21.06.2002 in terms of the draft sanction order submitted to it by the CBI along with the SP’s Report on 30.10.2001.

19) The sanction order dated 21.06.2002 was a verbatim copy of the draft sanction order and resultantly, finds no mention of the Reply to the LR dated 27.06.2001, or the relevant Fax dated 13.01.1998.

20) Representations dated 29.07.2002 and 13.08.2002 were made to the Revenue Secretary by the petitioner praying for the withdrawal of sanction order dated 21.06.2002 in light of the LR and its reply by the Competent Authority in Switzerland.

21) While considering these representations the officials of the Department of Revenue noted vide reference F. No.16/1/99-Ad.I-C that from the perusal of files it was apparent that no supporting documents were sent to the sanctioning authority for its consideration.

22) The Department of Revenue sought the opinion of the Ministry of Law & Justice, and the latter tendered its opinion on 05.04.2011 vide reference bearing FTS No.167/JS&LA(MKS)/2011 stating that the sanction order dated 21.06.2002 had been issued without proper application of mind and the relevant material had not been supplied by the CBI to the sanctioning authority.

23) The Ministry of Law & Justice withdrew its opinion dated 05.04.2011 on 08.08.2011 as a result of a communication sent by the CBI vide D.O. No.8298/3/1/99(Pt file)/2011/UW IV dated 05.08.2011, requesting the Ministry of Law & Justice to reconsider its opinion as the matter against the petitioner was subjudice.

24) However, on a communication by the CVC to the Ministry of Law & Justice vide OM No.014/ITX/016/241902 dated 20.03.2014 asking the Ministry of Law & Justice to present the entire factual matrix that led to the withdrawal of the opinion dated 05.04.2011, the Ministry of Law & Justice noted in F.No.31/2/2014-Vig dated 31.03.2014 that the opinion was withdrawn without following the proper procedure.

25) Representation dated 17.06.2014 was made to the Revenue Secretary by the petitioner praying that his representations for the withdrawal of sanction order dated 21.06.2002 be decided in light of the opinion of Ministry of Law & Justice dated 05.04.2011.

26) While considering these representations the officials of the Department of Revenue made the notings bearing reference No.F.No. 16/1/99/Ad.ED that the opinion of the Ministry of Law & Justice dated 05.04.2011 was valid and in light of the same the order granting sanction to prosecute the petitioner dated 21.06.2002 was invalid.

27) The CVC vide its Office Memorandum bearing reference No.014/ITX/016/280 dated 13.04.2015 also opined that the order granting sanction to prosecute the petitioner dated 21.06.2002 was not in accordance with the guidelines issued by the DoP&T vide Circular dated

28) The PMO vide letter dated 19.02.2015 and 18.04.2015 directed the Department of Revenue to afford a personal hearing to the petitioner and decide his representations to the Department in light of the opinion of Ministry of Law dated 05.04.2011.

29) This Court also granted several opportunities to the official respondents to afford a personal hearing to the petitioner and render a decision on the latter’s representations regarding the validity of order of sanction dated 21.06.2002 to the Department of Revenue. The said representation has been rejected by way of order dated 07.09.2015.

30) The annexures to the SP’s report dated 30.10.2001 have never been produced before this Court and have been stated to be unavailable on record although the list of evidence annexed along with the SP’s report dated 30.10.2001 has been produced.

33. Moreover, it is an established position of law that under Article 226 of the Constitution of India, a High Court is not precluded from entering upon a decision on questions of fact raised in a petition to the extent that the same can be determined based on the pleadings of the parties, the admitted material placed on record by the contesting parties, the official records summoned by the court for its perusal and the submissions made by the counsel for the parties, even if the same are in dispute and do not require the taking of oral evidence. Rather, this is a matter of the discretion of the court and not a matter of jurisdiction, as has been propounded in State of Orissa vs. Miss. Binapani Dei, reported as (1967) 2 SCR 625.

34. Thus, the extent of jurisdiction of the High Court under Article 226 of the Constitution of India is not confined to questions of law. This proposition is well established through a catena of decisions of the Apex Court, noticeably in the landmark decision of Century Spinning and Manufacturing Company Ltd. vs. Ulhasnagar Municipal Council and Anr. reported as 1970 (1) SCC 582, wherein the Supreme Court set aside the order passed by High Court dismissing a petition in limine where relief was sought against the respondent in that case, whose actions with regard to the Century Spinning Co. were prima facie unjust in that case, it was observed as below:

35. Similarly in Gunwant Kaur vs. Municipal Corp, Bhatinda reported as (1969) 3 SCC 769 it was held:

36. Following the decision of the Supreme Court in Gunwant Kaur (supra), the Hon’ble Supreme Court in NTPC vs. Mahesh Datta, reported as

37. Congruous with its earlier decision in Gunwant Kaur (supra), the Supreme Court in ABL International Limited &Anr. vs. Export Credit Guarantee Corporation, reported as (2004) 3 SCC 553, held that where the dispute can be adjudicated upon by interpreting the meaning of the documentary evidence on record, the High Court can very well go into the question of facts and adjudicate the same.

38. In view of the afore-stated factual matrix, it emerges that there are no disputed questions of facts. The reply to the LR dated 27.06.2001 as well as the relevant Fax dated 13.01.1999[8] sent to Mr. Barjatya are conspicuous by their absence in the SP’s Report dated 30.10.2001. It is not surprising, that the order granting sanction also does not allude to either of the aforementioned relevant documents, as it is a verbatim copy of the draft sanction order. The counsel appearing on behalf of the official respondents produced the original files that were sent to the sanctioning authority for the perusal of this Court. It was noticed from the file that the file only contains a list of documents and the relevant documents are not annexed therewith. On a query from the court, the counsel appearing on behalf of the official respondents conceded that the documents are not present in the file containing the SP’s Report dated 30.10.2001 and justified this fact on the ground that the documents have not been retained in the file. A couplet by Daag Dehlvi is apropos to the conduct of the CBI: “Khoobpardahaikichilman se lagebaithehain Saafchuptebhinahin, samneaatebhinahi.” -DaagDehlvi

39. The notings of the Department of Revenue bearing reference Nos. F. No.16/1/99-Ad.I-C and F.No.16/1/99/Ad.ED, opinion of Ministry of Law & Justice dated 05.04.2011 and the CVC OM dated 13.04.2015, are clearly demonstrative of the fact that the relevant documents were not sent to the sanctioning authority, concomitantly this validates that there was no application of mind on behalf of the sanctioning authority before it granted the sanction for prosecution of the petitioner on 21.06.2002. In view thereof, there remain no disputed questions of facts, and the facts are as clear as daylight.

40. Even otherwise, in light of the decisions of the Hon’ble Supreme Court, this Court is not precluded from determining questions of fact under Articles 226/227 of the Constitution of India, since the dispute arising in the present case can be very well be determined by looking at the official documents and material on record including the pleadings of the parties.

41. Insofar as the question as to the stage at which the validity of sanction can be determined, it is noteworthy that this Court vide its order dated 21.01.2003 directed the Special Judge, Delhi to expeditiously decide the application of discharge including the issue of validity of sanction pending before it, which read as follows: “ The application for discharge including the issue of sanction filed by the petitioner is pending before the learned Special Judge, Delhi. We direct the learned Special Judge to decide the application of discharge as expeditiously as possible. The matter is adjourned sine die with liberty to revive the petition immediately after the order is passed by the learned Special Judge. The learned Special Judge would decide the application of discharge without being influenced by the fact of pendency of this petition in this Court.”

42. An order on charge was passed on 17.12.2005 by the Special Judge, CBI, Delhi in RC No.SI[8] E 0001 1999 in CC No.26 of 2002, and charges were framed against the petitioner u/s 120B IPC read with sections 468/469/471 IPC and Section 7 and 13(2) read with section 13(1) (d) of POCA. It is critical to note that the Special Judge returned no findings on the validity of sanction, despite having been directed by this Court to do so by way of order dated 21.01.2003.

43. Thereafter, the order dated 21.02.2007 of this court, was challenged by of Criminal Appeal No.353/2007 before the Supreme Court of India by the official respondents. While allowing the appeal the Supreme Court by way of order dated 15.03.2007 had directed the High Court to decide the issue of maintainability as well as the issue of validity of sanction on merits.

44. This issue is also no longer res-integra, the Hon’ble Supreme Court in the case of State of Karnataka vs. C. Nagarajaswamy, reported as (2005) 8 SCC 370, held as follows:- “Ordinarily, the question as to whether a proper sanction has been accorded for prosecution of the accused persons or not is a matter which should be dealt with at the stage of taking cognizance. But in a case of this nature where a question is raised as to whether the authority granting the sanction was competent therefore or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the accused for the purpose of determination as to who could remove him from service. Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regard sanction may be determined at an early stage. But, even if a cognizance of the offence is taken erroneously and the same comes to the court’s notice at a later stage a finding to that effect is permissible. Even such a plea can be taken for the first time before an appellate court.”

45. The Supreme Court, relying on C. Nagarajaswamy (supra) has held in Nanjappa vs. State of Karnataka, reported as 2015 (8) SCALE 171, that what is important is that the grant of a valid sanction is essential before the court takes cognizance. The court held as follows:-

46. The Court relied on the earlier decisions in Yusofalli Mulla vs. The King reported as AIR 1949 PC 264, Basdeo Agarwalla vs. King Emperor reported as AIR 1945 FC 16 and Budha Mal vs. State of Delhi, Criminal Appeal No.17 of 1952 decided on 03.10.1952, and further went on to state that the validity of sanction affects the competence of the court to try the accused, and if the trial court proceeds despite invalidity of sanction then the proceedings before the trial court are rendered non-est. It was observed as follows:

9. The Federal Court had in Basdeo Agarwalla’s case (supra), summed up the legal position regarding the effect of absence of a sanction in the following words: “In our view the absence of sanction prior to the institution of the prosecution cannot be regarded as a mere technical defect. The clause in question was obviously enacted for the purpose of protecting the citizen, and in order to give the Provincial Government in every case a proper opportunity of considering whether a prosecution should in the circumstances of each particular case be instituted at all. Such a clause, even when it may appear that a technical offence has been committed, enables the Provincial Government, if in a particular case it so thinks fit, to forbid any prosecution. The sanction is not intended to be and should not be an automatic formality and should not so be regarded either by police or officials. There may well be technical offences committed against the provisions of such an Order as that in question, in which the Provincial Government might have excellent reason for considering a prosecution undesirable or inexpedient. But this decision must be made before a prosecution is started. A sanction after a prosecution has been started is a very different thing. The fact that a citizen is brought into Court and charged with an offence may very seriously affect his reputation and a subsequent refusal of sanction to a prosecution cannot possibly undo the harm which may have been done by the initiation of the first stages of a prosecution. Moreover in our judgment the official by whom or on whose advice a sanction is given or refused may well take a different view if he considers the matter prior to any step being taken to that which he may take if he is asked to sanction a prosecution which has in fact already been started.”

10. So also the decision of this Court in Budha Mal vs. State of Delhi [Criminal Appeal No.17 of 1952 disposed of on 3/10/1952], this Court had clearly ruled that absence of a valid sanction affected the competence of the Court to try and punish the accused. This Court observed: “We are satisfied that the learned Sessions Judge was right in the view he took. Section 403 CrPC applies to cases where the acquittal order has been made by a court of competent jurisdiction but it does not bar a retrial of the accused in cases where such an order has been made by a court which had no jurisdiction to take cognizance of the case. It is quite apparent on this record that in the absence of a valid sanction the trial of the appellant in the first instance was by a Magistrate who had no jurisdiction to try him.” Xxxx xxxx xxxx xxxx xxxx

15. The legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the Court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of clauses (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for prosecution in accordance with law. If the trial Court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non-est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution.”

47. In the case of State of Goa vs. Babu Thomas, reported as (2005) 8 SCC 130, the Supreme Court referred to section 19(1) POCA and laid down cognizance by a court is barred under the said provision unless there is a valid sanction backing it. The court held as follows:

48. Similarly, in the case of Anil Kumar and Ors vs. M.K. Aiyappa and Anr, reported as (2013) 10 SCC 705, the Supreme Court held that the Special Judge could not have taken cognizance and ordered investigation under section 156(3) of the Code if there was no valid sanction.

49. Keeping in view the fact that this Court had remitted the question of validity of sanction to the Special Judge, CBI on an earlier occasion, and the Special Judge failed to return a finding on this issue, the order framing charges against the petitioner cannot be sustained. The Special Judge, evidently instead proceeded to frame charges against the petitioner, without looking into the question of validity of the sanction.

50. From a conspectus of the decisions of the Supreme Court as cited above the legal position that emerges is that the question of validity of a sanction must be decided as soon as it is raised and cannot be postponed to a later stage of trial, as an invalid sanction goes to the very root of the jurisdiction of the court that has taken cognizance. Considering that the cognizance taken by the Special Judge, CBI would be rendered non-est in light of section 19(1) of POCA, the dispute on validity must be adjudicated at the earliest. The soliloquy of Macbeth finds relevance here: “If it were done when ‘tis done, then ‘twere well. It were done quickly.” -Shakespeare, Macbeth (Scene VII)

51. The decision of the Hon’ble Supreme Court in State of Maharashtra vs. Mahesh G. Jain (supra) does not come to the aid of the official respondents as the Supreme Court has categorically observed that the application of mind of the sanctioning authority must be apparent on the face of the sanction order and it is for the prosecution to prove that a valid sanction has been granted. In the instant case, the sanction order dated 21.06.2002 does not show that the sanctioning authority had perused all the relevant documents before granting the said sanction order and the official respondents have failed to show that the relevant documents were placed before the sanctioning authority.

52. It is trite to state that a sanction is a precursory sacrosanct step to initiate criminal proceedings against public officer, and the lack of a valid sanction precludes the court from taking cognizance of the an offence under section 19(1) POCA. Section 19(1) POCA affords protection to those public servants, who could get trapped in vexatious proceedings while discharge of their official functions. If this protection is not afforded to a public servant then the cognizance taken under section 19(1) POCA also stands vitiated.

53. In light of the direction of the Supreme Court dated 15.03.2007 in Criminal Appeal No.353/2007 and the decision of the Supreme Court in Nanjappa (supra), this court is duty bound and empowered under its plenary powers to adjudicate on the issue of validity of the sanction order dated 21.06.2002.

54. In view of the above discussion, Issue No.(i) in Writ Petition (Criminal) No.1401/2002 is decided in favour of the petitioner and it is held that the present petition is maintainable under Articles 226/227 of the Constitution of India. The submission made on behalf of the official respondents to the effect that this Court ought not to determine disputed questions of fact is unfounded, baseless and contrary to the record and is, therefore, categorically negated and traversed.

55. In relation to the question of validity of sanction order dated 21.06.2002, the facts that are germane are that neither the SP’s Report dated 30.10.2001 nor the documents annexed therewith allude to the Reply to LR dated 27.06.2001, that evinces that the Fax in question was in fact a genuine one and backs the case of the petitioner. The notings of the officials of the Department of Revenue bearing reference Nos.

F. NO. 16/1/99-Ad.I-C and F.No. 16/1/99/Ad.ED, validate that this document was not sent to the sanctioning authority. The opinion of the Ministry of Finance dated 05.04.2011 also emphasizes the fact that the sanction order dated 21.06.2002 was passed without due application of mind by the sanctioning authority. The Office Memorandum of CVC dated 13.04.2015 further states that the sanction order dated 21.06.2002 was not in accordance with the guidelines laid down under the CBI Manual reiterated by the DoP&T in Circular dated 26.03.2015, wherein it is provided that the CBI has to send the entire record of investigation to the sanctioning authority to obtain sanction for prosecution against a public officer. The letter of the PMO dated 19.02.2015 also directs the Department of Revenue to decide the representation of the petitioner to the latter in light of the opinion of the Ministry of Law & Justice dated 05.04.2011.

56. In view of the directions of the Hon’ble Supreme Court of India vide order dated 15.03.2007, I have gone through the relevant notings dated 18.06.2005, 27.12.2005 and 15.01.2007 made by the then Hon’ble Finance Minister. After perusal of the same, I am of the considerate view that there is no elaborate conclusion drawn out in the said notings, which appear to have been made only after a cursory examination and the same do not come to the aid of the respondents. Hon’ble Finance Minister merely relies on the statement of the DSP (CBI) to come to a conclusion that all the relevant documents were shown to the sanctioning authority. A glaring irregularity is also noticed from these notings to the effect that the sanctioning authority who accorded sanction for prosecution was not the same as the authority, which 96ummarized96 the documents in the first instance.

57. The CBI Manual at para 22.16 stipulates that on completion of investigation, the entire record of the same must be sent to the sanctioning authority in view of the decision of the Supreme Court in State of Tamil Nadu vs. M.M. Rajendran, reported as (1998) 9 SCC 268.

58. In M.M. Rajendran (supra), the Supreme Court held as below:

59. There is yet another issue that the paramount consideration for a valid sanction is ‘due application of mind’ by the sanctioning authority, which has been 98ummarized by the Hon’ble Supreme Court in the case of Mansukhlal Vithaldas Chauhan vs. State of Gujarat, reported as (1997) 7 SCC 622 in the following words: “19. Since the validity of “Sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be had for the reason that the discretion of the authority “not to sanction” was taken away and it was compelled to act mechanically to sanction the prosecution.”

60. The Supreme Court in its decision in State of Bihar and Anr. vs. P.P. Sharma, IAS and Anr., reported as 1992 Supp (1) SCC 222 has 99ummarized on the importance of the entire investigation record to be made available to the sanctioning authority and in the sanction order the relevant facts as to the constitution of the offence must be apparent on the face of it, the court held as under: “The sanction under Section 197Cr.P.C is not an empty formality. It is essential that the provisions therein are to be observed with complete strictness. The object of obtaining sanction is that the authority concerned should be able to consider for itself the material before the Investigation Officer, before it comes to the conclusion that the prosecution in the circumstances be sanctioned or forbidden. To comply with the provisions of Section 197 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction. Section 197 does not require the sanction to be in any particular form. If the facts constituting the offence charged are not shown on the face of the sanction, it is open to the prosecution, if challenged, to prove before the court that those facts were placed before the sanctioning authority. It should be clear from the form of the sanction that the sanctioning authority considered the relevant material placed before it and after a consideration of all the circumstances of the case it sanctioned the prosecution.”

61. In State of Karnataka vs. Ameerjan, reported as 2007 (11) SCC 273, where sanction was given solely on the basis of the IG report and the material that was collected during investigation was not placed before the sanctioning authority, the Supreme Court has held that the order of the High Court holding that the sanction was illegal was proper. It was observed as follows:

62. For the grant of sanction the Supreme Court has clearly laid down the process to be followed in the case of CBI vs. Ashok Kumar Aggarwal, reported as (2014) 14 SCC 295 in the following words: “16. In view of the above, the legal propositions can be 101ummarized as under: 16.[1] The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. 16.[2] The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. 16.[3] The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. 16.[4] The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. 16.[5] In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.”

63. Similarly in the case of P.L. Tatwal vs. State of Madhya Pradesh, reported as (2014) 11 SCC 431 it was held as follows:

64. In the case of Gokulchand Dwarkadas Morarka vs. The King, (supra), it was pointed out that:- “The sanction to prosecute is an important matter, it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seen to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case.”

65. In the case of Jaswant Singh vs. State of Punjab, reported as AIR 1958 SC 124, the Hon’ble Supreme Court held as follows:

66. In the case of C S Krishnamurthy vs. State of Karnataka, reported as (2005) 4 SCC 81, the Supreme Court after citing the decision of Gokulchand Dwarkadas Morarka vs. The King, reported as, AIR 1948 PC 82 held:

67. In the case of Mohd. Iqbal Ahmed vs. State of Andhra Pradesh, (1979) 4 SCC 172 the Hon’ble Supreme Court has held that the onus of proving that a valid sanction has been obtained is on the prosecution. It has been held:

68. In the case of State of Maharashtra vs. Mahesh G. Jain, reported as (2013) 8 SCC 119, the Supreme Court relied on the decision of Mohd. Iqbal Ahmed (supra) and held as follows: “14.[1] It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. 14.[2] The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution...”

69. Considering the conspectus of decisions above-referred the following legal propositions can be culled out: a) Grant of sanction is a sacrosanct act and is intended to provide safeguard to a public servant against frivolous and vexatious litigation. b) The sanctioning authority after being apprised of all the facts, must be of an opinion that prima-facie a case is made out against the public servant. c) Thus, for a valid sanction the sanctioning authority must be apprised of all the relevant material and relevant facts in relation to the commission of the offence. d) This application of mind by the sanctioning authority is a sine qua non for a valid sanction. e) The ratio of the sanction order must speak for itself and should enunciate that the sanctioning authority has gone through the entire record of the investigation. Thus, the sanction order must expressly show that the sanctioning authority has perused the material placed before it, and after considering the circumstances in the case against the public servant, has granted sanction. f) If the application of mind by the sanctioning authority is not apparent from the sanction order itself then the burden of proving that the entire relevant record was placed before the sanctioning authority rests on the prosecution. The prosecution must establish and satisfy the court by leading evidence that the entire record of investigation was placed before the sanctioning authority.

70. In the present case, the respondents have despairingly failed to discharge the onus of proving that the sanction order dated 21.06.2002 is valid and that all the relevant documents were sent to the sanctioning authority for its perusal. None of the documents that go to demonstrate the innocence of the petitioner viz. the reply to the LR dated 27.06.2001 and the relevant Fax dated 13.01.1998 were shown to have been available to the sanctioning authority. These documents clearly and unequivocally establish that the Fax in question was in fact sent by the Swiss Bank Corporation, however, it is purported to have reached Mr. Barjatya by mistake. Resultantly, the Fax in question was a genuine one, and was not forged or fabricated as alleged by the prosecution.

71. The sanction order dated 21.06.2002 is a verbatim copy of the draft sanction order sent along with the SP’s report on 30.10.2001 and illustrates non-application of mind by the sanctioning authority. I have gone through and compared the draft sanction order and the sanction order dated 21.06.2002 and it clearly appears that the sanctioning authority has given its imprimatur to the draft sanction order without applying its mind to the relevant material. The sanction order dated 21.06.2002 as well as the SP’s report dated 30.10.2001 do not allude to the reply to LR dated 27.06.2001, or the relevant Fax dated 13.01.1998 sent by the Swiss Bank Corporation to Mr. Barjatya. Thus, the sanction order itself does not reflect that the afore-stated relevant documents were examined by the sanctioning authority before granting sanction for prosecution. The sanctioning authority who, purportedly went through the above-mentioned documents, as per the notings of the then Hon’ble Finance Minister, is not even the sanctioning authority that signed the sanction order dated 21.06.2002.

72. In light of the afore-stated circumstance, I am of the view that the case of the prosecution flounders when seen in light of the documents that did not form a part of the documents sent to the sanctioning authority. Therefore, it would be travesty of justice to call it a mere irregularity. There indeed has occasioned a failure of justice, of which the trial court has failed to take cognizance at the stage of framing of charges even after specific contentions were made on behalf of the petitioner in this regard. In view of the foregoing, the sanction order dated 21.06.2002 is invalid for want of due application of mind by the sanctioning authority. Consequently, the cognizance taken by the Special Judge, CBI in framing charges against the petitioner vide order on charge dated 17.12.2005 in RC No.SI[8] E0001 1999 is non-est, void ab-initio, bad in law and in gross violation of the provisions of section 19(1) POCA.

73. Therefore, in view of the foregoing discussion, Issue No.(ii) raised in Writ Petition (Criminal) No. 1401/2002, is answered in the affirmative and it is held that the sanction order dated 21.06.2002 is invalid.

74. The only issue raised is Criminal Revision Petition No.338/2014 is whether the sanction order dated 26.11.2002 is invalid on account of the circumstance of failure to place the relevant documents on record as well as on account of non-application of mind by the sanctioning authority while granting the subject sanction.

75. In relation to this issue the following relevant facts may be set forth: (1) The case bearing RC No. SI[9] E0006 1999 was registered against the petitioner on 07.12.1999 u/s 13(2) read with 13(1)(e) POCA and investigations were taken up against the petitioner by the CBI. (2) The CBI sent a SP's Report along with a cover letter and a list of documents (oral and documentary), on 24.05.2002. The cover letter stated that on the pretext that the relied upon documents are very large in quantity, the said documents were not enclosed with the SP's Report. (3) The letter of the Joint Secretary (Revenue) to the Director General (Income Tax) dated 12.05.2004, specifically alluded to the fact that the documents relied upon by the CBI were not sent to the sanctioning authority. (4) In furtherance thereof, the Director General (Income Tax) (vigilance) sent a letter dated 17.05.2004 to the DIG, CBI asking for the entire record of investigation for the perusal of the Department of Revenue in order to dispose of the representations made by the petitioner to the latter. (5) The DIG, CBI replied to the afore-mentioned letter vide letter dated 15.06.2004, and consequently denied the request of providing the entire record of investigation on the pretext that the matter on the validity of sanction dated 26.11.2002 was sub-judice. Thus, the relevant material was sought by the Department of Revenue only after the sanction order dated 26.11.2002 was passed and even thereafter, the material was not dispatched by the CBI on the ground that the matter was sub-judice. (6) The Special PP on behalf of the official respondents on 11.07.2007 before the Special Judge, had conceded to the fact that only the SP's Report dated 24.05.2002, which did not contain the record of investigation, was sent to the sanctioning authority. (7) The Special Judge while determining the issue of validity of sanction also at para 31 in order dated 28.07.2007 acknowledged that the entire record of investigation was not sent to the sanctioning authority. However, the Special Judge held the sanction to be valid. (8) The High Court vide its judgment and order dated 03.10.2007 stuck down the decision of the Special Judge dated 28.07.2007 on the issue of validity of sanction. The High Court observed on the basis of the abovestated letters, that no case diaries and documents collected during the course of the investigation, as well as statements under 161 and 164 of the Code were sent for the perusal of the sanctioning authority. The High Court directed the Special Judge to again look into the validity of sanction, and determine whether the nonapplication of mind of the sanctioning authority has resulted in any 'failure of justice'. The High Court in its order dated 03.10.2007 also observed that the issue of validity of sanction had been raised at the very initial stage by the petitioner i.e. even before the arguments on charge could be advanced. (9) The Supreme Court vide order dated 22.11.2013 in Criminal Appeal No.1838/2013 upheld the order of the High Court dated 03.10.2007 and also relied on the opinion of the Ministry of Law & Justice dated 05.04.2011 to opine that no documents collected during investigation were placed before the sanctioning authority before it granted the sanction for prosecution dated 26.11.2002. (10) The CVC vide letter dated 13.04.2015, also observed that the sanction order dated 26.11.2002 was not in conformity of the guideline provided in the CBI Manual and reiterated by the DoP&T in Circular dated

76. In view of the afore-stated facts, it becomes crystal clear that the entire record of investigation including documents, and statements of witnesses under sections 161 and 164 of the Code, as well as the case diaries were not placed before the sanctioning authority in order for it to apply its mind before grant of sanction order dated 26.11.2002 and the said sanction order was passed only on the basis of SP’s report dated 24.05.2002. In the first instance itself, the covering letter to the SP's Report dated 24.05.2002 is testament to the fact that the record of investigation in RC No.SI[9] E0006 1999 was not sent to the sanctioning authority on the pretext that the investigation was very large in quantity. Further, the letter dated 12.05.2004 of the Joint Secretary (Revenue) to the Director General (Income Tax) and the letter dated 17.05.2004 of Director General (Income Tax) (Vigilance) sent to the Deputy Inspector General, CBI, expressly mention that the record of investigation was not sent to the sanctioning authority when the sanction for prosecution dated 26.11.2002 was granted. This fact is substantiated further by the decision dated 03.10.2007 of the High Court rendered in Revision Petition No.589/2007 and the decision of the Supreme Court dated 22.11.2013 in Criminal Appeal No. 1838/2013. Therefore, the assertion in the sanction order dated 26.11.2002 that the sanctioning authority has gone through all the relevant documents before the grant of the subject sanction order is incorrect.

77. The law in this behalf has already been considered at length hereinabove in adjudicating the same issue in Writ Petition (Criminal) No.1401/2002 and would apply to the facts and circumstances of the present Criminal Revision Petition No.338/2014 as well on all fours.

78. Resultantly, in view of the decisions of the Supreme Court in M.M. Rajendran (supra), State of Karnataka vs. Ameerjan (supra), CBI v. Ashok Kumar Aggarwal (supra), and in view of para 22.16 of the CBI Manual, the sanction order dated 26.11.2002 is rendered invalid.

79. The Special Judge in its order dated 24.05.2014 lost sight of the established position of law that if the entire material of investigation is not sent to the sanctioning authority, the consequent sanction order becomes invalid on account of non-application of mind by the sanctioning authority. As observed above, a valid sanction is a sine qua non for initiating proceedings under POCA against a public officer. The Special Judge, CBI misdirected himself by taking recourse to section 19(3) POCA. The Special Judge overlooked the mandate that an order is bad in law if it is based on irrelevant material, or if it has failed to consider relevant material. And owing to the fact that the relevant material, (in the instant case, the entire material collected during investigation) was not placed before the Sanctioning Authority, the sanction order dated 26.11.2002 is invalid and the proceedings before the Special Judge are vitiated for want of a valid sanction as per the provisions of section 19(1) POCA.

80. In view of the foregoing, the issue raised in Criminal Revision Petition No. 338/2014 regarding the validity of the sanction order dated 26.11.2002 is invalid, void ab-initio and non-est. Consequently, the order of the Special Judge (CBI) dated 24.05.2014, impugned herein, is set aside and quashed.

81. A proper investigation into crime is one of the essentials of the criminal justice system and an integral facet of rule of law. The investigation by the police under the Code has to be fair, impartial and uninfluenced by external influences. Where investigation into crime is handled by the CBI under the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as ‘the DSPE Act’), the same principles apply and the CBI as a premier investigating agency is supposed to discharge its responsibility with competence, promptness, fairness, uninfluenced and unhindered by external influences. (Reference: Manohar Lal Sharma vs. Principal Secretary, reported as (2014) 2 SCC 532).

82. Reference can be made to the decision of the Hon'ble Supreme Court in P. Sirajuddin vs. State of Madras reported as 1970 SCC (CRI) 240 wherein it was observed as under:-

83. In Manohar Lal Sharma (supra) an affidavit was filed on behalf of the Central Government elaborating its stand that the power of supervision for investigation to be conducted by the CBI has been shifted from the Government to the CVC.

84. The above stand of the Central Government is in keeping with the mandate of the provisions of Section 8 of the CVC Act, 2003 (hereinafter referred to as 'the CVC Act') stipulates that the Commission shall exercise superintendence over the functioning of the DSPE Act insofar as it relates to the investigation of offences alleged to have been committed under the POCA or an offence with which a public servant specified in sub-Section 2 of Section 8 of the CVC Act may under the Code be charged at the same trial. The provision further stipulates that the commission shall give directions to the CBI for the purpose of discharging the responsibilities entrusted to the former under the provisions of Section 4 of the DSPE Act. Despite that the opinion of the CVC that the sanction orders dated 21.06.2002 and 26.11.2002 were invalid, has been ignored and overridden by the official respondents.

85. In Manohar Lal (supra) the CBI reiterated that the sole purpose for its seeking powers beyond what had been granted at this stage was to make the Director more empowered and ensure a more professional, efficient, expeditious and impartial conduct of CBI investigations in sync with its motto "industry, impartiality and integrity" and also to ensure the highest levels of disciplinary and ethical conduct by CBI personnel.

86. In Adesh Kumar Gupta vs. CBI in Writ Petition (Criminal) No.725/2015 decided on 02.09.2015 this court alluded to the luminous observations of the United States Supreme Court in Viteralli v. Seton, 359 U.S. 535: 3L.Ed. 1012 which was echoed in the landmark decision of the Hon'ble Supreme Court of India in R.D. Shetty vs. International Airport Authority of India and Ors., reported as AIR 1979 SC 1628 that an executive agency must be rigorously held to the standards by which it professes its action to be judged.

87. In Adesh Kumar Gupta (supra) this Court further observed in para 20 of the report that "It requires no reiteration that observance of due process of law is fundamental in the effective functioning of the executive machinery. The Supreme Court, since 1950, in the celebrated decision in A.K. Gopalan vs. State of Madras, reported as AIR 1950 SC 27 has emphasized and reemphasized the importance of following due process. The CBI is a premier investigating agency professing high standards of professional integrity and must be held strictly to those standards."

88. In Zahira Habibulla H. Sheikh and Another vs. State of Gujarat and Others reported as (2004) 4 SCC 158 the Hon'ble Supreme Court considered how justice itself can become a victim if the investigation is not fair. The Court in paragraph 18 of the report expressed thus:- "18...... When the investigating agency helps the accused, the witnesses are threatened to depose falsely and the prosecutor acts in a manner as if he was defending the accused, and the court was acting merely as an onlooker and when there is no fair trial at all, justice becomes the victim."

89. In State of Haryana vs.Bhajan Lal, reported as 1992 Supp (1) SCC 335, the Supreme Court listed numerous categories where the High Court is entitled to exercise its extraordinary powers under Article 226 of the Constitution of India or inherent power under section 482 of the Code to secure the ends of justice and to prevent abuse of process of any court. One of the numerous categories listed by the Supreme Court reads as follows: “(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

90. In this background, I am compelled to comment on the manner in which the investigation in the subject case has been carried out. The investigation smacks of intentional mischief to misdirect the investigation as well as withhold material evidence which would exonerate the petitioner. These proceedings asseverate to be a glaring case of suggestion falsi, suppresio veri (Suppression of the truth is [equivalent to] the expression of what is false), and hence mala fide. It does not seem to be merely a case of faulty investigation but is seemingly an investigation coloured with motivation or an attempt to ensure that certain persons can go scot free. (Ref: Dayal Singh & Ors vs. State of Uttranchal, reported as (2012) 8 SCC 263). The above conclusion can be gathered from the following facts: a) In view of the backdrop that the subject criminal cases came to be registered only after representations were sent by the petitioner against his seniors to the Revenue Secretary, and clarification was sought by the Revenue Secretary from those seniors. b) Mr. Barjatya, whose premises were raided on 01.01.1998 and a debit advice from the Swiss Bank was recovered from his Fax machine, was not prosecuted at all for the reasons best known to the CBI. c) Furthermore, the CBI relied upon the documents provided by Mr. Mandeep Kapur, Chartered Accountant of Mr. Barjatya obtained from Mr. Eric Huggenberger, attorney of the Swiss Bank Corporation, to prove a case against the petitioner, who had conducted the said raid. In the reply to LR dated 27.06.2001, the Swiss Bank Corporation did not confirm the authenticity of the above-mentioned letter. The CBI did not further inquire into the same. Such a procedure of investigation is unheard of and gives rise to a reasonable suspicion with respect to the intentions of the investigating agency. d) The conduct of the CBI brings to mind a paraphrase of the often quoted aphorism by George Orwell: "All [men] are equal, but some are more equal than the others." -George Orwell, Animal Farm e) The Swiss Bank Corporation in its Reply to the LR dated 27.06.2001 had asked for further details of Mr. Barjatya and other persons named in the LR, like date of birth, address, etc. to verify if they operate any account in the former bank. That was not done for reasons best known to the official respondents. The reply to the LR dated 27.06.2001 also did not confirm about the genuineness of the letter obtained by Mr. Mandeep Kapur, Chartered Accountant of Mr. Barjatya from Mr. Eric Huggenberger, attorney of the Swiss Bank Corporation. The CBI made no further inquiries in relation to any account of Mr. Barjatya in the Swiss Bank Corporation, nor did it confirm the genuineness of the afore-stated letter obtained by Mr. Mandeep Kapur, Chartered Accountant. f) It is noticed that the CBI had sent a letter to the Law Secretary vide D.O. No.8298/3/1/99(Pt file)/2011/UW IV dated 05.08.2011 wherein he was asked to reconsider his opinion dated 05.04.2011, and it is only after this that the former withdrew his opinion without following proper procedure as is evident from the letter of Ministry of Law & Justice bearing reference F.No.31/2/2014-Vig dated 31.03.2014. g) As has been observed above, the investigating agency also did not send the Reply to LR dated 27.06.2001 and the relevant Fax from the Swiss Bank dated 13.01.1998 sent to Mr. Barjatya. These documents clearly establish that the Fax in question was a genuine fax and establish the innocence of the petitioner qua the charges of fabricating the Fax in question. h) The investigation record in RC No.SI[9] E0006 1999 was not sent to the sanctioning authority before it granted the sanction dated 26.11.2002. The act of not placing relevant material before the sanctioning authority itself amounts to mala-fide. i) The entire case of the CBI rested on the testimony of Mr. Abhishek Verma, the approver in the instant case, who vide his application dated 31.07.2014 had retracted his statement and stated that he had made the earlier statement under coercion and threat from the Investigating Officer in the instant case. The testimony of Mr. Abhishek Verma as opined by the learned Special Judge vide its order on approver dated 07.09.2001 is the basis of the allegations against the petitioner in RC No.SI[8] E0001 1999. The official respondents themselves later assert that Mr. Abhishek Verma has criminal antecedents and is admittedly not creditworthy. j) The opinion of the CVC dated 13.04.2015 were also not acted upon promptly by the CBI, despite the CVC being the supervising body for the CBI. k) It is further noticed from the order of the CAT dated 16.12.2011 that the respondents have continuously opposed the application for the revocation of the suspension of the petitioner from service. l) The opinion of Ministry of Law and Justice dated 05.04.2011 was also revoked consequent to a letter by the CBI vide D.O. No. 8298/3/1/99(Pt file)/2011/UW IV dated 05.08.2011 to the Law Secretary, requesting him to reconsider his opinion.

91. In view of the foregoing, the substratum and the gravamen of the Charge against the petitioner in R.C. No.SI[8] E 00011999 founders is denuded and without any substance whatsoever.

92. A couplet by Kaif Bhopali is apposite: "Janab-e-‘kaif’ yeh Dilli hai 'Mir' o 'Ghalib' ki, Yahan Kisi Ki Taraf-dariyan Nahin Chaltin." -Kaif Bhopali

93. Accordingly, the present petitions are allowed. No costs.

94. The orders granting sanction dated 21.06.2002 and 26.11.2002 passed by the Competent Authority, Department of Revenue, Ministry of Finance, Government of India; the Charge Sheet in RC No.SI[8] E0001 1999 submitted by the CBI in the Court of the Special Judge, CBI, Delhi dated 28.06.2002; the order on charge dated 17.12.2005 in R.C. No.SI[8] E0001 1999 in CC No.26 of 2002 passed by the Special Judge, CBI, Delhi; and the order of the Special Judge, CBI dated 24.05.2014 in RC No. SI[9] E0006 1999 in CC NO. 55/02 are hereby set aside and quashed. All the pending applications also stand disposed of.

95. The original records have been perused and the same be sealed and returned to the Department of Revenue, Ministry of Finance.

96. The petitioner has suffered great prejudice since 1998 on account of the prolonged litigation between him and the official respondents. He has endured suffering, humiliation and considerable trauma. A sense of dubiety has persisted qua the petitioner since long which reminds one of the lyrics in the famous song by Bob Dylan: "How many roads must a man walk down Before you call him a man?”

97. Normally, the case would have been remitted back to the sanctioning authority for reconsideration on a fresh order of sanction. However, in the circumstance that the instant case commenced as far back as in 1998 and eighteen years have since lapsed; and in the light of the decision of the Supreme Court in Mansukhlal Vithaldas Chauhan vs. State of Gujarat (supra), in my opinion it would be unfair, unjust and contrary to the interests of justice to expose the petitioner to another round of litigation and keep him on trial for an indefinitely long period. It would also offend the principle enshrined in the provisions of Article 21 of the Constitution of India. A quietus must be applied to the present proceedings. Thus, in the interest of justice, finality is given to these proceedings and it is directed that no further proceedings in relation to the subject sanction orders be initiated against the SIDDHARTH MRIDUL, J JANUARY 13, 2016 dn