TaxTMI 
TaxTMI 
2016 (1) TMI 1396
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....dated 29.01.1999 in CC No.26 of 2002 passed by the Special Judge, CBI, Delhi; and the order of the Special Judge, CBI 03 (PC Act) dated 24.05.2014 in RC No. SI9 1999 E0006 dated 07.12.1999 in CC No. 55/02. The present petitions raise common issues and are being disposed of by this common order. 2. According to the petitioner, the genesis of the present litigation is the disagreement between him and his immediate superior qua the discharge of the former's official duties, which were of a sensitive nature. The present is a manifestation of how the career of an IRS Officer has been blighted by litigation between him on the one hand and the official respondents on the other. The present is the umpteenth round of litigation between the parties arising out of the subject RCs. 3. At the very outset it is noticed that as a consequence of the registration of the subject RCs, the petitioner was placed under suspension which was renewed from time to time for a period of over 14 years during the pendency of a Disciplinary Enquiry. The suspension was finally revoked and set aside by the Hon'ble Supreme Court of India vide order dated 22.11.2013 rendered in Civil Appeal No. 9454/2013, ....
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....cepted the latter's hospitality and took lunch at Maurya Sheraton Hotel, Delhi paid for by the latter. However, it is uncertain as to who were the said 9 officers out of the total 13 officers/officials of the search party, who are alleged to have partaken lunch at the expense of Mr. Barjatya. (5) Mr. Barjatya filed a complaint dated 04.01.1998 addressed to the Director, Directorate of Enforcement, wherein he alleged that the fax in question from the Swiss Bank Corporation, Zurich, Switzerland was forged and planted in his premises during the course of search on 01.09.1998. (6) The said Mr. Barjatya was arrested on 28.01.1998 on the basis of the Fax in question by the Enforcement Directorate (Delhi Zone). It is an admitted position that subsequent to a complaint filed on behalf of Mr. Barjatya, that has fructified into the subject RC No.SI8 E 0001 1999 dated 29.01.1999 as well as order granting sanction for prosecution dated 21.06.2002 and order framing charges dated 17.12.2012, no investigation whatsoever has been conducted against the said Mr. Barjatya qua the Fax in question by the official respondents. (7) Later in March, 1998 Mr. Barjatya submitted to the Enforcement D....
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.... 1998. An explanation was also sought by the Revenue Secretary based on the afore-mentioned representations by the petitioner from the Director of Enforcement. It is stated by the petitioner that perturbed by this, the Director forwarded the year old complaint of Mr. Barjatya dated 04.01.1998 to the Central Vigilance Commission (hereinafter referred to as 'CVC') on 09.12.1998. The CVC vide letter dated 28.12.1998 ordered the CBI to investigate the said complaint made by Mr. Barjatya. (10) Consequently, the subject RC No.SI8 E 0001 1999 came to be registered on the basis of a written complaint of Mr. Abhijit Chakervertty, Additional Director, Enforcement Directorate, New Delhi vide letter No.A-11/13/96 dated 25.01.1999, addressed to Shri Balwinder Singh, DIG, SU, CBI, New Delhi. It is an admitted position that the subject RC is substantially founded on the basis of the material provided by the latter to the Director, Enforcement Directorate. (11) A criminal case bearing RC No.SI8 1999 E 0001 was registered on 29.01.1999 under Section 120-B IPC read with Sections 195/467/469/471 IPC and Sections 7 & 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter....
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....s on 31.12.97 and 1.1.98 may be recorded. 4) The nature of the transaction in the original fax message of the bank value dated 23.12.97 and the forged fax message recovered on 1.1.98 be compared and any discrepancies in the format of the fax and the amount of the transaction in question be identified. Witness statement of the concerned bank officials be recorded. 5) To ascertain the telephone number in Delhi to which the original fax message of the Swiss Bank Corporation, Zurich value dated 23.12.97 was faxed and to obtain a witness statement of the officer of the bank who actually faxed or under whose directions it was faxed. 6) To identify the holders of the account in the name of Royalle Foundation along with the names, addresses, telephone number, fax number and E-mail numbers. If possible to find out, whether they have any links with Mr. Barjatya, Mr. Abhishek Verma, Ms. Asmita Verma and Mr. Ashok Kumar Aggarwal. 7) To obtain all documents and details of the accounts held by Ms. Asmita Verma, Mr. Abhishek Verma, Mrs. Kamal Kumar and Mr. Subhash Chandra Barjatya with Swiss Bank Corporation, Zurich, with the date of opening of account, account....
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.... law and ordinarily followed in Switzerland. Originals may be kept in safe custody. 8. As the instant case is at a crucial stage of investigation, it is requested that the competent authority in Switzerland may be requested to complete the investigation as soon as possible. 9. If required, the officers of the CBI can be deputed by the Government of India to come to Switzerland and to assist the concerned Swiss authorities in the prosecution of this letter rogatory. Sd/- 29.1.2001 SPECIAL JUDGE TIS HAZARI COURTS DELHI" (17) It is pertinent to note that in the LR dated 29.01.2001, the Fax in question was specifically alleged to be a 'forged' document. (18) In response thereto the competent judicial authority in Switzerland responded to the LR dated 29.01.2001 by way of its reply dated 27.06.2001 as follows:- "UBS AG Postfach, 8098 Zurich Office of the District Investigation Magistrate IV Canton Zurich Mr. Ivo Hoppler Postbox 9680, 8036 Zurich (seal with date) 27 June 2001 Your Ref. 3/2001/000281 Our Ref. TT83 C363-YJI-2001-2315 Dear Mr. Hoppler, This has refer....
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....der whether such an explanation would be of any use in the given situation. If it is necessary, we would ask for further details of the persons such as date of birth, address etc. with which a formal identification would be carried out. Yours faithfully, UBS AG Sd/- Sd/- Urs Wenzel Patrik Meier Legal Consul Procurist" (19) At this juncture one relevant fact emerges: That the fax in question was dispatched by the Swiss Bank Corporation to Mr. Barjatya albeit by mistake as asserted in the response to the LR dated 27.06.2001. (20) It is seen from the reply to the LR dated 27.06.2001 that apart from the answer that the Fax in question was sent to Mr. Barjatya by mistake by the Swiss Bank Corporation, none of the other questions in the LR dated 29.01.2001, were clearly, unambiguously, and unequivocally answered by the Swiss Bank Corporation. (21) It would be relevant to observe from the said reply dated 27.06.2001 that the Competent Judicial Authority in Switzerland queried for further details of persons mentioned in the LR so as to enable the former to make further enquiries as to whether the said persons operated any acco....
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....k Verma Prosecution may not be able to prove the existence of criminal conspiracy between principal accused Ashok Kumar Aggarwal and the applicant/accused Abhishek Verma, forging of debit advice by the applicant accused on the direction of accused Ashok Kumar Aggarwal, demand and acceptance of illegal gratification of Rs. 10 lacs from applicant/accused Abhishek Verma by principal accused Ashok Kumar Aggarwal and certain other material facts. I am, therefore, of the belief that it would be expedient in the interest of justice to tender pardon to applicant/accused Abhishek Verma, with a view to unearth all facts of conspiracy and to establish the role played by principal accused Ashok Kr. Aggarwal, in framing Subhash Chander Barjartya in a FERA case and the receipt of illegal gratification of Rs. 10,00,000/- by him." (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 an....
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....ein. (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 r....
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....atory from the Court of Special Judge for CBI cases (referred to in para 18 above), confirming the genuineness of the alleged fax seized by E.D. officials, received by the CBI on 30.07.2001 and not narrated/included in the SP's report dated 30.10.2001 while seeking sanction for prosecution from the sanctioning authority, any case is made out against Shri Aggarwal as alleged by the CBI in the SP's report. (iii) Whether under such circumstances, it would be appropriate and just for the sanctioning authority to withdraw the sanction for prosecution already granted against Shri A.K. Aggarwal (iv) Whether the department should await further judicial pronouncement in the case." (37) The present writ petition was filed by the petitioner only on 04.12.2012 as he asserts that it is only when the impugned charge sheet dated 28.06.2002 was filed by the respondent that the former became aware and acquired copies of the reply addressed by the competent judicial authority in Switzerland dated 27.06.2001 to the LR dated 29.01.2001 as well as communication dated 13.01.1998 sent by the Swiss Bank Corporation to Mr. Barjatya. (38) The petitioner asserts that it is onl....
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....vations 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." Emphasis Supplied. (42) On a VIP reference from the Ministry of Finance relating to the legality of sanction for prosecution dated 21.06.2002 against the petitioner, the Ministry of Law & Justice tendered its opinion by way of reference bearing FTS No.167/JS&LA(MKS)/2011 dated 05.04.2011. The opinion stated as follows: "15. In the instant cases, in the sanction orders it is mentioned that sanction has been accorded after fully and carefully examining the material placed before hi....
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....e OM No.014/ITX/016/241902 dated 20.03.2014 of the CVC, the Ministry of Law & Justice vide F.No.31/2/2014-Vig dated 31.03.2014 referred to Para 83 of O&M instructions for the Department of Legal Affairs, wherein the procedure of tendering an opinion by the Ministry of Law & Justice is provided for, and opined as below: ".......(iv) Though, it is not specifically mentioned in the O&M instructions that once a legal opinion is given in a matter, it can be reviewed only with the approval of an authority one step above, it is the practice in this department that once a legal opinion is given in a matter by an officer, it is usually reviewed with the approval of an officer higher in rank to the officer who earlier expressed the opinion. In the present case, the opinion dated 5.4.2011 was approved by the then Law Secretary (Sh. D.R. Meena). At the time of reconsideration i.e. when the then Law Secretary (Sh. D.R. Meena) had reconsidered the earlier opinion dated 5.4.2011 as withdrawn vide opinion dated 8.8.2011, the matter was not brought to the notice of the then Hon'ble Minister of Law & Justice and had been tendered at his own level." (47) The petitioner by way of Origi....
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....as the decision making process by the sanctioning authority is concerned, it is for consideration as to whether:- (i) The present representation preferred by Shri Aggarwal for withdrawal of prosecution sanction in question may be accepted; Or (ii) Comments of Ministry of Law & Justice may be called for to proceed further in the matter. Submitted, please." Emphasis Supplied. (50) Thereafter, the CVC vide its office memorandum No.014/ITX/016/280 dated 13.04.2015 observed: "2. The Commission while perusing the comments of CBI has observed that the sanction order dated 21.06.2002 and 26.11.2002 granted by the sanctioning authority in respect of Shri Ashok Kumar Aggarwal are not in conformity with the guidelines reiterated by DoP&T in circular dated 26.03.2015. Hence the Commission would advise administrative department i.e. D/o Revenue to take appropriate steps to undo the irregularity, if any." (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....
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....ation 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....
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....shed 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 wh....
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....ther 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." Emphasis Supplied. (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 state....
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.... (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." Emphasis Supplied. (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 ex- post 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....
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....al Judge directing him to record a finding in terms of clause (b) of sub-section (3) and sub- section (4) of Section 19 of POCA that whether the non- production of relevant material has resulted in any 'failure of justice'. The said order reads as follows: "28. So, this fact mentioned in the sanction order dated 26.11.2002 stating that "case diaries and documents collected by the investigating officer during the course of investigation, statement of witnesses under section 161 CrPC and under section 164 CrPC was considered by the sanctioning authority" is factually incorrect. it leads to the conclusion that before according sanction the sanctioning authority has not considered the entire material available with the investigating agency, particularly the evidence of the witnesses recorded under section 161 CrPC, under section 164 CrPC and case diaries and the documents. Only list of witnesses and list of evidence (oral and documentary) were sent to the sanctioning authority. So, in light of these facts, it has to be seen as to whether it has resulted "in failure of justice" as envisaged in section 19(3) (b) of the Act. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx....
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....) 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 SI9 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 orde....
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....o 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 ....
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....rate 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 h....
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....re 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. eve....
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....otection 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.)....
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....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 17.1....
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....versed 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 t....
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....mmitted 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 c....
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....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 exerc....
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.... 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 proc....
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....inst 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 pre- judging 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 furt....
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....ning 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 da....
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....titution. But the discretion is judicial if the petition makes a claim which is frivolous, vexatious, or prima facie unjust, or may not appropriately be tried in a petition invoking extraordinary jurisdiction, the Court may decline to entertain the petition. But a party claiming to be aggrieved by the action of a public body or authority on the plea that the action is unlawful, high-handed, arbitrary or unjust is entitled to a hearing of its petition on the merits. Apparently the petition filed by the Company did not raise any complicated questions of fact for determination, and the claim could not be characterized as frivolous, vexatious or unjust. The High Court has given no reasons for dismissing the petition in limine, and on a consideration of the averments in the petition and the materials placed before the Court we are satisfied that the Company was entitled to have its grievance against the action of the Municipality, which was prima facie unjust, tried. Xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 13. Mr Gokhale appearing on behalf of the Municipality urged that the petition filed by the Company apparently raised questions of fact which in the view of the Hig....
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....er Section 4 by the Collector. 16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in-reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit." 36. Following the decision of the Supreme Court in Gunwant Kaur (supra), the Hon'ble Supreme Court in NTPC vs. Mahesh Datta, reported as (2009) 8 SCC 339, held as follows: "39. It is not a case where oral evidence was required to be taken. There is no law that the High Court is denied or debarred from entering into a disputed question of fact. The issue will have to be determined keeping in view the fact situation obtaining in each case. If a disputed question can be determined on the basis of the documents and/or affidavit, the High Court may not ordinarily refuse to do so. In a given ....
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..../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.SI8 E 0001 1999 i....
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.... to this Court, could be raised at the stage of final arguments after the trial or even at the appellate stage." 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: "6. A plain reading of Section 19(1) (supra) leaves no manner of doubt that the same is couched in mandatory terms and forbids courts from taking cognizance of any offence punishable under Sections 7, 10, 11, 13 and 15 against public servants except with the previous sanction of the competent authority enumerated in clauses (a), (b) and (c) to sub-section (1) of Section 19. The provision contained in sub-section (1) would operate in absolute terms but for the presence of sub-section (3) to Section 19 to which we shall presently turn. But before we ....
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....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....
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....held as follows: "11. .....The present is not the case where there has been mere irregularity, error or omission in the order of sanction as required under sub-section (1) of Section 19 of the Act. It goes to the root of the prosecution case. Sub-section (1) of Section 19 clearly prohibits that the Court shall not take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction as stated in clauses (a), (b) and (c)." 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 quest....
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....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 Finance dated 05.04.2011 also emphasizes the fact that the sanction order 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 da....
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....te that proper sanction was accorded by the City Commissioner of Police, the witness has also stated that the report even though a detailed one was placed before the Commissioner by him and on consideration of which the Commissioner of Police had accorded the sanction, it appears to us that from such deposition, it cannot be held conclusively that all the relevant materials including the statements recorded by the Investigating Officer had been placed before the Commissioner of Police. It appears that the Commissioner of Police had occasion to consider a report of the Vigilance Department. Even if such report is a detailed one, such report cannot be held to be the complete records required to be considered for sanction on application of mind to the relevant materials on records. Therefore, it cannot be held that the view taken by the High Court that there was no proper sanction in the instant case is without any basis. It, however, appears to us that if the sanction had not been accorded for which the criminal case could have been initiated against the respondent, there was no occasion either for the trial court or for the appeal court to consider the prosecution case on merits. Th....
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....p; tion 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....
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....d. 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 s....
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....ore it and after a consideration of all the circumstances of the case sanctioned the prosecution and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case." 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: "9. Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order." Emphasis Supplied. 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: "3 .....It is incumbent on the pro....
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....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 sho....
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....e 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.SI8 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 ....
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....cial 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 above-stated 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 non-application 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....
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....pecial 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. C....
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....ion 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 ....
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....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 ....
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....oercion 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.SI8 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.SI8 E 00011999 founders is denuded and without any substance whatsoever. 92. A couple....