Kishwar Jahan and Another vs The State of West Bengal and Others

Nadira Patherya, J.—This is an application challenging the order dated31st October,2008 whereby sanction for prosecution has been granted in respect of the Respondent No. 4, 5 and 6.

The case of the Petitioner is that upon completion of investigation by the Central Bureau of Investigation (CBI) a final report was submitted u/s 173 of the Code of Criminal Procedure. On the basis thereof proceedings were initiated in the Court of the Metropolitan Magistrate and on 22nd September, 2008, the Magistrate passed an order that no sanction was required. Inspite thereof by order dated 31st October, 2008 sanction has been granted u/s 120B of the Code of Criminal Procedure read with Section 506 of the Indian Penal Code (IPC). In order to protect the Respondent Nos. 4, 5 and 6 no sanction has been granted u/s 306 of the IPC. In fact no sanction was needed as the acts of the private Respondents is not in the course of their respective duty. There is no reason for non-inclusion of Section 306 of the IPC in the order passed. By not including Section 306 the authorities have sought to nullity the findings in (2008) CHN 857. The said decision has been upheld by the Appellate Court and is pending before the Supreme Court of India. It is only at hearing before the Supreme Court of India that the order dated 31st October, 2008 was shown and on basis whereof bail was granted to the private Respondent. Section 506 and Section 120B are bailable offences but Section 306 is a non-bailable offence. Therefore, the authorities to protect the private Respondents their officers have not granted sanction u/s 306. The only purpose for non-grant of sanction is to protect its officers. Inspite of all ingredients of Section 306 being present the same was not included. Reliance is placed on 2003 CrLJ 710, PP Unnikrishnan and Another Vs. Puttiyottil Alikutty Anr Another, and P.K. Pradhan Vs. The State of Sikkim represented by the Central Bureau of Investigation, The sanction granted was not necessary. Therefore, for non-inclusion of Section 306, the order dated 31st October, 2008 is rendered bad and liable to be set aside.

Counsel for the State submits that Section 506 deals with conspiracy to break the marriage of Priyanka and Rizwanur. There was no material on evidence that the private Respondents abetted in the suicide of the victim, therefore, Section 306 has not been included. Non-inclusion of Section 306 can always be argued before the Trial Court and need not be challenged in writ proceedings as held in State of Punjab Vs. Vinod Kumar, . A sanction order is to be passed by application of mind of the materials gathered by the investigating officer, in the course of investigation along with other materials prior to grant of sanction. The conclusion reached must be independent on the basis of facts and materials placed. Reasons need not be stated and the order dated 31st October, 2008 is passed on documents collected and charge-sheet filed. In passing the order for sanction neither has jurisdiction been exceeded nor is their lack of exercise of jurisdiction. In fact the question of sanction can be raised at any stage as held in 2001 Cri LJ 1234 . As the order dated 31st October, 2008 has been passed after due consideration of all documents and charge-sheet filed the same need not be interfered with.

Counsel for Central Bureau of Investigation (CBI) submits that all the conditions necessary for issuance of sanction u/s 197 has been satisfied. In fact no sanction was needed as held by the Metropolitan Magistrate on 22nd September, 2008. The only reason for obtaining sanction is by way of abundant caution as it happens in many cases when no sanction is taken the officers approach the Court, on the ground that sanction ought to have been taken. This delays the proceedings, therefore, sanction was taken. In fact the Respondent No. 3 is not a Government employee and, therefore, no sanction was necessary.

Counsel for the private Respondent Nos. 5 and 6 submits that it was the CBI which sought sanction in respect of all three officers as will appear from Paragraph 6 of the charge-sheet filed. Such charge-sheet has been prepared on the basis of all documents submitted. No Narazgi petition (objection) was raised before the Magistrate which could have been done and re-investigation directed. It was at the instance of CBI that sanction was sought and sanction granted. The sanction granted has been accepted by CBI. A supplemental charge-sheet has also been issued and the order of the Metropolitan Magistrate on 22nd September, 2008 has been challenged before the Sessions Court and is pending adjudication. Reliance is placed on the decisions reported in Rajendra Kumar Vs. State of U.P., and (1996) 1 SCC 542. 2003 CrLJ 710 is inapplicable in the facts of the instant case. No materials exist for grant of sanction u/s 306.

Counsel for the Respondent No. 4 submits that it is the de facto complainant who has filed this application, for either setting aside the order dated 31st October, 2008 or inclusion of Section 306. The power of the Writ Court to interfere in matters of sanction granted u/s 197 of the Code of Criminal Procedure is limited, as held in Rajendra Kumar Vs. State of U.P., . The stand of the writ Petitioner is inconsistent as according to the writ Petitioner sufficient grounds exists for grant of sanction u/s 306 and inspite thereof in fact no sanction was needed. Prayers (a) and (b) are inconsistent to each other as no offence has been made out u/s 306. Therefore, the same has not been included. In fact the Petitioner is calling upon the Court in its writ jurisdiction to form an opinion that an offence u/s 306 exists. But such discretion is to be exercised by the employer and by this writ petition the Petitioner seeks to deprive the employer or the sanctioning authority of such powers. In the event the High Court remands the matter to the sanctioning authority, the sanctioning authority will have to give effect to the High Court''s decision which has been deprecated in the decision reported in State of Bihar and Another Vs. P.P. Sharma, IAS and Another, The sanction can be granted at any stage and for the said proposition reliance is placed on 1999 CrLJ 3500 and Sankaran Moitra Vs. Sadhna Das and Another, Therefore, no order be passed on this application.

Counsel for the Petitioner-in-reply submits that Chauhans case reported in Rajendra Kumar Vs. State of U.P., is distinguishable on facts as in the reported decision no sanction was granted. The grounds set out in Paragraph 73 of the decision cannot be exhaustive. The powers of the Writ Court under Article 226 is not limited but can be exercised in the situation envisaged as held in the following decisions:

Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another,

In the matter of: Under Article 143 of the Constitution of India,

(1996) 2 SCC 679 para 20;

K. Venkatachalam Vs. A Swamickan and Another,

Rohtas Industries Ltd. and Another Vs. Rohtas Industries Staff Union and Others, and

(1997) 3 SCC 261.

There is no substantive offence as mentioned in the charge-sheet. The term "substantive" used is not to be found in any statute. The only difference existing is bailable and non-bailable offence. Para 3.33 of the charge-sheet deals with exercise of powers u/s 209. Such power has been exercised and matter sent to the Sessions Court. In this context, Sections 225, 226, 227 and 228 of the Code of Criminal Procedure ought to be looked into. Reliance is also placed on K. Satwant Singh Vs. The State of Punjab, . No reason has been given for non-inclusion of Section 306. An order passed u/s 197 is an administrative order and the circumstances under which sanction be granted has been set out in P.K. Pradhan Vs. The State of Sikkim represented by the Central Bureau of Investigation, ; PP Unnikrishnan and Another Vs. Puttiyottil Alikutty Anr Another, and 2003 CrLJ 710. The only intention of the Petitioner is to ensure fair trial.

The Advocate General for the State relies on Epuru Sudhakar and Another Vs. Govt. of A.P. and Others, for the proposition that judicial review may not be exercised in certain cases and the present case calls for no interference by Court as the validity of the dying declaration is not before the Court and the case is against the accused. Therefore, no legal right vests in the writ Petitioners to file the instant application. Reliance has been placed on Veerappa Pillai Vs. Raman and Raman Ltd. and Others, and AIR 1963 SC 507. The mother and brother of the victim have no personal right nor has the same been infringed. Therefore, the writ petition is not maintainable. All materials under Sections 161 and 164 including the charge-sheet, seized documents, medical evidence and case diary will be re-assessed.

Counsel for the Respondent No. 4 submits that the Court in its writ jurisdiction has wide powers but will exercise its discretion depending on the facts of each case. As held in Rohtas Industries Ltd. and Another Vs. Rohtas Industries Staff Union and Others, Article 226 is applicable in cases where the tests are satisfied. Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, is distinguishable on facts. In that case a legal right existed which was affected, therefore, interference was justified. Not so in the instant case as it has been filed by persons who have no legal right. In the matter of: Under Article 143 of the Constitution of India, ; K. Venkatachalam Vs. A Swamickan and Another, ; Rohtas Industries Ltd. and Another Vs. Rohtas Industries Staff Union and Others, are not cases of sanction. K. Venkatachalam Vs. A Swamickan and Another, is distinguishable as the Cr.P.C is a complete code and the reliefs sought here can be granted under the said code. In none of the cases did the de facto complainant file an application. It was the accused who filed an application in (2008) 1 SCC 397. The charge-sheet has not been challenged and lack of grant of sanction can be considered later and not at the threshold stage. Therefore, the Petitioner is not remediless. In K. Satwant Singh Vs. The State of Punjab, the accused filed proceedings. Therefore, the de facto complainant has no legal right to challenge the sanction order.

Having considered the submissions of the parties the Final Report of the CBI has been approved by the Supreme Court and on the basis thereof trial is to proceed.

Three broad issues arise for consideration -

(i) Whether it should have included Section 306 besides Section 120B and Section 560 of the IPC ?

(ii)Whether in writ proceedings the said issues can be decided ?

As regards issue No. (i) in view of ( State of Punjab Vs. Vinod Kumar, it will not be proper for this Court to express any opinion on the validity, adequacy or need for sanction as the respective parties will be entitled to raise these issues before the Trial Court at the appropriate stage as any observation made on the merits is likely to prejudice either party and, therefore, no finding is made on issue No. (i) except that the parties will be at liberty to raise these issues before the Trial Court at the appropriate stage.

Admittedly, a sanction order is administrative in nature and as held in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, he Court does not sit as a Court of appeal when reviewing an administrative order as it has no expertise to correct an administrative decision and substitution of decision may be fallible. A sanction order is to be examined in the light of the factors laid down in the said decision viz.:

(i) Whether a decision-making authority exceeded its powers?;

(ii)committed an error of law;

(iii)committed a breach of the rules of natural justice;

(iv)reached a decision which no reasonable tribunal would have reached; or

(v)abused its powers.

On a reading of the Sanction Order dated 31-08-2008 it appears that all documents submitted by C.B.I were placed before the Governor and the material collected in course of investigation were considered and only thereafter sanction has been accorded. Therefore, to say that there has been abuse of powers or decision influenced by extraneous considerations would amount to pre-judging the issue. In fact on the basis of the said factors the Sanction Order has not been challenged.

The only ground taken is that no hearing was given. This cannot constitute a ground for setting aside the sanction dated 31-08-2009 in view of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat,

The decisions relied on with regard to Section 197 of the Code of Criminal Procedure were in Criminal Appeals and from applications filed by the accused and not in proceedings filed under Article 226 of the Constitution of India.

As the Sanction Order has not been issued in breach of any of the factors set out hereinabove, the same cannot be faulted.

As regards Issue No. (ii) although counsel for the Petitioner contended that the documents submitted included the Suicide Note too but to give a purposeful interpretation to such Suicide Note is not within the domain of the Writ Court, as the same would tantamount to usurping the powers of the Sessions Court.

Section 216 of the Code of Criminal Procedure permits alteration of charge by the Sessions Court and sanction for such charge, therefore, the said issue is left open for determination by the Trial Court at the appropriate stage.

There is no dispute with the proposition of law laid down in Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, In the matter of: Under Article 143 of the Constitution of India, K. Venkatachalam Vs. A Swamickan and Another, Rohtas Industries Ltd. and Another Vs. Rohtas Industries Staff Union and Others, except that none of these cases dealt with grant of sanction u/s 197 of the Cr.P.C and were cases of breach of constitutional provisions which is not the case here.

In seeking a fair investigation the Petitioners seek adjudication on issues which in writ jurisdiction cannot be entertained as the Code of Criminal Procedure is a complete code.

In view of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, wherein the grounds on which the High Court in its writ jurisdiction can interfere in matters of sanction u/s 197 has been decided, therefore, all the decisions relied on by the Petitioners are not applicable to the facts of this case.

In A.K. Singh and Others Vs. Uttarakhand Jan Morcha and Others, the following observations were made and is set out hereunder:

The question of necessity of sanction need be considered by the Sessions Judge if and when raised by the accused. We have no doubt that the High Court should not have embarked upon a discussion regarding sanction at such a premature stage, that too in the writ petition filed by the Samity. If the finding of the High Court is that no sanction is required such finding has to be treated as bad mainly because that question has to be decided after taking into account various considerations including the fact situation in each case.

Accordingly, Issue No. (iii) is decided as above and calls for no interference in writ jurisdiction.

This application, therefore, fails.