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Judgment
Legality, propriety and correctness of the order dated 18.06.2019, passed by the learned Special Judge, CBI, Additional Court No. 1, in Special Case No. 05/2015, is impugned in this petition under Sections 397/401 read with Section 482 Cr.P.C.
It is to be noted here that vide impugned order dated 18.06.2019, the learned Court below has dismissed the petition filed by the petitioner, Lt. Gen. M.M.S. Rai seeking exemption from appearance as witness to prove the prosecution sanction order against the accused- Shri Sunil Kumar PR.
The factual background, leading to filing of this petition, is briefly stated as under:
“The present petitioner, while he was working as Lieutenant General MMS Rai and posted as General Officer Commanding-in-Chief at Eastern Command, Kolkata, in Case No. RC0172014A0008, has accorded prosecution sanction against JC-310512Y Naib Subedar Clerk (staff Duty) Sunil Kumar PR, vide Sanction Order No. 201311/Sunil Kumar/PR/A1(DV-3), dated 28.07.2015. The said sanction was processed through Discipline & Vigilance Branch of Headquarters Eastern Command and the same was passed in the official capacity as per the procedure laid down, and not in his personal capacity. Thereafter, a case was filed before the Court of learned Special Judge, CBI, Court No. 1, Guwahati against Sunil Kumar PR. During trial, the learned court below had issued summon against the petitioner vide summon No. SW/LB/424/229 dated 22.04.2019, to appear before it as witness, to prove the prosecution sanction order passed by him in his official capacity. Thereafter, the petitioner has filed one application before the learned Court below, for his exemption as witness, and vide order dated, 18.06.2019, the learned Court below, after hearing both sides, has dismissed the petition.
Being highly aggrieved, the petitioner approached this Court challenging the legality, propriety and correctness of the aforesaid order on the ground that the learned Court below has erred while refusing exemption of the petitioner, inspite of the law on the subject-matter being settled by Hon’ble Supreme Court, and that the learned Court below has failed to assign any reason as to why the petitioner could not be exempted from his personal appearance and that the petitioner was an Ex- Vice Chief of Army Staff, currently residing at Pune and in his place Colonel (Discipline and Vigilance), Headquarters Eastern Command may be summoned to prove the documents and that the impugned order was passed without considering the legal position and that the petitioner is a 63 years old man and is currently residing at Pune and in view of security protocol of the Government senior official like him, is not practicable to appear before the learned court below within a short notice, and therefore, it is contended to allow this petition by setting aside the impugned order.
Mr. M. Phukan, learned counsel for the petitioner submits that the law is well settled by Hon’ble Supreme Court in a catena of decisions - (1) State of Madhya Pradesh Vs. Jiyalal, reported in (2009) 15 SCC 72 and (2) the State of Rajasthan Vs. Tarachand Jain, reported in (1974) 3 SCC 72 and that the sanction order was passed in the routine official functions and hence there is presumption that the same was done in a bonafide manner and there is no requirement to examine the sanctioning authorities in order to prove the sanction and that the sanction can be proved by his subordinate officer or a clerk who has seen the sanctioning authorities sign the order or who is acquainted with signature of the sanctioning authorities. Mr. Phukan also drawn the attention of this court to an Office Memorandum No. 142/22/2007-AVD.1, issued by Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training, New Delhi, dated, the 10th November, 2008, where the mode of proving prosecution sanction has been discussed, the present prosecution sanction also can be proved by any of the aforementioned manner. Therefore, Mr. Phukan contended to allow this petition.
On the other hand, Mr. S.C. Keyal, learned Standing Counsel for the CBI submits that the impugned order suffers from no illegality or impropriety requiring any interference of this Court. Mr. S. C. Keyal further submits that this petition was filed in the year 2019, and since then the case is pending before the learned Court below only for examination of the present petitioner and if the petitioner is not in a position to undertake a journey to attend the Court, yet he can appear through the V.C. from his present place of abode and therefore, Mr. Keyal contended to dismiss the petition.
Having heard the submission of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the impugned order dated 18.06.2019, passed by the learned Court below in Special Case No. 05/15, and also carefully gone through the case laws referred by Mr. Phukan, learned counsel for the petitioner.
It is to be noted herein that in the case of Jiyalal (supra) Hon’ble Supreme Court in para No. 8 held that- “it was also not justified for the learned Single Judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bona fide manner. It was of course open to the respondent to question the genuiness or validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution.”
Again, in the case of Tarachand Jain (supra), Hon’ble Supreme Court held that- “sanction can be proved either by the sanctioning authorities or by his subordinate officer or a clerk who has seen the sanctioning authorities sign the order or who is acquainted with signature of the sanction authorities. Once the signatures are proved and if the sanction order is a speaking order, then the matter ends there.”
In the Office Memorandum No. 142/22/2007-AVD.1 issued by the Government of India, has cited following case laws: Md. Iqbal Ahmed vs. State of AP reported in 1979 Cr LJ 633 (SC) and State of Rajasthan Vs. Dr. A.K. Dutta, reported in AIR 1981 SC, wherein Hon’ble Supreme Court has held that the requirement of proving the sanction can be done in any two ways - either by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction or by adducing evidence to show that the facts were placed before the sanctioning authority and the satisfaction arrived at by it.
10.1. The case of CBI, Hyderabad vs. P. Muthuraman reported in 1996 Cr LJ 3638, also discussed there in, where Hon’ble Supreme Court has held that signature on the sanction should be proved either by the sanctioning authority or by his subordinate officer or clerk who has seen the sanctioning authority or who is acquainted with the signature of the sanctioning authority. Once the signature is proved and if the sanction order is a speaking order, then the matter ends there; otherwise evidence should be adduced to prove that the sanctioning authority had perused the material before according sanction which may not be in a particular form. Thereafter, it has cited the case of State Vs K. Narasimhachary (2006 Cr.LJ 518 SC), wherein Hon’ble Supreme Court has held that the prosecution sanction order being a public document, there may not be a need to summon sanctioning authority as prosecution witness provided the prosecution proves that all the relevant material was placed before the sanctioning authority and the sanction was accorded thereafter.
10.2. And thereafter, crystallized the legal proposition that when the sanction is accorded by the competent sanctioning authority and when it contains the facts constituting the offence and the grounds of satisfaction, there is no requirement for the prosecution to summon the sanctioning/signing/authenticating authority for their personal evidence to prove the validity of the sanction. If necessary, it can be done by producing the original sanction and or by examining the person conversant with the signature of the sanctioning authority/signing/ authenticated authority. There is no requirement for the prosecution to insist on personal evidence of sanctioning/signing/authenticating authority for proving the sanction as the same can be proved adequately otherwise.
10.3. It is also clarified therein that in the event of it being challenged by the defence on the grounds of competence of the sanctioning authority or non-application of mind and if a prima-facie case for doubting the validity of the sanction is made out by the accused, the learned court below would be within its powers under the provisions of section 311 of the Cr.P.C. to summon the sanctioning authority.
Here in this case, having gone through the prosecution sanction order-Case No. RC0172014A0008, dated 13.10.2014, against JC-310512Y Naib Subedar Clerk (staff Duty) Sunil Kumar PR, which is enclosed with the petition as Annexure-B, it appears that the said order is a speaking and reasoned order passed by the present petitioner in his capacity as Lieutenant General, General Officer Commanding-in-Chief, considering all the materials placed before him.
Now, the petitioner is no longer in service. He has already retired and presently settled at Pune. It is also submitted by the learned counsel for the petitioner that there is also security protocol for the officers like him in appearing before the learned Court below. And as such, the sanction order can be proved by any of the manner laid in the cases discussed herein above.
Though there is some force in the submission of Mr. Keyal, learned counsel for the CBI that the petitioner may appear before the learned Court below through V.C. yet, the prosecution side has to carry out some exercise such as making the relevant file available to the petitioner, at his place of abode. Instead the prosecution side can take recourse of the procedure, as prescribed by Hon’ble Supreme Court in the case laws discussed herein above.
Thus, having tested the impugned Order on the touchstone of the principle discussed herein above, this Court is of the considered opinion that the impugned order failed to withstand the test of legality, propriety and correctness.
In the result, the impugned order, so far it relates to appearance of the petitioner before the learned court below to prove the prosecution sanction order, stands set aside. It is provided that the learned Court below shall take recourse to any one of the procedure, as discussed by the Hon’ble Supreme Court in the aforementioned cases, to prove the prosecution sanction order.
In terms of above, this Criminal Revision Petition stands disposed of. Stay, if granted earlier stand vacated. The parties have to bear their own cost.