Vijender Jain, J. (Oral)

( 1 ) THIS is a petition filed by the State under Sections 397 and 401 of the Code of Criminal Procedure 1973 on behalf of the Central Bureau of Investigation for setting aside the order dated 21st July, 1992 passed by Special Judge under Prevention of Corruption Act, 1947 (now amended in 1988 ). The main thrust of the arguments of Mr. S. Lal, learned counsel for the petitioner, is that after Magistrate has recorded the evidence of PW-1 i. e. Mr. P. G. Gavai, who was a former Lt. Govemor of Delhi, the Special Judge ought to have finished the whole evidence of the State and could not have discharged the accused. Another argument raised by learned counsel for the petitioner is that even if the said Mr. Gavai has deposed as a witness before the

( 2 ) SPECIAL Judge, the State could have produced other evidence to show that. the sanction was proper. Mr. Lal has vehemently contended that it was illegal on the part of the-Special Judge to have decided the question of sanction on the evidence of one person only i. e. PW-1. In support of his arguments he has cited AIR 1968 SC 1419, 1948 PC 82, AIR 1958 SC 148, 1989 Cr. L. J. 255, 1983 Cr. L. J. 416 and AIR 1955 Patna 317. Yet another contention has been raised by Mr. Lal is that the provisions of Section 245 (2) of the Code of Criminal Procedure ( in short "cr. P. C. ") will not be applicable to the present case as Sections 244 and 245 are applicable to cases which are instituted otherwise than on police report. Mr. Lal has also drawn the attention of this Court to Section 242 of the Cr. P. C. in support of his arguments that the Special Judge has to proceed to take all the evidence before he could pass any order of acquittal. Mr. Lal has further contended that the Special Judge has no power to discharge the accused after the charge has been framed by the Cot.

( 3 ) REPELLING the contentions of Mr. Lal, Mr. K. B. Andley, learned counsel for the respondent, has argued that the present case is one under the provisions of Prevention of Corruption Act and is a warrant case to be tried by a Magistrate, who is designated as a Special Judge under the provisions of Prevention of Corruption Act. He has argued that provisions of Chapter-19 of the Cr. P. C. shall be applicable to the present case which also include Sections 244 and 245. What Mr. Andley has contended is that in view of Section-19 of the Prevention of Corruption Act, the cognizance cannot be taken by any Court in the absence of any sanction. Mr. Andley has further contended that the sanction has to be valid, legal and should not suffer from any infirmities such as non-application of mind or the same should not be otherwise bad in law. Mr. Andley has argued that if there is no valid sanction or the Court during the course of hearing comes to the conclusion that the sanction is vitiated, then the Court has no other alternative but to discharge or acquit the accused because the very foundation on which the prosecution has been launched, cognizance has been taken, will not be in existence.

( 4 ) I have given my careful consideration to the arguments advanced by learned counsel for both the parties. It will be necessary for me to advert to the evidence of PW-1, who admittedly was the sanctioning authority at the relevant time. In his evidence, PW-I has stated in the cross-examination I -

"apart from the C. B. I, report and the notings of the officers of Delhi Admn. no other material was placed before me at the time of obtaining sanction.

I do not remember having seen the statements of the witnesses and the documents of the case at the time of according sanction.

I haye seen the sanction file. The statements of the witnesses and the documents prepared are annexured by the C. B. I, during in- vestigation of the case are not on the file, even today.

THE statements of the witnesses recorded earlier, in the court of Sessions Judge, Delhi were not placed before me for perusal before I accorded the sanction.

I did not kno

Click Here to Read the rest of this document