Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Guj) 306

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J. C. DOSHI, J.
Bhanuben Mangabhai Bagda & Anr. – Appellant
Versus
State Of Gujarat – Respondent
R/Criminal Revision Application (Against Order Passed By Subordinate Court) No. 954 of 2019
Decided on : 28-03-2024

Advocates:
Advocate Appeared:
For the Appellant : MR ASHISH M DAGLI
For the Respondent: MR HK PATEL

IMPORTANT POINT
The judgment established that the absence of sanction can be raised at the inception and at the threshold as it goes to the root of the matter. It also emphasized that the validity or illegality of the sanction cannot be a ground for discharge unless a failure of justice has been occasioned.

Headnote:
Sanction for Prosecution - Prevention of Corruption Act - Sections 7, 12, 13(1)d, 13(2) - Summary of Acts and Sections: The court discussed the provisions of Section 19 of the Prevention of Corruption Act, 1988, which requires previous sanction for prosecution of a public servant. The court emphasized that the absence of sanction can be raised at the inception and at the threshold as it goes to the root of the matter. The court also highlighted that the validity or illegality of the sanction cannot be a ground for discharge unless a failure of justice has been occasioned. The judgment referenced various legal provisions and interpretations related to the grant of sanction for prosecution and its examination during trial.
Fact of the Case:
The accused were caught red-handed while demanding and accepting a bribe. They filed a discharge application, arguing that the sanction for prosecution was invalid. The court analyzed the validity of the sanction and the authority competent to grant it.
Finding of the Court:
The court found that the sanction for prosecution was valid and could be examined during the trial, but it could not be a basis for discharging the accused. The court condemned the frivolous application and imposed costs on the petitioners.
Issues: The issues revolved around the validity of the sanction for prosecution, the authority competent to grant it, and the grounds for filing a discharge application.
Ratio Decidendi: The court emphasized that the absence of sanction can be raised at the inception and at the threshold as it goes to the root of the matter. It also highlighted that the validity or illegality of the sanction cannot be a ground for discharge unless a failure of justice has been occasioned.
Final Decision: The revision was dismissed, and costs were imposed on the petitioners.

JUDGMENT :

Order dated 07/05/2019 passed below Exh.41 and Exh.43 in Special 9ACB) Case No.6 of 2015 by the learned 4th Additional Sessions Judge, Junagadh is sought to be challenged in this revision filed under Section 397 read with section 401 of Cr.PC whereby the discharge application preferred by the petitioners – accused came to be dismissed.

2. The short facts of the case are that present petitioners – org. accused came to be caught red handed while demanding and accepting the bribe amount of Rs.2,50,000/- from the org. complainant and to that effect offence came to be registered under Sections 7, 12, 13(1)d and 13(2) of the Prevention of Corruption Act, 1988 (for short the Act). After registration of the offence, investigation conducted and at the end of the investigation, charge-sheet came to be filed.

2.1 Upon filing of the charge-sheet, the accused preferred discharge application which came to be rejected by the impugned order and thus present revision is preferred to challenge the said order.

3. Heard Mr.Ashish Dagli, learned Advocate for the petitioners-accused and learned APP Mr.H K Patel for respondent – State.

4. Learned Advocate for the petitioners Mr.Dagli would submit that sanction for prosecution granted in the present case is invalid. It is submitted that when the alleged raid took place, both the accused were working in Junagadh District; but later on they got to transferred to some other District. He would further submit that sanction for prosecution is not granted by the Head of the Police Department at Junagadh; but S.P., Panchmahal at Godhra as well as Commissioner of Police, Rajkot City where the accused were serving at the time of filing of the charge-sheet has granted the sanction.

4.1 Learned Advocate Mr.Dagli would further submit that sanction for prosecution can only be granted by the Head of the Department when the raid was conducted and where the accused was serving. Thus, the sanction for prosecution granted in the charge-sheet is invalid. The learned Sessions Judge has failed to understand this aspect and as such committed serious error in rejecting the application seeking discharge. He would further submit that appropriate sanction for prosecution goes to the root of the case. Since in the present case, there is invalid sanction, it will not permit the learned Court below to take cognizance and to prosecute the accused for the alleged offence.

4.2 Learned Advocate Mr.Dagli would further submit that issue of power to grant sanction for prosecution is also involved in the matter. The learned Sessions Judge has not understood this issue in its proper perspective and committed serious error of law. Learned Advocate Mr.Dagli would further submit that petitioner no.1 was working as Woman PSI, Class-III and petitioner no.2 was working as Unarmed Police Constable, Class – III, in Junagadh Taluka Police Station at the time of alleged raid. Both the petitioners were appointed by SP, Jungadh; but in the case on hand, sanction for prosecution was granted by the SP, Panchmahal at Godhra and Commissioner of Police, Rajkot City. They are not the authority equivalent to the appointing authority. He would submit that in view of Article 311 of the Constitution of India, the person having higher authority to the appointing authority are required to grant permission for prosecution. It was submitted that granting of sanction to prosecute the accused are serious matter and the sanctioning authority is required to go through the entire material placed before it for its consideration and has to record the subjective satisfaction about necessity of granting the sanction.

4.3 Learned Advocate Mr.Dagli would further submit that Section 19 of the Act start with the non-abstaint clause. Purpose of Section 19 of the Act is to save the government officer from frivolous litigation. He would further submit that in the present case on going through the sanction for prosecution, it prima facie appears that sanctioning authority has n