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2019 Supreme(Jhk) 382
IN THE HIGH COURT OF JHARKHAND AT RANCHI
APARESH KUMAR SINGH, J.
Anjani Kumar Singh - Petitioner
Versus
The State of Jharkhand through C.B.I - Respondent
Cr. M. P. No. 910 of 2018
Decided On : 25-01-2019
Advocate Appeared:
For the Petitioner: Mr. Bindhyanchal Singh, Adv. Mr. Subodh Kumar Dubey, Adv.
For the C.B.I : Mr. Rajiv Sinha, ASGI
For the Amicus Curiae : Mr. Kumar Vaibhav, Adv.
Headnote:
Criminal Procedure Code - Section 319 - Order of cancellation passed – Quash of order - Miscarriage of justice - It is submitted that instant R.C. Case Pat relates to fraudulent withdrawal of an amount from Treasury under AHD Department during period December to January - Petitioner was an officer of Indian Administrative Service Cadre and posted as Deputy Commissioner Prior to that he was posted as Additional Secretary Finance - It is submitted that learned CBI Court after conclusion of trial when matter was being posted for pronouncement of judgment on March proceeded to pass an order of arraignment of several persons as accused in purported exercise of powers under Section 319 Criminal Procedure Code - In respect of this petitioner purport of order is also to same effect except that before passing formal order of cognizance it has directed CBI to take proper sanction from competent authority in respect of his criminal prosecution – However Court has without any iota of evidence brought on record during trial or inquiry as against this petitioner erroneously come to a finding that he and one Finance Secretary were prima facie liable for criminal conspiracy in forged withdrawal of money from Treasury in December and January - He submits that petitioner as Additional Commissioner had specifically instructed by his order dated August on a proposal placed by Treasury Officer that any bills above relating to Animal Husbandry Department be placed before him - This letter was adduced and also exhibited with objection and in this R.C. Case by him as prosecution witness on August - From statement of this petitioner it has also come that Divisional Commissioner had cancelled his order as a result of which the withdrawals under AHD Department from Treasury were not brought to his notice - Such order was passed by Divisional Commissioner on proposal initiated by Regional Director AHD who was himself charge-sheeted by CBI as an accused and faced conviction – Held, It is also apparent that Court failed to issue any notice to show cause to petitioner in order to accord opportunity to be heard before such an opinion was formed by it - A perusal of order shows that Court directed the CBI to obtain a sanction order from competent authority since petitioner was serving officer of IAS Cadre so that order of cognizance could be passed thereafter - Approach of Court was in teeth of two well settled principles - That a person who is added as an accused under Section 319 Criminal Procedure Code is necessarily heard before being so added as laid down by Apex Court in the case - That sanctioning authority has to apply its independent mind for generation of genuine satisfaction whether prosecution has to be sanctioned or not on basis of evidence and materials placed before it - It could not be denuded of his discretion by specifically directing him to issue a sanction order - In case Apex Court held that grant of sanction is not an idle formality or acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecution - Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution - It is a safeguard for innocent but not a shield for guilty - Sanction would therefore dependent upon material placed before sanctioning authority and fact that all relevant material facts and evidence have been considered by sanctioning authority - Consideration implies application of mind - In present case court overstepped its jurisdiction in directing CBI to file a sanction order - Mind of sanctioning authority should not be under pressure from any quarter - In present case in face of such a direction sanctioning authority had been practicably left with no discretion to deny sanction even if on its independent consideration it was not satisfied that such sanction is necessary for prosecution of officer concerned - Court have carefully dealt with contentious issues involved in this matter as discussed hereinabove in detail - On sake of repetition it needs to be reiterated once again that exercise of powers under Section 319 Criminal Procedure Code being both extraordinary and discretionary has to exercised sparingly and only in those cases where circumstances of case so warrants - Degree of satisfaction is more than that warranted at time of framing of charges against others in respect of whom charge-sheet was filed - Only where strong and cogent evidence occurs against a person from evidence led before court that such power should be exercised - Petition is allowed
ORDER :
1. Heard learned counsel for the petitioner, learned ASGI and learned Amicus Curiae.
2. Petitioner is aggrieved by the order dated 5th March, 2018 passed in R. C. Case No. 38(A) of 1996-Pat by learned Court of Special Judge-VII, C.B.I. (AHD Scam), Ranchi, whereunder learned Court has directed the CBI to obtain sanction for his criminal prosecution from the competent authority, whereafter an order of cognizance could be passed by learned Court.
3. In support of the challenge, learned counsel for the petitioner has inter alia urged both factual and legal grounds which are briefly summed up hereunder:
It is submitted that the instant R.C. Case No. 38(A) of 1996-Pat relates to fraudulent withdrawal of an amount of Rs. 3,76,38,853/- from Dumka Treasury under AHD Department during the period December, 1995 to January 1996. Petitioner was an officer of Indian Administrative Service Cadre and posted as Deputy Commissioner, Dumka between June, 1993 and June, 1996. Prior to that, he was posted as Additional Secretary, Finance from 1992 to 1993. It is submitted that learned CBI Court after conclusion of the trial when the matter was being posted for pronouncement of judgment, on 5th March, 2018 proceeded to pass an order of arraignment of several persons as accused in purported exercise of powers under Section 319 Cr.P.C. In respect of this petitioner purport of the order is also to the same effect except that before passing formal order of cognizance, it has directed the CBI to take proper sanction from the competent authority in respect of his criminal prosecution. However, learned Court has, without any iota of evidence brought on record during trial or inquiry as against this petitioner, erroneously come to a finding that he and one V.S. Dubey, Finance Secretary were prima facie liable for criminal conspiracy in forged withdrawal of money from Dumka Treasury in December, 1995 and January, 1996. He submits that petitioner as Additional Commissioner had specifically instructed by his order dated 17th August, 1993 on a proposal placed by the Treasury Officer, Dumka that any bills above Rs. 1 Lakh relating to Animal Husbandry Department be placed before him. This letter was adduced as Ext.-39 to 44 in R.C. Case No. 39A/96 and also exhibited as Ext.-70/2 with objection and Ext. 71/10 in this R.C. Case by him as prosecution witness no. 126 on 30th August, 2007. From the statement of this petitioner it has also come that the Divisional Commissioner, Sri S. N. Dubey had cancelled his order dated 17.08.1993, as a result of which the withdrawals under AHD Department from Dumka Treasury were not brought to his notice. Such order was passed by the Divisional Commissioner, Dumka on the proposal initiated by the Regional Director, AHD who was himself charge-sheeted by the CBI as an accused and faced conviction, Dr. Shesh Muni Ram. His successor Dr. O.P. Diwakar was the Regional Director during the period of this fraudulent withdrawal in December 1995 and January, 1996. This order of the petitioner dated 17th August, 1993 has been taken note of by learned Court in the impugned order also. The order of cancellation passed by the Commissioner Santhal Pargana Division is on the proposal of the Regional Director, AHD, Dumka dated 30th May, 1994. As such the bills relating to fraudulent withdrawals were never placed before the petitioner in his capacity as Deputy Commissioner, Dumka .
4. Learned counsel for the petitioner has in particular referred to the statement of Brij Kishore Kishore Pathak, P.W.110 in the instant R.C. Case. P.W.110 was Executive Magistrate at Dumka and had instituted Dumka Town P.S. Case No. 16/96 on 2nd February, 1996, Ext.-64 on the specific instruction of this petitioner as Deputy Commissioner, Dumka against O.P. Diwakar Regional Director, AHD, R.P.Chaudhary and others AHD officials. This petitioner was also examined as P.W. 126 in the instant R.Case on 30th August, 2007 on behalf of the CBI and has fully supported the prose
