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2011(4) LAW HERALD (P&H) 3320
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Permod Kohli
Crl.Misc. No. M- 14289 of 2011
Mrs. Nirmal Yadav
v.
Central Bureau of Investigation & Anr.
{Decided on 14/11/2011}
Sanction for Prosecution--Cash at door scam--Noting by then CBI that no action is required for present does not amount to refusal of sanction--Sanction of prosecution by President of India, on basis of further investigation is valid.
(A) Prevention of Corruption Act, 1988, S.19--Sanction for Prosecution--
(i) Grant or refusal of sanction for prosecution is a statutory function of the competent authority.
(ii) Grant or refusal of the sanction for prosecution of a public servant is the prerogative of the appointing authority/authority competent to remove from service.
(iii) Once the competent authority on the basis of material before it decides to decline sanction, it is impermissible in law to review the question of grant of sanction without fresh material and valid reasons.
(iv) Due application of mind by the competent authority at every stage of consideration is sine qua non for a legal and valid order for grant or refusal of sanction--Criminal Procedure Code, 1973, S.197. (Para 33)
(B) Prevention of Corruption Act, 1988, S.19--Sanction for Prosecution--Quashing of--Sitting Judge of High Court--Cash at door scam--CBI sought sanction from competent authority for sanction of prosecution of sitting Judge of High Court--Secretary of Law Justice sent letter to CBI that matter has been discussed by Law Minister with the CBI who had observed that no action was required for present--CBI filed closure report--Special Judge (CBI) did not accepted the report and ordered further investigation--CBI filed for sanction of prosecution to competent authority i.e. President of India--Sanction was granted--Quashment of sanction sought on the ground that, once the sanction has been declined, it is impermissible to review the question of sanction without fresh material and valid reasons--Sanction order upheld on following grounds:-
(i) It was impermissible for any authority to formulate an opinion that no case is made out for prosecution when the Investigating Agency was of the consistent opinion that the case for prosecution is made out--Criminal Procedure Code, 1973.
Primacy has to be accorded to the opinion of the Investigating Agency/Officer and no other opinion including that of the Attorney General or the CVC can prevent the criminal proceedings against a delinquent, if in the opinion of the Investigating Agency, a prima facie case is made out.
(ii) The note “”the matter had been discussed with the CJI, who had observed that no action was required for the present” cannot be read to support the case of the petitioner that this note pertains to the question of grant of sanction.
Even if it is presumed that Hon’ble the CJI was apprised of the issue regarding grant of sanction, the note simply says that “no action was required for the present”--It is neither an affirmative nor an active/ positive opinion in any respect whatsoever--It cannot be read to mean that Hon’ble CJI declined the sanction for prosecution in any manner.
(iii) The competent authority to grant sanction for prosecution in case of a judge of the High Court is his/her appointing authority i.e. the President of India.
(iv) Thus unless it is proved and established that the President of India in consultation with Hon’ble the CJI ever declined the grant of sanction, the petitioner cannot succeed in her attempt to seek quashment of the sanction order.
(v) It is wrong to suggest that the question of sanction in case of refusal by the Hon’ble CJI was not required to be considered by the President of India.
Thus, to say that where the CJI declines to grant sanction or has any reservation, the matter should not be placed before the competent authority may not be a safe proposition--In the process of consultation, there is possibility of difference of opinion amongst the constitutional authorities, but finally, the authorities may arrive at a common conclusion/decision.
(vi) Reference to a note of Hon’ble Minister for Law and Justice in its secretary’s letter thus, by no para meter of law, can assume the status of a consultation in law.
(vii) That since the competent authority i.e. the Hon’ble President of India and Hon’ble CJI are required to perform statutory function while granting sanction under Section 19 of the PC Act, it cannot be imagined that such consultation can be oral and without adopting a proper procedure.
(viii) Contention That not only the Hon’ble CJI, but even the Collegium understood that the sanction has been declined while ordering transfer, therefore there was decline to sanction of prosecution--Rejected.
The transfer of a High Court Judge is purely an administrative decision. What weighs with the competent authority (Collegium) (on the administrative side) while considering the transfer of a Judge of the High Court cannot be imported into statutory function to be discharged by the competent authority.
(ix) At the first place, there was no refusal at any stage or at least a positive view or order for refusal to grant sanction and thus, the question of review or reconsideration does not arise. (Para 47, 56, 64 to 68 and 72)
(C) Prevention of Corruption Act, 1988, S.19--Sanction for Prosecution--Assuming in a given case, the sanctioning authority makes an order of declining sanction, even without looking to any material and without due application of mind and subsequently, such authority reviews its own opinion on consideration of material produced and application of mind, this definitely falls within the purview of other valid reasons providing an occasion to the sanctioning authority to review its earlier decision and grant sanction--Such an order would be legally valid and has the sanction of law--Criminal Procedure Code, 1973, S.197. (Para 72)
(D) Prevention of Corruption Act, 1988, S.19--Sanction for Prosecution--Disclosure of unspecified document has been asked for by the petitioner--In fact it is a sweeping statement that all documents and the notings of the record of the government be disclosed to the petitioner in the present quashing petition. While acknowledging the right of the accused for disclosure of the material sought to be used against his/her, the accused cannot claim a right for disclosure of unspecified material, irrespective of the fact whether it has any bearing on the case or not. Such a disclosure is not envisaged under any law--Criminal Procedure Code, 1973, S.197. (Para 74)
The accused has a right to specify any document to be summoned by the court whether in defence or even may be otherwise and the trial court in such an eventuality is bound to consider the request of the accused, if the material/document is relevant and has nexus with the trial of the case, be it in the nature of a defence of the accused or to demolish the prosecution case--However, no such right can be exercised by the accused while seeking quashment invoking jurisdiction under Section 482 Cr.P.C--The accused cannot adopt any short-circuit method to ask for documents and materials which may be part of the defence of the accused and plead for its production/disclosure in quashing petition.
(E) Prevention of Corruption Act, 1988, S.19--Sanction for Prosecution--If the Investigating Agency or the prosecution relies upon any other further material, they are bound to produce the same in the trial court with its leave or if the trial court may so direct for the purpose of trial in terms of Section 91 of the Cr.P.C--Criminal Procedure Code, 1973, S.91 (Para 74)
(F) Prevention of Corruption Act, 1988, S.19--Sanction for Prosecution--Cash at dose scam--Opinion depicts only thought process of an expert on any issue and does not constitute a substantive evidence or material--In any case, relevant part of the opinions formulated by the two learned Attorney Generals of India have also been extracted here-in-above just to test the veracity of the petitioner’s contention made before this Court and cannot be relied upon either by the prosecution or the defence as a substantive piece of evidence during the trial--Criminal Procedure Code, 1973, S.197. (Para 75)
Mr. Permod Kohli, J.: - Inherent jurisdiction of this Court under Section 482 Cr.P.C. has been invoked seeking quashment of the sanction order dated 1.3.2011 passed by the President of India for prosecution of the petitioner in R.C.No.AC2/2008-A/004 with a further prayer for quashment of the charge-sheet dated 4.3.2011 presented against the petitioner in the court of Special Judge (CBI Court), Chandigarh as also the order of the Special Judge dated 18.4.2011 taking cognizance of the charge-sheet under Section 173 of the Cr.P.C.
2. The petitioner is a former Judge of this Court who was later transferred to the High Court of Uttrakhand. An FIR No.250 of 2008 was registered at Police Station, Sector 11, Chandigarh under Sections 11 and 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act”), Section 120-B read with Sections 192, 196, 199 and 200 of the Indian Penal Code on the complaint of one Amrik Singh, Peon of Hon’ble Ms. Justice Nirmaljit Kaur against Shri Sanjeev Bansal, an Advocate practising at Chandigarh, Shri Ravinder Singh resident of Delhi, Shri Rajiv Gupta, resident of Panchkula, Shri Nirmal Singh, resident of Panchkula and Justice Mrs. Nirmal Yadav, the then Judge of Punjab and Haryana High Court, petitioner herein. Initially, the case was investigated by the Chandigarh Police, however, the case was transferred to CBI, pursuant to a DO letter dated 26.8.2008 from the then Governor of Punjab and Administrator of UT, Chandigarh.
3. The CBI conducted the investigation in the matter. During the course of investigation, the CBI claims to have collected material and evidence against the accused persons. Since the matter pertains to allegations against a sitting High Court Judge, the then Hon’ble Chief Justice of India, constituted a three members committee comprising of Hon’ble Mr.Justice H.L.Gokhale, the then Chief Justice of Allahabad High Court, presently Judge of Hon’ble Supreme Court, Justice K.S. Radhakrishnan, the then Chief Justice of Gujarat High Court, presently, Judge of Hon’ble Supreme Court and Justice Madan B.Lokur, the then Judge of Delhi High Court, presently Chief Justice Gauhati High Court in terms of In-House procedure adopted by Hon’ble Supreme Court on 7.5.1997. The order dated 25.8.2008 constituting the Committee also contains the terms of reference of the Committee. The Committee was asked to enquire into the allegations against Justice Mrs. Nirmal Yadav, Judge of Punjab and Haryana High Court revealed, during the course of investigation in the case registered vide FIR No.250 of 2008 dated 16.8.2008 at Police Station, Sector 11, Chandigarh and later transferred to CBI. The Committee during the course of its enquiry examined the witnesses and recorded the statements of as many as 19 witnesses, including Mrs. Justice Nirmal Yadav (petitioner), Ms. Justice Nirmaljit Kaur, Sanjiv Bansal, the other accused named in the FIR and various other witnesses. The Committee also examined various documents, including data of phone calls exchanged between Mrs. Justice Nirmal yadav and Mr. Ravinder Singh and his wife Mohinder Kaur, Mr. Sanjiv Bansal and Mr. Ravinder Singh, Mr. Rajiv Gupta and Mr. Sanjiv Bansal. On the basis of evidence and material before it, the Committee of Hon’ble Judges has drawn an inference that the money delivered at the residence of Hon’ble Ms. Justice Nirmaljit Kaur was in fact meant for Ms. Justice Nirmal Yadav.
4. Report of Committee of Judges was served upon the petitioner for her response by Hon’ble Chief Justice of India. The petitioner submitted her response vide letters dated 27/30 January, 2009 and June, 2009. The petitioner has also placed on record two more enquiry reports one conducted by the Government of Himachal Pradesh in respect of purchase of land by petitioner, alongwith Ravinder Singh, accused and various other persons at Solen. In this enquiry, it was concluded that no procedural irregularity was committed at any level for according p
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