Nitinkumar vs State on 22 April, 2010

Gujarat High Court

Nitinkumar vs State on 22 April, 2010
Author: D.H.Waghela,&Nbsp;
Gujarat High Court Case Information System

Print

CR.RA/32/2004 12/ 12 JUDGMENT

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD

Indian Kanoon - http://indiankanoon.org/doc/522324/ 1

 Nitinkumar vs State on 22 April, 2010

CRIMINAL
REVISION APPLICATION No. 32 of 2004

For
Approval and Signature:

HONOURABLE
MR.JUSTICE D.H.WAGHELA
Sd/-

=========================================================

Whether
Reporters of Local Papers may be allowed to see the judgment ?

To be
referred to the Reporter or not ?

Indian Kanoon - http://indiankanoon.org/doc/522324/ 2

 Nitinkumar vs State on 22 April, 2010

Whether
their Lordships wish to see the fair copy of the judgment ?

Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?

Whether
it is to be circulated to the civil judge ? 1 &
2 YES; 3 to 5: NO

=========================================================

Indian Kanoon - http://indiankanoon.org/doc/522324/ 3

 Nitinkumar vs State on 22 April, 2010

NITINKUMAR
JAGDISHBHAI PATEL & 1 - Applicant(s)

Versus

STATE
OF GUJARAT - Respondent(s)

=========================================================

Appearance
:
MR
ASIM PANDYA for HL PATEL ADVOCATES
for
Applicant(s) : 1 - 2.
MS MINI NAIR ADDL PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================

CORAM
:

HONOURABLE
MR.JUSTICE D.H.WAGHELA

Indian Kanoon - http://indiankanoon.org/doc/522324/ 4

 Nitinkumar vs State on 22 April, 2010

Date
: 22/04/2010

ORAL
JUDGMENT

1. Invoking section 397 of Cr.P.C., the petitioners have called into question order dated 20.11.2003
of learned Joint District Judge, Ahmedabad (Rural) below Ex.13 in Special (ACB) Case No.10 of
1997.

Application Ex.13 of the petitioners was dismissed after rejecting the contention that sanction for
prosecution accorded by Vastral Nagar Panchayat, the employer of the petitioners, for prosecution
of offences under sections 7, 12 and 13 of the Prevention of Corruption Act, 1988 (for short, the Act )
was illegal, without application of mind and under coercion and threat of contempt of court
proceedings.

2. There is no dispute about the facts that the petitioners were charge-sheeted for the aforesaid
offences after a trap having been laid on 04.04.1996 and the criminal case was registered in the year
1997. Application Ex.13 for discharge was made on 18.8.2003 and the impugned order was made on
20.11.2003.

3. It was vehemently argued by learned counsel Mr.Pandya that, since the petitioners were working
under Vastral Nagar Panchayat, sanction by that authority was necessary and sanction was in fact
initially refused by resolution dated 09.01.1997. It was only thereafter, under the impression of
some direction of the High Court, that the second resolution was made on 17.02.1997 granting
sanction for prosecution of the petitioners. He submitted that the Nagar Panchayat could not have
legally taken its own resolution into review and, after being functus officio in terms of the ratio of
judgment of the Punjab & Haryana High Court in Dr.Jaswinder Kaur v. State of Punjab [I (2002)
CCR 187], the second resolution for sanction based on misreading of some order of the High Court
could not be sustained and further prosecution of the petitioners on the basis of such defective and
illegal sanction would itself be failure of justice, warranting interference by this Court. In
Dr.Jaswinder (supra), the Hon'ble Punjab & Haryana High Court, while allowing the petition under
section 482 of Cr.P.C., observed and concluded as under:

16. .......The officer could not have reviewed its earlier orders. As soon as the earlier orders refusing
the sanction was signed on 14.02.2000, the Competent Authority became functus officio.

Merely because the Vigilance Bureau had asked for the reasons for the refusal of the sanction was
not a ground to review the earlier order.

4. It was seen from the record that, after the present petition being filed on 21.01.2004, its
admission hearing was adjourned from time to time, before and after grant of interim relief, by two

Indian Kanoon - http://indiankanoon.org/doc/522324/ 5

 Nitinkumar vs State on 22 April, 2010

effective orders which read as under:

CORAM : HON'BLE MR.JUSTICE C.K.BUCH Date of Order: 09/03/2004 ORAL ORDER Heard ld.
counsel Mr. Vijay Patel for H.L.Patel, Advocates for the petitioners.

Rule returnable on 24.03.2004. Ld. APP Mr.I.M.Pandya appears and waives service of Rule for
respondent State.

Notice as to Interim Relief also returnable on 24.03.2003. Ld. APP Mr. Pandya appears and waives
service of notice for respondent State.

To be listed for Final Hearing.

Direct Service is permitted. Sd/-

[ C.K. BUCH, J ]

CORAM : HON'BLE MR.JUSTICE C.K.BUCH

Date of Order: 22/04/2004

ORAL ORDER

On earlier occasion some submissions were made but today when the matter was called out, Mr.
H.L.Patel, learned counsel appearing for the petitioners, requested that this matter may be
adjourned. Therefore, at the request of Mr.Patel, the matter is adjourned to 16th June, 2004. Sd/-

( C.K. Buch,J.) CORAM : HON'BLE MR. JUSTICE M.D. SHAH Date of Order:
11/05/2005 ORAL ORDER Heard Mr. H.L. Patel, learned advocate for the petitioner
and Mr. Raval, learned Addl.P.P. for the respondent State. Looking to the averments
made in the Revision Application, interim relief in terms of para 5(B) is granted till
the final disposal of Criminal Revision Application No. 32 of 2004. Office is directed
to place the Criminal Revision Application No. 32 of 2004 on 22.6.2005. Direct
service permitted.

Sd/-

( M.D.Shah,J.) According to the order sheet, the petition was lastly listed on
04.09.2006 and the order , NOT BEFORE ME , was made. Thereafter, the matter was
straightaway listed on 09.04.2010, when again it was adjourned.

Indian Kanoon - http://indiankanoon.org/doc/522324/ 6

 Nitinkumar vs State on 22 April, 2010

5. The subject-matter of this revision application is squarely covered by the statutory provisions of
section 19 of the Act, which read as under:

S.19 Previous sanction necessary for prosecution.

(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15
alleged to have been committed by a public servant, except with the previous sanction,-

(a) in the case of a person who is employed in connection with the affairs of the Union and is not
removable from his office save by or with the sanction of the Central Government, of that
Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not
removable from his office save by or with the sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as
required under sub-section (1) should be given by the Central Government or the State Government
or any other authority, such sanction shall be given by that Government or authority which would
have been competent to remove the public servant from his office at the time when the offence was
alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 197

(a) no finding, sentence or order passed by a Special Judge shall be reversed o

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or
irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission
or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall
exercise the powers of revision in relation to any interlocutory order passed in inquiry, trial, appeal
or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or
irregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall have
regard to the fact whether the objection could and should have been raised at any earlier stage in the
proceedings.

Explanation. For the purposes of this section,

(a) error includes competency of the authority to grant sanction;

Indian Kanoon - http://indiankanoon.org/doc/522324/ 7

 Nitinkumar vs State on 22 April, 2010

(b) a sanction required for prosecution includes reference to any requirement that the prosecution
shall be at the instance of a specified authority or with the sanction of a specified person or any
requirement of a similar nature.

6. Prohibition against grant of stay and express ban against exercise of powers of revision in relation
to any inter- locutory order passed in any inquiry, trial, appeal or proceeding, is discussed and
emphasized in Satya Narayan Sharma v. State of Rajasthan [AIR 2001 SC 2856], with the
observations as under:

Thomas, J.

5. .....In determining whether there was any such failure of justice it is mandated that the Court shall
have regard to the fact whether the objection regarding that aspect could or should have been raised
at any earlier stage in the proceedings. We may now point out that merely because objection
regarding sanction was raised at the early stage is not a ground for holding that there was failure of
justice. If the special Judge has overruled the objection raised regarding that aspect it is normally
inconceivable that there could be any failure of justice even if such objections were to be upheld by
the High Court. Overruling an objection on the ground of sanction does not end the case
detrimentally to the accused. It only equips a judicial forum to examine the allegations against a
public servant judicially. Hence it is an uphill task to show that discountenance of any objection
regarding sanction has resulted in a failure of justice. The corollary of it is this : The High Court
would not normally grant stay on that ground either.

7. The mere fact that yet another prohibition was also tagged with the above does not mean that the
legislative ban contained in clause (c) is restricted only to a situation when the High Court exercises
powers of revision. It would be a misinterpretation of the enactment if a Court reads into clause (c)
of S. 19(3) a power to grant stay in exercise of inherent powers of the High Court.

8. We are informed that several High Courts, overlooking the said ban, are granting stay of
proceedings involving offences under the Act pending before Courts of Special Judges. This might be
on account of a possible chance of missing the legislative ban contained in clause (c) of sub-section
(3) of S. 19 of the Act because the title to S. 19 is "previous sanction necessary for prosecution." It
could have been more advisable if the prohibition contained in sub-section (3) has been included in
a separate section by providing a separate distinct title. Be that as it may, that is no ground for
by-passing the legislative prohibition contained in the sub-section.

9. I fully concur with the direction indicated by Variava J. in the judgment that the Registrar of each
High Court shall list the cases in which such stay was granted by orders happened to be passed by
such High Court and to board all such cases before the appropriate bench without further delay.
This is to enable the High Court concerned to dispose of such matters in the light of this judgment.

...................

S. N. VARIAVA, J.:

Indian Kanoon - http://indiankanoon.org/doc/522324/ 8

 Nitinkumar vs State on 22 April, 2010

23. ....... The legislature has, therefore, by adding the words "no Court shall stay the proceedings
under this Act on any other ground" clearly indicated that no stay could be granted by use of any
power on any ground. This therefore would apply even where a Court is exercising inherent
jurisdiction under S. 482 of the Criminal Procedure Code.

24. There is another reason also why the submission that S. 19 of the Prevention of Corruption Act
would not apply to the inherent jurisdiction of the High Court, cannot be accepted. Section 482 of
the Criminal Procedure Code starts with the words "Notwithstanding anything contained in the
Code." Thus the inherent power can be exercised even if there was a contrary provision in the
Criminal Procedure Code. Section 482 of the Criminal Procedure Code does not provide that
inherent jurisdiction can be exercised notwithstanding any other provision contained in any other
enactment. ......

25. We see no substance in the submission that S. 19 would not apply to a High Court. Section 5(3)
of the said Act shows that the Special Court under the said Act is a Court of Session. Therefore the
power of revision and/or the inherent jurisdiction can only be exercised by the High Court.

26. Thus in cases under the Prevention of Corruption Act there can be no stay of trials. We clarify
that we are not saying that proceedings under S. 482 of the Criminal Procedure Code cannot be
adapted. In appropriate cases proceedings under S. 482 can be adapted. However, even if petition
under S. 482, Criminal Procedure Code is entertained there can be no stay of trials under the said
Act. It is then for the party to convince the concerned Court to expedite the hearing of that petition.
However merely because the concerned Court is not in a position to take up the petition for hearing
would be no ground for staying the trial even temporarily.

....................

(emphasis supplied)

7. The law is further clarified by the Apex Court in State by Police Inspector v. Venkatesh Murthy
[AIR 2004 SC 5117], as under:

14. In the instant case neither the trial Court nor the High Court appear to have kept in view the
requirements of sub-section (3) relating to question regarding "failure of justice". Merely because
there is any omission, error or irregularity in the matter of according sanction that does not affect
the validity of the proceeding unless the Court records the satisfaction that such error, omission or
irregularity has resulted in failure of justice. The same logic also applies to the appellate or
revisional Court. The requirement of sub-section (4) about raising the issue, at the earliest stage has
not been also considered. Unfortunately the High Court by a practically non-reasoned order,
confirmed the order passed by the learned trial Judge. The orders are, therefore, indefensible. We
set aside the said orders. It would be appropriate to require the trial Court to record findings in
terms of clause (b) of sub-section (3) and sub-section (4) of Section 19.

Indian Kanoon - http://indiankanoon.org/doc/522324/ 9

 Nitinkumar vs State on 22 April, 2010

It is significantly observed by the Apex Court in Paul Verghese v. State of Kerala & Ors. [AIR 2007
SC 2618] as under:

8. .......Section 19 (1) is a matter of procedure and does not go to root of jurisdiction. Sub-clause 3 (c)
of section 19 reduces the rigour of prohibition.......

.........

10. ........In cases covered under the Act, in respect of public servants the sanction is of automatic
nature and thus factual aspects are of little or no consequence.....

8. In view of the clear statutory provisions as aforesaid and the ratio laid down by the Apex Court,
there is no room for any discussion about maintainability of the present petition. Even assuming in
favour of the petitioners that this Court was required to entertain the petition at least for examining
whether the alleged irregularity or defect in the sanction had resulted in failure of justice, the
sanctioning authority being not a party and in absence of order of this Court which required the
Nagar Panchayat to grant sanction, it would be impossible to arrive at any objective conclusion on
facts or law. However, perusing the first resolution dated 09.01.1997 and subsequent resolution and
order dated 17.02.1997, it prima facie appears that the municipality initially resolved to only keep
vigilance over the petitioner and not take any departmental or legal action against them, whereas it
resolved to sanction prosecution and suspend them by the later resolution after consultation with
the Director of Municipalities who exercises control over the municipality under section 257 of the
Gujarat Municipalities Act, 1963. Apart from that, in view of the express and mandatory provisions
of sub-section (4) of section 19 of the Act, passage of time before the issue was raised by the
petitioners has to be considered. And, as seen earlier, the petitioners have admittedly taken six long
years in raising the issue after registration of the criminal case. Under these circumstances, the
petitioners, prima facie, appear to have abused the process of this Court by delaying the trial at the
crucial stage of its commencement and enjoying the stay for six years after the initial grant of
injunction for a limited period. It is also failure of the prosecuting agency and the State in not
pressing early hearing of such petition; and the administration of High Court also appears to have
been unaware of the directions to Registrar of each High Court by the Supreme Court in Satya
Narayan Sharma (supra).

9. Learned counsel Mr.Pandya was at pains to argue that clause (b) of sub-section (3) of section 19 of
the Act provided for an exception to the general ban envisaged in clause (c) and that the Court was
indeed required to examine serious irregularity or flagrant violation of law in the matter of grant of
sanction and if such lapses were tested on the touch- stone of the provisions of relevant legislations,
such as Gujarat Municipalities Act, 1963 and the Constitution of India, it would clearly appear that
the sanction was illegal and further prosecution on the basis of such sanction would itself be a
failure of justice. However, in view of second part of clause (c) of sub-section (3) of section 19 of the
Act, reading: .......No court shall exercise the power of revision in relation to any interlocutory
order.... , the ban against entertaining the present revision application is clear and complete. Even
otherwise, the relevant consideration of delay in raising the issue remains to be examined before
drawing any conclusion and recording satisfaction of the Court about failure of justice. Any defect or

Indian Kanoon - http://indiankanoon.org/doc/522324/ 10

 Nitinkumar vs State on 22 April, 2010

illegality in the order of sanction or even absence of it cannot per se occasion failure of justice
insofar as justice would require a fair trial for the charge of corruption rather than a short-cut to
acquittal on any technical ground. As observed by the Apex Court in C.B.I v. V.R.Seghal [AIR 1999
SC 3706], double trammels are imposed on the appellate Courts by the provisions of section 19 (3)
of the Act and section 465 of the Cr.P.C. It may be pertinent to add that the more the loopholes and
leeways are provided by judicial intervention, the more abject the failure of the prevention part of
the Prevention of Corruption Act, 1988 would be.

10. Therefore, the petition is dismissed and interim relief is vacated with the direction that this
order shall be placed before the Hon'ble Chief Justice for such appropriate orders and/or standing
instructions to the Registry as deemed fit, for special listing of such matters under the Prevention of
Corruption Act, wherein sanction is under challenge, in view of the direction of the Apex Court in
Satya Narayan (supra).

Sd/-

( D.H.Waghela, J.) (KMG Thilake) Top

Indian Kanoon - http://indiankanoon.org/doc/522324/ 11