Md. Anis V. The Union Of India Through C.B.I.

CR. MISC./44290/2011

AI Insights

Md. Anis, the petitioner, challenged the prosecution sanction order issued by the Commissioner of Income Tax, Bhagalpur, arguing that the competent authority for his appointment and promotion was the Chief Commissioner of Income Tax, Patna, not the Commissioner of Income Tax, Bhagalpur. The case arose from allegations of illegal gratification demanded by Anis while serving as a Tax Assistant. The trial had begun with charges framed and witnesses examined. The court's decision to dismiss the petition was based on the progression of the trial and the legal principle that issues concerning the validity of a prosecution sanction, which require examination of evidence, are not suitable for resolution under the inherent powers of the High Court at this preliminary stage.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 803463 (HC-PATNA)
• Appeal Type: Others
• Pronouncement Date: 17-12-2012
• Assessment Year: misc
• Other Referred Cases: RAM KRISHAN PRAJAPATI Versus STATE OF U.P., STATE OF KARNATAKA THROUGH CBI Versus C. NAGARAJASWAMY
• Laws Referred To: Code of Criminal Procedure, Prevention of Corruption Act, 1988
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: BIPIN SINHA
• Assessee Lawyers: V K PRASAD; HEMANT KUMAR
• Keywords: Competent authority; Illegal gratification; Inherent jurisdiction; Quash order; Sanction for prosecution
• Section: 19; 482

Judgement Text

"IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.44290 of 2011 ====================================================== Md. Anis, Son of Md. Wais, Resident of Mohalla – Samanpura, Raja Bazar, P.S. – Shastri Nagar, District - Patna. .... .... Petitioner/s Versus The Union Of India Through C.B.I. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. For the Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 3 17-12-2012 Heard Mr. V.K. Prasad, learned counsel, who was assisted by Sri Hemant Kumar, learned counsel for the petitioner and Sri Bipin Kumar Sinha, learned Standing Counsel for C.B.I. 2. In the present petition a peculiar stand has been taken by the petitioner that too while invoking inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, with a prayer to quash an order dated 30.11.2011 passed in Special Case No. 19 of 2006 arising out of RC Case No. 27(A) of 2006, whereby, prayer of the petitioner for deciding the validity and maintainability of the sanction order was rejected by learned Special Judge C.B.I. III, Patna. 3. Learned counsel for the petitioner submits that the appointing authority of petitioner was Chief Commissioner of Income Tax, Patna, whereas, in the case sanction order for prosecution of the petitioner was issued by Commissioner of Patna High Court Cr.Misc. No.44290 of 2011 (3) dt.17-12-2012 2/5 Income Tax, Bhagalpur. The petitioner has brought on record order of prosecution sanction issued by Commissioner of Income Tax, Bhagalpur. He submits that in view of Section 19 of the Prevention of Corruption Act, 1988, it is mandatory to obtain sanction for prosecution issued by authority who is competent to remove or dismiss the concerned employee. He submits that petitioner was appointed initially by the order of Chief Commissioner of Income Tax, Patna, and subsequently, he was promoted as Tax Assistant by the order of Chief Commissioner of Income Tax, Patna. He has referred to Annexure - ‘2D’ to the petition, and as such, in sum and substance, he has prayed for quashing of sanction order for prosecution as well as order dated 30.11.2011, whereby, the prayer of the petitioner for deciding the validity and maintainability of the sanction order was rejected. In support of his argument he has relied on two Apex Court judgments reported in (2000) 10 SCC 43 (RAM KRISHAN PRAJAPATI Versus STATE OF U.P.) and (2006) 1 SCC (Cri) 47 (STATE OF KARNATAKA THROUGH CBI Versus C. NAGARAJASWAMY). On aforesaid grounds he has prayed for quashing of the impugned order as well as order of prosecution sanction. Patna High Court Cr.Misc. No.44290 of 2011 (3) dt.17-12-2012 3/5 4. Sri Bipin Kumar Sinha, learned Standing Counsel for C.B.I., while opposing the prayer of the petitioner, at the very outset, submits that before order dated 30.11.2011 petitioner’s discharge petition was rejected, and subsequently, charge was framed and out of 15 prosecution witnesses 3 witnesses have already been examined. He further submits that order of sanction for prosecution of the petitioner makes it clear that after application of mind the competent authority has accorded sanction for prosecution. He further submits that unless the petitioner was in a position to satisfy the court that in absence of prosecution sanction order issued by a competent authority a failure of justice would occur, the order impugned may not be interfered with. 5. Besides hearing the parties, I have also perused the materials available on record. So far the plea which has been taken by the petitioner that he was appointed by the Chief Commissioner of Income Tax, Patna and sanction order for prosecution in respect of petitioner has been issued by the Commissioner of Income Tax, Bhagalpur and whether he was competent to accord sanction or not is concerned, it is required to be examined during trial keeping in view the fact that trial has already commenced and out of 15 prosecution witnesses 3 Patna High Court Cr.Misc. No.44290 of 2011 (3) dt.17-12-2012 4/5 witnesses have already been examined. In the present case the petitioner while functioning as Tax Assistant had demanded illegal gratification of Rs. 4,000/- from the complainant, and thereafter, a trap was laid and he was apprehended while accepting Rs. 4,000/- and thereafter, the petitioner was put on trial after obtaining sanction order issued by the Commissioner of Income Tax, Bhagalpur. Before the court below a peculiar plea was taken for deciding validity and maintainability of the sanction order. No prayer was made for assailing the order of cognizance in absence of prosecution sanction duly accorded by the competent authority. In this case there is sanction order issued by the Commissioner of Income Tax, Bhagalpur. So far as declaring the order of sanction for prosecution as invalid is concerned, the court is of the opinion that while exercising power under Section 482 of the Code of Criminal Procedure this subject can not be adjudicated due to the simple reason that those questions require examination of evidences. So far as Ram Krishan Prajapati case (supra) is concerned, in the said case the accused was put on full fledged trial and he was convicted and at the time of appeal when entire evidence was brought on record the matter was examined by the Apex Court. So far as C. Nagarajaswamy case (supra) is concerned, in the said case plea Patna High Court Cr.Misc. No.44290 of 2011 (3) dt.17-12-2012 5/5 was taken that once an accused was put on trial and discharged whether he can be put again on trial for the same offence or not. In that case question of application of Section 300 of Cr.P.C. was examined, and as such, petitioner may not get any advantage from the aforesaid judgments, that too, at this stage. Since trial has commenced and 3 witnesses have already been examined, the court is of the opinion that no favourable order can be passed. The petition stands dismissed. 6. Keeping in view the fact that case is of the year 2006 relating to demand of illegal gratification and apprehension of the petitioner red handed, while dismissing the present petition it is desirable to direct the trial court to proceed with the case expeditiously, so that, trial may come to its logical end without any unnecessary delay preferably within a period of six months from the date of receipt / production of a copy of this order. 7. Before parting with the order it is required to reiterate here that in view of provision contained in Section 19(3) of the Prevention of Corruption Act, 1988, an order passed by the trial court can be interfered only in case the court is satisfied that failure of justice has occurred. In this case, I do not find any such material. Praful/- (Rakesh Kumar, J) "