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Sanction to prosecution is a conditional precedent = whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 Cr.P.C. for investigation by the Deputy Superintendent of Police – Karnataka Lokayukta, in exercise of powers conferred under Section 156(3) Cr.P.C. without the production of a valid sanction order under Section 19 of the Prevention of Corruption Act, 1988.= The High Court, after hearing the parties, took the view that the Special Judge could not have taken notice of the private complaint unless the same was accompanied by a sanction order, irrespective of whether the Court was acting at a pre-cognizance stage or the post- cognizance stage, if the complaint pertains to a public servant who is alleged to have committed offences in discharge of his official duties. The High Court, therefore, quashed the order passed by the Special Judge, as well as the complaint filed against the appellant. ;Taking cognizance of an offence= “It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.”; whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre-cognizance stage. Section 2(c) of the PC Act deals with the definition of the expression “public servant” and provides under Clauses (viii) and (xii) as under: “(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty. (xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.”= When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C., obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. = “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 removeable 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.”- “Section 19(3) – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- a) no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; b) xxx xxx xxx c) xxx xxx xxx”= Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. – “Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him….. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.”= We are of the view that the principles laid down by this Court in the above referred judgments squarely apply to the facts of the present case. We, therefore, find no error in the order passed by the High Court. The appeals lack merit and are accordingly dismissed.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40843 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 1590-1591 OF 2013 (@ Special Leave Petition (Criminal) Nos.6652-6653 of 2013) Anil Kumar & Ors. ….. Appellants Versus M.K. Aiyappa & Anr. ….. Respondents … Continue reading
Sanction to prosecution when necessary = whether sanction before prosecution is required from each of the competent authorities entitled to remove an accused from the offices held by him, in situations wherein the accused holds a plurality of offices. The second determination was in respect of the requirement of sanction, in situations where the accused no longer holds the office, which he is alleged to have abused/misused, for committing the offence (s) for which he is being blamed. In answer to the first query, it has unambiguously been concluded, that if an accused holds a plurality of offices, each one of which makes him a public servant, sanction is essential only at the hands of the competent authority (entitled to remove him from service) of the office which he had allegedly misused. This leads to the clear inference, that other public offices held by the accused wherein an accused holds a plurality of offices, are irrelevant for purposes of obtaining sanction prior to prosecution. On the second issue it was concluded, that sanction was essential only if, at the time of taking cognizance, the accused was still holding the public office which he had allegedly abused. If the legal position determined in the above judgments is taken into consideration, there is certainly no doubt, that in the facts and circumstances of this case, sanction if required, ought to have been obtained from the Governor of the State of Madhya Pradesh. The instant determination is premised on the fact, that the appellant is stated to have misused his position while discharging his responsibilities as a nominee Director of the MPSIDC. It is clear to us, specially from the deliberation recorded hereinabove, that the appellant’s participation in the Cabinet Review Meeting dated 28.1.1994, and in the relevant meetings of the Board of Directors (of the MPSIDC) had no nexus to the post of Industries Commissioner, Government of Madhya Pradesh, or the subsequent office held by him as Joint Secretary, Department of Heavy Industries, Government of India. Accordingly, in our considered view, sanction of the authorities with reference to the post of Industries Commissioner, Government of Madhya Pradesh and Joint Secretary, Department of Heavy Industries, Government of India held by the appellant, was certainly not required. We therefore, hereby reject the submission advanced at the hands of the learned counsel for the appellant, that since the appellant continued to hold the above-mentioned public office(s) in his capacity as a member of the IAS cadre, at the time the first charge sheet was filed on 24.9.2007, prosecution could be proceeded with, and cognizance taken, only upon sanction by the competent authority(ies) of the said two offices (Industries Commissioner, Government of Madhya Pradesh and Joint Secretary, Department of Heavy Industries, Government of India), as wholly misconceived.= We are of the view, that the last contention advanced at the hands of the learned counsel for the appellant is a mixed question of fact and law.- whether the accused is guilty of the accusation levelled against him. Therefore, it is neither proper nor possible for us to deal with the last contention advanced at the hands of the learned counsel for the appellant, at the present juncture.= we find no merit in the instant appeals. The same are accordingly hereby dismissed.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40781 “REPORTABLE” IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1454 OF 2013 (Arising out of SLP (Crl.) No.61 of 2012) Ajoy Acharya … Appellant Versus State Bureau of Inv. against Eco. Offence … Respondent With CRIMINAL APPEAL NO.1455 OF 2013 (Arising out of SLP (Crl.) No. 400 of 2012) J … Continue reading
Pension and Gratuity with holding pending inquiry = whether, in the absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of departmental/ criminal proceedings? = Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”. 14. Article 300 A of the Constitution of India reads as under: “300A Persons not to be deprived of property save by authority of law. – No person shall be deprived of his property save by authority of law.” Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced. 15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold – even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different. 16. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish. Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each.
published in http://judis.nic.in/supremecourt/filename=40650 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6770 OF 2013 (Arising out of Special Leave Petition (Civil) No. 1427 of 2009) State of Jharkhand & Ors. ….. Appellant(s) Vs. Jitendra Kumar Srivastava & Anr. …..Respondent(s) WITH C.A. No. 6771/2013 (arising out of … Continue reading
V. Vijay Sai Reddy- cancellation of bail granted to the respondent herein.= It is true that the Special Judge while granting bail imposed certain conditions and the High Court has also added some more additional conditions, however, taking note of few instances in which how the respondent has acted, it cannot be possible for the investigating agency to collect the remaining materials for the remaining three charge sheets to be filed. In such circumstances, we are satisfied firstly the Special Court took irrelevant materials for consideration for grant of bail and secondly, the High Court having arrived definite conclusion that several findings of Special court are unacceptable or irrelevant but ultimately affirmed the very same order of the special Judge granting bail. = While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.= It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words “reasonable grounds for believing” instead of “the evidence”= whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. Taking note of all the aspects discussed above, without expressing any opinion on the merits, we set aside both the orders of the Special Judge and the High Court granting bail to A-2 and allow the appeal filed by the CBI with a direction to complete all the investigation relating to the remaining three charge sheets and file appropriate report before the trial Court within a period of four months from today. Thereafter, the respondent herein is free to renew his prayer for bail before the trial Court and if any such petition is filed, the trial Court is free to consider the prayer for bail independently on its own merits without being influenced by the present appeal. During the course of hearing, it is brought to our notice that the marriage of the daughter of the respondent has been fixed for 26.05.2013. Taking note of the said aspect, we direct the respondent herein to surrender on or before 5-6-2013 before the Special Court for being sent to the custody. 33) The appeal is allowed.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 729 OF 2013 (Arising out of SLP (Crl.) No. 5946 of 2012 Central Bureau of Investigation …. Appellant(s) Versus V. Vijay Sai Reddy …. Respondent(s) J U D G M E N T P. Sathasivam, J. 1) Leave granted. 2) This … Continue reading
INJUNCTION TO RESTRAIN TELECAST OF T.V. SERIAL TELECAST = the proposed telecast of the Episode Nos.214-215 of “CRIME PATROL DASTAK”, in which the dramatised version of “JBT TEACHERS RECRUITMENT SCAM” is to be broadcast,= once the trial has been completed and the Petitioners have been convicted and, thereafter, arrested, there is no further possibility of any bias against them at the time of hearing of the appeal. The contents of the trial and the ultimate judgment of conviction and sentence is now in the public domain and is available for anyone to see.= Without going into the question of the right of freedom of speech of the maker of the Television Episodes, we are convinced that no interference is called for with the order of the Division Bench of the High Court, setting aside the order of the learned Single Judge. However, in order to safeguard the interests of the Petitioners, we are also of the view that certain restrictions can be imposed at the time of the screening of the said Episodes. Accordingly, the Producers, Directors and Distributors and all those connected with the screening of the aforesaid Episodes on television, shall ensure that there is no direct similarity of the characters in the Serial with the Petitioners, who have been convicted in connection with the JBT Teachers Recruitment and had been sentenced to different periods of custody, and that steps are taken to protect their identity, as far as possible. 18. The Special Leave Petition is dismissed with the aforesaid observations.
‘ REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION(CIVIL) NO.9967 OF 2013 Vidya Dhar & Ors. Petitioners Versus Multi Screen Media Pvt. Ltd. Respondent J U D G M E N T ALTAMAS KABIR, C.J.I. 1. The three petitioners before … Continue reading
Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case.= Undoubtedly, an application filed under Section 311 Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the hand-writing expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case. The High Court has simply quoted relevant paragraphs from the judgment of the Trial Court and has approved the same without giving proper reasons, merely observing that the additional evidence sought to be brought on record was not essential for the purpose of arriving at a just decision. Furthermore, the same is not a case where if the application filed by the appellant had been allowed, the process would have taken much time. In fact, disallowing the said application, has caused delay. No prejudice would have been caused to the prosecution, if the defence had been permitted to examine said three witnesses. In view of above, the appeal succeeds and is allowed. The judgment and order of the Trial Court, as well as of the High Court impugned before us, are set aside. The application under Section 311 Cr.P.C. filed by the appellant is allowed. The parties are directed to appear before the learned Trial Court on the 17th of May, 2013, and the learned Trial Court is requested to fix a date on which the appellant shall produce the three witnesses, and the same may thereafter be examined expeditiously in accordance with law, and without causing any further delay. Needless to say that the prosecution will be entitled to cross examine them.
Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.709 of 2013 (Arising out of SLP (Crl.) No.3271 of 2013) Natasha Singh …Appellant Versus CBI (State) …Respondents J U D G M E N T Dr. B.S. CHAUHAN, J. 1. Leave granted. 2. This appeal has been preferred against the impugned … Continue reading
the appellant besides working as the Minister of Railways was the Head of the two Public Sector Undertakings in question at the relevant time. It also appears from the materials on record that the four persons while in London had assisted the appellant in performing certain tasks connected with the discharge of duties as a Minister. It is difficult to visualise as to how in the light of the above facts, demonstrated by the materials revealed in the course of investigation, the appellant can be construed to have adopted corrupt or illegal means or to have abused his position as a public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the aforesaid four persons. If the statements of the witnesses examined under Section 161 show that the aforesaid four persons had performed certain tasks to assist the Minister in the discharge of his public duties, however insignificant such tasks may have been, no question of obtaining any pecuniary advantage by any corrupt or illegal means or by abuse of the position of the appellant as a public servant can arise. As a Minister it was for the appellant to decide on the number and identity of the officials and supporting staff who should accompany him to London if it was anticipated that he would be required to perform his official duties while in London. If in the process, the Rules or Norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has also been expressed by this Court in M. Narayanan Nambiar vs. State of Kerala[1] while considering the provisions of section 5 of Act of 1947. If the totality of the materials on record indicate the above position, we do not find any reason to allow the prosecution to continue against the appellant. Such continuance, in our view, would be an abuse of the process of court and therefore it will be the plain duty of the court to interdict the same.
IN THE SUPREME COURT OF INDIA CRIMINAL APPELATE JURISDICTION CRIMINAL APPEAL No. 1804 of 2012 (Arising out of SLP (Crl.) No.3841 of 2012) C.K. Jaffer Sharief … Appellant Versus STATE (Through CBI) …Respondent J U D G M E N T RANJAN GOGOI, J Leave granted. 2. The judgment and order of High Court of … Continue reading
quantum of sentence In this case, so far as appellant M.C. Gupta is concerned, he is about 70 years’ old and is stated to be suffering from various ailments. The crime in question took place about 24 years ago. In the circumstances, we are of the opinion that his sentence of two years’ RI for offence under Section 5(2) read with Section 5(1)(c) of the Act of 1947 should be reduced to one year’s RI and is accordingly reduced. Rest of the sentences awarded to him shall remain intact. So far as appellant Mohan Lal Gupta is concerned, he has been sentenced to one year’s RI for offence under Section 5(2) read with Section 5(1)(c) of the Act of 1947. Considering the fact that he was the beneficiary of the dishonest and fraudulent misappropriation of the Company’s money, we are not inclined to reduce his sentence. We clarify that the sentence of fine imposed on both the appellants is confirmed. The appeals are disposed of in the aforestated terms.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1332 OF 2012 [Arising out of Special Leave Petition (Crl.) No.3786 of 2012] M.C. GUPTA … Appellant Versus CENTRAL BUREAU OF INVESTIGATION, DEHRADUN … Respondent WITH CRIMINAL APPEAL NO. 1333 OF 2012 [Arising out of Special Leave Petition (Crl.) No.5908 of 2012] … Continue reading
illegal gratification= from the evidence of the witnesses that there was sufficient evidence of Syed Ahmed demanding illegal gratification from Nagaraja and receiving and accepting it when given by him. On this basis, we find no reason to interfere with the judgment and order under appeal. With regard to the sentence awarded to Syed Ahmed, the High Court has erred in awarding a sentence of only three months rigorous imprisonment. Section 13(2) of the Act prescribes a minimum sentence of one year imprisonment. However, the State has not appealed against the quantum of sentence. Moreover, the incident is of 1993, which is about 19 years ago. Keeping these factors in mind, we do not propose to interfere with the sentence awarded. The appeal is dismissed.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1323 OF 2007 Syed Ahmed …..Appellant Versus State of Karnataka …..Respondent J U D G M E N T Madan B. Lokur, J. The Appellant (Syed Ahmed) was acquitted by the Trial Court of offences under Sections 7 and 13(1)(d) read with Section … Continue reading
under Sections 242 and 311 Cr.P.C. for recall of prosecution witnesses No.1 and 2 for cross-examination.Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of this Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs. 2012 (3) SCALE 550. A timely reminder of that solemn duty was given, in the following words: “What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.” 16. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself. 17. In the result, we allow these appeals, set aside the orders passed by the Trial Court as also the High Court and direct that the prosecution witnesses No.1 and 2 shall be recalled by the Trial Court and an opportunity to cross-examine the said witnesses afforded to the appellant. In fairness to the counsel for the appellant, we must record that he assured us that given an opportunity to examine the witnesses the needful shall be done on two dates of hearing, one each for each witness without causing any un-necessary delay or procrastination. The Trial Court shall endeavour to conclude the examination of the two witnesses expeditiously and without unnecessary delay.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 874-875 OF 2012 (Arising out of S.L.P (Crl.) Nos.4286-87 OF 2011) P. Sanjeeva Rao …Appellant Versus The State of A.P. …Respondent J U D G M E N T T.S. THAKUR, J. 1. Leave granted. 2. These appeals arise … Continue reading
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