IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CRIMINAL PROCEDURE
CRL.M.C. NO. 2521/2011
Date of Decision: 14.03.2012
PRAKASH CHANDRA
.… PETITIONER
Through: Mr.Abhik Kumar, Advocate with
Mr.S.S.Ray, Advocate.
Versus
CENTRAL BUREAU OF INVESTIGATION
…...RESPONDENT
Through: Ms.Sonia Mathur, Special P.P.
CORAM:
HON’BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. The present petition assails the order of the Ld. Special Judge, CBI
dismissing the application of the petitioner filed under section 311 CrPC for
recalling PW1, the sanctioning authority for further cross-examination.
2. The brief facts necessitating the disposal of the present petition are that
the petitioner and accused K.S. Meena were SDM and they are alleged to
have misused there official position as public servants by dishonestly
signing incomplete affidavits which were used by M/s Khatri enterprises and
M/s Zee Enterprises in taking clearance from POE office showing unskilled
labour to be skilled labour. A surprise search was conducted at the premises
of the aforesaid two companies and incomplete affidavits signed by the
petitioner and accused K.S. Meena were recovered. Thereafter search was
conducted at the premises of the petitioner and accused K.S. Meena which
produced rubber stamps which on comparison were found to be the same as
used on the seized incomplete affidavits. The investigations revealed that the
business of M/s Khatri Enterprises was being run by accused Avinash
Chandra and M/s Zee Enterprises was run by accused Nayeem Ahmed. The
affidavits were sent for FSL and it was found that the affidavits were
fraudulently attested by the petitioner and K.S. Meena only. Investigations
revealed that accused Sanjiv Gupta used to purchase the stamp papers and
supply to accused persons Avinash Chandra and Nayeem Ahmed. The
affidavits were partially typed and thereafter the incomplete typed affidavits
were given to Sanjiv Gupta to get them attested from the petitioner and
accused K.S. Meena. The sanction to prosecute the Petitioner was duly
granted by one Sh. P.K. Jalali, then Joint Secretary, Ministry of Home
Affairs, who was examined as PW1 and cross-examined by the counsel of
the accused persons on 15.02.2005 and 19.03.2005. P.K. Jalali was directed
to produce the sanction file on which sanction was granted for prosecution
of the petitioner. However, he failed to produce it. Thereafter an application
under section 91 CrPC was filed in the court of the Ld. Special Judge for
production of the report of investigation i.e., the SP report sent to Ministry
of Home Affairs by the CBI for obtaining sanction against the petitioner.
The Ld. Special Jude dismissed the said application vide order dated
31.01.2009. This order of the Ld. Special Judge was challenged in this court
in Crl. M.C. 448 of 2009 and during its pendency, the CBI was pleased to
supply the SP report to the petitioner. Crl. M.C. 448 of 2009 was disposed
vide order dated 29.04.2011. During the pendency of Crl. M.C. 448 of 2009,
application under section 311 CrPC was filed in the court of the Ld. Special
Judge for further cross-examination of PW1 which was dismissed vide order
dated 01.03.2011. Hence the present petition.
3. The Ld. counsel for the petitioner submits that the sanction granted by the
sanctioning authority was without application of mind and passed in a
mechanical manner as the sanctioning authority was misrepresented and
misled of the facts of the case.
4. It is contended that one accused Sanjiv Gupta who was cited as a witness
by the prosecution in the SP report was later made an accused in the
chargesheet. However, the sanctioning authority failed to take cognizance of
this fact while granting sanction for prosecution of the petitioner. The entire
evidence was not placed before the sanctioning authority and sanction was
granted solely on the basis of the SP report and therefore granted in a
mechanical manner without appreciating the entire evidence on record. The
petitioner relies upon a division bench judgment of this court in Salamat Ali
v. State, 174 (2010) DLT 558 (DB) wherein the matter was remanded back
to the trial court for re-examination of certain prosecution witnesses as it
was observed that the witnesses had not been examined effectively by the
accused’s counsel. The counsel further relies upon the judgment of the
Hon’ble Supreme Court in Hoffman Andreas v. Inspector of Customs,
Amritsar 2000 SCC (10) 430 wherein it was held that due to the death of the
defense counsel midway of the trial, the new counsel was allowed to further
cross-examine the material witnesses in the interest of justice.
5. In view of the above contentions and on the premise that there was a
change of counsel since the previous cross- examination, it is prayed that the
petitioner be allowed to further cross-examine the sanctioning authority on
the contents of the SP report which has several discrepancies as previously
the petitioner did not get the opportunity to confront him with the SP report
during cross-examination which was at that point of time not in his
possession.
6. Per contra, the respondent CBI has vehemently opposed the prayer of the
petitioner on the premise that PW1, the sanctioning authority has already
undergone detailed cross-examination on 15.02.2005 and 19.03.2005 by the
counsel of the petitioner and there is no requirement of further crossexamination of the sanctioning authority. The Ld. counsel relies upon Nisar
Khan & Ors v. State of Uttaranchal (2006) 9 SCC 386 wherein the offence
was under section 302 IPC and the court observed that it was unreasonable
to recall eyewitnesses for further examination after a lapse of 1 year. She
further relies upon a judgment of this court in Raminder Singh v. State Crl.
M.C. 8479 of 2006, wherein it was held that,
“6. In the first place, it requires to be noticed that scope of Section 311
CrPC does not permit a court to go into the aspect whether material portions
of the evidence on record should have been put to the witness in crossexamination to elicit their contradictions. If the court is required to perform
such an exercise every time an application is filed under Section 311 then
not only would it be pre-judging what according to it are `material portions’
of the evidence but it would end up reappraising the entire crossexamination conducted by a counsel to find out if the counsel had done a
competent job or not. This certainly is not within the scope of the power of
the trial court under Section 311 CrPC. No judgment has been pointed out
by the learned counsel for the petitioner in support of such a contention.
Even on a practical level it would well nigh be impossible to ensure
expeditious completion of trials if trial courts were expected to perform such
an exercise at the conclusion of the examination of prosecution witnesses
every time.”
7. After having heard the parties and perusing the order of the Ld. Special
Judge and the testimony of PW1, I find no infirmity with the order of the Ld.
Special Judge in dismissing this application.
8. It is rightly observed by the Ld. Special Judge that sanction order is a
speaking one. A sanction order is merely an administrative order and the
sanctioning authority need not sift and weigh evidence meticulously while
granting sanction and it only needs to take a prima facie view of offence
being made out while granting sanction for prosecution of an offence. In the
case of Hardev Singh Dhillon v. Department of Revenue Intelligence, 2010
(1) JCC 342 it was held that,
“18. The purpose of sanction for prosecution is to prevent malicious and
unnecessary prosecutions leading to harassment; it is a condition precedent
for the launch of a prosecution. What the prosecution has to prove is that the
sanction has been accorded with respect to the facts constituting the offence.
Narration of facts on the face of it is desirable but not always essential; if
there is no such narration the prosecution must in the course of trial by
extraneous evidence prove that those facts were before Sanctioning
Authority who applied its mind to them before the grant of sanction; an
opportunity of hearing is not necessary to be given before the grant of
sanction. It is purely an administrative act.”
9. The fact that petitioner is entitled to lead evidence to prove that there was
no application of mind of the sanctioning authority at the time of granting
sanction, is not disputed. However, this right cannot be allowed to be
misused to frustrate the very purpose for which it has been provided under
the law.
10. The applicability and use of section 540 CrPC which is para materia with
the new section 311 CrPC has been discussed in Jamatraj Kewalji Govani v.
State of Maharashtra, AIR 1968 SC 178,
“11. Section 540 is intended to be wide as the repeated use of the word 'any'
throughout its length clearly indicates. The section is in two parts. The first
part gives a discretionary power but the latter part is mandatory. The use of
the word ‘any’ in the first part and of the word 'shall' in the second firmly
established this difference. Under the first part, which is permissive, the
court may act in any of three ways : (a) summon any person as a witness,
(b)) examine any person present in court although not summoned, and (c))
recall or re-examine a witness already examined. The second part is
obligatory and compels the Court to act in these three ways or any one of
them if the just decision of the case demands it. As the section stands there is
no limitation on the power of the Court arising from the stage to which the
trial may have reached, provided the Court is bona fide of the opinion that
for the just decision of the case, the step must be taken. It is clear that the
requirement of just decision of the case does not limit the action to some
thing in the interest of the accused only. The action may equally benefit the
prosecution. There are, however, two aspects of the matter which must be
distinctly kept apart. The first is that the prosecution cannot be allowed to
rebut the defence evidence unless the prisoner brings forward something
suddenly and unexpectedly.
17. It would appear that in our criminal jurisdiction, statutory law confers a
power in absolute terms to be exercised at any stage of the trial to summon a
witness or examine one present in court or to recall a witness already
examined, and makes this the duty and obligation of the Court provided the
just decision of the case demands it. In other words, where the court
exercises the power under the second part, the inquiry cannot be whether the
accused has brought anything suddenly or unexpectedly, but whether court is
right in thinking that the new evidence is needed by it for a just decision of
the case. If the court has acted without the requirements of just decision, the
action is open to criticism, but if the court's action is supportable as being in
aid of a just decision the action cannot be regarded as exceeding the
justification.”
11. The judgments cited by the Ld. counsel of the petitioner are clearly
distinguishable on the facts as in the case of Salamat Ali (Supra) the ground
for re-calling of the witness had been incompetence of the defence counsel
and lack of cross-examination on material aspects of the case. Also in
Hoffman Andreas (Supra) the Hon’ble Supreme Court had allowed recalling of the witness on the premise that the previous counsel of the accused
had died midway the trial and further cross-examination of material
witnesses was essential in the interest of justice. In Yahswant Nanubhai
Pingle (Supra) the trial was quashed on the premise that all the evidence was
not placed before the sanctioning authority. It is distinguishable as in the
present case the witness in his cross-examination categorically states, “The
material placed before me consisted of affidavits attested by the accused, the
statements of witnesses recorded by CBI during investigation, seizure
memo, the CFSL report, etc”. Therefore, it cannot be said that the entire
evidence was not placed before the sanctioning authority in the present case.
All these cases have no bearing on the present case as the witness has
already undergone a detailed and lengthy cross-examination by the defence
counsel covering all material aspects of sanction including the SP report.
12. The law is trite that the powers of this court under section 482 CrPC has
to be used sparingly and with great caution and only in those cases where
there is glaringly injustice or abuse of process of court.
13. The recording of evidence in the present case is at the fag end. A plea to
re-call the sanctioning authority at this stage is unwarranted and the
petitioner is not likely to be prejudiced as he has already availed of his right
to cross-examine the witness. Also further cross-examination of the
sanctioning authority is by no means seen to be essential for the just decision
of this case.
14. Hence I find no infirmity in the order of the Ld. Special Judge.
15. Petition is accordingly dismissed.
Sd/M.L. MEHTA, J.