KHAJA MOHINUDDIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD the learned counsel for the respective parties.

(2.) THIS appeal is filed against the order of the Special Judge, Gadchiroli, dated 28/7/2002, by which the prayer of the accused for bail was rejected by the Special Court. The counsel for the appellants directly relied on the Division Bench Judgment of this Court in the case of Mohammad Gausuddin Wall Mohammad v. State of Maharashtra. The present accused ad the said Mohammad Gausuddin S/c Wali Mohammad were prosecuted in POTA and both the cases are same. In that case, the Division Bench of this Court taken into consideration all the important aspects and also took note of the fact that till the Special Court took cognizance of the case. There was no sanction as it was requisite under Section 50 of the Prevention of Terrorists Act.

(3.) THE learned Additional Public Prosecutor could not dispute that when the Special court had taken cognizance in the matter. Sanction was not granted and that the sanction was subsequently accorded by the Government. However, the learned Additional Public Prosecutor tried to rely upon a judgment of the apex Court in the case of State of Bihar v. PP. Sharma. Our attention was drawn to para 67 of judgment which reads as under: 67. It is equally well settled that before granting sanction the authority or the appropriate Govt. must have before it the necessary report and the material facts which prima fade establish the commission of offence charged for and that the appropriate Government would apply their mind to those facts. The order of sanction only is an administrative act and not a quasi judicial nor a us involved. Therefore, the order of sanction need not contain detailed reasons in support thereof as was contended by Sri Jam. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard. The question of giving an opportunity to the public servant at that stage as was contended for the respondents does not arise. Proper application of mind to the existence of a prima facie evidence of the commission of the offence is only a pre-condition to grant or refuse to grant sanction. When the Government accorded sanc-tion, 5. 114 (E) of the Evidence Act raises presumption that the official acts have been regularly performed. The burden is heavier on the accused to establish the contra to rebut that statutory presumption. Once that is done then it is the duty of the prosecution to produce necessary record to establish that after application of mind and consideration thereof to the subject the grant or refusing to grant sanction was made by the appropriate authority. At any time before the Court takes cognizance of the offence the order of sanction could be made. It is settled law that issuance of the process to the accused to appear before the Court is sine quo non of taking cognizance of the offence. The emphasis of S. 197 (1) or other similar provisions that no Court shall take cognizance of such offence except with the previous sanction posits that before taking cognizance of the offence alleged there must be before the Court the prior sanction given by the competent authority. Therefore, at any time before taking cognizance of the offence it is open to the competent authority to grant sanction and the prosecution is entitled to produce the order of sanction. Filing of charge-sheet before the Court without sanction per se is not illegal, nor a condition precedent. A perusal of the sanction order clearly indicates that the Govt. appears to have applied its mind to the facts placed before it and considered them and then granted sanction. No evidence has been placed before us to come to a different conclusion. Accordingly we hold that the High Court committed manifest error of law to quash the charge-sheets on those grounds.