- (1.) THE petitioner is assailing the order dated 10.11.2008 whereby the learned Special Judge (C.B.I.) has taken cognizance for the offence punishable under section 7 and 13 (2) read with Sections 13(i)(d) of the Prevention of Corruption Act, 1988, and order dated 23.04.2011, whereby learned Special (C.B.I.) has dismissed the application of the petitioner seeking discharge.
(2.) BRIEF facts of the present case, inter alia, are that the petitioner demanded bribe from Sri Gopal Prasad Sinha to clear his bill . Sri Gopal Prasad Sinha approached the C.B.I., Ranchi. After discreet enquiry on the allegation made by Sri Gopal Prasad Sinha an F.I.R. was registered against the petitioner on 09.07.2008. A trap was organized and the petitioner/ accused was caught red handed accepting bribe of Rs. 2500/-. C.B.I. sought sanction from M/s Bharat Coking Coal Limited to prosecute the petitioner. General Manager, B.C.C. Ltd., Sijua Area accorded sanction vide order dated 22.09.2008 (Annexure-7). Thereafter, C.B.I. has submitted charge sheet against the petitioner for offences punishable under section 7 and 13 (2) read with Sections 13(i)(d) of the Prevention of Corruption Act, 1988. The learned Special Judge, C.B.I. vide order dated 10.11.2008 pleased to take cognizance against the petitioner. Thereafter, the petitioner moved an application seeking discharge. Application seeking discharge was dismissed vide impugned order dated 23.4.2011. I have heard the learned counsel for the parties and have carefully perused the record. Mr. Baban Lal, learned Sr. Advocate, appearing for the petitioner submits that he is assailing impugned order on the sole ground that sanction was grated by the General Manager, who was not at all competent to grant sanction. He has vehemently argued that the appointing authority is Managing Director-cum-Chairman of the Company. Therefore, sanction could only be accorded by the Chairman-cum- Managing Director as required under section 19 of the Prevention of Corruption Act, 1988. Mr. Baban Lal, learned Sr. Advocate has further submitted that no power could have been delegated to the General Manager by the Chairman-cum- Managing Director for the removal, termination and award of punishment of the employee. He has further contended that only Board of Directors, by the valid resolution of the Company, could have given power to the General Manager, therefore, delegation of power by the Chairman-cum- Managing Director of the Company in favour of the General Manager to exercise the power in the disciplinary actions vide order dated 31.5.1998, Annexure-16 to the petition, is totally without jurisdiction. Consequently order of sanction dated 22.9.2008 by the General Manager of Sijua Area is also without jurisdiction. Mr. Baban Lal, learned Sr. Advocate in support of his argument has placed reliance on the judgment of the Hon'ble Apex Court in the case of State of Haryana v. N.C. Tandon, reported in AIR 1977 Supreme Court 1793, in the case of the Management of D.T.U. Versus Shri B.B.L. Hajelay and another, reported in (1972) 2 Supreme Court Cases 744 as well as on the judgment of the learned Single Judge of the Patna High Court in the case of Md. Quasim Ansari Versus State of Bihar & Anr. reported in 2003 (3) East Cr. C. 139 (Pat).
(3.) ON the other hand Mr. Mokhtar Khan, Assistant Solicitor General of India appearing on behalf of the C.B.I.- respondent, has submitted that in view of section 19 (3)(a)(b) as well as Explanation (a) error, omission or irregularity in grant of sanction is no ground to quash the criminal proceeding or to acquit the accused, unless Court finds that such error, omission or irregularity in grant of sanction has resulted in failure of justice. Mr. Mokhtar Khan, Assistant Solicitor General of India has further argued that it is admitted case that the Chairman-cum- Managing Director vide office order dated 31.5.1998 has delegated the powers to all the General Managers of the Areas in the matter of disciplinary proceedings. He further contends that, even if, for the sake of argument, it is presumed that Board of Directors, by the resolution, should have confirmed such delegation by the Chairman-cum- Managing Director in favour of Area General Managers, it would amount to only irregularity not the illegality. He further contends that irregularity stands cured, in view of the fact that till date Board of Directors have never objected such delegation by the Chairman-cum- Managing Director to the General Managers of the Areas and right from the year 1998 General Managers of the Areas are exercising the disciplinary powers so delegated to them by the Chairman-cum- Managing Director. In the case of State of Haryana v. N.C. Tandon (supra), provisions of section 6 of the Prevention of Corruption Act, 1947, was in question . Act 1947 stood repealed on the enforcement of Prevention of Corruption Act, 1988, in view of section 30 of 1988 Act. Language of section 6 of 1947 Act and language of section 19 of 1988 Act are altogether different. Therefore, judgment of N.C. Tandon (supra) has no application in the case in hand. Section 19 of 1988 Act reads as under: "19. Previous sanction necessary for prosecution; (1) No Court shall take cognizance of an offence punishable under section 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 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, 19073 (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 the 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) 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 any 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 purpose of this section, - (a) error includes competency of the authority to grant sanction; (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." From perusal of section 19 more particularly sub-section (3)(a) and (b) and Explanation (a), it is , thus, clear that finding, order or sentence passed by the Special Judge shall not be reversed or altered by the superior Courts on the ground of any error, omission or irregularity in the sanction granted by the Authority, unless Court is satisfied that such error, omission or irregularity has resulted in failure of justice. Error in granting of sanction includes competency of the Authority to grant sanction.;