H.N. Sarma, J.
1. By this application under Section 482 Cr.P.C. read with Article 227 of the Constitution of India the petitioner has challenged the legality and validity of the order dated 9.12.2004 passed by the learned Special Judge, Assam in Special Case No. 4(A)/2001, By the aforesaid order dated 9.12.2004 the learned Special Judge has rejected the prayer of the petitioner for dropping the case for want of proper sanction under Section 197 Cr.P.C. and Section 19 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the PC Act).
2. I have heard Mr. P.G. Baruah, learned senior counsel appearing for the petitioner and Mr. K. Munir, learned Public Prosecutor, Assam appearing for the respondent.
3. In course of argument Mr. P.G. Baruah, learned senior counsel, has mainly submitted that the sanction for prosecution to prosecute the accused petitioner issued vide order dated 17.8.1999 (Annexure-2 to the petition) is without proper application of mind. It has further been submitted that before passing the aforesaid sanction order to prosecute the accused petitioner and others, necessary materials were not produced before the Governor for taking proper decision in accordance with law. Accordingly, it is submitted that the aforesaid sanction order is vitiated for want of non-application of mind. Referring to Section 19 of the PC Act, it was pointed out by Mr. Baruah that 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 of the concerned authority. Accordingly, as the sanction order dated 17.8.1999 having been issued without proper application of mind, it is void and not a sanction in the eye of law and, as such, cognizance cannot be taken by the learned Special Judge to try the petitioner In support of his argument, Mr. Baruah has referred to the following decisions:
(1) Nabin Chandra Kalita v. State of Assam and Ors. reported in (2000) 1 GLR 96 (para 35);
(2) Monoranjan Prasad Choudhury v. State of Bihar reported in : (2002)10SCC688 ;
(3) P.A. Mohandas v. State of Kerala reported in : (2003)9SCC504 and
(4) Md. Iqbal Ahmed v. State of Andhra Pradesh reported in : 1979CriLJ633 .
4. Referring to the aforesaid decisions Mr. Baruah has submitted that in the instant case, all the materials not having been placed before the sanctioning authority for proper appreciation of the facts regarding issuance of sanction order, the sanction order dated 17.8.1999 is illegal and no cognizance can be taken on the basis of such illegal sanction order.
5. On the other hand, Mr. K. Munir, learned Public Prosecutor has submitted that the petitioner earlier approached this Court under Article 226 of the Constitution of India in Writ Petition (C) No. 3804/04 and prayed for quashing of the case raising the same issue. This Court vide order dated 25.03.2002 (Annexure 4 to this petition) has dismissed the said petition giving liberty to the petitioner to raise the question of validity and propriety of the sanction before the learned trial court with further direction to the learned trial Court to consider and pass necessary orders in accordance with law. Thereafter, the petitioner approached the learned trial court and the trial court considered the matter at length and after such meticulous consideration has passed the impugned order which requires no interference by this Court in exercise of powers under Section 482 Cr.P.C. It is submitted by the learned Public Prosecutor that there is no illegality or impropriety in passing the impugned order dated 9.12.2004 and the same having validly been passed, it requires no interference.
6. I have heard the rival contentions of the parties and perused the materials on record. By order dated 17.8.1999 the competent authority has accorded sanction under Section 19(1)(b) of the PC Act and Section 197 Cr.P.C. to prosecute the petitioner for having committed offence of criminal breach of trust, criminal conspiracy and corruption in relation to Government money amounting to Rs. 30 lakhs punishable under Section 120(B)/409/420/468 IPC read with Section 13(1)(c) & (d) of the PC Act in ACB P.S. Case No. 7/95 and for misuse of official position to obtain pecuniary advantage for himself. The said sanction order disclose that all the relevant facts and records of the ACB P.S. Case No. 7/95 investigating the offence punishable under the aforesaid sections of law having been placed before the Governor and the Governor of Assam after consideration of all relevant facts available on records, is satisfied that the accused petitioner is liable to be prosecuted in the interest of justice, in a competent court having jurisdiction to try the offence mentioned above, accorded sanction. It is, thus, apparent that before according sanction, the sanctioning authority considered all the materials of ACB P.S. Case No. 7/95 in which necessary investigation was carried on by the investigatingagency. Further, the impugned order disclose that on the prayer of the petitioner the original file was called for by the learned Special Judge to ascertain the validity of the sanction order and the learned Special Judge carefully considered the materials available on record and came to the finding that there is no occasion of any failure of justice in the instant case while passing the sanction order. The decision in Nabin Chandra Kalita (supra) as referred by Mr. Baruah does not come to his aid. In that case, challenge was the order of refusal of sanction to prosecute the then Chief Minister of Assam and the point in dispute in the present case is totally different. The other cases, namely, Monoranjan Prasad Chodhury (supra), P.A. Mohandas (supra) and Md. Iqbal (supra) also does not come in aid of the petitioner. There is no dispute about the proposition of law laid down in the aforesaid cases, but the facts of the present are entirely different. The pinpoint submission made on behalf of the petitioners that all the materials were not placed before the sanctioning authority and as such the same cannot be said to be an order of sanction in the eye of law. In the instant case, the sanction order ex facie disclose that the necessary records and materials including the ACB PS Case No. 7/ 95 was duly considered by the sanctioning authority and on such consideration of the materials on record, the sanctioning authority accorded necessary sanction to prosecute the petitioner. In State of Bihar & Anr. v. P.P. Sharma reported in 1981 Cr.L.J. 1438 (SC), the Apex Court has held that sanction order passed in that case to be valid on the ground that the sanction order was issued on consideration of the case diary. In the instant case, the record of the ACB PS Case No. 7/95 was duly considered by the sanctioning authority, which contained the entire record of investigation. Accordingly, the submission of Mr. Baruah is not sustainable. From reading of the impugned order, it cannot be said that the said order has been passed illegally or improperly or without any application of mind nor the learned Special Judge left out of consideration the necessary facts leading to any prejudice or injustice to the petitioner.
7. There is yet another aspect of the matter, Under Section 19(3)(a) of the PC Act it is provided that notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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 the court, a failure of justice has in fact been occasioned thereby, The said sub-section further provides that no court shall stay a proceeding under the 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. It has further been provided therein that no court shall stay the proceedings made under the 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. The said provision of Section 19 of the PC Act came to be considered by the Apex Court in the case of Satya Narayan Sharma v. State of Rajasthan reported in AIR 2001 SC 2865, wherein in para 5 of the decision, inter alia, held that Clause (b) of Section 19(3) of the PC Act contains the prohibition against stay of proceedings under the Act, but it is restricted to sanction aspect alone and no error, omission or irregularity in the sanction shall be a ground for staying the proceedings under the PC Act unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice. In the instant case, the learned Special Judge upon consideration of the materials on record which were called for the purpose of determining the matter, has come to a definite finding that no prejudice has been caused to the petitioner.
8. On perusal of the sanction order, it cannot be said to have been passed without any application of mind. Same having been issued on consideration of materials, viz., case record of ACB PS Case No. 7/95, which contains all the materials of investigation, the said order prima facie cannot be said to have been passed without any application of mind. Further, if there is anything to elucidate regarding non-application of mind, the can same be done only during the course of trial at the time of examination of witnesses. The learned Special Judge considered all the necessary aspects in terms of the direction of this Court in W.P.(C) No. 3804/04 and passed a just and proper order, which does not require any interference by this Court.
9. In view of the above discussions, the revision is not maintainable and is rejected.