Y.P. Vij Vs. State (Central Bureau of Investigation) - Court Judgment

Excerpt:
the case examined the prosecution of the accused without sanctioning by the government wherein the accused was a government servant at the time of taking cognizance - it was held that the prosecution without obtaining prior sanction was without jurisdiction thereforee, the court quashed the proceedings against the accused. - - (3) it is further suggested that the prosecution prayed torn sanction thereafter against this accused as well as two other persons who were shown in column no. (7) in the instant case, the stand of the respondent all throughout is that there no evidence against this petitioner/accused as well as against the two other public servants who were shown in column-2 in the charge-sheet along with this petitioner and as stated by learned counsel for respondent the respondent had requested the special judge to accept the closure report as against all these three persons.n.g. nandi, j.(1) this is a petition under section 482 of the criminal procedure code for quashing the proceedings pending before special judge, delhi in cc no. 49(a)/88/dli dated 28.9.88 mainly on the ground that the prosecution has not obtained the sanction to prosecute this petitioner/accused and that the proceedings under section 120b, indian penal code and sections 7/13(l)(d) read with section 13(2) of the prevention of corruption act are liable to be quashed for want of sanction to prosecute. (2) it has been submitted by learned counsel for respondent/cbi that the challan had been filed against one ishwar chand on 3.7.89 for the aforesaid offences and the order issuing summons against him was passed on 3.7.89. it is suggested that at that pointoftime,thispetitionerwasnotarrayedastheaccsued and his name was shown in column-2 of the charge- sheet along with two other public servants. subsequently, this accused ca me on the scene and by order dated 21.9.93 summons were ordered to be issued against this accused. (3) it is further suggested that the prosecution prayed torn sanction thereafter against this accused as well as two other persons who were shown in column no. 2 of charge-sheet. the sanction to prosecute against two other public servants was refused by the competent authority whereas sanction to prosecution as against this petitioner/accused was considered not necessary in view of his retirement from government service with effect from 31.12.1992. (4) it is the stand of the respondent: state/cbi against this petitioner that there was no sufficient evidence to prosecute this petitioner. it is also revealed that it is against this petitioner-accused and ishwar chand that the special judge framed charge for the offences alleged vide order dated 25.5.1996. as far as these proceedings under section 482 of the code are concerned, the position that emerges is that when the challan was filed on 3rd july, 1989 and the special judge took cognizance of the offence by issuing summons vide order dated 3.7.89, this petitioner/accused was very much a public servant. the name of this petitioner along with two other public servants was shown in column-2 of the charge-sheet, as pointed out above, whereas in column-1, the name of only one accused ishwar chand was shown. (5) it need hardly be said that when the cognizance of the offences alleged is taken by the special judge, the sanction to prosecute a public servant would be a must - a condition precedent. in the instant case, when the cognizance of the offence has been taken by the special judge on 3.7.89, the petitioner/accused was admittedly in government employment-a public servant-since he superannuated w.e.f. 31.12.1992 and as such the sanction to prosecute the petitioner/accused in the date of the taking of the cognizance of offence on 3rdjuly, 1989 was necessary. simply because the petitioner/accused retired from government service w.e.f. 31.12.1992, i.e. after taking of the cognizance of the offence by the special judge on 3.7.1989, it cannot be said that the sanction to prosecute, as far as petitioner/accused is concerned, is not necessary, looking to the fact that no supplementary charge sheet has been filed against this petitioner/accused nor any order under section 319 of the criminal procedure code has been passed against this particular/accused and the summons have been issued on 21.9.93 by the special judge. (6) under these circumstances, as far as the cognizance of the offence is concerned, it can be said to have been taken by the special judge on 3.7.89 because is the cognizance of the offence and not of the offender, taken by the court. (7) in the instant case, the stand of the respondent all throughout is that there no evidence against this petitioner/accused as well as against the two other public servants who were shown in column-2 in the charge-sheet along with this petitioner and as stated by learned counsel for respondent the respondent had requested the special judge to accept the closure report as against all these three persons. learned counsel for respondent maintains the same stand even before this court which the respondent took before the special judge when the charge came to be framed. (8) under the circumstances, in the absence of the sanction to prosecute this petitioner/accused, no cognizance could have been taken by the special judge. (9) in the above view of the matter, the proceedings against this petitioner would be liable to be quashed under section 482 of the code as it would be an abuse the process of the court in the ends of justice. (10) in the result, the petition is allowed. the proceedings in corruption case no. 49(a)/88/dli dated 28.9.88 pending before sh. ajit bharioke, special judge, tis hazari courts, delhi against the petitioner/accused is ordered to be quashed. the said case shall proceed against the other accused ishwar chand in accordance with law stated for the sake of clarity. (11) this order be communicated to the special judge concerned forthwith.