Final Order 14

Order Details: COPY OF ORDER
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IN THE COURT OF MS. ANJU BAJAJ CHANDNA
PRINCIPAL DISTRICT & SESSIONS JUDGE-CUM-
SPECIAL JUDGE (PC ACT) CBI ROUSE AVENUE
DISTRICT COURTS, NEW DELHI
CBI V. Raj Kumar
CNR No. DLCT11-000489-2022
CBI No. RC/ 003/2022/A-0023/CBI/ACB/New Delhi
U/s. 7 of PC Act 1988
11.09.2023
ORDER
Present: Sh. Praneet Sharma, Ld. Sr. PP for CBI
Accused with Ld. Counsel Sh. Sanjeev
Bhardwaj
The issue of valid sanction has been raised by
applicant / accused Raj Kumar vide application dated
01.08.2022 stating therein that proceedings against the applicant
are required to be dropped and he deserves to be discharged for
want of valid sanction. The applicant / accused was recruited as
constable with Delhi Police vide order dated 31.12.2009.
Thereafter, applicant was promoted and appointed as Head
Constable vide order dated 27.09.2018 by the order of
Commissioner of Police and later on confirmed vide order dated
14.12.2021. The CBI has obtained the prosecution sanction in
terms of Section 19 (1) (c) of Prevention of Corruption Act from
the Deputy Commissioner of Police, South East District, Delhi.
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The valid prosecution sanction could only be accorded by the
competent authority, who was appointing authority. Referring to
the provisions of Section 19 of Prevention of Corruption Act and
to the Article 311 of Constitution of India and to the judgments of
High Court and Supreme Court, it is contended that Sanction
goes to the root of the matter and since sanction has been granted
by the authority, subordinate to the appointing authority, sanction
is not valid and therefore trial cannot be proceeded with. The
applicant / accused is entitled to be discharged from the present
case. Along with the application, the notifications of
appointment of applicant / accused to the post of Head Constable
dated 27.09.2018 and 14.12.2021 have been annexed.
CBI has not filed reply to the said application
despite opportunity afforded. However, during the course of
arguments, Ld. Sr. PP has referred to the Delhi Police
(Appointment and Recruitment ) Rules 1980 whereby under Rule
3 and 4, appointing authority in relation to the post of Head
Constable would be Deputy Commissioner of Police. Also
referring to the Rule 21, it is contended that powers as to
removal from service stand granted in favour of Deputy
Commissioner of Police.
Arguing on behalf of applicant/accused, Sh. Sanjeev
Bhardwaj, Advocate relied upon the following judgments.
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1. Nanjappa vs. State of Karnataka, 2015 (4) JCC 2409 of
Supreme Court of India
2. State Inspector of Police Visakhapatnam vs. Surya
Sankaram Karri, 2006 (4) RCR Criminal of Supreme Court
of India.
3. Ashok Rangshahi vs. State of Madhya Pradesh, 1996 (2)
Crimes 39 of Madhya Pradesh High Court.
4. Onkar Chand Prashar vs State, 1994 (3) C. C. Cases 38
(HC) of Delhi High court
5. Gopalbhai Mohanbhai Nagoda vs. State of Gujarat, IV
(1993) CCR 3288 (DB) of Gujarat High Court.
I have given due consideration to the material placed on
record as well as to the contentions of both the sides.
Section 19 (1)(c) of Prevention of Corruption Act, 1988
defines as under:-
19. Previous sanction necessary for prosecution.—
(1) 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
(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
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or with the 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.
Article 311 Constitution of India provides as under:-
Dismissal, removal or reduction in rank of persons employed in
civil capacities under the Union or a State:-
(1) No person who is a member of a civil service of the Union or
an all India service or a civil service of a State or holds a civil
post under the Union or a State shall be dismissed or removed by
a authority subordinate to that by which he was appointed
(2) No such person as aforesaid shall be dismissed or removed or
reduced in rank except after an inquiry in which he has been
informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges Provided
that where it is proposed after such inquiry, to impose upon him
any such penalty, such penalty may be imposed on the basis of
the evidence adduced during such inquiry and it shall not be
necessary to give such person any opportunity of making
representation on the penalty proposed: Provided further that this
clause shall not apply
(a) where a person is dismissed or removed or reduced in rank on
the ground of conduct which has led to his conviction on a
criminal charge; or
(b) where the authority empowered to dismiss or remove a
person or to reduce him in rank ins satisfied that for some reason,
to be recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry; or
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(c) where the President or the Governor, as the case may be, is
satisfied that in the interest of the security of the State, it is not
expedient to hold such inquiry
(3) If, in respect of any such person as aforesaid, a question
arises whether it is reasonably practicable to hold such inquiry as
is referred to in clause (2), the decision thereon of the authority
empowered to dismiss or remove such person or to reduce him in
rank shall be final.
The reading of both the above provisions makes it
clear that the removing or disciplinary authority has to be
equivalent in rank to the appointing authority. A public servant
cannot be removed by the authority subordinate to the one by
which he was appointed. The principles relating to sanction are
well settled and can be summarized as follows:-
(i) grant of appropriate sanction by competent authority
is sine qua non for taking of the cognizance against the
public servant under The Prevention of Corruption Act;
(ii) the grant or refusal of sanction is a statutory
function of the competent authority and the same is
independent and absolute discretion of competent
authority;
(iii) once the grant of sanction has been declined by the
competent authority, the decision could not be revisited
without fresh material;
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(iv) if opinion to decline or grant sanction was tentative
and incomplete, there can be subsequent order
positively granting the sanction and
(v) the issue of validity of sanction can be raised at
any stage since same is of vital importance.
Coming to the case in hand, as per notification dated
27.09.2018 placed on record, the Commissioner of Police granted
ad-hoc promotions to the post of Head Constable to various
constables including the applicant / accused ( appearing at serial
no.238). The said promotion was later on regularized on
14.12.2021 wherein the name of applicant / accused is appearing
at serial no.53.
According to the facts set out in the charge-sheet,
the complainant lodged a complaint against accused Raj Kumar
while he was posted as Head Constable at Police Station Kalindi
Kunj, Delhi for demanding illegal gratification. On the basis of
same, trap proceedings were initiated and accused was
apprehended. FIR was registered and accused was arrested and
charged with the offences under Prevention of Corruption Act on
30.04.2022. At the time of the arrest, the accused was posted as a
Head Constable as per the order(s) of appointment vide
notifications mentioned above.
I have also examined the Sanction Order dated
28.07.2022 and it is clear on perusal of the same that the sanction
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for prosecution has been granted under Section 19 of Prevention
of Corruption Act by Deputy Commissioner of Police, South
East, Delhi who has been subordinate to the Commissioner of
Police.
The judgments relied upon on behalf of accused are
clear that until and unless the sanction is valid and is granted by
the competent authority, the trial cannot proceed further. The
invalid sanction shall be deemed to be non-est in the eyes of law.
However, it is open to the prosecution agency to seek fresh
sanction for prosecution from the competent authority.
The factual scenario which emerges on the record of
this case, is that accused was promoted and appointed as Head
Constable by the orders of Commissioner of Police, Delhi. The
rules relied upon by Delhi Police and CBI relating to
appointment and recruitment as well as punishment and appeal as
applicable to Delhi Police, empower an officer of the rank of
DCP to appoint or remove any officer of the rank of Head
Constable. However, fact remains that accused in this case was
not appointed by an order passed by officer of the rank of DCP,
rather undisputedly such order was passed by the Commissioner
of Police. Apparently, Deputy Commissioner of Police, South
East was lower in rank to the Commissioner of Police, while
according sanction in this case.
Now it has to be seen that what legal principle
would be applicable to such factual situation, especially in view
of mandate of Article 311 of Constitution of India. The judgment
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passed by Division Bench of Delhi High Court in case of
Davinder Singh vs. State, ILR (1974) II 400 (DHC) directly
addresses issue involved herein. In that case, accused was
promoted and appointed as SI by an order passed by DIG, though
for his prosecution for offence under PC Act, sanction was
accorded by officer of the rank of SP. The court took notice of
the fact that even SP under Punjab Police Rules was competent to
promote ASI to SI. But the High Court observed that “The
irresistible conclusion from the perusal of the notification issued
by the Deputy Inspector General of Police is that it was he who
appointed Davinder Singh to officiate as Sub Inspector and
ordered that he be posted in Hissar District. That being so,
Davinder Singh could not be dismissed from the post of the Sub
Inspector by the Superintendent of Police, being an authority
subordinate to the appointing authority, viz. Deputy Inspector
General of Police, Ambala Range. No doubt, according to the
Police Rule, the Superintendent of Police of a District is
competent to appoint a Sub Inspector but what has to be
considered in the instant case is the factum of appointment and
not the competent authority who could have appointed Davinder
Singh to the rank of a Sub Inspector. The competency of authority
to order removal or dismissal has to be determined with
reference to the requirements of Article 311(1) which postulates
that the authority that orders dismissal or removal should not be
subordinate in rank to the authority which appointed the civil
servant.
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Same is the legal principle explained in the case of
Gopal Bhai Mohanbhai Nagoda v. State of Gujarat, IV (1993)
CCR 3288 (DB).
In my opinion, the above mentioned observations of
Delhi High Court leave no doubt that even though DCP (South
East) would have been competent to appoint accused as Head
Constable, but since she did not actually do so, rather such order
was passed by the Commissioner of Police. In the result, DCP
(South East) could not have validly removed accused from his
services on account of mandate of Article 311 of Constitution of
India. Thus, inevitable conclusion would be that DCP (South
East) was not competent to accord sanction for prosecution
against accused in this case. Rather it could be only the
Commissioner of Police. Hence, I do find that the sanction for
prosecution of accused in this case is vitiated and illegal. The
requirement of sanction being accorded by a competent authority
is not mere a formality and therefore, cognizance taken on the
basis of an illegal sanction becomes bad in the eyes of law.
Supreme Court in the case of Nanjappa (supra), observed
that “objection against sanction can be raised before the trial
court at any stage of proceedings and if the trial court finds that
sanction from competent authority was not obtained, proper
procedure for trial court is to discharge accused rather than
deciding case on merit. The trial court should discharge accused
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relegating parties to a stage where authorities can obtain fresh
sanction”.
In view of the aforesaid discussion, accused Raj
Kumar is discharged in this case. CBI shall be at liberty to obtain
fresh sanction from the competent authority and to file a fresh
charge-sheet, if sanction is accorded by the competent authority.
Application of the accused is accordingly allowed.
Accused is discharged from this case and is required
to furnish bail bond under Section 437A Cr.P.C to the tune of
Rs.50,000/- with one surety.
File be consigned to the record room.
(Anju Bajaj Chandna)
Principal District & Sessions Judge-
cum-Special Judge (PC Act) (CBI),
Rouse Avenue District Court
New Delhi/11.09.2023
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