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Position of sanction and miscellaneous matters


Kerala High Court

Against The Judgment In Cc 39/1991 ... vs By Advs.Sri.B.Raman Pillai on 23 December, 2015


A prosecution under Section 13 (1) (e) of the P.C Act, 1988 (Section 5 (1) (e) of the P.C Act, 1947) is quite different from a prosecution under the other Sections of the P.C Act like the present Sections 7 and 13 (1)(a) to 13(1)(d). In a trap case, or in a case alleging dishonest misappropriation of public money by a public servant, the Crl.A No.148 of 2000 amount involved will always be definite and certain. But in a prosecution on the allegation of amassement of wealth disproportionate to the known-sources of income, the duty is heavy on the prosecution to prove all the required details regarding the assets and income of the accused. The amount of income, or the value of assets, in such a prosecution, may not be always definite or certain. It must be the concern of the prosecution to ensure that the necessary figures regarding the assets and income of the accused are presented before the court to the satisfaction of the court, or on a proper assessment, made reasonably, rationally and realistically. In such a prosecution alleging amassement of wealth disproportionate to the known- sources of income, the prosecuting agency is bound to tell the court what exactly are the known-sources of income, what exactly is his income from each such source, and to what extent wealth was amassed by the accused, disproportionate to such known-sources of income. In such a prosecution, the assets of the accused must be properly valued, and the income must be properly assessed, though Crl.A No.148 of 2000 mathematical precision may not be possible. Of course, it is true that some guess work will have to be made in making such assessment and valuation. But such guess work shall be something justifiable on the touchstone of reasonableness and realistic approach. Though mathematical precision is not possible in such assessment, the prosecuting agency will have to convince the court that income was assessed and assets were valued quite reasonably, on a realistic approach, applying the commonly accepted principles and methods of valuation. In short, such a valuation or assessment shall not be whimsical.



Ext.P393 is the prosecution sanction granted by the Secretary to the Government, Vigilance Department. This prosecution sanction was marked in this case through PW91 who was only an Under Secretary of the Vigilance Department. In examination-in-chief PW91 identified the signature of the Secretary in Ext.P393 sanction and stated that it was granted by the Principal Secretary to the Government after examination of the relevant records and documents. In cross-examination, the witness stated that she does not know what are the documents or the materials perused or considered by the Vigilance Secretary for the purpose of granting sanction, and that, usually the Secretary will put his signature in the sanction order Crl.A No.148 of 2000 prepared by the Department. She does not know who prepared the Ext.P393 sanction order, and she does not know whether the sanction order was properly granted by the Principal Secretary. She also stated that she had not in fact seen the Principal Secretary perusing or examining the relevant records and documents for the purpose of granting sanction, and she does not know whether the Principal Secretary had properly applied his mind before granting sanction. Thus, it is seen that as regards proof of sanction, the evidence given by PW91 is really worthless. Of course, she is not the competent person to prove the prosecution sanction because it was not granted by her. It is not known why the prosecution brought an Under Secretary to prove the prosecution sanction granted by the Principal Secretary. An identical situation came up before this Court in Antony Cardoza v. State of Kerala (2011 (1) KLT 946). In the said case, the prosecution examined an Under Secretary to prove a prosecution sanction granted by the Principal Secretary. In the said case, this Court held that independent application of mind and consequent Crl.A No.148 of 2000 satisfaction arrived at for granting sanction are matters which could be proved only by the sanctioning authority. This Court observed that when prosecution sanction including independent application of mind is not proved by the sanctioning authority, it cannot be said that the prosecution sanction is properly and legally proved.

In CBI v. Ashok Kumar Aggarwal, [AIR 2014 SC 827], the Hon'ble Supreme Court held that the sanctioning authority will have to do complete and conscious scrutiny of the whole materials placed before it,and the authority is bound to consider all the materials properly and apply his mind independently to the facts and the materials before taking decision on the request to grant sanction. The object of prosecution sanction under the P.C Act is to prevent wrong prosecutions or vexatious prosecutions, and to ensure that a corrupt public servant is prosecuted on the basis of definite materials. In CBI v. Ashok Kumar Aggarwal, the Hon'ble Supreme Court also held that the sanction order should show that the authority has considered all the relevant aspects and materials placed Crl.A No.148 of 2000 before it. Following the earlier decisions of this Court and the Hon'ble Supreme Court, this Court held in Gurudas v. State of Kerala, [2015 (3) KLT 749] that the prosecution sanction granted under Section 19 of the P.C Act will have to be proved by the person who granted the sanction, as provided under the Indian Evidence Act. This Court further held that somebody who can identify the signature of the sanctioning authority can prove the sanction formally only in cases where the prosecution sanction can claim some sanctity or immunity under the law. When the sanction cannot claim such sanctity or immunity, it must be proved by the person who granted the sanction, because the burden of proving the essentials as regards sanction, that it was granted on an independent application of mind and after consideration of all the relevant materials and documents, cannot be taken over by somebodyelse, who had no role or involvement in the process of granting sanction. In Savithri v Deputy Superintendent, Vigilance and Anti Corruption Bureau [ 2015 (3) KLT 909], this Court held that the Investigating Officer is not the Crl.A No.148 of 2000 competent person to prove a prosecution sanction granted by some other authority under Section 19 of the P.C Act. A sanction simply marked in evidence by the Investigating Officer cannot be accepted as a proper and legal sanction. As to how and what a prosecution sanction should be and how it should be granted, the Hon'ble Supreme Court held thus, in paragraph 14 of the judgment in State of Maharashtra through C.B.I v Mahesh G.Jain [(2014) 1 SCC (Cri) 515]:

"14.1.It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances has granted sanction for prosecution.
14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it. 14.4. Grant of sanction is only an administrative function, and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.

14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as Crl.A No.148 of 2000 it does not sit in appeal over the sanction order. 14.6 If the sanctioning authority has perused all the materials placed before it, and some of them have not been proved that would not vitiate the order of sanction. 14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."

8. In this case, Ext.P393 sanction was marked through PW91. She is not the competent person to grant the sanction. She could only identify the signature of the Principal Secretary who granted the sanction. Her evidence shows that she does not know whether the mind was independently applied by the Secretary, and whether the sanctioning authority had considered all the relevant materials, documents and circumstances, before taking decision to grant sanction. The prosecution does not have any explanation why the Principal Secretary who granted sanction was not examined to prove it. In very many cases, this Court could find the prosecution sanction being simply marked by the Investigating Officer, or being marked by somebody else claiming to be familiar with the signature of Crl.A No.148 of 2000 the sanctioning authority. Such a practice cannot be accepted in view of the position and guidelines settled by the Hon'ble Supreme Court as regards the nature of the function of the sanctioning authority and also the sanctity and importance of the prosecution sanction granted under the P.C. Act. In this case,I find that the prosecution sanction stands not properly and legally proved, by the person who granted the sanction. In view of the position recently settled by this Court, following the decisions of the Hon'ble Supreme Court, I find that the prosecution in this case is barred under Section 6 of the P.C Act, 1947.

Discharge for Sessions judge and magistrate are different. Procedure of discharge for sessions trial and warrant trial compared

Allahabad High Court

Ajeet Singh vs State Of U.P. And Another on 26 November, 2021

10. The aforestated sections indicate that the Code contemplates discharge of the accused by the court of sessions under Section 227 in a case triable by it, cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. The three sections contain somewhat different provisions in regard to discharge of the accused. As per Section 227, the trial judge is required to discharge the accused if "the Judge considers that there is not sufficient ground for proceeding against the accused". The obligation to discharge the accused under Section 239 arises when "the Magistrate considers the charge against the accused to be groundless". The power to discharge under Section 245(1) is exerciseable when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted would warrant his conviction". Sections 227 and 239 provide for discharge being made before recording of evidence and the consideration as to whether the charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the parties to be heard. On the other hand, the stage for discharge under Section 245 is reached only after the evidence referred to in Section 244 has been taken.


11. Despite the slight variation in the provisions with regard to discharge under the three pairs of sections, the settled legal position is that the stage of framing of charge under either of these three situations, is a preliminary one and test of "prima facie" case has to be applied -- if the trial court is satisfied that a prima facie case is made out, charge has to be framed.


12. The nature of evaluation to be made by the court at the stage of framing of charge came up for consideration in Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another3, and referring to the earlier decisions in State of Maharashtra Vs. Som Nath Thapa4, and State of M.P. Vs. Mohanlal Soni5, it was held that at that stage the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the material on record. The relevant observations made in the judgment are as follows :-


"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.


xxx


13. Then again in State of Maharashtra Vs. Som Nath Thapa, a three-Judge Bench of this Court, after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned; (ii) Sections 239 and 240 relatable to trial of warrant cases; and (iii) Sections 245(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus: (SCC p. 671, para 32) "32...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."


14. In a later decision in State of M.P. Vs. Mohanlal Soni, this Court, referring to several previous decisions held that: (SCC p. 342, para 7) "7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. "


13. Reiterating a similar view in Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and another6, it was observed that while framing charges court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of the materials on record. It needs to evaluate whether there is a ground for presuming that the accused had committed the offence and it is not required to evaluate sufficiency of evidence to convict the accused. It was held that the court at this stage, cannot speculate into the truthfulness or falsity of the allegations and contradictions, inconsistencies in the statement of witnesses cannot be looked into at the stage of discharge.


14. In the context of trial of a warrant case, instituted on a police report, the provisions for discharge are to be governed as per terms of Section 239 which provides that a direction for discharge can be made only for reasons to be recorded by the court where it considers the charge against the accused to be groundless. It would, therefore, follow that as per the provisions under Section 239 what needs to be considered is whether there is a ground for presuming that the offence has been committed and not that a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offences alleged would justify the framing of charge against the accused in respect of that offence, and it is only in a case where the Magistrate considers the charge to be groundless, he is to discharge the accused after recording his reasons for doing so.


15. The legal position with regard to the principles to be applied while considering a discharge, in the context of the provisions under Section 227 of the Code were considered in Union of India Vs. Prafulla Kumar Samal and Another7, wherein it was observed as follows:


"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:


(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.


(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.


(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.


(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."


16. The considerations relevant at the stage of discharge in the context of Section 227 were discussed in a recent decision in the case of M.E. Shivalingamurthy Vs. Central Bureau of Investigation, Bengaluru8 and referring to an earlier decision in P. Vijayan Vs. State of Kerala9, and the legal principles governing the exercise of such power were stated as follows:


"Legal principles applicable in regard to an application seeking discharge


17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala and discern the following principles:


17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.


17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.


17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.


17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial".


17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.


17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.


17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.


17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.


18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar10). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi11)."


17. The provisions of discharge under Section 239 of the Code fell for consideration in K. Ramakrishna and others Vs. State of Bihar and Another12, and it was held that questions regarding the sufficiency or reliability of the evidence to proceed further are not required to be considered by the trial court under Section 239 and the High Court under Section 482. It was observed as follows:


"4. The trial court under Section 239 and the High Court under Section 482 of the Code of Criminal Procedure is not called upon to embark upon an inquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting of evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed. As observed by this Court in Rajesh Bajaj v. State NCT of Delhi13, the High Court or the Magistrate are also not supposed to adopt a strict hypertechnical approach to sieve the complaint through a colander of finest gauzes for testing the ingredients of offence with which the accused is charge. Such an endeavour may be justified during trial but not during the initial stage."


18. The ambit and scope of exercise of power under Sections 239 and 240 of the Code, are therefore fairly well settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be "groundless". The section mandates that the Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, i.e. either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Section 239/240, is as to whether the allegation/charge is groundless.


19. This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution- the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the accused can be said to be "groundless'.


20. The word "ground" according to Black's Law Dictionary14 connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean basis for charging the accused or foundation for the admissibility of evidence. Seen in the context, the word "groundless" would connote no basis or foundation in evidence. The test which may therefore be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever.




Position of section 153 Of Indian Evidence Act :



6.1 The bare reading of Section 153 of the Act makes it clear that no evidence shall be given to contradict the witness so far as it tends to shake his credit by injuring his character. Even if he has answered any question which is relevant to the inquiry falsely, he may be afterwards be charged for giving false evidence. Thereby HC-NIC Page 6 of 11 Created On Thu Jan 11 23:33:56 IST 2018 the Indian Evidence Act is very much clear that there cannot be any further evidence to contradict any witness and that too with the question , which is not relevant to the inquiry on hand. Whereas in the present case, the question regarding whether witness Rajuben is literate or not is not a real issue before the Court. But, in any case, if she has answered falsely to any such question, the section permits the prosecution to charge her for giving false evidence. But, it is to be done afterwards and not immediately in the same trial.


7.2 In view of such clarity of the section, no further discussion is required and, thereby, there may not be any option but to reject such application. The most interesting part of the section is two explanations attached with the section and when there are only two explanations provided under the statute, now it becomes clear that for rest of the issues, no evidence can be given to contradict any such witness. Such explanations are regarding prior convictions of the witness and his evidence may be regarding previous conviction. Therefore, if witness states that he has not faced any prior conviction, then evidence may be given regarding his previous conviction and similarly, if any question is tending to impeach his impartiality and answer it by denying the facts suggested, the witness may be contradicted but not in any other case. It is also clear and obvious that in the present case, none of the explanations is under reference and, therefore, practically prosecution is barred by giving any evidence to contradict the witness when it is only for the purpose to verify that she is literate or illiterate. Though prosecution is free to charge her for giving such false evidence, the word used is "afterwards" for allowing to charge and, therefore, it becomes clear that it cannot be done at the stage of inquiry and trial against the accused.


"The principal underlying Section 153 of the Evidence Act is to limit the right to call evidence to contradict witnesses on collateral questions and exclude all evidence of facts which are incapable of affording any reasonable presumption or inference as to the principle matter in dispute. In other words a party may not in general impeach the credit of this opponents witnesses by calling witnesses to contradict him on irrelevant matters. The section mus be strictly constructed and narrowly interpreted.

This protection is enacted because otherwise the courts would drift into irrelevant controversies and if a pitched battle is going to be fought over the character of every witness, suits and proceedings would become simply interminable and instead of frying cases, the Judge will be trying witnesses.


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