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D.S. Bhandari Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1974CriLJ1130
AppellantD.S. Bhandari
RespondentState of Rajasthan
Cases ReferredMithanlal v. State
Excerpt:
.....shah fully well. it is rather of a subjective character and if on the materials placed before the sanctioning authority it is satisfied as to the desirability of launching the prosecution the accused cannot challenge the sufficiency or otherwise of the material before granting the sanction). it was argued that the comprehensive factual report was placed before the sanctioning authority who after perusal of the same was satisfied as to the desirability of launching the prosecution and it was therefore too late in the day for the accused to challenge the validity of the sanction on that account. it is well settled that the act of granting sanction is of an executive nature and not a judicial act. it is further well settled that the satisfaction which the sanctioning authority must have..........first.5. mr. v.s. dave while elaborating his arguments on the point of sanction has urged that the sanctioning authority had not applied its mind on the whole materials of the case before according sanction. in this connection he invited my attention to the statement of c. w. 1 k. l. gupta and pointed out that it was clear from his statement that the investigating agency had sent him a ready-made draft sanction along with the forwarding letter ex. d. 5 it was urged by the learned counsel that the comparison of the draft sanction by the investigating agency with the actual sanction signed by the sanctioning authority will show that it was a verbatim copy of the draft sanction sent by the investigating agency and. therefore this fact alone will necessarily lead to the conclusion that the.....
Judgment:

M.L. Joshi, J.

1. The appellant D.S. Bhandari has been convicted by the learned Special Judge for Rajasthan Jaipur City hereinafter called the Special Judge under Section 420 I.P.C. and Section 468 I.P.C. and sentenced to undergo 6 months' rigorous imprisonment and to pay a fine of Rs. 100/- on each count. He has also been convicted and sentenced under Section 5(1) (d) r/w Section 5 (2) of the Prevention of Corruption Act. 1947. to undergo one year's rigorous imprisonment and to pay a fine of Rs. 100/- and in default of payment of fine to further undergo two months' rigorous imprisonment. Being aggrieved, the appellant has come up in appeal before this Court.

2. The appellant D.S. Bhandari was serving and functioning as a Development Officer Life Insurance Corporation of India, hereinafter called the L. I. C. at Sumerpur under Branch Office Pali Raiasthan. While functioning in that capacity it is alleged by the prosecution that he secured two insurance policy proposals Nos. 7245-323 and 6747-323 for an amount of Rs. 10, 000/- and Rs. 20, 000/-reapectively from one Dayalal Shah of village Arepura on 20th of January, 1965. although the prosecution alleged that the accused had wrongly shown the village Bairemi. The prosecution case is that Dayalal Shah whose proposal forms for insurance were got filled by the accused was suffering from paralysis since 30th of October. 1959. and also from High blood pressure and consequently Was not at all a fit person to be insured under the Rules of the L. I. C. The accused, according to the prosecution, before getting the forms filled knew the state of health of Dayalal Shah fully well. Nevertheless he got filled the aforesaid two proposals and aslo managed to obtain two false medical reports on 29-1-1965 and falsely mentioned the name of Danmal as insurance agent in respect of those two proposals although Danmal was not party to that proposal. This according to the prosecution was done by the accused with a view to gain undue pecuniary advantage tor himself or to earn a departmental credit. The prosecution further alleged that the accused dishonestly induced the L. I. C. to deliver the aforesaid two policies and thereby criminally misconducted himself as a public servant. The police after investigation submitted a challan against the accused for committing offences under Section 5 (1) (d) of the Prevention of Corruption Act. 1947, r/w Section 5 (2) of the Act and Sections 420 and 468 I. P. C.

3. The accused pleaded not guilty in reply to the charge read over to him. The prosecution examined as many as 23 witnesses and had exhibited a number of documents in support of its case. The accused in his examination under Section 342 Criminal P.C. denied to have procured business from Dayalal Shah and consequently contested the charge levelled against him. besides stating other facts in his defence which I do not think it necessary to state them here at this stage.

After the trial the accused was convicted as stated above. Being dissatisfied accused has appealed.

4. A preliminary objection has been raised by the learned Counsel for the appellant that before the launching of the prosecution against the aocused-appellant under Section 5(1)(d) r/w Section o (2) of the Prevention of Corruption Act no valid sanction was obtained by the prosecution which was a condition precedent for the proseuction of the accused and consequently the trial against him was wholly vitiated. The arguments on merits were not addressed for the time being as counsel for both the sides areed that the preliminary point in respect of the sanction may be decided first. It was on account of the insistence of the (counsel on both the sides that the arguments on merits were deferred and the arguments on the preliminary point were heard for deciding it first.

5. Mr. V.S. Dave while elaborating his arguments on the point of sanction has urged that the sanctioning authority had not applied its mind on the whole materials of the case before according sanction. In this connection he invited my attention to the statement of C. W. 1 K. L. Gupta and pointed out that it was clear from his statement that the investigating agency had sent him a ready-made draft sanction along with the forwarding letter Ex. D. 5 It was urged by the learned Counsel that the comparison of the draft sanction by the investigating agency with the actual sanction signed by the sanctioning authority will show that it was a verbatim copy of the draft sanction sent by the investigating agency and. therefore this fact alone will necessarily lead to the conclusion that the sanctioning authority had not applied its mind to the facts of the case before granting sanction. It was further urged that at any rate it is Droved on the record that the investigating agency did not send the statements of witnesses recorded by it nor the documents prepared by it in the course of investigation and, therefore in the absence of placing of such materials before the sanctioning authority it Could not be taken that the sanctioning authority had taken into account all relevant materials before according sanction. On the other hand Mr Parihar learned Counsel for the State had argued that all facts constituting the offence were already stated in the sanction order and the prosecution in such a case need not produce any other evidence to further prove that all the materials were placed before the sanctioning authority. His contention is that the act of granting sanction is an administrative matter whiten absolutely rests in the discretion of the sanctioning authority. It is rather of a subjective character and if on the materials placed before the sanctioning authority it is satisfied as to the desirability of launching the prosecution the Accused cannot challenge the sufficiency or otherwise of the material before granting the sanction). It was argued that the comprehensive factual report was placed before the sanctioning authority who after perusal of the same was satisfied as to the desirability of launching the prosecution and it was therefore too late in the day for the accused to challenge the validity of the sanction on that account.

6. In order to appreciate the rival contentions of the parties on the point of sanction it will be appropriate to reproduce the sanction order in its entirety for the sake of clarity and also for the sake of avoiding any misunderstanding. The sanction order Ex. P. 216 is as follows:

Sanction Order Whereas it is alleged--

(1) That Shri D.S. Bhandari was functioning as Development Officer LIC at Sumerpur under Branch Office. Pali during the relevant period via. January 1965.

(2) That while functioning in the aforesaid capacity he obtained two proposals Nos. 7245-323 and 6747-323 for an amount of Rs. 10, 000/- and Rs. 20.000/-respectively from one Shri Dayalal Shah who was suffering from paralysis and blood pressure and was thus unfit to be insured under the L. I. C. Rules. The aforesaid two proposals were filled in by Shri D.S. Bhandari himself and he obtained two false medical reports on 29-1-1965 and submitted the said proposal forms along with the false medical reports in the office of the LIC on the basis of which two policies Nos. 2513010 and 25098436 were issued in favour of the said Shri Daya Lal Shah by the L. I. C.

(3) That the said Shri D.S. Bhandari thus cheated the LIC by submitting the aforesaid two proposals forms supported by false medical reports on the basis of which two policies were issued. He also thus abused his position and obtained pecuniary advantage either for himself or for others.

And whereas the aforesaid acts of Shri D.S. Bhandari constitute the commission of offence under Section 420/468 I.P.C. and Section 5 (2) r/w Section 5 (1) (d)of P.C. Act, 1947. And whereas, I. K. L. Gupta. Zonal Manager being the authority competent to remove the said Shri D.S. Bhandari from service after fully and carefully examining the material before me in regard to the said allegations and circumstances of the case considers that he should be prosecuted in the Court of law for the aforesaid offences. Now, therefore, I. K. L. Gupta, Zonal Manager do hereby accord sanction under Section 6 (1) (c) of the P.C. Act, 1947 (Act II of 1947) for the prosecution of the said Shri D.S. Bhandari for the aforesaid offence and any other offences punishable under any other provisions of law in respect of the aforesaid acts and for taking cognizance of the said offences by the Court of competent jurisdiction. Sd/- Zonal Manager the competent Authority, to remove the offender, dated 6th August. 1966.

From the perusal of Ex. P. 216 sanction order it will appear that it contains all the necessary facts to constitute the offence against the accused. When the necessary facts constituting the offences are stated in the sanction order itself the prosecution, is relieved of its initial burden to prove that the sanctioning authority had passed the order after perusal of the materials. In this connection reference may be made to a leading tease Gokulchand Dwarkadas v. King AIR 1948 PC 82 : 49 Cri LJ 261 wherein their Lordships observed.

In order to comply with the provisions of Clause (23) (provision relating to sanction) it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction. But this is not essential since Clause (23) does not require the sanction to be in any particular form nor even to be in writing. But if the facts constituting the 'offence charged are not shown on the face of the sanction the prosecution must (prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction.

This authority has been quoted with approval in the later decisions of the Supreme Court reported in Madan Mohan v. State of Uttar Pradesh : AIR1954SC637 . Jaswant Singh v. State of Punjab : 1958CriLJ265 and Indu Bhusan v. State of West Bengal : 1958CriLJ279 . The ratio of Gokulchand Dwarkadas's icase AIR 1948 PC 82 : 49 Cri LJ 261 is that if the facts constituting the offence ex facie find place in the sanction order then the prosecution need not produce extraneous evidence that the facts were placed before the sanctioning authority. There will be a presumption that the relevant facts necessary for enabling the sanctioning authority to come to a conclusion for granting the sanction or otherwise were before him. Mr. Dave, however, urged that from the statement of C. W. I. K. L. Gupta officer of the L. I. C. who was the sanctioning authority it did transpire that what Was submitted before him was only a factual report giving the gist of the evidence and other papers and the documents and the actual copies of the statements recorded by the investigating agency were not produced before him. In this view of the matter added the learned Counsel, it cannot be said that all the relevant materials were before the sanctioning ' authority prior to according sanction which in the submission of the learned Counsel were sine qua non for grant of a valid sanction.

The question, therefore, at once arises for determination is as to whether the submission of the copies of the statements of the witnesses before the investigating agency and 90 also the documents collected by the investigating agency in support of the charge-sheet were necessary to be presented before the sanctioning authority. My answer to these arguments is in the negative. It is well settled that the act of granting sanction is of an executive nature and not a judicial act. It is further well settled that the satisfaction which the sanctioning authority must have before according sanction is of a subjective character and not of an objective nature. It is for the sanctioning authority to satisfy himself from the material placed before him for seeking the grant of sanction. The law does not provide for the placing of the investigation papers before the sanctioning authority. All that is necessary is that the facts constituting the offence must be placed before the sanctioning authority in order to obtain the sanction. If the sanctioning authority feels that he is not in a position to satisfy himself as to the facts constituting the offence it is always open to him to call for materials before taking a decision as to the grant of sanction.

In this connection it will be apt to refer to Parasnath v. State : AIR1962Bom205 where a contention was raised that sanction having been granted on the basis of the materials collected in the course of illegal investigation had vitiated the sanction. The argument was repelled by the learned Judges of the Bombay High Court with the following observations:

The first point which must be noted is that the sanction that was granted on the basis of invalid investigation is not illegal. Section 6 of the Act of 1947. does not enjoin the sanctioning authority to look into any particular papers. It does not lay down that the officer authorised to grant the sanction must peruse the investigation papers. The sanctioning authority can proceed on any material which according to him is sufficient or trustworthy. He is not concerned to find out even the truth or otherwise of the fact disclosed to him. All that is necessary for the sanctioning authority to do is to apply his mind to the facts disclosed to him and to accord sanction to the offence that will be disclosed on the facts placed before him. The grant of sanction is not a judicial act. It is purely an executive act.

These observations in my opinion correctly summarise the true position of law and I am in respectful agreement with them.

7. Learned Counsel for the appellant placed strong reliance on Mithanlal v. The State 1968 Raj LW 54 : 1968 Cri LJ 431 and on the basis of that strenuously urged that mere submission of factual report submitted to the sanctioning authority would not be sufficient for holding that the authority had applied its mind before granting the sanction. Certain observations of Kan Singh J. in the above mentioned case were referred to and it was sought to be established that the placing of investigation papers including the evidence of the witnesses recorded by the police was a condition precedent for holding that the sanction was granted not in a mechanical way but after applying the mind by the sanctioning authority. I have perused the above mentioned authority. Kan Singh J. had only expressed the desirability of placing of all the evidence before the sanctioning authority prior to the grant of sanction but the authority does not mean to lay down that if the statements of the witnesses before the police were not placed before the sanctioning authority prior to its according sanction the sanction will be vitiated. The case before Kan Singh J. is distinguishable on twofold ground (1) that in the sanction order there was no mention of the fact by the sanctioning authority that it has been satisfied. (2) Moreover, the authority does not seem to lay down that the actual statements of the witnesses are to be produced before the sanctioning authority. The observations of course give some impression that the evidence collected is to be brought to the notice of the sanctioning authority but nowhere it has been held that the actual statements and the investigation file is to be sent to the sanctioning authority. The factual report contained the gist of evidence of the witnesses recorded during the course of investigation and that could also serve the requirement of placing evidence before the sanctioning authority for his satisfaction. In the circumstances, in my view. Mithanlal v. State 1968 Rai LW 54 : 1968 Cri LJ 431 does not advance the case of the petitioner in the facts and circumstances of this case to which I may advert presently.

8. From the analysis of the sanction order it appears that all the facts constituting the offence against the accused have been put in a comprehensive manner. Indeed the sanction order appears to be self-contained document showing sufficient facts disclosing a prima lacie case against the accused. It has to be recollected that it is none of the business of the sanctioning authority to probe into the truth or otherwise of the facts placed before him. Suffice it to say that the facts disclosed before him must be sufficient in his view to enable him to arrive at a decision as to whether it would be a fit case where the sanction should be accorded. As already mentioned above in the instant case the sanction order contained all the facts and the prosecution was not at all under further obligation to adduce evidence aliunde to prove that all the relevant materials were placed before the sanctioning authority before it granted sanction Gokulchand Dwarkadas's case (1948) 49 Cri LJ 261 : AIR 1948 PC 82 also does not lay down that the investigation file must be before the sanctioning authority. What their Lordships of the Privy Council and the Supreme Court seem to say was that there must be sufficient material in the opinion of the sanctioning authority to enable it to form a decision of course of executive and subjective nature as to whether the facts put before it are sufficient to disclose a prima facie case against the accused. The sanction order and so also the evidence of Mr. K. L. Gupta, in my opinion are sufficient to meet the requirements of law, for grant of a valid sanction. It was contended that Shri K. L. Gupta had admitted that only factual report was placed before him and not the copies of the statements recorded during the course of investigation. It was further contended that Mr. K. L. Gupta in the earlier stage of his statement had stated that he had gone through the evidence but later on he had said that only the factual report containing the gist of evidence was placed before him. I do not feel inclined to discard the testimony of a responsible officer like Mr. K. L. Gupta on this source. As a matter of fact he has frankly stated that only the factual report containing the gist of the evidence was placed before him. I have also perused the factual report Exi. D-6 which contains sufficient details of the evidence examined in the course of investigation. The sanctioning authority in its opinion was satisfied that the facts disclosed 'prima facie case, It was a subjective discretion to be exercised on the administrative side and in my opinion no serious exception could be taken to his line of action as it was his requirement which mattered and on the facts he felt satisfied that sanction was warranted on the facts placed before him.

9. Mr. Parihar learned Counsel for the State has cited a number of authorities showing that all the investigation file need not be produced before the sanctioning authority. I have already referred some authorities in this behalf and I do not see any useful purpose to multiply further authorities as in my view the order is one of an administrative nature passed on subjective satisfaction. It is entirely the lookout of the authority granting sanction to see whether the relevant materials before him are sufficient to enable him to grant sanction. The sanctioning authority has stated that after applying his mind he was satisfied with the materials and he had a right to do so. The sanction order contained elaborate facts to disclose prima facie case for grant of sanction. In the view which I take I am of opinion that the sanction was valid and no exception can be taken to its validity.

10. The preliminary objection is therefore overruled. Consequently I order that now the case be fixed for hearing on merits.


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