JAYRAM S SALVE Vs. G G A NAIDU

JUDGEMENT

(1.) This revision application is filed on behalf of the CBI against the order dated 9-6-2006, passed by the Special Judge for CBI, Mumbai in Misc. Application No. 141/2005 in Special Case No. 4 of 1981 discharging the accused/respondent No. 1 on the ground that the sanction for the prosecution was not accorded by the competent authority.

(2.) The case in brief is that the accused/respondent No. 1 was appointed as income Tax Officer, Class II (Group B) by the Commissioner of Income Tax, west Bengal on 3rd August, 1956. Thereafter he was posted at different places. When he was working as such at Nagpur, the prosecution was launched against him under section 5 (l) (e) and 5 (2) of the Prevention of Corruption Act, 1947. The investigation was made and the complaint was lodged by CBI in Mumbai. At the request of the respondent the case was transferred to Special Judge at Nagpur. He challenged the prosecution on various grounds, including the validity of the sanction, By order dated 24-11-1980, the Special Judge, Nagpur had discharged the accused, inter alia, on the ground of non-application of mind by the sanctioning authority, who was the Commissioner of Income Tax. But in the said order at the same time, he had given liberty to CBI to prosecute the respondent no. 1 after obtaining proper sanction. Thereafter, the CBI obtained fresh sanction order dated 17-1-1981, which was issued by the Under Secretary to the government of India, by the order and in the name of President of India. The sanction order was issued under section 6 (1) (c) of the Prevention of Corruption act, 1947. After obtaining the sanction, fresh case was filed by CBI before the special Judge at Bombay. The respondent again challenged the sanction order on various grounds, one of the grounds was that the Central Government was not competent to issue sanction but it was Commissioner of Income Tax, who was the appointing and removing authority of respondent No. 1. The Special Judge, greater Bombay allowed the parties to lead evidence and accordingly, evidence of K. G. Goel, Under Secretary to the Government of India was recorded, as he was the person under whose signature the sanction order was issued. Thereafter, the respondent filed Writ Petition No. 991/1993 before this Court for discharge on several grounds. That writ petition came to be disposed of by the learned single Judge of this Court on 10-6-2002, by observing that the preliminary points or the objections raised by the respondent No. 1, who was the petitioner in that case, demanded adjudication by the trial Court. The learned Single Judge also observed that on behalf of the prosecution one witness was already examined and the trial Court could recall that witness, if so needed in the interest of justice. After that the learned Special Judge dismissed the application of the respondent for discharge by order dated 10-6-2004. That order was challenged in Criminal writ Petition No. 1773/2004 by the respondent No. 1. While allowing that petition, by order dated 29th November, 2004, the Division Bench of this Court set aside the order of the Special Judge dated 10-6-2004 and directed the Special judge to consider and give finding on the points of validity of sanction raised by the present respondent No. 1, before proceeding with the trial. Since the trial was already delayed, the Special Judge was also directed to give findings on the said point in the light of evidence led by the sanctioning authority and the rules in that behalf expeditiously. In view of the said order the learned Special Judge heard the parties again and passed impugned order dated 9-6-2006 allowing the application of the respondent and discharged him holding that the Central government, being not the appointing authority, is not competent to accord the sanction.

(3.) There is no dispute that respondent No. 1 was Income Tax Officer, Class ii and it is a Group B service under Central Government. After the earlier sanction was found to be invalid on the ground of non-application of mind by the commissioner of Income Tax, who was the sanctioning authority, the CBI approached the Ministry of Home Affairs, Department of Personnel in the government of India, for sanction and the sanction order dated 17-1-1981 was issued by the Government of India Ministry of Home Affairs, Department of personnel and the said order was purported to have been issued by the order and in the name of President of India. It was signed and authenticated by K. G. Goel, under Secretary to the Government of India in the Department of Personnel. The order clearly shows that the sanction was accorded by the Central Government under section 6 (1) (c) of the Prevention of Corruption Act, 1947.