LOKNATH GUPTA Vs. STATE OF M P

JUDGEMENT

(1.) AS common questions of law are involved in these applications referred Under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') they were heard analogously and are disposed by this common order. For the sake of clarity and convenience the facts set forth in the M. Cr. C. No. 5356/97 are herein adumbrated.

(2.) THE accused-petitioner is facing prosecution for offences punishable Under Section 7 (13) (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, (hereinafter referred to as 'the Act') in Special Case No. 37/90 in the Court of Vth Additional Sessions Judge/special Judge (CBI), Jabalpur. In the aforesaid case the prosecution filed charge-sheet along with the sanction purported to have been granted by one Shri M. Mandal, the Chief General Manager, State Bank of India. When the question of proving sanction arose the prosecution instead of examining the said Shri Mandal, examined one Raman Bihari Shrivastava, Dy. General Manager (Vigilance) who identified the signature of Shri Mandal. It is put forth in the petition that in cross-examination the said witness admitted that he has no personal knowledge about the grant of sanction. It is also in his deposition, as stated in the petition, that the Central Bureau of Investigation (in short 'cbi') had submitted a report along with a letter for grant of sanction and the letter reflected the written contents. But this letter was not produced by the witness. Thereafter an application was moved by the accused-petitioner Under Section 91 of the Code stating that as per the evidence of Raman Bihari Shrivastava the Chief Vigilance officer who has been examined as PW-5 the CBI had submitted a report against the petitioner and on the basis of the report certain notes were prepared. It was set forth in the said petition that production of the said report and file was necessary for the purpose of enquiry, trial and further cross-examination of the aforesaid witness. It was also pleaded that the sanction has not been granted after due consideration of the material on record but in a mechanical manner by sanctioning authority and, therefore, the report is essential to be produced. The said application was resisted by the prosecution which claimed privilege in respect of the said document Under Sections 123 and 124 of the Evidence Act, 1872. The learned trial Judge came to the conclusion that the document in question was not a privilege document but the production of the same was not warranted. The learned trial Judge further held that the examination of the sanctioning authority is not necessary and the order of sanction can be proved by other evidence. He also opined that the prayer for calling for the note sheet and other documents was not justified. The learned Judge further opined if the prosecution failed to prove sanction as required under the law the accused can take advantage of the same at appropriate time. Being of this view he rejected the application preferred Under Section 91 of the Code. The said order is the cause of grievance of the petitioner.

(3.) ASSAILING the aforesaid order Mr. S. C. Datt, learned senior counsel for the petitioner has contended that the learned trial Judge has committed gross illegality in rejecting the prayer of the accused-petitioner inasmuch as the petitioner could have proved that the order granting sanction has not been done on the basis of the report and there has been no independent application of mind by the said authority. It is his further submission that the learned Special Judge while dealing with the prayer of the petitioner for production of the report and other necessary documents has opined with regard to the validity of the order of sanction which amounts to prejudging of the matter and, therefore, order passed by him incurs the liability to be lanceted by this Court in exercise of inherent jurisdiction. It is further urged by the learned senior counsel that the grant of sanction goes to the very root of the matter and when the defence has made an attempt to expose the mechanical approach of the prosecution it has been denied the opportunity which amounts to miscarriage of justice warranting interference by this Court.