[Section 197 CrPC] Court May Direct Authority To Take Sanction And Then Proceed, Instead Of Quashing Entire Proceedings: Delhi HC

Observing that closure of proceedings at an initial stage has not been appreciated, the Delhi High Court has said that even if it is found that the proceedings are vitiated in the absence of sanction under Section 197 CrPC, then court may direct the authority to take sanction and then proceed, instead of completely quashing the entire proceedings.

"Same was the view taken in Fertico Marketing and Investment Pvt. Ltd. vs. CBI (2021)," said the court.

Justice Yogesh Khanna made the observation while dismissing a plea challenging an order passed by the Special Judge which had taken cognizance against one Vinod Kumar Asthana for the offences under Sections 13(2) and 13(1)(d) of Prevention of Corruption Act and Sections 120B and 420 of Indian Penal Code without sanction under Section 19 of PC (Amendment) Act and Section 197 of Cr.P.C.

The court also said it has been held in an earlier ruling that directions to drop the proceedings by high court against an accused [not Asthana] on account of want of sanction under Section 197(1) Cr.P.C. was bad and should the competent authority grant sanction under Section 197 Cr.P.C., it will be perfectly valid and "open to the petitioner herein to activate the prosecution against the respondent".

"Rather in Shantaben [Shantaben Bhurabhai Bhuriya vs. Anand Athabhai Chaudhari and Others 2021] it was held the absence of sanction cannot be a ground to quash the criminal proceedings in exercise of power under Section 482 Cr.P.C. and rather to quash proceedings at this stage in exercise of power under Section 482 Cr.P.C. is rather impermissible," it added.

Asthana's argument was that under the amended PC Act, which came into effect from July 26, 2018, Section 19 mandates taking of sanction for prosecution with respect to a person who was at the time of commission of the alleged offence employed with the affairs of the Union, even if they had retired.

It was argued that the amended provision thus sought to bar the court from taking cognizance of any offence punishable under Sections 7, 10, 11, 13 and 15 of the PC Act against a public servant except with the prior sanction of the competent authority.

The cognizance in this case was taken on 30.07.2018 and thereafter, on 29.06.2020 the sanction was obtained against the appellant. Various judgements were cited by the accused to argue that since the cognizance was taken without sanction either under Section 197 Cr.P.C. or under Section 19, the prosecution needs to be quashed as proceedings stand vitiated. 

On the other hand, Special Public Prosecutor (SPP) appearing for CBI referred to various judgments to argue that the amendment under Section 19 of PC Act is prospective and not retrospective in nature. The case against Asthana dated back to 2013. However, the Special Judge took cognisance of the offences alleged against him in 2018.

Dealing with the question that whether a subsequent grant of sanction makes the cognizance legal, the court at the outset observed that observations in State of Goa vs. Babu Thomas (2005) cannot be ignored wherein the court had taken note of the "gravity of allegations" against the accused and permitted the competent authority to issue a fresh sanction.

On the argument that the amendment in PC Act will also apply to Asthana's case, the court said the cardinal principle is that every statute is prospective in nature unless it is expressly or by necessary implication made to have retrospective operation.

"There exist a presumption against retrospectivity. One may say an amendment will have only prospective application and it has no application to cases registered prior to the amendment and pending under various stages of investigation but then again the date relevant for considering the necessity of sanction is the date on which cognizance is taken," it said.

Dismissing the plea, the court observed that it would not be feasible to quash the proceedings at an initial stage, especially when the special judge was of the view that sanction was not required even though it did not elaborate the same.

"In any case presently the arguments on charge are going on. All issues raised before this Court can very well be taken before the learned Trial Court," said the court.

It added: "In any case, the requisite sanction has now been granted on 29.06.2020. The effect of sanction dated 29.06.2020 is yet to be seen by the learned Trial Court during hearing of charge. In case the learned Special Judge comes to a conclusion the cognizance in absence of sanction was vitiated then surely can proceed per law settled above and in the wake of sanction dated 29.06.2020. Hence prayer to quash proceedings cannot be acceded to," the court said.

The court also referred to Inspector of Police and Another vs. Battenapatla Venkata Ratnam and Another, wherein it was held:

"The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. Unfortunately, the High Court missed these crucial aspects. The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only."

Title: VINOD KUMAR ASTHANA v. CENTRAL BUREAU OF INVESTIGATION

Citation: 2022 LiveLaw (Del) 1013

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