Vinod Prasad, J.
1. Revisionist Smt. Monika Marry Hussain is aggrieved by her summoning order dated 27.10.2005/23.12.2005 passed by Special Judge (Anil Corruption) Varanasi in Special Trial No. 19 of 2005, State v. Monika Marry Hussain, under Section 7/13 Prevention of Corruption Act, P.C. Kotwali, district Fatehpur.
2. Since only the question of law is involved in this revision, which has been canvassed at the bar, therefore, without going into the details of the prosecution version the allegations against the revisionist mentioned in synthesized description are that on 16/17.2.2005 Sanno wife of Mohd. Samim Ahmad was got admitted at 3.30 a.m. in District Women Hospital, Fatehpur where the revisionist was a Staff Nurse. Sanno was in the advanced stage of pregnancy but her condition was not satisfactory and she was attend by Dr. Rajbala Gupta. At 4.30 a.m. Sanno was blessed with a child and attained motherhood, but the mother was administered glucose etc. because she was bleeding excessively. By providence she did not survive long. The applicant revisionist attended her till 8.00 a.m. and thereafter handed over the charge of duty to Smt. Geeta Singh another Staff Nurse. At about 12.00 p.m. on 17.2.2005 it was informed in the hospital that Sanno lost her life at 11.30 a.m. The relatives of Sanno created scene in the hospital and misbehaved with the staff levelling all allegations of mishandling the patient. Her Husband Shamim Ahmad lodged a F.I.R. at 2.50 p.m. in respect of death of his wife alleging therein that Rs. 6000/- (Rs. Six thousand) were demanded as illegal gratification in the hospital and because of non-fulfilment of which his wife; was not treated well and she died. The said F.I.R. has been annexed as annexure No. 1 to the affidavit filed in support of this revision. It is important to note that in the F.I.R. nobody was named as an accused/ The said F.I.R. which was registered as crime No. 23 of 2005, under Section 304/471 I.P.C. and 7/13 Prevention of Corruption Act, P.S. Kotwali, district Fatehpur was investigated and ultimately a charge sheet was submitted on 10.8.2005 annexure No. 4. During the investigation, the statement of the informant and the witnesses under Section 161 Cr.P.C. were recorded vide annexure No. 2 and from the statement of those witnesses Smt. Geeta Singh, Smt. Rabia, Smt. Bhagwania, Smt. Chhiddi, Smt. Rajrani, Smt. Leela Kumari, Dr. Smt. Rajbala Gupta no allegation of any illegal gratification came out. However, from the statements of Noorjaha wife of Peer Baksh the mother-in-law of the deceased, who stated that her son has informed her that Rs.6000/- were demanded and that in two lots Rs.1200/- were given, which was thrown by the Staff Nurse Monica Marry Hussain, the present revisionist. Shamim Ahmad in his statement under Section 161 Cr.P.C. levelled allegations that Rs. 6000/- were demanded from him for the delivery and at the time of delivery excessive bleeding had occurred and his wife lost her life at 11.00 a.m. From such allegations the charge of illegal gratification came. Husband allegated that the lady doctor and the Staff Nurse, the present revisionist has murdered his wife because of non-fulfilment of the money. The statement of the informant was supported by Shamim son of Banno, Salim son of Allah Rak.hu, Peer Baksh son of Chhotu Miya, Farida Bano @ Nakridan wife of Peer Baksh.
3. The investigation into the crime since resulted into the charge sheet, the same was submitted to the court of Special Judge (Anti corruption) Varanasi on 27.10.2005. Special Judge (Anti Corruption) Varanasi took cognizance of the offence on the said date and ordered that the accused be summoned for 23.12.2005. On the said date 23.12.2005 he further issued summons for 23.2.2006. Both the summoning orders therefore, are challenged in the instant revision.
4. I have heard Sri P.K. Singh, learned Counsel for the revisionist in support of this revision and learned A.G.A. in opposition.
5. The only arguments canvassed by learned Counsel for the revisionist is that the charge sheet was submitted against the revisionist under Section 7/13 Prevention of Corruption Act, 1988 on the basis of which Special Trial No. 19 of 2005, State v. Monica Marry Hussain was registered but no sanction was obtained prior to submission of the charge sheet and the trial court took the cognizance of the offence without sanction as is required under Section 19 of the P.C. Act and summoned the revisionist which cognizance and summoning order is bad in law and is illegal and therefore, both of it deserves to be quashed. Learned Counsel for the revisionist submitted that Section 19 of the Prevention of Corruption Act clearly provides that no court shall take cognizance of the offence except with the previous sanction of the authority competent to remove the government servant from his office and in the present case since no sanction was obtained for the prosecution of the revisionist from the competent authority, therefore, the summoning order is bad in law and should be quashed. In support of his said contention learned Counsel for the revisionist invited the attention of the Court on ground No. 3 taken in the revision and paragraph No. 9 of the affidavit filed in support of this revision. He contended that the said averments in paragraph 9 of the affidavit has not at all been denied in the counter affidavit filed by Arvind Kumar Maurya, C.O. City, Fatehur in paragraph 7 of his counter affidavit.
6. Learned A.G.A. on the other hand contended that since the sanction was applied for therefore, cognizance by the trial court is legal.
7. Learned Counsel for the revisionist in his rejoinder submitted that no sanction has been obtained till date from the government and in support of the said submission he had filed a supplementary affidavit as well.
8. I have heard both the counsels and have perused the impugned order and the other material on record.
9. Prevention of Corruption Act, 1988 clearly provides that no court shall take cognizance of the offence except with the previous sanction granted by the competent authority. For a proper understanding of the submissions Section 19 of the Prevention of Corruption Act is quoted below:
19. Previous sanction necessary for prosecution. - (1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction-
(a) in the case of a persons who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under Sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation - For the purposes of this section-
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement if a similar nature.
10. A bare perusal of the said section clearly indicates that grant of sanction is sine qua non for taking cognizance of the offence.
11. In the present case, the admitted position is that the sanction was not at all obtained from the authority competent to remove the revisionist from her office as is required under Section 19(1)(c) of P.C. Act. Ground No. 3 in the memo of revision is reproduced below:
Because, the impugned order suffer from manifest irregularity of law, as the same has been passed in clear violation of Section 19 of the Prevention of Corruption Act.
12. In the supporting affidavit in paragraph 9 the revisionist has made following averments:
That upon the consequential charge sheet dt. 10.8.2005 submitted only against applicant/revisionist the learned Special Judge P.C. Act Varanasi vide impugned order dt. 27.10.2005/23.12.2005 have taken I cognizance and have summoned the applicant/revisionist under Section 7/13 of the P.C. Act 1988. The impugned orders are potentially errenous and unsustainable under law as in passing the same the learned Special Judge has filed to comply with the provisions of Section 19 of P.C. Act and has also not applied his judicial mind to the evidence filed in support of the charge sheet dt. 10.8.2005.
13. The said paragraph 9 of the affidavit in support of the revision has been implied in the counter affidavit of Arvind Kumar Maurya and in paragraph 7 thereof it is averred as follows:
That it is further stated that in pursuance of investigation having been completed and collecting the credible evidence against the revisionist, concerned papers has already been forwarded before the concerned authority vide letter dated 27.4.06 to grant the sanction to prosecute the revisionist for the charges levelled against her, however sanction has not yet been received. A copy of the letter dated 27.4.06 is being filed herewith and marked as Annexure No. 1 with this affidavit.
14. From the perusal of the aforesaid averments, it is clear that on 27.4.2006 a letter to grant the sanction was written by Arvind Kumar Maurya addressed to the competent authority but the counter affidavit is conspicuously silent whether any sanction was granted or not even though it is mentioned that sanction has not been received as yet. In such a view, it is perceptibly clear that on 27.10.2005 when the cognizance of the offence against the revisionist was taken by the court no sanction was even applied for. Hence, the cognizance taken by the Special Judge (Anti Corruption) Varanasi was contrary to the provisions of Section 19 of the P.C Act.
15. Further it is also clear that on 23.12.2005 trial court fixed another date 23.2.2005 for appearance of the revisionist but till that date also no sanction was even applied for. Sanction for prosecuting the revisionist was applied after four months thereof on 27.4.2006. The matter of grant of sanction and the effect of non-granting of sanction has been considered by the Apex Court in the case of Dilawar Singh v. Parvinder Singh @ Iqbal Singh and Anr. .
It has been held by the Apex Court in paragraph 4, 5 and 6 thereof as follows:
4. In our opinion, the contention raised by the learned Counsel for the appellant is well founded. Sub-section (1) of Section 19 of the Act, which is relevant for the controversy in dispute, reads as under:
19. Previous sanction necessary for prosecution. - (1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
This section creates a complete bar on the power of the Court to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority enumerated in clauses (a) to (c) of this sub-section. If the sub-section is read as a whole, it will clearly show that the sanction for prosecution has to be granted with respect to a specific accused and only after sanction has been granted that the Court gets the competence to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by such public servant. It is not possible to read the section in the manner suggested by learned Counsel for the respondent that if sanction for prosecution has been granted qua one accused, any other public servant for whose prosecution no sanction has been granted, can also be summoned to face prosecution.
5. In State through CBI v. Raj Kumar Jain , the
Court was examining the scope of Section 6(1), Prevention of Corruption Act, 1947, which is almost similar to Sub-section (1) of Section 19 of the Act. After quoting the provisions of Section 6(1), Prevention of Corruption Act, 1947, it was held as under in para 5 of the report:
5. From a plain reading of the above section it is evidently clear that a Court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above section, the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions.
6. In Jaswant Singh v. State of Punjab . sanction had been granted for prosecution of the accused for an offence under Section 5(1 )(d) of the Prevention of Corruption Act 1947, but no sanction had been granted for his prosecution under Section 5(1 )(a) of the said Act. It was held that no cognizance could be taken for prosecution of the accused under Section 5(1)(a) of the Prevention of Corruption Act. 1947. as no sanction had been granted with regard to the said offence, but the accused could be tried under Section 5(1 )(d) of the said Act as there was a valid sanction for prosecution under the aforesaid provision.
(underline emphasis mine)
16. The said judgement of the apex court fully applies on the facts of the present case.
17. In another judgement reported in (2004) 13 Supreme Court Cases 705 Ashok Mehtaand Anr. v. Ram Ashrav Singh and Ors., it has been held by the Apex Court in paragraph 3 as follows:
3. It appears that in Special Case No. 1 of 2001, the learned Special judge, Central Bureau of Investigation, Dhanbad, directed that matter for taking cognizance upon the complaint filed for prosecution of the appellants under Sections 467, 458, 471, 477A read with Section 120B of the Indian Penal Code and Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 shall be considered only after sanction is obtained. Against the said order, matter was taken to the High Court by the complainant giving rise to Criminal Miscellaneous Petition No. 5142 of 2001, wherein by the impugned order, the High Court directed the trial court to take cognizance and proceed with the trial observing that cognizance can be taken even without obtaining sanction and the same can be obtained later on. The reasoning of the High Court was not only fallacious, but wholly unknown to law and it was not at all justified in interfering with the order passed by the trial court.
18. Yet in another judgement State of
Karnataka through C.B.I. v. C. Nagaraiaswamy, it has been held by the Apex Court in paragraph 15 thereof as follows:
Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regards sanction may be determined at an early stage.
19. Thus, in view of the law laid down by the Apex Court referred to above cognizance of the offence in the absence of the sanction is bad in law and therefore, I am of the view that the summoning order of the revisionist by the impugned order dated 27.10.2005 cannot be sustained.
20. Sri P.K. Singh, learned Counsel for the revisionist also relied upon a I judgement of the apex Court
Jacob Mathew v. State of Punjab and Anr. for the proposition that there was no negligence on the part of the revisionist and her negligence was not to the extent to which an offence can be said to have been committed by her. Since the said question does not arise in the present revision as the revisionist is not being prosecute for offence under the Penal Code that I do not consider it appropriate to go into the details of the said contention.
21. In view of the what I have stated above the impugned cognizance and summoning order of the revisionist dated 27.10.2005/23.12.2005 passed by Special Judge (Anti Corruption) Varanasi in S.T. No. 19 of 2005, State v. Monika Marry Hussain, under Section 7/13 Prevention of Corruption Act can not be sustained and is hereby quashed.
22. This revision is allowed.