State of M.P. Vs.
Virendra Kumar Tripathi [2009] INSC 833 (27 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 843 OF 2009
(Arising out of SLP (Crl.) No. 707 of 2004) State of M.P. ....Appellant Versus
Virendra Kumar Tripathi ....Respondent With CRIMINAL APPEAL NO. 844 OF 2009
(Arising out of SLP (Crl.) No. 3753 of 2004)
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
These
appeals are inter linked and are therefore disposed of by this common judgment.
Challenge in these appeals is to the order passed by a learned Single Judge of
the Madhya Pradesh High Court, Indore Bench, questioning the order dated
3.10.2002 passed by a learned Special Judge and First Additional Sessions
Judge, Indore framing charges in relation to accusations under Section 13(1)(e)
read with Section 13(2) of the Prevention of Corruption Act,1988 (in short the
`Act'). A revision petition was filed by Virender Kumar Tripathi (hereinafter
referred to as the `accused'). The State through Special Police Establishment,
Lokayukt Office, Indore filed charge sheet against the accused alleging that
during the period of 1.1.1980 to 1.1.1990 while serving as Ranger in Forest
Department of the State of Madhya Pradesh he acquired assets disproportionate
to the known sources of income. At the time of framing charge the accused took
the stand that he was liable to be discharged as the investigation was not
conducted by the authorized police officer as required under Section 17 (second
proviso) of the Act.
Further sanction was
not accorded in accordance with law by the Law Department who was required to
consult the parent department of the applicant i.e. Forest Department in view
of the order dated 9th February, 1988 of the State Government.
It was also submitted
that the investigating agency had wrongly excluded the income of the wife of
the accused though the same was properly disclosed as her income before the
department as well as in the income tax returns. Similarly, certain receipts
were not taken into account. The trial court held that the investigation was
done by the authorized police officers i.e. Deputy Superintendent of Police who
had obtained search warrant from the CJM, Indore and, therefore, authorized
officer investigated the matter. It was also submitted that under Section 17 of
the Act Deputy Superintendent of police can investigate into any offence under
the Act being a designated officer. Further it was noted that as per the
Business Allocation Rules framed under Article 166(3) of the Constitution of
India, 1950 (in short the `Constitution') the sanction was granted in the name
of the Governor of the State by the Additional Secretary of the Department of
Law and Legislative Affairs which was the legally authorized Department.
However, the Court held that the plea that value of disproportionate asset was
to be reduced so far as the exclusion of certain items is concerned, same was
matter of evidence and is to be considered trial. The stands taken before the
trial court were reiterated before the High Court. By the impugned judgment the
High Court held that the Law and Legislative Department was required to consult
the parent department which was necessary as per the circular/order dated 9th
February, 1988 and, therefore, there was no proper sanction. Accordingly, it
was held that the accused cannot be prosecuted on the basis of the sanction of
the Law and Legislative Department. It did not express any final opinion as far
as the exclusion of income aspect is concerned. But it upheld the view
regarding legality of investigation.
3.
In
the appeal filed by the State it has been contended that the sanction had been
given by the concerned authority and, therefore, the High Court's view is not
correct. Additionally, it is submitted that the exclusion of certain items as
directed by the High Court cannot be maintained because at the stage of framing
charges the Court is not required to take into account materials which have to
be established during trial.
4.
In
the appeal filed by the accused the stand is that apart from the question of
lack of sanction even on facts there is no scope for proceeding against the
accused. In that view of the matter also the accused was entitled to be
discharged. It is also submitted that the Dy. Superintendent of Police was not
authorized to conduct investigation.
5.
So
far as the defect in sanction aspect is concerned, the circular of which the
High Court has placed reliance needs to be noted. The Circular in question is
dated 9.2.1988 the relevant portion reads as follows :
"The Government
also decided that before giving approval of prosecutions, the Principal
Secretary, Law and Legal Deptt. will obtain the advise of concerned
Department."
6.
A
bare perusal of the paragraph shows that before giving approval for
prosecution, advice of the concerned Department was necessary. The question
arises whether the absence of advice renders the sanction inoperative.
Undisputedly the sanction has been given by the Department of Law and
Legislative. The State government had granted approval of the prosecution. As
noted above, the sanction was granted in the name of the Governor of the State
by Additional Secretary, Department of Law and Legislative Affairs. The advice
at the most is an inter-departmental matter. Further the High Court has failed
to consider the effect of Section 19(3) of the Act. The said provision makes it
clear that no finding, sentence or order passed by a Special Judge shall be
reversed or altered by a court of appeal on the ground of absence of /or any
error, omission or irregularity in sanction required under sub-section (1) of
Section 19 unless in the opinion of the Court a failure of justice has in fact
been occasioned thereby. In the instant case there was not even a whisper or
pleading about any failure of justice. The stage when this failure is to be
established yet to be reached since the case is at the stage of framing of
charge whether or not failure has in fact been occasioned was to be determined
once the trial commenced and evidence was lead. In this connection the
decisions of this Court in State v. T. Venkatesh Murthy [2004(7) SCC 763] and
in Prakash Singh Badal v. State of Punjab [2007(1) SCC 1] need to be noted.
7.
That
being so the High Court's view quashing the proceedings cannot be sustained and
the State's appeal deserves to be allowed which we direct.
8.
Coming
to the appeal filed by the accused one of the questions is whether the
investigating officer was authorized to conduct the investigation. The
investigation was carried on by the duly authorized officer namely the Dy.
Superintendent of Police under Section 17(c) of the Act.
9.
The
broader issues raised need not be looked into. The function of investigation
was merely to collect evidence and any irregularity and illegality in the
course of collection of evidence can hardly be considered by itself to affect
legality of trial by a competent Court of the offence so investigated. In H.N.
Rishbud and Anr. v. State of Delhi (AIR 1955 SC 196), it was observed that a
conviction is not violated because there has not been strict compliance with
the provisions of the Act in the matter of investigation by a police officer
unless the accused is shown to have been prejudiced. There is no material to
show prejudice. The proceedings started in 1987. FIR was registered on
22.2.1991. In 1992, the accused filed a petition before the High Court.
Chargesheet was filed on 21.12.1993. On 30.8.2000, the petition filed before
the High Court was disposed of.
There was no
challenge at that stage to legality of investigation and related to
consideration of certain documents. Learned Special Judge considered the matter
afresh and rejected accused's plea. Again, High Court was moved. Only the plea
related to non-consideration of documents during investigation and did not
relate to legality of investigation. So, the present stand without establishing
any prejudice deserves to be rejected.
10.
So
far as the non-exclusion of certain alleged income of relatives is concerned,
it needs to be noted that these are matters of evidence and in such matters,
the decision of this Court in State of Orissa v. Debendra Nath Padhi [JT
2004(10) SC 303] is relevant. The High Court's judgment in this aspect does not
suffer from any infirmity.
11.
In
the ultimate analysis, the appeal filed by the State deserves to be allowed
which we direct while dismissing the appeal filed by the accused.
...................J.
(Dr. ARIJIT PASAYAT)
..................J.
(P. SATHASIVAM)
...................J.
(AFTAB ALAM) New Delhi;
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