cognizance of the offence in the absence of a valid sanction
A.Mohamed Thaheer
(Querist) 12 May 2009
This query is : Resolved
Please clarify the following:
FIR filed on 28-09-2004
Sanction for prosecution was issued on 18-07-2007
Investigation completed by the police officer only on 07-05-2008, i.e nearly 11 months before completion of the investigation
Final report filed in the court on 26-06-2008
summoned on 05-07-2008
Appeared on the court as ordered by the court.
The Special Judge has got the power to deal this case under the prevention of corruption act, 1988 was issued by the Governor only on 11-01-2009.
In the above circumstance, the cognizance offence taken by the Special Judge and the initation of the process of the court under the criminal procedure code is legally valid?
The important point is that the sanction for prosecution under section 19 of the Prevention of Corruption Act, 1988 should be obtained ONLY AFTER COMPLETION OF INVESTIGATION BY THE POLICE OFFICERS AND PLACING ALL THE MATERIALS BEFORE THE SANCTIONING AUTHORITY FOR PERUSAL OF DOCUMENTS AND APPLICATION OF MIND TO HAVE KNOWLEDGE WHETHER PRIMAFACI CASE IS MADE OUT AND WHETHER IT IS NECESSARY FOR ISSUE OF SANCTION FOR PROSECUTION.
PLEASE QUOTE THE RELEVANT CITATION OF SUPREME COURT CASE LAW IN FAVOR OF THE ACCUSED.
PALNITKAR V.V.
(Expert) 14 May 2009
Please clarify whether the same judge who got powers on 11.1.09 had issued summons on 5.7.08.Validity of taking of cognisance depends on the date. About investigation after sanction, the sanction may not be illegal or invalid if there was enough material before the sanctioning authority to accord sanction on the date of sanction. Merely because some investigation was done afterwards that by itself is not sufficient to brand the sanction as invalid.
A.Mohamed Thaheer
(Querist) 19 May 2009
Dear Palnitkar,
I am furnishing the following clarification to you.
a) Yes, the very same judge.
b)There are four important Prosecution
witnesses on which the prosecution lies.
PW-1.who has given the statement against
the accused.
PW-2 who has given an independent statement of his own which in no way corroborates with the statement of PW-1.
But in the sanction for prosecution sanction which is in the speaking order states, that the statement of the PW-1 corroborate with the statement of the PW-2, and hence, it is hereby accorded sanction for prosecution against the accused for taking cognizance of the offence by the court etc., and this sanction could be proved as illegal in the court of law, since the competent authority who has to issue sanction has not gone through the records placed before him with proper application of mine which is a pre-requisite for taking a quasi-judicial decision before making an order of sanction for prosecution.
After obtaining sanction, instead of filing the charge sheet without further loss of time, it was kept pending for more than 9 months, and subsequently,conducted further investigation without the approval of the disciplinary authority. During further investigation, they had obtained two more statements from PW-3 and PW-3 respectively, and these records were not placed before the competent authority who issued sanction, even till date, for application of mind to decide whether it is a fit case for prosecution against a retired govt. servant, and the police has simply filed statement of PW-3 and PW-4 also, but the statement of these two prosecution witnesses will prove in favour of the accused only, because none of these statements corroborates with the statement of the PW-1.
Please decide this case, and you can ask any further clarification, if you needs for which I am ready to give immedately for your consideration.
Thank you.
