IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CRIMINAL PROCEDURE CRL.M.C. NO. 2521/2011 Date of Decision:

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CRIMINAL PROCEDURE CRL.M.C. NO. 2521/2011 Date of Decision: PRAKASH CHANDRA. PETITIONER Through: Mr.Abhik Kumar, Advocate with Mr.S.S.Ray, Advocate. Versus CENTRAL BUREAU OF INVESTIGATION...RESPONDENT Through: Ms.Sonia Mathur, Special P.P. CORAM: HON BLE MR. JUSTICE M.L. MEHTA M.L. MEHTA, J. 1. The present petition assails the order of the Ld. Special Judge, CBI dismissing the application of the petitioner filed under section 311 CrPC for recalling PW1, the sanctioning authority for further cross-examination. 2. The brief facts necessitating the disposal of the present petition are that the petitioner and accused K.S. Meena were SDM and they are alleged to have misused there official position as public servants by dishonestly signing incomplete affidavits which were used by M/s Khatri enterprises and M/s Zee Enterprises in taking clearance from POE office showing unskilled labour to be skilled labour. A surprise search was conducted at the premises of the aforesaid two companies and incomplete affidavits signed by the petitioner and accused K.S. Meena were recovered. Thereafter search was conducted at the premises of the petitioner and accused K.S. Meena which produced rubber stamps which on comparison were found to be the same as used on the seized incomplete affidavits. The investigations revealed that the business of M/s Khatri Enterprises was being run by accused Avinash Chandra and M/s Zee Enterprises was run by accused Nayeem Ahmed. The affidavits were sent for FSL and it was found that the affidavits were fraudulently attested by the petitioner and K.S. Meena only. Investigations revealed that accused Sanjiv Gupta used to purchase the stamp papers and

2 supply to accused persons Avinash Chandra and Nayeem Ahmed. The affidavits were partially typed and thereafter the incomplete typed affidavits were given to Sanjiv Gupta to get them attested from the petitioner and accused K.S. Meena. The sanction to prosecute the Petitioner was duly granted by one Sh. P.K. Jalali, then Joint Secretary, Ministry of Home Affairs, who was examined as PW1 and cross-examined by the counsel of the accused persons on and P.K. Jalali was directed to produce the sanction file on which sanction was granted for prosecution of the petitioner. However, he failed to produce it. Thereafter an application under section 91 CrPC was filed in the court of the Ld. Special Judge for production of the report of investigation i.e., the SP report sent to Ministry of Home Affairs by the CBI for obtaining sanction against the petitioner. The Ld. Special Jude dismissed the said application vide order dated This order of the Ld. Special Judge was challenged in this court in Crl. M.C. 448 of 2009 and during its pendency, the CBI was pleased to supply the SP report to the petitioner. Crl. M.C. 448 of 2009 was disposed vide order dated During the pendency of Crl. M.C. 448 of 2009, application under section 311 CrPC was filed in the court of the Ld. Special Judge for further cross-examination of PW1 which was dismissed vide order dated Hence the present petition. 3. The Ld. counsel for the petitioner submits that the sanction granted by the sanctioning authority was without application of mind and passed in a mechanical manner as the sanctioning authority was misrepresented and misled of the facts of the case. 4. It is contended that one accused Sanjiv Gupta who was cited as a witness by the prosecution in the SP report was later made an accused in the chargesheet. However, the sanctioning authority failed to take cognizance of this fact while granting sanction for prosecution of the petitioner. The entire evidence was not placed before the sanctioning authority and sanction was granted solely on the basis of the SP report and therefore granted in a mechanical manner without appreciating the entire evidence on record. The petitioner relies upon a division bench judgment of this court in Salamat Ali v. State, 174 (2010) DLT 558 (DB) wherein the matter was remanded back to the trial court for re-examination of certain prosecution witnesses as it was observed that the witnesses had not been examined effectively by the accused s counsel. The counsel further relies upon the judgment of the Hon ble Supreme Court in Hoffman Andreas v. Inspector of Customs, Amritsar 2000 SCC (10) 430 wherein it was held that due to the death of the

3 defense counsel midway of the trial, the new counsel was allowed to further cross-examine the material witnesses in the interest of justice. 5. In view of the above contentions and on the premise that there was a change of counsel since the previous cross- examination, it is prayed that the petitioner be allowed to further cross-examine the sanctioning authority on the contents of the SP report which has several discrepancies as previously the petitioner did not get the opportunity to confront him with the SP report during cross-examination which was at that point of time not in his possession. 6. Per contra, the respondent CBI has vehemently opposed the prayer of the petitioner on the premise that PW1, the sanctioning authority has already undergone detailed cross-examination on and by the counsel of the petitioner and there is no requirement of further crossexamination of the sanctioning authority. The Ld. counsel relies upon Nisar Khan & Ors v. State of Uttaranchal (2006) 9 SCC 386 wherein the offence was under section 302 IPC and the court observed that it was unreasonable to recall eyewitnesses for further examination after a lapse of 1 year. She further relies upon a judgment of this court in Raminder Singh v. State Crl. M.C of 2006, wherein it was held that, 6. In the first place, it requires to be noticed that scope of Section 311 CrPC does not permit a court to go into the aspect whether material portions of the evidence on record should have been put to the witness in crossexamination to elicit their contradictions. If the court is required to perform such an exercise every time an application is filed under Section 311 then not only would it be pre-judging what according to it are `material portions of the evidence but it would end up reappraising the entire crossexamination conducted by a counsel to find out if the counsel had done a competent job or not. This certainly is not within the scope of the power of the trial court under Section 311 CrPC. No judgment has been pointed out by the learned counsel for the petitioner in support of such a contention. Even on a practical level it would well nigh be impossible to ensure expeditious completion of trials if trial courts were expected to perform such an exercise at the conclusion of the examination of prosecution witnesses every time. 7. After having heard the parties and perusing the order of the Ld. Special Judge and the testimony of PW1, I find no infirmity with the order of the Ld. Special Judge in dismissing this application.

4 8. It is rightly observed by the Ld. Special Judge that sanction order is a speaking one. A sanction order is merely an administrative order and the sanctioning authority need not sift and weigh evidence meticulously while granting sanction and it only needs to take a prima facie view of offence being made out while granting sanction for prosecution of an offence. In the case of Hardev Singh Dhillon v. Department of Revenue Intelligence, 2010 (1) JCC 342 it was held that, 18. The purpose of sanction for prosecution is to prevent malicious and unnecessary prosecutions leading to harassment; it is a condition precedent for the launch of a prosecution. What the prosecution has to prove is that the sanction has been accorded with respect to the facts constituting the offence. Narration of facts on the face of it is desirable but not always essential; if there is no such narration the prosecution must in the course of trial by extraneous evidence prove that those facts were before Sanctioning Authority who applied its mind to them before the grant of sanction; an opportunity of hearing is not necessary to be given before the grant of sanction. It is purely an administrative act. 9. The fact that petitioner is entitled to lead evidence to prove that there was no application of mind of the sanctioning authority at the time of granting sanction, is not disputed. However, this right cannot be allowed to be misused to frustrate the very purpose for which it has been provided under the law. 10. The applicability and use of section 540 CrPC which is para materia with the new section 311 CrPC has been discussed in Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178, 11. Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word any in the first part and of the word 'shall' in the second firmly established this difference. Under the first part, which is permissive, the court may act in any of three ways : (a) summon any person as a witness, (b)) examine any person present in court although not summoned, and (c)) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the

5 trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to some thing in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. 17. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly, but whether court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of just decision, the action is open to criticism, but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the justification. 11. The judgments cited by the Ld. counsel of the petitioner are clearly distinguishable on the facts as in the case of Salamat Ali (Supra) the ground for re-calling of the witness had been incompetence of the defence counsel and lack of cross-examination on material aspects of the case. Also in Hoffman Andreas (Supra) the Hon ble Supreme Court had allowed recalling of the witness on the premise that the previous counsel of the accused had died midway the trial and further cross-examination of material witnesses was essential in the interest of justice. In Yahswant Nanubhai Pingle (Supra) the trial was quashed on the premise that all the evidence was not placed before the sanctioning authority. It is distinguishable as in the present case the witness in his cross-examination categorically states, The material placed before me consisted of affidavits attested by the accused, the statements of witnesses recorded by CBI during investigation, seizure memo, the CFSL report, etc. Therefore, it cannot be said that the entire evidence was not placed before the sanctioning authority in the present case. All these cases have no bearing on the present case as the witness has already undergone a detailed and lengthy cross-examination by the defence counsel covering all material aspects of sanction including the SP report.

6 12. The law is trite that the powers of this court under section 482 CrPC has to be used sparingly and with great caution and only in those cases where there is glaringly injustice or abuse of process of court. 13. The recording of evidence in the present case is at the fag end. A plea to re-call the sanctioning authority at this stage is unwarranted and the petitioner is not likely to be prejudiced as he has already availed of his right to cross-examine the witness. Also further cross-examination of the sanctioning authority is by no means seen to be essential for the just decision of this case. 14. Hence I find no infirmity in the order of the Ld. Special Judge. 15. Petition is accordingly dismissed. Sd/- M.L. MEHTA, J.