Adult 44 Years, Having Addressat B v. The Union Of India

kps IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3654 OF 2012 Vivek Batra, Adult 44 years, having addressat B-22, Income Tax Colony,Pedder Road, Mumbai. ..PETITIONER -Versus- 1The Union of India.Through the Secretary,Through the Secretary, Ministry of Finance, Department of Revenue,North Block, New Delhi-110001.North Block, New Delhi-110001. 2The Chairman, Central Board of Direct Taxes, Ministry of Finance, Department of Revenue,North Block, New Delhi-110001.North Block, New Delhi-110001. 3The Chief Commissioner of Income Tax, Mumbai. Aaykar Bhavan,M.K.Road, Mumbai-400020.M.K.Road, Mumbai-400020. 4Central Bureau of Investigation, ACB, Tanna House, 4[th] Floor, Nathalal Parekh Marg, Colaba, Mumbai. 5The State of Maharashtra. ..RESPONDENTS ............. Mr.Amit Desai, Senior Advocate a/w Mr.Prakash Naik, Mr.Gopalkrishna Shenoy, Mr.Ganesh Bhujbal, for the Petitioner. Mr.Vivek Bhatia, for the Respondent No.1/Union of India. Mr.D.N.Salvi, for the Respondent No.3/Income Tax. Mr.Kevic Setalwad, Additional Solicitor General of India a/w Mr.Milind Sawant and Awais Ahmadji and Mr.B.B.Badami, for the Respondent No.4/CBI. Mrs.P.H.Kantharia, APP, for the State. ............ CORAM : S.C.DHARMADHIKARI&G.S.PATEL, JJ. Reserved on : 11[th] October, 2013Pronounced on : 29[th] October, 2013. Judgment (Per S.C.Dharmadhikari, J.): 1In the light of the earlier orders passed by this Court at the stage of issuance of notice, this Writ Petition is disposed of finally at the stage of admission. 2Hence, RULE. The Respondents waive service. By consent, Rule is made returnable forthwith. 3By this Writ Petition under Article 226 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, 1973, the Petitioner is challenging the grant of sanction vide order dated 09.10.2012. This order is passed by the Respondent No.1. 4The Petitioner before us is a citizen of India. He is an Indian Revenue Service Officer of 1992 batch (for short IRS officer). Presently, he is the Additional Commissioner of Income Tax, Mumbai. 5It is stated that a case of Disproportionate Assets bearing RC No.BA1/2005/A0017 was registered by the Respondent No.4 on 4[th] April, 2005 against the Petitioner who is the original accused, under Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988. It is alleged in the complaint dated 04.04.2005 that the present Petitioner who is the original Accused while functioning as a public servant indulged in corrupt practices and thereby accumulated assets exceeding Rs.01,27,38,353/- disproportionate to his known sources of income and in his name and in the name of his wife and minor son during the period from 04.01.1993 to 31.03.2004. According to the Petitioner, as a result of long investigation over almost 6 years, the prosecution could not find any alleged disproportionate assets in the hands of the Petitioner or his family members viz. his wife Mrs.Priyanka Batra and minor son Master Arjun Batra, but sought prosecution of the Petitioner by somehow linking two companies, namely, M/s ARJ Impex Private Limited and M/s Malik Hospitality Services Private Limited to the Petitioner, thereby computing the disproportionate assets at Rs.56.30 lacs approximately in these two companies. The prosecution applied for sanction against the Petitioner before the Sanctioning Authority in October/ November, 2010. Annexure A to the petition is a copy of the First Information Report. 6The Petitioner states that despite almost 6 long years of investigation, the Central Bureau of Investigation (for short CBI) was unable to find any disproportionate assets in the hands of the Petitioner, his wife Mrs.Priyanka Batra and minor son Master Arjun Batra in personal capacity. The CBI, however, sought sanction for prosecution linking the Petitioner to the above two companies treating them as Benami companies of the Petitioner, claiming disproportionate assets of Rs.56.30 lacs approximately in these two companies. According to the Petitioner, for no reason and after lapse of 5 years from the date of registration of offence, despite having appeared before the CBI more than 20 times, the Petitioner was arrested on pretext of interrogation on 02.09.2010 and kept in custody for 3 days. He was subsequently released on bail after he was produced before the learned Special Court at Mumbai. 7The Petitioner complains that the matter was kept pending and therefore, he suspected that after the case was put up for sanction before the Sanctioning Authority, a decision would be taken expeditiously. However, his complaint is that he obtained the notesheet and documents available in the file seeking sanction for prosecution by taking recourse to the Right to Information Act, 2005. He has disclosed summary of notings approved by the Competent Authority. He has then contended that on a detailed and careful perusal of the Central Bureau of Investigation (for short CBI) inquiry report, the Sanctioning Authority took a view that the Department does not find sufficient evidence to link the above two companies to the Petitioner and therefore, does not agree with the CBI to grant sanction for prosecution. Thus, the remark “no sufficient evidence” and hence, no prima facie case to proceed, would denote that the sanction was not granted. In other words, the matter was not fit for grant of sanction, but it was considered as appropriate for administrative action. Yet, it is alleged that the matter was referred to the Central Vigilance Commission (for short CVC) for its first stage preliminary advice on 03.05.2011. The first stage advice of the CVC was received vide office memorandum dated 01.09.2011 and that recommended granting sanction for prosecution of the Petitioner. 8The Petitioner states that the Department concerned was convinced that there is no sufficient evidence and no prima facie case for prosecution. It having considered the CVC's advice, once again the Department concerned, namely, Finance Department endorsed on 01.10.2011 in the file that the matter may be referred to the CVC for reconsideration of its advice. This was because the competent/ sanctioning authority was convinced that the CBI was not able to gather sufficient evidence for making a prima facie case for launching of criminal prosecution. The matter was then referred to the CVC for reconsideration of its advice. The CVC by its Office Memorandum dated 02.11.2011 did not agree for reconsideration of the advice and instead observed that the Competent Authority should proceed to grant sanction. 9The Petitioner then submits that the Competent Authority was of the firm belief that there is no sufficient evidence and no prima facie case for criminal prosecution. It endorsed its earlier decision of not granting sanction for prosecution. However, on 18.02.2012 it referred the matter to the Department of Personnel & Training (for short DOP&T) for its views with observation that they will be willing to grant sanction for prosecution only in the event the CBI can provide further sufficient evidence. However, the DOP&T did not appreciate the conditional stand of the Competent Authority of granting sanction only if the CBI provides sufficient evidence and, therefore, returned the case to the Competent Authority requesting it to take a final categorical and unconditional decision. This was communicated vide letter dated 29.03.2012. 10The Petitioner submits that on the advice of the DOP&T, the Competent Authority again applied its mind in detail and on 27.04.2012 the Competent Authority took a final decision in the matter that the evidence being not sufficient, no prima facie case for initiation of case for major penalty or prosecution was made out. It only recommended issuance of an administrative warning to the Petitioner for non intimation of one transaction. The Finance Department then referred the matter to the DOP&T for its views. 11The Petitioner further submits that by the letter dated 28.05.2012, the DOP&T conveyed its views on the matter wherein it stated that it was convinced that the CVC in its brief reply has not given any plausible reason to rebut the points raised by the Finance Ministry about insufficiency of evidence. The DOP&T expressed a view that insufficiency of evidence could be tested in a court of law and that sanction for prosecution may be granted. 12The Petitioner submits that he expected that the Competent Authority, in tune with the earlier consistent decisions of no sufficient evidence and no prima facie case for grant of sanction for prosecution, would take its final decision of not granting the same and would endorse its decision dated 27.04.2012. However, to his utter shock and surprise, the new incumbent acting as Competent Authority issued the order dated 09.10.2012 thereby granting the sanction for prosecution. This decision amounts to review of the earlier decision without there being any fresh material, but on the same facts. In such circumstances when there is a complete non application of mind, the order granting sanction is vitiated. 13Thus, it is this order which is challenged in this Writ Petition. 14Mr.Amit Desai, learned Senior Counsel appearing for the Petitioner, submitted that the impugned decision is vitiated in law. The said decision amounts to review of the earlier decision dated 27.04.2012 refusing sanction. Mr.Desai submits that the test is whether a prima facie case is made out and whether the material is sufficient for grant of sanction. Mr.Desai submits that the scope of Sanctioning Authority's powers is fairly wide. It can consider the issue of adequacy and sufficiency of the material. It cannot be urged that sufficiency of evidence is a consideration or factor alien to the powers of the Sanctioning Authority. This is a valid consideration. Once that aspect can be looked into by the Sanctioning Authority and it refuses to grant sanction on meticulous analysis of the material produced, then, such decision or order is final. It could not have been reviewed or reconsidered save and except in exceptional circumstances. Mr.Desai submits that the test of prejudice would come at a later stage. In the present case when there is a decision endorsed in the file on 27.04.2012 and that is not to grant sanction, then, the subsequent order passed on 09.10.2012 deserves to be quashed and set aside. 15Mr.Desai was at pains to urge that the argument that sufficiency of material/ evidence can be considered only by the competent court and not by the Sanctioning Authority, is an improper and incorrect understanding of the ambit and scope of the powers conferred by Section 19 of the Prevention of Corruption Act, 1988. Mr.Desai submits that the objections taken by the CBI in the affidavit in reply, firstly to the maintainability of the Writ Petition and equally on merits, cannot be sustained and should be ignored or brushed aside by this Court. The stand is that the Sanctioning Authority cannot go into the issue of sufficiency or 15Mr.Desai was at pains to urge that the argument that sufficiency of material/ evidence can be considered only by the competent court and not by the Sanctioning Authority, is an improper and incorrect understanding of the ambit and scope of the powers conferred by Section 19 of the Prevention of Corruption Act, 1988. Mr.Desai submits that the objections taken by the CBI in the affidavit in reply, firstly to the maintainability of the Writ Petition and equally on merits, cannot be sustained and should be ignored or brushed aside by this Court. The stand is that the Sanctioning Authority cannot go into the issue of sufficiency or adequacy of the material/ evidence against an officer or public servant like the Petitioner. This stand is only based on some advice given by the CVC. The role of the CVC is limited and it is advisory and recommendatory in nature. In these circumstances based on such advice of the CVC or some view or some opinion of the DOP&T, the Sanctioning Authority could not have reviewed its earlier decision. The argument that there is no earlier decision and therefore, there is no review, cannot be accepted in the teeth of the file notings. Mr.Desai submits that the further argument of the CBI that there was no decision taken prior to 09.10.2012 and there is no order of the earlier date, is factually incorrect. The term “advice or opinion” used by the CBI in its affidavit is not proper because the Sanctioning Authority consistently refused to grant sanction and endorsed that view or opinion. That has to be construed as an order refusing sanction. Once that order has been endorsed in the file, then, merely because the matter was carried to some other Department or recommendatory authority like the CVC, does not mean that the Sanctioning Authority's decision is not final. The stand of the CBI that only consultative process was going on and there is no decision taken or order passed, is, therefore, contrary to the record. 16Mr.Desai submits that the purpose of sanction and inserting a provision in that behalf is to protect the honest public servants. All such officers who are honest and hardworking are bound to face some resistance and from the interested quarters in their career. They are bound to come across cases where they refuse to grant favour or toe the line of seniors and others in the Department. In such circumstances when they are expected to work independently and fearlessly, they deserve to be protected against frivolous and vexatious prosecution. In these circumstances the order dated 09.10.2012 must be quashed and set aside. 16Mr.Desai submits that the purpose of sanction and inserting a provision in that behalf is to protect the honest public servants. All such officers who are honest and hardworking are bound to face some resistance and from the interested quarters in their career. They are bound to come across cases where they refuse to grant favour or toe the line of seniors and others in the Department. In such circumstances when they are expected to work independently and fearlessly, they deserve to be protected against frivolous and vexatious prosecution. In these circumstances the order dated 09.10.2012 must be quashed and set aside. 17Mr.Desai submits that once the Sanctioning Authority is of the opinion that the matter be closed by only giving a warning to the Petitioner which is in the form of minor penalty, then, such stand of the Sanctioning Authority and reflected in the file notings has to be treated as an order. Once it is treated as such, then, there is no scope for passing another order on the same grounds and on the same material, but reversing the earlier conclusion. The order dated 09.10.2012 is based on the circular dated 03.05.2012. That circular has been issued after the order dated 27.04.2012. Therefore, that circular is clearly inapplicable. Assuming that the said circular could have been applied, still on the basis of some unsolicited advice, the Sanctioning Authority could not have made another order of 03.05.2012. Thus, this order and the impugned order dated 09.10.2012 are both nothing but exercising the review jurisdiction. Such jurisdiction has to be specifically conferred in law. Even if it is so conferred, it cannot be exercised in the absence of any fresh material. There is no fresh material, but same advice as was given prior to 27.04.2012 which has been reiterated in the subsequent communications by either CVC or DOP&T. Based on such advice and opinion the Sanctioning Authority could not have reviewed its earlier order. Once the order in review is quashed and set aside, then, this is a case of absence of sanction for criminal prosecution. If the case is of absence of sanction, then, this Court in exercise of its writ jurisdiction and equally inherent powers can quash the criminal proceedings. 18In support of his submissions, Mr.Desai has taken us through the file notings and particularly file notings at page 114-A dated 19.06.2012, 115-N dated 09.07.2012, 126-N, 127-N, 129-N, 132-N and 146-N. It is submitted by him that the above events will show as to how ultimately and eventually the impugned order came to be passed on 09.10.2012. It is nothing but exercise of powers in the nature of review. Once that power of review could not have been exercised, then, this is a case where cognizance has been taken by the Trial Court without sanction. Therefore, the trial is vitiated in law. Mr.Desai was at further pains to emphasize that errors of jurisdiction can be corrected by this Court in its above referred powers. Hence, the Writ Petition be allowed. 19In support of his submissions noted above, Mr.Desai relies upon the following decisions:- 1)Mahender Singh v/s State, reported in 1991 A.Cr.R. 638. 2)Ram Kishan Singh v/s Harmit Kaur and another, reported in (1972) 3 SCC 280.in (1972) 3 SCC 280. 3)Jaswant Singh v/s State of Punjab, reported in AIR 1958 SC 124.SC 124. 4)State of Himachal Pradesh v/s Nishant Sareen, reported in (2010) 14 SCC 527.(2010) 14 SCC 527. 5)State of M.P. v/s Jiyalal, reported in AIR 2010 SC 1451. 6)State of Karnataka v/s Ameer Jan, reported in AIR 2008 SC 108.SC 108. 7)State of Bihar v/s P.P.Sharma, IAS, reported in 1992 Supp. (1) SCC 222.(1) SCC 222. 8)R.S.Nayak v/s A.R.Antulay, reported in (1984) 2 SCC 183.9)Mohd. Iqbal Ahmed v/s State of Andhra Pradesh, reported in (1979) 4 SCC 172.9)Mohd. Iqbal Ahmed v/s State of Andhra Pradesh, reported in (1979) 4 SCC 172. 10)Dr.Subramaniam Swamy v/s Dr.Manmohan Singh, wp.3654.12.cr.db.sxw reported in (2012) 3 SCC 64. 2)Ram Kishan Singh v/s Harmit Kaur and another, reported in (1972) 3 SCC 280.in (1972) 3 SCC 280. 3)Jaswant Singh v/s State of Punjab, reported in AIR 1958 SC 124.SC 124. 4)State of Himachal Pradesh v/s Nishant Sareen, reported in (2010) 14 SCC 527.(2010) 14 SCC 527. 5)State of M.P. v/s Jiyalal, reported in AIR 2010 SC 1451. 6)State of Karnataka v/s Ameer Jan, reported in AIR 2008 SC 108.SC 108. 7)State of Bihar v/s P.P.Sharma, IAS, reported in 1992 Supp. (1) SCC 222.(1) SCC 222. 8)R.S.Nayak v/s A.R.Antulay, reported in (1984) 2 SCC 183.9)Mohd. Iqbal Ahmed v/s State of Andhra Pradesh, reported in (1979) 4 SCC 172.9)Mohd. Iqbal Ahmed v/s State of Andhra Pradesh, reported in (1979) 4 SCC 172. 10)Dr.Subramaniam Swamy v/s Dr.Manmohan Singh, wp.3654.12.cr.db.sxw reported in (2012) 3 SCC 64. 11)Ramanand Chaudhary v/s State of Bihar, reported in (2002) 1 SCC 153.(2002) 1 SCC 153. 12)Gopikant Choudhary v/s State of Bihar, reported in (2000) 9 SCC 53.9 SCC 53. 13)Ashok Kumar Aswal v/s Union of India, passed by Delhi High Court in Writ Petition (C) No.578/2010 dated 11.01.2013.High Court in Writ Petition (C) No.578/2010 dated 11.01.2013. 14)Mansukhlal Vithaldas Chauhan v/s State of Gujarat, reported in (1997) 7 SCC 622.reported in (1997) 7 SCC 622. 20On the other hand, the learned Additional Solicitor General of India Mr.Setalwad appearing for the Respondent Nos.1 to 4, would submit that this Writ Petition is not maintainable. The CBI has filed an affidavit and pointed out as to how this Writ Petition is abuse of the process of the Court. Mr.Setalwad submits that the factual matters cannot be raised in this jurisdiction. This Court cannot in exercise of its limited jurisdiction go into the issues and particularly whether, there was sufficient material/ evidence to grant sanction for criminal prosecution. Mr.Setalwad submits that the matters of sufficiency and adequacy of evidence have to be dealt with by the competent criminal courts. At the stage of grant of sanction, the Sanctioning Authority is not empowered in law to consider as to whether the material collected or gathered would constitute an admissible evidence and withstand scrutiny and trial of the competent criminal court. Such matters are in the realm of the competent courts and the Sanctioning Authority cannot enter into the same. 21 Mr.Setalwad submits that the argument that sufficiency or adequacy of evidence is a matter which can be gone into by the Sanctioning Authority in order to find out whether there is a prima facie case, has no merit. That would unnecessary widen the ambit and scope of the powers of the Sanctioning Authority. That would mean usurpation of powers of the competent courts. The grant of sanction by applying the test of prima facie case, does not mean that the Sanctioning Authority can go into sufficiency of evidence. In these circumstances if Mr.Desai's arguments are accepted, that would mean that the Sanctioning Authority can exceed its power in law. 22Mr.Setalwad then submits that there is no merit in the submissions of Mr.Desai that on 27.04.2012 the Sanctioning Authority passed an order refusing the sanction for criminal prosecution of the Petitioner. Mr.Setalwad submits that there is no such order or decision. Therefore, there is no question of it being reviewed by the Sanctioning Authority. There is only one order on the point of sanction and that is the impugned order dated 09.10.2012 granting sanction to prosecute the Petitioner. Prior to this, there has been no order or decision, but the file notings would indicate that it was a continuing process of deliberations and discussions. Such deliberations and discussions at a departmental level is a usual and normal thing. The notings in the file during the course of departmental discussions and deliberations do not constitute an order or decision of the Government or the Competent Authority. At best, these notings are opinions of several officers in the concerned Department. 23In this behalf, Mr.Setalwad invites our attention to the file notings and submits that the stand taken by these Respondents in their affidavit is accurate and correct. When there were differences within and between two Departments, it was decided to obtain an advice from the CVC. That is how the file movement began. Thereafter, there are and were number of circulars of the CVC. Hence, an attempt was made to resolve the dispute between two Departments, namely, Finance and DOP&T. The first stage advice of the CVC was that a sanction to prosecute should be granted because the Sanctioning Authority cannot evaluate the evidence collected. It has only to form a prima facie opinion. In these circumstances the Finance Department may hold some view, but it never passed any final orders until 09.10.2012. The file notings, on which the Petitioner relies, have to be read in their entirety and so read, what has been observed is that the clarifications have been sought. If the clarifications were sought and the file was referred to the CVC for its advice and later on to some other Department, does not mean that the Finance Department has refused the sanction. Mr.Setalwad laid emphasis upon the notings and proposals of the Finance Department to refer the case to the CVC for its first stage advice. This was essentially because the Finance Department did not agree with the recommendations of the CBI for prosecution and initiation of major penalty proceedings against the Petitioner, instead it recommended an administrative warning to be issued to him. 24Thus, Mr.Setalwad would submit that at no stage prior to 09.10.2013 the Finance Department has concluded and held that the sanction be refused. Had that been so then there was no necessity to have on file an advice of the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, Government of India dated 28.05.2012. That is unequivocal and clear. Once that is on record, then, Mr.Desai cannot rely on the notings in the file and particularly dated 27.04.2012. For all these reasons, it is submitted that there is no merit in the Writ Petition. 25Mr.Setalwad submits that this is not a case of review of any earlier order. This is not, therefore, assumption of jurisdiction which never existed in law. This is a case of exercise of jurisdiction vested in the Competent Authority. The Sanctioning Authority was fully empowered to grant or refuse a sanction. That is undisputed by the Petitioner. That Sanctioning Authority has passed the order on 09.10.2012 and which alone can be said to be an order in terms of Section 19 of the Prevention of Corruption Act, 1988 and particularly under sub-section (1) clause (a) thereof. Inviting our attention to sub-section (3) of Section 19 of the Prevention of Corruption Act, 1988, Mr.Setalwad submits that any error, omission or irregularity in the order of sanction will never vitiate the proceedings unless failure of justice has been established. In any event the proceedings before the Competent Court pursuant to such sanction cannot be stayed by virtue of clause (b) of sub-section (3) of Section 19 of the Prevention of Corruption Act, 1988. Thus, this is not a case of absence of sanction as urged, but an order of sanction which is being termed as erroneous. There is nothing erroneous about it because the order recites as to how the Sanctioning Authority has applied its mind to the material collected and has arrived at a prima facie satisfaction that a sanction deserves to be granted to prosecute the Petitioner. This prima facie satisfaction has been recorded in paragraph 14 of the order granting sanction, copy of which is at pages 154 to 162 of the paper book. For all these reasons, Mr.Setalwad submits that the Writ Petition be dismissed. 26Mr.Setalwad has relied upon the following decisions in support of his contentions:- 1)Dinesh Kumar v/s Chairman, Airport Authority of India, reported in AIR 2012 SC 858.reported in AIR 2012 SC 858. 26Mr.Setalwad has relied upon the following decisions in support of his contentions:- 1)Dinesh Kumar v/s Chairman, Airport Authority of India, reported in AIR 2012 SC 858.reported in AIR 2012 SC 858. 2)Dinesh Kumar v/s Chairman, Airport Authority of India, of the Delhi High Court in W.P. (cri) No.1754/2009 and Cri.M.A. No.14370/2009, decided on 19.07.2010. (2011 (2) JCC 733). 3)Jasbir Singh Chhabra v/s State of Punjab, reported in (2010) 4 SCC 192.(2010) 4 SCC 192. 4)Ashok Tshering Bhutia v/s State of Sikkim, reported in AIR 2011 SC 1363.2011 SC 1363. 5)Parkash Singh Badal v/s State of Punjab, reported in AIR 2007 SC 1274.2007 SC 1274. 6)Satya Narayan Sharma v/s State of Rajasthan, reported in AIR 2001 SC 2856.AIR 2001 SC 2856. 7)State of Bihar v/s P.P.Sharma, reported in AIR 1991 SC 1260.1260. 8)Sirajin Basha v/s B.S.Yediyurappa, reported in 2012 Cri.L.J. 1798. 27For properly appreciating the rival contentions, it would be useful to refer to Section 19 of the Prevention of Corruption Act, 1988. That section reads thus:- “19. Previous sanction necessary for prosecution. – (1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, – punishable under section 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 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. (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.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), – 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;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; (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 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;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 of a similar nature.”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 of a similar nature.” 28In the case of Dr.Subramanian Swamy v/s Dr.Manmohan Singh reported in AIR 2012 SC 1185, the Honourable Supreme Court has discussed the ambit and scope of powers conferred by Section 19 and the parameters within which the said powers have to be exercised. The Honourable Supreme Court holds thus:- “18.The next question which requires consideration is whether the appellant has the locus standi to file a complaint for prosecution of respondent No.2 for the offences allegedly committed by him under the 1988 Act. There is no provision either in the 1988 Act or the Code of Criminal Procedure, 1973 (CrPC) which bars a citizen from filing a complaint for prosecution of a public servant who is alleged to have committed an offence. Therefore, the argument of the learned Attorney General that the appellant cannot file a complaint for prosecuting respondent No.2 merits rejection. A similar argument was negatived by the Constitution Bench in A.R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500 : (AIR 1984 SC 718). The facts of that case show that on a private complaint filed by the respondent, the Special Judge took cognizance of the offences allegedly committed by the appellant. The latter objected to the jurisdiction of the Special Judge on two counts, whether the appellant has the locus standi to file a complaint for prosecution of respondent No.2 for the offences allegedly committed by him under the 1988 Act. There is no provision either in the 1988 Act or the Code of Criminal Procedure, 1973 (CrPC) which bars a citizen from filing a complaint for prosecution of a public servant who is alleged to have committed an offence. Therefore, the argument of the learned Attorney General that the appellant cannot file a complaint for prosecuting respondent No.2 merits rejection. A similar argument was negatived by the Constitution Bench in A.R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500 : (AIR 1984 SC 718). The facts of that case show that on a private complaint filed by the respondent, the Special Judge took cognizance of the offences allegedly committed by the appellant. The latter objected to the jurisdiction of the Special Judge on two counts, including the one that the Court set up under Section 6 of the Criminal Law Amendment Act, 1952 (for short, 'the 1952 Act') was not competent to take cognizance of any of the offences enumerated in Section 6(1)(a) and (b) upon a private complaint. His objections were rejected by the Special Judge. The revision filed by the appellant was heard by the Division Bench of the High Court which ruled that a Special Judge is competent and is entitled to take cognizance of offences under Section 6(1)(a) and (b) on a private complaint of the facts constituting the offence. The High Court was of the opinion that a prior investigation under Section 5A of the Prevention of Corruption Act, 1947 (for short, 'the 1947 Act') by a police officer of the designated rank is not sine qua non for taking cognizance of an offence under Section 8(1) of the 1952 Act. Before the Supreme Court, the argument against the locus standi of the respondent was reiterated and it was submitted that Section 5A of the 1947 Act is mandatory and an investigation by the designated officer is a condition precedent to the taking of cognizance by the Special Judge of an offence or offences committed by a public servant. While dealing with the issue relating to maintainability of a private complaint, the Constitution Bench observed: "It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreignto criminal jurisprudence save and except that wherethe statute creating an offence provides for theeligibility of the complainant, by necessaryimplication the general principle gets excluded bysuch statutory provision.Numerous statutory provisions, can be referred to in support of this legal position such as (i) Section 187-A of Sea Customs Act, 1878 (ii) Section 97 of Gold Control Act, 1968 (iii) Section 6 of Import and Export Control Act, 1947 (iv) Section 271 and Section 279 of the Income-tax Act, 1961 (v) Section 61 of the Foreign Exchange Regulation Act, 1973, (vi) Section 621 of the Companies Act, 1956 and (vii) Section 77 of the Electricity Supply Act. This list is only illustrative and not exhaustive. While Section 190 of the Code ofCriminal Procedure permits anyone to approach theMagistrate with a complaint, it does not prescribeany qualification the complainant is required to fulfilto be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the CrPC. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle thatanyone can set or put the criminal law in motionremains intact unless contra-indicated by a statutoryprovision. This general principle of nearly universalapplication is founded on a policy that an offence i.e.an act or omission made punishable by any law forthe time being in force is not merely an offencecommitted in relation to the person who suffers harmbut is also an offence against society. The society forits orderly and peaceful development is interested inthe punishment of the offender. Therefore,prosecution for serious offences is undertaken in thename of the State representing the people whichwould exclude any element of private vendetta orvengeance. If such is the public policy underlyingpenal statutes, who brings an act or omission madepunishable by law to the notice of the authoritycompetent to deal with it, is immaterial andirrelevant unless the statute indicates to the contrary.Punishment of the offender in the interest of thesociety being one of the objects behind penal statutesenacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribedor fettered by putting it into a straitjacket formula oflocus standi unknown to criminal jurisprudence, saveand except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the court would require an unambiguous statutory provision and a tangled web of argument for drawing a far fetched implication, cannot be a substitute for an express statutory provision." (emphasis supplied) The Constitution Bench then considered whether the Special Judge can take cognizance only on the basis of a police report and answered the same in negative in the following words : proceedings cannot be whittled down, circumscribedor fettered by putting it into a straitjacket formula oflocus standi unknown to criminal jurisprudence, saveand except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the court would require an unambiguous statutory provision and a tangled web of argument for drawing a far fetched implication, cannot be a substitute for an express statutory provision." (emphasis supplied) The Constitution Bench then considered whether the Special Judge can take cognizance only on the basis of a police report and answered the same in negative in the following words : "In the matter of initiation of proceeding before a Special Judge under Section 8(1), the Legislature while conferring power to take cognizance had three opportunities to unambiguously state its mind whether the cognizance can be taken on a private complaint or not. The first one was an opportunity to provide in Section 8(1) itself by merely stating that the Special Judge may take cognizance of an offence on a police report submitted to it by an investigating officer conducting investigation as contemplated by Section 5A. While providing for investigation by designated police officers of superior rank, the Legislature did not fetter the power of Special Judge to take cognizance in a manner otherwise than on police report. The second opportunity was when by Section 8(3) a status of a deemed public prosecutor was conferred on a private complainant if he chooses to conduct the prosecution. The Legislature being aware of a provision like the one contained in Section 225 of the CrPC, could have as well provided that in every trial before a Special Judge the prosecution shall be conducted by a Public Prosecutor, though that itself would not have been decisive of the matter. And the third opportunity was when the Legislature while prescribing the procedure prescribed for warrant cases to be followed by Special Judge did not exclude by a specific provision that the only procedure which the Special Judge can follow is the one prescribed for trial of warrant cases on a police report. The disinclination of the Legislature to soprovide points to the contrary and no canon ofconstruction permits the court to go in search of ahidden or implied limitation on the power of theSpecial Judge to take cognizance unfettered by suchrequirement of its being done on a police reportalone.In our opinion, it is no answer to this fairly well-established legal position that for the last 32 years no case has come to the notice of the court in which cognizance was taken by a Special Judge on a private complaint for offences punishable under the 1947 Act." (emphasis supplied) The Court then referred to Section 5A of the 1947 Act, the provisions of the 1952 Act, the judgments in H.N. Rishbud and Inder Singh v. State of Delhi (1955) 1 SCR 1150 : (AIR 1955 SC 196), State of M.P. v. Mubarak Ali, 1959 Supp (2) SCR 201 : (AIR 1959 SC 707), Union of India v. Mahesh Chandra, AIR 1957 MB 43 and held : "Having carefully examined these judgments in the light of the submissions made, the only conclusion that unquestionably emerges is that Section 5-A is a safeguard against investigation of offences committed by public servants, by petty or lower rank police officer. It has nothing to do directly or indirectly with the mode and method of taking cognizance of offences by the Court of Special Judge. It also followsas a necessary corollary that provision of Section 5-Ais not a condition precedent to initiation ofproceedings before the Special Judge who acquirespower under Section 8(1) to take cognizance ofoffences enumerated in Section 6(1)(a) and (b), withthis limitation alone that it shall not be uponcommitment to him by the Magistrate. "Having carefully examined these judgments in the light of the submissions made, the only conclusion that unquestionably emerges is that Section 5-A is a safeguard against investigation of offences committed by public servants, by petty or lower rank police officer. It has nothing to do directly or indirectly with the mode and method of taking cognizance of offences by the Court of Special Judge. It also followsas a necessary corollary that provision of Section 5-Ais not a condition precedent to initiation ofproceedings before the Special Judge who acquirespower under Section 8(1) to take cognizance ofoffences enumerated in Section 6(1)(a) and (b), withthis limitation alone that it shall not be uponcommitment to him by the Magistrate. Once the contention on behalf of the appellantthat investigation under Section 5-A is a conditionprecedent to the initiation of proceedings before aSpecial Judge and therefore cognizance of an offencecannot be taken except upon a police report, does notcommend to us and has no foundation in law, it is unnecessary to refer to the long line of decisionscommencing from Taylor v. Taylor; Nazir Ahmad v.-KingEmperor (AIR 1936 PC 253(2)) and endingwith Chettiam Veettil Ammad v. Taluk Land Board(AIR 1979 SC 1573), laying down hithertouncontroverted legal principle that where a statuterequires to do a certain thing in a certain way, thething must be done in that way or not at all. Othermethods of performance are necessarily forbidden. Once Section 5-A is out of the way in thematter of taking cognizance of offences committed bypublic servants by a Special Judge, the power of theSpecial Judge to take cognizance of such offencesconferred by Section 8(1) with only one limitation, inany one of the known methods of taking cognizanceof offences by courts of original jurisdiction remains-undented. One such statutorily recognised wellknown method of taking cognizance of offences by acourt competent to take cognizance is upon receivinga complaint of facts which constitutes the offence. And Section 8(1) says that the Special Judge has the power to take cognizance of offences enumerated in Section 6(1)(a) and (b) and the only mode of taking cognizance excluded by the provision is upon commitment. It therefore, follows that the SpecialJudge can take cognizance of offences committed bypublic servants upon receiving a complaint of factsconstituting such offences. It was, however, submitted that even if it beheld that the Special Judge is entitled to entertain aprivate complaint, no further steps can be taken byhim without directing an investigation under Section5-A so that the safeguard of Section 5-A is notwhittled down. This is the selfsame argument under adifferent apparel. Accepting such a subm