Supreme Court of India
C.B.I.versusASHOK KUMAR AGGARWAL
- Citation
- 2013 INSC 778
- Decided
- 22 November 2013
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
The Court held that the validity of a sanction under Section 19 must be examined during the trial, and in the present case the appeal is dismissed, with the trial court directed to continue the proceedings from the point at which the stay operated.
Summary
The CBI filed a case against Ashok Kumar Aggarwal for possessing disproportionate assets and obtained sanction for prosecution under Section 19 of the Prevention of Corruption Act, 1988. The respondent challenged the validity of the sanction, alleging that material was not placed before the Finance Minister and that the sanction was therefore vitiated. The trial court held the issue could be examined only during trial, a view affirmed by the High Court which remanded the matter to record a finding on failure of justice. The Supreme Court examined whether the sanction could be questioned at a pre‑charge stage, the meaning of "failure of justice" under the Act, and whether the interim stay granted by the Court contravened Section 19. It held that the proper stage to test the sanction’s validity is during trial, and despite procedural lapses, the appeal must be dismissed, directing the trial court to proceed from the point of stay. The Court also clarified that an error in sanction is fatal only if it results in a failure of justice.
Issues considered
- The appropriate stage for examining the validity of a sanction granted under Section 19 of the Prevention of Corruption Act, 1988
- Whether the sanction granted to the respondent was invalid due to non‑disclosure of material to the sanctioning authority
- Whether the alleged irregularities amount to a "failure of justice" within the meaning of Section 19(3)(b) and (4)
- Whether the interim stay granted by the Supreme Court violated the embargo provision of Section 19(3)
- Whether the sanctioning authority's affidavit indicating non‑consideration of material creates prejudice warranting setting aside the sanction
Legislation cited
- Code of Criminal Procedure, 1973s. 311, s. 397, s. 401, s. 482
- Indian Evidence Act, 1872s. 91, s. 92
- Prevention of Corruption Act, 1988s. 19
Subjects
sanctionPrevention of Corruption Actfailure of justicedisproportionate assetstrial stagepublic servantCBIinterim staysection 19
Judgment
[2013] 14 S.C.R. 983
C.8.1. A
v.
ASHOK KUMAR AGGARWAL
(Criminal Appeal No.1838 of 2013)
NOVEMBER 22, 2013
B
[DR. S.S. CHAUHAN AND S.A. BOBDE, JJ.]
Criminal Law - Sanction for prosecution - Validity of -
Legal propositions in regard to grant of sanction - Discussed
- Prevention of Corruption Act, 1988 - s. 19. c
Prevention of Corruption Act, 1988 - s. 19 -
Disproportionate assets case - Sanction for prosecution -
Validity of - Appropriate stage for examining the validity -
Appellant-CBI registered case against respondent for 0
possessing disproportionate assets - Trial Court issued
summons to the respondent - Respondent filed application
challenging the validity of the sanction granted by the
competent authority u/s.19 of the Act - Trial court dismissed
the application, holding that the issue could be examined E
during trial - High Court remanded the case to record finding
on the question of any failure of justice in according sanction
and to examine the sanctioning authority, as a witness even
at pre-charge stage, if it deems fit - Plea of appellant that
application challenging validity of the sanction at a stage
anterior even to framing of the charges would be in F
contravention of the settled legal propositions - On appeal,
held: The stage of examining the validity of sanction is
undoubtedly during the trial - However, in the instant case,
the impugned order had already been partly complied with
before filing petition before the Supreme Court -" Appellant G
admittedly did not disclose material facts - In the SLP, it was
not disclosed that the trial vourt, after remand, entertained the
matter and issued summons to the then sanctioning authority,
983 H
984 SUPREME COURT REPORTS (2013] 14 $.C.R.
A and in response thereto, an affidavit had been filed by the
then sanctioning authority, disclosing that no material had
been considered by him while granting sanction - However,
the issue as to what prejudice had been caused to the
respondent, not considered - Benefit of interim protection
B granted by Supreme Court in favour of appellant, where the
appellant did not disclose material facts, should be
neutralized - Trial court to proceed with the matter fr<~m the
stage when the stay operated and conclude the same at the
earliest.
c Criminal Jurisprudence - Failure of justice - Meaning of
- Held: The expression 'failure of justice' is an extremely
pliable or facile an expression which can be made to fit into
any case - There would' be 'failure of justice' nol only by unjust
conviction but also by acquittal of the guilty as a result of
D unjust or negligent failure to produce requisite evidence,
Criminal Jurisprudence - 'Prejudice' - Held: The plea of
prejudice has to be in relation to investigation or trial and not
matters falling beyond their scope - Once the accused is able
E to show that there has been serious prejudice caused to him
with respect to either of these aspects, and that the same has
defeated the rights available to him under legal jurisprudence,
the accused can seek relief from the Court - Words and
Phrases.
F The appellant-CBI registered a case against the
respondent for possessing disproportionate assets. The
trial Court took cognizance and issued summons to the
respondent. The respondent filed application challenging
the validity of the sanction granted by the competent
G authority under Section 19 of the Prevention of
Corruption Act, 1988. The trial court dismissed the
application, holding that it was not the appropriate stage
to decide as to whether sanction granted by the
competent authority was invalid and that the issue could
H be examined during trial. The High Court set aside the
C.B.I. v. ASHOK KUMAR AGGARWAL 985
order of the trial court and remanded the case to record A
a finding on the question of any failure pf justice in
according sanction and to examine the sanctioning
authority, as a witness even at pre-charge stage, if it
deems fit.
B
In the instant appeal, it was contended on behalf of
the appellant that the application challenging the validity
of the sanction at a stage anterior even to framing of the
charges was in contravention of the settled legal
propositions.
c
Dismissing the appeal, the Court
HELD:1.1. The prosecution has to satisfy the court
that at the time of sending the matter for grant of sanction
by the competent authority, adequate material for such D
grant was made available to the said authority. This may
also be evident from the sanction order, in case it is
extremely comprehensive, as all the facts and
.circumstances of the case may be spelt out in the
sanction order. However, in every individual case, the E
court has to find out whether there has been an
application of mind on the part of the sanctioning
authority concerned on the material placed before it. It
is so necessary for the reason that there is an obligation
on the sanctioning authority to discharge its duty to give
F
or withhold sanction only after having full knowledge of
the material facts of the case. Grant of sanction is not a
mere formality. Therefore, the provisions in regard to the
sanction must be observed with complete strictness
keeping in mind the public interest and the protection
available to the accused against whom the sanction is G
sought. [Para 7) (997-F-H; 998-A]
1.2. It is to be kept in mind that sanction lifts the bar
for prosecution. Therefore, it is not an acrimonious
H
986 SUPREME COURT REPORTS [2013) 14 S.C.R.
A exercise but a solemn and sacrosanct act which affords
protection to the government servant against frivolous
prosecution. Further, it is a weapon to discourage
vexatious prosecution and is a safeguard for the
innocent, though not a shield for the guilty. Consideration
s of the material implies application of mind. Therefore, the
order of sanction must ex facie disclose that the
sanctioning authority had considered the evidence and
other material. placed before it. In every individual case,
the prosecution has to establish and satisfy the court by
c leading evidence that those facts were placed before the
sanctioning authority and the authority had applied its
mind on the same. If the sanction order on its face
indicates that all relevant material i.e. FIR, disclosure
statements, recovery memos, draft charge sheet and
other materials on record were placed before the
0
sanctioning authority and if it is further discernible from
the recital of the sanction order that the sanctioning
authority perused all the material, an inference may be
drawn that the sanction had been granted in accordance
with law. This becomes necessary in case the court is
E to examine the validity of the order of sanction inter-alia
on the ground that the order suffers from the vice of total
non-application of mind. [Para 7) [998-B-F]
2. The legal propositions in regard to grant of
F sanction can be summarised as under: (a) The
prosecution must send the entire relevant record to the
sanctioning authority including the FIR, disclosure
statements, statements of witnesses, recovery memos,
draft charge sheet and all other relevant material. The
G record so sent should also contain the material/
document, if any, which may tilt the balance in favour of
the accused and on the basis of which, the competent
authority may refuse sanction. (b). The authority itself has
to do complete and conscious scrutiny of the whole
H record so produced by the prosecution independently
C.B.I. v. ASHOK KUMAR AGGARWAL 987
applying its mind and taking into consideration all the A
relevant facts before grant of sanction while discharging
its duty to give or withhold the sanction. (c) The power
to grant sanction is to be exercised strictly keeping in
mind the public interest and the protection available to
the accused against whom the sanction is sought. (d) The B
order of sanction should make it evident that the
authority had been aware of all relevant facts/materials
and had applied its mind to all the relevant material. (e)
In every individual case, the prosecution has to establish
and satisfy the court by leading evidence that the entire c
relevant facts had been placed before the sanctioning
authority and the authority had applied its mind on the
same and that the sanction had been granted in
accordance with law. [Para 8) [999-A-F]
A Sanjeevi Naidu etc. v. State of Madras and Anr. AIR D
1970 SC 1102: 1970 (3) SCR 505 - held inapplicable
State of M.P. v. Dr. Krishna Chandra Saksena (1996) 11
SCC 439: 1996 (7) Suppl. SCR 503; Jaswant Singh v. State
of Punjab AIR 1958 SC 124: 1958 SCR 762; Mohd. Iqbal E
Ahmed v. State of A.P. AIR'1979 SC 677: 1979 (2) SCR
1007; State through Anti- Corruption Bureau, Govt. of
Maharashtra v. Krishanchand Khushalchand Jagtiani AIR
1996 SC 1910: 1996 (1) Suppl. SCR 789; State of Punjab
v. Mohd. Iqbal Bhatti, (2009) 17 sec 92: 2009 (11) SCR
790; Satyavir Singh Rathi, ACP v. State Al~ 2011 SC 1748: F
2011 (6) SCR 138; State of Maharashtra v. Mahesh G. Jain
(2013) 8 sec 119: 2013 (3) SCR 850 - relied on.
Gokulchand Dwarkadas Morarka v. King AIR 1949 PC
82; Costao Fernandes v. State AIR 1996 SC 1383: 1996 SCR G
868; Center for PIL & Anr. v. UOI & Ors. AIR 2001 SC 80:
2000 (8) sec 606 - referred to.
3.1. However, a mere error, omission or irregularity
in sanction is not considered to be fatal ·unless it has
resulted in the failure of justice or has been occasioned H
988 SUPREME COURT REPORTS [2013] 14 S.C.R.
A thereby. [Para 10] [1000-C]
3.2. The court must examine whether the issue raised
regarding failure of justice is actually a failure of justice
in the true sense or whether it is only a camouflage
argument. The expression 'failure of justice' is an
8
extremely pliable or facile an expression which can be
made to fit into any case. The court must endeavour to
find out the truth. There would be 'failure of justice' not
only by unjust conviction but also by acquittal of the
C guilty as a result of unjust or negligent failure to produce
requisite evidence. The rights of the accused have to be
kept in mind and safeguarded but they should not be
over emphasised to the extent of forgetting that the
victims also have certain rights. It has to be shown that
the accused has suffered some disability or detriment in
D the protections available to him under Indian Criminal
Jurisprudence. 'Prejudice' is incapable of being
interpreted in its generic sense and applied to criminal
jurisprudence. The plea of prejudice has to be in
relation to investigation or trial and not matters falling
E beyond their scope. Once the accused is able to show
that there has been serious prejudice caused to him with
respect to either of these aspects, and that the same has
defeated the rights available to him under legal
jurisprudence, the accused can seek relief from the
F Court. [Para 11] [1000-D-A]
Nageshwar Sh. Krishna Ghobe v. State of Maharashtra
AIR 1913 SC 165: 1973 (2) SCR 377; Shamnsaheb M.
Multtani v State of Karnataka AIR 2001 SC 921: 2001 (1)
G SCR 514; State by Police Inspector v. T. Venkatesh Murthy
AIR 2004 SC 5117: 2004 (4) Suppl. SCR 279; Rafiq Ahmed
@ Rafi v. State of UP. AIR 2011 SC 3114: 2011 (11) SCR
907; Rattiram & Ors. v. State of M.P. through Inspector of
Police AIR 2012 SC 1485: 2012 (3) SCR 496; Bhimanna v.
H State of Karnataka AIR 2012 SC 3026: 2012 (7) SCR 909;
C.B.I. v. ASHOK KUMAR AGGARWAL 989
Darbara Singh v. State of Punjab AIR 2013 SC 840: 2012 A
(:r) SCR 541 and Union of India & Ors. v. Ex-GNR Ajeet
Singh (2013) 4 sec 186 - relied on.
Ashok Tshering Bhutia v. State of Sikkim AIR 2011 SC
1363: 2011 (3) SCR 242; State of T.N. v. M.M. Rajendran B
(1998) 9 SCC 268 and Vineet Narain & Ors. v. Union of India
& Anr. AIR 1998 SC 889: 1997 (6) Suppl. SCR 595 _,
referred to.
4.1. In the instant case, the sanction order speaks of
consideration of the entire material including the case C
diaries and documents collected during the course of
investigation and statements recorded under Section 161
Cr.P.C. and statements recorded by the Magistrate under
Section 164 Cr.P .C. The Trial Court observed that the
same may be factually incorrect, and there was a letter D
on record showing the true picture that the relevant
documents had not been sent to the sanctioning
authority. However, it is open to the prosecution during
the course of trial to examine the sanctioning authority
where such a discrepancy can be explained. [Para 17] E
[1003-E-G]
4.2. Undoubtedly, the stage of examining the validity
of sanction is during the trial and this Court does not
propose to say that the validity should be examined
F
during the stage of inquiry or at pretrial stage. However,
in the instant case, the fact-situation warrant a different
course altogether as the impugned order had already
been partly complied with before filing the petition before
this Court. The appellant admittedly did not disclose the
material facts in this petition. Had the said facts been G
disclosed perhaps this Court would not have enterta~ned
this petition and the matter could have been concluded
by the Trial Court much earlier. The affidavit filed by the
sanctioning authority may tilt the balance in favour of the
respondent if duly supported by the deponent and not H
990 SUPREME COURT REPORTS [2013] 14 S.C.R.
A disclosing the material fact i.e. filing of such an affidavit
by the sanctioning authority before the Special Judge,
indicates serious and substantial prejudice to the
respondent. The material on record reveals that it could
be a case of serious prejudice to the respondent so far
s as the decision making process by the sanctioning
authority is concerned. The present special leave petition
was drawn/drafted on 20.11.2007 and filed thereafter.
Interim order was granted by this Court on 10.12.2007. In
the special leave petition it has not been disclosed that
c the Special Judge, after remand, entertained the matter
and issued summons to the then sanctioning authority
i.e. Hon'ble Finance Minister, and in response thereto, an
affidavit dated 3.11.2007 had been filed by the then
sanctioning authority, disclosing that no material had
been considered by him while granting sanction.
0
However, leaving the issue open as to what prejudice
had been caused to the respondent, it is apparent that
all the material facts had not been disclosed in the special
leave petition. The benefit of interim protection granted
in favour of the appellant where the appellant has not
E disclosed the material facts, should be neutralized. (Paras
43, 47, 48] (1015-G-H; 1016-A-B; 1017-D-H; 1018-A]
4.3. There is no force in the submission that as the
matter is about one and a half decade old and the
F respondent has already suffered because of protracted
legal proceedings at various stages before different
forums, it is warranted that prosecution against him be
closed altogether. This Court has consistently held that
no latitude can be given in the matter of corruption. The
G peculiar facts and circumstances of the case d·o not
warrant any interference. The trial court is requested to
proceed with the matter from the stage when the stay
operated and conclude the same at the earliest. [Paras
49, 50] (1018-8-D, F]
H
C.B.I. v. ASHOK KUMAR AGGARWAL 991
Dinesh Kumar v. Chairman Airport Authority of India & A
Anr. AIR 2012 SC 858: 2011 (13) SCR 260; Parkash Singh
Badal & Anr. v. State of Punjab & Ors. AIR 2007 SC 1274:
2006 (10) Suppl. SCR 197; C.S. Krishnamurthy v. State of
Karnataka AIR 2005 SC 2790: 2005 (2) SCR 1163;
Mansukhla/ Vithaldas Chauhan v. State of Gujarat AIR 1997 B
SC 3400: 1997 (3) Suppl. SCR 705 - relied on.
Satya Narayan Sharma v. State of Rajasthan AIR 2001
SC 2856: 2001 (3) Suppl. SCR 268; Commissioner of Police
v. Gordhandas Bhanji AIR 1952 SC 16: 1952 SCR 135; C
Mohinder Singh Gill & Anr. v. Chief Election Commissioner,
New Delhi & Ors. AIR 1978 SC 861; Chairman, All India
Railway Recruitment Board & Anr. v. K. Shyam Kumar & Ors.
(2010) 6 SCC 614: 2010 (6) SCR 291; Se/vi J. Jayalalithaa
& Ors. v. State of Karnataka & Ors. JT 2013 (13) SC 176; Teri
Oat Estates (P) Ltd. v. UT, Chandigarh & Ors. (2004) 2 SCC D
13; Manish Goel v. Rohini Goel AIR 2010 SC 1099: 2010
(2) SCR 414 and State of Uttar Pradesh v. Sanjay Kumar
(2012) 8 SCC 537: 2012 (7) SCR 359 - referred to.
Case Law Reference: E
1996 SCR 868 referred to Para 4
2000 (8) sec 606 referred to Para 4
1996 (7) Suppl. SCR 503 relied on Para 6
F
AIR 1949 PC 82 referred to Para 7
1958 SCR 762 relied on Para 7
1979 (2) SCR 1007 relied on Para 7
G
1996 (1) Suppl. SCR 789 relied on Para 7
2009 (11) SCR 790 relied on Para 7
2011 (6) SCR 138 relied on Para 7
2013 (3) SCR 850 relied on Para 7 H
992 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 1970 (3) SCR 505 held inapplicable Para 9
2011 (3) SCR 242 referred to Para 10
1973 (2) SCR 377 relied on Para 11
B 2001 (1) SCR 514 relied on Para 11
2004 (4) Suppl. SCR 279 relied on Para 11
2011 (11) SCR 907 relied on Para 11
2012 (3) SCR 496 relied on Para 11
c
2012 (7) SCR 909 relied on Para 11
2012 (7) SCR 541 relied on Para 11
(2013) 4 sec 186 relied on Para 11
D (1998) 9 sec 268 referred to Para 12
1997 (6) Suppl. SCR 595 referred to Para 14
2001 (3) Suppl. SCR 268 referred to Para 21
E 1952 SCR 135 ' referred to Para 23
AIR 1978 SC 861 referred to Para 23
2010 (6) SCR 291 referred to Para 23
JT 2013 (13) SC 176 referred to Para 44
F
(2004) 2 sec 13 referred to Para 44
2010 (2) SCR 414 referred to Para 44
2012 (7) SCR 359 referred to Para 44
G
2011 (13) SCR 260 relied on Para 46
2006 (10) Suppl. SCR 197 relied on Para 46
2005 (2) SCR 1163 relied on Para 49
H 1997 (3) Suppl. SCR 705 relied on Para 49
C.B.I. v. ASHOK KUMAR AGGARWAL 993
CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal A
No. 1838 of 2013.
From the Judgment and Order dated 03. 10. 2007 of the
High Court of Delhi at New Delhi in Crl. R.P. No.589 of 2007
K.V. Vishwanathan, ASG, Ashok Dhamija, V. Mohana, B
Sonia Dhamija, B.V Bairam Das and B. Krishna Prasad for the
Appellant.
P. N. Puri and Anil Katiyar, for the Respondent.
The Judgment of the Court was delivered by
c
DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
against the impugned judgment and order dated 3.10.2007
passed by the High Court of Delhi at New Delhi allowing Crl.
R.P. No. 589 of 2007, setting aside the order dated 28.7.2007 D
passed by the court of Special Judge, Central Bureau of
Investigation (hereinafter referred to as the 'CBI'), by which and
whereunder the Special Judge rejected the application of the
respondent questioning the sanction granted by the competent
authority under Section 19 of the Prevention of Corruption Act, E
1988 (hereinafter referred to as the 'Act 1988'), observing that
the issue could be examined during trial.
2. Facts and circumstances giving rise to this appeal are
that:
F
A. The appellant, CBI registered a preliminary enquiry
against the respondent for disproportionate assets to the tune
of Rs.8,38,456/- on 17 .9.1999. After conclusion of the
preliminary enquiry, a regular case was registered on
7.12.1999 as FIR No. S19/E0006/99 in respect of the same G
to the tune of Rs.40,42,23,478/-.
B. During the course of investigation, it came to light that
disproportionate assets were only to the tune of
Rs.12,04,46,936/-, which was 7615.45 times of his known H
994 SUPREME COURT REPORTS [2013] 14 S.C.R.
A sources of income. It further surfaced that the respondent was
involved in money laundering; and for channelising his ill-gotten
wealth, had established a number of companies wherein his
family members were the founding directors.
B C. The CBI sent a letter to the Ministry of Finance dated
24.5.2002 for accord of sanction for prosecution of the
respondent. The same was accompanied by the
Superintendent of Police's (hereinafter referred to as the 'SP')
report of 163 pages containing a detailed gist of the relevant
statements and documents including the information on income
C tax returns etc.
D. The Central Vigilance Commission after examining the
said case advised the Ministry of Finance to grant sanction for
prosecution. The Investigating Officer visited the Directorate of
D Income Tax (Vigilance) in September 2002 and placed
necessary documents for the perusal of the Additional Director,
Income Tax (Vigilance) who was seized of the matter pertaining
to the sanction for prosecution of the respondent. The Finance
Minister accorded sanction vide order dated 2.11.2002 and as
E a consequence thereof, the sanction order was issued vide
order dated 26.11.2002 under the seal and signature of the
Under Secretary (V&L), Ministry of Finance.
E. A charge sheet was filed by the CBI before the Court
of Special Judge on 5.12.2002 and on the basis of the same,
F the court took cognizance and issued summon to the
respondent on 10.1.2003.
F. The respondent challenged the validity of the sanction
by filing an application dated 1.5.2003 and a.similar application-
G was again filed on 12.9.2005. The learned Special Judge heard
the said applications and dismissed the same vide order dated
28.7.2007, holding that it was not the appropriate stage to
decide as to whether sanction granted by the competent
authority was invalid.
H
C.B.I. v. ASHOK KUMAR AGGARWAL 995
[DR. B.S. CHAUHAN, J.]
G. The respondent filed a Revision Application under A
Sections 397, 401 r/w 482 of Code of Criminal Procedure,
1973 (hereinafter referred to as the 'Cr.P.C.') for setting aside
the said order of the Special Judge dated 28.7.2007. The said
petition was contested by the appellant. ·However, the High
Court vide impugned judgment and order set aside the order B
of the Special Judge and remanded the case to record a
finding on the question of any failure of justice in according
sanction and to examine the sanctioning authority, as a witness
even at. pre-charge stage, if it deems fit.
Hence, this appeal.
c
3. Shri K.V. Vishwanathan, learned Additional Solicitor
General appearing for the appellant has submitted that the
application challenging the validity of the sanction at a stage
anterior even to framing of the charges is unheard of and is in D
contravention of the settled legal propositions. In view of the fact
that the sanction had been granted by the competent authority,
the only issue remains as to whether the relevant material had
been disclosed/placed before the sanctioning authority and the
said authority had considered the same. The sanctioning E
authority can delegates its power to other officer or .at least can
act on the advice or notes prepared by his subordinates.
However, such an issue can be agitated only during the trial.
Therefore, the High Court committed an error in setting aside
the order of the learned Specia!I Judge and remanding the F
matter and also to examine, if necessary, the sanctioning
authority i.e. the then Hon'ble Finance Minister at a pre-charge
stage. Thus, the appeal deserves to be allowed.
4. Per contra, Shri Ram Jethmalani, learned senior counsel
appearing for the respondent has opposed the appeal G
contending that the court is not permitted to take cognizance
in the absence of valid sanction granted by the competent
authority in accordance with law. In the instant case, the relevant
material including the statement of the witnesses recorded by
the investigating officer under Section 161 Cr.P.C. and a large H
996 SUPREME COURT REPORTS (2013] 14 S.C.R.
A amount of documentary evidence collected during the
investigation were not placed before the Hon'ble Minister
when the sanction was granted. The sanctioning authority did
not examine the relevant documents which had been of an
impecc.able character before granting the sanction.
B Statement of 13 witnesses had been recorded between
10.5.2002 and 16.10.2002 out of which the statement of 10
witnesses had been recorded only after send!ng the SP's report
to the sanctioning authority for obtaining the sanction for
prosecution. Even if any officer of the CBI was present with the
c record in the office of the Finance Minister, thece is nothing on
record to show that the sanctioning authority was informed
about this fact or that the sanctioning authority had examined
any record so sent to his office. In the earlier litigation, the High
Court vide order dated 9.4.2002 had directed the Revenue
Secretary to examine and consider the record of the
0
investigation fairly and objectively, by taking into
consideration all relevant facts and circumstances and then
proceed with the case. By the said order, the Director, CBI was
also asked to examine the investigation record of the case and
E to consider all relevant aspects and factors in the light of the
representation of the respondent and to pass appropriate
orders within a stipulated period of two months. In such a fact-
situation, the issue of sanction has to be considered at a pre-
charge stage and such a void sanction cannot be a foundation
for a valid trial. In pursuance of the impugned order, the Special
F Judge has summoned the then sanctioning authority and the
latter filed an affidavit before the Special Judge that relevant
material was not placed before him at the relevant time. The
appellant suppressed all these facts and obtained the interim
order from this court. The conduct of the appellant disentitles it
G for any relief from this court. Further placing reliance on the
judgments of this court in Costao Fernandes v. State, AIR 1996
SC 1383; and Center for PIL & Anr. v. UOI & Ors., AIR 2001
SC 80, it is submitted that CBI is not a trustworthy investigating
agency. Thus, no interference is required with the impugned
H judgment and order. The appeal is liable to be dismissed.
C.8.1. v. ASHOK KUMAR AGGARWAL 997
[DR. B.S. CHAUHAN, J.]
5. We have considered the rival submissions made by A
learned counsel for the parties and perused the record.
6. In State of M.P. v. Dr, Krishna Chandra Saksena (1996)
11 SCC 439, while dealing with the issue this Court held :
" ... the sanctioning authority was satisfied after B
complete and conscious scrutiny of the records
produced in respect of the a/legation against the
accused. Now the question whether all the relevant
evidence which would have tilted the balance in
favour of the accused if it was considered by the C
sanctioning authority before granting sanction and which
was actually left out of consideration could be
examined only at the stage of trial when the sanctioning
authority comes forward as a prosecution witness to
support the sanction order if challenged during the trial. D
As that stage was not reached the prosecution could not
have been quashed at the very inception on the
supposition that all relevant documents were not
considered by the sanctioning authority while granting the
impugned sanction." E
(Emphasis added)
7. The prosecution has to satisfy the court that at the time
of sending the matter for grant of sanction by the competent
authority, adequate material for such grant was made available F
to the said authority. This may also be evident from the
sanction order, in case it is extremely comprehensive, as all
the facts and circumstances of the case may be spelt out in
the sanction order. However, in every individual case, the court
has to find out whether there has been an application of mind G
on the part of the sanctioning authority concerned on the
material placed before it. It is so necessary for the reason that
there is an obligation on the sanctioning authority to discharge
its duty to give or withhold sanction only after having full
knowledge of the material facts of the case. Grant of sanction H
998 SUPREME COURT REPORTS [2013] 1·4 S.C.R.
A is Rot a mere formality. Therefore, the provisions in regard to
the sanction must be observed with complete strictness
keeping in mind the public interest and the protection available
to the accused against whom the sanction is sought.
It is to be kept in mind that sanction lifts the bar for
8
prosecution. Therefore, it is not an acrimonious exercise but a
solemn and sacrosanct act which affords protection to the
government servant against frivolous prosecution. Further, it is
a weapon to discourage vexatious prosecution and is a
safeguard for the innocent, though not a shield for the guilty.
c
Consideration of the material implies application of mind.
Therefore, the order of sanction must ex facie disclose that the
sanctioning authority had considered the evidence and other
material placed before it. In every individual case, the
D prosecution has to establish and satisfy the court by leading
evidence that those facts were placed before the sanctioning
authority and the authority had applied its mind on the same. If
the sanction order on its face indicates that all relevant material
i.e. FIR, disclosure s.tatements, recovery memos, draft charge
E sheet and other materials on record were placed before the
sanctioning authority and if it is further discernible from the
recital of the sanction order that the sanctioning authority
perused all the material, an inference may be drawn that the
sanction had been granted in accordance with law. This
F becomes necessary in case the court is to examine the validity
of the order of sanction inter-alia on the ground that the order
suffers from the vice of total non-application of mind.
(Vide: Gokulchand Dwarkadas Morarka v. King, AIR 1949
PC 82; Jaswant Singh v. State of Punjab, AIR 1958 SC 124;
G Mohd. Iqbal Ahmed v. State of A.P.,.AIR 1979 SC 677; State
through Anti- Corruption Bureau, Govt. of Maharashtra v.
Krishanchand Khushalchand Jagtiani, AIR 1996 SC 1910;
State of Punjab v. Mohd. Iqbal Bhatti, (2009) 17 SCC 92;
Satyavir Singh Rathi, ACP v. State, AIR 2011 SC 1748; and
H State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119).
C.8.1. v. ASHOK KUMAR AGGARWAL 999
[DR. B.S. CHAUHAN, J.]
8. In view of the above, the legal propositions can be A
summarised as under:
(a) The prosecution must send the entire relevant record
to the sanctioning authority including the FIR, disclosure
statements, statements of witnesses, recovery memos, draft 8
charge sheet and all other relevant material. The record so sent
should also contain the material/document, if any, which may
tilt the balance in favour of the accused and on the basis of
which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious C
scrutiny of the whole record so produced by the prosecution
independently applying its mind and taking into consideration
all the relevant facts before grant of sanction while discharging
its duty to give or withhold the sanction. ·
D
(c) The power to grant sanction is to be exercised strictly
keeping in mind the public interest and the protection available
to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the
authority had been aware of all relevant facts/materials and had E
applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish
and satisfy the court by leading evidence that the entire relevant
facts had been placed before the sanctioning authority and the F
authority had applied its mind on the same and that the sanction
had been granted in accordance with law.
9. In view of the above, we do not find force in the
submissions advanced.by Shri Vishwanathan, learned ASG that G
the competent authority can delegate its power to sorrie other
officer or authority, or the Hon'ble Minister could grant sanction
even on the basis of the report of the SP. The ratio of the
judgment relied upon for this purpose, in A. Sanjeevi Naidu etc.
v. State of Madras & Anr., AIR 1970 SC 1102, is not applicable
as in the case of grant of sanction, the statutory authority has H
1000 SUPREME COURT REPORTS [2013] 14 S.C.R.
A to apply its mind and take a decision whether to grant sanction
or not.
10. This Court in Ashok Tshering Bhutia v. State of
Sikkim, AIR 2011 SC 1363, while dealing with the issue
whether invalid sanction goes to the root of jurisdiction of the
8
Court which would vitiate the trial and conviction, held that in
the absence of anything to show that any defect or irregularity
therein caused a failure of justice, the contention was without
any substance. The failure of justice would be relatable to error,
omission or irregularity in the grant of sanction. However, a
C mere error, omission or irregularity in sanction is not considered
to be fatal unless it has resulted in the failure of justice or has
been occasioned thereby.
11. The court must examine whether the issue raised
D regarding failure of justice is actually a failure of justice in the
true sense or whether it is only a camouflage argument. The
expression 'failure of justice' is an extremely pliable or facile
an expression which can be made to fit into any case.
E The court must endeavour to find out the truth. There would
be 'failure of justice' not only by unjust conviction but also by
acquittal of the guilty as a result of unjust or negligent failure to
produce requisite evidence. Of course, the rights of the
accused have to be kept in mind and safeguarded but they
should not be over emphasised to the extent of forgetting that
F the victims also have certain rights. It has to be shown that the
accused has suffered some disability or detriment in the
protections available to him under Indian Criminal
Jurisprudence. 'Prejudice' is incapable of being interpreted in
its generic sense and applied to criminal jurisprudence. The
G plea of prejudice has to be in relation to investigation. or trial
and not matters falling beyond their scope. Once the accused
is able to show that there has been serious prejudice caused
to him with respect to either of these aspects, and that the
same has defeated the rights available to. him under legal
H jurisprudence, the accused can seek relief from the Court.
C.B.I. v. ASHOK KUMAR AGGARWAL . 1001
[DR. B.S. CHAUHAN, J.]
(Vide: Nageshwar Sh. Krishna Ghobe v. State of Maharashtra, A
AIR 1973 SC 165; Shamnsaheb M. Multtani v. State of
Kamataka, AIR 2001 SC 921; State by Police Inspector v. T.
Venkatesh Murthy, AIR 2004 SC 5117; Rafiq Ahmed @ Rafi
v. State of U.P., AIR 2011 SC 3114; Rattiram & Ors. v. State
of M.P. through Inspector of Police, AIR 2012 SC 1485; B
Bhimanna v. State of Kamataka, AIR 2012 SC 3026; Darbara
Singh v. State of Punjab, AIR 2013 SC 840; and Union of India
& Ors. v. Ex-GNR Ajeet Singh, (2013) 4 SCC 186).
12. Be that as it may, in State of T.N. v. M.M. Rajendran, C
(1998) 9 sec 268, this Court dealt with a case under the
provisions of Act 1988, wherein the prosecuting agency had
submitted a very detailed report before the Asanctioning
Authority and on consideration of the same, the competent
authority had accorded the sanction. This Court found that
though the report was a detailed one, however, such report D
could not be held to be the complete records required to be
considered for sanction on application of mind to the
relevant material on record and thereby quashed the sanction.
13. In view thereof, the CBI - appellant herein, immediately E
issued circular dated 6.5.1999 to give effect to the observations
made in the said judgment in M. M. Rajendran (Supra) and
directed that all the investigating officers to give strict
adherence to the said observations made by this Court. The
CBI manual was amended accordingly, adding paragraph F
22.16, wherein it was directed that in view of the said judgment
in M. M. Rajendran (Supra), it was imperative that alongwith
SP's report, the branches must send the copies of all the
relied upon relevant material "including the statements of
witnesses recorded by the investigating officers under Section G
161 Cr.P.C. as well as statements under Section 164 Cr.P.C.
recorded by the Magistrate to the authority competent to grant
sanction for prosecution". Further, the investigating officer
concerned shall be deputed to the competent authority to
produce the relevant material for perusal· of the competent
H
1002 . SUPREME COURT REPORTS [2013] 14 S.C.R.
A authority and this fact be recorded in the case diary of the case
concerned. Paragraph 22.16 of the CBI manual reads as under:
"On completion of investigation in a case covered
in item 22. 15. 1 and 22. 15. 2, even the CBI shall send its
report to the administrative authority alongwith rel,evant
B
statements of witnesses recorded during investigation
and the documents. The judgment of the Supreme Court
in State of T.N. v. M.M. Rajendran reported in (1998) 9
SCC 268 and the Circular No. 21133198-PD dated
6.5.1999 issued by the Policy Division which also referred
c to in this regard."
14. A Three-Judge Bench of this Court in Vineet Narain
& Ors. v. Union of India & Anr., AIR 1998 SC 889 to prevent
the erosion of the rule of law, issued large number of directions
o to various authorities. Relevant part of directions issued to CBI,
reads:
"59(12). The CBI Manual based on statutory provisions
of the CrPC provides essential guidelines for the CBl's
functioning. It is imperative that the CBI adheres
E
scrupulously to the provisions in the Manual in relation
to its investigative functions, like raids, seizure and
arrests. Any deviation from the established procedure
should be viewed seriously and severe disciplinary
action taken against the officials concerned."
F
15. Thus from the above, it is evident that the CBI manual,
being based on statutory provisions of the Cr.P.C., provides
for guidelines which require strict compliance. More so, in view
of the fact that the ratio of judgment of this Court in M.M.
G Rajendran (Supra) has been incorporated in the CBI manual,
the CBI manual itself is the best authority to determine the issue
at hand. The court has to read the relevant provisions of the
CBI manual alone and no judgment of this Court can be a better
guiding factor under such a scenario.
H
C.B.I. v. ASHOK KUMAR AGGARWAL 1003
[DR. B.S. CHAUHAN, J.]
16. The sanction order runs into 27 pages. The relevant A
part thereof reads as under:
"And whereas the Central Government, after fully
and carefully considering the material placed before him
and taking into account the available evidence, including B
the case diaries and docµments collected, by the
investigating officer during the course of investigation and
statements of witnesses including the statements of
witnesses recorded by the investigation officer Uls 161
Cr. P. C. and statements recorded before Magistrates C
under u/s 164 Cr.P.C. with regard to the said
a/legations and circumstances of the case, is satisfied
that Shri Ashok Kumar Aggarwal should be prosecuted
in the ?competent Court of Law for the abovementioned
offences and any other offences if made out on these
facts," D
(Emphasis added)
17. Before proceeding further, it may be pertinent to note
that the sanction order speaks of consideration of the entire
material including the case diaries and documents collected E
during the course of investigation and statements recorded
under Section 161 Cr.P.C. and statements recorded by the
Magistrate under Section 164 Cr.P.C. The learned Special
Judge dealt with the issue in its order and brushed aside the
same observing that the same may be factually incorrect, F
and there was a letter on record showing the true picture that
the relevant documents had not been sent to the sanctioning
authority. However, it is open to the prosecution during the
course of trial to examine the sanctioning authority where such
a discrepancy can be explained. The learned Special Judge G
has wrongly labeled such a fact which goes to the root of
jurisdiction and clearly shows that the extent to which there
could be application of mind was a mere discrepancy. The
relevant part of the order of the Special Judge reads:
"The contents of Para 2l of the sanction order dated 26th H
1004 SUPREME COURT REPORTS [2013] 14 S.C.R.
A November, 2002 stating that the case diaries, documents
collected by the investigating officer during the course of
investigation, statements of witnesses under Section 161
CrPC and under Section 164 CrPC were considered by
the sanctioning authority may be factually incorrect in
B view of the letter dated 24th May, 2002, written by the DIG
of the CBI, which shows that this document had not been
sent. However, this statement by itself at this stage
cannot be construed s non-application of mind by the
sanctioning authority. If the charges are framed against
c the accused and the case goes for trial the sanctioning
authority shall get an opportunity ta explain the
discrepancy." (Emphasis added)
18. The High Court in the impugned judgment and order
has taken a prima facie view that:
D
(a) The CBI had not sent the complete record to the
sanctioning authority.
(b) The order dated 11.7.2007 passed by the Special
Judge made it evident that the learned counsel
E
appearing on behalf of the CBI had conceded
before the court that only SP's report alongwith list
of evidence (oral) and list of evidence
(documentary) were sent to the sanctioning authority
for the purpose of according sanction.
F
(c) The statement of witnesses and other relevant
documents were not sent to the sanctioning
authority as per the own case of CBI.
G (d) The observation in the sanction order dated
26.11.2002 that "th~ case diaries and documents
collected by the investigating officers during the
course of investigation, statements of witnesses
under Section 161 Cr.P.C. and under Section 164
Cr.P.C. were considered by the sanctioning
H
C.B.I. v. ASHOK KUMAR AGGARWAL 1005
[DR. B.S. CHAUHAN, J.]
authority" is factually incorrect. A
(e) The aforesaid facts make it clear that the
sanctioning authority had not considered the entire
material available with the investigating agency.
19. The High Court further held: B
"30. In the present case, petitioner has raised
objections to the validity of sanction at the very initial
stage, i.e. even before arguments on charge could be
advanced. However, the trial court has not recorded any c
finding in terms of clause (b) of sub-section (3) and sub-
section (4) of Section 19 of the Act, that non-production
of the relevant material before the sanctioning authority
at the time of grant of sanction "has not resulted in a
failure of justice". o
31. Under these circumstances, it would be appropriate
to require the trial court to record the findings in terms of
clause (b) of sub-section (3) and sub-section (4) of
Section 19 of the Act.
E
32. Hence, the impugned order, passed by the learned
Special Judge is set aside and the matter is remanded
back to the trial court with direction to record a finding in
terms of clause (b) of sub-section (3) and sub-section (4)
of Section 19 of the Act. The trial court, if it deems fit, for F
this purpose, can examine the sanctioning authority as
a witness even before charge, keeping in view the
provisions of Section 311 Cr.PC."
20. The aforesaid concluding paragraphs of the judgment
give rise to questions as to what is the proper stage to examine G
the issue of sanction; as well as relating to the applicability of
the provisions of Section 19(3)(b) and 19(4) of the Act 1988.
Section 19( 1) reads as under:
H
1006 SUPREME COURT REPORTS [2013] 14 S.C.R.
A "19. (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) xx xx xx
B
(2) xx xx xx
(3) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)-
c (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
D 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
E sanction granted by the authority, unless it is satisfied that
such error, omission or irregularity has resulted in a failure
of justice"
(c) xx xx xx
F (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
G the proceedings. Explanation.- For the purposes of this
section,-
(a) error includes competency of the authority to grant
sanction;
H
C.B.I. v. ASHOK KUMAR AGGARWAL 1007
[DR. B.S. CHAUHAN, J.]
(b) a sanction required for prosecution includes reference A
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."
Sub-section (4) thereof clearly provides that the question 8
of validity of sanction could be raised at an earlier stage of
proceedings.
21. This Court considered the aforesaid statutory
provisions in Satya Narayan Sharma v. State of Rajasthan,
AIR 2001 SC 28q6 and held as under: C
"3. The prohibition is couched in a language admitting
of no exception whatsoever, which is clear from the
provision itself. The prohibition is incorporated in sub-
section (3) of Section 19 of the Act. The sub-section o
consists of three clauses. For all the three clauses the
controlling non obstante words are set out in the
commencing portion as:
"19. (3) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 .... " E
Hence none of the provisions in the Code could
be invoked for circumventing any one of the bans
enumerated in the sub-section."
F
22. The letter dated 17.5.2005 written by the Addi. DIT
{Vigilance) to DIG, CBI makes it clear that the documents relied
upon were voluminous and therefore, were not enclosed with
the SP's report. It further revealed that an order was passed
by the High Court directing the Revenue Secretary and the
Director {CBI) to examine the grievance of the respondent/ G
accused and to dispose of his representations in this regard.
23. In Commissioner of Police v. Gordhandas Bhanji, AIR
1952 SC 16, this Court held as under:
H
1008 SUPREME COURT REPORTS [2013] 14 S.C.R.
A "We are clear that public orders, publicly made, in
exercise of a statutory authority cannot be construed in
the light of explanations subsequently given by the
officer making the order of what he meant, or of what
was in his mind, or what he intended to do. Public orders
B made by public authorities are meant to have public
effect and are intended to affect the actings and eonduct
of those to whom they are addressed and must be
construed objectively with reference to the language used
in the order itself......... Public authorities cannot play fast
c and loose with the powers vested in them, and persons.
to whose detriment orders are made are entitled to know
with exactness and precision what they are expected to
do or forbear from doing and exactly what authority is
making the order." (Emphasis added)
D (See also: Mohinder Singh Gill & Anr. v. Chief Election
Commissioner, New Delhi & Ors., AIR 1978 SC 861; and
Chairman, All India Railway Recruitment Board & Anr. v. K.
Shyam Kumar & Ors., (2010) 6 SCC 614).
E 24. The provisions of Sections 91 and 92 of the Evidence
Act provide that evidence may be led to invalidate a document
itself. The best evidence as to the contents of a document is
the document itself and it is the production of the document that
is required by this section in proof of its contents. Section 91
F describes the "best evidence rule", while Section 92 comes into
operation for the purpose of excluding evidence of any oral
agreement, statement etc., for the purpose of contracting or
adding or subtracting from its terms. However, these sections
differ in some material particulars.
G 25. Charge sheet filed by the appellant, CBI against the
respondent does not reveal that it had examined any witness
to the effect that the relevant documents had been produced
before the sanctioning authority or the authority had asked for
a document and the same had been shown to him.
H
C.B.I. v. ASHOK KUMAR AGGARWAL 1009
[DR. B.S. CHAUHAN, J.]
26. In the counter affidavit it has been stated by the A
respondent that there is no evidence on record to indicate that
all material records had been separately examined by the
Vigilance Wing of the department as permissible under
Chapter VII of the Vigilance Manual. Clause 18 of the Manual
enables the accused to make a representation to withdraw the B
prosecution. The relevant part thereof reads as under:
"18.1. Once a case has been put in a court, it should be
allowed to take its normal course. Proposal for withdrawal
Of prosecution may however, be initiated by the S.P.E. c
on legal consideration. In such cases the S.P.E. will
forward its recommendations to the Department of
Personnel and Training in cases in which sanction for
prosecution was accorded by that Ministry and to the
administrative Ministry concerned in other cases. The
authority concerned will in all such cases consult the 0
Ministry of Law and accept their advice.
18. 2. Requests for withdrawal of prosecution may also
come up from the accused. Such requests should not
generally be entertained except in very exceptional E
cases where, for instance, attention is drawn to certain
fresh, established or accepted facts which might alter the
whole aspect of the case. In such cases also the
administrative Ministry concerned should consult the
Ministry of Law and accept their advice. " F
27. The respondent had given a representation on
13.3.2003 making various averments, inter-alia, that there was
no evidence to indicate that the relevant material/record had
been separately examined by the Vigilance Wing of the
department, and for the verification of which the Finance G
Minister had requisitioned the records. The appellant, CBI
brushed aside the said representation on the pretext that the
issue of validity of sanction was sub-judice.
H
101 O SUPREME COURT REPORTS (2013) 14 S.C.R.
A 28. It has further been averred therein that before the court,
the Special PP of CBI has stated that no relevant material had
been placed before the sanctioning ·authority except the SP's
report as is evident from the order dated 11. 7 .2007. The
relevant part of the order reads as under:
B
"It is conceded by Shri N.K. Sharma, Ld. Special PP that
only SP's report alongwith list of evidence oral and list
of evidence documentary were sent to the sanctioning
authority for the purpose of according sanction."
C 29. The representation made by the respondent was
considered at various levels. The letter written by Shri Rakesh
Singh, Joint Secretary (Revenue) to the Director General of
Income Tax (Vigilance) with a copy of the same to the
Chairman, CBDT stated that in order to consider the
D representation of the respondent, it was necessary that the
concerned records including those of the Income Tax
Department for the relevant period be requisitioned from the
CBI and examined by the Vigilance Wing of the Income-Tax
Department and the finding of such examination be sent to him
E within 10 days, based on which a final view could be taken on
the representation of the respondent.
30. The letter dated 17.5.2004 by Shri B.P.S. Bisht,
Additional DIT(V) HQ, CBI revealed that as in the
representation, the respondent had averred that all relevant
F material had not been placed before the sanctioning authority,
it was necessary for the CBI to provide all relied upon
documents, as referred to in the letter dated 24.5.2002, as also
the relevant income tax records which were in the CBI custody
to enable compliance of the directions received from the
G Revenue Secretary. In case it was not possible to provide the
original records as above, authenticated copies thereof be
given, treating it to be a matter of utmost urgency.
31. The DIG, CBI vide its letter dated 5.6.2004 informed
H Shri B.P.S. Bisht that it was not possible to send the record.
C.B.I. v. ASHOK KUMAR AGGARWAL 1011
[DR. B.S. CHAUHAN, J.]
The matter was pending consideration in the trial court and as A
such was sub-judice.
32. The covering letter of the draft sanction dated
24.5.2007 does not make it clear as to what had been sent to
the sanctioning authority. It reveals that alongwith the draft 8
sanction order, a list of witnesses and list of documents had
been sent. The relevant part thereof reads as under:
"The SP's report sent herewitti may please be treated as
a secret document and no reference to it may be made
in the sanction order when issued. In case the Ministry! C
Department, due to some reasons wants to depart from
the material placed on record for issuing sanction, the
matter may please be discussed with the undersigned so
that the sanction for prosecution so accorded not found
wanting legally. D
Since the relied upon documents are very large in
quantity, they are not being enclosed. The Investigating
Officer of this case Shri V.K. Pandey, will show the
documents and also explain the evidence as and when E
required. Further List of witnesses and List of
documents will be provided, if necessary."
(Emphasis added)
Thus, it is evident that even on the date the draft sanction F
was sent, the investigation was not complete.
33. It appears from the facts and figures given in the report,
particularly from the Income Tax returns/assessment orders·of
the respondent and his family members, that there has not been G
a fair assessment regarding the income of th~ respondent and
other family members as shown by them in their income-tax
returns and it is far from satisfaction, as is evident·from the
preliminary enquiry report dated 17.9.1995. Same remained
the position regarding the assessment of the value of the
H
1012 SUPREME COURT REPORTS [2013) 14 S.C.R.
A apartments purchased by the respondent at Barakhamba
Road, New Delhi, if compared with the property purchased by
the Indian Oil Corporation in the same locality.
34. The judgment delivered by the Delhi High Court in the
B case of Vijay Aggarwal, brother of the respondent, in Writ
Petition (Crl.) No. 675 of 2001 against the officers of the CBI
impleading them by name, make it evident that very serious
allegations had been made against the said officers of having
acted with oblique motive to force him to ensure that his brother
Ashok Kumar Aggarwal withdraws the complaint filed by him
C against them under Section 340 Cr.P.C. The court ultimately
held that investigation had not been conducted in a fair manner.
The order passed therein reads:
"33. In the result, the petition is partly allowed. The
D Special Cell of Delhi Police is directed to register an FIR
on the basis of the allegations contained in the present
petition and the complaint of the petitioner dated
. 23.2.2004 addressed to the Commissioner of Police,
Delhi and take up the investiga~ion of the case. The
E investigation shall be conducted by an officer not below
the rank of Assistant Commissioner of Police in the said
Cell independently and uninfluenced by the findings and
observations contained in the report of enquiry dated
26.4.2005 conducted by the Joint Director, CBI and shall
F endeavour to conclude the investigation expeditiously
within a period of two months from the date of this order
and shall file a status report in the court on 5th
September, 2006."
35. Another Writ Petition (Crl.) No. 738 of 2001 was filed
G by Shish Ram Saini, Chartered Accountant against the CBI and
its officers making allegations against them that he had been
harassed by the CBl's officers as he was employed as an
Accountant in the firms and companies of responderJt herein.
The court held that the authorities had proceeded with high-
H
C.B.I. v. ASHOK KUMAR AGGARWAL 1013
[DR. S.S. CHAUHAN, J.]
handedness and found substance in the allegations made by A
the petitioner therein. The order runs as under:
"31. In view of the above discussion and in the result, the
present petition is partly allowed and the Special Cell of
Delhi Police is directed to register a case on the basis
8
of a/legations contained in the complaint dated 5. 7.2001"
lodged by the petitioner with police station Lodhi Colony
and those contained in the present petition. The
investigation shall be conducted by an officer not below
the rank of Assistant Commissioner of Police in the said
Cell independently and uninfluenced by the findings and C
observations contained in the report of enquiry dated
26.4.2005 conducted by the Joint Director, CBI.''
36. The record reveals that VIP reference was made by
the Ministry of Finance to the Law Ministry in respect of the case D
against the respondent as the matter had been agitated by one
Hon'ble Member of the Parliament and the Law Ministry gave
its opinion. The salient features thereof are that the sanction
had been accorded without considering and examining the
relevant material as the same had not been sent by the CBI E
and even thereafter despite being requested by the Vigilance
Department of CBDT, the Vigilance, CBI did not send the relied
upon documents to the authorities.
37. Similarly, it is also evident from the records that the
Ministry of Finance, Department of Revenue had written a letter F
dated 11.3.2011 to the Law Department seeking the said
opinion and earlier the Directorate General of Income Tax
(Vigilance) had also sent a letter to the Law Ministry seeking
its opinion. Thus, the concerned authorities had sought legal
opinion of the Law Ministry on the issue. G
38. The CVC Manual provides that opinion of the Law
Ministry was to be accepted by the other departments in such
cases.
H
1014 SUPREME COURT REPORTS [2013] 14 S.C.R.
A However, the .respondent claims that the said legal opinion
was subsequently withdrawn. Whether the legal opinion could
be validly withdrawn or not can be considered by the trial court
while considering the validity of the sanction.
39. It may also be pointed out that after the impugned
8
judgment was passed, the Special Judge in order to ensure
compliance thereof, dealt with the case on 12.10.2007 and
directed:
"Let the sanctioning authority be produced on 3. 11. 2007."
c
It was on the suggestion made by Special Public
Prosecutor for CBI that the court issued summon to the
sanctioning authority. The order sheet dated 3.11.2007 further
reveals that after passing of the order and signing the same,
0 the matter was again taken up at 2.00 P.M., wherein the
affidavit purported to have been given by the then sanctioning
authority was taken on record and it was directed that the matter
be listed on 20.11.2007.
40. The relevant part of the affidavit filed by the then
E sanctioning authority dated 3.11.2007 reads as under:
"4. I confirm the statement of facts in Paragraphs 8 and
24 of the order of the Hon'ble High Court. No statements
of witnesses or the documents relied in the charge-sheet
F are ordinarily forwarded to the Finance Minister of the
day. What is sent is a draft order, whereafter sanctioning
by the Minister in normally a routine acceptance of that
draft. What was considered by me was only that which
was sent or recommended to me.
G 5. If the obligation was to consider more than which
was sent, then that has not been done, therefore,
unwittingly prejudice might have been caused and justice
miscarried. I leave it to the Court to decide the matter."
H 41. The aforesaid affidavit, whatever may be its evidentiary
C.B.I. v. ASHOK KUMAR AGGARWAL 1015
[DR. B.S. CHAUHAN, J.]
value and without going into technicalities such as the issue of A
whether it is admissible in evidence or not or whether it may
be considered at a later stage, one thing is clear that it is in
consonance and confirmation of the findings recorded by the
High Court in paragraphs 8 and 24 of the impugned judgment.
Paragraph 8 of the judgment reads as under: B
"8. Further, it is contended that the charge sheet relies
upon 366 witnesses, whereas the list annexed to the SP's
report mention only 278 witnesses. 88 witnesses were not
even mentioned in the list and the statement of not even C
a single witness, out of 366 witnesses was sent to the
sanctioning authority. Moreover, the charge sheet refers
to 1220 documents, whereas the list attached to the SP's
report only mention 282 documents. Thus, 938.
documents were withheld from the sanctioning authority
including documents consisting of income tax record of D
the petitioner. The Apex Court has held in DSP Chennai
v. K. lnbasagaran, (2006) 1 SCC420 that:
"Income tax return and assessment orders are
relevant in a case of disproportionate assets." E
Paragraph 24 mentioning relevant part of sanction order
has already been quoted hereinabove."
42. Thus, it becomes crystal clear that the statements of
28 witnesses were not even mentioned in the SP's report. F
Similarly, there was no reference to the 938 documents in the
said report and there had been no reference to the income tax
returns and assessment orders so far the respondent and his
family members were concerned therein.
G
43. The present special leave petition was drawn/drafted
on 20.11.2007 and filed thereafter. Interim order was granted
by this Court on 10.12.2007. In the special leave petition it has
not been disclosed that the Special Judge, after remand,
entertained the matter and issued summons to the then
H
1016 SUPREME COURT REPORTS [2013] 14 S.C.R.
A sanctioning authority i.e. Hon'ble Finance Minister, and in
response thereto, an affidavit dated 3.11.2007 had been filed
by the then sanctioning authority, disclosing that no material had
been considered by him while granting sanction. However,
leaving the issue open as to what prejudice had been caused
B to the respondent, it is apparent that all the material facts had
not been disclosed in the special leave petition. Thus, the
appellant suppressed some of the most material facts from this
Court.
44.Section 19(3) of the Act, 1988 puts a complete
C embargo on the court to grant stay of trial/proceedings.
In Se/vi J. Jayalalithaa & Ors. v. State of Karnataka &
Ors., JT 2013 (13) SC 176, this court while dealing with the
scope of power under Article 142 of the Constitution held that
D the court cannot pass an order in contravention of the statutory
provisions:
"28.1 The powers under Article 142 of the Constitution
stand on a wider footing than ordinary inherent powers of
the court to prevent injustice. The constitutional provision
E
has been couched in a very wide compass that it prevents
"clogging or obstructing of the stream of justice."
However, such powers are used in consonance with
the statutory provisions." (emphasis added)
F (See also: Teri Oat Estates (P) Ltd. v. UT, Chandigarh &
Ors., (2004) 2 SCC 130, Manish Goel v. Rohini Goel, AIR
2010 SC 1099, and State of Uttar Pradesh v. Sanjay
Kumar, (2012) 8 sec 537).
G 45. This court passed the interim order in contravention of
the provisions of Section 19 of the Act 1988. Though the
appellant claims that it did not ask for such order, the court itself
granted the stay. Even the respondent never applied for
vacating the said interim order. In such a fact-situation, it is not
H desirable to make any comment on the issue.
C.B.I. v. ASHOK KUMAR AGGARWAL 1017
[DR. B.S. CHAUHAN, J.]
46. The most relevant issue involved herein is as at what A
stage the validity of sanction order can be raised. The issue is
no more res-integra. In Dinesh Kumar v. Chairman Airport
Authority of India & Anr., AIR 2012 SC 858, this Court dealt
with an issue and placing reliance upon the judgment in
Parkash Singh Badal & Anr. v. State of Punjab & Ors., AIR B
2007 SC 1274, came to the conclusion as under:
"13. In our view, having regard to the facts of the present
case, now since cognizance has already been taken
against the appellant by the trial Judge, the High Court
cannot be said to have erred in leaving the question of C
validity of sanction open for consideration by the trial
court and giving liberty to the appellant to raise the issue
concerning validity of sanction order in the course of trial.
Such course is in accord with the decision of this Court
in Parkash Singh Badal ... " D
47. Undoubtedly, the stage of examining the validity of
sanction is during the trial and we do not propose to say that
the validity should be examined during the stage of inquir)' or
at pretrial stage. E
48. However, in the instant case, the fact-situation warrant
a different course altogether as the impugned order had already
been partly complied with before filing the petition before this
Court. The appellant admittedly did not disclose the material
facts in this petition. Had the said facts been disclosed perhaps F
this Court would not have entertained this petition and the
matter could have been concluded by the Trial Court much
earlier. The affidavit filed by the sanctioning authority may tilt
the balance in favour of the respondent if duly supported by the
deponent and not disclosing the material fact i.e. filing of such G
an affidavit by the sanctioning authority before the Special
Judge, indicates serious and substantial prejudice to the
respondent. The material on record reveals that it could be a
case of serious prejudice to the respondent so far as the
decision making process by the sanctioning authority is H
1018 SUPREME COURT REPORTS [2013] 14 S.C.R.
A concerned. The benefit of interim protection granted in favour
of the appellant where the appellant has not disclosed th~
material facts, should be neutralized.
49. We do not find any force in the submission made by
Shri Jethmalani, learned senior counsel that as the matter is
8 about one and a half decade old and the respondent has
already suffered because of protracted legal proceedings at
various stages before different forums, it is warranted that
prosecution against him be closed altogether. This Court has
consistently held that no latitude can be given in the matter of
C corruption. (Vide: C. S. Krishnamurthy v. State of Kamataka,
AIR 2005 SC 2790) wherein contrary view had been taken from
Mansukh/al Vithaldas Chauhan v. State of Gujarat, AIR 1997
SC 3400.
o 50. In view of the above, we are of the considered opinion
that the peculiar facts and circumstances of the case do not
warrant any interference and the appeal is dismissed.
However, before parting with the case, we clarify that the
trial court will proceed without being influenced by any
E observation made hereinabove as we have considered the
facts of the case only to decide this appeal. In the facts and
circumstances of the case, as the matter remained pending
before the court for a long time, we request the learned Special
Judge to proceed with the matter from the stage when the stay
F operated and conclude the same at the earliest.
Bibhuti Bhushan Bose Appeal dismissed.
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