(Querist) 13 June 2008
This query is : Resolved
FActs of the case While prosecuting a public servant in the Criminal case initiated by CBI, Sanction order is required form the appointing authority of that person. CBI Spl. Court takes the cognizance based on the sanction Order. After cognizance by the court in the year 2001, it was found that the material information given in the said sanction order is not correct and false. Recalling of summon was initiated and by the time it came for hearing, by virtue of SC judgment in the case of Mr. Adalat Prasad, the court which had given cognizance can not recall the summon. Hence the petition was withdrawn. Subsequently, discharge application was filed on the ground that 1. The sanction order issued is defective on the information. 2. Entire money mentioned in the sanction order as loss to the company was received by the company as final payment through another court well before the date of sanction order. 3. There by no loss to the company on the date of sanction order. 4. It was further mentioned that compounding is permitted and the decision of Deccan agro was cited. 5. The court also taken cognizance based on the defective sanction order. 6. Argument of charges was not taken place so far. Due to long delay in the Spl. Court, petition u/s 482 was made in the Delhi HC. It was disposed as “ It is submitted by the learned counsel for the petition that for the last nine years, he has been facing prosecution but so far even the arguments on charge have not been heard. The concerned court is directed to hear arguments on charge on the date fixed and to pass appropriate orders thereon”. With these direction, the petition is disposed of. Query. 1. Is my approach on the defective SANCTION ORDER is correct? Should I take any other precaution/Arguments? 2. What is the remedy available to me against the appointing authority concerned on the malefide/misleading sanction order on the basis of which the court had taken cognizance, which had ruined my career and peace of mind in the past 10 years. 3. Kindly provide me some SC or other HC court decisions on the DEFECTIVE SANCTION ORDER or on the related matters. 4. Sections involved are 120B,421,467,478 of IPC and 13(1)(d) of PCA
(Expert) 13 June 2008
please check and veryfy about section 478 IPC, moreover your question is case specific and it can not be answered without going through the entire records of your case. The remedy against false prosecution will be available only after you are discharged / acquitted
(Expert) 13 June 2008
you will find many caselaws in the income tax cases also, where sanction is mandatory for prosectuion. Defective sanction order cannot commence a prosecution.
Usually the Public officer plead under the "good faith" clause. So you must search for cases where action taken in official posititon is not in good faith.
If I come across, I will mail them here.
(Expert) 14 June 2008
The best place to find a citation is in Prevention of Corruption Act where sanction is life of a case. I have gone through a recent case where SC acquitted the accused because of a invalid sanction i will give the citation tom if you want. Sanction is a vital thing required to initate prosecution againt a public servant and it cannot be taken or granted mechanically.
(Expert) 14 June 2008
You can procecute them under the head of malicious procecution and also in defamation asking them to pay damages and fine TORT AND CRIMINAL LAW.
do read the last year SC judgment Parkash Singh Badal v/s U.O.I
moreover in your case the sanction order was not defective but false.
even if you r not having any judgment at hand still you can calim compensation...criminal proceedings can be initiated against the false informer read section 182 and 340 of Cr.P.C
(Querist) 20 June 2008
Dear Mr. Kiran Kumar Thanks.
I will go through the judgment.
You had fine tune from DEFECTIVE to FALSE.
What is the recourse in case of False statement in the sanction order and under which section of the Act/code I should defend.
What will be the argument by the prosecutor if I adopt this stand.
Shall be Greatful for the help
(Expert) 18 July 2008
Hallo Prabhakar, A defective sanction order can be rectified at any time with the leave of the court. The prosecution can withdraw the charge subject to file with a fresh sanction order. But the delay is intolerable in this case. query. 1. In your case the sanction order is seen with informaties. Sanction order must be speaking. A later payment may not dilute the criminal liablity of the offence already committed. This point is not clear for the absence of the point of time of civil case resulted in payment. Before issuing the Prosecution sanction order u/s 19 of PC ASct, 1988 or 197 of Cr.P.C the authority competent must verify and satify the that there is a prima facie case against the offender. Querry no. 2. The sanctyioning authority should apply his mind before issuing sanction. But he is not expected to enquire into the truth of the facts alleged 1958 Cr.L.J 279.You may go through 1998(9)SCC 268. Biased attitude of the Sanctioning authority vitiates the sanction order. Ameer jain V State 2001 (3) Crimes 171 (Kar). It is not neceesary to hear the accused before issuing sanction 1991 Cr.L.J. 1438 (SC). The adverse situation in your case case is that if you bang on the validity of sanction due factual errors the prosecution is at liberty to obtain another sanction. You may mix the facts of your case with the principles in the following rulings. 1961(1)Cr.L.J 694, 1968 Cr.L.J 1484, 1969 Cr.L.J 1384, 1971 Cr.L.J Notes 25, 1993(1)Crimes 701 (pat), 2003 Cr.L.J 4776 (AP), 2003 Cr.L.J 3413 (Raj). If you still have any more querries please forward the same for clarification. Adv.K.C.Suresh, Kerala