Non-availability or non-association of independent witness cannot be a ground for discharge or acquittal in all cases

The non-availability or non-association of independent witness cannot be a ground for discharge or acquittal in all cases. It would depend upon the facts and circumstances of each case and the evidentiary value of the prosecution witnesses could not be undermined at the stage of framing of charges. It is moreso when the prosecution has cited some panch witnesses to be examined in support of its case. The impugned order discharging the accused/respondents apparently suffers from illegality and has caused miscarriage of justice. At the stage of charge, what is to be seen by the Trial Court was laid down by the Supreme Court in the catena of judgments. Reference is made to the judgment in case State of Bihar v. Ramesh Singh, AIR 1977 SC 2018.

HIGH COURT OF DELHI

 Crl. Rev. P. 670/2010

Date of Decision: 14.02.2012

DIRECTORATE OF REVENUE INTELLIGENCE

Versus

ARUN KUMAR JUNEJA & ORS.

 ORDER

M.L. MEHTA, J.

1. The present revision petition is against the order of the LD ACMM discharging the Respondents herein under section 245 CrPC.

2. The brief facts necessitating the present revision petition are that acting on intelligence that large quantity of ball bearing were being smuggled from Nepal into Delhi, the DRI kept surveillance in and around Delhi. On 04.08.1992, the DRI intercepted a truck in Delhi containing empty glass bottles and brought the same to the DRI office where it was rummaged in the presence of two independent witnesses. The panchnama was prepared in the presence of witnesses. The driver of the truck, Shri Ghama Prasad along with its two other occupants namely Shri Ram Kishan and Shri Rakesh Kumar Jairath were apprehended. Rummaging of the truck resulted in the recovery of 195 packages of ball bearing of foreign origin cleverly concealed under 590 packages of empty glass bottles. The contraband ball bearing was seized by the DRI. One Shri Arun Kumar Juneja, who clandestinely approached the truck being unloaded in the DRI premises and tried to flee thereafter, was called for enquiry. Shri Arun Kumar Juneja in his voluntary statement under section 108 Customs Act, stated that he had come to the DRI premises at the instance of one Sarabjeet Singh @ Raja in search of the contraband ball bearing which were smuggled into India. Accordingly he reached the DRI premises and confirming the presence of the said truck there he tried to flee unnoticed but was stopped by the DRI officers for enquiry. The statements of all the above were recorded by the DRI under section 108 of the Customs Act. They revealed the role played by each of the Respondents herein. Thereafter sanction for prosecution under section 135 Customs Act was granted by the Collector of Customs for the prosecution of the Respondents and one Shri Shyam Singh on 25.09.1992.

3. The LD ACMM vide order on charge dated 04.08.2010 discharged the Respondents under section 245 CrPC due to lack of sufficient evidence to proceed with the trial and irregularity in the sanction order. The present revision petition under section 397 r/w 401 of the CrPC assails the order of the Ld ACMM discharging the Respondents herein.

4. At the outset the counsel for the respondents have challenged the maintainability of the present revision petition contending that the present revision petition should have been filed in the court of the Ld ASJ and the petitioner has approached this court to circumvent the procedure established by law. This submission of the learned counsel for the respondents is untenable inasmuch as the power of revision of Sessions Court and this Court are concurrent in nature. The petitioner had the option of filing revision before the Sessions Court or this Court and he having not chosen to go to Sessions Court, his present revision petition would certainly be maintainable in this Court under Section 397(2) Cr.PC.

5. The learned counsel for the respondents next submitted that there was no legal and proper sanction accorded by the competent authority inasmuch as there was no application of mind while granting sanction. It was submitted that the retracted statement of the respondent No.1 was not put up before the sanctioning authority. It was also submitted that in any case, the sanction was not valid as the sanctioning authority was not examined as a witnesses in the court.

6. The submissions which have been made regarding the validity of the sanction and also non-examination of the sanctioning authority, are all untenable. I have perused the order of sanctioning authority. The same seems to have been granted after due application of mind and consideration of facts and documents. The fact that the retracted statement of the respondent was not put up before the sanctioning authority was of no relevance or consequence. The sanction order fully sets out the material facts and the offences disclosed by those facts. There is a presumption under section 114 of the Evidence Act as to the official acts having been regularly performed in the absence of any evidence to the contrary. Further, there was no requirement of the mandatory examination of the sanctioning authority at the pre-charge stage. The non-examination of the sanctioning authority as a witness at a pre-charge stage could not vitiate the sanction order. What was the pre-requisite for taking cognizance under Section 137 of the Customs Act was the prior sanction of the authority. It was no-where prescribed that the sanctioning authority was to be examined either at the time of taking of cognizance or at the stage of pre-charge evidence. Prima facie, there is nothing on record to suggest that the sanction was granted without any application of mind and was granted in a mechanical manner.

7. In the case of Kushal Kumar Vs. CBI and Another, 2009 I AD (Delhi) 599, the Supreme Court held thus:

“10. The order of sanction in a given case must ex facie disclose that the sanctioning authority had considered the evidence and the material placed before it. The court is not required to sift and weigh evidence collected by the investigation officer during investigation of the case to know if the sanction order was valid and was neither unmindful nor was passed in a mechanical manner. Relevancy of evidence collected is an aspect which has to be examined by the court at the stage of trial and no this court for invalidating the sanction. Therefore it cannot be said that the impugned sanction was granted in a mechanical manner. The sanction was granted vide a detailed order wherein all the facts and evidence collected by the Investigation Agency during the investigation against the Petitioner has been discussed.”

12. Officer signing the sanction order is not required to state that he had personally scrutinized the file and had arrived at the required satisfaction. The allegations made in the First Information Report (FIR) and the order granting sanction if true, would clearly establish that the accused was rightly prosecuted and was guilty of a criminal misconduct. The truthfulness of the allegations and the establishment of the guilt can only take place when the trial proceeds without any interruption. Therefore, it cannot be presumed that there was no application of mind when the sanction of the Government was obtained.”

8. In the case of Kushal Kumar (supra), reliance was placed on the under-mentioned observations of the Supreme Court in the case of State of Bihar Vs. P.P.Sharma, IAS, 1992 Supp (1) SCC 222, which reads thus:

“It is equally well settled that before granting sanction the authority or the appropriate government must have before it the necessary report and the material facts which prima facie establish the commission of offence charged for and the appropriate government would apply their mind to those facts. The order of sanction is only an administrative order and not a quasi-judicial one nor is a lis involved. Therefore, the order of sanction need not contain detail reasons in support thereof as was contended by Shri Jain. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard. The question of giving an opportunity to the public servant at that stage as was contended by the respondents does not arise. Proper application of mind to the existence of prima facie evidence of the commission of the commission of the offence is only a pre-condition to grant or refuse to grant sanction. When the government accorded sanction, section 114 (e) of the Evidence Act raises presumption that the official acts have been regularly performed….”

 9. Also in the case of Hardev Singh Dhillon v. Department of Revenue Intelligence, 2010 (251) ELT 359 (Del) it was held that,

“The purpose of sanction for prosecution is to prevent malicious and unnecessary prosecutions leading to harassment; it is a condition precedent for the launch of a prosecution. What the prosecution has to prove is that the sanction has been accorded with respect to the facts Constituting the offence. Narration of facts on the face of it is desirable but not always essential; if there is no such narration the prosecution must in the course of trial by extraneous evidence prove that those facts were before Sanctioning Authority who applied its mind to them before the grant of sanction; an opportunity of hearing is not necessary to be given before the grant of sanction. It is purely an administrative act.”

10. The other reason given by the ACMM regarding absence of independent witness as a ground for discharge of the accused/respondents is also apparently contrary to law. The non-availability or non-association of independent witness cannot be a ground for discharge or acquittal in all cases. It would depend upon the facts and circumstances of each case and the evidentiary value of the prosecution witnesses could not be undermined at the stage of framing of charges. It is moreso when the prosecution has cited some panch witnesses to be examined in support of its case. The impugned order discharging the accused/respondents apparently suffers from illegality and has caused miscarriage of justice. At the stage of charge, what is to be seen by the Trial Court was laid down by the Supreme Court in the catena of judgments. Reference is made to the judgment in case State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 wherein it was held thus:

“At the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and Judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.”

11. In view of my above discussion, petition is allowed and the impugned order is set aside. The matter is remanded back to the court of learned ACMM, New Delhi. Since the considerable time has already elapsed, the ACMM is directed to proceed with the trial of the case and dispose of the same expeditiously. The parties are directed to appear before the court of ACMM, New Delhi on 16.03.2012 at 2.30 p.m.

12. Revision petition stands disposed of.