SURESH CHANDRA GUPTA v. STATE OF U P — 1993 DIGILAW 609 (ALL)

K. C. BHARGAVA, J. By means of this petition under Section 482 of the Code of Criminal procedure the petitioner has prayed for quashing the proceedings initiated against the petitioner under Section 13 (1) (c) read with Section 13 (2) of Prevention of Corruption Act, 1988 pending in the Court of Special Judge, Lucknow, along with the sanction which has been accorded in the case. 2. The facts which are material for the purposes of this case need only be narrated. According to the petitioner he was working as Engineer-in-chief but the order, dated 25th November, 1991 passed by the Principal Secretary the Cell wherein the petitioner was posted as Engineer-in-Chief was abolished and the petitioner was reverted to the post of Chief Engineer and was attached to I. P. M. C. which was created under the Nagar Vikas Vibhag for the purposes of monitoring the works of the World Bank aid. This order cancelling the Cell and reverting the petitioner was challenged in Writ Petition No. 7802 of 1991. This petition was allowed by this Court on 24th April, 1992 and it was directed that the petitioner be posted in any of the development authorities. This order was not complied with and the State filed Special Leave Petition No. 8564 of 1992 before the Honble Supreme Court but failed to obtain any stay order therein. At the time of admission of the Special Leave Petition the Honble Supreme Court expressed its dis pleasure for not implementing the orders of the High Court. Instead of complying with the orders of the High Court the petitioner was falsely implicated under Section 13 (1) and 13 (2) of the Prevention of Corruption Act, 1988. A complaint was lodged against the petitioner in the year 1988 under Section 5 (1) and 5 (2) of the Prevention of Corruption Act, 1947. The enquiry was ordered by the Government on 10. 5. 1988 which was to be conducted by the Vigilance Department for the period from 21. 9. 1970 to 31. 3. 1988. Thereafter a first information report was lodged against the petitioner on 25. 8. 1992 and the petitioner was arrested on 8-1-1992. He was released on bail on 4-9-1992. A charge- sheet, dated 2. 9. 1992 was filed in Case Crime No. 92 of 1988 against the petitioner. 9. 1970 to 31. 3. 1988. Thereafter a first information report was lodged against the petitioner on 25. 8. 1992 and the petitioner was arrested on 8-1-1992. He was released on bail on 4-9-1992. A charge- sheet, dated 2. 9. 1992 was filed in Case Crime No. 92 of 1988 against the petitioner. The petitioner has thereafter, given the details of his income and expenditure which were not accepted by the Vigilance Department and they found that the petitioner was having assets disproportionate to his known sources of income. According to the petitioner exagerated amounts of expenditure have been shown in the balance-sheet prepared by the vigilance department and no primafacie case is made out agaisnt the petitioner under the provisions of the Prevention of Corruption Act. It is further alleged that there was no material before the sanctioning authority on the basis of which it formed the opinion for granting permis sion of prosecution under the said provisions of law. 3. On behalf of the State a counter-affidavit and a supplementary counter-affidavit have been filed. It is alleged that on a complaint made by one Anugrih Singh & Ors. , dated 16th May, 1988 orders were passed for enquiring into the alleged allegations. The check period was taken from 20th September, 1970 to 31st March, 1988. From the enquiry it revealed that the petitioner had an income of Rs. 20, 28, 917. 00 from different sources. The expenditure during this period came to Rs. 29,28,052. 00. In this way property worth Rs. 8,89,135. 00 more was found in possession of the petitioner which could not be satisfactorily explained. This amount has been accumulated due to illegal means. The petitioner was arrested on 1. 9. 1992 and charge-sheet was filed in the Court against the petitioner on 2. 9. 1992. It is further alleged that Annexure-7 which is a document filed by the petitioner is a rough estimate of domestic expenses of Rs. 2,04,321. 00 as was found during the course of investigation and the correct expenditure has not been shown by the petitioner. This has been correctly shown in the charge-sheet. The investigation was got done by the State Government through Vigilance Department vide letter, dated 16th May, 1988. 2,04,321. 00 as was found during the course of investigation and the correct expenditure has not been shown by the petitioner. This has been correctly shown in the charge-sheet. The investigation was got done by the State Government through Vigilance Department vide letter, dated 16th May, 1988. The documents of income tax filed by the petitioner cannot be relied upon because the expenditure and the income has been shown by the petitioner himself which has not been scrutinised by the Income-Tax Department. The details which have been shown in the Charge-sheet regarding income and expenditure are correct. The sanction has been granted by the Principal Secretary Irrigation Department on 28. 8. 1992. Investigation in this case was done by the Vigilance Department under the U. P. Vigilance Establishment Ordinance for which a notification was issued by the Government on 20. 3. 1965. The State Government also issued a notification, dated 16th May, 1988 authorising the investigation in the present case. The State Government also issued a notification, dated 12th February, 1965 specifying the offences and classes of offences which may be investigated by the Uttar Pradesh Vigilance Establishment. The State Government also issued another notification, dated September 16, 1965 providing that the investigation shall be done by the Police Officers in the U. P. Vigilance Establishment not below the rank of Inspector of police regarding the offences punishable under Sections 161, 165 or 165-A of the Indian Penal Code or under Section 5 of the Prevention of Corruption Act, 1947. Another notification was also issued by the State Government framing the Uttar Pradesh Authentication (Orders and Other Instruments) Rule, 1975. 4. In the rejoinder affidavit the petitioner has denied the allegations made by the opposite party in the counter-affidavit and the supplementary counter-affidavits and has denied the allegations mentioned in the petition. It is further alleged by the petitioner that the income tax returns which had been filed by the petitioner regarding his income and expenditure are final and cannot be questioned. It is further alleged by the petitioner that the income tax returns which had been filed by the petitioner regarding his income and expenditure are final and cannot be questioned. It is further alleged that sanction in the present case has not been accorded in accordance with the provisions of the law and the same has been accorded without application of mind by the conccreed authority as it has not been mentioned as to on what material the concerned authority as it has not been mentioned as to on what material the concerned authority obtained satisfaction to accord sanction. 5. Learned Counsel for the petitioner and the learned Government Advocate have been heard. Learned Counsel for the petitioner at the first instance has argued that sanction in the present case was to be accorded by the Governor of the Governor was the appointing and the dismissing authority of the petitioner. According to the learned Coun sel the sanction, copy of which is Annexure-8 the petition, is dated 28th August, 1992 but the same has not been accorded by the Governor after consideration of the material on record and merely the names of the Governor has been used to show that the sanction has been accorded by the Governor. Section 19 of the Prevention of Corruption Act deals with previous sanction necessary for prosecution. This section provides that cognizance of an offence which is punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by the public servant cannot be taken by any Court without the previous sanction of the authority who is competent to remove him from the office. It must be proved by the prosecution that all the facts upon which the sanction is required had been placed before the sanctioning authority and the decision had been taken by that authority after consideration of those facts. Granting of the sanction cannot be said to be a mere formality but must be a conscious Act of the sanctioning authority to see. that at least a prima facie case appears to have been made out against the government severant to lift that veil of protection afforded to the government servant. If a sanction is granted without considering the facts on which the proposed prosecution is based then the sanction cannot be said to be validly given. that at least a prima facie case appears to have been made out against the government severant to lift that veil of protection afforded to the government servant. If a sanction is granted without considering the facts on which the proposed prosecution is based then the sanction cannot be said to be validly given. The burden, of prove that the sanction has been validly granted lay on the prosecution. Such burden of proof includes the proof that the sanctioning authority has given sanction in reference to the facts on which the proposed prosecution was to be based and those facts should appear on the face of the sanction or it may be proved by independent evidence that sanction has been accorded for prosecution after those facts had been placed before the sanctioning authority, (vide State of Rajasthan v. Tarachand Jain, (1974)3 SCC 440:1977 SCC (Cri 520 ). 6. The object of obtaining sanction which has been provided by this section is that a public servant should not be unnecessarily harassed and should be saved from the harass ment on frivolous and unsubstantiated allegations. The existence of a valid sanction is pre-requisite to the cognizance of the offence. In absence of such a valid sanction the Court has no jurisdiction to take cognizance of the Offence. The trial without a valid sanction, where such a sanction is necessary, is a trial without jurisdiction of the Court, (vide S. R. Nayak v. A. R. Antulay, (1986)2 SCC 716 ,761:1986 SCC (Cri) 256, para 54 ). In the present case the offence with which the petitioner has been charged falls under Section 13 (1) (e) of the Prevention of Corruption Act, 1988. Under the provisions of this section if a person is found, at any time, in possession, during the period of the office, property of which he cannot satisfactorily account and which is dispropotionate to his known source of income, then it is said that he has committed an offence punishable under Section 13. The offence punishable under Section 13 is also covered by Section 19 of the Act in which case previous sanction is necessary for the prosecution. The offence punishable under Section 13 is also covered by Section 19 of the Act in which case previous sanction is necessary for the prosecution. As mentioned in the earlier part of the judgment the sanction which is necessary should be a valid one and should satisfy certain requirements of law and it is not a mere formality which can be gone into by merely granting sanction without going through the material on the basis of which the sanction has to be granted. The authority sanctioning the prosecution has to satisfy himself that aprima facie case exists and an such the prosecution is necessary. 7. In view of the law on the subject it will not be necessary to see as to whether the sanction which has been accorded in the present case satisfies the requirement of Section 19 of the Act. For the purposes of convenience the sanction is reproduced below: - "government of Uttat Pradesh Housing Section-5 No. 6223 (1)/9-Aa-5-92 Lucknow Dated August 28,1992. ORDEr Whereas it is contended that the income of Rs. 20,38,917. 00 and a total expenditure of Rs. 29,28,252. 00 was found of S. C. Gupta (Sri Suresh Chandra Gupta), the then Chief Engineer, Lucknow Development Authority while serving as a member of Development Authorities Centralised Service during the period from 20. 9. 1970 to 31. 5. 1988 and the members of his family. As such movable and immovable property worth Rs. 8,89,135. 00 was found in the possession of Sri S. C. Gupta in excess of the known sources of his income, which he has acquired in his own name or in the names of the members of his family. Sri Gupta never declared any property after entering into the service, nor he declared any property thereafter. Evidently this excess property has been acquired by Sri Gupta through the corrupt means. (2) And whereas by the aforementioned Act an offence is made out which is punishable under Section 5 (2) read with Section 5 (1) (e) of Anti Corruption Act, 1947 and Section 13 (2) read with Section 13 (1) (e) of Anti Corruption Act, 1988 (Act No. 49 of 1988 ). (2) And whereas by the aforementioned Act an offence is made out which is punishable under Section 5 (2) read with Section 5 (1) (e) of Anti Corruption Act, 1947 and Section 13 (2) read with Section 13 (1) (e) of Anti Corruption Act, 1988 (Act No. 49 of 1988 ). (3) And whereas I, Ravindra Shanker Mathur, Principal Secretary Housing, being the competent authority for removal of Sri S. C. Gupta (Sri Suresh Chandra Gupta), affer examining completely and carefully the material produced before me regarding the above contention about the matter and the circumstances of the case, consider that Sri S. C. Gupta (Sri Suresh Chandra Gupta) be prosecuted in the Court for the afore-mentioned offence. And, therefore, the Governor is pleased to sanction the prosecution of Sri S. C. Gupta (Sri Suresh Chandra Gupta), under Section 197 of Criminal Procedure Code, 1973 (Act No. 2 of 1974) and under Section 19 (e) of the Anti Corruption Act, 1988 (Act No. 43 of 1988) for the aforementioned offence and under the other provisions of the laws in connection with the above purpose and for the cognizance of the aforementioned offences by any competent Court having jurisdiction. By the order of the Governor (Sd.) Ravindra Singh Mathur Principal Secretary Housing. " 8. In this order by which the sanction has been granted it is mentioned that in the check period from 20. 9. 1970 to 31. 3. 1988 the petitioner when he was posted as Chief Engineer, Lucknow Development Authority, had the income of Rs. 20,38,917. 00 and a total expenditure of Rs. 29,28,052. 00 and as such immovable property worth Rs. 8,89,135. 00 was found in. excess in possession of the petitioner which was beyond the known sources of the petitioner which has been acquired by corruption. It is also mentioned in the above order that the petitioner has committed an offence punishable under Section 5 (2) read with Section 5 (1) (e) of the Anti Corruption Act, 1947 and Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988. It is also mentioned in the above order that the petitioner has committed an offence punishable under Section 5 (2) read with Section 5 (1) (e) of the Anti Corruption Act, 1947 and Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988. Thereafter the main portion of the sanction comes as under: - "and whereas I, Ravindra Shankar Mathur, Principal Secretary Housing, being the competent authority for removal of Sri S. C. Gupta (Sri Suresh Chandra Gupta), after examining completely and carefully the material produced before me regarding the above contention about the matter and the circumstances of the case, consider that Sri S. C. Gupta (Suresh Chandra Gupta) be prosecuted in the Court for the aforementioned offence. " Then in the last para it is mentioned that: the Governor is pleased to sanction the prosecution of Sri S. C. Gupta (Sri Suresh Chandra Gupta), under Section 197 of the Criminal Procedure Code 1973 (Act No. 2 of 1974) and under Section 19 (e) of the Anti-Corruption Act, 1988 (Act No. 43 of 1988) for the aforementioned offence and under the other provisions of the laws in connection with the above purpose and for the cognizance of the aforementioned offences by any competent Court having jurisdiction. " Thus it means that the satisfaction in this case is of the Principal Secretary Housing but the sanction has been granted by the Governor. These are two inconsistent observa tions which have been made in the sanction. It shows that the satisfaction was based on the material produced before the Principal Secretary Housing and he was satisfied that the petitioner should be prosecuted. But on the basis of the satisfaction of the Principal Secreatary Housing the sanction has been accorded by the Governor. The Principal Secretary Housing is a different authority than the Governor who is the constitutional head of the State. It cannot be said that the satisfaction will be of the Principal Secretary Housing and the sanction will be accorded by the Governor. Therefore it cannot be said that this sanction has been accorded by the Governor after satisfying himself that aprima fade case exists against the petitioner on the basis of the material collected during the investigation. 9. It cannot be said that the satisfaction will be of the Principal Secretary Housing and the sanction will be accorded by the Governor. Therefore it cannot be said that this sanction has been accorded by the Governor after satisfying himself that aprima fade case exists against the petitioner on the basis of the material collected during the investigation. 9. A copy of the sanction has been filed by the petitioner and a reference to it is found in para 35 of the affidavit accompanying the application under Section 482 of the Code of Criminal Procedure. This para 35 has been replied to in the counter-affidavit of the State wherein it has been merely stated that the allegations contained in para 35 are wrong and the sanction against the petitioner for prosecution has been validly given. It has not been mentioned in this counter-affidavit that Annexure-8 which has been filed by the petitioner is wrong or it does not relate to the petitioner. Nowhere in this counter-affidavit it has been alleged that Annexure-8 filed by the petitioner is not the correct copy of the sanciton which has been granted for prosecution of the petitioner. Is para 25 of the supplementary counter-affidavit it has been alleged that the sanction for prosecution of the petitioner has been granted by the Principal Secretary Housing on 28th August, 1992 but the letter number is different to that as mentioned in Annexure-8. Copy of the sanction has not been filed by the State along with the supplementary counter- affidavit. On 24-8-1993, which was the date on which arguments were concluded in this case, a 3rd supplementary counter-af fidavit was filed alongwith certain notifications issued by the Government and a photo copy of the sanction. This was not filed prior to the date of the arguments and no reference of this sanction was made during the course of argument. Even then the Court is dealing with this sanction. This is Annexure-SCA-5 to the III Supplementary Counter Affidavit. It is dated 28th August, 1992. It has not been mentioned in this third supplementary counter-affidavit as to whether the copy of the sanction filed by the petitioner as Annexure-8 is wrong and the correct copy is being filed with the supplementary affidavit. Copy of this supplementary affidavit was given to the learned Counsel for the petitioner on the last date of hearing i. e. , 24-8-1993 at 3. Copy of this supplementary affidavit was given to the learned Counsel for the petitioner on the last date of hearing i. e. , 24-8-1993 at 3. 30 p. m. In the sanction filed as Annexure- SCA- 5 it is mentioned that he is competent to remove the petitioner from the post but it has not been stated as to whether he is appointing authority of the petitioner or whether he has been delegated the power to remove the petitioner from his post. Unless it is shown how can it be presumed that the Principal Secretary Housing was competent to remove the petitioner from the office. Even this sanction shows that the Principal Secretary Housing has satisfied himself on the material produced before him that the petitioner should be prosecuted under the provisions of the Prevention of Corruption Act. Thereafter the sanction has been given by the Governor as was the case with the sanction filed by the petitioner as Annexure-8. The same reasoning which has been given in the sanction filed by the petitioner as Annexure-8 also applies to this sanction. It does not postulate that satisfac tion can be of one authority and sanction can be granted by another authority. Moreover in both these sanctions it has not been mentioned as to what material has been produced to arrive at the conclusion that a prima facie case exists against the petitioner and therefore the sanction for prosecution of the petitioner is being granted. The material which was placed before the authority granting; the sanction must appear on the face of the sanction. No such fact has been indicated in the sanction as to what material was placed before the Principal Secretary Housing. Therefore keeping in view this fact is cannot be said that the sanction for prosecuting the petitioner under the Prevention of Corruption Act, 1988, or under the old Act has been granted by the competent authority, as no material was placed before the competent authority to arrive at the conclusion that sanction should be granted for prosecuting the petitioner. 10. The next contention of the learned Counsel for the petitioner is that in the present case investigation has not been done in accordance with the provisions of Section 17 of the Prevention of Corruption Act, 1988. This Act came into force on 9th September, 1988. 10. The next contention of the learned Counsel for the petitioner is that in the present case investigation has not been done in accordance with the provisions of Section 17 of the Prevention of Corruption Act, 1988. This Act came into force on 9th September, 1988. The first information report was lodged in this case on 16th May, 1988 and the charged-sheet was filed on 2nd September, 1992, a copy of which is Annexure-6. At the time when the first information report was lodged the old Act, namely the Prevention of Corruption Act, 1947 was in operation. Section 17 of the Prevention of Corruption Act, 1988 deals with the persons who are authorised to investigate. In the second provision of sub-clause (c) of the section it is provided that an offence referred to in clause (e) of sub-section (1) of Section 13 shall not be investigated without the order of a Police Officer not below the renk of a Superintendent of Police. The same provision existed in Section 5 (1) (e) of the Prevention of Corruption Act, 1947. Thus in the present case before the investigation an order should have been passed by a Police Officer not below the rank of a Superintendent of Police for investigation of the case but there is no document on record to show that the order of a Police Officer not below the rank of a Superintendent of Police was obtained for investigation into the offences committed by the petitioner under Section 5 (1) (e) of the Prevention of Corruption Act, 1947. Learned Counsel for the State has filed certain notifications issued by the State Government. Under the provisions of the Uttar Pradesh Vigilance Establishment Act, 1965 (U. P. Act VII of 1965) a separate estab lishment of Vigilance was created. The Police Officers appointed under this establishment have the same powers which the officers holding the same rank in the police department, have. It is further provided that any officer above the rank of sub-inspector may, subject to any orders which the State Government may make in this behalf, exercise, in discharging his functions under sub-section (2), any of the powers of the officer-in-charge of a police station in a particular area to which he is assigned. Thereafter another notification was made on February 12,1965 specifying the offences which can be investigated by the Uttar Pradesh Vigilance Establishment. Thereafter another notification was made on February 12,1965 specifying the offences which can be investigated by the Uttar Pradesh Vigilance Establishment. According to this notification offence under Section 161 of the Indian Penal Code and offences punishable under the Prevention of Corruption Act, 1947 can be investigated by the Vigilance Establishment. Another notification issued by the State Government is dated September 16,1965 which provides that all officers in the Uttar Pradesh Vigilance Establishment not below the rank of Inspector of Police can investigate any offence punishable under Section 161, 165, 165-A, of the Indian Penal Code or under Section 5 of the Prevention of Corruption Act, 1947 without the order of a Magisrate of first class. This notification merely authorised the investigation of the offence by a Police Officer not below the rank of Inspector of Police without the order of Magistrate first class which is under first proviso to Section 5-A of the Prevention of Corruption Act, 1947. But no notification has been made under the second proviso which further provides that an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of a Police Officer not below the rank of a Superintendent of Police. The offence with which the petitioner has been charged is covered by this clause of Section 5 of the Act. The provisions of Section 5 (1) (e) of the Prevention of Corruption Act, 1947 are similar to the provisions of Section 13 (1) (e) of the Prevention of Corruption Act, 1988. Therefore in the present case unless the Superin tendent of Police or any officer above his rank had ordered for investigation of the offence no investigation could have been made by any officer of the Vigilance Establishment by virtue of notification, dated 16th September, 1965 (Annexure-SCA-3 to the third sup plementary counter- affidavit ). The provisions of the second proviso of clause (c) of Section 5-A (1) of the Prevention of Corruption Act. 1947 which are equivalent to the provisions of Sectionl7 of the prevention of Corruption Act, 1988, have not been com plied with as far as the investigation is concerned. Without the order of a Police Officer not below the rank of Superintendent of Police the investigation could not have been done against the petitioner. Therefore the investigation done in the present case is also without jurisdiction. 11. Without the order of a Police Officer not below the rank of Superintendent of Police the investigation could not have been done against the petitioner. Therefore the investigation done in the present case is also without jurisdiction. 11. Reliance has been placed by the learned Counsel for the petitioner on the case State of Haryana & Ors. v. Chaudhary Bhajan Lal & Ors. , AIR 1992 SC 604 . In this case the sanction which was required by the Superintendent of Police or any other officer of the above rank was not according to law. It was held that the authority granting sanction much satisfy himself that there are good and sufficient reason to entrust the investigation with such Police Officer of, a lower rank and should record his reasons for doing so. It was further held that a sanction granted without applying the mind was invalid. It was also held that if there is breach of a mandatory provision the Court will have to consider the nature and extent of the violation of the mandatory provision and pass appropriate orders. Investigation in that case was quashed by the Honble Supreme Court on the defects in granting the sanction by the Superintendent of Police. In the present case there is no order of the Superintendent of Police of a Police Officer higher in rank to the Superintendent of Police, granting permission to the Inspector to investigate the offences against the petitioner. For want of permission, as required by Section 5-A (1) of the Prevention of Corruption Act, 1947 and Section 17 of the Prevention of Corruption Act, 1988, the investigation done in the present case cannot be said to be a valid one. Before investigation the permission of a Police Officer not below the rank of a Superintendent of Police is must under the above said provisions. 12. The result of the above discussion is that the investigation in the present case was defective inasmuch as mandatory provisions referred to above regarding premission of investigation by an officer not below the rank of Superintendent of Police, were not complied with. The sanction for prosecution obtained on the basis of such investigation from the Governor is also invalid. 13. The result of the above discussion is that the investigation in the present case was defective inasmuch as mandatory provisions referred to above regarding premission of investigation by an officer not below the rank of Superintendent of Police, were not complied with. The sanction for prosecution obtained on the basis of such investigation from the Governor is also invalid. 13. The petition is, therefore, allowed and the investigation done by the Inspector without the orders of the Superintendent of Police or authority higher in rank to the Superintendent of Police and the sanction granted by the Governor for prosecution of the petitioner are quashed. Further proceedings in Criminal Case No. 5/92 (State v. Suresh Chandra Gupta) arising out of Crime No. 92 of 1988 under Section 5 (2) and 5 (1) of the Prevention of Corruption Act, 1947 and Section 13 (2) and 13 (1) of the Prevention of Corruption Act, 1988 pending in the Court of Special Judge, Lucknow are also quanted. Petition allowed. .