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Allahabad High Court · body

2001 DIGILAW 37 (ALL)

RAVINDRA KUMAR SHARMA v. STATE

2001-01-12

JAGDISH BHALLA

body2001
JAGDISH BHALLA, J. ( 1 ) BY means of this application under Section 482, Cr. P. C. the applicant has prayed for quashing of his prosecution in case No. 4 of 1997 (R. C. No. 32 (A) of 1996-C. B. I. Lucknow), under Sections 120-B, 420, 467, 468, 471, 420/511, I. P. C. and Section 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, pending in the Court of Special Judge Anti Corruption (West), U. P. , Lucknow. ( 2 ) THE facts of the case, in brief, are that a scam was unearthed and whereby an embezzlement of public money for about 26,00,00,000/- (twenty six crores of rupees) was detected in the Directorate of Ayurvedic and Unani Services, Uttar Pradesh, Lucknow which was going on for years. The applicant who was posted in the said directorate for a very short period i. e. for two and a half months only, was allegedly found involved in the above scam. A case, being R. C. No. 32 (A) of 1996 was registered by the Central Bureau of Investigation (hereinafter referred to as C. B. I.) under Sections 120-B, 420, 467, 468, 471, 420/511, I. P. C. and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act against the applicant and six others. The C. B. I, after investigation, filed a charge-sheet against the applicant and six others in the Court of Special Judge, Anti Corruption (West), U. P. , Lucknow. The allegation against the applicant in the charge-sheet was that he entered into a conspiracy with other accused persons to defraud the State of Uttar Pradesh of crores of rupees by committing the offences of forgery and criminal misconduct. ( 3 ) THE C. B. I. moved the State Government for sanctioning the prosecution of the applicant and other co-accused under Section 197, Cr. P. C. The State Government by order dated 26-2-1997 refused to sanction prosecution of the applicant and other co-accused. Thereafter on the application of the C. B. I. the matter was reviewed and sanction for prosecution of the applicant and other co-accused for the offences punishable under the provisions of the Indian Penal Code was granted by the State Government under Section 197, Cr. P. C. by order dated 29-5-1997. Thereafter on the application of the C. B. I. the matter was reviewed and sanction for prosecution of the applicant and other co-accused for the offences punishable under the provisions of the Indian Penal Code was granted by the State Government under Section 197, Cr. P. C. by order dated 29-5-1997. Sanction for prosecution of the applicant and other co-accused for the offences punishable under the Prevention of Corruption Act was also sought from the Central Government under Section 19 of the Prevention of Corruption but the Central Government by order dated 7-11-1997 refused to grant sanction for prosecution of the applicant and other co-accused under the provisions of the Prevention of Corruption Act. ( 4 ) THE applicant challenged the order of the State Government dated 29-5-1997 passed under Section 197, Cr. P. C. sanctioning prosecution of the applicant under the provisions of the Indian Penal Code and requested to summon the documents relating to order dated 26-2-1997 by which sanction was refused upon which the trial Court (Special Judge Anti Corruption) had passed in order on 2-6-1998 directing the Secretary, Appointment Section, and Secretary, Home Department of the Uttar Pradesh Government to produce before the Court the documents relating to orders dated 26-2-1997 (refusing to grant sanction for prosecution) and order dated 19-5-1997 (granting sanction for prosecution) on 22-6-1998. Thereafter objections (paper No. B-133 and B-135) were filed on behalf of the State Government against production of the documents relating to the above orders claiming special privilege. These objections were decided by the trial Court by order dated 29-9-1998 whereby it was directed that the question of summoning the relevant documents will be considered by the Court at appropriate stage and 5-10-1998 was fixed for hearing. ( 5 ) AGGRIEVED against the said order dated 29-9-1998 as well as trial before the Special Judge Anti Corruption (West), U. P. , Lucknow the applicant has come up before this Court by filing the present application under Section 482, Cr. P. C. ( 6 ) HEARD learned counsel for the applicant, Kr. ( 5 ) AGGRIEVED against the said order dated 29-9-1998 as well as trial before the Special Judge Anti Corruption (West), U. P. , Lucknow the applicant has come up before this Court by filing the present application under Section 482, Cr. P. C. ( 6 ) HEARD learned counsel for the applicant, Kr. Mridul Rakesh, learned Government Advocate Sri, Bireshwar Nath and Sri A. K. Srivastava, Senior Public Prosecutor appearing for the C. B. I. ( 7 ) LEARNED counsel for the applicant has submitted that in view of refusal to grant sanction for prosecution by the Central Government the Special Judge cannot even take the judicial notice of the offences and that would mean in the ultimate analysis as if there were no allegations at all against the applicant and consequently the proceedings under the Prevention of Corruption Actwould come to an end. He has further submitted that the decision dated 26-2-1997 refusing the grant of sanction was reviewed by order dated 29-5-1997 without there being any justification for the same and the sanction for prosecution was accorded under Section 197, Cr. P. C. for extraneous consideration and due to political expediency. He has further submitted that there is no sanction as required under Section 19 of the Prevention of Corruption Act and the applicant is being made to face a prosecution merely on the basis of an illegal sanction under Section 197, Cr. P. C. subsequently granted by the State Government only due to political expediency. It has further been submitted on behalf of the applicant that the lack of sanction under Section 19 of the Prevention of Corruption Act cannot be made good by an illegal sanction under Section 197, Cr. P. C. and the Special Judge has no jurisdiction to try the applicant for alleged offences under the Indian Penal Code. It has further been submitted on behalf of the applicant that the lack of sanction under Section 19 of the Prevention of Corruption Act cannot be made good by an illegal sanction under Section 197, Cr. P. C. and the Special Judge has no jurisdiction to try the applicant for alleged offences under the Indian Penal Code. It has further been submitted on behalf of the applicant that the conspiracy to commit any offence under the Prevention of Corruption Act has been made an offence under Section 3 (1) (b) and since the criminal conspiracy has already been defined under Section 120-B, I. P. C. , the Prevention of Corruption Act does not define the same, but in fact the offence under Section 120-B, I. P. C. is essentially an offence under Section 3 (1) (b) of the Prevention of Corruption Act, and thus the State Government is not empowered to grant sanction for prosecution for the offence under Section 120-B, I. P. C. Therefore even for the I. P. C. offences the Special Judge cannot proceed against the applicant due to the bar of Section 19 of the Prevention of Corruption Act. ( 8 ) LEARNED Government Advocate has submitted that prior to filing the present application the applicant had filed an application under Section 482, Cr. P. C. before this Court against the order of the trial Court taking cognizance of the offences. That application was registered as Criminal Misc. Case No. 539 of 1997. This Court by order dated 1-10-1997 dismissed that application under Section 482, Cr. P. C. directing the trial Court that in case an application is moved against the grant of sanction and taking cognizance then Special Judge shall decide the said application. In compliance of the above order of this Court the Special Judge decided the application of the applicant along with the objections made on behalf of the State Government by order dated 29-9-1998. Therefore the order dated 29-9-1998 passed by the learned trial Court is just and valid and there is nothing wrong in it. In compliance of the above order of this Court the Special Judge decided the application of the applicant along with the objections made on behalf of the State Government by order dated 29-9-1998. Therefore the order dated 29-9-1998 passed by the learned trial Court is just and valid and there is nothing wrong in it. ( 9 ) IN support of his arguments challenging the validity of sanction for prosecution and jurisdiction of the Special Judge to try the present case, the learned Counsel for the applicant has placed reliance on the following cases :- (i) Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan, 1998 SCC (Cri) 1 : ( AIR 1998 SC 1524 ). This was a case in which the question of sanction of prosecution under Section 197, Cr. P. C. was considered. In this case the Honble Supreme Court, in para 23, observed as under (at Page 1532 of AIR) :-"the legislative mandate engrafted in sub-section (1) of Section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the Court on process being issued, by an application indicating that Section 197 (1) is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which it does not posses. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings. (ii) Republic of India v. Khagendranath Jha, 1982 Cri LJ 961 (Orissa ). It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings. (ii) Republic of India v. Khagendranath Jha, 1982 Cri LJ 961 (Orissa ). This was a case under the Prevention of Corruption Act and allied offences under the Indian Penal Code in which the sanction of prosecution given by Local Board of Bank of India was challenged and the jurisdiction of thespecial Judge to try the allied offences was also challenged. The Orissa High Court held that the Executive Committee is the authority to dismiss the officers which includes the accused. Therefore, sanction for prosecution for offences under the Prevention of Corruption Act was to be accorded by the Executive Committee and that would be a proper sanction in the eye of law. The sanction for prosecution accorded by the Local Board cannot be said to be valid in the eye of law. In absence of valid sanction the prosecution becomes illegal and as such the entire prosecution is vitiated and is not valid. (iii) Ramautar Mahton v. The State, AIR 1961 Pat 203 : (1961 (1) Cri LJ 694 ). In this case a Division Bench of Patna High Court held as under (at Page 207 of AIR) :-"as the proceedings before the Special Judge in this case relating to the offence under Section 5 (2) of the Prevention of Corruption Act was no trial at all due to the absence of a valid sanction, the Special Judge had no jurisdiction under Section 7 (3) of Act XLVI to try the offence under Section 409 of the Penal Code. The trial for that offence being without jurisdiction is nullity and void. " (iv) Sahebkhan Umerkhan v. The State, 1963 (2) Cri LJ 556. In this case a Division Bench of Gujarat High Court has held that if the Special Judge has no jurisdiction to try an offence punishable under Section 5 (2) of the Prevention of Corruption Act, he has no jurisdiction to try the other allied offences such as one under Section 409, I. P. C. for which power has been conferred upon him under sub-section (3) of Section 7 of the Criminal Law Amendment Act, 1952. (v) B. K. Kutty v. The State, 1984 Cri LJ 1289, Orissa High Court. (v) B. K. Kutty v. The State, 1984 Cri LJ 1289, Orissa High Court. In this case the accused was charged under Section 5 of the Prevention of Corruption Act and Section 467 of the Indian Penal Code. The Orissa High Court, in paras 14 and 15, held as under (at Page 1294) :-"it is clear that sub-sec. (3) of S. 7 of the Amendment Act is an enabling provision conferring jurisdiction on the Special Judge to try offences which arise in the course of the same transaction allied with the principal offences for the trial of which he is appointed to be a Special Judge. If the Special Judge has no jurisdiction to try an offence punishable under S. 5 (2) of the Act, he cannot exercise jurisdiction to try the other allied offences for which power has been conferred on him by sub-section (3) of S. 7 of the Amendment Act. The trial of a person before the Special Judge in case relating to an offence under S. 5 (2) of the Act is no trial at all in the eye of law when there is no valid sanction under S. 6 of the Act. In such a case, the Special Judge has no jurisdiction under S. 7 (3) of the Amendment Act to try an offence punishable under S. 467 of the Code. The trial for that offence being without jurisdiction is null and void. For the aforesaid reasons, I would with respect adopt the view taken by this Court in (1981) 52 Cut LT 197 : (1982 Cri LJ 961) (supra) and hold that as the learned Special Judge had no jurisdiction to take cognizance for the offence punishable under S. 5 (2) read with S. 5 (1) (c) of the Act for want of legal and valid sanction, he had no jurisdiction to take cognizance in respect of the allied offences punishable under S. 467 of the Code in view of the specific powers conferred on a Special Judge with the limitation specified in S. 7 (3) of the Amendment Act. The result would be that the order of conviction recorded against the appellant in respect of both the charges and the sentences passed against him thereunder have got to be set aside as there had been no valid trial in the eye of law. The result would be that the order of conviction recorded against the appellant in respect of both the charges and the sentences passed against him thereunder have got to be set aside as there had been no valid trial in the eye of law. " (vi) Sudhendra Kumar Bhattacharjee v. State (1988 Cri LJ 1563, Gauhati High Court ). In this case Gauhati High Court held as under (at Page 1565) :-"the salutary requirement of obtaining previous sanction as required by Section 6 of the Act cannot be set at naught by prosecuting a public servant for an offence under the Penal Code for which no sanction is necessary, though the offence attracts the mischief of the provision (s) of law mentioned in Section 6 of the Act. Such a course would really frustrate the purpose for which previous sanction has been deemed necessary by the Legislature. " ( 10 ) THE above mentioned case laws mainly lay down the following principles :-1. Prior and valid sanction for prosecution is mandatory under Section 19 of the Prevention of Corruption Act and Section 197 of the Code of Criminal Procedure. 2. The question of sanction can be raised at any stage. 3. Special Judge has no jurisdiction totry the case if there is no valid sanction under the Prevention of Corruption Act. 4. Special Judge has no power under the Criminal Law Amendment Act to try only with respect to allied offences under the Indian Penal Code without there being any sanction for prosecution under the Prevention of Corruption Act. ( 11 ) AS far as sanction for prosecution under Section 197, Cr. P. C. is concerned learned Counsel for the applicant has submitted that it was not open for the State Government to review its earlier order dated 26-2-1997 refusing sanction for prosecution of the applicant. In support of his submission he has placed reliance on the case of Vijai Bahadur v. State of U. P. , 1988 AWC 1289 : (1989 Cri LJ (NOC) 61), wherein it has been held by this Court that Section 6 of the Prevention of Corruption Act, 1947 extends protection to a public servant against unwarranted harassment. It should, therefore, be construed in a manner which subserves the objective of its enactment. If the order refusing sanction is reviewed without any fresh material, it is destructive of certainty and finality. It should, therefore, be construed in a manner which subserves the objective of its enactment. If the order refusing sanction is reviewed without any fresh material, it is destructive of certainty and finality. It may leave room open for influence and pressure. An order, judicial or administrative, may be permitted to be reviewed or recalled only if it was passed under misapprehension of fact. Otherwise it gives rise to misgiving and speculation which is not conducive to the sense of justice. ( 12 ) ON the facts and circumstances of the case, it is apparent that the State Government had passed the order dated 26-2-1997 under Section 197, Cr. P. C. by which sanction for prosecuting both under the Indian Penal Code and Prevention of Corruption Act was refused. However, subsequently, the State Government by an order dated 29/05/1997 reviewed its earlier order under Section 197, Cr. P. C. and the permission for prosecuting the applicant under the provisions of the Indian Penal Code was accorded. Thereafter since the applicant is an employee of the Central Government, therefore, the matter was sent to the Government of India for its consideration for grant of permission for prosecution. The Government of India considered both the orders and passed a detailed order under Section 19 of the Prevention of Corruption Act, 1988 refusing sanction for prosecution, as already indicated hereinabove, by order dated 7-11-1997. From a perusal of the same, it is crystal clear that the Government of India was of the opinion that there is no material to indicate that the applicant obtained any pecuniary advantage either for himself or any person either by corrupt or illegal means or abusing his position as a public servant or without any public interest. The report of the Central Bureau of Investigation does not indicate any material wherefrom it can be inferred that the applicant obtained any pecuniary advantage. The order further provides that there is no circumstance much less evidence, which could lead even to a suspicion that the applicant had received illegal gratification. Further the State Governments order declining to grant sanction is a detailed, reasoned and speaking order touching upon each and every aspects of the case including the allegation of commission of offences under the provisions of Prevention of Corruption Act, 1988 and the material placed by the Central Bureau of Investigation on record, in support of the allegation. Further the State Governments order declining to grant sanction is a detailed, reasoned and speaking order touching upon each and every aspects of the case including the allegation of commission of offences under the provisions of Prevention of Corruption Act, 1988 and the material placed by the Central Bureau of Investigation on record, in support of the allegation. The legal experts like Law Department of the State as well as the learned Advocate General of U. P. had examined in detail the proposal for grant of sanction and in regard to the legal implications thereof and had given cogent reasons in not according the sanction for prosecution sought by the Central Bureau of Investigation against the applicant. The Central Bureau of Investigation has neither assailed those reasons with reference to any deficiency or infirmity therein nor it has given any reason as to why the Central Government should hold a different view in the matter. The order further indicates that the competent authority has also taken cognizance of the fact that the State Government on a reconsideration of the issue by an order dated 29-5-1997 granted sanction for prosecution under Section 197 (1) (b) of the Cr. P. C. , 1973, against the applicant in this case. The fact that the State Government had received its opinion (with the change of Government) is not of much significance because as the matter stands today, the competent officials of the State Government had once refused sanction under Section 197, Cr. P. C. and on a review, sanction is now granted. Such sanction is required to be granted with due application of mind. The tenure of two and a half months of the applicant as Secretary, Medical Education, which was also takeninto account in the order, is too short to draw a conclusion with regard to the complicity of the applicant in the criminal conspiracy aspect as according to the investigation report, the scandal was going on for the last few years till it was detected in the month of March, 1994. In these circumstances, it was provided that no case for sanction is made out to prosecute the applicant under the provisions of Prevention of Corruption Act, 1988. In these circumstances, it was provided that no case for sanction is made out to prosecute the applicant under the provisions of Prevention of Corruption Act, 1988. ( 13 ) WHEN the Central Bureau of Investigation applied for review of the order, the Central Government again reiterated its earlier decision by order dated 11-3-1988 after considering the legal opinions given by the legal luminaries. ( 14 ) AT the outset, the Central Bureau of Investigations statement was made by Sri Bireshwar Nath, the then learned Government Advocate and Sri A. K. Srivastava appearing for the Central Bureau of Investigation that the Central Bureau of Investigation does not wish to prosecute the applicant for the offences under the Prevention of Corruption Act but wants to prosecute him only for the offences under the Indian Penal Code for which they have got sanction from the State Government. ( 15 ) LEARNED Counsel for the applicant has also pointed out to the categorical statement made on behalf of the prosecution in the charge-sheet that the applicant committed offence punishable under the Indian Penal Code in furtherance of the conspiracy to commit offences under the Prevention of Corruption Act meaning thereby that the offences alleged to have been committed by the applicant are only incidental and sequel to the offences under the Prevention of Corruption Act with a view to obtain illegal pecuniary advantage. With these background, I am of the considered opinion that if the applicant is not being tried for the offences under the Prevention of Corruption Act, the offences under the Indian Penal Code cannot be separated from it and the applicant cannot be tried for the same. It would be travesty of justice to try the applicant for the offences under the Indian Penal Code because when the applicant cannot be prosecuted for the offences under the Prevention of Corruption Act he cannot be tried for the identical offences under the Indian Penal Code. The prosecution cannot split these offences as they are one and the same andcan be considered in their entirety and continuity and they do not have a separate entity. The prosecution cannot split these offences as they are one and the same andcan be considered in their entirety and continuity and they do not have a separate entity. Further I am of the considered opinion that the overriding aspect of the matter in totality is corruption which is the main offence and all other offences are sequel to that and arise out of the same and there cannot be separation of two offences one for the corruption and the other for the conspiracy. I find the Central Bureau of Investigation has sought a comprehensive sanction for the offences and proposal seeking State Governments sanction for prosecution was not confined to the offences under the Indian Penal Code but also in respect of the offences under the provisions of Prevention of Corruption Act which was duly considered and rejected by the State Government on 26-2-1997, thereby it means that the State Government had declined the grant of sanction which touches every aspect of the case in its entirety and the sanction has been refused both under the Prevention of Corruption Act and the Indian Penal Code. ( 16 ) NOW since the permission has not been granted by the Government of India to prosecute the applicant under the Prevention of Corruption Act, the State Government has also changed its earlier stand and passed the sanction order only for the offences under the provisions of Indian Penal Code. ( 17 ) THE embazzlement of public money was going on in the Directorate of Unani and Ayurvedic Services since long. The tenure of the applicant as Secretary, Medical Education was for a very short period i. e. two and a half months only. In the light of the facts and circumstances of this case I need not scrutinize the conduct of the predecessors and successors of the applicant in view of the fact that this matter is being dealt with by me in inherent jurisdiction the scope of which is very limited in the light of various pronouncements of the Apex Court. In the light of the facts and circumstances of this case I need not scrutinize the conduct of the predecessors and successors of the applicant in view of the fact that this matter is being dealt with by me in inherent jurisdiction the scope of which is very limited in the light of various pronouncements of the Apex Court. ( 18 ) IN light of the above, I am of the considered opinion that once the Government of India has refused the sanction and the State Government with the change of guards granted sanction to prosecute for the offences under the Indian Penal Code such action is an abuse of the process of law and the same cannot be permitted to continue in the administration of justice. It will not be out of point to take into account that the earlier order of the State Government whenthe sanction was refused was a composite order and it covered both the offences under the Prevention of Corruption Act and the Indian Penal Code. However, the subsequent order only restricts to the offences under the Indian Penal Code and I do not find any further cogent reasons on the part of the State to fracture the offences and the charge-sheet. Therefore, the same is arbitrary, bad in law and is liable to be quashed. ( 19 ) TESTED on the touch-stone of the above mentioned four principles based on the case laws cited above I find that the Special Judge has no jurisdiction to try the present case because admittedly there is no sanction for prosecution of the applicant under the Prevention of Corruption Act. He cannot even try the applicant for the allied offences of the Indian Penal Code on the pretext that he has jurisdiction to try for such offences under the Criminal Amendment Act. The Special Judge would have jurisdiction to try the allied offences under the Indian Penal Code only if there had been a valid sanction for prosecution under the Prevention of Corruption Act. In the present case as admittedly there is no sanction for prosecution of the applicant under the Prevention of Corruption Act the Special Judge has no jurisdiction to try the applicant for the allied offences under the Indian Penal Code. In the present case as admittedly there is no sanction for prosecution of the applicant under the Prevention of Corruption Act the Special Judge has no jurisdiction to try the applicant for the allied offences under the Indian Penal Code. Therefore the order dated 29-9-1998 passed by the Special Judge, Anti-Corruption (West), U. P. , Lucknow in the present case is bad in the eye of law and is liable to be set aside. ( 20 ) IN normal circumstances, once after considering the whole matter if the State Government grants any sanction it is not interfered with but in light of the peculiar facts and circumstance, I am of the considered opinion that this is the rarest of the rare case where interference be shown by quashing the sanction for prosecution under Section 197, Cr. P. C. dated 29/05/1997. ( 21 ) IN light of the above the petition under Section 482, Cr. P. C. is allowed. The order of the State Government under Section 197, Cr. P. C. dated 29/05/1997 granting sanction for prosecution against the applicant is quashed. Accordingly all the proceedings (including trial) against the applicant under Sections 120-B, 420, 467, 468, 471, 511, IPC and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act shall automatically stand quashed. Petition allowed. .