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2010 DIGILAW 2487 (ALL)

NARESH CHANDRA GUPTA v. CHIEF ENGINEER, HYDEL

2010-08-16

K.N.PANDEY, SUNIL AMBWANI

body2010
JUDGMENT By the Court.—The petitioner has prayed for a direction to quash the sanction order dated 1.3.1982 given by the Chief Engineer (Hydel), Lucknow and the suspension order, and for quashing the proceedings of the criminal case State v. Lallu and another, under Sections 161, 162,120-B IPC and 5 (2) of the Prevention of Corruption Act, 1947. 2. The petitioner has superannuated as an employee of the U.P. Power Corporation. In the year 1979, when the petitioner was posted as Junior Engineer at 33/11 K.V. Hydel Sub Station, Bilaspur, District Rampur, a trap was laid by the police on the complaint of Sri Azhar Ali Khan on 16.5.1979, to apprehend him for taking bribe. The petitioner was caught red handed accepting Rs.70/- as bribe at about 12.40 p.m. by the Deputy Superintendent of Police, Rampur accompanying the complainant, for preparing an estimate for electricity connection. An FIR was lodged on 17.5.1979 and was registered as Crime Case No. 198 under Sections 161, 162, 120-B IPC read with Section 5 (2) of the Prevention of Corruption Act, 1947. The petitioner was placed under suspension by the Superintending Engineer, Electricity Distribution Circle-II, Moradabad on 20.8.1979. The Superintendent of Police, Rampur requested for sanction, to prosecute the petitioner on which the Chief Engineer, (Hydel), U.P. State Electricity Board, Lucknow refused to give sanction by his letter dated 19.4.1980 addressed to the Superintendent of Police, Rampur, on the ground that he has perused the original papers and the Hydel Case Diary, on examination of which he has found that the trap case against Sri Naresh Chandra Gupta has not succeeded legally, as the investigating officer of the police in his case diary has clearly mentioned that there are some defects in the case diary, which are not likely to be rectified, and that the accused can take advantage of these defects in the proceedings of the case, and thus a prima facie case is not made out against the Junior Engineer for which no question of giving sanction to prosecute him arises. The then Superintending Engineer, who had placed the petitioner under suspension on 20.8.1979, reinstated him on 24.5.1980 with full benefits of pay and allowances, and treated the period of his suspension to have been spent on duty. 3. The then Superintending Engineer, who had placed the petitioner under suspension on 20.8.1979, reinstated him on 24.5.1980 with full benefits of pay and allowances, and treated the period of his suspension to have been spent on duty. 3. The Superintendent of Police, Rampur by his letter dated 17.11.1980 again requested for sanction, to prosecute the petitioner under Section 6 of the Prevent of Corruption Act 1947. The Chief Engineer (Hydel), staying at Lucknow again considered the matter for grant of sanction. He examined the original complaint, supurdaginama note, fard baramdagi note, and first information report, evidences collected during investigation and case diary, and granted sanction under Section 6 (1) of the Prevention of Corruption Act on 1.3.1982, to prosecute the petitioner. The petitioner was again placed under suspension by the Superintending Engineer, giving rise to this writ petition. 4. The Court by its interim order dated 15.2.1983, stayed further proceedings in pursuance to the impugned order granting sanction to prosecute the petitioner. The interim order dated 15.2.1983 is quoted hereunder : “Issue notice Meanwhile further proceedings in pursuance of the impugned order granting sanction to prosecute the petitioner may remain stayed. Hon. Satish Chandra, C.J Hon. B.D. Agarwal, J 15.2.83" 5. The affidavits were exchanged. The writ petition was dismissed on 24.9.2003, for want of prosecution. It was restored after seven years on 29.3.2010. 6. We have heard Sri A.N. Srivastava, learned counsel for the petitioner. Learned standing counsel appears for respondents. 7. Sri A.N. Srivastava submits that once the appointing authority after perusing the entire record and material has refused permission, to prosecute the petitioner under Section 6 of the Prevention of Corruption Act 1947, the new officer holding the same post cannot review the order on the same material, and grant sanction. He has relied upon judgment of this Court in Iqbal Singh v. U.P. State Electricity Board and another [Writ Petition No. 17964 of 1987 decided on 19.4.2004] holding that when the Chief Engineer, being the competent authority, decides to accord or refuse sanction, the said administrative decision, in exercise of superior power, would not be reviewed either by the same authority or by the superior authority i.e. the Board in absence of an express power conferred for such review, or appellate power conferred upon the Board against the order refusing sanction. 8. 8. Sri A.N. Srivastava submits that apart from the principle that an administrative decision in exercise of superior power cannot be reviewed by the same authority, or by the superior authority unless an express power is conferred, the principles of estopple is also attracted in administrative action. He further submits that the petitioner has superannuated almost four years back, and thus it will not be just and proper to prosecute him on flimsy charges after 28 years. 9. Sri A.N. Srivastava, submits that Section 19 of the Prevention of Corruption Act 1988 was amended in U.P., vide U.P. Act No. 4 of 1991 providing for an express power to the State Government to grant sanction where the competent authority has earlier refused to give previous sanction. The amendment is quoted as below : “UTTAR PRADESH - In Section 19, in sub-section (1), after clause (c), the following clause shall be inserted, namely : “(d) Notwithstanding anything contained in clause (c), the State Government may, where it considers necessary so to do, require the authority referred to in clause (c), to give previous sanction within the period specified in this behalf and if the said authority fails to give the previous sanction within such period, the previous sanction may be given by the State Government. Explanation. - (1) For the purpose of this clause “authority” does not include any authority under the control of the Central Government. (2) For removal of doubts it is hereby declared that the power of the State Government under this clause may be exercised also in a case where the authority referred to in clause (c) has earlier refused to give the previous sanction.” - vide U.P. Act No. 4 of 1991, Section 2 (w.e.f. 1-9-1990).” 10. Sri A.N. Srivastava, submits that prior to the amendment on Section 19 of the Prevention of Corruption Act 1988, the competent authority had the power to remove a public servant, and the State Government did not have any power to grant sanction where the previous sanction was earlier refused. The newly added sub-section (2) in Section 19 of the Prevention of Corruption Act, 1988 removed the doubts only after 1.9.1990 and declared that the power of the State Government under clause (d) of sub-section (1) of Section 19 may be exercised where the authority referred to in clause (c) has refused to give previous sanction. The newly added sub-section (2) in Section 19 of the Prevention of Corruption Act, 1988 removed the doubts only after 1.9.1990 and declared that the power of the State Government under clause (d) of sub-section (1) of Section 19 may be exercised where the authority referred to in clause (c) has refused to give previous sanction. This specific power can be exercised only by the State Government where the earlier sanction was refused by any other authority (other than the State Government) referred to in clause (c). 11. Learned standing counsel submits that the principles of res judicate or the principles of estopple are not applicable to the grant of sanction. The competent authority can grant sanction, if the prosecution requests for re-examining the material produced before him, afresh. The principles of the bar of review of administrative action are not applicable. The powers expressly conferred on the authority to grant sanction under Section 21 of the General Clauses Act, includes the power to add, amend review, vary or rescind and to grant sanction where it was earlier refused. The sanction only removes protection given to the public servant from harassment in case of false prosecution. In the present case, a trap was laid, and that the petitioner was caught red handed by Deputy Superintendent of Police. The act of the petitioner in taking money was not in discharge of official duty. Thus grant of sanction was a formality. He would submit that now the Supreme Court has held in Lalu Prasad alias Lalu Prasad Yadav v. State of Bihar through CBI (Ahd) Patna, 2007 (1) SCC 49 , that in the cases covered under the Prevention of Corruption Act 1988, the sanction is of automatic nature and thus factual aspects are of little or no consequence. The position is contrary in the case of sanction under Section 197 Cr.P.C. The Supreme Court has held that substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus with the discharge of official duties. 12. The question of sanction under the Prevention of Corruption Act has been considered by the Supreme Court in Union of India v. Maj. 12. The question of sanction under the Prevention of Corruption Act has been considered by the Supreme Court in Union of India v. Maj. I.G. Lala etc., (1973) 2 SCC 72 ; State of Rajasthan v. Tarachand Jain, (1974) 3 SCC 72 ; Parmanand Dass v. State of Andhara Pradesh, (1978) 4 SCC 32 ; Mansukhlal Vithaldas Chauhan v. State of Gujarat, (1997) 7 SCC 622 and State of West Bengal v. Shyamdas Banerjee and another, (2008) 9 SCC 45 . 13. Under the new Act, the grant of sanction was subject matter of consideration of the Supreme Court in Romesh Lal Jain v. Naginder Singh Rana and others, (2006) 1 SCC 294 and in Lalu Prasad’s case (supra). 14. The offences under Sections 161, 165, and 165-A and Section 5 (2) of the Prevention of Corruption Act, 1947 are cognizable offences for the prosecution of which the need for a sanction under Section 196-A Cr.P.C. does not arise. It was held in Maj. I.C. Lala (Supra) that in such case the need to order reinvestigation or to begin the trial again after the sanction under Section 196-A is obtained, and the consequent inordinate delay and harassment of the Officers concerned, does not arise. In Tarachand Jain (Supra), the Supreme Court held that the burden of proof is on the prosecution to show that the sanction is valid. Such burden includes proof that the sanctioning authority had given sanction in reference to the facts on which the proposed prosecution was to be based. The facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after the facts had been placed before the sanctioning authority. 15. In Parmanand Dass (Supra), the Supreme Court held that there could be no legal bar to the sanctioning authority revising its own opinion. Parmanand Dass was appointed as a clerk in Hyderabad Municipal Corporation. He was charged for receiving an illegal gratification of Rs.15/- and was suspended. The Commissioner of Municipal Corporation accorded sanction for his prosecution under Section 6 of the Prevention of Corruption Act, 1947. Considering the question of validity of the sanction, the Special Judge accepted the contention and found that only the Standing Committee of the Municipality could have given sanction. He was consequently reinstated. The Commissioner of Municipal Corporation accorded sanction for his prosecution under Section 6 of the Prevention of Corruption Act, 1947. Considering the question of validity of the sanction, the Special Judge accepted the contention and found that only the Standing Committee of the Municipality could have given sanction. He was consequently reinstated. On 27.6.1970, the Standing Committee resolved to drop the case on the ground it was an old case and that the accused had already been reinstated in service. On the same day i.e. on 27.6.1970, Hyderabad Municipal Corporation (Amendment) Act, 1970 came into force. The Act provided that the Special Officer appointed under the Act will exercise the powers of the Standing committee of the Municipal Corporation. A note was prepared, on which the Standing committee by its resolution dated 15.5.1973 authorized the Special Officer to sign the sanction order and to send it to the Anti Corruption Bureau, Hyderabad. In pursuance thereof, a sanction order was passed on 16.6.1973 and consequently Sri Parmanand Dass was placed under suspension. The Special Judge dismissed the petitioner’s objection to the validity of the sanction. The High Court dismissed the Criminal Revision. It was submitted in the Supreme Court that once the Standing Committee has declined to grant sanction, the subsequent Standing Committee cannot grant sanction on the same facts. The Supreme Court held that the sanction order was not in accordance with law. The Standing Committee had resolved to drop the proceedings on 27.6.1970. On the same day, the Amendment Act came into force. The Special Officer was to be appointed to exercise the powers and perform the duties and discharge the functions of the Standing Committee. He could himself give sanction, as he had power to discharge functions of the Standing Committee. Instead, a note was prepared and the Standing Committee was required to take a decision. The Standing Committee has authorized and asked the Special Officer to sign the sanction. If the Special Officer had given the sanction, there would have been no flaw in the procedure, but that the Standing Committee could not have functioned apart from the Special Officer. It was found that the Special Officer and the Standing Committee were not the same. The Standing Committee has authorized and asked the Special Officer to sign the sanction. If the Special Officer had given the sanction, there would have been no flaw in the procedure, but that the Standing Committee could not have functioned apart from the Special Officer. It was found that the Special Officer and the Standing Committee were not the same. As the Special Officer has not granted the sanction by himself exercising the power of the Standing Committee but issued the sanction in pursuance of the sanction given by the Standing Committee, the sanction was not valid and the appeal was allowed. Thus we can infer from this judgment that there was no bar on the Special Officer, if he was acting in his own capacity as Standing committee under the Amendment Act, to reconsider the grant of sanction. 16. In Mansukhlal Vithaldas Chauhan (Supra), the Supreme Court has held that sanction requires independent application of mind to the facts of the case as also material and evidence collected during investigation by the competent authority. The words “sanction” implies application of mind. The High Court could not have assumed the role of sanctioning authority by issuing any direction to the authority, to grant sanction. The same legal position was reiterated in Romesh Lal Jain’s case (Supra) where grant or refusal of sanction under Section 197 Cr.P.C., was held by the Supreme Court to precede the application of mind on the part of the appropriate authority. If the order suffers from non application of mind, the same is liable to be set aside. 17. The question of grant of sanction under Section 197 Cr.P.C and under Prevention of Corruption Act, 1988 was considered in detail in Lalu Prasad’s case (Supra). The Supreme Court relied upon a judgment in Shivendra Kumar v. State of Maharashtra, (2001) 9 SCC 303 , in which it was held that “the object of Section 6 or for that matter Section 197 of the Criminal Procedure Code, which is a pari materia provision, is that there should be no unnecessary harassment of a public servant; the idea is to save the public servant from the harassment which may be caused to him if each and every aggrieved or disgruntled person is allowed to institute a criminal complaint against him. The protection is not intended to be an absolute and unqualified immunity against criminal prosecution. The protection is not intended to be an absolute and unqualified immunity against criminal prosecution. In a case where it is seen that a sanction order has been passed by an authority who is competent under the law to represent the State Government, the burden is heavy on the party who challenges the authority of such order to show that the authority competent to pass the order of sanction is somebody else and not the officer who has passed the sanction order in question.” 18. In para 10 of Lalu Prasad’s case (Supra), the Supreme Court held as follows : “10. It may be noticed that Section 197 of the Code and Section 19 of the Act operate in conceptually different fields. In cases covered under the Act in respect of public servants, the sanction is of automatic nature and thus factual aspects are of little or no consequence. Conversely, in a case relatable to Section 197 of the Code, the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus with the discharge of duties. Position is not so in case of Section 19 of the Act.” 19. Taking bribe is not a part of the duty of a public servant. In a trap case where a person was found taking bribe, which is an offence, affecting public at large, the competent authority granting sanction, is not required to look into the evidence, and of the observations made by the Investigating Officer in his case diary. He is not required to apply his mind on the defects in the procedure adopted for trapping the public servant. The authority granting sanction is not conducting the trial and should not concern himself whether the trial will succeed in conviction. He is only required to see where the prosecution is by way of unnecessary harm or harassment to the public servant. Where the allegations constituting the charge do not relate to the performance of official duty, the sanctioning authority, authorised by the State Government, or the State Government will not refuse the sanction. In the case of allegations of taking bribe, which is not part of the the duty of the public servant, the grant of sanction is a rule, rather than exception. In the case of allegations of taking bribe, which is not part of the the duty of the public servant, the grant of sanction is a rule, rather than exception. At the stage of consideration of grant of sanction, the factual aspects and the evidence, which may be available or has been collected and other material is of little consequence. 20. In the case of State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 , the Supreme Court held in the context of the provisions of Section 197 Cr.P.C. And Section 6 of the Prevention of Corruption Act, 1947 as follows : “Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that 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 weight 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.” 21. In the present case, the Chief Engineer while refusing previous sanction, by his order dated 19.4.1980 observed that in view of the legal provisions, the trap case against Sri Naresh Chandra Gupta has not succeeded legally; there are some defects in the case diary, according to the Investigating Officer, which are not likely to be rectified during the trial, and that the accused can take advantage of the defects. In making such opinion, the competent authority travelled beyond the scope of his powers, in examining the legal defects of the trap case for granting previous sanction. In making such opinion, the competent authority travelled beyond the scope of his powers, in examining the legal defects of the trap case for granting previous sanction. He was not required to consider whether the procedure provided for the trap case was followed and whether defects in such procedure can be taken benefit of by the accused. As the authority empowered to grant previous sanction, he was not required to consider whether there was sufficient evidence, which may have succeeded in conviction. The success of trial in conviction is not relevant consideration at the time of grant of sanction. The competent authority at that stage is only required to see whether alleged act was part of the duty of the public servant and that the trial will result in unnecessary harm to him. The condition of previous sanction is a protection, which has to be lifted in the case of allegation of corruption, if the alleged act is not found to be in discharge of official duty of the public servant. 22. The corruption in public administration has assumed alarming proportions. If we allow the authorities competent and authorised to sanction prosecution, to consider the evidence and the procedure followed in the trap case or to study the finer points, on which the trial may or may not succeed, the person, accused of corruption, will take advantage of the observance of procedure and the weight of the evidence before the trial. It will amount to a trial before the competent authority or the State Government, granting sanction, before the actual trial begins in the Court of competent jurisdiction. 23. The principles of res judicata are not applicable in the case of the orders passed by executive authorities. In administrative decisions, however, the power of review or recall is not to be presumed, until it is conferred by statute. The concession of the powers of review or recall in administrative matters, unless expressly conferred by the statute, or where the order is vitiated on misrepresentation and fraud will lead to frequent change of orders and uncertainty in governance. In administrative decisions, however, the power of review or recall is not to be presumed, until it is conferred by statute. The concession of the powers of review or recall in administrative matters, unless expressly conferred by the statute, or where the order is vitiated on misrepresentation and fraud will lead to frequent change of orders and uncertainty in governance. If the Chief Engineer (Hydel), Lucknow was not satisfied with the order passed by his predecessor refusing sanction to prosecute the petitioner, on the grounds that he was not entitled to look into the evidence or the opinion of the Investigating officer, the matter could have been referred by him to the State Government. 24. Sri A.N. Srivastava, submits that the order refusing to grant sanction is not appealable. It is not subjected to review by the State Government. The power to grant previous sanction vests only with the authority specified in this regard. If he does not grant sanction within a specified period, the sanction may be given by the State Government. He submits that the power of the State Government to grant previous sanction where the authority has refused to grant such sanction, was conferred on the State Government only w.e.f. 1990 with the amendment introduced by U.P. Act No. 4 of 1991. 25. The amendment in Section 19 of the Act was introduced by U.P. Act No. 4 of 1991, with the object to remove the doubts. The words, “for removal of doubts”, under explanation 2 to Section 19 (1) (d) by the said amendment, makes the amendment clarificatory in nature. The clarification in the statute, is provided to remove the doubt on the existence of power which always vested in such an authority. 26. We are of the opinion that if the Chief Engineer (Hydel), Lucknow found, that his predecessor has wrongly rejected the sanction he could have referred the matter to the State Government for taking appropriate decision for grant of sanction. 27. The writ petition is allowed. The order dated 1.3.1982 passed by the Chief Engineer (Hydel), Lucknow granting sanction under Section 6 of the Prevention of Corruption Act, 1947, to prosecute the petitioner, is set aside. 27. The writ petition is allowed. The order dated 1.3.1982 passed by the Chief Engineer (Hydel), Lucknow granting sanction under Section 6 of the Prevention of Corruption Act, 1947, to prosecute the petitioner, is set aside. It will be open to the competent authority to refer the matter to the State Government for grant of sanction after setting aside the order dated 19.4.1980 on the request of the Superintendent of Police, Rampur by his letter dated 17.11.1980, to prosecute the petitioner under Section 6 of the Prevent of Corruption Act 1947. The State Government in exercise of its powers, under explanation 2 to Section 19 (1) (d) (as amended by U.P. Act No. 4 of 1991) in such case, will take into account the long period of 31 years since the first information was lodged, and the superannuation of the petitioner. 28. The costs are made easy. ————