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2011 DIGILAW 1680 (ALL)

Balram Yadav v. C. B. I. & State of U. P.

2011-07-13

SHRI NARAYAN SHUKLA

body2011
Shri Narayan Shukla, J.:- Heard Mr. Anupam Mehrotra, learned counsel for the petitioner as well as Mr. Bireshwar Nath, learned counsel for the C.B.I. alongwith Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate. The petitioner has challenged the proceeding of Criminal Case No. 4 of 1997, R.C. No. 32-A of 1996 pending before the court of Special Judge (Anti - Corruption), Lucknow (West), inter alia, on the grounds that there is no valid sanction of prosecution to prosecute the petitioner under Section 197 of the Code of Criminal Procedure. It is stated that for want of valid sanction the trial is without jurisdiction. The learned counsel for the petitioner submits that when he raised this question before the trial court, the trial court by means of order dated 29th of September, 1998 deferred the matter to decide the issue. The Central Bureau of Investigation, which has been the Investigating Agency, itself has admitted in its charge-sheet that there is no valid sanction, the matter was referred to the Government to accord sanction to prosecute the petitioner. The sanction was sought to prosecute the petitioner under Section 120-B/420/467/468/471 and section 420 read with Section 511 of the Indian Penal Code as well as Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, but the Government by means of order dated 26th of February, 1997 declined to accord sanction. Though, there was no material before the Investigating Agency to forward the request again to sanction, but vide letter dated 17th of March, 1997, it again requested. After coming to know, the petitioner also represented on 20nd of March, 1997 to the Government for not accord sanction as it would be the review of order, which was not permissible under the law. The Court also acknowledged the petitioner's representation and issued notice to the Investigating Agency to produce the earlier order dated 26th of February, 1997 and 2nd of April, 1997, but State failed to produce those orders, nevertheless the State Government reviewed its order dated 26th of February,1997 and accorded sanction on 29th of May, 1997, then the petitioner filed an application to the trial court to call upon the relevant record, but when the trial court did not proceed satisfactorily, the petitioner filed a petition under Section 482 Cr.P.C. being Criminal Miscellaneous Case No. 540 of 1997 before this Court. This Court by means of order dated 1st of October, 1997, dismissed the petition with liberty to the petitioner to raise all pleas before the trial court. The operative portion of order is quoted hereunder:- "In view of what has been discussed hereinabove, I am of the considered opinion that petitioners shall approach the Special Court (Anti Corruption) to raise their grievance as petitioners' application against the sanction was not decided on merit and further application to recall of non-bailable warrants is also still pending before the Special Judge, I do not consider it appropriate to show interference at this stage under section 482 Cr.P.C.. In the circumstances, if the petitioners so desire may move an application before the Special Jude (Anti Corruption) against the grant of sanction and taking cognizance and in the process direct the petitioners to appear before the Special Judge (Anti Corruption) on 20-10-97. In case an application is moved against the grant of sanction and taking cognizance then Special Judge shall fix a date for day-to-day hearing of the said application till the arguments are concluded. During the period and till the said applications are finally disposed of petitioners be allowed to appear through their counsel. However, whenever the presence of the petitioners are required by the Special Judge in any of the case, the learned counsel appearing on behalf of the petitioners will ensure his presence. With the above observations, both the petitioners are dismissed." Under the strength of aforesaid order passed by this Court since there was no material for according sanction, the petitioner moved an application before the court below on 2nd of February, 1998 to summon the record of grant of sanction. On 2nd of June, 1998, the court below allowed the application and issued direction to produce record on 22nd of June, 1998, but State claimed privileged over there under Section 123 of the Indian Evidence Act in public interest. The trial court by means of order dated 29th of September, 1998 disposed of the petitioner's objection in the manner that question of privilege as claimed by the State as well as the validity of sanction would be looked into at appropriate stage. Since the petitioner was not satisfied with the proceeding of the court below, he filed present petition before the Court to quash the proceeding. Since the petitioner was not satisfied with the proceeding of the court below, he filed present petition before the Court to quash the proceeding. In the meantime, one development took place as in the matter of co-accused Ravindra Kumar Sharma vs. State and Another (Criminal Misc. Case No. 804 of 1998). This Court by means of order dated 17th of January, 2001 quashed the Government Order dated 29th of May, 1997 granting sanction for prosecution against him with the observation that, accordingly, all the proceedings including trial against the applicant under Section 120-B, 420, 467, 468, 471, 511 and Section 13(2) read with Section 13(1)(d) shall automatically stand quashed. It is stated that by means of the same order in the same circumstances the sanction was accorded to prosecute the petitioner and once the said order has been quashed by this Court in respect of the co-accused, the petitioner is entitled to the benefit of the said order as the proceeding of the trial court would be a misuse of process of court. Upon perusal of the order passed by this Court in the matter, I find that the court has not dealt with, substantially, any factual aspect of any individual person rather the case has been dealt with on the basis of the principle applicable in the matter of sanction. It is stated that the petitioner being on the same footing is entitled to the benefit of order more so on merit also. The order dated 26th of February, 1997, which was a quasi judicial order was not liable to be reviewed by the Administrative Authority, for which he is not empowered by way of specific provision under the court. It is further stated that the subsequent order dated 26th of May, 1997 according sanction is based on no material as has been discussed in the case of Ravindra Kumar Sharma (supra) by this Court. Thus, it is also stated that the order impugned is based on malice as the ruling party has subjected the petitioner for prosecution, being biased. The petitioner belongs to a different political party. After hearing the learned counsel for the parties as well as perusal of record, I find that indisputedly the State has failed to produce the sanction order before the trial court despite the clear direction of the trial court to examine its validity. The petitioner belongs to a different political party. After hearing the learned counsel for the parties as well as perusal of record, I find that indisputedly the State has failed to produce the sanction order before the trial court despite the clear direction of the trial court to examine its validity. In the case of Ravindra Kumar Sharma case (supra), this Court has already examined the report of the Central Bureau of Investigation and has observed that 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 Court has further observed that the Central Bureau of Investigation has sought a comprehensive sanction for both the offences and proposal seeking State Government's sanction for prosecution was not confined to the offences under the Indian Penal Code, but also in respect of offences under the provisions of Prevention of Corruption Act, which was duly considered and rejected by the State Government on 26th of February, 1997, thereby it means that the State Government had declined the grant of sanction, which touches every aspects of the case in its entirety and the sanction has been refused both under the Prevention of Corruption Act and the Indian Penal Code. The Court further observed that 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 circumstance, I am of the considered opinion that this is a rare of the rarest case, where interference be shown by quashing the sanction for prosecution under Section 197 Cr.P.C. dated 29th of May, 1997. The parties also cited some decisions, which are relevant on the point. In the case of State of Punjab & Anr. Vs. Mohammed Iqbal Bhatti 2010 AIR SCW 1186, in this Case, the question, which arises for consideration was as to whether the State has any power of review in the matter of grant of sanction in terms of Section 197 of the Code of Criminal Procedure, 1973. The relevant paragraphs 6, 7, 19, 20 and 21 are produced hereunder:- 6. "The respondent is a public servant. The Governor of the State of Punjab is his appointing authority. The relevant paragraphs 6, 7, 19, 20 and 21 are produced hereunder:- 6. "The respondent is a public servant. The Governor of the State of Punjab is his appointing authority. He is, therefore, not removable from his office save by and with the sanction of the Government and in that view of the matter if he is accused in any offence alleged to have been committed by him while acting or purporting to act in discharging of his official duty, grant of prior sanction is imperative in character in terms of Section 197 of the Code of Criminal Procedure, 1973. The power of the State, as is well known, is performed by an executive authority authorized in this behalf in terms of the Rules of Executive Business framed under Article 166 of the Constitution of India insofar as such a power has to be exercised in terms of Article 162 thereof. Once a sanction is refused to be granted, no appeal lies thereagainst." 7. "Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the concerned authority is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidences must be considered by it. The sanctioning authority must apply its mind on such material facts and evidences collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidences may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. Even such application of mind does not appear from the order of sanction, extrinsic evidences may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. It is also well settled that the Superior Courts cannot direct the sanctioning authority either to grant sanction or not to do so. The source of power of an authority passing an order of sanction must also be considered. [See Mansukhlal vithaldas Chauhan v. State of Gujarat [(1997) 3 SCC 622] : (1997 AIR SCW 3478 : AIR 1997 SC 3400 )." 19. The contention of the learned Additional Advocate General for the appellants is that Rule 8 of the Rules of Business shall apply whereas according to the learned counsel for the respondent, Rule 9 thereof shall apply. In terms of Clause (3) of Article 166 of the Constitution of India all orders of the government must be issued in the name of the Governor. Such orders, however, may be signed by any authorities specified in Rule 9 of the Rules of Business. By reason of either Rule 8 or Rule 9 of the Rules of Business, no substantive power is conferred. The Rules of Executive Business inter alia provided for three authorities before whom the records are to be placed, viz., Minister of the Department, Chief Minister and Cabinet. It has not been contended that in terms of the Rules of Executive Business read with the Standing Order, the Minister of the Department concerned could not have refused to grant sanction. What is contended before us is that Rule 8 of the Rules of Business should have been complied with." 20. "It is now well-known that in the event it appears from the order and the records produced before the court, if any occasion arises therefor that even if a valid order is not authenticated in terms of Clause (3) of Article 166 of the Constitution of India, the same would not be vitiated in law. Failure to authenticate an executive order is not fatal. The said provision is directory in nature and not mandatory. [See I.T.C. Bhadrachalam Paperboards and Another v. Mandal Revenue Officer, A.P. and Others (1996) 6 SCC 634 ]. Failure to authenticate an executive order is not fatal. The said provision is directory in nature and not mandatory. [See I.T.C. Bhadrachalam Paperboards and Another v. Mandal Revenue Officer, A.P. and Others (1996) 6 SCC 634 ]. From a perusal of the order dated 15.12.3003, it is evident that before the Hon'ble Minister all the relevant records were produced." 21. The Vigilance Department did not contend that the Hon'ble Minister did not have any jurisdiction. It accepted the said order. It was not challenged. Only when a new government came in, a request was made for reconsideration of the earlier order, as would be evident from the memo of the Secretary of the Department." In the case of Baij Nath Prasad Tripathi Vs. The State of Bhopal and another, AIR 1956, Supreme Court 494, the constitution bench held: "6............... it is difficult to appreciate how any Court can try the petitioners of these cases in the absence of a sanction in view of the mandatory provisions of s. 6 of the Prevention of Corruption Act, 1947. If no Court can take cognizance of the offences in question without a legal sanction, it is obvious that no Court can be said to be a Court of competent jurisdiction to try those offences and that any trial in the absence of such sanction must be null and void............." On the other hand, learned counsel for the C.B.I. Mr. Bireshwar Nath also cited the following cases in defence: - State of M.P. Vs. Dr. Krishna Chandra Saksena, 1997 Supreme Court Cases (Cri) 35, in which the Hon'ble Supreme Court has held that it is now well settled that at the stage of granting of sanction the accused need not be heard. This case has been dealt with different footing, therefore, it has not relevance in the matter. He also relied upon the case of Mohammed Iqbal Bhatti (Supra), but the same does not help him. This case has been dealt with different footing, therefore, it has not relevance in the matter. He also relied upon the case of Mohammed Iqbal Bhatti (Supra), but the same does not help him. I considered the matter deeply on the principles of sanction of prosecution as laid down by the Hon'ble Supreme Court hereinabove as well as the order passed by this Court in co-accused case and I arrive at conclusion that once the proceeding of the court below of co-accused has been quashed, there is no reason to adopt different criteria for the petitioner, therefore, I hereby quash the proceeding of Criminal Case No. 4 of 1997, R.C. No. 32-A of 1996 pending before the court of Special Judge (Anti - Corruption), Lucknow (West) and allow the petition.