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Allahabad High Court · body

2012 DIGILAW 1640 (ALL)

ANIL KUMAR v. STATE OF U. P.

2012-07-24

AMAR SARAN, PANKAJ NAQVI

body2012
JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard learned counsel for the petitioner and the learned A.G.A. for the respondents. 2. By means of this writ petition, the petitioner challenges an order dated 9.8.2010, passed by Deputy Secretary, U.P. Government, Lucknow, whereby the Principal Secretary (Food and Civil Supplies) U.P. Government, has been requested to reconsider/review the earlier decision of sanction of prosecution, of the petitioner. 3. The petitioner at relevant time was posted in different districts as District Supply Officer and was, thereafter, promoted as Deputy Commissioner (Food), District Bareilly, Agra and Kanpur Mandal. While he was posted as District Supply Officer at Meerut, between July, 1985 to June, 1986, it appears that during the year 1983 onwards, some forged coal licences were issued in favour of private persons. These licences became a subject-matter of inquiry and with the approval of the competent authority, three First Information Reports were lodged by Economic Offences Wing (Police) under Sections 420/467/468/471/ 409/201 and 120-B at different police stations of Meerut. The three FIRs bearing Nos. 194/1995, 201/1995 and 203/1995, were lodged on 25.5.1995, by the police (E.O.W.). The date of occurrences are shown as 8.8.1984, 6.2.1986 and 24.5.1995. It is alleged that during investigation, as nothing incriminating was found against the petitioner, hence, the Under Secretary of the State Government vide his order dated 8.4.2009, addressed to the D.I.G., Police (E.O.W.) Lucknow, apprised him that on the basis of materials collected by the Investigating Officer, sanction of prosecution cannot be granted against the petitioner. Although, the petitioner attained superannuation on 31.1.2010 as Deputy Commissioner (Food), Agra Division, Agra and has been getting his regular pension and other retiral benefits, yet an order dated 9.8.2010 has been issued by the Deputy Secretary of the State Government, apprising that in view of the report submitted by the Economic Offences Wing, sufficient evidence has been found against the petitioner and one Amrendra Nigam, the then District Supply Officer, and therefore the issue of sanction of prosecution be reviewed / reconsidered afresh. 4. It is submitted by the learned counsel for the petitioner that once sanction of prosecution has been rejected by an order dated 9.8.2010, it was no longer open for the State Government to initiate review of the decision, afresh. He placed reliance on Mahendra Lal Das v. State of Bihar, AIR 2001 SCC 2989, to contend that delayed sanction is enough to vitiate the prosecution. He placed reliance on Mahendra Lal Das v. State of Bihar, AIR 2001 SCC 2989, to contend that delayed sanction is enough to vitiate the prosecution. He further submits that the impugned order is also in teeth of Civil Services Regulations as Article 351-A prohibits initiation of any inquiry or sanction for prosecution after 4 years of occurrence, whereas in the present case sanction is sought to be obtained after more than 28 years of the occurrence of the event and subjecting the petitioner to trial would be an exercise in futility. 5. The issue that sanction is only an administrative function is no longer res integra. At the stage of granting sanction, what is to be seen is that the necessary facts collected during investigation, prima facie constituting the offences, are to be placed before the sanctioning authority and the authority on the materials so produced has to satisfy itself to either grant / refuse sanction. 6. The Apex Court in Superintendent of Police (CBI) v. Deepak Chaudhary, 1995(6) SCC 225 , has laid the aforesaid proposition in categorical terms which has been reiterated in Subramaniam Swamy v. Man Mohan Singh, 2012 (3) SCC 64 . 7. The Constitution Bench (7 Judges) of the Apex Court in P Ramachandra Rao v. State of Karnataka, 2002(4) SCC 578 , held that no period of limitation can be prescribed on which the trial of a criminal case or criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. It held in paragraph 29(4) as under : “It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause, Raj Deo Sharma(I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Deo Sharma cases (I) and (II). The criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause case (I), Raj Deo Sharma cases (I) and (II). At the most the period of time prescribed in those decisions can be taken by the Courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A R Antulay case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the Court to terminate the same and acquit or discharge the accused”. 8. The Apex Court in State of Punjab and another v. Mohammed Iqbal Bhati, 2009(17) SCC 92 , observed that on fresh materials the sanctioning authority can review an order of sanction. 9. Before adverting to the submission raised by the learned counsel for the petitioner that the impugned order is in teeth of Regulation 351-A of the Civil Services Regulations, it would be apt to quote the said Regulation as under : 351-A- “The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement: Provided that : (a) Such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment - (i) shall not be instituted save with the sanction of the Governor. (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings, and (iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. (b) judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with Sub-clause (ii) of Clause (a) and (c) the Public Service Commission, U.P., shall be consulted before final orders are passed. Explanation.—For the purpose of this article- (a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or if the officer has been placed under suspension from an earlier date, on such date; and (i) in the case of criminal proceedings, on the date on which a complaint is made, or a charge-sheet is submitted, to criminal Court; and (ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made, to a Civil Court. Note: As soon as proceedings of the nature referred to in this article are instituted the authority which institutes such proceedings shall without delay intimate the fact to the Audit Officer concerned. 10. A perusal of the aforesaid provision would manifest that the Governor reserves to himself the power and right to withhold and withdraw a pension or any part of it, whether permanently or for a specified period and that he also has a right to order recovery of pension of the whole or part of any pecuniary loss caused to the Government, when it is found in a departmental or judicial proceedings that the delinquent was guilty of grave misconduct or has caused pecuniary loss to the Government by his misconduct or negligence while he was continuing in service including the period of his re-employment after retirement, subject to the restrictions/conditions laid in the proviso appended to the said regulation. Nowhere does the said regulation prohibits criminal prosecution. Thus, the submission of the learned counsel for the petitioner that the impugned order is violative of Regulation 351-A of the Civil Services Regulations is misconceived, and is rejected. 11. Nowhere does the said regulation prohibits criminal prosecution. Thus, the submission of the learned counsel for the petitioner that the impugned order is violative of Regulation 351-A of the Civil Services Regulations is misconceived, and is rejected. 11. The legal position which emerges from the aforesaid decisions is that grant of sanction is purely an administrative act, which is to be taken on the basis of available materials and on the consideration that materials so collected prima facie constitute the offence which is sufficient for grant of sanction. Merely on the ground of delay, criminal proceedings cannot be quashed as other attending circumstances will have to be looked into such as the nature of case and reasons for delay etc. Decision refusing sanction can be reviewed, if subsequent materials are brought on record before the sanctioning authority. 12. Merely on the ground of delay, criminal proceedings cannot be quashed as other attending circumstances will have to be looked into such as the nature of case and reasons for delay etc. Decision refusing sanction can be reviewed, if subsequent materials are brought on record before the sanctioning authority. 12. The impugned order dated 9.8.2010 recites that the report of Economic Offences Wing states as follows : ¼1½ vfUre izxfr vk[;k ,oa foospd }kjk fdrk dh x;h dslMk;jh ds v/;;u ls izdk’k esa vk;k gS fd Jh vfuy dqekj] rRdk0 ftykiwfrZ vf/kdkjh us viuh fu;qfDr ds e/; esllZ flag ,.M dEiuh esjB dks ykblsal ua0&130@dksy@VSIijsjh@86&87] fnukad 05&04&1986 dks fuxZr fd;kA ¼2½ vfUre izxfr vk[;k ,oa foospd }kjk fdrk dh x;h dslMk;jh ds v/;;u ls izdk’k esa vk;k gS fd Jh vejsUnz fuxe] rRdk0 ftykiwfrZ vf/kdkjh us viuh fu;qfDr ds e/; esllZ flag ,.M dEiuh esjB dks ykblsal ua0&139@87] fnukad 13&08&1987 dks fuxZr fd;kA ¼3½ vfUre izxfr vk[;k ,oa foospd }kjk fdrk dh x;h dslMk;jh ds voyksdu ls ik;k x;k gS fd Jh vfuy dqekj o Jh vejsUnz fuxe] rRdk0 ftykiwfrZ vf/kdkjh us viuh fu;qfDr ds e/; vUos-&45@95] 48@95 ,oa 49@95 ls QthZ dks;yk ykblsal /kkjdksa dks le;≤ ij dks;yk LikUlfjax djus dh vuqefr iznku dh gSA ¼4½ vfUre izxfr vk[;k ,oa foospd }kjk fdrk dh x;h dslMk;jh ds voyksdu ls ik;k x;k gS fd Jh vfuy dqekj o Jh vejsUnz fuxe ls LikUlfjax fd;s x;s dks;yk dk fu;ekuqlkj HkV~Vk ekfydksa dks forj.k ugha djk;k rFkk lEcfU/kr jftLVj esa izfof"V u djkuk o QtZ vfHkys[kksa ds vk/kkj ij QeZ dk iath;u djuk ik;k x;k gSA ¼5½ vfUre izxfr vk[;k ds voyksdu ls QthZ cSad xkj.Vh izek.k i=] irk] laxzg LFky] fcdZ dj iath;u la[;k vkfn ls lEcfU/kr izi=ksa ,oa QeZ dk lR;kiu fd;s fcuk gh mDr QtZ vfHkys[kksa ds vk/kkj ij QeZ dk iath;u djuk ik;k x;k gSA ¼6½ vfUre izxfr vk[;k ds voyksdu ls vfHk;qDrksa ds lkFk lkaB xkaB djds fujUrj dks;ys dh laLrqfr djuk ik;k x;k gSA 13. The impugned order recites that there are sufficient materials warranting sanction for prosecution and accordingly the State Government has been requested to reconsider the issue of sanction qua the petitioner. Moreover, the impugned order is only a communication between the Deputy Secretary and the Principal Secretary of the state Government which is not even addressed to the petitioner. 14. The impugned order recites that there are sufficient materials warranting sanction for prosecution and accordingly the State Government has been requested to reconsider the issue of sanction qua the petitioner. Moreover, the impugned order is only a communication between the Deputy Secretary and the Principal Secretary of the state Government which is not even addressed to the petitioner. 14. The writ petition lacks merits and is accordingly dismissed, without any order as to costs. ——————