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2016 DIGILAW 1238 (ALL)

PRADEEP KUMAR v. STATE OF U. P.

2016-04-06

MOHD.TAHIR, RAMESH SINHA

body2016
JUDGMENT Hon’ble Ramesh Sinha, J.—The present writ petition has been filed for quashing of the impugned order dated 2nd March, 2016 passed by the State Government. A mandamus is also sought for restraining the respondents from prosecuting the petitioner in pursuance of the alleged investigation carried out by the CBCID. 2. Brief facts of the case is that in the year 2010, the petitioner was posted as Additional District Magistrate (City), Allahabad and he was exercising the power of Prescribed Authority under Section 17 of the Arms Act. As such, the petitioner issued a notice for cancellation of two fire-arm licenses, namely, revolver bearing licence No. 551 of 1983 and rifle bearing licence no1205 belonging to one Ram Kishore Yadav. It is alleged that on 6.4.2010, an order was passed by the petitioner that “arguments have been concluded and licences have been cancelled” which was also found on the order sheet of case No. 56 of 2010 and 57 of 2010, but thereafter the matter was again posted on 13.4.2010 “For Orders” and the same was kept pending for a long time. On 27.5.2011, the said arms licences of Ram Kishore Yadav were restored by the petitioner in a collusive manner though the licences of the said two arms were cancelled by him on 6.4.2010. 3. One Vinay Kumar, who was alleged to be a stranger to the proceeding and was not a licensee of the said fire-arms, filed a Writ Petition No. 40817 of 2011 (Vinay Kumar v. State of U.P. and others) before this Court challenging the order dated 27.5.2011 passed by the petitioner initiated under the Arms Act against Ram Kishore Yadav, the licensee, and a plea of locus-standi was also raised by Ram Kishore Yadav before Writ Court, which dismissed the said writ petition vide order dated 14.10.2011 on the ground of non-maintainability of the petition at the instance of Vinay Kumar, but suo-motu taking into account the allegation levelled against the petitioner, ordered the State Government to make proper inquiry in the matter and the circumstances in which the order dated 27.5.2011 was passed by him and further directed the Chief Secretary, U.P. Government to enquire the matter either through Vigilance Establishment or through CBCID and submit report by 16.1.2012. 4. 4. Feeling aggrieved by the said order dated 14.10.2011, the petitioner preferred a Special Appeal No. 616 of 2014 (Pradeep Kumar and another v. Vinay Kumar and 8 others), in which a Division Bench of this Court on 1.9.2014 was pleased to direct that as an interim measure, further proceedings in Civil Misc.Writ Petition No. 40817 of 2011 which has already been disposed of on 14.10.2011, shall remain stayed. 5. Thereafter, Vinay Kumar further preferred a Crl. Misc. Writ Petition No. 25128 of 2015 before this Court, which was disposed of by a Division Bench of this Court on 18.6.2015 directing the Senior Superintendent of Police, Allahabad to conduct a fair and impartial investigation in the matter. Thereafter Vinay Kumar again preferred Crl. Misc. Writ Petition No. 29597 of 2015 (Vinay Kumar v. State of U.P. and 6 others), in which orders were passed on regular intervals by the Division Bench of this Court which was monitoring the investigation of the case in pursuance of the FIR dated 20.7.2014 which was registered as Case Crime No. 766 of 2014, under Section 218/120B I.P.C. and 13(2) of the Prevention of Corruption Act, 1988, Police Station Colonelganj, District Allahabad against the petitioner. 6. As the petitioner was a public servant, hence, the competent authority His Excellency the Governor of the State gave sanction for prosecution of the petitioner in pursuance of the FIR dated 20.7.2014 lodged against him vide order dated 2.3.2016. Hence, being aggrieved by the said order granting sanction for prosecution of the petitioner, the present writ petition has bee filed by the petitioner for quashing of the same. 7. Heard Sri Ravi Kant, learned Senior Advocate, assisted by Sri Imran Syed, learned counsel for the petitioner, Sri Nitin Srivastava, learned A.G.A. appearing for the State and perused the record. 8. It has been contended by the learned counsel for the petitioner that he does not assail the orders of this Court passed by this Court in Crl. Misc. Writ Petition No. 29597 of 2015 or any other orders and only submitted that that though the sanction has been granted for prosecution of the petitioner by the competent authority, but the sanction order does not disclose the reason or application of mind for prosecution of the petitioner. Misc. Writ Petition No. 29597 of 2015 or any other orders and only submitted that that though the sanction has been granted for prosecution of the petitioner by the competent authority, but the sanction order does not disclose the reason or application of mind for prosecution of the petitioner. He further submits that the investigation is still in progress and the sanction has been granted and till date no charge-sheet has been submitted. He further argued that law regarding grant of sanction for prosecution is well-settled. He submitted that as per judgment of the Hon’ble Apex Court, it has been repeatedly stated that sanctioning authority has to apply its mind to the documents on record and has to spell out reasons necessitating grant of sanction. 9. He urged that on a cursory perusal of the impugned order would demonstrate that the sanctioning authority has only recited the facts as stated by the CBCID and thereafter it has mechanically granted sanction. Therefore the sanction granted by the authority is non-est. 10. He further contended that the impugned order granting sanction being absolutely illegal, non-speaking, the same is devoid of any legal sanctity and is, therefore, illegal and unsustainable in law, hence, the same should be set aside. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgments of the Apex Court in C.B.I. v. Ashok Kumar Aggarwal, AIR 2014 SC 827 ; State of Maharashtra through Central Bureau of Investigation v. Mahesh G. Jain, (2013) 8 SCC 119 . 11. Per contra, learned AGA has opposed the payer for quashing of the impugned order and vehemently rebutted the contention of the learned counsel for the petitioner and submitted that from perusal of the impugned order, it is apparent that sanctioning authority has granted sanction for prosecution of the petitioner after considering all the materials on record which was placed before it by the State Government and after perusing the same, it has accorded sanction for prosecution of the petitioner, hence, there is no illegality in the order granting sanction for prosecution of the petitioner. The petition is devoid of merits and is liable to be dismissed. 12. Considered the submissions advanced by the learned counsel for the parties and perused the record. 13. The petition is devoid of merits and is liable to be dismissed. 12. Considered the submissions advanced by the learned counsel for the parties and perused the record. 13. It is an admitted fact that petitioner is a public servant and he was posted as the District Magistrate (City), Allahabad at the relevant point of time when he heard the case for cancellation of two fire-arm licenses, namely, revolver bearing licence No. 551 of 1983 and rifle bearing licence No. 1205 belonging to one Ram Kishore Yadav and it has been stated that on 6.4.2010 after hearing argument, the two fire-arm licneces of the said licensee was cancelled by him and the said order was found in the order sheet of the two cases, i.e., case No. 56 of 2010 and 57 of 2010. Subsequently, on 13.4.2010 the case was again put up “For Orders” and the matter was kept pending for several months and the licences of two fire-arms of the said licnesee was restored by the petitioner, though he has cancelled the licences of the said two fire-arms on 6.4.2010. As the petitioner is a public servant, hence, in order to launch prosecution against him, a valid sanction is required from the competent authority for his prosecution. From a perusal of the impugned order dated 2.3.2016 passed by the competent authority granting sanction for his prosecution in the present case, specially para-3 of the said order shows that considering the allegations which have been levelled against the petitioner, the State Government after considering the entire material on record alongwith all the complete evidences was satisfied that the petitioner is liable to be prosecuted in pursuance of the FIR dated 20.7.2014 which was registered as Case Crime No. 766 of 2014, under Section 218/120B I.P.C. and 13(2) of the Prevention of Corruption Act, 1988, Police Station Colonelganj, District Allahabad before the Court of competent jurisdiction and has accorded sanction for prosecuting the petitioner. 14. The contention of the learned counsel for the petitioner that the sanctioning authority has not applied its mind, nor has perused the documents and other relevant material on record before grant of sanction does not have any substance, as the competent authority has applied its mind while passing the impugned oder and has given valid reason for grant of sanction for prosecution of the petitioner. Moreover, the case law which has been cited by the learned counsel for the petitioner in the case of State of Maharashtra through Central Bureau of Investigation (supra) in which the Apex Court has held : “Grant of sanction is sacrosanct act and is intended to provide safeguard to a public servant against frivolous and vexatious litigations. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. Satisfaction of the sanctioning authority is essential to validate an order granting sanction. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that wold not vitiate the order of sanction. The adequacy of material placed before the sanctioning authority cannot be gone into by the Court as it does not sit in appeal over the sanction order. An order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity. When there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused.” 15. Hence, the said case does not help the petitioner as the impugned order is in-consonance with law settled by the Apex Court. 16. Moreover, the case law which has been cited by the learned counsel for the petitioner in the case of C.B.I. v. Ashok Kumar Aggarwal (supra), the proposition of law which has been enunciated in the said case law also cannot be disputed, but the facts of th present case is distinguishable from the facts of the said case. Hence, the same cannot be made applicable in the present case. 17. Hence, the same cannot be made applicable in the present case. 17. Thus,in view of the foregoing discussions, we do not find any flaw in the impugned order dated 2.3.2016 passed by the State Government granting sanction for prosecution of the petitioner. The petition lacks merit. It is accordingly, dismissed. 18. As the case is of the year 2010 and the FIR has been lodged in the year 2014, the Investigating Officer is directed the submit police report under Section 173(2) Cr.P.C. before the competent Court within one month from the date of production of a certified copy of this order before him by the petitioner. 19. Let a copy of this order be given to the learned AGA free of cost for its compliance. 20. The Registrar General shall send a copy of this order to the Chief Secretary, State of U.P. and S.P., CBCID, Circle Allahabad for its compliance.