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Allahabad High Court · body

2016 DIGILAW 3421 (ALL)

ASHOK KUMAR GUPTA v. STATE OF U. P.

2016-10-06

AMAR SINGH CHAUHAN

body2016
JUDGMENT : 1. The revisionist, Ashok Kumar Gupta, has preferred this Criminal Revision No. 6045 of 2010 against the order dated 11.11.2010 passed by the Special Judge (Anti Corruption) Varanasi in Special Trial No. 48 of 2007 arising out of Case Crime No. 54 of 2001 under Sections 467, 468, 409, 420, 471, 120B IPC read with Section 13 (1) C and Section 13 (2) of Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) (State of U.P. Vs. Ashok Kumar Gupta and others), P.S. Shankargarh, District Allahabad whereby the application of the accused-revisionist for discharge has been rejected. 2. The revisionist, Ashok Kumar Gupta, has also preferred this Criminal Revision No. 5673 of 2010 against the order dated 11.11.2010 passed by the Special Judge (Anti Corruption) Varanasi in Special Trial No. 56 of 2007 arising out of Case Crime No. 60 of 2001 under Sections 467, 468, 409, 420, 471, 120B IPC read with Section 13 (1) C and Section 13 (2) of Prevention of Corruption Act, 1988 (State of U.P. Vs. Ashok KUmar Gupta and others), P.S. Kaundhiyara, District Allahabad whereby the application of the accused-revisionist for discharge has been rejected. 3. The revisionist, Virendra Singh, has preferred this Criminal Revision No. 974 of 2011 against the order dated 11.11.2010 passed by the Special Judge (Anti Corruption) Varanasi in Special Trial No. 48 of 2007 arising out of Case Crime No. 54 of 2001 under Sections 467, 468, 409, 420, 471, 120B IPC read with Section 13 (1) C and Section 13 (2) of Prevention of Corruption Act, 1988 (State of U.P. Vs. Ashok KUmar Gupta and others), P.S. Shankargarh, District Allahabad whereby the application of the accused-revisionist for discharge has been rejected. 4. Since these three connected revisions involved the same point of determination, therefore, there are being heard and decided together by a common order with the consent of the parties. 5. The facts in nutshell which are necessary for the revision are that on the basis of the order of the U.P. Government Vigilance Department dated 4.4.1998, an open enquiry was made for construction of the Gramin Godam, Newaria, Uparhar, Vikas Khand Shankergarh, District Allahabad by C.I. Inspector of U.P. Vigilance Department. 5. The facts in nutshell which are necessary for the revision are that on the basis of the order of the U.P. Government Vigilance Department dated 4.4.1998, an open enquiry was made for construction of the Gramin Godam, Newaria, Uparhar, Vikas Khand Shankergarh, District Allahabad by C.I. Inspector of U.P. Vigilance Department. It was found in the investigation that the same was constructed under the supervision of the then Junior Engineer, Sri Virendra Singh of Vishv Bank Pariyojna Allahabad region and presently in Rural Engineering Service Prakhand Pratapgarh and Sri Ashok Kumar Gupta the then Assistant Engineer of Vishv Bank Pariyojna Allahabad and presently at Rural Engineer Service, Prakhand Banda. The revisionist Virendra Singh worked in this Pariyojna from 5.2. 1980 to 11.1.1988. The revisionist, Ashok Kumar Gupta worked in the Pariyojna from 19.8.1984 to 16.3.1988. During the enquiry by an Assistant Engineer, on the basis of its report dated 5.5.1989, it was concluded that on the basis of the false and forged entry in the document, the revisionists misappropriate the money and hence the FIR was lodged accordingly. Pursuant to FIR after conducting the investigation, charge sheet was submitted and the Special Judge (Anti Corruption) took the cognizance. On summoning, the revisionists moved an application for discharge from the charge levelled in the charge sheet under Sections 467, 468, 409, 420, 471, 120B IPC read with Section 13 (1) C and Section 13 (2) of Prevention of Corruption Act, 1988. On being heard the trial court rejected the application of discharge on the ground that the sanction order passed by the Principal Secretary under the authority of the Governor is valid and there is ample evidence to proceed against the revisionists. Being aggrieved and dissatisfied by the order of the trial court, the revisionists Ashok Kumar Gupta and Virendra singh have filed these three revisions. 6. Heard learned counsel for the revisionists, learned AGA and perused the record. 7. Main point of determination in these revisions is that whether sanction as alleged not having been given by the competent authority is invalid null and void and entire proceedings are without jurisdiction? 8. Another point for determination is that whether there is no substantial basis to make out the allegations by the prosecution against the revisionists? 9. 7. Main point of determination in these revisions is that whether sanction as alleged not having been given by the competent authority is invalid null and void and entire proceedings are without jurisdiction? 8. Another point for determination is that whether there is no substantial basis to make out the allegations by the prosecution against the revisionists? 9. It is submitted by the learned counsel for the revisionists that at the time of incident they were not the employee of the Government of U.P. but were employed under Vishv Bank Gramin Godam Pariyojna and their appointing authority was Chief Project Officer. The sanction given by the Principal Secretary of the Government of U.P. is not competent to grant sanction and thus it was an invalid sanction and this court cannot take cognizance of the offence without sanction. It is further submitted that there is no specific measurement taken by the enquiry committee to evaluate the quantity of the work done on the spot and thus there is no substantial basis to make over to the allegations by the prosecution. There is no evidence against the revisionists to support the allegation levelled by the prosecution. The revisionists relied upon the case of Virendra Pratap Singh Katiyar Vs. State of U.P. and another [AWC 1991 112] in which it has been held that trial without a valid sanction, where one is necessary under Section 6 of the Prevention of Corruption Act, 1947 is without jurisdiction. The revisionists again relied upon the case of R.S. Nayak Vs. A.R. Antulay [1984 SCC (Crl.) 172] wherein it was held by HOn'ble Apex Court that unless a sanction to prosecute the accused by the authority competent to remove him from his office was obtained, the accused is entitled to be discharged. 10. Per contra, learned AGA contends that there is a valid sanction given by the Principal Secretary after obtaining the permission from Hon'ble Governor of U.P. It is not averred by the revisionists that Secretary has no authority to grant the sanction. The accused persons are employed in connection with the affairs of the State. Thus, it cannot be said that sanction was an invalid sanction. It is further contended that there is sufficient material to frame the charge against the accused persons. 11. The accused persons are employed in connection with the affairs of the State. Thus, it cannot be said that sanction was an invalid sanction. It is further contended that there is sufficient material to frame the charge against the accused persons. 11. In the instant case, the parties are not at variance regarding the status of revisionists as public servant and are employed in Rural Engineering Department. It is not the case of the revisionists that Principal Secretary had no authority to pass the order of sanction on behalf of the State Government as they are originally were employed in Rural Engineering Department for which the sanction authority is the State Government. 12. Section 6 of the Prevention of Corruption Act, 1947 provides for a valid sanction as a precondition for a valid prosecution for the specified offences and the policy underlying in this section and other similar section is that there should not be any unnecessary harassment of the public servant. Section 6 of the 1947 Act is as quoted hereinunder:- "6. Previous sanction necessary for prosecution: (1) No Court shall take cognizance of an offence punishable under section 161, or section 164, or section 165 of the Indian Penal Code, or under sub section 2 or sub section (3-A) of section 5 of the Act alleged to have been committed by a public servant, except with the previous sanction. (a) in the case of a person who is employed in connection with the affairs fo the Union and is not removable from his office save by or with the sanction of the Central Government, of the Central Government. (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government. (c) in the case of any other person, of the authority competent to remove him from office. (2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (1) should be given by the Central or State Government or any other authority such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offences was alleged to have been committed." 13. There is nothing to show that the Chief Project Officer is competent to deal with the matter of sanction of prosecution against the revisionists as the revisionists were employee of the Rural Engineering Department. In the case of Shivendra Kumar Vs. State of Maharashtra [ AIR 2000 SC 3079 ] it has been held that the protection under Section 6 of the Act 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. 14. In the instant case, the sanction order passed by the Principal Secretary is valid sanction order and same cannot be said to be bad in the eye of law. 15. So far as the other grounds of the revisionists are that there is no ample evidence against the revisionists. From the perusal, it is clear that allegations against the revisionists are substantiated by the evidence forming prima facie case against the accused to proceed with the case. In the case of Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another (2008) 2 SCC 561 , the Hon'ble Apex Court in paragraph 11 of the judgment held as under: "It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence." 16. and the Hon'ble Apex Court in the case of Rajbir Singh Vs. State of U.P. and others [2006 (55) ACC 308 SC] held that charge can be framed even on the basis of the grave suspicious circumstances. 17. A three Judges Bench of Hon'ble Supreme Court in the case of State of Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC 659 after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned (ii) Sections 239 and 240 relatable to trial of warrant cases, and (iii) Sections 245(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus: "32 ............. If on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the courts were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into, the materials brought on record by the prosecution has to be accepted as true at that stage." 18. In State of M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338 , the Hon'ble Supreme court held in paragraph 7 as under: "7.The crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused." 19. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused." 19. In the case of State of Orissa Vs. Debendra Nath Padhi, (2005)1 SCC 568 , Hon'ble Supreme court while considering the question whether the trial court can at the time of framing of charges consider the material filed by the accused, answered in negative in following words: "18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced...... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It is only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression" hearing the submissions of the accused" cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. It is only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression" hearing the submissions of the accused" cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police." 20. Hon'ble Supreme Court in Sajjan Kumar Vs. Central Bureau of Investigation, (2010)9 SCC, held in paragraph 24 of the judgment as under: "At the stage of framing of charge under section 228 Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyze all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other." 21. In the instant case, there is sufficient ground for presuming that accused have committed the offence of embezzlement/ misappropriation. 22. In view of the above discussion, legality, propriety or correctness of the order, the revisions being lack of merit, are liable to be dismissed. 23. The revision is dismissed, accordingly. 24. The case is too old and efforts are being made to delay the disposal of case, therefore, it is directed that the trial be expedited. 25. There is no order for cost.