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2018 DIGILAW 452 (ALL)

RAM CHANDRA SAXENA v. STATE OF Uttar Pradesh

2018-02-20

CHANDRA DHARI SINGH

body2018
JUDGMENT Hon’ble Chandra Dhari Singh, J.—These four applications, arising out of the common judgmment, are therefore being taken up together for disposal. 2. Heard Sri Shiv Prasad Shukla, learned counsel for the applicant, Sri Siddharth Sinha, learned counsel for the respondent No. 2 and learned A.G.A. for the State-respondent No. 1 and perused the entire record. 3. These applications under Section 482 Cr.P.C. have been filed for quashing of the order dated 9.1.2018 passed by the Court of Special Judge (P.C.) Act, Lucknow in respect of charge-sheet filed in F.I.R. dated 31.5.2001 registered at police station Chauk, District Lucknow, under Sections 467, 468, 420, 421, 120-B I.P.C. & 13(i) (d), 13(2) of Prevention of Corruption Act in criminal case No. 86 of 2007 (State of Uttar Pradesh v. R.C. Saxena) against the applicant in respective applications. 4. Brief facts of the case I. After completing M.D. in Pharmacology, the applicant was appointed as confirmed Lecturer in the year 1968 in the King George Medical College, Lucknow. The applicant in due course of time and by way of promotion was appointed by the Executive Council of the Lucknow University on the post of Reader w.e.f. 31.3.1983 and subsequently confirmed on this post on 13.9.1998 by the Executive Council, Lucknow University, as then King George Medical College was affiliated with Lucknow University. The status of King George Medical College was enhanced by the Uttar Pradesh Government. The King George Medical College became the King George Medical University having an independent status of as “University”. In the meantime by means of office order dated 31.7.1989, the applicant was promoted to the post of Professor on ad hoc basis for initial period of one year or till the selection of suitable candidates by the Public Service Commission, whichever is earlier. The applicant had completed a diploma course from United Kingdom to enhance his knowledge in the field of clinical pharmacology and accordingly the applicant performed his duties to the best satisfaction of his higher authorities and to the best of his knowledge and capacity. II. The applicant has established first clinical pharmacology units C.D.R.I in K.G.M.C., Lucknow and has contributed the great deal in the field of medicine. The pharmacology department of K.G.M.C., Lucknow started “Diploma Courses” in the pharmacy which was two years diploma course. II. The applicant has established first clinical pharmacology units C.D.R.I in K.G.M.C., Lucknow and has contributed the great deal in the field of medicine. The pharmacology department of K.G.M.C., Lucknow started “Diploma Courses” in the pharmacy which was two years diploma course. In the year 1998, as per Bye laws and ordinance of Lucknow University in regard to this diploma course, 51 seats were reserved for Indian Nationals, while 9 seats were reserved for Non Residence Indian (N.R.I.) III. The examination of the aforesaid 51 seats was conducted by the pharmacology department of the “Medical College” and being the Professor and Head of the Pharmacology Department, the applicant performed his duties as per instructions of the then Principal of the Medical College. It was the duty of the petitioner to conduct this examination in pharmacology department in a fair manner and to take all appropriate steps to declare results of all 60 seats of the diploma course with due care and caution and under his control. IV. Some irregularities were found in preparing the result of the said Diploma Course entrance exams and when it came to the notice of the applicant, who was the Professor and Head of the Pharmacology Department, he immediately wrote letters to the then Vice-Chancellor, Lucknow University, Chancellor the Hon’ble Governor and the Uttar Pradesh Government against the authorities and officers of the K.G.M.C., Lucknow who were responsible for preparing the results. The complaint against the officers of Medical College, Lucknow, compelled the authorities to take serious view and even the F.I.Rs. were registered against the Superior Officers of University and Medical College. V. The various F.I.Rs. were also lodged against the applicant. The entire cases have been handed over to the State Vigilance Establishment C.I.S. Lucknow. The C.I.S., Lucknow made a request to the then Vice-Chancellor, Chhatrapati Sahu Ji Mahraj University (K.G.M.C.) to grant prosecution sanction against the applicant. The Vice-Chancellor of Chatrapati Sahuji Maharaj, Medical University, Lucknow vide order dated 14.5.2007 granted prosecution sanction against the applicant to prosecute him in case crime No. 223 of 2001, under Sections 467, 468, 420, 471 and 120-B I.P.C. read with Section 13 (1) (d) & 13 (2) of Prevention of Corruption Act relating to P.S.Chowk, Lucknow. VI. The applicant has approached this Court assailing the sanction order dated 14.5.2007 in Writ Petition No. 3359 (M/B) of 2010. VI. The applicant has approached this Court assailing the sanction order dated 14.5.2007 in Writ Petition No. 3359 (M/B) of 2010. This Court has directed to the applicant to challenge the sanction order dated 14.5.2007 before the Court below. VII. The applicant challenged the order of sanction dated 14.5.2007 by filing discharge application before the Court below in the month of May, 2010. The discharge application was rejected vide order dated 9.1.2018 by the Court below. 5. Sri Shiv Prasad Shukla, learned counsel for the applicant contended that the Vice-Chancellor of the Chhatrapati Sahuji Mahraj Medical University is not a competent authority to grant the sanction of prosecution against the applicant. It is the Executive Council of Chhatrapati Sahuji Mahraj Medical University, who is the appointing authority of the applicant and have the powers to remove or dismiss the applicant and in such a way, only appointing authority would be the competent authority to grant sanction of prosecution. He further contended that the Uttar Pradesh State Universities Act, 1973 deals with the powers and authorities of the universities and its chapter V Section 19 deals with the authorities of the University, Section 19 (a) the Executive Council, Section 20 (1) deals with Constitution of Executive Council. 6. The submission made by the learned counsel for the applicant that sanction of the prosecution was granted by the Vice-Chancellor of the University on 14.5.2007 after seven years of the retirement of the applicant without having authority under the Statute. The Vice-Chancellor is neither the competent authority nor is an authorized person to grant a legal sanction for prosecution of any Teacher of the University. As per the law and the act of the Uttar Pradesh State University Act, 1973 and the University of Lucknow Act,1996, it is only the Executive Council of the University which is only authority of the University to grant the sanction to prosecute the teacher. The present applicant retired from service on 5.1.2000. 7. It is further submitted that the sanction order dated 14.5.2007 of the Vice-Chancellor is contrary to provisions of the Uttar Pradesh University Act as well as law established. It was never put up before the Executive Council of the Medical University. The Vice-Chancellor on his own behalf go through the contents of the investigation/material placed by the vigilance department and granted prosecution sanction without any authority under law. 8. It was never put up before the Executive Council of the Medical University. The Vice-Chancellor on his own behalf go through the contents of the investigation/material placed by the vigilance department and granted prosecution sanction without any authority under law. 8. Learned counsel for the applicant submitted that the applicant is public servant under Section 21 of the I.P.C. and, therefore, the Investigating Agency sought permission of prosecution sanction as required under the law for which only Executive Council is competent. The Vice-Chancellor who granted sanction of prosecution to the applicant is illegal, arbitrary and contrary to provisions of the Act. 9. He while placing reliance on the decisions of the Hon’ble Supreme Court in the case of Nanjappa v. State of Karnataka, (2015) 14 SCC 186 and Vineet Narain and others v. Union of India and another, (1998) 1 SCC 226 . In the case of Vineet Narain (supra), it has been held in para-15 of the judgment that time limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG’s office. He relied upon a judgment of the Hon’ble Supreme Court in the case of Devinder Singh and others v. State of Punjab through CBI, (2016) 12 SCC 87 10. The submission of the applicant is that in view of the decisions of Hon’ble Supreme Court, in case sanction is necessary, it has to be decided by the competent authority. Sanction has to be issued on the basis of sound objection assessment. 11. It is contended that in absence of valid sanction, Court is not competent to take a cognizance or tried the accused. In the instant case sanction is not valid as it was not granted by the competent authority. Therefore, the concerned Magistrate has passed the impugned order dated 9.1.2018 erroneously arbitrary and illegally, therefore, the order is liable to be quashed. 12. Learned counsel for the applicant submitted that Executive Council is removable authority of the Professor. The petitioner being retired Professor could only be removed by the Executive Council. Thus, sanction of prosecution to prosecute the applicant could only be granted by the Executive Counsel of the University. 13. 12. Learned counsel for the applicant submitted that Executive Council is removable authority of the Professor. The petitioner being retired Professor could only be removed by the Executive Council. Thus, sanction of prosecution to prosecute the applicant could only be granted by the Executive Counsel of the University. 13. Sri Siddharth Sinha, learned counsel for the respondent No. 2 submitted that no sanction is required to prosecute the Government servant after the retirement under the Prevention of Corruption Act. As Section of 19 (1) of the Prevention of Corruption Act clearly states that sanction is required for any person who “is” Government servant. He further contended that in the present case the petitioner has retired on 5.1.2000. 14. It is submitted that in the present case the petitioner is alleging that the Vice-Chancellor of the K.G.M.C. is not the sanctioning authority. The Executive Council (fromed under Section 24 of the K.G.M.U. Act 2002) is the sanctioning authority. It is made clear that the Vice-Chancellor is the Chairman of the Executive Council. The sanctioning order has been issued by the Vice-Chancellor as the Chairman of the Executive Council. Under Section 17 of the KGMU Act, the Vice-Chancellor will give effect to the decisions of the Executive Council. 15. He further contended that University (K.G.M.U.) is governed by the King George Medical University Act, 2002. It clearly states that the Vice-Chancellor gives effect to the decisions of the Authorities of the University as mentioned in Section 17 of the K.G.M.U. Act. The Executive Council is formed under the chapter Authorities of University (Section 24 of KGMU Act, 2002). Section 17 of the KGMU Act also makes the Vice-Chancellor, the Chairman of the Executive Council. He further submitted that the Sanctioning authority to be equal or higher than the removing authority. The matter pertains to the year 1998 and sanction order passed by the Vice-Chancellor being chairperson of the executive council is a valid sanction. Therefore, the instant petition deserves to be dismissed. 16. In this case several questions are involved as follows: (a) whether in view of the provisions contained in the statute of K.G.M.U., Vice-Chancellor is competent authority to grant a sanction to prosecute the applicant ? (b) Whether the prosecution or other legal proceedings relating to the applicant can be instituted without valid sanction? 16. In this case several questions are involved as follows: (a) whether in view of the provisions contained in the statute of K.G.M.U., Vice-Chancellor is competent authority to grant a sanction to prosecute the applicant ? (b) Whether the prosecution or other legal proceedings relating to the applicant can be instituted without valid sanction? (c) Whether in view of Section 19 (1) of the Prevention of Corruption Act, sanction is required to prosecute the present applicant post retirement under the Prevention of Corruption Act ? 17. I have considered the rival submission made by the learned counsel for the parties and perused the material on record. Before I proceed to examine the impugned orders of the Court below and the facts of the case, it may be desirable to refer to settle legal proposition which has to be appeared in the instant case. 18. The executive council is formed under Chapter of authorities of University as per Section 17 of the K.G.M.U. Act, 2002 which is quoted as follow : “17. (1) The Vice-Chancellor shall be the principal executive and academic officer of the University and shall— (a) exercise general supervision and control over the affairs of the University, (b) give effect to the decisions of the authorities of the University, (c) in the absence of the Chancellor, preside at meetings of the Court and at any convocation of the University, (d) be responsible for the maintenance of discipline in the University including the prohibition of any violent or indecent ragging of fresh students by their seniors. (e) be responsible for holding and conducting the University examinations properly and at due times and for ensuring that the results of such examinations are published expeditiously and that the academic session of the University starts and ends on proper dates. (2) He shall be an ex-officio member and chairman of the Executive Council the Academic Council and the Finance committee. (3) He shall have the right to speak in and otherwise to take part in the meeting of any other authority or body of the University but shall not by virtue of this sub-section be entitled to vote. (2) He shall be an ex-officio member and chairman of the Executive Council the Academic Council and the Finance committee. (3) He shall have the right to speak in and otherwise to take part in the meeting of any other authority or body of the University but shall not by virtue of this sub-section be entitled to vote. (4) It shall be the duty of the Vice-Chancellor to ensure the faithful observance of the provisions of this Act, the statutes and the ordinances and he shall without prejudice to the power of the Chancellor under Sections 15 and 53 possess all such powers as may be necessary in that behalf. (5) The Vice-Chancellor shall have the power to convince or cause to be convened meetings of the Executive council the Court the Academic council and the Finance committee. Provided that he may delegate this power to any other officer of the University. (6) Where any matter other than the appointment of teacher of the University is of urgent nature requiring immediate action and the same could not be immediately dealt with by any officer or the authority or other body of the University empowered by or under this act to deal with it the Vice-Chancellor may take such action as he may deem fit and shall forthwith report the action taken by him to the chancellor and also to the officer, authority or other body who or which in the ordinary course would have dealt with the matter. Provided that no such action shall be taken by the Vice-chancellor without the previous approval of the chancellor if it would involve a deviation from the provisions of the statutes or the ordinances. Provided further that if an officer authority or other body is of opinion that such action ought not to have been taken he or it may refer the matter to the chancellor who may either confirm the action taken by the Vice-chancellor or annul the same or modify it is such manner as thinks fit and thereupon it shall cease to have effect or as the case may be, take effect in the modified form, so however, the such annulment or modification shall be without prejudice to the validity of anything previously done by or under the order of the Vice-Chancellor. Provided also that any person in the service of University who is aggrieved by the action taken by the Vice-Chancellor under the sub-section shall have the right to appeal against such action to the executive council within three months from the date on which decision on such action is communicated to him and thereupon the Executive Council may confirm, modify or reverse the action taken by the Vice-Chancellor, (7) Nothing in sub-section (6) shall be deemed to empower the Vice-Chancellor to incur any expenditure not duly authorized and provided for in the budget. (8) Where the exercise of the power by the Vice-Chancellor under sub-section (6) involves the appointment of an officer such appointment shall terminate on appointment being made in the prescribed manner or on the expiration of a period of six months from the date of the order of the Vice-Chancellor, whichever is earlier. (9) The Vice-Chancellor shall exercise such other powers as may be laid down by the statutes and ordinances.” 19. The statute of 2011 of Chhatrapati Shahuji Maharaj Medical University (presently known as K.G.M.U) entails the duties of the Vice-Chancellor as follows : “(1) The Vice-Chancellor shall be appointed from amongst the eminent persons of the country or abroad having sufficient administrative experience. (2) The Vice-Chancellor shall be appointed in the manner laid down in the Act and he shall perform all the duties and exercise all the powers as laid down in the Act and Statutes. (3) The Vice-Chancellor shall be responsible and answerable to all the matters relating to the University alongwith all hospitals attached to it. (4) All the employees of the University including that of its attached hospitals (excluding affiliated ones) shall subservient and shall work under the administrative control of the Vice-Chancellor. (5) The Vice-Chancellor being the chairman of the Executive Council, Academic Council, Admission Committee, Examination Committee, Finance Committee, Hospital Advisory Committee, Selection Committee, Disciplinary Committees, Seniority Committee, Court and other Statutory Committees shall be responsible for promoting and upgrading the Academic/Research and training activities, creating positive innovation, utilization of potential and talents of the teachers and other staff for placing the university as one among the best medical institution in the country and abroad. (6) The Vice-Chancellor shall be responsible for maintenance and upliftment of the standard of medical education in the University,introducing innovation, new and updated technology, different courses relevant to present and future needs in the field of medical education and training and shall be solely responsible for total governance of the University including its associated Hospitals. (7) The Vice-Chancellor shall ensure proper conduct and expected performance of all the teaching staff, officers of the University, medical superintendents, persons on deputation to the University, medical superintendents, persons on deputation to the University, nurses and Class III and IV employees. He shall take necessary action as deemed fit to accomplish it. (8) The Vice-Chancellor shall be responsible for maintenance and improvement of the discipline, academic, ambience, work culture, accountability and academic/Financial/Ethical integrity among the officers,teachers/non-teaching staff including the students of the University. He shall take necessary action as deemed proper to accomplish it. (9) The Vice-Chacellor shall make special efforts to ensure that an updated Central Library is made available alongwith the proper communication and networking facilities to provide the necessary boost for academic and Research publications. (10) The Vice-Chancellor, in order to promote an academic excellence, shall make special efforts to establish academic/professional collaboration and exchange programmes for Faculty/students/other employees as applicable with the eminent medical institutions in the country and abroad. (11) The Vice-Chancellor shall make special efforts to provide an updated/specialized infrastructure for patient care and to take necessary steps/action for further improvement and extension of the attached Hospitals and their services. (12)The Vice-Chancellor shall be responsible to provide updated professional teaching/training programes and he shall also ensure the accountability of the Officers, Faculty, Medical Superintendents, Residents, Employees, Nursing staff, Para Medical Staff and others in terms of their duties and shall take necessary action as deemed fit to accomplish it. (13) The Vice-Chancellor shall have the power to suspend a teacher/an officer or any other employee whose appointing authority is Vice-Chancellor or Executive Council of the University including that of attached hospitals who if in his opinion wilfully omits or refuses to carry out provisions of the Act/Statute or abuses the power vested in him and if it appears to the Vice-Chancellor that his continuance is detrimental to the interest of the University. If found guilty, the case of a teacher or an officer alongwith the recommendation of the Vice-Chancellor for a proposed punishment including the termination/dismissal from the service shall be placed before the Executive Council for necessary action. (14)The Vice-Chancellor shall also encourage the public-private participation for ensuring better facilities and academic ambiance in the institutions. (15)The Vice-Chancellor when on short leave, personal or official, shall request any of the Senior Professors to look after the routine work of the University in his absence. (16)The Vice-Chancellor shall also make efforts to raise donation and funds from the alumuni of Chhatrapati Shahuji Maharaj Medial University and erstwhile King George Medical University and others to be utilized for up-gradation of the University. (17) The Vice-Chancellor shall have power to call for such documents and information from an affiliated or recognized college or institutes, in respect of any matter connected with teaching, examination, research, finance or any matter affecting the discipline or efficiency of teaching in the college or institutes, as he think fit.” 20. Sections 19 and 21 of Chapter V of the Uttar Pradesh State University Act, 1973 reads as under: “19. Authorities of the University.—The following shall be the authorities of the University - (a) the Executive Council; (b) the Court; (c) the Academic Council; (d) the Finance Committee; (e) the Boards of Faculties; (f) the Selection Committees for appointment of teachers of the University; (g) the Admissions Committee; (h) the Examinations Committee; and (i) such other authorities as may be declared by the Statutes to be authorities of the University 21. Powers and duties of Executive Council.—(1) The Executive Council shall be the principal executive body of the University and subject to the provisions of this Act, have the following powers, namely - (i) to hold and control the property and funds of the University; (ii) to acquire or transfer any movable or immovable property on behalf of the University; (iii) to make, amend or repeal Statutes and Ordinances; (iv) to administer any funds placed at the disposal of the University for specific purposes; (v) to prepare the budget of the University; (vi) to award scholarship, fellowships, bursaries, medals and other rewards in accordance with the Statutes and Ordinances; (vii) to appoint officers, teachers and other employees of the University and to define their duties and the conditions of their service, and to provide for the filling of temporary casual vacancies in their posts; (viii) [* * *] to fix the fees, emoluments and traveling and other allowances of the examiners;” 21. Section 197 Cr.P.C. reads as under: “197.Prosecution of Judges and public servants.— (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.” 22. Section 19 (3) (c) Prevention of Corruption Act,1988 reads as under : “19.(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; (b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. 23. The relevant portion of the statement of objects and reasons of the Prevention of Corruption Act, 1988, reads as follows : “2. The Prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee. 23. The relevant portion of the statement of objects and reasons of the Prevention of Corruption Act, 1988, reads as follows : “2. The Prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abet them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attachment of ill-gotton wealth obtained through corrupt means, including from transferees of such wealth. The Act seeks to incorporate all these provisions with modifications so as to make the provisions more effective in combating corruption among public servants.” 3. The Act inter alia, envisages widening the scope of the definition of the expression “public servant”, incorporation of offences under Sections 161 to 165A of the Indian Penal Code, enhancement of penalties provided for these offences and incorporation of a provision that the order of the trial Court upholding the grant of sanction for prosecution would be final if it has not already been challenged and the trial has commenced. In order to expedite the proceedings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of say and exercise of powers of a revision on interlocutory orders have also been included.” (emphasis supplied) The learned Solicitor General Salve submitted that inherent jurisdiction of a Court could not be exercised if there was a specific provision for redressal of the grievances of the aggrieved party or against an express bar of law engrafted in any other provision. He further submitted that inherent jurisdiction had to be very sparingly exercised only to prevent abuse of process of any Court or to secure the ends of justice. In support of this submission he relied upon the cases of Madhu Limaye v. The State of Maharashtra, 1977 (4) SCC 551 , Janata Deal v. H.S. Chowdhary and others, 1992 (4) SCC 305 and Indra Sawhney v. Union of India and others, 2000 (1) SCC 168 . We have heard the parties. In support of this submission he relied upon the cases of Madhu Limaye v. The State of Maharashtra, 1977 (4) SCC 551 , Janata Deal v. H.S. Chowdhary and others, 1992 (4) SCC 305 and Indra Sawhney v. Union of India and others, 2000 (1) SCC 168 . We have heard the parties. Section 19(3)(c) of the said Act reads as follows : “(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).- xxx xxx xxx (c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.” 24. In the present case the F.I.R. has been lodged against the applicant and the case has been handed over to the State Vigilance Establishment C.I.S. Lucknow. The C.I.S., Lucknow made a request to the then Vice-Chancellor, Chhatrapati Sahu Ji Mahraj University to grant prosecution sanction against the applicant. The same was granted by the Vice-Chancellor of the University to prosecute the applicant under Section 467, 468, 420, 421, 120-B I.P.C. & 13(1) (d) 13(2) of Prevention of Corruption Act, police station Chauk, District Lucknow. 25. Bare reading of the statute, it is clear that the Vice-Chancellor of Chhatrapati Sahu Ji Mahraj University is not a competent authority to grant sanction of prosecution against the applicant and it is only Executive Council of Chhatrapati Sahu Ji Mahraj University, who is appointing authority to grant sanction to prosecute the applicant. 26. In the same Act the Vice-Chancellor shall be a whole time salaried officer of the University. Under the section of powers and duties of Vice-Chancerllor, it adds that he shall exercise general supervision and shall be given effect to the decisions of the authorities of the University. It shall be the duty of the Vice-Chancellor to ensure the faithful observance of the provisions of this Act. The Registrar of the University wrote a letter on 23.9.2005 to the applicant about the decision of the Executive Council of the Lucknow University in its meeting held on 23rd January, 2001 and the decision taken in the meeting held on 22.2.2001, the vigilence enquiry pending in the case of Professor R.C. Saxena (present applicant) Retired. The Registrar of the University wrote a letter on 23.9.2005 to the applicant about the decision of the Executive Council of the Lucknow University in its meeting held on 23rd January, 2001 and the decision taken in the meeting held on 22.2.2001, the vigilence enquiry pending in the case of Professor R.C. Saxena (present applicant) Retired. The Registrar also informed in following words: “Subsequently, on the basis of the Final Report submitted by the Vigilance Department of the State Government dated 17.4.2003 (alongwith the final report dated 8.4.2003 and the details of the facts and the charge-sheet) as communicated by the Deputy Secretary, Medical Education Section-3, Government of Uttar Pradesh vide his D.O. letter No. 3507/71-3-2003-K.G.-41/99 dated 07th October, 2003 has also excluded the name of Prof. R.C. Saxena Ex-head, Deptt of Pharmacology, K.G. Medical University Lucknow in its final report.” 27. As per Section 17, the Vice-Chancellor is chair-person of the Executive Council of the University. Therefore, appeal lies in the decision of the Vice-Chancellor of the University before the Executive Council, therefore, as per the statute being chairperson of the Executive Council, the Vice-Chancellor only act on the decision, which has been taken in the executive council meeting but not in the capacity of a Vice-Chancellor. If the Vice-Chancellor has taken any decision in the capacity of the Vice-Chancellor, than the said decision cannot be said to be taken by the chair-person of the Executive Committee. 28. In the instant case, it is admitted fact that Vice-Chancellor has taken a decision to give sanction for prosecution of the applicant in the capacity of the Vice-Chancellor of the University and not as a Chairperson of the Executive Council, therefore, in view of the above discussion, the sanction of prosecution against the applicant is not given by the competent authority, so, it is not valid sanction. 29. Whether sanction under Section 197 Cr.P.C. is required after retirement of the public servant ? The question is ‘’yes’. Sanction under Section 197 Cr.P.C. is required even after the retirement of public servant or after he otherwise ceases to be a Public Servant. This is in view of the fact that Section 197 Cr.P.C., specifically uses the words “......any person who is or was.......”. Thus this provision is applicable for the present and post public servant, provides other conditions are satisfied. 30. This is in view of the fact that Section 197 Cr.P.C., specifically uses the words “......any person who is or was.......”. Thus this provision is applicable for the present and post public servant, provides other conditions are satisfied. 30. The Hon’ble Supreme Court in R. BalaKrishna Pillai v. State of Kerala, (1996) 1 SCC 478 , the Hon’ble Supreme Court has held that in the case of a person who is or was a public servant not removable from his office save by or with the sanction of the Government and who is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, Sanction under Section 197 Cr.P.C., is required for the prosecution of a public servant even after his retirement. 31. In the case of State of Orrisa v. Ganesh Chandra Jew, (2004) 8 SCC 40 , the Hon’ble Supreme Court held that protection under Section 197 is available only when the act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. The test to determine a reasonable connection between the act complained of and the official duty is that even in case the public servant has exceeded in his duty, if there exists a reasonable connection it will not deprive him of the protection. This Court has also observed that there cannot be a universal rule to determine whether there is a reasonable connection between the act done and the official duty nor is it possible to lay down any such rule. It was held thus : “7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.” However, it has also been observed that public servant is not entitled to indulge in criminal activities. To that extent the section has been construed narrowly and in a restricted manner.” 32. In K.Kalimuthu v. State, (2005) 4 SCC 512 , the Hon’ble Supreme Court has observed that official duty implies that an act or omission must have been done by the public servant within the scope and range of his official duty for protection. It does not extend to criminal activities but where there is a reasonable connection in the act or omission during official duty, it must be held to be official. The Hon’ble Supreme Court has also observed that the question whether the sanction is necessary or not, may have to be determined from stage to stage. The Hon’ble Supreme Court has laid down thus : “12. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed. * * * 15. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with the question of prejudice has also to be noted.” 33. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with the question of prejudice has also to be noted.” 33. In the State of Punjab v. Labh Singh, (2014) 16 SCC 807 , the Hon’ble Supreme Court held : “7.This appeal by State of Punjab takes exception to the order of the High Court. During the pendency of this appeal the first respondent Sikandar Singh expired and his name was deleted from the array of parties vide order dated 20.9.2010 passed by this Court, leaving Labh Singh as the only respondent before the Court. The stand taken in the petition of appeal on behalf of the appellant is as under: “It is humbly submitted that order passed by Hon’ble High Court is erroneous in law as under Section 197 Cr.P.C. the respondents can be convicted and no previous sanction is required as the respondents are no longer in service and have been retired in the years 1999/2000. Secondly, there was no discrimination as the other persons were in service and since respondents have been retired no previous sanction is required. It was also submitted that other persons will also be prosecuted as and when they are retired.” 34. The Statute is very clear that the authority competent to remove an officer from service is the authority to give sanction for prosecution. In the present case, the authority competent to remove him from service is the Executive Council of the University not a Vice-Chancellor of the University. It is Vice-Chancellor which gave the sanction vide its order dated 14.5.2007. Therefore, there is no proper and valid sanction in the present case for prosecuting the applicant for offence punishable under Section 15 of the Indian Penal Code. 35. In State v. Maharashtra through Central Bureau of Investigation v. Mahesh G.Jain, (2013) 8 SCC 119 , the Hon’ble Supreme Court has referred to the various decisions on this aspect from paragraph 8 onwards. It has been held at paragraph 8 as follows: “8. In Mohd. 35. In State v. Maharashtra through Central Bureau of Investigation v. Mahesh G.Jain, (2013) 8 SCC 119 , the Hon’ble Supreme Court has referred to the various decisions on this aspect from paragraph 8 onwards. It has been held at paragraph 8 as follows: “8. In Mohd. Iqbal Ahmed v. State of A.P.5 this Court lucidly registered the view that (SCC p. 174, para 3) it is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out constituting an offence and the same should be done in two ways; either (i) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction, and (ii) by adducing evidence aliunde to show the facts placed before the sanctioning authority and the satisfaction arrived at by it. It is well-settled that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio.” After referring to subsequent decisions, the main principles governing the issue have been culled out at paragraph 14 which reads as follows: “14.1. 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. 14.2. 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. 14.3. 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. 14.4. 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. [pic]14.5. 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. 14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction. 14.7. [pic]14.5. 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. 14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction. 14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity.” 36. The Hon’be Supreme Court in D.T. Virupakshappa v. C. Subash, 2015 (12) SCC 231 , has observed that whether sanction is necessary or not, may arise at any stage of the proceedings and in a given case it may arise at the stage of inception. This Court has referred to the decision of this Court in Om Prakash v. State of Jharkhand, 2012 (12) SCC 72 and observed thus : (D.T. Virupakshappa case, SCC P. 233, para 5) “5. The question, whether sanction is necessary or not, may arise on any stage of the proceedings, and in a given case, it may arise at the stage of inception as held by this Court in Om Prakash v. State of Jharkhand, (2012) 12 SCC 72 . To quote: (SCC p. 94, para 41) “41. The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code.” 37. In Manorama Tiwari and others v. Surendra Nath Rai, 2016 (1) SCC 594 , in a case of death by alleged negligence of Government doctors, it was held that the sanction for prosecution was necessary. On facts, it was held that the appellants were discharging public duties as they were performing surgery in the Government hospital. Hence, criminal prosecution was not maintainable without sanction from the State Government. 38. On facts, it was held that the appellants were discharging public duties as they were performing surgery in the Government hospital. Hence, criminal prosecution was not maintainable without sanction from the State Government. 38. In Shambhoo Nath Misra v. State of Uttar Pradesh and others, 1997 (5) SCC 326 , this Court considered the question when the public servant is alleged to have committed the offence of fabrication of false record or misappropriation of public funds etc. Can he be said to have acted in discharge of official duties ? Since it was not the duty of the public servant to fabricate the false records, it was held that the official capacity only enabled him to fabricate the records and misapporopriate the public funds hence, it was not connected with the course of same transaction. This Court has also observed that performance of official duty under the colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court during trial or inquiry has to apply its mind and record a finding on the issue that crime and official duty are integrally connected or not. This Court has held thus : “4. .... The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of the sanction by competent authority or appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest. However, performance of official duty under colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records a finding that the crime and the official duty are not integrally connected. 5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. can he be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained.” 39. In the case of Devinder Singh and others v. State of Punjab through CBI, (2016) 12 SCC 87 , wherein, it has been held that principles on the issue of sanction is required and on which question can be summarized as under : “39. The principles emerging from the aforesaid decisions are summarized hereunder: 39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime. 39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 Code of Criminal Procedure has to be construed narrowly and in a restricted manner. 39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection Under Section 197 Code of Criminal Procedure. There cannot be a universal Rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule. 39.4. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary Under Section 197 Code of Criminal Procedure, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. 39.4. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary Under Section 197 Code of Criminal Procedure, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 Code of Criminal Procedure would apply. 39.5. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The Court is not to be a sanctioning authority. 39.6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed. 39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage. 39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits. 39.9. In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial. 40. Accused has the right to lead evidence in support of his case on merits. 39.9. In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial. 40. The grant of sanction is only on administrative function. It is intended to protect public servants against frivolous and vexatious litigation. It is also ensures that a dishonest officer is brought before law and is tried in accordance with law. Thus, it is a serious exercise of power by the competent authority. It has to be apprised of all the relevant materials and on said materials, the authority has to take a conscious decision as to whether the facts would reveal the commission of an offence under the relevant provisions. No doubt, an elaborate discussion in the regard in the order is not necessary. 41. In the State of Punjab v. Labh Singh, (2014) 16 SCC 807 , the Hon’ble Supreme Court has held that no sanction is required to prosecute retired persons under the Prevention of Corruption Act. The Hon’ble Supreme Court has held as follows : “8. However as regards charges for the offences punishable under the IPC concerned the High Court was absolutely right in setting aside the order of the Special Judge. Unlike Section 19 of the POC Act, the protection under Section 197 of Cr.P.C. is available to the concerned public servant even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13.9.2000 and secondly on 24.9.2003, the Court could not have taken cognizance insofar as the offences punishable under the Indian Penal Code are concerned. As laid down by this Court in State of Himachal Pradesh v. Nishant Sareen[5], the recourse in such cases is either to challenge the order of the Sanctioning Authority or to approach it again if there is any fresh material. 9. In the circumstances, in our view the order under appeal passed by the High Court is correct insofar as charges under IPC are concerned but must be set aside as regards charge under POC Act is concerned.” 42. 9. In the circumstances, in our view the order under appeal passed by the High Court is correct insofar as charges under IPC are concerned but must be set aside as regards charge under POC Act is concerned.” 42. Therefore, in view of the aforesaid discussions, the law with reference to public servant, who had retired, was clear that sanction to prosecute the public servant for the offences under the Prevention of Corruption Act is not required but the valid sanction is required to prosecute for offences under Indian Penal Code. 43. Whether issue of sanction can be raised during trial ? In the judgment of C.B.I. v. Ashok Kumar Aggarwal, 2013 (15) SCC 222 , it has been held that the stage of examination of the validity of the sanction is during the trial and the same should not be examined during the stage of inquiry or at pre-trial stage. 44. In Ashok Tshering Bhutia v. State of Sikkim, 2011 (4) SCC 402 , while dealing with the issue whether invalid sanction goes to the root of jurisdiction of the Court which would vitiate the trial and conviction, held that in the absence of anything to show that any defect of irregularity therein caused a failure of justice, the contention was without any substance. The failure of justice would be relatable to error, omission or irregularity in the grant of sanction. However, a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in the failure of justice or has been occasioned thereby. 45. Undoubtedly, the stage of examination of the validity of sanction is during the trial. However, in the instant case, the fact situation warrants a different course altogether as stated admittedly, the sanction has not been given by the competent authority. As per the statute of the University the Court must examine whether the issue raised regarding tenure of justice is actually a factum of justice in the true sense or whether it is only camouflage argument. The expression “failure of justice” is an extremely pliable or facile an expression which can be made to fit into any case. The Court must endeavor to find out the truth. 46. Section 482 of the Cr.P.C. starts with the words “nothing in this Code”. The expression “failure of justice” is an extremely pliable or facile an expression which can be made to fit into any case. The Court must endeavor to find out the truth. 46. Section 482 of the Cr.P.C. starts with the words “nothing in this Code”. Thus, the inherent jurisdiction of the High Court under Section 482 of the Cr.P.C. can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. The inherent power is to be used only in the cases where there is an abuse of the process of the Court or where inference is absolutely necessary for securing the ends of justice. The most common cases where inherent jurisdiction is generally exercised is fair criminal proceedings are required to be quashed because they are initiated illegally, vexatious or without jurisdiction. 47. The category of doctrine of abuse is more exceptional that those describe above. It arises from the duty of the High Court (in the case of Bennett v. Horseferry Magistrate Court) to over see executive action 80 as to prevent the sale taking advantage of acts that threaten either basic human rights or the rule of law. In Bennett v. Horeferry Road Magistrate’s Court, there was a challenge to proceedings where the defendants had been brought to U.K. from South Africa. It was held that it was an abuse of process for a person to be forcibly brought the jurisdiction of the Court is disregard of extradition proceeding. 48. In principles explained in Bennett were applied in R v. Mullen, (1999) 2 Crapp. R. 143, although in that case, the Court of appeal stressed that there may be cases in which the seriousness of the crime is so great, relatives to the nature of a particular abuse of process, that would be a proper exercise of judicial discretion to allow the prosecution to succeed. 49. However, the Courts have an overriding duty to promote justice and prevent injustice. From this duty there arises an inherent power to stay an indictment, if the Court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the Court. 49. However, the Courts have an overriding duty to promote justice and prevent injustice. From this duty there arises an inherent power to stay an indictment, if the Court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the Court. Abuse of process has been defined as something so unfair and wrong with the prosecution that the Court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case [Hui-Chi-Ming v. R. (1992) 1 AC.34, PC]. (‘Unfair and wrong’) is for the Court to determine on the individual facts of each case. The concept of a fair trial involves fairness to the prosecution and to the plea as well as to the defendant. The inherent jurisdiction of the Court to stop a prosecution to prevent an abuse of process is to be exercised only in exceptional circumstances. In the instant case, I am convinced to the extend with the submissions made by the learned counsel for the applicant that the sanction for prosecution dated 14.5.2007 granted by the Vice-Chancellor of the University is not a valid sanction as per the statute, therefore, the entire proceedings for prosecution of the offences punishable under Section Indian Penal Code deserve to be quashed. 50. In view of the aforementioned discussions, the order dated 9.1.2018 passed by Court of Special Judge, P.C. Act, Lucknow so far as it relates to take cognizance under Section 467, 468, 420, 421, 120-B I.P.C. and charge-sheets in case crime No. 223 of 2001, 172 of 2001, 220 of 2001 and 224 of 2001 (State of Uttar Pradesh v. R.C. Saxena) to the extent of charges under Sections 467, 468, 420, 421,120-B I.P.C. against the applicant are hereby quashed. 51. The trial Court is directed to proceed with trial only with respect to the rest of the offences i.e. under Section 13 (i) (d) and 13(2) of Prevention of Corruption Act against the applicant/petitioner. 52. Accordingly, the present petitioner/applicant under Section 482 Cr.P.C. is disposed of.