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2019 DIGILAW 1723 (ALL)

Chhote Lal v. State of U. P.

2019-07-17

RAJ BEER SINGH, RAMESH SINHA

body2019
JUDGMENT : 1. Heard Sri Radha Kant Ojha, learned Senior Counsel assisted by Sri Shivendu Ojha, learned counsel for the petitioner, Sri A.R. Chaurasia, learned A.G.A. for the State and perused the material brought on record. 2. This petition has been filed by the petitioner with a prayer to quash the order dated 08.01.2019 passed by the Director, Social Welfare Department, U.P. Lucknow-respondent no. 2, whereby sanction has been accorded for prosecution of petitioner in Crime No. 16 of 2016, under Sections 419, 420, 467, 468, 471, 409, 120-B IPC read with 13 (2) of Prevention of Corruption Act, Police Station Kotwali Nagar, District Etah. 3. Sri Ojha, learned Senior counsel has submitted that petitioner is first informant of the case and no case is made out against him as major amount alleged in the incident has been released on the forged documents in conspiracy with bank employees by putting forged signatures and even the FIR was lodged by the petitioner. Meanwhile, the amount in question has also been recovered. It was further submitted that earlier an order dated 07/9.05.2014 was passed under Section 197 Cr.P.C. by the Director, Social Welfare, U.P. Lucknow, whereby sanction was not granted and the review of the same was not permissible under law and, therefore, the impugned order is against law and not sustainable. It was also pointed out that earlier, on wrong advise, petitioner has filed an application under Section 482 Cr.P.C. against the impugned order, which came to be dismissed by this Court vide order dated 31.05.2019, however, as chargesheet was not submitted by that time, thus, application under Section 482 Cr.P.C. was not maintainable. It was further submitted that no notice was given to the petitioner before passing the impugned order and, thus, principles of natural justice have been violated while passing the impugned order. 4. Per contra, learned A.G.A. has submitted that earlier the sanction for prosecution was not granted vide order dated 07/09.05.2014 by the competent authority as it was not required, in case, prosecution is launched against a retired employee. 4. Per contra, learned A.G.A. has submitted that earlier the sanction for prosecution was not granted vide order dated 07/09.05.2014 by the competent authority as it was not required, in case, prosecution is launched against a retired employee. However, meanwhile, Prevention of Corruption Act was amended vide Act No. 16 of 2018, Prevention of Corruption (Amendment) Act, 2018, wherein it has been provided that sanction would not only be required for prosecution of a person who is employed but also against such person who at the time of commission of alleged offence was employed and, thus, the impugned order of sanction was passed by the competent authority. It was further submitted that earlier the petitioner has preferred an application under Section 482 Cr.P.C. being no. 21720 of 2019 against the impugned order dated 08.01.2019, which was dismissed by this Court vide order dated 31.05.2019. 5. It is not in dispute that at the time of commission of the alleged offences, the petitioner was employed as Incharge, Zila Samaj Kalyan Adhikari and he retired on 31.01.2014. As per amended provisions of Section 19 of Prevention of Corruption Act, 1988, which came into force on 26.07.2018, previous sanction is necessary for prosecution of a person who at the time of commission of alleged offence was employed. It is apparent from the order dated 07.05.2014 passed by Director, Samaj Kalyan, Uttar Pradesh that earlier sanction was not granted as the petitioner has retired and sanction was not required for his prosecution in the alleged case. Later on in view of amendment in law, sanction for prosecution of the petitioner in the said case was accorded vide impugned order dated 08.01.2019. In view of these facts, it was permissible for the sanctioning authority to review its order dated 07.05.2014. 6. Recognizing the power of review on the part of sanctioning authority, the Supreme Court in case of State of Himachal Pradesh v. Nishant Sareen, 2010 14 SCC 527 held as under:- "12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us a sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. 13. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such a course." 7. Recently, in the case of State of Mizoram vs. Dr. C. Sangnghina passed in Criminal Appeal No. 1322 of 2018 decided on 30.10.2018, the Apex Court has held as under:- "The courts are not to quash or stay the proceedings under the Act merely on the ground of an error, omission or irregularity in the sanction granted by the authority unless it is satisfied that such error, omission or irregularity has resulted in failure of justice. A combined reading of sub-sections (3) and (4) of Section 19 of Prevention Act make the position clear that notwithstanding anything contained in the Code no finding, sentence and 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." 8. Considering the above-stated pronouncement, in the case in hand, it cannot be said that there was any such error, omission or irregularity in the impugned order which, resulted in failure of justice. In view of the above-stated specific facts, the sanctioning authority was empowered to review the order dated 07.05.2014 due to amendment in Section 19 of Prevention of Corruption Act, 1988. Having considered the submissions of the learned counsel for the parties and perusing the impugned order as well as material brought on record, we are of the view that the impugned order is based on relevant considerations and supported by cogent reasons. 9. In view of the aforesaid facts, impugned order does not require any interference by this Court and hence, the prayer for quashing the impugned order dated 08.01.2019 passed by the Director, Social Welfare Department, U.P. Lucknow-respondent no. 2 is, hereby, refused. 10. The writ petition lacks merit and is dismissed, accordingly.