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Allahabad High Court · body

2019 DIGILAW 348 (ALL)

H. M. Agarwala v. State of U. P.

2019-02-08

SURESH KUMAR GUPTA

body2019
ORDER : Suresh Kumar Gupta, J. 1.The writ petition has been filed against the judgment and order dated 28.03.1990 passed by IInd Additional Sessions Judge, Ghaziabad by which the opposite party no. 2 rejecting the application of the petitioner that Section under Section 6 of the Prevention of Corruption Act, 1947 granted for his prosecution in Special Trial No. 02 of 1988 State Versus Hari Mohan Agarwal under Section 191 I.P.C. and Section 5 (2) of Prevention of Corruption Act, 1947 with request that sanction against the petitioner is not proper because it is not given by the removing authority as such the Court cannot take cognizance of the offence allegedly committed by him. 2. Brief facts of this case are as follows:- 3. A case was registered against the applicant under Section 161 I.P.C. and 52(C) of the Prevention of Corruption Act on 31.07.1987. After taking the prosecution sanction on 18.08.1988 by the Chief Executive Officer, Charge sheet was submitted against the petitioner under Section 161 I.P.C. and 52(C) of the Prevention of Corruption Act. An application on behalf of petitioner-accused, Hari Mohan Agarwal, that the sanction granted for his prosecution is not proper and the Sessions Court (Special Court) cannot take cognizance of the offence allegedly committed by him. 4. Section 6 of the Prevention of Corruption Act, 1947 says that:- “(1) No court shall take cognizance of an offence punishable under Section 161 (or Section 164) or Section 165 of the Indian Penal Code (45 of 1860) or under sub-section (2) (or sub-section) (3A) of Section 5 of this 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 of the (Union) and is not removable from his offence 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 connected 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 his office. (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (I) 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 offence was alleged to have been committed. Wherein under section 6(1)(c) it is provided that no court shall take cognizance of an offence publishable under section 161 or 164 or 165 I.P.C. or under sub section (2) or (3A) of section 5 of the Prevention of Corruption Act, 1947 without sanction of the prosecution by the Removing Authority. ” 5. It is contended by the petitioner that he was appointed to the post of 'Account Officer' by the Chairman-cum-Chief Executive Officer of New Okhla Industrial Development Authority (herein after referred to as Noida) on 24.12.1981. So in this case, prosecution sanction is given by the Chief Executive Officer of Noida who is not competent to sanction the prosecution against petitioner because he was appointed by the Chairman-cum-Executive Officer. Chairman is a competent removing authority and the Chief Executive Officer is subordinate to the Chairman. 6. The petitioner's service is regulated under New Okhla Industrial Development Service under Regulation 1981 wherein Chapter 3rd in regard to recruitment and appointment under Paragraph No. 22 says that there is provision for termination of the employee and for the same it is provided that the authority shall be entitled to terminate the service of regular employee. Petitioner being a regular employee of Noida having been appointed on clear vacancy and having holding the lien of 'Account Officer' and his service was terminable by the Authority above and as such the Authority being the Removing Authority in this regard neither Chairman nor the Chief Executive Officer to sanction the prosecution. 7. Regulation No. 62 (1) of the Noida Service Regulation of 1980 is concerned the same provides a negative provision and are to be read with Regulation 62 (i) negates the termination of service of an employee from an officer subordinate to the appointing authority. 7. Regulation No. 62 (1) of the Noida Service Regulation of 1980 is concerned the same provides a negative provision and are to be read with Regulation 62 (i) negates the termination of service of an employee from an officer subordinate to the appointing authority. So it is contended that under Section 6 of the Prevention of Corruption Act sanction of the prosecution by Removing Authority and not by Appointing Authority, so the prosecution sanction by Chief Executive Officer, Noida is bad in law and made a prayer as below:- (i) To issue a writ, order or direction in the nature of certiorary to call for the record and quash the impugned judgment and order dated 28.03.1990 passed by the respondent no. 2 in Special Trial No. 2 of 1988 (State Vs. Hari Mohan Agarwal). (ii) To issue a writ, order or discretion in the nature of prohibition prohibiting the respondent no. 2 not to trial the Trial No. 2 of 1988 under Section 161 I.P.C. And 5 (2) of the Prevention of Corruption Act against the petitioner in any manner whatsoever. (iii) To issue a writ order or direction in the nature of mandamus commanding the opposite party not to prosecute the petitioner under Section 161 I.P.C. read with section 5(2) of the Prevention of Corruption Act on the basis of the incompetent sanction. (iv) To issue any other writ, order or direction which may be deemed fit and proper in the circumstances of the case. (v) To award costs of this writ petition to the petitioner. 8. I have heard learned counsel for the petitioner and learned A.G.A. for the State. 9. Learned A.G.A. argued that prosecution sanction is proper in this matter because Appointing Authority as well as Removing Authority of the petitioner is Chief Executive Officer. Sanction in this case is provided by Chief Executive Officer of Noida and sanction is proper, hence present petition is liable to be quashed. 10.In my opinion, as per provision of the Rule 62 Regulation No. 1998 no employees shall be removed or dismissed or reduced to a lower service grade or post or to lower time scale of pay or to lower stage in a time scale by an officer subordinate to that by whom he was appointed. 10.In my opinion, as per provision of the Rule 62 Regulation No. 1998 no employees shall be removed or dismissed or reduced to a lower service grade or post or to lower time scale of pay or to lower stage in a time scale by an officer subordinate to that by whom he was appointed. Regulation 15 of the Noida Service Regulation Act, the Chief Executive Officer in relation to the post with the accused was appointed. In the present case appointment letter was issued by office of the Chief Executive Officer, Noida on 24.12.1980. As per office order dated 24.12.1981, petitioner, Hari Mohan Agarwal, was appointed w.e.f. date of joining on the post of 'Account Officer' on temporary basis and on probation for a period of one year from the date of joining. This appointment letter was issued by Mr. N.S. Chaudhary, Chairman-cum-Chief Executive Officer, Noida on 24.12.1981. 11. In the present case, Chief Executive Officer, Noida is Appointing Authority as well as Removing Authority also. As per provision of the Prevention of Corruption Act, sanction for the prosecution by Removing Authority only. In this regard, Article 311 of Constitution of India is also important “No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed”. Meaning thereby that he cannot be removed from his service lower than the post holding by Appointing Authority. So in this case, appointing authority is competent authority to remove the delinquent employee. So prosecution sanction given by Chief Executive Officer, Noida is perfectly valid. 12. It was held by Hon'ble Supreme Court in Girish Kumar Suneja Versus C.B.I. Criminal No. 1137 of 2017 (arising our of SLP (Crl.) No. 9503 of 2016:- “60. In this context, we may note that we are not concerned with any ordinary criminal trial, but a trial for an offence punishable under the provisions of the Prevention of Corruption Act, 1988. We may draw attention to the Statement and Objects and Reasons for introducing the Prevention of Corruption Bill in Parliament, with which we are concerned. In this context, we may note that we are not concerned with any ordinary criminal trial, but a trial for an offence punishable under the provisions of the Prevention of Corruption Act, 1988. We may draw attention to the Statement and Objects and Reasons for introducing the Prevention of Corruption Bill in Parliament, with which we are concerned. It is stated, inter alia, that “In order to expedite the proceedings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included.” Both these objectives have been incorporated in the provisions of the Prevention of Corruption Act, 1988 through Section 19 and Section 4 thereof. For the present we are concerned with Section 4 of the Prevention of Corruption Act, 1988 which provides in sub-Section (4) as follows: “Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.” It is clear that the intention of Parliament, which ought to be respected, is the expeditious conclusion of a trial on a day-to-day basis without any impediment and certainly not an impediment through a stay of proceedings granted for the asking as if it were an ordinary criminal trial. Prevention of Corruption Act Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.) 61. This takes us to the last submission on behalf of learned counsel for the appellants, namely, with regard to the interpretation of Section 19(3)(c) of the Prevention of Corruption Act, 1988. Section 19 of the Act reads as follows:- “19. Prevention of Corruption Act Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.) 61. This takes us to the last submission on behalf of learned counsel for the appellants, namely, with regard to the interpretation of Section 19(3)(c) of the Prevention of Corruption Act, 1988. Section 19 of the Act reads as follows:- “19. Previous sanction necessary for prosecution.— (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayukta Act, 2013 – (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that 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 that Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the 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 offence was alleged to have been committed. (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; Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.) (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. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.—For the purposes of this section, - (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.” 13. The necessity of sanction is only as a filter to safeguard public servant from frivolous or malafide or vindictive prosecution. On perusing the whole record it transpires that Chief Executive Officer is competent authority to appoint the petitioner as well as removal of the authority. Petitioner is unable to show any prejudice against him. This case is very old and unnecessary linger on by hook or by crook by the revisionist. 14. On aforesaid discussion, sanction in this case is proper. There is no failure of justice shown by the petitioner, hence writ petition is liable to be dismissed. Writ petition is dismissed accordingly. 15. Stay order, if any stands vacated. It is directed to the court below to expedite disposal of this case in accordance with law.