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2022 DIGILAW 1634 (ALL)

Abhai Ranjan v. State of U. P.

2022-10-11

SUNEET KUMAR, SYED WAIZ MIAN

body2022
JUDGMENT : 1. Heard Sri Manish Tiwari, Senior Advocate, assisted by Sri Syed Imran Ibrahim, learned counsel for the petitioner and Ms. Manju Thakur, learned A.G.A. 2. Petitioner, a mining officer, is a public servant, by the instant writ petition, is seeking quashing of the order dated 22.06.2017, communicated by the Additional Chief Secretary, Government of U.P., Lucknow, granting sanction of the Hon'ble Governor under Section 19 of the Prevention of Corruption Act, 1988 (for short 'Act 1988') for prosecution of the petitioner. In the order, it is noted that petitioner while performing his duties as a mining officer was arrested in a trap case accepting bribe at Rs. 25,000/-. Pursuant, thereof, the learned court of Additional District and Sessions Judge/Special Judge, Prevention of Corruption Act, Court No. 2, Bareilly, has taken cognizance in case being Special Case No. 12 of 2014, State Versus Dr. Abhai Ranjan, arising from Case Crime No. 455 of 2014, under section 7/13 1(d) and 13(2) of the Act, 1988, vide order dated 08.04.2021. 3. The petitioner, herein, had raised objections before the learned trial court regarding the validity of the sanction order on the ground that earlier the Government had declined to grant sanction vide order dated 21.09.2016, therefore, the Government was not competent to review its order by the subsequent impugned sanction order dated 22.06.2017. The trial court rejected the objections vide order dated 08.04.2021. 4. On specific query, learned Senior Counsel informs that the trial court passed a composite order rejecting petitioners objections with regard to sanction, consequently, cognizance was taken and petitioner was summoned to face trial. 5. It is informed that the trial court order was subjected to challenge in a petition under Section 482 of Code of Criminal Procedure, 1973, being Application No. 18671 of 2021. The Court in a detailed order dismissed the application. The relevant portion of the order reads thus: "33. Learned counsel for the applicant has miserably failed to bring on record even a single instance regarding "failure of justice" having been occasioned to the appellant. It is not a case of absence of sanction, but in this case sanction has been granted vide order dated 22.6.2017 and same is subject matter of challenge in writ jurisdiction. Learned counsel for the applicant has miserably failed to bring on record even a single instance regarding "failure of justice" having been occasioned to the appellant. It is not a case of absence of sanction, but in this case sanction has been granted vide order dated 22.6.2017 and same is subject matter of challenge in writ jurisdiction. The authenticity or validity of this sanction could be adjudged either by the Division Bench in writ petition or at the stage of the trial, but there could not be any good reason to stall the proceedings of the case or vitiate the cognizance order in absence of any material on record which may result into "failure of justice" to the applicant. More particularly, when the legislature in its wisdom by its Section 4(4) of the Act has given a time bound period to conclude the trial of the case within a period of two years (four years maximum), stay of the proceedings would amount a luxury in favour of applicant. 34. Admittedly, this F.I.R. is of 2014 and the charge sheet was submitted on 27.11.2014, meaning thereby, about seven years have already been elapsed and only charges have been framed as yet. Under the circumstances, I am not inclined to exercise my inherent powers u/s 482 of Cr.P.C. to quash the summoning order or charge-sheet or the entire proceeding of Special Case No.12 of 2014 (State vs Dr. Abhai Ranjan), arising out of Case Crime No.455 of 2014, u/s 7/13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, P.S.-Mundha Pandey, District Moradabad, pending before Special Judge (Prevention of Corruption Act), Court No.2, Bareilly. 35. It is expected from the court concerned that the provisions of Section 4 (4) of the Prevention of Corruption Act has to be kept in mind and suitable endeavour has to be made by the trial court to conclude the trial within the time specified therein. 36. The application stands DISMISSED being devoid of merit. 6. While rejecting the application an observation has been made in para 33 of the order, wherein, it has been observed that the authenticity and validity of the impugned sanction order dated 22.06.2017, could be adjudicated upon by the petitioner either in the pending writ petition or at the stage of trial. 7. 6. While rejecting the application an observation has been made in para 33 of the order, wherein, it has been observed that the authenticity and validity of the impugned sanction order dated 22.06.2017, could be adjudicated upon by the petitioner either in the pending writ petition or at the stage of trial. 7. In this backdrop, petitioner has raised challenge to the sanction order alleging that once sanction was refused earlier, no fresh material being available before the competent authority, it was not open for the authority to have reviewed its earlier order declining sanction. In other words, it is sought to be urged that the sanction to prosecute the petitioner was earlier refused and declined on the material placed before the authority, thereafter, the authority is precluded to review its earlier order declining sanction based on the same material. In the impugned sanction order, it has been noted that the petitioner while performing his duty as mining officer on 30.09.2014, on a complaint was trapped and apprehended accepting bribe at Rs. 25,000/-. The competent authority while granting sanction after approval from the Hon'ble Governor noted in the impugned sanction order the factum of the trap case, thus, the offence of Act, 1988, prima facie, is disclosed. Prior to the impugned sanction order, Deputy Secretary, Government of U.P. Lucknow, vide communication dated 9 March 2015, addressed to the Superintendent of Police, Lucknow, communicated that the material placed for according sanction is incomplete, accordingly, directed that all the materials of the inquiry be placed before the authority so that the same may be considered. 8. It appears, thereafter, the Principal Secretary, Government of U.P. vide communication dated 21.09.2016, addressed to the Anti Corruption Department communicated that on the materials provided to the State Government, upon perusal, thereof, the competent authority declined to grant sanction to prosecute the petitioner. 9. It is in the backdrop of communication dated 21.09.2016, it is submitted by learned counsel for the petitioner that once the competent authority upon application of mind declined to grant sanction on the material that was placed before it, subsequently, on the very same material it is not open for Government to have accorded sanction by the impugned sanctioned order. It is alleged that the order granting sanction was passed on mere change of Government. 10. It is alleged that the order granting sanction was passed on mere change of Government. 10. Reliance has been placed on the decision rendered by the Supreme Court in State of Punjab and others Versus Mohd. Iqbal Bhatt, (2009) 17 SCC 92 , and State of Himachal Pradesh Versus Nishant Sareen, (2010) 14 SCC 527 . 11. Learned counsel for the State submits that the writ petition is premature and it is open to the petitioner to raise objection under Section 19(2)(a) of the Act, 1988, before the competent trial court with regard to the validity of sanction. Further, it is submitted that the purpose of sanction is to protect a public servant against frivolous litigation but that would not mean that the sanction can condone, prima facie, acts of corruption merely on the ground that the sanction was earlier refused. It is submitted that if the materials disclose prima facie acts of corruption while acting or purporting to act in discharge of official duty, the subsequent sanction would not amount to review, the petitioner would have to face trial. In the given facts, it is not in dispute that the petitioner was apprehended in a trap case accepting bribe by acting or purporting to discharge its official duty. 12. Rival submissions fall for consideration: 13. Section 19 of Act, 1988, inter alia, provides for previous sanction for prosecution. The provision reads thus: "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, - (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; (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." 14. The object underlying Section 19 is to ensure that a public servant does not suffer harassment on false, frivolous, concocted or unsubstantiated allegations. The object underlying Section 19 is to ensure that a public servant does not suffer harassment on false, frivolous, concocted or unsubstantiated allegations. The exercise of power under Section 19 is not an empty formality since the Government or for that matter the sanctioning authority is supposed to apply its mind to the entire material and evidence placed before it and on examination thereof, reach conclusion fairly, objectively and consistent with public interest as to whether or not in the facts and circumstances sanction be accorded to prosecute the public servant. The Supreme Court in Nishant Sareen (Supra) observed as under: "7. The object underlying Section 19 is to ensure that a public servant does not suffer harassment on false, frivolous, concocted or unsubstantiated allegations. The exercise of power under Section 19 is not an empty formality since the Government or for that matter the sanctioning authority is supposed to apply its mind to the entire material and evidence placed before it and on examination thereof reach conclusion fairly, objectively and consistent with public interest as to whether or not in the facts and circumstances sanction be accorded to prosecute the public servant. In Mansukhlal Vithaldas Chauhan vs. State of Gujarat (1997) 7 SCC 622 : 1997 SCC (Cri) 1120, Supreme Court observed: (SCC p. 631, para 17) "17. …. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty." 15. In Bhatti case, Supreme Court in para 6 noted that although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. The relevant portion reads thus: "Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the concerned authority is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the concerned authority is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts." 16. Further, Supreme Court opined that all such material must be placed before the sanctioning authority and the sanctioning authority must apply its mind on such material facts and evidence collected during investigation. The relevant portion of para 7 reads thus: "Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidences must be considered by it. The sanctioning authority must apply its mind on such material facts and evidences collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidences may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. It is also well settled that the Superior Courts cannot direct the sanctioning authority either to grant sanction or not to do so. The source of power of an authority passing an order of sanction must also be considered." 17. In the given facts Supreme Court noted that High Court called for entire records. It perused the same and thereafter noticed that departmental proceedings initiated against the accused respondent was dropped. It is further noted that several queries were raised but remained unanswered. The Court further noted that a finding of fact has been arrived at by the High Court that no material was placed before the competent authority. "8. The High Court called for the entire records. It perused the same. It noticed that several queries were raised but remained unanswered. The Departmental proceeding initiated against the respondent was dropped. The recommendations therefore were made not to grant sanction on the basis whereof the aforementioned order dated 15.12.2003 was passed. A finding of fact has been arrived at by the High Court that no material was placed before the competent authority. It noticed that several queries were raised but remained unanswered. The Departmental proceeding initiated against the respondent was dropped. The recommendations therefore were made not to grant sanction on the basis whereof the aforementioned order dated 15.12.2003 was passed. A finding of fact has been arrived at by the High Court that no material was placed before the competent authority. Only a communication had been received from the Director, Vigilance Bureau dated 22.6.2004 wherein reference of the letter dated 26.5.2004 was made. It, according to the High Court, was not a new material." 18. The Supreme Court consequently dismissed the writ petition filed by State of Punjab noting that no fresh material was placed before the competent authority for reviewing the sanction order. The same principle was reiterated by the Supreme Court in Nishant Sareen (supra). In paras 12 & 13, the Court observed as follows: "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 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. 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 course." (Refer: Ramanand Chaudhery vs. State of Bihar, (2002) 1 SCC 153; Raj Sharma vs. State of U.P., decided on 17.12.2021, in Application under Section 482, 378, 407. No. 3274 of 2018) 19. In the present writ petition, averments made in paras 36 to 42, it has been pleaded that exercise of power in passing the impugned sanctioned order is motivated and the same has been exercised on mere change of the Government. It is further alleged that there was no fresh material before the sanctioning authority, however, the order of rejection of sanction was reviewed on the very same material placed earlier before the sanctioning authority. 20. Averments made in the counter affidavit filed by the State has not denied or explained the assertion of the writ petition, nor, is being denied at this stage by the State. It is also not the case of the State respondents that fresh material was placed before the sanctioning authority to grant sanction or that the earlier sanction was obtained for extraneous consideration without application of mind to benefit the petitioner. 21. Having regard to the decisions of the Supreme Court rendered herein above, review of earlier sanction order by the authority is possible provided there is some fresh material placed before the sanctioning authority. In the given facts, no fresh material was placed which is admitted by the State respondents. In the circumstances, we find that the impugned sanction order on the very same material would vitiate the trial for want of sanction. Accordingly, the sanction order dated 22.06.2017 is set aside and quashed. 22. In the given facts, no fresh material was placed which is admitted by the State respondents. In the circumstances, we find that the impugned sanction order on the very same material would vitiate the trial for want of sanction. Accordingly, the sanction order dated 22.06.2017 is set aside and quashed. 22. Having regard to Section 19 of Act, 1988, mandating sanction before cognizance is taken by trial court, consequently, the trial for want of sanction fails. The proceedings, being Special Case No. 12 of 2014, accordingly, is set aside. 23. In view thereof, writ petition is allowed. 24. No cost.