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2022 DIGILAW 580 (PAT)

Sudhanshu Kumar Chaubey v. State of Bihar

2022-07-12

RAJEEV RANJAN PRASAD

body2022
JUDGMENT RAJEEV RANJAN PRASAD, J.:– The present writ application has been preferred challenging the sanction order as contained in Memo No. 139 dated 20.07.2016 (Annexure ‘6’) issued by the Secretary to the Government, Department of Law, Bihar who is the competent authority for grant of sanction in the present case. 2. The petitioner is an accused in Vigilance P.S. Case No. 51 of 2011 registered under Sections 409, 420, 467, 468, 471, 477A,120B of the Indian Penal Code and Section 13(2) read with Section 13(i)(d) of the Prevention of Corruption Act 1988 (hereinafter referred to as the ‘P.C.Act’). 3. The petitioner has challenged the impugned order (Annexure ‘6’) on two grounds which this Court will deal with after briefly stating the allegations as contained in First Information Report and the subsequent developments in course of investigation. 4. Petitioner who was posted as Secretary, Bihar State Housing Board, Patna (hereinafter referred to as the ‘Board’) at the time of filing the writ application was earlier in the year 2007- 2008 posted as the Block Development Officer-cum-Circle Officer, Gaighat, Muzaffarpur. It is stated that during the said period vast areas of the said Block was facing devastating flood, there were huge damage to the crops of the farmers. To compensate the farmers against their loss, the State Government decided to compensate it. 5. In order to maintain the transparency into the exercise of distribution of reliefs measures and compensation, the Government of Bihar vide its letter No. 1388 dated 24.07.2004 constituted a committee called Anushravan-cum-Vigilance Committee at the district, block as well as panchayat level. The petitioner claims that he was not a member of the Committee. He has given the constitution of the committee wherein Mukhiya, Members of the Wards of the Panchayat, first runner up of the last Mukhiya election, representative of the political parties, members of the Panchayat Samiti who reside within the Panchayat area and Panchayat Samiti/Revenue Karamchari are the members of the committee. The Mukhiya is the Chairman and the Revenue Karamchari is the Member Secretary. 6. The Department of Agriculture vide letter No. 3134 dated 31.08.2007 issued guidelines for the distribution of compensation after assessing the loss Khesra/plot wise. The Mukhiya is the Chairman and the Revenue Karamchari is the Member Secretary. 6. The Department of Agriculture vide letter No. 3134 dated 31.08.2007 issued guidelines for the distribution of compensation after assessing the loss Khesra/plot wise. It is the case of the petitioner that as per the government guidelines, the Panchayat Sewak/Circle Inspector/Jan Sewak was entrusted with the work of calculating the Khesra wise damage caused to the crops, identification of the beneficiaries and preparation of the list of all beneficiaries. The said list was required to be placed before the Anushravan-cum-Vigilance Committee three days prior to the date of disbursement of the compensation and on the basis of the approval/recommendation of the said committee, compensation amount was to be paid in presence of the committee as per the guidelines, the farmer entitled to be paid a sum below Rs. 2,000/- in cash on receipt of his signature in presence of Mukhiya/Panchayat Sewak/Revenue Karamchari. 7. It is the case of the petitioner that he being the Block Development Officer, in view of the large scale nature of the relief work and looking into the vast number of people affected by the flood during the relevant time himself issued specific directions vide letter no. 1444 dated 12.11.2007 to all the concerned officers in charge of the relief operation at the Panchayat level including the Circle officers to ensure that the distribution of the compensation as well as other relief material are made in a fair and transparent manner. He has enclosed his letter as Annexure ‘2’ to the writ application. 8. It is stated that at a much later stage on the basis of a written report of the Deputy Superintendent of Police, Vigilance Investigation Bureau the present vigilance case has been lodged against the petitioner and others containing allegation of embezzlement of government money during the reliefs operation carried out in the Gaighat Block of Muzaffarpur District. The investigation of the case was continued till 2016. It is stated that during this period four Investigating Officers changed their hands and this happened despite that the General Administration Department of the Government of Bihar was monitoring the investigation. In the written applications certain paragraph of the case diary have been referred to but for purpose of the present case, this Court would not look into the same to take any view at its own end. In the written applications certain paragraph of the case diary have been referred to but for purpose of the present case, this Court would not look into the same to take any view at its own end. This Court has already deprecated in course of hearing the approach to enclose the copy of the case diary with the writ application. Submission on behalf of the Petitioner 9. Mr. Santosh Kumar, learned counsel assisted by Mr. Madhurendra Sharma, learned Advocate has assailed the impugned order of sanction firstly on the ground that in this case earlier a decision was taken to close the case against the petitioner. The then Superintendent of Police, Vigilance Investigation Bureau vide letter no. 121 dated 27.01.2015 informed the department that pursuant to investigation no criminal case was being made out against the petitioner. A copy of the said letter bearing no. 121 dated 27.01.2015 has been placed as Annexure ‘4’ to the writ application. It is submitted that the said letter written by the Superintendent of Police was considered in the department and it was decided on 12.03.2015 that the issue with regard to the allegation against the petitioner be considered to be closed. 10. Learned counsel points out that the decision taken by the department on 12.03.2015 was duly communicated vide letter no. 4470 dated 24.03.2015 to the District Magistrate, Muzaffarpur and to the petitioner but it was not communicated to the Superintendent of Police, Vigilance Investigation Bureau. 11. It is his submission that after 21.02.2015 no further material was collected in course of investigation and the then investigating Officer took steps for obtaining sanction against the other accused government servants. Over the period, it is stated that the investigation was handed over to one Sri Roop Ranjan Hargawe, Deputy Superintendent rank police officer in the Vigilance Investigation Bureau, Gaya Region. A new incumbent also joined on the post of the Inspector General of Police, Vigilance and he issued several directions to the new Investigating officer to seek prosecution sanction against the accused government servants. A new incumbent also joined on the post of the Inspector General of Police, Vigilance and he issued several directions to the new Investigating officer to seek prosecution sanction against the accused government servants. It is at this stage learned counsel submits that under the directions/pressure of the I. G., the Investigating Officer sought sanction for the prosecution against the petitioner completely ignoring the fact that earlier the then Superintendent of Police, Vigilance had formed an opinion that no case is made out against the petitioner and the said view was accepted by the department and again the General Administration Department also took a decision to close the entire issue against the petitioner. 12. It is his submission that the Vigilance Investigation Bureau had no material at all in addition to what were already there on 20.01.2015, still the new incumbent in the department decided to proceed against the petitioner. 13. Learned counsel, thus, submits that there being no change in the material circumstance, no fresh material before the Investigating agency, the decision to review the earlier position as regards the petitioner is an arbitrary exercise of power by the competent authority in the Vigilance Investigation Bureau. It is thus, his submission that the entire exercise carried out pursuant to the directions issued to the new Investigating Officer namely, Sri Roop Ranjan Hargawe is fit to be quashed. 14. Learned counsel further submits that on perusal of the impugned order (Annexure ‘6’) it would appear that the sanctioning authority has not at all applied his independent mind on the basis of the materials available on the record. Learned counsel read out Annexure ‘6’ to submit that save and except the ornamental words used by the sanctioning authority, there is no discussion or even a brief reference of the materials which led him to grant sanction for prosecution of the petitioner. 15. Learned counsel further submits that ground for refusal of sanction for prosecution is a statutory function of the competent authority and due application of mind at his end is a sine qua non for a legal and valid reason for grant or refusal of sanction. 16. Learned counsel relies upon the judgments of the Hon’ble Apex Court in the case of State by Police Inspector Vs. T. Venkatesth Murthy (2004) 7 SCC 763 ; State of Karnataka Vs. Ameerjan (2007)11 SCC 273 ; Abdul Wahab Ansari Vs. 16. Learned counsel relies upon the judgments of the Hon’ble Apex Court in the case of State by Police Inspector Vs. T. Venkatesth Murthy (2004) 7 SCC 763 ; State of Karnataka Vs. Ameerjan (2007)11 SCC 273 ; Abdul Wahab Ansari Vs. State of Bihar & Anr. (2000) 8 SCC 500 ; State of T.N. Vs. M.M. Rajendran (1998) 9 SCC 268 ; Ajay Kumar Mishra Vs. State of Jharkhand & Ors. (2004) JLJR 306 HC; Central Bureau of Investigation Vs. Ashok Kumar Aggarwal (2014) 14 SCC 295 . 17. Learned counsel has further relied upon the judgment of the Hon’ble Delhi High Court in the case of Ashok Kumar Aggarwal Vs. Central Investigation Bureau 2016 SCC OnLine 214. Reliance has been placed on the judgments to submits that the validity of “Sanction” depends on the applicability of minds by the sanctioning authority to the facts of the case and the materials and evidence collected during investigation. The Hon’ble Delhi High Court has relied on a number of judgments of the Hon’ble Apex Court including in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622 : State of Bihar & Anr. Vs. P. P. Sharma IAS & Anr. (1992) Supp (1) SCC 222; State of Karnataka Vs. Ameerjan 2007 (11) SCC 273 and CBI Vs. Ashok Kumar Aggarwal (2014) 14 SCC 295 and P.L. T Tatwal Vs. State of Madhya Pradesh (2014) 11 SCC 431 . Submission of the Vigilance Investigation Bureau 18. On the other hand, Mr. Arvind Kumar, learned for the Vigilance Investigation Bureau submits that there is no illegality or infirmity in the grant of sanction against the petitioner. Learned counsel has referred certain materials from the official records of the investigating agency. It is submitted that the then S.P., Sri Ajit Kumar Rai gave a note directly to the then A.D.G., Sri Ravindra Kumar saying that there is no sufficient material against the petitioner. The note dated 10.01.2015 of the then S.P. was approved by the then A.D.G. on 13.01.2015 but the Inspector General, Smt. Anupma Nilekar Chandra in her note dated 10.02.2015 wrote that on perusal of the records it appears that there are sufficient materials to proceed against the petitioner. 19. Learned counsel also pointed out that without taking approval from the I.G., the letter was sent to the General Administration Department. 19. Learned counsel also pointed out that without taking approval from the I.G., the letter was sent to the General Administration Department. It is pointed out that in several pages the then D.I.G. has recorded the materials present against the petitioner and other named accused in the F.I.R. and the notes were placed before the I.G. Smt. Anupma Nilekar Chandra on 21.09.2015 which has also been signed by the Director General, Sri Ravindra Kumar on 22.09.2015. 20. Learned counsel, thus, submits that it is not a case of closure of the proceeding against the petitioner after proper appreciation of the materials available on the record. The letter dated 10.01.2015 sent by the then S.P. was without analyzing the materials collected in course of investigation and the subsequent signature of the then A.D.G. in the file were done in a haste without following the proper channel in the official system. 21. Learned counsel further submits that Smt. Anupma Nilekar Chandra, I.G. has analyzed the materials on record against the petitioner which may be found at page 200-201 of the official records. It is his submission that the sanctioning authority has in the order as contained in Annexure ‘6’ categorically recorded that on perusal of the case diary and the other materials on the record he was satisfied that there are sufficient materials for grant of sanction against the petitioner. Attention of this Court has been drawn towards the materials on the record which have been brought on the record by the petitioner himself and those are the notings on the file. It is submitted that all these materials would go a long way to show that the sanctioning authority has acted perfectly with a due application of mind and granted sanction to prosecute the petitioner vide letter no. 139 dated 20.07.2016 (Annexure ‘6’). 22. Referring to the judgments relied upon by learned counsel for the petitioner, learned counsel for the Vigilance Investigation Bureau submits that there is no quarrel on the proposition that the sanctioning authority must apply his independent mind free from any influence and he has to satisfy himself with the materials placed before him. 139 dated 20.07.2016 (Annexure ‘6’). 22. Referring to the judgments relied upon by learned counsel for the petitioner, learned counsel for the Vigilance Investigation Bureau submits that there is no quarrel on the proposition that the sanctioning authority must apply his independent mind free from any influence and he has to satisfy himself with the materials placed before him. It is submitted that in the case of Ashok Kumar Aggarwal (supra) the Hon’ble Supreme Court has held that the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts were placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law. It is, thus, his submission that the validity of the sanction order is yet to be examined by the learned trial court, therefore, this Court sitting in its writ jurisdiction need not examine the materials which are yet to form part of evidence in course of trial and no opinion of this Court is required to be recorded at this stage. 23. It is submitted that the petitioner in the present case is unable to show that there is any “failure of justice” arising out of any defect and irregularity in grant of sanction. This aspect will also be one of the consideration before the learned trial court, therefore, in its writ jurisdiction, this Court need not go into a threadbare discussion on the relevancy and the admissibility of material which has been taken into consideration by the sanctioning authority. Consideration 24. Having heard learned counsel for the petitioner and learned counsel for the Vigilance Investigation Bureau as also on perusal of the records, this Court finds that in this case the allegation is that of embezzlement of government money during the relief operation carried out in the wake of the floods caused in the year 2007-08 in the areas falling under the Gaighat Block in Muzaffarpur district. Admittedly, the petitioner was posted as Block Development Officer there. The Vigilance Investigation Bureau was investigating the matter. In course of investigation it has come that some of the raiyats have been shown paid more than Rs. 4000/- by falsely showing exaggerated area of land belonging to him/her. Admittedly, the petitioner was posted as Block Development Officer there. The Vigilance Investigation Bureau was investigating the matter. In course of investigation it has come that some of the raiyats have been shown paid more than Rs. 4000/- by falsely showing exaggerated area of land belonging to him/her. The I. O. could not find any materials showing that at the level of the Block Development Officer -cum- Circle Officer supervising authorities were deputed by demarcating the area in different zones. The letter and office order issuing registers were not available. 25. Be that as it may, at one stage the I. O. received a representation from the accused Block Development officer and the same was examined whereafter, the I. O. observed that he came across some letters which were issued by the then Block Development Officer from which it appears that the role of the Block Development Officer is not that of commission of the criminal act but at the same time the I. O. observed that it cannot be denied that disobedience of the Government Directives by the Block Development Officer who is holding a public office would come within the purview of the departmental proceeding. He left it for the Senior Officers to analyze the materials collected in course of investigation and to take a view thereon. Thereafter, as mentioned by I. O. the then S.P. wrote a letter vide memo no. 79 dated 19.01.2015 in which he opined that except the FIR named accused Sudhanshu Kumar Chaubey action be taken against rest of the accused. The petitioner has brought on record a copy of letter SR-051/2011/121 dated 27.01.2015 as Annexure -4 to the writ application to submit that in this letter the then Superintendent of Police has recorded that after investigation the allegation against the involvement of the petitioner in the alleged offences has not been substantiated. 26. It appears that the official records were then directly placed before the then ADG, Sri Ravindra Kumar who simply put his signature thereon. Thereafter, the communication as contained in Memo No. 4470 dated 24.03.2015 was made by the Deputy Secretary to the Government, General Administration Department to the District Officer, Muzaffarpur. 26. It appears that the official records were then directly placed before the then ADG, Sri Ravindra Kumar who simply put his signature thereon. Thereafter, the communication as contained in Memo No. 4470 dated 24.03.2015 was made by the Deputy Secretary to the Government, General Administration Department to the District Officer, Muzaffarpur. A perusal of this letter (Annexure 5) would show that long back the General Administration Department had called for a copy of the chargesheet against the petitioner in the present case but the Superintendent of Police vide letter no. 121 dated 27.01.2015 informed the department that the allegation against the petitioner has not been substantiated in course of investigation. Based on this letter, the Deputy Secretary to the General Administration Department closed the file. 27. This Court finds substance in the submission of learned counsel for the Vigilance that the official file did not move through the proper channel and save and except a conclusion that sufficient material has not been found against the petitioner the then S.P. did not discuss the materials available on the record and directly placed the matter before the ADG who simply put his signature. This Court finds that the manner in which the file was hurriedly moved without placing it before the then Superior authorities of the Superintendent of Police, was a deviation from the required norms, thus, it is difficult to believe that it was a bonafide closure or it can be virtually called a closure of the case at all. The decision making process at this stage is not inspiring confidence in this Court. 28. This Court has reason to come to this conclusion as the Court finds from the official records that on 10.02.2015 itself the I.G. wrote a note that there are sufficient materials on the record against the petitioner and the same was placed before the ADG on which he put his signature on 11.02.2015. Thereafter, the DIG wrote on 18.09.2015 that the materials available on the record against all the five named accused persons. The said note was placed before the I. G., endorsing the same and then the file went to the Director General (DG). Thereafter, the DIG wrote on 18.09.2015 that the materials available on the record against all the five named accused persons. The said note was placed before the I. G., endorsing the same and then the file went to the Director General (DG). Sri Ravindra Kumar who was earlier ADG had become the Director General and he approved the notes placed before him under the signature of the I.G. Thereafter, Sri Roop Ranjan Hargawe took steps to send the proposal for sanction and the General Administration Department endorsed the same to the competent authority for grant of sanction. 29. This Court is of the considered opinion that in the whole process no illegality or infirmity may be found in sending the records to the sanctioning authority. The first ground raised on behalf of the petitioner would not succeed. 30. As regards the submission that the sanctioning authority has not applied his judicious mind and his order as contained in Annexure ‘6’ is liable to be quashed on this ground alone, this Court having having gone through the judgments of the Hon’ble Supreme Court finds that in terms of the judgment of the Hon’ble Apex Court the prosecution would be duty bound to satisfy the learned trial court that at the time of sending the matter for grant of sanction by the competent authority, adequate materials for such grant was made available to the said authority. A number of judgments have been relied upon on behalf of the petitioner. In the case of Ashok Kumar Aggarwal (supra) the Hon’ble Supreme Court was considering the appeal preferred against the impugned judgment passed by the Hon’ble Delhi High Court for setting aside the order passed by the court of Special Judge, Central Bureau of Investigation ((in short ‘CBI’) by which the Special Judge rejected the application of the respondents questioning sanction granted by the competent authority under Section 19 of the P.C. Act and observed that the issue should be examined during trial. 31. The Hon’ble Apex Court while considering the rival submissions in paragraph ‘15’ held as under:— “15. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. 31. The Hon’ble Apex Court while considering the rival submissions in paragraph ‘15’ held as under:— “15. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge-sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non-application of mind. (Vide Gokulchand Dwarkadas Morarka Vs. R., (1947-48) 75 IA 30 : (1948) 61 LW 257 : AIR 1948 PC 82 ; Jaswant Singh Vs. State of Punjab, AIR 1958 SC 124 : 1958 Cri LJ 265, Mohd. Iqbal Ahmed Vs. State of A.P., (1979) 4 SCC 172 : 1979 SCC (Cri) 926, State Vs. Krishanchand Khushalchand Jagtiani, (1996) 4 SCC 472 : 1996 SCC (Cri) 755, State of Punjab Vs. Mohd. Iqbal Bhatti, (2009) 17 SCC 92 : (2011) 1 SCC (Cri) 949, Satyavir Singh Rathi, ACP Vs. State, (2011) 6 SCC 1 : (2011) 2 SCC (Cri) 782 and State of Maharashtra Vs. Mahesh G. Jain, (2013) 8 SCC 119 : (2014) 1 SCC (Cri) 515 : (2014) 1 SCC (L&S) 85.)” 32. In paragraph ‘16’ of the judgment their Lordships summarized the legal proposition as under:— “16. In view of the above, the legal propositions can be summarised as under: 16.1. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. 16.2. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. 16.2. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. 16.3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. 16.4. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. 16.5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.” 33. In paragraph ‘30’ of the judgment in Ashok Kumar Aggarwal (supra) the Hon’ble Apex Court recorded that “ The aforesaid concluding paragraphs of the judgment of the High Court give rise to questions as to what is the proper stage to examine the issue of sanction; as well as relating to the applicability of the provisions of Section 19(3)(b) and 19(4) of the 1988 Act.”. 34. The Hon’ble Apex Court proceeded to consider the Section 19 of the P.C. Act and this Court would reproduce from the judgment hereunder:— “19. 34. The Hon’ble Apex Court proceeded to consider the Section 19 of the P.C. Act and this Court would reproduce from the judgment hereunder:— “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— * * * (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) * * * (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.” Sub-section (4) thereof clearly provides that the question of validity of sanction could be raised at an earlier stage of proceedings.” 35. In the case of Satya Narayan Sharma Vs. State of Rajasthan reported in (2001) 8 SCC 607 the Hon’ble Apex Court while interpreting sub-section (3) of Section 19 of the P.C. Act held has under:— “24. The prohibition is couched in a language admitting of no exception whatsoever, which is clear from the provision itself. The prohibition is incorporated in subsection (3) of Section 19 of the Act. The sub-section consists of three clauses. The prohibition is couched in a language admitting of no exception whatsoever, which is clear from the provision itself. The prohibition is incorporated in subsection (3) of Section 19 of the Act. The sub-section consists of three clauses. For all the three clauses the controlling non obstante words are set out in the commencing portion as: 19. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973….’ Hence none of the provisions in the Code could be invoked for circumventing any one of the bans enumerated in the sub-section.” 36. In paragraph 58 and 59 the Hon’ble Apex Court held as under:— “58. The most relevant issue involved herein is as at what stage the validity of sanction order can be raised. The issue is no more res integra. In Dinesh Kumar Vs. Airport Authority of India, (2012) 1 SCC 532 : (2012) 1 SCC (Cri) 509 : (2012) 2 SCC (L&S) 532 : AIR 2012 SC 858 this Court dealt with the issue and placing reliance upon the judgment in Parkash Singh Badal Vs. State of Punjab, (2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193 : AIR 2007 SC 1274 , came to the conclusion as under (supra): “13. In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the trial court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal (supra)……..” 59. Undoubtedly, the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the stage of inquiry or at pre-trial stage.” 37. On the submission that the matter is about one and half decade old and the respondent has already suffered because of protracted legal proceedings at various stages before different forums and for that reason the prosecution against him must be closed, the Hon’ble Supreme Court observed in paragraph ‘61’ as under:— “61. On the submission that the matter is about one and half decade old and the respondent has already suffered because of protracted legal proceedings at various stages before different forums and for that reason the prosecution against him must be closed, the Hon’ble Supreme Court observed in paragraph ‘61’ as under:— “61. We do not find any force in the submission made by Shri Jethmalani, learned Senior Counsel that as the matter is about one-and-a-half decade old and the respondent has already suffered because of protracted legal proceedings at various stages before different forums, it is warranted that prosecution against him be closed altogether. This Court has consistently held that no latitude can be given in the matter of corruption. (Vide C.S. Krishnamurthy Vs. State of Karnataka, (2005) 4 SCC 81 : 2005 SCC (Cri) 923 : AIR 2005 SC 2790 wherein contrary view had been taken from Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7 SCC 622 : 1997 SCC (Cri) 1120 : 1997 SCC (L&S) 1784 : AIR 1997 SC 3400 .” 38. In the case of M.M. Rajendran (supra) the Hon’ble Apex Court was considering the case of respondent who had been convicted by the learned Sessions Judge, Madras for the offence under the provisions of the P.C. Act. The Trial court proceeded on the report that the proper sanction was accorded by the City Commissioner of Police but the High Court had come to a finding that all the relevant materials including the statements recorded by the I. O. had not been placed for consideration by the City Commissioner of Police, Madras because only a report of the Vigilance Department was placed before him. The witness had also stated that the report even though a detailed one was placed before the Commissioner by him and on consideration of which the Commissioner of Police had accorded the sanction. The Hon’ble Supreme Court held that from such depositions it cannot be held conclusively that all the relevant materials including the statements recorded by the Investigating Officer had been placed before the Commissioner of Police. It was held that the High Court has committed no error as there was no proper sanction in the said case. The Hon’ble Supreme Court held that from such depositions it cannot be held conclusively that all the relevant materials including the statements recorded by the Investigating Officer had been placed before the Commissioner of Police. It was held that the High Court has committed no error as there was no proper sanction in the said case. The Hon’ble Supreme Court was also of the view that if the sanction had not been accorded for which the criminal case could have been initiated against the respondents, there was no occasion either for the trial court or for the appellate court to consider the prosecution case on merits. Therefore, the High Court need not have made the finding on merits about the prosecution case. 39. In the case of Abdul Wahab Ansari (supra) the Hon’ble Apex Court was considering the case of the appellant who was a public servant. The appellant was the Sub-Divisional Magistrate who had been deputed as Duty Magistrate for removal of encroachment in question. The appellant visited the encroachment site and in course of removal of encroachment an occurrence took place in which the appellant was compelled to give order for opening fire to disperse the mob. On account of such firing, one of the persons died and two others were injured. The son of the deceased filed a complaint case before the Chief Judicial Magistrate alleging commission of offence by the appellant under various provisions of the Indian Penal Code. The Chief Judicial Magistrate took a view that there is sufficient evidence available to establish a prima-facie case under Sections 302, 307, 147, 148, 149 IPC made out against the accused and therefore, directed issuance of non-bailable warrant against the appellant. The Chief Judicial Magistrate was also of the opinion that the provisions of Section 197 of the Code of Criminal Procedure will have no application to the facts of the case. The appellant then moved to the High Court under Section 482 Cr.P.C. claiming that no cognizance could have been taken without a sanction of the appropriate Government as required under sub-section (2) of Section 197 Cr.P.C. because the alleged act had been committed while discharging the official duty pursuant to the order of the competent authority. The appellant then moved to the High Court under Section 482 Cr.P.C. claiming that no cognizance could have been taken without a sanction of the appropriate Government as required under sub-section (2) of Section 197 Cr.P.C. because the alleged act had been committed while discharging the official duty pursuant to the order of the competent authority. The High Court, however, without going into the merits of the matter came to form an opinion that all the question may be raised at the time of framing of charge. The said order of the High Court was challenged before the Hon’ble Supreme Court. At the time of hearing of the appeal a judgment of the Hon’ble Apex Court in the case of Birendra Kumar Singh Vs. State of Bihar reported in JT 2000 (8) SC 248 had been placed and it was contended that the question of applicability of the provisions of Section 197 Cr.P.C. can be raised at the stage of framing of charge. This proposition was, however, doubted and the matter was referred to a three Judge bench. The Hon’ble Apex Court considered the issue as to what stage the accused can take the plea of sanction under Section 197 Cr.P.C.. Is it immediately after the cognizance is taken and processes is issued or it is only when the court reaches the stage of framing of charge as held by the Supreme Court in the case of Birendra Kumar Singh (supra)?. 40. In the aforementioned background of the case the Hon’ble Apex Court referred the judgment in the case of Ashok Sahu Vs. Gokul Saikia reported in (1990) Supp SCC 41 in which the Court had said that want of sanction under Section 197 of the Code is a prohibition against institution of the proceedings, and the applicability of the section must be judged at the earliest stage of the proceedings and in that case, the Court directed the Magistrate to consider the question of sanction before framing a charge. 41. In the facts of the present case the issue is different. Here the petitioner is questioning the validity of the sanction order. 42. In the case of P. Saha and Ors. Vs. 41. In the facts of the present case the issue is different. Here the petitioner is questioning the validity of the sanction order. 42. In the case of P. Saha and Ors. Vs. M.S. Kochar reported in 1979 (4) SCC 177 a three-Judge Bench of the Hon’ble Supreme Court had held that the question of sanction under Section 197 CrPC can be raised and considered at any stage of the proceedings and further in considering the question whether or not sanction for prosecution was required, it is not necessary for the court to confine itself to the allegations in the complaint, and it can take into account all the material on the record at the time when the question is raised and falls for consideration. Thus, the Hon’ble Supreme Court held that the decision of the Apex Court in Birendra Kumar Singh (supra) did not lay down the correct law by directing that the objection on the question of sanction can be raised at the stage of framing of charge and not at any prior point of time. 43. In the case of Ameer Jan (supra) an order of sanction was issued by the Commissioner of Stamps solely relying on or on the basis of a purported report issued by the Inspector General of Police, Karnataka Lokayukta. The sanctioning authority simply recorded that “In exercise of the powers conferred under Section 19(1)(c) of the Prevention of Corruption Act, 1988, I hereby accord sanction to prosecute Shri Ameerjan, Second Division Assistant in the Office of the Registrar of Firms and Societies, Bangalore, Urban District, Bangalore for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 in the competent court of law.” 44. The sanctioning authority examined himself before the learned trial Judge as PW 8. He, however, did not produce the report of the Inspector General of Police, the same was not brought on record but the learned trial Judge upon considering the materials brought on record by the prosecution opined that the respondent was guilty of commission of the commission of the offence. The High Court, however, reversed the said sanction and held that the order of sanction being illegal, the judgment of conviction could not be sustained. 45. In the aforementioned background the Hon’ble Apex Court held in paragraph 7 and 8 as under:— “7. The High Court, however, reversed the said sanction and held that the order of sanction being illegal, the judgment of conviction could not be sustained. 45. In the aforementioned background the Hon’ble Apex Court held in paragraph 7 and 8 as under:— “7. We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not. 8. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayukta. Even the said report has not been brought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police, Karnataka Lokayukta had placed on record the materials collected on investigation of the matter which would prima facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as (sic to) the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced.” 46. In the case of T. Venkatesh Murthy (supra) the Hon’ble Apex Court was considering the scope and ambit of Section 19 of the P. C. Act questioning the legality of the judgment rendered by a learned Single Judge of the Karnataka High Court. The High Court had upheld the order of discharge passed by the trial court. The respondent-accused was discharged in a criminal trial. The High Court had upheld the order of discharge passed by the trial court. The respondent-accused was discharged in a criminal trial. The Hon’ble Apex Court examined sub-section (3) and (4) of Section 19 and held in paragraph 7 to 11 as under:— “7. A combined reading of sub-sections (3) and (4) makes 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. Clause (b) of sub-section (3) is also relevant. It shows that no court shall stay the proceedings under the 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.” “9. Sub-section (4) postulates that in determining under sub-section (3) whether the absence of, or any error, omission or irregularity in the 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.” “10. Explanation appended to the section is also of significance. It provides, that for the purpose of Section 19, error includes competency of the authority to grant sanction.” “11. The expression “failure of justice” is too pliable or facile an expression, which could be fitted in any situation of a case. The expression “failure of justice” would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. Vs. Deptt. of Environment, (1977) 1 All ER 813 : 1978 AC 359 : (1977) 2 WLR 450 (HL). The criminal court, particularly the superior court, should make a close examination to ascertain whether there was really a failure of justice or it is only a camouflage. (See Shamnsaheb M. Multtani Vs. State of Karnataka, (2001) 2 SCC 577 : 2001 SCC (Cri) 358..)” 47. The criminal court, particularly the superior court, should make a close examination to ascertain whether there was really a failure of justice or it is only a camouflage. (See Shamnsaheb M. Multtani Vs. State of Karnataka, (2001) 2 SCC 577 : 2001 SCC (Cri) 358..)” 47. Having noticed that in the said case neither the trial court nor the High Court had kept in view the requirements of subsection (3) relating to question of “failure of justice”, merely because there is any omission, error or irregularity in the matter of according sanction, Hon’ble Apex Court held that it would not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. The same logic also applies to the appellate or revisional court. The Hon’ble Apex Court further observed that the requirement of sub-section (4) about raising the issue at the earliest stage has not been also considered and the High Court by a practically non-reasoned order, confirmed the order passed by the learned trial Judge. The orders were, therefore, set aside and the trial court was directed to record findings in terms of clause (b) of sub-section (3) and sub-section (4) of Section 19. 48. From bare reading of the aforesaid judgments, this Court would came to a conclusion that in this case the legality and validity of the sanction order has been questioned by the petitioner in the writ jurisdiction of this Court. The case is still pending for trial. The judgments of the Hon’ble Apex Court are crystal clear to the effect that the proper stage for consideration of the question of legality or validity of the sanction order would be the stage of trial where the prosecution will have an opportunity to lead evidence to satisfy the court that there were adequate materials before the sanctioning authority for grant of sanction. So far as Annexure ‘6’ is concerned, the sanctioning authority has recorded that after perusal of the materials available in the official file and the statements of the witnesses in the case diary he has satisfied himself that a prima-facie case is made out against the petitioner for the offences under Sections 409, 420, 467, 468, 471, 477-A, 120(B) of the Indian Penal Code and Section 13(2) read with Section 13(1) (d) of the P.C. Act. The order of sanctioning authority would be required to be supported by the prosecution before the learned trial court in course of evidence. According to the judgments of the Hon’ble Supreme Court in the case of T. Venkatesh Murthy (supra) even after the trial, if the learned trial court comes to a conclusion that there has been any omission or irregularity in the sanction, the trial court would be required to record a finding that such error, omission or irregularity has resulted in failure of justice. 49. This Court would refrain from recording any finding on the materials of the allegations and the question of illegality and validity of the sanction order in the present writ application. The second ground also fails. 50. The petitioner may raise the issue in course of trial which will be considered in accordance with law. 51. Accordingly, the writ application stands disposed of.