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2023 DIGILAW 1173 (JHR)

Ashutosh Kumar v. Union of India through CBI

2023-09-20

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Indrajit Sinha, learned counsel appearing for the petitioner and Mr. Anil Kumar, learned A.S.G.I. appearing for the CBI. 2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 19.08.2020, by which, cognizance for the offence under Section 109 of the Indian Penal Code and Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act has been taken against the petitioner, in connection with RC 17(A)/2016-R, CBI/ACB/Ranchi, pending in the court of learned Special Judge, CBI, Ranchi. 3. The prosecution case in brief is that one Ashutosh Kumar, who was working as Deputy General Manager, MSME Tool Room, Jamshedpur (Indo Danish Tool Room), Ministry of Micro, Small and Medium Enterprises, Government of India had acquired pecuniary resources and property disproportionate to his known source of income to the tune of Rs. 1,40,37,414/-during the check period 01.04.2007 to 23.09.2016 which cannot be satisfactory accounted for by the accused persons. 4. Mr. Indrajit Sinha, learned counsel appearing for the petitioner submits that the investigating officer has submitted the chargesheet dated 31.12.2019 against the petitioner and other co-accused persons for the offence under Section 109 of the Indian Penal Code and Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act. He submits that the cognizance has also been taken against the petitioner on 19.08.2020. He further submits that the petitioner was posted as Deputy General Manager, Indo Danish Tool Room, Jamshedpur at the time of registration of first information report. He also submits that the sanction was refused by the competent authority under Section 19 of the Prevention of Corruption Act, which has come into the knowledge of the petitioner pursuant to a petition filed by the petitioner under the provisions of Right to Information Act, 2005 contained in Annexure-3 series. He further submits that by the said RTI application, the earlier order of refusal of sanction was demanded, however, that has not been provided to him. He further submits that when the competent authority has been changed and on the displeasure shown by the Director, Chief Vigilance Commissioner, vide letter dated 28.05.2020, the new incumbent authority sanctioned the prosecution of the petitioner based on the same materials earlier considered by the authority without application of independent mind. He further submits that when the competent authority has been changed and on the displeasure shown by the Director, Chief Vigilance Commissioner, vide letter dated 28.05.2020, the new incumbent authority sanctioned the prosecution of the petitioner based on the same materials earlier considered by the authority without application of independent mind. He submits that once as sanction order is refused by the competent authority by way of review, the changed second authority is not competent to grant sanction under Section 19 of the Prevention of Corruption Act. To buttress his argument, he relied in the case of State of Punjab & Anr. Versus Mohammed Iqbal Bhatti, reported in (2009) 17 SCC 92 , where in paras-6, 20 and 21, the Hon’ble Supreme Court has held as follows:- “6. 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 authority concerned 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. 20. It was, therefore, not a case where fresh materials were placed before the sanctioning authority. No case, therefore, was made out that the sanctioning authority had failed to take into consideration a relevant fact or took into consideration an irrelevant fact. If the clarification sought for by the Hon'ble Minister had been supplied, as has been contended before us, the same should have formed a ground for reconsideration of the order. It is stated before us that the Government sent nine letters for obtaining the clarifications which were not replied to. 21. The High Court in its judgment has clearly held, upon perusing the entire records, that no fresh material was produced. There is also nothing to show as to why reconsideration became necessary. On what premise such a procedure was adopted is not known. 21. The High Court in its judgment has clearly held, upon perusing the entire records, that no fresh material was produced. There is also nothing to show as to why reconsideration became necessary. On what premise such a procedure was adopted is not known. Application of mind is also absent to show the necessity for reconsideration or review of the earlier order on the basis of the materials placed before the sanctioning authority or otherwise.” 5. Relying on this judgment, learned counsel appearing for the petitioner submits that without any fresh new materials, the sanction has been granted and in view of this judgment, the case of the petitioner is fully covered. 6. Learned counsel appearing for the petitioner further submits that identical was the situation in the case of State of Himachal Pradesh Versus Nishant Sareeen, reported in (2010) 14 SCC 527 , where in para-12, it has been 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 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.” 7. For application of mind, learned counsel relied in the case of Mansukhlal Vithaldas Chauhan Versus State of Gujarat, reported in (1997) 7 SCC 622 , where in para-19, the Hon’ble Supreme Court has held as follows:- “19. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise.” 7. For application of mind, learned counsel relied in the case of Mansukhlal Vithaldas Chauhan Versus State of Gujarat, reported in (1997) 7 SCC 622 , where in para-19, the Hon’ble Supreme Court has held as follows:- “19. Since the validity of “sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority “not to sanction” was taken away and it was compelled to act mechanically to sanction the prosecution.” 8. Relying on the aforesaid three judgments and by way of placing the page-111 of the writ petition and Annexure-B of the supplementary counter affidavit, filed on behalf of the CBI, learned counsel appearing for the petitioner submits that the case of the petitioner is fully covered and the sanction order may kindly be quashed including the entire criminal proceedings. 9. On the other hand, Mr. Anil Kumar, learned A.S.G.I. appearing for the CBI submits that page-111 is a document, which the petitioner has received under the Right to Information Act and that discloses that the materials have been sent to the CVC. He submits that page-111 further suggests that the documents have been sent to the CVC and the CVC after examining the same has advised to proceed against him. He further submits that the CVC is one of the supervisory authority and pursuant to that he is competent to advise. He submits that page-111 further suggests that the documents have been sent to the CVC and the CVC after examining the same has advised to proceed against him. He further submits that the CVC is one of the supervisory authority and pursuant to that he is competent to advise. He further submits that the order of sanction dated 03.08.2020 is a well reasoned order and the sanctioning authority has applied its mind and thereafter has passed the sanction order and based on the new materials and if such a situation is there, the judgments relied by learned counsel appearing for the petitioner is not helping the petitioner. He further submits that there are serious allegation of acquiring disproportionate asset to the tune of Rs.1,40,37,414/-. On these grounds, he submits that this court may not interfere in the matter. 10. In view of the above submissions of learned counsel appearing for the parties, the court has gone through the materials available on record including the annexures made in the writ petition, order taking cognizance dated 19.08.2020, sanction order dated 03.08.2020 and the counter affidavit and the supplementary counter affidavit filed on behalf of the respondent-CBI. It is an admitted fact that the FIR was registered against the petitioner for acquiring disproportionate property to the tune of Rs.1,40,37,414/-. Chargesheet has been submitted and pursuant to that the learned court has taken the cognizance. A note-sheet, which is at page-111, upon which, much emphasis has been made on behalf of both the parties, which speaks as under:- Sr. No. 52(R) File No. 1/46/2016-Vig Subject: CBI case No. RC-17(A)/16 on 30.09.2015 against Sh. Ashutosh Kumar, DGM (Admin & Accts), Indo Danish Tool Room, Jamshedpur U/s 13(2) r/w 13(1) (e) of PC Act, 1988.-Reg. PUC is a letter dated 28.05.2020 received from Director, CVC, and refer this office letter dated 13.05.2020 regarding information to CVC, declined of the sanction of prosecution by the Competent Authority in the case. The Commission convey its displeasure to Secretary (MSME) and AS&DC(MSME) and mentioned their observation that there was no decision on the request of CBI for sanction for prosecution from 07/2019 to 04/2020 in spite of reminders. The Commission convey its displeasure to Secretary (MSME) and AS&DC(MSME) and mentioned their observation that there was no decision on the request of CBI for sanction for prosecution from 07/2019 to 04/2020 in spite of reminders. In this regard, List of Incidence occur in chronological order since 26.07.2019 to 03.08.2020 is placed at “F/A” and also submitted that vide this office letter dated 13.05.2020 on the request of CVC, the following files and documents had been send to CVC for further appraisal -File no. 1/46/2016-vig (Main File of case) -File no. 1/46/2016-vig(1 link File -Representation of Sh. Ashutosh Kumar (Link File-II) -List of Incidence occur in chronological order Covering letter. On dated 17.07.2020, CVC has send their consent vide letter dated 17.07.2020, with a advised for sanction of prosecution. Accordingly, this division has submitted the file for sanction of prosecution for approval AS & DC(MSME) has signed the sanction order in the case and the same is issued to CBI & CVC vide e-mail dated 03.08.2020 contd. Submitted please. Sd/- (Anil Kumar) Asstt. Director (Vig) 11. Supplementary counter affidavit has been filed and Annexure-B to that has been placed by both the sides, which reads as under:- F. No. 1/46/216-Vig Government of India Ministry of Micro, Small and Medium Enterprises O/o Development Commissioner (MSMS) (Vigilance Section) 7th Floor, A Wing. Nirman Bhawan, New Delhi Dated the 13 May, 2020 Office Memorandum Subject: Sanction for prosecution against Shri Ashutosh Kumar, DGM (CBI RC No. 17 A/2016 ACB Ranchi)-reg. Reference: CVC OM No. 019/MISC/031/448866 dated the 5th March, 2020 I am directed to refer to the speaking order passed in the file (copy enclosed) by the Appointing Authority viz., AS&DC, MSME in the above case. The Competent Authority, the then DC, MSME (Shri Ram Mohan Mishra) has declined to issue the prosecution sanction. The said speaking order was conveyed to CBI/ACB Ranchi vide e-mail dated 1.5.2020. However, as per CVC manual 1.6.2 (b) which states that “In cases in which an authority other than the President is competent to accord sanction for prosecution, and that authority does not propose to accord sanction, the Commission tenders its advice for resolution of difference of opinion". In the foregoing you are kindly requested to advise in the matter to proceed further. This issues with the approval of Chief Vigilance Officer in the O/o DC, MSME. Encl: As above Sd/- (Dr. R.K. Bharti) Dy. In the foregoing you are kindly requested to advise in the matter to proceed further. This issues with the approval of Chief Vigilance Officer in the O/o DC, MSME. Encl: As above Sd/- (Dr. R.K. Bharti) Dy. Director(Vigilance) Tele: 23061430 Central Vigilance Commission, Kind attention: (Shri P.K. Mohanty OSD), Satarkta Bhawan, G.P.O Complex, Block A, INA, New Delhi-110023. 12. Looking in the office note above, it transpires that files and the documents have been sent to the CVC for further appraisal and in that the file No. 1/46/2016-Vig (Main file of case), File No. 1/46/2016-vig(II) link File, Representation of Shri Ashutosh Kumar (Link File-II), List of incident occur in chronological order and Covering letter etc., which were examined. Thus, it appears that certain materials are there and further the competent authority has sanctioned by order dated 03.08.2020. It appears that the earlier sanction was rejected by order dated 1.05.2020 and said rejection order is not on the record. Thus, the arguments advanced by the learned counsel appearing for the petitioner with regard to quashing of the said order in absence of any new material is difficult to appreciate, however, page-111 (which is quoted supra) read with Annexure-B of the supplementary counter affidavit, (which is quoted supra), it appears that the materials and files were considered and thereafter the sanction order has been passed. 13. There is guidelines, issued by the Department of Personnel & Training (DOPT) in the year 2006 with respect to the procedure to be adopted in dealing with the sanctioning of the prosecution sanction against the public servants, which is Annexures-6 and 7 of the writ petition. The DOPT has again issued guidelines for disagreement in case of granting sanction for prosecution vide O.M. dated 01.03.2019, copy of the same has been annexed as Annexure-A to the supplementary counter affidavit by the CBI, which suggests that the sanctioning authority is not inclined to accord sanction and the said is to be reported to the CVC for taking further action after considering the CVC’s advise vide para-2(vi)(b) of the Government Resolution by which, the CVC was set up and the CVC’s letter No. 9/1/64-DP. This has been disclosed in the supplementary counter affidavit filed on behalf of the CBI. This has been disclosed in the supplementary counter affidavit filed on behalf of the CBI. From Para-2.2(II) and para-2.2(v) of the said OM, it is crystal clear that if denial for sanction for prosecution, Department of Personnel and Training is the competent authority for taking final decision. There are further guidelines, thus, prima facie appears that the role of CVC is not in dispute and the CVC is competent to advise. 14. Non-compliance with a mandatory period cannot and should not automatically lead to the quashing of criminal proceedings because the prosecution of a public servant for corruption has an element of public interest having a direct bearing on the rule of law. This is also a non-sequitur. It must also be kept in mind that the complainant or victim has no other remedy available for judicial redressal if the criminal proceedings stand automatically quashed. At the same time, a decision to grant deemed sanction may cause prejudice to the rights of the accused as there would also be non-application of mind in such cases. In view of the above, it is in between these competing interests that the Court must maintain the delicate balance. While arriving at this balance, the Court must keep in mind the duty cast on the competent authority to grant sanction within the stipulated period of time. There must be a consequence of dereliction of duty to giving sanction within the time specified. The way forward is to make the appointing authority accountable for the delay in the grant of sanction was the view of the Hon’ble Supreme Court in the case of Vijay Rajmohan Versus Central Bureau of Investigation (Anti-Corruption Branch), reported in (2023) 1 SCC 329 . The role of CVC was also considered in the said judgment in para-37, which is as under:- “37. Accountability, as a principle of administrative law, when applied to the issue that we are dealing with, translates in this manner. Responsibility for grant of sanction for prosecution of a public servant under Section 19 of the PC Act is always vested in the appointing authority. Identification of appointing authority is always clear and straightforward. The 2018 amendment specifically obligates the appointing authority to convey the decision within three months and to provide for the reasons to be recorded in writing for the extended period of one month. Identification of appointing authority is always clear and straightforward. The 2018 amendment specifically obligates the appointing authority to convey the decision within three months and to provide for the reasons to be recorded in writing for the extended period of one month. This amendment, in fact, evidences legislative incorporation of answerability, the second constituent of accountability. For enforceability, Parliament has expressly empowered the Central Vigilance Commission under Section 8(1)(f) of the CVC Act to review the progress of the applications pending with the competent authorities, and this function must take within its sweep the power to deal with the consequences of failure of the competent authority to comply with its statutory duty. This power and responsibility of CVC is clear from the provisions of the statute and decipherable from functions entrusted to it.” 15. Thus, looking into the aforesaid paragraph of the said judgment, it is crystal clear that the CVC is also having a role in a particular case to act. In paras-21 and 22 of the said judgment, it has been held that the public policy behind providing immunity from prosecution without the sanction of the State is to insulate the public servant against harassment and malicious prosecution. It is for this very reason that good faith clauses are incorporated in statutes extending protection to officers exercising statutory duties in good faith. This protection is only to ensure that a public servant serves the State with courage, confidence, and conviction. However, the said protection is neither the shield against the dereliction of duty nor an absolute immunity against corrupt practices. The limited immunity or bar is only subject to a sanction by the appointing authority. 16. It is further well settled that the adequacy of materials placed before the sanctioning authority cannot be gone into by the court as it does not sit in a appeal and if a valid sanction order is there on application of mind and passed pursuant to the materials placed and after consideration of the circumstances has granted the sanction for prosecution, the court is not required to allow the case and further the clinching technicalities cannot be allowed to become a tool in the hands of the accused. 17. In the case of Mohammad Iqbal Bhatti (Supra) relied by Mr. Indrajit Sinha, learned counsel appearing for the petitioner is not in dispute. 17. In the case of Mohammad Iqbal Bhatti (Supra) relied by Mr. Indrajit Sinha, learned counsel appearing for the petitioner is not in dispute. The sanction order can be a subject matter of judicial review by the superior courts and it has also been disclosed in para-6 of the said judgment that power once exercised cannot be exercised once again in absence of fresh materials. But in the case in hand, it appears that the fresh materials are there, which has been considered and thereafter the order has been passed. In view of that, the said judgment is not helping the petitioner. In view of the new materials, identical is the ratio in the case of Nishant Sareen (Supra), as relied by Mr. Sinha, learned counsel appearing for the petitioner, wherein it has also not been stated that on fresh material, the sanction cannot be granted, as such, the said case is also not helping the petitioner. 18. Considering the judgments, relied by Mr. Sinha, learned counsel appearing for the petitioner, it is crystal clear that the sanction has been granted on the fresh material and looking into the materials. 19. In view of the above and considering the page-111 of the writ petition and Annexure-B of the supplementary counter affidavit filed on behalf of the CBI, it appears that the concerned authority is competent authority, if the new materials are there and the petitioner has not been able to demonstrate before this court what was the ground of refusing the sanction earlier by the authorities. Looking into the sanction order dated 03.08.2020, it appears that that has been passed by the competent authority and the authority in not under challenge herein, that is an admitted fact. 20. So far as the argument of Mr. Sinha, learned counsel appearing for the petitioner with regard to DOPT i.e. with regard to the role of CVC is not being accepted by this court in view of the judgment of the Hon’ble Supreme Court in the case of Vijay Rajmohan (Supra), as has been quoted hereinabove, as in that order Section 8 of the CVC Act was considered and it appears that the statutory provision is there. 21. In view of the above, the court finds that no case of interference is made out. Accordingly, this petition is dismissed. 22. Pending I.A., if any, stands dismissed.