Allahabad High Court
Sri Indra Kumar Adhlakha vs State Of U.P. on 31 August, 2018
Author: Shashi Kant
Bench: Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD A. F. R. Judgment Reserved Court No. - 25 Case :- APPLICATION U/S 482 No. - 1735 of 1995 Applicant :- Sri Indra Kumar Adhlakha Opposite Party :- State Of U.P. Counsel for Applicant :- K.K.Arora Counsel for Opposite Party :- .../Govt. Advocate Hon'ble Shashi Kant,J.
1. Heard Shri K. K. Arora, learned counsel for the applicant and learned AGA for the State.
2. This application under Section 482 Cr.P.C. has been filed for quashing the order dated 07.06.1995 (Annexure-6) whereby charges have been framed against the applicant with further prayer for quashing of all proceedings of Special Trial No. 353 of 1994 (State of U.P. Versus Indra Kumar Adhlakha) pending in the court of 14th Additional District & Sessions Judge, Ghaziabad.
3. Brief facts necessary for determination of this application are that:-
3.1. In September, 1985 applicant was posted in Electricity Distribution Division-III, Ghaziabad as Junior Engineer. At that time Chief Engineer (Hydel) was his appointing authority.
3.2. On 11.09.1985 one Shri Babu Khan son of Shri Latif Khan made a complaint to the District Magistrate, Ghaziabad about demand of illegal gratification of Rs. 1,500/- by the applicant and others. On that information, a trap was laid and allegedly the applicant was caught red handed while accepting illegal gratification from the aforesaid complainant.
3.3. Consequently, a first information report was lodged as Case Crime No. 247/85 under Sections 161, 120-B of Indian Penal Code (hereinafter referred to as 'IPC') and Section 5 (2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'Act, 1947).
3.4. The case was investigated.
3.5. The matter along-with necessary documents was placed before the Chief Engineer (Hydel) seeking sanction for prosecution of the applicant, who refused to grant sanction vide his order dated 29.09.1987 (Annexure-2).
3.6. Meanwhile the Act of 1947 had been repealed and substituted by Prevention of Corruption Act, 1988 (hereinafter referred to as 'Act, 1988').
3.7. The matter was again put up before Chief Engineer (Hydel) for sanction, who again refused to grant sanction vide his order dated 27.10.1989 (Annexure-3).
3.8. In the year 1991, the State Government has amended Section 19 of the Act, 1988 by means of The Prevention of Corruption (U.P. Amendment) Act, 1991 (hereinafter referred to as 'Amending Act, 1991') 3.9. The matter was put up denovo before the State (Governor of Uttar Padesh.) and a sanction for the prosecution of the applicant (Annexure-4) was granted on 20.12.1993.
3.10. On completion of investigation charge-sheet No. 6 dated 10.10.1994 has been filed.
3.11. The case commenced before the District & Sessions Judge, Ghaziabad as Special Trial No. 353 of 1994 (State versus Inder Kumar Adhalkha & others) under Sections 161, 120-B of IPC and Section 5 (2) of the Act, 1947, which has ultimately been transferred to 14th Additional District & Sessions Judge, Ghaziabad.
3.12. The applicant filed an application claiming his discharge and also submitted written arguments as per direction of the Court. The Court below after hearing arguments, rejected his application for discharge and framed charges against the applicant vide impugned order dated 7.6.1995.
3.13. Feeling aggrieved therefrom, the present application under Section 482 Cr.P.C. has been filed seeking reliefs as stated above.
4. The learned counsel for the applicant contended that:-
4.1. First time sanction for prosecution of applicant was refused by the appointing authority of applicant Chief Engineer (Hydel) vide order dated 29.9.1987 (Annexure-2) under Section 6 of the Act of 1947 .
4.2. During investigation, the Act of 1947 had been repealed and had been substituted by Prevention of Corruption Act, 1988 (hereinafter referred to as the Act of 1988).
4.3. Section 19 of the Act of 1988 also provided for obtaining of sanction before prosecution of a public servant,which is analogous to Section 6 of Act of 1947 and 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 offence 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) ............
(4) ............ '' 4.4. Second time sanction for prosecution of the applicant was refused vide order dated 27.10.1989 (Annexure-3) by the Chief Engineer (Hydel).
4.5. The Act of 1988 was amended by the State of Uttar Pradesh in the year 1991 by means of The Prevention of Corruption (U.P. Amendment) Act, 1991 (hereinafter referred to as the "Amending Act of 1991") through Section 2 of Act of 1991, which reads as under:
"2. AMENDMENT OF SECTION 19 OF ACT NO. 49 of 1988 - In Section 19 of the Prevention of Corruption Act, 1988 hereinafter referred to as the principal Act, in sub-Section (1), after clause (c), the following clause shall be inserted, namely: -
''(d) Notwithstanding anything contained in clause (c), the State Government may, where it considers necessary so to do, require the authority referred to in clause (c), to give previous sanction within the period specified in this behalf and if the said authority fails to give the previous sanction within such period, the previous sanction may be given by the State Government.
Explanation - (1) For the purposes of this clause X ''authority'' does not include any authority under the control of the Central Government.
(2) For removal of doubts it is hereby declared that the power of the State Government under this clause may be exercised also in a case where the authority referred to in clause (c) has earlier refused to give the previous sanction."
4.6. Third time after State Amendment in Section 19 of the Act of 1988 the matter of sanction for prosecution of applicant was again referred to the Chief Engineer (Hydel) and on his alleged failure of passing order for grant of sanction within prescribed timing, the matter was taken up by the State (Governor of Uttar Pradesh) who granted sanction for the prosecution of the applicant vide order dated 20.1.1993 (Annexure-4) in exercise of powers conferred on him vide amended sub section (D) of Section 19 of the Act, 1988.
4.7. A bare perusal of the U.P. Amendment as it was incorporated through Act of 1991, would reveal and establish that recourse to sub-Section D of Section 19 (as incorporated through U.P. Amendment) can be had only where authority concerned has refused to pass an order within a stipulated period on the question of his sanction.
4.8. It is thus implicit and crystal clear that where the authority concerned has already refused twice by an order in writing to grant sanction for the prosecution of a public servant then recourse to aforesaid Section D cannot be had and the powers cannot be exercised by the State Government.
4.9. While passing an order on the question of sanction the State Government exercises powers on the original side and not as an appellate or a revisional authority thus where the competent authority has refused to grant sanction by a written and speaking order, the State Government cannot examine it as appellate or revisional authority.
4.10. Being penal in nature, provisions of Act of 1988 and the Amending Act of 1991 are prospective in nature. The offence having been committed in the year 1985 in this view of matter the question relating to grant of sanction for the prosecution of the applicant can be considered under the provisions of Act of 1947. As such, recourse to Act of 1988 with its U.P. Amendment incorporated in the year 1991 cannot be had for considering the matter for grant of sanction in case of applicant.
4.11. The aforesaid sanction order (Annexure 4) does not mention a very important fact that the sanction had been twice refused by the competent authority on earlier occasions (vide orders dated 29.09.1987 and 27.10.1989, Annexure No.-2 and 3, respectively).
4.12. The sanction of the State was obtained by concealment of material facts. In these circumstances, it is apparent and crystal clear that the Governor did not have enough and all relevant material before him, to consider issue for grant of sanction and he was misled into passing of order of sanction.
4.13. Due to non production of the orders dated 29.09.1987 and 27.10.1989, serious prejudice has been caused to the applicant. In case all relevant material would have been placed before the Governor, sanction for prosecution of applicant could not have been granted.
4.14. As the alleged offence having been committed in the year 1985, in view of above proper sanction for prosecution of the applicant could be obtained only under Section 6 of the Act of 1947.
4.15. Sanction order dated 20.12.1993 for prosecution of the applicant is wrong and illegal. It cannot be treated proper sanction for prosecution of the applicant as on earlier two occasions sanction for prosecution of applicant was refused by the competent authority viz. Chief Engineer (Hydel).
4.16. The Court below has not considered above aspect of the matter and mechanically reject the application of applicant for discharge and framed charges against the applicant vide non speaking and unreasoned impugned order.
4.17. The impugned order dated 7.6.1995 for framing of charges is wrong, illegal and not sustainable in the eyes of law.
4.18. For the aforesaid reasons, this application deserves to be allowed and impugned order as well as all proceedings of Special Trial No. 353 of 1994 (State of U.P. Versus Indra Kumar Adhlakha) pending in the court of 14th Additional District & Sessions Judge, Ghaziabad are liable to be quashed.
5. Per contra, learned AGA defended and supported the impugned order and sanction order (Annexure 6 and 4, respectively) by submitting that both the above orders are perfectly justified and strictly in accordance with law. The application is devoid of merits and liable to be quashed.
6. I have considered the above referred rival submissions raised by the learned counsel for the parties and perused the record.
7. Prior to proceed further, it will be useful to take note of relevant case law which are being discussed herein below.
8. Section 30 of the Act 1988 reads as under:
30. Repeal and saving.- (1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed.
(2) Notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed such, in so far as it is not inconsistent with the provisons of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of this Act.
9. Section 6 of the General Clauses Act, 1897 (hereinafter referred to Act, 1897) reads as under:
6. Effect of repeal.- Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hithereto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.
10. In Digvijai Singh versus State of U.P. Through Special Secretary Forest Civil Secretariate, Lucknow, application under Sections 482/378/407 No. 1804 of 2004 decided on 8.6.2015 this court observed as under:
The Hon'ble Apex Court in R.S. Nayak Vs. A.R. Antulay, (1984) 2 SCC 183, the Court has held that :
"By a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants."
In Mansukhlal Vithaldas Chauhan Vs. State of Gujrat (1997) 7 SCC 622, Hon'ble Apex Court in paragraph nos. 18, 19 and 23 has held as follows :
"18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (See also Jaswant Singh v. State of Punjab, AIR 1958 SC 124 and State of Bihar Vs. P.P. Sharma, 1992 Supp(1) SCC 222)
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.
23. In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion."
In Gopikant Choudhary V. State of Bihar and others, (2000) 9 SCC 53, the Court held in paragraph no. 5, that :
"5. In the case in hand, the matter was initially placed before the Minister of Law who refused to accord sanction after applying his mind to the entire materials and an order to that effect was passed. Subsequent to the same, the appellant retired in the year 1994 and it is only in 1997, the Chief Minister appears to have passed the impugned order. The appellant assailed the legality of the aforesaid order in the High Court, but the High Court having not interfered, he has approached this Court. It is contended on behalf of the appellant that no fresh materials were collected subsequent to the earlier order refusing to sanction prosecution and the appropriate authority having applied its mind and having passed the said order, the subsequent order was wholly uncalled for and unjustified. In the counter-affidavit filed by the State, it has been indicated that before passing the earlier order, the matter had not been referred to the Chief Minister who was the competent authority and, therefore, when the matter was referred to the Chief Minister, the Chief Minister having passed the order there is no infirmity with the order of sanction in question. He also produced the relevant file before us to indicate as to how the file has been processed after the earlier order refusing to sanction prosecution.
6. We find from the file that was produced that there has been no application of mind when the subsequent order was passed in the year 1997. It further appears that between the order refusing to sanction and the order that was passed in 1997, the investigating agency had not collected any fresh materials requiring a fresh look at the earlier order. It is also apparent that the alleged excess amount said to have been paid on account of non-performance of the duty by the appellant is to the tune of Rs 2750 and, therefore, under the Rules of Business, the file pertaining to sanction would have been finally dealt with by the Law Minister and, in fact, he had done so. In this view of the matter, neither was there any necessity for the authorities concerned to place the file before the Chief Minister nor had the Chief Minister any occasion to reconsider the matter and pass fresh order sanctioning prosecution particularly when taking into account the loss sustained to the exchequer to the tune of Rs 2750. That apart, the person concerned has already retired in the year 1994 and it is unthinkable that for a loss of Rs 2750 the State would pursue the proceedings against such person. In this view of the matter, we set aside the impugned order of sanction dated 10-12-1997 passed by the Chief Minister for prosecuting the appellant."
In the State of Himachal Pradesh Vs. Nishant Sareen, AIR 2011 SC 404, the Court has held in paragraph no. 12 as follows:
"12............. 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."
11. On the basis of above referred cases it is settled legal position that when once on certain material the Sanctioning Authority decides not to grant sanction, certainly on the same material, the Sanctioning Authority cannot change its opinion.
12. Perusal of the record reveals that on 12.1.2017 following order has been passed:
"Learned counsel for the applicant states that he had received a copy of counter affidavit filed by the State in the year 1999. The said counter affidavit is not on record. However, whenever the matter was listed before this Court and despite several directions of this Court, office has not been able to trace out the said counter affidavit filed by the State. On 19.9.2016, this Court directed the learned AGA to file a true copy of the counter affidavit which was filed in the office on 24.8.1999. Despite several directions to the learned AGA neither counter affidavit nor its true copy has been filed. The matter is very old and urgent.
In view of it, learned AGA is granted four weeks' and no more time to file counter affidavit or its true copy. Two weeks' thereafter is granted to the learned counsel for the applicant to file rejoinder, if any.
List thereafter."
13. Above order of the Court dated 12.1.2017 is not complied till the day. Consequently there is uncontroverted contents of affidavit filed in support of application.
14. Though learned AGA has vehemently opposed the contentions of learned counsel for the applicant, but he could not show any material or circumstance which may provide any justification to disbelieve the uncontroverted contents of affidavit filed in support of the application.
15. The order dated 29.9.1987 (Annexure-2) passed by the Chief Engineer (Hydel) for refusing grant of sanction reads as under:
"i= la0 2298 vuq0&4@lh0bZ0,pVh&1 vkbZ&@85@vkbZ0ds0v 29&9&1987 lsok esa] iqfyl v/kh{kd] mRrj izns'k] lrdZrk vf/k"Bku esjBA fo"k;&% loZ Jh bUnz dqekj v/ky[kk ,oa juohj flag voj vfHk;Urkvks fo|qr forj.k [k.M&r`rh; uks,Mk xkft;kckn ds fo:) /kkjk 161 Hkk0n0fo0 ,oa 5¼2½ Hkw0fu0vf/k0 ds vUrZxr iathd`r fdlds ckjs esaA egksn;] d`i;k mijksDr fo"k;d vius i= la[;k& l0v0vuq&2&101@85 fnukad& 21&7&1986 dk voyksdu djsaA bl lEcU/k esa vkids mDr i= ds lkFk izkIr mijksDr ekeys esa lEcfU/kr ewy dkxtkrks ds lfgr dsl Mk;jh ds v/;;u ,oa ijh{k.k ls ;g fofnr gksrk gS fd loZ Jh bUnz dqekj v/ky[kk ,oa juohj flag voj vfHk;Urk] fo|qr forj.k [k.M r`rh;] uks,Mk xkft;kckn ds fo:) mi;qZDr Vsi ekeys dk dksbZ izFke n`"V;k ekeyk ugha curkA ,slh fLFkfr esa eqdnek pykus dh vuqefr nsuk U;k; laxr ugha gksxkA mijksDr ekeys ls lEcfU/kr vkils izkIr iqfyl dsl Mk;jh ,oa vU; ewy vfHkys[k layXu fooj.kks lfgr bl dk;kZy; ds lgk;d }kjk okil fd;k tk jgk gS ftldh izkfIr nsus dh d`ik djsaA layXud&l/kk mijksDrA Hkonh;] 29&9&87 ¼ih0ih0'kqDyk½ eq[; vfHk;Urk ty fo|qrA"
16. The order dated 27.10.1989 (Annexure-3) passed by the Chief Engineer (Hydel) again refusing sanction reads as under:
"dk;kZy; eq[; vfHk;Urk ¼ty fo|qr½ m0 iz0 jkT; fo|qr ifj"kn 4&fodzekfnR; ekxZ y[kuÅA la01658 vuq0¼1½@lhbZ,e@Vh&1@vkbZ&2@vkbZ0ds0,0@fnukad] 1989 fo"k;%& Jh bUnz dqekj v/ky[kk voj vfHk;Urk] uks,Mk] xkft;kckn ds ns; ds lEcU/k esaA d`i;k mijksDr fo"k;d ifj"knh; i= la0 513&,u0th0&09¼v½@ jkfoi@89&49¼29½@d@86 fnukad 24&4&89 dk voyksdu djsaA bl lEcU/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd ifj"kn ds mDr lUnfHkZr i= }kjk loZ Jh bUnz dqekj v/ky[kk ,oa vkj0ch0flag voj vfHk;Urkvks ds fo:) vfHk;kstu lEcU/kh ekeys dks iqujh{k.k djus ds lEcU/k esa fn;s x;s vksn'kkuqlkj lEcfU/kr vf/kdkjh ls ekeys esa ,d foLr`r foHkkxh; fjiksVZ izkIr dj bl dk;kZy; Lrj ij iqujh{k.k fd;k x;kA mDr foHkkxh; fjiksVZ rFkk ekeys ls lEcfU/kr dkxtkrks dk xgu v/;;u ,oa ijh{k.k fd;k x;kA pwWfd mDr foHkkxh; fjiksVZ esa lEcfU/kr vf/kdkjh }kjk dksM uohu lkexzh rF; izLrqr ugha fd;k x;k QyLo:i izLrqr ekeys dks ifj.kksijkUr ;g ik;k x;k fd loZ Jh d`".k dqekj v/ky[kk ,oa vkj0ch0flag voj vfHk;Urkvksa ds fo:) mi;qZDr ns; ekeys dk dksbZ izFke n`"V;k ¼ ½ ekeyk ugha curk ,sls gkykr esa eqdnek pykus dh vuqefr nsuk U;k; laxr ugha gksxkA Hkonh;] ¼ch0,l0lDlsuk½ oS;fDrd lgk;d¼prqFkZ½ d`rs eq[; vfHk;Urk ¼ty fo|qr½"
17. The sanction order dated 20.1.1993 (Annexure-4) passed by the Governor of U.P. reads as under:
"mRrj izns'k ljdkj ntkZ vuqHkkx&2 la[;k&6418 ¼4½ih&2@93&23&306bZ@85 y[kuÅ% fnukad 20 tuojh 1993 vkns'k pwWfd ;g vfHkdfFkr gS fd flrEcj 1985 esa Jh bUnz dqekj v/ky[kk voj vfHk;Urk ,oa Jh vkj0ch0flag voj vfHk;Urk fo|qr forj.k mi[k.M ikoj gkml lsDVj&9 uks,Mk] xkft;kckn esa dk;Zjr FksA fnukad 11&9&85 dks ckcw [kWk ¼f'kdk;rdrkZ½ iq= Jh yrhQk [kkW }kjk ftykf/kdkjh xkft;kckn dks fn;s x;s vius f'kdk;rh i= esa dgk x;k Fkk fd fnukad 10&9&85 dks fnu esa djhc ,d cts Jh bUnz dqekj v/ky[kk voy vfHk;Urk ,oa Jh vkj0ch0flag voj vfHk;Urk mudh QSDVjh lqijQwM ,.M vk;y izksMDVl eerk czkUM Mh&61 lsDVj 10 uks,Mk xkft;kckn ds ifjlj esa vk;s vkSj ekfyd Jh ckcw [kkW ls fctyh dk fcy ekWxk vkSj dgk fd QSDVªh esa yksM vf/kd gS Jh v/ky[kk us viuh dkih esa dqN fy[kk vkSj Jh ckcw [kkW dks crk;k fd blesa fctyh dk yksM vf/kd gksus ds ckjs esa fy[kk gS rFkk Jh ckcw [kkW ls gLrk{kj ds fy;s dgk] ysfdu muds euk djus ij Jh v/ky[kk us dgk fd QSDVªh dk ekfyd gksus ds ukrs mUgsa gLrk{kj djus iMs+xs rnksijkUr Jh ckcw [kkW us viuh fVIi.kh ,d ehVj 15 ,p0ih0 2 ehVj 15 ,p0ih0 3 ehVj 2 ,p0ih0 fy[kdj ogkW vius gLrk{kj cukdj rkjh[k Mky nh nksuks voj vfHk;Urk QSDVªh ls pys x;s vkSj pyrs le; Jh v/ky[kk us dgk fd og Jh vkj0ch0flag ls muds ?kj ij feys 'kke dks Jh ckcw [kkW Jh flag ls ugha feys vkSj blds ctk; og viuh QSDVªh igqWps rks muds lqijokbtj Jh eksrh flag us crk;k fd ykbueSu Jh jke fd'kksj lDlsuk vius nks gsYijks ftuesa ,d ljnkj flag isVªksy eSu Fkk ds lkFk vkdj QSDVªh dks ykbudkV x;s vkSj pyrs le; Jh ljnkj flag dg x;k gS fd Jh ckcw [kkW voj vfHk;Urk Jh v/ky[kk ls rFkk lk{kh Jh djrkj flag] fuoklh cjksrk] Fkkuk lkykjiqj uks,Mk xkft;kckn rFkk Jh eksrh flag fuoklh bVSyh Fkkuk [ktuh tuin xksj[kiqj tks QSDVªh esa lqijokbtj Hkh Fkk ds lkFk fnukad 12-9-85 dks lka;dky 6-30 cts Jh ckcw [kkW dks QSDVªh esa Vªsi vk;ksftr fd;k vkSj muds dk;kZy; ij Jh ckcw [kkW ls 1500@& dks ?kwl xzg.k djrs gq;s Jh bUnz dqekj v/ky[kk voj vfHk;Urk dks jaxs gkFkks fxjQ~rkj fd;k x;kA 2&% vkSj pwWfd mDr dk;kZsa ls ,slk vijk/k curk gS tks Hkkjrh; n.M lafgrk dh /kkjk 161 ,oa Hkz"Vkpkj fuokj.k vf/kfu;e 1947 ¼vf/kfu;e la[;k&2 lu~ 1947½ dks /kkjk 5 dh mi /kkjk ¼2½ ds v/khu n.Muh; gSA 3&% vkSj pwWfd bl ekeys esa miyC/k lHkh vfHkys[k fooj.k ,oa lk{; ij lko/kkuh iwoZd fopkj djus ds mijkUr rFkk ekeys dks lHkh ifjfLFkfr;ks dks ns[krs gq;s jkT; ljdkj dk ;g fopkj gS fd Jh bUnz dqekj v/ky[kk o Jh vkj0ch0flag voj vfHk;Urk ,oa Jh ljnkj flag isVªksy eSu dks Hkkjrh; n.M lafgrk dh /kkjk 161 rFkk /kkjk 161 ds lkFk ifBr /kkjk 120&[k vkSj Hkz"Vkpkj fuokj.k vf/kfu;e 1947 dh /kkjk 5 ¼2½ ds v/khu l{ke U;k;ky; esa vfHk;ksftr fd;k tk;A 4&% vkSj pwWfd 'kklu ds vkns'k la[;k&1631ch&2@93&23&306bZ@85 fnukad 17 vizSy 1993 }kjk v/;{k@lfpo ,oa eq[; vfHk;Urk ¼ty fo/kqr½ mRrj izns'k jkT; fo|qr ifj"kn y[kuÅ ls vis{kk dh x;h Fkh fd 20 ebZ 1993 rd mDr Jh bUnz dqekj v/ky[kk Jh vkj0ch0flag voj vfHk;Urk ,oa Jh ljnkj flag isVªksy eSu ds fo:) vfHk;kstu dh iwoZ eatwjh ns vkSj mDr izkf/kdkjh fofufnZf"V vof/k esa Hkhrj iwoZ eatwjh nsus esa foQy jgs gSA 5&% vkSj pwWfd Hkz"Vkpkj fuokj.k vf/kfu;e 1947 fujLr gks pqdk gSA 6&% vr,o vc Jh jkT;iky ,rn~ }kjk Hkz"Vkpkj fuokj.k ¼mRrj izns'k la'kks/ku vf/kfu;e 1991½ mRrj izns'k vf/kfu;e la[;k&4 lu~ 1991 }kjk ;Fkk la'kksf/kr Hkz"Vkpkj fuokj.k vf/kfu;e 1988 ¼vf/kfu;e la[;k&49 lu~ 1988 dh /kkjk 19 dh mi /kkjk ¼1½ ds [k.M ¼?k½ ds v/kkhu 'kfDr dk iz;ksx djrs gq;s mDr vijk/kks ds fy;s vkSj mi;qZDr dk;ksZ ds lEcU/k esa fof/k ds vU; micU/kks ds v/khu n.Muh; fdUgh vU; vijk/kksa ds fy;s mDr Jh ljnkj flag] isVªksy eSu dks vfHk;kstu djus vkSj mDr vijk/kksa dk fdlh vf/kdkfjrk ;qDr l{ke U;k;ky; }kjk laKku djus ds fy;s iwoZ eatwjh iznku djrs gSA jkT;iky dh vkKk ls] ¼ch0ds0prqosZnh½ izeq[k lfpoA"
18. The written submission dated 13.3.1995 filed on behalf of the applicant before the Court below (Annexure-5) reads as under:
"U;k;ky; pkSngosa vij ftyk ,oa l= U;k;k/kh'k xkft;kcknA fo'ks"k ijh{k.k la[;k lu~ 94 ljdkj cuke bUnz dqekj vny[kk vkfn /kkjk& 5 ¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e Fkkuk& uks,Mk& lsDVj & 20 xk0 ckn egksn;] vfHk;qDrx.k dks mUeksfpr djus ds fy;s fyf[kr cgl fuEu izdkj gS&% 1&% ;g fd vfHk;kstu i{k lrdZrk vf/k"Bku ls vfHk;qDrx.k ds fo:) Hkk0na0la0 dh /kkjk 161 ,oa Hkz"Vkpkj fuokj.k vf/k0 1947 dh /kkjk&5 mi /kkjk&2 ds v/khu ekuuh; U;k;ky; esa vkjksi i= izsf"kr fd;k gSA 2&% ;g fd ?kVuk fnukad 12-9-85 ls lEcfU/kr gSA 3&% ;g fd vfHk;qDrx.k ds fo:) fnukad 29-9-87 dks eq[; vfHk;Urk ^ty fo|qr^ m0iz0jk0fo0 ifj"kn y[kuÅ ,oa fnukad 27&10&89 dks eq[; vfHk;Urk ^^ty fo|qr** m0iz0jk0fo0 ifj"kn us vfHk;qDrx.k ds fo:) /kkjk&6 Hkz"Vkpkj fuokj.k vf/kfu;e 1947 esa vfHk;kstu ds fy;s iwoZ Lohd`r nsus ls bUdkj dj fn;kA ;s vfHkys[k i=koyh ij miyC/k gSA 4&% ;g fd Hkz"Vkpkj fuokj.k vf/kfu;e 1988 dh /kkjk&19 dh mi/kkjk ^^1** ds [k.M ^^?k** v/;kof/kd la'kksf/kr ds v/khu egkefge jkT;iky ds vfHk;kstu ds fy;s viuh Lohd`r iznku dh gSA 5&% ;g fd jkT; ljdkj dh vfHk;kstu ds fy;s iwoZ Lohd`r fof/k fo:) ,oa izkd`frd U;k; ds fl)kUr ds fo:) gSA jkT; ljdkj us iwoZ Lohd`r vf/kfu;e la[;k&2 lu~ 1947 dh /kkjk 5 ¼2½ ds v/khu Lohd`r iznku dh gS blh vf/kfu;e dh /kkjk&6 ds iwoZ Lohd`fr ds fy;s 'kfDr dk iz;ksx ugha fd;k x;k gSA 6&% ;g fd jkT; ljdkj dh iwoZ Lohd`fr o"kZ 1988 ds vf/kfu;e la[;k&49 ds v/khu iznku dh x;h gS tc fd jkT; ljdkj dks vf/kfu;e 1988 dh /kkjk&19 ds vUrZxr /kkjk&2 ¼2½ o"kZ&1947 ds vUrZxr iwoZ Lohd`fr iznku djus dk dksbZ vf/kdkj izkIr ugha gS lu~ 1988 ds vf/kfu;e esa jkT; ljdkj dsoy /kkjk&7]10]11]13 vkSj 15 ds vUnj gh vfHk;kstu ds fy;s Lohd`r nsus dk vf/kdkj izkIr gSA 7&% ;g fd bl izdkj egkefge jkT;iky us vfHk;kstu ds fy;s iwoZ Lohd`fr nsrs le; vius foosd dk iz;ksx ugha fd;k gS vkSj fof/kd n`f"V ls iwoZ Lohd`fr fof/k fo:) ,oa nks"kiw.kZ gSA ftlds vk/kkj ij orZeku esa vfHk;kstu dh dk;Zokgh dks lapkfyr ugha fd;k tk ldrkA vr% Jheku~ th ls izkFkZuk gS fd iwoZ Lohd`r nks"kiw.kZ gksus ,oa fof/kd izfdz;kvks dk ikyu u fd;s tkus ds dkj.k vfHk;qDrx.k dks mUeksfpr djus dh d`ik djsaA fnukad& 13&3&95 vfHk;qDrx.k }kjk&f'ko dqekj xqIrk ,MoksdsV xkft;kcknA"
19. The impugned order dated 7.6.1995 (Annexure-6) passed by the trial court reads as under:
Þeqdnek iqdkjk x;kA pktZ ij cgl lquhA miyC/k lk{; ds vk/kkj ij izFke n`"V;k vkjksi curk gSA eqyfteku bUnz dqekj v/ky[kk ljnkjflag o juohj flag U;k;ky; esa mifLFkr vk;sA vfHk;qDrx.k ds fo:) /kkjk 161] 120¼[k½ Hkk0na0la0 ,oa 5¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e ds vUrxZr vkjksi xfBr fd;k x;k ftlls vfHk;qDrx.k us bUdkj fd;k rFkk fopkj.k fd;s tkus dh ;kpuk dks i=koyh okLrs lk{; fnukad 10-7-95 dks is'k gksAß
20. It is apparent from the contents of the above referred affidavit and material available on record that earlier on two occasions vide orders dated 29.09.1987 and 27.10.1989, (Annexure No.-2 and 3, respectively) the competent authority i.e. Chief Engineer (Hydel) has refused to grant sanction for the prosecution of applicant.
21. No doubt that the State Government may exercise power to grant pre-sanction for prosecution under Section 19 (1) (d) even where the authority referred in Clause (c) has earlier refused to give previous sanction. But as held in Nishant Sareen (supra) that 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 the light of 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.
22. As per Section 6 (e) and last part of this section of General Clauses Act, 1897 repeal of the Act 1897 will not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or regulation had not been passed.
23. By virtue of Section 30 (2) of Act, 1988 anything done or action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act.
24. In view of above, the State Government is fully competent to reconsider the matter for grant of pre-sanction. Even pre-sanction has already been refused by the competent authority, but as stated earlier for exercise of this power there must be any fresh material which may justify reconsideration of the matter.
25. There is no material on record to show that after earlier refusal of pre grant sanction twice, any fresh material have been collected or being brought to the knowledge having potential to change earlier opinion of refusal to grant pre-sanction.
26. In these circumstances matter was not required to be send again for grant of pre-sanction to the Chief Engineer (Hydel) for order within stipulated period and on his failure to pass order as required by the State Government, to take up the matter of reconsideration for grant of pre-sanction itself by the State Government (Governor of Uttar Pradesh).
27. It is also equally settled that sanction is not a mere formality and investigating officer is duty bound to put all relevant material before the sanctioning authority so far after considering all relevant material, facts and circumstances of the case, sanctioning authority may be in position to take a just and proper decision to grant or refuse pre-sanction for prosecution.
28. There is no reference or discussion of the fact about earlier refusal to grant pre-sanction twice which indicates that probably investigating officer has not put earlier orders of refusal to grant pre-sanction and due to that reason above orders of refusal to grant pre-sanction could not be considered by the sanctioning authority i.e. the State Government (Governor of Uttar Pradesh) which is a material defect in sanction order (Annexure-4) causing a serious prejudice to the applicant, same is also indicative of non application of mind by the sanctioning authority while passing order to grant pre-sanction for prosecution (Annexure-4).
29. In view of the above, sanction order dated 21.1.1993 (Annexure-4) is neither in accordance with law nor inconsonance of the above referred judmgents of Hon'ble Apex Court specially judgments of Gopikant Chaudhary and Nishant Sareen (both supra).
30. For the aforesaid reasons and discussion, I found substance in the submissions raised on behalf of the applicant that sanction order dated 20.1.1993 has no sanction in the eyes of law. The impugned order dated 7.6.1995 is a non speaking order and there is no discussion at all in it about the objection raised on behalf of the applicant for framing charge.
31. In view of above, application deserves to be allowed. Accordingly, this application is allowed. The impugned order dated 7.6.1995 is hereby quashed alongwith all proceeding arising out of Special Trial No. 353 of 1994 (State of U.P. Versus Indra Kumar Adhlakha) pending in the court of 14th Additional District & Sessions Judge, Ghaziabad.
Order Date :- 31.8.2018 Israr/Ravi Prakash