Allahabad High Court
Prof. Vipin Saxena vs C.B.I./A.C.B. Lucknow And Anr. on 8 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad Sitting at Lucknow ********************************************** Neutral Citation No. - 2023:AHC-LKO:52777 RESERVED A.F.R. Judgment Reserved on : 18.05.2023 Judgment Pronounced on: 08.08.2023 Court No. - 16 Case :- APPLICATION U/S 482 No. - 839 of 2020 Applicant :- Prof. Vipin Saxena Opposite Party :- C.B.I./A.C.B. Lucknow And Anr. Counsel for Applicant :- Pranjal Krishna,Shivam Pandey Counsel for Opposite Party :- A.S.G.,Anurag Kumar Singh,Dr. V.K. Singh Hon'ble Subhash Vidyarthi J.
1. Heard Sri. Pranjal Krishna, the learned counsel for the petitioner, Sri Anurag Kumar Singh, the learned counsel representing the respondent no. 1 - C.B.I. and Dr. V. K. Singh, the learned counsel for the respondent no. 2 - Babasaheb Bhimrao Ambedkar University, Lucknow.
2. By means of the instant application filed under Section 482 Cr.P.C, the petitioner has challenged validity of the order dated 28.05.2019 passed by the Learned Special Judge, Anti-Corruption, C.B.I (West), Lucknow in Criminal Case No. 545 of 2017, whereby the application dated 07.03.2019 filed by the petitioner challenging the prosecution sanction order dated 26.10.2017 passed by the Vice Chancellor of the University has been rejected.
3. The petitioner was working as a Professor in the University since 25.06.2011. Sri. Ved Kumar, who was working as an Assistant Professor in the University on contractual basis, filed a Complaint dated 31.05.2017 against Vijay Kumar Dwivedi, an outsourced private staff engaged by a private firm M/s Shri Sai Nath Associates and working at the University, alleging a demand of illegal gratification of Rs.50,000/- for extension of the complainant's contract of service beyond 31.05.2017. In furtherance of the aforesaid complaint, an F.I.R. bearing R.C. No. 0062017A0012 dated 02.06.2017 was lodged under Section 7 of the Prevention of Corruption Act, 1988 in Police Station C.B.I/A.C.B/ Lucknow. The petitioner was not named in the complaint or in the F.I.R.
4. A trap was laid on 02.06.2017 and the named accused Vijay Dwivedi was caught red-handed while demanding and accepting Rs.50,000/- bribe from the complainant for extension of his contract of service. The accused Vijay Dwivedi said that he had demanded and accepted the bribe on behalf of the petitioner, who had directed him to collect Rs.50,000/- as bribe from each of the Assistant Professors working on contractual basis, who wanted to get their service tenure extended. Two telephonic conversations were arranged and recorded between the petitioner and Vijay Dwivedi, in which the petitioner acknowledged the information given by Vijay Dwivedi that he had collected the money from various teachers. A file marked Extension of Contractual Faculty was recovered from the office of the petitioner.
5. After completion of investigation, on 01.08.2017 the C.B.I. filed a charge-sheet against the petitioner and Vijay Dwivedi alleging commission of offences under Section 120-B I.P.C. and Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988.
6. Sanction under Section 19 of the Prevention of Corruption Act,1988 for the Prosecution of the petitioner was accorded by the Vice Chancellor of the University on 26.10.2017.
7. On 05.07.2018, the Learned Special Judge, Anti-Corruption, C.B.I. (West), Lucknow, took cognizance of commission of the offences on the basis of the Sanction Order dated 26.10.2017 and it proceeded with the trial.
8. On 08.01.2019, the trial Court started recording the examination-in-chief of PW-1 Sri. R. C. Sobati, Vice-Chancellor of the University - the person who had issued the order sanctioning prosecution of the petitioner, and his cross-examination also started on the same date, which was concluded on 21.01.2019.
9. On 07.03.2019 the petitioner filed an application before the trial Court challenging validity of the sanction order dated 26.10.2017 on the ground that sanction for prosecution can be granted only by the appointing authority of the petitioner, which is the Board of Management of the University. The Vice-Chancellor of the University is not the petitioner's appointing authority and the prosecution sanction granted by the Vice-Chancellor was without authority.
10. The petitioner's application challenging validity of the prosecution sanction order was rejected by the trial Court vide order dated 28.05.2019, on the ground that the Vice-Chancellor had passed prosecution sanction order on behalf of the Board of Management of the University.
11. Assailing the order dated 28.05.2019, Sri Pranjal Krishna, the learned Counsel for the petitioner, has submitted that the Board of Management of the University is the authority who can appoint/remove a permanent teacher in the University and the Board alone is competent for granting sanction for prosecution. In the present case, prosecution sanction has been granted by the Vice Chancellor of the University and he is not the Competent Authority under the provision of Act and Statute of the University.
12. Per Contra, Shri Anurag Kumar Singh, the learned Counsel for the respondent no. 1 - C.B.I. and Dr. V. K. Singh, the learned Counsel for the respondent no. 2 - University, have submitted that the sanction for prosecution of the petitioner was granted by the Board of Management of the University in its 62nd meeting and the Vice-Chancellor had merely implemented the decision of the Board of Management. Subsequently the Board of Management had ratified the decision in its 63rd Meeting.
13. Dr. V. K. Singh, the learned Counsel for the University has submitted that Section 12 (3) of the Babasaheb Bhimrao Ambedkar University Act, 1994 authorizes the Vice Chancellor for taking decision on behalf of the Board Of Management, in case of urgency. The Vice Chancellor duly deliberated the issue with the Members of the Board Of Management by circulation, took their consent and proceeded to grant the permission for initiation of the prosecution under Section 19 of the Act of 1988.
14. The learned Counsel for the petitioner relied upon the judgments of the Hon'ble Supreme Court in R. S. Nayak Vs. A. R. Antulay, (1984) 2 SCC 183, Nanjappa v. State of Karnataka, (2015) 14 SCC 186, CBI v. Ashok Kumar Aggarwal (2014) 14 SCC 295, State (Inspector of Police) v. Surya Sankaram Karri, (2006) 7 SCC 172 and State of Goa v. Babu Thomas, (2005) 8 SCC 130..
15. In R. S. Nayak Vs. A. R. Antulay, (1984) 2 SCC 183, the Hon'ble Supreme Court held that: -
"23....The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office."
16. In Nanjappa v. State of Karnataka, (2015) 14 SCC 186, the trial Court had held that the authority who had granted the sanction, was not competent to do so and this finding of fact was not disputed before the High Court or before the Supreme Court. However, having recorded the aforesaid finding, the trial court passed an order of acquittal on the merits of the case. The Hon'ble Supreme Court held that the trial Court having held the sanction to be invalid, it should have discharged the accused rather than acquitting him. In this factual backdrop, the Hon'ble Supreme Court held that "The question regarding validity of such sanction can be raised at any stage of the proceedings."
17. The relevant passage of CBI v. Ashok Kumar Aggarwal (2014) 14 SCC 295, relied upon by the learned Counsel for the petitioner is as follows: -
"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 v. Airport Authority of India (2012) 1 SCC 532 this Court dealt with the issue and placing reliance upon the judgment in Parkash Singh Badal v. State of Punjab (2007) 1 SCC 1, came to the conclusion as under :
"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 ...."
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."
18. In State (Inspector of Police) v. Surya Sankaram Karri, (2006) 7 SCC 172, the Hon'ble Supreme Court held that "When a sanction is granted by a person not authorised in law, the same being without jurisdiction, would be a nullity."
19. There can be no dispute regarding the aforesaid proposition of law, but this principle was reiterated by the Hon'ble Supreme Court while deciding an Appeal filed against a judgment and order passed by the High Court of Andhra Pradesh in an appeal filed against an order of conviction, in the factual backdrop that the authority who had passed the sanction order had accepted in his examination in chief that under the rules although he was not the competent authority to remove the accused from service, he had been delegated with power of removing him. However, the Supreme Court recorded in para 23 of the judgment that "The purported delegation of power had never seen the light of the day. No reliance thereupon could have been placed to arrive at a finding that the said witness was authorised to accord sanction. The learned Special Judge did not apply his mind to these aspects of the matter at all."
20. The learned Counsel for the petitioner has relied upon the decision of the Hon'ble Supreme Court in State of Goa v. Babu Thomas, (2005) 8 SCC 130, wherein undisputedly the sanction for prosecution of the respondent was granted by the Company Secretary whereas the authority competent to remove the respondent from the post he was holding was the Board of Directors. There was no order/resolution of the Board of Directors of the Company authorising the Company Secretary to convey the sanction order passed by the Board of Directors. Pursuant to the sanction order dated 02.01.1995, cognizance was taken on 29-5-1995. Another sanction order dated 07.09.1997 was issued by the Chairman and Managing Director of Goa Shipyard Company Ltd. after cognizance was taken on 29.05.1995 and it stated that in exercise of the powers vested and on behalf of the Board of Directors, sanction was accorded to prosecute the respondent retrospectively with effect from 14.09.1994. In the aforesaid factual backdrop, the Hon'ble Supreme Court held that: -
"12. As already noticed, the sanction order is not a mere irregularity, error or omission. The first sanction order dated 2-1-1995 was issued by an authority that was not a competent authority to have issued such order under the Rules. The second sanction order dated 7-9-1997 was also issued by an authority, which was not competent to issue the same under the relevant rules, apart from the fact that the same was issued retrospectively w.e.f. 14-9-1994, which is bad. The cognizance was taken by the Special Judge on 29-5-1995. Therefore, when the Special Judge took cognizance on 29-5- 1995, there was no sanction order under the law authorising him to take cognizance. This is a fundamental error which invalidates the cognizance as without jurisdiction."
21. A copy of the agenda and the minutes of the 62nd emergent meeting of the Board of Management of the University held on 08.09.2017 have been annexed with the counter affidavit filed on behalf of the university. The sole agenda of the meeting was "to consider the issuance of the sanction of prosecution sought for the C.B.I. in CBI Case No. RC0062017A0012 against Dr. Vipin Saxena, Professor, Deptt. Of Computer Science and Honorary Director, University Institute of Engineering and Technology, BBAU, Lucknow". It was mentioned in the agenda that a copy of the letter dated 01.08.2017 received from the C.B.I. had been placed with the agenda and the Vice Chancellor had requested all the members of the Board of Management to send their concurrence / comments within 14 days. The response obtained from 5 members was appended to the agenda. One member, namely Prof. Raghuvendra Tanwar, had communicated that the Vice-Chancellor can take a decision in his wisdom and inform the Board of Management accordingly. Another member Prof. Ajay Kumar Jha wrote that keeping in view the gravity of the situation, the Vice-Chancellor as "... Principal executive and academic head of the University" can give permission to the C.B.I. to proceed ahead as per their opinion on this case enclosed in the given letter and thereafter report the matter to the Board of Management in its next meeting. Yet another member Prof. Vidya Sharda categorically wrote that "I give my concurrence for prosecution of Dr. Vipin Saxena".
22. The 62nd meeting of the Board of Management held on 08.09.2017 was attended by only 6 members as against the requisite quorum of 7 members and all the members present were in favour of giving sanction for prosecution of the petitioner. The Vice-chancellor had asked for consent of the members of the Board by circulation and Prof. Vidya Sharda, who was not present in the meeting, had categorically communicated in writing her concurrence for prosecution of the petitioner. Two other members Prof. Raghuvendra Tanwar and Prof. Ajay Kumar Jha wrote that keeping in view the gravity of the situation, the Vice-Chancellor can give permission to the C.B.I. to proceed ahead as per their opinion on this case enclosed in the given letter and thereafter report the matter to the Board of Management in its next meeting.
23. Thus it appears that the sanction was accorded by the Board of Management keeping in view the opinion of majority of the members of the Board of Management, not less than the prescribed quorum of 7 members and, therefore, the sanction order is not illegal or without authority for the reason that quorum was not complete in the 62nd meeting of the Board of Management held on 08.09.2017.
24. The sanction order dated 26.10.2017 issued under the signature of the Vice-Chancellor of the University mentions that "after carefully examining the material placed before it, including the statements recorded under Sections 161 and 164 Cr.P.C. and other relevant material regarding the allegations and taking into account the facts and circumstances of the case and on being fully satisfied, the Board of Management considers that the said Dr. Vipin Saxena, Prof. Department of Computer Sciences, the then Honorary Director of UIET, BBAU (U.P.) should be prosecuted in the Court of law for the said offences.
Now, therefore, the Board of Management of Babasaheb Bhimrao Ambedkar University, Lucknow, hereby accord sanction under Section 19 of the Prevention of Corruption Act, 1988 for prosecution of the said Dr. Vipin Saxena, Prof. Department of Computer Sciences, the then Honorary Director of UIET, BBAU (U.P.) for the offences under Section 120-B of I.P.C., Section 7 & 13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988 and any other offence as the Hon'ble Court desired fir in respect of the aforesaid acts and for taking cognizance of the said offences by a court of competent jurisdiction".
25. The minutes of the 62nd emergent meeting held on 08.09.2017 regarding grant of sanction for prosecution of the petitioner was confirmed by the Board of Management in its 63rd meeting. Therefore, the sanction order was approved by the Board of Management and the irregularity, if any, for the reason of want of quorum in the 62nd meeting, stood cured in the 63rd meeting held on 14.11.2017, much prior to 05.07.2018, when the trial Court took cognizance of the offence.
26. Moreover, Section 12(3) of the Babasaheb Bhimrao Ambedkar University Act, 1994, provides as follows: -
"12(3).The Vice-Chancellor may, if he is of opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and report to such authority the action taken by him on such matter Provided that if the authority concerned is of opinion that such action ought not to have been taken, it may refer the matter to the Visitor whose decision thereon shall be final.
Provided further that any person in the service of the University who is aggrieved by the action taken by the Vice-Chancellor under this sub-section shall have the right to appeal against such action to the Board of Management within three months from the date on which decision on such action is communicated to him and thereupon the Board of Management may confirm, modify or reverse the action taken by the Vice-Chancellor."
(Emphasis Supplied)
27. The Vice Chancellor has the statutory power to exercise the powers of any authority of the University, which obviously would include the Board of Management of the University, in certain situations mentioned in Sub-section (3) of Section 12. It was open for the Board of Management to have disapproved the action of the Vice-Chancellor and in that case, the Board of Management could have referred the matter to the Visitor of the University, but the Board of Management chose not to disapprove the action of the Vice-Chancellor, rather the decision taken in the 62nd meeting of the Board of Management, in furtherance whereof the Vice-Chancellor had issued the Sanction Order dated 26.10.2017, was confirmed in the 63rd meeting held on 14.11.2017. The sanction order was issued in accordance with the statutory power conferred upon the Vice-Chancellor by Section 12(3) of the Babasaheb Bhimrao Ambedkar University Act, 1994 and it was not without jurisdiction.
28. Therefore, the facts of the present case are different from the facts of the cases cited by the learned Counsel for the petitioner and the principle of law stated in the aforesaid case would not apply to the facts of the present case.
29. Prior to enactment of the Prevention of Corruption Act, 1988, the law governing the field was the Prevention of Corruption Act, 1947 and Section 6 of the 1947 Act contained the following provision regarding requirement of sanction for prosecution: -
"6. Previous sanction necessary for prosecutions.-
(1) No Court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code or under sub -section (2) or sub-section (3A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office gave by or with the sanction of the Central Government, of the Central 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 the State 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 whether the previous sanction as required under sub -section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority, which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed."
30. However, the 1947 Act was replaced by the 1988 Act and Section 19 of the Prevention of Corruption Act, 1988, as it applies to the State of Uttar Pradesh, contains the following provision regarding requirement of previous sanction for prosecution: -
"19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under Sections 7, 11, 13 and 15] alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013,--
(a) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed] in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence 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 rebove him from his office.
(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 purpose of this clause "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."
Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless--
(i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and
(ii) the court has not dismissed the complaint under Section 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:
Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant:
Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:
Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month:
Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary.
Explanation.--For the purposes of sub-section (1), the expression "public servant" includes such person--
(a) who has ceased to hold the office during which the offence is alleged to have been committed; or
(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation.--For the purposes of this section,--
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
31. A bare perusal of the aforesaid two statutory provisions indicate that previously there was no need to examine whether a failure of justice has been caused by any error, omission or irregularity in the sanction order but in the 1988 Act, the Courts have been prohibited from interfering on the ground of any error, omission or irregularity in the sanction order, unless it has resulted into a failure of justice.
32. Sri. Anurag Kumar Singh, the learned Counsel for the respondent no. 1 - C.B.I., has relied upon a decision of the Hon'ble Supreme Court in State of Bihar v. Rajmangal Ram, (2014) 11 SCC 388, wherein Babu Thomas (Supra) was distinguished. The Hon'ble Supreme quoted Section 19 of the Prevention of Corruption Act (which has already been quoted above) and Section 465 of the Cr.P.C., which is as follows: -
"465. Finding or sentence when reversible by reason of error, omission or irregularity.--(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
(Emphasis supplied) The Hon'ble Supreme Court held that: -
"6. In a situation where under both the enactments any error, omission or irregularity in the sanction, which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred, it is difficult to see how at the intermediary stage a criminal prosecution can be nullified or interdicted on account of any such error, omission or irregularity in the sanction order without arriving at the satisfaction that a failure of justice has also been occasioned. This is what was decided by this Court in State v. T. Venkatesh Murthy (2004) 7 SCC 763 wherein it has been inter alia observed that :
"14. ... Merely because there is any omission, error or irregularity in the matter of according sanction, that does 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."
(emphasis in original)
7. The above view also found reiteration in Parkash Singh Badal v. State of Punjab (2007) 1 SCC 1 wherein it was, inter alia, held that mere omission, error or irregularity in sanction is not to be considered fatal unless it has resulted in failure of justice. In Parkash Singh Badal it was further held that Section 19(1) of the PC Act is a matter of procedure and does not go to the root of jurisdiction..."
8. There is a contrary view of this Court in State of Goa v. Babu Thomas (2005) 8 SCC 130 holding that an error in grant of sanction goes to the root of the prosecution. But the decision in Babu Thomas has to be necessarily understood in the facts thereof, namely, that the authority itself had admitted the invalidity of the initial sanction by issuing a second sanction with retrospective effect to validate the cognizance already taken on the basis of the initial sanction order. Even otherwise, the position has been clarified by the larger Bench in State of M.P. v. Virender Kumar Tripathi(2009) 15 SCC 533."
33. The expression "failure of justice" occurring in Section 19 of the 1988 Act has been explained by the Hon'ble Supreme Court in CBI v. Ashok Kumar Aggarwal (Supra), in the following words: -
"19. The court must examine whether the issue raised regarding failure of justice is actually a failure of justice in the true sense or whether it is only a camouflage argument. The expression "failure of justice" is an extremely pliable or facile an expression which can be made to fit into any case. The court must endeavour to find out the truth. There would be "failure of justice" not only by unjust conviction but also by acquittal of the guilty as a result of unjust or negligent failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and safeguarded but they should not be overemphasised to the extent of forgetting that the victims also have certain rights. It has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. "Prejudice" is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there has been serious prejudice caused to him with respect to either of these aspects, and that the same has defeated the rights available to him under legal jurisprudence, the accused can seek relief from the court."
34. The petitioner could not point out as to what disability or detriment in the protections available to him in relation to investigation or trial has been suffered by him by the prosecution sanction order passed by the Vice-Chancellor and to satisfy that a failure of justice has been caused to him by the prosecution sanction order passed against him.
35. Sanction was accorded by the Board of Management for prosecution of the petitioner in its 62nd meeting held on 08.09.2017, keeping in view the opinion of majority of the members of the Board of Management. The minutes of the 62nd emergent meeting held on 08.09.2017 regarding grant of sanction for prosecution of the petitioner was confirmed by the Board of Management in its 63rd meeting. Therefore, the sanction order was approved by the Board of Management and the irregularity, if any, for the reason of want of quorum in the 62nd meeting, stood cured in the 63rd meeting held on 14.11.2017, much prior to 05.07.2018, when the trial Court took cognizance of the offence. Therefore, there appears to be nothing which could have caused a failure of justice in the present case.
36. Moreover, after the trial Court took cognizance of the offence on 05.07.2018, examination-in-chief of PW-1 started on 08.01.2019 and his cross-examination also started on the same date, which was concluded on 21.01.2019. The petitioner filed the application for declaring the prosecution sanction to be invalid only on 07.03.3019, which was rejected by means of an order dated 28.05.2019. The application under Section 482 Cr.P.C. challenging the validity of the order dated 28.05.2019 was filed on 06.02.2020. The petitioner could and should have filed the objections against the sanction order immediately after passing of the sanction order and the cognizance order, but he did not do so. He decided to challenge the sanction order only after recording of the examination in chief and cross examination of PW-1. Although there is no bar against the petitioner challenging the order of sanction after recording of statement of the Sanctioning Authority, the delay in challenging the sanction order indicates that petitioner did not suffer any failure of justice from the sanction order passed by the Vice-Chancellor.
37. The learned Counsel for the petitioner has next submitted that the entire material was not placed before the members of the Board of Management and they did not have the occasion to apply their mind to the material, which vitiates the order. He has also submitted that the sanction order is a verbatim reproduction of the draft sanction order sent by the C.B.I., which indicates a non-application of mind by the authority passing the order.
38. It appears from the material on record that it was mentioned in the agenda that a copy of the letter dated 01.08.2017 received from the C.B.I. had been placed with the agenda and the Vice Chancellor had requested all the members of the Board of Management to send their concurrence / comments within 14 days. A copy of the letter dated 01.08.2017 has been annexed as Annexure No. 1 to counter affidavit filed on behalf of the University, which contains a report prepared by the C.B.I. containing the background of the case, the allegations made in the F.I.R., the result of investigation, a summary of investigation, including relevant extracts of telephonic conversations, the statements of the accused persons and the draft sanction order.
39. Although one of the members Smt. Anju Bala had written that she needed certified copies of the documents alongwith their enclosures, she did not write that the enclosures of the letter were not provided to her. Another member Prof. Vidya Sharda had communicated that "After a careful perusal of the relevant documents attached with the aforementioned letter, in my capacity as a member of the Board of Management of the esteemed institution, B.B.A.U., I give my concurrence for prosecution of Dr. Vipin Saxena.", which indicates that the relevant documents had been with the letter sent to the members of the Board. No member complained that the entire material was not provided to him.
40. Therefore, I am unable to accept the submission of the learned Counsel for the petitioner that the complete material was not placed before the members of the Board of Management. Moreover, the contents of the sanction order being similar to the contents of the draft order is also not indicative of non-application of mind, as there is no need to use different contents in the sanction order, unless the sanctioning authority is not agreeable with the contents of the draft order.
41. The learned Counsel for the petitioner lastly submitted that it is settled law that whenever a manner is prescribed for doing a thing, the thing has to be done in that manner alone and the other modes of doing the thing are necessarily forbidden. There can be no dispute regarding the aforesaid proposition of law, but applicability of the principle has to be tested in the light of the facts of the present case. The Vice Chancellor has the statutory power to exercise the powers of any authority of the University, which obviously would include the Board of Management of the University, in certain situations mentioned in Sub-section (3) of Section 12 of the University Act. The Board of Management had the authority to disapprove the action of the Vice-Chancellor and to refer the matter to the Visitor of the University, but the Board of Management chose not to disapprove the action of the Vice-Chancellor. Rather, the Board confirmed the sanction order in its next meeting, much before the Court took cognizance of the offence. Therefore, the procedure adopted is in accordance with the provisions contained in Section 12 (3) of the University Act and I find no force in this submission also.
42. The inherent powers under Section 482 Cr.P.C. are to be exercised by this Court to prevent the abuse or the process of Court or to secure the ends of justice. There would be a "failure of justice" by refusal to prosecute a person against whom there is sufficient prima facie material warranting his prosecution for the offence of corruption and prosecution should not be scuttled at any intermediary stage by the High Court by adopting a hyper technical approach. As has already been stated above, no failure of justice has been caused to the applicant in the present case.
43. In view of the foregoing discussion, I am of the considered view that the order dated 26.10.2017 passed by the Vice-Chancellor of the University granting sanction for prosecution of the petitioner and the order dated 28.05.2019 passed by the Learned Special Judge, Anti-Corruption, C.B.I (West), Lucknow in Criminal Case No. 545 of 2017, rejecting the petitioner's application dated 07.03.2019 challenging the validity of the prosecution sanction order dated 26.10.2017, do not amount to abuse of process of Court and do not defeat the ends of justice and those do not suffer from any illegality.
44. The application under Section 482 Cr.P.C. lacks merit and the same is, accordingly, dismissed.
(Subhash Vidyarthi J.) Order Date - 08.08.2023 Prateek.