Chattisgarh High Court
Arvind Kumar Chaturvedi vs State Of Chhattisgarh & Others on 10 September, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION Cr 1556 of 2010
Arvind Kumar Chaturvedi
...Petitioners
Versus
State of Chhattisgarh & Others
...Respondents
! Shri B P Sharma
^ Shri N N Roy
CORAM: Honble Shri Satish K Agnihotri J
Dated: 10/09/2010
: JUDGEMENT
O R D E R WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA
1. By this petition, the petitioner seeks to challenge the order No. 01-05/PD-EK/313(1)/228, dated 05.02.2010 (Annexure P/1) passed by the Executive Director (Human Resources) Chhattisgarh State Power Holding Company Limited, Raipur whereby sanction to prosecute the petitioner under the provisions of section 13(1) (e) and section 13(2) of the Prevention of Corruption Act, 1988 (for short `the Act, 1988') has been granted and the corrigendum No. 01-05/PD-
EK/313 (1)/522 dated 06.03.2010 (Annexure P/2), addressed to the Inspector General of Police, Anti Corruption Bureau/Economic Offence Investigation Bureau, communicating the information of grant of sanction to prosecute the petitioner.
2. The facts, in nutshell, as projected by the petitioner is that the petitioner was the employee of the then Chhattisgarh State Electricity Board (for short `the Board') working on the post of Assistant Engineer. After bifurcation of the Board, five new companies were formed and the petitioner's services came under respondent No. 2 i.e. Chhattisgarh State Power Holding Company Limited. On 28.8.2000, the respondent No. 4 made a search in the premises of the petitioner, wherein it was allegedly found that the petitioner had acquired property worth Rs. 44,09,000/- which is disproportionate to his income, and an offence under section 13(1)(e) and 13(2) of the Act, 1988 was registered against the petitioner. The respondent No. 4 sought permission from the Board to prosecute the petitioner for the aforesaid offences but the same was denied. However, the relevant papers were sent to the Chartered Accountant of the Board and after obtaining opinion in this regard, the sanction to prosecute was again refused. The respondent No. 2, vide communication dated 06.03.2009, again refused to grant sanction for prosecuting the petitioner.
3. Learned counsel appearing for the petitioner would submit that on several earlier occasions, sanction to prosecute the petitioner was denied which is evident from letter dated 16.12.2005, 20.07.2005, 31.03.2003, 02.01.2004, 31.03.2003. However, at the instance of respondent No. 4, the respondent No. 2 and 3 acted illegally by granting sanction to prosecute the petitioner. The impugned order is un-sustainable. Shri Sharma would further submit that the prosecution agency cannot become persecuting agency and cannot force any other agency to grant sanction. Further, the respondent No. 2 and 3 authority, when it had once been decided not to grant sanction for prosecuting the petitioner, cannot review its own order and grant sanction for prosecuting the petitioner as there is no change in any of the circumstances except the undue pressure of the respondent No. 4.
4. The present petition was filed on 23.03.2010 and the matter was listed for hearing on 09.04.2010. Thereafter, the matter was again listed on 16.04.2010. Notices were issued to the respondents on 23.04.2010 and two weeks time was granted to the State/ respondent No. 1 and 4 to file return. Thereafter, the matter was listed for hearing on 19.05.2010, 26.05.2010 and 16.06.2010. On 16.6.2010, fresh notices were ordered to be issued to the respondent No. 2 and 3, and in addition, dasti notice was permitted. All the respondents have been served, but neither a representation was made nor any appearance was done.
5. Heard learned counsel for the petitioner, perused the pleadings and documents appended thereto.
6. On a serious allegation, that in the search conducted by the office of Lokayukta, Special Police Establishment, Raipur, on 28.2.2000 in the residence of the petitioner, property worth more than Rs. 44,09,000/- was discovered, which was disproportionate to the income of the petitioner. Accordingly, a case was registered under section 13(1)(e) and 13(2) of the Act, 1988. Sanction for prosecuting the petitioner was sought by the Deputy Inspector General of Police, Special Police Establishment, Office of the Lokayukta, Bhopal, which was rejected by letter dated 31.3.2003 (page 50 of the petition) observing that the case was not fit for prosecution. Thereafter, again a letter was addressed to the Inspector General of Police, Special Police Establishment, Office of the Lokayukta, Bhopal, reiterating the stand taken by the respondent-Electricity Board that sanction to prosecute the petitioner was rejected (page 49 of the petition). Again, on 26.07.2005 (page 47 of the petition) the Secretary, Chhattisgarh State Electricity Board declined to grant sanction to prosecute the petitioner on the ground that no new documents have been placed to take a contrary stand as was taken earlier on 31.3.2003. Thereafter, on 25.11.2005, the Joint Secretary to the Government of Chhattisgarh, Energy Department, directed the Secretary, Chhattisgarh State Electricity Board to consider the case of J.R.Patel, Arvind Chaturvedi, Ashwani Sharma, Narad Singh Chandel, against whom sanction for prosecution had not been granted and to grant sanction to prosecute them within a period of 7 days and thereafter inform to the State Criminal Investigation Bureau. Pursuant to the letter dated 25.11.2005, the Secretary, Chhattisgarh State Electricity Board informed to the Principal Secretary, Government of Chhattisgarh, Energy Department that in view of the ratio laid down by the Hon'ble Supreme Court in AIR 1997 SC 3400, the Board had already applied its mind on the available documents and it was decided not to grant sanction for prosecution, which reads as under:
"la;qDr lfpo] mtkZ foHkkx ds lanfHkZr i=ksa ds rkjrE; esa fuEufyf[kr rF;ksa ls voxr djk;k tkuk gS%& ,i+ izdj.kksa esa vfHk;kstu Lohd`fr iznku djus ds iwoZ Lohd`fr iznkudrkZ vf/kdkjh }kjk Lofoosd dk leqfpr rkSj ls iz;ksx fd;s tkus dk fu;eksa esa mYys[k gSA ,ii+ rRlaca/k esa ekuuh; mPpre U;k;ky; dk izfrikfnr fl)kar fuEu gS ,lanHkZ ,- vkbZ-vkj- 1997 ekuuh; mPpre U;k;ky; 3400+ 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.
,iii+ mijksDr ls Li"V gS fd l{ke izkf/kdkjh }kjk vuqefr nsus ds laca/k esa Lo;a fu.kZ; fy;k tkuk gS vkSj ,slk fu.kZ; fdlh vf/kdkjh ;k mPp vf/kdkjh ds funsZ'k ij ugha fy;k tkuk pkfg,A ,iv+ fMfotu csap ekuuh; mPp U;k;ky;
fgekpy izns'k ,fOfeuy ykW tujy 1024] vksadkj `kekZ o vU; fo:) fgekpy izns'k ,oa vU;+ ds vuqlkj ^^vf/kdkjh@deZpkjh ds fo:) ,d ckj l{ke izkf/kdkjh }kjk vfHk;kstu Lohd`fr iznku u fd;s tkus ds fu.kZ; dks mUgha nLrkostksa ds vk/kkj ij ifjofrZr vFkok iqufoZyksfdr ugha fd;k tk ldrk**A mYys[kuh; gS fd izdj.k esa miyC/k leLr nLrkostksa ,oa rF;ksa ij xaHkhjrkiwoZd fopkjksijkar lacaf/kr l{ke izkf/kdkfj;ksa }kjk lanfHkZr i=ksa esa mYysf[kr pkjksa izdj.kksa esa vfHk;kstu Lohd`fr iznku ugha fd;s tkus ds fu.kZ; fy;s x;s gSA orZeku esa mDr izdj.kksa esa dksbZ Hkh vfrfjDr nLrkost lacaf/kr foHkkx@mtkZ foHkkx }kjk eaMy dks miyC/k ugha djk;s x;s gSA vr% mDr lHkh izdj.kksa esa vfHk;kstu gsrq eaMy@l{ke izkf/kdkjh dh Lohd`fr iznku fd;k tkuk mfpr izrhr ugha gksrkA lwpukFkZ izsf"kr "
7. No new documents have been brought into the notice of the Board. Thus, it would not be proper to grant sanction for prosecution of the officers, including the petitioner.
Thereafter, the Inspector General of Police, Anti Corruption Bureau, by letter dated 22.11.2008 informed the Secretary, Electricity Board that the decision not to grant sanction was not in accordance with law. Thus, the Electricity Board may consider again and grant sanction for prosecution. The case was referred to the office of the Advocate General on 24.08.2009 (page 40 of the petition). The Executive Director (H.R.) i.e. the respondent No. 2 again informed the Inspector General of Police, Anti Corruption Bureau, on 6.3.2009 (page 35) that the decision not to grant prosecution earlier was taken after serious application of mind and since no new documents were made available, there was no reason to review the same. Thereafter, the sanction was granted by impugned order dated 5.2.2010 (Annexure P/1) without assigning any reason as to why contrary stand was taken as the order does not indicate that certain new material/documents were placed before the authorities to grant sanction, which was rejected earlier on several occasions. The impugned order was thereafter modified by corrigendum dated 6.3.2010 to the extent that the word "income more than the known sources" stated in 7th line of first para, and the word "disproportionate" from the eighth line be deleted and in third line of second para, in place of "more than income" "Rs. 22,84,147/- more than income" may be read. The same reads as under:
"vkns'k Oekad 01&05@ihMh&,d@313,1+@227 fnukad 05- 05-2010 dh izFke dafMdk dh lkroha iafDr ls `kCnkoyh ^^vk; ds Kkr L=ksrksa ls vf/kd** ,oa vkBoha iafDr ls `kCn ^^vuqikrghu** foyksfir dj ,oa nwljh dafMdk dh rhljh iafDr esa ^^vk; ls vf/kd** ds LFkku ij ^^vk; ls :i;s 22]84]147@& vf/kd** tksM+dj i<+k tkosA"
8. Law on the issue with regard to grant of sanction for prosecution is well settled. The Supreme Court, in Mansukhlal Vithaldas Chauhan v. State of Gujarat1 , while considering grant of sanction, held as under:
"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. 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."
9. The Punjab & Haryana High Court, in the matter of Surjit Singh v. The State of Punjab & Others2, and the High Court of Allahabad, in Vaijai Bahadur v. State of U.P. & Others3, have held that once the sanction for prosecution is rejected, the same cannot be reviewed without there being cogent reasons and sufficient materials.
10. The ratio laid down in the above two cases has been referred approvingly in Omkar Sharma v. State of H.P4, wherein the High Court of Himachal Pradesh, held as under:
"33. What follows from the aforesaid discussion is that appropriate authority who on consideration of all the material had refused to accord sanction to prosecute a public servant, has now power on re- consideration to review such an order and thereby according sanction to prosecute on the same material.
It will be a totally different situation if any additional/fresh/new material is brought before the competent authority; that admittedly is not the situation in all the three cases nor is the case of any one of the respondents set out in their replies. Similarly, the long gap after completion of investigation and the grant of sanction is an additional ground to grant relief to the petitioners in all these three cases. "
11. The Supreme Court, in Ramanand Chaudhary v. State of Bihar & Others5, holding the grant of sanction to prosecution as improper, observed as under:
"5.The Public Prosecutor consistently opined that no criminal case was made out against the appellant. The Commissioner on independent consideration refused to grant the sanction but later on at the asking of the DIG (Vigilance) he changed his view."
12. In State of Punjab & another v. Mohammed Iqbal Bhatti6, the Supreme Court held that the sanctioning authority must apply its mind to the new facts which were not available at the time when the sanction was declined on earlier occasions.
13. The common thread running into the decisions cited hereinabove is that the sanctioning authority has power to reconsider refusal of sanction, only on the basis of some new materials which were not available before the sanctioning authority who had declined to grant sanction earlier. The same cannot be granted again for want of new materials which may be made available during the course of the investigation.
14. In the case on hand, it does not appear that the impugned order dated 05.02.2010 (Annexure P/1) granting sanction, was passed on the basis of other materials which were not available before the authorities when the sanction was declined. It further appears that the impugned order was passed not on the basis of materials or applying its mind but on the basis of irrelevant consideration and facts as nothing is stated in the order in detail stating that the new materials were available.
15. Applying the ratio laid down by the Supreme Court in the cases (supra) to the facts of the present case, the impugned order dated 05.02.2010 (Annexure P/1) is quashed. Consequently, the corrigendum dated 6.3.2010 also stands quashed. However, liberty is reserved to the respondent/authorities to consider the case for grant of sanction for prosecution on the basis of new materials, if any, after making serious application of mind on the issue in question, if so advised.
16. Accordingly, the writ petition is allowed to the above extent. No order asto costs.
J U D G E