Madhya Pradesh High Court
Special Police Establishment ... vs The State Of Madhya Pradesh on 23 June, 2014
Author: Sushil Kumar Gupta
Bench: Sushil Kumar Gupta
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
W.P. No.14064/2013
Special Police Establishment (Lokayukta)
Vs.
State of M.P. and others
Present: Hon'ble Shri Rajendra Menon, J. &
Hon'ble Sushil Kumar Gupta, J.
________________________________________________________
Shri Aditya Adhikari, learned counsel for the
petitioner.
Shri K. S. Wadhwa, learned Addl. Advocate
General for respondent No.1.
Shri Som Mishra, learned counsel for
respondents No.2 and 3.
___________________________________________________
ORDER
( 23/6/2014 ) Per : Shri Rajendra Menon, J.
Challenging the order Annexure P/6 passed by the State Government in the matter of granting sanction to the petitioner's establishment under Section 19 of the Prevention of Corruption Act, this petition has been filed challenging the refusal of sanction for prosecuting respondents No.2 and 3, the Lokayukt establishment is before 2 this Court in the writ petition under Article 226 of the Constitution.
2. One Prashant Kumar Chourasia, resident of Hanumantal, Jabalpur filed an application for grant of drug license on 15.2.2010. He made a complaint to the Chief Minister, the Lokayukt and various other authorities vide Annexure P/1 on 3.4.2010 pointing out that respondent Rajiv Kumar Agarwal, Drug Inspector and his Clerk Pratap Singh Patel are demanding illegal gratification of Rs.25,000/- from him for the purpose of granting drug license and have also obtained a sum of Rs.10,000/- as illegal gratification. By filing Audio CD and a Audio Video CD along with the complaint, the applicant was filed pointing out the offense committed by respondents No.2 and 3. Preliminary enquiry was conducted by the Lokayukt Organization and thereafter Audio and Audio Video CD were played in the presence of two witnesses. Its manuscripts recorded vide Annexure P/3, Panchnama prepared and based on the same F.I.R. was registered and sanction was sought for. When the sanction was refused at the first instance vide Annexure P/5, again a supplementary request was made which was refused vide Annexure P/6 and therefore, this writ petition challenging the refusal of sanction.
33. Shri Aditya Adhikari pointed out that in the Audio and Audio Video CD available at page 13, 14,15, 16 and 19 of the paper book, the recording do show that respondents No.2 and 3 demanded illegal gratification, certain amount was received by them and they were shown counting the amount. It is contended by learned counsel that based on the same as prima facie case is made out respondents have committed an error in rejecting the sanction sought for. That apart, taking us through one of the reason given by the respondent for refusing the sanction i.e. payment of amount towards donation to Red Cross Society and receipts of Red Cross Society available, Shri Aditya Adhikari tried to emphasis that this is nothing but a method to wriggle out of the allegations made and therefore, by considering the defense of the respondents, petitioner's request for sanction could not be rejected. Accordingly placing reliance on the judgment of the Supreme Court in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat - (1997) 7 SCC 622 and certain other judgments referred to in ground "I" of the writ petition, Shri Adhikari sought for interference into the matter.
4. Shri K. S. Wadhwa, learned Additional Advocate General referred to orders Annexure P/5 and P/6 and argued that after appreciating the 4 totality of circumstances, the competent authority has given a reasoned order why sanction cannot be granted and as the order passed by the State Government meets all the requirement of law in the matter of granting sanction, no further indulgence is called for.
5. Shri Som Mishra, learned counsel appearing for respondents No.2 and 3 refuted the aforesaid and referred to the complaint, the Audio, Audio Video CD and receipt of Red Cross Society and argued that it is a false case, complaint has lodged belatedly and even the amount showed to be paid in the complaint along with the Video CD is nothing but the amount of Rs.5000/- paid towards donation to Red Cross Society. It is authorized donation collected by the department. He produces the overwhelming documents in support of his contention to say that no case is made out for grant of sanction. Shri Som Mishra pointed out that from the documents and material available on record it may be seen that the application for grant of Drug License was submitted on 15.2.2010, the respondent Inspector conducted the Inspection om 19.2.2010 and forwarded the entire report along with recommendation to the Collector on 23.2.2010 and on 23.2.2010 itself a receipt of Rs.5000/- was given to the complainant towards donation to the Red Cross Society. Thereafter, the file was 5 pending with the Collector and the Collector granted license on 3.4.2010. It is stated that once respondents have recommended for grant of license on 23.2.2010, there is nothing to implicate them and entire case is false and fabricated case and if after evaluating all these factors, the State Government has refused sanction, no case is made out for interference.
6. Shri Som Mishra further argued that the authenticity of the CD is doubtful. No scientific test to verify the CD, its genuineness was conducted and merely by playing the CD in front of two witnesses the Panchanama was prepared and authenticity of CD is tried to be projected to be correct. It is submitted by Shri Som Mishra, that the order passed by the State Government is in accordance to law after due application of mind and it does not call for any interference. Accordingly, he prays for dismissal of the petition and in support of his contention he places reliance on the judgment of Supreme Court in the case of State of Punjab and another Vs. Mohammed Iqbal Bhatti - (2009)17 SCC 92 to say that the prayer made in the petition is unsustainable.
In the matter of grant of sanction to prosecute a person under the Prevention of Corruption Act, it is a well settled principle of law that sanction is not an idle formality or an acrimonious exercise. Grant of sanction is an act 6 solemn and sacrosanct in nature. Apart from removing corruption in public life by public servants it also has a requirement of affording protection to government servants against frivolous prosecution. Sanction apart from being a check and balance system for preventing vexatious, false and frivolous prosecution is also a requirement of law which has to be fulfilled by the competent authority by showing application of mind, appreciation of all the facts and disclosing of reasons for refusing grant of sanction.
7. While scrutinizing or exercising the powers of judicial review in the matter of refusal of according sanction a Writ Court exercising jurisdiction under Article 226 of the constitution does not sit over the decision of the Sanctioning authority as if it is an Appellate Authority. The role of the High Court is very limited to ensure that material placed before the Sanctioning Authority and all relevant facts, material, evidence and other circumstances have been duly considered and based on the same by application of mind a reasonable decision has been taken. If the decision is found to be taken on due appreciation of the evidence and other material available on record, it does not call for any interference. However, if it is found that relevant evidence and material is not taken note of and on extraneous consideration without any justification 7 the sanction is accorded, the only power available to the High Court is to remand the matter back for reconsideration. ...... on a joint reading of cases relied upon by learned counsel for the parties, particularly in the case of Mansukhlal Vithaldas Chauhan (supra). That being so, we have proposed to analysis the case in hand based on documents available to assess as to whether the Sanctioning Authority has conducted its process for refusing sanction in accordance to the requirement of law. Records indicate that application for sanction was filed on 15.2.2010. As is evident from the documents filed by the parties and available on record, office of the Drug Inspector respondent prepared a detailed note on 19.2.2010 in the matter of granting sanction and forwarded it to the Collector concerned vide dispatch No.1319 on 23.2.2010 itself. After a detailed inspection was conducted on 19.2.2010 it seems that the recommendation was made for grant of sanction and on 23.2.2010 itself a sum of Rs.5000/- was collected from the complainant towards donation to Indian Red Cross Society vide receipt No.26 dated 23.2.2010 Annexure R/2 and this amount is shown to have been deposited with the Indian Red Cross Society as is evident from the overwhelming documents available on record. Thereafter, the matter was considered by the Collector and the Collector has granted the license on 3.4.2010. However, on 3.4.2010 the 8 complainant submitted an application ventilating his grievance and tried to justify his complaint by producing one Audio CD and one Audio Video CD, the transcripts of which is available from page 16 onwards. Even though it shows certain transactions of money, but the said transactions was of amount of Rs.5000/- donation towards Indian Red Cross Society as is evident from the receipt of Indian Red Cross Society Annexure R/2.
8. Be it as it may be, except for preparing a Panchnama, the investigating authority has not conducted any scientific test or detailed analysis of this Audio and Audio Video CD to test their genuineness, voice testing, particulars of the persons whose voice are there and no other scientific test to prove the acceptance of this CD is conducted. An assumption is drawn of acceptance of money by the respondents because some money is shown to be counted in the CD to say that it is towards payment of illegal gratification, whereas, respondent has clearly stated that the money was paid for donation to the Red Cross Society. That apart, the receipt book in which the money is found to be issued by the Red Cross Society and the documents and evidence produced by the Red Cross Society goes to show that the receipt was issued to the concerned authorities for collecting the funds on behalf of Red Cross Society. That apart, the Indian Red 9 Cross Society in its communication has clearly indicated that the respondent has deposited Rs.25000/- with the Red Cross Society on 17.5.2010 which includes the amount of Rs.5000/- collected by the respondent vide Receipt No.26. All these overwhelming evidence have been taken note of by the State Government and after going through the same, the State Government has given five reasons for not according sanction in a detailed order passed vide Annexure P/5 and P/6. If the orders passed by the State Government for refusing sanction is taken note of, the reasons given indicates the following :-
(1) Prima facie it is found that the recording of CD were done by the complainant with the help of one of his friend and it is indicated that the recording has been done after the Drug license was issued. This is a vital factor which has been considered by the State Government and to rebut this contention in the record of investigation there is nothing to show that any Scientific test or examination of CDs have been done to testify their genuineness.
(2) The video recording showing counting of money given by the complainant is found to be with regard to Rs.5000/- given for deposit with the Red Cross Society towards donation.
(3) It was found that there are directions and circulars issued by the Collector 10 along with receipt book of the Red Cross Society authorizing collection of donation to the Red Cross Society.
(4) There is a delay of more than 21 days from the date of recording of the Video and submitting the complaint.
(5) Finally, the investigating report and the material collected does not show that the illegal gratification was obtained for grant of drug license.
9. These reasons along with the fact that on 19.2.2010 after the application was submitted on 15.2.2010, respondents conducted the inspection and accord the recommendation for sanction which was forwarded to the Collector on 23.2.2010 has waived with the sanctioning authorities for holding that no case for grant of sanction is made out.
10. We are of the considered view that the aforesaid reasons given by the Sanctioning Authority is reasonable in nature and justifies their action for non grant of sanction. It does not show that the Sanctioning Authority has acted mechanically without application of mind. The requirement of law for according and refusing sanction is laid down by the Supreme Court in various cases has been followed by the State Government in the instant case and for the 11 reasons which are indicated herein above and its analysis by us as indicated herein above, does not warrant any reconsideration. It is a case where the State Government after due consideration of the material available on record has taken a reasonable decision which meets requirement of law and we see no reason to interfere into the matter, particularly when the case of Prosecuting Authority is based on audio video CD and in the manuscripts produced itself there are certain discrepancies. That apart, the genuineness and veracity of CD which could be tested by known scientific method has not been undertaken by the investigating authority.
11. Looking to the totality of facts and circumstances, we are of the considered view that this is not a fit case where limited jurisdiction available to this Court under Article 226 of the Constitution should be exercised.
12. Petition is therefore, dismissed.
(Rajendra Menon) (Sushil Kumar Gupta)
Judge Judge
mrs.mishra