Calcutta High Court (Appellete Side)
Sri Vipul Raj vs Union Of India & Ors on 30 June, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT : HON'BLE JUSTICE DIPANKAR DATTA
W.P. No. 38159 (W) of 2013
Sri Vipul Raj
Vs
Union of India & ors.
For the petitioner : Mr. Pratik Prakash Banerjee
Mr. Uday Chandra Jha
Ms. Maheswari Sharma
Ms. Anita Shaw
For the respondent nos. : Mr. Prabir Dasgupta
2&3 Mr. Pushpal Chakraborty
For the respondent no. 5 : Mr. Asraf Ali
Mr. Sankar Banerjee
Hearing concluded on : May 13, 2014
Judgment on : June 30, 2014
1. This writ petition dated December 23, 2013 is at the instance of an administrative officer of the Indian Council of Agricultural Research (hereafter the ICAR). He is presently under suspension.
2. The petitioner is accused of commission of offence punishable in terms of the Prevention of Corruption Act, 1988 (hereafter the P.C. Act) and is standing trial before the CBI Court (Special), Alipore, South 24 Parganas in Special Case No. 25/2003. An order dated February 27, 2012 passed by the Director General of ICAR, respondent no. 3, 2 according sanction to prosecute the petitioner is under challenge in this writ petition primarily on the ground that sanction was not asked for by the prosecutor and that there has been absolutely no application of mind on the part of the Director General in according such sanction, particularly when an earlier sanction that was accorded was found by the criminal court to be defective and incompetent.
3. The facts preceding this writ petition may be noticed.
4. On an allegation that the petitioner had asked for a bribe of Rs. 8000/- for release of a bill of Rs. 44,500/- of a contractor, an FIR was drawn up by the Central Bureau of Investigation (hereafter the CBI) bearing no. RC 35 (4/2002) under Section 7 of the P.C. Act. Upon completion of investigation, police report under Section 173(2), Criminal Procedure Code (hereafter the Cr.P.C.) was filed vide charge- sheet no. 7/2003 dated June 20, 2003 under Sections 7 and 13(2) read with Section 13(1d) of the P.C. Act. The petitioner applied under Section 19(4) of the P.C. Act read with Section 465(2) of the Cr.P.C., which was turned down by an order dated September 24, 2004 and a date was fixed for framing of charge. Challenging such order, the petitioner approached this Court in the criminal revisional jurisdiction. The point raised by the petitioner was that sanction was accorded by the Director (Vigilance) of the ICAR, although it was the Director General of the ICAR who was the authority competent to 3 accord sanction. Since the petitioner perceived the sanction as bad in law, he prayed for quashing of such sanction. A learned Judge of this Court by judgment and order dated February 19, 2005, spurned the challenge to the order of sanction, holding that there was no merit in the contentions urged on behalf of the petitioner; consequently, the revisional application stood dismissed. The said judgment and order was made the subject matter of a special leave petition before the Supreme Court. The same was disposed of on July 28, 2008, holding that the Court did not find any reason to interfere in the judgment and order under challenge. However, the petitioner was granted liberty to raise the question of sanction not being valid before the trial court and in case such question was raised, the trial court was directed to decide the question on merits uninfluenced by any observation made by this Court. The special leave petition stood disposed of accordingly. In the meanwhile, the petitioner was proceeded against departmentally and removed from service by his disciplinary authority. Challenge to the order of removal laid by the petitioner before the Central Administrative Tribunal succeeded on a technical ground; the order of removal was set aside by an order dated April 20, 2009. The petitioner was directed to be reinstated without any consequential benefits. The departmental proceedings were directed to be completed in terms of the directions contained therein. A writ petition was filed before the Delhi High Court by the ICAR, whereupon the order of the tribunal 4 was modified to the extent that it would not be necessary to send the matter again to the Central Vigilance Commission (hereafter the CVC) as directed by the tribunal but a copy of the advice of the CVC may be supplied to the petitioner who shall be at liberty to offer his comments thereagainst, whereafter a fresh order shall be passed by the disciplinary authority. Availing the liberty granted by the Supreme Court, the petitioner raised the question of validity of sanction before the learned Special Judge. By his order bearing no. 52 dated January 21, 2009, the learned judge held as follows:
"I am thankful to the Ld. Spl. PP of the CBI who has candidly submitted that the sanction order is defective as the appointing authority/removing authority did not sign on the sanction order. The signing of the sanction order by the Director (Vigilance) cannot be a good sanction order. I have taken into consideration the decision of the Apex Court and of our Hon'ble Court as noted in the argument of the Ld. Lawyers of the parties. All the decisions are against the present sanction order. The decision of the Apex Court cited by the Ld. Spl. PP cannot undo the other decisions cited above.
I think that it will be better to obtain a fresh sanction order if the sanctioning authority i.e. Director General of ICAR so desires after application of his mind and considering the nature of this case. The Ld. PP also submitted in that fashion. I am also of the view that it is better to obtain a fresh sanction order to plug any loophole in the trial. This point was rolling from 2004 and we are now in 2009. Thus, the I.O. or the holding I.O. is directed to take up the matter with the Director General of the ICAR for necessary action as referred to in this paragraph. I reiterate that passing of the sanction order is exclusively in the domain of the appointing/removing authority and no Court or external agency can influence his finding. The said Director General will be at liberty to exercise his own discretion regarding the granting of the sanction order.5
Thus, the petition dtd. 9.1.04 filed by the accd. Vipul Raj U/s 19(4) of the P.C. Act, 1988 r/w Sec. 465(2) of the Cr. P.C. is considered and allowed.
The accd. is discharged from the bail bond. It is hereby made clear that the accd. is not discharged from this case and he will be re-summoned if the Director General of ICAR accords sanction for the prosecution of this accd. for the offence punishable U/s 7 & 13(2) r/w Sec. 13(1)(d) of the P.C. Act, 88. The record need not run in the diary.
Give a copy of this order to the Ld. Spl. PP of the CBI for necessary action as contemplated in my order."
5. In view of the aforesaid order, the Director General considered the matter afresh and by his aforesaid order dated February 27, 2012 accorded sanction to prosecute the petitioner recording the grounds of satisfaction. It is this order that Mr. Pratik Prakash Banerjee, learned advocate for the petitioner has urged this Court to quash on the additional grounds that all relevant points have not been considered by the sanctioning authority and that the order passed by him is in the teeth of the decision of the Supreme Court reported in (1997) 7 SCC 622 : Mansukhlal Vithaldas Chauhan v. State of Maharashtra.
6. Mr. Banerjee was also heard voicing a grievance of the petitioner that information asked for by him exercising his right in terms of the Right to Information Act, 2005 (hereafter the RTI Act) relevant for decision on the issue raised herein was not furnished.
7. Having heard Mr. Banerjee and having perused the case diary in course of hearing the writ petition, I have not considered it necessary to call upon the respondents to answer.
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8. As would be evident from the order dated January 21, 2009 of the learned Special Judge, the public prosecutor representing the CBI conceded that the earlier sanction order was defective owing to the appointing authority/removing authority of the petitioner not having signed the same and that signing of the sanction order by the Director (Vigilance) could not amount to a sanction order that could be said to be valid in law. It is necessary to say a few words touching this aspect. The case diary forming part of the records before the learned Special Judge, which I had the occasion to requisition and peruse, reveal that the CVC in agreement with the CBI had advised vide its OM dated June 4, 2003 for launching prosecution and initiating major penalty proceedings against the petitioner. An officer of the ICAR by his note dated June 8, 2003 had prepared a draft sanction order in accordance with the format prescribed by the CBI and the same was placed for consideration of the Director (Vigilance) for seeking approval of the Director General to launch prosecution against the petitioner. By his note dated June 10, 2003, the Director (Vigilance) proposed, in view of the Director General being the competent authority to remove an administrative officer, that the draft prosecution sanction order may be approved and signed by the Director General. The proposal of the Director (Vigilance) marked 'A' was placed before another officer whose note is also dated June 10, 2003. He recorded that he had discussed the matter with the Director (Vigilance) and his proposal may be 7 approved, whereafter "the order can then go under the signature of Dir. (Vig)". The file on the same day was placed before the Director General, Dr. Mangla Rai. Dr. Rai conveyed approval of the proposal by signing on the relevant file and the file was directed to be placed before the Director (Vigilance). It is, thereafter, that the initial sanction order dated June 11, 2003 was issued by Mr. K. V. Kumar, Director (Vigilance) for and on behalf of the Director General, ICAR. These facts could not be rebutted by Mr. Banerjee.
9. Having regard to the procedure followed in administrative matters by the concerned Government departments, the procedure adopted in this case did not suffer from any infirmity. It was not a case where the Director (Vigilance) had passed the order of sanction as a delegate of the Director General; on the contrary, the proposal of the Director (Vigilance) having been approved by the Director General, the order was issued with the Director (Vigilance) signing it for and on behalf of the Director General. This aspect of the matter escaped the notice of the learned Special Judge while considering the application of the petitioner under Section 19(4) of the P.C. Act read with Section 465(2) of the Cr.PC. However, the learned Special Judge should not entirely be blamed because it was the duty of the public prosecutor representing the CBI to invite the attention of the learned Special Judge to these notings in the file. This would have ensured precious time from being wasted.
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10. Be that as it may, the order under challenge according sanction would call for scrutiny on the grounds urged on behalf of the petitioner.
11. First, it has been urged that the Director General on his own could not have accorded sanction in the absence of a request from the CBI. I find absolutely no merit in this contention. Upon registration of the FIR, the CBI had forwarded a report of the Superintendent of Police bearing no. 3/2003, dated March 31, 2003 wherein, inter alia, prosecution against the petitioner under the relevant provisions of the P.C. Act was recommended. Agreeing with the recommendation of the CBI, the ICAR had referred the matter to the CVC vide letter dated May 20, 2003 for its first stage advice. As has been noted above, the CVC agreed with the CBI and vide its OM dated June 4, 2003, advised launching of prosecution. It was then that steps were taken, as noted from the departmental notings, for issuance of the sanction order dated June 11, 2003. Once the order of sanction dated June 11, 2003 was quashed on technical grounds and the learned Special Judge clearly observed that discharge of the petitioner from the bail bond would not be construed as discharge from the case and that he is liable to be re- summoned if the Director General accords sanction for prosecution, what was required of the Director General was to consider the desirability of passing a fresh sanction order by exercising his discretion. This he ultimately did by passing the impugned order dated February 27, 2012. On facts and in the circumstances, the Director 9 General was not required to wait for a further request of the CBI to accord sanction. The request earlier made had neither been recalled nor was such request interfered with by the learned Special Judge and the circumstances necessitated the Director General to activate himself for deciding afresh as to whether sanction should be accorded or not. Better late than never, the impugned sanction has been accorded more than 3 years after the initial sanction order was quashed by the learned Special Judge by order dated January 21, 2009.
12. The next contention that was urged is that the Director General has been activated by the dictation of the learned Special Judge. I have looked into the order of the learned Special Judge in between lines. The portion of the order of the learned Special Judge extracted supra does not suggest that the Director General had passed the impugned order according sanction being dictated by the learned Special Judge. The order of sanction dated June 11, 2003 was set aside on a technical ground (which for reasons discussed above did not warrant to be set aside) and considering the fact that the petitioner was facing charges of corruption, the learned judge was anxious to ensure that the procedural safeguards that are available to an accused in a corruption case are strictly adhered to.
13. The third ground that the order of the Director General does not take into consideration all relevant points and suffers from non-application 10 of mind, is equally without merit. The purpose of obtaining sanction to prosecute a public servant is rather well-known. It is trite that sanction cannot be accorded mechanically; the sanctioning authority is required to apply his mind to the facts of the case as well as the material and evidence collected during investigation and it is, thereafter, that the satisfaction as to whether sanction to prosecute ought to be accorded or not has to be recorded in course thereof. The sanctioning authority must ensure that there is no external pressure or forces compelling him to act in a particular direction and the action must, therefore, be free from any extraneous consideration. I have perused the order according sanction under challenge. I have also looked into the departmental notings forming part of the records before the learned Special Judge. There is no reason to hold that the decision of the Director General is vitiated by consideration of extraneous factors and non-consideration of relevant materials. That the petitioner has been granted relief by the Delhi High Court has been contended to be a point, which did not exercise the consideration of the sanctioning authority. The nature of relief that the Delhi High Court extended to the petitioner has been noted above. The order of penalty was interfered with only because the advice of the CVC had not been supplied to the petitioner. Even if the order of the Delhi High Court has not been referred to in the order according sanction, 11 nothing turns on it since it is not a relevant material which could have dissuaded the Director General to accord sanction.
14. The fourth ground that the order under challenge is in the teeth of the decision in Mansukhlal Vithaldas Chauhan (supra), has been raised to be rejected. The ratio of the said decision is that the order according sanction must not be at the behest of anyone but it is for the sanctioning authority to generate a satisfaction on the basis of objective consideration of the evidence and materials placed before him. It is wrong to suggest that the learned Special Judge created such an influence on the Director General that he was perhaps left with no other option but to accord sanction. The learned judge not having taken away the authority of the Director General to accord a fresh sanction and instead having expressed his mind that the Director General without any influence of any external agency shall be at liberty to exercise his own discretion regarding grant/non-grant of sanction, it is a too far-fetched argument that the sanctioning authority was influenced by the observations of the learned judge. That apart, if at all the petitioner perceived the observations to be such that the same were reasonably capable of creating some sort of pressure on the Director General and to influence his mind, the petitioner ought to have moved the higher Court challenging the observations. Not having so challenged, it is not open to him now say anything to the contrary.
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15. Finally, the grievance of the petitioner relatable to non-disposal of his request for information under the RTI Act is taken up for consideration. If at all the petitioner has not been provided information, as asked for, nothing prevents him from approaching the appellate forum in terms of Section 19 of the RTI Act. A remedy being available, the procedure prescribed by the RTI Act need not be unnecessarily derailed.
16. The writ petition is devoid of substance and, accordingly, stands dismissed. There shall be no order for costs.
17. Needless to observe, the trial shall be expedited in terms of Section 309 of Cr.P.C. subject to convenience of the learned judge.
18. The case diary, which was requisitioned by order dated February 20, 2014, shall be returned to the concerned court.
Urgent certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)