Allahabad High Court
Kanhaiya Lal Saraswat vs State Of U P And 6 Others on 18 June, 2021
Author: Ravi Nath Tilhari
Bench: Surya Prakash Kesarwani, Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR (Judgment reserved on 23.03.2021) (Judgment delivered on 18.06.2021) Court No. - 3 Case :- WRIT - C No. - 27346 of 2020 Petitioner :- Kanhaiya Lal Saraswat Respondent :- State Of U P And 6 Others Counsel for Petitioner :- Suresh Chandra Dwivedi Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Ravi Nath Tilhari,J.
(Per: Surya Prakash Kesarwani, J.)
1. Heard Sri Suresh Chandra Dwivedi, learned counsel for the petitioner and the learned standing counsel for the State-respondents.
2. This writ petition has been filed praying for the following relief:
"(i) To issue a writ of Certiorari quashing the order dated passed 27.01.2020 passed by respondent no.3 and 4 (Containing in Annexure no.33 in present writ petition).
(ii) To issued a stay operation of the order dated 27.01.2020 (Annexure No.33) and it further prayed during the pendency of writ petition the trial court has not proceed the matter inpursuance of order dated 27.01.2020 during the pendency of writ petition.
(iii) Issue a writ order or direction in the nature of Mandamus Commanding / Directing the Respondents to act in accordance with law.
(iv) Issue any other suitable writ order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case.
(v) Award the cost of petition to the petitioner."
Facts:-
3. Briefly stated facts of the present case are that in the year 2015, the petitioner was selected on the post of Treasury Officer and was posted as Finance and Accountants Officer in the Basic Education Department, Agra. Sometime in August, 2016, one Dinesh Singh Chahar was suspended by the competent authority and disciplinary proceeding was initiated but his disciplinary proceeding could not be concluded within three months, therefore, on 25.12.2016, he moved an application before the petitioner and the concerned Basic Education Officer for payment of suspension allowance to the extent of 75% of the salary instead of 50% of the salary which the petitioner forwarded to the Basic Education Officer for orders. On complaint of the aforesaid suspended Assistant Teacher against the petitioner for demanding illegal gratification, Vigilance Department constituted a team of officers. On 02.05.2017, the petitioner was allegedly caught red handed by the Trap Team of Officers of the U.P. Vigilance Department when he was allegedly accepting bribe of Rs.50,000/- from the Assistant Teacher Sri Dinesh Singh Chahar, for payment of his suspension allowance. Accordingly, a First Information Report No.0254 of 2017 dated 02.05.20217 under Section 7, 13(1)(d), 13(2), P.C. Act, P.S. Shahganj, District Agra was registered against the petitioner.
4. On 15.05.2017, petitioner's wife submitted a representation before the District Magistrate, Agra, alleging that her husband has been falsely implicated in the aforesaid criminal case. On 13.11.2017, the petitioner also moved a representation before the Superintendent of Police, Vigilance, Agra submitting that he has been falsely implicated. On 21.11.2017, the petitioner moved a representation before the Finance Controller, Basic Shiksha Parishad, U.P. Allahabad alleging that the Assistant Teacher Dinesh Singh Chahar had made a false complaint against him. The petitioner also moved a representation before the Additional Director (Basic Shiksha), Uttar Pradesh, Allahabad for action against the aforesaid Assistant Teacher Dinesh Singh Chahar alleging that he moved a false complaint since the sanctioning authority for suspension allowance to the extent of 75% of the salary, was the Basic Education Officer and not the petitioner. On the aforesaid representation of the petitioner, the Finance Controller issued a letter dated 08.12.2017 for taking action against the aforesaid suspended Assistant Teacher Dinesh Singh Chahar.
5. It appears that the Investigating Officer of the Vigilance Department investigated the matter and requested the State Government to grant sanction for prosecution of the petitioner. It appears that the State Government considered the objections/ representation of the petitioner and vide order dated 25.04.2018, the State Government not accepted the recommendation of the Vigilance Department for granting sanction for prosecution of the petitioner and directed for further investigation to be carried by the CBCID under Section 173(8), Cr.P.C. in the aforesaid Case Crime No.0254 of 2017.
6. Aggrieved with the aforesaid order dated 25.04.2018, the aforesaid Assistant Teacher Sri Dinesh Singh Chahar filed a Criminal Misc. Writ Petition No.12373 of 2018 (Dinesh Singh Chahar vs. State of U.P. and others) praying to quash the order dated 25.04.2018. The aforesaid Criminal Misc. Writ Petition No.12373 of 2018 was disposed of by a Division Bench of this Court by order dated 11.10.2018 observing as under:
"12. In these circumstances, we do not find any ground to quash the impugned order dated 25.04.2018. It may also be mentioned here that in further investigation as directed by the Government vide impugned order to be done by C.B.C.I.D. there could be possibility of reiteration of the charge-sheet submitted against the respondent no.7 and there could also be a possibility of closer report being submitted. In case, the closer report is submitted, the competent court may be approached by the petitioner to get the same set aside by moving a protest petition and at that stage, the said court may also take into consideration earlier evidence gathered by the Investigating Agency during submission of the Charge-sheet against the petitioner before arriving on a conclusion.
13. In view of the above, we uphold the impugned order dated 25.04.2018 and direct to the Investigating Agency to conclude the further investigation within a period of two months from today, positively and submit the police report before the competent court.
14. The present writ petition is, accordingly, disposed of."
7. In the aforesaid Criminal Misc. Writ Petition No.12373 of 2018, the petitioner was the respondent No.7. The aforesaid order of the State Government dated 25.04.2018 directing for further investigation by the CBCID, has attained finality. The CBCID completed the investigation and submitted reports dated 27.05.2019 and 08.07.2019 to the State Government. Vide letters dated 14.01.2020 and 23.01.2020, the State Government made certain queries and directed CBCID to provide detail investigation report. After considering the matter, the State Government passed the impugned order dated 27.01.2020 granting sanction for prosecution of the petitioner under Section 7/13(1)(d), 13(2), P.C. Act.
8. In the impugned order dated 27.01.2020, the Case Crime No. was inadvertently mentioned as 25417/2017 instead of correct No.254/2017. Therefore, the impugned order dated 27.01.2020 was corrected. The chargesheet No.3/2020 dated 03.03.2020 has been filed before the Court of Additional District and Sessions Judge/ Special Judge, Prevention of Corruption Act, Meerut on 29.07.2020. It has been stated in paragraph-10 of the short counter affidavit that in the aforesaid case (State Trial No.432 of 2020), cognizance has been taken and it is pending before the court of Special Judge, Prevention of Corruption Act, Meerut and the next date is fixed for 09.04.2021.
Submissions:-
9. Learned counsel for the petitioner submitted as under:-
(i) Once the request for sanction for prosecution of the petitioner was rejected by the State Government vide order dated 25.04.2018, the impugned order dated 27.01.2020 granting sanction could not have been passed by the State Government on the basis of the same material on which the sanction was earlier refused.
(ii) When the impugned order dated 27.01.2020 granting sanction for prosecution was passed, the investigation of the case was not complete.
(iii) The petitioner has been falsely implicated as evident from representations made by the petitioner. Therefore, the grant of sanction for prosecution by the impugned order dated 27.01.2020 is arbitrary and illegal. While granting sanction for prosecution, the State Government has not considered the letter of the Finance Controller dated 08.12.2017 whereby he ordered for taking action against the Assistant Teacher Sri Dinesh Singh Chahar for levelling charges against the petitioner.
(iv) The petitioner was not the sanctioning authority to sanction suspension allowance to the extent of 75% of the salary of the aforesaid Assistant Teacher. The petitioner was only the disbursing authority. Therefore, there was no occasion for the petitioner to demand and accept illegal gratification from the aforesaid Assistant Teacher Sri Dinesh Singh Chahar. Consequently, the entire case set up by The Trap team is baseless.
(v) The Investigating Officer has not conducted investigation truthfully and fairly. Therefore, the grant of sanction for prosecution on the basis of the investigation report of the CBCID, deserves to be quashed.
(vi) The alleged trap was made with malicious intention only for destroying carrier of the petitioner in conspiracy with the complainant Dinesh Singh Chahar.
10. In support of his submissions, learned counsel for the petitioner has relied upon the judgments of Hon'ble Supreme Court in the case of State of Punjab and another Vs. Mohd. Iqbal Bhatti, (2009) 17 SCC 92, State of Himanchal Pradesh vs. Nishant Sareen, (2010) 14 SCC 527, Gopikant Choudhary vs. State of Bihar, (2000) 9 SCC 53 and Ashoo Surendranath Tewari vs. The Deputy Superintendent of Police, EOW, CBI and another (2020) 9 SCC 636 for the proposition that the State Government has no power to review its own order in the matter of grant of sanction, on the same set of facts on which the sanction for prosecution was earlier refused.
11. Learned standing counsel has supported the impugned order and has also relied upon a judgment of Hon'ble Supreme Court in the case of Devinder Singh and others vs. State of Punjab through CBI, (2016) 12 SCC 87 (para-39).
Discussion and Findings:-
12. We have carefully considered the submissions of the learned counsels for the parties.
13. Before we proceed to discuss, it would be appropriate to reproduce Section 19 of The Prevention of Corruption Act, 1988 (hereinafter referred to as ''P.C. Act'), as under:
"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 office 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) 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."
14. Perusal of Section 19 of the P.C. Act makes it clear that 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 of the Central Government or the State Government or the competent authority as referred in clauses (a), (b) and (c) of sub-Section (1). Clause (b) of sub-Section (3) of Section 19 mandates that no court shall stay the proceeding 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. Sub-section (4) of Section 19 explains the phrase "failure of justice".
Object of Section 19 of the P.C. Act and Maintainability of Writ Petition challenging the order granting Sanction for Prosecution:-
15. Section 19 of the P.C. Act leaves no manner of doubt that sanction for prosecution has been provided by law as a safeguard to public servants to save them from vexatious and frivolous prosecution so as to give them freedom and liberty to perform their duty without fear or favour and not succumbed to the pressure of unscrupulous elements. Thus, Section 19 of the P. C. Act empowers the sanctioning authority to protect the innocent public servants from uncalled for prosecution but it is not intended to shield the guilty, vide Chittranjan Das vs. State of Orrisa, (2011) 7 SCC 167 (para-12).
16. From bare reading of Section 19 read with Section 3, 4 and 5, it is evident that legality and/ or validity of order granting sanction would be subject to review by criminal courts whereas an order refusing to grant sanction may attract judicial review. Reference in this regard may also be had to the judgment of the Apex Court in State of Punjab and another vs. Mohd. Iqbal Bhatti, (2009) 17 SCC 92 (para-6). In the present set of facts, since the chargesheet dated 03.03.2020 has already been submitted in the court of Additional Sessions Judge/ Special Judge, P.C. Act on 29.07.2020 and the cognizance has also been taken in State Trial No.432 of 2020, therefore, present writ petition for quashing the sanction for prosecution or to stay the trial is not maintainable. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. Question of sanction may arise at any stage of proceedings. Whether sanction for prosecution is necessary or not, have to be determined from stage to stage and material brought on record depending upon facts of each case.
17. Earlier a Criminal Misc. Writ Petition No.12373 of 2018 was filed by the complainant Sri Dinesh Singh Chahar in which the petitioner herein was the respondent No.7. In that writ petition, the order dated 25.04.2018 directing further investigation by CBCID was challenged and the writ petition was disposed of by order dated 11.10.2018 upholding the order dated 25.04.2018 and directing the Investigating Agency to conclude the further investigation within a period of two months, positively and submit the police report before the competent court. The order dated 11.10.2018 has attained finality. That apart, the petitioner has not impleaded the complainant in the present writ petition who is the necessary party. Thus, the writ petition also suffers from defect of non-joinder of necessary party.
Law of Sanction for Prosecution, and Stage and Forum to challenge an order granting sanction:-
18. Law with regard to order for sanction for prosecution and when the question of sanction can be entertained, has been summarised by Hon'ble Supreme Court in the case of Devinder Singh vs. State of Punjab through CBI, (2016) 12 SCC 87 (para-39), as under:
"39. The principles emerging from the aforesaid decisions are summarized hereunder :
39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.
39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.
39.4. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.
39.5. In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
39.6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.
39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.
39.9. In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial."
(Emphasis supplied by us)
19. In the case of Mohd. Iqbal Bhatti (supra), Hon'ble Supreme Court held as under:
"............................The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts."
20. In the case of Prakash Singh Badal and another vs. State of Punjab, (2007) 1 SCC 1 (Paras-20, 21, 26, 29, 48), Hon'ble Supreme Court held as under:
"20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.
21. In other words, where the act performed under the colour of office is for the benefit of the officer or for his own pleasure Section 19(1) will come in. Therefore, Section 19(1) is time and offence related.
26. The underlying principle of Sections 7, 10, 11, 13 and 15 have been noted above. Each of the above Sections indicate that the public servant taking gratification (Section 7), obtaining valuable thing without consideration (Section 11), committing acts of criminal misconduct (Section 13) are acts performed under the colour of authority but which in reality are for the public servant's own pleasure or benefit. Sections 7, 10, 11, 13 and 15 apply to aforestated acts. Therefore, if a public servant in his subsequent position is not accused of any such criminal acts then there is no question of invoking the mischief rule. Protection to public servants under Section 19(1)(a) has to be confined to the time related criminal acts performed under the colour or authority for public servant's own pleasure or benefit as categorized under Sections 7, 10, 11, 13 and 15. This is the principle behind the test propounded by this court, namely, the test of abuse of office.
29. The effect of sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In Sub-Section (3) the stress is on "failure of justice" and that too "in the opinion of the Court". In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to root of jurisdiction as observed in para 95 of the Narasimha Rao's case [(1998) 4 SCC 626]. Sub-section (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the Old Act [Section 19(2) of the Act] question relates to doubt about authority to grant sanction and not whether sanction is necessary.
48. ................. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial."
21. In the case of Asian Resurfacing of Road Agency Pvt. Ltd. and another vs. Central Bureau of Investigation, (2018) 16 SCC 299 (paras-50 and 54), Hon'ble Supreme Court held has under:
"50. A perusal of Section 19(3) of the Act would show that the interdict against stay of proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority is lifted if the Court is satisfied that the error, omission or irregularity has resulted in a failure of justice. Having said this in clause (b) of Section 19(3), clause (c) says that no Court shall stay proceedings under this Act on any other ground. The contention on behalf of the Appellants before us is that the expression "on any other ground" is referable only to grounds which relate to sanction and not generally to all proceedings under the Act. Whereas learned counsel for the Respondents argues that these are grounds referable to the proceedings under this Act and there is no warrant to add words not found in sub-section (c), namely, that these grounds should be relatable to sanction only.
54. It is thus clear that the inherent power of a Court set up by the Constitution is a power that inheres in such Court because it is a superior court of record, and not because it is conferred by the Code of Criminal Procedure. This is a power vested by the Constitution itself, inter alia, under Article 215 as aforestated. Also, as such High Courts have the power, nay, the duty to protect the fundamental rights of citizens under Article 226 of the Constitution, the inherent power to do justice in cases involving the liberty of the citizen would also sound in Article 21 of the Constitution. This being the constitutional position, it is clear that Section 19(3)(c) cannot be read as a ban on the maintainability of a petition filed before the High Court under Section 482 of the Code of Criminal Procedure, the non-obstante clause in Section 19(3) applying only to the Code of Criminal Procedure. The judgment of this Court in Satya Narayan Sharma v. State of Rajasthan, (2001) 8 SCC 607, paras 14 and 15 does not, therefore, lay down the correct position in law. Equally, in paragraph 17 of the said judgment, despite the clarification that proceedings can be "adapted" in appropriate cases, the Court went on to hold that there is a blanket ban of stay of trials and that, therefore, Section 482, even as adapted, cannot be used for the aforesaid purpose. This again is contrary to the position in law as laid down hereinabove. This case, therefore, stands overruled."
22. The principles laid down in the case of Mahesh G Jain (supra) has been reiterated by Hon'ble Supreme Court in a recent judgment in the case of Vinod Kumar Garg vs. State (Government of NCT of Delhi), (2020) 2 SCC 88 (paras-24 and 25).
23. In the case of Central Bureau of Investigation vs. Ashok Kumar Aggarwal, (2014) 14 SCC 295 (paras-13, 14, 15, 16, 16.1 to 16.5), Hon'ble Supreme Court summarised legal propositions with regard to grant of sanction for prosecution, as under:
"13. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
14. It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
15. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter-alia on the ground that the order suffers from the vice of total non-application of mind. [Vide: Gokulchand Dwarkadas Morarka v. R., AlR 1948 PC 82; Jaswant Singh v. State of Punjab, AIR 1958 SC 124; Mohd. Iqbal Ahmed v. State of A.P., (1979) 4 SCC 172; State v. Krishanchand Khushalchand Jagtiani, (1996) 4 SCC 472; State of Punjab v. Mohd. Iqbal Bhatti, (2009) 17 SCC 92; Satyavir Singh Rathi, ACP v. State, (2011) 6 SCC 1; and State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119].
16. In view of the above, the legal propositions can be summarised as under:
16.1. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
16.2. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
16.3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
16.4. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
16.5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."
(Emphasis supplied by us)
24. In the case of State of Maharastra through CBI vs. Mahesh G Jain, (2013) 8 SCC 119, Hon'ble Supreme Court has summarised the principle with regard to order for sanction of prosecution and its nature and held as under:
"14. From the aforesaid authorities the following principles can be culled out: -
14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a pre-requisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity."
(Emphasis supplied by us)
25. Sanction lifts the bar for prosecution. In every individual case, the prosecution has to satisfy the court by leading evidence that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. The court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order granting sanction which is an administrative function based on satisfaction of the sanctioning authority that relevant facts would constitute the offence. The legality and validity of the order granting sanction would be subject to review by the criminal courts whereas an order refusing to grant sanction may attract judicial review by the superior courts. The court as referred in the Section 19, P.C. Act, is the court of Special Judge appointed under Section 3 to try cases under Section 4, as per procedure provided under Sections 5 and 6 of the P.C. Act. Ordinarily, question of sanction would be dealt with by the court at the stage of taking cognizance but if the cognizance is taken erroneously and the same comes to the notice of the court at a later stage, finding to that effect is permissible and such a plea can be raised at the time of framing of charges and it can be decided prima facie on the basis of accusation. Objection can be raised even before the appellate court. Thus, a writ petition under Article 226 of the Constitution of India to challenge the order granting sanction for prosecution, is ordinarily not maintainable inasmuch as the accused public servant has an opportunity before the court, i.e. Special Judge appointed under Section 3 of the P.C. Act to raise objection as aforesaid which has to be decided by the court in the light of the law laid down by Hon'ble Supreme Court in the case of Devinder Singh (supra), Prakash Singh Badal (supra), Asian Resurfacing of Road Agency Pvt. Ltd. (supra) and Mahesh G. Jain (supra). Therefore, without expressing any opinion on merits of the case of the petitioner, the present writ petition is held to be not maintainable.
Protection of Section 197, Cr.P.C.:-
26. In the case of Romesh Lal Jain vs. Naginder Singh Rana and others (2006) 1 SCC 294 (paras-11 and 13), Hon'ble Supreme Court has settled the law that sanction required under Section 197, Cr.P.C. and sanction required under the P.C. Act, 1988 stands on different footings. Whereas sanction under the I.P.C. in terms of the Cr.P.C. is required to be granted by the State, the sanction under the P.C. Act, 1988 can also be granted by the authority specified in Section 19 thereof. In paragraphs 11 and 13 in the case of Romesh Lal Jain (supra), Hon'ble Supreme Court held as under:
"11.Sanction required under Section 197 Cr. P.C. and sanction required under the 1988 Act stand on different footings. Whereas sanction under the Indian Penal Code in terms of the Code of Criminal Procedure is required to be granted by the State; under the 1988 Act it can be granted also by the authorities specified in Section 19 thereof.
13.The High Court in its impugned order, however, does not appear to have taken that aspect of the matter into consideration. It failed to make a distinction between an order of sanction required for prosecuting a person for commission of an offence under the Penal Code and an order of sanction required for commission of an offence under the 1988 Act."
27. In the case of Station House Officer, CBI/ ACB/ Bengalore vs. B.A. Srinivasan and another, (2020) 2 SCC 153, Hon'ble Supreme Court reiterated that protection under Section 19 of the P.C. Act is available to a public servant only till he is in employment and no sanction is required after public servant has demitted his office or retired from service. In Paras-14, 15 and 18, the Apex Court held as under:
"14. Again, it has consistently been laid down that the protection under Section 197 of the Code is available to the public servants when an offence is said to have been committed ''while acting or purporting to act in discharge of their official duty', but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected. The statements of law in some of the earlier decisions were culled out by this Court in Inspector of Police and another vs. Battenapatla Venkata Ratnam, (1991) 3 SCC 655 as under: (SCC pp.89-90, paras 7-9) "7. No doubt, while the respondents indulged in the alleged criminal conduct, they had been working as public servants. The question is not whether they were in service or on duty or not but whether the alleged offences have been committed by them "while acting or purporting to act in discharge of their official duty". That question is no more res integra. In Shambhoo Nath Misra v. State of U.P. (1997) 5 SCC 326, para 5, this Court held that: (SCC p. 328) ''5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds, etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund, etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.'
8. In Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1, at para 20 this Court held that: (SCC pp. 22-23) ''20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity."
and thereafter, at para 38, it was further held that: (Parkash Singh Badal case (supra), SCC p. 32) ''38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.'
9. In a recent decision in Rajib Ranjan v. R. Vijaykumar, (2015) 1 SCC 513, at para 18, this Court has taken the view that: (SCC p. 521) ''18. ... even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted." (emphasis in original)
15. It has also been observed by this Court that, at times, the issue whether the alleged act is intricately connected with the discharge of official functions and whether the matter would come within the expression ''while acting or purporting to act in discharge of their official duty', would get crystalized only after evidence is led and the issue of sanction can be agitated at a later stage as well. In P.K. Pradhan vs. State of Sikkim, (2001) 6 SCC 704, this Court stated: (SCC pp.712-13, para 15) "15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial." (emphasis supplied)
18. Having considered the matter in entirety, in our view, the High Court clearly erred in allowing Criminal Revision Petition and accepting the challenge raised by the Respondent No.1 on the issue of sanction. We, thus, allow this Appeal, set aside the view taken by the High Court, restore the order passed by the Trial Court and dismiss the application seeking discharge preferred by the Respondent No.1."
(Emphasis supplied by us)
28. In the light of the law laid down by the Supreme Court in the case of Romesh Lal Jain (supra) and B.A. Srinivasan and another (supra), it can be safely concluded that a sanction required under Section 197, Cr.P.C. and the sanction required under the P.C. Act, 1988, stands on different footings. Whereas sanction under the I.P.C. in terms of Cr.P.C. is required to be granted by the State; the sanction under the P.C. Act can be granted also by the authorities specified in Section 19 thereof. An accused public servant who claims protection under Section 197 of the Cr.P.C., has to show that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in discharge of official duty as well as in dereliction of it. The act of the accused complained of must be such that the same cannot be separated from the discharge of official duty. But where there is no reasonable connection between the act complained of and the performance of official duties, no sanction under Section 197, Cr.P.C. would be required. In order to come to the conclusion whether claim of the accused that the act which he did was in the course of performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. Thus, where the acts are performed by an accused public servant using the office as a mere cloak for unlawful gains, such acts are not protected. Where a criminal act is performed under the colour of authority but which in reality the act is for the public servant's own pleasure or benefit, then such acts are not protected under the doctrine of State immunity. If a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. Whether the alleged act is intricately connected with the discharge of official functions and whether the matter would come within the expression "while acting or performing in discharge of their official duties", would get crystallised only after evidence is led and the issue of sanction can be agitated at a later stage as well.
29. In the present set of facts, we find that the first order dated 25.04.2018 was passed by the State Government for further investigation by another Agency, i.e. CBCID which has attained finality after dismissal of Criminal Misc. Writ Petition No.12373 of 2018 (Dinesh Singh Chahar vs. State of U.P. and others). After the CBCID completed the investigation and submitted a report requesting for grant of sanction for prosecution against the petitioner, prima facie the State Government applied its mind and made certain queries and also called for detailed investigation report vide letters dated 14.01.2020 and 23.01.2020. Thereafter, the State Government passed the impugned order dated 27.01.2020 granting sanction for prosecution. The impugned order is an administrative order, which prima facie has been passed by the State government after due application of mind. The chargesheet dated 03.03.2020 has already been submitted by the prosecution before the competent court on 29.07.2020 and the court has taken cognizance. Under the circumstances and also in view of the provisions of Section 19 of the P.C. Act and the law settled by Hon'ble Supreme Court in Mohd. Iqbal Bhatti (supra), Prakash Singh Badal (supra), Mahesh G. Jain (supra), Vinod Kumar Garg (supra) and Ashok Kumar Aggarwal (supra), remedy is available to the petitioner to raise objection against the grant of sanction before the trial court.
30. The judgments relied by the learned counsel for the petitioner, are of no help to the petitioner on the facts of his case. In the case of State of Punjab and another vs. Mohd. Iqbal Bhatti (supra), Hon'ble Supreme Court held that in the matter of grant on refusal to grant sanction, the State exercises statutory jurisdiction, however, the same would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is however beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the concerned authority is imperative. The legality and/ or validity of the order granting sanction would be subject to review by criminal courts. In the present set of facts, further investigation was directed by the State Government and pursuant thereto, the matter was investigated by the CBCID. The Agency submitted the report before the State Government who made certain queries and called for detailed investigation report and thereafter passed the impugned order. The judgment in the case of Himanchal Pradesh vs. Nishat Sareen (supra) and Govind Kant Choudhary (supra) relied by learned counsel for the petitioner is also distinguishable on the facts of the present case.
Conclusions:-
31. Discussion made and conclusions reached above by us are briefly summarised as under:-
(i) Sanction for prosecution under Section 19 of the P.C. Act has been provided by law as a safeguard to public servants to save them from vexatious and frivolous prosecution so as to give them freedom and liberty to perform their duty without fear or favour and not succumbed to the pressure of unscrupulous elements. Thus, Section 19 of the P.C. Act empowers the sanctioning authority to protect the innocent public servants from uncalled for prosecution but it is not intended to shield the guilty.
(ii) Sanction lifts the bar for prosecution. In every individual case, the prosecution has to satisfy the court by leading evidence that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. The court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction which is an administrative function based on satisfaction of the sanctioning authority that relevant facts would constitute offence.
(iii) The legality and/ order validity of the order granting sanction would be subject to review by the criminal courts whereas an order refusing to grant sanction may attract judicial review by the superior courts.
(iv) The court as referred in the Section 19, P.C. Act, is the court of Special Judge appointed under Section 3 to try cases under Section 4, as per procedure provided under Sections 5 and 6 of the P.C. Act.
(v) Ordinarily, question of sanction would be dealt with by the court at the stage of taking cognizance but if the cognizance is taken erroneously and the same comes to the notice of the court at a later stage, finding to that effect is permissible and such a plea can be raised at the time of framing of charges and it can be decided prima facie on the basis of accusation. Objection can be raised even before the appellate court.
(vi) Writ petition under Article 226 of the Constitution of India to challenge the order granting sanction for prosecution, is ordinarily not maintainable inasmuch as the accused public servant has an opportunity before the court, i.e. Special Judge appointed under Section 3 of the P.C. Act to raise objection to the grant of sanction for prosecution. Therefore, without expressing any opinion on merits of the case of the petitioner, the present writ petition is held to be not maintainable.
(vii) Earlier a Criminal Misc. Writ Petition No.12373 of 2018 was filed by the complainant Sri Dinesh Singh Chahar in which the petitioner herein was the respondent No.7. In that writ petition, the order dated 25.04.2018 directing further investigation by CBCID was challenged and the writ petition was disposed of by order dated 11.10.2018 upholding the order dated 25.04.2018 and directing the Investigating Agency to conclude the further investigation within a period of two months, positively and submit the police report before the competent court. The order dated 11.10.2018 has attained finality. That apart, the petitioner has not impleaded the complainant in the present writ petition who is the necessary party. The writ petition suffers from defect of non-joinder of necessary party.
(viii) An accused public servant who claims protection under Section 197 of the Cr.P.C., has to show that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in discharge of official duty as well as in dereliction of it. The act of the accused complained of must be such that the same cannot be separated from the discharge of official duty. But where there is no reasonable connection between the act complained of and the performance of official duties, no sanction under Section 197, Cr.P.C. would be required.
(ix) In order to come to the conclusion whether claim of the accused that the act which he did was in the course of performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it.
(x) Where the acts are performed by an accused public servant using the office as a mere cloak for unlawful gains, such acts are not protected. Where a criminal act is performed under the colour of authority but which in reality the act is for the public servant's own pleasure or benefit, then such acts are not protected under the doctrine of State immunity.
(xi) If a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. Whether the alleged act is intricately connected with the discharge of official functions and whether the matter would come within the expression "while acting or performing in discharge of their official duties", would get crystallised only after evidence is led and the issue of sanction can be agitated at a later stage as well.
32. For all the reasons afore-stated, the writ petition is dismissed, leaving it open for the petitioner to raise objection in State Trial No.432 of 2020 against the order granting sanction for prosecution, before the court of Additional District and Sessions Judge/ Special Judge, P.C. Act, Meerut.
Order Date :- 18.06.2021 NLY