Uttarakhand High Court
Balkrishna Mishra vs State Of Uttarakhand on 7 March, 2017
Author: Rajiv Sharma
Bench: Rajiv Sharma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Reserved on: 22.02.2017
Delivered on: March 7, 2017
Criminal Revision No.274 of 2014
Bal Krishna Mishra
....... Revisionist
Versus
State of Uttarakhand
... Respondent
Mr. M.C. Kandpal, Sr. Adv., for the revisionist.
Mr. P.S. Saun, Dy. Adv. General, for the State.
With
Criminal Misc. Application No.1155 of 2016
(U/s 482 Cr.P.C.)
Bal Krishna Mishra
....... Petitioner
Versus
State of Uttarakhand & another
... Respondents
Mr. M.C. Kandpal, Sr. Adv., for the petitioner.
Mr. P.S. Saun, Dy. Adv. General, for the State.
Per: Hon'ble Rajiv Sharma , J.
Since the common questions of law and facts are involved in both these matters, the same are taken up together and decided by this common judgment.
2. Revisionist/petitioner Bal Krishna Mishra has sought quashing of the proceedings of Special Sessions Trial No.3 of 2013 pending before the First Additional Sessions Judge/Special Judge (Prevention of Corruption Act), Nainital. He has also sought quashing of the order dated 10.11.2014 as well as the Charge-sheet No.17/2013 dated 12.07.2013 submitted against him for the offence of 2 Section 13 of the Prevention of Corruption Act, 1988 (hereinafter to be referred as 'the Act'). The revisionist/petitioner has also challenged the order dated 11.12.2014 passed by the court below framing Charge against him for the offence of Sections 13(1)(e) r/w Section 13(2) of the Act.
3. Key facts, necessary for the adjudication of this petition, are that the revisionist/petitioner Bal Krishna Mishra was working on the post of Soil Conservation Officer, Bageshwar. He was travelling from Bageshwar to Dehradun. Thereafter, he had gone to Ghaziabad for making payment of Wire Factory, namely, M/s Manohar Lal and Heera Lal. He was carrying two drafts total amounting to Rs.2,84,900/- in the name of said firms. The revisionist was apprehended on 10.4.2002. He was suspended from his service on 18.5.2002. The disciplinary proceedings were initiated against him wherein the order was passed on 25.4.2003. He challenged the same before the Public Services Tribunal, Uttaranchal at Dehradun. Vide judgment dated 31.10.2006, the Public Services Tribunal set aside the order dated 25.4.2003. The Department challenged the order before this Court by way of Writ Petition (S/B) No.162 of 2007. The Division Bench, on 14.3.2012, affirmed the order dated 31.10.2006 passed by the Public Services Tribunal.
4. Thereafter, the F.I.R. was lodged on 16.1.2008 which was registered as Criminal Case No.10 of 2008 under Section 13 of the Act. The inquiry was initiated by the CBCID. The authorities sought the sanction to prosecute the revisionist. However, the fact of the matter is that the Principal Secretary, Agriculture, Government of 3 Uttarakhand, refused to grant the sanction vide order dated 18.5.2012.
5. The Senior Superintendent of Police, Criminal Investigation Department, wrote a letter on 15.1.2013 to the Principal Secretary, Agriculture, Government of Uttarakhand, for according the sanction to prosecute the revisionist. The permission was granted conditionally on 31.1.2013. Thereafter, the chargesheet was filed in Criminal Case No.10 of 2008. Vide order dated 11.12.2014, the Charges have been framed against the revisionist.
6. Learned Senior Advocate, appearing on behalf of the revisionist/petitioner, has vehemently argued that once the sanction was refused vide order dated 18.5.2012, the same could not be reviewed by the Principal Secretary on 31.1.2013, whereby he has accorded conditional sanction to prosecute the revisionist.
7. Learned Dy. Advocate General, appearing for the State, has supported the order dated 31.1.2013.
8. I have heard learned advocates and gone through the pleadings carefully.
9 The letter dated 18.05.2012 is in vernacular and its English translation has been placed on record by learned Senior Counsel. The text of the same reads as under: -
"Subject: For grant of permission to prosecute against B.K. Mishra, Agriculture and Soil Conservation Office, Roorkee, District Haridwar in Case Crime No.10/08 u/s 13 of Prevention of Corruption Act, 1988 vs. B.K. Mishra registered at P.S.- Jhiroli, District Bageshwar.
Sir, 4 Kindly find the reference for your letter no.C.B.- 50/09 dated 28.2.2012 and 21.4.2012. For the case in question, I have been directed to state that in light of the judgment dated 14.3.2012 passed by the Hon'ble High Court of Uttarakhand at Nainital in Writ Petition No.162 (S/B) /2007, Uttarakhand Government vs. Balkrishna Mishra, Agriculture and Soil Conservation Officer, Roorkee, District Haridwar; and Government Order No.402/XIII(1)/2012-4(8) 2002 dated 4.5.2012, copies of which are enclosed as well, now there is no justification to grant permission to prosecute against Mr. Mishra.
Enclosed: Proper Order By (Om Prakash) Principal Secretary"
10. Learned Senior Counsel, appearing for the petitioner, has drawn the attention of the Court to letter dated 15.01.2013 sent by the Superintendent of Police, CBCID to the Principal Secretary, Agriculture, seeking permission to launch the criminal proceedings against the revisionist. Thereafter, the Principal Secretary, has passed the order on 31.01.2013. English translation of the letter dated 31.1.2013 has been placed on record by learned senior counsel for the petitioner. The text of the same reads as under: -
"For grant of permission to prosecute against B.K. Mishra, Agriculture and Soil Conservation Office, Roorkee, District Haridwar in Case Crime No.10/08 u/s 13 of Prevention of Corruption Act, 1988 vs. B.K. Mishra registered at P.S.- Jhiroli, District Bageshwar.
Kindly find the reference for your letter no.C.B.-50/09 dated 15th January, 2013 in which permission to prosecute against B.K. Mishra, Agriculture & Soil Conservation Officer, Roorkee, District Haridwar in Case Crime No.10/08 u/s 13 of the Prevention of Corruption Act, 1988 Vs. B.K. Mishra registered at P.S. Jhiroli, District Bageshwar is requested.
In this context, after due consideration regarding G.O. No.453/ XIII-1/2012-3 (15) 2005 dated 18.5.2012. I have been directed to grant you the conditional permission as to prosecute against B.K. Mishra, Agriculture & Soil Conservation Officer on the condition that the C.B.C.I.D. will complete the entire investigation in the current issue and submit the report to the State within 2-3 months.5
Order By (Om Prakash) Principal Secretary"
11. It is evident from the contents of letter dated 31.1.2013 that there is non-application of mind. The Principal Secretary has not referred to any record or the material placed before him except making reference to the letter dated 15.1.2013 sent by the Superintendent of Police to him. According to letter dated 18.5.2012, there was no justification to grant permission to prosecute against the revisionist.
12. In A.I.R. 1958 Supreme Court Page 124, Their Lordships of Hon. Supreme Court in the case of 'Jaswant Singh v. State of Punjab' have held that the object of the provision for sanction is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case, sanctioned the prosecution, and therefore, unless the matter can be proved by other evidence, in the sanction itself, the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. Their Lordships, in paragraph no.4, have held as under: -
"4. The sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness; (Basdeo Agarwala v. King-Emperor1). The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the 6 circumstances be sanctioned or forbidden. In Gokulchand Dwarkadas Morarka v. King2 the Judicial Committee of the Privy Council also took a similar view when it observed:
"In Their Lordships' view, to comply with the provisions of clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were plakhed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction."
It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. In Yusofalli Mulla Noorbhoy v. King it was held that a valid sanction on separate charges of hoarding and profiteering was essential to give the court jurisdiction to try the charge. Without such sanction the prosecution would be a nullity and the trial without jurisdiction."
13. In the instant case, there is no reference to any evidence placed before the Principal Secretary prior to passing of order dated 31.1.2013.
14. In AIR 1962 S.C. 1573, Their Lordships of Hon. Apex Court in the case of 'R.R. Chari v. State of U.P.', have held that appropriate authority must be satisfied that there is prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences. In paragraph no.19, Their Lordships have held as under: -
"19. That takes us to the question as to whether the Government of India was competent to grant the sanction even if the appellant was at the relevant time a person employed in connection with the affairs of the Federation. Mr Chari contends that in the case of the appellant whose services had been loaned by the Assam Government to the Government of India, it could 7 not be said that he was a person permanently employed in connection with the affairs of the Federation and so, clause (a) of Section 197(1) would not apply to him at all. He was a person permanently employed in connection with the affairs of a State and that took the case under clause (b) which means that it is the Governor of Assam exercising his individual judgment who could have accorded valid sanction to the appellant's prosecution. We are not impressed by this argument. It is clear that the first part of Section 197(1) provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a criminal court can take cognizance of any offence alleged to have been committed by such public servants, a sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been interposed as a safeguard before the actual prosecution commences. The object of Section 197(1) clearly is to save public servants from frivolous prosecution, vide Afzalur Rahman v. King Emperor1. That being the object of the section, it is clear that if persons happened to be employed in connection with the affairs of the Federation, it was the Governor-General who gave sanction and if persons happened to be employed in connection with the affairs of the State, it was the Governor. What is relevant for the purpose of deciding as to who should give the sanction, is to ask the question where is the public servant employed at the relevant time? If he is employed in the affairs of the Federation, it must be the Governor-General in spite of the fact that such employment may be temporary and may be the result of the fact that the services of the public servant have been loaned by the State Government to the Government of India. Therefore, having regard to the fact that at the relevant time the appellant was employed in connection with the affairs of the Federation, it was the Governor-General alone who was competent to accord sanction. Therefore, our conclusion is that the sanction granted by the Governor-General for the prosecution of the appellant is valid."
15. In the present case, the authority concerned has not mentioned that the prima facie case is made out against the revisionist for initiating the prosecution against him.
16. In (2009) 17 SCC Page 92, Their Lordships of Hon. Supreme Court in the case of 'State of Punjab & another v. Mohammed Iqbal Bhatti' have held that although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction under 8 Section 197, the same, however, 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. The validity of an order of sanction would depend upon application of mind on the part of the authority concerned and consideration of all material facts and evidence collected during investigation and placed before it. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pas an order on extraneous consideration not germane for passing a statutory order. While passing an order for grant of sanction, serious application of mind on the part of the authority considered is imperative. Their Lordships, in paragraph nos.6, 7 and 14 to 20, have held as under: -
6. Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, 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 authority concerned is imperative. 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.
7. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidence must be considered by it. The sanctioning authority must apply its mind on such material facts and evidence collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidence may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. It is also well settled that the superior courts cannot direct the sanctioning authority either to grant sanction or not to do so. The source of power of an authority passing an order of sanction must also be considered. (See Mansukhlal Vithaldas Chauhan v. State of Gujarat1.) The authority concerned cannot also pass an order of sanction subject to ratification of a higher authority.
914. Before us, however, it was contended that requisite clarification was made by the Deputy Superintendent of Police, Vigilance Bureau on 17-12-2002 stating:
"Besides this Shri Hans Raj Golden has no link with the Vigilance Department. It is false that he is a tout of the Vigilance Department."
However, it is stated that with the change in the Government and after more than nine months of the said refusal to grant sanction, the Vigilance Department again approached the Secretary concerned for grant of sanction by a letter dated 16-5-2004.
15. The Deputy Secretary, Government of Punjab, Rural Development and Panchayat Department by a Letter dated 30-9-2004 addressed to the Deputy Secretary, Vigilance Bureau, stated as under:
"On the abovementioned subject this Department vide Letter Memo No. 6/37/2001-3 RDE-3/9925 dated 15-12-2003 had refused to grant sanction for prosecution of Mohd. Iqbal Bhatti.
2. Vide your letter under reference you had again requested to grant sanction for prosecution of the official concerned in the case and after reconsidering the case, sanction for prosecution of Mohd. Iqbal Bhatti, District Development and Panchayat Officer is granted...."
16. The Governor of Punjab in his Order of sanction dated 14-9- 2004 recorded the prosecution case presumably as contained in the first information report and opined:
"Therefore, after perusing the above case, police file, documents, challan and attached all the documents minutely the Rajya Pal Ji has become fully satisfied that the above Mohd. Iqbal, DDPO, Ferozepur during the tenure of his service/posting, has committed an offence under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988."
The said order was also signed by the Secretary, Government of Punjab, Rural Development and Panchayat Department.
17. The contention of the learned Additional Advocate General for the appellants is that Rule 8 of the Rules of Business shall apply whereas according to the learned counsel for the respondent, Rule 9 thereof shall apply. In terms of clause (3) of Article 166 of the Constitution of India all orders of the Government must be issued in the name of the Governor. Such orders, however, may be signed by any authorities specified in Rule 9 of the Rules of Business. By reason of either Rule 8 or Rule 9 of the Rules of Business, no substantive power is conferred. The Rules of Executive Business inter alia provided for three authorities before whom the records are to be placed viz. the Minister of the Department, the Chief Minister and the Cabinet. It has not been contended that in terms of the Rules of Executive Business read with the Standing Orders, the Minister of the Department concerned could not have refused to grant sanction. What is contended before us is that Rule 8 of the Rules of Business should have been complied with.
18. It is now well known that in the event it appears from the order and the records produced before the court, if any occasion arises therefor that even if a valid order is not authenticated in terms of clause (3) [sic clause (2)] of Article 166 of the Constitution of India, the same would not be vitiated in law. Failure to authenticate an executive order is not fatal. The said provision is directory in nature and not mandatory. (See I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer3.) 10
19. From a perusal of the Order dated 15-12-2003, it is evident that before the Hon'ble Minister all the relevant records were produced. The Vigilance Department did not contend that the Hon'ble Minister did not have any jurisdiction. It accepted the said order. It was not challenged. Only when a new government came in, was a request made for reconsideration of the earlier order, as would be evident from the memo of the Secretary of the Department.
20. It was, therefore, not a case where fresh materials were placed before the sanctioning authority. No case, therefore, was made out that the sanctioning authority had failed to take into consideration a relevant fact or took into consideration an irrelevant fact. If the clarification sought for by the Hon'ble Minister had been supplied, as has been contended before us, the same should have formed a ground for reconsideration of the order. It is stated before us that the Government sent nine letters for obtaining the clarifications which were not replied to."
17. The competent authority has only been swayed by the letter written by the Superintendent of Police, CBCID. The competent authority has not considered the material facts collected during the course of investigation and placed before it. There is no mention or murmur even that the material gathered during the investigation was placed before the competent authority while passing the fresh order on 31.1.2013.
18. In (2013) 8 SCC Page 119, Their Lordships of Hon. Supreme Court in the case of 'State of Maharashtra v. Mahesh G. Jain' have explained the object of sanction for prosecution. Their Lordships have held that 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. Their Lordships, in paragraph nos.6, 14 and 14.1 to 14.7, have held as under: -
"6. Grant of sanction is irrefragably a sacrosanct act and is intended to provide safeguard to a public servant against frivolous and vexatious litigations. Satisfaction of the sanctioning authority is essential to validate an order granting sanction.
14. From the aforesaid authorities the following principles can be culled out:11
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 it 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 its 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 prerequisite 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 hypertechnical approach to test its validity."
19. In (2014) 14 SCC Page 295, Their Lordships of Hon. Supreme Court in the case of 'Central Bureau of Investigation v. Ashok Kumar Aggarwal' have explained the nature and purpose of sanction for the prosecution. Their Lordships have held as under: -
"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.12
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."
20. In the instant case, only the letter sent by the Superintendent of Police, CBCID was enclosed for consideration of sanctioning authority and not all the documents including case diary etc. The Superintendent of Police has not placed the entire material before the Principal Secretary, Government of Uttarakhand, seeking reversal of the earlier decision dated 18.5.2012.
21. Accordingly, in view of the definite law laid down by the Hon'ble Apex Court, the revision petition as well as the C482 petition are allowed. Charge-sheet No.17/2013 dated 12.7.2013 as well as entire proceedings of Special Sessions Trial no.3 of 2013 pending before the Special Judge (P.C. Act)/ First Additional Sessions Judge, Nainital are hereby quashed and set aside.
22. Order dated 11.12.2014 framing Charge against the revisionist/applicant Bal Krishna Mishra by the court below is also quashed and set aside.
23. A copy of this order be sent to the court below for information.
(Rajiv Sharma, J.) Rdang