HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Judgment Reserved On 25.03.2015 Judgment Delivered on 08.06.2015 Court No. - 12 Case :- U/S 482/378/407 No. - 1804 of 2004 Applicant :- Digvijai Singh Opposite Party :- State Of U.P.Thru.Special Secy.Forest Civil Secretariate Lko Counsel for Applicant :- Yogesh Kesarwani,Amrendra Kr. Bajpai Counsel for Opposite Party :- Govt.Advocate Hon'ble Shashi Kant,J.
1. Heard Sri Amrendra Kr. Bajpai, learned counsel for applicant and learned A.G.A. appearing for State of U.P.
2. This application under Section 482 Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.'), has been filed for quashing of impugned order dated 18.08.2004 (Annexure No. 1 to the application) and to pass an order commanding Opposite Parties (hereinafter referred to as 'O.P.') not to arrest the applicant in pursuance of the investigation report submitted by the Investigating Agency i.e. C.B.C.I.D., alongwith other formal reliefs.
3. Brief facts related to this application as transpire from the record are that :
3.1 The applicant joined service on 01.03.1977 on being selected as Junior Forest Ranger through competitive examination. He was also promoted to the post of Forest Ranger in terms of relevant Service Rules on 09.07.1993.
3.2 During applicant's posting as Forest Ranger at Bird Santuary, Nawabganj, District - Unnao one Sri Shiv Dayal was arrested on 15.02.1998 for an illegal act of hunting a protected bird and to eat that. In that regard a report was registered as Case No. 9 Nawabganj/97-98, under Sections 9, 27, 29, 39, 51 of Wild Life (Protection) Act, 1972 (hereinafter referred to as 'Act, 1972').
3.3 Above named accused absconded and was arrested on 15.02.1998. He confessed the offence, by giving written statement on 15.02.1998 at about 12.30 P.M. and on the same date i.e. 15.02.1998, he was released on furnishing personal bond.
3.4 After his release from custody, unfortunately, in the evening, on account of head injury caused to accused in the quarrel with his brother, he died, just on the eve of Parliament Elections scheduled on 16.02.1998.
3.5 Allegedly, some local political leaders made the incident a case of harassment of a person belonging to Scheduled Caste for their political gain and under their pressure, an First Information Report (hereinafter referred to as 'FIR') was registered as Case Crime No. 36 of 1998 under Sections 342, 323, 304 Indian Penal Code (hereinafter referred to as 'IPC') and Section 3(2)(V) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'SC/ST Act, 1989') at Police Station - Ajgain, District - Unnao against the applicant and one another.
3.6 Validity of the aforesaid FIR was challenged before this Court in Writ Petition No. 1244 of 1998 (B) - Digvijai Singh and Another Vs. State of U.P. and Another. On 13.05.1998, above writ petition was finally disposed of with direction that petitioner shall not be harassed by the local police, except on the request of Central Bureau of Criminal Investigation Department (in short 'C.B.C.I.D.'), who was entrusted the investigation of the case.
3.7 The C.B.C.I.D., investigated the matter and after completion of investigation, submitted its report to OP No. 1, Special Secretary (Forest) for sanction under Section 197 Cr.P.C., to prosecute the applicant being a public servant.
3.8 OP No. 1, vide letter dated 23.03.2000 (Annexure No. 8) and 17.09.2001 (Annexure No. 9), asked the OP No. 2, Principal Chief Conservator, Forest, U.P., Lucknow to give report for sanction of the prosecution of the applicant in the Court of law. OP No. 2 on his turn sent a report dated 16.10.2001 (Annexure No. 10), concluding therein that there is no reason to prosecute the applicant and same will amount to harassment of the applicant, for no fault on his part.
3.9 The matter was again sent to OP No. 2 for grant of sanction, vide letter dated 13.10.2003. In compliance to that, OP No. 3, Chief Conservator Forest (Wild Life), U.P., Lucknow, on being delegated the power by OP No. 2, sent its report dated 19.04.2004 (Annexure No. 12 to the application), indicating therein that on the basis of evidence collected by the Investigating Agency to send the charge sheet, no prima facie case is made out against the applicant and no purpose will be served by applicant's prosecution. It was also indicated in the report that applicant was entitled to get benefit of Section 60 of Act, 1972, which provides that no Forest Officer/Employee shall be prosecuted for the act which they have done in good faith. OP No. 2 being satisfied with the report of OP No. 3, dated 19.04.2004, also agreed not to prosecute the applicant and sent his report vide letter dated 27.04.2004 (Annexure No. 13 to the application).
3.10 Vide letter dated 10.08.2004 (Annexure No. 15 to the application), OP No. 1 has directed OP No. 2 to submit his report against the applicant to take action against him for his prosecution as the direction to sanction for prosecution of the applicant has already been given, on 26.07.2004.
3.11 In the above factual background, OP No. 2 has passed the impugned order dated 18.08.2004 (Annexure No. 1).
3.12 In the above facts and circumstances, this application under Section 482 Cr.P.C. has been preferred by the applicant seeking the reliefs, as stated above.
4. I have considered various arguments raised on behalf of parties and perused the record.
5. Learned counsel for applicant states that impugned sanctioning order is wrong, illegal and is liable to be quashed, because it has been passed under the pressure of State Government as is evident from its letters dated 23.03.2000 , 14.09.2001, 13.10.2003, 26.07.2004 and 10.08.2004 (Annexure Nos. 8, 9, 11, 14 and 15 respectively), there is no mention in the impugned sanctioning order that what papers and documents have been considered by the sanctioning authority and what was crux/substance of those documents. Sofar as it may be determined that prior to grant of sanction, sanctioning authority has applied his independent mind towards the facts of the case or not? Sanctioning Authority has also not referred his earlier orders refusing sanction as contained in Annexure Nos. 10 and 13. In these facts and circumstances sanctioning order (Annexure No. 1), for grant of sanction by Sanctioning Authority, is wrong and illegal. It is also violative of Apex Court's decision in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujrat [(1997) 7 SCC 622], and in any case is liable to be quashed.
6. Learned A.G.A. appearing for State respondents has urged that letters sent by State Authorities to O.P. No. 2 are part of regular correspondence between the State Government and the Department. During investigation sufficient evidence/material was collected against the applicant and after considering all the relevant documents and evidence, OP No. 2 has granted sanction for prosecution of applicant, which is just and proper. There is no merit in the Application U/S 482 Cr.P.C. and same is liable to be dismissed.
7. In reply to above arguments learned counsel for applicant reiterated his earlier arguments.
8. Following question crops up in this matter for consideration :
(1) Whether the sanctioning authority-respondent no. 2 has exercised its independent mind while passing of impugned order (Annexure No. 1), granting sanction for prosecution of the applicant?
9. Perusal of record reveals that letter No. 519/14-3-2000-7001111/2000 dated 23rd March, 2000 (Annexure No. 8), sent by Sri Krishna Mohan Tripathi, Deputy Secretary, Government of Uttar Pradesh to O.P. No. 2 on the subject to provide sanction for prosecution of the applicant in which his recommendations in the above matter was sought within a week in reference of a letter of Superintendent of Police (Crime Branch), Crime Research Department, U.P., Lucknow, annexing copies of letter no. CB287/98, dated 23.12.1999 and 17.01.2000.
10. Subsequent to that, Dr. A.K. Verma, Special Secretary, Government of Uttar Pradesh, sent another letter No. 2536/14-3-7001111/2000, dated 14th September, 2001 (Annexure No. 9), on the same subject in which referring to letter no. Anu.Ka. 74/Digvijay Singh, dated 22.08.2001 of O.P. No. 2, it is directed that after examination of the matter on the basis of relevant documents, a decision should be taken to grant sanction for prosecution of the applicant and accordingly ensure future action in the matter with intimitation to the Government.
11. O.P. No. 2, vide his letter No. 222/Digvijay Singh, dated 16th October, 2001 (Annexure No. 10), informed the State Government that after considering all the relevant documents he is of the view that matter under consideration is not fit to grant sanction for prosecution of the Forest Officials and he refused to grant sanction.
12. Vide letter No. 2088/ 14-3-2000-7001111/2000, dated 13th October, 2003 (Annexure No. 11) of Sri Shanker Lal Pandey, Special Secretary, Government of Uttar Pradesh addressed to O.P. No. 2, with reference to above letter dated 16.10.2001, that he was directed to say that any officer familiar with the matter be sent to Crime Branch, Crime Research Department, Lucknow, to peruse the case diary and after examination of that following information may be made available immediately to Government, O.P. No. 1. On the basis of evidence collected by the Investigating Officer, offence against erring Forest Officers and Officials, in the alleged section prima-facie appears to be made out or not and secondly, if on any point advise of Judicial Department is required, then, point wise comments according to Legal Remembrance Directory 20.07 and 20.08 be made available to clarify that legal point.
13. In reference to above referred letter of Government of Uttar Pradesh (Annexure No. 11), O.P. No. 2 sent letter No. Anu. Ka 861/Digvijay Singh, dated 2nd April, 2004 (Annexure No. 13), informing the State Government that after considering all the relevant documents and evidence collected, he reached to conclusion that :
(i) On the basis of evidence collected by Crime Branch, Crime Research Department, Lucknow, prima-facie no offence under alleged Sections appears to be made out against erring Officers/Officials of Forest Department.
(ii) No prima-facie offence appears to be committed by erring Officers/Officials of Forest Department, therefore, there was no need for opinion of Legal Department on any legal point at that stage and accordingly he has once again refused to grant sanction for prosecution of the applicant.
14. Vide letter No. 1196-84-14-3-2004-700(11)/2000, dated 26th July, 2004 (Annexue No. 14), Sri Shanker Lal Pandey, Special Secretary, Government of Uttar Pradesh, stated that with reference of his letter dated 20.04.2004, he was directed to say that offence registered against the erring Officers/Officials of Forest Department, is of serious nature, triable by the Court of Sessions. In ordinary course, for grant of sanction, only the material collected during investigation and recommendation of Superintendent of Police on the basis of same issue of sanction is required to be considered. Therefore, on the basis of recommendation made by Superintendent of Police, grant of sanction is desirable and accordingly O.P. No. 2 was directed to ensure immediate action in the matter with intimation to the Government by 24.07.2004.
15. One another letter No. 1582/14-3-2004-700(11)/2000, dated 10th August, 2004 (Annexure No. 15), of Sri Shanker Lal Pandey, Special Secretary, Government of Uttar Pradesh addressed to O.P. No. 2, was also sent in the matter that action taken in pursuance of Government Letter No. 1196/14-3-2004-700(11)/2000, dated 26.07.2004 (Annexure No. 14), was not communicated to the Government, no further delay is desirable in the matter and Government may be informed by the action taken in the matter till 10.08.2004. Endorsement made in this letter is relevant, and same is being reproduced herein below :
Þizfrfyfi x`g ¼iqfyl½ vuq0&4 dks muds v0'kk0i0la0&4047 ,d @ N% &iq0&4&2004 fnukad 13-07-2004 ds lUnHkZ esa bl vH;qfDr ds lkFk izsf"kr fd 'kklu ds mDr i= fnukad 26-07-2004 }kjk izeq[k ou laj{kd] m0iz0 dks vipkjh deZpkfj;ksa ds fo:) vfHk;kstu dh Lohd`r iznku djus ds funsZ'k ns fn;s x;s gSA d`r dk;Zokgh dh tkudkjh izeq[k ou laj{kd ls vHkh rd izkIr ugha gqbZ gSA tkudkjh izkIr gksrs gh voxr djk fn;k tk;sxkAß Copy forwarded to the Department of Home (Police) in reference to A. Sha. P. No. 4047 I/Six -Pu.-4-2004 dated 13.07.2004 with a remark that the Chief Forest Conservator, U.P has been given instructions vide letter dated 26.7.2004 of the government for sanction to prosecution against the delinquent employees. Information as to action taken has not been received so far from the Chief Forest Conservator. Information once available will be conveyed.
(English Translation by the Court)
16. After the above letter of Government an Office Order No. E-06/Digvijay Singh, dated 18th August, 2004 (Annexure No. 1) regarding grant of sanction for prosecution of applicant was passed.
17. For proper appreciation of the matter above sanctioning order (Annexure No. 1), is reproduced herein below:
Þpwafd ;g vfHkdfFkr gS fd f'ko n;ky iq= Jh iky fn0 15-02-98 dks ?kj ls tkuoj pjkus gsrq 10 cts fnu esa fudyk FkkA tkuoj uokcxat i{kh fogkj dh >hy esa vkdj pjus yxsA brus esa Jh fnfXot; flag] ou {ks=kf/kdkjh rFkk Jh jkeiky flag] oU;tho j{kd] eksVj lkbfdy ij tcju cSBkdj bls ys x;s rFkk i{kh fogkj ds cxy esa fLFkr ou foHkkx ds dejs esa cUn djds ekjk ihVkA tc xkao okys ogka ij igqaps rks muds dgk fd tkuoj pjkus dk tqekZuk nsdj mls FkksMh nsj esa NksM nsxsaA Jh f'koiky dh ekrkth us mldh gkyr [kjkc gksus ij tc mls fQVdjh nw/k fiyk fn;k rks mldh gkyr vkSj fcxMus yxhA cSyxkMh ls ykndj vLirky ys tkrs lg; jkLrs esa mldh e`R;q gks x;hA 2- vkSj pwafd mDr dk;ksZ ls ,slk vijk/k curk gS tksfd Hkkjrh; n.M fo/kku dh /kkjk 342 @ 323 @ 304 ,oa vuqlwfpr tkfr @ vuqlwfpr tutkfr vR;kpkj fuokj.k vf/kfu;e dh /kkjk&3¼2½¼5½ ds v/khu n.Muh; gSA 3- vkSj pwafd eSa dkS'kysUnz izlkn] izeq[k ou laj{kd] mRrj izns'k y[kuÅ 'kklukns'k la[;k & 2693 @ 14&3&2001&700 ¼116½ @ 2000 fn0 24-05-2001 ds izLrj&2 ds vuqlkj mDr Jh fnfXot; flag] ou {ks=kf/kdkjh dks in ls gVkus ds fy, l{ke vf/kdkjh gksus ds ukrs ekeys esa mDr vfHkdFku ds laca/k esa esjs le{k izLrqr dh xbZ lkexzh vkSj ekeys dh ifjfLFkfr;ksa ls iw.kZ :i ls vkSj lko/kkuhiwoZd ijh{k.k djus ds i'pkr~ ;g le>rk gwa fd mDr Jh fnfXot; flag dks mDr vijk/kksa ds fy, l{ke U;k;ky; esa vfHk;ksftr fd;k tk;A vr,o vc eSa ,rn~nkjk Hkkjrh; n.M fo/kku dh /kkjk 342 @ 323 @ 304 ,oa vuqlwfpr tkfr @ vuqlwfpr tutkfr vR;kpkj fuokj.k vf/kfu;e dh /kkjk&3¼2½¼5½ ds v/khu vijk/kksa ds fy, vkSj mi;qZDr dk;Z ds laca/k esa fof/k ds vU; micU/kksa ds v/khu fdUgh vU; vijk/kksa ds fy, mDr Jh fnfXot; flag] ou {ks=kf/kdkjh dks vfHk;ksftr djus vkSj mDr vijk/kksa dk fdlh vf/kdkfjrk ;qDr l{ke U;k;ky; }kjk laKku djus ds fy, Lohd`fr iznku djrk gwaAß Since it is alleged that Sri Shiv Dayal s/o Sri Pal had left his house on 15.2.98 at 10 a.m. for grazing the cattle. The cattle came over to the lake of Nawabganj Birds Sanctuary and started grazing. In the meantime, Sri Digvijay Singh, Forest Ranger and Sri Rampal Singh, Wildlife Guard forced him to be seated on a motorcycle and took him along. Detaining him in a room of forest department situated beside the forest sanctuary, they thrashed him. When the villagers reached there, they were told that on payment of penalty for grazing the cattle, he would be released in a little while. On his condition worsening when Sri Shiv Pal's mother gave him alum mixed milk to drink, his condition started deteriorating. While being taken to the hospital by a bullock cart, he died on the way.
2. And since aforementioned acts constitute an offence punishable under section 342/323/304 IPC and section 3 (2) (5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
3. And since as per para 2 of the Government Order No. 2693/ 14-3-2001-700(116)/ 2000 dated 24.5.2001, I, Kaushalendra Prasad, Chief Forest Conservator, Uttar Pradesh, Lucknow, being the competent authority for the removal of aforesaid Sri Digvijay Singh from the post of the Forest Ranger, find it proper after a thorough and careful perusal of the material produced before me in connection with the aforesaid allegation and the circumstances of the case that the aforesaid Sri Digvijay Singh be tried for the said offences by the competent court. Hence, I hereby give assent for the aforesaid Sri Digvijay Singh, Forest Ranger to be tried for the offences covered under section 342/323/304 IPC and section 3 (2) (5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and for the other offences covered under the other provisions of the law ordained in relation to this effect and for the aforementioned offences to be taken into cognizance by the competent court having appropriate jurisdiction.
(English Translation by the Court)
18. Prior to proceed further, it will be useful to take note of relevant case law which are being discussed herein below.
19. The Hon'ble Apex Court in R.S. Nayak Vs. A.R. Antulay, (1984) 2 SCC 183, the Court has held that :
"By a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants."
20. In Mansukhlal Vithaldas Chauhan Vs. State of Gujrat (1997) 7 SCC 622, Hon'ble Apex Court in paragraph nos. 18, 19 and 23 has held as follows :
"18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (See also Jaswant Singh v. State of Punjab, AIR 1958 SC 124 and State of Bihar Vs. P.P. Sharma, 1992 Supp(1) SCC 222)
19. Since the validity of sanction depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority not to sanction was taken away and it was compelled to act mechanically to sanction the prosecution.
23. In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion."
21. In Gopikant Choudhary V. State of Bihar and others, (2000) 9 SCC 53, the Court held in paragraph no. 5, that :
"5. In the case in hand, the matter was initially placed before the Minister of Law who refused to accord sanction after applying his mind to the entire materials and an order to that effect was passed. Subsequent to the same, the appellant retired in the year 1994 and it is only in 1997, the Chief Minister appears to have passed the impugned order. The appellant assailed the legality of the aforesaid order in the High Court, but the High Court having not interfered, he has approached this Court. It is contended on behalf of the appellant that no fresh materials were collected subsequent to the earlier order refusing to sanction prosecution and the appropriate authority having applied its mind and having passed the said order, the subsequent order was wholly uncalled for and unjustified. In the counter-affidavit filed by the State, it has been indicated that before passing the earlier order, the matter had not been referred to the Chief Minister who was the competent authority and, therefore, when the matter was referred to the Chief Minister, the Chief Minister having passed the order there is no infirmity with the order of sanction in question. He also produced the relevant file before us to indicate as to how the file has been processed after the earlier order refusing to sanction prosecution.
6. We find from the file that was produced that there has been no application of mind when the subsequent order was passed in the year 1997. It further appears that between the order refusing to sanction and the order that was passed in 1997, the investigating agency had not collected any fresh materials requiring a fresh look at the earlier order. It is also apparent that the alleged excess amount said to have been paid on account of non-performance of the duty by the appellant is to the tune of Rs 2750 and, therefore, under the Rules of Business, the file pertaining to sanction would have been finally dealt with by the Law Minister and, in fact, he had done so. In this view of the matter, neither was there any necessity for the authorities concerned to place the file before the Chief Minister nor had the Chief Minister any occasion to reconsider the matter and pass fresh order sanctioning prosecution particularly when taking into account the loss sustained to the exchequer to the tune of Rs 2750. That apart, the person concerned has already retired in the year 1994 and it is unthinkable that for a loss of Rs 2750 the State would pursue the proceedings against such person. In this view of the matter, we set aside the impugned order of sanction dated 10-12-1997 passed by the Chief Minister for prosecuting the appellant."
22. In the State of Himachal Pradesh Vs. Nishant Sareen, AIR 2011 SC 404, the Court has held in paragraph no. 12 as follows:
"12............. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course."
23. On the basis of above referred cases it is settled legal position that when once on certain materials the Sanctioning Authority decides not to grant sanction, certainly on the same materials, the Sanctioning Authority cannot change its opinion.
24. Perusal of impugned order shows that therein only reference has been made about careful examination of material collected and produced before him and in the circumstances of the case, he is of the view that for the offences under Sections 342, 323, 304 I.P.C. and Section 3(2)(5) of SC/ST Act, the applicant be prosecuted before a competent Court and accordingly he has granted sanction for prosecution of the applicant for the offences punishable under the above referred Sections. But, it does not clarify that what material was collected and produced before the Sanctioning Authority and considered by him.
25. Perusal of record further reveals that on earlier two occasions the applicant was found entitled for protection under Section 60(1) of Act, 1972 and accordingly grant of sanction for prosecution of applicant was refused by letters dated 16.10.2001 and 02.04.2004 (Annexure Nos. 10 and 13), but, ultimately above orders were reversed without recording any finding that what new material was brought before the sanctioning authority by the Investigating Officer and whether it was sufficient for reversing his earlier orders for refusing the sanction, passed not only by his predecessor but also by him.
26. Section 60 of Act, 1972 reads as follows :
"60. Protection of action taken in good faith.- (1) No suit, prosecution or other legal proceedings shall lie against any officer or other employee of the Central Government or the State Government for anything which is in good faith done or intended to be done under this Act.
(2) No suit or other legal proceedings shall lie against the Central Government or the State Government or any of its officers or other employees for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act.
[(3) No suit or other legal proceedings shall lie against the Authority referred to in Chapter IVA [Chapter IVB] and its chairperson, members, member-secretary, officers and other employees for anything which is in good faith done or intended to be done under this Act]"
27. Though sanctioning authority may review its earlier order for grant of sanction or refusal of sanction, but as per settled law this power of review of his earlier orders is available to sanctioning authority only when some new material is brought before him in respect of grant of sanction. In absence of any new material, sanctioning authority has no power to review his earlier orders for grant or refusal of sanction.
28. By not mentioning the material considered, not referring to the earlier orders refusing grant of sanction for prosecution of the applicant and by not considering the matter from the angle that whether in the facts and circumstances of the matter, registration of Case No. 9 Nawabganj/97-98, under Sections 9, 27, 29, 39, 51 of Act, 1972, against the deceased Shiv Dayal, confession made by him and his subsequent release on furnishing personal bond etc. as claimed by the applicant, he is entitled to protection under Section 60 of the Act, 1972 or not appears a wrong and defective approach towards the matter.
29. It is also settled law that grant of sanction is not mere formality or routine exercise of power rather it is solemn and sacrosanct exercise of power vested in the sanctioning authority, because by grant of sanction for prosecution, umbrella of protection available to Government Servants is being lifted. Therefore, this power for grant of sanction or its refusal must be exercised without any fear, coercion or pressure from any corner so that its sanctity remains intact.
30. As stated earlier, it is not clear from the order that what new material was brought before the sanctioning authority, and whether it was sufficient for review of earlier orders for refusal of sanction. It may also be noticed here that various correspondence made by the State Government - respondent no. 1, in respect of sanction, as reflected from various letters are nothing but use of constant pressure on the sanctioning authority for grant of sanction, as is evident from the endorsement made in the letter dated 10.08.2004 (Annexure No. 15).
31. In the above mentioned endorsement, it is stated that sanctioning authority is being directed to grant sanction for prosecution. This endorsement of the Government is clearly indicative of the fact that sanctioning authority was directed to grant sanction and not to consider the matter of grant of sanction, which is nothing but an act of building pressure on the sanctioning authority and forcing him to grant sanction. The sanctioning authority, probably, could not face the above pressure and surrendered before the State Government and obeyed its mandate for grant of sanction and in the result sanctioning order dated 18.08.2004 (Annexure No.1) has been passed under pressure.
32. In the above facts and circumstances, the Government's correspondence referred above could not be termed as routine correspondence between the Government and Department, as has been submitted by the learned A.G.A.
33. In absence of particulars of new material brought before the sanctioning authority, it cannot be said that there was any occasion for O.P. No. 2 for changing his earlier opinion from refusal to grant sanction for prosecution of applicant. Thus, Office Order dated 18th August, 2004 (Annexure No. 1), granting sanction for prosecution of applicant under Sections 342, 323, 304 I.P.C. and Section 3(2)(5) of SC/ST Act, does not appear to be a just and proper order. It also appears that same has been passed under constant pressure and influence of the State Government.
34. In the result, the Question for consideration before this Court is answered in negative i.e. in favour of the applicant.
35. In the facts and circumstances of the case and in the light of well settled proposition of law as laid down by Hon'ble Apex Court in the cases of R.S. Nayak Vs. A.R. Antuley (Supra), Mansukhlal Vithaldas Chauhan Vs. State of Gujrat (Supra), Gopikant Choudhary V. State of Bihar and others (Supra) and State of Himachal Pradesh Vs. Nishant Sareen (Supra) the Office Order dated 18th August, 2004 (Annexure No. 1) granting sanction for prosecution of applicant under Sections 342, 323, 304 I.P.C. and Section 3(2)(5) of SC/ST Act, is liable to be quashed.
36. For the discussion made above, this application under Section 482 Cr.P.C. is allowed in terms of following directions :
(1) Office order dated 18th August, 2004 (Annexure No. 1), granting sanction for prosecution of applicant under Sections 342, 323, 304 I.P.C. and Section 3(2)(V) of SC/ST Act, is hereby quashed.
(2) The matter is sent back to opposite party no. 2 for deciding the issue of grant of sanction for prosecution of the applicant, afresh, in accordance with law, in the light of observations made in this order without being influenced in any manner by the orders/correspondence of opposite party no. 1, by means of a speaking and reasoned order, within two months' from the date of production of certified copy of this order before him.
(3) O.P. No. 2 is also directed that while passing the sanction order, he will give particulars of new material produced before him, i.e. after passing of order of refusal dated 27.04.2004 (Annexure No. 13), giving details of material considered by him.
(4) While passing the sanctioning order, O.P. No. 2 is also required to decide the issue whether in the facts and circumstances of the matter the applicant is entitled for protection under Section 60 of the Act, 1972 or not?
(37) Parties to bear their own costs.
(38) Needless to say that in case of refusal of sanction by O.P. No. 2, O.P. No. 1 will be at liberty to take recourse of remedy available to it, under the law.
Order Date :- 08.06.2015 A. Verma