Onkar Prasad Shukla vs State Of U.P. And Another
2015 Latest Caselaw 2181 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						         Reserved on 3.9.2015
 
Delivered on 7.9.2015
 

 
AFR
 
																
 
Court No. - 36
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 1418 of 1998
 

 
Petitioner :- Onkar Prasad Shukla
 
Respondent :- State Of U.P. And Another
 
Counsel for Petitioner :- Umesh Narian Sharma
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Pramod Kumar Srivastava,J.

The petitioner who at present has retired had filed this writ petition in the year 1998 assailing the order dated 19.3.1998 praying for its quashing whereby sanction was granted by the State Government to prosecute the petitioner under the provisions of Section 197 Cr.P.C. r/w Section 13(Ga) of the Prevention of Corruption Act, 1988.

A division bench of this court entertained the petition and passed the following interim order on 29.4.1998 :-

"Hon'ble S.K. Phaujdar,J.

Hon'ble J.C. Mishra,J.

Sanction to prosecute the present petitioner for an offence under the Prevention of Corruption Act is under challenge. The sanction was accorded on 19.3.98, as per Annexure V to the writ petition. The sanction order is not clear if the sanction was really given by the Principal Secretary (Forests) or the Governor of the State and if at all the matter was ever placed before the Governor. All these facts may be made clear along with other averments in the writ petition by the next date by the State through a counter affidavit.

Till further orders no action or further action may be taken in pursuance to the sanction order dated 19.3.98 against the present petitioner. It is indicated, however, that the instant stay order may not stand on the way of recording a sanction order according to law.

List on 13.7.98.

Order Date :- 29.4.98"

Two counter affidavits have been filed one on behalf of the respondent-State and the second is stay vacation application along with a counter affidavit also on behalf of the State. The petitioner has filed a rejoinder affidavit to the same that is on record.

Sri U.N. Sharma, learned senior counsel assisted by Sri Chandan Sharma for the petitioner has urged that the order is being challenged on the ground of non-consideration of relevant material and non-application to the factual aspects that has resulted in an unjust order which deserves to be quashed. It is for this reason that the court while passing the interim order on 29.4.1998 had left it open to the State Government to record a sanction order according to law. The point of challenge initially raised and mentioned in the interim order could not be successfully pressed by Sri Sharma as the sanction appears to be by a competent authority.

To substantiate his submissions on merits Sri Sharma has urged that an administrative inquiry on the same charges was made at the instance of a local MLA of Maharajganj district in which the petitioner was exonerated vide inquiry dated 14.8.1994.

Not satisfied with this, a frivolous inquiry was got instituted on the same set of facts and without following the procedure prescribed in the Government Order dated 12.9.1995 on which a report was submitted by the Vigilance Department on 24.9.1996 wherein the other complaints were not found to be proved except an allegation relating to possession of disproportionate assets particularly the construction of a house at Bailey Road, Allahabad.

Sri Sharma submits that according to the Government Order dated 12.9.1995 until the department makes a recommendation for an inquiry, the same could not have been instituted moreso when the departmental inquiry had ended in favour of the petitioner. This fact has neither been noticed nor considered while proceeding to grant sanction, hence the impugned order is vitiated.

He then submitted that there is a total non-consideration of the material that was placed on record, namely, the income tax returns certifying the income and the property of the petitioner and his wife. The availability of such material has not been denied in the counter affidavit and therefore Sri Sharma contends that non-consideration of such material has prejudiced the cause of the petitioner which reflects non-application of mind on the part of the sanctioning authority.

The third contention of Sri Shamra is that even on the own showing of the respondents, the calculation made in the report dated 24.9.1996 is arithmetically wrong inasmuch as the expenditure as against the income has been wrongly calculated. The income during the period for which the investigation was being made was shown as Rs. 7,13,356/- and the expenditure of the petitioner during the said period was totalled as Rs.8,08,630/-. On the said figures the calculation drawn in the report was that there is a clear indication of the expenses being much higher than the known sources of income, and even if the variation of 10% is given as per ordinary assessment, then too even the assets of the petitioner have been found to be in excess of the known sources of his income. Sri Sharma submits that the calculation is wrong inasmuch as the total of expenditure comes to approximately Rs.7,64,066/- only and not Rs.8,08,630. This arithmetical error in the totalling of expenses reflects a non-application of mind and a totally wrong approach. He submits that if the expenses are Rs.7,64,066/- then applying a 10% variation according to the norms of the respondents themselves the same would fall within the limits of the income as admitted to the respondents themselves. Sri Sharma, therefore, submits that without there being any possible defence of the petitioner and without considering any other material, no charge of disproportionate asset can be levelled on the aforesaid calculation. He, therefore, submits that this was a glaring non-application of mind and the State Government also while granting sanction has completely overlooked the same. The submission is that in the absence of any expenditure beyond the limits of known sources of income no charge can be framed against the petitioner nor can he be prosecuted.

Sri Sharma submits that the liberty of the petitioner would be put into peril as the impugned order cannot be said to have recorded even a prima facie satisfaction on the existing material as it ignores material evidence indicated above and proceeds on a wrong calculation on facts as well.

The next contention of Sri Sharma is that the law is settled that if any asset has been assessed by the Income Tax Department then the same cannot be brushed aside and the same has to be taken into consideration before arriving at any conclusion. He has invited the attention of the Court to two judgments on this issue, that of State of Tamilnadu Vs. M.M. Rajendran (1998) 9 SCC 268 and D.S.P. Chennai Vs. K. Inbasagaran, AIR 2006 SC 552. The contention is that the impugned action of granting sanction completely overlooks these legal aspects and which is established on the own showing of the respondents through their counter affidavits and they did not even refer to the income tax documents of the petitioner nor does the sanction order speaks about the same.

Sri Sharma has then invited the attention of the Court to the judgment in the case of State of Maharashtra through C.B.I. Vs. Mahesh G. Jain, 2013 (8) SCC Page 119 to contend that the grant of sanction in the present case has not been made in accordance with the law laid down therein and the petitioner has been subjected to a frivolous and vexatious litigation in the circumstances indicated above. The order of sanction is cryptic and no reasons are available to indicate as to what material had impelled the authorities to grant sanction. He, therefore, submits that the entire procedure is contrary to law and suffers from non-application of mind, hence the sanction order impugned herein dated 19.3.1998 be quashed.

Learned A.G.A., on the other hand, submits that the sanction order is proper and by the competent authority and even otherwise there is no infirmity much less a legal infirmity that may be taken into account for granting any relief to the petitioner. It has been pointed out that the competent authority has applied its mind to the entire material including the report which was submitted and such satisfaction has been recorded on a perusal of the entire material and recording a satisfaction for granting sanction.

Sri Sageer Ahmed, learned A.G.A. therefore submits that the impugned order does not suffer from any infirmity and is in consonance with law as well as the parameters as pointed out in the judgment of State of Maharastra (supra) which has been cited on behalf of the petitioner. He has invited the attention of the Court to paragraph 14 of the aforesaid judgment to urge that in view of the principles indicated therein there is no infirmity in the order.

We may at the very outset put on record that the judgments which have cited at the bar were all arising out of proceedings after the trial had ended up in a judgment and the matter had reached the Apex Court on the regular side in appeal. These were not decisions on a writ petition directly challenging the sanction order.

The petitioner if he is questioning the correctness of the sanction order, in our opinion, has a remedy of assailing the validity of such order on grounds that are available in law before the trial court itself. At this stage we find that there was some material other than the documents of the Income Tax Department to record a prima facie satisfaction, namely the report of the Vigilance Department. The existence of the report of an administrative inquiry cannot be a bar to the holding of a vigilance inquiry. Moreso when the Vigilance Department in its inquiry has taken into account the details of the assets of the petitioner and his wife which was not inquired into in this manner in the administrative inquiry.

Then comes the question as to whether this Court should interfere with the sanction order at this stage on the strength of the facts which have been alleged before us. We may again point out that the petitioner in his writ petition has not made any averments with regard to the miscalculation as has been orally argued by Sri Sharma on the basis of the report of the Vigilance Department. The said facts are nowhere stated in the writ petition even though there may be an incorrect calculation as suggested by Sri Sharma. The question is as to whether this issue of fact which has been orally raised, can be a ground to interfere with the order of sanction. We are of the opinion that even though a factual matter is not entirely prohibited to be pleaded in a writ petition yet such an issue can be raised by questioning the sanction order by the petitioner either by claiming discharge in the trial or if the trial proceeds then by clearly confronting the prosecution on this issue. An issue of fact involving perversity, as pointed out by Sri Sharma in this case, can be gone into and assessed on the material before the trial court itself. The adjudication therefore need not be assumed in a writ jurisdiction where a dispute on facts is ordinarily to be avoided. The petitioner, therefore, does not stand to any prejudice on the alleged miscalculation as noted above nor failure of justice is occasioned. His liberty is subject to law and can claim protection before the trial court itself.

Sri Sharma then contends about the liberty of the appellant if put in jeopardy on account of such an incorrect report resulting in his prosecution. We do not agree with this submission inasmuch as the process of law requires investigation and then its execution according to the Code of Criminal Procedure. The material which has been indicated in the report which forms the basis of the sanction order cannot be said to be an extraneous material or a material suffering from a serious short-fall that cannot be investigated and tried by the trial while considering the issue of proper and valid sanction.

Coming to the parameters of any such inquiry, paragraph 14 of the judgment in the case of State of Maharastra (supra) lays down the manner and the ingredients of recording a satisfaction for granting sanction. Even if any perversity is alleged, the same would be dependent on the facts on the basis whereof such allegations are made and which is always subject to any inquiry and trial before the concerned court. Interfering in a writ jurisdiction would therefore be interfering with the procedure of law which has been laid down through a valid piece of legislation. The writ jurisdiction being an extraordinary remedy, the same should not be invoked unless there are compelling reasons to do so.

In matters of criminal prosecution the broader principles of a legitimately initiated prosecution should be kept in mind as entailed in State of Bihar Vs. P.P. Sharma AIR 1991 SC 1260, State of M.P. Vs. Awadhesh Kumar Singh, 2004 (1) SCC Page 691 (paragraph 13) and Umesh Kumar Vs. State of A.P., 2013 (10) SCC Page 591. Additionally no personal malafides have been substantiated nor any private individual has been arrayed by name to entertain any presumption of malafides.

In the instant case the petitioner still has the remedy open and available to establish that the sanction order suffers from the invalidities as pointed out hereinabove and take up his defence which cannot be examined in the writ jurisdiction on affidavits moreso when the factual averment of miscalculation is missing.

Apart from this the decisions of the Apex Court in the recent past have discouraged the courts interfering with such orders at the interim stage of trial. The said judgments are as follows :-

1. State of Bihar and others Vs. Raj Mangal Ram, 2014(11) SCC 388;

2. Chandan Kumar Basu Vs. State of Bihar, 2014(13) SCC 70;

3. Rajib Ranjan & others Vs. R. Vijaykumar, 2015(88) ACC 332 (SC)

4. D.T. Virupakshappa Vs. C. Subash, AIR 2015 SC 2022

The Apex Court in the case of P.K. Pradhan Vs. State of Sikkim 2001 (6) SCC Page 704 has in a matter of sanction under section 197 Cr.P.C. also observed that it is not necessary that such a question should be decided as a preliminary issue and can be left open till final decision of the case.

The case of State of Bihar Vs. Raj Mangal Ram (supra) was a case in relation to interference in the proceeding midcourse on grounds of errors, omissions and irregularities in the sanctioning order and the Apex Court clearly ruled that in matters arising out of sanction under the Prevention of Corruption Act, 1988, which is also involved in the present case, unless there is any failure of justice occasioned it is not necessary for the High Court to interfere. In our opinion, the ratio of the said decision applies on the facts of the present case as well as discussed above.

A conspectus on the aforesaid facts and having considered the aforesaid submissions we do not find this to be a fit case to exercise our extraordinary jurisdiction and discretion as the authority competent to grant sanction appears to have recorded its satisfaction on the basis of material that was available before it and the decision cannot be said to be suffering from such perversity so as to invoke our authority under Article 226 of the Constitution of India.

We accordingly consigned the petition to records without prejudice to the rights of the petitioner to question the sanction order before the court concerned where the matter is to proceed in accordance with law as this would however be subject to any further orders being passed either by the State Government or by the Court of competent jurisdiction.

Order Date :- 7.9.2015

Anand Sri./-