Khazan Singh vs State Of U.P. And 8 Others
2016 Latest Caselaw 2154 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 36 
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 8026 of 2016
 
Petitioner :- Khazan Singh
 
Respondent :- State Of U.P. And 8 Others
 
Counsel for Petitioner :- Mohit Singh
 
Counsel for Respondent :- G.A.
 
Hon'ble Ramesh Sinha,J.

Hon'ble Vinod Kumar Srivastava-III,J.

(Delivered by Hon'ble Ramesh Sinha,J.)

1 This writ petition has been been filed for quashing of the impugned order dated 16.10.2015 passed by the State Government, respondent no.1. A mandamus is also sought for restraining the respondent authorities not to arrest the petitioner or adopt any coercive measure against the petitioner in Case Crime No.336 of 2004, under Sections 419, 420, 467, 468, 471, 120B I.P.C. and Section 13(2) of Prevention of Corruption Act, Police Station Tariya Sujan, District Kushinagar.

2. Brief facts of the case are that the petitioner while posted as Deputy Commissioner (Commercial Tax) Assessment Range-III, Muzaffar Nagar issued Form-31 to the M/s Shalimar Craft and Tissues Private Ltd., Muzaffar Nagar, respondent No.9 (here-in-after referred to as 'the respondent no.9') on various dates, particulars of which are given here-under:

Financial Year

Dates

Number of Form-31

2003-04

31.03.2004

2004-05

13.05.2004

2004-05

27/28.07.2004

Total

3. The aforesaid Form-31's were issued on applications submitted by the Director of respondent No.9. The said forms were issued to the respondent no.9 Firm after following the procedure prescribed for issuance of Form-31's. The respondent no.9 reported loss of 155 form-31's to the petitioner's office on 15.9.2004 and information about the same was also forwarded to the police station for lodging of an FIR and a publication dated 13.9.2004 regarding loss of 155 form-31's.

4. On 22.9.2004, an FIR was lodged by the Assistant Commissioner (In-charge) Commercial Tax, Check Post, Tamkuhiraj, Kushinagar which was registered as Case Crime No.336 of 2004, under Sections 419, 420, 467, 468, 471 I.P.C., Police Station Tariya Sujan, District Kushinagar. In pursuance of the same, investigation was carried out by the police authorities and subsequently the investigation was transferred to Economic Offences Wings, Kanpur (here-in-after referred to as "EOW").

5. During the course of investigation, Section 120B I.P.C. and 13(2) of Prevention of Corruption Act were also added and petitioner was also made an accused in the present case.

6. The respondent no.4 applied for sanction of prosecution of the petitioner for the offence in question from the competent authority and the same was granted by it on 16.10.2015. Aggrieved by the said order dated 16.10.2015, the petitioner has approached this Court by means of filing the present writ petition for quashing of the same.

7. Supplementary affidavit filed today, is taken on record.

8. Heard Sri Ajay Bhanot, learned Senior Advocate, assisted by Sri Mohit Singh, learned counsel for the petitioner, Sri Imran Ullah, learned Additional Advocate General assisted by Sri R.K. Maurya learned A.G.A. for the State and perused the record.

9. It has been contended by learned counsel for the petitioner that the order granting sanction for prosecution of the petitioner by the competent authorities is bad in the eyes of law as it is a result of non-application of mind, arbitrary and illegal. He further submitted that before passing the order granting sanction for prosecution, no opportunity of of hearing was given to the petitioner, hence, the impugned order granting sanction for prosecution of the petitioner be set aside by this Court.

10. It has been further argued that the competent authority, respondent no.1, ignored the fact that departmental authorities of the petitioner were of the firm view that there was no negligence, conspiracy or culpability on the part of the petitioner. Further the departmental authorities had also intimated the concerned superior authorities that there was no loss of to the State Exchequer nor there was any culpability of the petitioner in any manner. The impugned order passed by respondent no.1 records the perverse finding with regard to the loss to the State Exchequer wherein respondent no.9 firm was duly assessed for the tax by the office of the petitioner and taxation proceedings were culminated in accordance with law and all taxes have been deposited by respondent no.9, i.e., M/s Shalimar Craft and Tissues Private Ltd., Muzaffar Nagar.

11. He further submitted that respondent no.1 has totally failed to consider that the entire action with regard to the fact that seizure was initiated on the petitioner's report as the petitioner had duly intimated to the superior authority with regard to loss of 155 Form-31's immediately upon receipt of the information by respondent no.9 firm. The departmental investigation conducted by the Commercial Tax Department unequivocally concluded that there was no criminal conspiracy or culpability of any official including the petitioner in any criminal act in the entire transaction, hence, the order granting sanction of the petitioner be set aside.

12. Learned counsel for the petitioner in support of his contention has placed reliance upon a judgment of the Apex Court reported in 1997 (7) SCC 622, Mansukhlal Vithaldas Chauhan Vs. State of Gujarat and has drawn the attention of this Court towards paragraph no.19 and 25 of the said judgment.

13. Per contra, learned AGA appearing on behalf of the State has vehemently refuted the arguments advanced by the learned and has submitted that the competent authority, i.e., respondent no.1, after considering the entire material and evidence on record has granted sanction for prosecution of the petitioner and passed the impugned order dated 16.10.2015. He further submitted that the impugned order passed by respondent no.1 shows that after due consideration of the material on record, sanction for prosecution of the petitioner has been granted. The petition lacks merit and is liable to be dismissed.

14. In support of his contention, learned AGA has placed reliance upon the judgment of this Court reported in 2015 (10) ADJ 254, Onkar Prasad Shukla Vs. State of U.P. & Others of this Court and has drawn attention of this Court towards paragraph nos.15, 16, 18 of the said judgment.

15. Considered the submissions advanced by the learned counsel for the parties and perused the record.

16. The contention of learned counsel for the petitioner is that the competent authority while granting sanction for prosecution of the petitioner did not apply its mind and has passed the impugned order without application of mind cannot be accepted as from perusal of the impugned order it is apparent that the competent authority after considering the the nature of allegation, evidence and all materials on record has granted sanction to prosecute the petitioner. Moreover,in the case of Onkar Prasad Shukla Vs. State of U.P. & Others (supra), this Court in paragraph no.15, 16 & 18 has held that :

"15. 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.

16. 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.

18. 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."

17. This Court has also recently examined the validity of the sanction order in Crl. Misc. Writ Petition No.7362 of 2016 (Pradeep Kumar Vs. State of U.P. and 2 Others) which was also dismissed on 6.4.2016 in which similar contention was raised by the counsel for the petitioner..

18. The case law which has been relied upon by the learned counsel for the petitioner of the Apex Court in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (supra), the proposition of law as enumerated therein is not disputed but in the instant case is distinguishable from the facts of the said case. In the present case it cannot be said that the competent authority passed the impugned order without application of mind.

18. Thus, in view of the foregoing discussions, we do not find any flaw in the impugned order dated 16.10.2015 passed by the competent authority granting sanction for prosecution of the petitioner, hence, the prayer for quashing the same is hereby refused. The petition lacks merit. It is, accordingly, dismissed.

19. In compliance of the Court's order dated 13.4.2016 and 26.4.2016, the personal affidavit of Principal Secretary (Home),Government of U.P. Lucknow shall be filed by Sri Imran Ullah, learned Additional Advocate before the Registrar General of this Court, who shall place the same before us in our Chambers as soon as the same is filed.

(Vinod Kumar Srivastava-III, J.)       (Ramesh Sinha,J.)
 

 
Dt.3.5.2016
 
NS