Shyam Bihari Kanaujia S/O Munna ... vs State Of U.P. Thru Secy. ...
2017 Latest Caselaw 7813 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 
AFR
 

 

 
Case :- MISC. BENCH No. - 9757 of 2009
 

 
Petitioner :- Shyam Bihari Kanaujia S/O Munna Lal Kanaujia
 
Respondent :- State of U.P. Thru Secy. Agriculture & Ors.
 
Counsel for Petitioner :- Shishir Chandra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Rang Nath Pandey,J.

(Delivered by Hon'ble Devendra Kumar Arora, J.)

1. Heard Sri Shishir Chandra, learned counsel for the petitioner, Sri V.K. Sahi, learned Additional Advocate General assisted by Shri Ananad Kumar Singh, learned Additional Chief Standing Counsel and perused the material available on record.

2. In the instant writ petition, the petitioner inter-alia has sought for quashing of the order dated 23rd July, 2009 passed by respondent no.3 [Deputy Director of Agriculture (Land Conservation), District Sitapur]. The petitioner has also sought a restraint order restraining the respondents from compelling the petitioner to face trial in connection with First Information Report dated 4th February, 2006 lodged as case crime No.46 of 2006 under Sections 409/ 467/ 468/ 471/ 120-B of the Indian Penal Code at Police Station Kamlapur, District Sitapur.

3. Learned counsel for the petitioner has submitted that on the basis of a complaint made by a local Member of Legislative Assembly, namely, Shri Ram Rajvanshi, a First Information Report being case crime No.46/ 2006 was lodged at Police Station Kamlapur, District Sitapur under Section 409/ 467/ 468/ 471/ 120-B I.P.C. alleging misconduct and misappropriation of public money in execution of work for land conservation. The petitioner was also named in the said First Information Report as it is said that he was also associated with the said project. Apart from aforesaid F.I.R. a departmental inquiry was also conducted. However, in the inquiry, nothing adverse was found against the petitioner, except an alleged shortage of Rs.1246.31/- out of the total amount of Rs.1,78,399/-, which was directed to be recovered from the petitioner. Even though, the liability of Rs.1246.31/- attributed to the petitioner was also not found proved, however, the petitioner deposited the said amount under compulsion vide treasury challan dated 14th August, 2007, which was duly communicated to the disciplinary authority vide letter no.1546 dated 18th December, 2007.

4. However, the Prosecuting Agency i.e. CB CID, vide letter dated 11th May 2007 issued under the hands of Additional Superintendent of Police/ Sector Officer, CB CID, Lucknow requested for according sanction for prosecution of the accused named on the foot of the letter dated 11th May, 2007, in which the name of the petitioner stands at serial no.5. Pursuant to the aforesaid letter dated 11.5.2007, the Additional Director, Krishi, U.P. Lucknow vide letter dated 20th June, 2007, directed the Joint Director, Krishi, Lucknow Division, Lucknow to issue sanction for prosecution of Group-B officials named in the letter dated 10th May, 2007.

5. As the petitioner has not committed any misconduct and none of the offences alleged in the First Information Report dated 4th February, 2006 were found proved against the petitioner in the departmental inquiry, the petitioner filed a writ petition No.6097 (M/B) of 2007 before this Court challenging his implication in the said First Information Report.

6. However, the Deputy Director of Agriculture, Sitapur without application of mind and examining the record merely on the dictates/direction of higher authorities granted sanction that too without recording his satisfaction in this context, which is unjustified, unreasonable and per se bad in law.

7. It has been vehemently argued that there is no evidence on record which may show that the sanctioning authority has considered all the facts constituting the offence and further a bare reading of the impugned sanction order would reveal that there is no evidence to show whether the sanctioning authority has satisfied itself by considering all the relevant aspects of the matter including the representation of the petitioner or not. Though, it was incumbent upon the respondent no.3 to establish that sanction for prosecution is being accorded after satisfying itself that a case for sanction is made out and revealing the material and evidences placed before him/relied upon by him besides mentioning the grounds of satisfaction.

8. Learned counsel for the petitioner has argued that entire proceeding of granting sanction is sham and without application of mind and the respondent no.3 while issuing impugned order dated 23.7.2009 has been carried away by the magnitude of inlfuence exercised by his superior officer i.e. respondent no.2 who did not have any jurisdiction to direct respondent no.2 to mandatorily accord his sanction for prosecution of the petitioner.

9. To substantiate his assertion, the learned Counsel for the petitioner has placed reliance upon Mohd. Iqbal Ahmed v. State of Andhra Pradesh reported in (1979) 4 SCC 172, Superintendent of Police (C.B.I.) v. Deepak Chowdhary and others reported in (1995) 6 SCC 225, Mansukhlal Vithaldas Chauhan v. State of Gujarat reported in (1997)7 SCC 622,wherein it has been held that it is incumbent to establish that sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence.

10. Refuting the allegations of the petitioner, learned State Counsel vehemently argued that there is no illegality in the impugned order of sanction.

11. According to learned State Counsel a First Information Report was lodged under Sections 409/ 467/ 468/ 471 and 120-B IPC and the departmental enquiry was also instituted in which petitioner was found involved in committing irregularities and accordingly the punishment order for recovery of Rs.1246.31 was issued.

12. As regard the grant of sanction order, it has been submitted that the competent authority has granted sanction for prosecution of the petitioner strictly in accordance with law in case crime No.46/2006 registered under Sections 409/ 467/ 468/ 471/ 120-B I.P.C. at Police Station Kamlapur, District Sitapur.

13. In support of his arguments, learned Standing Counsel has also relied upon the judgment rendered in the case of Silas Minz v. Union of India and others (Writ Petition No.11196 of 2017, decided on 22.5.2017), wherein this court, while following the judgment rendered by Hon'ble Supreme Court of India in Dinesh Kumar v. Chairman, Airport Authority of India and another dated 22.11.2011 in Criminal Appeal Nos.2170-2171 of 2011 (Arising out of S.L.P. (CRL) Nos.10278-10279 of 2010), dismissed the writ petition in which the petitioner has sought for quashing the letter dated 30.5.2016 whereby sanction to prosecute the petitioner has been given in proceeding of case crime no.01/2016 pending in the court of Special Judge, CBI/ACB (West) Lucknow.

14. At the out set we would like to mention that by catena of decisions it has been settled that the grant of sanction is a sacrosanct exercise of power which is meant to safe-guard the public servants from unwarranted prosecution and as such the sanction for prosecution of a public servant is not an empty formality which must be taken independently by the competent authority on being subjectively satisfied on the basis of material available on record, of course, free from all influences and dictates otherwise the very purpose would be frustrated.

15. In the case of Superintendent of Police (C.B.I.) v. Deepak Chowdhary and others reported in (1995) 6 SCC 225, wherein it has been held that necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction.

16. In the case of Mansukhlal Vithaldas Chauhan v. State of Gujarat reported in (1997)7 SCC 622, it has been held that 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.

17. In the case of Dr Subramaniam Swamy Versus Manmohan Singh; (2012) 3 SCC 264 the Apex Court observed that competent authority is required to examine from the materials on record as to whether commission of an offence by a public servant is made out or not. The relevant paragraph reads as under:-

"We may also observe that grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter. What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant."

18. In P.L. Tatwal Vs. State of Madhya Pradesh AIR 2014 SC 236 the Apex Court while observing that the grant of sanction is only an administrative function held as under:

" It is intended to protect public servants against frivolous and vexatious litigation. It also ensures that a dishonest officer is brought before law and is tried in accordance with law. Thus, it is a serious exercise of power by the competent authority. It has to be apprised of all the relevant materials, and on such materials, the authority has to take a conscious decision as to whether the facts would reveal the commission of an offence under the relevant provisions. No doubt, an elaborate discussion in that regard in the order is not necessary. But decision making on relevant materials should be reflected in the order and if not, it should be capable of proof before the court."

19. In the case of Dinesh Kumar Vs. Chairman Airport Authority India and another (2012) SCC (Cri) 509 the Apex Court propounded that grant of prosecution sanction is not intended to be, nor is an empty formality but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecution and is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.

20. Recently, in the case of Manzoor Ali Khan versus Union of India (2015) 2 SCC 33 the Apex Court has observed that requirement of sanction has salutary object of protecting an innocent public servant against unwarranted and mala fide prosecution.

21. Thus in the series of judgments, the Apex Court has held that the very object of sanction to prosecute,is to protect the eligible public servant from malicious and vexatious prosecution. The intention is not to put a wall around public servants, who act mala fidely. The policy is not to set an official above the common law and if he commits a common offence, then, he cannot avail peculiar privilege.

22. Apart from above, it is also settled by various decisions that the competent authority did not have the jurisdiction to review its earlier order, therefore, the subsequent impugned sanction order granting sanction to prosecute would be not tenable in view of the observations of Hon'ble Apex Court in case State of Himanchal Pradesh versus Nishant Sareen 2011(1) R.C.R. (Criminal) 193 : 2011 AIR (SC) 404, wherein it was observed as under (para 12) :-

"12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorized to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. 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 bythe 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. From the principle enunciated herein above, it can easily be summed up that the authority competent to remove a public servant from service is clothed with the power to grant sanction for prosecution to such public servant by the Legislature with a definite intention as that authority being having administrative and disciplinary control on the person concerned is in a position to assess and weigh the accusation on basis of intimate knowledge of the work and conduct and also having day to day knowledge of overall administrative interest of the department.

24. The sanction for prosecution represent a deliberate decision and that requires objective satisfaction of the competent authority about a prima facie case against the person facing accusation. The authority competent while granting sanction is also required to record reasons for launching prosecution and is further required to specify its need in public interest. This important duty can be discharged only on independent application of mind to all the relevant facts on basis of which prosecution is proposed. If any extraneous pressure is mounted on the authority competent then there shall be all chances of frivolous and malicious prosecution. To maintain the spirit of the provisions for the grant of sanction to prosecute a public servant, the authority competent is required to act independently, objectively and with an intention for not saving a culprit from prosecution but at the same time with a view to afford a reasonable protection to a public servant from unnecessary harassment and undue hardship through vexatious prosecution.

25. In the instant case, the order of sanction passed by the Deputy Director, Sitapur for prosecution of the petitioner is to be examined in the light of the principles enunciated in the aforesaid cases.

26. Undisputedly, the prosecuting agency i.e. CBCID vide letter dated 10th May, 2007 requested the Director, Agriculture to accord sanction for prosecution of the accused persons in which name of the petitioner finds place at serial no.5. After receipt of the said letter, the Additional Director, Agriculture vide letter dated 20.6.2007 directed the Joint Director to issue sanction order for prosecution of Group B officials named in the aforesaid letter dated 10.5.2007 of the CBCID, which was enclosed with the said letter. It appears that some how the matter relating to sanction reached to the State Government, who vide its letter no. 3134/12-1/88-2547/07 dated 22.1.2008 communicated the Director, Agriculture for grant of sanction on their own level. Therefore, the Additional Director of Agriculture (Administration) vide Order dated 22nd February, 2008 asked the Deputy Director of Agriculture to accord his sanction for prosecution of the petitioner. Again vide order dated 13.10.2008 the Additional Director of Agriculture directed the Deputy Director, Agriculture, Sitapur, to mandatorily accord sanction for prosecution of the petitioner and send the same directly to the Superintendent of Police, CBCID, Lucknow. Therefore, the Deputy Director vide its letter dated 6th May,2008 granted permission for conducting inquiry against the petitioner. The Additional Director,Administration vide its letter dated 13/10/2008 directed the Deputy Director to issue order grating sanction for prosecution and not permission for inquiry. Thereafter, the Deputy Director vide its letter dated 28.5.2009 informed the Directorate of Agriculture that a sum of Rs. 1246.31/ has been recovered from the petitoner pursuant to the departmental proceeding and as such there is no justification for inflicting second punishment. The Addl. Director Administration again vide vide its letter dated 23.6.2009 directed the Deputy

Director of Agriculture, Sitapur to accord sanction and not to twist the matter. On 12th June, 2008, the Soil Conservation Officer, Sitapur informed the Deputy Director of Agriculture, Sitapur that for the same fault, it would be unjustified to impose two punishments and as such grant of sanction would be unjustified.

27. However, the Deputy Director of Agriculture, Sitapur in compliance of the letter dated 23.6.2009 of the Directorate accorded its sanction for prosecution vide impugned order ignoring the fact that on earlier occasion the sanction was refused.

28. Here, it is necessary to clarify that the Directorate of Agriculture, vide letter dated 26.8.2009, directed the Deputy Director of Agriculture, Sitapur to grant and communicated its sanction for prosecution of the petitioner in the appended proforma. On receipt of the said letter, vide letter dated 25.9.2009, the Deputy Director of Agriculture, requested the Additional Director (Administration), Lucknow to make available records and documents of the concerned employee, written and oral evidence and the entire case diary, so that necessary action may be taken for granting sanction for prosecution of the petitioner.

29. A perusal of the letter dated 25.9.2009 removed all doubts and establishes that the relevant records and documents in respect of the petitioner, written and oral evidence and the case diary were not in the possession of the Deputy Director till 25.9.2009 and the sanction for prosecution vide order dated 23.7.2009 was granted on the dictates contained in the letter dated 23.6.2009 of Additional Director (Administration) without applying its independent mind to the relevant and necessary record for its subjective satisfaction.

30. There is no document on record to show that the Deputy Director of Agriculture has recorded his satisfaction for according his sanction to prosecute the petitioner. Here, it is pertinent to mention that this Court vide order dated 31.5.2017 directed the Principal Secretary, Department of Agriculture, State Government to file his personal affidavit indicating the documents on the basis of which competent authority i.e. the Deputy Director of Agriculture, Sitapur had granted sanction. It appears that the Principal Secretary had asked Mr D.S.Rajpoot, the then Deputy Director Agriculture, Sitapur to explain the basis for granting prosecution sanction in the present case.

31. Surprisingly, the said officer vide letter dated 3.8.2017 informed the Principal Secretary that the prosecution sanction was granted on the basis of the investigation report of CBCID, departmental inquiry as well as letter No. dated 23.6.2009 of the Additional Director but he forgot that earlier he himself while being posted as Deputy Director, Sitapur had written the letter dated 25.9.2009 to the Addl. Director, Administration, Lucknow, to make available the relevant record for communicating the sanction on the proforma appended with the letter dated 26.8.2009 of the Directorate of Agriculture.

32. The aforesaid series of events goes on to establish that as a matter of fact there is no evidence on record to show that the sanctioning authority has considered all the facts constituting the offence though it was incumbent upon the respondent no.3 to establish that sanction for prosecution was granted after being subjectively satisfied that a case for sanction is made out and revealing the material and evidences placed before him/relied upon by him besides mentioning the grounds of satisfaction. In these circumstances, it can easily be inferred that Shri D. S. Rajpoot had written the letter dated 3.8.2017 to the Principal Secretary just to escape himself from the wrath of the superior officer. It may be added that it is a cardinal rule of law that reasons given in an order cannot be supplemented by way of affidavits and the impugned order or action is to be judged by the reasons stated while making the order and supplementary reasons in the shape of affidavits or subsequent letters/communications, are to be excluded.

33. In view of the aforesaid discussions and legal position, we are of the view that the impugned order dated 23.7.2009 is non est and per se illegal and as such cannot be sustained. Accordingly, the impugned order dated 23.7.2009 passed by the Deputy Director of Agriculture (Land Conservation) District Sitapur, contained in Annexure-1 to the writ petition, is hereby quashed. However, this order shall not preclude the authority competent to reconsider the matter afresh at his own level in accordance with law.

34. The writ petition is allowed in above terms. No order as to costs.

Order Date: 8.12.2017    [R.N.Pandey,J.] [ Dr. D.K.Arora,J.]
 
GK Sinha/MH