Union Of Idnia Thru. The S.P., ... vs Pradeep Kumar And Another
2018 Latest Caselaw 1391 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Reserved
 

 
Case :- CRIMINAL REVISION No. - 171 of 2017
 
Revisionist :- Union Of Idnia Thru. The S.P., C.B.I.,Anti Corruption Branch
 
Opposite Party :- Pradeep Kumar And Another
 
Counsel for Revisionist :- Bireshwar Nath
 
Counsel for Opposite Party :- Kuldeep Srivastava,Ratnesh Chandra,Smt. Padma Verma
 

 
Hon'ble Mahendra Dayal,J.

I have heard Sri Bireshwar Nath, learned counsel for the revisionist and Sri Ratnesh Chandra learned counsel for the opposite parties and also perused the record.

The revisionist has challenged the order dated 05.11.2016 passed by the Special Judge, Anti-Corruption, C.B.I. (Central), Lucknow in C.B.I. Case No. RC 10(A)2014 whereby the applications filed by the opposite parties have been allowed and the opposite parties have been discharged from the offences under Sections 409, 420, 471 read with Section 120-B IPC and Section 13(2) read with Section 13(1) (D) P.C. Act.

It has been argued by Sri Bireshwar Nath learned counsel for the revisionist that the case relates to large scale misappropriation of fund as well as abuse of power under Mahatma Gandhi National Rural Employment Guarantee Scheme by the opposite parties and others. A Division Bench of this Court while deciding Writ Petition No.12802 (M/B) of 2011, passed a very detailed order directing the C.B.I. to investigate the abuse and misappropriation of fund as well as the abuse of power under Mahatma Gandhi National Rural Guarantee Scheme with regard to seven districts of State of U.P. in the year 2007 to 2010. It was further directed that the C.B.I. shall hold a preliminary enquiry with regard to other districts of State of U.P. relating to abuse, misuse or misappropriation of fund provided by the Government of India. The State Government was also directed to provide necessary assistance to the C.B.I. to proceed for investigation in pursuance of the judgment. The C.B.I. was directed to submit report to the Court every three months with regard to progress of  investigation.

It has been submitted by the learned counsel for the revisionist that in pursuance of the aforesaid order passed by this Court, detailed investigation was conducted by the C.B.I. and charge-sheet was submitted against the accused persons including the opposite parties. The Special Court C.B.I. also took cognizance upon the charge-sheet and summoned the opposite parties. The C.B.I. during the investigation found that the officers of Zila Panchayat, Kushinagar acted in conspiracy with private persons to commit the offence of cheating, forgery and used forged documents for causing wrongful gain to them and loss to the Government. It was also found during investigation that one unauthorized project of construction was taken up by Zila Panchayat, Kushinagar. The financial and administrative approval of projects were provided in unauthorized manner. It was further revealed during investigation that in violation of the rules, the work was started without technical sanction from the Government. It was clearly established that the accused acted in contravention to the Government rules and quotations were obtained in place of tender with a view to select supplier of their own choice. The C.B.I. on the basis of evidence collected during investigation filed charge-sheet against the opposite parties and others. The charge-sheet in respect of the opposite parties was filed in anticipation of sanction order by the competent authority. The C.B.I. made request to the State Government for according sanction for prosecution. However, the sanction was not accorded even after four months. In the meantime, the learned trial court took cognizance and taking advantage of the fact that the sanction was not granted within time, the opposite parties applied for discharge and their application was wrongly and illegally allowed by the court below.

It has been argued by the learned counsel for the revisionist that the court below failed to take notice of the fact that the case against the opposite parties was registered on an order passed by a Division Bench of this Court and the Hon'ble Supreme Court also declined to interfere in the matter and thus the order passed by this Court was upheld. The court also did not consider that a request for grant of prosecution sanction was pending with the competent authority. It also failed to consider that cognizance was already taken by the court and, therefore, there was no occasion for the trial court to pass the impugned order discharging the opposite parties when there was sufficient evidence against them to frame charge. It has also been argued that the requirement of sanction as provided under Section 19 of the PC Act was considered by the Hon'ble Supreme Court in the case of Manzoor Ali Khan Vs. Union of India and others reported in 2015 SCC, page 33 and it was held that the requirement of sanction under Section 19 of the PC Act was not unconstitutional. It was also observed by the Hon'ble Supreme Court that the Provision of Section 19 has been enacted to protect innocent public servant against unwarranted and mala fide prosecution. Mere possibility of abuse of the requirement cannot be a ground to declare the Provision of Section 19 to be unconstitutional. It has also been observed by the Hon'ble Supreme Court that the object of Section 19 of PC Act is not to protect those public servants against whom sufficient material indicating their involvement in corruption exists. However, the Hon'ble Supreme Court has also observed that the competent authority must take decision on the issue of sanction expeditiously say within a period of three months. 

It is next argued by the learned counsel for the revisionist that the court below while taking cognizance upon the charge-sheet examined the fact that there was no sanction as required under Section 19 of the PC Act but taking into account the fact that the supplementary request for grant of sanction was pending, the court took cognizance. This action on the part of the court was justified and the same could not have been reviewed by the same court while entertaining the application of the opposite parties. The impugned order passed by the court below amounts to review of the earlier order. In these circumstances, the order passed by the court below is erroneous and is liable to be set aside. A copy of the charge-sheet has also been placed by the learned counsel for the revisionist to show that sufficient material has been collected during investigation and the opposite parties could not be spared only because the sanction was not granted within time.

Sri Ratnesh Chandra learned counsel for the opposite parties has, on the other hand, submitted that Section 19 of the Prevention of Corruption Act prohibits prosecution of a public servant for the offence under the Prevention of Corruption Act unless there is valid sanction for prosecution. It clearly provides that no court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous  sanction of the Government. It is not disputed that there is no sanction for prosecution as required under Section 19 of the Act and the opposite parties have been charge-sheeted for the offence under the Prevention of Corruption Act.

So far as the other offences under the Indian Penal Code are concerned, the same also require sanction under Section 197 of the Code of Criminal Procedure. It has been submitted on behalf of the opposite parties that although there was large scale bungling and misappropriation of fund by various public servants under the Mahatma Gandhi National Rural Guarantee Scheme and the court taking cognizance of the matter, directed the C.B.I. to investigate the matter but it does not mean that every public servant working under the said scheme, was guilty. The competent authority examined the charge-sheet and the material and did not grant sanction of prosecution to prosecute the opposite parties. The reason for not  giving sanction is obvious that no sufficient material exists against them.

It has also been argued by the learned counsel for the opposite parties that the Hon'ble Supreme Court in the case of State of Goa Vs. Babu Thomas, reported in 2005 SCC Criminal, page 1995 has held that a sanction for prosecution goes to the root of the case. Sub-section (1) of Section 19 clearly prohibits that the Court shall not take cognizance of the offence, except  with the previous sanction of the competent authority. Thus, it cannot  be said that grant of sanction under Section 19 is a mere formality. This provision has been enacted to check the mala fide prosecution of public servant. Even if the court has taken cognizance upon the charge-sheet, it has power to examine the prosecution sanction at the stage of framing of the charge as has been done in the present case. The opposite parties had no occasion to challenge or oppose the cognizance order. They were summoned only after the cognizance was taken. The opposite parties immediately after their appearance, challenged their prosecution and moved application of their discharge. The learned trial court examined their application and found that there was no sanction for prosecution as required under Section 19 and thus rightly passed an order discharging the opposite parties because they could not have been prosecuted in the absence of sanction order. It is a settled law that sanction for prosecution is required to be obtained in respect of each accused. If the sanction has been granted in respect of some of the accused, it cannot be presumed that it is a sanction against all the charge-sheeted accused persons. The Prevention of Corruption Act is a special Act and Section 19 thereof has a overriding effect over the general provisions of the Code of Criminal Procedure. In these circumstances, the learned court below has not committed any illegality in passing the impugned order and discharging the opposite parties.

Having heard the learned counsel for the parties and having gone through the impugned order as well as the relevant case law on the subject, I find that in order to prosecute a public servant under the Prevention of Corruption Act, sanction of prosecution under Section 19 of the Act is necessary without which no public servant can be prosecuted. In the present case, although the investigation was conducted by the C.B.I. under the orders of this Court and charge-sheet was also submitted but it is also a fact that the competent authority did not grant any sanction to prosecute the opposite parties. The learned court below, therefore, rightly observed that in the absence of sanction the opposite parties could not be prosecuted and charge cannot be framed against them. The court, therefore, rightly discharged the opposite parties.

For the aforesaid reasons, the order passed by the court below is justified and I find no reason or ground to interfere with the impugned order.

The revision being devoid of merit, is dismissed.

July 6, 2018

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