Sunil Agarwal And Ors. vs State Of U.P. Thru. Cbi/Acb ...
2022 Latest Caselaw 9337 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 10
 
Case :- APPLICATION U/S 482 No. - 107 of 2019
 
Applicant :- Sunil Agarwal And Ors.
 
Opposite Party :- State Of U.P. Thru. Cbi/Acb Lucknow
 
Counsel for Applicant :- Purnendu Chakravarty,Anuuj Taandon
 
Counsel for Opposite Party :- Bireshwar Nath
 

 
Hon'ble Dinesh Kumar Singh,J.

1. Heard Mr. Purnendu Chakravarty and Mr. Anuuj Taandon, learned counsels representing the applicants, as well as Mr. Anurag Kumar Singh, learned counsel, representing respondent-Central Bureau of Investigation (hereinafter referred to as 'CBI'), and gone through the entire record.

2. By way of this application under Section 482 CrPC, challenge is to the order dated 12.12.2018 passed by the learned Special Judge, CBI (West), Lucknow in Case No.199/2018, arising out of RC No.0062017A0012 on an application filed by the applicants under Section 239 CrPC, seeking discharge from the offence under Sections 120-B, 420, 465 and 468 IPC read with Sections 13(2) read with Sections 13(1)(d) of the Prevention of Corruption Act, 1988 lodged at Police Station CBI/ACB, Lucknow. The further challenge is to the cognizance order dated 25.01.2018, to the charge-sheet and to the consequential proceedings of Case No. 199/2018.

3. Mr. Purnendu Chakravarty, learned counsel for the applicants, states that applicant no. 2, P.K. Bose has died during COVID-19. The present application, so far as applicant no. 2, P.K. Bose is concerned, gets abated.

4. The CBI investigated the offence and prepared the charge-sheet, however, the competent authority i.e. General Manager of United India Insurance Company Limited did not grant sanction for prosecution of the applicants. The Deputy Inspector General of the CBI gave no objection to the Court for accepting closure/final report as there was no sanction from the competent authority. In view of the no objection from the competent authority, the Court accepted the closure/final report vide order dated 06.09.2013. The sanction was refused by the then General Manager, Mr. M.V.V. Chalam, vide order dated 27.12.2012 on the basis of which no objection was given by the Deputy Inspector General of the CBI for accepting the final/closure report against the applicants.

5. It appears that after the said General Manager, Mr. M.V.V. Chalam retired, Mr. Ish Kumar was appointed as General Manager. Mr. Ish Kumar reviewed the order of Mr. M.V.V. Chalam, refusing the sanction, and vide order dated 02.02.2017 granted sanction to prosecute against the applicants.

6. It is important to mention here that neither the CBI approached the General Manager nor it brought on record any additional material/evidence as no objection was given for accepting the closure report by the CBI itself and no further investigation was carried out. There was no additional material before Mr. Ish Kumar, the incumbent General Manager other than which was before Mr. M.V.V. Chalam, the then General Manager, who refused to grant of sanction for prosecution of the applicants. Mr. Ish Kumar, on his own, reviewed the earlier order of refusing the sanction for prosecution and granted sanction for prosecution. After Mr. Ish Kumar granted sanction, the learned CBI Court took cognizance on the charge-sheet and summoned the applicants vide order dated 25.01.2018, which was challenged before this Court in application under Section 482 CrPC bearing 6413 of 2018. On 11.10.2018, this Court disposed of the said application vide the following order:-

"1. Heard learned counsel for the petitioners as well as learned Additional Government Advocate and perused the record.

2. By means of this petition preferred under Section 482 Cr.P.C. the petitioners have prayed for quashing the impugned order dated 07.08.2018 passed by Special Judge, CBI (West), Lucknow in respect of the present applicants in Court Case No.199 of 2018, Crime No.RC:7(A)/2012 under Sections 120B, 420, 465 and 468 IPC and Section 13(2)/13(1)(d) Prevention of Corruption Act, Police Station CBI/ACB, Lucknow..

3. Learned counsel for the petitioners submits that he would like to file an application for discharge under the provisions of Cr.P.C., to which learned counsel for the State, does not have any object.

4. Accordingly, the petitioners are granted liberty to file an application in conformity with the provisions of Cr.P.C., within a period of ten days from today. After the said application is filed, learned trial Court is directed to dispose of the same within a period of fifty days thereafter. The petitioners are also granted liberty to appear through his counsel. Till expiry of two months, no coercive steps shall be taken against them. Learned counsel for the petitioners would also be at liberty to enclose all documents including previous refusal of sanction, acceptance of the final report and no objection from the DIG, CBI for acceptance of the closure report. Learned Trial Court to take into account all these material and take appropriate action in accordance with law within two months.

5. With the aforesaid observations / directions, the petition stands disposed of. "

7. Pursuant to the said liberty granted by this Court, the applicants moved an application for discharge under Section 239 CrPC, and the learned trial Court dismissed the discharge application vide order dated 12.12.2018 on the ground that it cannot be said that granting sanction by the competent authority was illegal or without jurisdiction. It was further said that since the valid sanction was available on the case file, the cognizance was taken on 25.01.2018. The order dated 07.08.2018 was passed, rejecting the application of the accused-applicants for dropping the proceedings. The said order was not challenged before any competent Court, therefore, the learned trial Court rejected the discharge application. The said order of rejection is the subject matter of challenge before this Court in the present application.

8. During pendency of this application, Application No.16370 of 2019 came to be filed by the applicants, seeking interim protection of no coercive measures against them till the disposal of this application. This Court, however, vide order dated 05.02.2019 disposed of the present application, granting liberty to the applicants that if they would surrender before the Court below within four weeks and apply for bail, their bail application should be considered in accordance with law, in view of the observations made in the case of Lal Kamlendra Pratap Singh Vs. State of U.P., reported in [2009 (3) ADJ 322 (SC)].

9. The applicants challenged the said order dated 05.02.2019 before the Supreme Court in SLP (Crl.) No.1792 of 2019, which was converted into Criminal Appeal No.367 of 2022, and the Supreme Court vide order dated 07.03.2022 allowed the same, setting-aside the order dated 05.02.2019 passed by this Court and, remanded the matter back to this Court to be decided in accordance with law, after considering the submissions on behalf of the applicants and the CBI. The Supreme Court also granted protection from arrest to the applicants till disposal of the present application. Thus, after remand from the Supreme Court, present application is listed for hearing.

10. On behalf of the applicants, it has been submitted that Mr. Ish Kumar, General Manager, could not have reviewed the earlier order passed by Mr. M.V.V. Chalam, refusing the sanction for prosecution of the applicants. There was no request on behalf of the CBI as the CBI did not carry out any further investigation and no additional material was placed before the new incumbent, General Manager to reconsider the earlier decision dated 27.12.2012, refusing the sanction; without there being any additional material and without there being any request of the CBI, the order was passed by the new incumbent General Manager, granting sanction, which is wholly illegal and without jurisdiction. The learned trial Court did not consider this vital aspect, while rejecting the application of the applicants for discharge.

It has been further submitted that if there was no proper sanction, the learned trial Court could not have proceeded for taking cognizance and summoning the applicants. It is submitted that proceedings before the learned trial Court after fresh sanction order are totally without jurisdiction and are liable to be quashed.

11. To buttress his submissions, learned counsel for the applicants has placed reliance upon the judgment rendered in 2010 AIR SCW 1186 (State of Punjab & Anr. V. Mohammed Iqbal Bhati) and judgment rendered reported in (2010) 14 SCC 527 (State of Himachal Pradesh V. Nishant Sareen) and submitted that every material/documents were considered by Mr. M.V.V. Chalam, the then General Manager, while refusing the sanction and, therefore, there was no occasion for the new incumbent, General Manager to reconsider the same material and pass the sanction order. The incumbent General Manager on the same material could not have passed the sanction order, which was earlier declined.

12. On behalf of the CBI, it has been further submitted that the applicants/accused are not prejudiced in any manner. The sanction order has been passed by the competent authority after reconsidering the material/documents on record. It is always open to an administrative authority to review its administrative order. Order granting or refusing sanction is an administrative order. It has been further submitted that despite the fact that the CBI did not make any request to reconsider the earlier order whereby the sanction was refused by the then General Manager and the CBI did not bring on record some additional material, the incumbent General Manager was well within his power to reconsider earlier decision of refusing the sanction for prosecution of the applicants.

14. I have considered the submissions advanced by Mr. Purnendu Chakravarty and Mr. Anuuj Taandon, on behalf of the applicants and Mr. Anurag Kumar Singh on behalf of the CBI.

15. It is well settled law that an executive authority, while exercising the quasi-judicial power, is not empowered to review its decision unless it is so provided under the Statute. In AIR 1987 SC 2186 (Dr. Smt. Kuntesh Gupta V. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and others) in para-11 has held as under:-

11. It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi-judicial authority. It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice-Chancellor. In the circumstances, it must be held that the Vice-Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 3, 1987. The said order of the Vice-Chancellor dated March 3, 1987 was a nullity."

16. In the present case, even if it is accepted that the General Manager would be exercising the executive power and order granting or refusing sanction is an administrative order, the authority would not be justified in reviewing its earlier order of refusing sanction unless additional material was placed before him by the CBI, seeking review of the earlier order. In the facts of this case, I am of the considered view that the incumbent General Manager was not competent to review the earlier order without there being any additional material placed before him. The Supreme Court in State of Punjab & Anr. V. Mohammed Iqbal Bhati's case (supra) in paras-21 and 22, in the similar circumstance, has held as under:-

21. The Vigilance Department did not contend that the Hon'ble Minister did not have any jurisdiction. It accepted the said order. It was not challenged. Only when a new Government came in, a request was made for reconsideration of the earlier order, as would be evident from the memo of the Secretary of the Department.

22. It was, therefore, not a case where fresh materials were placed before the sanctioning authority. No case, therefore, was made out that the sanctioning authority had failed to take into consideration a relevant fact or took into consideration an irrelevant fact. If the clarification sought for by the Hon'ble Minister had been supplied, as has been contended before us, the same should have formed a ground for reconsideration of the order. It is stated before us that the Government sent nine letters for obtaining the clarifications which were not replied to.

17. The Supreme Court has relied on its view in State of Himachal Pradesh V. Nishant Sareen's case (supra) in paras-13, 14 and 15.

13. 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.

"14. Insofar as the present case is concerned, it is not even the case of the appellant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent Order dated 15-3-2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible.

15. By way of footnote, we may observe that the investigating agency might have had legitimate grievance about the Order dated 27.11.2007 refusing to grant sanction, and if that were so and no fresh materials were necessary, it ought to have challenged the order of the sanctioning authority but that was not done. The power of the sanctioning authority being not of continuing character could have been exercised only once on the same materials.

18. Considering the aforesaid case laws as well as submissions advanced on behalf of the applicants, the order dated 02.02.2017 passed by the General Manager, Mr. Ish Kumar, granting sanction for prosecution of the applicants, is wholly illegal and unsustainable. Since the sanction order itself is illegal, further proceedings in the case are also non-est. The trial Court had committed an error of law in not considering the fact that the subsequent order, granting sanction for prosecution of the applicants was not a valid and legal order.

19. In view thereof, the present application is allowed. The impugned order is set-aside and the further proceedings taken by the learned trial Court, including the orders of cognizance and summon, are also set-aside.

Order Date :- 5.8.2022

MVS/-