Allahabad High Court
Rais Iqbal vs State Of U.P. Thru. Prin. Secy. ... on 17 August, 2023
Bench: Sangeeta Chandra, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:54456-DB
Court No. - 10
Case :- CRIMINAL MISC. WRIT PETITION No. - 6387 of 2023
Petitioner :- Rais Iqbal
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lucknow And Others
Counsel for Petitioner :- Ram Ji Trivedi
Counsel for Respondent :- G.A.
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Narendra Kumar Johari,J.
1. Heard learned counsel for the petitioner and learned A.G.A. for the State-respondents.
2. This petition has been filed praying the following reliefs:-
(a) Issue a writ, order or direction in the nature of certiorari and quash the impugned Sanction Order dated 29.6.2022 (Annexure-1) with his writ petition.
(b) Issue a writ, order or direction in the nature of mandamus commanding and directing the opposite parties not to harass the petitioner in impugned F.I.R. No. 132 of 2019 dated 27.3.2019 under Section 13 (1) (e) read with Section 13 (2) of the Prevention of Corruption Act registered at Police Station- Cantt, District- Ayodhya contained in Annexure No. 1 to the writ petition.
3. It has been submitted by the learned counsel for the petitioner that the petitioner was posted as Executive Engineer in the Irrigation Department, Faizabad and he retired on 31.1.2010. F.I.R. was lodged on 27.3.2019 in case crime/ F.I.R. No. 132 of 2019 under Section 13 (1) (e) read with Section 13 (2) of the Prevention of Corruption Act with the allegation that the petitioner had amassed disproportionate assets to his known sources of income. The allegation was of unexplained Rs. 1,23,753/- which was later on corrected as Rs. 12,23,753/- only. The Investigating Officer had submitted a report to the Government without application of mind. The Government has issued a sanction order also without application of mind.
4. It has been submitted by the learned counsel for the petitioner that Hon'ble The Supreme Court in the case of Dinesh Kumar Vs. Chairman Airport Authority of India & Another (Criminal Appeal Nos. 2170-2171 of 2011) reported in AIR 2012 Supreme Court 858 had observed that it is open to the appellant to question the validity of the sanction order even before the High Court in writ jurisdiction, in case the same has been issued without application of mind.
5. Learned A.G.A. on the other hand placed reliance upon a judgment rendered by us on 14.7.2023 in CRIMINAL MISC. WRIT PETITION No. - 2372 of 2023 (Yash Kumar Verma Vs. State Of U.P. Thru. Prin. Secy. Home, Lko. And Others) which was also a case of disproportionate assets beyond known sources of income where the petitioner had challenged the sanction order issued by the Government and prayed for a mandamus to be issued to the respondents not to take coercive action against the petitioner in pursuance of the sanction order.
6. This Court had considered the judgment rendered by Hon'ble The Supreme Court in the case of Dinesh Kumar Vs. Chairman Airport Authority of India & Another (Supra) and also the judgment rendered in C.B.I. versus Ashok Kumar Agarwal reported in (2014) 14 SCC 295, and C.B.I. and Others Vs. Pramila Virendra Kumar Agarwal and Another reported in (2020) 17 SCC 664; , and Sukh Lal Yadav Vs. State of U.P. and Others reported in 2021 Law Suit (All.) 287. This Court had also considered the judgment rendered by Hon'ble The Supreme Court in the case of State of Punjab Vs. Central Bureau of Investigation reported in (2011) 9 SCC 182 and Paragraph-32.
7. There is a difference between absence of sanction which can be challenged at the initial stage even before cognizance is taken and invalidity of sanction on various grounds including non application of mind. The Hon'ble Supreme Court had observed in the aforesaid case that whether invalid sanction goes to the root of jurisdiction of the Court which would vitiate the trial and conviction can be a ground which can be raised before the Writ Court under Article 226 of the Constitution of India. However, in the absence of anything to show that any defect or irregularity was caused going to the root of the matter and other defect in grant of sanction for prosecution can only be seen by the trial court.
8. Having considered the law as settled by Hon'ble The Supreme Court and Co-ordinate Benches of this Court as aforesaid, the Court had rejected the challenge as not maintainable.
9. This Court finds that the petitioner's case as argued by the learned counsel for the petitioner is that the opposite party no. 6- the Investigating Officer has acted with malicious intent and wanted the petitioner to grease his palm and because the petitioner refused to give in to his extraneous demands, he moved an application before the Special Court of Prevention of Corruption Act, Court No. 6, Gorakhpur with allegation that he is not cooperating in the investigation and absconding. A non bailable warrant was also got issued on false allegation against the petitioner. Investigating Officer has not yet completed the enquiry and a misleading statement has been made by him to the State Government that he had complied with the direction of the court and had considered the representation made by the petitioner. The charge sheet has not yet been filed in the court.
10. It has been further submitted by the learned counsel for the petitioner that F.I.R. has been lodged on 27.3.2019 and the sanction order has only issued by the Government on 29.6.2022.
11. Sri Anurag Verma, learned A.G.A. placed reliance upon a judgment of Hon'ble Supreme Court rendered in the case of Vijay Raj Mohan Vs. C.B.I. (Anti Corruption Branch) reported in 2023 1 SCC 349 wherein the Hon'ble Supreme Court had observed that sanction for prosecution cannot be challenged only on the ground of delay, as delay might be the result of several factors, which have to be seen and evaluated at the time of trial. Delay of about two years in the issuance of sanction order alone would not warrant the quashment of the proceedings though as per provision of Section 19 (1), the process of grant of sanction must be completed within four months, which includes the extended period of one month, but the non-compliance with a mandatory period cannot and should not automatically lead to the quashing of criminal proceeding.
12. There were various issues that was considered by the Hon'ble Supreme Court in the case of Vijay Raj Mohan Vs. C.B.I. (Anti Corruption Branch)(Supra). The issue no.1 related to whether the order of sanction is illegal due to non application of mind and sanctioning authority acting as per dictation of the appointing authority, and issue no. 2 related to whether the criminal proceedings could be quashed for the delay in issuance of sanction order.
13. This Court is of the opinion that in case the petitioner is aggrieved by the non application of mind in the grant of sanction by the competent authority then the appropriate remedy for the petitioner would be to challenge such sanction for prosecution only before the trial court where the evidence can be led by the petitioner and the prosecuting agency, which can be weighed by the trial court to see whether there is actually any non application of mind in the grant of sanction.
14. The writ petition is, accordingly, dismissed as not maintainable.
Order Date :- 17.8.2023
Anuj Singh
