Sh. Mohd. Ali Zafar vs State Of U.P. And 4 Ors
2023 Latest Caselaw 7247 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
1. Case :- APPLICATION U/S 482 No. - 13242 of 2019
 

 
Applicant :- Sh. Mohd. Ali Zafar
 
Opposite Party :- State Of U.P. And 4 Ors
 
Counsel for Applicant :- Mehul Khare,Pradeep Singh,Shri Umakant Uniyal (Sr. Advocate)
 
Counsel for Opposite Party :- G.A.,A.S.G.I.,Gyan Prakash,Satish Kumar Rai
 

 
And
 

 
2. Case :- APPLICATION U/S 482 No. - 30345 of 2021
 

 
Applicant :- Sushil Kumar
 
Opposite Party :- Union Of India And 2 Others
 
Counsel for Applicant :- Pradeep Singh,Sr. Advocate
 
Counsel for Opposite Party :- A.S.G.I.,Sanjay Kumar Yadav,Satish Kumar Rai,Sudarshan Singh
 

 
Hon'ble Dinesh Kumar Singh,J.

1. Heard Sri Ashok Mehta, learned Senior Advocate assisted by Sri Pradeep S. Sisodia, learned counsel for the petitioners, Sri Sudarshan Singh, learned counsel appearing on behalf of Union of India, Sri Sanjay Kumar Yadav, learned counsel for C.B.I. and Sri Satish Kumar Rai, learned counsel appearing on behalf of the Cantonment Board.

2. Present petitions under Section 482 Cr.P.C. have been instituted before this Court challenging the Charge-sheet No.1 of 2001 dated 07.02.2009 and summoning order dated 11.03.2019 passed by Special Judge (Anti-Corruption), C.B.I. Court No.3, Ghaziabad in Special Case No.2 of 2019 (C.B.I. vs Sukhjeevan Singh Chahal and Ors) under Sections 120B, 420, 468, 471 IPC and entire proceedings of Special Case No.2 of 2019 pending in the Court of Special Judge (Anti-Corruption), C.B.I.

3. Petitioner, Mohd Ali Zafar was posted as Veterinary Inspector and petitioner-Sushil Kumar was posted as Pharmacist/Compounder-cum-Store Keeper, Central Government Hospital, Meerut Cantt. The petitioner, Mohd Ali Zafar was also officiating on the post of Office Superintendent, Cantonment Board, Meerut at the relevant time.

4. On the basis of a source information, a joint surprise check was conducted on 12.05.2015 and 13.05.2015 by a team of C.B.I., Ghaziabad, Ministry of Defence, Director General (Vigilance), Defence Estates, New Delhi and Drug Inspector, Central Drugs Standard Control Organization (C.D.S.C.O.) in the Cantonment General Hospital, Cantt Board, Meerut.

5. C.B.I. in the year 2015 had carried out a inspection of the Cantonment General Hospital, Meerut Cantt and finding gross irregularities registered a Regular Case No.RC1202016A0003 on 16.03.2016 at C.B.I./A.C.B., Ghaziabad under Sections 13(2)/13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ''the PC Act') against one Dr Aradhana Pathak, then Resident Medical Officer, posted at Cantonment General Hospital, Meerut Cantt and others on the allegation that during years 2011-14 said Dr Aradhana Pathak entered into criminal conspiracy with the petitioners and one Gaurav Arora, Prop. M/s Arora Pharma, Meerut, U.P. and other unknown persons and in furtherance of the said criminal conspiracy, she dishonestly and fraudulently purchased medicines at exorbitant rates in violation of prescribed procedure and norms and falsified the accounts (medicine stock books) and fabricated the relevant record.

6. During the investigation, role of one Sukhjeevan Singh Chahal, the then Chief Executive Officer (C.E.O.) Cantonment Board, Meerut Cantt. (since retired), petitioner- Mohd. Ali Zafar, the then Officiating Office Superintendent, Office of C.E.O., Cantonment Board, Meerut Cantt. came into light.

7. The C.B.I. after investigating the offence and collecting evidence and material, prepared impugned the charge-sheet under Sections 120B, 409, 420, 468, 471, 477A IPC, 13(2)/13(1)(d) of the PC Act,1988 for causing wrongful loss to the tune of Rs.23,46,436/- to the Cantonment Board Meerut and corresponding wrongful gain to themselves.

8. After carrying out a detailed investigation, the C.B.I. submitted a report and subsequently vide letter dated 23.08.2018 sought sanction for the prosecution of Dr. Aradhana Pathak, R.M.O. Cantt General Hospital, petitioner-Mohd. Ali Zafar, officiating Office Superintendent of Cantt. Board (both supervisory posts) and petitioner-Sushil Kumar Compounder cum Store Keeper of Cantt. General Hospital (non-supervisory staff).

9. Cantonment Board vide C.B.R. No.169 dated 15.11.2018 resolved by majority of vote that no sanction for prosecution of charged officials be given to the C.B.I., and the Board further resolved that departmental proceedings under the provisions of the Cantonment Fund Servants Rules, 1937 and CCS Rules be initiated against the charged officials namely Dr. Aradhana Pathak and Mohd Ali Zafar, for which a committee was constituted, and it was conveyed to the higher authorities of the Cantonment Board as well as C.B.I./A.C.B. Ghaziabad. The C.B.I. thereafter submitted a charge-sheet against the accused persons on 17.03.2019.

10. Cantonment Board thereafter reviewed its earlier decision after considering the confidential letter dated 27.02.2019 of the Head of Branch C.B.I./A.C.B., Ghaziabad addressed to the D.D.G. (Vigilance), D.E., New Delhi, copy whereof endorsed to the President, Cantt. Board, Meerut and O.S.D. of C.V.C. New Delhi, Directorate of Defence Estate CC letter dated 03.04.2019 addressed to the President, Cantt Board of Cantt Board Meerut, passed Resolution No.139 dated 29.05.2019 granting sanction for prosecution of charged officials after detailed deliberation and discussion in the Board.

11. Charges levelled against the accused officials are of corruption attracting the relevant sections of the Indian Penal Code and provisions of PC Act,1988. Charges against the officials are of criminal conspiracy and mala fide intentions of the officials resulting into monetary loss to the Government of Indian and possible wrongful gain to the officials concerned with other accused persons.

12. Initially, this Court vide order dated 11.04.2019 dismissed the petition for prayers to quash the proceedings of Special Case No.2 of 2019 pending before Special Judge Anti Corruption/C.B.I., Court No.3, Ghaziabad. However, the Court granted three weeks' time to the petitioners to surrender before the trial court and for a period of three weeks, no coercive measure was to be taken against them.

Order dated 11.04.2019 would read as under:-

"Heard Sri Umakant Uniyal, Senior Advocate assisted by Sri Mehul Khare, learned counsel for the applicant, Sri Gyan Prakash, learned counsel for respondent no.2/CBI, Sri R.P.S. Chauhan, learned counsel for respondent no.3 and 4 and Sri Satish Kumar Rai, learned counsel for respondent no.5.

This application under Section 482 Cr.P.C. has been filed for quashing the chargesheet no.1 dated 07.03.2019 and the summoning order dated 11.03.2019 passed by Special Judge (Anti-Corruption), C.B.I., Court No.3, Ghaziabad in Special Case No. 2 of 2019 under sections 120B, 420, 468, 471 IPC as well as entire proceedings of the aforesaid case.

Learned counsel for the applicant has confined his argument to the extent that the order taking cognizance by which the petitioner has been summoned, learned trial court has straightaway issued NBW against the applicant and though he is ready to appear before the court concerned and further submits that some interim protection may be granted to the applicant for the said purpose.

Learned counsel for the respondents state that as the applicant is ready to appear before the trial court as has been argued by learned counsel for the applicant, hence, they have no objection to it.

After having considered the submissions made by learned counsel for the parties and perused the material on record, I do not find any good ground for quashing the proceedings of the aforesaid case based on the charge-sheet as well as summoning order dated 11.03.2049 passed by the court concerned.The prayer to that extent is hereby refused.

However, for a period of three weeks from today, non-bailable warrant issued against the applicant shall be kept in abeyance.

In case the applicant does not appear before the Court below within the aforesaid period, trial Court is free to take coercive action against him.

It is made clear that the applicant will not be granted any further time by this Court for surrendering before the Court below as directed above.

With the aforesaid observations, the application stands disposed of."

13. The petitioners thereafter challenged the said order passed by this Court before the Supreme Court by filing S.L.P. (Criminal) No.4029 of 2019 converted to Criminal Appeal No.1166 of 2019. The Supreme Court vide order dated 31.07.2019 finding that this Court did not explicate the contentions raised by the petitioners, set aside the order dated 11.04.2019 and remitted the matter back to this Court for consideration afresh on its own merit leaving open all the contentions available to the parties, which should be decided on its merit and in accordance with law.

14. The Supreme Court also recorded a finding that grievance of the petitioners that there was no sanction order against them, did not survive for consideration as C.B.I. had placed on record sanction order dated 29.05.2019 issued by Cantonment Board. Whether that sanction order was just and proper was a matter, could be deliberated before this Court. The Supreme Court observed that it would be open to this court to decline to examine the challenge to sanction order on merits as it would be a triable issue.

Judgment and order dated 31.07.2019 passed by Supreme Court in Criminal Appeal No.1166 of 2019 would read as under:-

"Leave granted.

This appeal takes exception to the judgment and order dated 11.04.2019 passed by the High Court of Judicature at Allahabad in Application under Section 482 No.13242 of 2019, whereby the application for quashing of chargesheet No.1 dated 07.03.2019 and the summoning order dated 11.03.2019 passed by the Special Judge (Anti-Corruption), C.B.I., Court No.3, Ghaziabad in Special Case No.2 of 2019 under Sections 120B, 420, 468, 471 IPC came to be rejected.

From the impugned order, it appears that the High Court essentially dealt with the apprehension of the appellant that he may be arrested pursuant to non-bailable warrant issued against him. The High Court did not explicate on the other contentions raised by the appellant. To wit, there was no sanction order in place qua the appellant at the relevant time when the application was filed; and that inquiry under Section 6 of the Delhi Special Police Act cannot proceed without a prior permission of the State Government.

As regards the grievance about no sanction order against the appellant that does not survive for consideration. For, the C.B.I. has now placed on record a sanction order dated 29.05.2019 issued against the appellant by the Board, which it is stated is the competent authority to issue such orders. Whether that sanction order is just and proper is a matter also to be deliberated and can be so done before the High Court. We make it clear that it will be open to the High Court to decline to examine the challenge to the sanction order on merits, if the same is a triable issue.

In view of the above, we set aside the impugned order and instead the quashing application under Section 482 of Criminal Procedure Code, filed by the appellant, is restored to its original number for consideration thereof afresh by the High Court on its own merits. All contentions available to the parties are left open, to be decided on its own merits and in accordance with law.

The appellant shall appear before the High Court on 06.08.2019 to enable the High Court to proceed in the matter expeditiously as per law.

The criminal appeal is disposed of in the above terms.

Pending applications, if any, stand disposed of."

15. Sri Ashok Mehta, learned Senior Advocate has submitted that Cantonment Board is an autonomous statutory body under the Cantonment Act, 2006. Employees of the Cantonment Board are neither the employees of the Central Government nor the State Government. Though they are public servants under Section 38 of the Cantonments Act, 2006. It has been submitted that C.B.I. could not have proceeded against the petitioners without there being consent of the State of U.P. under Section 6 of the Delhi Special Police Establishment Act, 1946 and, therefore, the whole investigation was void ab initio and was without jurisdiction and liable to be quashed.

16. It has been further submitted that general consent given by the State Government vide notification dated 15.06.1989 for investigation by the C.B.I. of offences under the provisions of PC Act,1988 would be of no relevance as the petitioners are neither the Central Government employees nor the State Government employees nor they are private individuals but they are employees of statutory body i.e. Cantonment Board under the provisions of Cantonments Act, 2006. Even there is no post facto consent of the State under Section 6 of the Delhi Special Police Establishment Act, 1946, and thus in absence of the consent for investigation by the C.B.I. in respect of the alleged offence committed by the petitioners, whole investigation was without jurisdiction and, therefore, charge-sheet is also invalid and is liable to be quashed.

17. In respect of petitioner-Mohd. Ali Zafar, Sri Ashok Mehta, learned Senior Advocate has submitted that no sanction for prosecution was given to the C.B.I. by Meerut Cantt Board vide its Resolution dated 15.11.2018. However, during the pendency of said S.L.P. (Criminal) No.4029 of 2019, on 29.05.2019 decision of refusal to grant sanction for prosecution was reviewed, and sanction order was issued. It has been submitted that there was no fresh material available for consideration to grant sanction for prosecution of the petitioner-Mohd Ali Zafar. In absence of fresh material, the Cantonment Board could not have reviewed its earlier decision refusing sanction for prosecution of the petitioner- Mohd. Ali Zafar. He, therefore, has submitted that the order of granting sanction for prosecution dated 29.05.2019 is bad in law and is liable to be quashed.

18. Sri S.K. Rai, learned counsel appearing for the Cantonment Board has submitted that charges levelled against the accused officials are of corruption and forging and manipulating the records, which has resulted wrongful loss to the Central Government and possible corresponding gain to the accused. Central Government has power to control and regulate the entire functioning of the Cantonment Board, and its employees as per the provisions of Cantonments Act and rules made thereunder. The Central Government has power to revise the penalty imposed by the Board or General Officer-in-Command and thus, ultimate power is vested with the Central Government in respect of functioning of the Board and its employees. It has been therefore, submitted that since Central Government has authority and power to supervise, control and regulate entire functioning of the Cantonment Board and its employees. There is no requirement of taking prior consent for investigation of the offences allegedly committed by the employees of the Cantonment Board by the C.B.I. from the State Government inasmuch as employees of the Cantonment Board are not under the control of the State Government directly or indirectly. The competent authority has already granted sanction for prosecution of the petitioners under Section 19 of the PC Act and, therefore, there is no ground for interference by this Court in the impugned proceedings, and the petitions being devoid of merit and substance are liable to be dismissed.

19. Sri Gyan Prakash Srivastava, learned Senior Advocate assisted by Sri Sanjay Kumar Yadav, learned counsel appearing for the C.B.I. has submitted that the Cantonment Board is an autonomous body under the Cantonments Act, 2006 functioning under the overall control of the Ministry of Defence, Government of India. Supervision and control over the working of the Cantonment Board is exercised by the Principal Director, Defence Estates, and by the Central Government through the Director General, Defence Estates, Delhi Cantt., Ministry of Defence at the highest level. It has been submitted that there is no requirement of any permission from the State Government under the Delhi Special Police Establishment Act for investigation of an offence against the employees of the Cantonment Board by the C.B.I. It is also submitted that the legislative competence over the cantonment are is of the Union Government as subject matter is provided in Entry 3 of the Union List of the VIIth Schedule of the Constitution of India.

20. It has been further submitted that valid general consent of the State Government of Uttar Pradesh under Section 5 of DSPE Act with respect to C.B.I. exists vide Notification dated 15th June, 1989 issued by Government of Uttar Pradesh. The C.B.I. is competent to lodge FIR and undertake the investigation of the case against employees of the Cantonment Board and no special permission/consent is required from the State Government. State Government itself issued a letter dated 03.05.2019 and clarified that employees of the Cantonment Board are not under the control and supervision of the State Government, and the Cantonment Board falls under the control of Central Government.

21. In respect of the submissions that earlier sanction for prosecution was refused by the Board on 15.11.2018 and on the very same material the sanction was granted vide resolution dated 29.05.2019, he has submitted that the Board has raised the issue of non-jurisdiction of the C.B.I. in the matter of Cantonment Board, Meerut and the Board therefore, passed a resolution dated 15.09.2018 itself and based on the views of the Members of the Board resolved by the majority of the vote, no sanction for the prosecution against petitioner-Mohd. M.A. Zafar was given to the C.B.I. and further resolved that departmental proceedings under the provisions of Cantonment Funds Service Rules, 1937 and CCS Rules be initiated against the charged employees in respect of allegations levelled against the accused but the accused failed to appear before the Board (Enquiry Member). Decision of the competent authority of refusing sanction and to take up a parallel investigation was not in line with law as in the opinion of the Board, CBI did not have jurisdiction over the employees of the Board. As mentioned above, when the entire material was again placed before the Board and the legal position got clarified, the Board reconsidered its view on the issue and accorded sanction for prosecution on 29.05.2019 against the petitioner.

22. It has also been submitted that trial court had taken cognizance under the Indian Penal Code, and not under the provisions of PC Act,1988 against petitioner- Mohd Ali Zafar and therefore, even otherwise the issue of sanction under section 19 of the PC Act before cognizance would not survive as sanction under Section 19 of the PC Act is in respect of the offences under the PC Act, 1988 and for any other penal offence. Employees of the Cantonment Board do not fall under the category of Government Servant who are removable by the Central/State Government, therefore, no prior sanction under Section 197 Cr.P.C. is required.

23. Facts are not much in dispute. The Cantonment Board is the local authority which performs municipal functions in the Cantonment area under the provisions of Cantonments Act, 2006. The State Government does not have any power, control and authority to supervise and regulate the functioning of the Cantonment Board or its employees or over the area under the jurisdiction and control of a Cantonment Board.

24. Section 38 of the Cantonment Act, 2006 provides "Every officer or employee, permanent or direct shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code and Section 2(c) of the PC Act." Service conditions of the employees of the Cantonment Board are governed under the Cantonment Board Employees Service Rules, 2021 which came into force with effect from 13.10.2021 after repealing the Cantonment Funds Service Rules, 1937.

25. The question which is primarily involved in these petitions is whether without consent of the State Government, the C.B.I. would be empowered to exercise powers and jurisdiction in respect of an area under the control of Cantonment Board.

26. Sections 5, 6 and 6A of the Delhi Special Police Establishment Act, 1946, which are relevant for decision on issue in question, are extracted hereunder:-

"5. Extension of powers and jurisdiction of special police establishment to other areas.--

(1)The Central Government may by order extend to any area (including Railway areas), 1[in 2[a State, not being a Union territory]] the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under section 3.

(2)When by an order under sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject of any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of a police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force. 3[(3) where any such order under sub-section (1) is made in relation to any area, then, without prejudice to the provisions of sub-section (2) any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station.]

6. Consent of State Government to exercise of powers and jurisdiction.--Nothing contained in section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in 2[a State, not being a Union territory or railway area], without the consent of the Government of that State.]

6A. Approval of Central Government to conduct inquiry or investigation.--

(1)The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to--

(a) the employees of the Central Government of the Level of Joint Secretary and above; and

(b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.

(2)Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to section 7 of the Prevention of Corruption Act, 1988 (49 of 1988).]"

27. From perusal of the aforesaid provisions, it is evident that unless the State Government gives its consent, the C.B.I. would not have the power for investigation of an offence in any area of the State Government. Similarly, under Section 6A of the Delhi Special Police Establishment Act, 1946 without the previous approval of the Central Government, the C.B.I. would not have jurisdiction to investigate the offence under the PC Act against the employees of the Central Government of the level of Joint Secretary and above and such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned and controlled by that Government.

28. There can be no dispute that an area falling under the Cantonment is not an area under the State Government and nor the petitioners are employees of the Central Government or appointed by the Central Government in the Cantonment Board. Thus, there is no applicability of Section 6 or 6A of the Delhi Special Police Establishment Act, 1946 in the present case. The petitioners are neither employees of the State Government nor Central Government nor the area of Cantonment Board, Meerut falls within the jurisdiction or control of the State Government.

29. The State Government has issued notification dated 15.6.1989 in pursuance of the provisions of Section 6 of the DPSE Act. The notification is extracted herein below :-

"Government of Uttar Pradesh

Home(Police) Section-1

No.3442/VIII-1-84/88

Lucknow, dated : June 15, 1989

Notification

In pursuance of the Provisions of Section 6 of the Delhi Special Police Establishment Act, 1946 ( 25 of 1946) the Governor of the State of Uttar Pradesh is pleased to accord consent to the extension of powers and jurisdiction of the members of the Delhi Special Police establishment in whole of the State of Uttar Pradesh, for investigation of offences punishable under the Prevention of Corruption Act, 1988 (49 of 1988), and attempts, abetments and conspiracies in relation to all or any of the offence or offences mentioned above and any other offence or offences committed in the course of the transaction and arising out of the same facts, subject however to the condition that no such investigation shall be taken up in cases relating to the public servants, under the control of the State Government except with the prior permission of the State Government.

BY ORDER IN THE NAME OF THE GOVERNOR.

Sd/-

(S.K. TRIPATHI)

HOME SECRETARY TO THE GOVT

OF UTTAR PRADESH"

30. The State Government vide Government Order dated 03.05.2019 has clarified that there is no requirement of any consent in respect of employees of the Cantonment Board as they are not the employees of the State Government and the area of Cantonment does not fall within the area of jurisdiction of the State Government.

31. In view thereof, in respect of the investigation of the offences committed by an employee of the Cantonment Board or an offence committed within the area of Cantonment Board, no consent of the State Government or the Central Government is mandatory for undertaking the investigation by the C.B.I. I, therefore, I find no substance in the submissions of Sri Ashok Mehta, learned Senior Advocate that without prior consent of the State Government in respect of the offence committed under the PC Act,1988 by an employee of the Cantonment Board, Meerut, investigation was without jurisdiction and charge-sheet filed was illegal being without jurisdiction.

32. So far as question of sanction accorded by cantonment Board vide order dated 29.05.2019 for prosecution of the petitioners is concerned, resolution dated 15.11.2018 had been resolved by majority of vote that no sanction for prosecution of Dr Aradhana Pathak and petitioner Mohd Ali Zafar to be given to the C.B.I. and departmental proceedings under the provisions of Cantonment Funds Service Rules, 1937 and CSS Rules be initiated against the charged employees for which a committee was constituted. However, after other material was placed before the Board, it has been resolved vide order dated 29.05.2019 to grant sanction for prosecution. The Supreme Court itself in its order dated 31.07.2019 has held that this Court may decline to examine the challenge to the sanction order on merit as it is a triable issue. The earlier resolution appears to have been granted in ignorance of correct legal position and when the correct legal position was brought to the notice of Board, it did grant sanction for prosecution. I find no illegality in sanction order for prosecution of the petitioner.

33. Valid sanction by the competent authority under Section 19 of the PC Act is sine qua non for taking cognizance of an offence against a public servant under PC Act, 1988. If the sanction is held to be invalid, entire proceedings undertaken by the trial court would be void. Section 19 of the PC Act forbids taking of cognizance by the court against a public servant for an offence except previous sanction of the competent authority. Competence of the Court tyring the accused depends upon the existence of a valid sanction. In case, the sanction is found to be invalid, the court can discharge the accused, relegating the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with law. If the trial court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non est in the eyes of law and shall not forbid a second trial for the same offence upon grant of a valid sanction for such prosecution. Sanction order may be challenged on two grounds namely; sanction granted by an authority not competent to accord sanction. Such an order would be without jurisdiction and nullity. However, if there is an error, omission or irregularity in sanction order, the same would not be fatal unless it has resulted in violation of justice.

34. For taking cognizance under Section 19 of the PC Act, incriminating material should be placed before sanctioning authority in order to apply its mind and take a decision for grant of sanction. Whether there is an application of mind would depend on the facts and circumstances of each case. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. Former question can be entertained at the threshold but the latter is a question which has to be entertained during trial. It is not in dispute that in the present case there is a sanction for prosecution of the petitioners which has been granted by the Board vide order dated 29.05.2019. Whether there was the material and evidence placed before the authority to grant sanction which was refused earlier by the order dated 15.11.2018 is a question which can be decided by the trial court after leading evidence by the prosecution and the defence. This court, therefore, does not find it appropriate to decide the said issue on affidavits in these proceedings.

35. In view thereof, these petitions being devoid of merit and substance are hereby dismissed.

Order Date:-14.03.2023

prateek