Chandan S/O Tulsiram Jibhakate vs State Of Mah., Thr. Pso Ps Sadar ...
2021 Latest Caselaw 3123 Bom

  Judgment                                  1                       Cri.W.P.804.2019.odt



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         NAGPUR BENCH, NAGPUR.

                   CRIMINAL WRIT PETITION NO. 804 OF 2019


          Chandan S/o. Tulsiram Jibhakate,
          Aged about 61 years, Occu. - retired
          from Government Service,
          R/o. 168, Ayurvedic Layout,
          Nagpur-440024.
                                                              .... PETITIONER

                                   // VERSUS //

 1)       State of Maharashtra,
          through Police Station Officer,
          Police Station, Sadar, Nagpur.

 2)       Anti Corruption Bureau, through its
          Deputy Superintendent of Police,
          having its Office at Civil Lines,
          Administrative Building, Nagpur.

 3)       Accountant General (Accounts and
          Entitlement) II, Maharashtra,
          Nagpur, Civil Lines, Nagpur.
                                               .... RESPONDENTS
  ______________________________________________________________
      Shri R. R. Vyas, counsel for the petitioner.
      Shri N. R. Patil, A.P.P. for the respondent Nos.1 and 2.
      Shri U. M. Aurangabadkar, A.S.G.I. for respondent No.3.
 ______________________________________________________________

                           CORAM : SUNIL B. SHUKRE AND
                                   AVINASH G. GHAROTE, JJ.

DATED : 17.02.2021.

ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)

1. Heard. Rule. Rule made returnable forthwith.

Judgment 2 Cri.W.P.804.2019.odt

2. Heard finally by consent of the learned counsel appearing

for the parties.

3. The petitioner was, during the period when the allegations

regarding commission of various criminal acts relating to

misappropriation of Government money and cheating the Government

by falsely making inflated estimates prepared for completion of various

irrigation projects, which acts have been broadly called as "irrigation

scam", working as Senior Divisional Account Officer and was entrusted

with the duty of clearing the bills submitted from time to time by the

Engineers and Officers involved in these irrigation projects. Several

public interests litigations were filed praying for issuance of various

directions to the authorities including the ones relating to registration

of offences and carrying out of the investigation. These P.I.Ls. were

registered as P.I.L. Nos.12 of 2016, 140 of 2016, 141 of 2016, 172 of

2016 and 173 of 2016. In these matters, various directions were issued

by the Bench and one of the directions related to completion of the

criminal investigation initiated against various officers suspected to be

involved in the projects when it was noticed by the Bench that various

crimes were already registered into which the investigation was going

on. So far as the petitioner is concerned, five crimes, in this irrigation

scam, came to be registered against him and they were crime Numbers

540 of 2017, 542 of 2017, 67 of 2018, 70 of 2018 and 251 of 2018.

First of these two crimes were registered for offences punishable under

Judgment 3 Cri.W.P.804.2019.odt

Sections 13(1), 13(1)(c)(d) and 13(2) of the Prevention of Corruption

Act and Section 420 read with Section 34 of the Indian Penal Code.

Crime Numbers 67 and 70 of 2018 were registered only under the

aforestated provisions of the Prevention of Corruption Act and so also

the crime No.251 of 2018.

4. As directed by the Division Bench, dealing with the public

interest litigation matters, investigation insofar as this petitioner is

concerned was completed and a stage arose for seeking sanction of the

competent authority i.e. removing authority for prosecution of the

petitioner in terms of Section 19 of the Prevention of Corruption Act.

The Investigating Officer forwarded to the authority copies of all the

papers of investigation and made a request for granting sanction for

prosecution of the petitioner for the aforestated offences. After

considering the material available on record, the competent authority

who was the Accountant General, declined to grant sanction. The

orders of refusal to grant sanction in Crime Nos. 540 of 2017, 542 of

2017 and 70 of 2018 came to be passed on 14.12.2018 while orders

declining such sanction in crime Nos. 67 of 2018 and 251 of 2018

came to be passed on 07.12.2018 and and 09.01.2019 respectively.

5. Later on, it was felt by the investigating officer that there

was a need for taking a fresh look at the orders refusing to grant

sanction. So, the investigating officer wrote another letter to the

competent authority for reconsideration of the matter and according of

Judgment 4 Cri.W.P.804.2019.odt

the sanction upon such fresh consideration. Once again, necessary

material was forwarded to the competent authority. The competent

authority, this time granted the sanction to prosecute the petitioner in

all the aforestated five crimes by orders passed on 17.01.2019. Being

aggrieved by the same, the petitioner is before this Court questioning

the legality of the orders freshly passed on 17.01.2019.

6. Shri Rajnish Vyas, learned counsel for the petitioner

submits that bare perusal of the fresh orders dated 17.01.2019 would

show that what the competent authority has actually done in the

present case is review of the earlier orders and not really something

like giving fresh consideration to the issue in the light of an additional

material which may have been discovered during the course of the

further investigation. He further submits that in fact, after the orders

declining sanction were passed, there was neither any further

investigation nor any discovery of fresh material requiring fresh

examination of the whole issue pertaining to grant of sanction or

otherwise by the competent authority. Such exercise, learned counsel

for the petitioner, further submits, is not permissible in law. He submits

that law in this regard is well settled and its states that such review

after consideration of the same material which was considered earlier

while refusing the sanction is not permissible. He relies upon law laid

down in this regard in the case of State of Himachal Pradesh Vs.

Nishant Sareen, (2010) 14 SCC 527.

Judgment 5 Cri.W.P.804.2019.odt

7. Shri N. R. Patil, learned A.P.P. appearing for the

respondent Nos.1 and 2 submits that the reply filed by these

respondents is clear and whatever was available as incriminating

material was forwarded to the competent authority for its fresh

consideration of the issue. He also submits that there is no quarrel

about the law settled by the Apex Court in the case of Nishant Sareen

(supra).

8. Shri Aurangabadkar, learned A.S.G.I. appearing for the

respondent No.3, submits that the orders impugned in this case which

are of the date of 17.01.2019 are speaking orders and as it was thought

by respondent No.3 that there were certain aspects which ought to

have been considered in depth but which were not considered in detail

earlier, the fresh consideration was made by him and which has led to

his reaching of a conclusion that grant of sanction was a necessity in

the present case and accordingly he has passed the impugned orders.

As regards the settled position of law, learned A.S.G.I. submits that

there can be no two opinions about the same.

9. We have carefully gone through the impugned orders and

also the replies respectively filed by respondent Nos.1 and 2 and

respondent No.3. We find that the competent authority i.e. the

Accountant General has not referred to any new or fresh material

which may have been discovered in the further investigation having

been carried out after passing of the earlier orders refusing grant of

Judgment 6 Cri.W.P.804.2019.odt

sanction on 07.12.2018, 14.12.2018 and 09.01.2019. The impugned

orders only state that if the allegations which have been referred to as

"charges" are to be stretched to a maximum level of consideration and

a conclusion arrived at that the "charged officer" (accused or

petitioner) should have recorded or communicated the deviations from

the procedure in respect of the "charges" (allegations), a doubt would

arise regarding the procedure adopted for scrutinizing the material

placed before him and that this matter being within the power and

jurisdiction of law i.e. Judiciary/ACB/Police, it was necessary that the

whole issue was appropriately examined and concluded by the law. It is

for these reasons and nothing more or nothing less that the Accountant

General, the competent authority, reviewed his earlier decision to not

grant any sanction and granted a fresh sanction for prosecution of the

petitioner in the aforestated crimes. These observations of the

competent authority having been based upon a peculiar line of

reasoning stated in the impugned orders, we find it appropriate to

reproduce the paragraph in which they appear, as below :-

"5. If the charges are to be stretched to a maximum level of consideration, and a conclusion arrived at that the charged officer should have recorded or communicated the deviations from the procedure in respect of the charges, the facts as to whether such scrutiny was mandated or whether it was feasible after scrutiny and approval by all authorities or whether he had the opportunity to so has not been established or brought out in the chargesheet.

On re-examination of the matter, I feel that proper examination/investigation of these matters is a subject within the purview of law (Judiciary/ACB/Police). Hence

Judgment 7 Cri.W.P.804.2019.odt

this matter is to be appropriately examined and concluded by the law. Hence I give my unconditional sanction for prosecution of Shri Chandan tulshiram Jibhkate in the charges levelled against him in CR No.251/2018 u/s 13(1)

(c)(d), 13(2) of Prevention of Corruption Act 1988."

10. So, it would be clear as to what really weighed with the

competent authority or the removing authority in reviewing his earlier

decisions and granting a fresh sanction to prosecute the petitioner in

these five crimes. What was actually considered by this authority was

the need for examining the issue of scrutiny of the documents and the

material placed before the petitioner as having been done properly or

otherwise by the law enforcing authorities like the Police or the ACB or

even the Judiciary and upon such reasoning that the competent

authority thought it fit to grant his sanction and therefore, he granted

sanction to prosecute the petitioner in the aforestated five crimes. The

competent authority passed five such orders separately for each of the

five crimes but they were passed on the same date of 17.01.2019 in an

identical manner. All these orders manifestly show absence of

consideration of any fresh material or evidence discovered after the

earlier orders were passed and as such, would be the orders adversely

hit by the law laid down by the Supreme Court in the case of Nishant

Sareen (supra). In this case, the Supreme Court has held that whenever

there is a refusal to grant sanction, it would not be open to

the competent authority to review such an order on same materials

because power of review conferred upon the authority is not unbridled

Judgment 8 Cri.W.P.804.2019.odt

and unrestricted and putting of some fetters on it's power of review is

essential to accord finality to such an exercise. Otherwise, the Apex

Court held, with the change in power equations, there may occur

change in such decisions and the issue may always remain in a state of

flux. The Supreme Court therefore, ruled that the earlier order as

regards sanction can be reviewed only when there is a discovery of

fresh material or evidence after the earlier order was passed. The

relevant observations of the Apex Court appearing in paragraph Nos.12

and 13, read as under :-

"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 a sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of 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 authorised 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.

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

Judgment 9 Cri.W.P.804.2019.odt

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 a course. "

In the present case, the impugned orders do not show any

consideration of fresh material and as a matter of fact it is

nobody's case that after the decline to accord sanction came over

there was further investigation made which resulted into discovery

of fresh material, which required consideration afresh by the

competent authority. In the reply filed respectively on behalf of

respondent Nos.1 and 2 and respondent No.3, there is no mention

whatsoever about further investigation or discovery of any new

material after the earlier orders were passed by the competent

authority. This only supports the conclusion drawn by us just now.

11. In the circumstances, we are of the view that the

impugned orders are illegal and cannot sustain the scrutiny of law,

and that they deserve to be quashed and set aside.

12. The Writ Petition is allowed. The impugned orders are

hereby quashed and set aside.

Rule is made absolute in these terms.

            (AVINASH G. GHAROTE, J.)                  (SUNIL B. SHUKRE J.)


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