Shiv Narayan Jaiswal vs State Of Chhattisgarh And Ors
2022 Latest Caselaw 385 Chatt

                                        1


                                                                        NAFR
                HIGH COURT OF CHHATTISGARH AT BILASPUR

                       WRIT PETITION NO. 6095 OF 2005

         Shiv Narayan Jaiswal, aged about 54 years, S/o Late Shri
     Sadasukh Jaiswal, Assistant District Excise Officer, Durg (CG)
                                                                ... Petitioner
                                     versus
1.         State of Chhattisgarh, through Principal Secretary, Excise
     Department, Govt. of Chhattisgarh, Mantralaya, D.K.S. Bhawan, G.E.
     Road, Raipur (CG)
2.         Excise Commissioner, Chhattisgarh and Secretary, Excise, Govt. of
     Chhattisgarh, Raipur (CG)
3.         Additional Secretary, Law and Justice, Government of Chhattisgarh,
     Mantralaya, D.K.S. Bhawan, G.E. Road, Raipur (CG).
4.         Bureau of Economic Offence, State of Chhattisgarh, through
     Inspector General of Police, Shankar Nagar Chowk, Telibandha Road,
     Raipur (CG)
5.         Principal Secretary, Commercial Taxes Department, Government of
     Chhattisgarh, Mantralaya, D.K.S. Bhawan, G.E. Road, Raipur (CG)
                                                            ... Respondents

WRIT PETITION NO. 2517 OF 2006

 Shiv Narayan Jaiswal, aged about 54 years, S/o Late Shri Sadasukh Jaiswal, Assistant District Excise Officer, Durg (CG) ... Petitioner versus

1. State of Chhattisgarh, through Principal Secretary, Excise Department, Govt. of Chhattisgarh, Mantralaya, D.K.S. Bhawan, G.E. Road, Raipur (CG)

2. Excise Commissioner, Chhattisgarh and Secretary, Excise, Govt. of Chhattisgarh, Raipur (CG)

3. Additional Secretary, Law and Justice, Government of Chhattisgarh, Mantralaya, D.K.S. Bhawan, Raipur (CG).

4. Bureau of Economic Offences, State of Chhattisgarh, through Inspector General of Police, Shankar Nagar Chowk, Telibandha Road, Raipur (CG)

5. Principal Secretary, Commercial Taxes Department, Government of Chhattisgarh, Mantralaya, D.K.S. Bhawan, G.E. Road, Raipur (CG)

6. Joint Secretary, Commercial (Excise) Department, Govt. of Chhattisgarh, Raipur (C.G.) ... Respondents

For Petitioner : Mr. V.G. Tamaskar, Advocate.

      For Respondents           :      Mr. Jitendra Pali, Dy. A.G.

                   Hon'ble Shri Justice P. Sam Koshy
                                C A V Order

                     [Reserved on :        09.09.2021]

                  [Pronounced on :        .01.2022]

1. These are two Writ Petitions of the same Petitioner aggrieved of the

same cause of action on the part of the Respondents and since the issue

involved is common, this Court proceeds to decide the present two

Petitions by this common Order.

2. Writ Petition No.6095/2005 is a Petition where the Petitioner has

challenged the Order dated 10.11.2005 whereby under the signature of

Respondent No.3, the Additional Secretary, Law and Legislative Affairs

Department, Government of Chhattisgarh, the Respondents have

accorded sanction for prosecution of the Petitioner for the offences

punishable under Section 13(1)(b), 13(1)(d)(iii), 13(1)(e) and 13(2) of the

Prevention of Corruption Act, 1988 (in short, "the P.C. Act").

3. The Writ Petition WPC No. 6095/2005 was filed as early as on

1.12.2005. However, in the meantime, since there was no interim prior to

6.9.2006, the Respondents proceeded with the sanction accorded and

finally a charge-sheet was filed in the Court of Special Judge designated

to hear the matters of Prevention of Corruption Act at Durg. This filing of

the charge-sheet was also challenged by the Petitioner by way of a

separate Writ Petition i.e. W.P. No.2517/2006. The said Writ Petition was

filed on 1.5.2006. Notices were issued to the Respondents.

4. Subsequently, vide Order dated 6.9.2006, an interim order was

passed by this Court in both the Writ Petitions in favour of the Petitioner to

the extent of staying the sanction accorded on 10.11.2005.

5. The case in brief is that the Petitioner was an Officer under the

Excise Department of the State, working on the post of Assistant District

Excise Officer. That, a raid was conducted on 16.5.1997 at the residential

houses owned by Petitioner and his wife. The raid was conducted by the

State Economic Offences Investigating Bureau and also by the Income

Tax Department.

An FIR was lodged against Petitioner on 16.5.1997. According to

the Petitioner, though the Department of Commercial Tax i.e., the

Department under whom the Petitioner was working, had refused to grant

sanction for prosecution and the refusal also had the approval of the State

Finance Minister. However, in spite of this the Respondent No.3 vide

Order dated 10.11.2015 granted sanction under Section 19(1)(b) of the

P.C. Act for his prosecution under Sections 13(1)(b), 13(1)(d)(iii), 13(1)(e)

and 13(2) of the P.C. Act.

6. The primary contention of learned Counsel for Petitioner while

challenging the impugned Order is that the same has been issued by an

incompetent Authority. According to him, the Order ought to have been

issued by the Governor. That, since it has not been issued by the

Governor, the same cannot be said to be legally issued sanction order or

a valid sanction and therefore it is ab-initio void.

7. The challenge also is on the ground of delay in initiating the

proceedings.

8. Learned Counsel for Petitioner has relied upon the following

judgments in support of his contentions:

1. 2004 (Cr.L.J.) 2011.

2. 2006 (13) SCC 305.

3. 2007 Cr.L.J. 52.

4. 2008 Cr.L.J. 808.

5. 2010 Cr.L.J. 1436

9. Per contra, learned Deputy Advocate General, appearing for

Respondents, opposing the Petition submits that in-fact the sanction order

has been issued by the competent Authority. According to learned Deputy

Advocate General, the sanction order has been issued keeping in view the

"Rules of Business" framed for the State of Chhattisgarh. According to

him, Part-V of the aforesaid "Rules of Business" provides for

Supplementary Instructions for the convenient transaction of the business

of the Government. In the said Part-V of the Rules of Business, the

Additional Secretaries are also authorised to issue orders for and on

behalf of the Secretary or where orders have to be issued by the

Secretaries.

10. Having heard the contentions put forth on either side, some of the

additional factual matrix of the case are that the Petitioner was an

Assistant District Excise Officer. In the year 1996-97, a raid was

conducted at his residential premises and other locations and in the

process Crime No.8/1997 for the offences under Sections 13(1)(e) and

13(2) of the P.C. Act was registered against him. It was alleged that he

accumulated wealth disproportionate to his known source of income.

Though the Parent Department has initially refused to grant sanction,

however, the Law Department later on has vide the impugned Order

granted the sanction.

11. The main issue raised and contended by Petitioner is the

competency of the Authority who has granted the sanction. According to

learned Counsel for Petitioner, the Authority granting sanction is not the

Appointing Authority; it is not by the Governor nor by the Secretary of the

Department.

12. The other ground raised by the Petitioner in challenging the

sanction is the belated stage at which the sanction was accorded.

13. Now the first contention this Court ventures to decide is, whether

the Authority who has signed the impugned Order is competent or not.

14. Sanction is required under Section 19 of the P.C. Act. For ready

reference, the relevant portion of Section 19 is reproduced herein under:-

"19(1)(b). In the case of a person [who is employed, or as the case may be, was at the time of commission of the alleged offence employed] in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

*** *** *** (19)(3)(b). No court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;"

15. In the instant case, the impugned Order has been issued by the

State Government. The Order has been issued in the name of and by an

order of his Excellency, the Governor of the State, though it may have

been signed by the Additional Secretary. If we look into the document, it

clearly reveals that the same has travelled to the Law Department with the

dissent of the parent Department. The Law Department thereafter again

scrutinised the entire document and gave its recommendation to the

Government and it was only thereafter that the impugned Order was

passed.

16. As regards the procedure for grant of sanction in the State of

Chhattisgarh is concerned, like any other State the State of Chhattisgarh

also has its own "Rules of Business" framed in exercise of the powers

conferred under Article 166 of the Constitution of India. Rule 13 of the said

Rules envisages that these Rules, to such extent as may be necessary,

be supplemented by instructions to be issued from time to time. Part-V of

the said Rules of Business is some of the Supplementary Instruction

issued under Rule 13 of the Rules of Business. That, under Part- V,

Instruction No.2 and its explanation, specifically provides that under this

Instruction, "Secretary" includes other Officers including the Additional

Secretary.

17. The General Administration Department, Government of

Chhattisgarh has vide its Order dated 26.5.2003 issued instructions as to

how and who shall consider granting of sanction for prosecution under the

P.C. Act. For ready reference, the contents of this document dated

26.5.2003 are reproduced herein under :-

NRrhlx<+ 'kklu lkekU; iz'kklu foHkkx ea=ky;] Mh-ds-,l- Hkou dzekad ,Q1&[email protected]@[email protected] jk;iqj] fnukad 26] ebZ] 2003 izfr] lfpo] NRrhlx<+ 'kklu] fof/k ,oa fo/kk;h dk;Z foHkkx] ea=ky;] jk;iqj fo'k;%& 'kkldh; lsodksa ds ekeys esa n.M izfdz;k lafgrk rFkk Hkz'Vkpkj fuokj.k vf/kfu;e ds varxZr vfHk;kstu dh Lohd`fr iznku fd, tkus ckor~A lanHkZ%& bl foHkkx ds vkns'k dzekad ,Q 1&[email protected]@[email protected],d fn0 26&5&2003-

bl foHkkx ds lanfHkZr vkns'k }kjk iwoZorhZ e/;izns'k 'kklu] lkekU; iz'kklu foHkkx ds vkns'k dzekad ,Q-,-3&[email protected]@,Q fnukad (1) 5-8-2000 dks la'kksf/kr djrs gq, bl vk'k; ds vkns'k izlkfjr fd, x, gSa fd fof/k ,oa fo/kk;h dk;Z foHkkx ds Hkkjlk/kd izeq[k [email protected] fuEufyf[kr Js.kh;ksa ds 'kkldh; lsodksa ds ekeyksa dks NksM+dj 'ks'k 'kkldh; lsodksa ds vfHk;ksstu Lohd`fr ds ekeyksa dk fuiVkjk djsaxsaA

(d) Hkkjrh; iz'kklfud lsok] Hkkjrh; iqfyl lsok rFkk Hkkjrh; ou lsok ds lnL;ksa ls lacaf/kr vfHk;kstu Lohd`fr ds ekeys( ([k) jkT; lsok ds ,sls vf/kdkjh tk jkT; 'kklu ds lfpo ds osrueku ;k blls mPprj osrueku esa dk;Zjr gks]a ls lacaf/kr vfHk;kstu Lohd`fr ds ekeys(

(x) vfHk;kstu Lohd`fr ds ,ssls ekeys ftuesa iz'kkldh; foHkkx }kjk vfHk;kstu Lohd`fr fn, tkus ij vlgefr O;Dr dh xbZ gSa ijarq fof/k foHkkx dk er vfHk;kstu Lohd`fr iznku fd, tkus ds i{k esa gSA

[email protected] dk;Z fu;eksa ds Hkkx pkj ds funZs'k (,d) (¥) rFkk (;;) ds ifjizs{; esa eq[;

ea=hth us ;g Hkh funZs'k fn, gSa fd mij fyf[kr rhuksa izdkj ds vfHk;kstu dh eatwjh ls lacaf/kr ekeys leUo; esa izLrqr fd, tk,axs rFkk bu ekeyksa esa vfHk;kstu dh Lohd`fr iznku djus dh izfdz;k fuEukuqlkj jgsaxh%&

(d) vf[ky Hkkjrh; lsokvksa ds lnL;ksa ds fo:) izdj.k % vf[ky Hkkjrh; lsokvksa ds lnL;ksa ds fo:) vfHk;kstu dh Lohd`fr ds izdj.k vuqla/kkudrkZ ,tsalh (investigating agency) }kjk leLr vfHkys[kksa lfgr fof/k foHkkx dks Hksts tk,axsaA fof/k foHkkx] izkIr izLrko ij loZizFke lacaf/kr vf/kdkjh ds iz'kkldh; foHkkx (;FkkfLFkfr lkekU; iz'kklu foHkkx] x`g foHkkx vFkok ou foHkkx ) dk er izkIr djsxkA iz'kkldh; foHkkx vf/kdre ,d ekg esa viuk vfHker fof/k foHkkx dks HkstsxkA rRi'pkr~ fof/k foHkkx] vuqla/kkudrkZ ,tsalh ls izkIr izLrko ,oa iz'kkldh; foHkkx }kjk fn, x, vfHker dk ijh{k.k dj leUo; esa vkns'k izkIr djsxk] vkSj(

(i) tgka dsoy /kkjk&197] n.M izfdz;k lafgrk] ds rgr vfHk;kstu Lohd`fr visf{kr gks] ogka rRlaca/kh vkSipkfjd vkns'k tkjh djsxk] ;k fQj] ;FkkfLFkfr] izLrko vLohd`fr djus dh lwpuk rQrh'kdrkZ ,tsalh dks Hkstsxk(

(ii) tgka /kkjk&197] n.M izfdz;k lafgrk] rFkk /kkjk&19] Hkz'Vkpkj fuokj.k vf/kfu;e] 1988] nksuksa ds rgr vfHk;kstu Lohd`fr visf{kr gks] ogka izFke izLrko ds ckjs esa mij in (i) vuqlkj dk;Zokgh djsxk vkSj f}rh; izLrko ds ckjs esa jkT; 'kklu dk er fu/kkZfjr dj izdj.k dsUnz ljdkj dk lanfHkZr djus gsrq lacaf/kr iz'kkldh; foHkkx dks Hkstsxk(

([k) jkT; lsokvksa ds ,sls vf/kdkfj;ksa] tks jkT; 'kklu ds lfpo ds osrueku ;k blls mPp osrueku esa dk;Zjr gksa] ds fo:) izdj.k % bl Js.kh ds vf/kdkfj;ksa ds fo:) vfHk;kstu dh Lohd`fr dh izfdz;k mi;qZDr in 2(d) vuqlkj jgsxh& dsoy bl varj ds lkFk fd Hkz'Vkpkj fuokj.k vf/kfu;e] 1988 dh /kkjk&19 ds varxZr vfHk;kstu Lohd`fr ds izdj.k Hkh jkT; 'kklu }kjk gh fujkd`r fd, tk;saxsaA

(x) vfHk;kstu Lohd`fr ds ,sls ekeys ftuesa iz'kkldh; foHkkx }kjk vfHk;kstu Lohd``fr fn, tkus ij vlgefr O;Dr dh xbZ gS ijarq fof/k foHkkx dk er vfHk;kstu Lohd`fr iznku fd, tkus ds i{k esa gS %

bl Js.kh ds 'kkldh; lsodksa ds ekeyksa esa vfHk;kstu dh Lohd`fr dh izfdz;k mi;ZqDr in 2([k) vuqlkj gh jgsxhA [email protected] ;fn yksd vk;ksx laxBu dk vfHk;kstu Lohd`fr dk izLrko vLohd`r djuk izLrkfor gks rks ,slk djus ds fy, ea=h ifj'kn dk jktuSfrd ekeyksa dh lfefr dk vuqeksnu izkIr fd;k tk,xkA [email protected] ;g vkns'k tkjh gksus ds fnukad ls bl laaca/k esa iwoZ esa tkjh vfHk;kstu Lohd`fr laca/kh vkns'[email protected]'k rn~uqlkj la'kksf/kr ekus tk,axsA

[email protected]& [email protected]@03 (iadt f}osnh)] izeq[k lfpo]

NRrhlx<+ 'kklu lkekU; iz'kklu foHkkx

18. Now, if we look into the documents enclosed along with the

pleadings, particularly the Order of the Law Department, it would clearly

reveal that in-fact all the procedures as laid down under the "Rules of

Business" have been followed before taking the decision to grant sanction

for prosecution.

19. The Rules of Business are framed by the State Government

exercising the powers conferred by Clauses 2 & 3 of Article 166 of the

Constitution of India. Rule 13 of the said "Rules of Business" of the State

of Chhattisgarh envisages the Rules by which the existing Rules can be

supplemented as may be necessary by way of instructions issued from

time to time.

20. According to the Rules of Business governing the field, in the event

of there is a difference of opinion between the Parent Department and

Law Department, the matter is placed for consideration before the State

Government as would be evident from the instructions that were issued by

the State Government so far as granting of sanction is concerned vide the

aforesaid Circular dated 26.5.2003. Clause 2([k) of the said Circular reads

as follows:-

"([k) jkT; lsokvksa ds ,sls vf/kdkfj;ksa] tks jkT; 'kklu ds lfpo ds osrueku ;k blls mPp osrueku esa dk;Zjr gksa] ds fo:) izdj.k % bl Js.kh ds vf/kdkfj;ksa ds fo:) vfHk;kstu dh Lohd`fr dh izfdz;k mi;qZDr in 2(d) vuqlkj jgsxh& dsoy bl varj ds lkFk fd Hkz'Vkpkj fuokj.k vf/kfu;e] 1988 dh /kkjk&19 ds varxZr vfHk;kstu Lohd`fr ds izdj.k Hkh jkT; 'kklu }kjk gh fujkd`r fd, tk;saxsaA "

21. If we look into the Note-sheets, it would clearly reflect that the State

Government has in the instant case followed the Rules which are

otherwise issued by the State Government from time to time. From the

pleadings and the contentions which have been brought on record, what is

evident is that it is not a case where there is no sanction, but it is a case

where there is a sanction available for prosecution. The only issue is,

whether the sanction accorded is valid or not.

22. On the issue as to whether the sanction granted is valid or not and

whether it would be appropriate for the High Court in a Writ Petition to

consider this aspect, the Hon'ble Supreme Court in the case of Dinesh

Kumar Vs. Chairman, Airport Authority of India and others [2012 (1)

SCC 532] in Paragraphs 10 & 13 has held as under:-

"10. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorised or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind - a category carved out by this Court in Parkash Singh Badal (supra), the challenge to which can always be raised in the course of trial.

*** *** ***

13. In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the Trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the Trial Court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal (supra) and not unjustified."

23. Similarly, in the recent past also the Hon'ble Supreme Court in the

case of Central Bureau of Investigation and others Vs. Pramila

Virendra Kumar Agarwal and others [2019 (14) Scale 246] again had

the occasion of considering the issue so far as the validity of a sanction for

prosecution is concerned. In Paragraph 13 of the said judgment, the

Hon'ble Supreme Court has held as follows:-

"13. Further the issue relating to validity of the sanction for prosecution could have been considered only during trial since essentially the conclusion reached by the High Court is with regard to the defective sanction since according to the High Court, the procedure of providing opportunity for explanation was not followed

which will result in the sanction being defective. In that regard, the decision in the case of Dinesh Kumar v. Chairman, Airport Authority of India, MANU/SC/1407/2011 : (2012) 1 SCC 532 relied upon by the learned Additional Solicitor General would be relevant since it is held therein that there is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The absence of sanction no doubt can be agitated at the threshold but the invalidity of the sanction is to be raised during the trial. In the instant facts, admittedly there is a sanction though the Accused seek to pick holes in the manner the sanction has been granted and to claim that the same is defective which is a matter to be considered in the trial."

24. From the aforesaid two judgments of the Hon'ble Supreme Court,

what is evident is that the business of sanction is one which can be

considered for the purpose of vitiating the prosecution case. However, the

validity or perversity of an order of sanction for prosecution is an issue

which can only be questioned before the Trial Court during the course of

trial.

25. Recently, the Allahabad High Court, Lucknow Bench, also had the

occasion of dealing with one such issue in the case of Ram Naresh

Singh Tomar Vs. State of U.P., through S.P., & Others, decided on

17.8.2021 in Case No.2633/2021. Relevant portion of the said judgment is

reproduced herein below:-

"The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority."

26. In the event of the challenge being made to the validity of the

sanction, it becomes incumbent upon the prosecution to prove that a valid

sanction for prosecution was granted by the Sanctioning Authority and the

sanction for prosecution was granted after being satisfied that a strong

case for prosecution has been made out.

27. Given the aforesaid legal position as it stands, since in the instant

case there is a sanction for prosecution granted by the Sanctioning

Authority and the only issue raised is the aspect of validity of the sanction,

in the light of the judgments of the Hon'ble Supreme Court in the case of

Dinesh Kumar (supra) as also in the case of Pramila Virendra Kumar

Agarwal (supra), these are the grounds which have to be raised by the

defence during the course of trial or before the Trial Court. While

challenging the aspect of validity before the Trial Court, the Petitioner can

also question the aspect of the competency of the Authority who has

granted the sanction for prosecution.

28. For the aforesaid reasons, this Court is of the opinion that no strong

case for quashing of the sanction for prosecution has been made out,

neither has the Petitioner made out any case for quashment of the entire

criminal proceeding against the Petitioner under the provisions of the P.C.

Act.

29. Both the Writ Petitions, therefore, deserve to be and are accordingly

dismissed. The interim relief granted in both the Writ Petitions vide Order

dated 6.9.2006 also stand vacated. Petitioner would be at liberty to raise

the ground of validity of the sanction for prosecution before the Trial Court

during the course of trial.

30. Both the Writ Petitions accordingly stands dismissed.

Sd/-

                                                                    (P. Sam Koshy)
/sharad/                                                                   Judge