Santosh Kumar Jha vs Union Of India & Ors.
2011 Latest Caselaw 5086 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 17th October, 2011

+                                    W.P.(C) 3035/2011

%        SANTOSH KUMAR JHA                                           ..... Petitioner
                              Through: Mr. C.B. Pandey & Mr. Ranjan Pandey, Advs.

                             Versus
         UNION OF INDIA & ORS.                                  ..... Respondents
                              Through: Mr. R.V. Sinha with Mr. R.N. Singh & Ms.
                                       Sangita Rai, Advs. for R-1&2.
                                       Ms. Sonia Mathur & Mr. Sushil Kumar Dubey,
                                       Advs. for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                      Yes.

2.       To be referred to the reporter or not?               Yes.

3.       Whether the judgment should be reported
         in the Digest?                                       Yes.

RAJIV SAHAI ENDLAW, J.

1. The writ petition impugns the sanction accorded, in exercise of

powers under Section 19 of the Prevention of Corruption Act, 1988 (POCA),

by the Minister for Railways on 14.02.2011 for the prosecution of the

petitioner. The writ petition came up before this Court first on 06.05.2011

when on oral request of the petitioner, the Central Vigilance Commission

(CVC) and the Central Bureau of Investigation (CBI) were impleaded as

respondents. It was the contention of the petitioner on that date, that the

petitioner till then had not been able to get a copy of the formal order

granting sanction for his prosecution; that the previous history of the case

showed that on more than one occasion, the matter was examined and it had

been decided not to grant sanction to prosecute the petitioner; that the said

decision was reversed under pressure from the respondent No.3 CBI. The

petitioner accordingly sought interim order restraining further steps pursuant

to the sanction accorded on 14.02.2011.

2. Notice of the petition was issued and the question of interim relief left

to be considered on the next date of hearing. On 10.05.2011, it was directed

that in the event the respondent No.3 CBI proposed to file a charge sheet, it

will first inform this Court. Thereafter on 03.06.2011, the counsel for the

petitioner informed that notwithstanding the earlier order of this Court, the

petitioner had been summoned by the Special Judge of CBI Court in Greater

Mumbai; violation of order dated 10th May, 2011 of this Court is alleged.

Vide subsequent interim orders dated 15.06.2011 and 05.07.2011, the

Special Judge, CBI, Greater Mumbai was requested not to insist on the

personal presence of the petitioner before that Court. Counter affidavit has

been filed by the respondent No.3 CBI and to which rejoinder has been filed

by the petitioner. The counsels for the parties have been heard. The counsel

for the respondent No.3 CBI during the course of hearing has handed over

their records as to the grant of sanction for prosecution of the petitioner. The

petitioner after the conclusion of the hearing has filed an additional affidavit

dated 02.09.2011 enclosing therewith the formal sanction order dated

26.04.2011 for the prosecution of the petitioner.

3. The petitioner has pleaded:

(a) that he was appointed as an Indian Railway Traffic Service

(IRTS) Cadre Officer in the Railways Department on the basis

of direct recruitment through Civil Services Examinations

(1992) and is presently working as Deputy Chief Operations

Manager (Planning), Western Railway, Mumbai;

(b) that he, in the years 2001 and 2004, had purchased immovable

properties at Greater Noida and Lucknow respectively, after

availing of bank loan and loans from relatives and duly

intimated about the purchase of aforesaid properties to the

department, in accordance with Rules;

(c) that a Departmental Vigilance Enquiry was instituted against

him and the case was also given to the respondent No.3 CBI

and an FIR was lodged by the respondent No.3 CBI against the

petitioner of offence punishable under Section 13(2) read with

Section 13(1)(d) of POCA and registered for investigation;

(d) that the respondent No.3 CBI arrived at a conclusion of the

petitioner possessing assets disproportionate by 54%;

(e) that the respondent No.2 Member Traffic, Railway Board

forwarded the aforesaid report of respondent No.3 CBI to

General Manager, Western Railway who held that the petitioner

was not found in possession of any undeclared property and the

case was of violation of the Railway Services (Conduct) Rules,

1966 regarding taking prior permission before acceptance of a

gift cheque and accordingly recommended to the respondent

No.2 Railway Board only departmental enquiry and no

prosecution against the petitioner;

(f) that the competent Disciplinary Authority on 21.02.2008 took a

decision for initiation of only major penalty proceedings against

the petitioner and did not recommend prosecution of the

petitioner;

(g) the respondent No.4 CVC in its note dated 14.05.2008

recorded that the respondent No.3 CBI takes up cases involving

more than 30% of the assets as fit for prosecution; that in the

present case as per calculation of the Railways, the percentage

of disproportionate assets is only 20.65%; that the respondent

No.4 CVC‟s own calculation of disproportionate assets was of

34.7% while that of respondent No.3 CBI, as aforesaid, was of

54%. In the circumstances, the matter was referred back to the

respondent No.3 CBI to consider the views of the respondent

No.2 Railway Board;

(h) the petition does not disclose the findings of the respondent

No.3 CBI at this stage; however it is pleaded that on the matter

being referred again to respondent No.4 CVC and thereafter

again to the respondent No.2 Railway Board, the respondent

No.2 Railway Board again on 06.01.2009 opined that the case

did not warrant prosecution by the respondent No.3 CBI;

(i) however the respondent No.3 CBI again approached the

respondent No.4 CVC and a joint meeting of respondent No.3

CBI, respondent No.4 CVC and the respondent No.2 Railway

Board was held on 11.09.2009 in which it was found that

respondent No.3 CBI can be said to have brought out a clear

"disproportion" of 15.73% which can go upto 24.42% only if

there is a strong evidence to reject the income of the wife of the

petitioner and the loan;

(j) that under the influence of respondent No.3 CBI, a Committee

of Experts was constituted and on the basis of report whereof

respondent No.4 CVC advised prosecution of the petitioner and

the Disciplinary Authority of the petitioner changed its earlier

view and recommended sanction of prosecution of the

petitioner.

4. The petitioner contends that the Disciplinary Authority having

initially applied its mind and not sanctioned prosecution, has now, in

sanctioning the prosecution acted mechanically at the behest of respondent

No.3 CBI. It is contended that the earlier decision of not recommending

prosecution had attained finality and could not have been reviewed in the

absence of any fresh material coming on record. Reliance in this regard is

placed on Abha Tyagi v. Delhi Energy Development Agency 2002 III AD

(Delhi) 641 and the judgment dated 23rd July, 2004 of the Division Bench of

this Court in LPA No. 542/2002 arising therefrom. For the same reasons the

order of sanction is also averred to be arbitrary and mala fide. Various other

errors in the computation of percentage of disproportionate assets of the

petitioner are averred. It is also contended that the constitution of an Expert

Committee was illegal. It is alleged that while in the FIR the check period

was from 1993 to 2005, it has been reduced while computing the percentage

of disproportionate assets to six years (1999 to 2005) only causing great

prejudice to the petitioner. It is further contended that the representations of

the petitioner from time to time have not been considered. With reference to

Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh AIR 1979 SC 677, it is

contended that grant of prosecution sanction is a sacrosanct exercise and not

a mere idle formality and thus the grant of sanction by the respondent No.2

Railway Board on the basis of the orders of respondent No.4 CVC is illegal;

that the sanctioning authority has not applied its own mind.

5. The respondent No.3 CBI qua the argument of the petitioner of the

violation of the interim order dated 10.05.2011 of this Court directing the

respondent No.3 CBI to, if proposing to file the charge sheet to first inform

this Court, has explained that the charge sheet in fact had been filed prior

thereto on 05.05.2011 and thus there is no violation of the interim order of

this Court. It is further pleaded that intimation thereof was given to the

petitioner on 05.05.2011 itself and the petitioner was asked to remain present

on 11.05.2011 but the petitioner stated that he will be on leave at Delhi till

15.05.2011; that the Special Judge, CBI, Greater Mumbai took cognizance

on 11.05.2011.

6. The respondent No.3 CBI in its counter affidavit as also on each and

every date of hearing, has been vehemently opposing the territorial

jurisdiction of this Court to entertain this petition. It is pleaded that the

alleged offence has been committed at Mumbai, the FIR has been registered

at Mumbai and the charge sheet has also been filed before the Special Judge,

CBI, Greater Mumbai; the petitioner is also posted at Mumbai and the

Special Judge, CBI, Greater Mumbai has already taken cognizance of the

matter and the impugned sanction order is a part of the charge sheet and is

under the judicial scrutiny of the learned Special Judge. It has further been

contended on each and every date that the Special Judge, CBI, Greater

Mumbai being beyond the territorial jurisdiction of this Court, no order with

respect to proceedings of that Court could be made by this Court. Reliance

is placed on C.B.I. Anti-Corruption Branch, Mumbai Vs. Narayan

Diwakar (1999) 4 SCC 656 and on Mosaraf Hossain Khan Vs.

Bhagheeratha Engg. Ltd. (2006) 3 SCC 658. It is contended that it would

be more appropriate to challenge the order taking cognizance in the Criminal

Court having jurisdiction and the issue of validity of sanction should be gone

into by that Court only. Reference is also made to Bholu Ram Vs. State of

Punjab 2008 (12) SCALE 133. It is also the argument of the respondent

No.3 CBI that efficacious alternative remedy being available as aforesaid,

the discretionary writ remedy ought to be declined to the petitioner.

7. It is further the plea of the respondent No.3 CBI that the present

proceedings are dilatory; that the order of sanction of prosecution has been

issued in the name of the President as per the Government of India

(Allocation of Business) Rules, 1961 and the same was authenticated as per

Government of India Authentication (Orders and Other Instruments) Rules,

2002 and under Article 77 of the Constitution of India, the same is not to be

called into question.

8. It is also pleaded by the respondent No.3 CBI on merits that at the

time of first advice of respondent No.4 CVC, certain material facts were not

taken into consideration by the respondent No.4 CVC and hence the facts

which were not considered at the time of first advice were further

highlighted and represented by respondent No.3 CBI for re-consideration of

respondent No.4 CVC and upon consideration thereof on report of the

Expert Committee, the respondent No.4 CVC reconsidered the matter and

gave the reconsidered advice for issuance of sanction order for prosecution

of the petitioner.

9. The petitioner in his rejoinder to the counter affidavit has justified the

territorial jurisdiction of this Court by pleading that the offices of the

respondents are within the jurisdiction of this Court, the sanction order dated

26.04.2011 for prosecution has been issued by the Ministry of Railways

from New Delhi; all the information for approval of sanction for prosecution

has been gathered by the petitioner through the medium of Right to

Information Act, 2005 in New Delhi only. The petitioner further avers that

the petitioner till now having not been served with any summons pertaining

to prosecution, has no other avenue to challenge the sanction for prosecution

except by way of this writ petition. He denies having been informed of the

filing of the charge sheet and states that the present petition was filed even

prior to the charge sheet being filed in the Court of the Special Judge, CBI,

Greater Mumbai. It is reiterated that the filing of the charge sheet is in

violation of the orders of this Court. Else, the pleas in the counter affidavit

regarding grant of sanction are controverted.

10. Section 19 of POCA prohibits any Court from taking cognizance of an

offence punishable thereunder except with the previous sanction of the

Central Government or the State Government as the case may be and in the

case of any other person, of the authority competent to remove him from his

office. A first reading thereof appears to indicate that the challenge if any to

the sanction, cannot be before the Court taking cognizance of the offence

inasmuch as without a valid sanction, that Court would have no jurisdiction.

However, Section 19 itself in sub-section (3) thereof provides that no

finding, sentence or order passed by a Special Judge shall be reversed or

altered by a Court in appeal, confirmation or revision on the ground of the

absence of, or any error, omission, irregularity in the sanction required under

sub-section (1), unless in the opinion of that Court, a failure of justice has in

fact been occasioned thereby. It further provides that no Court shall stay the

proceedings under the 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. Sub-

Section (4) further provides that in determining whether the absence of, or

any error, omission or irregularity in, such sanction has occasioned or

resulted in a failure of justice the Court shall have regard to the fact whether

the objection could and should have been raised "at any earlier stage in the

proceedings".

11. Sub-Sections (3) & (4) of Section 19 are thus indicative of objections

regarding and/or challenge if any to the sanction, being maintainable before

the Special Judge only and/or in any appeal and/or other proceedings in the

nature of revision etc. arising from the proceedings before the Special Judge.

12. The aforesaid question assumes relevance not only to determine

whether this Court would have territorial jurisdiction but also whether the

petitioner has alternative remedy. If the petitioner has the option of taking

the pleas as taken herein before the Special Judge, CBI, Greater Mumbai,

then the rule of alternative remedy though not absolute, would bar the

jurisdiction of this Court. Moreover, if the Special Judge is empowered to

entertain all such pleas and the petitioner if aggrieved from the findings of

the Special Judge, CBI, Greater Mumbai has remedies thereagainst, then

such remedies would definitely be in the High Court at Mumbai under

whose territorial jurisdiction the Special Judge is.

13. I find the Supreme Court in State of Madhya Pradesh v. Jiyalal

(2009) 15 SCC 72 to have held that it is open to an accused to question the

genuineness or validity of the sanction order before the Special Judge.

Similarly, in State of M.P. v. Dr. Krishna Chandra Saksena (1996) 11 SCC

439 it was held that the question whether before granting sanction all the

relevant evidence had been considered or not, could be examined only at the

stage of trial when the sanctioning authority comes forward as a prosecution

witness to support the sanction order if challenged during the trial and before

that stage and at the very inception, the sanction order cannot be quashed on

the supposition that all the relevant documents were not considered by the

sanctioning authority. Similarly, recently in Chittaranjan Das Vs. State of

Orissa (2011) 7 SCC 167 also, it was observed that if disputed questions of

fact are involved, it is expedient to leave the question of validity of the

sanction to be decided by the trial court.

14. Once one reaches a conclusion that the challenge made as in this

petition could be made by the petitioner before the Special Judge, CBI also,

the question of maintainability of this petition under Article 226 of the

Constitution arises. Ofcourse, the present petition was filed before the

chargesheet was filed in the Court of Special Judge, CBI, Greater Mumbai.

However, the question still arises whether a person against whom sanction

has been so accorded and whose prosecution is imminent can, by rushing to

the Court, create a situation in which unless stay of prosecution is granted

the challenge to the sanction would become irrelevant. I am of the view that

if such challenge were to be held to be maintainable, the same would delay

the prosecution. The purport of Section 19(3)(c), prohibiting any Court from

staying the proceedings under this Act on any other ground is again to

ensure expeditious decision. Though the word "Court" in Section 19(3)(c)

may not cover the High Court exercising powers under Article 226 but the

legislative intent appears to be to ensure expeditious trial in such cases. It

has been so held in State of Bihar Vs. P.P. Sharma AIR 1991 SC 1260 also.

Reference in this regard may also be made to State of West Bengal Vs.

Mohd. Khalid (1995) 1 SCC 684 though relating to the Terrorist and

Disruptive Activities (Prevention) Act, 1987 but holding that though in an

extreme and rare case the High Court may be justified in invoking the power

under Article 226, that power is not exercisable where the position may be

debatable. It was further held that in such cases the gamut of procedure

prescribed under the special Act must be followed, namely raising the

objection before the Designated Court and if necessary challenging the order

of the Designated Court. It was yet further held that where the High Court

has to perform the laboured exercise of scrutinizing the material, there is

sufficient indication that the writ jurisdiction under Article 226 is not

available.

15. The petitioner herein has neither shown any reason for this case to fall

in the category of "extreme and rare" nor has shown any ex facie illegality in

the sanction accorded. Rather the counsel for the petitioner has argued by

taking this Court through the laborious exercise of scrutinizing the material.

Thus, no case for entertaining under Article 226 is made out.

16. Mention in this regard may also be made of the judgment of the

Division Bench of Madras High Court in Dr. J. Jayalalitha v. Dr. M.

Channa Reddy, Governor of Tamil Nadu (1995) II MLJ 187 where a

criminal writ petition impugning the order of sanction was held to be

premature for the reason of ample opportunity to raise all contentions being

available. Mention may also be made to the judgment of C.K. Thakker, J. in

Durgaprasad P. Dash Vs. State Bank of Saurashtra MANU/GJ/0343/1996

speaking for the Gujarat High Court, while holding that the powers under

Article 226 cannot be curtailed or taken away by legislation, laying down

that the High Court will not be oblivious of the fact that the petition, before

cognizance is taken by the Special Court, is premature and as and when

cognizance is taken it being open to the accused to take all the contentions

that no sanction could have been granted or that grant of sanction is contrary

to law before the Special Court. It was further held that jurisdiction under

Article 226 is to be exercised in the larger interest of justice and looking to

the seriousness of the allegations, interference with the sanction may not be

in larger public interest. Mention may also be made of State of Punjab Vs.

Mohammed Iqbal Bhatti (2009) 17 SCC 92 where also the Supreme Court,

though in a Civil Appeal and arising from a Civil Writ Petition, held that the

legality and/or validity of the order granting sanction would be subject to

review by the Criminal Courts.

17. The law therefore appears to be that a Civil Writ Petition would not

ordinarily lie in the circumstances.

18. The Full Bench of this Court recently in judgment dated 29th July,

2011 in LPA No. 819 of 2010 titled C.S. Agarwal v. State had occasion to

determine whether a petition under Article 226 of the Constitution of India is

in the exercise of civil or criminal jurisdiction. After considering the case

law in the regard, the test culled out was "whether criminal proceedings are

pending or not and the petition under Article 226 of the Constitution is

preferred concerning those criminal proceedings which could result in

conviction and order of sentence". It was further held that when, the Writ

Petition for quashing of an FIR is filed, if the FIR is not quashed, it may lead

to filing of the challan by the Investigating Agency; framing of charge; and

can result in conviction or order of sentence - seeking quashing of such an

FIR would therefore be criminal proceedings and while dealing with such

proceedings, the High Court exercises its criminal jurisdiction. Seen in this

light also, the High Court which ought to exercise such criminal jurisdiction

would naturally be the High Court within whose jurisdiction, but for the

interference by the High Court, the Court where challan would be filed,

charge framed and order resulting in conviction may be made is situated.

Such High Court in the facts of this case, is not this Court but the Bombay

High Court.

19. I find that in Dhirendra Krishan Vs. BHEL ILR (1999) I Delhi 538

also Criminal Writ Petition impugning the sanction to have been preferred.

20. On the aspect of territorial jurisdiction of this Court, the counsel for

the respondent No.3 CBI has also referred to Hari Dutt Sharma Vs. Union

of India 125 (2005) DLT 17 where also this Court refused to entertain the

Civil Writ Petition for the reason of the cause of action having proximity to

Mumbai where the FIR had been lodged and charge sheet had been filed and

the trial was in progress.

21. I therefore accept the objection of the respondents as to the territorial

jurisdiction of this Court and hold that this Court does not have the territorial

jurisdiction to entertain this petition.

22. Alternatively, even if it were to be held that this Court has territorial

jurisdiction to entertain the petition, a five Judge Bench of this Court in

Sterling Agro Industries Ltd. v. Union of India 181 (2011) DLT 658 has

held that this Court can refuse to entertain the petition if finds another High

Court to be a more convenient Court to entertain the petition. The difficulties

in this Court entertaining this petition have already been noticed above in

this Court being not able to issue any directions to the Court of the Special

Judge CBI, Greater Mumbai. For this reason also, this is an appropriate case

for this Court to refuse to entertain the petition.

23. Though the aforesaid is sufficient for disposal of this petition but for

complete adjudication it is expedient to also deal with the challenge on

merits by the petitioner to the order of sanction. As aforesaid, Delhi Energy

Development Agency (supra) forms the fulcrum of the case of the petitioner.

However, the said judgment itself notices the dicta in P.P. Sharma (supra)

and in Parmanand Dass Vs. State of Andhra Pradesh (1978) 4 SCC 32

laying down that sanction order is an administrative act and there is no legal

bar for reconsideration or revocation of the order by the sanctioning

authority; rather it was held that "we find that there could be no legal bar to

the sanctioning authority revising its own opinion before the sanction order

is placed before the Court". However, the Division Bench of this Court in

Delhi Energy Development Agency further held that the sanctioning

authority cannot be left free to change its orders and decisions at its will and

whim though it may reconsider its order and even revise it but only when

some reasonable rationale and valid basis exists therefor. It was held that

such basis may arise where the order is found to be suffering from some

material infirmity, irregularity or perversity or where some fresh

investigation material becomes available to the authority to dictate a reversal

of the first order. The Division Bench in that case however found no such

fresh material and held that different interpretation on the same material was

not permissible.

24. The Supreme Court also recently in State of Himachal Pradesh v.

Nishant Sareen AIR 2011 SC 404 held that it is not permissible for the

sanctioning authority to review or reconsider the matter on the same

material. Earlier in Mohammed Iqbal Bhatti (supra) also while reiterating

that the State in the matter of grant or refusal to grant sanction exercises

statutory jurisdiction and the same would not mean that once exercised it

cannot be exercised once again, it was held that for exercising its jurisdiction

at a subsequent stage, the express power of review in the State may not be

necessary as even such a power is administrative in character. It was further

held that while passing an order for grant of sanction, serious application of

mind on the part of the concerned authority is imperative and an order

refusing to grant sanction would be subject to review by "Criminal Courts".

In that case, the Supreme Court affirmed the finding of fact of the High

Court that no material was placed before the competent authority and only a

communication had been received from the Director, Vigilance Bureau and

which was not a new material. Upon finding that no fresh material had been

placed before the sanctioning authority and no case of the sanctioning

authority on an earlier occasion having failed to take into consideration a

relevant fact or having taken into consideration irrelevant fact having been

made out, it was held that the decision ought not to have been changed.

25. A perusal of the sanction order dated 26.04.2011 shows the same to be

containing detailed reasons for according the sanction. The counsels have

also referred to the Allocation of Business Rules, 1961 of the Government of

India, framed under Article 77 of the Constitution of India, with the counsel

for the respondent No.3 CBI contending that the appointing authority of the

petitioner being the President of India and thus the order granting or refusing

sanction could not have been issued by anyone below the Minister of

Railways and the matter having never gone in the past to the Minister and

the counsel for the petitioner contending that while the competent authority

for granting sanction is the Minister but the competent authority for rejecting

the sanction is the respondent No.2 Railway Board. However in view of the

unequivocal position in law that there is no bar to review of the order and the

only test is whether there was any ground for review or not, the said

questions are not relevant.

26. I may also notice that it is also the contention of the counsel for the

respondent No.2 Railway Board, supporting the counsel for the respondent

No.3 CBI, that the petitioner is merely relying upon the observations at

various stages in the decision making process whether to grant sanction or

not. There is merit in the said contention also. The Apex Court in Sethi

Auto Service Station v. DDA (2009) 1 SCC 180 held that internal notings

are not meant for outside exposure and notings in the file culminate into an

executable order affecting the rights of the parties only when it reaches the

final decision making authority in the department, gets his approval and the

final order is communicated to the person concerned. Similarly, in Jasbir

Singh Chhabra v. State of Punjab (2010) 4 SCC 192, it was held that issues

and policy matters which are required to be decided by the Government are

dealt with by several functionaries some of whom may record notings on the

files favouring a particular person, someone may suggest a particular line of

action; however, the final decision is required to be taken by the designated

authority keeping in view the larger public interest. The said views were

recently approved in UOI v. Vartak Labour Union JT 2011 (3) SC 110.

27. The Indian Railways Vigilance Manual 2006, copy of which has been

handed over, in paras 501 to 515 thereof provides for a detailed procedure

running into several stages for obtaining CVC‟s advice in cases relating to

CBI‟s request for prosecution with the final decision being of the Minister,

Railways. It is not the case of the petitioner also that in the present case at

any earlier point of time the file was referred to the Minister.

28. All the aforesaid questions require detailed examination of documents

and records. The same as noticed above is beyond the scope of writ

jurisdiction. Suffice it is to state that an Expert Committee had been

constituted before sanction was accorded. The benefit of the report of the

said Expert Committee was not available when according to the petitioner

the sanction was refused. The present is not thus a clear cut case where it can

be said that no new material was available before the sanctioning authority.

The counsel for the respondent No.3 CBI has referred to Dinesh Kumar Vs.

Chairman, Airport Authority of India 2011 (2) JCC 733 where this Court

held that the question whether or not sanctioning authority applied its mind

to the facts and the material collected is a mixed question of law and facts

which requires evidence for determination and if at all the petitioner has any

grievance against the validity of the sanction order, he obviously would get a

chance to challenge its validity before the concerned Court where the charge

sheet is filed. The aforesaid equally applies to the ground of challenge in the

present case also. The question whether any ground for review existed or not

would require going into a plethora of documents and records available

before the sanctioning authority on both the occasions. The said question is

thus a mixed question of law and fact which cannot be adjudicated at this

stage.

29. I may also notice that the question in the present case is of, what

percentage the assets of the petitioner were found disproportionate. The

earlier decision relied upon by the petitioner appears to be guided by the

comparatively small percentage by which the petitioner‟s assets were

disproportionate. While exercising equity jurisdiction, this Court would not

exercise the equity in favour of a person who has disproportionate assets

howsoever miniscule they may be.

30. Thus there is no merit in the petition. The same is dismissed. The

petitioner is also burdened with costs of `20,000/- payable to the respondent

No.3 CBI before the Court of Special Judge, CBI, Greater Mumbai on the

next date of hearing.

RAJIV SAHAI ENDLAW (JUDGE) OCTOBER 17, 2011 „gsr‟..