Heard Shri Dhirendra Singh Panwar, learned counsel for applicant as well as Shri Anurag Kumar Singh, learned counsel appearing on behalf of Central Bureau of Investigation and perused the record.
Learned counsel for the parties have agreed that instant petition be disposed of at the admission stage.
The present application under Section 482 Cr.P.C. has been filed by the applicant- Ram Naresh Singh Tomar with a prayer to quash the impugned charge sheet dated 30.06.2020 and set aside the impugned cognizance order dated 21.07.2020 as well as proceedings of the criminal case no. 12/2020 "State Vs. Ram Naresh Singh Tomar and others), under Sections 120-B, 409, 420, 468, 471 IPC & 13(2) r/w 13(1) (c) & (d) of P.C. Act 1988, Police Station ACB/CBI/Lucknow, pending before the court of Special Judge Anti Corruption CBI Court No.5, Lucknow, so far as it relates to the applicant.
Learned counsel for the applicant submits that FIR of the above mentioned case was lodged by Shri B.M. Pandey, Inspector Khadya Prakosth Indira Bhawan Lucknow on 24.02.2005 at Police Station Kotwali Sadar, District Lakhimpur Kheri and subsequently the case was registered by CBI on 31.10.2008.
It is further submitted that CBI has submitted the charge sheet against the applicant and others under Sections 120-B, 409, 420, 468, 471 IPC & 13(2) r/w 13(1) (c) & (d) of P.C. Act 1988 and thereafter the court has taken cognizance and issued summons against the applicant, vide order dated 21.07.2020.
It is further submitted that allegations against the applicant is to the tune that he being the Godown Incharge of UPSFC at Phoolbehar Block of District Lakhimpur Kheri had to ensure that demand draft should have been prepared by Kotedars and not from any middleman and has to unload the food-grain at block go-down in presence of first stage verification and obtain signature on the stock register in token of verification and he had made false entries in the stock register and had not distributed the food-grain to the Kotedars and in connivance with other co-accused persons had diverted and misappropriated the BPL food-grain.
Learned counsel for the applicant while drawing the attention of this Court to the order dated 30.6.2020, whereby the sanction for the prosecution has been granted by the appropriate authority submits that the sanction order dated 30.6.2020 is absolutely illegal as the same is silent on the point as to what material or documents were placed before the sanctioning authority for consideration and what material has actually been perused by the authority at the time of applying his mind at the time of granting sanction for prosecution and therefor the sanction for prosecution is not valid and thus the sanction order as well as the order dated 21.7.2020, whereby the cognizance has been taken is absolutely illegal and thus the abuse of the process of law.
It is further submitted that CBI had submitted charge sheet against the applicant without there being sufficient material and thus the sanctioning order and the order whereby cognizance has been taken as well as all the proceedings of the case is abuse of process of law and be quashed.
Learned counsel for the applicant has relied on a judgment passed by the Hon'ble Supreme Court reported in 2014 Crl. Law Journal page 230, CBI Vs. Ashok Kumar Agrawal.
Shri Anurag Kumar Singh, learned counsel for CBI controverts the submissions made by learned counsel for the applicant and submits that no illegality or irregularity has been committed by the Sanctioning Authority in granting the sanction for prosecution against the applicant. He further submits that a perusal of the order dated 30.6.2020, whereby the sanction has been accorded would reveal that Sanctioning Authority has gone through all the material and evidence collected by the Investigating Officer which was placed before him and after being satisfied by means of a speaking and reasoned order the sanction has been granted and the same by any stretch of imagination could not be termed as accorded without application of mind.
Learned counsel for CBI while referring to Dinesh Kumar Vs. Chairman or Part Authority of India and another reported in (2012)1 SCC page 532 and Prakash Saini Badal Vs. State of Punjab reported in (2007) on SCC page 1, submits that the mere error, omission and irregularity in sanction order could not be considered fatal unless the same has resulted in failure of justice and the question with regard to the non application of mind at the time of granting sanction should be raised during the trial and for this purpose the trial should not be halted.
It is also submitted that Sanctioning Authority before granting sanction has gone through all the material and evidence and after application of his mind the authority has taken a decision which cannot be termed as illegal and therefore the application is misconceived and is liable to be dismissed.
Having heard learned counsel for the parties and having perused the record, so far as submissions of learned counsel for the applicant pertaining to the submission of charge sheet by the CBI on the basis of insufficient material and the submissions which have been made with regard to the factual aspect of the case is concerned, the same could not be entertained at this stage. From the perusal of the material on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against applicant. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings under Section 482 Cr.P.C. At this stage only primafacie case is to be seen in the light of the law laid down by Supreme Court in the cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq, another (Para-10) 2005 SCC (Cr.) 283 and Parabatbhai Ahir & Ors. Vs. State of Gujarat AIR 2017 SC 4843.
Thus having regard to all the facts and circumstances of the case and the law mentioned herein-above, I do not find any force in the submission of learned counsel for the applicant with regard to the fact that charge sheet has been filed on the basis of insufficient material and the same is subject matter of trial.
So far as submission of learned counsel for the applicant with regard to the fact that Sanctioning Authority has not disclosed in the sanctioning order the material which has been perused by him for the purpose of granting sanction and it amounts to non-application of mind and thus the sanction order is illegal rendering also the cognizance taking order as illegal, is concerned the perusal of the sanctioning order dated 30.6.2020 would reveal that the Sanctioning Authority has elaborately mentioned the facts of the case which could only be mentioned after going though the material/ evidence submitted by the Investigating Officer before the Sanctioning Authority. Perusal of the sanctioning order would further reveal that it has been specifically mentioned by the Sanctioning Authority that all the material and evidence which has been collected by the Investigating Officer during the course of investigation, has been perused by him and on the basis of which he was of the considered view that there is sufficient material / evidence available for the prosecution of the applicant and thus he accorded the sanction for the prosecution of the applicant.
Hon'ble Supreme Court in C.B.I. vs. Ashok Kumar Aggarwal, MANU/SC/1220/2013, the case relied on by Ld Counsel for applicant , while deliberating the validity of sanction held as under:-
"7. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter-alia on the ground that the order suffers from the vice of total non-application of mind.
(Vide: Gokulchand Dwarkadas Morarka v. King MANU/PR/0001/1948 : AIR 1949 PC 82; Jaswant Singh v. State of PunjabMANU/SC/0050/1957 : AIR 1958 SC 124; Mohd. Iqbal Ahmed v. State of A.P. MANU/SC/0181/1979 : AIR 1979 SC 677; State through Anti-Corruption Bureau, Govt of Maharashtra v. Krishanchand Khushalchand Jagtiani MANU/SC/0476/1996 : AIR 1996 SC 1910; State of Punjab v. Mohd. Iqbal Bhatti MANU/SC/1352/2009 : (2009) 17 SCC 92; Satyavir Singh Rathi, ACP v. State MANU/SC/0546/2011 : AIR 2011 SC 1748; and State of Maharashtra v. Mahesh G. Jain MANU/SC/0561/2013 : (2013) 8 SCC 119).
8. In view of the above, the legal propositions can be summarised as under:
(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."
Hon'ble Supreme Court in Parkash Singh Badal and Ors. vs. State of Punjab and Ors., (2007) 1 SCC 1, MANU/SC/5415/2006, the case relied on by Ld counsel for C.B.I. held as under :-
"29-The effect of Sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In Sub-Section (3) the stress is on "failure of justice" and that too "in the opinion of the Court". In Sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to root of jurisdiction as observed in para 95 of the Narasimha Rao's case (supra). Sub-section (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the Old Act (Section 19(2) of the Act) question relates to doubt about authority to grant sanction and not whether sanction is necessary.
48-The sanction in the instant case related to offences relatable to Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial."
In Dinesh Kumar Vs. Chairman, Airport Authority of India and Ors., MANU/SC/1407/2011 the case relied on by Ld counsel for C.B.I., Hon'ble Supreme Court opined as under:-
"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 MANU/SC/5415/2006 : (2007) 1 SCC 1 and not unjustified."
18. 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. (See also: Jaswant Singh v. The State of Punjab MANU/SC/0080/1957 : (1957)IILLJ696SC ; State of Bihar & Am. vs P.P. Sharma MANU/SC/0542/1992 : 1991CriLJ1438."
In Mansukhlal Vithaldas Chauhan vs. State of Gujarat, MANU/SC/1303/1997 Hon'ble Supreme Court held as under:-
"18. 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. (See also: Jaswant Singh v. The State of Punjab MANU/SC/0080/1957 : (1957)IILLJ696SC ; State of Bihar & Am. vs P.P. Sharma MANU/SC/0542/1992 : 1991CriLJ1438.
19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."
Hon'ble Supreme Court in P.L. Tatwal vs. State of Madhya Pradesh, MANU/SC/0129/2014 while considering the validity of sanction order observed as under :-
"12. The grant of sanction is only an administrative function. It is intended to protect public servants against frivolous and vexatious litigation. It also ensures that a dishonest officer is brought before law and is tried in accordance with law. Thus, it is a serious exercise of power by the competent authority. It has to be apprised of all the relevant materials, and on such materials, the authority has to take a conscious decision as to whether the facts would reveal the commission of an offence under the relevant provisions. No doubt, an elaborate discussion in that regard in the order is not necessary. But decision making on relevant materials should be reflected in the order and if not, it should be capable of proof before the court.
13. In a recent decision in State of Maharashtra through Central Bureau of Investigation v. Mahesh G. Jain MANU/SC/0561/2013 : (2013) 8 SCC 119, the court has referred to the various decisions on this aspect from paragraph 8 onwards. It has been held at paragraph 8 as follows:
8. In Mohd. Iqbal Ahmed v. State of A.P.S. this Court lucidly registered the view that (MANU/SC/0181/1979 : SCC p. 174, para 3) it is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out constituting an offence and the same should be done in two ways; either (i) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction, and (ii) by adducing evidence aliunde to show the facts placed before the sanctioning authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio.
14. After referring to subsequent decisions, the main principles governing the issue have been culled out at paragraph 14 which reads as follows:
14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."
In State of Bihar and Ors. vs. Rajmangal Ram, MANU/SC/0252/2014 wherein the High Court had interdicted the criminal proceedings on the ground that the Law Department was not the competent authority to accord sanction for the prosecution of the respondents, Hon'ble Supreme Court framed the following question for consideration and answered the same in para 7,8,9,10,11 of the judgment as under:-
"Whether a criminal prosecution ought to be interfered with by the High Courts at the instance of an accused who seeks mid-course relief from the criminal charges levelled against him on grounds of defects/omissions or errors in the order granting sanction to prosecute including errors of jurisdiction to grant such sanction?
7. In a situation where under both the enactments any error, omission or irregularity in the sanction, which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has occurred, it is difficult to see how at the intermediary stage a criminal prosecution can be nullified or interdicted on account of any such error, omission or irregularity in the sanction order without arriving at the satisfaction that a failure of justice has also been occasioned. This is what was decided by this Court in State by Police Inspector v. T. Venkatesh Murthy MANU/SC/0731/2004 : (2004) 7 SCC 763 (paras 10 and 11) wherein it has been inter alia observed that,
14. ......Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice.
8. The above view also found reiteration in Prakash Singh Badal and Anr. v. State of Punjab and Ors. MANU/SC/5415/2006 : (2007) 1 SCC 1 (para 29) wherein it was, inter alia, held that mere omission, error or irregularity in sanction is not to be considered fatal unless it has resulted in failure of justice. In Prakash Singh Badal (supra) it was further held that Section 19(1) of the PC Act is a matter of procedure and does not go to the root of jurisdiction. On the same line is the decision of this Court in R. Venkatkrishnan v. Central Bureau of Investigation MANU/SC/1411/2009 : (2009) 11 SCC 737. In fact, a three Judge Bench in State of Madhya Pradesh v. Virender Kumar Tripathi MANU/SC/0668/2009 : (2009) 15 SCC 533 while considering an identical issue, namely, the validity of the grant of sanction by the Additional Secretary of the Department of Law and Legislative Affairs of the Government of Madhya Pradesh instead of the authority in the parent department, this Court held that in view of Section 19(3) of the PC Act, interdicting a criminal proceeding mid-course on ground of invalidity of the sanction order will not be appropriate unless the court can also reach the conclusion that failure of justice had been occasioned by any such error, omission or irregularity in the sanction. It was further held that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and evidence is led (Para 10 of the Report).
9. There is a contrary view of this Court in State of Goa v. Babu Thomas MANU/SC/0776/2005 : (2005) 8 SCC 130 holding that an error in grant of sanction goes to the root of the prosecution. But the decision in Babu Thomas (supra) has to be necessarily understood in the facts thereof, namely, that the authority itself had admitted the invalidity of the initial sanction by issuing a second sanction with retrospective effect to validate the cognizance already taken on the basis of the initial sanction order. Even otherwise, the position has been clarified by the larger Bench in State of Madhya Pradesh v. Virender Kumar Tripathi (supra).
10. In the instant cases the High Court had interdicted the criminal proceedings on the ground that the Law Department was not the competent authority to accord sanction for the prosecution of the Respondents. Even assuming that the Law Department was not competent, it was still necessary for the High Court to reach the conclusion that a failure of justice has been occasioned. Such a finding is conspicuously absent rendering it difficult to sustain the impugned orders of the High Court.
11. The High Court in both the cases had also come to the conclusion that the sanction orders in question were passed mechanically and without consideration of the relevant facts and records. This was treated as an additional ground for interference with the criminal proceedings registered against the Respondents. Having perused the relevant part of the orders under challenge we do not think that the High Court was justified in coming to the said findings at the stage when the same were recorded. A more appropriate stage for reaching the said conclusion would have been only after evidence in the cases had been led on the issue in question."
Hon'ble he Apex Court in the case of State of M.P. vs. Dr. Krishna Chandra Saksena (MANU/SC/1749/1996) (1996) 11 SCC 439 held as under:
"8........... sanctioning authority was satisfied after complete and conscious scrutiny of the records produced in respect of the allegation against the accused. Now the question whether all the relevant evidence which would have tilted the balance in favour of the accused if it was considered by the sanctioning authority before granting sanction and which was actually left out of consideration 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. As that stage was not reached the prosecution could not have been quashed at the very inception on the supposition that all relevant documents were not considered by the sanctioning authority while granting the impugned sanction."
Thus it is not in dispute that grant or refuse of sanction is statutory function of the authority concerned. There is no prescribed format of the sanction order. However the sanction order must reflect the application of mind by the authority with regard to the material/ evidence collected during the course of investigation. The authority must do complete and conscious scrutiny of the whole record and must independently apply his mind, taking into consideration all the relevant material and evidence and the order of sanction must also reflect that authority was aware of all the facts/ material and evidence. It is also evident in the light of aforementioned case laws that issue of invalidity of sanction on the ground of non application of mind could also be raised during the course of trial and in general the prosecution, on the ground of non-application of mind, should not be quashed at the very inception of the proceedings.
Having regard to the above mentioned facts and the law discussed herein before, it is primafacie evident that no illegality or irregularity appears to have been committed by the Sanctioning Authority in according the prosecution sanction against the applicant. However, the applicant shall have liberty to take all pleas including the plea of non-application of mind by the sanctioning authority in his defence during the course of trial but at this stage on the grounds taken by the applicant the proceedings and cognizance taking order could not be quashed.
Thus I do not find any substance in the petition filed by the applicant and the same is hereby dismissed.
Learned counsel for the applicant requested that the applicant be permitted to move an application for his discharge before the trial court. No need to say that applicant after obtaining bail if the same has not been obtained yet, may move an application for discharge at an appropriate stage and the trial court will be under an obligation to dispose of the same by passing a reasoned and speaking order, after providing an opportunity of being heard to the parties, in accordance with law.
Order Date :- 19.8.2021 Muk