Hon'ble Rajeev Singh,J.
Heard Shri H.G.S. Parihar, learned Senior Counsel assisted by Shri Amit Singh, learned counsel for the petitioner, Shri S.P. Singh, learned A.G.A. for the State and perused the impugned F.I.R. as well as material brought on record.
The present writ petition has been filed by the petitioner for quashing the Office Order No.S-2-204/10-2018-133 (73)/2017 Lucknow dated 23.03.2018 passed by the Principal Secretary, Finance (Services) Anubhag-2, U.P. Government (respondent No.1).
Learned counsel for the petitioner has submitted that on 02.04.2008, a Government Order was passed by the State Government for purchasing computer/generator under the MNREGA Scheme by constituting a committee at District level and thereafter, the committee was constituted under the Chairmanship of the then District Magistrate and the petitioner was also one of the member in the six members committee, and Tender Notice No.2038 dated 26.09.2008 was issued by the District Programme Coordinator/Chief Development Officer, Siddharth Nagar for purchase of 15 numbers of 5 KVA Generators for operation of MANAGEMENT INFORMATION SERVICES (MIS) under National Rural Employment Guarantee Programme at Block Development Offices and District Office, Siddharth Nagar. He further submitted that in the year 2008, the petitioner was posted as Senior Treasury Officer, Siddharth Nagar and he had participated in the tender opening committee for purchase of 15 Generators and the minutes of the committee were properly drawn. He further submitted that the tender committee has not been involved in the examination of fresh proposal and rate given by the firms as well as approval and sanction for purchase of generators.
Learned counsel for the petitioner has further submitted that a writ petition No.12802(M/B) of 2011 (Sachchidanand @ Sachchey vs. State of U.P. & Others) was filed before this Court, in which orders dated 31.01.2014 and 12.11.2014 were passed, and in pursuance of the direction given by this Court, a preliminary inquiry was conducted regarding the purchase of generators/computers. Thereafter, F.I.R. No. RC0062015A0017, under Sections 120-B, 420, 406, 409 I.P.C. and Sections 13(2) r/w 13(1)(d) of Prevention of Corruption Act, P.S. C.B.I./A.C.B./Lucknow, District Lucknow was lodged on 30.11.2015 against the guilty persons and the petitioner was not named in the F.I.R. He further submitted that in the preliminary inquiry report, no role of the petitioner was found in purchasing the said generators as her role was only of participating in the meeting, being a member of the tender committee. The C.B.I. concluded the investigation on the basis of conjectures and surmises and requested for sanction to prosecute the petitioner, and the impugned sanction order was passed in utter violation of the guidelines issued by the Central Vigilance Commission in Circular No.08/05/2015 vide order dated 25.05.2015.
Learned counsel for the petitioner has further submitted that the guidelines framed by the Hon'ble Supreme Court in the case of C.B.I. vs. Ashok Kumar Aggarwal reported in 2013 SCC OnLine SC 1029 were also ignored, and there is no evidence against the petitioner, which may prove any allegation against the petitioner for the alleged offences. He also submitted that the prosecuting agency obtained the sanction by pick and choose method and with respect to the then District Magistrate, Siddharth Nagar, who was the Chairman of the Committee, no prosecution sanction has been granted till date. He also submitted that the petitioner made representations dated 22.12.2017 & 22.01.2018 to the State Government apprising the correct facts about the entire case, but while passing the impugned prosecution sanction order dated 23.03.2018, not even a single word of the petitioner's representation was considered, therefore, the impugned order is liable to be set aside.
In response to the arguments placed by the learned counsel for the petitioner, learned A.G.A. has placed reliance on the Short Counter Affidavit filed by Shri Ram Bhawani Singh, Joint Director, Directorate of Treasuries, U.P., Lucknow and submitted that criminal prosecution has been recommended by the C.B.I. against, 1) Shri Ramakant Shukla, the then District Magistrate, Siddarth Nagar (since retired); 2) Shri Tahir Iqbal, the then CDO, Siddharth Nagar; 3) Shri Suresh Chandra, the then DDO/PD, Siddarth Nagar; 4) Shri Kashi Ram, the then Executive Engineer, PWD, Siddarth Nagar; 5) Shri Naseem Ahmed, District Informatics Officer, NIC, Siddharth Nagar; 6) Shri Lallan Ram, the then Executive Engineer, Vidyut Vitaran Khand, UP Power Corporation Ltd., Siddharth Nagar; 7) Mrs. Gomati Dwivedi (petitioner), the then Senior Treasury Officer, Siddharth Nagar; 8) Shri Ved Prakash Shrivastava, Proprietor, M/s Shubham Traders and 9) M/s Shubham Traders through its proprietor, for offences under Sections 409, 420 I.P.C. r/w 120-B I.P.C. and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act. He further submitted that the sanction order has been passed against Shri Lallan Ram, Shri Naseem Ahmed and the petitioner and process is going on for grant of sanction in relation to the rest of the accused persons, and also informed that so far as the prosecution sanction against Shri Ramakant Shukla, then District Magistrate, Siddarth Nagar is concerned, the same is pending at the level of Department of Appointment and Personnel.
Learned A.G.A. has further submitted that under direction of this Hon'ble Court passed in writ petition No.12802(M/B) of 2011 (supra), a preliminary inquiry was conducted by the C.B.I. and thereafter, the F.I.R. was lodged by the Inspector of Police, P.S. C.B.I./A.C.B./Lucknow, District Lucknow and after detailed investigation, the involvement of the petitioner was found in the present case and a request was made to the State Government for granting of sanction of prosecution of the petitioner along with others. He also submitted that the guidelines of the Circular No.08/05/2015 dated 25.05.2015 passed by the Central Vigilance Commission was complied with and the entire material collected during the investigation was placed before the sanctioning authority, which is reflected from the order itself, therefore, there is no illegality in the impugned prosecution sanction order. He also submitted that it is well settled that at the time of review of genuineness of impugned prosecution sanction order, this Court will not examine the facts of the case like the appellate authority and the petitioner shall apprise all the facts before the trial court at the appropriate stage, therefore, the present petition is liable to be dismissed.
Considering the arguments of learned counsel for the parties as well as learned A.G.A. and going through the records, it is undisputed that a fact finding inquiry was conducted in compliance of the order passed by the this Court in writ petition No.12802(M/B) of 2011 (supra) and thereafter, F.I.R. No. RC0062015A0017, under Sections 120-B, 406, 409, 420 I.P.C. and Sections 13(2) r/w 13(1)(d) of Prevention of Corruption Act was lodged by the Inspector of C.B.I. at Police Station C.B.I./A.C.B./Lucknow, District Lucknow on 30.11.2015, and after the investigation was concluded, involvement of the petitioner was found on the basis of evidences collected by the Investigating Officer, and the records related to the investigation were placed before the appointing authority, which is reflected from the paragraph No.3 of the impugned sanction order itself, which satisfied the appointing authority to prosecute the petitioner and the sanction was granted.
As it is well settled that the grant of sanction is an administrative act. The purpose is to protect the public servant from harassment by frivolous or vexatious prosecution and not to shield the corrupt. The question of giving opportunity to the public servant at that stage does not arise. The sanctioning authority has only to see whether the facts would prima facie constitute the offence.
In view of the above, the present petition is hereby dismissed.
The Chief Secretary of the State of U.P. is directed to look into the matter for grant of sanction in relation to the rest of the accused persons.
Office is directed to communicate this order to the authority concerned, forthwith.
(Rajeev Singh,J.) (Ramesh Sinha,J.) Order Date :- 19.2.2021 S. Shivhare