Hon'ble Ramesh Sinha,J.
Despite time being granted under the order of the Court dated 7.8.2012, neither learned AGA nor the counsel for the complainant have been able to produce any further material which could be said to have been collected after the order under Section 173(8) Cr.P.C. was passed on 1.1.2010 which could justify the review of the earlier order of the State Govt. refusing grant to sanction for prosecution..
Sri Umesh Narayan Sharma, learned Senior Advocate, assisted by Sri Chandan Sharma, learned counsel for the petitioner, with reference to the judgement of the High Court in the case of Vijai Bahadur Vs. State of U.P. and Ors, reported in 1988(2) AWC 1289 submits that once an order refusing to sanction the prosecution has been passed, the same cannot be reviewed on some material.
Fact of in short as borne out from the records are as follows.
The petitioner before this Court at the relevant time was posted as Assistant Director, Education (Services 1st), Director of Education, U.P., Allahabad. The complainant respondent No.4 Smt. Sushila Devi at the relevant time was posted in District Library, Banda. She is a member of Scheduled Caste. A complaint was made by Smt. Sushila that her service book and other service records had been taken away by the petitioner during her visit to Banda personally on 15.10.1997. The service record, personal documents and personal records running into 134 pages and two sheets of noting were not returned despite specific letters in that regard having been sent by the complainant. It was further alleged that because of non-return of official documents, she has committed offence. Loss has been caused in the matter of fixation and other benefits to the complainant. On the basis of the aforesaid allegation, she lodged the FIR which was registered as case crime No. 91 of 2002, under Section 409 I.P.C. at Police Station Civil Lines, District Allahabad. After investigation, the matter travelled up to the State Govt. for sanction being granted for the prosecution of the petitioner as she was a Govt. Servant. The State Govt. vide order dated 5.9.2005 refused permission for the prosecution, a copy of the order has been annexed as Annexure-1 to the supplementary affidavit filed by the petitioner.
It may be noticed that the State Govt. vide order dated 30.1.2002 directed that censor entry be recorded in the character roll of the petitioner qua her being negligent and indisciplined. Not being satisfied, the petitioner filed representation against the order of adverse entry.
However, it appears that after more than 6 years of the earlier order refusing to sanction the prosecution, the State Govt. has proceeded to pass a fresh order on 19.10. 2011 granting sanction for the prosecution of the petitioner. It is this order which is under challenge in the present petition.
From the order impugned it appears that the additional facts mentioned for sanctioning prosecution of the petitioner are contained in the paragraphs No. 3 and 4, which read as follows:
" 3- foospuk esa ladfyr ,oa miyC/k djk;s x;s vfHkys[kh; lk{;[email protected][kd lk{;ksa ds fo'ys"k.k ls vfHk;qDr Mk0 Jherh mek xqIrk rRdkyhu lgk;d f'k{kk funs'kd ¼lsok&1½ f'k{kk funs'kky;] m0iz0] bykgkckn ds fo:) ,slk vijk/k djuk ik;k x;k gS tks /kkjk&409 Hkknfo0 o /kkjk&3(1)10 vuqlwfpr [email protected] vR;kpkj fuokj.k vf/kfu;e ds vUrxZr n.Muh; gSA 4- pwWfd mDr vfHkdFku ds laca/k esa izLrqr fd;s x;s leLr lk{;] vfHkys[kksa ,oa vU; lkexzh vkSj izdj.k dh ifjfLFkfr;ksa dks iw.kZ :i ls ,oa lko/kkuhiwoZd ijh{k.k djus ds mijkUr jkT; ljdkj dk ;g lek/kku gks x;k gS fd Mk0 Jherh mek xqIrk rRdkyhu lgk;d f'k{kk funs'kd ¼lsok&1½ f'k{kk funs'kky;] m0iz0] bykgkckn dks mDr iSjk&3 esa of.kZr vijk/k ds fy, l{ke U;k;ky; esa vfHk;ksftr fd;k tk;A^^ In order to ascertain as to what further material had been collected after the Superintendent had submitted his report and directed further investigation vide order dated 1.1.2010, thus, Court not only called for the original records from the State Govt. but also passed an order on 7.8.2012 giving opportunity to the learned AGA to inform the Court as to what further material has been collected after an order under Section 173(8) Cr.P.C. had been passed.
As already noticed above, no fresh material has been collected nor has been brought on record before the Court. The order sanctioning the prosecution is based on the same material which was available to the State Govt. when it passed the order dated 5.9.2005.
In these circumstances, we are of the firm opinion that sanction for prosecution of the petitioner is based on same material which was available earlier. In view of the judgment of this Court in the case of Vijai Bahadur (supra), review on the same material is not legally permissible.
Consequently, the order impugned granting sanction for the prosecution of the petitioner cannot be sustained. The same is quashed. Accordingly, the writ petition is allowed.
Order Date :- 23.8.2012 NS