Hon'ble Mrs. Saroj Yadav,J.
(ORAL) (per :- Saroj Yadav, J. for the Bench)
1. By means of the present writ petition, the petitioner has challenged the impugned order dated 28.05.2018 issued by the Secretary to His Excellency the Governor, whereby sanction has been accorded while exercising power vested under Section 197 of the Code of Criminal Procedure (in short 'Cr.P.C.') read with Section 19 of the Prevention of Corruption Act, 1988 to prosecute the petitioner under Section 120B of the Indian Penal Code (in short 'IPC') and Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (in short 'P.C. Act'). The impugned order has been issued by the Director, Ayurvedic Services, U.P. Lucknow vide Letter No. 4896(I)/18A-397/16/Adhi. dated 19.06.2019.
2. Heard Sri Rajesh Chandra Mishra, learned counsel for the petitioner and Sri S.P. Singh, learned A.G.A. for the State.
3. Learned counsel for the petitioner argued that impugned order according sanction to prosecute the petitioner is a composite order whereby the competent authority has accorded sanction to prosecute several persons without there being any specific description about the petitioner. It is not there in the sanction-order, what material has been placed before him and what material he perused from which he got convinced himself to accord the sanction to prosecute the petitioner under Sections 409, 420, 465, 467, 471, 477, 120-B IPC and Section 13(1)(d) and 13(2) of the P.C. Act. The sanctioning authority while granting sanction ought to have recorded their satisfaction that on what basis he arrived at the conclusion to grant sanction. It is also argued that it is incumbent upon the competent authority to apply his mind independently and record satisfaction of being satisfied from the material collected during the course of investigating which has been placed before him. In the present matter, no such basis has been disclosed for according prosecution sanction. Hence, impugned sanction should be quashed. Learned counsel for the petitioner relied upon the decision of the Hon'ble Apex Court in the case of Mansukhlal Vithaldas Chauhan Versus State of Gujarat (1997) 7 Supreme Court Cases 622.
4. Contrary to it, learned A.G.A. argued that validity of sanction can be raised before the Trial Court during trial. Learned A.G.A. referred paragraph 9 of the counter affidavit wherein it has been stated that "It is relevant to mention here that a financial scam was committed by the department of Ayurvedic and Unani Services, U.P., which was spread over throughout the State and every department connected with the Ayurvedic and Unani Services were involved in the financial scam. After registration of the FIR, the investigation was conducted and petitioner was interrogated by the Prosecuting Agency on 16.01.2007 and from the evidence which had been collected against him, it clearly establishes that he alongwith other co-accused was involved in spending the public money exceeding the budget, which was sanctioned by the department, in this way, the petitioner and other co-accused had misappropriated the public money and they were also not able to give any evidence, justification and explanation for excess expenditure. Even accused was not able to show any entry on the contingency register and vouchers pertaining to excess expenditure, when explanation was called, he had stated that Class IV employee Surendra Singh Negi was responsible. The Prosecuting Agency had collected ample evidence against the petitioner and other co-accused."
Learned A.G.A. further submitted that prosecution sanction cannot be quashed on th ground of delay. Further more, liberty lies with the petitioner to raise all his issues relating to sanction during the trial. Hence, this writ petition should be dismissed.
5. Considered the rival submission raised by the learned counsel for the parties, perused the record and the case laws cited by the learned counsel for the petitioner.
The Hon'ble Apex Court in the case of Mansukhlal Vithaldas Chauhan Versus State of Gujarat (Supra) (cited by the petitioner) in this regard has observed as under:-
17. Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government Servants against frivolous prosecutions. ( See: Mohd. Iqbal Ahmed vs. State of Andhra Pradesh, AIR 1979 SC 677). Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for the innocent but not a shield for the guilty.
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 vs. The State of Punjab, 1958 SCR 762 = AIR 1958 SC 124; State of Bihar & Anr. vs. P.P. Sharma, 1991 Cri.L.J. 1438 (SC)).
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 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
22. Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words "shall" or "must". But this is not conclusive as "shall" and "must" have, sometimes, been interpreted as "may" . What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the Statute in which the 'duty" has been set out. Even if the "Duty" is not set out clearly and specially in the Statute, it may be implied as co-relative to a "Right".
23. In the performance of this duty, if the authority in whom the discretion is vested under the Statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the orders and issue a mandamus to that authority to exercise its own discretion."
6. Perusal of the above judgment shows that in that matter, the sanction was accorded by the sanctioning authority under the direction of the High Court. In such a situation, the Hon'ble Apex Court held that "Secretary being the head of the Department stated on oath that he had granted the sanction, particularly as the mandamus was directed to him and he had to comply with that direction, Deputy Secretary, who actually issued the order of sanction, had signed it and, therefore, he owned the sanction and stated that he had sanctioned the prosecution. Both tried to exhibit that they had faithfully obeyed the mandamus issued by the High Court and attempted to save their skin, destroying, in the process, the legality and validity of the sanction which constituted the basis of appellant's prosecution with the consequence that whole proceedings stood void ab initio."
7. The situation of the present matter is different. In the present matter the petitioner has no where stated that the Sanctioning Authority has acted under the direction or pressure of somebody. Hon'ble Apex Court in the case of Prakash Singh Badal and Another Versus State of Punjab and others, AIR 2007 SC 1274, in this regard has held as under:-
"The sanctioning authority is not required to separately specify each of the offence against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalized guidelines in that regard.
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."
8. Further in Dinesh Kumar Vs. Chairman, Airport Authority of India, Hon'ble Apex Court has held as under:-
"While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal expressed in no uncertain terms that the absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists, but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, in Parkash Singh Badal, this Court referred to invalidity of sanction on account of non- application of mind. 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, the challenge to which can always be raised in the course of trial."
9. Again C.B.I. Versus Ashok Kumar Aggarwal, the Hon'ble Apex Court has held as under:-
"46. The most relevant issue involved herein is as at what stage the validity of sanction order can be raised. The issue is no more res- integra. In Dinesh Kumar v. Chairman Airport Authority of India & Anr., AIR 2012 SC 858, this Court dealt with an issue and placing reliance upon the judgment in Parkash Singh Badal & Anr. v. State of Punjab & Ors., AIR 2007 SC 1274, came to the conclusion 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..."
47. Undoubtedly, the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the stage of inquiry or at pretrial stage.
10. It is clear from the above decisions of the Hon'ble Apex Court that the validity of sanction should be examined during the trial, hence in the light of the decisions laid down by the Hon'ble Apex Court, the relief prayed by the petitioner cannot be granted.
11. In view of the above, this writ petition is dismissed.