Hon'ble Mrs. Saroj Yadav,J.
This is a bunch of writ petitions filed under Article 226 of the Constitution of India challenging the sanction order dated 16.12.2019 and consequential orders of communication issued thereafter in respect to F.I.R. registered at Crime No. 1 of 2014 dated 1.1.2014 under sections 409, 120-B I.P.C. and section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act 1988. All these writ petitions involve same issue, therefore, they were heard together and are being decided by a common judgment. For convenience Writ Petition No. 25382 (MB) of 2020, Rajeev Kumar Singh v. State of U.P. & ors., has been treated as the leading writ petition.
Petitioners of the aforesaid petitions pray as under :
"this Hon'ble Court may be pleased to issue -
(a) a writ, order or direction in the nature of certiorari for quashing of the Prosecution Sanction Order dated 16.12.2019 signed on 14.12.2019 by the Managing Director UPRNN and the Communication Letter dated 16.12.2019 actually signed on 13.12.2019 against the petitioner contained as Annexure No. 2 to this Writ Petition arising out of FIR registered at Crime No. 1/2014 dated 01.01.2014, under sections: 409, 120-B IPC and section 13(1)(d) read with 13(2) of Prevention of Corruption Act 1988 after summoning the records from the authority competent.
(b) a writ order or direction so as to decide this petition as per the order and direction passed by Coordinate Bench of this Hon'ble Court in Writ Petition No. 792/(MB) of 2020 (Ajay Kumar and another v. State of UP and others) in the facts and circumstances of this petition and the same benefit may kindly be extended to the petitioner also."
At the very outset learned counsel for the petitioner submitted that Writ Petition No. 792 (MB) of 2020, Ajai Kumar & ors. V. State of U.P. & ors., involving similar issue and pertaining to the same crime number, albeit, in respect to other accused, has been decided by this Court vide judgment dated 18.6.2020 wherein, without entering into validity of the sanction order certain directions have been issued to complete the investigation with a further direction to the Court below to consider objections to the validity of sanction and till such decision is taken by the Court below regarding validity of sanction for prosecution against the said petitioners, no coercive measures were to be taken against them. He prays for similar relief.
However, learned A.G.A. submits that in the said petition the sanction order dated 16.12.2019 was not under challenge, instead an order communicating the same had been challenged. Moreover, he says that a writ petition under Article 226 of the Constitution of India is not maintainable against such a sanction order as its validity can be seen during trial as has been held by Hon'ble the Supreme Court in a catena of decisions and by a Division Bench of this Court in Satya Pal Singh & ors.
In response, learned counsel for the petitioner invited attention of the Court to interim orders passed in similar cases pertaining to same crime number relating to co-accused on 8.12.2020 in Writ Petition Nos. 16340 (MB) of 2020, Chhatra Pal Singh(C.P. Singh) v. State of U.P. & ors., and 19087 (MB) of 2020, Rajeev Garg v. State of U.P. & ors., wherein, referring to the decision in Ajay Kumar's case, protection has been given in terms thereof.
Learned counsel for the petitioner fairly admitted to the fact that in all those cases which are referred hereinabove investigation had already been completed, yet under some misconception directions were issued for completion of investigation. The sanction order in fact had been issued after completion of investigation.
Learned counsel for the petitioner was further confronted as to the maintainability of this writ petition in view of various pronouncements of the Supreme Court wherein a distinction has been made between absence of sanction which can be raised at a pre-cognizance stage before the appropriate court and question of validity of sanction for prosecution which can be raised during trial, meaning thereby, a writ petition in this regard would not be maintainable. Learned counsel submitted that in the facts of the present case petitioner had not been arrested during investigation since the lodging of the F.I.R. in 2014 and even now merely because sanction has been granted, even if the investigating agency is proceeding to submit a chargesheet, as is the case, there is no mandatory necessity that the petitioner is required to be arrested and produced before the Court while submitting the chargesheet, whereas in fact this is exactly what they are proceeding to do. In this regard he relied upon a decision of Hon'ble the Supreme Court reported in 2015 (6) SCC 716, State of U.P. v. Anil Kumar Sharma, wherein a judgment of this very court making it mandatory for the Police/Investigating Agency to produce the accused while submitting chargesheet in the court was set aside, inter alia, with the observations that there is no requirement under section 173 for the investigating officer to produce the accused alongwith the chargesheet. However, on being asked as to whether section 173 or the decision of the Supreme Court in the case of Anil Kumar Sharma (supra) prohibits the Police on its own from arresting the accused and producing before the Trial Court so as to expedite the proceedings, learned counsel for the petitioner fairly submitted that it did not.
Learned counsel for the petitioner was asked as to whether there is a difference in the High Court passing a dictum mandatorily requiring the accused to be arrested and produced before the court at the time of submission of a chargesheet and the Police on its own considering the relevant facts arresting and producing him, the learned counsel admitted to the distinction in this regard, however, he submitted that there is no justification for the arrest of the petitioner accused at this stage when he has not been arrested in the past six years, especially as, when the court below issues the summons or warrants, as the case may be, he will either appear on his own or be produced by the Police. On being asked as to the remedy under section 438 Cr.P.C. being available in this regard, learned counsel referred to practical difficulties in this regard and the possibility of arrest before the remedy could be availed.
He also submitted that the challenge to the sanction order was on the ground of non-application of mind to relevant factors and materials.
As the petitioner is also being prosecuted under the Prevention of Corruption Act 1988, it is relevant to refer to section 19 thereof which reads as under :
"19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, save as otherwise provided in the Lokpal and Lokayuktas Act, 2013--
(a) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless--
(i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and
(ii) the court has not dismissed the complaint under section 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:
Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant:
Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:
Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month:
Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary.
Explanation.--For the purposes of sub-section (1), the expression "public servant" includes such person--
(a) who has ceased to hold the office during which the offence is alleged to have been committed; or
(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.] (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) 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 or 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;
(b) no court shall stay the proceedings under this 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;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) 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.
Explanation.--For the purposes of this section,--
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
We have gone through the decision of a Coordinate Bench of this Court in the case of co-accused in Writ Petition No. 792 (MB) of 2020, Ajai Kumar & Another v. State of U.P. & ors., decided on 18.6.2020. In the said case a consequential order dated 31.8.2019 was under challenge, whereas the sanction had been granted by the order dated 16.12.2019 which was not challenged. In the present case order dated 16.12.2019 has been challenged.
As stated by the learned A.G.A. and as is also mentioned in the interim orders passed in other writ petitions referred hereinabove, the order dated 31.8.2019 which was challenged in the case of Ajai Kumar (supra) was merely a communication of the sanction granted on 16.12.2019/14.12.2019.
Be that as it may, the sanction order dated 16.12.2019 is under challenge in this writ petition. Furthermore, on a perusal of the judgment dated 18.6.2020 referred hererinabove we find that though the Coordinate Bench of this Court has extensively dealt with the purpose and object of sanction as also the stage at which its validity can be challenged during trial, no finding or opinion has been expressed as to whether a writ petition under Article 226 of the Constitution of India would be maintainable in view of various decisions referred in the said judgment itself and even otherwise rendered by Hon'ble the Supreme Court and this Court wherein it has been held that such a challenge to validity of sanction can be raised before the Trial Court, although, the Court was obviously not inclined to entertain the writ petition on the question of validity of sanction as it directed the Trial Court to consider it, however, while not entering into the question of validity of sanction and disposing off the writ petition gave protection to the petitioner to the effect that "till the decision is taken by the competent court/Court of Magistrate in regard to the sanction of prosecution against the petitioner that whether the same is valid or not, no coercive measures shall be taken against him." Now the question before this Court is that once the writ petition challenging the validity of sanction is not maintainable under Article 226 of the Constitution of India in view of decisions of Hon'ble the Supreme Court and this Court wherein it has been held that such a challenge can be raised and should be raised before the Trial Court, is it within the domain of this Court to grant some relief while not entertaining the writ petition ? It is the limited protection granted as aforesaid which has created a piquant situation before this Bench where, on the one hand, we are bound to follow the decision of Hon'ble the Supreme Court and, on the other hand, petitioner claims similar benefit on the ground of parity as they are accused in the same crime number as the petitioners in Ajay Kumar's case and in the subsequent two writ petitions referred hereinabove who have also been granted such relief.
Before proceeding further we would like to make a mention that the only question which arises before us is validity of sanction. Now, can it be seen by us at this stage or it is to be seen by the Trial Court at the appropriate stage, is the moot point. A coordinate Bench of this Court in the case of Satya Pal Singh & ors. v. State of U.P. & ors. (Writ Petition No. 7806 (MB) of 2009) and connected matters had the occasion to consider the question as to whether a proposed accused under Article 226 of the Constitution of India can challenge the grant of sanction to prosecute him before institution of the prosecution in a competent Court. Considering the relevant provisions of law and various provisions of this Court and the Supreme Court of India the Division Bench concluded as under :
"38. In view of above discussion, this Court is of the firm view that (1) grant of sanction order to prosecute the accused under the statute is not an administrative action of the competent authority. It would be a statutory function of the competent authority and subject to challenge in the proceedings launched against the accused in accordance with the procedure established under law.
(2) An accused cannot be allowed to challenge the order granting sanction to prosecute at pre-cognizance stage. As the same has no locus as held in Smt. Nagawwa vs Veeranna Shivallngappa Konjalgi and others; MANU/SC/0173/1976; (1976) 3 SCC 736 and Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters Private Limited and another; MANU/SC/8476/2008 : (2009) 2 SCC 363.
39. In view of above, this bunch of writ petition is not maintainable and the same are liable to be dismissed. The interim orders passed in the writ petitions are also liable to be vacated, therefore, the interim orders passed in the writ petitions stand vacated.
40. Accordingly, all the writ petitions are dismissed."
It categorically held that such accused cannot be allowed to challenge the order granting sanction to prosecute at pre-cognizance stage.
When the above quoted decision was rendered, there was no provision for grant of anticipatory bail in the State of U.P., however, now there is such a provision.
We may also refer to a decision of the Supreme Court of India reported in (2012) 1 SCC 532, Dinesh Kumar v. Airport Authority of India wherein it has held as under :
"8. The provisions contained in Sections 19(1), (2), (3) and (4) of the P.C. Act came up for consideration before this Court in Parkash Singh Badal (2007) 1 SCC 1. In paras 47 and 48 of the judgment, the Court held as follows (SCC p. 37) :
"47: The sanctioning authority is not required to separately specify each of the offences 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 generalised guidelines in that regard.
48: The sanction in the instant case related to the offences relatable to the 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."
9. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Parkash Singh Badal (supra) 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 (supra), this Court referred to invalidity of sanction on account of non- application of mind.
10. 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 (supra), the challenge to which can always be raised in the course of trial."
We may also refer to another decision of the Supreme Court in the case of State of M.P. v. Dr. Krishna Chandra Saksena, (1996) 11 SCC 439 :-
"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."
In view of the above decisions, we have absolutely no doubt that this petition challenging the order dated 16.12.2019 sanctioning prosecution against the petitioner is not maintainable and is not liable to be entertained, however, as stated earlier now the other aspect of the matter is that in similar cases relating to same crime number Coordinate Benches have granted some protection as already referred hereinabove to the co-accused till validity of sanction is decided by the trial court. If the petition itself is not liable to be entertained then whether while dismissing the same, irrespective of the fact that as to whether we mention it as a disposal or dismissal of the petition, any relief, if so, to what extent, can be granted to the petitioner herein, especially as, since June 2018 the provision for grant of anticipatory bail under section 438 Cr.P.C. has come into force in the State of U.P. which can be applied and considered at any stage, certainly at a stage where no chargesheet has been filed as yet as in this case and appropriate relief can be sought. Question is whether this Court should grant a protection to the effect that no coercive measures should be taken against the petitioner till the trial court decides the validity of sanction, at this stage ? Now the fact is that the chargsheet has not been filed as yet. We are at the pre-cognizance stage. The law is very clear that where it is not a case of absence of sanction, but a case of validity of sanction, the High Court under Article 226 of the Constitution of India would not take cognizance of the matter before the pre-cognizance stage. In fact, even thereafter the remedy may not lie under under Article 226 of the Constitution of India, but may be under section 482 Cr.P.C. at the appropriate stage, therefore, ordinarily while dismissing the petitions we would not grant such relief, nevertheless, considering the piquant situation which has already been noticed by us, as, in the same crime number this Court has granted protection, as an exceptionally compelling measure which is not to be treated as a precedent, we provide that for 3 weeks from the pronouncement of the judgment petitioner(s) shall not be arrested in Case Crime No. 1 of 2014 referred hereinabove, during which, it shall be open for them to apply for anticipatory bail under section 438 which may be considered by the Court concerned as per law, but, this protection shall cease immediately on expiry of 3 weeks as aforesaid. Thereafter, the law shall take its own course. Subject to these observations and leaving it open for the petitioner to raise the question of validity of sanction in the event a chargesheet is filed before a Court of criminal jurisdiction, at the appropriate stage, we dismiss these writ petitions, but only for the aforesaid reason without entering into the merits of the sanction order impugned herein.
(Mrs. Saroj Yadav, J.) (Rajan Roy, J.) Order Date :- 21.01.2021/A.Nigam