Heard Sri Mohd. Mansoor Ahmad, learned Counsel for the petitioners and Sri Umesh Verma, Additional Government Advocate and also perused the record produced by the Vigilance Department of the State Government.
Through the afore-captioned writ petitions under Article 226 of the Constitution of India, petitioners have questioned the validity of the orders of sanction granted for prosecuting them under various sections of the Indian Penal Code and the Prevention of Corruption Act. The impugned orders passed under Section 197 of Indian Penal Code and Section 19 of Prevention of Corruption Act have been assailed inter-alia on the ground that the same have been passed without application of mind and are discriminatory in nature.
Brief facts giving rise to the filing of above writ petitions, are that in the year 1991-92, Kanpur Development Authority, Kanpur decided to carry out the work of cleaning of Sewer lines and repair of manholes and chambers at Juhi, W-Block, Kanpur Nagar. For this purpose, an estimate of Rs.2,11,828.00 was prepared by Uma Kant Tiwari, Junior Engineer on 14.7.1991. This estimate was based upon the 1989 Schedule Rates of P.W.D.
The aforesaid estimate was checked by Sri G.P. Gupta, Assistant Engineer on 16.7.1991, by Sri V.K. Tiwari, Executive Engineer on 17.7.1991, and thereafter the proposal was forwarded to Sri O.P. Arya, Chief Engineer of the Kanpur Development Authority. The Chief Engineer considered the estimate and sent the same along with his recommendations to the Accounts Section of the Kanpur Development Authority. Sri S.K. Awasthi, Senior Accounts Officer and one Sri Shiv Raj Shukla, Chief Accounts Officer, inspected and checked the estimate and thereafter, it was forwarded to the Estimate Committee comprising concerned Executive Engineer, Chief Engineer, Chief Accounts Officer and the Secretary of the Development Authority.
The Estimate Committee, after verification of the estimate, sent its recommendation to the Vice-Chairman of the Authority for his approval as the financial powers were vested with Vice-Chairman. After obtaining the requisite permission from the different departments of the Kanpur Development Authority, the tenders were published for the repair work on 10.9.1991 in the local dailies.
Pursuant to the advertisement, five tenders were received by the Kanpur Development Authority and since the tender of M/s Kumar Traders was the lowest being 35.20% above the estimate, the contract for carrying out the work of cleaning of Sewer lines and repair of manholes and chambers at Juhi, W-Block, Kanpur Nagar was awarded to the aforesaid firm. It is said that the work of repair of Sewer lines of Chambers including manholes were commenced by M/s Kumar Traders on 18.12.1991 and it came to an end on 17.3.1992.
In the year 1995-96, a complaint was made to the Lok Ayukt, Uttar Pradesh by a contractor, alleging therein that the Officers of the Kanpur Development Authority in collusion with M/s Kumar Traders have extended undue favour to certain other contractors. On the basis of said complaint, an inquiry was conducted by the Lok Ayukt and on completion of inquiry, Lok Ayukt found that certain officers of the Kanpur Development Authority were responsible for the alleged act of omission and commission.
On receipt of the report of Lok Ayukt, the State Government referred the matter to the Vigilance Department, Kanpur Sector. On 30.5.1998, an F.I.R. relating to Case Crime No.146 of 1998, under Sections 409, 467, 468, 471, 420, 218, 120-B I.P.C. and Sections 13 (1) (C) read with Section 13 (2), 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 at police station Swaroop Nagar, District Kanpur Nagar was registered by Sri Ramesh Chandra Vidyarthi, Inspector, U.P. Vigilance Establishment, Kanpur against Sri Uma Kant Dwivedi, Junior Engineer, Sri G.P. Gupta, Assistant Engineer, Sri V.K. Tiwari, Executive Engineer, Sri O.P. Arya, Chief Engineer and Sri Shiv Raj Shukla, Chief Account Officer of Kanpur Development Authority.
Pursuant to the aforesaid FIR, investigation was carried out by the Vigilance Department. During the course of investigation, a report from the Technical Expert in respect of the matter was called for. Thereafter, the Technical Expert, on verification of the site, submitted a report, stating therein that a total loss of Rs.14,683.76 was caused to the Kanpur Development Authority in the matter. Thereafter, 23 officers were accused for causing a loss of the above amount for their personal gain.
During the investigation, the Joint Secretary, Vigilance Department, on considering the reports dated 1.2.1999, 20.12.1999 and 14.6.2000, recommended the Principal Secretary, Awas Vibhag, State of U.P., vide letter dated 18.5.2002, that only ten officers, namely, S/Sri Uma Kant Dwivedi, R.K. Singh, Shyam Narain, G.P. Gupta, Hurmat Ali, R.P. Yadav, V.K. Tiwari and Sri A.P. Singh, Salauddin Ahmad, O.P. Arya and contractor Krishna Kumar Gupta be prosecuted in respect of Case Crime No. 146-D of 1998 and remaining 12 officers, namely, Sri Vinod Kumar Srivastava, Sri P.N. Parasar, Sri B.P. Maurya, Sri S.K. Awasthi, Mahendra Prasad, Someshwar Dayal, Shiv Ram Shukla, B.B. Singh, A. K. Upadhyaya, Sri R.N. Dwivedi, Hausla Prasad Verma and G.P. Verma be awarded minor punishment. Subsequently, the State Government, vide order dated 26.2.2008, granted sanction for prosecution of the petitioners. Hence the instant writ petition.
Sri Mansoor, learned Counsel for the petitioners submits that the procedure for preparation of estimate is that an estimate is prepared by the Junior Engineer, which is subsequetly checked by the Assistant Engineer and Executive Engineer. The estimate so prepared is again scrutinized and checked by Assistant Engineer (Technical) who is attached with the Chief Engineer. Thereafter the Chief Engineer sends the same with his comments to the Account Department, where it is again thoroughly scrutinized by the Account Department and thereafter the same is sent to the Tender Committee, which after due deliberation and discussion sends it to the Vice-Chairman along with its recommendation. On the basis of the said recommendations, the approval is granted by the Vice-Chairman as the financial powers vest with the Vice-Chancellor.
It has been vehemently argued that the petitioners have neither participated in the preparation of the estimate or the justification, nor in inviting tenders. They have also neither fixed the price of the contract nor did they accept the tenders which were floated. Furthermore, the petitioners neither issued any Work Order nor any contract was entered into and signed by them on behalf of Kanpur Development Authority and M/s Kumar Traders. Aforesaid facts have been admitted by the opposite parties in short counter affidavt dated 19.5.2010.
Sri Mansoor further submits that the Lok Ayukt had not found the petitioners guilty. He submits that Investigating Officer was of the opinion that all the accused persons be prosecuted but the Vigilance Department, in its report dated 18.5.2002, contained as Annexure-3 to the writ petition, has stated that only ten officers be prosecuted and remaining 12 officers, who too were found involved in the case, be only awarded a minor punishment. This shows that it is a clear case of arbitrariness and discrimination by the State Government in prosecuting the officers and letting of its favoured officers. He submits that Vigilence Department was not competent and did not have any authority to recommend or choose as to which officers should be prosecuted or which officers should be let off by only awarding them a minor penalty.
Sri Mansoor has next submitted that there cannot be pick and choose method in prosecution of the officers when the complicity of all the officers was found by the Vigilance department, which had sought sanction for their prosecution in its report dated 1.2.1999. He submits that all 22 officers were charged with causing a loss of Rs.14,683.76 to the Kanpur Development Authority. If the State Government was of the opinion that minor penalty should be awarded to some officers and they should not be criminally prosecuted, then, the petitioners are also entitled to the same benefit and their matter is liable to be reconsidered. He submits that the State cannot carry out selective and discriminatory prosecution amongst its officers and cannot adopt pick and choose method, otherwise the proceedings would be vitiated in law. Merely because the officers at one point of time were posted at the Kanpur Development Authority cannot be a reason for their prosecution when the decision which every officer has taken was a collective decision and not an individual decision. In support of his submission, reliance has been placed upon the judgment of the Apex Court rendered in the cases of State of Madhya Pradesh Versus Sheetla Sahai and others [2009 (8) SCC 617] and V. Venkata Subbarao Versus State Represented by Inspector of Police, A.P. [(2006) 13 SCC 305].
Elaborating his arguments, Sri Mansoor further contended that the sanction for prosecution of the petitioners has been obtained by placing the wrong facts before the sanctioning authority, who was informed that an FIR was lodged against the petitioners at police station Swaroop Nagar, Kanpur Nagar under Sections 409, 467, 468, 471, 420, 218, 120-B IPC read with Sections 13 (1)(c), 13(2) and 13(1)(d) of the Prevention of Corruption Act, whereas correct fact is that no FIR was lodged against the petitioners as the petitioners were not named in the FIR.
It has also been vehemently argued on behalf of the petitioners that the charge-sheet was submitted by the Investigating Officer on 22.1.2009, wherein it has been indicated that only a loss of ` 14,683.76 has been caused to the Kanpur Development Authority, which is a negligible amount and has no significance in such a huge repair work. He submits that there is an inordinate delay in completing the investigation, granting sanction for prosecution and commencement of trial. The F.I.R. in the present matter was lodged on 30.5.1998. About 12 years have elapsed and now the Court has taken cognizance on the basis of the said sanction. He further submits that no show cause notice or departmental proceedings had ever been initiated against the petitioners or any other officer in the matter so as to assess as to which officer was responsible in the matter. Not even minor penalty has been awarded to those officers who were let off with a recommendation that they may be awarded minor penalty. It has been pointed out that petitioners have no previous criminal history and have already suffered mentally and emotionally during this period. The action of the respondents of causing undue delay is violative of Article 21 of the Constitution of India and the entire proceedings are liable to be quashed on the ground of delay alone. In support of the aforesaid submissions, Counsel for the petitioners has relied upon the judgment of the Apex Court in the case of Vakil Prasad Singh Versus State of Bihar [(2009) 3 SCC 355]. Summing up his arguments, Counsel for the petitioners submitted that some of the petitioners had attained the age of superannuation more than ten years ago and grant of sanction at this belated stage is too harsh and for the reasons aforesaid the impugned orders cannot be allowed to stand and are liable to be quashed.
Refuting the submissions of Sri Mansoor, learned Counsel for the petitioners, Sri Umesh Verma, learned Additional Government Advocate submits that pursuant to the report dated 1.2.1999 and supplementary reports dated 20.12.1999 and 14.6.2000, sanction of prosecution against petitioners and eleven other persons was granted by the State Government and against remaining officers/employees, action of departmental proceedings was accorded, by the order dated 18.5.2002. He submits that sanction order has been passed by the competent authority under the garb and powers vested in him to grant sanction under Section 197 Criminal Procedure Code and Section 19 of the Prevention of Corruption Act and after careful examination and being subjectively satisfied on the basis of material on record. He also added that there is no discrimination in according sanction as alleged by the petitioners.
In the case of Satya Narayan Sharma vs. State of Rajasthan reported in (2001) 8 SCC 607, the Apex Court held as under:-
"I am in respectful agreement with the judgment drafted by Brother Variava, J. When Parliament imposed an undiluted ban against granting stay of any proceedings involving an offence under the Prevention of Corruption Act, 1988 (for short 'the Act') on any ground whatsoever, no court shall circumvent the said ban through any means. The reasons which prompted Parliament to divest all the courts in India of the power to stay the proceedings in the trial courts involving any such offence, is to foreclose even the possible chance of delaying such trials on account of any party to such proceedings raising any question before the High Court during the pendency of trial proceedings."
In another case, namely, Parkash Singh Badal and another vs. State of Punjab and others reported in (2007) 1 SCC (Cri) 193 the Apex Court in paragraph 47 and 48 of the report opined as under:-
"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 generalized 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."
The apex Court has settled the law to the effect that it being prerogative of the sanctioning authority to assess and evaluate documents and materials placed before him and it shall not be open to the courts to again reevaluate the same. It comes out that the authority concerned has applied its mind and evaluated the documents and materials placed before him. Therefore, the case laws relied upon by the petitioner's counsel are of no avail to him.
We are also unable to accept the assertion of the petitioners' Counsel that the petitioners have been subjected to discrimination as sanction has been accorded in respect of only few persons. As a matter of fact, after examining the material on record, which was produced before us, the authorities came to the conclusion that the persons whose role was supervisory in nature, they can be responsible for negligence and as such they should be subject to disciplinary proceedings by the department but the persons who were directly involved in execution of works, they shall be prosecuted for committing irregularities and financial loss to the public exchequer.
The 41st Report of the Law Commission of , inter alia observed thus:-
"The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of expediency of prosecuting any public servant".
This view has come to be accepted by the Supreme Court in various cases including Anjani Kumar v. State of Bihar and Anr., Criminal Appeal No. 413 of 2000.
Ordinarily, satisfaction recorded by the sanctioning authority is not open to judicial review under extraordinary remedy of Article 226 of the Constitution of India. It is settled law that the satisfaction recorded by the competent authority ordinarily may not be substituted by this Court from its own satisfaction taking contrary view after re-appreciating evidence on record. While exercising the power of judicial review it is for the trial court to look into the matter as observed by a Division Bench of this Court in Writ Petition No. 10503 (M/B) of 2009 'Vishwanath Chaturvedi Vs. Union of India'. Appreciation of evidence collected by the investigating agency is a subject matter on which firstly it is for the trial court to apply its mind.
In view of the above, we do not consider it proper to evaluate the impugned orders (sanction order) at this juncture.
All the writ petitions stand dismissed accordingly. However, it may be observed that it is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance;may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. Therefore, it is provided that it will be open for the petitioners to raise all the pleas which have been raised before this Court, at the trial. In the event such pleas are raised by the petitioners, the Trial Court shall consider the same and pass appropriate orders in accordance with law. It is also made clear that the Trial Court shall not be guided by any of the observations made hereinabove and will be free to form its own independent opinion.
Dated 8.9.2011 Ajit/-