Hon'ble Rajeev Singh,J.
1. This writ petition has been filed by the petitioner, Syed Shamim Ahmed, challenging the sanction order dated 31.08.2019 passed by the respondent no.3-Managing Director, U.P. Rajkiya Nirman Nigam Ltd., Lucknow, whereby prosecution sanction for prosecuting the petitioner under Sections 409, 120B I.P.C. and Section 13 (1) read with Section 13 (2) of the Prevention of Corruption Act, 1988 has been granted. The petitioner has also challenged the undated report prepared by the Lok Ayukta, U.P. contained in Annexure no.2 to the writ petition and order dated 31.05.2019 contained in Annexure No.3 to the writ petition, whereby open Vigilance Inquiry has been ordered against the petitioner. He has also challenged the investigation of Case Crime No. 01 of 2014, under Sections 409, 120B I.P.C. and Section 13 (1) read with Section 13 (2) of the Prevention of Corruption Act, 1988 so far as it relates to the petitioner.
2. Shorn off unnecessary details, the case of the petitioner as narrated in the writ petition is that the State Government took decision to construct Memorials and Parks in Lucknow and NOIDA. In pursuance of the aforesaid decision, three members committee comprising of Managing Director of U.P. Rajkiya Nirman Nigam Ltd., Lucknow, the Director of Department of Geology and Mining and its Joint Director, was constituted for the purposes of making an inspection in the Ahraura region of District Mirzapur for the purposes of verifying the sufficient quantity of pink stones.
3. The pleadings between the parties have been exchanged.
4. Heard Sri Chandra Bhushan Pandey and Sri Prakash Pandey, learned Counsel for the petitioner and Sri S.P. Singh, learned AGA for the State/respondents no. 1, 2, 4, 6 and 7.
5. According to the petitioner, the Committee so constituted, after making inspection, found that pink sandstones were available in sufficient quantity and, therefore, sandstone required for the construction shall be taken from Mirzapur. Thereafter, a Committee of seven officials including three officers of earlier Committee submitted its report indicating therein that it was not possible to obtain approximately 2.00 Lakhs cubic feet of sandstone from one single area and such supply should be obtained from a number of lease areas and, therefore, it was recommended that a consortium of lease holders should be constituted for the purposes of entering into an agreement regarding supply of sandstones.
6. It has been submitted by the learned counsel for the petitioner that work in question was done upto 2011 and, thereafter, on some complaint, the matter was referred to Lokayukta by the State Government for inquiry into the matter. As per provisions of the Uttar Pradesh Lokayukta & Up-Lokayuktas Act, 1975 (hereafter referred to as "Act, 1975" for the sake of brevity), the inquiry was conducted but without giving any proper opportunity of hearing to the petitioner, the Lokayukta submitted an inquiry report to the State Government vide its letter no. 2115-2012/87/2064 dated 20.05.2013.
7. Learned counsel for the petitioner has submitted that on the basis of the aforesaid inquiry report of Lokayukta, the State Government took a decision for lodging an F.I.R. and also ordered for investigation of the same by the Vigilance Establishment. He submits that no role of the petitioner was found in the inquiry/investigation of the Lokayukta but under the orders of the State Government, an F.I.R. was lodged at Police Station Gomti Nagar, District Lucknow on 01.01.2014, which was registered as Case Crime No. 1 of 2014, under Sections 406/120B I.P.C. and under Section 13 (1) (D) read with Section 13 (2) of the Prevention of Corruption Act, 1988, against 19 persons i.e. two Ex-Minister of the State and 17 Government officials.
8. It has been argued by the learned Counsel for the petitioner that though in pursuance of the order of the State Government, Vigilance Department had started investigation but during the course of investigation, the version of the petitioner was never considered. Thereafter, Investigating Officer requested the appointing authority to grant sanction prosecution of its officials. In the meantime, 35 officials of the Uttar Pradesh Rajkiya Nirman Nigam Ltd. made a representation to the Managing Director of the Uttar Pradesh Rajkiya Nirman Nigam Ltd. and a three members Committee was constituted but during pendency of the said representation, sanction was granted without considering the representation of the petitioner and other officials by way of the impugned order dated 31.08.2019 contained in Annexure No.1 to the writ petition.
9. Elaborating his submission, learned Counsel for the petitioner has submitted that while granting sanction prosecution, the mandatory provisions were not complied with by the sanctioning authority. He submits that the petitioner at the time of the construction in question was posted as Resident Engineer and was subsequently appointed the Unit Incharge and was not in a capacity to determine the rate of contract etc. He vehemently argued that the sanction order to prosecute the petitioner has been passed without application of mind and further no satisfaction of the competent authority has been recorded in the impugned sanction order by the competent authority.
10. Learned Counsel for the petitioner has drawn our attention to the order dated 18.06.2020 passed in Writ Petition No. 792 of 2020 (M/B) : Ajai Kumar and another Vs. State of U.P. and others and order dated 8.12.2020 passed in Misc. Bench No. 19087 of 2020 : Rajeev Garg Vs. State of U.P. and others and in Misc. Bench No. 16340 of 2020 : Chhatra Pal Singh (C.P. Singh) Vs. State of U.P. and others, by a Co-ordinate Benches of this Court and has submitted that same sanction order dated 31.08.2019 passed by the Managing Director, Rajkiya Nirman Nigam Ltd. was challenged in writ petition No. 792 (M/B) of 2020 (supra), wherein a Co-ordinate Bench of this Court treating the said order as valid sanction order disposed of the writ petition with certain direction to the Investigating Agency as well as learned Court below and it was provided that till the decision is taken by the Competent Court in regard to the sanction of prosecution against the writ petitioner that whether the same is valid or not, no coercive action shall be taken against him. Thereafter, two identical writ petitions i.e. writ petition nos. 19087 of 2020 (M/B) and 16340 of 2020 (M/B) have been filed and another Co-ordinate Bench of this Court has granted the benefit of the order dated 18.06.2020 (Supra) to the writ petitioners of two writ petitions vide judgment and order dated 8.12.2020. He, therefore, submits that the aforesaid cases are related to the same crime number and with respect of the same offence as well as for the same occurrence. Thus, the benefit of the order dated 18.06.2020 (supra) and order dated 8.12.2020 (Supra) passed by a Co-ordinate Bench of this Court may also be granted to the present writ petitioner.
11. Learned Counsel for the petitioner has further submitted that a perusal of the order dated 31.08.2019 indicates that the sanctioning authority has granted the prosecution sanction vide order dated 31.08.2019 for taking cognizance and trial of the petitioner by the competent Court of law and, therefore, there was no occasion for passing a subsequent order of alleged sanction dated 16.12.2019 contained in Annexure No. CA-3 to the short counter affidavit.
12. Per contra, learned AGA has submitted that the petitioner has not challenged the sanction order dated 16.12.2019 and he had challenged the letter dated 31.08.2019, which is a correspondence between the Managing Director of Rajkiya Nirman Nigam to the Principal Secretary, PWD, Government of U.P., Lucknow. Therefore, the present writ petition is not maintainable.
13. Learned AGA has further submitted that the Prosecuting Agency, U.P. Vigilance, Lucknow Sector, after concluding the investigation, submitted its draft final report to the Vigilance Department of the State Government on 12.03.2019. Thereafter, the matter was referred to the Law Department for its opinion and it was concluded that the petitioner and other co-accused had committed offences as mentioned in the F.I.R. Ultimately, State Government, vide letter dated 15.07.2019, had decided to take action on the recommendation of the Vigilance Department and copy of the same had sent to the Head of the Departments for their opinion. Thereafter, respondent no.3 had written a letter dated 13.12.2019 addressed to the Superintendent of Police, Vigilance Department, Lucknow Sector, Lucknow which was dispatched on 16.12.2019, by which, sanction to prosecute to the petitioner and other 30 co-accused was granted and for each of the accused separate orders had been passed.
14. Learned AGA has submitted that before taking the decision, the competent authority has considered each and every aspect of the case and only thereafter accorded the sanction to prosecute the petitioner.
15. So far as relief claimed by the petitioner for quashing the investigation of Case Crime No. 1 of 2014 is concerned, learned AGA has submitted that this relief could not be granted because this Court had already dismissed the writ petition, bearing No. 2245 (M/B) of 2020 vide order dated 27.01.2020 filed by co-accused Anjana and others. Thus, as the investigation of the aforesaid case against the accused person/petitioner has been concluded and the competent authority had already granted sanction to prosecute the petitioner, therefore, charge-sheet would be filed before the competent Court.
16. Learned AGA has also submitted that consortium of the lease holders and the officers of the Mining Department and the Lucknow Development Authority was constituted only to loot the public money without there being any consent of the State Government in violation to paragraph-19 of the Mining Regulation, which forbids constitution of consortium. In fact the payment was directly made to the heads of the consoritum whereas it should be made to the lease holders. By this way, brokers were allowed to function and the stones were purchased at higher rates, so the persons involved in the transactions were indirectly benefitted and by this process huge loss was caused to the public exchequer.
17. It has been stated by the learned AGA that the Purchase Committee had taken decision in violation to paragraph 63 to 84, 101, 102 and 102-A of the Manual of the Rajkiya Nirman Nigam and further without tender, materials were purchased above the market rate by fixing Rs.150/- square foot of the Mirzapur sand stone and for loading Rs.20/- and due to this reason, the cost of royalty had increased and extra trade tax was paid. He also submits that during the course of investigation, it was found that supply of sand stone measuring 3177100 cubic fit was made and it was purchased at the rate of Rs.150/- cubic ft., thus, an amount of Rs.476565087/- was spent, whereas if the stone was purchased on the rate fixed by the Mining Department i.e. 25.50/- cubic ft and as per the commercial tax department, the market rate of the Mirzapur Sand Stone was Rs.28.34/- cubic fit, then, the money which might had been spent was Rs.95313014.40. Thus, the Government money was cheated of Rs.381252069.60. Hence, at the relevant point of time, the Mirzapur Stone cannot have a rate of more than 30 cubic ft.
18. Lastly, learned AGA has submitted that the rates of the Mirzapur Sand Stone, which has been mentioned in the aforesaid is of the year 2009, whereas when the offence was committed in the year 2007, even today the rate of Mirzapur Sand Stone would not be more than Rs.50/-. Further, during course of investigation, the finding recorded by the Lokayukta was found to be correct.
19. Considering the arguments of the learned Counsel for the respective parties and going through the record, it is evident that in relation to financial irregularities in the construction of memorials and parks in Lucknow and NOIDA between 2007 to 2011, the matter was investigated/enquired by the Lokayaukta, Uttar Pradesh. After due inquiry, it was found that two Ex-Minister, some Government officials and some private contractors were involved in committing the financial irregularities in the construction of memorials and parks in Lucknow and NOIDA between 2007 to 2011 and, therefore, the Lokayaukta has submitted a report dated 20.05.2013 in this regard to the State Government.
20. On receipt of the report of Lokayukta, the State Government considered the report of the Lokayukta and decided to lodge the F.I.R. against two Ex-Minister and 17 Government Officials and also directed to make enquiry of the case through Vigilance Establishment. Pursuant to the aforesaid direction, F.I.R. was lodged at Police Station Gomti Nagar, District Lucknow on 01.01.2014, which was registered as Case Crime No. 1 of 2014, under Sections 406/120B I.P.C. and under Section 13 (1) (D) read with Section 13 (2) of the Prevention of Corruption Act, 1988, against 19 persons i.e. two ex-minister of the State and 17 Government officials.
21. During the course of investigation in the aforesaid case, the Vigilance Department found the involvement of the petitioner in the aforesaid case and, therefore, entire material was placed by the Investigating Officer before the appointing authority to grant the sanction order. Thereafter, the sanction order dated 16.12.2019 was issued by the Managing Director, Uttar Pradesh Rajkiya Nirman Nigam Ltd., Lucknow.
22. As the sanction order dated 16.12.2019 clearly reveals that all the materials collected by the Investigating Officer were placed before the Sanctioning Authority and after going through the entire material, sanction order was passed, who also recorded his subjective satisfaction.
23. It is also evident from the record that the aforesaid sanction order dated 16.12.2019 is not challenged by the petitioner and he has only challenged the communication letter to the State Government dated 31.08.2019.
24. As the petitioner prayed for quashing of the report of the Lokaykta and also prayed that respondents may also be restrained not to further proceed in the matter on the basis of the enquiry report of the Lokaykta, it is relevant to mention here that on the basis of the report of the Lokayukta, the State Government had decided to lodge the F.I.R. and the F.I.R. was lodged on 01.01.2014 and after investigation, sanction order has already been granted. In such circumstances, the plea of the petitioner to quash the report of Lokayukta and restrain the respondents not to proceed any further in the matter on the basis of report of Lokayukta is not substantiated and, therefore, it is rejected.
25. The much emphasis has been laid by the learned counsel for the petitioner upon the decision of a Co-ordinate Bench of this Court dated 18.06.2020, parity of which has been granted by another Co-ordinate Bench of this Court vide order dated 8.12.2020 and prayed that the benefit of the aforesaid orders may also be granted to the petitioner of the instant writ petitioner.
26. From perusal of the order dated 18.06.2020, it reflects that the Co-ordinate Bench of this Court has though dealt with the purpose and object of sanction as also the stage at which its validity can be challenged during trial but on one hand, the Co-ordinate Bench of this Court had not entered into the question of validity of sanction and on the other disposed of the writ petition by giving protection to the writ 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.
27. In the instant case, the petitioner has challenged the order by which sanction has been granted for his prosecution under Sections 406/120B I.P.C. and under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 as contemplated by Section 197 Cr.P.C.
28. The question which requires consideration is on what grounds an order granting sanction can be challenged at the very initial stage before the parties had any opportunity to lead evidence in support of their case.
29. Sub-section (1) of Section 197 Cr.P.C. shows that sanction for prosecution is required where any person who is or was a judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Central Government or State Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of official duties, no Court shall take cognizance of such offence, except with the previous sanction of the appropriate Government.
30. Article 311 of the Constitution of India lays down that no person who is a member of a civil service of the Union or State or hold a civil post under the Union or State shall be removed by an authority subordinate to that by which he was appointed. It, therefore, follows that protection of sub-section (1) of Section 197 of Cr.P.C. is available only to such public servants whose appointing authority is the Central Government or the State Government and not to every public servant.
31. The legislation has given great importance to sanction will be evident from the Scheme of Code of Criminal Procedure. Section 216 of the Code of Criminal Procedure gives power to the Court to alter or add to any charge at any time before judgment is pronounced but Sub-section (5) thereof provides that if the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. This was emphasised by the Privy Council in the leading case of Gokulchand Dwarka Das Morarka Vs. The King : AIR 1948 PC 82, where in para 9, it was observed as follows at page 85 :
"................The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have though, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted."
32. In para-10 of the aforesaid judgment, following observation has been made by the Privy Council :
"10. Mr. Megaw for the respondent has suggested that this view of the law would involve in every case that the Court would be bound to see that the case proved corresponded exactly with the case for which sanction had been given. But this is not so. The giving of sanction confers jurisdiction on the Court to try the case and the Judge or Magistrate having jurisdiction must try the case in the ordinary way under the Code of Criminal Procedure. The charge need not follow the exact terms of the sanction, though it must not relate to an offence essentially different, from that to which the sanction relates."
33. The aforesaid case i.e. Gokulchand Dwarka Das Morarka Vs. The King (supra) was considered by the Hon'ble Supreme Court in Madan Mohan Vs. State of U.P. : AIR 1954 SC 637 : (1954 Crl. LJ 1656) and Som Nath vs. Union of India : (1971) 2 SCC 387 : AIR 1971 SC 1910 : 1971 Crl. LJ 1422.
34. Clauses (a) and (b) of sub-section (1) of Section 197 Cr.P.C. show that the sanction in the case of a person who is or was employed at the time of commission of the alleged offence in connection with the affairs of the Union of India has to be granted by the Central Government, and, in the case of a person who is or was employed at the time of commission of the alleged offence in connection with the affairs of a State, by the State Government, as the case may be. If the sanction is not accorded by the competent authority of the Central Government or the State Government, as the case may be, the order of sanction would be invalid. It, therefore, follows that an order of sanction can be assailed on the ground that the same had been granted by a person who did not have the authority to grant sanction as contemplated by Section 197 Cr.P.C.
35. What would constitute a valid sanction, was examined by the Privy Council in Gokul Chand Dwarka Das Morarka Vs. The King (Supra) with reference to Clause 23 of Cotton Cloth and Yarn Control Order, 1943, which required that no prosecution for the contravention of any of the provision of the control order shall be instituted without the previous sanction of the Provincial Government and it was held as follows :
"A sanction which names the person to be prosecuted and specifies the provision of the Order which he is alleged to have contravented is not a sufficient compliance of Cl. 23. In order to comply the provisions of Cl. 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It plainly desirable that the fact should be referred to on the face of the sanction, but this is not essential since Cl. 23 does not re-charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority."
36. Section 6 (1) of the Prevention of Corruption Act, 1947 provided that no Court shall cognizance of an offence alleged to have been committed by the public servant, except with the previous sanction of the authority specified in the sub-section. What would constitute a valid sanction with reference to the aforesaid provision, was examined in Madan Mohan Vs. State of Uttar Pradesh : AIR 1954 SC 637 and the Apex Court after relying upon the dictum of the Privy Council in Gokulchand Dwarka Das Morarka Vs. The King (supra) held as under :
"The burden of proving that the requisite sanction has been obtained rests on the prosecution and such burden includes proof that the Sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based; and these facts may appear on the face of the sanction or may be proved by extraneous evidence. Where the facts constituting the offence do not appear on the face of the letter sanctioning prosecution, it is incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. Where this is not done, the sanction must be held to be defective and an invalid sanction cannot confer jurisdiction upon the Court to try the case."
37. Similar view was taken by the Apex Court in Maj. Som Nath Vs. Union of India : 1971 (2) SCC 387.
38. In P.C. Joshi Vs. State of U.P. : AIR 1961 SC 387, the Apex Court while examining the same question as to what would constitute a valid sanction held as follows in paragraph-4 of the reports :
"Mere production of a document, which sets out the names of the persons to be prosecuted and the provisions of the statute alleged to be contravented, and purporting to bear the signature of an officer competent to grant the sanction where such sanction is a condition precedent to the exercise of jurisdiction does not invest the Court with jurisdiction to try the offence. If the facts which constitute the charge do not appear on the face of the sanction, it must be established by extraneous evidence that those facts were placed before the authority competent to grant the sanction and that the authority applied his mind to those facts before giving sanction."
39. It is, therefore, well settled that in order to constitute a valid sanction, it must be established that the case was given in respect of the facts constituting the offence with which the accused is proposed to be charged. The facts may be stated in the order granting sanction or may be proved by extraneous evidence. If the facts do not appear on the face of the sanction, the prosecution must prove it by other evidence that the material facts constituting the offence were placed before the sanctioning authority and he had granted the same after consideration of the said facts. It follows as a corollary that where the facts constituting the offence do not appear on the face of the sanction, it will be open for the prosecution to lead evidence that the material facts were place before the sanctioning authority before grant of sanction, and the occasion for leading the evidence can arise only during the course of trial.
40. The aforesaid discussion shows that an order of sanction can be assailed only on two grounds viz. (1) it has been granted by an authority who was not competent to do so; and (2) it has not been given in respect of the facts constituting the offence charged. However, if the challenge to sanction is based upon the ground that the facts constituting the offence do not apepar on the face of the sanction, then, such a plea cannot be entertained at the initial stage before the trial has commenced, as the prosecution can have no opportunity to lead evidence in order to show that the sanction had been granted after consideration of relevant material. Therefore, such a plea cannot be entertained and examined in any proceedings including a writ petition under Article 226 of the Constitution of India before commencement of the trial. It is only after the trial has concluded and the prosecution has been given the opportunity to lead evidence that the validity of the sanction can be examined on this ground.
41. In the writ petition, the entire effort of the petitioner has been to show that he has not misappropriated the funds. These are all questions which go to the merits of the case, namely, whether the charge against the petitioner that he misappropriated the public finds is established or not. These are matters to be seen in the trial after the prosecution and the accused had the opportunity to lead evidence in support of their case. An order of sanction cannot be assailed or tested on the ground that the evidence does not established the charge. This is the function of the Court trying the case and not the sanctioning authority. The sanctioning authority has merely to see whether the facts alleged against the accused constitute an offence and whether he should be tried by a competent Court for the said offence.
42. In order of sanction, it is recited that the authority had carefully examined all the papers and had, thereafter, come to the conclusion that the petitioner should be prosecuted for the offence committed by him before a competent Court.
43. It is settled law that 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. Further the sanctioning authority has only to see whether the facts would prima facie constitute the offence on the basis of relevant material collected during the course of investigation and placed before it, which warrants trial of public servant for which requisite sanction is required.
44. As stated hereinabove, the impugned order is a communication letter to the State Government and actual order of prosecution dated 16.12.2019 has not been challenged by the petitioner though a copy of the same has been enclosed as Annexure No. CA-1 to the counter affidavit filed by the State, which we have also perused and have taken into consideration. Even otherwise, on perusal of the entire material on record, we are of the view that at this juncture, the sanction order is a valid one. Moreso, there is neither any pleading nor any ground in the writ petition that the Managing Director, U.P. Rajkiya Nirman Nigam Ltd., Lucknow, who has passed the order of sanction, was not legally competent to grant sanction and, therefore, the order of sanction cannot be assailed on the ground of competency of sanctioning authority.
45. During the course of arguments, learned AGA has informed that the prosecuting agency has already collected credible and incriminating evidence against the petitioner too. The investigation of the case has already been concluded. The draft final report had already been approved by the State Government on 15th July, 2019 and, therefore, only the charge-sheet is to be filed before the competent Court but due to pendency of the present writ petition, charge-sheet could not be filed before the competent Court.
46. Considering the aforesaid facts and circumstances of the case, we are not satisfied with the plea of the petitioner that the petitioner is also entitled to get the interim protection as has been given by the Co-ordinate Bench of this Court vide orders dated 18.06.2020 and 8.12.2020. Moreover, the Co-ordinate Bench has also observed the sanction order to be valid vide order dated 18.06.2020 passed in Misc. Bench No. 792 of 2020 : Ajay Kumar & another Vs. State of U.P. (Supra), which is reproduced as under :-
"The submission made by learned counsel for the petitioner is that the impugned sanctioned order has been passed by the competent authority without application his mind, rather under the pressure of the higher authority, the same is illegal and arbitrary in nature. The validity of the sanction order is perfectly valid as per law laid down by Hon'ble the Apex Court in the case of Mansukhlal Vitthaldas (Supra) in which it has been observed that "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 the government servants against frivolous prosecution. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecutions and is a safeguard for innocent but not a shield for the guilty as the validity of sanction depends on the applicability of mind by the sanctioning authority to the facts of the case and also the material and evidence collected during investigation. Sanctioning authority has to apply its own independent mind for generation of genuine satisfaction whether prosecution has to be sanctioned or not."
47. On 17.02.2021, we have already dismissed Misc. Bench No. 9727 of 2020 : Sukh Lal Yadav Vs. State of U.P. and others, filed by co-accused Sukh Lal Yadav on identical issues.
48. For the aforesaid reasons, there is no merit in the writ petition, which is, accordingly, dismissed.
49. It is needless to say that the petitioner is at liberty to seek remedy under Section 438/439 Cr.P.C., as the case may be, if so advised.