Court No. - 71
Case :- CRIMINAL REVISION No. - 841 of 2019 Revisionist :- Vinay Kumar Singh Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Suraj Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the revisionist and learned AGA for the State.
Revisionist has approached this Court against the order dated 1.2.2019 passed by Special Judge (Prevention of Corruption Act)/Additional Sessions Judge, Court No.2 , Varanasi in S.S.T. No. 26/2013 (State Vs. Vinay Kumar Singh) under Sections 409, 419, 420, IPC and under Section 13 (1) Prevention of Corruption Act, Police Station Lalganj, District Mirzapur.
The submission is that the applicant moved the discharge application before the Court below on the ground that the prosecution sanction order dated 1/2.9.2011 passed by the Managing Director of the U.P. State Agro Industrial Corporation Limited, Lucknow is a non speaking order, when as per requirement of law the same should have been speaking order and the Court below has stated in its order dated 1.2.2019 that this shall be considered at the time of hearing, which is not in accordance with law.
Learned AGA has submitted that the order of the Court below is justified since at the stage of hearing this issue shall be considered.
Learned counsel for the applicant has submitted that the issue of sanction gives right of prosecution and it to be decided at very first stage instead of permitting the illegality to continue till the stage of trial.
After considering rival contentions of the parties, it is clear that the order of the Court below is not justified. The Apex Court in the case of C.B.I Vs. Ashok Kumar Aggarwal reported in 2014(84) ACC 252 has held in para 7 that the order of sanction is required to be passed after considering the record and after due application of mind. Non speaking sanction order is not an order of sanction in accordance with law. Para 7 of the aforesaid judgement is being quoted here in below.
" 7. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter-alia on the ground that the order suffers from the vice of total non-application of mind.
(Vide: Gokulchand Dwarkadas Morarka v. King, AlR 1949 PC 82; Jaswant Singh v. State of Punjab, AIR 1958 SC 124; Mohd. Iqbal Ahmed v. State of A.P., AIR 1979 SC 677; State through Anti- Corruption Bureau, Govt. of Maharashtra v. Krishanchand Khushalchand Jagtiani, AIR 1996 SC 1910;State of Punjab v. Mohd. Iqbal Bhatti, (2009) 17 SCC 92; Satyavir Singh Rathi, ACP v. State, AIR 2011 SC 1748; and State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119)."
The Apex Court has also considered the issue in case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat reported in 1997 LawSuit(SC) 1129 and has held in para 19 as follows:
" 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 genuie 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 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 had 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."
In view of the above legal position, it is clear that the order dated 1.2.2019 of the Court below and the order dated 1/2.9.2011 of the authority are not in accordance with law and are hereby set aside. Competent authority is directed to pass fresh order of sanction of prosecution, if required, of the revisionist in accordance with law within a period of two months and thereafter trial shall proceed against the revisionist, if the same is granted again. The revisionist shall file the copy of the order before the Competent Authority within two weeks from today.
Criminal revision is allowed.
Order Date :- 26.2.2019 Atul kr. sri.