JUDGMENT Imtiyaz Murtaza and Amar Saran, JJ.
1. The petitioner was appointed as Senior Manager (Production, Planning and Development) at the headquarters of UP. Handloom Corporation Ltd. in Kanpur Nagar (in short, the Corporation). An order dated 27.2.2006 sanctioning his prosecution for an offence in case Crime No. EOW (investigation)-184/99 arising out of case Crime No. 143 of 1999 under Sections 420, 467, 468, 471, 201, 120B IPC read with Section 13(2) of Prevention of Corruption Act, 1988, PS Kakadeo, District Kanpur Nagar, has been challenged by means of this writ petition.
2. We have heard learned Counsel for the parties.
3. The order dated 27.2.2006 (annexure - 22 to the writ petition) granting sanction for the prosecution of the petitioner shows that it was based on documentary and oral evidence collected by the Economic Offences Wing, CBCID, Kanpur Nagar, which investigated the case. The sanction order mentions inter alia that Janata Sarees UP-5 and UP-14 which was dispatched to Bangalore and Madras, under the scheme for inter- state distribution was in violation of the Central government guide lines. The said guidelines were concealed by the petitioner.
4. The Janata cloth was allowed to be sold through an intermediary which was not permissible under the Central Government guidelines. The private intermediary party had deposited Rs. 2,74, 35,000/- on 17.2.1992 for the said trade in violation of the directions of the Central Government, and the petitioner had directed dispatch of the same to Madras and Bangalore prior to 19.12.92. The petitioner is also said to have fraudulently prepared a resolution for grant of rebate at the rate of 7% on the sale of Janta Sarees. By entering into illegal agreement with the private party, a loss of Rs. 16280754/- was caused to the U.P. Handloom Corporation. As the petitioner was said to be prima facie involved involved in this offence, hence his prosecution under Section 13(2) of the Prevention of Corruption Act was being sanctioned by the impugned order.
5. It was contended by the learned Counsel for the petitioner that the sanction order was based on the facts which were not in accordance with the prosecution material and in this regard he drew our attention to paragraph 30 of the writ petition and sought to refute sonic averments mentioned in the sanction order such as the claim that the petitioner on the basis of a telephonic talk prepared the resolution dated 18.12.1992 for approval of bulk sale of Janata Sarees make UP-5 and UP-14 and approved by putting up the same before the General Manager and the Managing Director of the Corporation against the guidelines of the Central Government. He tried to refer to some documents and material to refute this position. Likewise, the other averments in the impugned order to the effect that the petitioner being aware of the fact that some private party had deposited an amount of Rs. 27435000/- on 17.12.1992. which was a cost of 5000 bales of Janata Sarees after rebate of 7 per cent in their bank account No. 1103 maintained by the Corporation on Vijaya Bank, Madras, had ordered the dispatch of the Janata Sarees to Madras and Bangalore before 19.12.1992. It is contended that the deposit by the private buyer was done at his own instance, without the collusion of the petitioner. Likewise further details of other specific averments such as the resolution dated 21.12.92 having been prepared by the petitioner, is sought to be countered by a claim that the said resolution was passed by Sri R.K. Sharma, the then Sr. Manager (Distribution/ sale). We do not think it is permissible for the petitioner to allude to any such material on record at this stage. It has been clearly held by the Division Bench of Hon. G.P. Mathur Jand Hon. Lakshmi Bihari, J in Om Prakash v. State of U.P. and Ors. 2001 (42)ACC 744, after considering the decisions of the apex court in Madan Mohan v. State of U.P. , Som Nath v. Union of India , Gokulchand Dwarka Das Morarka v. The King AIR 1948 PC 82, P.C. Joshi v. State of U.P. . in paragraphs 11 and 12, that an order of sanction can only be assailed on two grounds viz. (1) it has been granted by an authority which was not competent to do so and, (2) it has not been given in respect of the facts constituting the offence charge. No such plea has been raised in this writ petition that the authority who has granted the sanction was not competent to do so or that the sanction had been given in respect of facts for which the petitioner had not been charged. In fact, at the stage the trial does not appear to have been commenced and, as such, there is no question of any charge having been framed or that the sanction relates to some other aspects other than those involved in the charges. It is also not a case where the facts constituting the offence are not mentioned on the face of the sanction. It had been held in the aforesaid division bench decision that if the challenge to the sanction was based on the ground that the facts constituting the offence do not appear on the face of the sanction, then such a plea could not be entertained at the initial stage before the trial had commenced, as the prosecution would have an opportunity to lead evidence during the trial to show that the sanction had been granted after considering the relevant material. It was only after the trial had been concluded that the prosecution could lead evidence challenging the validity of the sanction on that ground. It may be useful in this regard to quote the relevant extract from paragraph 12 of the decision of the division bench (supra) which specifically refutes the plea of the petitioner of that case to show that he had not misappropriated the funds and the same had been utilized for official purposes. The relevant portion of paragraph 12 reads as under:
In the writ petition the entire effort of the petitioner has been to show that he has not misappropriated the funds and that the same had been utilized for official purpose. These are all questions which go to the merits of the case, namely, whether the charge against the petitioner that he misappropriated the public funds 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 establish the charge. This is the function of the court trying the case and not of the sanctioning authority.
6. Learned Counsel further sought to give an example of an extreme case that if the sanction was given for prosecution of a person A but the facts related to person B, then such an error would always be considered unders the powers of judicial review of this Court in its writ jurisdiction, which are untrammeled, as this Court was fully empowered to consider the legality of an arbitrary action by the sanctioning authority. However, the position in the present case where the petitioner has endeavoured to refute specific averments made in the sanction order by referring to other material on record, is wholly unrelated to the extreme example cited by the petitioner and this case does not fall in the category of the extreme case alluded to by the petitioner's counsel. In fact, if this Court were to examine the validity of the sanction on the detailed lines suggested by the petitioner, it would be looking at the defence case and material and conducting a full-dressed trial at this stage itself, which is wholly impermissible. In Superintendent of Police (CBI) v. Deepak Chowdhary and Ors. 1995 SCC (Cri) 1095, it has been specifically held by the apex court that there is no principle of natural justice also involved at this stage and the sanctioning authority basically discharges an administrative function when he decides to grant or refuses to grant sanction for prosecution and that even departmental exoneration by the disciplinary authority may not be relevant and, furthermore, the merit and the culpability of the accused cannot be looked into at this stage.
7. In this view of the matter, there is no force in this writ petition and it is accordingly dismissed.