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No. 1556 Qf 2010 PETITIONER Arvind Kumar Chaturvedi. VERSUS RESPONDENTS State of Chhattisgarh & Others. f^ .^ j^o§tfor Dronouncement of Qraer on .(o^dav of SeDtembeL-2(r!0:. Sd/- SatishK.Agnihotri Judge ^ ss^ HIGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER WRIT PETITION (Cr.) No. 1556oL201.Q Arvind Kumar Chaturvedi. VERSUS RESPONDENTS : State of Chhattisgarh & Others. WRIT PETITION UNDERARTICLE 226/227 OFTJHE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K.AanihQtri. J, Present: Shri B.P.Sharma, Advocate for the petitioner. Shri N.N.Roy, Panel Lawyerforthe State/respondent No. 1 and 4. None for the respondent No. 2 and 3. ORDER (Passed on .J.^day^f^eptember, 2010) 1. By this petition, the petitioner seeks to challenge the orderNo. 01-05/PD-EK/313(1)/228, dated 05.02.2010 (Annexure P/1) passed by the Executive Director (Human Resources) Chhattisgarh Stat<a Power Holding Company Limited, Raipur whereby sanction to prosecute the petitioner under the provisions of section 13(1) (e) and section 13(2) of the F:>revention of Corruption Act, 1988 (forshort 'the Act, 1988') has been granted and the corrigendum No. 01-05/PD- EK/313 (1)/522 dated 06.03.2010 (Annexure P/2), addressed to the Inspector General of Police, Anti Corruption Bureau/Economic Offence Investigation Bureau, communicating the information of grant of sanction to prosecute the petitioner. 2. The facts, in nutshell, as projected by the petitioner is that the petitioner was the employee of the then Chhattisgarh State Electricity Board (for short 'the Board') working on the post of Assistant Engineer After bifurcation of the Board, five new companies were formed and the petitioner's services came under respondent No. 2 i.e. Chhattisgarh State Power Holding Company Limited. On 28.8.2000, the respondent No. 4 made a search in the premises of the petitioner, wherein it was allegedly found that the petitioner had acquired property worth Rs. 44,09,OOO/- which is disproportionate to his income, and an offence under section 13(1 )(e) and 13(2) of the Act, 1988 was registered against the petitioner. The respondent No. 4 sought permission from the Board to prosecute the petitioner for the aforesaid offences but the same was denied. However, the relevant papers were sent to the Chartered Accountant of the Board and after obtaining opinion in this regard, the sanction to prosecute was again refused. The respondent No. 2, vide communication dated 06.03.2009, again refused to grant sanction for prosecuting the petitioner. Learned counsel appearing for the petitioner would submit that on several earlier occasions, sanction to prosecute the petitioner was denied which is evident fromletter dated 16.12.2005, 20.07.2005, 31.03.2003, 02.01.2004, 31.03.2003. However, at the instance of respondent No. 4, the respondent No. 2 and 3 acted illegally by granting sanction to prosecute the petitioner. The impugned order is un-sustainabte. Shri Sharma would further submit that the prosecution agency cannot become persecuting agency and cannot force any other agency to grant sanction. Further, the respondent No. 2 and 3 authority, when it had once been decided not to grant sanction for prosecuting the petitioner, cannot review its own order and grant sanction for prosecuting the petitioner as there is no change in any of the circumstances excepl the undue pressure ofthe respondent No. 4. The present petition was filed on 23.03.2010 and the matter-was listed for hearing on 09.04.2.010. Thereafter, the matterwas again listed on 16.04.2010. Notices were issued to the respondents on 23.04.2010 and two weeks time was granted tothe State/ respondent No. 1 and 4 to file return. Thereafter, the \^^v Nlll^ matter was listed for hearing on 19.05.2010, 26.05.2010 and 16.06.2010. On 16.6.2010, fresh notices were ordered to be issued to the reispondent No. 2 and 3, and in addition, dasti notice waa permitted. All the respondents have been served, but neither a representation was made nor any appearance was done. 5. Heard learned counsel for the petitioner, perused the pleadings and documents appended thereto. 6. On a serious allegation, that in the search conducted by the office of Lokayukta, Special Police Establishment, Raipur, on 28.2.2000 in the residence of the petitioner, property worth more thgn Rs. 44,09,OOO/- was discovered, which was disproportionate to the income of the petitioner. Accordingly, a case was registered under section 13(1)(e) and 13(2) of the Act, 1988. Sanction for prosecuting the petitioner was sought by the Deputy Inspector General of Police, Special Police Establishment, Office ofthe Lokayukta, Bhopal, which was rejected by letter dated 31.3.2003 (page 50 of the petition) observing that the case was not fit for prosecution. Thereafter, again a letter was addressed to the Inspector General of Police, Special PoiiCQ Establishment, Office of the Lokayukta, Bhopal, ^.J^^SB.^K^^^^.,^, ...'^ 1.^ %^ "^. reiterating the stand taken by the respondent- Electricity Board thatsanction to prosecute the petitioner was rejected (page 49 of the petition). Again, on 26.07.2005 (page 47 of the petition) the Secretary, Chhattisgarh State Electricity Board declined to grant sanction to prosecute the petitioner on the ground that no new documents have been placed to take a contrary stand as was taken earlier on 31.3.2003. Thereafter, on 25.11.2005, theJoint Secretary to the Government of Chhattisgarh, Energy Department, directed the Secretary, Chhattisgarh State Electricity Board to consider the case of J.R.Patel, Arvind Chaturvedi, Ashwani Sharrna, Narad Singh Chandel, against whom sanction for prosecution had not been granted and to grant sanction to prosecute them within a period of 7 days and thereafter inform to the State Criminal Investigation Bureau. Pursuant to the letter dated 25.11.2005, the Secretary, Chhattisgarh State Electricity Board informed to the Principal Secretary, Governmenl of Chhattisgarh, Energy Department that in view of the ratio laid down by the Hon'ble Supreme Court in AIF-? 1997 SC 3400, the Board had already applied its rnind on the available documents and itwas dedded not to grant sanction for prosecution, which reads as under: ^. NNNK^ 1"^». "^c^T ^ff^, ^QTvjrf f^TT<T ^ ^r^rf^cT ^raT ^ ^TN?H^T ^ f^lMl^lRsld ^T^' ^ ^I^TH ^?PTT viTPIT t:-- (i) 1^^<TuiT ^' sif^rqtMR ^tc^Rr ^^Tri ^Y^ <^ yl ^fr^Rr ^^FT^crf <fff^rft £TP?T ^ciRi^ ^51 ^f^rd dl^ ^ H^TtTI f^>4 ^TT^ cf?T f^PPTF ^' "^c^^ t I (ii)^^fir£T ^" ;*:nTFfr£[ ^^id^i ^TTsrrcro ^i uf^ri^n RlcEiM ^TRf t (^f^ T?.3TT^.3TK. 1997 ^TI'-T-frq ^-cERTt) '-'^^TPTTcPT 3400) 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, il necessarily follows that the sanctioning authority has to apply its own independent mind for thQ generation of genuine 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 a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, ite discretion should be shown to havenot beeri affected by any extraneous consideration. If it is shown that the sanctioning authprity was unable to apply its independent mind for ahy reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "notto sanction" wgs taken away and it was compelled to act mechanically to sanction the prosecution. (iii) ^OT^t^vT ^ wrc t f^ ^T^PT ^rf^^T^t £[1^1 3r3^f?i ^ c^ ^er ^' ^^T' ^pJf^T f^rar viTprr t ^ ^w Pr(Tf?r l^ft 3Tf^R)rit ffl 'J^T STf^cpTft ^ f^TT qi? ^T 1^11 ^rpn 'cTrf^i (iv) F^Rvji-i ^ ^i-i41^ ^r^f ^ii^id^ 1%*frad ^¥1 (RbPkl-ld dT vjRTcT 1024, ^ff^K ^l^ €| 3^.4 f^)<il ftm^rcf ^?T ^ s^) ^ 3T^^TK "arf&lchl^/clT^^Nt <^ R<ocg ^^ ^R ^fWT ^TTf^rtt SRT ^ri^T^ri ;ijp:T 1?<ft^f?I ^cTR ^T f^ vm^ c^ f^ufzr ^t ^3^T c^^l^iff <^ 3TT£TR ^ MRciRfn 3T%i^T ^^cTlf^-er Tr^f f^rm vjfr W^TIT" i AdC<C;l<Sl4l^ t f^ ^^Nn[IT ^' ^qTcT^T ^TI^T t;^11^rt ^<l H^qT TR ^f<41^dl^4^ f^TT^^RTH ^"4^1 WPI 9T^T<ftlR^T gT?T ^f^Pf(T q?TT 4 ^c^fecT ^IRT a^'?T|T ^' 3TPWtv3f-T ^t^Rr ^T^PT ^S f^ ^TF^ c^ f?|(rf7.| f^4 ^rt tl cftfTTFT ^' -g^cT ^^?uiT ^' ^ -<ft 3Tf^1^^TI ^RTT^vT ^fcrf^RT f^TPT/^jrf f^TPT ig-m Tf^B ^V ^Tc'T^T ^€( V^ TT^ 11 3KT: ^^cT ^ifl iJch-'T"TT 'T ^@::.^R.3SBi \ i | t. ^ '^ ,-y ^, ^f^HThjT-r t^ ^f^oT/^T^PT ^TTf^cbl^ c^ ^f^f^l ^^TR l^rr vjn^TT \iR<d ^Tftn ^T ^t^r i ^-ERTa-f ^f^RT " 7, No new documents have been brought into the notic6 of the Board, Thus, it would not be proper to grant sanction for prosecution of the officers, includinci the petitioner. Thereafter, the Inspector General of Police, Anti Corruption Bureau, by letter dated 22.11.2008 informed the Secretary, Electricity Board that the decision not to grant sanction was not in accQrdance with law. Thus, the Electricity Board may consid^r again and grant sanction for prosecution. The case was referred to the office of the Advocate General on 24.08.2009 (page 40 of the petition). The Executive Director (H.R.) i.e. the respondent No. 2 again informed the Inspector General of Police, Anti Corruption Bureau, on 6.3.2009 (page 35) that the decision not to grant prosecution earlier was taken after serious application of mind and since no new documents were made available, there was no reason to review the same. Thereafter, the sanction was granted by impugned order dated 5.2.2010 (Annexure P/1) without assigning any reason as to why contrary stand was taken as the order does not indicate that certain new material/documents were placed before the authorities to grant sanction, which was rejected ;"^ ">«1^ 8. earlier on several occasions. The impugned orcler was thereafter modified by corrigendum dated 6 3.2010 to the extent that the word "income more than the known sources" stated in 7 line of first para, and the word "disproportionate" from the eighth line be deleted and in third line of second para, in place of "rnore than income" "Rs. 22,84,147/- more than income" may be read. The same reads as under: "^^] ^RT^ 01-05/1fr^-^>/313(l)/227 f^-TfcM 05.05.2010 ^t ^a-PT ^feqiT c^ W(NT <Tl^tl ^ ^i^NcTl i'3Tpr ^ ^n-er ^rt^T ^ 3rR!wr ^ WHcff ^ff^T ^ ^Ts^ "^MId^l-t" f^cftPt^T ~<^\y \r(T ^T4Y c|?fe^T ^ cft^l^ Tff^rT ^ "3TPT ^ 3Tf^T<(»" ^ -'(^r-l ^R "3n^T ^ ^q^ 22,84,147/- 3Tf^" ^t^^Nf q^t ^r^r Law on the issue with regard to grant of sanction for prosecution is well settled. The Supreme Court, in Mansukhlal Vithaldas Chauhan v. State of Gujarat , while considering grant of sahction, held as under: "19. Since the validity of "Sanctibn" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidencecollected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the genergtion of genuine satisfaction whether prosecution has to be sanctioned or not. The mihd of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it, to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, AIR 1997 SC 3400 '^;,.^,. ^ ^Na». its discretion should be shown to have not been affected by any extraneous consideration. It 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 togrant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to ac\ mechanically to sanction the prosecution." 9. The Punjab & Haryana High Court, in the matter of Surjit Singh v. The State of Punjab <& Others , and the High Court of Allahabad, in Vaijai Bahadur v. State of U.P. & Others3, have held that once the sanction for prosecution is rejected, the same cannot be reviewed without there being cogent reasons and sufficlent materials. 10. The ratio laid down in the above two cases has been referred approvingly in Omkar Sharma v. State of H.P4, wherein the High Court of Himachal Pradesh, held as under: "33. What follows from the aforesaic| discussion is that appropriate authority who on consideration of all the material had refused to accord sanction to prosecute a public servant, has now power on re- consideration to review such an order ai1d thereby according sanction to prosecute on the same material. It will be a totally different situation if any additional/fresh/new material is brought before the competent authority; that admittedly is not the situation in all the three cases nor is the case of any one of the 2 1979 CRI. L.J. NOC 214 (Punj & Har.) ' IW)CRI.L.J.NOC61 (ALL.) •' Cri. Wrh Petn. Nos. 4, 6 and 11 of 2002, decided on 06.06.2002 v) ^K^ 10 respondents set out in their replies. Similarly, the long gap after completion of investigation and the grant of sanction is an addjtional ground to grant relief to the petitioners in all these three cases." 11. The Supreme Court, in Ramanand Chaudhary v. State of Bihar & Others , holding the grant of sanction to prosecution as improper, observed as under: "5...The Public Prosecutor consistently opined that no criminal case was made out against the appellant. The Commissioner on independent consideration refused to grgint the sanction but later on at the asking of the DIG (Vigilance) hechanged his view.,," 12. In State of Punjab & another v. Mohammed Iqbal Bhattl6,Vrte Supreme Court held that the sanctioning authority rnust apply its mind to the new facts which were not available at the time when the sanction was declined on earlier occasions. 13. The common thread running into the decisions cited hereinabove is that the sanctioning authority has power to reconsider refusal of sanction, only on tho basisof some new materials which were not available before thesanctioning authority who had declinecl to grant sanction earlier. The same cannot be granted again for want of new materials which may be made available during the course ofthe investigation. 5 (2002) 1 8CC 153 62010AIRSCW 1186 y.<..^..^^.^^,^ »£,^^^ffi).J^-^ 11 C(f 14. In the case on hand, it does not appear that the impugned order dated 05.02.2010 (Annexure P/1) granting sanction, was passed on the basis of other materials which were not available before the authorities when the sanction was declined, It further appears that the impugned order was passed not on the basis of materials or applying its mind but on tho basis of irrelevant consideration and facts as nothing is stated in the order in detail stating that the new materials were available. 15. Applying the ratio laid down by the Supreme Court in the cases (supra) to the facts of the present case, the impugned order dated 05.02.2010 (Annexure P/1) is quashed. Consequently, the corrigendum dated 6.3.2010 also stands quashed. However, liberty is reserved to the respondent/authorities to consider the case for grant of sanction for prosecution on the basis of new materials, if any, after making serious application of mind on the issue in questjon, if so advised. 16. Accordingly, the writ petition is allowed to the above extent. No order asto costs. Sd/- Satish K. Agnihotri Judge Amit