1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.3147/94 (Satish Chandra Kaushik V/s. State of Rajasthan & Anr.) Date of Judgment :: 24.03.2009 HON'BLE MR.JUSTICE R.S. CHAUHAN Mr. R.L. Agarwal for the petitioner. Mr. Krishan Verma, Addl. GA for the State. Aggrieved by the sanction order for prosecution - order dated 21.04.1994 - the petitioner has challenged the same by way of this writ petition. The brief facts of the case are that in 1961, the petitioner was appointed as a Junior Engineer in the Irrigation Department. Subsequently, he joined the military transport services. But in December 1966, he came back to the Irrigation Department as an Assistant Engineer. In 1979, he was promoted to the post of Executive Engineer. In 1982 , he was posted as a Liason and 2 Procurement Officer in the Rajasthan Canal Project which was later on re-named as Indira Gandhi Nahar Pariyojana. He was posted in Delhi from 1982 to 1987. The petitioner claims that in 1993 he learnt that a FIR was lodged under the provisions of Prevention of Corruption Act, at Bikaner, relating to purchase of some material which was made in the year 1984 from M/s. Manju Shri Enterprises, Bikaner. According to the petitioner, he was not named in the FIR. He further claims that with regard to the said purchase, the Lokayukta had conducted an inquiry. In the report of the Lokayukta, dated 02.06.1989, nothing adverse was recorded against him. However, notwithstanding the report of the Lokayukta, vide order dated 21.04.1994, the Sanctioning Authority passed an order for the prosecution of the petitioner for offences under Sections 5(1)(d) read with Section 5(2) of Prevention of Corruption Act, 1947 and for offences under Sections 420, 467, 471, 120-B of IPC. Hence, this writ petition before this Court. 3 Mr. R.L. Agarwal, the learned counsel for the petitioner, has raised two contentions before this Court : firstly, in the report of the Lokayukta dated 02.06.1989, no finding was given with regard to any illegality or irregularity committed by the petitioner. Moreover, according to the reply submitted by the State, the said report was placed before the Sanctioning Authority. However, notwithstanding the said report of the Lokayukta, the Sanctioning Authority has passed the impugned order. Relying upon the case of Madhya Pradesh Special Police Establishment V/s. State of Madhya Pradesh & Ors. [AIR 2005 SC 325], the learned counsel has argued that the report of the Lokayukta should not have been brushed aside. In fact, weightage should have been given to the said report. Since the Sanctioning Authority has ignored the report of the Lokayukta, the sanctioning order is unsustainable. Secondly, all the material collected during the investigation was not placed before the Sanctioning Authority. Therefore, the sanction order 4 is unsustainable. In order to buttress this contention, the learned counsel has relied upon the case of State of Karnataka V/s. Ameer Jan [AIR 2008 SC 108]. On the other hand, Mr. Krishan Verma, the learned Additional Government Advocate, has contended that according to order dated 22.09.1984, the Additional Chief Engineer (Mechanical), RCP, Bikaner had directed the petitioner to inspect hose pipes purchased from M/s. Manju Shri Enterprises, Bikaner. The said inspection was to be carried out along with Shri Ram Swaroop, Executive Engineer, RCP, Central Stores Division, Bikaner. The said inspection was, indeed, carried out by the petitioner and Mr. Ram Swaroop as is evident from the Inspection Report (Ann.3). However, subsequently it was discovered that the hose pipes selected by the petitioner and Ram Swaroop did not conform to the established standards. It was also discovered that although the pipes did not conform to the said standards, yet the petitioner, along with Ram 5 Swaroop, had recommended that the pipes be bought. It is only on the basis of their recommendation that the pipes were bought by the Government and the amount was paid to M/s. Manju Shri Enterprises, Bikaner. Secondly, a complaint was made to the Lokayukta against four persons only, namely Ram Swaroop Kumawat, S.P. Saxena, M.I. Khilji and A.M. Sharma. Therefore, no complaint was made against the present petitioner. Hence, there was no occasion for the Lokayukta to express his opinion with regard to the action or omission committed by the petitioner. Hence, the report of the Lokayukta is irrelevant as far as the petitioner's case is concerned. Therefore, in case, the report has been ignored, as far as the petitioner is concerned, no illegality has been committed by the Sanctioning Authority. 6 Thirdly, a prima facie case does exist against the petitioner as he, along with Mr. Ram Swaroop, had recommended that the pipes be bought, although the pipes were not upto the standards prescribed by the Government. Once a prima facie case is made out, the Sanctioning Authority was within its powers to grant the sanction for prosecution. Forthly, the scope of judicial review under Article 226 of the Constitution of India of such an order is extremely limited one. Since the trial is yet to begin, it is not for this Court to invoke its writ jurisdiction and to close the trial at the very inception. It is, in fact, for the petitioner to lead evidence to buttress his defence. His defence, at initial stage, cannot be considered by this Court in its writ jurisdiction under Article 226 of the Constitution of India. Therefore, the learned counsel has supported the impugned order. 7 Heard learned counsel for the parties, perused the impugned order as well as the report of the Lokayukta. A bare perusal of report of Lokayukta clearly reveals that the Lokayukta had received a complainant against four persons only as mentioned above. Thus, the complaint did not relate to the petitioner. Therefore, while giving his finding, the learned Lokayukta did not give any finding qua the petitioner. In fact, there was no need for the learned Lokayukta to go into the question of the petitioner's action or omissions for the simple reason that no allegations were made against the petitioner in the complaint. In case, the Lokayukta were to go into the question of the petitioner's omissions and actions, obviously, the learned Lokayukta would have over-stepped his jurisdiction. Therefore, the learned Lokayukta was justified in limiting the inquiry only against the four persons against whom he had received the complaint. Hence, as far as the 8 petitioner is concerned, the entire report is absolutely irrelevant. Moreover, even if there are passing reference to the fact that the petitioner was a member of the inspecting team, and even if there is a silence on the part of the learned Lokayukta about the role played by the petitioner, such a silence cannot be interpreted to be in favour of the petitioner. Thus, even if the report was placed before the Sanctioning Authority, the Sanctioning Authority need not have considered the said report qua the petitioner. Thus, the fact that the Sanctioning Authority does not mention the report of the learned Lokayukta qua the petitioner, it would not dilute the sanctity of the sanctioning order. The learned counsel has relied upon the case of Madhya Pradesh Special Police Establishment (supra) to argue that the report of the learned Lokayukta cannot be brushed aside. However, the principle enunciated by the Hon'ble Supreme Court are inapplicable to the present case for the simple 9 reason is that the report of the learned Lokayukta did not deal with the action or omission of the petitioner. Thus, the question of considering the report of the learned Lokayukta qua the petitioner loses its significance. Hence, it cannot be held that the report of the learned Lokayukta has been ignored. Therefore, the judgment in the case of Madhya Pradesh Special Police Establishment (supra) does not come to the rescue of the petitioner. The second limb of the argument of the learned counsel for the petitioner is that all the material was not placed before the Sanctioning Authority. However, the learned counsel has failed to point out the other materials, which was collected during the investigation, but was not placed before the Sanctioning Authority. Hence, the judgment in the case of Ameer Jan (supra) does not come to the rescue of the petitioner. 10 It is undisputed that although the petitioner was working at Delhi, vide order dated 22.09.1984, he was directed to carry out the inspect along with Mr. Ram Swaroop. It is also admitted that the petitionr along with Mr. Ram Swaroop carried out the inspection and submitted the inspection report in favour of M/s. Manju Shri Enterprises, Bikaner. The said report is available before the Court as Ann.3. The test certificate issued by National Test House, Alipur, Calcutta is also available in the record which clearly states that the sample was collected and sent. But the samples does not conform to ISI- 444-1980. However, the negative report, the petitioner along with Mr. Ram Swaroop, had still recommended that the pipes be bought by the Government. Thus, prima faice evidence does exists against the petitioner. Since, a prima facie case does exist, the Sanctioning Authority was certainly justified in issuing the sanction order. Section 19 of the Prevention of Corruption 11 Act and Section 197 of Code of Criminal Procedure are pari materia to each other, as both the provisions prevent the court from taking cognizance until and unless a previous sanction for prosecution has been accorded by the competent authority. Both these provisions were enacted in order to protect public officers from frivolous, baseless, false and fabricated cases. It is a shield provided to the public officers, so that the public officer can work fearlessly, impartially and objectively while discharging his public duties. But the said shield should not be used as a fig leaf to hide one's legal nakedness. In catena of cases, the Hon'ble Supreme Court has dealt with the issue regarding validity of sanction order. In the case of State (NCT of Delhi) Vs. Navjot Sandhu (2005)11 SCC 600, the supreme Court had held that the grant of sanction is an executive act and the validity thereof cannot be decided in the light of principles applied to quasi judicial orders. There are four tests to be applied 12 while dealing with validity of sanction order; firstly, the sanction order has been passed by the Competent Authority; Secondly, all the relevant evidence, both against and in favour of the accused, should be placed before the Sanctioning Authority; Thirdly, the Sanctioning Authority should have applied its mind to conclude that the accused should be prosecuted; Fourthly, the application of mind should be objective and impartial and not at the behest of any other authority. In case, after going through all the relevant evidence, a prima facie case is made out against the accused, the Sanctioning Authority can grant sanction for prosecution. [Refer to Navjot Sandhu (supra); C.S. Krishnamurthi Vs. State of Karnataka (2005)4 SCC 81; State (Anti Corruption Branch) Govt. of NCT of Delhi Vs. Dr.R.C. Anand (2004)4 SCC 615; Shankerbhai Laljibhai Rot Vs. State of Gujarat (2004)13 SCC 487] The scope of judicial review of a sanction order is a limited one. While examining the validity 13 of a sanction order, the High Court under Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure, should apply the four tests mentioned above. It is not for the High Court, under writ jurisdiction or under its inherent power, to meticulously examine the evidence of prosecution and the evidence produced by accused, through affidavits and documentary evidence. For, the High Court should not interfere at the very inception of the trial. At a premature stage the High Court cannot weigh the evidence and adjudicate upon the guilt of accused. Weighing of evidence, and the decision with regard to guilt or innocence of the accused, is the function of the trial court and not of the High Court under its writ jurisdiction or under the inherent power. [Refer to State of Bihar Vs. P.P. Sharma IAS, 1992 Supp.(1) SCC 222; State of M.P. Vs. Dr.Krishna Chandra Saksena (1996)11 SCC 439]. Keeping the principles annunciated by the Apex Court in mind and perusing the sanction order 14 dated 21-4-1994, this Court finds that the Sanctioning Authority has considered the evidence, which was submitted before it and has objectively applied his mind in order to grant the sanction for prosecution. Therefore, this Court is of the opinion that the sanction order has been passed validly and legally by the Sanctioning Authority. It is, however, clarified that merely because the sanction order has been issued validly, it should not prevent the trial court from assessing the defence, if any, pleaded by the accused, in impartial and objective manner. Hence this writ petition is devoid of merit. It is, hereby, dismissed. There shall be no order as to costs. [R.S.CHAUHAN]J A.Asopa/