- (1.) THROUGH this petition, the petitioner has challenged the charge sheet filed in Criminal Case No.9 of 2009 (State Vs. Raj Gopal Singh Verma and Others) under Section 120-B read with Section 409 IPC and Section 8 & 13 (2) read with Section 13 (1) (a) (d) of the Prevention of Corruption Act, 1988 along with the order dated 7/6/2011 and he has also prayed for discharge from the offences alleged against him.
(2.) THE facts giving rise to the present petition are that the petitioner happened to be posted as Director Information in the Department of Information, Government of U.P., Lucknow from 19/12/1999 to 11/7/2000. Selection process for Group 'C' employees was initiated in the year 1998 and in pursuance thereof a written examination was held in 1998 itself. THE said examination was conducted by IMDUP, Aliganj, Lucknow, a Government of U.P. establishment. Results of the examinations were forwarded to the Directorate of Information and Public Relations in the sealed cover by the said establishment and when this Court at Allahabad gave direction in Writ Petition No.3568 of 2000 to declare the results of the examinations within three months, the process of selection was initiated and number of Selection Committees were constituted to conduct the interviews for different types of posts as per rules. Mr. Prabhat Kumar Sinha, the then Additional Director was the Chairman of all such Selection Committees. The Committees also comprised of different nominees belonging to Scheduled Castes and Scheduled Tribes, field experts and one nominee of Collector, Lucknow in respect of the said selection. Mr. Raj Gopal Singh Verma, the then Deputy Director was the Nodal Officer for recruitment since 1998 much before holding of the interview in May 2000. The process of selection went on and was completed in respect of certain posts and recommendation of the Selection Committee was required to be approved but at this juncture it is alleged that new Government was formed and with the formation of new Government, new Chief Minister ordered orally to stall the selection process. After receiving this information, the petitioner forwarded concerned selection file to the then Secretary (Information), who was also holding the charge of Secretary to the Chief Minister for guidance and further action. Later on, it came to the knowledge that the Chief Minister wanted to re-examine the necessity to fill the said posts. In the meantime, when all these processes were going on, the petitioner was transferred on 11.7.2000 from the post of Director, Information & Public Relations. As the selection process was withheld, various writ petitions were filed before the High Court and the High Court directed several times to complete the selection process and declare the results but the Government on one pretext or the other did not complete the selection process and declare the results and at the end of November 2001 Government of U.P. came forward with a plea before the High Court that the results could not be declared due to non-availability of result sheets and it was also pleaded before the High Court that the result sheets were missing from the file. As the process of selection could not be completed, the High Court passed an order in Writ Petition No.6532 (S/S ) of 2001 directing the Chief Secretary to get a thorough enquiry conducted by an officer in the rank of Principal Secretary. Accordingly, the enquiry was conducted by Mr. Ajit Seth, IAS, who suggested disciplinary proceedings against Mr. Raj Gopal Singh Verma, Nodal Officer, Mr. Prabhat Kumar Sinha, Additional Director and Mr. Avadhesh Narain Dubey. In the said report Mr. Ajit Seth did not indict the petitioner in respect of any misconduct. In the report dated 22.2.2002 Mr. Ajit Seth, the Enquiry Officer, has observed that Mr. Prabhat Sinha, the then Additional Director, Information, has given his written reply dated 20.12.2001 to the show cause notice dated 6.12.2001 in which he pointed out that the said File No.55/98 TC was lastly submitted to the then Director Information on 24.8.2000 by his office and the final results were kept in a sealed cover in the said file. The High Court also passed an order on 28.7.2003 in Writ Petition No.6532 (S/S) of 2001 directing the Director CBI with a copy to DIG/SSP, CBI Lucknow to register a case and investigate the same and after investigation submit a report to the High Court within three months. In compliance of the said order dated 28.7.2003, an FIR dated 24.9.2003 was registered by the CBI although an FIR in this regard had also been registered with the local police at Crime No.37 of 2002 under Section 409 IPC at police station - Hazratganj, Lucknow on 18.1.2002. The CBI submitted a report to the High Court alleging therein that Mr. Raj Gopal Singh Verma, Mr. Prabhat Kumar Sinha and Mr. Mahesh Kumar Gupta have committed the offences of criminal conspiracy, breach of trust and bribery by misusing their official positions and Mr. Akhilesh Chandra Shukla was also arraigned as co-accused as abettor of bribery. Writ Petition No.6532 (S/S) of 2001 was disposed of vide order dated 19.10.2006. While disposing of the said writ petition this Court made it clear that the interview sheets were misplaced from the office of Information Department in between 7.8.2000 and November, 2001.
(3.) IT is to be noted that the petitioner was transferred and handed over charge on 11.7.2000. No appeal has been filed against the said order of the High Court dated 19.10.2006 either in the Supreme Court or before any other forum and has attained finality. When in Writ Petition No.3772 (S/S) of 2000, an order was passed by the High Court on 25.7.2000 commanding the authorities to declare the results within fifteen days, then the Department came forward with an application along with an affidavit of the then Additional Director on 11.8.2000 and prayed for extension of time on the ground that the appointing authority was out of station. No allegation was made in regard to the missing of broadsheets in the said application. On 2.11.2000, another application along with an affidavit of Mr. Umesh Sinha, the then Director, Information, was filed seeking clarification of final order dated 25.7.2000 and again nothing was mentioned in this application in regard to the missing of broadsheets. He also stated that the file was placed before him on 17.8.2000. Thereafter contempt proceedings were initiated against the Department and Contempt Petition No.1706 (c) of 2000 (Amrendra Pratap Singh Vs. Sri Yogendra Narain and others) was registered. In the said contempt petition, an affidavit was filed by Mr. Umesh Sinha, the then Director on 22.11.2000 and reply of the Director contained several reasons for not complying the order of the High Court but there is no whisper of missing of broadsheets of interview. Note-sheet of the said file is silent from 17.8.2000 to 7.8.2001 although the file moved to various tables in filing applications and affidavits in pending writ petitions and contempt cases. A letter was also written to the Additional Chief Standing Counsel of the High Court on 18.1.2001 for legal opinion regarding cancellation of results by the Chief Minister but in this letter nothing was said about missing of broadsheets. The State Government came out with a plea after 17 months that the broadsheets of the interview were missing from the record. The interviews were conducted in June 2000. After filing the charge sheet, summons were issued to the petitioner and thereafter an application for discharge was moved by the petitioner along with other accused persons. Objection was filed to the discharge application and reply to the objection was also filed and after considering the pleas of the petitioner and the opposite party, the discharge application filed by the petitioner was rejected vide order dated 7.6.2011. Hence this petition. Submission of learned counsel for the petitioner is that the prosecution of the petitioner is not permissible in view of the fact that the sanction has been refused by the State Government as well as by the Central Government. Central Government vide order dated 31st March 2008 has refused to grant sanction under Section 19 (1) of the Prevention of Corruption Act whereas the State Government has refused to grant sanction by means of order dated 2.1.2008. The State Government has refused to grant sanction to prosecute the petitioner under Section 409/120-B IPC and under Sections 8 & 13 (1) (a) (d) read with Section 13 (2) of the Prevention of Corruption Act. Central Government has refused to grant sanction against the petitioner to prosecute him under Section 19 (1)) of the Prevention of Corruption Act. The alleged act of the petitioner is connected with the discharge of official duty and the same has been performed in the course of discharge of official duty, therefore, for prosecuting the petitioner, sanction is sine qua non and in case sanction has been refused, then the petitioner cannot be prosecuted. It has also been submitted that the prosecuting agency has not been able to collect any evidence in regard to the receiving of money by the petitioner and the confessional statement of the person, who has been relied upon, namely Pankaj Darbari did not accompany the other accused, who is alleged to have handed over the money. No transaction has taken before him. Other accused have emphatically denied any such transaction. The State Government came out with the missing of broadsheets at the very belated stage i.e. after 17 months whereas time and again letters were written and affidavits were filed in the Court. Reply was filed in the contempt Court and at no point of time, it was ever pointed out that the broadsheets were missing. The selection was cancelled maliciously with the swearing in of the new Government. Decision was taken to stall the process of selection. The petitioner immediately forwarded file and documents which were required at his end to the Secretary (Information), who was also Secretary to the Chief Minister and at no point of time it was ever pointed out that the broadsheets were missing whereas in the inquiry report of Mr. Ajit Seth it has specifically been stated that Mr. Prabhat Sinha in his reply dated 20.12.2001 has stated that he has sent file to the Director on 24.8.2000, on the last occasion and broadsheets were very much present in the file. Learned counsel, therefore, submits that there is no evidence on record against the petitioner to prosecute him either for missing of broadsheets or for transaction of money.;