- (1.) K. C. Bhargava, J. By means of this petition under Section 482 of the Code of Criminal procedure the petitioner has prayed for quashing the proceedings initiated against the petitioner under Section 13 (1) (c) read with Section 13 (2) of Prevention of Corruption Act, 1988 pending in the Court of Special Judge, Lucknow, along with the sanction which has been accorded in the case.
(2.) THE facts which are material for the purposes of this case need only be narrated. According to the petitioner he was working as Engineer-in-chief but the order, dated 25th November, 1991 passed by the Principal Secretary the Cell wherein the petitioner was posted as Engineer-in-Chief was abolished and the petitioner was reverted to the post of Chief Engineer and was attached to I. P. M. C. which was created under the Nagar Vikas Vibhag for the purposes of monitoring the works of the World Bank aid. This order cancelling the Cell and reverting the petitioner was challenged in Writ Petition No. 7802 of 1991. This petition was allowed by this Court on 24th April, 1992 and it was directed that the petitioner be posted in any of the development authorities. This order was not complied with and the State filed Special Leave Petition No. 8564 of 1992 before the Hon'ble Supreme Court but failed to obtain any stay order therein. At the time of admission of the Special Leave Petition the Hon'ble Supreme Court expressed its dis pleasure for not implementing the orders of the High Court. Instead of complying with the orders of the High Court the petitioner was falsely implicated under Section 13 (1) and 13 (2) of the Prevention of Corruption Act, 1988. A complaint was lodged against the petitioner in the year 1988 under Section 5 (1) and 5 (2) of the Prevention of Corruption Act, 1947. THE enquiry was ordered by the Government on 10. 5. 1988 which was to be conducted by the Vigilance Department for the period from 21. 9. 1970 to 31. 3. 1988. THEreafter a first information report was lodged against the petitioner on 25. 8. 1992 and the petitioner was arrested on 8-1-1992. He was released on bail on 4-9-1992. A charge- sheet, dated 2. 9. 1992 was filed in Case Crime No. 92 of 1988 against the petitioner. THE petitioner has thereafter, given the details of his income and expenditure which were not accepted by the Vigilance Department and they found that the petitioner was having assets disproportionate to his known sources of income. According to the petitioner exagerated amounts of expenditure have been shown in the balance-sheet prepared by the vigilance department and no primafacie case is made out agaisnt the petitioner under the provisions of the Prevention of Corruption Act. It is further alleged that there was no material before the sanctioning authority on the basis of which it formed the opinion for granting permis sion of prosecution under the said provisions of law. On behalf of the State a counter-affidavit and a supplementary counter-affidavit have been filed. It is alleged that on a complaint made by one Anugrih Singh and Ors. , dated 16th May, 1988 orders were passed for enquiring into the alleged allegations. The check period was taken from 20th September, 1970 to 31st March, 1988. From the enquiry it revealed that the petitioner had an income of Rs. 20, 28, 917. 00 from different sources. The expenditure during this period came to Rs. 29,28,052. 00. In this way property worth Rs. 8,89,135. 00 more was found in possession of the petitioner which could not be satisfactorily explained. This amount has been accumulated due to illegal means. The petitioner was arrested on 1. 9. 1992 and charge-sheet was filed in the Court against the petitioner on 2. 9. 1992. It is further alleged that Annexure-7 which is a document filed by the petitioner is a rough estimate of domestic expenses of Rs. 2,04,321. 00 as was found during the course of investigation and the correct expenditure has not been shown by the petitioner. This has been correctly shown in the charge-sheet. The investigation was got done by the State Government through Vigilance Department vide letter, dated 16th May, 1988. The documents of income tax filed by the petitioner cannot be relied upon because the expenditure and the income has been shown by the petitioner himself which has not been scrutinised by the Income-Tax Department. The details which have been shown in the Charge-sheet regarding income and expenditure are correct. The sanction has been granted by the Principal Secretary Irrigation Department on 28. 8. 1992. Investigation in this case was done by the Vigilance Department under the U. P. Vigilance Establishment Ordinance for which a notification was issued by the Government on 20. 3. 1965. The State Government also issued a notification, dated 16th May, 1988 authorising the investigation in the present case. The State Government also issued a notification, dated 12th February, 1965 specifying the offences and classes of offences which may be investigated by the Uttar Pradesh Vigilance Establishment. The State Government also issued another notification, dated September 16, 1965 providing that the investigation shall be done by the Police Officers in the U. P. Vigilance Establishment not below the rank of Inspector of police regarding the offences punishable under Sections 161, 165 or 165-A of the Indian Penal Code or under Section 5 of the Prevention of Corruption Act, 1947. Another notification was also issued by the State Government framing the Uttar Pradesh Authentication (Orders and Other Instruments) Rule, 1975. In the rejoinder affidavit the petitioner has denied the allegations made by the opposite party in the counter-affidavit and the supplementary counter-affidavits and has denied the allegations mentioned in the petition. It is further alleged by the petitioner that the income tax returns which had been filed by the petitioner regarding his income and expenditure are final and cannot be questioned. It is further alleged that sanction in the present case has not been accorded in accordance with the provisions of the law and the same has been accorded without application of mind by the conccreed authority as it has not been mentioned as to on what material the concerned authority as it has not been mentioned as to on what material the concerned authority obtained satisfaction to accord sanction.
(3.) LEARNED Counsel for the petitioner and the learned Government Advocate have been heard. LEARNED Counsel for the petitioner at the first instance has argued that sanction in the present case was to be accorded by the Governor of the Governor was the appointing and the dismissing authority of the petitioner. According to the learned Coun sel the sanction, copy of which is Annexure-8 the petition, is dated 28th August, 1992 but the same has not been accorded by the Governor after consideration of the material on record and merely the names of the Governor has been used to show that the sanction has been accorded by the Governor. Section 19 of the Prevention of Corruption Act deals with previous sanction necessary for prosecution. This section provides that cognizance of an offence which is punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by the public servant cannot be taken by any Court without the previous sanction of the authority who is competent to remove him from the office. It must be proved by the prosecution that all the facts upon which the sanction is required had been placed before the sanctioning authority and the decision had been taken by that authority after consideration of those facts. Granting of the sanction cannot be said to be a mere formality but must be a conscious Act of the sanctioning authority to see. that at least a prima facie case appears to have been made out against the government severant to lift that veil of protection afforded to the government servant. If a sanction is granted without considering the facts on which the proposed prosecution is based then the sanction cannot be said to be validly given. The burden, of prove that the sanction has been validly granted lay on the prosecution. Such burden of proof includes the proof that the sanctioning authority has given sanction in reference to the facts on which the proposed prosecution was to be based and those facts should appear on the face of the sanction or it may be proved by independent evidence that sanction has been accorded for prosecution after those facts had been placed before the sanctioning authority, (vide State of Rajasthan v. Tarachand Jain, (1974)3 SCC 440:1977 SCC (Cri 520 ). The object of obtaining sanction which has been provided by this section is that a public servant should not be unnecessarily harassed and should be saved from the harass ment on frivolous and unsubstantiated allegations. The existence of a valid sanction is pre-requisite to the cognizance of the offence. In absence of such a valid sanction the Court has no jurisdiction to take cognizance of the Offence. The trial without a valid sanction, where such a sanction is necessary, is a trial without jurisdiction of the Court, (vide S. R. Nayak v. A. R. Antulay, (1986)2 SCC 716,761:1986 SCC (Cri) 256, para 54 ). In the present case the offence with which the petitioner has been charged falls under Section 13 (1) (e) of the Prevention of Corruption Act, 1988. Under the provisions of this section if a person is found, at any time, in possession, during the period of the office, property of which he cannot satisfactorily account and which is dispropotionate to his known source of income, then it is said that he has committed an offence punishable under Section 13. The offence punishable under Section 13 is also covered by Section 19 of the Act in which case previous sanction is necessary for the prosecution. As mentioned in the earlier part of the judgment the sanction which is necessary should be a valid one and should satisfy certain requirements of law and it is not a mere formality which can be gone into by merely granting sanction without going through the material on the basis of which the sanction has to be granted. The authority sanctioning the prosecution has to satisfy himself that aprima facie case exists and an such the prosecution is necessary.;