SURESH CHANDRA GUPTA Vs. STATE OF U P

JUDGEMENT

(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.

(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 ).