KRISHNA MURARI PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) THE instant case has already made a chequered history as this is the 4th round of litigation before this Court, though the trial has not yet commenced. Petitioners were arrested on 7.6.1992 on the basis of an F.I.R. lodged under Section 409, I.P.C. read with Section 5 (1) of the Official Secrets Act, 1923 (hereinafter called the Act). Petitioner No. 1 who had been posted as Secretary of the U.P. Public Service Commission, was working as a co-ordinating Supervisor at the relevant time and the petitioner No. 2 was functioning as relieving invigilator in the Civil Service (Preliminary) Examination, 1992. Allegation against the petitioners are that in contravention of the instructions issued by the Union Public Service Commission, petitioner No. 1 entrusted two test booklets of that examination to petitioner No. 2 for getting it photo-copied from the market. Petitioner No. 2 complied with the direction and the same was returned at 11.30 a.m. when the same could not have been taken outside the examination hall and the said booklets ought to have been sealed by 10.30 a.m.

(2.) THE C.B.I, investigated the matter and obtained sanction from the Government of Uttar Pradesh as required under Section 13 of the Act, vide impugned order dated 17.2.1993 (Annexure 1 to the writ petition). On the basis of the said sanction, complaint case No. 3 of 1993 was filed before the C.B.I, court, Lucknow (Annexure 2 to the writ petition). On the basis of the said complaint, summons were issued to the petitioners by the learned Magistrate on 18.2.1993, vide Annexure SA-1. Petitioners moved an application before the learned Magistrate to discharge summons as no case under Section 5/9 of the Act could be made out against them, but the learned Magistrate rejected the same, vide order dated 15.4.1994. Being aggrieved, the petitioners filed Criminal Misc. Application No. 3032 of 1994 under Section 482, Cr. P.C. for quashing of the complaint (Annexure 2 to the writ petition), but this Court rejected the said application, vide its order dated 11.5.1994 as it was not found maintainable (Annexure SA-3 to the writ petition). Petitioners filed Criminal Revisions Nos. 717 and 718 of 1994 for quashing of the order of the learned Magistrate dated 15.4.94, but this Court dismissed the said revisions as being against interlocutory order, not maintainable, vide order dated 27.9.1994 (Annexure SA-4 to the writ petition). However, observing that the Issue of discharge can be raised before the trial court in accordance with the provisions of Section 228, Cr. P.C. at the appropriate stage and the trial court can examine the same meticulously at that stage as in was neither possible nor necessary for the learned Magistrate to arrive at a decision whether the accused persons had committed the offence or not at the time Of taking cognizance.

(3.) THE object and purpose of restraining the Court to take cognizance without the sanction under Section 13 of the Act is to prevent unnecessary harassment of the accused and to safeguard the larger interest of the State. In Dharam Swamp v. State, AIR 1953 All 23, this Court held that 'the discretion to sanction prosecution is vested solely in the sanctioning authority and is absolute. Its exercise cannot be questioned in a Court of law...........No hard and fast rule can be laid down as to what facts are necessary to be brought to the notice of the sanctioning authority and it cannot be challenged on the ground that necessary facts were not brought to the notice of the sanctioning authority'. Similarly, in Vishwanath Agarwal v. State of U. P., AIR 1956 All 557, the Division Bench of this Court held that the satisfaction of the sanctioning authority must be the satisfaction of that authority alone and not of the Court or any other reasonable person. It is a subjective satisfaction of the authority and Court cannot enquire into the reasons for the said satisfaction or into sufficiency of the said reasons. In Superintendent of Police (C.B.I.) v. Deepak Chowdhari, JT 1995 (6) SC 532, the Honble Apex Court held that the sanctioning authority is required only to see whether the material collected during investigation would constitute an offence for which the sanction is sought. In State of Bihar and another v. P. S. Sharma and another, AIR 1991 SC 1260, the Honble Supreme Court has observed that the sanctioning authority must have before it all the reports and material facts which may prima facie establish the commission of offence and the sanctioning authority must apply its mind to those facts. As the order of sanction is administrative and not quasi-judicial nor a lis involved, the order may not contain the detailed reasons. THE Apex Court further observed as under :