The Allahabad High Court has granted no relief to the Chief Finance and Accounts Officer in the case of corruption and dismissed the petition on merits.
The Division Bench of Justice Anjani Kumar Mishra and Justice Deepak Verma passed this order while hearing a petition filed by Sushil Kumar.
The writ petition has been filed seeking the following reliefs-
“(i) issue a writ, order or direction in the nature of mandamus or any appropriate order staying any proceeding arising out of FIR bearing No.RC/DST/2018/A/ 0004/CBI/SFT/DLI dated 17.01.2018 u/s 120B IPC & Sec. 13(2) r/w 13(1) (b) & 13(1) (d) of the Prevention of Corruption Act, 1988 against the petitioner till the pendency of the instant writ petition; and/or
(ii) issue a writ, order or direction in the nature of certiorari for setting aside and / or to quash the sanction for prosecution bearing no.S-2- 1/113010/10-2021 dated 11.11.2021 issued by the Additional Chief Secretary, Govt. of U.P. (Finance Department) against the petitioner in FIR bearing No.RC/DST/2018/A/ 0004 / CBI / SFT / DLI dated 17.01.2018 u/s 120B IPC & Sec. 13(2) r/w 13(1) (b) & 13(1) (d) of the Prevention of Corruption Act, 1988 registered by the respondent CBI and any other consequential proceeding arising thereto; and /or”
The first submission of the counsel for the petitioner is that the petitioner was working as Chief Finance and Accounts Officer. However, the sanction has been granted mentioning his post as Senior Accounts Officer with the Noida Authority and therefore, the sanction order is without application of mind.
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The next submission of the counsel for the petitioner is that the petitioner was posted as Chief Finance and Accounts Office between 13.07.2007 to 10.09.2010, whereas the first information report pertains to the period between 2007 to 2011.
Counsel for the petitioner submitted that the Principal Secretary, Government of U.P had issued a letter dated 16.07.2021 calling for explanations and clarifications, as regards, the role of the petitioners. This clarification / explanation has been sought from the CEO, Noida but no reply to the same has been received till date.
In support of his contention, counsel for the petitioner has relied upon the judgement of the Apex Court in Central Bureau of Investigation Vs Ashok Kumar Aggarwal (2014) 14 SCC 295 and a Division Bench of the Lucknow Bench of the Court in Misc Bench No 3290 of 2021 dated 09.02.2021 in Jitendra Katiyar Vs State of U.P.
AGA on the other hand submitted that the writ petition is not maintainable. The validity or otherwise of the sanction order is to be examined during trial. Even otherwise, the entire material had been produced before the sanctioning authority. The sanction order has been passed after due perusal of the said material and therefore, also, the writ petition is liable to be dismissed.
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The Curt observed that,
It is true that it has been observed even in the judgement in Central Bureau of Investigation Vs Ashok Kumar Aggarwal (Supra) relied upon by the counsel for the petitioner that at the appropriate stage for examining the validity of the sanction granted for prosecution is during the trial itself. However, it was in the peculiar facts and circumstances of the case that the matter was in fact dealt with by the Apex Court. It is to be noted that the validity of the sanction order had been challenged before the trial Court. This challenge failed, whereafter a revision was filed in the High Court, which was allowed and the matter was remanded back for passing a fresh order in accordance with law after examining the sanctioning authority as a witness even at that stage, if deemed fit.
The facts of the case are clearly distinguishable as the sanction order is being challenged by means of this writ petition without recourse to its challenge before the trial Court.
The Court noted that from the submissions made by the counsel for the petitioner, as also the material brought on record and the averments in the writ petition, it is not the petitioner’s case that the entire material required to be considered by the sanctioning authority had not been placed before it. This submission only is that certain clarifications had been sought at the instance of the sanctioning authority from CEO, Noida, which clarifications were never received and therefore, the sanctioned order is bad.
The Court opined that this argument does not help the petitioner in any manner. The sanction order for prosecution is to be granted by the sanctioning authority on the basis of material collected during investigation by the investigating agency.
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The Court said that,
From perusal of the sanction order, it clearly emerges that such material had been produced before the sanctioning authority and the same was perused and taken note of while granting sanction for prosecution. Any reply or explanation by CEO, Noida which is not the investigating or prosecuting agency, would be irrelevant for the purposes of grant to sanction. The second contention of counsel for the petitioner is therefore, repelled.
In so far as the first submission that petitioner has been described as Senior Finance & Accounts Officer and not as Chief Finance and Account Officer as is mentioned in the charge sheet and which post, the petitioner is stated to have held, the same appears to be a typographical error or a minor omission, which does not detract from the sanction order or the charge sheet.
The name of the petitioner is clearly mentioned both in the charge sheet and in the sanction order and merely because his designation is wrongly mentioned, the same is not something which goes to the root of the order and would vitiate it.
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The third submission is that the petitioner was posted as Chief Finance & Accounts Officer only during the period from 13.07.2007 till 10.09.2010 is also not clinching, inasmuch as, the first information report and the case pertains to the period from 2007 to 2011. The petitioner was holding the post in question, during the period for which the charge sheet has been filed.
It would also be relevant to note that there is no material on record to show as to the manner in which the CVC guidelines have been violated, the Court further noted.
“Even in the judgement of the Lucknow Bench of the Court in Jitendra Katiyar (supra), the sanction order was quashed only because the entire material required to be placed before the sanctioning authority was not before it. Such is not the position in the case at hand. Therefore, the petitioner is not entitled to any benefit of this judgement either”
-the Court further said.
“In view of the above and since the contentions raised by the counsel for the petitioners have been repelled herein-above, the writ petition is found to be without merit. It is, accordingly, dismissed’, the order reads.
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