The Allahabad High Court has dismissed the petition of Veterinary Inspector Mohammad Ali Zafar and Pharmacist/ Compounder cum Storekeeper Sushil Kumar in connection with the drug purchase scam of Rs 23.5 lakh in the Central Government Hospital located in Meerut Cantt.
A Single Bench of Justice Dinesh Kumar Singh passed this order while hearing a petition filed by Mohd Ali Zafar and Sushil Kumar.
The petitions under Section 482 Cr.P.C have been instituted before the Court challenging the Charge-sheet dated 07.02.2009 and summoning order dated 11.03.2019 passed by Special Judge (Anti-Corruption), C.B.I, Ghaziabad in Special Case under Sections 120B, 420, 468, 471 IPC and entire proceedings of Special Case pending in the Court of Special Judge (Anti-Corruption), CBI.
Petitioner Mohd Ali Zafar was posted as Veterinary Inspector and petitioner Sushil Kumar was posted as Pharmacist/Compounder-cum-Store Keeper, Central Government Hospital, Meerut Cantt. The petitioner, Mohd Ali Zafar was also officiating on the post of Office Superintendent, Cantonment Board, Meerut at the relevant time.
On the basis of a source information, a joint surprise check was conducted on 12.05.2015 and 13.05.2015 by a team of C.B.I, Ghaziabad, Ministry of Defence, Director General (Vigilance), Defence Estates, New Delhi and Drug Inspector, Central Drugs Standard Control Organization (C.D.S.C.O) in the Cantonment General Hospital, Cantt Board, Meerut.
C.B.I in the year 2015 had carried out a inspection of the Cantonment General Hospital, Meerut Cantt and finding gross irregularities registered a Regular Case on 16.03.2016 at C.B.I/A.C.B, Ghaziabad under Sections 13(2)/13(1)(d) of the Prevention of Corruption Act, 1988 against one Dr Aradhana Pathak, then Resident Medical Officer, posted at Cantonment General Hospital, Meerut Cantt and others on the allegation that during years 2011-14 said Dr Aradhana Pathak entered into criminal conspiracy with the petitioners and one Gaurav Arora, Prop M/s Arora Pharma, Meerut, U.P and other unknown persons and in furtherance of the said criminal conspiracy, she dishonestly and fraudulently purchased medicines at exorbitant rates in violation of prescribed procedure and norms and falsified the accounts (medicine stock books) and fabricated the relevant record.
During the investigation, role of one Sukhjeevan Singh Chahal, the then Chief Executive Officer (C.E.O) Cantonment Board, Meerut Cantt (since retired), petitioner- Mohd Ali Zafar, the then Officiating Office Superintendent, Office of C.E.O, Cantonment Board, Meerut Cantt came into light.
The C.B.I after investigating the offence and collecting evidence and material, prepared impugned the charge-sheet under Sections 120B, 409, 420, 468, 471, 477A IPC, 13(2)/13(1)(d) of the PC Act,1988 for causing wrongful loss to the tune of Rs 23,46,436/- to the Cantonment Board Meerut and corresponding wrongful gain to themselves.
After carrying out a detailed investigation, the C.B.I submitted a report and subsequently vide letter dated 23.08.2018 sought sanction for the prosecution of Dr Aradhana Pathak, R.M.O Cantt General Hospital, petitioner-Mohd Ali Zafar, officiating Office Superintendent of Cantt Board (both supervisory posts) and petitioner-Sushil Kumar Compounder cum Store Keeper of Cantt General Hospital (non-supervisory staff).
Cantonment Board vide C.B.R dated 15.11.2018 resolved by majority of vote that no sanction for prosecution of charged officials be given to the C.B.I, and the Board further resolved that departmental proceedings under the provisions of the Cantonment Fund Servants Rules, 1937 and CCS Rules be initiated against the charged officials namely Dr Aradhana Pathak and Mohd Ali Zafar, for which a committee was constituted, and it was conveyed to the higher authorities of the Cantonment Board as well as C.B.I/A.C.B Ghaziabad. The C.B.I thereafter submitted a charge-sheet against the accused persons on 17.03.2019.
Cantonment Board thereafter reviewed its earlier decision after considering the confidential letter dated 27.02.2019 of the Head of Branch C.B.I/A.C.B, Ghaziabad addressed to the D.D.G (Vigilance), D.E, New Delhi, copy whereof endorsed to the President, Cantt. Board, Meerut and O.S.D of C.V.C New Delhi, Directorate of Defence Estate CC letter dated 03.04.2019 addressed to the President, Cantt Board of Cantt Board Meerut, passed Resolution dated 29.05.2019 granting sanction for prosecution of charged officials after detailed deliberation and discussion in the Board.
Charges levelled against the accused officials are of corruption attracting the relevant sections of the Indian Penal Code and provisions of PC Act,1988. Charges against the officials are of criminal conspiracy and mala fide intentions of the officials resulting in monetary loss to the Government of Indian and possible wrongful gain to the officials concerned with other accused persons.
Initially, the Court order dated 11.04.2019 dismissed the petition for prayers to quash the proceedings of Special Case No.2 of 2019 pending before Special Judge Anti Corruption/C.B.I, Ghaziabad. However, the Court granted three weeks’ time to the petitioners to surrender before the trial court and for a period of three weeks, no coercive measure was to be taken against them.
The petitioners thereafter challenged the said order passed by this Court before the Supreme Court by filing S.L.P (Criminal) converted to Criminal Appeal. The Supreme Court vide order dated 31.07.2019 finding that this Court did not explicate the contentions raised by the petitioners, set aside the order dated 11.04.2019 and remitted the matter back to the Court for consideration afresh on its own merit leaving open all the contentions available to the parties, which should be decided on its merit and in accordance with law.
The Supreme Court also recorded a finding that the grievance of the petitioners that there was no sanction order against them, did not survive for consideration as C.B.I had placed on record sanction order dated 29.05.2019 issued by Cantonment Board. Whether that sanction order was just and proper was a matter, could be deliberated before the Court. The Supreme Court observed that it would be open to this court to decline to examine the challenge to sanction order on merits as it would be a triable issue.
The Court observed that,
From perusal of the aforesaid provisions, it is evident that unless the State Government gives its consent, the C.B.I would not have the power for investigation of an offence in any area of the State Government. Similarly, under Section 6A of the Delhi Special Police Establishment Act, 1946 without the previous approval of the Central Government, the C.B.I would not have jurisdiction to investigate the offence under the PC Act against the employees of the Central Government of the level of Joint Secretary and above and such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned and controlled by that Government.
There can be no dispute that an area falling under the Cantonment is not an area under the State Government and nor the petitioners are employees of the Central Government or appointed by the Central Government in the Cantonment Board. Thus, there is no applicability of Section 6 or 6A of the Delhi Special Police Establishment Act, 1946 in the present case. The petitioners are neither employees of the State Government nor Central Government nor the area of Cantonment Board, Meerut falls within the jurisdiction or control of the State Government.
The State Government has issued notification dated 15.6.1989 in pursuance of the provisions of Section 6 of the DPSE Act.
The State Government vide Government Order dated 03.05.2019 has clarified that there is no requirement of any consent in respect of employees of the Cantonment Board as they are not the employees of the State Government and the area of Cantonment does not fall within the area of jurisdiction of the State Government.
In view thereof, in respect of the investigation of the offences committed by an employee of the Cantonment Board or an offence committed within the area of Cantonment Board, no consent of the State Government or the Central Government is mandatory for undertaking the investigation by the C.B.I I, therefore, I find no substance in the submissions of Ashok Mehta, Senior Advocate that without prior consent of the State Government in respect of the offence committed under the PC Act,1988 by an employee of the Cantonment Board, Meerut, investigation was without jurisdiction and charge-sheet filed was illegal being without jurisdiction.
So far as question of sanction accorded by cantonment Board vide order dated 29.05.2019 for prosecution of the petitioners is concerned, resolution dated 15.11.2018 had been resolved by majority of vote that no sanction for prosecution of Dr Aradhana Pathak and petitioner Mohd Ali Zafar to be given to the C.B.I and departmental proceedings under the provisions of Cantonment Funds Service Rules, 1937 and CSS Rules be initiated against the charged employees for which a committee was constituted. However, after other material was placed before the Board, it has been resolved vide order dated 29.05.2019 to grant sanction for prosecution. The Supreme Court itself in its order dated 31.07.2019 has held that this Court may decline to examine the challenge to the sanction order on merit as it is a triable issue. The earlier resolution appears to have been granted in ignorance of the correct legal position and when the correct legal position was brought to the notice of the Board, it did grant sanction for prosecution. I find no illegality in the sanction order for prosecution of the petitioner.
“Valid sanction by the competent authority under Section 19 of the PC Act is sine qua non for taking cognizance of an offence against a public servant under PC Act, 1988. If the sanction is held to be invalid, entire proceedings undertaken by the trial court would be void. Section 19 of the PC Act forbids taking of cognizance by the court against a public servant for an offence except previous sanction of the competent authority. Competence of the Court tyring the accused depends upon the existence of a valid sanction. In case, the sanction is found to be invalid, the court can discharge the accused, relegating the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with law. If the trial court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non est in the eyes of law and shall not forbid a second trial for the same offence upon grant of a valid sanction for such prosecution. Sanction order may be challenged on two grounds namely; sanction granted by an authority not competent to accord sanction. Such an order would be without jurisdiction and nullity. However, if there is an error, omission or irregularity in sanction order, the same would not be fatal unless it has resulted in violation of justice.
For taking cognizance under Section 19 of the PC Act, incriminating material should be placed before sanctioning authority in order to apply its mind and take a decision for grant of sanction. Whether there is an application of mind would depend on the facts and circumstances of each case. There is a distinction between the absence of sanction and the alleged invalidity on account of nonapplication of mind. Former question can be entertained at the threshold but the latter is a question which has to be entertained during trial. It is not in dispute that in the present case there is a sanction for prosecution of the petitioners which has been granted by the Board vide order dated 29.05.2019. Whether there was the material and evidence placed before the authority to grant sanction which was refused earlier by the order dated 15.11.2018 is a question which can be decided by the trial court after leading evidence by the prosecution and the defence. The court, therefore, does not find it appropriate to decide the said issue on affidavits in these proceedings”, the Court further observed while dismissing the petitions.