# Giri Raj Sharma v. State of U.P

- **Citation:** (2022) 1 ILRA 228
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-17
- **Case number:** Application U/S 482/378/407 No. 3274 of 2018
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/giri-raj-sharma-v-state-of-u-p-47652
- **Pages:** 17

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 120-B, 420, 468 and 471 , The
Prevention of Corruption Act, 1860 -
Sections 13(2) & 13(1)(d) - once the
sanction order is refused, in absence of
fresh material, it cannot be reviewed or
reconsidered. (Para -47 )

Petitioners along with other officials of
Airports Authority of India and a private
contractor - entered into a criminal conspiracy
- committed offence of cheating, forgery and
criminal misconduct - caused a huge wrongful
loss - competent authority initially did not
grant sanction for prosecution - ground -
evidence available on record not sufficient to
prosecute the officers of AAI - on the
direction of Central Vigilance Commission,
such sanction for prosecution was granted
.(Para - 9, 11,25)

HELD:-Impugned sanction order not a valid
order in as much as no fresh material was
produced before the sanctioning authority and
no
further
investigation
of
any
kind
whatsoever has been carried out by the
investigating agency. Hence, the sanction
order is unwarranted. Sanctioning authority
has got no authority or power to review or
reconsider its earlier order whereby he has
refused to grant the sanction to prosecute the
officers
of AAI, the petitioners hereto.
Impugned
prosecution
sanction
order,cognizance order and order passed by
trial
court
quash/set
aside.(Para
-
51,52,53,54)

Petitions allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,617 of 56,494. This is a partial read: ask again with offset=39617 for what follows._

228 INDIAN LAW REPORTS ALLAHABAD SERIES

We propose that the Section may be
expanded as follows:-

"561 A. Nothing in this Code shall be
deemed to limit or saving of

inherent powers of Criminal Courts,
affect the inherent power-

(a) of the High Court to make such
orders as may be necessary to give effect to any
order under this Code or to prevent abuse of the
process of any Court or otherwise to secure the
ends of justice, or (b) of any Criminal Court to
make such orders as may be necessary to
prevent abuse of its process or otherwise to
secure the ends of justice."

17. In the case of Ram Lal Yadav (supra)
the provision of anticipatory bail, under Section
438 Cr.P.C. was not existing, therefore, there
was a delima to get the remedy of pre arrest
during investigation, then it was clarified by this
Court that High Court has no inherent powers,
under Section 482 Cr.P.C. to interfere with the
arrest of accused persons during the course of
investigation, but it was clarified that High Court
can always issue a writ of mandamus, under
Article 226 of the Constitution restraining the
police officer for misusing his legal power in
relation to arrest and FIR can be quashed, under
Section 482 Cr.P.C., which is covered under the
principle laid down by Hon'ble Supreme Court
in the Case of Bhajan Lal (supra) and the
present case law laid down by the Hon'ble
Supreme Court in the cases as discussed above.

18. In the present case, First Information
Report No. 501 of 2019, under Sections 323,
354, 498A, 504 I.P.C. and Section 3/4 of Dowry
Prohibition Act, 1961, Police Station Mandion,
District Lucknow was lodged on 14.06.2019 by
the opposite party No.4 and during the course of
investigation,
FIR
and
its
consequential
proceedings were challenged before this Court,
and thereafter, matter was referred to the
Mediation and Conciliation Centre of this Court
with the consent of counsel for the opposite party
No.4 on the first date and it was successfully
concluded and presently opposite party No.4 is
enjoying her matrimonial life and residing with
her husband and children. As in the case of Ram
Lal Yadav (supra), this Court held that
Investigating Officer can not be restrained from
arresting the accused of a cognizable offence.
The Hon'ble Supreme Court in the case of
Bhajan Lal (supra) and Ramawatar (supra)
already held that FIR and its consequential
proceedings can be quashed (u/s 482 Cr.P.C.),
therefore, this Court is of the view that impugned
FIR and its consequential proceedings is liable to
be quashed in terms of settlement agreement of
parties before Mediation and Conciliation Centre
of this Court.

19. For the discussions made above, the
present application (u/s 482 Cr.P.C.) is allowed
and First Information Report No.501 of 2019,
under Sections 323, 354, 498A, 504 I.P.C. and
Section 3/4 of Dowry Prohibition Act, 1961,
Police Station Mandion, District Lucknow, is
hereby quashed.

20. Office is directed to communicate this
order to the Chief Judicial Magistrate, concerned,
forthwith.
----------
(2022)01ILR A228
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.12.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482/378/407 No. 3274 of 2018
connected with
Application U/S 482/378/407 No. 3015 of 2020
with
Application U/S 482/378/407 No. 2210 of 2018

Giri Raj Sharma ...Applicant
Versus
State of U.P. ...Opposite Party
1 All. Giri Raj Sharma Vs. State of U.P.
229
Counsel for the Applicant:
Nandit Kumar Srivastava, Pranjal Krishna

Counsel for the Opposite Party:
Bireshwar Nath, Anurag Kumar Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 120-B, 420, 468 and 471 , The
Prevention of Corruption Act, 1860 -
Sections 13(2) & 13(1)(d) - once the
sanction order is refused, in absence of
fresh material, it cannot be reviewed or
reconsidered. (Para -47 )

Petitioners along with other officials of
Airports Authority of India and a private
contractor - entered into a criminal conspiracy
- committed offence of cheating, forgery and
criminal misconduct - caused a huge wrongful
loss - competent authority initially did not
grant sanction for prosecution - ground -
evidence available on record not sufficient to
prosecute the officers of AAI - on the
direction of Central Vigilance Commission,
such sanction for prosecution was granted
.(Para - 9, 11,25)

HELD:-Impugned sanction order not a valid
order in as much as no fresh material was
produced before the sanctioning authority and
no
further
investigation
of
any
kind
whatsoever has been carried out by the
investigating agency. Hence, the sanction
order is unwarranted. Sanctioning authority
has got no authority or power to review or
reconsider its earlier order whereby he has
refused to grant the sanction to prosecute the
officers
of AAI, the petitioners hereto.
Impugned
prosecution
sanction
order,cognizance order and order passed by
trial
court
quash/set
aside.(Para
-
51,52,53,54)

Petitions allowed. (E-7)

List of Cases cited:-

1. R.S. Nayak Vs A.R. Antulay, AIR 1984 SC 684,
2. Mansukhlal Vithaldas Chauhan Vs St. of
Guj., 1997 Cri.L.J. 4059,

3. Gopikant Choudhary Vs St. of Bihar & Ors.,
(2000) 9 SCC 53,

4. Ramanand Chaudhary Vs St. of Bihar & Ors.,
(2002) 1 SCC 153,

5. St. of H. P. Vs Nishant Sareen, (2010) 14 SCC
527,

6. St. of Punj. & anr. Vs Mohammed Iqbal
Bhatti, [2009 (67) ACC 350] (SC),

7. Suresh Kumar Bhikamchand Jain Vs Pandey
Ajay Bhushan & ors., 1998 Cri.L.J. 1242 (SC)

8. Nanjappa Vs St. of Karn., (2015) 14 SCC 186.

9. Vivek Batra Vs U. O I. & Ors., (2017) 1 SCC
69
10. Parkash Singh Badal & anr. Vs St. of Punj. &
Ors., (2007) 1 SCC 1

11. Dinesh Kumar Vs Chairman, A. A.I. & Anr.,
(2012) 1 SCC 532

12. Bachhittar Singh Vs St. of Punj. & anr., AIR
1963 SC 395

13. Romesh Mirakhur Vs St. of Mah., 2017 SCC
OnLine Bom 9552

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1.

Heard
Sri
Nandit
Kumar
Srivastava,
learned
Senior
Advocate
assisted by Sri Pranjal Krishna, Sri
Mohammed Amir Naqvi and Sri Ishan
Baghel, learned counsel for the petitioners
in all the petitions, which are connected as
well as Sri Anurag Kumar Singh, learned
counsel for the C.B.I.

2. Sri Anurag Kumar Singh has
produced the original file from Airports
230 INDIAN LAW REPORTS ALLAHABAD SERIES
Authorities of India, showing the order
dated 28.06.2013 of Sri V.P. Agrawal, the
then Chairman of the Authority, the order
dated 29.08.2013 of one Ms. Upma
Srivastava, the Chief Vigilance Officer and
order dated 13.09.2013 of Sri S. Lakra, AM
(HR).

3. Since those papers have been
provided to Sri Dilip Kumar, who has filed
petition bearing U/S 482/378/407 No.2210
of 2018 and learned counsel for the
petitioner has provided a photocopy of
those papers so the same are taken on
record.

4. The aforesaid papers are the same,
which are available on the original papers,
therefore, the original file has been returned
to the counsel for the CBI.

5. By means of leading petition
bearing U/S 482/378/407 No.3274 of 2018,
the following prayers have been made:-

"WHEREFORE,
it
is
most
respectfully prayed that this Hon'ble court
may kindly be pleased to hold the Sanction
Order dated 01.10.2013 invalid and quash
the
petitioner's
prosecution
in
the
Criminal Case No.06 of 2013 [State Vs.
Giriraj Sharma and others] under sections
120-B, 420, 468 and 471 Indian Penal
Code 1960 and 13 (2) r/w 13 (1) (d) of
Prevention of Corruption Act 1988 before
the Ld. Special Judge, C.B.I., Court No.3,
Lucknow;

And
it
is
prayed
that
the
cognizance order dated 12.11.2013 as well
as the order dated 06.01.2018 may kindly
be quashed.

And/ or this Hon'ble Court may
further be pleased to pass any other order
or orders which this Hon'ble court may
deem fit & proper in the interest of justice."

6. By means of petition bearing U/S
482/378/407
No.3015
of
2020,
the
following prayers have been made:-

"WHEREFORE,
it
is
most
respectfully prayed that this Hon'ble Court
may kindly be pleased to:

a. To quash the prosecution
sanction
order
dated
01.10.2013
(Contained in Annexure No.1 of this
petition), passed by Sanctioning Authority,
namely, Shri V.P. Agarwal (P.W.-1);

b.
To
quash
the
entire
proceedings of Criminal Case No. 06 of
2013 (CBI Versus Griraj Sharma & others)
pending before the court of Learned
Special Judge, CBI, Court No. 3, Lucknow,
arising out of R.C. No. 0062011A0013, u/s
120-B, 420, 468, 471 IPC and 13 (2) read
with 13 (1) D of Prevention of Corruption
Act, P.S.- CBI, ACB, Lucknow, against the
petitioner.

c. Issue any other order, order or
direction in the nature, which this Hon'ble
Court may deem fit and proper in the facts
and circumstances of the case."

7. By means of petition bearing U/S
482/378/407
No.2210
of
2018,
the
following prayers have been made:-

"Wherefore, it is most respectfully
prayed that this Hon'ble court may kindly
be pleased to stay the order passed by the
Learned Special Judge, C.B.I. (IIIrd),
Lucknow on dated 06.01.2018 in Case No.
6/2013, R.C. No.13A2011 (CBI Vs Giriraj
Sharma & Others) contained as annexure
No. 1 with this petition.

It is further prayed that drop the
proceedings in connection with petitioner
of the Criminal Case No. 06/2013 u/s 120B,
420,471 IPC and 13(2) read with 13(1) d of
PC Act, P.S. CBI/ACB, Lucknow pending
before Learned Special Judge, C.B.I.
1 All. Giri Raj Sharma Vs. State of U.P.
231
(IIIrd), Lucknow (CBI VS. Giriraj Sharma
& Others).

Such any other or direction may
also kindly be passed which is deemed fit
and proper in the circumstances of the case
in favour of the petitioner."

8. Since the questions of law and fact
of all the petitions are the same, therefore,
with the consent of the parties, all the
aforesaid petitions are being decided by a
common judgment and order.

9. The fate of the present petitions and
the impugned orders is dependent upon the
question involved in the matter i.e. (i) as to
whether the sanction for prosecution, which
has been refused by the competent
authority,
can
be
reviewed
on
the
recommendation of the Central Vigilance
Commission (hereinafter referred to as
"CVC" in short) in terms of Section 197
Cr.P.C.;
(ii)
as
to
whether
second
prosecution sanction on the same material
is legally permissible under the law.

10. Facts and circumstances of all the
cases are almost identical but the petition
bearing U/S 482/378/407 No.3274 of 2018
is being treated as leading petition.

11. Brief facts of the case are that a
first information report was registered at
Lucknow, Police Station - CBI/ACB with
FIR No.RC0062011A00013 on the basis of
source information. The FIR was registered
against six persons including the petitioners
under Sections 120-B, 420, 468 and 471
IPC read with Sections 13(2) & 13(1)(d) of
the Prevention of Corruption Act, 1860 and
the allegations in nutshel were that the
petitioners along with other officials of
Airports Authority of India and a private
contractor had entered into a criminal
conspiracy during the period 2008-2010
and in pursuance of criminal conspiracy
committed the offence of cheating, forgery
and criminal misconduct and thus caused a
huge wrongful loss worth Rs.25,74,065/-.

12. On 30.10.2013, the Chargesheet
was filed arraying the petitioner and six
others as accused, under Sections 120B,
420, 468 and 471 IPC read with Sections
13(2) & 13(1)(d) of the Prevention of
Corruption Act 1860. The alleged Sanction
of Prosecution vide Sanction Order C140
15/7/12-Disc (Pt.) dated 01.10.2013 was
obtained in respect of the petitioner and
other accused persons from Mr. Vijay
Prakash
Agrawal,
Chairman,
Airports
Authority of India.

13. As per learned counsel for the
petitioners, after the examination-in-chief
of the Sanctioning Authority, namely Mr.
Vijay
Prakash
Agarwal
(Prosecution
Witness-1), the then Chairman of AAI,
when he was subjected to the cross
examination, he revealed that at the first
instance he had refused to grant sanction
for prosecution in respect of the petitioner
and the accused persons and it is only after
passage of three-four months, on the basis
of the advisory report from the Chief
Vigilance Commission, he reviewed his
sanction rejection order and proceeded to
grant sanction for prosecution in respect of
the petitioner and other accused persons
vide sanction order dated 01.10.2013.

14. On 04.10.2017, an "Application
for Holding/Declaring the Prosecution
Sanction
invalid
and
Dropping
of
Applicant's Prosecution for want of valid
Prosecution Sanction" was file before the
232 INDIAN LAW REPORTS ALLAHABAD SERIES
learned Special Judge, CBI, Count No.3,
Lucknow and on 06.01.2018, the learned
Special Judge, CB1, Court No.3, Lucknow
was pleased to reject the application dated
04.10.2017 filed by the petitioner on the
ground that the validity of the Prosecution
Sanction would only be decided at the final
stage of the trial.

15. In the present case, this Court so
as to verify as to whether the competent
authority has refused sanction against the
petitioners or not has summoned the
original file vide order dated 10.11.2021.
Such original file was received by the
learned counsel for the CBI on 17.11.2021
and the same was shown to the Court on
25.11.2021.

16. There is no dispute on the point
that the Chairman of Airports Authority of
India (hereinafter referred to as "AAI" for
short) is a competent authority to grant
sanction
for
prosecution
against
the
petitioners.

17. So as to understand properly as to
whether the Chairman of AAI has granted
the sanction or refused the sanction, it
would be necessary to reproduce such order
herein below, which is the order dated
28.6.2013 of Sri VP Agrawal, the then
Chairman of AAI:-

"I have gone through the CBI
report as well as the comments made by
Member (Plg) on the pre-pages. CBI has
sought prosecution sanction against Sh.
Giriraj Sharma, the then Senior Manager
(Engg.-Civil), Varanasi; Sh. Bhupendra
Singh, the then Manager (Engg.-Civil),
Varanasi; Sh. Jonas Lal Marandi, the then
Manager (Engg.-Civil), Sh. Dilip Kumar,
the then Assistant Manager (Engg.-Civil)
and Sh. Prabhat Chand Gopalan, the then
Junior Executive (Engg.-Civil) and major
penalty proceedings against Sh. Pradeep
Kumar, the then Jt. GM (Engg.-Civil),
Varanasi.

The Investigation carried out by
CBI is based on the certain claims of the
contractor in respect to cement, recron and
bitumen through submission of fake bills
during the progress of the work at
Varanasi. These bills were accepted and
processed by the above named officers. CBI
in its report further concluded that the
material was not used up to the quantity
prescribed under the contract which
resulted in inferior quality of work.
Accordingly, they finally concluded that the
payments were made against the fake bills
in connivance with the officers of the AAI
and the inferior quality of work was
executed which caused loss of revenue to
the Authority for Rs.92,63,712.60.

Member (Plg) in his note at prepage has examined the test report of CRRI,
New Delhi in respect of flexural strength of
PQC. Report, as analysed in reference to
provisions under IS-456-2000, brings out
that the flexural strength of concrete is
within the parameters of acceptance
criteria. Further, Structure Cell of AAI has
also carried out PCN evaluation and PCN
for extended runway (flexible) and apron/
additional taxiway (rigid) is 89/F/C/W/T
and
94/R/C/W/T
&
91/R/C/W/T
respectively as against design requirement
of 68 & 59 for flexible & rigid respectively.
Analysis of test reports of PQC cores is
available on file at Flag 'A'. Thus it can be
concluded that work done at site was not of
inferior quality.

In view of the observations
Member (Plg.), it appears that quality of
work cannot be treated as Inferior which is
further substantiated by the test reports and
relied upon by the CBI. As such, once
quantity of the work is in terms of the
1 All. Giri Raj Sharma Vs. State of U.P.
233
contract and passed in the tests carried out
by an independent agency, thus it cannot be
assumed that less quantity of material was
used. The officers of the AAI were
responsible for execution of work as per the
standards prescribed in the contract and in
case test establishes that the executed work
meets the standards provided in the
contract, their involvement/ connivance
with the contract in any manner cannot or
should not be assumed.

The
entire
investigation
is
revolving to the genuinity of the bills. The
contractor has submitted fake bills which
has also been substantiated by the
suppliers as well as the other corroborative
evidence collected by the CBI, but the said
evidence may not be treated sufficient to
establish involvement/ connivance of the
above named officers of AAI.

The responsibility for execution
and completion of the awarded work within
a stipulated period lies with the officers of
AAI, which includes processing of bills as
well as to ensure the quality of work, but
the contract agreement does not prescribe
any manner, for verification of bills
submitted by the contractor. Even the
officers responsible for processing of bills
cannot assume that the bills submitted by
the contractor are fake, as the quantity
required for execution of work has been
supplied and utilized, which is established
from the test reports.

As such, the above named officers
may
have
processed
the
bills
on
confirmation of quality of work and thus
may not have verified genuinity of bills
which in any case is not mandatory in
terms of the contract unless there is any
doubt. The investigation carried out and
the evidence collected may be treated
sufficient to establish that the bills
submitted by the contractor were fake but
the evidence/ material available on
record cannot be treated as sufficient to
conclude that execution of work is of
inferior quality and this is based on
assumption only. However, considering the
report, an order has already been issued to
recover/ adjust the said amount of
Rs.92,63,712.60 which was released to the
contractor on the fake bills. An action for
debarment of the said contractor from
participating in AAI's future tender has
also been initiated.

In view of the above, I find that
the evidence available on record is not
sufficient to establish involvement of above
named officers of AAI and the conclusion
drawn
in
this
respect
needs
reconsideration. At the most, as per the
available evidence, these officers may be
held responsible for negligence as they
failed to detect genuinity of bills while
processing the payment.

The CBI has recommended major
penalty charge-sheet against Sh. Pradeep
Kumar, the then Jt. GM (Engg.-Civil) and
the Project In charge for Varanasi Project.
An action for initiation of major penalty
proceedings against him has already been
taken, hence it would be more appropriate
to initiate departmental action against the
above named officers along with Sh.
Pradeep Kumar. The Inquiry could be
conducted by CDI nominated by CVC to
reach on just and fair conclusion.

(V P Agrawal)

Chairman"

18. After perusing the aforesaid order
dated 28.6.2013, it is clear that the
competent authority was of the firm view
that the evidence available on record is not
sufficient to grant sanction to prosecute the
above named Officers of AAI. Such
234 INDIAN LAW REPORTS ALLAHABAD SERIES
authority further observed that at the most,
as per the available evidence, these officers
may be held responsible for negligence as
they failed to detect the genuinity of bills
while
processing
the
payment
so
departmental enquiry can be held against
them.

19. On the aforesaid order dated
28.6.2013, the Director, Central Vigilance
Commission has written a letter dated
20.8.2013 to the Chief Vigilance Officer of
AAI recommending prosecution against the
petitioners showing its agreement with
CBI.

20. After receiving the letter dated
20.8.2013 of Director, Central Vigilance
Commission, the Chief Vigilance Officer of
AAI wrote letter to the Chairman apprising
the aforesaid letter/advisory seeking sanction
against the officers of AAI, vide letter dated
29.8.2013 and on the said letter, the
Chairman of AAI has granted sanction for
prosecution against the petitioners and formal
letter to this effect has been issued on
1.10.2013 which has been enclosed as
Annexure No.4 to the petition. The letter of
Chief Vigilance Officer dated 29.8.2013 is
being reproduced herein below:-

"This case pertains to CBI's
recommendations dated 02.03.2013 made on
the basis of investigations conducted into
alleged
acts
of
Criminal
misconduct
committed during the execution of project
work at LBS Airport, Varanasi for granting
prosecution sanction against S/Shri G.R.
Sharma, then Sr Manager, Bhupendra Singh,
then Manager, J.L. Marandi, then Manager,
Dilip Kumar, then AM and P.C. Gopalan,
then JE all from Engg-Civil discipline.

2. The matter was put up before
the Competent Authority vide note dated
02.04.2013 of the undersigned at page 12/N for taking decision for granting
prosecution sanction. Chairman vide his
note at page 7-8/N had observed that the
evidence available on record is not
sufficient to establish involvement of these
officers as the work done at site was not of
inferior quality. Hence, the conclusion
drawn by CBI in this respect needs
reconsideration and it would be more
appropriate to initiate departmental action
against these officers.

3 In view of difference in opinion
between CBI and Competent Authority, the
case was referred to CVC for its advise
vide this office letter dated 12.07.2013 in
terms of provision contained in Para-10 of
Special Chapter on Vigilance Management
in PSES & the Role and Functions of the
CVC (Copy at page 26-25/c).

4. The Commission vide office
Memorandum No. 013/TCA/034-223045
dated 20.08.2013 (Copy at page 28-27/c)
has tendered its advice. Observations of the
Commission may please be seen at Para2(a) to (e) of the OM. The Commission in
agreement with CBI advises prosecution
against the five officers mentioned in Para1 above. The Commission has also advised
to intimate details of action taken against
M/s BR Arora & Associates (P) Ltd.

5. In view of Commission's
advice, Chairman may please consider
granting of prosecution sanction by the
Competent Authority against the 5 officers
as recommended by CBI in its report. The
Commission is being separately informed
about the action taken against M/s BR
Arora & Associates (P) Ltd.

6. In this regard, it is also
pertinent to mention that this case has
already crossed the prescribed time limit
fixed by the Apex Court in taking decision
in such matters, Secretary (Personnel),
DOPT had convened a meeting on
24.07.2013 in North Block to review all
1 All. Giri Raj Sharma Vs. State of U.P.
235
such delayed cases and had emphasized to
expedite the decision making process
within the prescribed time frame. A copy of
D.O. letter dated 14.07.2013 of Jt. Director
(Policy), CBI, North Block addressed to JS
& CVOMOCA is also placed in this file at
page-21-19/c for perusal.

(Upma Srivastava)

Chief Vigilance Officer"

21. The order of Chairman on the file
granting
sanction
for
prosecution
is
reproduced herein below:-

"Considering circumstances in
totallity
prosecution
sanction
against
officers is granted as sought by CBI."

However, formal order to this
effect has been issued on 01.10.2013.

22. Sri Anurag Kumar Singh, learned
counsel for the CBI has submitted that
earlier the competent authority had only
given his opinion to the effect that the
evidence available on record is not
sufficient to establish the involvement of
officers of AAI and at the best, the
departmental enquiry against such officers
may be initiated. As per Sri Anurag Kumar
Singh, such opinion may not be treated as
an order. The order is as such dated
01.10.2013
whereby
the
competent
authority has granted sanction against the
officers as sought by the CBI.

23.
 Learned
counsels
for
the
petitioners have cited some judgments of
the Apex Court in re; R.S. Nayak vs. A.R.
Antulay, AIR 1984 SC 684, Mansukhlal
Vithaldas Chauhan vs. State of Gujarat,
1997 Cri.L.J. 4059, Gopikant Choudhary
vs. State of Bihar and others, (2000) 9
SCC 53, Ramanand Chaudhary vs. State
of Bihar and others, (2002) 1 SCC
153, State of Himachal Pradesh vs.
Nishant Sareen, (2010) 14 SCC 527,
State
of
Punjab
and
another
vs.
Mohammed Iqbal Bhatti, [2009 (67)
ACC
350]
(SC),
Suresh
Kumar
Bhikamchand Jain vs. Pandey Ajay
Bhushan and others, 1998 Cri.L.J. 1242
(SC)
and
Nanjappa
vs.
State
of
Karnataka, (2015) 14 SCC 186.

24.

The
Apex
Court
in
re;
Mansukhlal Vithaldas Chauhan (supra)
has held that validity of sanction depends
upon the applicability of mind by the
sanctioning authority to the facts of the
case as also the material and evidence
collected during investigation. Paras 18 &
19 of the aforesaid case are being
reproduced herein below:-

"18. The validity of the sanction
would, therefore, depend upon the material
placed before the sanctioning authority and
the fact that all the relevant facts, material
and evidence have been considered by the
sanctioning
authority.
Consideration
implies application of mind. The order of
sanction must ex facie disclose that the
sanctioning authority had considered the
evidence and other material placed before
it. This fact can also be established by
extrinsic evidence by placing the relevant
files before the Court to show that all
relevant facts were considered by the
sanctioning authority. (See also Jaswant
Singh v. State of Punjab [AIR 1958 SC 124
: 1958 SCR 762] and State of Bihar v. P.P.
Sharma, 1991 Cri LJ 1438: (1991) AIR
SCW 1034).

19. Since the validity of "sanction"
depends on the applicability of mind by the
sanctioning authority to the facts of the case
236 INDIAN LAW REPORTS ALLAHABAD SERIES
as also the material and evidence collected
during investigation, it necessarily follows
that the sanctioning authority has to apply its
own independent mind for the generation of
genuine satisfaction whether prosecution has
to be sanctioned or not. The mind of the
sanctioning authority should not be under
pressure from any quarter nor should any
external force be acting upon it to take a
decision one way or the other. Since the
discretion to grant or not to grant sanction
vests absolutely in the sanctioning authority,
its discretion should be shown to have not
been
affected
by
any
extraneous
consideration. If it is shown that the
sanctioning authority was unable to apply its
independent mind for any reason whatsoever
or was under an obligation or compulsion or
constraint to grant the sanction, the order
will be bad for the reason that the discretion
of the authority "not to sanction" was taken
away and it was compelled to act
mechanically to sanction the prosecution."

25. In the present case, the competent
authority has initially did not grant sanction for
prosecution by saying that the evidence
available on record is not sufficient to
prosecute the officers of AAI. However, on the
direction of Central Vigilance Commission,
such sanction for prosecution was granted.

26. Sri Nandit Srivastava, learned Senior
Advocate, has submitted that when all the
material was perused by the competent
authority and has found that the sanction for
prosecution may not be granted, in the absence
of any new material granting sanction for
prosecution is illegal and unwarranted.

27. Thereafter, Sri Srivastava has
referred the dictum of the Apex Court in re;
State of State of Himachal Pradesh vs.
Nishant Sareen (supra) referring paras-12,
13 & 14 thereof, which are as under:-

"12.
It
is
true
that
the
Government in the matter of grant or
refusal to grant sanction exercises statutory
power and that would not mean that power
once exercised cannot be exercised again
or at a subsequent stage in the absence of
express power of review in no circumstance
whatsoever. The power of review, however,
is not unbridled or unrestricted. It seems to
us a sound principle to follow that once the
statutory power under Section 19 of the
1988 Act or Section 197 of the Code has
been exercised by the Government or the
competent authority, as the case may be, it
is not permissible for the sanctioning
authority to review or reconsider the
matter on the same materials again. It is so
because unrestricted power of review may
not bring finality to such exercise and on
change of the Government or change of the
person authorised to exercise power of
sanction, the matter concerning sanction
may be reopened by such authority for the
reasons best known to it and a different
order may be passed. The opinion on the
same materials, thus, may keep on
changing and there may not be any end to
such statutory exercise.

13. In our opinion, a change of
opinion per se on the same materials
cannot be a ground for reviewing or
reconsidering the earlier order refusing to
grant sanction. However, in a case where
fresh materials have been collected by the
investigating agency subsequent to the
earlier order and placed before the
sanctioning authority and on that basis, the
matter is reconsidered by the sanctioning
authority and in light of the fresh materials
an opinion is formed that sanction to
prosecute the public servant may be
granted, there may not be any impediment
to adopt such a course.

14. Insofar as the present case is
concerned, it is not even the case of the
1 All. Giri Raj Sharma Vs. State of U.P.
237
appellant
that
fresh
materials
were
collected by the investigating agency and
placed before the sanctioning authority for
reconsideration and/or for review of the
earlier order refusing to grant sanction. As
a matter of fact, from the perusal of the
subsequent Order dated 15-3-2008 it is
clear that on the same materials, the
sanctioning authority has changed its
opinion and ordered sanction to prosecute
the respondent which, in our opinion, is
clearly impermissible."

28. On the basis of aforesaid dictum
of the Apex Court, Sri Srivastava has
submitted that the CBI has concealed this
fact before the learned trial court that by
means of second prosecution sanction on
the same material, the case is being
proceeded whereas the second prosecution
sanction on the same material and without
any further investigation is not permissible
under the law.

29. Sri Nandit Srivastava, learned
Senior Advocate, has further submitted that
while rejecting the application of the
petitioner dated 4.10.2017 (Annexure No.6)
vide impugned order dated 6.1.2018
(Annexure No.8), learned court below has
misinterpreted the dictum of the Apex
Court in re; Vivek Batra vs. Union of
India and others, (2017) 1 SCC 69,
inasmuch as the ratio of aforesaid judgment
would not be applicable in the present case.
In the case of Vivek Batra (supra), the
competent authority was the Finance
Minister, who had granted sanction and in
the interregnum period, some official
notings were made in the file in question
whereby there was difference of opinion
amongst officers, who made the notings but
ultimately the competent authority i.e. the
Finance Minister had granted sanction
after applying his mind. However, in the
present case, there is no official notings on
the file inasmuch as the competent
authority had earlier refused to grant
sanction for prosecution against the officers
of
AAI
and
on
the
advisory/
recommendation of CVC, he reviewed his
earlier decision and granted sanction for
prosecution by impugned order dated
1.10.2013. Besides, the observation of
learned court below in the impugned order
to the effect that as to whether the
competent authority had earlier refused the
sanction or not would be considered during
the course of the trial, is not proper
inasmuch as the material available with the
learned court below wherein the competent
authority has deposed before the trial court
to say that he had earlier refused the
sanction against the officers of AAI but on
the advisory of CVC, though which was
not binding upon him, reviewed his earlier
decision and granted sanction. Hence, as
per Sri Srivastava, there is nothing remain
to prove during the course of the trial so far
as the validity of sanction is concerned.

30. Therefore, Sri Srivastava has
prayed that the instant petition may be
allowed and the impugned orders may be
quashed/set aside.

31. Sri Ishan Baghel and Sri
Mohammed Amir Naqvi, learned counsel
for the petitioners in other connected
petitions, have adopted aforesaid arguments
of Sri Nandit Srivastava, learned Senior
Advocate and made same prayer as has
been prayed by Sri Srivastava.

32. Per contra, Sri Anurag Kumar
Singh, learned counsel for the CBI has
238 INDIAN LAW REPORTS ALLAHABAD SERIES
placed reliance upon the decision of the
Apex Court in re; Vivek Batra (supra),
which has been referred by the learned
court below while rejecting the application
of the petitioner dated 4.10.2017 referring
paras 12 & 14, which reads as under:-

"12. In view of the law laid down
by this Court, as above, we are of the
opinion that the sanction cannot be held
invalid only for the reason that in the
administrative notings different authorities
have
opined
differently
before
the
competent authority took the decision in the
matter. It is not a case where the Finance
Minister was not the competent authority to
grant the sanction. What is required under
Section 19 of the Prevention of Corruption
Act, 1988 is that for taking the cognizance
of an offence, punishable under Sections 7,
10, 11, 13 and 15 of the Act committed by
the public servant, sanction is necessary by
the Central Government or the State
Government, as the case may be, and in the
case of a public servant, who is neither
employed in connection with affairs of the
Union or the State, from the authority
competent to remove him. Sub-section (2)
of Section 19 of the Act provides that:

"19. (2) Where for any reason
whatsoever any doubt arises as to whether
the previous sanction as required under
sub-section (1) should be given by the
Central
Government
or
the
State
Government
or
any
authority,
such
sanction shall be given by that Government
or authority which would have been
competent to remove the public servant
from his office at the time when the offence
was alleged to have been committed."

14. Having gone through the copy
of note-sheets relating to sanction in
question placed before us as part of
rejoinder-affidavit, it is evident that there
had been proper application of mind on the
part of the competent authority before the
sanction was accorded. Our perusal of the
said record does not indicate that any
decision was taken by the competent
authority, at any point of time, not to grant
sanction so as to give the decision to grant
sanction the colour of a review of any such
earlier order, as has been contended before
us. The opinion of CVC, which was
reaffirmed and ultimately prevailed in
according the sanction, cannot be said to
be irrelevant for the reason that clause (g)
of Section 8(1) of the Central Vigilance
Commission Act, 2003 provides that it is
one of the functions of the CVC to tender
advice to the Central Government on such
matters as may be referred to it by the
Government."

33. Sri Anurag Kumar Singh has
submitted that as per the Apex Court in
administrative notings, if the different
authorities have opined differently, is
inconsequential since business of State
being complicated it has to be conducted
through agency of large number of officials
and authorities and ultimate decision to
accord sanction was taken by the Finance
Minister, who was the competent authority
and such authority has accorded sanction
after proper application of mind, therefore,
the sanction order may not be vitiated. In
the same manner, as per Sri Anurag Kumar
Singh, the earlier order of the competent
authority was not order and it was only an
opinion and after due deliberation with the
CVC he has passed the order on 1.10.2013,
therefore, in view of the dictum of the
Apex Court in re; Vivek Batra (supra), the
order dated 01.10.2013 is a proper order
and may not be interfered with under
Section 482 Cr.P.C.

34. While referring the decision of the
Apex Court in re; Parkash Singh Badal
1 All. Giri Raj Sharma Vs. State of U.P.
239
and Another vs. State of Punjab and
Others, (2007) 1 SCC 1, he has submitted
that the Apex Court is of the view that if
the sanction for prosecution order has been
passed after applying the judicious mind
considering the facts and circumstances,
the same may not be interfered with. Sri
Anurag Kumar Singh has submitted that
the aforesaid view has been taken by the
Apex Court in subsequent judgments, one
of which is Dinesh Kumar vs. Chairman,
Airport Authority of India and Another,
(2012) 1 SCC 532. Referring the decision
of Dinesh Kumar (supra), Sri Anurag
Kumar Singh has further submitted that the
Apex Court has held that the ground of
sanction can be raised in the course of trial.

35. While referring the decision of the
Constitution Bench of the Apex Court in re;
Bachhittar Singh vs. State of Punjab and
Another, AIR 1963 SC 395, Sri Anurag
Kumar Singh has submitted that the Apex
Court has held that merely writing
something on the file does not amount to an
order. Before something amounts to an
order of the State Government, two things
are necessary. The order has to be
expressed in the name of Governor as
required by Clause (1) of Article 166 of the
Constitution of India and then, it has to be
communicated. Therefore, Sri Singh has
requested that the present petitions may be
dismissed as there is no infirmity or
illegality in the order dated 1.10.2013
granting sanction of prosecution by the
competent authority.

36. Heard learned counsel for the
parties and pursued the material available
on record. The attention of the Court has
been drawn towards Annexure No.5 to the
petition, which is the statement of PW-1,
the sanctioning authority i.e. Vijay
Prakash Agrawal recorded before the court
concerned. As per Sri Nandit Srivastava,
the relevant fact that the competent
authority had refused to grant sanction for
prosecution against the present petitioners
has come into the picture during the course
of cross-examining the aforesaid authority
i.e. PW-1. Such authority on his crossexamination has categorically admitted that
on the basis of documents and report so
produced by the CBI, he had refused the
sanction to prosecute the petitioners. He
had also admitted that after refusing the
sanction for prosecution, no new fact or
evidence was brought into his notice when
he granted sanction for prosecution later
on. Relevant typed portion of the statement
of PW-1 is being reproduced herein
below:-

"र्ह कहना सही है दक C.B.I. द्वारा
िेजे गर्े दस्तावेज व ररपोटय के आधार पर पहली
बार मैने अदिर्ोजन स्वीकृत देने से मना कर
ददर्ा था। मैने अदिर्ोजन स्वीकृत जारी करने से
मना करने की नोदटांग / आदेश अपने तत्कालीन
C.B.O. Smt. उपमा श्रीवास्तव को िेजा था।
उन्ोांने मेरे ररिूजल नोदटांग को C.B.C. को िेजा
था।

दोबारा C.B.C. ने अदिर्ोजन देने के
दलए कहा इसदलए अदिर्ोजन स्वीकृत दोबारा
देखकर जारी दकर्ा।

र्ह कहना सही है दक पहली बार
सेन्शन देने से मना करने में और दोबारा सेन्शन
जारी करने में कोई नर्ा तथ्य मेरे समक्ष प्रस्तुत
नहीां दकर्ा गर्ा।"

अदिर्ोजन प्रदान करने की सामग्री
वही थी।"

37.