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Allahabad HC set aside order passed by Special Judge over illegal sanction

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The Allahabad High Court set aside the order passed by the Special Judge, CBI at Lucknow and ruled that executive authority exercising quasi judicial power can’t review its decision unless provided under the statute.

A single-judge bench of Justice Dinesh Kumar Singh passed this order while hearing an application under Section 482 CrPC filed by Sunil Agarwal and ors.

By way of the application under Section 482 CrPC, challenge is to the order dated 12.12.2018 passed by the Special Judge, CBI (West), Lucknow in Case under Section 239 CrPC, seeking discharge from the offence under Sections 120-B, 420, 465 and 468 IPC read with Sections 13(2) read with Sections 13(1)(d) of the Prevention of Corruption Act, 1988 lodged at Police Station CBI/ACB, Lucknow.

The further challenge is to the cognizance order dated 25.01.2018, to the charge-sheet and to the consequential proceedings of the Case.

Purnendu Chakravarty, the counsel for the applicants, states that applicant no 2, P.K. Bose, has died during Covid-19. The application, so far as applicant no 2, P.K. Bose, is concerned, gets abated.

The CBI investigated the offence and prepared the charge-sheet, however, the competent authority i.e General Manager of United India Insurance Company Limited did not grant sanction for prosecution of the applicants. The Deputy Inspector General of the CBI gave no objection to the Court for accepting closure/final report as there was no sanction from the competent authority. In view of the no objection from the competent authority, the Court accepted the closure/final report vide order dated 06.09.2013.

The sanction was refused by the then General Manager, M.V.V. Chalam, order dated 27.12.2012 on the basis of which no objection was given by the Deputy Inspector General of the CBI for accepting the final/closure report against the applicants.

The Court observed,

It appears that after the said General Manager M.V.V. Chalam retired, Ish Kumar was appointed as General Manager. Ish Kumar reviewed the order of M.V.V. Chalam, refusing the sanction, and an order dated 02.02.2017 granted sanction to prosecute the applicants.

It is important to mention here that neither the CBI approached the General Manager nor it brought on record any additional material/evidence as no objection was given for accepting the closure report by the CBI itself and no further investigation was carried out. There was no additional material before Ish Kumar, the incumbent General Manager other than which was before M.V.V. Chalam, the then General Manager, who refused to grant sanction for prosecution of the applicants. Ish Kumar, on his own, reviewed the earlier order of refusing the sanction for prosecution and granted sanction for prosecution.

The Court noted,

Pursuant to the said liberty granted by the Court, the applicants moved an application for discharge under Section 239 CrPC, and the trial Court dismissed the discharge application order dated 12.12.2018 on the ground that it cannot be said that granting sanction by the competent authority was illegal or without jurisdiction.

It was further said that since the valid sanction was available on the case file, the cognizance was taken on 25.01.2018. The order dated 07.08.2018 was passed, rejecting the application of the accused-applicants for dropping proceedings. The said order was not challenged before any competent Court, therefore, the trial Court rejected the discharge application. The said order of rejection is the subject matter of challenge before the Court in the application.

During pendency of the application, Application came to be filed by the applicants, seeking interim protection of no coercive measures against them till the disposal of this application. The Court, however, order dated 05.02.2019 disposed of the application, granting liberty to the applicants that if they would surrender before the Court below within four weeks and apply for bail, their bail application should be considered in accordance with law, in view of the observations made in the case of Lal Kamlendra Pratap Singh Vs State of U.P, reported in [2009 (3) ADJ 322 (SC)].

The applicants challenged the said order dated 05.02.2019 before the Supreme Court in SLP (Crl) No1792 of 2019, which was converted into Criminal Appeal No 367 of 2022, and the Supreme Court order dated 07.03.2022 allowed the same, setting aside the order dated 05.02.2019 passed by the Court and, remanded the matter back to the Court to be decided in accordance with law, after considering the submissions on behalf of the applicants and the CBI. The Supreme Court also granted protection from arrest to the applicants till disposal of the application.

On behalf of the applicants, it has been submitted that Ish Kumar, General Manager, could not have reviewed the earlier order passed by M.V.V. Chalam, refusing the sanction for prosecution of the applicants. There was no request on behalf of the CBI as the CBI did not carry out any further investigation and no additional material was placed before the new incumbent, General Manager to reconsider the earlier decision dated 27.12.2012, refusing the sanction; without there being any additional material and without there being any request of the CBI, the order was passed by the new incumbent General Manager, granting sanction, which is wholly illegal and without jurisdiction. The trial Court did not consider this vital aspect, while rejecting the application of the applicants for discharge.

On behalf of the CBI, it has been further submitted that the applicants /accused are not prejudiced in any manner. The sanction order has been passed by the competent authority after reconsidering the material/documents on record. It is always open to an administrative authority to review its administrative order. Order granting or refusing sanction is an administrative order. It has been further submitted that despite the fact that the CBI did not make any request to reconsider the earlier order whereby the sanction was refused by the then General Manager and the CBI did not bring on record some additional material, the incumbent General Manager was well within his power to reconsider earlier decision of refusing the sanction for prosecution of the applicants.

“In the case, even if it is accepted that the General Manager would be exercising the executive power and order granting or refusing sanction is an administrative order, the authority would not be justified in reviewing its earlier order of refusing sanction unless additional material was placed before him by the CBI, seeking review of the earlier order. In the facts of this case, I am of the considered view that the incumbent General Manager was not competent to review the earlier order without there being any additional material placed before him.

Considering the aforesaid case laws as well as submissions advanced on behalf of the applicants, the order dated 02.02.2017 passed by the General Manager, Ish Kumar, granting sanction for prosecution of the applicants, is wholly illegal and unsustainable. Since the sanction order itself is illegal, further proceedings in the case are also non-est. The trial Court had committed an error of law in not considering the fact that the subsequent order granting sanction for prosecution of the applicants was not a valid and legal order,” the Court observed while allowing the application.

“The impugned order is set-aside and the further proceedings taken by the trial Court, including the orders of cognizance and summon, are also set aside,” the Court ordered.

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