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DELHI HIGH COURT
Suresh Kait, J.
Ashok Kumar Aswal - Appellant
Versus
UOI and Ors. - Resopndent
W.P. (C) No. 578/2010
Decided On : 11-01-2013
PREVENTION OF CORRUPTION ACT, 1988 - SECTION 19(1)(A) - SANCTION FOR PROSECUTION - INDEPENDENT APPLICATION OF MIND - REVISION OF SANCTION ORDER - FRESH MATERIAL - JURISDICTION - WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA.
Fact of the Case:
The petitioner, an Assistant Commissioner of Customs, was accused of demanding a bribe from a businessman in exchange for not taking action against him in a customs case. The Central Bureau of Investigation (CBI) sought sanction from the Central Board of Excise and Customs (CBEC) to prosecute the petitioner. The CBEC initially recommended that the petitioner be given a minor penalty, but later changed its mind and granted sanction for prosecution. The petitioner challenged the sanction order, arguing that it was issued without application of mind and under the influence of the CBI.
Finding of the Court:
The court held that the CBEC had not applied its independent mind in granting sanction for prosecution. The court noted that the CBEC had initially recommended that the petitioner be given a minor penalty, but later changed its mind after the CBI repeatedly pressured it to grant sanction. The court also noted that there was no fresh material to justify the change in the CBEC's decision. The court further held that the sanction order was issued in violation of the principles of natural justice, as the petitioner was not given an opportunity to be heard before the sanction was granted. The court also held that the Trial Court had no jurisdiction to examine the validity of the sanction order.
Issues: 1. Whether the CBEC had applied its independent mind in granting sanction for prosecution? 2. Whether there was fresh material to justify the change in the CBEC's decision? 3. Whether the sanction order was issued in violation of the principles of natural justice? 4. Whether the Trial Court had jurisdiction to examine the validity of the sanction order?
Ratio Decidendi: 1. The court held that the CBEC had not applied its independent mind in granting sanction for prosecution. The court noted that the CBEC had initially recommended that the petitioner be given a minor penalty, but later changed its mind after the CBI repeatedly pressured it to grant sanction. The court also noted that there was no fresh material to justify the change in the CBEC's decision. 2. The court held that the sanction order was issued in violation of the principles of natural justice, as the petitioner was not given an opportunity to be heard before the sanction was granted. 3. The court held that the Trial Court had no jurisdiction to examine the validity of the sanction order.
Final Decision: The court allowed the petition and set aside the impugned sanction order.
Suresh Kait, J.—
1. The present petition has been directed against the order dated 21.10.2009, whereby the respondent No. 1 has accorded sanction under Section 19(1) (a) of the Prevention of Corruption Act, 1988 for the prosecution of the petitioner for the offences punishable under Section 120-B IPC and Section 7/13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
2. It is very pertinent to mention here that while dictating the judgment, this Court noticed that as per the Memo of Parties filed by the petitioner, inadvertently, the respondent Nos. 2 and 3 have been shown/arraigned as under:-
? ASHOK KUMAR ASWAL R/o.M-80, (2nd Floor) Guru Harkishan Nagar, Paschim Vihar, New Delhi –
87. VERSUS
1. Union of India through The Chairman, Central Board of Excise and Customs, Ministry of Finance, North Block, New Delhi.
2. The Director, Central Bureau of Investigation, CGO Complex, Lodhi Road, New Delhi – 110 003. 3. The Central Vigilance Commissioner, CVC, Satarkta Bhawan, Block- A, GPO Complex, INA, New Delhi – 110 023. However, as per the pleadings in the petition and the counter-affidavits filed by the respective respondents, the correct sequence of the aforesaid respondent Nos. 2 and 3 should have been as under:-
ASHOK KUMAR ASWAL R/o.M-80, (2nd Floor) Guru Harkishan Nagar, Paschim Vihar, New Delhi –
87. VERSUS
1. Union of India through The Chairman, Central Board of Excise and Customs, Ministry of Finance, North Block, New Delhi.
2. The Central Vigilance Commissioner, CVC, Satarkta Bhawan, Block- A, GPO Complex, INA, New Delhi – 110 023.”
3. The Director, Central Bureau of Investigation, CGO Complex, Lodhi Road, New Delhi – 110 003.” Therefore, this Court is deciding the instant petition on the basis of the aforementioned Memo of Parties, wherein respondent Nos. 2 and 3 have been highlighted.
3. Vide the instant petition, the petitioner has challenged the aforesaid impugned order passed without application of mind for the reasons that the respondent No. 1 has arbitrarily revised its decision repeatedly. The earlier recommendations/decisions of the same read as under:-
a) On 29.03.2007 Respondent No. 1 recommended RDA against the petitioner only for Minor Penalty and specifically recommended that no prosecution needs to be launched.
b) On 01.10.2007 the Respondent No. 1 granted sanction only to prosecute Sh. Rajeev Aggarwal and impliedly refused to grant sanction to prosecute the Petitioner.
c) In July 2008, Respondent No. 1 while considering CVC’s advice dated 04.03.2008 observed that ?ends of Justice would be met, if an administration warning is issued to the Petitioner and requested Respondent No. 2(CVC) to reconsider its advises dated 03.05.2007, 09.08.2007 and 04.03.2008 whereby CVC advised for RDA for major penalty and prosecution against the Petitioner.
d) On 12.08.2009 the Respondent No. 1 granted sanction to prosecute the petitioner u/s 109, 120B, 467 & 471 of IPC read with Sections 7, 13(1)(d), 13(1)
(e) and 13(2) of PC Act. e) On 18-24/08.09 the Respondent No. 1 served a Memorandum on the Petitioner stating therein that it has decided to hold RDA against the Petitioner for Major Penalty on the basis of the aforesaid Sanction order dated 12.08.2009.
(f) On 14.09.2009 the Respondent No. 1 vide a corrigendum deleted certain penal sections from the Sanction order dated 12.08.2009. However continued with RDA, which was instituted on the basis of Sanction Order dated 12.08.2009. g) On 21.10.2009 the Respondent No. 1 on its own revised Sanction Order dated 12.08.2009 and issued a fresh Sanction Order to prosecute the Petitioner.
4. As stated in the petition, all aforesaid steps were taken by the respondent No. 1 on the basis of the same material and CBI did not provide any new material in support of the changes carried out by the respondent No. 1 in its decision.
5. In the instant case, contrary to its mandates and while acting on CBI?s request and influence, CVC (respondent No. 2) repeatedly reviewed and change
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