Point of Law : Since such a direction takes away the power of the sanctioning authority to take an independent position after applying, its mind upon the material and evidence collected as to whether prosecution would be sanctioned or not.

JUDGMENT :

1. Heard learned Senior Advocate Shri Navin Pahwa with learned Advocate Shri Nandish H. Thackar on behalf of the applicant, learned Additional Public Prosecutor Ms. Maithili D. Mehta on behalf of respondent no.1-State and learned Special Public Prosecutor Shri R.C. Kodekar on behalf of respondent no.2- Central Bureau of Investigation.

2. Issue Rule. Learned Additional Public Prosecutor as well as learned Special Public Prosecutor waive service of rule for the respective respondents.

3. With the consent of parties, the present application is taken up for final hearing.

4. By way of this application, the applicant has sought for quashing and setting aside of impugned order passed by the learned Special Judge, (C.B.I) dated 14.09.2016 in RC No. 27 (A)/ 2000-GNR whereby the second closure report filed by the C.B.I is set aside.

5. Brief facts leading to filing of the present application being that respondent no.2- CBI had registered an FIR being RC No.27 (A)/2002- GNR against five persons namely (1) Shri N.R. Pai, the then Chief Executive Engineer, Kandla Port Trust ( hereinafter referred to as ‘KPT’), Gandhidham, (2) Shri B.P. Asnani, Senior Stores Officer, KPT, Gandhidham, (3) Shri Mohan Ashwani, the then Assistant Clerk, KPT, Gandhidham, (4) Shri M.L. Belani, the then Sub- Engineer, KPT, Gandhidham and (5) M/s Hari Agency, Gandhidham.

6. The applicant was not named as an accused in the FIR. The allegation as levelled against accused in the FIR being that the accused had colluded with each other and had caused loss of more than Rs. 6 lacs to KPT and corresponding gain to themselves in the matter of purchase of “Allcreel Blankets” during the period between 1998-99. The FIR was alleging commission of offence punishable under Section 120-B read with Section 420 of the Indian Penal Code and offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1983. It appears that after the FIR had been registered, the investigation had been entrusted to one Shri AGL Kaul, Police Inspector for investigation and whereas investigation had thereafter been taken up by one Shri R.K. Das, Police Inspector, C.B.I. It further appears that Investigating Officer, CBI had submitted final report under Section 173 of the Code of Criminal Procedure,1973 in connection with the FIR referred to hereinabove recommending closure of the case, against accused named in the FIR on the ground that there was no malafide, misconduct or serious financial irregularities in the purchase of the item concerned at the instance of the accused. It further appears that the said report dated 26.10.2004, had not been accepted by the learned Special Judge, CBI Court, No. 3, Mirzapur, Ahmedabad and whereas the CBI was directed to carry out further investigation in the case and submit report under Section 173 of the Criminal Procedure Code, afresh. It further appears that pursuant to the order of the learned Special Judge dated 09.08.2010, referred to hereinabove, the CBI through one Mayur Joshi, Police Inspector had conducted the investigation with regard to the FIR and whereas the said Investigating Officer had submitted report under Section 173 of the Code of Criminal Procedure requesting the Court to close the case. It was mentioned in the said report that the ‘CBI maintains its earlier stand that, this case is required to be closed due to lack of sufficient evidence to attribute criminality to the accused persons’. The report dated ----04.2012 ( referred to as dated 28.06.2011 in the order impugned, was placed before the concerned Court and whereas vide the impugned order, the learned Special Judge CBI Court No. 9, at Mirzapur Ahmedabad had been pleased to reject the closure report and whereas it was further directed to file afresh final report in accordance with law against all accused.

7. It appears that after the present application had been preferred, this Court while issuing notice to the respondents had granted ad interim rel