Prosecution sanction cannot be issued without new evidence if previously refused, and the authority issuing the sanction must be competent.

ORDER :

1. Before the counsel appearing for the petitioner proceed with the arguments, learned counsel appearing for the CBI submits that the reply to the petition on behalf of the CBI has already been submitted. Counsel has also raised an objection that the petitioner has not served the copy of this petition in the office of ASGI, though, the authority of the Union of India i.e. Ministry of Heavy Industries, Government of India is the party to the petition.

2. As regard the serving of advance copy of this petition in the office of ASGI is concerned, learned counsel appearing for the CBI has placed before this Court the notice dated 05.09.2023 issued by the Registrar (Judicial) of the Rajasthan High Court, Bench Jaipur. In clause 5 of the aforesaid notice, provision has been made as regards the serving of advance copy for the writ notices. The said notice is in regard to the writ petitions only and the present petition is the criminal misc. petition under Section 528 BNSS and there is no such order for serving the advance copy of the criminal misc. petition, hence, objection as raised by the counsel appearing for the CBI is overruled.

3. It is also taken into consideration that only Special Public Prosecutor in the criminal matters appointed by the Union of India, can appear in the criminal matters in view of the provisions of Section 18 of the BNSS.

4. Learned Senior Advocate Mr. V.R. Bajwa assisted by Mr. Sneh Deep Khyaliya submits that by filing the present petition, the petitioner has challenged the order dated 12.06.2024 whereby the prosecution sanction has been accorded against the petitioner. Learned Senior Advocate further submits that earlier also on three occasions, the prosecution sanction was refused with regard to the petitioner. He further submits that once the prosecution sanction has been refused, no fresh prosecution sanction can be issued without there being any additional evidence or material on record. He also submits that in the present case on three occasions, prosecution sanction was refused.

5. Learned Senior Advocate appearing for the petitioner has placed reliance upon the judgment of the Hon’ble Apex Court passed in case of State of Himachal Pradesh Vs. Nishant Sareen,(2010) 14 SCC 527.

6. Learned counsel appearing for the CBI submits that the prosecution sanction can only be refused or granted by the competent authority. He further submits that in the present case, earlier the prosecution sanction was refused by the authority which was not competent to consider the case of the prosecution sanction of the petitioner.

7. Learned counsel appearing for the CBI has also placed reliance upon the judgments passed by the Hon’ble Apex Court in the cases of Satya Narayan Sharma vs. State of Rajasthan, 2001 (8) SCC 607, Prakash Singh Badal & Anr. Vs. State of Punjab & Ors., 2007 (1) SCC 1 and State of Madhya Pradesh vs. Pradeep Kumar Gupta, 2011 (6) SCC 389.

8. Considered the submissions made at bar and also perused the material made available on record.

9. The basic issue raised by the counsel appearing for the petitioner is that once the prosecution sanction has been refused as regards the present petitioner, same cannot be reviewed and fresh prosecution sanction cannot be issued without there being any additional evidence or document.

10. Central Bureau of Investigation in their reply has stated as under:

“So far as prosecution sanction of the petitioner S.K. Gupta is concerned the entire material against the petitioner was forwarded to IL, Kota for grant of prosecution sanction against accused Shri Shailesh Kumar Gupta the then Director (F) and Sanction was awaited. Thereafter, the CVO, Solar Energy Corporation India Limited (SECIL), New Delhi vide its letter dated 27.11.2020 intimated that Sanctioning Authority (CMD/SECI) has declined the request for sanction of prosecution against Shri Shailesh Kumar Gupta @ S. K. Gupta, the then Director (F), ILK, now AGM (Finance), SECI. It is pertinent to mention that in the ins