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2012 Supreme(All) 2926
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : IMTIYAZ MURTAZA AND ASHWANI KUMAR SINGH, JJ.
ANUPAMA SINGH ....Petitioner
Versus
CENTRAL BUREAU OF INVESTIGATION AND OTHERS ....Respondents
(Writ Petition Nos. 2087 (M/B), 2019 (M/B) of 2009, 700 (M/B) of 2011, 2795 (M/B) of 2009, 733 (M/B) of 2011, 701 (M/B) of 2011, decided on 5th November, 2012)
Counsel :
S.M. Royekwar, Abhay Pratap Singh, Asim Kumar Singh, Brijesh Kumar Singh, Chandra Bhushan Pandey, H.S. Jain, Prince Lenin, Rohit Tripathi and Saurabh Shankar Srivastav for the Petitioner; C.S.C., Bireshwar Nath, Dhruv Mathur and Kapil Misra for the Respondents.
Headnote:(Indian) Penal Code, 1860—Sections 120-B, 420, 467, 468 and 471—Prevention of Corruption Act, 1988—Sections 13(2), 13(1)(d) and 19—Criminal Procedure Code, 1973—Sections 197, 173(1), 173(2) and 204—C.B.I. investigation—Cognizance of offence—Refused by Designated Court for want of sanction—Prior sanction would not extend its coverage to the offences under Sections 120-B, 420, 467, 468 and 471 IPC—Whether the Designated Court had jurisdiction to direct the prosecuting agency to obtain sanction under Section 197(1), Cr.P.C.—Whether the Magistrate ought to have proceeded further in the matter qua the fact that the Police report submitted by C.B.I. before the Magistrate was not accompanied with any sanction order?—C.B.I. after completing the investigation had submitted the charge-sheet and applied for sanction for prosecution which was refused by the Governor—If the Magistrate applies his judicial mind in any direction, it would amount to cognizance—If the sanction is requisite, cognizance cannot be taken by Magistrate in absence of it—Moreover, Magistrate can disagree with the opinion of Investigating Officer—At the stage of cognizance, Magistrate taken the cognizance of offence and not of offender—If the offence has been committed by a public servant and not connected with the discharge of official duty no sanction is required—Sanctioning authority has already refused to accord sanction for prosecution and said order remained unchallenged—In the absence of sanction, Magistrate had to ignore the Police report—Impugned order of Magistrate upheld. [Paras 37 to 100]
Hon’ble Imtiyaz Murtaza J.—The above petitions have the complexion of Public Interest Litigation and have their genesis in the C.B.I. enquiry conducted pursuant to the orders rendered by the Apex Court in Writ Petition No 13381 of 1984, M.C. Mehta v. Union of India dated 27.11.2006 whereby the C.B.I. had filed police report under Section 173 (2) Cr.P.C alongwith the report of S.P. and entire related material against Ms. Mayawati, Sri Naseemuddin Siddiqui, Sri R.K.Sharma and Sri Rajendra Prasad under Section 120-B, 420, 467, 468 and 471 IPC and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988. In the aforesaid petition filed by M.C. Mehta (supra), the Apex Court gave following direction which are excerpted below.
“We accordingly, direct C.B.I. to place the evidence/material collected by the investigating team alongwith the report of the SP as required under Section 173 (2) Cr.P.C before the Court/Special Judge concerned who will decide the matter in accordance with law. It is necessary to add that in this case we were concerned with ensuring proper and honest performance of duty by C.B.I. and our above observations and reasons are confined only to that aspect of the case and they should not be understood as our opinion on the merits of accusation being investigated. We do not wish to express any opinion on the recommendations of the SP. It is made clear that none of the other opinions/recommendations including that the Attorney General or India CVC shall be forwarded to the Court/Special Judge concerned.”
2. It would appear that as a consequence of order of the Apex Court, the C.B.I. registered a case (R.C.No. 0062003 A 0018) under Section 120-B IPC read with Sections 420, 467, 468 and 471 I.P.C and proceeded with investigation of the case. After completion of the investigation, the C.B.I. drew charge-sheet against Ms. Mayawati and Mr. Naseem Uddin Siddiqui arrayed as respondents under Sections 120-B, 420, 467, 468 and 471 IPC and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988, but the same was placed before the Governor of U.P. for according sanction under Section 197 Cr.P.C and 19 of the Prevention of corruption Act. By means of order dated 3.6.2007, the Governor declined to accord sanction for prosecution of Ms. Mayawati and Sri Naseemuddin Siddiqui. Thereafter, it would further transpire, Special Judge (C.B.I.), refused to take cognizance in the matter for want of sanction.
3. The petitions aforesaid have been knit together for being decided by a composite order as the reliefs sought in all the petitions are identical/common and have been preferred in the matter commonly known as “Taj Corridor Matter”.
4. The contentions in all the petitions are identical and are two fold- firstly the impugned order of the designated Court is patently illegal and secondly, the C.B.I. despite knowing fully well that the aforesaid order is amenable to challenge, did not challenge the order. The further contention of the petitioners is that by means of the order of the Apex Court, the C.B.I. was required to submit charge-sheet in the Court and instead of complying with the order, the C.B.I. placed the charge-sheet before the Governor and it was thereafter that the charge-sheet was placed in the Court. It is submitted that by a stream of decisions of the Apex Court, the prior sanction would not extend its coverage to the offences under Sections 120-B, 420, 467, 468 and 471 IPC.
5. The relief sought in Writ petition No 2087 of 2009 (M/B) filed by Anupama Singh is quoted below:
(1) to issue a writ, order or direction of or in the nature certiorari quashing the impugned order of the designated Court, as mentioned in Paragraph-2 of this writ petition, after summoning the record and direct the designated Court to proceed in accordance with law; or
(2) to issue a writ, order of direction of or in the nature of mandamus commanding the C.B.I. to challenge the impugned
