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2016 Supreme(All) 878
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Vikram Nath, Ravindra Nath Kakkar, JJ.
Dr. Rakesh Dhar Tripathi - Petitioner
Vs.
State Of U.P. & Others - Respondents
Criminal Misc. Writ Petition No. 6898 of 2016
Decided On : 03-08-2016
Advocate Appeared:
For the Petitioner: Chandan Sharma, Chandan Sharma, Dileep Kumar
For the Respondents: G.A.
The court emphasized that the right to be heard during the trial, not the investigation, and that the issues raised could be examined by the trial court.
Headnote:
Sanction - Criminal Prosecution - Prevention of Corruption Act, 1988 - Section 13(1)(e), Section 13(2)
Fact of the Case:
The petitioner challenged the order granting sanction for criminal prosecution under Section 13(1)(e) and Section 13(2) of the Prevention of Corruption Act, 1988. The petitioner contended that he was not given an opportunity to explain his case during the investigation, and the investigation did not follow the procedures outlined in the Government Order. The petitioner also argued that the sanction order was without jurisdiction and based on incomplete material.
Finding of the Court:
The court found that the petitioner, as a public servant during the check period, fell within the definition of a 'public servant' under the Act, 1988. The court held that the sanction for prosecution was valid and based on evidence collected during the investigation. The court also noted that the petitioner's right to be heard during the trial, not the investigation, and that the issues raised could be examined by the trial court.
Issues: The issues included the lack of opportunity for the petitioner to explain his case during the investigation, the alleged violation of procedures outlined in the Government Order, and the jurisdiction and validity of the sanction order.
Ratio Decidendi: The court held that the sanction for prosecution was valid and that the petitioner's right to be heard during the trial, not the investigation. The court also noted that the issues raised could be examined by the trial court.
Final Decision: The writ petition was dismissed as lacking merit.
Ravindra Nath Kakkar, J.
Heard Sri Dileep Kumar assisted by Shri Chandan Sharma, learned counsel for the petitioner and Shri Imran Ullah, learned Additional Advocate General assisted by Shri P.S. Yadav, learned A.G.A. for the State.
2. This writ petition is directed against the order dated 15.02.2016 by which sanction for criminal prosecution has been accorded against the petitioner under Section 13(1)(e) and under Section 13(2) of the Prevention of Corruption Act, 1988 (in short “the Act 1988”). The petitioner has also sought quashing of the communication dated 4.3.2016 by which the Special Secretary, Government of U.P. Lucknow forwarded the sanction order dated 15.2.2016 to the Director, U.P. Vigilance Establishment, Lucknow.
3. Learned counsel for the petitioner firstly contended that the petitioner has not been given opportunity of hearing during investigation. He submitted that the Government Order dated 11.7.2005 lays down the procedure that has to be followed while conducting an investigation. Clause 19 of the Government Order stipulates that the charged officer (delinquent) should be provided opportunity to explain his case and his statement should be recorded at three stages, i.e. (a) immediately after search, (b) during investigation; and (c) after completion of investigation. Clause 19(c) thereof provides that on completion of investigation, charged officer shall be interrogated with regard to his disproportionate properties and his statement shall be recorded in detail so as to explain each and every aspect of the enquiry and if any inconsistency is noticed in his explanation/statements, it should be pointed out in appraisal of evidence enclosing a final report concerning such statements. In the present case, neither any explanation was called for nor statement of the petitioner recorded as provided under clause 19(c) of aforesaid Government Order and as such the entire investigation conducted against the petitioner is vitiated. Since no opportunity of hearing was given to the petitioner to explain his case nor provided with any document or material to enable him to explain and account for the alleged disproportionate properties, there is complete denial of opportunity of hearing as provided in the guidelines under clause 19(c) of the Government Order dated 11.7.2005, and is in defiance of the principles of natural justice.
4. Learned counsel for the petitioner also contended that Section 17 of the Prevention of Corruption Act, 1988 has not been followed in conducting the enquiry. Section 17 provides that investigation shall be conducted by a Deputy Superintendent of Police or a police officer of equivalent rank. In the present case, the investigation has been conducted by an Inspector who is much lower in rank to Deputy Superintendent of Police, which is in violation of Section 17(c) of the Act, 1988. Learned counsel for the petitioner further contended that the Investigating Officer while conducting investigation has altogether ignored the directions given by Lucknow Bench of this Court in the judgment and order 21.6.2013 passed in Misc. Bench No.5161 of 2013 (Dr. Rakesh Dhar Tripathi vs. State of U.P. and others) and as such the investigation cannot be said to be complete in any manner.
5. Learned counsel for the petitioner further contended that the impugned order granting sanction is without jurisdiction as the power to grant sanction vests with the State Government. He also pointed out that the sanction order has been passed without application of mind based on incomplete material collected during investigation. Learned counsel for the petitioner therefore submits that the sanction order is illegal, without jurisdiction and is not sustainable in law.
6. Learned counsel for the petitioner has placed reliance on the decision of the Apex Court in Veerendra Kumar Dubey v. Chief of Army Staff and others, (2016) 2 SCC 627, wherein administrative instructions have not been followed in a departmental procee
