Point of Law: Illegal gratification - Previous sanction necessary for prosecution - Granted sanction for prosecution not maintainable - Section 19 of P.C. Act empowers sanctioning authority to protect innocent public servants from uncalled for prosecution but it is not intended to shield guilty.

Headnote:
Prevention of Corruption Act, 1988 Section 7, 13(1)(d), 13(2) and 19 - Criminal Procedure Code, 1973 - Section 173(8) and 197 - Constitution of India, 1950 - Article 226 - Disciplinary proceeding - Basic Education Department - Post of Treasury Office - Demand of illegal gratification - Suspended Assistant Teacher against petitioner for demanding illegal gratification, Vigilance Department constituted a team of officers - Petitioner was allegedly caught red handed by Trap Team of Officers of U.P. Vigilance Department when he was allegedly accepting bribe from Assistant Teacher for payment of his suspension allowance - Whether sanction for prosecution is necessary or not, have to be determined from stage to stage and material brought on record depending upon facts of each case.
Finding of the court: It is evident that legality and/ or validity of order granting sanction would be subject to review by criminal courts whereas an order refusing to grant sanction may attract judicial review. Reference in this regard may also be had to judgment of Apex Court in State of Punjab and another vs. Mohd. Iqbal Bhatti, (2009) 17 SCC 92 (para-6 - Present writ petition for quashing sanction for prosecution or to stay trial is not maintainable. Ordinarily, question of sanction should be dealt with at stage of taking cognizance. Question of sanction can be raised at time of framing of charge and it can be decided prima facie on basis of Accusation - Section 19 of P.C. Act makes it clear that no court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with previous sanction of Central Government or State Government or competent authority - If a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted.
Result: Writ petition is dismissed

JUDGMENT :

Surya Prakash Kesarwani, J.

1. Heard Sri Suresh Chandra Dwivedi, learned counsel for the petitioner and the learned standing counsel for the State-respondents.

2. This writ petition has been filed praying for the following relief:

“(i) To issue a writ of Certiorari quashing the order dated passed 27.01.2020 passed by respondent no.3 and 4 (Containing in Annexure no.33 in present writ petition).

(ii) To issued a stay operation of the order dated 27.01.2020 (Annexure No.33) and it further prayed during the pendency of writ petition the trial court has not proceed the matter in pursuance of order dated 27.01.2020 during the pendency of writ petition.

(iii) Issue a writ order or direction in the nature of Mandamus Commanding / Directing the Respondents to act in accordance with law.

(iv) Issue any other suitable writ order or direction as this Hon’ble Court may deem fit and proper in the circumstances of the case.

(v) Award the cost of petition to the petitioner.”

Facts:-

3. Briefly stated facts of the present case are that in the year 2015, the petitioner was selected on the post of Treasury Officer and was posted as Finance and Accountants Officer in the Basic Education Department, Agra. Sometime in August, 2016, one Dinesh Singh Chahar was suspended by the competent authority and disciplinary proceeding was initiated but his disciplinary proceeding could not be concluded within three months, therefore, on 25.12.2016, he moved an application before the petitioner and the concerned Basic Education Officer for payment of suspension allowance to the extent of 75% of the salary instead of 50% of the salary which the petitioner forwarded to the Basic Education Officer for orders. On complaint of the aforesaid suspended Assistant Teacher against the petitioner for demanding illegal gratification, Vigilance Department constituted a team of officers. On 02.05.2017, the petitioner was allegedly caught red handed by the Trap Team of Officers of the U.P. Vigilance Department when he was allegedly accepting bribe of Rs.50,000/-from the Assistant Teacher Sri Dinesh Singh Chahar, for payment of his suspension allowance. Accordingly, a First Information Report No.0254 of 2017 dated 02.05.20217 under Section 7, 13(1)(d), 13(2), P.C. Act, P.S. Shahganj, District Agra was registered against the petitioner.

4. On 15.05.2017, petitioner's wife submitted a representation before the District Magistrate, Agra, alleging that her husband has been falsely implicated in the aforesaid criminal case. On 13.11.2017, the petitioner also moved a representation before the Superintendent of Police, Vigilance, Agra submitting that he has been falsely implicated. On 21.11.2017, the petitioner moved a representation before the Finance Controller, Basic Shiksha Parishad, U.P. Allahabad alleging that the Assistant Teacher Dinesh Singh Chahar had made a false complaint against him. The petitioner also moved a representation before the Additional Director (Basic Shiksha), Uttar Pradesh, Allahabad for action against the aforesaid Assistant Teacher Dinesh Singh Chahar alleging that he moved a false complaint since the sanctioning authority for suspension allowance to the extent of 75% of the salary, was the Basic Education Officer and not the petitioner. On the aforesaid representation of the petitioner, the Finance Controller issued a letter dated 08.12.2017 for taking action against the aforesaid suspended Assistant Teacher Dinesh Singh Chahar.

5. It appears that the Investigating Officer of the Vigilance Department investigated the matter and requested the State Government to grant sanction for prosecution of the petitioner. It appears that the State Government considered the objections/ representation of the petitioner and vide order dated 25.04.2018, the State Government not accepted the recommendation of the Vigilance Department for granting sanction for prosecution of the petitioner and directed for further investigation to be carried by the CBCID under Section 173