Santosh Kumar Shukla vs State through C.B.I.

J.C. Mishra, J.—This revision is directed against the order dated 91098 passed by Special Judge (Prevention of Corruption Act) U.P. Lucknow holding that the sanction for prosecution granted by the Assistant General Manager is valid. The accused Santosh Kumar Shukla has challenged the order on the ground that the sanctioning authority had not seen all relevant papers and there was total nonapplication of mind and consequently the sanction is invalid and on its basis the revisionist could not be prosecuted.

Heard Sri Nandit Kumar Srivastava, assisted, by Sri P. Chakravarty, the learned Counsel for the revisionist and Sri Biteshwar Nath, learned Government Advocate.

The accused was posted as Attender in U.P. Jal Nigam Extension Counter of Syndicate Bank, Lucknow during the period from 1987 to 1989. The prosecution case is that he entered into criminal conspiracy with some unknown persons with the object of defrauding the said Bank by abusing his Official position as such public servant and thereby caused monetary loss to the Bank t6 the tune1 of Rs. 3, 31, 700 and thereby committed offence punishable under Section 120B, 419,420,467,468 and 471, I.P.C. and Section 13(2) read with Section 13(1)(d) of the Prevention ofCorruption Act. The case was investigated by C.B.I, who submitted chargesheet against tile revisionist on 121192. The sanction for prosecution was granted by Sri S.P. Jain, Assistant General Manager, Syndicate Bank prior to submission of chargesheet by order" dated 13392. The learned Judge took cognizance of the case framed charges and proceeded to examine prosecution witnesses. The prosecution examined Sri SP. Jain, Deputy General Manager who stated that at the relevant time he was posted as Assistant General Manager, Lucknow and was competent to remove the accused from service. He stated that after considering the report submitted by C.B.Iand gist of evidence of the prosecution accorded sanction for prosecution of the accused revisionist.

It appears that while the prosecution evidence was being recorded the accused challenged the sanction order primarily on the ground that there was no application of mind and consequently the sanction is not valid and secondly on the ground that the sanctioning authority had no power to accord sanction.

The learned Counsel for the revisionist contended that admittedly Shri Jain, the sanctioning authority had not perused all the documents nor the confessional statement of the accused and further he did not consider whether any other employee was involved in the offence or not and consequently there was non application of mind. He also pointed out that though Shri. Jain has claimed that he had perused the file of the departmental enquiry but in the crossexamination he had to admit that no evidence was recorded during the said enquiry and consequently this departmental proceeding would not have been of any help to the officer in finding whether the accused was prima facie guilty of the offence complained, The learned Counsel also contended that Sri Jain has passed his order according sanction on the basis of the report of C.B.Iand, therefore, the order is invalid.

So far as legal question is concerned it cannot be disputed that sanction accorded only on the basis of the report of the Investigating Agency is invalid. It is duty of the prosecution to place before the authority all the relevant materials including the statement recorded by the Investigating Officer (State of Tamil Nadu v. M. M. Rajendran; 1998 SCC (Cri.) 100. In the case before. the Supreme Court the relevant materials including the statement recorded by the Investigating Officer had not been placed for consideration by the City Commission of Police, Madras and only a report of the Vigilance Department was placed before him. It was observed that even if report is a detailed one, such report cannot be held to be the complete record required to be considered for sanction on.application of mind to the relevant materials on record and, therefore, the sanction is invalid.

In R.S. Nayak v A.R. Antulay, 1984 SCC (Cri) 172, it was held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and, other incidental facts before accordingly sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must, therefore, be strictly complied with before any prosecution could be launched against public servants. The aforesaid legal position has not been disputed by the learned Government Advocate. The only dispute between the learned Counsel is whether the sanctioning authority had perused the relevant documents and accorded sanction for prosecution after applying his mind or not.

The learned Government Advocate referred to the statement of the sanctioning authority Sri S.P. Jam who deposed that he had perused the report submitted by C.B.Iand the allegations contained it besides the gist of evidence of the witnesses. Shri Jain also stated that he had perused all the records available in the Bank and formed an independent opinion that the case was fit for prosecution. He also stated that the sanction order was typed on his dictation and he appended his signature, thereon.

The Government Advocate also referred to the sanction order which indicates that the sanctioning authority has, in brief, referred to the incriminating evidence which indicated the involvement of the accused. He recorded his satisfaction that Santosh Kumar Shukla by abusing his official position as public servant in conspiracy with some unknown person caused heavy pecuniary loss to the tune of Rs. 3,31,700 to Syndicate Bank and correspondingly gains to himself and some other unknown persons and it constituted offence. The learned Advocate contended that since the application of mind is indicated in the sanction order it is sufficient to prove that it was validly granted. The learned Counsel contended that if the original sanction contains the facts constituting the offence and grounds of sanction, it is proved that a valid sanction has been granted by the sanctioning authority. In support of his contention the learned Government Advocate referred to decision of the Supreme Court in Mohd. Iqbal Ahmed v State of Andhra Pradesh, 1979 SCC (Cri) 926, where it was held that the prosecution can prove that a valid sanction has been granted by the sanctioning authority after it was satisfied that a case for sanction has been made out constituting the offence in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it.

The learned Government Advocate contended that in case before us the sanction contains the facts constituting the offence and the grounds of satisfaction, therefore, no controversy can be raised by the accused regarding nonapplication of mind. This contention finds support from a recent judgment of the Supreme Court in Mohd. Iqbal M, Sheikh & Ors. v. State of Maharashtra, AIR 1998 SC 2864, where it was observed that where relevant sanction order indicates the materials considered and then after applying mind the sanctioning authority accorded sanction the same would be sufficient to hold that there is valid sanction.

The learned Government Advocate further contended that as a precautionary measure the prosecution has examined the sanctioning authority who has stated that after considering the documents available in the Bank and studying the report and gist of evidence collected during investigation he accorded sanction for prosecution. He also stated that on consideration of the documents he came to conclusion that the case was fit for according sanction. The learned Counsel also contended that the Sanctioning Authority is only required to form opinion on the basis of the relevant documents and it is not necessary that he should peruse each and every document. This contention appears to be correct..The sanction order recorded by the Assistant General Manager indicates that after, considering the materials available he came to the conclusion that the accused was responsible for removal of blank cheque leaves and also for defrauding the Bank of different amounts of money indicated in the order. The sanction order itself indicates application of mind and forming an opinion after satisfying the involvement of the accused.

The Supreme Court in Mohd. Iqbal M. Sheikh''s case reported in A.I.R. 1998 SC 2864, further observed that if the sanction order is not sufficient to indicate that the sanctioning authority applied his mind then the prosecution is entitled to adduce evidence aliunde of the person, who accorded sanction and that would be a sufficient compliance. After going through the said evidence, the Court can come to the conclusion that relevant materials were considered by the sanctioning authority where after he accorded the sanction in question. In the ease before us in view of the statement of Sri Jain it is proved that he had considered the records available at his place and on its basis had formed his independent opinion. This statement was not challenged in the crossexamination. It cannot be disputed that the question whether the accused was responsible for committing the criminal acts complained could be gathered from the account books and cheque books etc. which was undisputedly available in the Bank. The sanctioning authority perused the available records and also the gist of the evidence recorded by the investigating agency and thereafter formed his opinion that the accused committed the crime complained and the case was fit for according sanction for prosecution.

In the sanction order it has also been indicated that the accused Santosh Kumar Shukla had submitted applications to the A.G.M. Syndicate Bank, Zonal Office, Lucknow before two witnesses admitting his guilt.

Learned Counsel for the revisionist contended that the paper containing the confession was not produced before the sanctioning authority, has admitted by him and this indicates that the sanction order was passed without considering the said paper. This argument is without any merit. In the crossexamination Sri Jain staled that no paper was available in which the accused had admitted his guilt. The reply given in the crossexamination appears to be with reference to the departmental proceeding and not to the materials which were before him while according sanction as is clear from the statement reproduced below.

Thus, in view of the above statement it can cannot be said that the said confessional statement was not before the sanctioning Authority when he had accorded sanction."

The learned Counsel contended that the wordings in the sanction are more or less similar to the facts narrated in the chargesheet which indicates that Shri Jain without applying his mind had reproduced the chargesheet. This argument is falsified by the dates of the chargesheet and the sanction order. The chargesheet is dated 121192 while the sanction order is dated 13392 it shows that the sanction order was passed about eight months before the submission of the chargesheet and, therefore, there was no question of reproducing the chargesheet. It could be that the Investigating Agency would have reproduced the facts stated in the sanction order in the chargesheet. Secondly, even if for argument sake it is accepted that the sanctioning authority has taken the report of the C.B.I, for passing the sanction order it would not affect the merit of the sanction order since no particular form is required for granting sanction. All that is required is that before according sanction the authority concerned must have applied his mind as discussed above there is no doubt that the authority had considered the relevant documents and formed his independent opinion and on its basis had accorded sanction for prosecution of the accused.

While granting sanction for prosecution of the revisionist it was not necessary to have considered whether any other employee was involved in offence or not. In my opinion the validity of sanction is not affected by nonconsideration of material regarding other accused persons.

Coming to the second question whether Shri Jain who was Assistant General Manager, was competent to remove the accused revisionist who was a class IV employee, there is evidence of Sri Jain stating the fact that he was empowered to remove him. The evidence in this regard was not challenged in the crossexamination. However, the learned Counsel contended that the prosecution has not discharged this burden with reference to the rules. In order to meet this criticism the learned Government Advocate has produced a photo stat copy of the relevant rules. The circular No. 006/99/BC/PD/04/IRD of the Personnel Department of Industrial Relations Division indicates the authorities competent to suspend workmen employees. Circular No. 143/87/BC/PD/22/IRS dated 4587 of the Syndicate Bank, Personnel Department, Industrial Relations Division (AnnexureI) refers to the officers empowered to take disciplinary action and the body to, hear and dispose of appeals in disciplinary matters of workmen staff. Chapter XIX of the Bipartite Settlement dated 19966 as amended up to 28294 has also been shown. In view of this document there is no doubt that the Assistant General Manager was empowered to remove class IV employees and, therefore, Sri Jain who was Assistant General Manager in the Zonal office of the Syndicate Bank Lucknow was empowered to accord sanction.

The learned Counsel for the revisionist referred to the statement of S.P. Jain who stated that he had not seen the appointment letter of Santosh Kumar Shukla. He stated that there was no post of Deputy General Manager in Lucknow Zone at the lime of appointment of the accused. He, however, admitted that a peon could be appointed only after clearance by the Head Office. In view of this statement, the learned Counsel contended that Head Office should be deemed to be appointing authority. This contention is devoid of any merit; firstly the Head Officer has every power to regulate the appointment despite the fact that some junior officers are empowered to appoint a particular employee. It can regulate the manner of appointment. Merely on ground of retaining the power of clearance it cannot be said that Head Office is the appointing authority. Moreover, at this stage we are not concerned as to who had appointed the revisionist but only fact that need be considered is as to who was the officer who was empowered to remove him at the time the Court concerned took cognizance of the case. As indicated by the statement Shri Jain and the relevant circulars, the A.G.M. had power to remove the accused and, therefore, it was competent to accord sanction for prosecution.

The impugned order does not suffer from any error and, therefore, no interference is called for.

The revision is dismissed.

Revision dismissed.