Criminal Writ Petition No. 3654 of 2012. Case: Vivek Batra Vs Union of India. High Court of Bombay (India)
| Case Number | Criminal Writ Petition No. 3654 of 2012 |
| Counsel | For Petitioner: Amit Desai, Sr. Adv. a/w Prakash Naik, Gopalkrishna Shenoy, Ganesh Bhujbal, Advs. and For Respondents: Vivek Bhatia, D. N. Salvi , Kevic Setalwad, Addl. Solicitor General of India a/w Milind Sawant and Awais Ahmadji and B. B. Badami, Mrs. P. H. Kantharia, A.P.P. |
| Judges | S. C. Dharmadhikari, J. and G. S. Patel , J. |
| Issue | Prevention of Corruption Act (49 of 1988) - Section 19; Constitution of India - Article 226 |
| Citation | 2014 CriLJ 450 |
| Judgement Date | October 29, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
S. C. Dharmadhikari, J.
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In the light of the earlier orders passed by this Court at the stage of issuance of notice, this Writ Petition is disposed of finally at the stage of admission.
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Hence, RULE. The Respondents waive service. By consent, Rule is made returnable forthwith.
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By this writ petition under Article 226 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, 1973, the Petitioner is challenging the grant of sanction vide order dated 09.10.2012. This order is passed by the Respondent No. 1.
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The Petitioner before us is a citizen of India. He is an Indian Revenue Service Officer of 1992 batch (for short IRS officer). Presently, he is the Additional Commissioner of Income Tax, Mumbai.
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It is stated that a case of Disproportionate Assets bearing RC No. BA1/2005/A0017 was registered by the Respondent No. 4 on 4th April, 2005 against the Petitioner who is the original accused, under Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988. It is alleged in the complaint dated 04.04.2005 that the present Petitioner who is the original Accused while functioning as a public servant indulged in corrupt practices and thereby accumulated assets exceeding Rs. 01,27,38,353/- disproportionate to his known sources of income and in his name and in the name of his wife and minor son during the period from 04.01.1993 to 31.03.2004. According to the Petitioner, as a result of long investigation over almost 6 years, the prosecution could not find any alleged disproportionate assets in the hands of the Petitioner or his family members viz. his wife Mrs. Priyanka Batra and minor son Master Arjun Batra, but sought prosecution of the Petitioner by somehow linking two companies, namely, M/s. ARJ Impex Private Limited and M/s. Malik Hospitality Services Private Limited to the Petitioner, thereby computing the disproportionate assets at Rs. 56.30 lacs approximately in these two companies. The prosecution applied for sanction against the Petitioner before the Sanctioning Authority in October/November, 2010. Annexure A to the petition is a copy of the First Information Report.
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The Petitioner states that despite almost 6 long years of investigation, the Central Bureau of Investigation (for short CBI) was unable to find any disproportionate assets in the hands of the Petitioner, his wife Mrs. Priyanka Batra and minor son Master Arjun Batra in personal capacity. The CBI, however, sought sanction for prosecution linking the Petitioner to the above two companies treating them as Benami companies of the Petitioner, claiming disproportionate assets of Rs. 56.30 lacs approximately in these two companies. According to the Petitioner, for no reason and after lapse of 5 years from the date of registration of offence, despite having appeared before the CBI more than 20 times, the Petitioner was arrested on pretext of interrogation on 02.09.2010 and kept in custody for 3 days. He was subsequently released on bail after he was produced before the learned Special Court at Mumbai.
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The Petitioner complains that the matter was kept pending and therefore, he suspected that after the case was put up for sanction before the Sanctioning Authority, a decision would be taken expeditiously. However, his complaint is that he obtained the notesheet and documents available in the file seeking sanction for prosecution by taking recourse to the Right to Information Act, 2005. He has disclosed summary of notings approved by the Competent Authority. He has then contended that on a detailed and careful perusal of the Central Bureau of Investigation (for short CBI) inquiry report, the Sanctioning Authority took a view that the Department does not find sufficient evidence to link the above two companies to the Petitioner and therefore, does not agree with the CBI to grant sanction for prosecution. Thus, the remark "no sufficient evidence" and hence, no prima facie case to proceed, would denote that the sanction was not granted. In other words, the matter was not fit for grant of sanction, but it was considered as appropriate for administrative action. Yet, it is alleged that the matter was referred to the Central Vigilance Commission (for short CVC) for its first stage preliminary advice on 03.05.2011. The first stage advice of the CVC was received vide office memorandum dated 01.09.2011 and that recommended granting sanction for prosecution of the Petitioner.
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The Petitioner states that the Department concerned was convinced that there is no sufficient evidence and no prima facie case for prosecution. It having considered the CVC's advice, once again the Department concerned, namely, Finance Department endorsed on 01.10.2011 in the file that the matter may be referred to the CVC for reconsideration of its advice. This was because the Competent/Sanctioning Authority was convinced that the CBI was not able to gather sufficient evidence for making a prima facie case for launching of criminal prosecution. The matter was then referred to the CVC for reconsideration of its advice. The CVC by its Office Memorandum dated 02.11.2011 did not agree for reconsideration of the advice and instead observed that the Competent Authority should proceed to grant sanction.
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The Petitioner then submits that the Competent Authority was of the firm belief that there is no sufficient evidence and no prima facie case for criminal prosecution. It endorsed its earlier decision of not granting sanction for prosecution. However, on 18.02.2012 it referred the matter to the Department of Personnel and Training (for short DOPandT) for its views with observation that they will be willing to grant sanction for prosecution only in the event the CBI can provide further sufficient evidence. However, the DOPandT did not appreciate the conditional stand of the Competent Authority of granting sanction only if the CBI provides sufficient evidence and, therefore, returned the case to the Competent Authority requesting it to take a final categorical and unconditional decision. This was communicated vide letter dated 29.03.2012.
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The Petitioner submits that on the advice of the DOPandT, the Competent Authority again applied its mind in detail and on 27.04.2012 the Competent Authority took a final decision in the matter that the evidence being not sufficient, no prima facie case for initiation of case for major penalty or prosecution was made out. It only recommended issuance of an administrative warning to the Petitioner for non-intimation of one transaction. The Finance Department then referred the matter to the DOPandT for its views.
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The Petitioner further submits that by the letter dated 28.05.2012, the DOPandT conveyed its views on the matter wherein it stated that it was convinced that the CVC in its brief reply has not given any plausible reason to rebut the points raised by the Finance Ministry about insufficiency of evidence. The DOPandT expressed a view that insufficiency of evidence could be tested in a court of law and that sanction for prosecution may be granted.
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The Petitioner submits that he expected that the Competent Authority, in tune with the earlier consistent decisions of no sufficient evidence and no prima facie case for grant of sanction for prosecution, would take its final decision of not granting the same and would endorse its decision dated 27.04.2012. However, to his utter shock and surprise, the new incumbent acting as Competent Authority issued the order dated 09.10.2012 thereby granting the sanction for prosecution. This decision amounts to review of the earlier decision without there being any fresh material, but on the same facts. In such circumstances when there is a complete non-application of mind, the order granting sanction is vitiated.
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Thus, it is this order which is challenged in this Writ Petition.
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Mr.Amit Desai, learned Senior Counsel appearing for the Petitioner, submitted that the impugned decision is vitiated in law. The said decision amounts to review of the earlier decision dated 27.04.2012 refusing sanction. Mr. Desai submits that the test is whether a prima facie case is made out and whether the material is sufficient for grant of sanction. Mr. Desai submits that the scope of Sanctioning Authority's powers is fairly wide. It can consider the issue of adequacy and sufficiency of the material. It cannot be urged that sufficiency of evidence is a consideration or factor alien to the powers of the Sanctioning Authority. This is a valid consideration. Once that aspect can be looked into by the Sanctioning Authority and it refuses to grant sanction on meticulous analysis of the material produced, then, such decision or order is final. It could not have been reviewed or reconsidered save and except in exceptional circumstances. Mr. Desai submits that the test of prejudice would come at a later stage. In the present case when there is a decision endorsed in the file on 27.04.2012 and that is not to grant sanction, then, the subsequent order passed on 09.10.2012 deserves to be quashed and set aside.
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Mr. Desai was at pains to urge that the argument that sufficiency of material/evidence can be considered only by the competent Court and not by the Sanctioning Authority, is an improper and incorrect understanding of the ambit and scope of the powers conferred by Section 19 of the Prevention of Corruption Act, 1988. Mr. Desai submits that the objections taken by the CBI in the affidavit in reply, firstly to the maintainability of the Writ Petition and equally on merits, cannot be sustained and should be ignored or brushed aside by this Court. The stand is that the Sanctioning Authority cannot go into the issue of sufficiency or adequacy of the material/ evidence against an officer or public servant like the Petitioner. This stand is only based on some advice given by the CVC. The role of the CVC is limited and it is advisory and recommendatory in nature. In these circumstances...
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