TaxTMI 
TaxTMI 
2011 (10) TMI 787
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....n more than one occasion, the matter was examined and it had been decided not to grant sanction to prosecute the petitioner; that the said decision was reversed under pressure from the respondent No.3 CBI. The petitioner accordingly sought interim order restraining further steps pursuant to the sanction accorded on 14.02.2011. 2. Notice of the petition was issued and the question of interim relief left to be considered on the next date of hearing. On 10.05.2011, it was directed that in the event the respondent No.3 CBI proposed to file a charge sheet, it will first inform this Court. Thereafter on 03.06.2011, the counsel for the petitioner informed that notwithstanding the earlier order of this Court, the petitioner had been summoned by the Special Judge of CBI Court in Greater Mumbai; violation of order dated 10th May, 2011 of this Court is alleged. Vide subsequent interim orders dated 15.06.2011 and 05.07.2011, the Special Judge, CBI, Greater Mumbai was requested not to insist on the personal presence of the petitioner before that Court. Counter affidavit has been filed by the respondent No.3 CBI and to which rejoinder has been filed by the petitioner. The counsels for the ....
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....lation of the Railways, the percentage of disproportionate assets is only 20.65%; that the respondent No.4 CVC's own calculation of disproportionate assets was of 34.7% while that of respondent No.3 CBI, as aforesaid, was of 54%. In the circumstances, the matter was referred back to the respondent No.3 CBI to consider the views of the respondent No.2 Railway Board; (h) the petition does not disclose the findings of the respondent No.3 CBI at this stage; however it is pleaded that on the matter being referred again to respondent No.4 CVC and thereafter again to the respondent No.2 Railway Board, the respondent No.2 Railway Board again on 06.01.2009 opined that the case did not warrant prosecution by the respondent No.3 CBI; (i) however the respondent No.3 CBI again approached the respondent No.4 CVC and a joint meeting of respondent No.3 CBI, respondent No.4 CVC and the respondent No.2 Railway Board was held on 11.09.2009 in which it was found that respondent No.3 CBI can be said to have brought out a clear "disproportion" of 15.73% which can go upto 24.42% only if there is a strong evidence to reject the income of the wife of the petitioner and the loan; ....
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....to the petitioner on 05.05.2011 itself and the petitioner was asked to remain present on 11.05.2011 but the petitioner stated that he will be on leave at Delhi till 15.05.2011; that the Special Judge, CBI, Greater Mumbai took cognizance on 11.05.2011. 6. The respondent No.3 CBI in its counter affidavit as also on each and every date of hearing, has been vehemently opposing the territorial jurisdiction of this Court to entertain this petition. It is pleaded that the alleged offence has been committed at Mumbai, the FIR has been registered at Mumbai and the charge sheet has also been filed before the Special Judge, CBI, Greater Mumbai; the petitioner is also posted at Mumbai and the Special Judge, CBI, Greater Mumbai has already taken cognizance of the matter and the impugned sanction order is a part of the charge sheet and is under the judicial scrutiny of the learned Special Judge. It has further been contended on each and every date that the Special Judge, CBI, Greater Mumbai being beyond the territorial jurisdiction of this Court, no order with respect to proceedings of that Court could be made by this Court. Reliance is placed on C.B.I. Anti-Corruption Branch, Mumbai Vs. Nara....
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....g of the charge sheet and states that the present petition was filed even prior to the charge sheet being filed in the Court of the Special Judge, CBI, Greater Mumbai. It is reiterated that the filing of the charge sheet is in violation of the orders of this Court. Else, the pleas in the counter affidavit regarding grant of sanction are controverted. 10. Section 19 of POCA prohibits any Court from taking cognizance of an offence punishable thereunder except with the previous sanction of the Central Government or the State Government as the case may be and in the case of any other person, of the authority competent to remove him from his office. A first reading thereof appears to indicate that the challenge if any to the sanction, cannot be before the Court taking cognizance of the offence inasmuch as without a valid sanction, that Court would have no jurisdiction. However, Section 19 itself in sub-section (3) thereof provides that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission, irregularity in the sanction required under sub-section (1), un....
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....sition that all the relevant documents were not considered by the sanctioning authority. Similarly, recently in Chittaranjan Das Vs. State of Orissa (2011) 7 SCC 167 also, it was observed that if disputed questions of fact are involved, it is expedient to leave the question of validity of the sanction to be decided by the trial court. 14. Once one reaches a conclusion that the challenge made as in this petition could be made by the petitioner before the Special Judge, CBI also, the question of maintainability of this petition under Article 226 of the Constitution arises. Ofcourse, the present petition was filed before the chargesheet was filed in the Court of Special Judge, CBI, Greater Mumbai. However, the question still arises whether a person against whom sanction has been so accorded and whose prosecution is imminent can, by rushing to the Court, create a situation in which unless stay of prosecution is granted the challenge to the sanction would become irrelevant. I am of the view that if such challenge were to be held to be maintainable, the same would delay the prosecution. The purport of Section 19(3)(c), prohibiting any Court from staying the proceedings under this Act ....
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.... sanction could have been granted or that grant of sanction is contrary to law before the Special Court. It was further held that jurisdiction under Article 226 is to be exercised in the larger interest of justice and looking to the seriousness of the allegations, interference with the sanction may not be in larger public interest. Mention may also be made of State of Punjab Vs. Mohammed Iqbal Bhatti (2009) 17 SCC 92 where also the Supreme Court, though in a Civil Appeal and arising from a Civil Writ Petition, held that the legality and/or validity of the order granting sanction would be subject to review by the Criminal Courts. 17. The law therefore appears to be that a Civil Writ Petition would not ordinarily lie in the circumstances. 18. The Full Bench of this Court recently in judgment dated 29th July, 2011 in LPA No. 819 of 2010 titled C.S. Agarwal v. State had occasion to determine whether a petition under Article 226 of the Constitution of India is in the exercise of civil or criminal jurisdiction. After considering the case law in the regard, the test culled out was "whether criminal proceedings are pending or not and the petition under Article 226 of the Constitution....
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.... this petition but for complete adjudication it is expedient to also deal with the challenge on merits by the petitioner to the order of sanction. As aforesaid, Delhi Energy Development Agency (supra) forms the fulcrum of the case of the petitioner. However, the said judgment itself notices the dicta in P.P. Sharma (supra) and in Parmanand Dass Vs. State of Andhra Pradesh (1978) 4 SCC 32 laying down that sanction order is an administrative act and there is no legal bar for reconsideration or revocation of the order by the sanctioning authority; rather it was held that "we find that there could be no legal bar to the sanctioning authority revising its own opinion before the sanction order is placed before the Court". However, the Division Bench of this Court in Delhi Energy Development Agency further held that the sanctioning authority cannot be left free to change its orders and decisions at its will and whim though it may reconsider its order and even revise it but only when some reasonable rationale and valid basis exists therefor. It was held that such basis may arise where the order is found to be suffering from some material infirmity, irregularity or perversity or where so....
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....ile the competent authority for granting sanction is the Minister but the competent authority for rejecting the sanction is the respondent No.2 Railway Board. However in view of the unequivocal position in law that there is no bar to review of the order and the only test is whether there was any ground for review or not, the said questions are not relevant. 26. I may also notice that it is also the contention of the counsel for the respondent No.2 Railway Board, supporting the counsel for the respondent No.3 CBI, that the petitioner is merely relying upon the observations at various stages in the decision making process whether to grant sanction or not. There is merit in the said contention also. The Apex Court in Sethi Auto Service Station v. DDA (2009) 1 SCC 180 held that internal notings are not meant for outside exposure and notings in the file culminate into an executable order affecting the rights of the parties only when it reaches the final decision making authority in the department, gets his approval and the final order is communicated to the person concerned. Similarly, in Jasbir Singh Chhabra v. State of Punjab (2010) 4 SCC 192, it was held that issues and policy mat....