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Section 19(1) in The Code Of Criminal Procedure, 1973
The Code Of Criminal Procedure, 1973
Umapati Choudhary vs State Of Bihar & Anr on 14 May, 1999
The Prevention of Corruption Act, 1988
Section 200 in The Code Of Criminal Procedure, 1973

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Rajasthan High Court
Munish Kumar Sharma vs State Of Raj And Ors on 10 March, 2010
    

 
 
 

 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH JAIPUR

ORDER

S.B.CIVIL WRIT PETITION NO.7156/2007
Munish Kumar Sharma
Versus
The State of Rajasthan and others

  DATE OF ORDER    ---    March 10,2010

PRESENT 

HON’BLE MR.JUSTICE PREM SHANKER ASOPA


Mr.Rajendra Prasad, for the petitioner 
Mr.Zakir Hussain, Addl.Govt.Counsel 

BY THE COURT

(1) By this writ petition, the petitioner is seeking an appropriate writ, order or direction for quashing the grant of sanction for prosecution vide order dated 20.8.2007 (Anx.8) passed by the Director, Mines & Geology Department, Government of Rajasthan, Udaipur, without considering the fact that earlier, in respect of the same case, sanction for prosecution has already been refused by the same authority on 28.8.2006 (Anx.7).

(2) Briefly stated, the facts of the case are that Amin Khan, respondent No.4, made a complaint to the Anti Corruption Bureau, Bharatpur on 1.6.2005 stating that an appeal was pending for hearing before the Additional Director, Mines Department, Bharatpur, who on meeting with him in the Circuit House on 30.5.2005 promised to pass an order in his favour and asked him to meet with the petitioner. The complainant Amin Khan further stated in the complaint that the petitioner told him that the officer concerned wanted Rs.15,000/-, out of which, he paid Rs.5,000/- to the petitioner and the petitioner asked him to bring Rs.10,000/- on 1.6.2005. On this complaint, a trap was laid in the office of Superintending Mining Engineer, Bharatpur on 1.6.2005, where the petitioner was working, and it is alleged that the petitioner was caught red-handed while receiving bribe from the complainant Amin Khan.

(3) Pursuant to the said complaint, trap was laid and on further proceedings, FIR No.122/2005 for offences under section 7 and 13(1)(d)(2) of the Prevention of Corruption Act, 1988 (in short `the Act of 1988') was registered against the petitioner. The competent authority of the Anti Corruption Bureau sought sanction for prosecution of the petitioner, from the Director of Mines and Geology, Udaipur. The Director, Mines and Geology considered all the material before him and after thorough examination and discussion of the matter with the Supdt. of Police, Anti Corruption Bureau, gave detailed reasons that the complainant has made a false report against the petitioner and concluded that there was no basis for grant of sanction for prosecution and accordingly, the sanction for prosecution was refused vide Annexure-7 dated 28.8.2006.

(4) With the change of the Director, Mines and Geology, suddenly, the impugned order granting sanction for prosecution was issued on 20.8.2007 (Anx.8) wherein there is no mention of consideration of the earlier refusal of grant of sanction for prosecution and further, there was no reason for reviewing the earlier refusal order. It is stated in the writ petition that the sanction for prosecution dated 20.8.2007 is a verbatim copy of the draft order of prosecution sanction sought by the A.C.D. except signing the same by the Director, Mines and Geology Department, Udaipur. It is also stated in the writ petition that there was no reason to reconsider the order of refusal of prosecution sanction dated 28.8.2006. It is then stated in the writ petition that the respondent No.4,in his statement under section 200 Cr.P.C. (Anx.5) given by him in Complaint Case No.152/2005 Amin Khan V.Sharad Jaiman pending before the A.C.J.M. No.2, Bharatpur, has categorically admitted that the payment of Rs.10,000/- was towards the rent of the lease in the name of Sharad Jaiman, son of the petitioner. Further, it is stated that it was unbelievable that the complainant Amin Khan had offered an amount of Rs.10,000/- on 01.6.2005 for an appeal which has already been decided on 30.5.2005.

(5) The respondents No.1 and 2 filed reply to the writ petition. In reply to para 9 of the writ petition, reliance was placed on the government circular dated 19.4.2007 and a copy of the same was also annexed as Annexure R-1/1, wherein it has been mentioned that if a prima facie case in the corruption matter is found for sanction of the prosecution, the sanction be immediately issued. It is further stated in the reply that in view of the aforesaid circular of the State Government, the prosecution sanction was issued on 20.8.2007.

(6) The respondent No.4 has also filed reply wherein he has stated that in a complaint case pending before the ACJM No.2, Bharatpur he admitted that the payment of Rs.10,000/- was only towards the rent of the mining lease from the son of the petitioner and not for any other purpose and that he (the respondent No.4) did not give any amount to the petitioner by way of bribe or for any other purpose.

(7) Submission of counsel for the petitioner is that the discretion of the competent authority cannot be fettered by issuing the circular and the competent authority has to apply independently its mind, while reviewing the refusal of the sanction for prosecution, only in case additional/new material has been brought to his notice but in this case, the sanction has been issued in a mechanical manner on the basis of the circular dated 19.4.2007, therefore, the aforesaid sanction for prosecution is not only contrary to Sec. 197 Cr.P.C. but Sec.19 of the Act of 1988, and further, the same is contrary to the well established principle of reviewing refusal of the sanction for prosecution. Counsel further submitted that it is unbelievable that the complainant Amin Khan has offered an amount of Rs.10,000/- on 01.6.2005 for an appeal which has already been decided by the Additional Director, Mines Deptt. on 30.5.2005.

(8) Alternatively, counsel for the petitioner has submitted that the aforesaid circular dated 19.4.2007 is not applicable in case of review of refusal of sanction.Except bringing in aid the aforesaid circular dated 19.4.2007, there is no reply to the fact that why earlier refusal order of sanction for prosecution has been reviewed and what was the additional/new material before the competent authority for reconsidering the entire issue.

(9) In support of the aforesaid contention, counsel for the petitioner has placed reliance on Gopikant Choudhary V. State of Bihar and others (2000 AIR SCW 4917),Kishan Lal V. State of Rajasthan and others (2009(1) Cr.L.R.(Raj.)533),State of Rajasthan V. Keshar Dev and another (1999(3)WLC 346), Jaswant Singh V. State of Punjab (2009 Cri.L.J.(NOC) 250 (P&H).

(10) Counsel for the State submitted that since the matter was of corruption, therefore, as per the circular dated 19.4.2007, the State Government granted sanction for prosecution but no additional/new material was brought on record of writ petition, which came to the notice of the competent authority to review its earlier order of refusal of sanction dated 28.8.2006.

(11)I have gone through record of the writ petition and further considered rival submission of counsel for the parties.

(12)Before proceeding further, I would like to quote relevant portion of the refusal order dated 28.8.2006, relevant portion of the circular dated 19.4.2007, paras 3 and 4 of the order dated 20.8.2007 as also the relevant paras of the judgments cited by the counsel for the petitioner and the same are as under:-

Relevant portion of the order of refusal of sanction dated 28.8.2006 ???????, ?? ?? ????? ??? ????? ???? ?? ??? ??? ?? ?? ??? ???? ?? ???? ????? ???????

A. ?????? ??? ???? ?????? ????? ??? ??? ??? ?????? ?????????? ?? ?? ??: ?????? ?? ????? ?? ??? ???? ???

B. ?????? ?? ?????? ?? ?? ?? ??? ?? ???? ?????? ????? ?? ??? ???? ???

C.???????? ??????? ?? ??????? ???? ???? ????? ??, ?????? ?? ??????? ????? ?? ?????? ?? ???? ?? ??? ??? ??? ?? ?? ???????? ??????? ?? ?? ????? ?? ??? ????? ???? ???? ???

D. ????? ??? ???????????? ????? ?? ??????? ?????? ?? ??? ??????? ?? ?? ??????? ????? ?? ???? ???? ????? ?? ?????? ???? ?????? ?? ???? ?? ???? ?? ?? ?? ??????? ?? ?? ??? ????? ???? ???? ???

E. ????? ?? ????? ???? ??? ???? ?? ???? ??? ??? ????? ??????-120/02??????? ??? ??? ????? ???? ??? ???? ?? ??? ????? ?? ????????? ????? ??? ??????? ?? ??? ?? ???? ?? ?????? ?? ????? ?? ??? ????? ??? ?? ???? ?? ??? ????? ?? ??? ??? ?? ????????? ????? ??? ??: ??????? ?? ?????????? ???? ???? ?????? ???????? ????? ?? ??????? ???? ????? ???? ?? ??? ????? ??? ???? ?? ?????? (emphasis supplied) F. ????? ?? ??? ?? ??????? ????????? ???? ??????? ??? ???? ????? ?? ??? ?? ?????? ???????? ??? ?????????? ?? ??? ????? ???? ????? ??? ???? ????? ?? ??? ???? ?? ??? ???? ????? ???? ?? ???????? ???? ?? ?? ?? ?? ????? ?? ??????? ??????? ????????? ??? ????? ?? ???????? ??? ??? ????

G. ????-7 ?????????? ?????? ??????? ??? ??? ???? ?? ??? ????? ?????? ???? ????? ?? ???? ????? ?? ??? ??? ????? ?????? ???? ?? ??? ?? ?? ???? ??? ????? ???? ?????? ??, ???? ????? ?? ????? ????????? ???-??? ??? ?? ??? ??? ???? ?? ??? ?? ??: ????? ?????????? ?????? ??? ?? ???? ????????? ??????? ??? ?? ?? ??? ???? ?????? ???? ???? ?? ??????? ??? ???? ??? ?? ??? ?? ??? ???-??? ??? ???-??? ????? ?? ???????? ?? ??????? ?? ??? ?????? ???? ??? ???? ?? ???? ????? ???? ? ?? ??????? ?? ????? ???? ???? ???? ??? ???? ??? ???? ?? ??? ???? ?? ???? ?? ????? ????? ??????? ?? ?????????? ?????? ?? ??? ??? ???????? ??????? ?? ?? ????? ?? ???? ??? ???? ??? ??: ??????? ??? ???????? ?? ????? ??? ???? ??? ??? ??????? ??????? ?????? ???????? ??????? ?? ??????? ???????? ???? ???? ???? ????? ???? (emphasis supplied) ??: ?? ?????? ???? ??????? ???????????/???/??.?./2006/545-47?????? 4.08.2006 ?????? ???? ??? ??????? ????????

?????? ???? ???? ??? ??????? ???????????? ????? ???? ??, ??: ??? ???????? ???? ?? ?????	                 (emphasis supplied)


Relevant portion of the circular dated 19.4.2007

"???????? ????? 
???????? ????? ??????? ??????
??? (?????-11)?????

	???????: ?.60(1)??.??.??./2003 ????? ??????19.04.2007

????????:- 
1.????? ?????? ???? ????, ???????? ?????
2.????? ???? ????/??????? ???? ????, ???????? ?????
3.????? ????????????, ????????
4.????? ???????? ??????, ????????
5.????? ??????????? ?????, ??????, ????????
6.????? ???? ???????, ????????
7.????? ???? ????? ???????, ???????? 
8.????? ????? ????????? ???????, ???? ?????, ????????
9.????? ????? ????????? ???????, ??????? ????? ?????, ????????

???? :- ??????? ???????? ???? ???? ?? ??????? ???.

	?????,

	?????????? ?????? ??????? ?? ????-19??? ???? ????????? ?????? ?? ???? 197?? ???? ????? ???????? ??? ????????     ?????????? ?? ??????? ???????? ???? ???? ?? ???????? ???? ??? ?????:?? ????? ??? ? ??? ?? ?? ?????????? ?????? ??????? ?? ???? ??????? ???????? ?? ?????? ??? ??????? ???????? ???? ????? ?????????? ?????? ??????? ?????? ???? ???? ??? ?? ???????? ???????? ??????? ?????? 27.02.2004 ?????? ?? 

??????? ?? ??? ?? ?? ?????????? ?????? ??????? ?????? ??? ???? ?? ??????? ??????? ???????? ?? ??? ???????? ????? ?? ???????? ??? ??? ??????? ???????? ???? ????? ??????? ?????? ??????? ?? ???? ?? ?????? ???????????? ??????? ???????? ????? ???? ???? ??,?? ????? ?????? ??????? ???????? ???? ?? ???? ????? ????? ?? ?????? ??? ???????? ?????? ????? ?????? ???? ?? ???? ?????? ?? ????? ??? ? ??? ?? ?? ??????? ???????? ??????? ??? ???????? ??? ?????? ??? ?????? ?? ????????? ??????? ?? ??? ???? ???? ????????? ?? ?????? ???? ?? ????????? ?????? ???? ??? ???? ???? ? ???? ????? ??????? ?? ????? ?? ????? ???? ?????? ??? ???? ?? ??? ??????? ???"

(emphasis supplied) Paras 3 and 4 of the sanction order dated 20.8.2007

3.???? ????? ??? ???? ??? ?? ?? ?? ??????? ?????,?????????? ?????? ??????? ?????? ?? ????? ?????? ??? ????? ?????? ?? ??????? ???????? ????????,?????? ??????? ??????? ?? ??????? ?????? ???? ????? ?? ??? ????? ???? ?? ????? ????? ?????? ?? ???? ?? ?????? ???? ???? ???? ???? 3.30 ??.??.?? ??????? ???? ???? ??? ????? ???? ???? ?? ??????? ???????? ???????? ?? ?????? ?? ???? ??? ?? ??? ????? ????? ????? ????? ???? ????? ?????? ????? ?? ??????,??????? ?? ????? ?? ???? ?? ???? ?????, ??.?. ?? 10,000/- ????? ???? ??? ??? ???? ???? ???? ??? ?????? ?? ????? ??? ??? ?? ???? ??? ?? ???? ???????? ?? ????? ???? ??? ???? ????? ?????? ????? ???????? ??? ?????? ?? ?? ???? ?? ??????? ???? ?????? ???? ??? ???? ?????? ?? ???? ???? ?? ??? ??,?? ??? ????? ?? ??????? ?? ????? ?? ??? ????? ?? ??.?.???? ??? ?? ?? ?? ??????? ?? ??? ?? ?? ??????? ????? ?? ???? ????? ???? ??? ???? ???? ????? ???? ?? ???? ???? ??? ????? ????? ????? ???? ?????,??????? ????????,???? ?????,?????? ???? ????? ??? ?? ???? ????? ??? ???? ?? ??? ?? ???????? ??? ?? ???? ??????? ?? ??????? ?? ??? ??????? ???? ???? ???? ??? ?? ?? ???? ??? ???:????? ?? ????? ?? ???? ????? ?? ??? ?? ??? ?????? ?? ??? ?? ???? ?? ???? 10,000/-????? ???? ??? ?? ?? ?? ??? ???? ???? ?? ???? ?? ?? ??? ????? ?? ??? 10,000/-????? ???? ???? ?????? ???? ????? ????? ?? ???? ??? ?????? ?? ????? ?? ????? ??? ?? ????? ?? ??? ?????? ???? ????? ????? ????? ????? ?? ????? ??? ??? ?????? ?? ????? ???? ??? ?? ?????? ????????? ????? ?? ??? ??? ?????? ??????? ??? ?? ???? ?? ??? ???? ???? ???? ?????? ?? ??? ???? ???? ?? ??? ???? ?? ????? ????? ???? ???? ??????? ?? ????????? ????? ?? ??? ???????? ??????? ?? ????

4. ???? ????? ??? ???? ??? ?? ?? ???? ?????????? ?????? ???????, ?????? ?? ??????? ????????? ?? ???? ?????? ????? ????? ??????? ?????????? ?????? ??????? ????????, ????? ????????? ???? ????? ?? ?????? ????????,????? ?????? ????? ??????-122/05?????? 9.06.2005 ????-7, 13(1)??(2)??.??.????,1988 ??????? ???? ????? ????? ????? ???? ?????,??????? ????????, ???? ?????,?????? ???????? ???? ???? ???????? ???? ???????? ????? ????? ????????,?????????? ?????? ???????,?????? ?????? ????? ???? ?????? ???????? ???????,????? ???????? ?????? ??? ????? ????? ?????? ??????? ??? ??????? ?? ????????? ?????? ?? ???? ??? 161?? ?? ?? ?? ?? ??? ??????? ???? ??? ?????? ???? ????? ????? ?????, ???? ????? ?? ????? ????? ??? ?????? ?? ??? ?? ???? ?? ?????? ?????? ??????? ?? ?? ?? ????? ????? ???? ?? ??????? ??????? ??????? ??????? ???? ?????? ????? ????? ??????? ???? ????? ?? ???? ???? ????? ???? ????? ????? ?????? ???? ?? ???? ?????? ???? ????? ????? ???? ?? ????? ??? ??? ???? ??? ??? ???????? ?? ???? ??? ?? ????? ????? ?????,???? ????? ??????? ????????,???? ?????,?????? ?? ???? ????-7,13(1)??(2)??.??.????,1988 ?? ????? ???? ???

Gopikant Choudhary V. State of Bihar and others (2000 AIR SCW 4917) Para 6 “6.We find from the file that was produced that there has been no application of mind when the subsequent order was passed in the year 1997. It further appears that between the order refusing to sanction and the order that was passed in 1997, the investigating agency had not collected any fresh materials requiring fresh look at the earlier order. It is also apparent that the alleged excess amount said to have been paid on account of non-performance of the duty by the appelant is to the tune of Rs.2,750/- and, therefore, under the Rules of Business, the file pertaining to sanction would have been finally dealt with by the Law Minister and, in fact, he had done so. In this view of the matter, neither there was any necessity for the authorities concerned to place the file before the Chief Minister nor the Chief Minister had any occasion to reconsider the matter and pass fresh order sanctioning prosecution particularly when, taking into account the loss sustained to the exchequer is to the tune of Rs.2,750/-. That apart, the person concerned has already retired in the year 1994 and it is unthinkable that for a loss of Rs.2,750/- State would pursue the proceedings against such person. In this view of the matter, we set aside the impugned order of sanction dated 10.12.1997 passed by the Chief Minister for prosecuting the appellant. “ (emphasis supplied) Kishan Lal V. State of Raj. & others (2009(1)Cr.L.R.(Raj.)533) Paras 7 and 8 “7. Section 19(1)(c) of the Act of 1988 provides that no court shall take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with previous sanction for any person not covered under Section 19(1)(a) and 19(1)(b) by the authority competent to remove him from his office. In the instant matter admittedly the authority competent to remove the petitioner from office is the Chief Engineer, Department of Irrigation. The Chief Engineer, Department of Irrigation on 19.12.1997 after considering all necessary facts reached at a definite conclusion regarding non-involvement of the petitioner with regard to any deal relating to the complainant Sh. Shankar Lal. Accordingly, a conscious decision was taken after consulting Addl. Superintendent of Police, Rajasthan State Investigation Bureau, Sriganganagar and Superintendent of Police (Third), Rajasthan State Investigation Bureau, Jaipur for not granting sanction for prosecution of the petitioner. It is only the Deputy Secretary to the Government of Rajasthan who instructed the Chief Engineer to issue sanction required for prosecution of the petitioner under Prevention of Corruption Act, 1988. The Chief Engineer by the order dated 15.10.1999 simply by acting upon the instructions given by the Deputy Secretary to the Government of Rajasthan under the letter dated 23.9.1999 granted sanction for prosecution of the petitioner. The order dated 15.10.1999 no where reflects application of mind by the authority competent. The Chief Engineer being the authority competent for grant of sanction to prosecute the petitioner for the offences punishable under the Act of 1988 was required to apply his mind objectively before granting sanction for prosecution of the petitioner. He is not supposed to act merely as an orderly to execute command of an administrative officer. By a statute an important power is conferred upon him and such power must be exercised objectively, independently and by due application of mind. (emphasis supplied)

8. In the present case a conscious decision was taken by the competent authority on 19.12.1997 after making necessary consultation with responsible Police Officers for not granting sanction to prosecute the petitioner. Such an important decision stood altered by the Chief Engineer in highly casual manner just on receiving instructions from Deputy Secretary to the Government of Rajasthan. May this alteration be due to fear psychosis or due to a tendency to accept every instruction given by the administrative authorities, even by ignoring statutory obligations but the resultant is abduction of powers of the competent authority by Deputy Secretary of the Government. The Government, if was not satisfied with the decision taken by the competent authority, could have suggested its view with cogent reasons to reconsider the decision, but in no event it was proper to give command to the authority competent having statutory power for granting sanction for prosecution. The irritating feature of the case is that the competent authority has given sanction to prosecute the petitioner without application of mind just by acting upon instruction given by a person who is otherwise stranger, so far as the requirement of statute is concerned. Therefore, such order can very well be termed as an order without jurisdiction.” (emphasis supplied) State of Rajasthan V. Keshar Dev and Anr. (1999(3) WLC 346) Paras 8 and 9 “8.So far as sanction is concerned, there appears to be no ground to review the earlier refusal. On 1997 Cr.L.J. Page 4059, Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, Hon'ble Supreme Court considered about validity of a sanction and held that it depends on applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation. It necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of sanctioning authority should not be under pressure from any quarter nor should any external force by acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. In this case sanction was granted under the order of High Court passed in a writ of mandamus under Article 226 of the Constitution. Therefore, the Hon'ble Supreme Court made such observations as stated above. But it is the law of the land that the sanction should be given by sanctioning authority without any pressure and after applying its independent mind.

9. In the case in hand, once the sanction was refused and the sanctioning authority reviewed its order under some compulsion, it meant that the sanction was not given by an independent mind. Such a sanction cannot be acted upon.” (emphasis supplied) (13) In all the aforesaid judgments, it has been categorically held that while granting sanction for prosecution,there should be an independent application of mind to the facts of the case as also the material and evidence collected during the investigation. As regards the scope of review, the same is limited only to the additional/new material. In the instant case, neither any additional nor any new material was available with the sanctioning authority and the refusal order was reviewed only on the basis of the circular dated 19.4.2007, which is applicable on the grant of sanction and not for review of the refusal order. Even for grant of sanction,in the circular dated 19.4.2007, it has been mentioned that the competent authority has to apply its mind independently and if prima facie case is found, then, in corruption case, sanction for prosecution be issued.

(14) In the instant case, refusal of the sanction is by a reasoned order dated 28.8.2006 and there appears to be no reason to review the same on 20.8.2007 as there was no additional/new material before the competent authority. Simply signing the draft sanction order placed by the A.C.D. on the basis of trap proceedings, without examining the statement of the complainant himself recorded under section 200 Cr.P.C.,before the A.C.J.M. No.2, Bharatpur in Complaint Case that the said payment was in respect of rent of the lease in the name of son of the petitioner, is contrary to law. Further, the aforesaid fact has again been reiterated in reply to the writ petition wherein the respondent No.4-complainant has categorically stated that the said amount was of rent of the mining lease of the son of the petitioner Sharad Jaiman. Otherwise also, it is unbelievable that the complainant Amin Khan would have offered an amount of Rs.10,000/- on 01.6.2005 for an appeal which has already been decided on 30.5.2005.

(15)In view of the aforesaid discussion, I find that there was no additional/new material for reviewing the refusal of sanction of prosecution vide order dated 28.8.2006 and the circular dated 19.4.2007 could not be applied in the case of the petitioner so as to review the reasoned order of refusal of sanction dated 28.8.2006 on finding no prima facie case against the petitioner. The order of grant of sanction for prosecution dated 20.8.2007 has been issued without considering the earlier reasoned refusal order of sanction dated 28.8.2006 and further without application of mind independently simply on again asking by the Anti Corruption Department, therefore, the order dated 20.8.2007 reviewing the reasoned refusal order dated 28.8.2006 is not only contrary to Sec.197 Cr.P.C. and Sec. 19 of the Act of 1988 but arbitrary also and therefore, the same deserves to be quashed and set aside.

(16) Accordingly, the writ petition is allowed and the impugned order of sanction dated 20.8.2007 (Anx.8)in FIR No.122/2005 registered at Chowki Anti Corruption Bureau, Bharatpur (C.P.S. Anti Corruption Bureau, Raj.Jaipur)is quashed and set aside. No order as to costs.

(Prem Shanker Asopa) J.

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