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2000 DIGILAW 263 (JK)

State Of J. &K. v. Sonaullah Ahanger

2000-11-17

O.P.SHARMA

body2000
1. The only question involved in this petition under Section 561-A of the Code of Criminal Procedure is the ambit and scope of the criminal court exercising jurisdiction under the Prevention of Corruption Act, 2006 to take cognizance of the offence against a person who has not been sent up for trial by the prosecution and the court cannot proceed against him for want of sanction to his prosecution. The question has arisen because the Special Judge Anti Corruption, Kashmir vide order dated: 30.03.2000 directed the prosecution to place the material identified by it before the authority competent to grant sanction for prosecution under Section 6 of the Act and inform the court of the decision of the said authority. 2. The prosecution admittedly placed the order of the court before the Chief Minister who directed the Vigilance Organisation to re-examine the entire case with special reference to the involvement of Shri G.M.Wani, the then Deputy Commissioner. After the court was informed about the steps taken by the competent authority to comply the direction the learned Special Judge passed another order dated: 02.08.2000 which is impugned in this petition on the ground that the trial court has made certain disparaging remarks which were not justified in the facts and circumstances of the case. 3. The contention of Mr.Ishtiaq Hussain, Learned counsel appearing for the petitioner is that the trial court has wrongly interpreted the expression "re-examination" of the case as a direction for re-investigate. The re-examination of the case according to the learned counsel has been directed only with reference to Shri G.M.Wani pursuant to the direction of the court. He produced the file in which Chief Minister has observed that "the verdict of special Judge should not be dismissed so lightly". This observation was made because Vigilance Organisation had reiterated its earlier view that no case is made out against Shri G.M.Wani. 4. The Special Judge while directing the Commissioner of Vigilance to place the matter before the competent authority for grant of sanction for prosecution of Shri G.M. Wani vide order dated:30.03.2000 observed as under:- ".....The material collected by the investigating agency itself prima-facie discloses involvement of G.M.Wani, the then Dy.Commissioner, Anantnag in the alleged conspiracy and commission of offence punishable under Section 5(1) c & d read with Section 5(2) P.C.Act, 2006, 167-A, 467, 468, 471, 201 read with 120-B RPC. The material on the file thus is sufficient to prompt the court to take cognizance of the aforesaid offence against the accused under Section 190 Cr.P.C. Such a course, however, is not open because of absence of sanction under Section 6 of P.C.Act, 2000 by the competent authority, to prosecute the accused, who continue to be a government servant. This, however, may temporarily stall but must not thwart the course of justice. Accordingly Commissioner of Vigilance is directed to place relevant record collected during investigation pertaining to Mr. G. M. Wani the then Dy.Commissioner, Anantnag, not latter than fifteen days from the date of this order before the competent authority and the authority shall consider grant of sanction for prosecution of the accused in terms of Section 6 P.C.Act, 2006 and in any case take its decision on the subject within one month from the date of this order so that the trial which already stands delayed commence with proper despatch." 5. The learned Special Judge it appears expressed too much and left too little for the authority competent to accord sanction. The better course for him would have been only to identify the material about the involvement of Sh.G.M. Wani and direct its consideration by the authority competent under Section 6 of the Act. This is because in Mansukhlal Vithaldas Chouhan vs State of Gujrat AIR 1997 SC 3400 it has been held that:- "19. Since the validity of "sanction" depends on the 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 general and genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be 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. 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. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution." 6. However, it is not only the finding that a prima-facie case is made out against Shri Wani, but the court goes further when in its order dated:02.08.2000 it observed that "the material on file should have normally prompted court to take cognizance of the case against Mr. Wani and summon him to stand trial. Such a course however, was not followed as Mr. Wani continued to be a government servant and could not be proceeded against in absence of sanction for his prosecution in terms of Section 6 of P.C.Act. It is against this backdrop that this court on 30.03.2000 issued a direction to Commissioner of Vigilance to submit all material against Mr. Wani before the sanctioning authority and also asked the sanctioning authority to consider grant of sanction for prosecution of Mr. Wani." The expression, "there should have normally no difficulty in dealing with the matter as the material had gone through the judicial filteration," tantamounts to compelling the competent authority to accept the opinion of court and grant sanction which is not permissible. As if this was not enough indication of the mind of the court, the Special Judge went further and observed as under:- "It must be known to one and all and moreso to the people at the helm of affairs that rule of law forms bed rock of our political system. It is the rule of law that makes our political system different from dictatorship and despotism of which arbitrariness is a hallmark. Rule of Law means equality before law and equal protection of law. The manner in which the present case has been dealt with depicts disregard to basic tenets of the concept. The conduct of the state Government amounts to obstruction in administration of justice. Rule of Law means equality before law and equal protection of law. The manner in which the present case has been dealt with depicts disregard to basic tenets of the concept. The conduct of the state Government amounts to obstruction in administration of justice. No one should nurse any doubt regarding competence and will of court to deal with obstructionists, tendencies at any level, Judicial wisdom and propriety, however, counsel restraint." 7. While the learned Judge appears to be conscious that the judicial wisdom lies in restraint he failed to observe it in practice. The indictment of the government is not only too harsh, but wholly uncalled for and unjustified. While seeking compliance of its order dated: 30.03.2000, the trial court has in my opinion acted without jurisdiction in view of what was observed in Mansukh Lal Vithaldas Chauhan (Supra). "The High Court assumed the role of the sanctioning authority, considered the whole matter, formed an opinion that it was a fit case in which sanction should be granted and because it itself could not grant sanction under Section 6 of the Act, it directed the Secretary to sanction the prosecution so that the sanction order may be treated to be an order passed by the Secretary and not that of the High Court. This is a classic case where a Brand name is changed to give a new colour to the package without changing the contents thereof. In these circumstances, the sanction order cannot be held to be wholly erroneous having been passed mechanically at the instance of the High Court." After referring to these facts their Lordships further observed as under:- "On a consideration of the whole matter, we are of the positive opinion that the sanctioning authority, in the instant case, was left with no choice except to sanction the prosecution and in passing the order of sanction, it acted mechanically in obedience to the mandamus issued by the High Court by putting the signature on a pro forma drawn up by the office." 8. Although the Special Judge has not directed the authority to accord sanction, but the observation that the "material collected by the investigating agency itself prima-facie discloses involvement of Sh.G.M.Wani" and the expression "there should have normally no difficulty in dealing with the matter as the material had gone through the judicial filteration" could be legitimately construed as a direction leaving very little for the sanctioning authority to form its independent opinion. The discretion vested in the competent authority to accord sanction after considering the material was further eroded by the observation of the court "that the conduct of the State Government amounts to obstruction in administration of justice. No one should nurse any doubt regarding the competence and will of the court to deal with obstructionists tendencies at any level, Judicial wisdom and propriety, however, counsel restraint," which is not only a warning, but also a direction to fall in line with the opinion formed by the court. These observations are uncalled for and wholly unnecessary in the facts and circumstances of the case. So the aforesaid paragraph is required to be expunged from the order because the expression "amounts to indictment of the Government when the conduct of the Government was not in issue" is very harsh. In State of Karnatka vs. Registrar General 2000 SCW 2794, their Lordships of the Supreme Court while expunging the remarks made in almost similar circumstances held as under:- "12. Judicial disposition is definitely different from a paper presented for seminar discussion. Nor can it be equated with a dissertation. Judicial decorum requires that judgments and orders should confine to the facts and legal points involved in the particular cases which Judges deal with. May be, sometime Judges would, perhaps wittingly or unwittingly, but outside the contours of the litigation, but even such overlappings should be within bounds of properiety and sobriety. But there is no jurisdiction for traversing so far beyond the canvass as was done by the High Court in this case. If the subordinate courts are also to be tempted and encouraged to follow suit then the consequences would be far too many. Demoralisation of departments would badly erode the already impaired efficiency of our forces. It is time to remind ourselves once again that judgment should confine to the scope of the case." 9. This applies to the facts of the case. Demoralisation of departments would badly erode the already impaired efficiency of our forces. It is time to remind ourselves once again that judgment should confine to the scope of the case." 9. This applies to the facts of the case. So the order dated: 02.08.2000 is quashed because it is wholly unnecessary. The court had only to adjourn the case by giving reasonable time to the government to pass appropriate orders. The other aspect of the case is that the court should have avoided communication with the Chief Secretary while dealing with the case on judicial side. It was for the public prosecutor to communicate the order to the Government and not for the court to take upon itself to communicate with the Chief Secretary. 10. This takes us to the question of implementing the court direction dated: 30.03.2000. It may be clarified that the authority competent to sanction prosecution is required to consider the material indentified by the court independent of the observation of the court that the material prima-facie discloses involvement of Shri Wani. 11. The law on the point has been stated in suptd. of police vs. Deepak Choudhary AIR 1996 SC 186 which reads as under:- "What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima-face the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction." 12. However, this does not mean that the authority competent to accord sanction can act arbitrarily. Such authority is expected to act fairly and its actions must be consistent with the public interest and the interest of law as observed by their Lordships of Supreme Court in State through Anti Corruption Bureau Government of Maharashtra vs. K.K. Jagtiani AIR 1996 SC 1910 which is reproduced below:- "The law presumes and the Court must also presume untill the contrary is established that such authority will act fairly and objectively and will accord sanction only where he is satisfied that the charge(s) against the public servant requires to be enquired into by a court. The authority is presumed to and expected to act consistent with public interest and the interest of law-both of which demand that while a public servant be not subjected to harassment, genuine charges and allegations should be allowed to be examined by the courts. Both the considerations aforesaid should be present in the mind of the authority while deciding the question of grant of previous sanction required by Section 6(1) (c) of the Act or, for that matter, Section 197 of the Criminal Procedure Code." In view of the above, the order dated: 02.08.2000 passed by the Special Judge Kashmir is quashed and adverse remarks made against the Government shall stand expunged. At the same time, the authority competent to sanction prosecution shall pass appropriate orders after examining the material indentified by the trial court as early as possible to avoid further delay in the trial of the case. Any decision taken be communicated within the reasonable time fixed by the trial court.