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2004 DIGILAW 702 (MP)

Nityanand Joshi v. State of M. P.

2004-08-25

S.L.KOCHAR

body2004
Judgment ( 1. ) ALL these revisions shall dispose of by this common order because the applicant and non-applicant are the same and point involved are also same in all these three revisions. ( 2. ) THE applicant is a retired Executive Engineer of Municipal Corporation, Indore. He has Tiled these revisions against the order dated 7-2-2002 whereby the learned I Addl. Sessions Judge and Special Judge (under Prevention of Corruption Act) has framed charges against the applicant under Section 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter shall be referred to as "the Act" ). ( 3. ) THE contention of the learned Counsel for applicant is that at the initial stage, sanction for prosecution was not granted by the sanctioning authority by order dated 10-12-99. Thereafter, again the sanction has been granted to prosecute the applicant for the offence under the Act by the Sanctioning Authority by order dated 13-5-2000. The learned Counsel has submitted that the authority once refused to grant sanction to prosecute the applicant can not again grant sanction on the same material. The learned Counsel for applicant has placed heavy reliance on the judgment passed by the Punjab and Haryana High Court in Surjit Singh v. State of Punjab and Ors. , Civil Writ No. 3829/1978. The learned Counsel has filed the photostat certified copy of the judgment. On similar point he has also placed reliance on the judgment rendered by Supreme Court in case of Ramanand Choudhary v. State of Bihar, AIR 1994 SC 948 ) and submitted that merely by illegal grant of sanction to construct the multi storey building would not be sufficient to raise presumption against the applicant that he obtained illegal gratification or given benefit to the concerned persons after doing some corrupt practices. ( 4. ) IN oppugnation, the learned Dy. A. G. Shri G. Desai appearing for non-applicant State has submitted that this is true that sanction was not granted by the Sanctioning Authority by order dated 10-12-1999 but when sanction was granted by order dated 13-5-2000, this sanction was granted on new grounds which is evident from the sanction order. The learned Counsel for non-applicant State has submitted that in the earlier order of refusing sanction, the sanction was sought only against the applicant saying that he granted illegal permission for construction of various buildings. The learned Counsel for non-applicant State has submitted that in the earlier order of refusing sanction, the sanction was sought only against the applicant saying that he granted illegal permission for construction of various buildings. On this point the Sanctioning Authority has given the conclusion that the applicant was not the alone officer authorised for granting sanction but some superior officials were also there. Therefore, only against the applicant, case is not made out for granting sanction. Therefore, the sanction was refused. While refusing sanction to prosecute the applicant, the Mayor-in-Council has opined in the order dated 10-12-1999 that for charge Nos. 2 and 3, i. e. , regarding non-compliance of the provisions of Town and Country Planning Act for grant of permission to construct the building as well as non- compliance of provisions of grant of building construction by the Corporation, the detailed enquiry would be required. Therefore, sanction was not granted. The Special Police Establishment Department has again sent a letter apprising the Mayor-in-Council that for charge Nos. 2 and 3 material was already collected and it was found that the applicant and other co-accused persons have granted sanction for construction of multi storey building without obtaining or grant of permission/sanction by the authority of Town and Country Planning which was mandatory and the provisions of Corporation Act regarding height of the building as well as regarding construction of multi storey building on the land of Waqf Board were not considered and complied with by the applicant and other co-accused persons while granting sanction and illegal sanctions were granted to give benefit to the concerned persons by way of illegal means and practices. The Mayor-in-Council again went through the whole papers and after considering the same, granted sanction by order dated 13-5-2000 in which Issue Nos. 2 and 3 were also considered which were not considered while refusing sanction by order dated 10-12-1999. After filing of charge-sheet by the non-applicant, the applicant is retired from his service. ( 5. The Mayor-in-Council again went through the whole papers and after considering the same, granted sanction by order dated 13-5-2000 in which Issue Nos. 2 and 3 were also considered which were not considered while refusing sanction by order dated 10-12-1999. After filing of charge-sheet by the non-applicant, the applicant is retired from his service. ( 5. ) HAVING heard the learned Counsel for parties and after perusing the entire record as filed by the parties as well as the fact that four material witnesses have been examined before the Trial Court, this Court is of the view that there is no point for interference in the matter regarding grant of sanction as well as legal or illegal exercise of powers by the applicant while granting sanction. On perusal of the order dated 10-12-1999, refusing sanction and order dated 13-5-2000, granting sanction, it is crystal clear that while granting sanction (he Issue Nos. 2 and 3 have been elaborately considered by the Sanctioning Authority whereas while refusing the sanction, authority has mentioned that for both the issues detailed enquiry or investigation would be required. Therefore, this Court finds distinction between both the order and in the order of grant of sanction, the extraneous material has been considered by the Sanctioning Authority, therefore, on the strength of the above mentioned judgments relied on by the learned Counsel for applicant, it can not be said that the grant of sanction by order dated 13-5-2000 was illegal. This is the settled position of law that on new material the order of refusing sanction can be revived and fresh sanction can be granted. ( 6. ) THEREFORE, this Court is of the view that there is no substance in these revisions. Therefore, same are hereby dismissed. However, it is made clear that any observation made by this Court in this order shall not affect on the merit and demerit of the case which will be decided by the Trial Court after recording of the evidence and any observation shall not be considered in favour or against either side. ( 7. ) THE revisions fails and are dismissed as aforesaid. ( 8. ) A copy of this order be placed in the record of connected Criminal Revision Nos. 443/2002 and 444/2002.