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2005 DIGILAW 456 (PNJ)

Amarjit Singh Dhingra v. State Of Punjab

2005-03-30

S.S.NIJJAR

body2005
Judgment S.S.Nijjar, J. 1. In this writ petition under Articles 226/227 of the Constitution of India, the petitioner seeks the issuance of a writ in the nature of certiorari declaring the sanction of prosecution against the petitioner to be violative of Article 21 of the Constitution of India. The petitioner also seeks the issuance of a writ in the nature of Certiorari quashing F.I.R. No. 99 dated 15.4.1977 registered at Police Station City District Hoshiarpur under Section 5(2), 47 of the Prevention of Corruption Act, and Sections 420, 467, 468, 471, and 120-B of the I.P.C. The petition was filed on June 16, 1988. Notice of motion was issued on 20.6.1988 for 7.11.88. Further proceedings in the matter were stayed till further orders. On 13.2.1989, after hearing the learned counsel for the parties, the petition was admitted. The interim order was directed to be continued subject to the respondents right to file a petition for vacation of the same. In April, 1990, C.M. No. 4606 of 1990 was filed for vacation of stay. The aforesaid application was dismissed by this Court on 30.5.1990. Now the present petition has come up for final healing. 2. During the pendency of the petition, the Advocate of the petitioner has been elevated to the Bench of this Court. Consequently, on 27.10.2004, notice was issued to the petitioner. No one has put in appearance for the petitioner, in spite of notice having been issued, It is in such circumstances that the petition is being taken up for final disposal in the absence of the petitioner. 3. The pleaded case of the petitioner is that he was appointed as Sub Divisional Engineer in the month of October, 1970, He was promoted on the post of Executive Engineer on adhoc basis on June, 1979. Thereafter, he was promoted on regular basis as Executive Engineer w.e.f. July, 5, 1975 by order dated 12.2.1985. There is nothing adverse in the Annual Confidential Reports of the petitioner throughout his service. He was allowed to cross the efficiency bar on the post of Executive Engineer w.e.f. 1.2.1985. 4. During the year, 1973, he was entrusted with responsibility of improvement and maintenance of the Adampur-Hoshiarpur road. The petitioner states that all works were done in accordance with the applicable rules and regulations. He was allowed to cross the efficiency bar on the post of Executive Engineer w.e.f. 1.2.1985. 4. During the year, 1973, he was entrusted with responsibility of improvement and maintenance of the Adampur-Hoshiarpur road. The petitioner states that all works were done in accordance with the applicable rules and regulations. However, in the year 1977, F.I.R. No. 99 was registered against the petitioner at Police Station City District Hoshiarpur under Sections 5(2), 47 of the Prevention of Corruption Act, and Sections 420, 467, 468, 471 and 120-B of the IPC. Apprehending that he will be arrested, the petitioner sought anticipatory bail from this Court through Crl. Misc. No. 1604-M of 1977. This Court by order dated 21.4.1977 directed that he shall be released on bail in event of his arrest. This application had been filed alongwith two other co-accused who were also granted anticipatory bail. Thereafter, the petitioner was never summoned by the prosecuting agency, He was, however, called by the Vigilance Department of the Punjab Government for recording his statement in the month of March, 1978. After that there was no communication received by the petitioner even from the Vigilance Department. On examination of the entire matter, the Secretary to Government of Punjab by Memo No. 10/21/79-ESI(6) 2958, dated 19.5.1979 informed the Superintendent of Police, Hoshiarpur that the Government had decided after carefully considering the case that there is no necessity for granting sanction to prosecute the petitioner. It was recommended that a departmental enquiry be conducted against the petitioner and other involved officials. Having taken a categorical decision not to prosecute the petitioner, the respondents passed another order on 7.5.1988 sanctioning the prosecution of the petitioner. The petitioner challenges the aforesaid order on various grounds. The foremost submission of the petitioner is that the respondents had no jurisdiction to review earlier order passed under Section 197 of the Code of Criminal Procedure. Having taken a decision not to prosecute the petitioner by order dated May, 1979, the respondents had no jurisdiction to review the case and pass a fresh order sanctioning the prosecution of the petitioner on 7.6.1988. The petitioner also submits that the prosecution would be barred as it related to an incident of the year 1973 and the prosecution was sought to be initiated in the year, 1988. It has also been submitted that the order dated 7.6.1988 has been passed for extraneous consideration. The petitioner also submits that the prosecution would be barred as it related to an incident of the year 1973 and the prosecution was sought to be initiated in the year, 1988. It has also been submitted that the order dated 7.6.1988 has been passed for extraneous consideration. The petitioner was due to be considered for promotion on the post of Superintending Engineer in the year, 1988. Therefore, the sanction of the prosecution has been manipulated to adversely affect the chances of the petitioner for promotion on the post of Superintending Engineer. 5. I have carefully considered the submissions made by Ms. Charu Tuli. 6. The facts as narrated above have not been controverted by the respondents. It is stated that adverse remarks were conveyed to the petitioner on a number of occasions, were subsequently expunged. The adverse remarks recorded for the period 11.12.1973 to 31.3.1994, however, remain in the ACR as the representation made by the petitioner has been rejected. But the respondents have not cared to state as to what the adverse remarks were. Therefore, no notice can be taken by this vague assertion. The respondents have also tried to justify the review of the order dated 19.5.1979 on the ground that fresh material had become available. A perusal of the written statement, however, shows that the respondents have failed to place on record any fresh material which would justify the review of the earlier order. 7. Undoubtedly, prosecution in criminal cases cannot be quashed solely on the ground of delay. This proposition has been settled by the Supreme Court in the case of State of Punjab v. Kailash Nath, A.I.R. 1989 S.C. 558. But in the present case, the petitioner is not seeking quashing of the prosecution solely on the ground of delay. The submission of the petitioner is that there is no provision under the Cr.P.C. which would permit the respondents to review an order which has been passed under Section 197 of the Cr.P.C. In the alternative, it is submitted that even if a review is permissible, it would be limited to a reasonable period of time from the date the order declining sanction had been passed. In support of this submission, the petitioner had relied on the judgment of the Supreme Court in the case of S. Guin and Ors. v. Grindlays Bank Ltd., A.I.R. 1986 Supreme Court 289. In support of this submission, the petitioner had relied on the judgment of the Supreme Court in the case of S. Guin and Ors. v. Grindlays Bank Ltd., A.I.R. 1986 Supreme Court 289. I am of the considered opinion that it would be wholly inappropriate to permit the petitioner to be prosecuted at this stage. Further proceedings in the matter had been stayed by this Court on June 20, 1988. The interim order was continued on 13.2.1989. The application for vacation of stay filed by the respondent-State was also declined on 30.5.1990. The petitioner has been earning promotions in routine during the pendency of the writ petition. The respondents had even been granted opportunity to conduct a departmental enquiry against the petitioner. No material has been placed on record to show by the respondents that the petitioner was in fact subjected to any departmental proceedings. There is no material also which would justify the review of the earlier order passed by the competent: authority on 19.5.1979 declining the sanction for prosecution. 8. In view of the above, the writ petition is allowed. The order (Annexure-5) and the F.I.R. (Annexure P-1) are hereby quashed. No costs.