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2005 DIGILAW 504 (GUJ)

ARUNKUMAR SHANTILAL PUROHIT v. STATE OF GUJARAT

2005-07-22

JAYANT PATEL

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( 1 ) HEARD the learned advocates for both sides for final disposal. The short facts of the case are that the petitioner who is the original complainant filed the complaint under Prevention of Corruption Act (hereinafter referred to as "the Act") vide CR No. 9/02 with ACB Police Station, Gandhinagar. As per the complainant the amount of Rs. 12,000/- per person holding the agency was finalised and as per the complainant the amount was paid to Shri Shah, the respondent No. 3 through Viram Desai. District Supply Inspector. It appears that thereafter trap was carried out and as per the investigation made by ACB the packet of amount was handed over to Viram Desai who thereafter left the office. The sanction was applied by the ACB and the sanction has been granted for prosecution against Viram Desai whereas the sanction is not granted and/or is declined by the State Govt against Shah and it is under these circumstances the petitioner has approached this court. ( 2 ) IT also appears that when the ACB applied for sanction, there was the opinion of the Gujarat Vigilance Commission forwarded to the State Govt for not recommending the grant of sanction for prosecution against Shah. As per the petitioner the State Govt has acted upon the recommendation of the Vigilance Commission and there is no independent application of mind on the part of the State Govt. It also appears that thereafter once again letter was addressed by the Director General of Police, ACB to the State Vigilance Commission and the matter was, once again, considered by the State Govt and earlier the decision is reiterated. ( 3 ) HEARD Mr. Amin for the petitioner, Mr. Kogje, Ld. APP for the respondent Nos 1 and 2 and Mr. Raju for the respondent No. 3. ( 4 ) AS the affidavit in reply is not filed on behalf of the State Govt on the aspect of justifying the decision in the petition, with the consent of the learned advocates for the parties, the original file was called from the State Govt and the material is considered by the court which existed in the file of the State Govt pertaining to the sanction of the case in question. ( 5 ) AS such, on the aspect of judicial scrutiny against the order for declining the sanction, the law is well settled, in as much as, this court is not having the appellate jurisdiction against the formation of opinion by the State Govt, but, at the same time, if there is any, ex facie, error is committed in not considering the important relevant material or there is any error in decision making process, it may call for interference by this court. There is no dispute on the point that at the time of investigation the statement of witness shows the presence of Shah in his chamber at the time when the trap was carried out by the ACB. One statement is that of Arunkumar Shantilal Purohit dated 12. 10. 02 which, inter alia, states as under (English translation):"shri Shah saheb at that time was sitting in his cabin, and after some time, virambhai and Jeetubhai have come out and told me that you will get your order and if such type of small or big work is there the same shall be done in this manner. " ( 6 ) ANOTHER statement is of the driver of Shri Shah, namely, Hirji Chhanaji thakore, dated 5. 10. 2002 which, interalia, states as under (English translation):"shri Arunkumar Purohit holding gas agency and who is residing at Pethapur and to whom I personally know since he frequently comes to our office and and that mr. Waghela was also there. There were three to four persons with them in respect of whom there are inquiries, i. e. Dr. Nikhil J. Shah and other four persons and shri Purohit, Shri Waghela were also there. In the after noon in our office all the above persons were present and my boss Shri Shah was also present. I am not aware to whom Shri Purohit met because I was at the down stairs in the collectors office for office work. At 5 Oclock in the evening Shri Shah by ringing bell called me in the office and asked me to keep the bag in his car. Therefore, I had gone to keep the Black colour suit case in the car which was opened by Shri Shah by remote controller and after keeping the suit case in the car I had informed Shri Shah that the suit case is kept in the car. Therefore, I had gone to keep the Black colour suit case in the car which was opened by Shri Shah by remote controller and after keeping the suit case in the car I had informed Shri Shah that the suit case is kept in the car. Thereafter, shri Shah came out from his chamber and left office by car and behind him Shri virambhai also left by following him. " ( 7 ) THE aforesaid two statements, which are part of investigation show the presence of Shri Shah at the office at the time of trap as per prosecution case. The perusal of the original file of the State Govt pertaining to sanction shows that in the note, dated 22. 4. 03 after the receipt of proposal from ACB as well as the note of Vigilance Commission it has been stated that at the time when there was trap there was no presence of Shri Shah. It further appears that after considering the aforesaid aspects the observations of the Vigilance Commission are reproduced and it is proposed to accept the recommendations of the Vigilance Commission and to regularise the period during which Shri Shah remained under suspension " as on duty". The perusal of the file shows that ultimately on the basis of said noting the recommendations of the Vigilance Commission are accepted and grant of sanction for prosecution is declined. The perusal of the file further shows that when the matter was, once again, considered upon the noting of the concerned Honble Minister for Revenue Dept, Govt. of Gujarat to the effect that "the sanction for prosecution deserves to be granted as per the recommendation of the ACB since there is joint investigation and the case of prosecution may not be damaged in the court. If Shri Shah is innocent he may get justice from the Honourable Court. " It appears that on the basis of the said noting of the Honble Minister dated 6. 10. 03, the consideration of the matter was once again made on 22. 10. 03 and at that stage also it was recorded in the notes that at the time of trap presence of Shri Shah is not there at the place. It appears that on the basis of the same, ultimately, the decision to decline the sanction is reiterated. 10. 03, the consideration of the matter was once again made on 22. 10. 03 and at that stage also it was recorded in the notes that at the time of trap presence of Shri Shah is not there at the place. It appears that on the basis of the same, ultimately, the decision to decline the sanction is reiterated. ( 8 ) IT appears the investigation and more particularly the statements referred to herein above showing the presence of Shri Shah at the time of trap can be said as important material evidence for supporting the case of the prosecution and it appears that it was required for the State Govt to consider the said material while considering the question of grant of sanction. The decision of the State Govt as referred to herein above is also on the basis that the presence of Shah was not there at the time of trap. Therefore, it can be said that if the important material evidence as per the prosecution case is not considered by the State Govt while considering the question of sanction, the decision of the sanctioning authority is not only vitiated but it is without considering the important material which has direct bearing on the prosecution case and also for alleged involvement of the respondent No. 3 at the time of trap. ( 9 ) MR. RAJU,ld. COUNSEL appearing with Mr. Pandya on behalf of the respondent No. 3 attempted to submit that as such the two statements of Shri Purohit and the driver can not be relied upon on the face of the statement of one officer of the State Govt who was also assigned the duty of protocol. Therefore, it was submitted that it is rightly considered by the State Govt that the presence of Shri Shah was not there at the time of trap. In any view, it will be a question of appreciation of evidence at the time of trial as to whether the statements of Shri Purohit and the driver are to be relied upon or the message recorded in police control and the statement of other officer of the Govt. ( 10 ) SUCH appreciation of evidence or question of reliability of the statement of witnesses as such can not be considered normally at the time when the sanctioning authority has to take appropriate decision. ( 10 ) SUCH appreciation of evidence or question of reliability of the statement of witnesses as such can not be considered normally at the time when the sanctioning authority has to take appropriate decision. In any event, had the sanctioning authority after taking into consideration the aforesaid two statements of Shri Purohit and the driver, recorded some valid reasons , such contention may have some basis, but, in the present case, there is absolutely non consideration of the aforesaid two important material evidence of the prosecution case and therefore the contention as canvassed on behalf of respondent No. 3 can not be accepted. ( 11 ) APART from the above, it deserves to be recorded that it is not that in every matter merely because there is opinion of Vigilance Commission for not recommending for sanction the State Govt would decline the sanction in every case. The opinion of Vigilance Commission may be considered by the sanctioning authority while considering the question of grant of sanction but it is required for the sanctioning authority to also consider the other material and it calls for independent application of mind. It may be that while considering the question of grant of sanction the opinion of the Vigilance Commission may be considered as one of the circumstances, but, the same can not be treated as final for the sanctioning authority nor can it be said that merely because the Vigilance Commission has not recommended for sanction, the sanction should be declined. Ultimately, it will be for the sanctioning authority to independently consider the matter in accordance with law and to take appropriate action. ( 12 ) IN view of the above, the decision of the State Govt declining the sanction for prosecution against the respondent No. 3 deserves to be quashed with further direction to the State Govt to reconsider the question of grant of sanction for prosecution against the respondent No. 3 after taking into consideration all the relevant material including the observations made by this court herein above and to take appropriate decision as early as possible preferably within three months from the date of receipt of writ of this court. "in view of the aforesaid observations and directions given by this court the order passed by the Ld. Spl. Judge, Gandhinagar at annexure"c" dated 6. 11. "in view of the aforesaid observations and directions given by this court the order passed by the Ld. Spl. Judge, Gandhinagar at annexure"c" dated 6. 11. 2003 is quashed leaving the rights and contentions of both sides open as may be permissible in law after the question of sanction is decided by the State Govt. " ( 13 ) PETITION is partly allowed to the aforesaid extent. Rule is made absolute accordingly. ( 14 ) MR. PANDYA, Ld. advocate for the petitioner prays that the order be stayed for some time so as to enable the petitioner to approach the higher forum. Considering the facts and circumstances, said request is declined. .