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2006 DIGILAW 1458 (RAJ)

Raghuvir Singh v. State of Rajasthan

2006-05-03

DALIP SINGH

body2006
Judgment Dalip Singh, J.-In this writ petition the petitioners have challenged the order passed by the respondents which has been filed by the respondents as Annexure R/2. 2. The submission of the learned Counsel for the petitioners is that when the prosecution sanction was sought to prosecute the petitioners, the Transport Commissioner, who is the competent authority, vide Annexure-3 dated 21.05.2002 after considering the material which had been placed before the said authority came to the conclusion that it was not a fit case in which sanction for prosecution be given. On the contrary, it was held that petitioners herein may be prosecuted departmentally. It is submitted that the said order Annexure-3 dated 21.05.2002 was passed taking into consideration the entire facts and circumstances. It was submitted that after the order dated 21.05.2002, no fresh material was brought on the record by the prosecution and the concerned authority gave the sanction for prosecution ignoring the earlier order passed by the predecessor on 21.05.2002. 3. Learned Counsel for the petitioner has relied upon the Judgment in the case of Jai Pal vs. State of Haryana, reported in 2002 (2) RCR (Criminal) 99, wherein it has been held as under:- "3. Thereafter the report of the sub-committee was considered and approved at the meeting of Board of Directors on 12.04.1994. (The proceedings are Annexure P/4). Consequently, a letter was addressed to the Superintendent of Police, State Vigilance Bureau, Karnal on 11.05.1994 declining sanction for prosecution (Annexure P/5). However, on 02.07.1997, the matter was re-considered by the Board of Directors and it was resolved that sanction for prosecution of the petitioner should be granted (Annexure-P/7). 4. There appears to be no fresh material before the Board of Directors which may have persuaded them to review the previous order of declining sanction. Indeed, no new or fresh grounds have been disclosed to support the ground of sanction. There was no change in the circumstances requiring the sanction to be granted. 5. Counselhas relied upon Dr. Jaswinder Kaur vs. State of Punjab & Anr., 2001 (2) RCR (Criminal) 58 and Mahendra Lal Das vs. State of Bihar & Ors., 2002 Supreme Court Cases (Criminal) 110: 2001 (4) RCR (Cri.) 589 (SC) in support of the argument that sanction to prosecute once declined cannot be reviewed. In both the cases cited above. the circumstances were similar to the present case. In both the cases cited above. the circumstances were similar to the present case. Sanction to prosecution had earlier been refused but upon review the matter was re-considered and sanction was granted. In both the cases, the sanction to prosecute as well as the FIR were quashed. Indeed in the case of Manhendra Lal Das (Supra) sanction had not been granted at all in spite of resolution having been passed after the registration of the FIR." 4. Learned Counsel for the petitioners has also relied upon another Judgment in the case of Dr. Jaswinder Kaur vs. State of Punjab & Anr., reported in 2001 (2) RCR (Criminal) 58 wherein it has been held as under:- "An order, judicial or administrative, may be permitted to be reviewed or recalled only if it was passed under misapprehension of fact. Otherwise it gives rise to misgiving and speculation which is not conductive to the sense of justice. Since the earlier order of sanction was passed after careful consideration of material on record the officer was precluded from recalling it or passing fresh order on some material because of erroneous impression." In both the cases, the subsequent orders were set aside and canceled. 5. Learned Counsel appearing on behalf of the respondent-State, on the other hand, has submitted that the order granting or refusing sanction being administrative in nature, it was open for the authorities to review the same. He, therefore, submits that the respondents were well within their rights to issue the order Annexure-R/2 reviewing the earlier order Annexure-3 dated 21.05.2002. 6. I have given my thoughtful consideration to the rival submissions and I am inclined to agree with the submission made by the learned Counsel for the petitioners. In the facts and circumstance of the case a perusal of the Annexure-3 goes to show that order was passed on 21.05.2002 after considering the case diary and the material available on record. It is not the case of the respondents that any fresh material was brought on record by the investigating agency for consideration of the sanctioning authority when the order Annexure-R/2 came to be passed granting the sanction for prosecution. A perusal of the order Annexure-R/2 also goes to show that concerned authority did not even refer to the earlier order passed by the predecessor-in-Officer on 21.05.2002. A perusal of the order Annexure-R/2 also goes to show that concerned authority did not even refer to the earlier order passed by the predecessor-in-Officer on 21.05.2002. As has been held by the Punjab and Haryana High Court in the above mentioned cases, once an order has been passed refusing the sanction for prosecution, unless some fresh material is brought before the authority by the investigating agency seeking sanction for prosecution after earlier order has been passed, there was no change in the circumstances requiring the grant of sanction or reviewing the order dated 21.02.2005. I am in respectful agreement with the view expressed by the learned Single Judge of the Punjab and Haryana High Court and in the facts and circumstances, I am inclined to allow this writ petition and set aside the order Annexure-R/2. The respondents, however, are free to proceed against the petitioners in terms of Annexure-3 dated 21.05.2002. 7. Subject to the aforesaid, this writ petition stands allowed.