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2008 DIGILAW 2713 (RAJ)

Rama Kant Sharma v. State of Rajasthan

2008-12-15

MANAK MOHTA

body2008
JUDGMENT Manak Mohta, J. - The instant petition has been filed against the impugned order dated 31.8.2006 of Special Judge, (Sessions Judge) ACD Cases, jodhpur by which the learned Judge has taken cognizance under Section 13(1)(d)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 read with Section 120-B I.P.C., against the petitioner.2. The brief facts of the case are like that. It is revealed from the record that on 10.11.2000 at the time of checking the present petitioner, Mr. Ramakant, an Inspector of Drug and Cosmetic, a Public servant, along with one private person named Mani Shanker were travlling in a jeep Mr. Ramakant was found having in possession of Rs. 154/- with him and Rs. 21,050/- along with the list of traders was found in the tool box of said jeep and the jeep was owned and driven by Mani Shanker from whom Rs. 1,500/- was recovered. On the basis of these facts, it was alleged that the petitioner received illegal gratification from the shopkeepers dealing in medicine, during inspection. A case No. 502/2000 was registered under above mentioned offences. It is also further revealed that during investigation, handwriting on the said list was got examined and it was found that the said list contained the handwriting of Mani Shanker. The concerned police authority, after investigation, filed negative police report under Section 173 Cr.P.C. before the concerned Anti Corruption Judge, Jodhpur. Thereafter, the learned ACD Judge, while disagreeing with the police report, took the cognizance vide order dated 31.8.2006 under Section 13(1)(d)(e) read with Section 13(2) of P.C. Act and 120-B I.P.C., while considering the facts that during investigation of the case once sanction was granted and thereafter that was withdrawn, the Sessions Judge was of the opinion that once a sanction is granted that cannot be revoked later on. Thus, he ignored the fresh sanction and summoned the accused in aforesaid sections. The accused petitioner Rama Kant has challenged this order by way of revision.3. Notice was issued, record of the case was called and arguments heard.4. During the course of arguments, learned counsel for the petitioner submitted that the order passed by the learned Judge while taking cognizance is against the law. It was further stated that the police, after thorough investigation, has come to the conclusion that no offence was made out, as the police had filed negative report. During the course of arguments, learned counsel for the petitioner submitted that the order passed by the learned Judge while taking cognizance is against the law. It was further stated that the police, after thorough investigation, has come to the conclusion that no offence was made out, as the police had filed negative report. It was further urged that though previously sanction was accorded vide latter dated 30.5.2003 but later on by the competent authority that has been withdrawn vide latter dated 27.1.2004. The valid and effective sanction to prosecute by competent authority, was condition precedent for taking cognizance. The learned counsel drew my attention towards the allegations and further stressed that from the alleged facts it is revealed that some names of Pharmacist were mentioned in the list which was found along with some money in the tool box of the jeep, which was being driven by the owner of the vehicle. The said list was neither found with the accused who is a Public servant nor that was found to be written by accused petitioner. A petty amount of Rs. 154/- was stated to be found in his possession and that too has no nexus with the alleged allegations of illegal gratification. Thus, on merit, the case is not made out. Further it was submitted that apart from this factual scenario, where the Government, after considering the full facts, has withdrawn the sanction during the stage of investigation and thereafter, police filed report in the Court. It was urged that in that a case the learned Sessions Judge was not competent to take cognizance under Section 13(1)(d)(e) of the Act, ignoring the pre-required condition of effective sanction. The learned Judge has not properly considered the legal provision in right perspective. Thus, it was prayed that the impugned order is illegal and is liable to be quashed and set aside and the revision may be allowed. In support is his contentions, the learned counsel for the petitioner relied on State of Karnataka v. Nagarajaswamy, 2006(1) CJ (SC) Cr. 103 and Rakesh Kumar Mishra v. State of Bihar, (2006) 1 SCC 558. 5. I also heard the learned counsel appearing for Addl. Advocate General and perused the impugned order and the material available on record. He submitted that sanction was withdrawn vide order dated 27.1.2004, after reconsidering full facts. 103 and Rakesh Kumar Mishra v. State of Bihar, (2006) 1 SCC 558. 5. I also heard the learned counsel appearing for Addl. Advocate General and perused the impugned order and the material available on record. He submitted that sanction was withdrawn vide order dated 27.1.2004, after reconsidering full facts. He drew my attention towards the written statements made in this respect.6. It is revealed from the record that police filed negative report. The learned Sessions Judge, after considering the facts as well as the point of sanction, vide order dated 31.8.2006 took the cognizance. The reasons assigned for requirement of sanction by the learned Judge that once a sanction is granted that cannot be withdrawn, is not sustainable. The case was admittedly at the investigation stage and it was within the purview of the State Government to grant sanction or not to grant sanction to prosecute. In this case, by the competent authority, the accorded sanction has been withdrawn. It is not a case that it has been withdrawn by an incompetent authority.7. I have also considered the aforesaid judgments cited by the learned counsel for the petitioner. In case of State of Karnataka v. C. Nagarajaswamy (supra), sanction was not found legal the proceedings were held null and void. In case of Rakesh Kumar Mishra (supra) the scope of sanction has been dealt with.8. On the basis of aforesaid discussion, the order of taking cognizance, in absence of valid and effective sanction, is not sustainable and is liable to be quashed.9. Considering the merit of the case also, there is no allegation that any objectionable material or documentary evidence was found in the conscious possession of the public servant Mr. Ramakant. It has come on record that the vehicle was driven by Mr. Mani Shanker Sharma, who happened to be he owner of the vehicle and the impugned paper found in the tool box, containing the names of Pharmacists which was found handwritten by Mani Shanker, who was also said to be a Pharmacist.10. On the basis of aforesaid discussion, the order passed by the learned Sessions Judge dated 31.8.2006 of taking cognizance is not sustainable and is liable to be quashed.11. In the net result, the revision petition is allowed, the order of taking cognizance dated 31.8.2006 is hereby quashed. Accused shall not be required to appear before the learned lower Court. On the basis of aforesaid discussion, the order passed by the learned Sessions Judge dated 31.8.2006 of taking cognizance is not sustainable and is liable to be quashed.11. In the net result, the revision petition is allowed, the order of taking cognizance dated 31.8.2006 is hereby quashed. Accused shall not be required to appear before the learned lower Court. If any bail bonds have been filed they are hereby quashed. Revision petition allowed. *******