Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 102 (PNJ)

Harbans Lal v. State of Punjab

2009-01-14

DAYA CHAUDHARY

body2009
JUDGMENT Daya Chaudhary, J. 1. The present petition has been filed under Section 482 Cr.P.C. for quashing of order (Annexure P-3) whereby sanction for prosecution of the petitioner in case FIR No. 54 dated 5.11.2003 under Sections 7/13(2) 88 of Prevention of Corruption Act, P.S.Vigilance Bureau, Bathinda Range, Bathinda, has been granted. 2. Briefly, the facts of the case are that in the year 2003, petitioner Harbans Lal was working as an Accountant in the Head Post Office, Faridkot and was also having charge of Assistant Post Master. Shri R.Prince Narula, respondent No.2, a small savings agent, was also working at Faridkot. On the complaint filed by respondent No.2, FIR No. 54 dated 5.11.2003 was registered under Section 7/13(2) 88 of Prevention of Corruption Act, Police Station Vigilance Bureau, Bathinda for acceptance of Rs.500/-as bribe from him. The investigation of the case was conducted into the allegations against the petitioner by Assistant Superintendent of Post Office, Faridkot and the petitioner was found innocent. After investigation, the vigilance bureau submitted the case for grant of sanction for prosecution of the petitioner. The competent authority after considering the record of the investigation as well as departmental inquiry conducted by Assistant Superintendent, Post Office Faridkot and inquiry conducted by District Magistrate, Faridkot, refused to grant sanction vide order dated 9.3.2004. Later on, on the basis of another reference made, the competent authority vide letter dated 28.7.2004 after consulting the inquiry conducted by vigilance department as well as District Magistrate and Assistant Superintendent, Post Office, Faridkot, found the petitioner innocent. 3. Accordingly, on the directions of Chief Director, Vigilance Bureau, the Deputy Superintendent of Police (Vigilance), submitted cancellation report before the Sessions Judge, which was not accepted. 4. Ultimately, the Superintendent Post Office, granted sanction vide order Annexure P-3, which is the subject-matter of challenge in the present writ petition. 5. Shri H.S.Gill, learned Senior Counsel for the petitioner, has challenged the sanction order Annexure P-3 on various grounds. He argued that senior officers of the Post Office Department i.e. Assistant Superintendent conducted the departmental inquiry into the allegations, and found the petitioner innocent and in the inquiry report itself, the petitioner was found to be a dedicated worker. It has also been mentioned therein that complainant Shri R.Prince Narula is a person of bad character and was instrumental in getting wrong things done through the petitioner, which the petitioner refused to do so. It has also been mentioned therein that complainant Shri R.Prince Narula is a person of bad character and was instrumental in getting wrong things done through the petitioner, which the petitioner refused to do so. It was further argued by Mr. Gill that the District Magistrate had got the inquiry conducted into the allegations against the petitioner, but it was found that the petitioner was wrongly involved in a false case. The matter was put up before the competent authority for grant of sanction which was declined by holding that the petitioner has falsely been implicated. Subsequently also, the matter was referred to the competent authority for grant of sanction, but the same was declined vide order Annexure P-2. 6. Mr. Gill, learned Senior Counsel, vehemently argued that grant of sanction for prosecution in such cases is not simply a formality but a statutory function and the said power is to be exercised after thorough consideration of all the facts and circumstances of the case and that power once exercised cannot be reviewed by the same or another authority. Mr. Gill further argued that the trial Court cannot take cognizance of offence without grant of valid sanction by the competent authority and, therefore, the proceedings before the trial Court are liable to be quashed. 7. Learned counsel for the petitioner has also placed reliance on judgments reported in Dr.Jaswinder Kaur Vs. State of Punjab and another 2001(2) RCR (Crl.) 58; Mallikarjun Basalinagappa Balipadi Vs. State of Karnataka 2005(2) RCR (Crl.) 263; Surjit Singh Vs. State of Punjab and others 1980(1) ILR (P&H) 11; and Mohammed Iqbal Bhatti Vs. State of Punjab 2006(2) RCR (Crl.) 430. 8. Separate written statements have been filed on behalf of the respondents, which are on record. 9. Learned counsel for the State argued that DSP Vigilance Bureau investigated the matter in compliance of the order dated 19.11.2004 passed by learned District & Sessions Judge, Faridkot, and sanction was accorded for prosecution after perusing the evidence on record. 10. In the written statement filed by respondent No.2, it has been averred that the petitioner was caught red handed while accepting bribe of Rs.500/-from the answering respondent. 10. In the written statement filed by respondent No.2, it has been averred that the petitioner was caught red handed while accepting bribe of Rs.500/-from the answering respondent. Learned counsel further argued that the departmental inquiry and criminal proceedings are two different things and it is for the trial Court to see whether the petitioner has committed any offence and is liable to be punished under the Prevention of Corruption Act, 1988 or not. Moreover, the cancellation report was rejected by the learned Sessions Judge as the vigilance bureau failed to produce the complete challan, including the sanction order, and it cannot be said that the directions were given by the learned Sessions Judge for grant of sanction. Mr. R.K.Girdhar, learned counsel for respondent No.2, has placed reliance on a judgment of Hon'ble the Apex Court reported in State of Karnataka through CBI Vs. C. Nagarajaswamy 2005 AIR (SC) 4308. 11. I have heard the arguments of learned counsel for the parties and perused the documents on record. 12. It is an admitted fact that vide order dated 9.3.2004 (Annexure P-1) no sanction was granted by the respondent and it was specifically mentioned in the said order that the petitioner is an innocent and honest worker and has falsely been implicated in the case at the instance of respondent No.2, who wanted to get his wrong work done forcibly under threats, whereas the petitioner refused to do his work. Again vide order dated 28.7.2004 (Annexure P-2), the competent authority declined the sanction by passing a speaking order. 13. The sanction has been accorded vide order Annexure P-3 without any further investigation or without there being any material collected by the concerned authority. Section 19 of the Prevention of Corruption Act, 1988 prohibits a Court from taking cognizance of offence punishable under Sections 7,10,13 and 15 except with the previous sanction of the concerned Government. When there is no valid sanction, the Court cannot take cognizance of the offence. Therefore, the FIR and other consequential proceedings, including the sanction order, have to be quashed. 14. In case Kashmir Singh Vs. State of Punjab and others, (Crl.Misc.No.825-M of 1996) this Court quashed the order of sanction as also the subsequent proceedings. When there is no valid sanction, the Court cannot take cognizance of the offence. Therefore, the FIR and other consequential proceedings, including the sanction order, have to be quashed. 14. In case Kashmir Singh Vs. State of Punjab and others, (Crl.Misc.No.825-M of 1996) this Court quashed the order of sanction as also the subsequent proceedings. The relevant portion of the judgment is reproduced as under: “There is nothing to show that he considered the earlier rejection order or that any fresh material was placed before him or that he found sufficient reasons for rejecting the earlier order declining the permission and for reviewing it. In these circumstances, I am of the view that the Special Secretary who accorded sanction under Annexure P-8, has not applied his mind at all to the matter in question before he accorded the sanction. Had he applied his mind, then we would find mention in his order about the earlier rejection and the reasons for his coming to a different conclusion. Therefore, I am of the view that the sanction (Annexure P-8) to prosecute the petitioner is not valid.......Section 19 of the Prevention of Corruption Act, 1988, prohibits a Court from taking cognizance of offences punishable under Sections 7,10,11,13 and 15 except with the previous sanction of the concerned government. Therefore, when there is no valid sanction, the Court cannot take cognizance of the offence. Therefore, the FIR and the other consequential proceedings including the sanction order have to be quashed. Even if the charge sheet has been filed, the position will be the same since the court cannot take cognizance of the offence without a valid previous sanction and the absence of a vlid sanction goes to the root of the matter affecting the very jurisdiction of the Court to take cognizance of the offence. In the absence of a valid sanction, the Court is not only prevented from taking cognizance of the offence, but it cannot, also convict the accused and, therefore, no useful purpose will be served by allowing the FIR concerned and the consequential proceedings to continue. Hence this petition has to be allowed.” It has been held that case of the petitioner is covered by the aforesaid ratio as in absence of some fresh material or some technical infirmity, or some clerical error, the competent authority had no power to review the earlier order on merits. 15. Hence this petition has to be allowed.” It has been held that case of the petitioner is covered by the aforesaid ratio as in absence of some fresh material or some technical infirmity, or some clerical error, the competent authority had no power to review the earlier order on merits. 15. The provisions of Section 19 of the Prevention of Corruption Act have also been considered by this Court in case of Hamesh Kumar Vs. State of Punjab 1999(2) RCR (Crl.) 351. In para No.6 of the judgment, it has been observed as follows: “After considering the rival contentions of the parties, I am of the considered opinion that no prosecution can be launched against the petitioner as the investigating agency has not procured the valid sanction from the competent authority and that order Annexure P-16 which has been passed by respondent No.3 does not give him the power to grant valid sanction under Section 19 of the Prevention of Corruption Act. Section 19 of the Act has been incorporated in the Act with a laudable purpose to safeguard the interest of public servants so that these persons may not be harassed unnecessarily by unscrupulous litigants. The object of Section 19 is to secure the interest of a public servant from vexatious and frivolous litigation so that the sword of tension may not hang on his neck for years together. That is the reason the legislature in its wisdom has categorized the public servants into three categories and has ultimately vested these powers to the Central Government, State Government or to the authority competent to remove a public servant from his office. The scheme of the Act as I understand is that after investigating the matter, the investigating agency has to place the entire evidence which has been collected during the course of investigation including the documents and the statements of the witnesses before the competent authority which is supposed to apply its mind in a quasi-judicious manner so as to arrive at an independent conclusion as to whether a public servant has prima facie committed the offence or not. Of course, the duty upon the competent authority is onerous as it is to formulate an opinion in an unbiased mind. Of course, the duty upon the competent authority is onerous as it is to formulate an opinion in an unbiased mind. But once it formulates an opinion acting in a quasi-judicious manner, then the investigating agency cannot set at naught the decision so taken by the competent authority, the successor authority cannot review the order once that power has been exercised/discharged by a competent authority at one point of time.” In the case of Hari Singh Mann Vs. Harbhajan Singh Bajwa and others AIR 2001 SC 43 the Supreme Court while considering the ambit of the power of review to be exercised by the High Court, observed as follows: “There is no provision in the Code of Criminal Procedure authorizing the High Court to review the judgment passed either in exercise of its appellate or revisional; or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 Cr.P.C.” 16. It is clear from the above-said judgments and the position of law that power of review can be used for correcting a clerical or arithmetical error. It cannot be used to correct an erroneous view that may have been taken on the facts of a particular case. Moreover, the Hon'ble Supreme Court of India has held that even inherent power under Section 482 Cr.P.C. cannot be exercised by the High Court for reviewing its earlier orders. Under the prevention of Corruption Act, there are no residuary or inherent powers which are vested with the competent authority to review the orders time and again. Once the competent authority has taken a conscious decision on the basis of the relevant material and for relevant considerations, the same would not be open to review. Otherwise, the protection granted to the public servant under Section 19 would be rendered nugatory. Once the investigating agency has submitted the entire material, it has no further role to play and it is only for the competent authority to decide whether the sanction for prosecution is to be given or not. In the present case, while exercising power, the competent authority had declined to give sanction twice. This order cannot be reviewed subsequently without any material on the record. 17. In view of the facts mentioned above, this petition is allowed. In the present case, while exercising power, the competent authority had declined to give sanction twice. This order cannot be reviewed subsequently without any material on the record. 17. In view of the facts mentioned above, this petition is allowed. The impugned order Annexure P-3, FIR No. 54 dated 5.11.2003 under Sections 7/13(2) 88 of Prevention of Corruption Act, P. S.Vigilance Bureau, Bathinda Range, Bathinda, and all consequential proceedings arising therefrom are hereby quashed. Petition allowed.