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2009 DIGILAW 402 (HP)

NISHANT SAREEN v. STATE OF H. P.

2009-05-04

SURINDER SINGH

body2009
ORDER Surinder Singh,J (Oral) :-In the year 2005, the petitioner was employed as Drug Inspector at Bilaspur. He is alleged to have demanded Rs.5,000/- as bribe from complainant Dr.Shri Ramdhan Sharma to run his clinic. 2. The complainant reported the matter to the State Anti-corruption department of the Police. Pursuant to that an FIR No.1/2005 was registered on 12.5.2005, under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988, in short “the Act”, in Police Station AC Zone, Bilaspur. Thereafter, a raiding party under the supervision of Dy.S.P. AC Zone, Bilaspur, was constituted. The Drug Inspector was allegedly caught red-handed, thus arrested and produced before the concerned court, then remanded to the judicial custody upto 16.5.2005 and later granted bail. 3. After completing the investigation, the police sent the file along with the opinion of the District Attorney for obtaining prosecution sanction, under Section 197 of the Act, from the competent authority. 4. After considering the matter, the Sanctioning Authority i.e. the Principal Secretary (Health) to the Government of Himachal Pradesh found no justification for launching the prosecution against the petitioner, on the ground that it appears to be a case of personal enmity against the accused/petitioner. The said order passed by the Sanctioning Authority reads as here under: “Government of Himachal Pradesh, Department of Health & Family Welfare No. Health-A-B(3)78/2002 Dated:Shimla-2, 2007. 5. Whereas, Sh. Nishant Sareen while working as Drug Inspector, Bilaspur as reported by the Vigilance Department on information of Sh.Ramdhan Sharma owner of Leelawati Hospital Ghumarwin demanded Rs.5000/- as bribe to run his hospital without any checking by the Drug Inspector. Accordingly case FIR No.1/2005 dated 12.5.2005 u/s 7 & 13(2) PC Act, 1988 PS AC Zone Bilaspur against Sh. Sareen has been registered. Thereafter, raiding party under the supervision of Dy.S.P. AC Zone Bilaspur was constituted and aforesaid Drug Inspector was caught red handed and was arrested on 12.5.2005 and produced before Ld. Additional Session Judge Ghumarwin. Sh. Sareen was remanded to judicial custody upto 16.5.2005. 6. Whereas, Sh. Sareen has made counter allegations against Dr. R.D. Sharma stating that the clinic being run by Dr. R.D. Sharma was under his supervision being the Drug Inspector of the area to ensure the provisions of the Drugs & Cosmetic Act are not violated. This resulted in Dr. Sh. Sareen was remanded to judicial custody upto 16.5.2005. 6. Whereas, Sh. Sareen has made counter allegations against Dr. R.D. Sharma stating that the clinic being run by Dr. R.D. Sharma was under his supervision being the Drug Inspector of the area to ensure the provisions of the Drugs & Cosmetic Act are not violated. This resulted in Dr. Sharma being annoyed with him as he was expecting some undesirable favour from the Drug Inspector which were against the ambit/ scope of his duties and responsibilities. Dr. R.D. Sharma managed to plant a false and fabricated case against him. The Drug Inspector explained his position in his representation dated 22.6.2005 addressed to the Pr. Secretary (Health) with the support of copy of FIR lodged by S,t. Vandana Kumari w/o Sh. Rakesh Kumar R.O. Tikkri P.o. Ghumarwin is available in the record of the department which reflects the malafide intention of Dr. R.D. Sharma towards lady patients. 7. In the meanwhile, Sh. Nishant Sareen was transferred from Bilaspur to chamba vide Govt. Notification No.Health-A-B(2)13/98 dated 31.9.2005 which was further modified vide Notification of even No.dated 19.10.2005 and he was posted at Hamirpur and is still working as such there. 8. Whereas, Sh. Sareen remained posted at Hamirpur and Bilaspur therefore, the work and conduct of said Sh. Nishant Sareen Drug Inspector was asked for from the Director Health Services vide this department letter dated 4.12.2006 As per reports of the controlling officers CMO Bilaspur and Hamirpur, he is stated to be punctual and faithful and has rendered his job to entire satisfaction of the authorities and there was no complaint against him on record. The work and conduct of the Drug Inspector has been assessed to be satisfactory except that of the Vigilance raid accrued on 12.5.2005. 9. Therefore, after thorough examination of the case taking all the aspects into consideration and scrutiny of the service records it has been concluded that Sh. Sareen in the course of his duties and responsibilities and impartial discharge of his duties. It appears that the complainant has registered a case which appears to be frivolous and has resulted in unnecessary harassment and hindrance in the working of the Drug Inspector. In view of this, there appears to be no justification for launching prosecution against Sh. Nishant Sareen, Drug Inspector as it appears to be a case of Personal enmity. It appears that the complainant has registered a case which appears to be frivolous and has resulted in unnecessary harassment and hindrance in the working of the Drug Inspector. In view of this, there appears to be no justification for launching prosecution against Sh. Nishant Sareen, Drug Inspector as it appears to be a case of Personal enmity. By Order Pr.Secretary (Health) to the Government of Himachal Pradesh Endst.No.As above Dated the 21st Nov.2007.” 10. Thereafter vide letter No.Home (Vig.)A (5)-101/2005-HFW dated 3.12.2007, the Under Secretary (Vigilance) to the Government of Himachal Pradesh requested the Additional Director General of Police, to take further action in the matter. The aforesaid order of refusal along with the original challan with documents and opinion of the District Attorney, Bilaspur were returned. 11. Thereafter, it appears that the Additional Director General of Police (ADGP) again submitted the matter to the Secretary-cum-Director (Vigilance) to the Government of Himachal Pradesh to review the decision on the ground that during the investigation the case stood proved against the petitioner. The blatant refusal of the prosecution sanction would send a wrong message to the general public and further that as per the Vigilance Manual amendment brought in the year 1983 the case was required to be presented before the Chief Minister where the accused is a Gazetted Officer, for reconsideration as there was a difference of opinion between the Vigilance Department and the Administrative Department. Thereafter the Principal Secretary (Health) to the Government of Himachal Pradesh reconsidered the matter while agreeing with the contention of the Vigilance Department, vide letter No. Health-A-B(3)78/2002 dated 15.3.2008 reviewed the earlier order and granted the sanction to prosecute the petitioner on the same material and it was thereafter the challan was presented in the court for the trial wherein the petitioner has only been summoned. Now the matter is pending for consideration of charge. 12. In this petition, the accused-petitioner has challenged the reviewing order of prosecution sanction and sought quashing the order Annexure-PC granting the prosecution sanction and consequent proceedings pending against him in the background of the above facts. 13. The record of the learned trial court was summoned and considered. Now the matter is pending for consideration of charge. 12. In this petition, the accused-petitioner has challenged the reviewing order of prosecution sanction and sought quashing the order Annexure-PC granting the prosecution sanction and consequent proceedings pending against him in the background of the above facts. 13. The record of the learned trial court was summoned and considered. Shri M.S. Guleria, learned counsel for the petitioner has argued with vehemence that once the prosecution sanction is refused by the competent authority, it has no power to reconsider, unless the new facts are brought to the notice of the competent authority. He further submits that in the instant case, the material placed before the competent authority was the same which was submitted earlier when the prosecution sanction was refused and no fresh material was brought to the notice of the competent authority which justified the reconsideration of the matter. 14. Contra, Shri J.S. Guleria, learned Assistant Advocate General argued that the sanctioning authority was not competent to consider any representation of the accused at the time of considering the matter for the grant of prosecution sanction and the competent authority wrongly entered into the procedure not interceded by law, which was made basis for refusing the prosecution sanction. He further submitted that the matter was sent for reconsideration by the Additional Director General of Police, through Vigilance Department of the State Government, on the proved facts. Thus, the error, committed earlier was subsequently corrected and the sanction for prosecution was granted by the Government, which is legally and factually correct. 15. I have considered the rival contention of the parties and meticulously examined the points taken. By now it is well settled that the appropriate authority i.e. the competent authority, granting the sanction who on consideration of all the material facts has refused to accord the sanction to prosecute a government servant has no power on reconsideration to review the said order and thereby according sanction to prosecute on the same material. 16. However, the matter would be different if additional/fresh/new material is brought before the competent authority. The reliance can be put on the judgment of the Division Bench of this Court in Omkar Sharma and etc. v. State of H.P. and others [2003 CRI.L.J.1024], wherein the judgment of the Supreme Court in Ramanand Chaudhary v. State of Bihar [(2002) 1 SCC 153] was followed. The reliance can be put on the judgment of the Division Bench of this Court in Omkar Sharma and etc. v. State of H.P. and others [2003 CRI.L.J.1024], wherein the judgment of the Supreme Court in Ramanand Chaudhary v. State of Bihar [(2002) 1 SCC 153] was followed. Further in case Bhagwan Dass v. Stateof Haryana [2008(4) Criminal Court Cases 241 (P&H) while relying on Omkar Sharma’s case supra, the Punjab & Haryana High Court also reiterated the same principle of law. 17. The Government cannot act in a manner which may cause harassment to an employee or any person. Though the orders which are required to be passed while exercising the powers under Section 19 of the Prevention of Corruption Act and Section 197 of the Code of Criminal Procedure cannot be taken as quasi-judicial order, yet the orders have to be passed consciously and cautiously by applying the mind accordingly. 18. In the instant case as already pointed out above, the original challan with documents [1 to 55 leaves] along with the opinion of the District Attorney Bilaspur and Police file [1 to 115 leaves] were placed for consideration before the competent authority for the grant of the prosecution sanction. On considering the entire matter, the competent authority also perused the service record of the petitioner along with his counter allegations, which of-course were not required yet the perusal of the order aforesaid whereby the prosecution sanction was refused, shows that the competent authority after a thorough examination of the case took a conscious decision and came to the conclusion that there was no justification for launching the prosecution against the petitioner. The letter dated 3.12.2007 (Annexure PB) of the Under Secretary addressed to the Additional Director General of Police reveals that the aforesaid documents which were placed before the competent authority were returned to him along with refusal order. Thereafter vide letter dated 13.12.2007 (Annexure R-1) the Additional Director General of Police informed the Secretary-cum-Director (Vigilance) to the Government of Himachal Pradesh while referring to the same record which was earlier sent for consideration for seeking prosecution sanction raised a question that in view of the amendment of the Vigilance Manual in the year 1983, the matter was required to be placed before the Chief Minister where there was difference of opinion between the two departments. But, no new facts were brought on record which justified the reviewing of the order of refusal by the competent authority. 19. Now, applying the above settled proposition of law in this case, in my considered opinion, the competent authority i.e. the Principal Secretary (Health) to the Government of Himachal Pradesh had no powers to review and reconsider the matter and deviate from the earlier decision of refusing to grant the prosecution sanction on the same material. 20. Therefore, reconsideration of the sanction of prosecution by the Principal Secretary (Health), Govt. of H.P. in the instant case, against the petitioner is without jurisdiction, as such, the order conveying the prosecution sanction vide letter No.Health-A-B (3)78/2002 by the Principal Secretary (Health), Govt. of H.P. against the petitioner is hereby quashed and set-aside. Thus, the Special Judge before whom the matter is pending has no jurisdiction to take the cognizance of the offence alleged, as such, further proceedings in the case No. 3 of 2008 (State vs. Nishant Sareen) are also quashed. Consequently, the petitioner stands discharged. Record of the learned trial court be returned.