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2010 DIGILAW 261 (JK)

Nazir Ahmad Lone v. State Of J. &K.

2010-05-06

MUZAFFAR HUSSAIN ATTAR

body2010
1. Through corrupt practices even the means of sustenance of lesser mortals are being devoured and swallowed by the corrupt powerful people. The economic strength of state gets destabilized because of abominable acts of a handful of corrupt powerful people. By indulging in corrupt practices a small section of population has attained extreme richness and affluence and has reduced a large section of the society so poor that it has become difficult for them to have both ends meet. 2. It is the result of the corruption that we are finding children, who should be in the schools, either working or begging. The corruption is converted into an industry and money power has become biggest power and people who possess it are ruling the roost. 3. The corruption laws which are available in the State probably are too weak to meet the challenge of corruption. The State needs to have re-look on the said laws so as to make them more stringent. It appears that unless the extreme deterrent penalty is provided in the corruption law it will continue to remain only a paper tiger. In the State of J&K, there are only four Courts, which have been conferred with the powers under the J&K Prevention of Corruption Act, 2006. The Delay in disposal of the case is, thus, attributable to the lack of adequate remedial machinery. The State, in order to ensure that the trials in corruption cases are concluded expeditiously, may consider to confer the powers on the Additional Sessions Judges in all the Districts wherever they are available in the State of J&K other than Srinagar and Jammu Districts, in consultation with High Court. 4. Looking to the facts of this case, on the allegations that petitioner demanded and accepted Rs. 2,000/- as illegal gratification, a case FIR No. 15 of 2003 in Police Station VOK, Srinagar was registered. After the conclusion of the investigation report under Section 173 Cr. P. C. was filed before the Court of competent jurisdiction against the petitioner. The charge was framed on 09.07.2005. The prosecution has lead the evidence in support of their case. When the statement of the petitioner under Section 342 Cr. After the conclusion of the investigation report under Section 173 Cr. P. C. was filed before the Court of competent jurisdiction against the petitioner. The charge was framed on 09.07.2005. The prosecution has lead the evidence in support of their case. When the statement of the petitioner under Section 342 Cr. P. C. was to be recorded an application was filed on his behalf praying for his discharge on the ground that the sanctioning authority was misled by the investigating agency for issuing sanction for prosecution of the petitioner on the ground that the liquid preserved in the bottles had turned colourless. Learned trial Judge rejected the application of the petitioner for discharging him on the aforementioned ground and left the issue open by observing that the said contention of the petitioner cannot be taken into consideration at this stage of the trial and the issue can be raised at the conclusion of the trial when arguments are to be heard finally in the case. The learned trial Court has rejected the application of the petitioner on 26.02.2010. 5. Feeling aggrieved of the said order, the petition under Section 561-A Cr. P. C is filed wherein it is prayed that the entire proceedings including the impugned order dated 26.02.2010 be quashed. 6. Heard learned counsel for the parties. Considered the matter. 7. Mr. S. T. Hussain, learned counsel for petitioner submitted that in terms of Clause (b) of Section 6 of the J&K Prevention of Corruption Act, Svt. 2006 (for short "Act of 2006"), the authority which is competent to remove the petitioner from the office was authorized to grant the sanction. Statute having specifically provided that sanction for prosecution can be issued by the authority who can remove the employee from service, as per the submission of learned counsel for petitioner in this case it is the Financial Commissioner, Revenue. The sanction could alone have been issued by the said authority and sanction issued by the Government in this case is illegal and without jurisdiction and accordingly the proceedings initiated on the basis of such an illegal sanction stand vitiated in the eyes of law and consequently the entire proceedings deserve to be quashed. It was also argued that learned trial Judge could not make any observations about the colour of the preserved liquid at this premature stage. It was also argued that learned trial Judge could not make any observations about the colour of the preserved liquid at this premature stage. Learned counsel in support of his contention referred to and relied upon case titled Vinayak V. Joshi (Appellant) v. The State of Punjab (Respondent) reported in AIR 1968 Punjab 120 and case titled Govt. of Andhra Pradesh and another (Appellant) v. N. Ramanaiah (Respondent) reported in (2009) 2 Supreme Court Cases (L&S) 289. 8. It will be appropriate to take second issue first. The learned trial Judge in the impugned order has not recorded any finding as to whether the liquid in the seized bottles has turned colourless after passage of time, but has specifically stated that same cannot be decided at this stage. The learned Trial Judge has thus left the issue open to be decided on the conclusion of the trail when the case is finally heard. Learned counsel for petitioner submitted that in view of the observations made by the learned trial Judge in the impugned order he does not challenge the order on this count and would raise issue at the time of the final hearing of the case. The first issue raised by the learned counsel for the petitioner is of fundamental importance to the case as the issue touches the jurisdiction of the trial Court to take cognizance of the offence. If the sanction is held to be invalid, then taking of the cognizance on the basis of such invalid sanction will be rendered illegal. The contention raised by the learned counsel for petitioner thus requires consideration. Section 6 of the Act of 2006 provides that no court shall take cognizance of an offence mentioned therein except with the previous sanction: "(1). The contention raised by the learned counsel for petitioner thus requires consideration. Section 6 of the Act of 2006 provides that no court shall take cognizance of an offence mentioned therein except with the previous sanction: "(1). in the case of a person who is employed in connection with the affairs of the State and is removable from his office save by or with the sanction of the Government; and (2) in the case of any other person, by the authority competent to remove him from his office." Section 6 of Act of 2006 is reproduced as under: "Previous sanction necessary for prosecution: No court shall take cognizance of an offence punishable under Section 161 or section 165 or section 167-A of the State Ranbir Penal Code, Samvat 1989 or under sub-section (2)or sub-section (3) of section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction- a. in the case of a person who is employed in connection with the affairs of the State and is not removable from his office save by or with the sanction of the Government. b. In the case of any other person, of the authority competent to remove him from his office." 9. Petitioner, at the time of commission of alleged offence, was substantively holding the post of Patwari in the Revenue Department. The appointing authority for the Patwari, as per the submissions of learned counsel for petitioner is Financial Commissioner Revenue. So in the wisdom of learned Counsel in terms of clause (b) of Section 6 of Act of 2006, it is only the Financial Commissioner, who could issue the sanction for prosecution against the petitioner. Learned counsel in support of this contention relied upon aforementioned judgments. 10. In Vinayaks case, sanction for prosecution was issued by Division Medical Officer whereas appointment was made by the Divisional Personal Officer in exercise of powers delegated by General Manager. In that case it was held that Divisional Medical Officer though equal in rank with that of the Divisional Personal Officer but there being no delegation of powers in his favour could not issue the sanction so was held to be illegal. Admittedly, sanction for prosecution was issued by an authority not recognized by the Prevention of Corruption Act. The facts of said case are materially different from the facts of the case in hand. Admittedly, sanction for prosecution was issued by an authority not recognized by the Prevention of Corruption Act. The facts of said case are materially different from the facts of the case in hand. In this case the sanction is not given by an authority who was not clothed with the powers to issue same by any Act or Rule. In the present case the sanction has been issued by the Government for launching the prosecution against the petitioner. The judgment pressed into service does not support the contention raised by learned counsel for petitioner. 11. In the Government of Andhra Pradeshs case the punishment of dismissal was inflicted on the employee by the Government. An issue was raised by the employee that in terms of the rules governing his service conditions Government could not inflict punishment of dismissal upon him as the authority for inflicting such punishment was provided in the Rules. The High Court upheld the contention raised by the employee and quashed the dismissal order. The Rules provided that the authority competent to impose the penalty shall be appointing authority or any authority to which it is subordinate. The argument was raised that the employee has been deprived of his forum of appeal and right to file appeal against the order of dismissal. The Honble Supreme Court negatived the contention by holding that the Government was competent to inflict the punishment of dismissal on the employee, as the appointing authority was subordinate to Government. The said judgment thus does not support the contention raised by the learned counsel for petitioner. 12. In terms of Section 43 of Constitution of Jammu and Kashmir, Governor is authorized to make rules for the more convenient transaction of the business of the Government of the State and for all allocation of business among Ministers. These Rules are called rules of business. In terms business rules and schedule appended thereto, the power to grant sanction for launching prosecution under the Act of 2006 rests with the Chief Minister. The issue is raised that the Government could not issue sanction for launching the prosecution in view of Clause (b) of Section 6 of the Act of 2006. This argument is to be considered in the backdrop of provision of Section 126 of Constitution of J&K. The Constitution which is given by people to themselves is supreme law. The issue is raised that the Government could not issue sanction for launching the prosecution in view of Clause (b) of Section 6 of the Act of 2006. This argument is to be considered in the backdrop of provision of Section 126 of Constitution of J&K. The Constitution which is given by people to themselves is supreme law. The sub Section 1 of Section 126 of Constitution of J&K provides that no person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he has been appointed. The Section 126 of the Constitution of J&K is reproduced as under: "Dismissal reduction or removal of persons employed in civil capacities under the State -- (1) No person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed." 13. The provision of Article 311 of Constitution of India is almost in parametrie with Sub Section 1 of Section 126 of Constitution of J&K. The Article 311 (1) of Constitution of India is reproduced as under: "311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or State: (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed" 14. The embargo is placed by Sub Section 1 of Section 126 for exercising of powers by an authority who is subordinate to the authority empowered to remove an employee from service. No such embargo is placed on the power of the superior authority which in this case is the Government. At paragraph 15 in Government of Andhra Pradeshs case, the Honble Supreme Court has held that it is to be borne in mind that Article 311 (1) does not command that the dismissal must be by the very same authority who made the appointment or by its direct superior. At paragraph 15 in Government of Andhra Pradeshs case, the Honble Supreme Court has held that it is to be borne in mind that Article 311 (1) does not command that the dismissal must be by the very same authority who made the appointment or by its direct superior. The dismissal order can either be issued by the appointing authority or by any other authority to which the appointing authority is subordinate. Paragraph 15 of said judgment is reproduced as under: "One more aspect that may have to be borne in mind is that Article 311(1) does not command that the dismissal must be by the very same authority who made the appointment or by its direct superior. The dismissal can be either by the appointing authority or by any other authority to which the appointing authority is subordinate. The dismissal of a civil servant must comply with the procedure laid down in Article 311." 15. Admittedly, in this case Financial Commissioner, Revenue who is said to be an authority competent to appoint and remove Patwari from services is subordinate to Government. The Government in view of law laid down by the Honble Supreme Court in the judgment (supra) is thus the authority who could issue sanction for launching the prosecution against the petitioner. The Government runs its affairs through Business Rules. The competent authority has thus issued sanction for prosecution of petitioner. 16. Mr. Magray, learned Sr. AAG while submitting that the Government is competent to issue sanction for launching prosecution has referred to and relied upon case titled Sheikh Ab. Hafiz v. State and ors reported in 1999 SLJ 537 and paragraph 10 of the said judgment is reproduced as under: "Under Section 6 of the Prevention of Corruption Act the authority competent to accord sanction for prosecution is the one which is competent to remove the public servant from office. The petitioners argument is that he being removable from the officer by the Administrative Head o his department the valid sanction for his prosecution could have been issued by that Head. The petitioners argument is that he being removable from the officer by the Administrative Head o his department the valid sanction for his prosecution could have been issued by that Head. Assuming for arguments sake that the Administrative Head of the Finance Department, where the petitioner held the office at the relevant time, could have removed him from office yet the Government being an authority higher than that Administrative Head of the Finance Department, it, the Govt., has ample power to remove the petitioner from office and consequently the government also is competent to accord sanction for his prosecution. It is settled by the decision in case P.S. Sushil Behanot and ors v. State (1982 CLR 677) that the competence of the authority to grant sanction in terms of clause (b) of Section 6 of the Act has to be determined with reference to Sub -- Section (1) to Section 126 of the State Constitution and consequently the authority granting the sanction should either be equal to or higher in rank than the appointing authority, rank having the reference to the date of appointment of the Government servant sought to be prosecuted under the Act. The Government being a higher authority the sanction granted by it to prosecute the petitioner cannot be said on that ground to be invalid." 17. Learned counsel for respondents also referred to and relied upon case titled Ghulam Rasool Shah. v. State and ors reported in (2004) 11 SLJ 567. In both the said two judgments this Court has held that Government has power to issue sanction for launching prosecution under the Act of 2006 and negatived the contention, as raised in this case. For the above stated reasons, the sanction issued by the Government is held to be a valid sanction in law. 18. For the above stated reasons, this petition, being meritless, is accordingly dismissed. Petitioner to appear before the learned trial Judge on the date fixed by it and learned trial judge is requested to conclude the trail within reasonable promptitude. Registrar Judicial to send copy of this judgment to the Chief Secretary of J&K State for consideration of issue raised in paragraph 3 of the judgment.