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2011 DIGILAW 21 (RAJ)

Avinash Mathur v. State of Rajasthan

2011-01-04

GOPAL KRISHAN VYAS

body2011
JUDGMENT Hon'ble VYAS, J.—This writ petition has come up for hearing upon the application filed by applicant Shanker Singh for impleading him as party respondent in the matter. While filing reply to the application for impleading as party respondent, it is pointed out by learned counsel for the petitioner that being the complainant of the criminal case, in which, prosecution sanction has been granted by the State Government which is under challenge in this writ petition, the applicant is not entitled to be impleaded as party because for granting prosecution sanction only competent authority has jurisdiction to apply its mind and to take decision whether sanction can be granted or not. In the case of the petitioner, the prosecution sanction has been granted by the State Government for launching the prosecution against him and, that order is under challenge in this writ petition, in which, no other than the competent authority can take decision, there is no right left with the complainant to insist the competent authority to grant prosecution sanction. 2. After considering the objection to impleadment raised by the petitioner, I am in full agreement with the contention raised by the petitioner's counsel that the complainant-applicant is not entitled to be heard in this petition because criminal case was registered against the petitioner upon his complaint and, after investigation, as per protection available to the Govern-ment employee under Section 19 of the Prevention of Corruption Act and Sec. 197, Cr.P.C. the jurisdiction with regard to grant of prosecution sanction to prosecute government employee is to be exercised independently by the competent authority of the State Government. Therefore, the application filed by the complainant for impleading him as party in this writ petition is devoid of any merit because after filing the complaint, work of the complainant comes to end, therefore, application of the applicant is hereby rejected. 3. Another application has been filed under Article 226 (3), Constitution of India for vacating the stay order granted by this Court dated 19.03.2010. During the course of arguments upon the application moved under Article 226 (3), Constitution of India, it is submitted by both the parties that the matter may be heard finally. 4. Upon request made by both the parties, arguments have been heard for final disposal of the writ petition itself. 5. During the course of arguments upon the application moved under Article 226 (3), Constitution of India, it is submitted by both the parties that the matter may be heard finally. 4. Upon request made by both the parties, arguments have been heard for final disposal of the writ petition itself. 5. The case of the petitioner is that a criminal case bearing No.313/2008 was registered against him for offences under Sections 7, 13(1) (d) and 13(2), Prevention of Corruption Act and Section 420, I.P.C. upon the complaint made by one Shanker Singh s/o Ram Singh on that basis of trap proceeding was conducted by the team of Anti Corruption Bureau, Bhilwara. As per facts of the case, a trap was conducted on 24.12.2008, in which, Rs.40,000/-as alleged bribe money was recovered from the possession of the petitioner when he was working on the post of Patrolling Officer in the Excise Department. After investigation, the matter was sent to the Excise Commissioner for granting prosecution sanction. 6. As per the petitioner, his case was initially considered by the Excise Commissioner and finding was given that no case is made out for granting prosecution sanction; the said finding was communicated to the Secretary to the Government, Finance (Revenue) Department, Jaipur in pursuance of the notification issued by the Department of Personnel dated 30.05.2001 vide communication dated 16.10.2009. The State Government while disagreeing with the conclusion of the Excise Commissioner directed the Commissioner, Excise to grant prosecution permission; and, in pursuance of the directions issued by the Government, Excise Commissioner issued impugned prosecution sanction vide Annex.-1 dated 10.02.2010, whereby, it is ordered by the Excise Commissioner that while exercising the power of the competent authority the prosecution sanction is hereby granted to file prosecution against the petitioner. The said order is under challenge in this writ petition. 7. Learned counsel for the petitioner submits that the so called notification dated 30.05.2001 issued by the Government to all the subordinate authorities is illegal because the jurisdiction for granting prosecution sanction is left to the appointing authority and none else, therefore, once the competent authority after applying its mind found that it is not fit case for granting prosecution sanction, then, at the behest of the State Government, the Excise Commissioner has illegally issued the prosecution sanction, therefore, the order Annex.-1 dated 10.02.2010 deserves to be quashed. 8. 8. In support of his contention, learned counsel for the petitioner has invited my attention towards judgment of Hon'ble Supreme Court rendered on 09.12.2010 in the case of State of Himachal Pradeswh vs. Nishant Sareen, Criminal Appeal No.2353/2010, and another judgment of the apex Court, reported in AIR 1978 SC 853, in which, it has been held by the Hon'ble Supreme Court that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. While inviting attention towards judgment of this Court in the case of Hanuman Singh Vishnoi vs. State of Rajasthan & Others, reported in 2010(2) CDR 848 (Raj.), it is submitted by learned counsel for the petitioner that the co-ordinate Bench of this Court has held that the competent authority has granted sanction in mechanical manner without application of mind and competent authority acted upon the instruction given by its superior, therefore, sanction is not legal in the eye of law. While citing the above judgments, it is submitted by learned counsel for the petitioner that prosecution sanction Annex.-1 dated 10.02.2010 is patently illegal because it has been passed at the behest of higher authorities of the Government. 9. Per contra, learned counsel appearing on behalf of the State vehemently argued that the power of granting prosecution sanction is left to the State Government and State Government while exercising the supervisory power felt necessary to issue notification dated 30.05.2001 to all the Heads of Department that after receiving the request for prosecution sanction, the matter should be referred to the Government. Therefore, in this case, the Excise Commissioner has sent communication dated 16.10.2009 while giving his opinion to the Government for taking final decision. Thereafter, the matter was again considered by the competent authority, in which, it is found that prima facie case is made out as per evidence collected in the investigation against the petitioner for launching prosecution against him. Now, prosecution sanction has been accorded by the competent authority itself after going through all material submitted before him and not at the directions of the higher authorities as stated by the petitioner in his writ petition. Now, prosecution sanction has been accorded by the competent authority itself after going through all material submitted before him and not at the directions of the higher authorities as stated by the petitioner in his writ petition. Therefore, the petitioner is not entitled to get any relief because the prosecution sanction has been granted by the competent authority on the basis of material available on record, that too, after application of mind. 10. I have consider the rival submissions made by both the parties and perused the entire record of the case. 11. It is abundantly clear from the facts that in the trap proceedings Rs.40,000/- were allegedly found in the possession of the petitioner being the bribe money and in whole of the investigation it has come out that there is prima facie case made out against the petitioner under the Prevention of Corruption Act. Upon perusal of Annex.-3, communication dated 16.10.2009, which is said to be communicated by the Excise Commissioner to the Secretary, Finance, it will reveal that in para 3, the Excise Commissioner has not only assessed the evidentiary value the evidence on record but gave finding as adjudicator of the case. In my opinion, the said finding of the Excise Commissioner was not proper, therefore, the matter was reexamined by him and, after perusing the entire evidence and discussing all the facts, the Excise Commissioner accorded prosecution sanction vide order dated 10.02.2010, Annex.-1, in my opinion, at the time of granting prosecution sanction the competent authority is required to take into consideration the facts and evidence on record. He has no power to adjudicate the matter as if he is adjudicator of the case. In the present case, as per investigation, Rs.40,000/- as alleged bribe money were found in the possession of the petitioner in the trap proceedings and this fact itself is sufficient to grant prosecution sanction because adjudication is required to be made by the criminal Court after trial as per Cr.P.C. and not by the competent authority at the time of granting prosecution sanction. 12. The State Government while exercising its jurisdiction has issued certain directions to heads of the department for checking corruption, then, it cannot be termed as illegal action of the State. More so, such action is required to be appreciated. 12. The State Government while exercising its jurisdiction has issued certain directions to heads of the department for checking corruption, then, it cannot be termed as illegal action of the State. More so, such action is required to be appreciated. In this case, the contention of the petitioner that once competent authority refused to grant the permission it cannot revise its order is not sustainable because no final order was passed by the competent authority vide communication dated 16.10.2009, only opinion was expressed; but, later on while granting prosecution sanction vide communication dated 10.02.2010 entire facts emerging in the investigation were taken into consideration and, after due application of mind, the prosecution sanction was granted by the competent authority, in which, there is no illegality. 13. It is true that as per verdict of the Hon'ble Supreme Court in the case of M.S. Gill ( AIR 1978 SC 851 ) (supra), in the Constitution Bench judgment, it is held that when a statutory functionary makes an order based on certain ground, then, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Here, in the present case, said judgment supports the case of the State and not of the petitioner because in Annex.-3, in a very casual manner, certain observations were made by the Excise Commissioner and matter was referred to the State Government. But, later on, the matter was thoroughly examined by the Excise Commissioner and it is found that there is prima facie case made out against the petitioner for launching prosecution. In this view of the matter, I see no reason to interfere in the matter because the order impugned Annex.-1 dated 10.02.2010, whereby prosecution sanction has been granted, is perfectly in consonance with law. 14. Hence, this writ petition is hereby dismissed.