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2011 DIGILAW 684 (UTT)

SATYA PRAKASH SHARMA v. STATE OF UTTARAKHAND

2011-11-18

SERVESH KUMAR GUPTA

body2011
JUDGMENT 1. By way of this Criminal Misc. Application moved under Section 482 Cr. P. C., a prayer has been advanced to quash the entire proceedings of Sessions Trial No. 60 of 2006 State Vs. Satya Prakash Sharma initiated against him by order of cognizance dated 29.06.2006 passed by learned Special Judge, Dehradun for the offence under Section 7/13-1D read with Section 13 (2) of the Prevention of Corruption Act, 1988 (for brevity, hereinafter called as "Act") pertaining to Police Station Gangnahar, Roorkee, District Haridwar. 2. Having heard learned counsel for the petitioner and learned Brief Holder for the State, the facts shorn off unnecessary details are that Satya Prakash Sharma was posted as ministerial staff in the office of Inspector General, Prison, Uttarakhand at Dehradun and Raj Bahadur Saini was working as Reserved Guard, posted in Sub Jail, Roorkee, District Haridwar. Satya Prakash Sharma allegedly intimidated Raj Bahadur Saini, by his visit to Roorkee, that latter's transfer to Almora is under consideration on the basis of some complaint received in the office of Inspector General, Prison. Receiving this information, Raj Bahadur Saini became perplexed and requested petitioner Satya Prakash Sharma to manage the affairs, in such a way, so as to absolve him from the trouble of transfer. Satya Prakash Sharma allegedly demanded Rs. 5000/- for this task, which was acceded by Raj Bahadur Saini to be paid on 14.12.2005 at the return of Satya Prakash Sharma to Roorkee. Probably, Satya Prakash Sharma used to run, to and fro, from Roorkee to Dehradun because Roorkee was a place where family of petitioner was settled. 3. Meanwhile, Raj Bahadur Saini arranged to invoke the cognizance of Anti Corruption Authorities, which paved the way to raid Satya Prakash Sharma, at the time of receiving illegal gratification. Thus, Satya Prakash Sharma caught red handed by Anti Corruption Officials on 14.12.2005 at 08.40 p.m. in front of Sub Jail, Roorkee when he was receiving the chemical quoted currency notes from Raj Bahadur Saini. After registration of the case, which resulted into submission of the chargesheet as stated above, learned Judge, Anti Corruption took cognizance impugned. The submission of the chargesheet and order of cognizance is under challenge by Satya Prakash Sharma. 4. Learned counsel for the petitioner has assailed the prosecution on two scores. After registration of the case, which resulted into submission of the chargesheet as stated above, learned Judge, Anti Corruption took cognizance impugned. The submission of the chargesheet and order of cognizance is under challenge by Satya Prakash Sharma. 4. Learned counsel for the petitioner has assailed the prosecution on two scores. Firstly, it is argued that petitioner Satya Prakash Sharma, at the time of being raided, was under the consideration for cadre allocation to Uttar Pradesh and this cadre was finally allocated to him on 06.03.2006. He was relieved on 20.03.2006 for Uttar Pradesh where he joined his duties on 21.03.2006 at Headquarter Lucknow wherefrom he was posted to Ghaziabad District Prison in the state of suspension. The sanction to prosecute him was accorded by Inspector General, Uttarakhand under Section 19 of the Act on 31.05.2006 and later, the same was corrected on 23.06.2006. The contention of learned counsel for the petitioner is that petitioner, after having been relieved from Uttarakhand and joined the duties at Uttar Pradesh (may be in the state of suspension), then Inspector General, Uttarakhand was not the competent authority to accord the sanction, as stated above. So in want of valid sanction, as envisaged by Section 19 of the Act, the prosecution cannot be launched against the petitioner. Learned counsel has vociferously argued that Inspector General, Uttarakhand was not a competent authority to grant sanction for launching the prosecution against Satya Prakash Sharma. This argument has been countered by learned Brief Holder by adumbrating the provisions of Sub-Sections 2 and 3 of Section 19 of the Act, which read as under: "(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub- section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974.),- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings." 5. At the same time, attention of this Court has been drawn towards the clarification of word "error" which has been elucidated in the explanation attached with the bottom of this Section. The explanation reads that for the purpose of this Section "error" includes "competency of the authority to grant sanction". Construing the above provisions, it is abundantly clear that prosecution launched under this Act cannot be jeopardized on the basis of any error in the competency of the Authority to grant sanction, unless in the opinion of the Court, a failure of justice has in fact been occasioned thereby. Sub-Section 2, as has been quoted above, makes it amply clear that sanction to prosecute such a 'delinquent will be given by Government or Authority, which would have been competent to remove such a public servant from his office at the time when the offence was alleged to have been committed. Undoubtedly, Satya Prakash Sharma, on 14.12.2005 could be removed from service by Inspector General, Uttarakhand and in exercise of his administrative powers, he placed him under suspension and since then he is in such a state. After having been relieved from State of Uttarakhand and joining in Uttar Pradesh, latter probably has not even dealt with his matter regarding the service or salary condition in the state of suspension, as has been reflected by letter of Inspector General, Uttarakhand dated 06.06.2007 written to Principal Secretary, Uttar Pradesh. 6. After having been relieved from State of Uttarakhand and joining in Uttar Pradesh, latter probably has not even dealt with his matter regarding the service or salary condition in the state of suspension, as has been reflected by letter of Inspector General, Uttarakhand dated 06.06.2007 written to Principal Secretary, Uttar Pradesh. 6. The Hon'ble Apex Court in Criminal Appeal no. 992 of 2007 titled as M.P. State Vs. Pradeep Kumar Gupta has held as under: "It is clear from the aforesaid Rules that the State Govemment is the Appointing Authority and the State Government can impose on the members of the State Service penalties mentioned in clause (i) to (vi) of such Rule. Therefore, State Government being the Appointing Authority and being the Authority to impose punishment on the employee is also the Authority who can remove an employee from the service. " 7. So in view of this above precedent also, the Inspector General, Uttarakhand being the Appointing Authority of Satya Prakash Sharma, is 'State Government' to accord sanction, as has been envisaged under Section 19 of the Act. This way, argument advanced by learned counsel for the petitioner is not tenable and it is a web of futile analysis to determine validity or invalidity of sanction in the instant case. 8. Secondly, it is argued that as per Section 17 of the Act, the competent authority, to investigate the matter, is Deputy Superintendent of Police while in the instant case, matter has been investigated by two Police Inspectors. So this way, entire investigation is vitiated. Per contra, learned Brief Holder drawn attention of this Court towards first proviso of Section 17 which reads as under: "Provided that if a police officer not below the rank of an Inspector of Police is authorized by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefore without a warrant." 9. He has also relied upon the notification issued by Government of Uttar Pradesh, which reads as under: "In exercise of the powers under the first proviso to Section 17 of the Prevention of Corruption Act, 1988 (Act No. 49 of 1988), read with Section 21 of the General Clauses Act 1897 (Act No. 10 of 1897) and in supersession of Government Notification No. 2565/XXXIX 4-93-44(33)-81, dated October 14, 1993, the Governor is pleased to authorize Inspectors of Police in the Uttar Pradesh, Vigilance Establishment for the purposes of Section 17 of the said Act of 1988." 10. Learned counsel for the petitioner has drawn attention of this Court towards Section 2 (F) of the U.P. Re-organizationAct, 2000 (Act No. 29 of 2000). He has argued that although the notification issued by Government of U. P. is well included in the definition of "law" but by virtue of Section 87 of U.P. Re-organization Act, 2000 no notification, as prevalent in Uttar Pradesh is applicable to Uttarakhand, if it has not been adapted before the expiry of two years from the appointed day. Needless to mention that appointed day for State of Uttarakhand is 09.11.2000 (the day when State of Uttarakhand was carved out from State of U.P.). This argument of learned counsel does not hold water in view of Section 88 of the U. P. Re-organization Act, 2000, which reads as under: "88. Power to Construe Laws - Notwithstanding that no provision or insufficient provision has been made under Section 87 for the adaptation of a law made before the appointed day, any court, tribunal or authority, required or empowered to enforce such law may,' for the purpose of facilitating its application in relation to the state of Uttar Pradesh or Uttaranchal, construe the law in such manner, without affecting the substance, as may be necessary or proper in regard to the matter before the court, tribunal or authority." 11. Learned counsel for the petitioner has relied upon the precedent of this Court in the case of Yogendra Nath Arora Vs. State of Uttaranchal reported in 2006 (2) UD 640. I have perused the ratio laid down by the learned Single Judge. Learned counsel for the petitioner has relied upon the precedent of this Court in the case of Yogendra Nath Arora Vs. State of Uttaranchal reported in 2006 (2) UD 640. I have perused the ratio laid down by the learned Single Judge. But this case is not attracted in the facts of the present one, for the reason that learned Single Judge was of the view that if DGM coming from Uttar Pradesh on deputation to State Industrial Development Corporation, popularly known as SIDCUL and worked for the period w.e.f. 23.01.2003 to 30.06.2004 and he was trapped during this period for illegal gratification, then competent authority for the purpose of granting the sanction under Section 19 of the Act was Uttar Pradesh and not State of Uttarakhand. So this ratio is not relevant and applicable in the present case because that DGM was on deputation to SIDCUL and after expiry of his term he was repatriated to Uttar Pradesh. Further, even during this tenure as aforementioned his services were removable by Government of Uttar Pradesh and not by Government of Uttarakhand. So in that case proper authority to grant sanction under Section 19 of the Act was State of Uttar Pradesh. The position is quite otherwise in the instant case, because on the date of incident when the petitioner was caught red handed he was not on deputation in Uttarakhand but a regular employee and his services were removable by administrative disciplinary action to be taken by Inspector General, Prison, Uttarakhand. 12. In this panoptic view and discussion as above, the Court feels that this petition is bereft of merits and deserves to be dismissed. The petition is, accordingly, dismissed.