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2012 DIGILAW 1042 (RAJ)

Vijay Kumar Gakkhar v. State of Rajasthan

2012-04-23

MAHESH CHANDRA SHARMA

body2012
Hon'ble SHARMA, J.—By filing instant criminal misc. petition under Section 482 Cr.P.C. the accused petitioner has challenged the order dated 20.10.2011 passed by learned Special Judge (Anti Corruption), Jaipur (Rajasthan) (for short `the learned trial Court') in regular case No. 4/2008. 2. The facts of the case in nutshell are that an FIR was lodged by Dy.S.P. (Anti Corruption) Tonk, Rajasthan upon the complaint of one Mr. Badri Lal Meena alleging in the FIR No. 272/1999 that upon his complaint a raid was conducted on the residential house of the petitioner on 30.11.1999, Rs. 3,000/- was recovered from the house of the petitioner and such amount was taken by the petitioner from him as bribery with regard to the electric connection for his tube well. It was also mentioned in the FIR that a Chemical process was adopted by the raid party, the hand of the accused petitioner was washed by using the sodium carbonate power, the colour of the water was changed, the currency note was recovered in the book which was lying in the open almiraha and thereafter the aforesaid currency note was seized. 3. After making a detailed inquiry, the Superintendent of Bureau (II) Anti Corruption Bureau, Jaipur (for short 'the ACB') sent a letter dated 1.12.2000 to the Managing Director, Jaipur Vidhut Vitaran Nigam Limited, Rajasthan Jaipur (for short `the JVVNL') annexing the ACB report, list of document etc., seeking prosecution sanction against the accused petitioner. The Dy. Secretary (Admn.) replied to the aforesaid letter vide its letter dt. 19.3.2001 mentioning therein that in this case the prosecution sanction cannot be accorded. 4. Again on 18.5.2001 the Inspector General of Police-II, ACB, Jaipur sent a letter dt. 18.5.2001 to the Chief Managing Director, JVVNL, Jaipur. The Dy. Secretary (Admn.) replied to the aforesaid letter vide its letter dated 13.6.2001 that refusal of prosecution sanction earlier was justified. 5. On 29.6.2001 the Secretary to the Government, Department of Engergy, Jaipur, sent a letter, the operative part of which runs as under: "You are therefore requested kindly look into the matter personally and review the decision taken in accordance with the instructions of DOP dated 30.5.2001 and intimate to this department at the earliest possible." 6. Smt. Seema Singh Dy. On 29.6.2001 the Secretary to the Government, Department of Engergy, Jaipur, sent a letter, the operative part of which runs as under: "You are therefore requested kindly look into the matter personally and review the decision taken in accordance with the instructions of DOP dated 30.5.2001 and intimate to this department at the earliest possible." 6. Smt. Seema Singh Dy. Secretary (Admn.) gave following reply to the aforesaid letter: "In reference to your above cited letter it is intimated that prosecution sanction has already been refused by the competent authority and information of this effect has also been sent to you." 7. Again the Superintendent of Police (2) ACB, Jaipur sent a letter dated 28.2.2002 to the Dy. Secretary (Admn.) JVVNL Jaipur, by which it sought prosecution sanction against the petitioner and ultimately the prosecution sanction against the accused petitioner was accordance on 20.8.2002. 8. After investigation the ACB submitted charge-sheet in the matter. Thereafter, the accused petitioner moved an application before the learned trial Court praying that the prosecution sanction in the matter has been obtained by the ACB from the department illegally and forcibly under sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short `the Act of 1988'). The learned trial court after hearing dismissed the application vide order dated 20.10.2011 by passing a detailed order. 9. The accused petitioner being dissatisfied with the order dated 20.10.2011 passed by the learned trial Court, has preferred instant criminal misc. petition under Section 482 Cr.P.C. before this Court. 10. Learned counsel for the accused petitioner submits that the order dated 20.10.2010 passed by the learned trial Court deserves to be quashed and set aside on the count that the learned trial Court while passing the impugned order has not exercised its jurisdiction so vested in it. The prosecution sanction, which is in question, once was refused by the competent authority twice, there was no occasion for the same authority to accord the sanction on the same ground. In the instant matter the prosecution sanction was not accorded by the department by applying its independent mind, rather it was accorded under the pressure of Department of Home. Totally false case has been prepared by the Department of ACB and it is a futile exercise of the learned trial court after a lapse of 10 years. Hence, the prosecution sanction is absolutely illegal and against the law. Totally false case has been prepared by the Department of ACB and it is a futile exercise of the learned trial court after a lapse of 10 years. Hence, the prosecution sanction is absolutely illegal and against the law. 11. In support of his case, the learned counsel for the accused petitioner has placed reliance upon the following judgments: 1. Gopinath Choudhary vs. State of Bihar and others, (2000) 9 SCC 53 ; 2. Subhash Bhatia and others vs. State of Rajasthan and others: 2011 Cr.L.J. (NOC) 305 (Raj.); 12. On the other hand, the learned PP appearing for the State opposed the aforesaid submissions and submits that the learned trial Court has rightly passed the impugned order and no interference is required to be made in the impugned order. He submits that the order dated 13.3.2000 by which the Managing Director of JVVNL refused to grant prosecution sanction, is without application of mind. At the time of passing of the order dated 13.3.2000 the Managing Director, JVVNL, Jaipur has not considered the documents and the evidence submitted by the ACB before it. 13. He further submits that a bare perusal of the evidence available on record, it is clear that there is a clear motive on the part of the accused petitioner with regard to demand of bribe from the complainant for giving electricity connection of the well. 14. He further submits that ACB also submitted transcript of the talks to the Managing Director of the JVVNL, which took place in between the accused petitioner and the complainant regarding demand of bribe etc. Ultimately, the department after obtaining the documentary evidence, transcript etc. prima facie accorded prosecution sanction against the accused petitioner on 20.8.2002. He submits that the hand of the petitioner was washed by the raid party by using the sodium carbonate power, the colour of the water was changed, the ACB recovered the amount of bribe from the book, which is stated to be of the accused petitioner. 15. In support of his case, the learned PP has placed reliance upon the Judgment of State of Himachal vs. Nishant Sarin, Cri. Appeal No. 2353/2010. 16. 15. In support of his case, the learned PP has placed reliance upon the Judgment of State of Himachal vs. Nishant Sarin, Cri. Appeal No. 2353/2010. 16. I have heard learned counsel appearing for the accused petitioner and the learned Pp appearing for the State and perused the entire material made available to me including the judgments cited by the learned counsel for the accused petitioner and the learned PP appearing for the State. 17. A bare perusal of the facts of the case would reveal that the concerned officials of the Anti Corruption Bureau, Jaipur, sent letters number of times of the department concerned to grant prosecution sanction in the matter against the accused petitioner despite there-being sufficient evidence available on record but the department avoided to give prosecution sanction in the matter but when the officials of the Anti Corruption Bureau continuously requested the concerned authorities of the JVVNL then there was no remedy for the department to accord the prosecution sanction, and ultimately the prosecution sanction was accorded vide order dated on 20.8.2002. 18. In my considered view the learned trial court has rightly passed the order dated 20.10.2011 and no interference is required to be made in the impugned order passed by the learned trial court. The facts of the judgments which the learned counsel for the accused petitioner have cited before this Court are entirely different and do not apply to the facts of the present case. 19. In the result, this criminal misc. petition filed by the accused petitioner under Section 482 Cr.P.C. is devoid of merits and stands dismissed. However, the learned trial court is directed to conclude the trial `as early as possible.'