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2012 DIGILAW 1766 (PNJ)

Gursewak Singh v. State of Punjab

2012-12-06

SABINA

body2012
JUDGMENT Mrs. Sabina, J.: - This petition has been filed under Section 401 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) challenging order dated 19.3.2010, whereby cancellation report presented by the vigilance department was not accepted by the Special Judge. 2. Learned counsel for the petitioner has submitted that the prosecuting agency had sought sanction for prosecution of the petitioner from the competent authority. After due application of mind the competent authority vide order dated 28.5.2009 (Annexure P-2) declined to grant sanction for prosecution of the petitioner. Thereafter, prosecution again moved to the competent authority for grant of sanction for prosecution of the petitioner. Vide order dated 3.8.2009 (Annexure P-3), the earlier decision dated 28.5.2009 (Annexure P-2) for not granting sanction for prosecution of the petitioner was upheld. The Special Judge had erred in basing reliance on the decision of the Apex Court in Prakash Singh Badal 2007 (1) RCR (Criminal) 1. The decision in the said case was not applicable to the facts of the present case. In support of his arguments, learned counsel has placed reliance on the decision of the Apex Court in the State of Karnatka vs. Ameer Jan [2007(4) Law Herald (SC) 3342] : 20076 (4) RCR (Criminal) 375, wherein it was held as under:- “Order granding sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority.” 3. Learned State counsel, on the other hand, has submitted that no sanction for prosecution of the petitioner was required under Section 197 (2) Cr.P.C. 4. In the present case, prosecution story, in brief, is that on 17.12.2008, complainant had got recorded his statement before the Vigilance officials with regard to demand of ‘ 10,000/- towards bribe by the petitioner for change of the transformer. Thereafter, a raid was organised and the petitioner was apprehended with the tainted currency notes. FIR No. 16 dated 17.12.2008 was registered against the petitioner at Police Station Vigilance Bureau Bathinda Range Bathinda under Sections 7, 13 (2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’). 5. During investigation, the Vigilance Department sought permission from the competent authority for sanction for prosecution of the petitioner. The competent authority before passing the order dated 28.5.2009 (Annexure P-2), declining to grant sanction for prosecution of the petitioner, inquired into the matter. 5. During investigation, the Vigilance Department sought permission from the competent authority for sanction for prosecution of the petitioner. The competent authority before passing the order dated 28.5.2009 (Annexure P-2), declining to grant sanction for prosecution of the petitioner, inquired into the matter. The said inquiry report has been placed on record as Annexure P-1. A perusal of the same reveals that it was found during inquiry that the petitioner had been falsely involved in this case. On verification, it was found that complainant Kulbir Singh had never moved any application for less voltage on his motor. Rather there was more load on the motor of the complainant. It also transpired during inquiry that the petitioner had remained busy on 16.12.2008 in clearing the supply of some of the area of Kokhar Feeder and had not visited the office. The said fact was duly established from the log sheet of the grids. The Superintending Engineer, Distribution Divison Bathinda vide order dated 28.5.2009 (Annexure P-2), therefore, declined to grant sanction for the prosecution of the petitioner. The Deputy Chief Engineer, Distribution Division, Bathinda vide order dated 3.8.2009 (Annexure P-3) upheld the order passed by the Superintending Engineer, declining sanction for prosecution of the petitioner. Thereafter, cancellation report was submitted by the Vigilance Department as the sanction for prosecution of the petitioner had been declined by the competent authority. 6. Learned Special Judge, after noticing all the facts, based reliance on the decision of the Apex Court in the case of Prakash Singh Badal (supra) and declined to accept the cancellation report. Learned Special Judge came to the conclusion that sanction for prosecution of the petitioner was not necessary under Section 197 (2) Cr.P.C.. 7. 6. Learned Special Judge, after noticing all the facts, based reliance on the decision of the Apex Court in the case of Prakash Singh Badal (supra) and declined to accept the cancellation report. Learned Special Judge came to the conclusion that sanction for prosecution of the petitioner was not necessary under Section 197 (2) Cr.P.C.. 7. Section 19 of the Act reads as under:- “Previous sanction necessary for prosecution .- (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 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 Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (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. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.— For the purposes of this section, — (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.” 8. Thus, as per the above provision, no court shall take cognizance of offence punishable under Sections 7, 13 of the Act alleged to have been committed by the public servant except with the previous sanction of the competent authority. Thus, it is for the sanctioning authority to examine all the relevant facts/ material and evidence on record before granting the sanction for prosecution of the concerned public servant. Before the order dated 28.5.2009 (Annexure P-2) was passed, the matter was duly inquired by the department at its own level and it was found that the allegations levelled by the complainant were false. Hence, the sanction for prosecution of the petitioner was declined by the competent authority. 9. Before the order dated 28.5.2009 (Annexure P-2) was passed, the matter was duly inquired by the department at its own level and it was found that the allegations levelled by the complainant were false. Hence, the sanction for prosecution of the petitioner was declined by the competent authority. 9. In the facts and circumstances of the present case, the decision given by the Apex Court in Prakash Singh Badal’s case (supra) would not be applicable as the facts of the said case were different. 10. In the present case, petitioner is a public servant and the competent authority, after duly considering all the materials on record and after due application of mind, has declined to grant sanction for prosecution of the petitioner. In the present case, petitioner is sought to be prosecuted under Section 7, 13 of the Act. As per Section 19 of the Act, previous sanction of the competent authority is necessary for proceeding against a public servant. In the absence of sanction for prosecution of the petitioner, the Special Judge cannot take cognizance of the matter. In these circumstances, learned Special Judge, while passing the impugned order, has, thus, committed patent error while declining to accept the cancellation report. 11. Accordingly, this petition is allowed. Impugned order dated 19.3.2010 is set aside. Consequently, the cancellation report submitted by the Vigilance department is accepted.