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2012 DIGILAW 323 (JK)

Saad Parvez & Anr. v. State of J&K & Ors.

2012-06-07

MOHAMMAD YAQOOB MIR

body2012
1. Tenders were floated by the Directorate of Technical Education, J&K on 15th July, 1997. The tender documents received were send to the Regional Engineering College for technical/expert opinion. The opinion was tendered by the petitioners and received by the State Level Purchase Committee (SLPC) on 9th September, 1997. Consequent thereto, Digital Toe Aligner (DTA) were purchased in the year 1997-98 by the respondent No. 2 to 11. The actual cost of the units allegedly was Rs. 14,40,000/but supplier has been paid Rs. 27,20,000/, therefore, loss of Rs. 12,80,000/has been caused to State exchequer as has surfaced on completion of investigation of the case. 2. Petitioners along with respondents No. 2 to 11 were alleged to have entered into a conspiracy, in pursuance whereof, loss has been caused to the State exchequer. 3. On completion of investigation, it was established that the petitioners and respondents No. 2 to 11 have committed offences punishable under Section 120-B RFC, Section 5(1)(d) read with Section 5(2) of J&K Prevention of Corruption Act, 2006, accordingly case was processed for obtaining sanction. Sanction has been granted for prosecution in terms of Section 6 of the Prevention of Corruption Act vide Govt. order No. 75-G AD(Vig) of 2007 dated 18.10.2007. Thereafter charge sheet (challan) has been presented before the Court of Special Judge, Anti-corruption, Kashmir. 4. The trial court pursuant to order dated 09.06.2009 framed charge against the accused for the commission of above referred offences. Aggrieved by the order petitioners have filed the instant petition seeking quashment of the same. 5. It is contended by the learned counsel for the petitioners that at the relevant time petitioners were faculty members of Regional Engineering College (REC) which is now known as National Institute of Technology (NIT). The competent authority to grant sanction for prosecution of petitioners was the Board of Governors of REC whereas sanction for prosecution, amongst others as against the petitioners, has been granted by the Government of Jammu & Kashmir which is not a competent authority, therefore, such sanction as against the petitioners is no sanction in the eye of law. Therefore, in absence of sanction trial court was not competent to take cognizance as against the petitioners. 6. Mr. Therefore, in absence of sanction trial court was not competent to take cognizance as against the petitioners. 6. Mr. N. H. Shah, learned Deputy Advocate General, appearing for respondent No. 1, projected that the sanction has been granted by the Government, its validity or invalidity can be looked into only during trial. At the stage of framing or otherwise of the charge this ground is not open to be raised. In support of this contention has relied on the judgment rendered by the Hon'ble Apex Court in the case captioned Dinesh Kumar v. Chairman Airport Authority of India & anr (2012 Cri. L. J 699) 7. In the reported judgment in para 10 what has been held in judgment Prakash Singh Badal & anr (AIR 2007 SC 1274) has been quoted. Para 48 reads as under: "48. The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial." 8. For appreciating the controversy, it shall be quite appropriate to quote para 11 of the reported judgment:- "11. While drawing a distinction between the absence of sanction and invalidity of the sanction, this Court in Prakash Singh Badal expressed in no uncertain terms that the absence of sanction could be raised at the inception and threshold by an aggrieved person. However, where sanction order exists but its legality and validity is put in question, such issue has to be raised in the course of trial. Of course, in Prakash Singh Badal, this Court referred to invalidity of sanction on account of non-application of mind. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorized or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. In our view, invalidity of sanction where sanction order exists, can be raised on diverse grounds like non-availability of material before the sanctioning authority or bias of the sanctioning authority or the order of sanction having been passed by an authority not authorized or competent to grant such sanction. The above grounds are only illustrative and not exhaustive. All such grounds of invalidity or illegality of sanction would fall in the same category like the ground of invalidity of sanction on account of non-application of mind — a category carved out by this Court in Prakash Singh Badal, the challenge to which can always be raised in the course of trial." So it is clear that the question of absence of sanction is to be agitated at threshold but when sanction order exists, its legality and validity has to be raised in the course of trial. It is also made clear by the Hon'ble Apex Court that invalidity of sanction, where sanction order exists, can be raised on diverse grounds, such as non availability of material before the sanctioning authority, bias of the sanctioning authority, sanction having been passed by an authority not authorized to grant such sanction. 9. The question in the instant case is as to whether the sanction as granted and available on record can be termed to be 'absence of sanction' vis-a-vis petitioners. If the answer will be in affirmative, then question agitated has to be considered at threshold. In this connection Section 6 of the Prevention of Corruption Act is relevant to be quoted: "6. Previous sanction necessary for prosecution. No court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 or section 167-A of the State Ranbir Panel 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. Explanation. Explanation. — where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (1) should be given by the Government or any other authority, such sanction shall be given by the 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. (c) in the case of person who is or has been a member of the Council of Ministers other than the Chief Minister, of the Governor on the advice of the Chief Minister; (d) in the case of person who is or was been a Chief Minister, of the Governor; (e) in the case of a person who is or has been a member of either House or the State Legislature, of the Speaker of the Legislative Assembly or the Chairman of the Legislative Council as the case may be." 10. In the case of petitioners, Section 6(b) is applicable because admittedly petitioners are the employees of REC (now NIT). The authority competent to remove them from the office is the Board of Governors who had to grant the requisite sanction for prosecution, Government had no authority at all to grant sanction. Granting of sanction by the Government, on the face of it being impermissible and without authority, therefore, it can be safely termed to be 'absence of sanction' as against the petitioners. 11. The memorandum of association and rules relating to establishment of Regional Engineering College Society, Srinagar, copy of which has been produced, clearly provide powers and functions of the Board of Governors. Item 15 of the said memorandum provides as to what are the powers and functions of the Board. It is provided that the Board has the power to appoint and control such staff as may be required for efficient management of the affairs of the College and to regulate their recruitment and conditions of service. Regulation 5(a) of the service bye-laws of REC provide that the "Board" means the "Board of Governors" of the Regional Engineering College Society, Srinagar. Regulation 5(d) provides that "Competent authority means the Board of Governors of the Regional Engineering College Society, Srinagar and includes such officer of authority to whom the Board may authorize for all or any of the purposes of these bye-laws. Then Regulation No. 6 provides for appointment of staff. Regulation 5(d) provides that "Competent authority means the Board of Governors of the Regional Engineering College Society, Srinagar and includes such officer of authority to whom the Board may authorize for all or any of the purposes of these bye-laws. Then Regulation No. 6 provides for appointment of staff. Regulation No. 15 to 19A provides that the Board has power to terminate services of any employee. 12. When bye-laws are in place and provide that the Board of Governors is the competent authority and also provide mode and method of appointment and removal from service of the staff of the College, then it becomes absolutely clear that it is only the Board of Governors which is competent to grant sanction for prosecution vis-a-vis petitioners as being faculty members of the said College. When position is so clear, grant of sanction by the Government as against the petitioners is no sanction in the eye of law and such defect if not cured at the beginning will render the trial of the case ultimately as itious. 13. Contention of the learned Deputy Advocate General, Mr. Shah, that since sanction order exists, so there is no question of absence of sanction, so objection is open to be raised during trial, pales into insignificance because validity and invalidity of sanction, application of mind, competence of the officer, these are the matters which are in the realm of matters to be looked into during trial but the sanction order as it exists cannot be termed as a sanction in any manner as against the petitioners because such type of sanction as against the petitioners cannot be validated subsequently. It will be a defect which will render the trial against the petitioners, in ultimate analyses, useless, because failure of the case on such count as against the petitioners will be inevitable. 14. The sanction order though exist on the records by no stretch of imagination can be termed to be a sanction for prosecution vis-a-vis petitioners and has to be termed as "no sanction" so shall fall within the ambit of "absence of sanction" and open to be agitated at threshold, as has been done. 15. 14. The sanction order though exist on the records by no stretch of imagination can be termed to be a sanction for prosecution vis-a-vis petitioners and has to be termed as "no sanction" so shall fall within the ambit of "absence of sanction" and open to be agitated at threshold, as has been done. 15. The cognizance taken against the petitioners in absence of sanction is illegal being contrary to the very beginning words of Section 6 of the Prevention of Corruption Act which bars taking of cognizance of the offence, allegedly committed, in absence of previous sanction. The cognizance taken as against the petitioners is not in consonance with law, therefore, charge framed against them pursuant to impugned order dated 09.06.2009 is unsustainable, as such, to the extent it pertains to the petitioners, is set aside leaving it open to the respondent No. 1 to obtain sanction as against the petitioners from the competent authority which earlier was the Board of Governors of Regional Engineering College now National Institute of Technology (NIT). On obtaining and production of such sanction, trial court shall proceed afresh against the petitioners. 16. Petition accordingly succeeds. 17. Copy of the order be send to the trial court for information.