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2013 DIGILAW 577 (JK)

Muzaffar Ab. Nasir v. J&K Khadi & Village

2013-09-24

Mansoor Ahmad Mir

body2013
1. The subject matter of the writ petition is an order bearing No. KVIB/ 386 of 2011 dated 21.02.2011, whereby the respondent No. 1 has granted sanction to prosecute the petitioner and other employees of the Jammu & Kashmir Khadi and Village Industries Board (for short Board) for the commission of offences punishable under section 5(2) of the Prevention of Corruption Act, Svt. 2006 read with Sections 409, 468, 419, 120-B RPC in case FIR No. 02/2001, Police Station, Vigilance Organization Kashmir, on 03.01.2001. 2. It is contended that in the year 2001, the petitioner was working as Assistant Executive Officer, KVIB, Budgam and the allegation against him and other employees was that they have disbursed loans in favour of three fictitious units. It appears that the Vigilance Organization Kashmir after concluding the investigation had submitted the report to the General Administration Department (for short GAD), wherefrom it was forwarded to the Board in the month of July, 2008. It is stated that when the petitioner and other colleagues came to know about the same, they approached the concerned authorities in the Board and discussed the matter. It is stated in the writ petition that the petitioner and his colleagues were advised to recover the amount of loan from the persons who had borrowed it or else they should themselves make good the losses. It is contended that it is at the instance of the Board, the petitioner and his colleagues had made the representation in August, 2008, and ultimately the Board recovered the amount of Rs.6,29,819/- from the petitioner and his other colleagues. It is also contended that the Board recovered more money from the petitioner and his colleagues than what was otherwise due to the Board. The break up has been given by the petitioner in paragraph (c) of the writ petition. 3. In view of the above, it was accordingly decided by the majority of the Members of the Board not to accord sanction for prosecution of the petitioner and his other colleagues with an observation to have a lenient view. It is further contended that though the Chairman of the Board accepted the majority view and agreed with the opinion of the Board Members, but, at the same time, made a communication to the GAD for necessary direction. It is further contended that though the Chairman of the Board accepted the majority view and agreed with the opinion of the Board Members, but, at the same time, made a communication to the GAD for necessary direction. It is further contended that GAD asked the Administrative Department, i.e., Industries and Commerce Department to issue sanction and in turn the Commissioner had directed the Chairman of the Board to comply with the mandate of GAD contained in letter dated 07.02.2011. 4. Learned Senior Advocate, Mr. Zaffar Shah appearing for the petitioner, contended that it was in terms of the directions of the GAD that the respondents issued sanction. It is submitted that, thus, the sanction to prosecute has been accorded not on application of mind by the competent authority, but at the directions of the GAD. It is further submitted that GAD has no power or competence to do so. It is also contended that in terms of the sub-section (4) of Section 9 of the Jammu & Kashmir Khadi and Village Industries Board Act, 1965, (KVIB Act for short), all the questions are to be decided by the majority of the votes of the Members of the Board present. It would be appropriate to extract sub section (4) of Section 9 of the Act hereunder. It reads thus: "9. Meetings of the Board: (1)...... (2)...... (3)...... (4) All questions at a meeting of the Board shall be decided by the majority of the votes of the members present and voting and in the case of an equality of votes, the Chairman, or in his absence the person presiding, shall have a second or casting vote." 5. It is vehemently argued and contended at the Bar by learned counsel for the petitioner that sanction was to be granted by the competent authority, which in the present case is the Board. The Board consists of a Chairman and Members. It is further contended that the Chairman of the Board has acted mechanically and has granted the sanction without application of mind. It is further contended that the impugned order does not spell out that the sanction was granted by the competent authority after applying its mind. The Board consists of a Chairman and Members. It is further contended that the Chairman of the Board has acted mechanically and has granted the sanction without application of mind. It is further contended that the impugned order does not spell out that the sanction was granted by the competent authority after applying its mind. To substantiate this contention, learned counsel for the petitioner has referred to communication bearing No. IND/ KVIB/ 37/ 2008 dated 15.02.2011 made by the Deputy Secretary to Government, Industries and Commerce Department, to the Secretary/ CEO, Jammu & Kashmir KVIB, Jammu. It is revealed that it was on the basis of this communication / letter that the sanction was granted and the order impugned in this writ petition was passed. 6. It is now almost well settled that if sanction for prosecution is made without application of mind, the sanction is rendered invalid and bad in law. In the instant case, actually, the sanction for prosecution has been granted on the asking of the authority who had no role to play in view the mandate of the provisions of the KVIB Act. I am fortified in this view by a judgment of the apex Court in a case titled Mansukhlal Vithaldas Chauhan v. State of Gujarat, reported in 1997 CRI.L.J. 4059. It may be appropriate to notice paragraph 19 of the judgment hereunder: "19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution." 7. In State of Karnataka v. C. Nagarajaswamy, reported in (2005) 8 Supreme Court Cases 370, this aspect was highlighted and it was held as under: "13. The Appellant was proceeded against the respondents under the Act. Section 5 of the Act provides for the procedure and powers of the Special Judge. Section 19 of the Act mandates that no court shall take cognizance of offence punishable under the provisions specified therein except with the previous sanction by the authorities specified therein. 15. Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regard sanction may be determined at an early stage. [See Ashok Sahu v. Gokul Saikia and Another, 1990 (Supp) SCC 41 and Birendra K. Singh v. State of Bihar, JT 2000 (8) SC 248]" 8. This Court in a case titled Jangi Ram v. State of Jammu Kashmir, reported in KLJ 1998 332 : JKJ Soft JKJ/11251, held as under: "Adverting to the facts of the present case, it is found that Deputy Commissioner had not perused any fact and applied his mind. He simply had got erased words "Additional Deputy Commissioner" from the proforma of sanction and then put his signatures at the relevant place. Mohd Abas, DW who is an official of his office has stated from the record that sanction was accorded without receiving any letter from any authority. On these facts, it can be said that the appellant herein was prosecuted on the basis of sanction which was not validly granted by the competent authority and this defect is sufficient to vitiate the conviction and sentences." 9. On these facts, it can be said that the appellant herein was prosecuted on the basis of sanction which was not validly granted by the competent authority and this defect is sufficient to vitiate the conviction and sentences." 9. In light of the above, it is held that the sanction to prosecute granted by the Board in the instant case is rendered invalid, having been so granted without application of mind and at the instance and directions of GAD. 10. The impugned order is also bad on the count that all the Members of the Board had already decided to take a lenient view, which is borne out by the record produced by Mr. Noorul Amin, appearing counsel for the Respondent- Board. Even perusal of the record does disclose that the Chairman of the Board had endorsed the view of the Members of the Board, but on the other hand had requested the GAD for taking necessary action which is unwarranted. It needs a mention here that the letter made by the Industries and Commerce Department, J&K, to the Secretary, J&K KVIB does disclose that sanction for prosecution was conveyed in the light of the communication of the General Administration Department referred hereinabove, meaning thereby it is in terms of the GAD's letter dated 07.02.2011 addressed to the Commissioner/ Secretary to Government, Industries and Commerce Department that further directions for issuing sanction were transmitted to the Board by the Industries and Commerce Department. Thus, the reference made by the Chairman, J&K KVIB to GAD as regards concurrence to the issue of sanction was clearly misconceived, which clearly established that it was not the decision of the Board but the decision of the GAD which was subsequently carried out by the Chairman of the Board. I say so because the communication addressed by the Deputy Secretary to the Government, General Administration Department, to the Secretary, J&K Khadi & Village Industries Board, Jammu, reveals like that, which is part of the record, as also the notings recorded on the GAD's file. 11. Now the moot question arises is as to whether the issue of quashment of sanction for prosecution can be gone into at this stage. Admittedly, the operation of the impugned sanction/ order has been stayed by this Court in terms of order dated 01.03.2011. Moreso, the trial court has yet to take cognizance of the matter. 11. Now the moot question arises is as to whether the issue of quashment of sanction for prosecution can be gone into at this stage. Admittedly, the operation of the impugned sanction/ order has been stayed by this Court in terms of order dated 01.03.2011. Moreso, the trial court has yet to take cognizance of the matter. It is settled law that when a sanction for prosecution is questioned on the ground of non-application of mind, the accused can question it before the cognizance is taken. If cognizance has been taken, its validity can be questioned during the course of trial. I am fortified in this view by a judgment of the Supreme Court in a case titled Dinesh Kumar v. Chairman, Airport Authority of India, reported in AIR 2012 Supreme Court 858. It would be useful to reproduce paragraph 13 of the judgment, which reads as under: "In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the Trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the Trial Court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal and not unjustified." 12. For the aforesaid reasons, this writ petition merits to be allowed. I do so accordingly. Impugned order bearing No. KVIB/ 386 of 2011 dated 21.02.2011 is quashed, in so far as it relates to the petitioner. However, there will be no order as to costs. 13. The records produced by the respondents for perusal of the Court are returned to them in the open Court. 14. Disposed of along with CMP.