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Rajasthan High Court · body

2014 DIGILAW 1214 (RAJ)

Abdul Aziz Gauri v. State of Rajasthan

2014-05-23

VINEET KOTHARI

body2014
ORDER 1. Whether any estoppel or resjudicata applies for a competent authority, if he once decides not to grant such sanction for prosecution of a public servant under Section 19 of the Prevention of Corruption Act, 1988, and later on grants it on a reconsideration of the same material or at the instance of a higher authority, is the question? 2. The petitioner while working as Upper Division Clerk in the Industries Department, was caught red handed while taking the bribe of Rs.5000/-on 04.01.2009 in connection with work of the complainant, namely, Bankat Lal Bawari, partner of firm M/s Mangaram & Sons, in the office of Registrar of the Firms, Jodhpur. The petitioner was working in the office of District Industries Centre, Nagaur. By the impugned order (Annex.14) dated 19.01.2012, the Commissioner of the Industries Department has given sanction for prosecution of the petitioner in regard to Case No.292/2009. The said order has been challenged by the petitioner by way of present writ petition, inter-alia, on the ground that previously the same authority competent to remove the petitioner from the employment i.e. the Commissioner had given a clean chit/discharge in connection with the same case vide the Office-Note as produced by the petitioner along-with writ petition as Annex.12 but thereafter under the orders of the Principal Secretary of the Industries Department at the instance of Additional Director of Police, Anti-Corruption Bureau, Jaipur, vide DO letter No.4821 dated 08.06.2011, it was found that prima facie, there was substance in the complaint of the complainant and there was sufficient evidence available on record to prosecute the accused Government servant under Section 7, (13) (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988 (Act of 1988). Accordingly, the impugned order (Annex.14) dated 19.01.2013 was passed by the competent authority i.e. the Commissioner of Industries himself. 3. A coordinate bench of this Court while issuing notices to the respondents vide the order dated 10th February 2012 stayed the operation of the prosecution sanction order, which interim order is in currency uptill now. 4. Dr. Accordingly, the impugned order (Annex.14) dated 19.01.2013 was passed by the competent authority i.e. the Commissioner of Industries himself. 3. A coordinate bench of this Court while issuing notices to the respondents vide the order dated 10th February 2012 stayed the operation of the prosecution sanction order, which interim order is in currency uptill now. 4. Dr. Nupur Bhati, learned counsel for the petitioner urged that even the next higher authority could not review and revoke the order of the competent authority in view of Circular dated 06.04.2002 issued by the Department of Personnel (Internal page 3 of the said Circular) copy whereof has been placed as Annex.13, which inter-alia, provide in the last para of the same as under: - “Clarification has been sought by some Departments as to whether the authority next higher to the competent authority can grant the sanction for prosecution in a case where the concerned competent authority is of the view that the case is not fit for granting sanction for prosecution. In this connection it is hereby clarified that under the Prevention of Corruption Act, 1988 the power for according sanction for prosecution vests in the authority which is empowered to remove the government servant from service and should be exercised only by such authority. It would not be proper for the next higher authority to issue the sanction for prosecution where the competent authority is of the view that it is not a case where sanction for prosecution should be accorded. Sd/- (Ashok Sampatram) Secretary to Government.” 5. Learned counsel for the petitioner, Dr. Nupur Bhati, therefore, submitted that once the competent authority had given a discharge to the petitioner and had found it to be not a fit case of granting prosecution sanction, the Principal Secretary of the industries Department could not overrule that decision and even with the approval of the concerned Hon'ble Minister of Industries, the said competent authority, the Commissioner, could not be asked to pass fresh orders sanctioning the prosecution against the petitioner, Government servant. 6. Learned Additional Government Counsel, Mr. Anil Bissa, on the other hand, supported the impugned order. The reply to the writ petition has been filed contesting the same. 6. Learned Additional Government Counsel, Mr. Anil Bissa, on the other hand, supported the impugned order. The reply to the writ petition has been filed contesting the same. Even though, the exparte order was operating against the respondents granted since 10.02.2012, the respondents appear to have rest contended by only filing the reply to the writ petition and they not filed any application seeking vacation of the exparte stay order under Article 226 (3) of the Constitution of India, which reflects badly on the respondents. They were expected to be more vigilant in pursuing at least these type of cases. 7. Having heard the learned counsel for the parties, this Court is of the opinion that there is no force in the present writ petition and the impugned order (Annex.14) dated 19.01.2012 has been passed by the competent authority, namely, the Commissioner of the Industries Department only. It may be that earlier the same authority found prima facie as per the Office-Note, and one wonders how the internal office-notes could be procured by the present petitioner and produced before this Court, the same authority found that the complaint was not sustainable and the prosecution sanction does not deserve to be granted, it appears that the Principal Secretary upon perusal of the same material at the instance of D.O. Letter No.4821 dated 08.06.2011 (Annex.10) of Additional Director of Police, Anti Corruption Bureau, Jaipur, found it to be sufficient for prosecution and, therefore, had obtained the approval of the Hon'ble Minister for allowing the competent authority, i.e. the Commissioner, Industries Department, to pass fresh orders again. Thereafter it appears that the impugned order (Annex.14) dated 19.01.2012 was passed sanctioning the prosecution against the petitioner. It may be pointed out that the Circular dated 06.04.2002 (Annex.13) heavily relied upon by the learned counsel for the petitioner for challenging the impugned order, are merely rules of business for internal guidance of the departmental working and they do not have any statutory force. This Court does not find any violation of those guidelines in the present case and even if it was to be so held in some appropriate case that there was some violation of these guidelines, the opinion of the higher authority particularly when same is approved by the concerned Hon'ble Minister also can over-ride the earlier favourable opinion of the same competent authority. 8. 8. A bare perusal of the earlier order passed by the said authority discharging the petitioner and not sanctioning the prosecution, merely records in a cursory manner that the complaint appears to be motivated and, therefore, the sanction for prosecution of the accused Government servant need not be granted; whereas the facts stated in the FIR clearly show that the accused Government servant was caught red handed taking the bribe of Rs.5,000/-for certain work to be done in the office of the Registrar of Firms. In such circumstances, if the higher authority, namely, the Principal Secretary of the Industries Department with the approval of the Hon'ble Minister asked the competent authority to pass fresh orders, the same cannot be struck down by this Court in exercise of extraordinary writ jurisdiction under Article 226 of the Constitution of India merely on the basis of internal guidelines of the said departmental workings, while are liable to change from time to time. The relevant paras 3 and 4 of the Circular dated 06.04.2002, which contains a reference for requirement of taking matter up to the Hon'ble Minister also permits such disagreement of the competent authority and then through the reference to the Chief Vigilance Commissioner, such fresh orders can be passed however the said guidelines laid down that the reference to the opinion of the Chief Vigilance Commissioner or the Administrative Department should not be made while granting sanction of the prosecution, are quoted below for ready reference: - “3. If, however, the Secretary of the concerned Administrative Department agrees with the views of the competent authority that sanction for prosecution should not be accorded in any particular case, the matter shall be referred to the Minister of the concerned Department through the Chief Vigilance Commissioner. The Chief Vigilance Commissioner shall forward the case to the Minister of the concerned Administrative Department along with his advice/opinion. The role of the Chief Vigilance Commissioner will be purely advisory; the final decision whether or not to grant sanction for prosecution shall be taken only by the competent authority i.e. the authority which is empowered to remove the government servant from service. 4. If the Chief Vigilance Commissioner is of the opinion that sanction for prosecution should be accorded in any particular case and the competent authority finely (sic! Finally) agrees with his views, the competent authorities shall issue the sanction for prosecution under his signatures. 4. If the Chief Vigilance Commissioner is of the opinion that sanction for prosecution should be accorded in any particular case and the competent authority finely (sic! Finally) agrees with his views, the competent authorities shall issue the sanction for prosecution under his signatures. However, it may be ensured that no reference is made to the opinion of the Chief Vigilance Commissioner or the Administrative Department while granting sanction for prosecution. If any reference is made to the opinion/advice of the Chief Vigilance Commissioner or the Administrative Department, the courts are likely to take a view that the sanction for prosecution is not a valid one as it has been issued under the directions of the Chief Vigilance Commissioner/Administrative Department and not on the subjective satisfaction of the competent authority.” 9. Thus, apparently a review and re-appraisal of the orders not sanctioning prosecution is envisaged in the concerned department working in this regard and it cannot be said that once the competent authority came to the conclusion in the Office-Note not to sanction prosecution, that would be end of the road. The very concept of checks and balances will suffer set back, if one were to allow and attach such finality to the discharge orders by the competent authority without permitting any review of the same within the Department. In the present days of growing corruption in the bureaucracy, sanction of prosecution of the Government servant, which is only the beginning of the trial during which the accused person is bound to have all opportunities to defend himself, cannot be made subject to judicial scrutiny at a microscopic level and the Court particularly in exercise of writ jurisdiction under Article 226 of the Constitution of India cannot weigh the evidence and veracity of the same at this stage. 10. Prima facie, on the other hand it would appear that when a Government servant is caught red handed while taking bribe, it would appear to be a fit case for at least subjecting the delinquent Government servant to a regular trial by the competent court. The requirement of obtaining a prior sanction for prosecution under Section 19 of the P.C. Act of 1988 only a provides a conditional hedge for the Government servants to guard them against frivolous complaints and prosecution. It is not to thwart or to stall the genuine prosecution in genuine cases of corruption complaints. The requirement of obtaining a prior sanction for prosecution under Section 19 of the P.C. Act of 1988 only a provides a conditional hedge for the Government servants to guard them against frivolous complaints and prosecution. It is not to thwart or to stall the genuine prosecution in genuine cases of corruption complaints. That is why, the sub-Section (3) of Section 19 of the Act of 1988, has provided that any error, omission or irregularity in the sanction for prosecution would not be fatal for such prosecution unless in the opinion of the Court concerned, a failure of justice has resulted on account of that. The review of earlier discharge given by the Commissioner of the Industries Department in the present case, at the instance of prosecution agency, namely, the Anti-Corruption Bureau, vide the letter (Annex.10) dated 08.06.2011 addressed to the Principal Secretary of the Industries Department, and thereupon on the basis of material such Principal Secretary passing the order with the approval of the Hon'ble Minister, that it is a fit case for sanctioning of prosecution the same authority, namely, the Commissioner of Industries Department had to pass fresh orders for sanction of prosecution, which is impugned in the present writ petition on 19.01.2012. 11. The provisions of the Act of 1988 do not exclude such re-consideration or re-appraisal of the order or Office-Note of discharge given by the competent authority at one stage which was never communicated to the petitioner and, therefore, the impugned order dated 19.01.2012 cannot be successfully assailed on this ground. As already observed, the Guidelines given in the Circular (Annex.13) dated 06.04.2002 are not of statutory character and, therefore, the impugned order cannot be assailed for the alleged non-compliance of the said guidelines, which is also not found to be there and the emphasized portion of the para, quoted above, the said guidelines that the next higher authority would not issue the sanction of prosecution, is not applicable because the impugned prosecution sanction order has been issued by the competent authority, namely, the Commissioner of Industries Department himself, only in the present case. 12. The Hon'ble Supreme Court in the recent judgment in the case of Manohar Lal Sharma Vs. 12. The Hon'ble Supreme Court in the recent judgment in the case of Manohar Lal Sharma Vs. Principal Secretary & Ors., reported in (2014) 2 SCC 532 , dealth with Section 6-A of the Delhi Special Police Establishment Act, 1946, (DSPE Act), also held as under: - “No doubt, the rigour of Section 6-A of DSPE Act has already been diluted by the issuance of the Office Memorandum dated 26.9.2011. However, the office memorandum can hardly be termed as efficacious in any manner. Firstly, it cannot be used to interpret a provision of law such as Section 6-A of DSPE Act. Secondly, the office memorandum can always be withdrawn, modified or amended on the whim of the executive Government, on the same rationale as given for enacting Section 6-A of DSPE Act, namely, for “protecting” a senior government official. Therefore, it does not effectively prevent possible misuse of the law. Further, the delays in the grant of previous approval for investigation can occur notwithstanding time lines being laid down as mentioned in the office memorandum. This is because if the time lines are not adhered to, it is unlikely that CBI, in the absence of any realistic functional autonomy, will be able to press the Central Government beyond a point for expeditious approval for investigating an offence against a senior government officials. Investigations can be paralysed by unwarranted delays, both intentional and unintentional. Section 156 Cr.P.C. enables the local police to investigate a cognizable offence while Section 155 Cr.P.C. enables a police officer to investigate a non-cognizable offence after obtaining an appropriate order from the Magistrate having power to try such case or commit the case for trial regardless of the status of the officer concerned. Therefore, the local police may investigate a senior government officer without previous approval of the Central Government, but CBI cannot do so. This is rather anomalous. It is difficult to understand the logic behind such a dichotomy unless it is assumed that frivolous and vexatious complaints are made only when CBI is the investigating agency and that it is only CBI that is capable of harassing or victimising a senior government official while the local police of the State Government does not entertain frivolous and vexatious complaints and is not capable of harassing or victimising a senior government official. No such assumption can be made. No such assumption can be made. Interestingly, no previous approval for investigation was required by CBI from the date of decision in Vineet Narain, (1998) 1 SCC 226 (18-12-1997) till the insertion of Section 6-A of DSPE Act with effect from 12.9.2003. Absolutely no material was placed on record to suggest that during the period when the Single Directive was not in operation, nor was Section 6-A of DPSE Act on the statute book, CBI investigated frivolous and vexatious complaints against senior government officers or harassed any of them in any way.” 13. The Hon'ble Supreme Court in the case of Subramanian Swamy Vs. Manmohan Singh & Anr. reported in (2012) 3 SCC 64 , has held as under: - “Grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter. What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant. If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the Competent Authority is otherwise, then it can refuse sanction. In either case, the decision taken on the complaint made by a citizen is required to be communicated to him (not the public servant concerned) and if he feels aggrieved by such decision, then he can avail appropriate legal remedy. The CVC sanction for Prosecution Guidelines, 2005 are in conformity with the law laid down by the Supreme Court that while considering the issuance regarding grant or refusal of sanction, the only thing which the competent authority is required to see is whether the material adduced by the complainant or the investigating agency prima facie discloses commission of an offence. The competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true.” 14. Yet in another case of State of Maharashtra through Central Bureau of Investigation Vs. The competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true.” 14. Yet in another case of State of Maharashtra through Central Bureau of Investigation Vs. Mahesh G. Jain reported in (2013) 8 SCC 119 , the Hon'ble Apex Court has held as under: “It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. An order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity. When there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused. In these kind of matters there has to be reflection of promptitude, abhorrence for procrastination, real understanding of the law and to further remain alive to differentiate between hyper-technical contentions and the acceptable legal preponements. While sanctity attached to an order of sanction should never be forgotten but simultaneously the rampant corruption in society has to be kept in view. It has come to the notice of Supreme Court how adjournments are sought in a maladroit manner to linger the trial and how at every stage ingenious efforts are made to assail every interim order. It is the duty of the court that the matters are appropriately dealt with on proper understanding of law of the land. Minor irregularities or technicalities are not to be given Everestine status. It is the duty of the court that the matters are appropriately dealt with on proper understanding of law of the land. Minor irregularities or technicalities are not to be given Everestine status. It should be borne in mind that historically corruption is a disquiet disease for healthy governance. It has the potentiality to stifle the progress of a civilized society. It ushers in an atmosphere of distrust. Corruption fundamentally is perversion and infectious and an individual perversity can become a social evil. In this case, the reasonings of the trial Judge are absolutely hyper-technical and, in fact, can always be used by an accused as magic trick to pave the escape route. The reasons ascribed by the trial Judge appear as if he is sitting in appeal over the order of sanction. The approach of the trial Judge as well as that of the Single Judge is wholly incorrect and does not deserve acceptance.” 15. In view of above legal position, this Court is of the opinion that no interference is called for in the impugned order (Annex.14) dated 19.01.2012 sanctioning prosecution of the petitioner in the present writ petition and the same is found to be devoid of any merit and the same is liable to be dismissed. The writ petition is, accordingly, dismissed. No costs. A copy of this order be sent to the concerned parties forthwith.