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2014 DIGILAW 667 (GUJ)

RAJENDRASINH AMARSINH SOLANKI v. STATE OF GUJARAT

2014-06-18

R.D.KOTHARI

body2014
JUDGMENT : R.D. KOTHARI, J. 1. In the present case a sanction for prosecution under Section 19 of Prevention of Corruption Act 1988 is vitiated although the learned A.P.P. strenuously urged that sanction is valid. 2. One R.A. Solanki, who was Junior clerk at the relevant time in Kheda, District Panchayat had said to have the property disproportionate to his known source of income. The period taken into consideration by prosecution is 1984 to 2003. His lawful income during this period is calculated at Rs.9,62,952/- against that possible expenditure assessed at Rs.4,68,181 from the income. So, the possible saving would be Rs.4,94,772/- against that the applicant-petitioner has immovable property of Rs.17, 75,227/- and has a vehicles of worth Rs.4,43,537/- and savings in banks and post office of Rs.8,11,992/. Thus, in all total assets of relevant period is of Rs.30,33,750/, deducting the amount of possible saving from the same, it would be appear that the petitioner had assets of Rs.25,38,978/- disproportionate to his known source of income. ACB Office has said to have carried out enquiry in this regard and thereafter has lodged the complaint against the present petitioner. 3. In due course Investigating Officer had applied for sanction for prosecution, D.D.O. of District-Panchayat Kheda in his report dated 15.4.2010, has concluded that prima facie there is no case of sanction for prosecution. Disagreeing with this report, Gujarat Vigilance Department by its letter dated 27.9.2010 has recommended the D.D.O. for granting sanction for prosecution. Thereafter, D.D.O. by letter dated 27.9.2010 has granted the sanction. 4. In Special Case No.1/11 before the Sessions Court, the petitioner had applied for discharge by submitting the application (Exh:5). The said application was rejected by the Sessions Court. The petitioner herein prays for quashing and setting aside the order of the Special Judge on discharge application, since there is no valid sanction for prosecution under Section 19 of the Act. 5. Heard the learned advocate Mr. Shah for the petitioner. 6. Rule. Leaned A.P.P. waives service of Rule on behalf of the State. 7. Learned advocate for the petitioner Mr. Shah has drawn attention of the Court to the relevant materials on record. It was submitted that the in order refusing to grant sanction for prosecution, the authority has considered all the materials on record and, thereafter, it has recorded the conclusion. Leaned A.P.P. waives service of Rule on behalf of the State. 7. Learned advocate for the petitioner Mr. Shah has drawn attention of the Court to the relevant materials on record. It was submitted that the in order refusing to grant sanction for prosecution, the authority has considered all the materials on record and, thereafter, it has recorded the conclusion. It was submitted that later on issuing sanction by the same authority by relying on the recommendation of Gujarat Vigilance Commission is bad and illegal. 8. Learned advocate for the petitioner Mr. Shah has also drawn attention of the Court to recent decision of the Hon'ble Supreme Court in case of State of Himachal Pradesh V. Nishant Sareen 2010 (0) GLHEL SC 49223 : [ 2010 (14) SCC 527 ]. 9. Learned A.P.P. has drawn attention of the Court to Section 19 of the Act. It was submitted that elaborate provision of Section 19 is sufficiently clear to culled out the aim and object of the provision from it. It was pointed out that the provision specifically provides for not to grant interim relief or stay in the proceeding. It was submitted that objection in respect of sanction ought not be entertained at this stage and party should be asked to agitate this plea at the time of the trial. It was submitted that powers of this Court under Section 482 are to be exercised in exceptional case and the present case cannot be said to be one such case. 10. Learned A.P.P. Mr. Rawal has also placed on record the affidavit-in-reply filed by Police Inspector. Reliance was placed on Nareshkumar Kikabhai Tandel case 1984 GLH 233 , M Gopalkrishnan case AIR 2009 SC 2005 , K V Joseph case 1997 CRI. L.J. 2896. 11. In Nishant Sareen case (supra) the respondent was at the relevant time was working as a Drug Inspector in Bilaspur (Himachal Pradesh), he had said to have demanded Rs.5,000/- bribe in order to avoid checking by the Drug Inspector. Complaint was filed and in a trap arranged the respondent was said to have caught red handed at that time. However, the authority i.e. Principal Secretary (Health) Government of Himachal Pradesh, when moved for sanction, it has concluded that there is no justification for granting of sanction for prosecution. However, on reconsideration later on authority had granted the sanction. 12. Complaint was filed and in a trap arranged the respondent was said to have caught red handed at that time. However, the authority i.e. Principal Secretary (Health) Government of Himachal Pradesh, when moved for sanction, it has concluded that there is no justification for granting of sanction for prosecution. However, on reconsideration later on authority had granted the sanction. 12. Supreme Court referring the earlier cases on the point and dismissing the appeal has concluded thus: “It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course.” (emphasis supplied) 13. The present case is squarely covered by above binding decision of the Hon'ble Supreme Court. The present case is squarely covered by above binding decision of the Hon'ble Supreme Court. In the present case D.D.O. in earlier order has taken pain to consider the matter in detail. After considering each allegation and every aspect D.D.O. concluded that prima facie, this is not a fit case for granting sanction for prosecution. It is not in dispute that the said authority i.e. D.D.O. is sanctioning authority. The prosecution, if aggrieved by the order passed by the said authority, then, it ought to have challenged the refusal of grant sanction before appropriate forum. Giving of opinion later on by Gujarat Vigilance Commission wherein it has recommended the D.D.O. to grant sanction and thereafter, D.D.O. has granted sanction by letter dated 27.10.2010 (Annexure-D) is impermissible route. 14. A bare reading of sanction letter would show that letter of Gujarat Vigilance Commission had weighed with the authority. On the other hand, it is not the say of the prosecution that fresh material is received after passing of earlier order of the sanction and that letter sanction is based on such fresh material. On the contrary the earlier order of refusing the sanction is fairly detailed order and, as referred above therein the authority has considered all the allegations levelled against the present petitioner. 15. The bold submission of learned A.P.P. that second sanction is not vitiated but the fact that it has support of letter of Vigilance Commission strengthens such second sanction, is not possible to accept. It is the satisfaction of the sanctioning authority that lends credibility and acceptability to the sanction. It may be stated that first report of refusal of sanction runs into 10 printed pages. The authority has closely considered all the items of income, expenditure and investment in contrast to that second letter of sanction is fairly brief. It refers and rely on letters of Vigilance Commission. It may also be stated that beside salary income the petitioner has also income from agriculture. That apart, second sanction in view of above, is bad. 16. Strong reliance placed by learned A.P.P. on the affidavit of Police Inspector cannot help the respondent. It was submitted that in the detailed affidavit, the Investigating Officer has clearly made out the case for proceeding against the present petitioner. That is not the point. That apart, second sanction in view of above, is bad. 16. Strong reliance placed by learned A.P.P. on the affidavit of Police Inspector cannot help the respondent. It was submitted that in the detailed affidavit, the Investigating Officer has clearly made out the case for proceeding against the present petitioner. That is not the point. Assertion by the Investigation Officer in his affidavit cannot help much to the respondent in the circumstances of the case. 17. In Nareshkumar Kikabhai Tandel case (supra) validity of sanction was challenged urging that authority himself has not drafted the sanction following Mohammed Iqbal Bhatti 2010 AIR SCW 1186. This plea did not find favour by the Court. In K V Joseph case (supra), it was held that once the sanction was duly accorded by the competent authority under Section 19 of the Act then neither the Vigilance Commission nor any other department of the State Government has right or power to direct the sanctioning authority to reconsider or to withdraw the sanction. This holding does not help the respondent, if at all, it helps the present petitioner. 18. In M Gopalkrishnan case (supra) accused was a Chairman of the Indian Bank at the relevant time, discharge application came to be rejected by all the Courts, plea that accused is a public servant or not was raised on the basis that accused is not appointed by Central Government but was appointed by Reserve Bank of India. Except the fact that discharge application in that case came to be rejected cited decision is not much help to the respondent. The petitioner does not raise the plea that he is not a public servant, discharge application is not filed on that ground, validity of sanction is an issue and for the same M Gopalkrishnan case (supra) does not help the respondent. 19. In view of the above sanction granted by the authority vitiated and it suffers from non application of mind. In view of decision of Hon'ble Supreme Court in State of Himachal Pradesh V. Nishant Sareen (supra), the submission of learned A.P.P., this Court should not interfere, at this stage, cannot be accepted. 20. The order of the trial Court in Sessions Case No.1/11 below Exh:5 is hereby quashed and set aside. The accused is hereby discharge for want of prosecution. Petition is accordingly allowed. Rule is made absolute. Direct service is permitted.