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2014 DIGILAW 853 (JHR)

Saroj Kumar Jha v. State of Jharkhand

2014-08-08

R.R.PRASAD

body2014
Order This writ application has been filed for quashing of the order dated 11.10.2010, passed by the Secretary, Department of Law (Judicial), Government of Jharkhand, Ranchi, as contained in Annexure-4 whereby sanction for prosecution of the petitioner in R.C. Case No. 18(A) of 2009(R) was accorded. 2. The case of the prosecution is that in compliance with the order passed by this Court in W.P. (PIL) No. 803 of 2009, a preliminary inquiry was conducted by the CBI into the irregularity and illegality committed by the engineers of Road Construction Department as well as the contractors in the matter of procurement of bitumen for construction of road. On that basis, a case was registered as R.C. Case No. 18(A) of 2009(R) on the allegation that the contractor-M/s Gajo Prasad Mehta has submitted six bills/invoices claimed to have been procured from Indian Oil Corporation, Namkom for surface renewal of Kharhar-Gauria Karma Road which was found to be forged. Still the public servant including the petitioner, Junior Engineer, did fraudulently certify the bills/invoices submitted by the contractor for its payment and thereby they committed offences under Sections 420, 467, 468, 471 and 120B of Indian Penal Code as well as under Section 13(2) read with 13(1)(d) of Prevention of Corruption Act. 3. The matter was taken up for investigation. After completion of investigation, order sanctioning prosecution was accorded by the Secretary, Department of Law (Judicial), Government of Jharkhand, Ranchi vide its order dated 11.10.2010 which is under challenge. 4. Mr. Sumeet Gadodia, learned counsel appearing for the petitioner, submits that the petitioner at relevant point of time was posted as Junior Engineer, whose appointing/controlling authority was the Chief Engineer and thereby in terms of the provision, as contained in Section 19(1)(c) of the Prevention of Corruption Act, it was the Chief Engineer who could be the competent to accord sanction for prosecution, but here in the instant case, sanction for prosecution has been accorded by the Secretary, Law (Judicial) Department, Government of Jharkhand, by virtue of the note appended to Rule 53(1)(c) of the Rules of the Executive Business but that note had been amended which has not been taken into account and as such, the order sanctioning prosecution is bad. 5. Further, it was submitted that the respondent no. 5. Further, it was submitted that the respondent no. 3- Secretary, Department of Law (Judicial) while granting sanction for prosecution never seems to have considered the notings, which were there in the file, and thereby the respondent no. 3 can be said to have granted sanction without application of mind and thereby the order sanctioning prosecution is bad in view of the decision rendered in a case of State of Karnataka Vs. Ameerjan { (2007)11 S.C.C. 273 }. 6. Further, it was submitted that the petitioner has greatly been prejudiced on account of sanction for prosecution being granted by the respondent no. 3, as had the matter relating to sanction for prosecution been brought to the appointing authority, he would have taken into account the inquiry report submitted in this respect wherein nothing wrong was found with the construction of road in question and, thereby, the petitioner's case has certainly been prejudiced on account of sanction being granted by the respondent no. 3. 7. In this regard, learned counsel has referred to the decisions rendered in the cases of State of Goa Vs. Babu Thomas (2005) 8 SCC 130 , and Mansukhlal Vithal Das Chauhan Vs. State of Gujarat { (1997) 7 SCC 622 }. 8. As against this, Mr. Mokhtar Khan, learned counsel appearing for the CBI, by referring to Section 19 (3)(4) of the Prevention of Corruption Act, submits that no finding, sentence or order passed by a Special Judge warrants to be reversed or altered on the ground of any error, omission or irregularity in the order sanctioning prosecution under Section 19(1) of the Prevention of Corruption Act, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby, which proposition has been propounded by the Hon'ble Supreme Court in number of cases and recently in a case of State of Bihar and others Vs. Rajmangal Ram (AIR 2014 SC 1674). 9. Further, it was submitted that so far point relating to failure of justice is concerned, it needs to be addressed during trial and not at this stage, as only by adducing evidence that would be established or could be rebutted. The Hon'ble Supreme Court in the cases, referred to above, has been quite categorical in holding that this point is to be appreciated during trial when the parties lead their evidences. 10. Mr. The Hon'ble Supreme Court in the cases, referred to above, has been quite categorical in holding that this point is to be appreciated during trial when the parties lead their evidences. 10. Mr. Mokhtar Khan did point it out that in the case of State of Bihar and others Vs. Rajmangal Ram (supra), submission had been advanced on behalf of the accused that the sanction has never been granted by the parent department but by the Law Department. That plea was dispelled with by the Court keeping in view the provision contained in Section 19(3)(4) of Prevention of Corruption Act by holding that merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. Same is the situation here and, therefore, the order granting sanction never warrants to be interfered with by this Court. 11. The ground on which the impugned order has been sought to be quashed is that the petitioner being posted as Junior Engineer was under the control of Road Construction Department and as such the Secretary, Department of Law (Judicial) being not an appointing authority is not competent to accord sanction for prosecution in terms of Section 19(1)(b) of the Prevention of Corruption Act. Here in the instant case, the Secretary, Department of Law (Judicial) has issued the order granting sanction in the name of the Governor which seems to have been issued in consonance with note appended to Rule 53(1)(c) of the Rules of the Executive Business. 12. However, according to learned counsel for the petitioner, that note, reference of which has been given hereinabove, seems to have been substituted through a resolution dated 3rd July, 1993 by the following clause: “All kinds of order regarding prosecution shall be issued by the Law (Judicial) Department after the orders have been obtained in accordance with Rule 32(a)(xix).” Said amended clause, according to the petitioner, has not been taken into account by the Secretary, Department of Law (Judicial). Even if it has not been taken into account, that would be, at best, an error or irregularity which does not affect the validity of the proceeding in terms of the provision, as contained in Section 19(3)(4) of Prevention of Corruption Act, unless it results into a failure of justice. 13. At this stage, the provision of Section 19(3)(4) of Prevention of Corruption Act needs to be taken notice of which reads as follows: “19(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 subsection (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.” 14. 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.” 14. A combined reading of sub-sections (3) and (4) makes the position clear that notwithstanding anything contained in the Code, no finding, sentence and 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. 15. It be noted that explanation (a) to sub-section (4) does stipulate that error includes in competency by the authority to grant sanction. Meaning thereby that even if the order granting sanction is assailable on the ground that the authority is incompetent to grant sanction, it cannot be interfered with by the court unless it is shown that the said defect/irregularity has resulted into failure of justice. The aforesaid proposition has been laid down by the Hon’ble Supreme Court in a case of State of Police Inspector vs. T. Venkatesh Murthy { (2004) 7 SCC 763 } which view has been reiterated subsequently in a case of State of Madhya Pradesh vs. Virendra Kumar Tripathy { (2009) 15 SCC 533 } and recently in a case of State of Bihar and others Vs. Rajmangal Ram (AIR 2014 SC 1674). 16. Further Their Lordships in a case of State of Bihar and others Vs. Rajmangal Ram (supra) has been pleased to observe that to determine the plea of prejudice, appropriate stage would be a trial when the parties would be leading evidences. 17. Under the circumstances, I do not find any merit in this writ application and hence, this writ application stands dismissed. Application dismissed.