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2015 DIGILAW 1238 (RAJ)

Sandeep Agarwal v. State of Rajasthan

2015-07-04

PRASHANT KUMAR AGARWAL

body2015
Hon'ble AGARWAL, J.— The accused-petitioner by way of this writ petition under Article 226 of the Constitution of India has prayed to quash and set aside the order dated 26.2.2014 whereby the Additional Director (Administration) Medical & Health Services Rajasthan, Jaipur has granted prosecution sanction as required under Section 19 of the Prevention of Corruption Act, 1988 (hereinafter to be referred as "the Act") to prosecute the petitioner for offences punishable under the provisions of the Act in respect of FIR No. 526/2013 registered at Police Station Headquarter Anti Corruption Bureau, Jaipur. 2. Brief relevant facts for the disposal of this writ petition are that aforesaid FIR came to be registered against several persons including the petitioner, who at the relevant time, was posted as Food Safety Officer at Jaipur for various offences including offences punishable under the Act and after investigation charge-sheet was filed on 4.2.2014 before the Court concerned, whereas requisite sanction under Section 19 of the Act was granted on 26.2.2014 and thereafter cognizance was taken by the Court on 19.5.2014. The present petition was filed on 22.9.2014. 3. It was submitted by the learned counsel for the petitioner that the petitioner was appointed as Food Safety Officer by the Commissioner (Foot Safety) & Director (Public Health), Medical & Health Services Rajasthan, Jaipur vide notification dated 26.7.2011 and thus, Commissioner (Food Safety) is his appointing authority and he continues to be so till date and according to Article 311 of the Constitution of India, a person holding a civil post under a State cannot be removed from his office by an authority sub-ordinate to that by which he was appointed. It was further submitted that as the sanction under Section 19 of the Act is required to be granted by an authority, who is competent to remove a public servant from his office, it follows that the sanctioning authority cannot be lower than the appointing authority in respect of those public servants to whom Article 311 of the Constitution is applicable. It was also submitted that while deciding about the authority competent to remove a public servant. Article 311(1) of the Constitution of India has to be taken into consideration and Section 19 of the Act must be interpreted in the light of the requirement of Article 311 of the Constitution. It was also submitted that while deciding about the authority competent to remove a public servant. Article 311(1) of the Constitution of India has to be taken into consideration and Section 19 of the Act must be interpreted in the light of the requirement of Article 311 of the Constitution. Attention of the Court was also invited to the fact that the petitioner was posted as Food Safety Officer at District Jaipur-II by the Commissioner himself vide notification dated 10.8.2011 and lateron he was transferred to District Hanumangarh vide order dated 7.2.2012 by the same authority. Attention of the Court was also invited to the fact that the petitioner was transferred from Hanumangarh to the Office of the Chief Medical Officer, Jaipur-I by the Commissioner vide order dated 12.2.2013 and he was also suspended from his office vide order dated 19.5.2014 by the same authority and all these facts clearly show that the Commissioner continued to be his appointing/removal authority, whereas the order under challenge has been passed by the Additional Director (Administration), which is admittedly an authority sub-ordinate to the appointing/removal authority of the petitioner and, therefore, it being passed by an authority incompetent to grant prosecution sanction as required under Section 19 of the Act, the same is liable to be quashed and set aside and as a consequence thereof, subsequent order of cognizance, framing of charge and the criminal proceedings pending against the petitioner are also liable to be quashed and set aside as it is well settled legal position that in absence of requisite valid prosecution sanction criminal proceedings for an offence under the Act cannot proceed. It was also submitted that not only the order of sanction has been granted by an authority which is incompetent, but also it has been granted mechanically without application of mind and without considering the material made available on record and without considering the representation made by the petitioner and without affording opportunity of hearing to him only on the basis of draft provided by the Department. It was also submitted that as per Section 37 of the Food Safety and Standards Act, 2006, Commissioner (Food Safety) is appointing authority for Food Safety Officer and as per Section 30(3) of the same, such power cannot be delegated to any other officer. 4. It was also submitted that as per Section 37 of the Food Safety and Standards Act, 2006, Commissioner (Food Safety) is appointing authority for Food Safety Officer and as per Section 30(3) of the same, such power cannot be delegated to any other officer. 4. In support of his submissions, learned counsel for the petitioner relied upon the cases of State of Himachal Pradesh vs. Nishant Sareen reported in 2010(8) Supreme 496 (SC) = 2011(1) RLW 287 (SC), C.B.I. vs. Swapan Kumar Bose reported in 2010 Cr.L.J. 3952 (Gauhati) and Abdul Aziz Gauri vs. State of Rajasthan reported in 2014 Supreme (Raj.) 3592 = 2014(3) RLW 2611. 5. On the other hand learned Additional Advocate General submitted that vide sanction order dated 26.2.2014, Additional Director (Administration) has claimed to be competent to remove the petitioner from his office so it is a question of fact to be decided by the trial Court after considering the evidence produced by the parties about the authority competent to accord sanction required under Section 19 of the Act as it is well settled legal position that Court may presume that an official act has been regularly performed unless it is rebutted. It was further submitted that as per clause (a) of sub-section (3) of Section 19 of the Act, an order passed by a Special Judge cannot be reversed or altered in appeal or revision on the ground of any error, omission or irregularity in the order of sanction unless in the opinion of the Court a failure of justice has infact been occasioned thereby. It was thus submitted that mere error in sanctioning order itself does not automatically result into failure of justice and it is for the accused to satisfy the Court, on the basis of the evidence produced during trial, that infact such failure has occasioned and his rights have been adversely affected. Inviting attention of the Court towards clause (a) of the explanation to Section 19 of the Act, it was contended that "error" includes competency of the authority to grant sanction. Inviting attention of the Court towards clause (a) of the explanation to Section 19 of the Act, it was contended that "error" includes competency of the authority to grant sanction. It was further submitted that subsequent to the filing of charge-sheet, sanction was granted on 26.2.2014 and produced before the trial Court and thereafter not only cognizance has been taken on 19.5.2014, but also charge has been ordered to be framed vide order dated 22.9.2014 and, therefore, the present petition has become infructuous and is liable to be dismissed as such. 6. I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the relevant legal provisions and the case law. 7. Relevant portion of sub-section (1) of Section 19 of the Act, provides that no Court shall take cognizance of an offence allegedly to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office whereas clause (a) of sub-section (3) provides that 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, or of any error, omission or irregularity in the sanction unless in the opinion of the Court, a failure of justice has infact been occasioned thereby. 8. In the case of State of Bihar & Ors. vs. Rajmangal Ram reported in 2014 Cr.L.J. 2300, the issue for consideration before the Hon'ble Supreme Court was "Whether a criminal prosecution ought to be interfered with by the High Courts at the instance of an accused who seeks mid-course relief from the criminal charges levelled against him on grounds of defects/omissions or errors in the order granting sanction to prosecuture including errors of jurisdiction to grant such sanction?" It was observed by the Hon'ble Court that specific provisions have been incorporated in Section 19(3) of the Act as well as in Section 465 of the Code of Criminal Procedure which, interalia make it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the Court a failure of justice has been occasioned. It was further observed that a more appropriate stage for reaching the conclusion, whether failure of justice has been occasioned or not, would be only after evidence in the case had been led on the issue in question. 9. In the case of State of Madhya Pradesh vs. Virender Kumar Tripathi reported in (2009) 15 SCC 533 , it was held by the Hon'ble Court that sub-section (3) of Section 19 of the Act makes it clear that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court of appeal on the ground of absence of/or any error, omission or irregularity in sanction required under sub-section (1) of Section 19 of the Act, unless in the opinion of the Court a failure of justice has infact been occasioned thereby. It was further held that the stage when this failure is to be established is yet to be reached since the case is at the stage of framing of charge. Whether or not failure has in fact been occasioned was to be determined once the trial commenced and evidence was led. 10. In the case of C.B.I. vs. Ashok Kumar Aggarwal reported in 2014 Cr.L.J. 930, Hon'ble Apex Court in clear terms held that the stage of examining the validity of sanction is during trial and the same cannot be examined during the stage of inquiry or at pre-trial stage. 11. In the case of Dinesh Kumar vs. Chairman, Airport Authority of India & Anr. reported in 2012 Cr.L.J. 699, it was observed by the Hon'ble Court that 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. It was also observed that once cognizance for offence is taken by the trial Court, the question of validity of sanction is open for consideration by the trial Court and accused has liberty to raise it before the trial Court after evidence is led by the parties. 12. It was also observed that once cognizance for offence is taken by the trial Court, the question of validity of sanction is open for consideration by the trial Court and accused has liberty to raise it before the trial Court after evidence is led by the parties. 12. In the case of Ashok Tshering Bhutia vs. State of Sikkim reported in (2011) 4 SCC 402 , it was held that a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is a matter of procedure and does not go to the root of jurisdiction and once the cognizance has been taken by the Court under Cr.P.C., it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance. 13. The well settled legal position emerging from the aforesaid decisions in brief may be stated in the following words "A finding, sentence or order passed by a Special Judge (trial Court) can not be reversed or altered by a Court of appeal, confirmation or revision or by the High Court exercising its power under Section 482 Cr.P.C. or Article 226 of the Constitution of India on the ground of mere error, omission or irregularity in the order of sanction including grant of it without application of mind or on the ground of non-availability of material before the sanctioning authority or on the ground of bias of the sanctioning authority or the order of sanction having been given by an authority not authorized or competent to grant sanction as it is a matter of procedure and it does not go to root of jurisdiction more particularly when cognizance has already been taken by the trial Court. A finding, sentence or order so passed by the trial Court can be reversed or altered only when it is found by the Court that as a result of such error, omission or irregularity a failure of justice has infact occasioned and the same can be considered during the course of trial after evidence is led by the parties and not at the threshold or at the stage of framing of charge. It is for the accused, on the basis of evidence made available on record during trial, to satisfy the Court that failure of justice has occasioned to him as a result of the defect or irregularity in the sanction. But so far as absence of sanction is concerned, it goes to the root of the matter and it could be raised at the inception and the threshold also by an aggrieved person." 14. In view of the above well settled legal position although in the present case initially the charge-sheet was filed without order of prosecution sanction, but subsequently it was granted on 26.2.2014 and the same has been produced before the trial Court and thereafter not only cognizance has been taken on 19.5.2014, but charges are also ordered to be framed vide order dated 22.9.2014 and evidence is to be led by the parties before the trial Court, I do not find any merit in the present petition as the petitioner has a right to raise all objections regarding validity of sanction during trial after evidence is led by the parties. 15. Consequently, the writ petition has no merit and is, hereby, dismissed.