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Rajasthan High Court · body

2015 DIGILAW 1632 (RAJ)

Anand Kumar Bhatt v. State of Rajasthan

2015-09-04

P.K.LOHRA

body2015
ORDER : P.K. Lohra, J. Petitioner, a public servant being employee of the Education Department as Upper Division Clerk (UDC) has preferred this writ petition to challenge the impugned order dated 14.08.2014 (Annex.8) whereby competent authority - the third respondent has issued sanction for his prosecution under Section 19 of the Prevention of Corruption Act, 1988 (for short 'the Act of 1988') for offences under Section 7, 13(1)(d), 13(2) of the Act of 1988. 2. Succinctly stated facts of the case are that while working as UDC in the Office of District Education Officer (Secondary Education), Jalore, petitioner demanded illegal gratification from one Mohanlal son of Dhudaram Vishnoi, Senior Teacher, Government Secondary School, Hadecha District Jalore for getting him sanctioned the benefit of Assured Career Progression ('ACP'). In all, the petitioner demanded Rs.5,000/- and out of which half of the amount i.e. Rs.2500/- was paid subject to the condition that the remaining amount shall be paid on completion of work. In that background, Mohanlal submitted a written complaint to the Anti-Corruption Bureau ('ACB') narrating all the facts and in the complaint, it is also averred that vide order dated 09.10.2013 benefit of ACP has been granted to him. The complainant Mohanlal has further stated in the complaint that he is not willing to fulfil the demand of the petitioner and want him to be trapped for demanding illegal gratification. On receipt of the complaint, the officials of ACB made endeavour to verify the facts and planned a trap which was executed on 22.01.2014. The trap planned by ACB sleuths proved productive and the petitioner was caught red handed while accepting the illegal gratification. After completing the investigation, the investigating agency approached the competent authority of the Education Department for grant of sanction for prosecution against the petitioner. The competent authority after examining the matter by the order impugned issued sanction for prosecution against the petitioner which is the bone of contention in the present petition. 3. To question the impugned order, the petitioner has pleaded in the writ petition that the entire complaint of the complainant Mohanlal is founded on false and fabricated facts and as a matter of fact, he never demanded illegal gratification from him. 3. To question the impugned order, the petitioner has pleaded in the writ petition that the entire complaint of the complainant Mohanlal is founded on false and fabricated facts and as a matter of fact, he never demanded illegal gratification from him. It is also averred in the writ petition that for sanctioning ACP, the petitioner is not the competent authority and his only responsibility was to place the file before the competent authority for the ACP proposal. It is further submitted in the writ petition that when the complainant Mohanlal himself has admitted that ACP has already been granted to him vide order dated 09.10.2013, there was no occasion for the petitioner demand any gratification. The facts stated in the complaint are also disputed by submitting that on 25.08.2013 he was not at Sanchore Camp inasmuch as it was Sunday and as such there was no occasion for him to attend the Camp and so also to accept the part of illegal gratification amounting to Rs.2500/- from the complainant. The petitioner has also questioned the grant of prosecution sanction on the ground that the same has been issued illegally without application of mind and without prima facie determining his culpability for the alleged offences. 4. Voicing his grievance against the impugned order, the petitioner has urged in the writ petition that may it be, while granting sanction for prosecution, the competent authority was exercising its administrative power, but then too, it was expected of it to record its satisfaction on the strength of available material for taking an affirmative decision. The impugned order is also challenged by the petitioner by categorizing the same as outcome of arbitrary and colourable exercise of power. The petitioner has also taken shelter of Section 197 of the Code of Criminal Procedure, 1973 ('Cr.P.C.') by urging that for granting sanction for prosecution, it is pre-requisite that alleged offence has been committed by public servant while acting or purporting to act in discharge of his official duty. Lastly, the petitioner has also taken shelter of Article 14 & 19 of the Constitution of India. 5. Mr. Sandeep Shah, learned counsel for the petitioner submits that the third respondent has passed the impugned order mechanically without application of mind and, therefore, the said order cannot be sustained. Lastly, the petitioner has also taken shelter of Article 14 & 19 of the Constitution of India. 5. Mr. Sandeep Shah, learned counsel for the petitioner submits that the third respondent has passed the impugned order mechanically without application of mind and, therefore, the said order cannot be sustained. Mr.Shah would contend that necessary pre-requisites for passing sanction order are conspicuously missing in the instant case but the said aspect has been completely eschewed by the competent authority while passing the impugned order. Mr.Shah further submits that looking to the hierarchy, the petitioner was not even a competent authority to sanction ACP to the complainant and, therefore, on the face of it, the complaint was false and fabricated which ought to have been taken note of by the competent authority while passing the impugned order. Lastly, learned counsel submits that admittedly when ACP has been sanctioned to the complainant, much anterior to his complaint about demand of illegal gratification, the complaint itself was a hoax which ought not to have been entertained by ACP and further more, the competent authority should have taken note of all these facts while passing the impugned order. In totality, the submission of learned counsel is that the impugned order is a glaring example of arbitrary and colourable exercise of powers in ignorance of the facts relevant and germane to the matter and, therefore, it is not sustainable. In support of his contention, learned counsel for the petitioner placed reliance on following decisions:- 1. Romesh Lal Jain v. Naginder Singh Rana & Ors., (2006) 1 SCC 294 . 2. State of Karnataka v. Ameerjan, (2007) 11 SCC 273 . 6. In Romesh Lal Jain (supra), Hon'ble Apex Court while considering the sanction for prosecution under Section 197 Cr.P.C. for the offences under the Act of 1988 dilated on the requirements for grant of such sanction and held,- "33. The upshot of the aforementioned discussions is that whereas an order of sanction in terms of Section 197 Cr. P.C. is required to be obtained when the offence complained of against the public servant is attributable to discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same. P.C. is required to be obtained when the offence complained of against the public servant is attributable to discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same. A plea relating to want of sanction although desirably should be considered at an early stage of the proceedings, but the same would not mean that the accused cannot take the said plea or the court cannot consider the same at a later stage. Each case has to be considered on its own facts. Furthermore, there may be cases where the question as to whether the sanction was required to be obtained or not would not be possible to be determined unless some evidence is taken, and in such an event, the said question may have to be considered even after the witnesses are examined." 7. The Court has further proceeded to examine the requisite parameters for grant or refusal of sanction under Section 19 of the Act of 1988 by emphasising that order must be preceded by application of mind on the part of the appropriate authority. The Court held,- "14. It is also beyond any cavil of doubt that an order granting or refusing sanction must be preceded by application of mind on the part of the appropriate authority. If the complainant or the accused can demonstrate such an order granting or refusing sanction to be suffering from non-application of mind, the same may be called in question before a competent court of law. Evidently, the requirement of obtaining a sanction under Section 197 Cr. P.C. from the State in relation to the respondent who at the material time was a Sub Inspector of Police might not have arisen if the notification issued by the State in this behalf on or about 5.5.1983 is read in proper context, which is as under : "No. 3124-211 (1)-83/7773.- In exercise of the powers conferred by sub-section (3) of Section 197 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Governor of Punjab is pleased that the provisions of sub-section (2) of the said section shall apply to serving police officials of all ranks of the Punjab police force charged with the maintenance of public order." 8. The expression "public order" has a distinct connotation. The expression "public order" has a distinct connotation. Investigation into the offence under the Essential Commodities Act may not be equated with the maintenance of public order as is commonly understood. The activities of a single individual giving rise to irregularities of maintenance of books of accounts as regards an essential commodity or resorting to black marketing, unless a volatile situation arises therefrom, cannot lead to disturbance of public peace, safety and tranquility, which are essential requisites of a "public order". 9. In State of Karnataka (supra), Hon'ble Apex Court had the occasion to consider the order of sanction under Section 19 of the Act of 1988 and the Court reiterated the same principles as enunciated in Romesh Lal Jain's case (supra) by observing that application of mind by sanctioning authority is pre-requisite for passing sanction order. The Court held,- "10. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayuktha. Even the said report has not been brought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police Karnataka Lokayuktha had placed on record the materials collected on investigation of the matter which would prima facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as (sic to) the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced." 10. I have heard learned counsel for the petitioner, perused the impugned order of sanction and bestowed my consideration to the legal precedents, on which, learned counsel has placed reliance. 11. I have heard learned counsel for the petitioner, perused the impugned order of sanction and bestowed my consideration to the legal precedents, on which, learned counsel has placed reliance. 11. There remains no quarrel that even an administrative order like grant of sanction for prosecution is required to be passed by a competent authority with due application of mind. The purpose of sanction is to protect public servant from frivolous and vexatious prosecution at the behest of vested interest. However, a public servant involved in dubious transactions of accepting illegal gratification in discharge of his official duties cannot be permitted to utilise the sanction for prosecution as an umbrella for camouflaging or shielding his corrupt deeds. In the present social scenario, corruption is a menace to the society and corruption by public servant is a cause of grave and serious concern. In that background, a public servant cannot be allowed to over-stretch the right available to him either under Section 197 Cr.P.C. or under section 19 of the Act of 1988 to question a sanction for prosecution granted by a competent authority founded on some of the facts prima facie showing of his culpability for the offences under the Act of 1988. Indisputably, in the present case, the trap organised by ACB sleuths has proved productive and the petitioner was caught red handed while accepting the bribe from the complainant Mohanlal. The competent authority while passing the impugned order has taken note of all these facts in the impugned order including recovery of a sum of Rs. 2300/- from the front pocket of his jeans pant and the entire evidence collected by the trap party. In that background, it is not possible to infer that competent authority has not applied its mind while issuing the impugned order granting sanction for prosecution against the petitioner. 12. The law laid down by the Hon'ble Apex Court in the cases of Romesh Lal Jain (supra) and State of Karnataka (supra) if is pressed into service in the backdrop of facts and circumstances of the instant case, then it would ipso facto would reveal that there is no infirmity much less legal infirmity in the impugned order. 12. The law laid down by the Hon'ble Apex Court in the cases of Romesh Lal Jain (supra) and State of Karnataka (supra) if is pressed into service in the backdrop of facts and circumstances of the instant case, then it would ipso facto would reveal that there is no infirmity much less legal infirmity in the impugned order. A public servant in discharge of his official duty has acted in a dishonest manner by accepting illegal gratification and caught red handed by the ACB sleuths cannot be permitted to urge that impugned sanction order has been issued arbitrarily or in colourable exercise of powers. The competent authority has considered the facts and circumstances which were germane to the matter and while recording its prima facie finding about culpability of the petitioner for the alleged offences under the Act of 1988 has passed the impugned order which is neither infirm nor contrary to Section 19 of the Act of 1988. The extraordinary jurisdiction of this Court enshrined under Article 226 of the Constitution is to be exercised on equitable considerations and such jurisdiction is not meant for protecting the erring public servants who are prima facie involved in serious offences envisaged under the Act of 1988. Therefore, viewed from any angle, I am not persuaded to interfere in the matter so as to upset the impugned order whereby sanction for prosecution is granted against the petitioner. 13. Resultantly, the writ petition fails and the same is hereby dismissed summarily. Petition dismissed.