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2016 DIGILAW 157 (ORI)

Sayed Firdous Alam v. State of Orissa

2016-02-24

B.K.NAYAK

body2016
ORDER 24.02.2016 Heard Mr. S.K. Swain, learned counsel for the petitioner and Mr. Pani, learned counsel for the Vigilance Department. 2.Order dated 05.10.2015 passed by the learned Special Judge (vigilance), Balasore in T.R. No. 35 of 2011 rejecting the petitioner’s application under Section 227, Cr.P.C. for his discharge, has been assailed in this application under Section 482, Cr.P.C. 3.On the basis of complaint lodged by the informant against the petitioner, who was working in the office of the Tahasildar, Balasore, P.S. Case No. 60 of 2001 was registered under Section 13(2) read with Section 13(1) (d)/07 of the P.C. Act. The allegations are that the petitioner demanded Rs. 100/- from the informant to record the informant’s name in the mutation patta and the vigilance police being intimated, a trap was laid and the tainted currency note was recovered from the possession of the petitioner. On completion of investigation, the police submitted final form seeking to drop the criminal proceeding on the ground that the amount recovered from the petitioner was very meager. The police was of the view that initiation of a departmental proceeding against the petitioner would solve the purpose. The Special Court issued notice to the informant. But the informant having not appeared, the Court considered the police report and having found that prima facie case was made out, passed order dated 12.08.2010 directing the Superintendent of Police, Vigilance, Balasore to take necessary steps for obtaining sanction from the competent authority for prosecution of the accused-petitioner. After submission of the sanction order dated 23.05.2011 passed by the Collector, Bhadrak, the Special Judge took cognizance of the offence under Section 13(1) (d) and Section 7 of the P.C. Act. 4. At the time of framing of charge, the petitioner filed a petition under Section 227 of the Cr.P.C. praying to discharge him and by the impugned order, the said petition was rejected. 4. At the time of framing of charge, the petitioner filed a petition under Section 227 of the Cr.P.C. praying to discharge him and by the impugned order, the said petition was rejected. 5.The learned counsel for the petitioner in assailing the impugned order raises two contentions: (a) that in view of the specific direction of the learned Special Judge, the sanctioning authority had no scope to apply his independent mind to the facts and materials before granting sanction for prosecution of the petitioner and, therefore, the sanction order is vitiated and as such the initial cognizance was bad; and (b) that on the self-same allegation a departmental proceeding was initiated against the petitioner in which he has been exonerated and, therefore, on the self same allegation, the criminal prosecution cannot continue. 6.With reference to his first contention the learned counsel for the petitioner has relied on the decision of the Hon’ble Supreme Court reported in AIR 1997 SC 3400 : Mansukhlal Vithaldas Chauhan v. State of Gujarat and a single Bench of this Court reported in 2014 (2) OLR 837 : Ram Chandra Rath v. State of Orissa. Learned Additional Standing Counsel for the Vigilance Department, on the other hand, submits that there is no specific direction by the learned special Judge to the sanctioning authority to grant sanction and, therefore, the decisions cited by the learned counsel for the petitioner have no application. He also submits that mere exoneration of the petitioner in a departmental proceeding for the self same charge by itself cannot be a ground to quash the charge or the criminal proceeding. 7.In the case of Mansukhlal Vithaldas Chauhan (supra) on the receipt of investigation report, the Secretary, Gujarat Vigilance Commission wrote a letter to the Government to grant sanction for prosecuting the accused-appellant therein and since there was delay at the level of the Government, the complainant filed a Special Civil Application in the Gujarat High Court under Article 226 of the Constitution for a direction to the respondent-State to Sanction prosecution of the appellant. The High Court by its order dated 02.01.1985 directed the sanctioning authority to accord sanction for prosecution of the appellant. In the aforesaid circumstance, the Hon’ble Supreme Court held as follows: “19. The High Court by its order dated 02.01.1985 directed the sanctioning authority to accord sanction for prosecution of the appellant. In the aforesaid circumstance, the Hon’ble Supreme Court held as follows: “19. Since the validity of “Sanction” depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority “not to sanction” was taken away and it was compelled to act mechanically to sanction the prosecution.” 8.In the single Bench decision of this Court in Ram Chandra Rath (supra) the accused was a police official and the Superintendent of Police was the sanctioning authority and the Special Judge in that case wrote a letter to Superintendent of Police, Vigilance, Balasore to obtain sanction order and send the same to Court for further progress of the case. In the aforesaid circumstances relying on the decision of the Hon’ble apex Court in the case of Mansukhlal Vithaldas Chauhan (supra), the learned single Judge held that there was a pressure on the sanctioning authority, who had not applied his independent mind to the facts and materials and, therefore, the sanction was vitiated. 9.In the instant case, however, the sanctioning authority was the Collector, Bhadrak, by order dated 12.08.2010, the learned Special Judge directed the Superintendent of Police, Vigilance, Balasore to take necessary steps for obtaining necessary sanction for prosecution of the present petitioner. This order is not in the form of a command to the sanctioning authority to grant sanction. 9.In the instant case, however, the sanctioning authority was the Collector, Bhadrak, by order dated 12.08.2010, the learned Special Judge directed the Superintendent of Police, Vigilance, Balasore to take necessary steps for obtaining necessary sanction for prosecution of the present petitioner. This order is not in the form of a command to the sanctioning authority to grant sanction. It only directed the investigating agency to take steps for obtaining sanction, which the investigating agency would naturally have sought for, since a prima facie case against the petitioner had been made out as per the police report. There is nothing on record to suggest that there was any pressure on the Collector, Bhadrak or he was commanded to grant sanction for prosecution of the petitioner. On the other hand, the sanction order itself, which has been filed by the petitioner as Annexure-3, indicates that after carefully examining the facts of the case and the relevant prosecution papers produced, the sanctioning authority was satisfied that the petitioner had committed the offence and should be prosecuted in the Court of law, and accordingly he granted sanction. In such view of the matter, the decisions cited by the learned counsel for the petitioner have no application to the facts of the case. 10.So far as the contention that the prosecution against the petitioner cannot continue in view of his exoneration in the departmental proceeding for the self same charge, it may be noted that law is well settle, as has been held by the Hon’ble Supreme Court in State through SPE & CBI v. M. Krishna Mohan & Anr. : (2008) 39 OCR (SC) 276 and in the case of State (NCT Delhi)v. Ajay Kumar Tyagi : (2012) 9 SCC 685 that exoneration of the accused in the disciplinary proceeding by itself is not a ground for quashing the criminal proceeding. Therefore, the second contention of the learned counsel for the petitioner fails. Accordingly, I find no infirmity in the impugned order and therefore, the CRLMC is dismissed. CRLMC dismissed.