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2017 DIGILAW 1062 (RAJ)

Suo Motu v. State of Raj

2017-04-24

PRADEEP NANDRAJOG, SANJEEV PRAKASH SHARMA

body2017
ORDER : A common strain runs in both the cases and hence both are being dealt with by a common order. 2. The issue involved is with regard to delay in granting prosecution sanction in terms of Section 19 of the Prevention of Corruption Act, 1988 (hereinafter referred to as ' the Act of 1988') in relation to public servants where there is an allegation against them for having committed offences under the various provisions of the Act of 1988. 3. The learned Single Judge while hearing S.B.Criminal Misc. 2nd Bail Application No.9673/2012: Ramjilal Sharma v. State of Rajasthan on 02nd November, 2012 observed as under : - "11. There is another angle that needs to be noted, which is that even when the Bureau proposes to file charge-sheet in a given case, matter hangs fire with the government for want of sanction for years together. Sanction is refused in more number of cases then is granted. This despite the law developed by catena of judicial pronouncements that the demand of illegal gratification for discharge of an official duty is not a part of his official duty and if on facts his such two actions can be segregated, the question arises whether sanction for prosecution would at all be necessary? Following questions therefore emerge against the backdrop of these facts for consideration of this court:- 1. Whether there should not be any time limit for completion of preliminary enquiry? 2. Whether failure of the Bureau in completing preliminary enquiry within the said time limit should not result in automatic registration of first information report? 3. What should be the outer limit within which investigation in a case should be completed by the Bureau? 4. Whether any time limit can be set for the Government to accord sanction of prosecution of public servant and if it has failed to take any appropriate view of the matter in that time limit, should the sanction then not be deemed to have been granted for prosecution? 5. Whether the requirement of holding preliminary enquiry should not be taken to have dispensed with in cases where criminal complaints are directly received from the court of competent jurisdiction for investigation under Section 156(3) of the Cr.P.C.? 6. 5. Whether the requirement of holding preliminary enquiry should not be taken to have dispensed with in cases where criminal complaints are directly received from the court of competent jurisdiction for investigation under Section 156(3) of the Cr.P.C.? 6. Whether the system of having a unitary police station at the State level with police outpost at the district level has not failed to achieve the desired purpose, and now therefore whether there should not be the parallel set up of the Bureau on the lines of civil police with at-least one duly notified police station at every district headquarters with all necessary paraphernalia and adequate staff, infrastructure with its own forensic science laboratory and latest equipments. 7. Whether in an appropriate case whether there is no apparent connection between the official duty and alleged demand of illegal gratification, requirement of obtaining sanction for prosecution should not be dispensed with or deferred to be examined from that point of view, at the time of taking cognizance?" The learned Single Judge further noted that the Division Bench was already seized with the public interest litigation petition regarding prosecution sanction and directed that the petition be separately registered as Suo Motu Writ petition (Public Interest Litigation) and be connected with D.B. Civil Writ Petition No.2642/2005. Hence, both are listed today and are being decided together. 4. The brief submissions on behalf of the Amicus Curiae have been filed. It is suggested that the preliminary enquiry conducted by the Anti Corruption Bureau (hereinafter to be referred to as the 'ACB') ought to be completed within a stipulated period. It is suggested that the preliminary enquiry should be made time bound and in any case it should not exceed 7 days and the factum of having received complaint, ought to be entered in the General Case Diary. Relying upon the law laid down by the Supreme Court in Lalita Kumari v. Govt. of UP - 2014 (2) SCC 1 it is also pointed out that the CBI Manual in Chapter 14 provides for a period of one year in which the Officer is required to complete investigation. The period may be extendable by six months hence, it is suggested that while laying down guideline, question relating to time limit, the CBI manual may be kept in mind as regards the prior sanction of government for initiating prosecution against a government servant. The period may be extendable by six months hence, it is suggested that while laying down guideline, question relating to time limit, the CBI manual may be kept in mind as regards the prior sanction of government for initiating prosecution against a government servant. Reliance is made to the case of Vineet Narain and Ors. v. Union of India 1998(1) SCC 226 wherein it was held that for grant of sanction for prosecution time frame should be strictly adhered to. However, additional time may be allowed where consultation is required with the Attorney General or any other law officer. The said view has been reiterated in the case of Dr. Subhramaniam Swamy v. Dr. Manmohan Singh and Anr. 2012 (3) SCC 65. Thus, at the stage of Section 19 of the PC Act, 1988, stress has been laid that the decision on the application for seeking sanction should not be more than three months from the date of submission of an application by the ACB authorities. 5. This Court while examining the public interest litigation issued interregnum directions to the State for keeping a regular vigil in grant of prosecution sanction at the earliest by the various departments. Secretary, Department of Personnel has issued general directions on 01st February, 2016 to all the head of the departments, Secretaries and additional Chief Secretaries, Commissioner and other department directing to take decisions on applications pending seeking sanction for prosecution relating to ACB matters. It was also cautioned that if the decisions are not taken the action would be treated as contemptuous and proceedings be initiated against the concerned persons. Another order which has been placed on record is dated 02nd September, 2016 issued by the Chief Secretary of the State of Rajasthan reiterated the order dated 01st February, 2016 directing all the additional Chief Secretaries to take decisions regarding grant of prosecution sanction. 6. This Court subsequently in D.B.Civil Writ Petition No.2642/2005 issued directions to the learned Counsel for the State to inform this Court about the pendency of cases lying with them relating to grant or not to grant sanction. Compliance report has been placed time and again by the State Government informing to the number of cases disposed of and the prosecution sanction matters which are pending for taking decision. The last compliance report which has been placed is dated 03.04.2017. 7. Compliance report has been placed time and again by the State Government informing to the number of cases disposed of and the prosecution sanction matters which are pending for taking decision. The last compliance report which has been placed is dated 03.04.2017. 7. Learned Counsel for the State appearing on behalf of the Advocate General states that as on today 30 cases are pending for decision relating to ACB matters which includes the recent cases which have come up during the last month. From the chart annexed with the compliance report, it is seen that as many as 13 cases are pending at the level of Department of Personnel while six cases are pending with the Urban Development and Local Self Government Department while 4 cases are pending in the Panchayati Raj Department, 3 cases are pending in the revenue department and one each is pending in education, medical, energy and forest department. 8. Learned Counsel for the State assures that decisions would be taken relating to the said cases too at the earliest. 9. We find that the Supreme Court in the case of L. Narayana Swamy v. State of Karnataka and Ors. 2016 (8) Scale 560 held as under :- "18. In the case of the present appellants, there was no question of the appellants' getting any protection by a sanction. The High Court was absolutely right in relying on the decision in Prakash Singh Badal to hold that the appellants in both the appeals had abused entirely different office or offices than the one which they were holding on the date on which cognizance was taken and, therefore, there was no necessity of sanction under Section 19, P.C. Act. Where the public servant had abused the office which he held in the check period but had ceased to hold "that office" or was holding a different office, then a sanction would not be necessary. Where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction." 10. Where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction." 10. In view of the above law, the authorities must also take a decision whether sanction is required to be given or not and the Chief Secretary may apprise the concerned authorities of the aforesaid legal position so that matters may now be expedited and reach to their logical end in the various Courts expeditiously. 11. The purpose of public interest litigation is essentially to put the Government functionaries in action and apprise them of the legal position and their duties which they are required to perform. 12. Having noted the steps taken by the Government we are satisfied that the matter can be given a quietus with directions to the State to keep a regular vigil with regard to pending applications relating to sanction under Section 19 of the PC Act of 1988. At the same time the ACB is expected to conduct their investigations expeditiously including preliminary enquiry and submit report of their investigation to the appropriate Court at the earliest. Necessary circulars in this regard may be issued at the level of the ACB by the Principal Secretary, Home Department/Additional Director General of Police as the case may be. 13. In view thereof notices in the Public Interest Litigation are discharged and petitions are consigned to record.