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2018 DIGILAW 393 (JK)

Gulzar Ahmad Lone v. State of J&K

2018-06-06

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : 1. The petitioner seeks issuance of a writ of certiorari for quashing Government order dated 15th May, 2018 by virtue of which sanction for prosecution of the petitioner in terms of Section 6 of the Jammu & Kashmir Prevention of Corruption Act. Samvat 2006, has been granted in FIR No.3 of 2014 dated 12.02.2014 registered with P/S Vigilance Organization, Kashmir, under Sections 5(2) and 4-A of the Jammu & Kashmir Prevention of Corruption Act. 2. The main ground of challenge as was urged by learned counsel for the petitioner was that the sanction granted was without application of mind. It was urged that the amount which was recovered from the petitioner was the lawful money which the contractor/complainant owed to the petitioner which the petitioner had deposited out of his pocket for purposes of inspection of a stabilizer 30 KVA which was sought to be supplied by the complainant. 3. On a perusal of the order impugned, it appears that the Additional Secretary to the Government had taken into consideration various facts which are more elaborately discussed in the order impugned before the sanction was granted. From the order, it appears that the complainant had approached the Vigilance Organization with the complaint that the petitioner had demanded Rs. 5000/- as bribe for releasing a CDR draft of Rs. 50,000/- which had been submitted by the complainant as security deposit against supply of 30 KVA voltage stabilizer in the department of Animal Husbandry Department, Ganderbal. It appears that on receipt of the complaint, FIR 3 of 2014 was registered with the police station VOK on 12th February, 2014 and the investigation was taken up. A trap was laid after complying with various formalities. In that regard tainted amount of Rs. 5000/- was recovered from the left pocket of the trouser worn by the petitioner which tallied with the number of the currency notes already noted during the pre-trap proceedings. The pocket wash of the trouser worn by the accused had also tested positive. Statement of witnesses also appeared to have been recorded under Section 161 and 164-A Cr.P.C., before the Judicial Magistrate. FSL report obtained during the course of investigation also confirmed the presence of phenolphthalein and the sodium carbonate used in trap proceedings which lent credence to the fact that the accused had accepted the bribe amount. Statement of witnesses also appeared to have been recorded under Section 161 and 164-A Cr.P.C., before the Judicial Magistrate. FSL report obtained during the course of investigation also confirmed the presence of phenolphthalein and the sodium carbonate used in trap proceedings which lent credence to the fact that the accused had accepted the bribe amount. The Government appears to have considered the entire material and finally accorded sanction by virtue of the order impugned. 4. Section 6 of the Prevention of Corruption Act, envisages that no court shall take cognizance of an offence punishable under the provisions of the Prevention of Corruption Act, alleged to have been committed by a public servant except with the previous sanction of the Government. The manner in which the Government has to act while granting sanction was laid down in Supdt. Of Police (CBI) v. Deepak chowdhary : (1995) 6 SCC 225 when the court held thus: “5. We find force in the contention. The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction. The grant of sanction, therefore, being administrative act the need to provide an opportunity of hearing to the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation of the principles of natural justice.” 5. In C. S. Krishnamurthy v. State of Karnataka : (2005) 4 SCC 81 , the Apex Court held that “the order of sanction should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind.” It was further held that “in case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order.” 6. In R. Sundararajan v. State : (2006) 12 SCC 749, the Apex Court held thus: “14. In R. Sundararajan v. State : (2006) 12 SCC 749, the Apex Court held thus: “14. In this connection, it may be mentioned that we cannot look into the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a Court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same at great details. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated.” 7. In State of Maharashtra through CBI v. Mahesh G. Jain : (2013) 8 SCC 119 , the Apex Court, after considering the various judgments on the point crystalized the following principles: 14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. 14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution. 14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him. 14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. 14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. 14.6. If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction. 14.7. The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity. “14. 14.7. The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity. “14. From the aforesaid authorities the following principles can be culled out: - 15. On perusal of the order impugned, it becomes clear that the Government appears to have taken into consideration the relevant material which is more elaborately discussed in the order impugned and rightly appears to granted sanction for prosecution. 16. Having heard counsel for the petitioner and having gone through the material on record, I am satisfied that the writ petition is without any merit and, as such, is dismissed.