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2023 DIGILAW 706 (JHR)

Sanjay Kumar Thakur v. State of Jharkhand

2023-05-16

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : 1. Heard Mr. R.S. Mazumdar, learned senior counsel assisted by Mr. Shadab Bin Haque and Mr. Nishant Kumar Roy, learned counsel for the petitioner and Mr. Manoj Kumar assisted by Mr. Deepankar, learned counsel for the State. 2. After hearing the learned counsel for the parties, the judgment was reserved on 10.05.2023. 3. This petition has been filed for quashing of the order of sanction issued vide order dated 13.06.2017, contained in Annexure-10 in connection with G.R. Case No.372 of 2011 arising out of Sadar P.S. Case No.51/2011, pending in the court of the learned Chief Judicial Magistrate, Chaibasa. Subsequently, the cognizance has been taken vide order dated 01.03.2021 and that cognizance order was challenged in I.A. No.3975 of 2022 and that I.A. was allowed vide order dated 11.05.2022 and in that view of the matter, the order taking cognizance dated 01.03.2021 is also under challenge in this petition. 4. The FIR was lodged against the petitioner showing irregularity committed by the petitioner in preparation of the data with regard to the old age pension in different blocks. In the FIR, it was alleged that the petitioner has committed irregularities gainfully to give benefit to his own person as per sweet will. 5. Mr. R.S. Mazumdar, learned senior counsel appearing for the petitioner submitted that the petitioner was functioning as District Social Welfare Officer, Chaibasa and at that time he was holding the additional charge of the post of Assistant Director, Social Security. He further submitted that as per the policy decision of the Government of Jharkhand to enroll the name of old aged persons for grant of old age pension for which data has to be collected in view of the Scheme floated by the State Government and as per the direction of the then Deputy Commissioner, Chaibasa, the petitioner has issued notice in which it has been specifically mentioned for preparation of data under Indira Gandhi National Scheme for old widow/handicap. He also submitted that in view of the notice published by the petitioner for collecting data, which was to be collected block-wise, a date was fixed by the petitioner. In the said order, specific date has been shown for different blocks and the copy of the said letter has also been forwarded to the concerned authorities. He also submitted that in view of the notice published by the petitioner for collecting data, which was to be collected block-wise, a date was fixed by the petitioner. In the said order, specific date has been shown for different blocks and the copy of the said letter has also been forwarded to the concerned authorities. He further submitted that a letter was issued to the all concerned, who are involved in collecting data, in which one of the contractors, namely, Dream Infotec Pvt. Ltd. came forward in terms of the notice issued by the petitioner. He also submitted that the petitioner was given the additional charge of Assistant Director, Social Security by the order of the then Deputy Commissioner by which the petitioner has also been provided the power of Drawing and Disbursing Officer till the regular Assistant Director is appointed. He further submitted that when the FIR was lodged, the petitioner moved before this Court in A.B.A. No.3146 of 2011, which was disposed of by this Court with an observation that if the petitioner deposits the amount, as shown defalcated by him i.e. Rs.4.30 Lacs, his regular bail shall be considered by the concerned court. He also submitted that in view of the said observation, the petitioner sent a cheque of Rs.4.30 Lacs on 22.09.2011 to the office of the Social Security, Jharkhand, Ranchi and after receiving the said cheque, the same was returned to the petitioner observing therein that the said amount should be paid in the office of the Deputy Commissioner, Chaibasa and, thereafter the said amount was transferred to the office of the Additional Director, Social Security, Chaibasa on 13.10.2011. He submitted that in that view of the matter, there is no loss to the State. He further submitted that later on all of a sudden the petitioner came to know that a letter has been issued by the Deputy Commissioner, Chaibasa to the Principal Secretary, Social Welfare, Women and Child Development Department, Government of Jharkhand for putting the petitioner under suspension and initiation of departmental proceeding vide letter dated 08.10.2011, contained in Annexure-2 of the petition. The petitioner moved before this Court in W.P. (S) No.6196 of 2011 in which the said letter was under challenge. The petitioner moved before this Court in W.P. (S) No.6196 of 2011 in which the said letter was under challenge. He further submitted that the said writ petition was disposed of as withdrawn vide order dated 28.02.2012, however the observation was made therein that the application preferred by the petitioner for supply of documents will be decided by the respondent-authorities and, thereafter, the petitioner filed a representation for providing the said documents vide letter dated 07.03.2012. The concerned Secretary vide letter dated 19.03.2012 has directed respondent no.3 (Deputy Commissioner, Chaibasa) to provide documents sought by the petitioner. He submitted that before approval of the supply of the documents, the departmental Minister has also affirmed for supply of the documents. He submitted that in spite of that the documents were not provided to the petitioner. Thereafter, the petitioner moved before this Court in W.P.(S) No.2999 of 2015 in which the respondents have filed the counter affidavit stating therein that those documents are still unavailable. He further submitted that since the vital documents were not there that is why sanction was not granted earlier under Section 197 Cr.P.C. He submitted that later on without supply of the said documents, sanction has been granted, which is erroneous and application of mind is not there. To buttress this argument, he relied upon the judgment passed by the Hon'ble Supreme Court in Mansukhlal Vithaldas Chauhan v. State of Gujarat; [ (1997) 7 SCC 622 ]. 6. Paragraph 19 of the said judgment is quoted herein below: “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. 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.” 7. On the same point, learned senior counsel appearing for the petitioner relied upon the judgment passed by the Hon'ble Supreme Court in Nanjappa v. State of Karnataka; [ (2015) 14 SCC 186 ]. 8. Paragraph 20 of the said judgment is quoted herein below: “20. What is important is that, not only was the grant of a valid sanction held to be essential for taking cognizance by the court, but the question about the validity of any such order, according to this Court, could be raised at the stage of final arguments after the trial or even at the appellate stage. This Court observed: (C. Nagarajaswamy case [ (2005) 8 SCC 370 : (2006) 1 SCC (Cri) 47], SCC p. 375, paras 14-16). “14. Ordinarily, the question as to whether a proper sanction has been accorded for prosecution of the accused persons or not is a matter which should be dealt with at the stage of taking cognizance. But in a case of this nature where a question is raised as to whether the authority granting the sanction was competent therefor or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the accused for the purpose of determination as to who could remove him from service. 15. Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regard sanction may be determined at an early stage. … 16. But, even if a cognizance of the offence is taken erroneously and the same comes to the court's notice at a later stage a finding to that effect is permissible. It is desirable that the question as regard sanction may be determined at an early stage. … 16. But, even if a cognizance of the offence is taken erroneously and the same comes to the court's notice at a later stage a finding to that effect is permissible. Even such a plea can be taken for the first time before an appellate court.” 9. Learned senior counsel appearing for the petitioner further submitted that W.P.(S) No.2999 of 2015 was disposed of vide order dated 05.07.2019 considering the statement made in the counter affidavit to supply the documents to the petitioner within six weeks from the date of receipt/production of a copy of that order. He submitted that in spite of that the documents were not supplied and for that Contempt (Civil) Case No.326 of 2021 has been filed, which is pending and the opposite parties have been directed to file show-cause. He submitted that in absence of the said documents, the entire proceeding is going on, which is malicious. On these grounds, he submits that the entire criminal proceeding may kindly be quashed. 10. On the other hand, Mr. Manoj Kumar, learned counsel appearing for the respondent-State submitted that sanction is a matter which is not required to be considered at this stage as that can be considered at any stage of trial, as has been held by the Hon'ble Supreme Court in Parkash Singh Badal and another v. State of Punjab and others; [ (2007) 1 SCC 1 ]. 11. Paragraphs 48, 49 and 50 of the said judgment are quoted herein below: “48. The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial. 49. Great emphasis has been laid on certain decisions of this Court to show that even in relation to the offences punishable under Sections 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra case [ (2006) 1 SCC 557 : (2006) 1 SCC (Cri) 432]. 49. Great emphasis has been laid on certain decisions of this Court to show that even in relation to the offences punishable under Sections 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra case [ (2006) 1 SCC 557 : (2006) 1 SCC (Cri) 432]. That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately (sic linked) with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context. 50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence.” 12. Relying on this judgment, learned counsel for the respondent-State submitted that so far as point of sanction is concerned, that is valid one and this Court may not interfere. 13. Learned counsel for the respondent-State further submitted that defalcation of Rs.4.30 Lacs is there and that is why the case has been rightly instituted against the petitioner. 14. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on the record and finds that admittedly for loss of sum of Rs.4.30 Lacs, FIR has been registered. Subsequently, sanction has been made under Section 197 Cr.P.C. vide order dated 13.06.2017. The learned court has taken cognizance vide order dated 01.03.2021 and I.A. No.3975 of 2022 was filed by the petitioner for amendment in the prayer of the writ petition for challenging the order taking cognizance, which was allowed by this Court vide order dated 11.05.2022. It is an admitted fact that in terms of the the order passed in A.B.A. No.3146 of 2011, the amount of Rs.4.30 lacs was transferred to the office of the Assistant Director, Social Security, Chaibasa on 13.10.2011. It is an admitted fact that in terms of the the order passed in A.B.A. No.3146 of 2011, the amount of Rs.4.30 lacs was transferred to the office of the Assistant Director, Social Security, Chaibasa on 13.10.2011. Further, it appears that the documents required for proving the case of the petitioner, have not been supplied to him as yet. The department concerned as well as the concerned Minister have also approved for providing the documents to the petitioner and the petitioner has moved before this Court twice in W.P.(S) Nos. 6196 of 2011 and 2999 of 2015, which were disposed of with observation to supply documents to the petitioner, but the same have not been supplied as yet. The petitioner has also filed Contempt (Civil) Case No.326 of 2021, which is still pending. Thus, it is an admitted fact that vital documents have not been supplied to the petitioner earlier either in departmental proceeding or in the criminal proceeding. However, sanction has been granted by the competent authority for prosecuting the present case. In order of sanction only application of mind is required and if that is there sanction cannot be said to be bad one. Further, this aspect of the matter has been considered by the Hon'ble Supreme Court in Parkash Singh Badal (supra) and on that ground, the Court is not inclined to interfere with the order of sanction. 15. It is an admitted fact that the said amount has already been deposited by the petitioner, which has not been denied either in the counter affidavit or any reply filed by the respondent-State. Non supply of the documents as well as deposing the said amount, has not been any dishonest misappropriation of the property entrusted to the petitioner. The dishonest misappropriation as contemplated under Section 405 IPC, is required to be fulfilled in accordance with Section 406 and 420 IPC. It is well settled that a person charged with misdeclaration is entitled to know the ground on the basis whereof he would be penalised. He may have an answer to the charges or may not have. But there cannot be any doubt whatsoever that in law he is entitled to a proper hearing which would include supply of the documents. Only on knowing the contents of the documents, he could furnish an effective reply. He may have an answer to the charges or may not have. But there cannot be any doubt whatsoever that in law he is entitled to a proper hearing which would include supply of the documents. Only on knowing the contents of the documents, he could furnish an effective reply. This aspect of the matter has been considered by the Hon'ble Supreme Court in Kothari Filaments v. Commr. Of Customs; [ (2009) 2 SCC 192 ]. Paragraph 15 of the said judgment is quoted herein below: "15. The Act does not prohibit application of the principles of natural justice. The Commissioner of Customs either could not have passed the order on the basis of the materials which were known only to them, copies whereof were not supplied or inspection thereto had not been given. He, thus, could not have adverted to the report of the overseas enquiries. A person charged with misdeclaration is entitled to know the ground on the basis whereof he would be penalised. He may have an answer to the charges or may not have. But there cannot be any doubt whatsoever that in law he is entitled to a proper hearing which would include supply of the documents. Only on knowing the contents of the documents, he could furnish an effective reply. This aspect of the matter has been considered in Rajesh Kumar & Ors. v. Dy. CIT & Ors. [ (2007) 2 SCC 181 ], wherein this Court held : "48. in any event, when civil consequences ensue, there is hardly any distinction between an administrative order and a quasi judicial order. There might have been difference of opinions at one point of time, but it is now well-settled that a thin demarcated line between an administrative order and quasi-judicial order now stands obliterated. 49. Recently, in V.C. Banaras Hindu University v. Shrikant [ 2006 (6) SCALE 66 ], this Court stated the law, thus: ‘51. An order passed by a statutory authority, particularly when by reason whereof a citizen of India would be visited with civil or evil consequences must meet the test of reasonableness'." It was observed : "55. Justice, as is well known, is not only be done but manifestly seem to be done. If the assessee is put to notice, he could show that the nature of accounts is not such which would require appointment of special auditors. Justice, as is well known, is not only be done but manifestly seem to be done. If the assessee is put to notice, he could show that the nature of accounts is not such which would require appointment of special auditors. He could further show that what the assessing officer considers to be complex is in fact not so. It was also open to him to show that the same would not be in the interest of the Revenue. 56. In this case itself the appellants were not made known as to what led the Deputy Commissioner to form an opinion that all relevant factors including the ones mentioned in Section 142(2A) of the Act are satisfied. If even one of them was not satisfied, no order could be passed. If the attention of the Commissioner could be drawn to the fact that the underlined purpose for appointment of the special auditor is not bona fide it might not have approved the same.” 16. It appears that the said documents are vital documents and for that the petitioner has made several attempts by way of moving before the appropriate authority as well as the High Court and in spite of that the said documents have not been provided to him which seriously prejudiced the case of the petitioner. Further the case is not registered under the Prevention of Corruption Act, hence no case of cheating is made out. 17. In view of the above facts, reasons and analysis and considering that the amount has already been deposited and vital documents have not been provided to the petitioner in spite of several attempts made by him and the same was also not provided in view of the direction of the High Court and for that contempt proceeding is also initiated, which suggests that the entire case of the petitioner is prejudiced. Accordingly, so far as the petitioner is concerned, the entire criminal proceedings in connection with G.R. Case No.372 of 2011 arising out of Sadar P.S. Case No.51/2011 including the order taking cognizance dated 01.03.2021, pending in the court of the learned Chief Judicial Magistrate, Chaibasa is quashed. 18. Accordingly, this petition is disposed of.