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2024 DIGILAW 356 (RAJ)

Shiv Kumar Kalla v. State of Rajasthan

2024-02-26

VINIT KUMAR MATHUR

body2024
JUDGMENT : Mr. Vinit Kumar Mathur, J. - Heard learned counsel for the petitioners. 2. The present writ petition has been filed against the orders dated 11.08.2023 & 21.11.2022, whereby the prosecution sanction has been granted against the petitioners. 3. Briefly, the facts noted in the present writ petition are that while the petitioners were working on the post of Sarpanch, Ward Panch and Panch, an FIR bearing No.312/2016 was registered against them under Sections 409 & 120B of IPC and under Sections 13(1)(c)(d) & 13(2) of the Prevention of Corruption Act, 1988. After registration of the FIR, the matter was investigated by the Investigating Agency and the same was sent to the Prosecution Sanctioning Authority for grant of prosecution sanction to proceed against the petitioners. The Prosecution Sanctioning Authority vide its orders dated 11.08.2023 (Annex.1) and 21.11.2022 (Annex.2) granted the prosecution sanction against the petitioners. Hence, the writ petition has been filed. 4. Learned counsel for the petitioners vehemently submits that the authority concerned vide letter dated 05.07.2023 had called the petitioners for personal hearing in the case. In pursuance of the letter dated 05.07.2023, the petitioners appeared before the competent authority and submitted their representations as well as made oral submissions. Learned counsel further submits that despite the petitioners having called for the personal hearing, the contentions raised by them orally and also in the representation, have not been taken note of while passing the orders dated 11.08.2023 & 21.11.2022 respectively. 5. Learned counsel for the petitioners further submits that a bare perusal of the orders dated 11.08.2023 & 21.11.2022 shows that there is no application of mind on behalf of the Prosecution Sanctioning Authority, more particularly, when none of the submissions made before it has been discussed and mentioned while passing the orders. He therefore, prays that the writ petition may be allowed and the orders dated 11.08.2023 (Annex.1) & 21.11.2022 (Annex.2) may be quashed and set aside. 6. To support his contentions, learned counsel for the petitioners has relied upon an interim order passed in the similar circumstances by a Co-ordinate Bench of this Court on 10.05.2021 in S.B. Civil Writ Petition No.7171/2021: Bahadur Singh Mayda v. State of Rajasthan & Ors. and also relied upon a judgment rendered by a Co-ordinate Bench of this Court on 28.07.2023 in S.B. Civil Writ Petition No.268/2019: Satyanarayan Verma v. State of Rajasthan & Ors. 7. and also relied upon a judgment rendered by a Co-ordinate Bench of this Court on 28.07.2023 in S.B. Civil Writ Petition No.268/2019: Satyanarayan Verma v. State of Rajasthan & Ors. 7. I have considered the submissions made at the Bar and gone through the relevant record of the case including the impugned orders dated 11.08.2023 & 21.11.2022. 8. A bare perusal of the orders dated 11.08.2023 & 21.11.2022 clearly shows that the Prosecution Sanctioning Authority has carefully noted the entire facts of the case and has recorded its satisfaction by mentioning that it has gone through the entire records of the case and has considered the submissions made before it while passing the orders. It is also stated that the Investigating Officer was also called on 10.07.2023 and the matter was threadbare discussed with him. 9. In the opinion of this Court, the material placed before the Sanctioning Authority and the relevant facts have been duly considered for grant of prosecution sanction in this case. 10. A perusal of the orders dated 11.08.2023 & 21.11.2022 discloses that in the present case, while granting the prosecution sanction, the Sanctioning Authority has applied its own independent mind for generation of genuine satisfaction. This Court is firmly of the view that while considering the case in hand, the contents of the FIR and investigation papers have been thoroughly noted in the present case which shows that Prosecution Sanctioning Authority has applied its mind. The Sanctioning Authority has discharged its duties by taking note of the detailed facts submitted before it as reflected in the investigation papers and further it is discernible from the recital of the order that the Sanctioning Authority has also discussed the matter with the Investigation Officer. 11. The guiding factors for grant of prosecution sanction as held by the Hon'ble Supreme Court in the case of C.B.I. v. Ashok Kumar Aggarwal, reported in (2014), 14 SCC 295, reads as under:- "15.Considering of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an interference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter-alia on the ground that the order suffers from the vice of total non-application of mind. (Vide: Gokulchand Dwarkadas Morarka v. King AIR 1949 PC 82; Jaswant Singh v. State of Punjab A.P. AIR 1979 SC 677 ; State through Anti-Corruption Bureau, Govt of Maharashtra v. Krishanchand Khushalchand Jagtiani AIR 1996 SC 1910 ; State of Punjab v. Mohd. Iqbal Bhatti (2009) 17 SCC 92 ; Satyavir Singh Rathi, ACP v. State AIR 2011 SC 1748 ; and State of Maharashtra v. Mahesh G. Jain (2013) 8 SCC 119 . 16. In view of the above, the legal propositions can be summarised as under: 16.1 The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. 16.2 The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. 16.3 The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. 16.3 The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. 16.4 The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. 16.5 In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law of application of independent mind by the sanctioning authority." 12. The judgment relied upon by the learned counsel for the petitioners in the case of Satyanarayan Verma (supra) reads as under:- "This Court also observes that validity of sanction for prosecution would depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. It is important to note that consideration implies the application of mind as the order of sanction must ex-facie disclose that the sanctioning authority has applied its own independent mind for the generation of genuine satisfaction while granting the sanction. Since, the discretion to grant or not to grant sanction rests absolutely to the sanctioning authority, therefore, its discretion to show that the sanctioning authority has applied its own independent mind while granting the prosecution sanction and in the case in hand, the order dated 16.11.2018, lacks application of mind being ad-verbatim the same. However, the competent authority is at liberty to reconsider the entire matter afresh at its own in accordance with law for grant of sanction to prosecute the petitioner under the provisions of the Act of 1988." 13. A bare perusal of the judgment relied upon by learned counsel for the petitioners shows that there should be due application of mind by the Prosecution Sanctioning Authority and an independent opinion is required to be made while granting prosecution sanction in a particular case. A bare perusal of the judgment relied upon by learned counsel for the petitioners shows that there should be due application of mind by the Prosecution Sanctioning Authority and an independent opinion is required to be made while granting prosecution sanction in a particular case. In the present case, the detailed facts noted in the orders dated 11.08.2023 and 21.11.2022 clearly show that the Prosecution Sanctioning Authority has taken note of all the facts and after having gone through the entire investigating material and the discussion with the Investigating Officer on 10.07.2023, it has recorded its satisfaction before coming to the conclusion and therefore, in the opinion of this Court, the grant of prosecution sanction in the present case is not vitiated only on the ground that the contentions raised in the representation filed by the petitioners and in the personal hearing, are not noted in detail while passing the order for prosecution sanction by the authority concerned. Thus, in the opinion of this Court, it is not necessary to mention the submissions made by the learned counsel for the petitioners in the present case while passing prosecution sanction order as necessary facts mentioned in the FIR, investigating papers and material placed before the Sanctioning Authority were duly considered, the application of mind is reflected while issuing the orders dated 11.08.2023 and 21.11.2022. 14. In view of the discussion made above, I am not inclined to interfere in the orders dated 11.08.2023 and 21.11.2022 passed by the Prosecution Sanctioning Authority. The writ petition lacks merit and the same is hereby dismissed.