Criminal Misc. No. M- 41589 of 2005 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CANDIGARH
Crl Misc. No. M- 41589 of 2005
Date of Decision: 14.1.2009
Harbans Lal
.......Petitioner.
Vs.
State of Punjab and another
.......Respondents.
CORAM: HON'BLE MRS.JUSTICE DAYA CHAUDHARY.
Present: Mr.H.S.Gill, Sr. Advocate, with
Mr.Vivek Goyal, Advocate for the petitioner.
Mr. KDS Sidhu, DAG, Punjab for respondent No.1.
Mr.R.K.Girdhar, Advocate, for respondent No.2.
***
Daya Chaudhary, J.
The present petition has been filed under Section 482 Cr.P.C.
for quashing of order (Annexure P-3) whereby sanction for prosecution of
the petitioner in case FIR No. 54 dated 5.11.2003 under Sections 7/13(2) 88
of Prevention of Corruption Act, P.S.Vigilance Bureau, Bathinda Range,
Bathinda, has been granted.
Briefly, the facts of the case are that in the year 2003, petitioner
Harbans Lal was working as an Accountant in the Head Post Office,
Faridkot and was also having charge of Assistant Post Master. Shri
R.Prince Narula, respondent No.2, a small savings agent, was also working
at Faridkot. On the complaint filed by respondent No.2, FIR No. 54 dated
5.11.2003 was registered under Section 7/13(2) 88 of Prevention of
Corruption Act, Police Station Vigilance Bureau, Bathinda for acceptance
Criminal Misc. No. M- 41589 of 2005 (2)
of Rs.500/- as bribe from him. The investigation of the case was conducted
into the allegations against the petitioner by Assistant Superintendent of
Post Office, Faridkot and the petitioner was found innocent. After
investigation, the vigilance bureau submitted the case for grant of sanction
for prosecution of the petitioner. The competent authority after considering
the record of the investigation as well as departmental inquiry conducted by
Assistant Superintendent, Post Office Faridkot and inquiry conducted by
District Magistrate, Faridkot, refused to grant sanction vide order dated
9.3.2004. Later on, on the basis of another reference made, the competent
authority vide letter dated 28.7.2004 after consulting the inquiry conducted
by vigilance department as well as District Magistrate and Assistant
Superintendent, Post Office, Faridkot, found the petitioner innocent.
Accordingly, on the directions of Chief Director, Vigilance
Bureau, the Deputy Superintendent of Police (Vigilance), submitted
cancellation report before the Sessions Judge, which was not accepted.
Ultimately, the Superintendent Post Office, granted sanction
vide order Annexure P-3, which is the subject-matter of challenge in the
present writ petition.
Shri H.S.Gill, learned Senior Counsel for the petitioner, has
challenged the sanction order Annexure P-3 on various grounds. He argued
that senior officers of the Post Office Department i.e. Assistant
Superintendent conducted the departmental inquiry into the allegations, and
found the petitioner innocent and in the inquiry report itself, the petitioner
was found to be a dedicated worker. It has also been mentioned therein that
complainant Shri R.Prince Narula is a person of bad character and was
instrumental in getting wrong things done through the petitioner, which the
Criminal Misc. No. M- 41589 of 2005 (3)
petitioner refused to do so. It was further argued by Mr. Gill that the
District Magistrate had got the inquiry conducted into the allegations
against the petitioner, but it was found that the petitioner was wrongly
involved in a false case. The matter was put up before the competent
authority for grant of sanction which was declined by holding that the
petitioner has falsely been implicated. Subsequently also, the matter was
referred to the competent authority for grant of sanction, but the same was
declined vide order Annexure P-2.
Mr. Gill, learned Senior Counsel, vehemently argued that
grant of sanction for prosecution in such cases is not simply a formality but
a statutory function and the said power is to be exercised after thorough
consideration of all the facts and circumstances of the case and that power
once exercised cannot be reviewed by the same or another authority. Mr.
Gill further argued that the trial Court cannot take cognizance of offence
without grant of valid sanction by the competent authority and, therefore,
the proceedings before the trial Court are liable to be quashed.
Learned counsel for the petitioner has also placed reliance on
judgments reported in Dr.Jaswinder Kaur Vs. State of Punjab and
another 2001(2) RCR (Crl.) 58; Mallikarjun Basalinagappa Balipadi
Vs. State of Karnataka 2005(2) RCR (Crl.) 263; Surjit Singh Vs. State
of Punjab and others 1980(1) ILR (P&H) 11; and Mohammed Iqbal
Bhatti Vs. State of Punjab 2006(2) RCR (Crl.) 430.
Separate written statements have been filed on behalf of the
respondents, which are on record.
Learned counsel for the State argued that DSP Vigilance
Bureau investigated the matter in compliance of the order dated 19.11.2004
Criminal Misc. No. M- 41589 of 2005 (4)
passed by learned District & Sessions Judge, Faridkot, and sanction was
accorded for prosecution after perusing the evidence on record.
In the written statement filed by respondent No.2, it has been
averred that the petitioner was caught red handed while accepting bribe of
Rs.500/- from the answering respondent. Learned counsel further argued
that the departmental inquiry and criminal proceedings are two different
things and it is for the trial Court to see whether the petitioner has
committed any offence and is liable to be punished under the Prevention of
Corruption Act, 1988 or not. Moreover, the cancellation report was
rejected by the learned Sessions Judge as the vigilance bureau failed to
produce the complete challan, including the sanction order, and it cannot be
said that the directions were given by the learned Sessions Judge for grant
of sanction. Mr. R.K.Girdhar, learned counsel for respondent No.2, has
placed reliance on a judgment of Hon’ble the Apex Court reported in State
of Karnataka through CBI Vs. C. Nagarajaswamy 2005 AIR (SC) 4308.
I have heard the arguments of learned counsel for the parties
and perused the documents on record.
It is an admitted fact that vide order dated 9.3.2004 (Annexure
P-1) no sanction was granted by the respondent and it was specifically
mentioned in the said order that the petitioner is an innocent and honest
worker and has falsely been implicated in the case at the instance of
respondent No.2, who wanted to get his wrong work done forcibly under
threats, whereas the petitioner refused to do his work. Again vide order
dated 28.7.2004 (Annexure P-2), the competent authority declined the
sanction by passing a speaking order.
The sanction has been accorded vide order Annexure P-3
Criminal Misc. No. M- 41589 of 2005 (5)
without any further investigation or without there being any material
collected by the concerned authority. Section 19 of the Prevention of
Corruption Act, 1988 prohibits a Court from taking cognizance of offence
punishable under Sections 7,10,13 and 15 except with the previous sanction
of the concerned Government. When there is no valid sanction, the Court
cannot take cognizance of the offence. Therefore, the FIR and other
consequential proceedings, including the sanction order, have to be
quashed.
In case Kashmir Singh Vs. State of Punjab and others,
(Crl.Misc.No.825-M of 1996) this Court quashed the order of sanction as
also the subsequent proceedings. The relevant portion of the judgment is
reproduced as under:
” There is nothing to show that he considered the
earlier rejection order or that any fresh material
was placed before him or that he found sufficient
reasons for rejecting the earlier order declining the
permission and for reviewing it. In these
circumstances, I am of the view that the Special
Secretary who accorded sanction under Annexure
P-8, has not applied his mind at all to the matter in
question before he accorded the sanction. Had he
applied his mind, then we would find mention in
his order about the earlier rejection and the reasons
for his coming to a different conclusion. Therefore,
I am of the view that the sanction (Annexure P-8)
to prosecute the petitioner is not valid…….
Criminal Misc. No. M- 41589 of 2005 (6)
Section 19 of the Prevention of Corruption Act,
1988, prohibits a Court from taking cognizance of
offences punishable under Sections 7,10,11,13 and
15 except with the previous sanction of the
concerned government. Therefore, when there is
no valid sanction, the Court cannot take
cognizance of the offence. Therefore, the FIR and
the other consequential proceedings including the
sanction order have to be quashed. Even if the
charge sheet has been filed, the position will be the
same since the court cannot take cognizance of the
offence without a valid previous sanction and the
absence of a vlid sanction goes to the root of the
matter affecting the very jurisdiction of the Court
to take cognizance of the offence. In the absence
of a valid sanction, the Court is not only prevented
from taking cognizance of the offence, but it
cannot, also convict the accused and, therefore, no
useful purpose will be served by allowing the FIR
concerned and the consequential proceedings to
continue. Hence this petition has to be allowed.”
It has been held that case of the petitioner is covered by the aforesaid ratio
as in absence of some fresh material or some technical infirmity, or some
clerical error, the competent authority had no power to review the earlier
order on merits.
The provisions of Section 19 of the Prevention of Corruption
Criminal Misc. No. M- 41589 of 2005 (7)
Act have also been considered by this Court in case of Hamesh Kumar Vs.
State of Punjab 1999(2) RCR (Crl.) 351. In para No.6 of the judgment, it
has been observed as follows:
“After considering the rival contentions of
the parties, I am of the considered opinion
that no prosecution can be launched against
the petitioner as the investigating agency has
not procured the valid sanction from the
competent authority and that order Annexure
P-16 which has been passed by respondent
No.3 does not give him the power to grant
valid sanction under Section 19 of the
Prevention of Corruption Act. Section 19 of
the Act has been incorporated in the Act
with a laudable purpose to safeguard the
interest of public servants so that these
persons may not be harassed unnecessarily
by unscrupulous litigants. The object of
Section 19 is to secure the interest of a
public servant from vexatious and frivolous
litigation so that the sword of tension may
not hang on his neck for years together. That
is the reason the legislature in its wisdom
has categorized the public servants into three
categories and has ultimately vested these
powers to the Central Government, State
Criminal Misc. No. M- 41589 of 2005 (8)Government or to the authority competent to
remove a public servant from his office. The
scheme of the Act as I understand is that
after investigating the matter, the
investigating agency has to place the entire
evidence which has been collected during
the course of investigation including the
documents and the statements of the
witnesses before the competent authority
which is supposed to apply its mind in a
quasi-judicious manner so as to arrive at an
independent conclusion as to whether a
public servant has prima facie committed the
offence or not. Of course, the duty upon the
competent authority is onerous as it is to
formulate an opinion in an unbiased mind.
But once it formulates an opinion acting in a
quasi-judicious manner, then the
investigating agency cannot set at naught the
decision so taken by the competent
authority, the successor authority cannot
review the order once that power has been
exercised/discharged by a competent
authority at one point of time……”
In the case of Hari Singh Mann Vs. Harbhajan Singh Bajwa and others
AIR 2001 SC 43 the Supreme Court while considering the ambit of the
Criminal Misc. No. M- 41589 of 2005 (9)
power of review to be exercised by the High Court, observed as follows:
“There is no provision in the Code of
Criminal Procedure authorizing the High Court to review
the judgment passed either in exercise of its appellate or
revisional; or original criminal jurisdiction. Such a power
cannot be exercised with the aid or under the cloak of
Section 482 Cr.P.C.”
It is clear from the above-said judgments and the position of
law that power of review can be used for correcting a clerical or arithmetical
error. It cannot be used to correct an erroneous view that may have been
taken on the facts of a particular case. Moreover, the Hon’ble Supreme
Court of India has held that even inherent power under Section 482 Cr.P.C.
cannot be exercised by the High Court for reviewing its earlier orders.
Under the prevention of Corruption Act, there are no residuary or inherent
powers which are vested with the competent authority to review the orders
time and again. Once the competent authority has taken a conscious
decision on the basis of the relevant material and for relevant
considerations, the same would not be open to review. Otherwise, the
protection granted to the public servant under Section 19 would be
rendered nugatory. Once the investigating agency has submitted the entire
material, it has no further role to play and it is only for the competent
authority to decide whether the sanction for prosecution is to be given or
not. In the present case, while exercising power, the competent authority
had declined to give sanction twice. This order cannot be reviewed
subsequently without any material on the record.
Criminal Misc. No. M- 41589 of 2005 (10)
In view of the facts mentioned above, this petition is allowed.
The impugned order Annexure P-3, FIR No. 54 dated 5.11.2003 under
Sections 7/13(2) 88 of Prevention of Corruption Act, P. S.Vigilance Bureau,
Bathinda Range, Bathinda, and all consequential proceedings arising
therefrom are hereby quashed.
(Daya Chaudhary)
Judge
January 14, 2009
raghav