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SCR.A/1095/1995 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1095 of 1995
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
RAJIV
MADHAV SHANBHAG - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR
NITIN M AMIN for
MR MR ANAND for MR DIPAK C RAVAL for petitioner
MR UA TRIVEDI,
ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,
MR VIJAY H PATEL
for Respondent(s) : 2,
=========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 16/03/2010
ORAL
JUDGMENT
1. The
facts of the case stated briefly are that a first information report
came to be registered against the petitioner with the Mehsana
Anti-Corruption Bureau being Case No.5/92 alleging commission of the
offence punishable under Sections 7, 13(1)(d) read with Section 13(2)
of the Prevention of Corruption Act, 1988 (the Act). Upon conclusion
of investigation, the Investigating Officer submitted B-Summary final
report under Section 173 of the Code of Criminal Procedure, 1973 (the
Code). The learned Sessions Judge,Mehsana, vide order dated 25th
May, 1995, turned down the request of the Investigating Officer for
accepting the B Summary report and took cognizance of the offence
punishable under Sections 7, 13(1)(d) read with Section 13(2) of the
Act and directed issuance of process against the petitioner herein.
2. By
this petition under Articles 226 and 227 of the Constitution of
India, the petitioner has prayed to quash the order dated 25th
May, 1995 passed by the learned Sessions Judge, Mehsana, taking
cognizance of the offence referred to hereinabove and directing
issuance of process; as well as the process issued pursuant thereto.
3. Heard
Mr. Nitin Amin, learned advocate for the petitioner, Mr. U. A.
Trivedi, learned Additional Public Prosecutor for respondent No.1 and
Mr. Vijay Patel, learned advocate for respondent No.2 original
complainant.
Mr.
Nitin Amin, learned advocate for the petitioner, has submitted that
Section 19 of the Act mandates that no court shall take cognizance
of an offence punishable under Sections 7, 10, 11, 13 and 15 of the
Act, except with the previous sanction in case of a person who is
employed in connection with the affairs of a State and is not
removable from his office save by or with the sanction of the State
Government or the Central Government as the case may be, or the
authority competent to remove him from his office. It is submitted
that in the present case the Investigating Officer had submitted B
Summary final report and no sanction had been obtained from the
State Government to prosecute the petitioner as contemplated under
Section 19 of the Act. In the circumstances, in absence of necessary
sanction under Section 19 of the Act, it was not permissible for the
learned Sessions Judge, Mahesana to take cognizance of the offence
alleged. In support of his submissions, the learned advocate placed
reliance was placed upon the decisions of the Apex Court in case of
Ashok Mehta & Anr. v. Ram Ashray Singh & Ors., IV
(2006) CCR 24 (SC)
as well as in case of Ramanand Chaudhary v.
State of Bihar & Others, (2002) 1 Supreme Court Cases 153,
Mahendra Lal Das v. State of Bihar & Ors., (2002) 1 Supreme
Court Cases 149, Mansukhlal Vithaldas Chauhan v. State of Gujarat,
1998(1) G.L.H.248 as
well as unreported decision of this Court in Jayantibhai
Bhulabhai Patel v. State of Gujarat & Anothers
rendered in Misc. Criminal Application No. 47 of
1993 on
8th
March, 1995.
On
the other hand the learned advocates for the respondents have
supported the impugned order made by the learned Sessions Judge.
From
the facts noted hereinabove, it is apparent that pursuant to the
first information report in question, the Investigating Officer, on
conclusion of investigation, had submitted his final report under
Section 173 of the Code and had prayed for B Summary. Prior to
submitting the final report, sanction
to prosecute the petitioner under Section 19 of the Act had not been
obtained, and as such the report was not supported by a sanction
order under section 19 of the Act. The learned Sessions Judge, vide
impugned order dated 25th
May, 1995, had rejected the request for accepting the B Summary
report and had proceeded further to take cognizance of the offence
punishable under Section 7, 13(1)(d) read with Section 13(2) of the
Act and had directed issuance of process.
7. Section
19 (1) of the Act, insofar as the same is relevant for the purpose of
present case, reads thus:
19.
Previous sanction necessary for prosecution.-
(1) No Court shall take cognizance of an offence punishable under
Sections 7, 10, 11, 13 and 15 alleged to have been committed by a
public servant, except with the previous sanction.-
(a) in
the case of a person who is employed in connection with the affairs
of the Union and is not removable from his office save by or with the
sanction of the Central Government, of that Government;
(b) in
the case of a person who is employed in connection with the affairs
of a State and is not removable from his office save by or with the
sanction of the State Government, of that Government;
(c) in
the case of any other person, of the authority competent to remove
him from his office.
8. From
the language employed in the section, which is couched in the
negative, it is apparent that there is an express bar against any
Court taking cognizance of an offence punishable
under sections 7, 10, 11, 13 and 15 of the Act alleged to have been
committed by a public servant except with the previous sanction of
the concerned Government or the competent authority. In the facts of
the present case, it is an admitted position that no sanction as
envisaged under Section 19 of the Act has been obtained. In the
circumstances, it was not permissible for the learned Sessions Judge
to take cognizance of the offence under section 7, 13(1)(d) read with
section 13(2) of the Act against the petitioner without prior
sanction of the concerned authority. Cognizance without prior
sanction being expressly barred under Section 19 of the Act, the
impugned order dated 25th
May, 1995 made by the learned Sessions Judge, Mahesana cannot be
sustained.
9. In
view of the above discussion, the petition succeeds and is
accordingly allowed. The impugned order dated 25th
May, 1995 passed by the learned Sessions Judge, Mahesana below Exh.1
in Special (ACB) Case No. 9 of 1995 as well as the process issued
pursuant thereto are hereby quashed. Rule is made absolute.
[HARSHA
DEVANI, J.]
jani/parmar*
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