Anivash Chander Sharma vs State of Haryana

G.S. Chahal, J.

Avinash Chander Sharma by means of this petition under Section 482 of the Code of Criminal Procedure seeks quashing of the police report dated 1971989 Annexure P1, Chargesheet, dated 2021990 Annexure P2 and the proceedings arising out from the police report and the chargesheet.

The facts in the basis of which the prosecution was launched may be briefly stated :

"Naib Singh complainant made complaint to Ranjit singh, Inspector, State Vigilance Bureau, Ambala, that his father Dharam Singh had taken a loan of Rs. 5000/ from the Haryana Khadi Gram Udyog, Ambala for installation of limekil, on 2411985. This amount was to be repaid in three instalments and he had paid two instalments and only one instalment was remained to be paid which fell due on 2411990. On 10th May, 1989, the petitioner who was working as Junior Auditor in the office of Khadi Gram Udyog visited Sadhaura and gave out threats to the complainant that unless bribe of Rs. 500/ was paid he will make adverse report and also inform the bank to effect recovery alongwith interest at the rate of 20%. Under this threat, Nasib Singh paid a sum of Rs. 100/ to the petitioner and promised to pay the balance of Rs. 400/ to him on 29th May, 1989. The petitioner also gave threat that if this fact was disclosed to any one he would make the case against him and send it to Chandigarh. Since Naib Singh did not want to pay illegal gratification he made his complaint to the Vigilance Inspector. The Inspector after taking currency notes of Rs. 400/ from Naib Singh treated them with phenolhethline powder and also affixed his own initials and gave them to Singh. The Inspector after obtaining permission from the Deputy Commissioner, Ambala, for conducting investigation, associated Mr. Subash Goel, Magistrate and carried out the raid. On the basis of the evidence collected, the petitioner was sent up for trial and he was charged for offences under Section 7 and 13(2) of the Prevention of Corruption Act."

The petitioner has challenged the prosecution on the basis that no valid sanction had been granted for his prosecution. The petitioner was employed as Junior Auditor with the haryana Khadi Gram Udyog and Village Industries Board and as per Appendix `C'' to the Haryana Khadi and village Industries Board (Service) Regulations, 1976, an employee can be dismissed from service, which may or may not be disqualification from future employment only by the Board. The sanction for prosecution in the present case was granted by the Chief Executive of the Board vide Annexure P3. The state has claimed sanction order to be valid on the basis that the Chief Executive has been clothed with certain powers vide Annexure P8, the same reads as follows :

"Item No. 1 : Regarding delegation of disciplinary powers to Chief Executive Under regulation 31A, Board may delegate, except the power to make regulations, its power to Chief Executive or Member Secretary. The relevant rule is as blow :

"The Board may, by resolution direct that any power exercisable by it under this Act or the regulations made there under, except the power to make regulations may also be exercised by the Chief Executive or Member Secretary as the case may be of the Board."

In view of the above cited Rule it is proposed that the ChiefExecutive of the Board may be delegated the powers to initiate the departmental enquiry against class III and class IV of the Board pending enquiry to suspend them, to appoint regular enquiry officer if the punishment to be inflicted upon the aforesaid employer is higher than censure the matter shall be placed before the Board.

In the light of the facts cited above, matter is placed before the Board for consideration and orders.

Regulation approved."

At a subsequent stage the police having asked for a clarification about sanction a resolution was put forth stating therein that the sanction accorded by the Chief Executive may be approved and vide proceedings Annexure P9 the same was approved by the Board on 9th October, 1991.

Section 31A of the Punjab Khadi and Village Industries Board Act, 1955 (Punjab Act No. 40 of 1956) gives power to delegate any of its specified powers, other than power to make regularation (?) to the Chief Executive or Member Secretary and these powers can be delegated vide Annexure P8 do not cover the powers to dismiss an employee and will not cloth the Chief Executive with the power to grant sanction for the prosecution.

The charges were framed on 20th February, 1990, i.e. prior to the approval dated 9th October, 1991 Annexure P9. The delegation of powers vide Annexure P8 did not clothe the Chief Executive with the powers of the Board to dismiss an employee, Section 19 of the Act which deals with the grant of previous sanction reads as follows :

"19. Previous sanction necessary for prosecution.

(1) No Court shall take cognizance of an offence punishable under Section 7, 10, 13 and 15 alleged to have been committed by 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.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government of the State Government or any other authority such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed."

The sanction thus clearly envisages the bar on the taking of the cognizance of offence unless previous sanction has been obtained. As was held in R.S. Nayak v. A.R. Antulay, AIR 1984 Supreme court 684, the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by Section 6 is the date on which the Court is called upon the take cognizance of the enumerated offences alleged to have been committed by a public servant. A trial without a sanction renders the trial ab initio void.

In the present case there was no valid sanction at the time of filing of report under Section 173 Cr.P.C. and the Court of Special Judge had no power to take cognizance of the offence in the absence of valid sanction. Grant of subsequent sanction could not validate the proceedings.

I, hereby, allow the prayer of the petitioner and, after accepting this petition quash the proceeding. It shall, however, be open to the authorities to obtain a valid sanction and launch prosecution, if so advised.