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Judgment
Premod Kohli, J.—Petitioners in these two petitions are accused in FIR No. 34 of 1999 and are facing trial in Challan No. 31 of 2002 for
offence u/s 5(2) of Prevention of Corruption Act read with Section 161 and 120B RPC. The legality and validity of Order dated 19.2.2003
framing charge against the accused persons and putting them to trial, has been questioned in the present proceedings. Petitioner in Petition No.
56/2003 was a teacher in the Education Department and came to be adjusted in Adult Education, District Jammu on migration from Kashmir
Valley during the year 1991. Subsequently, he was posted in Relief Organisation in the year 1999. Petitioner in Petition No. 46/2003 was serving
as Zonal Officer in the Relief Organisation in the year 1999. They were entrusted the job of releasing ration and other relief to the migrants. One
Kuldip Kapoor lodged complaint with the Vigilance Organisation alleging therein that he was getting relief and ration from the Relief Department
being a migrant and the petitioners in these petitions stopped his relief and ration. Ashok Kumar Koul petitioner had demanded Rs. 10,000/- as
bribe for continuing relief on behalf of petitioner Prem Bhushan Gupta. He met Prem Bhushan Gupta and settled the deal for Rs. 6000/- to be paid
in two installments. He was going to pay first installment of Rs. 3000/- to Prem Bhushan Gupta and Ashok Kumar Koul. On this written complaint,
FIR 34/99 was registered by the Vigilance Organisation. A trap was laid and Ashok Kumar Koul petitioner was allegedly apprehended while
accepting bribe from the complainant on 24.5.1999. Other accused, Prem Bhushan Gupta was also arrested and both of them released on bail.
On completion of investigation, sanction for prosecution was granted vide Government Order No. 11-GAD (Vig) of 2000 dated 2.3.2000 only
for prosecution of Ashok Kumar Koul petitioner u/s 5(2) P.C. Act. Consequently, charge sheet filed before Special Judge, Anti Corruption,
Jammu. On consideration of material on record, Special Judge Anti Corruption was of the view that Prem Bhushan Gupta the other accused
person who is said to have demanded money, should not have been left out on the ground of administrative lapse. Accordingly, learned Special
Judge Anti Corruption vide his order dated 19.2.2001 returned challan to the Vigilance Organisation for further investigation and to clarify the role
of Prem Bhushan Gupta who was incharge of Zone and is said to have demanded money and on whose direction the money was paid to Ashok
Kumar Koul. The file was accordingly handed over to Deputy Director (Prosecution), Vigilance Organisation for further investigation as is evident
from the endorsement at the foot of the judgment. Order dated 19.2.2001 passed by the Special Judge Anti Corruption was challenged by
accused Ashok Kumar before this court in 561-A proceedings by Petition No. 14/2001. Learned Single Judge of this court set aside the order
vide his judgment dated 1.10. 2001 with the following observations :
It is now settled proposition of law that while the Magistrate/Special Judge Anti Corruption has taken cognizance of the matter, he has no
jurisdiction to direct further investigation. He is only having jurisdiction at this stage to hear the parties on the question of charge and discharge and
pass appropriate order.
Apparently impugned order is bad and cannot be maintained. Mr. Gupta learned counsel representing the petitioner has submitted that the rights of
the petitioner have been affected as he has been placed under suspension and if the impugned order is allowed to stand, the re-investigation will
take some time. He has no objection for disposal of this petition, directing the Special Judge Anti Corruption, Jammu to proceed with the trial to
the petitioner.
Accordingly, this petition is disposed of directing the learned Special Judge Anti Corruption, Jammu shall hear the petitioner on the question of
charge and discharge and pass appropriate orders. However, the prosecution is at liberty to further investigate the occurrence on its own and if the
case is made out against the other accused also, can file fresh charge sheet.
In view of the above direction of this court, the trial court was required to proceed with the trial and pass appropriate orders on the question of
framing the charge. It appears that the file remained with the Vigilance Organisation, who re-examined the issue and approached the Government
for fresh sanction for prosecution of Prem Bhushan Gupta. The competent authority in the General Administration Department issued Government
Order No. 38-GAD (Vig.) of 2001 dated 20.11.2001 granting sanction for prosecution of Prem Bhushan Gupta, petitioner in Petition No.
46/2003 and Ashok Kumar Koul, petitioner in Petition No. 56/2003. Based upon the aforesaid sanction, a supplementary charge sheet was
produced before the Special Judge Anti Corruption against both the petitioners herein. Learned Special Judge Anti Corruption again heard the
parties and passed the order dated 19.2.2003 framing charge against the accused persons. It is this order, which is sought to the quashed.
The impugned order has been challenged on following common grounds raised in both the petitions:
(i) the second sanction dated 20.11.2001 granted by the government suffers from non application of mind;
(ii) the sanctioning authority had no jurisdiction to review its earlier order;
(iii) the charge has been framed on two challans which is impermissible;
(iv) second charge sheet has been produced pursuant to direction of the Special Judge Anti Corruption contained in order dated 19.2.2001, which
order was set aside by the High Court on 1.10.2001;
(v) the Vigilance Organisation filed second charge sheet without further investigation being conducted and without there being fresh material; and
(vi) Ashok Kumar, petitioner has taken an additional plea that there is no demand of bribe on his part.
I have heard learned counsel appearing for petitioners and Mr. B.S. Slathia, learned AAG.
From the sanction order dated 2.3.2000, it appears that the Government was of the opinion that Ashok Kumar Koul who accepted bribe
amount when the trap was laid, is guilty of offence and should be prosecuted. There is no mention of other accused person or the circumstances
that led to his exclusion from the sanction/charge sheet. In paras 4, 5 and 6 of sanction order dated 20.11.2001, it is specifically observed that the
Investigating Officer namely; H.K. Nazar was of the opinion that a case for prosecution is established against Prem Bhushan Gupta the then Zonal
Officer and Ashok Kumar Koul dealing assistant, whereas there is insufficient evidence against one Brij Nath Tikoo and Romesh Kumar. This
opinion of the Investigating Officer, was accepted by the Senior Superintendent of Police (Vigilance Commissioner), who recorded the supervisory
comments that a prima facie case is made out against these two officials. Then Vigilance Commissioner, however, held a contrary view and opined
that only Ashok Kumar, who accepted the bribe amount, be prosecuted, whereas Prem Bhushan Gupta is liable for administrative lapse. The
sanction order further reveals that after passing of the order by Special Judge Anti Corruption, the matter was re-examined and it was found that
due to erroneous opinion. Prem Bhushan Gupta had been dropped at the final stage while recommending the case for sanction though his
complicity in the crime had been established on the basis of evidence. Para-9 of the aforesaid order deals with the opinion of the Sanctioning
Authority, which is reproduced hereunder: ""Whereas, the Government re-examined the case in the light of evidence, issues raised by the Court and
the reports of Investigating Officers also his Supervisory Officer- SP and applied its mind to the material and evidence and has come to the
satisfaction that the demand for illegal gratification originated from Shri Prem Bhushan Gupta, the man an authority, while the Dealing Assistant Shri
Ashok Kumar provided connivance and co-operation in executing their mutual criminal design of obtaining illegal gratification from the complainant.
Shri Gupta is seen to have even settled the amount with the complainant and also directed him to hand over the same to his Dealing Assistant
Ashok Kumar which he did. As such, the Government is satisfied on the re-appraisal of the evidence that a prima facie case u/s 5(1)(a)(d) read
with Section 5(2) of the J&K Prevention of Corruption Act, 2006, read with Sections 161 and 120B RPC is made out against both the accused
namely Shri Prem Bhushan Gupta, then Tehsildar/Zonal Officer, Zone-III Bakshi Nagar, Jammu and Ashok Kumar then Dealing Assistant/Teacher
of the said Zone of Relief Department, Jammu and that they should be prosecuted for the said offences.
It has been vehemently argued on behalf of the petitioners that once the Sanctioning Authority came to the conclusion that only Ashok Kumar
Koul is to be prosecuted, it was not entitled to re-examine the issue and formulate a different opinion on the basis of same evidence and material to
hold the other accused liable for prosecution. According to learned counsel, second sanction dated 20.11.2001 is bad in law and is a consequence
of total non-application of mind by Sanctioning Authority, which renders it invalid and void ab initio. It has also been urged that the Sanctioning
Authority was not competent to review its own order. Reliance is placed on judgment of this court in case titled State v. Mohamad Raza Beg 1981
SLJ 416 J&K .
In the above case, charge sheet was produced against one Mohamad Raza Beg for offence u/s 5(2) Prevention of Corruption Act and during
the pendency of charge sheet before the court, fresh sanction u/s 161 RPC was also granted by government and application was made to the court
for amendment of the charge based upon fresh sanction. This court ruled that under the scheme of the Act, the authority was not entitled to revise
the sanction. Reliance is also placed upon Ghulam Mohd. Lone Vs. Under Secretary to Govt. Home Department (Vig) J. and K. Government and
Others, . In this case, the High Court observed as follows :
Therefore, seeking of sanction is mandatory provision in law. Any case instituted without proper sanction must fail because this is a manifest defect
in the prosecution rendering entire proceedings void ab initio. Grant of sanction is not an idle formality or acrimonious exercise but a solemn and
sacrosanct act which affords protection to Government servants against frivolous prosecution and must therefore, be strictly complied with before
any prosecution can be launched against the public servant concerned. While examining this question what court has to see is whether or not the
sanctioning authority at the time of giving sanction was aware of the facts constituting the offence and applied his mind for the same: any subsequent
fact which may coma into existence after the grant of sanction is wholly irrelevant.
In the present case, second sanction clearly deals with the circumstances that led to passing of the first sanction order dated 2.3.2000 whereby
sanction was granted only against Ashok Kumar Koul, accused. On the basis of observation of the Special Judge Anti Corruption, the government
on re-examination of the facts i.e. evidence and other material collected by the Investigating Agency during the course of investigation found
adequate evidence to prosecute both the accused persons. This material was in existence at the time of grant of first sanction but on account of
opinion of the Commissioner of Vigilance, sanction was granted for prosecution of Ashok Kumar Koul accused only and other accused was
directed to be dealt with by departmentally. The ratio of the judgment reported in Ghulam Mohd. Lone Vs. Under Secretary to Govt. Home
Department (Vig) J. and K. Government and Others, prohibits taking note of facts gathered after the grant of sanction but in the present case, the
facts were already in existence and placed before the Sanctioning Authority when first sanction was granted. As far the judgment reported in 1981
SLJ 416 is concerned, though the learned Judge did consider application of Section 21 of General Clauses Act, but he was of the opinion that
same cannot be put to aid for alteration/amendment of the sanction. In case of Sampat Prakash Vs. The State of Jammu and Kashmir and
Another, the apex court has held as under :
This provision is clearly a rule of interpretation which has been made applicable to the Constitution in the same manner as it applies to the Central
Act or Regulation. On the face of it, the submission that Section 21 cannot be applied to the interpretation of the Constitution will lead to anomalies
which can only be avoided by holding that the rule laid down in this section is fully applicable to all the provisions of the Constitution. As an
example, under Article 77(3), the President, and under Article 166(3) the Governor of the State are empowered to make rules for the more
convenient transaction of the business of the Government of India or the Government of the State, as the case may be, and for the allocation
among ministers if the said business. If, for the interpretation of these provisions, Section 21 of the General Clauses Act is not applied, the result
would be that the rules once made by the President or a Governor would become inflexible and the allocation of the business among the ministers
would forever remain as laid down in the first rules. Clearly, the power of amending these rules from time to time to suit changing situations must be
held to exist and that power can only be found in these articles by applying Section 21 of the General Clauses Act. There are other similar rule
making powers, such as the power of making service rules under Article 309 of the Constitution. That power must also be exercisable from time to
time and must include within it the power to add to, amend, vary or rescind any of those rules.
In view of the above, I am of the considered opinion that the Sanctioning Authority had has the power of alteration/amendment of the sanction, if
there is sufficient and adequate material/evidence available to formulate opinion for grant of sanction against any person left out earlier or even for
addition of further offences, if so, established from the evidence.
There is another aspect of the matter. The argument of the learned counsel for petitioners that second sanction suffers from non-application of
mind. It cannot be ruled out that the first sanction was without application of mind. Perusal of both the sanctions has revealed that no details have
been given in the first sanction whereas second sanction order dated 20.11.2001 deals with every aspect of the case and refers to the material
collected by the Investigating Agency and the circumstances leading d to exclusion of the name of Prem Bhushan Gupta from the first sanction.
Under such circumstances, it cannot be said that second sanction is bad either due to non-application of mind or for lack of power of review with
the Sanctioning Authority.
The contention of petitioners that charge sheet has been framed on the basis of two charge sheets and that the charge sheet has been produced
pursuant to the direction of the Special Judge Anti Corruption dated 19.2.2001, which order was set aside by the High Court, needs to be
examined in the light of order of the High Court and the second charge sheet which has been produced. Reference is made to the averments at
page-5 of the fresh/supplementary charge sheet wherein the Vigilance Organisation has specifically mentioned about the passing of the order dated
19.2.2001 and regarding return of challan and further investigation having been conducted. It has been vehemently argued that despite setting aside
of the order of Special Judge Anti Corruption for return of challan, the Vigilance Organisation kept the file/challan with itself and produced
second/supplementary charge sheet without caring about the order of the High Court.. I have perused order dated 19.2.2001 whereby the challan
was returned to Vigilance Organisation to clarify the role of Prem Bhushan Gupta, who was not named as accused in the earlier sanction and
charge sheet. I have also carefully gone through the judgment dated 1.10.2001 passed by the High Court. This court held that the trial court has no
jurisdiction to return challan for further investigation, though the right of the Investigating Agency to make further investigation has been
acknowledged. This court further observed that the Vigilance Organisation is at liberty to carry out further investigation of its own. The order of
Special Judge Anti Corruption was set aside only to the extent it directs return of challan and further investigation at the instance of the court. It
does not in any manner create an embargo on the powers of the Investigating Agency to carry out further investigation and file supplementary
charge sheet. In the supplementary charge sheet, the Investigating Agency has also referred to order of the High Court. It no where says that the
charge has been produced to comply the direction of the court though reference to the order of Special Judge Anti corruption has been made in
the second charge sheet. Once the right of the Investigating Agency to further investigate the matter is acknowledged, it is immaterial whether
further investigation is of its own or at the observation of the court. The fact remains that the Investigating Agency has considered and re-examined
the issue and filed a supplementary charge sheet impleading Prem Bhushan Gupta also as accused on the basis of material/evidence available with
the Investigating Agency. Petitioners cannot derive any benefit on this basis, so long there is material on record to establish the charge against the
accused persons at this stage. I do not find any substance in this contention.
Similarly filing of supplementary charge sheet, does not mean that there are two charge sheets. As a matter of fact, both the charge sheets have
to be taken note of and the trial court has clearly referred to the material brought before it in the charge sheet including the supplementary one. No
fault can be found in the impugned order on this count.
Now I deal with the last plea of Ashok Kumar Koul petitioner who has submitted that there was no demand of bribe amount and he only
accepted amount at the instance of other accused. I need not go into details of this argument of learned counsel for petitioner., Ashok Kumar least
it may prejudice the mind of the trial court. Suffice it to say, the complainant, Kuldip Kumar, specifically mentioned that Ashok Kumar Koul
dealing assistant and Mr. Tikoo and Romesh Sharma are pressing me hard for payment of corruption amount. This is for the trial court to
appreciate at the appropriate stage but at this stage, these allegations are sufficient to put him to trial.
It has been lastly argued on behalf of petitioner that second charge sheet has been produced without any further investigation and on the same
material, which was already available with the Investigating Agency. The only question that needs examination is, what is scope of investigation?
The Supreme Court in case of The State of Madhya Pradesh Vs. Mubarak Ali, considered this issue and held :
Under the Code"" investigation consists generally of the following steps: (i) proceeding to the spot;(ii) ascertainment of the fact and the
circumstance of the case; (iii) discovery and arrest of the suspected offender; (iv) collection of evidence relating to the commission of the offence
which may consist off a) the examination of various persons (including the accused) and the reduction of their statements into writing if the officer
thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial; and (v) formation
of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the
necessary steps for the same by the filing of a charge sheet u/s 173.
Various steps till the filing of charge sheet, as noticed by the Apex Court, are part of investigation. Forming of opinion on the material collected
being one of the stages of investigation, it cannot be said that investigation only means of collection of further evidence. Therefore, if the Vigilance
Organisation has filed supplementary charge sheet on the basis of material already collected though after fresh opinion was formed, it does not
render the second sanction and supplementary charge sheet invalid.
In view of the above, both these petitions fail and are accordingly dismissed. The record of the court, be sent back. The trial court is directed
to proceed with the trial expeditiously.