Gurmail Singh Mauji vs State of Punjab

M.L. Singhal, J.

Through this Crl. Misc. Petition filed under Section 482 of the Code of Criminal Procedure, Dr. Gurmail Singh Mauji has sought quashing of FIR No. 55 dated 9.9.1993 Annexure P1 registered at PS Talwandi Sabo under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 and also subsequent proceedings namely the sanction order Annexure P3 passed by respondent No. 3 (Additional Secretary, Vigilance Deptt. of the State of Punjab) Annexure P4 (report under Section 173 Cr.P.C. submitted against him challenging him in case FIR No. 55 dated 9.9.1993), Annexure P5 (charge framed by Special Judge, Bhatinda against him whereby he charged him for having committed offence punishable under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988.

The prosecution case in brief is that the petitioner was working as Senior Medical Officer at Primary Health Centre, Talwandi Sabo. One Ghukar Singh was working as Block Extension Educator Class III in Primary Health Centre, Talwandi Sabo. He was under treatment of Dr. Pritam Singh Rajpal at Bhatinda. He was on leave from 12.5.1993 to 2.9.1993. He attached medical certificate with leave application. He sent application for further leave from 23.8.1993 to 2.9.1993 supported by medical certificate to Dr. Gurmail Singh. He resumed duty on 3.9.1993 and was present in the Primary Health Centre on 7.9.1993. He met Dr. Gurmail Singh in his office and requested him for the sanction of leave to him. He told him that he had sanctioned leave to him previously without charging him anything but this time he would not sanction leave to him for the period 23.8.1993 to 2.9.1993 till he was paid Rs. 500/ as illegal gratification. He requested Dr. Gurmail Singh that he should take pity on him as he had already spent much on his treatment but Dr. Gurmail Singh stuck to his guns saying that he would not charge less than Rs. 500/ if he wanted him to sanction leave for the period 23.8.1993 to 2.9.1993 to him. Entreaties made by Ghukar Singh to Dr. Gurmail Singh melted him to some extent and he brought down his demand to Rs. 300/. Ghukar Singh feigned that he had no money with him at the moment. Dr. Gurmail Singh told him that he should contact him on 9.9.1993 with Rs. 300/ as bribe and that he would sanction leave to him on 9.9.1993 as there was a meeting of the Red Cross at Bhatinda and he would not be coming to Talwandi Sabo on 8.9.1993 Ghukar Singh returned after holding out a false promise to him that he would pay him Rs. 300/ as bribe on 9.9.1993 and in lieu thereof, he would sanction leave to him for the period 23.8.1993 to 2.9.1993. Ghukar Singh did not want to pay any illegal gratification as he wanted every public servant to be neat and clean in the performance of his official duties. On 9.9.1993, therefore, he went to the office of Vigilance Bureau, Bhatinda and contacted Shri Malkiat Singh Janjua, DSP, Vigilance Bureau, Bhatinda. He produced before him 3 currency notes of the denomination of Rs. 100/ each. He applied phenolphthale in powder to those currency notes. Shri Malkiat Singh Janjua, DSP sent for a glass of water in which he poured sodium carbonate. Colour of solution did not change. Thereafter, he threw away that solution. Thereafter, he sent for another glass of water into which he poured sodium carbonate. Thereafter, he poured phenolphthalein powder and the colour of the solution became light pink. Ghukar Singh placed before DSP, Vigilance Bureau, 3 currency notes of the denomination of Rs. 100/ each. He treated those currency notes with phenolphthalein powder. He noted the numbers of those currency notes after treating them with phenolphthalein powder and handed them over to Ghukar Singh and told him that he should go to the accused and hand over the said currency notes to him but only on demand by him. Shri Hardial Singh, Senior Clerk in the office of Deputy Commissioner, Bhatinda was directed to accompany Ghukar Singh to Dr. Gurmal Singh. He told him that he would hear the conversation that would take place between Dr. Gurmail Singh and Ghukar Singh and witness the handing over of the currency notes by Ghukar Singh to Dr. Gurmail Singh by standing nearby and raise signal after Dr. Gurmail Singh had taken/accepted the currency notes from Ghukar Singh pursuant to his demand by placing his hand on his head. He instructed Ghukar Singh not to shake hands with the accused. As instructed Ghukar Singh accompanied by Hardial Singh set out to contact Dr. Gurmail Singh, SMO, PHC Talwandig Sabo. At the sight of Ghukar Singh, Dr. Gurmail Singh asked whether he had brought the demanded money by him. He replied in affirmative. Thereupon, Ghukar Singh handed over the aforesaid currency notes to the accused. After the accused had accepted the aforesaid currency notes. Hardial Singh raised signal by placing his hand on his head. DSP Malkiat Singh Janjua reached the spot on receipt of signal raised by Hardial Singh. On seeing DSP, Vigilance Bureau coming to nab him, Dr. Gurmail Singh took out the currency notes from the left pocket of the shirt worn by him and tried to eat them up but he was taken hold of by DSP, Vigilance Bureau who apprehended him and brought currency notes out of his mouth. S. Jagdip Singh Sidhu tallied the numbers of the currency notes recovered from the possession of the accused with the numbers shown in Farad Hawalagi and the numbers tallied. Those currency notes were taken into possession through seizure memo which was attested by PWs. DSP, Vigilance Bureau sent for a glass of water in which sodium carbonate was poured. Dr. Gurmail Singh was made to throw water from his mouth in a separate glass. The colour of mixture turned pink. Thereafter, mixture of sodium carbonate was prepared in the glass. Accused was made to dip his hands in that solution and the colour of the solution became light pink.

For prosecuting the accused under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 sanction of Government was required as envisaged under Section 19 of the Act. Sanction was refused by Joint Secretary to Government Punjab, Health Department, Chandigarh respondent No. 2. Refusal of sanction to prosecute the accused by the Joint Secretary to Government Punjab, Health Department, Chandigarh did not satisfy respondent No. 3 i.e. Additional Secretary, Vigilance Department, Punjab, Chandigarh and respondent No. 4 i.e. DSP Vigilance Bureau and with a view to harass and humiliate the petitioner, respondent No. 4 prepared all the papers for presentation of the challan. Respondent No. 3 i.e. Additional Secretary, Vigilance Department, Punjab who was not empowered and competent to grant sanction to prosecute the accused, passed order dated 16.6.1997 whereby he gave sanction to prosecute the accused. It is stated that when the sanction to prosecute the accused had earlier been refused by a competent authority, no sanction to prosecute him could be given thereafter. Acting on sanction Annexure P3 given by Additional Secretary, Vigilance Department, Punjab, report under Section 173 of the Code of Criminal Procedure Annexure P4 was put in against the accused challenging him under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 before Special Judge, Bhatinda. It is stated that Special Judge, Bhatinda charged him under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 although it was argued before him with vehemence that Annexure P3 which was sanction to prosecute him, was no sanction in the eye of law when earlier sanction to prosecute him had been refused by the Joint Secretary to Government, Punjab, Health Department, Punjab Chandigarh.

In this case, the short point that arises for consideration is ''whether the order refusing to sanction the prosecution of the accused under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 by the Joint Secretary to Government Punjab, Health Department could be reviewed by the Additional Secretary to Government Punjab, Vigilance Department and he could accord sanction for the prosecution of the accused nullifying the earlier order of the Joint Secretary to Government Punjab, Department of Health.

It was submitted by the learned counsel for the petitioner that Government could not review its own order subsequently and grant sanction to prosecute a public servant under the Prevention of Corruption Act, 1988. In support of this submission, he drew my attention to Dr. Jaswinder Kaur v. State of Punjab and another, 2001(2) RCR(Crl.) 58 where it was held that section 6 of the Prevention of Corruption Act, 1947 extends protection to a public servant against unwarranted harassment. It should, therefore, be construed in a manner which subverts the object of its enactment. As soon as the earlier order refusing sanction was signed on 14.1.2000, the "competent authority" became functus officio. Merely because the Vigilance Bureau had asked for the reasons for refusal of the sanction was not a ground for reviewing its earlier order". It was submitted that once sanction had been declined by the competent authority after due application of mind, subsequent sanction could not be accorded unless there was fresh material. In Crl. Misc. No. 825M of 1996 (Kashmir Singh, Head Analyst, Office of District Food and Supplies Department v. State of Punjab and others) decided on 15.7.1997, Hon''ble M.S. Kumaran, J, held that where a fresh order for sanction is passed without application of mind and without there being any fresh materials and without taking into account the earlier order refusing sanction, the fresh order granting sanction is of no validity and on the basis of this sanction, there can be no prosecution of the accused under Section 7, 10, 11, 13 and 15 of the Prevention of Corruption Act, 1988. Court has no jurisdiction to take cognizance of the offence without a valid sanction. Absence of valid sanction will go to the root of the jurisdiction of the court taking cognizance of the offence. In the absence of valid sanction, the court is not only prevented from taking cognizance of the offence but it cannot also convict the accused. In Dr. Jaswinder Kaur v. State of Punjab and another, 2001(2) RCR (Crl.) 58(supra), it was held that without there being any change in the circumstances, the matter cannot be considered and reviewed. It was also held that the power of review must be specifically conferred under the statute since no such power has been conferred under the Prevention of Corruption Act, the order of review is wholly without jurisdiction.

Learned counsel for the respondent, on the other hand, submitted that Joint Secretary, Health refused to grant sanction for launching prosecution against the accused. It was submitted that there was no application of mind by the "competent authority" to the facts and circumstances of the case while refusing to grant sanction. "Competent authority" was required to consider all the documents which constituted the foundation of the case and the super structure raised therein and apply its mind to the facts of the case and it was thereafter that it was to decide whether sanction should be given for the prosecution of the accused as envisaged in Section 19 of the Act. It was not for the Department of Health to Judge the truth of the allegations by calling for the record/report of its department in connection with the said matter. Department had no jurisdiction to hold a preliminary investigation into the allegations made against him. Act of Joint Secretary, Department of Health refusing to accord sanction for launching prosecution against the accused was beyond jurisdiction. Sanction to prosecute him was given by Additional Secretary Department, of Vigilance, Punjab in the name and order of Hon''ble the Governor of Punjab who is empowered to remove the accused from his post. Thus sanction to prosecute was obtained as per provisions of Section 19 of the Act. As per Government of Punjab (Allocation of Business) Rules, 1994, authority to take final decision relating to cases of bribery/corruption lies with the Vigilance Department. It was submitted that Special Judge, Bhatinda framed charge against the accused on being satisfied that there was prima facie evidence against the accused. It was submitted that after securing bail on 11.9.1993, the accused submitted an application dated 17.9.1993, for an inquiry to be conducted by a senior official of the Department of Health. After considering his request, the government asked Director, Health and Family Welfare, Punjab to get the inquiry conducted. In the meantime, at the higher level Dr. H.S. Aneja, the then Director, Health Services was directed to inquire into the matter. Dr. H.S. Aneja informed the government, as per directions conveyed to him by the Superintendent of Police, Vigilance Bureau, Bhatinda that two preliminary inquiries could not be conducted, as such, he sought advice of the government to proceed further. The government after considering the directions of the Vigilance Department, decided to stop the departmental inquiry since the matter was already being inquired into by the Vigilance Department.

In this case, order refusing sanction for the prosecution of the accused under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 was passed by Joint Secretary to Government, Punjab Department of Health and Family Welfare, Joint Secretary, Health does not appear to have applied mind to every material against the accused so as to come to the conclusion whether sanction to prosecute the accused under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 be or be not given. On the other hand, Additional Secretary to Government Punjab, Department of Vigilance has taken into account all the materials relating to this case and came to the conclusion that there was a prima facie case against the accused warranting his prosecution under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 or any other offence committed during the period 23.8.1993 to 2.9.1993. When the order previously passed refusing sanction to prosecute the accused did not disclose any application of mind, fresh order could be passed after taking into account all the relevant materials for coming to the conclusion whether accused should or should not be prosecution under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988. JUDGMENT granting sanction by Additional Secretary, Vigilance Department shows that this order was passed in the name and order of the Governor of Punjab.

Even otherwise, powers vesting in this Court under Section 482 of the Code of Criminal Procedure should not be exercised as a matter of course. These powers are required to be exercised meticulously and to meet a grave situation. In State of Haryana and others v. Ch. Bhajan Lal and others, 1991(1) RCR(Crl.) 383 : AIR 1992 SC 604 , the Hon''ble Supreme Court has enumerated certain categories where the High Court, in exercise of the powers vesting in it under Article 226 or under Section 482 Cr.P.C. may quash a criminal prosecution; namely :

"1. Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

The Hon''ble Supreme Court has sounded a note of caution viz, this power should be exercised sparingly and that too in the rarest of rare cases. In this case, I do not see any reason to quash FIR No. 55 dated 9.9.1993 registered under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 at PS Talwandi Sabo, sanction to prosecute the petitioner Annexure P3 given by Additional Secretary to Government Punjab, Vigilance Department acting in the name and on behalf of the Governor of Punjab; challenging of the accused and the framing of charge against him under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 by special Judge, Bhatinda, which are quite in order.

This Crl. Misc. petition fails and is dismissed.