Harmesh Kumar vs State of Punjab

R.L. Anand, J.

Whether Additional Secretary Vigilance, Punjab can grant sanction for prosecution in the name of Governor by acting as competent authority will be a material point for determination in the present petition under Section 482 of the Code of Criminal Procedure filed by Harmesh Kumar, Forest Guard, who has prayed that case F.I.R. No. 49 dated 27.5.1991 registered in Police Station Bassi Pathana under Section 7 read with Section 13(2) of the Prevention of Corruption Act and all subsequent proceedings thereon be quashed as the Government of Punjab after making inquiry has decided to withdraw the case after the required approval of the Chief Minister vide Annexure P12 and the competent authority within the meaning of Section 19 of the Prevention of Corruption Act, 1988 has refused to grant sanction to respondent No. 2 to prosecute the petitioner vide Annexure P14 and P15 and the subsequent act of passing of undated sanction order by the Additional Secretary Vigilance, Annexure P16, be quashed as the Additional Secretary Vigilance is neither the appointing nor removing authority within the meaning of Section 19 of the Prevention of Corruption Act and thus cannot review the order of refusal to grant sanction and subsequent undated sanction order has been passed without application mind.

A few facts can be noticed in the following manner :

F.I.R. No. 49 dated 27.5.1991 was registered at Police Station Bassi Pathana under Section 7 read with Section 13(2) of the Prevention of Corruption Act, 1988 against the petitioner. It was investigated and after thorough investigation was found by the department and by the competent authority that the case was false and it was ultimately decided that the petitioner shall not be prosecuted with regard to the allegations against him. It may be noticed here that the department made inquiries into the allegations on the application given by the wife of the petitioner in which she had pleaded that her husband was innocent. The department obtained the relevant reports from the concerned authorities and ultimately with the approval of the Hon''ble Chief Minister of the State it was decided that the F.I.R. be withdrawn and the case be sent as untraced in all aspects. The above orders are reflected in order Annexure P12. The State Government vide Annexures P14 and P15 and on the basis of the inquiry conducted finally refused to grant the sanction under Section 19 of the Prevention of Corruption Act. The relevant observations of the Government as contained in Annexure P14 are as follows :

"Therefore, this case, after consideration, has already been withdrawn by the Vigilance Department, Punjab Government and as such there is no need to refile this case in the Court. In this connection the Hon''ble Court may be got satisfied so that this case may not be reopened by the Court. In this connection whatever action is taken by the Hon''ble Court, the same may be intimated to this office so that further proceedings may be taken."

The Divisional Forest Officer, Fatehgarh Sahib vide letter dated 21.11.1994 again wrote to the Superintendent of Police, Vigilance Bureau, Flying Squad2, Patiala as follows :

"In connection with the subject cited above and the letter under reference I have fully examined this case after sending for the record again and have applied my mind and as such now I am giving my opinion in clear words that it is not a fit case warranting the challan for prosecution."

It may also be mentioned here that the Divisional Forest Officer was the appointing and punishing authority of the petitioner and as such was competent to grant the sanction. In spite of the fact the above orders were passed by the authorities under the name of the Governor and with the concurrence of the Hon''ble Chief Minister, the vigilance agency was not satisfied with these orders and it passed its own order Annexure P16. The relevant order is as follows :

"Now I, exercising the powers of removing Sh. Balwinder Singh, Hardev Singh and Harmesh Kumar, Forest Guard, Sirhind, District Fatehgarh Sahib, from services, give sanction under Section 19 of the Prevention of Corruption Act, 1988, to file a case in the competent court against the aforesaid accused under Sections 7, 13(2) 88 of the Prevention of Corruption Act, 1988 and 467, 468, 471, 120B of the Indian Penal Code, and during this period any other crime has been committed by them an appropriate action be taken against them."

Notice of the petition was given to the State and to the Additional Secretary Vigilance, Punjab, respondents No. 1 and 3 respectively and the petition is being contested mainly by respondent No. 3 on the ground that he has the power to grant sanction for prosecution under Section 19 of the Prevention of Corruption Act, even though the administrative department has finally refused to grant sanction even after obtaining the approval of the Hon''ble Chief Minister and the Governor. The entire controversy thus would revolve whether the order Annexure P16 can be said to have been granted by a competent authority.

The learned counsel appearing on behalf of the petitioner submits that as per the provisions of Section 19 of the Prevention of Corruption Act no court can 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) .......... ........ ......;

(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 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.

The counsel submitted that in this case the competent authority has finally declined to give the sanction under Section 19 to the prosecution agency/investigating agency and it cannot be said that the order of the competent authority was in any way mala fide. Rather it was passed on facts by the competent authority, who had invited the report of the Tehsildar etc. and thereafter it was fully satisfied that there was no justification for the prosecution of the petitioner and under these circumstances once the proper application of the mind had been done by the authority competent and once the action on the part of the competent authority has got the approval of the Hon''ble Chief Minister and the Governor, in these circumstances it is not open to respondent No. 3 to sit over the decision of the competent authority by invoking the power which, in fact, has never been vested in him by the law.

On the contrary, the learned counsel appearing for respondent No. 3 is relying upon the Allocation of Business Rules, 1994 and submits that the Department of Vigilance had the power to exercise the powers under Section 19 of the Prevention of Corruption Act and it will be useful for me to quote in extenso the powers which have been vested to the Department of Vigilance

DEPARTMENT OF VIGILANCE

All matters concerning general vigilance and procedure.

All policy matters relating to corruption among public servants.

Coordination of work relating to vigilance in various Departments.

All matters relating to cases of bribery, corruption, personal, immorality, misuse of public fund, loss caused to Government, Departmental or procedural irregularities and the like on the parts of Government employees and public servants dealt with or otherwise taken cognizance of by the Department of Vigilance including cases of appeal against acquittal in cases relating to the Vigilance Bureau.

All matters relating to

(i) the establishment of the Vigilance Bureau;

(ii) setting up of Lok Ayukta or Uplokayukta.

Reliance has also been placed on a decision of this Hon''ble Court given in Civil Writ Petition No. 6208 of 1986 and the ratio of the Hon''ble Judges has been quoted in the written statement as follows :

"We have no hesitation in holding in view of what we have said above in regard to the powers of the Governor under Article 166 of the clause (3) that the Govt. in the Vigilance Department would be competent to launch the Departmental proceedings and punish the employee if found guilty as a result of the said proceedings."

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 P16 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 categorised the public servants into three categories and has ultimately vested these powers to the Central Government, State 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 quasijudicious 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 quasijudicious manner, then the investigating agency cannot set at naught the decision so taken by the competent authority. Even with the refusal of granting sanction by a 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 present case the competent authority had conducted the inquiry at its own level and has ultimately come to the conclusion that the allegations against the petitioner are false. It does not require any prosecution. He obtained the orders of his superior though he was obliged to do so because the power of granting sanction in the case of petitioner lies with the authority competent to remove him from his office. By way of abundant caution the competent authority even obtained the approval of the Hon''ble Chief Minister and ultimately the orders were passed in the name of Governor which reads as under :

"The Government has carefully considered the case relating to the subject cited above and decided that the F.I.R. registered at (Police Station Bassi) and the Vigilance case against Shri Harmesh Kumar, Forest Guard, be withdrawn.

These orders be complied with immediately in toto.

Action taken be intimated to the Government.

Sd/

Deputy Secretary to Govt.

Punjab, Forest Department."

In this view of the matter the sanction Annexure P16 granted by respondent No. 3 cannot be held to be a valid one and Additional Secretary Vigilance, Punjab had exceeded his jurisdiction to exercise the power under Section 19 of the Prevention of Corruption Act which power was never granted to him vide Allocation of Business Rules, 1994, quoted above. A close reading of the above powers would show that the Department of Vigilance has been authorised only to deal with these matters. But so far as the sanction is concerned, it has always been and it will always remain with the competent authority and not to the investigating agency. Otherwise the entire purpose of Section 19 stands frustrated. Ultimately if the investigating agency or the prosecuting agency is to become the judge of its own cause, then where is the sanctity that a public servant will get justice. The rules relied upon by the respondent No. 3 only give him the powers to deal with the matters for the purpose of investigation only and not beyond that. Even the para which has been relied upon by the respondent No. 3 in his reply quoted above does not lay down the rule that the Vigilance Secretary has the power to grant sanction under Section 19 of the Prevention of Corruption Act. It only lays down that under Article 166(3) the Vigilance Department would be competent to launch the departmental proceedings and punish the employee if found guilty as a result of that proceedings. At the cost of repetition I may say that so far as the power to grant sanction, which is prerequisite for the purpose of prosecution, under the Prevention of Corruption Act shall always lie with the Central Government, State Government or the competent authority, as the case may be.

The counsel for the respondent No. 3 invited my attention to Jagjit Singh v. State of Punjab, 1996(1) Recent CR 608 and submitted that when a challan has not been presented for want of sanction under Section 19, the order of departmental authority can be set aside. The counsel submitted that in the present case parallel inquiry was conducted by the department on the request of the wife of the petitioner and on the basis of that inquiry the department found the petitioner not guilty and on that score the sanction was declined. Therefore, the order declining the sanction on behalf of the department is an exercise of colourable power and it should be set aside. The judgment which I have been is distinguishable on facts. In the present case the competent authority not only ordered for the inquiry into the allegations of the prosecution at the instance of the wife of the petitioner but also applied its mind to the investigation and the material collected during the course of investigation and then came to the conclusion reiterating its earlier decision not to grant the sanction to the prosecution, meaning thereby that the department even considered the data and the material and also the evidence which was collected by the investigating agency and then decided not to grant sanction under Section 19. The authority, in my opinion, rather goes against the respondent No. 3. In this judgment there was a clear cut distinction laid down by her Lordship that the powers of investigation and the powers of granting sanction lie with two separate authorities. The sanctioning authority cannot interfere with the ongoing investigation because it is the right of the investigating agency to collect the evidence after the recording of FIR etc. After completing entire formalities of the investigation, the investigating agency is supposed to place all the papers and the challan papers before the sanctioning authority which alone is competent to formulate an opinion as to whether the public servant has committed an offence or not. If the competent authority refuses to grant the sanction, the investigating agency cannot impose its wish unless it is shown that the competent authority has exercised its powers in a biased manner so as to help a particular public servant. This is not the case of the respondent No. 3. He wants to show his parallel authority to the competent authority under Section 19, which power he does not derive under the Allocation of Business Rules or under the powers of the Constitution. Granting such powers to the investigating agency to sit above the judgment of the Central Government or the State Government or the competent authority would make him superboss vide which the right granted to the public servant under the Constitution will become a meaningless exercise.

The learned counsel for the respondent No. 3 then relies upon State of Tamil Nadu v. T. Thulasingam and others, 1995(3) Recent CR 179 and submits that the sanction Annexure P16 has been granted by an authority superior to the competent authority and therefore it is valid. This argument is again devoid of any merit. I fail to understand how Additional Secretary Vigilance is an officer superior to the Chief Forest Officer, who is the competent authority. Additional Secretary Vigilance hails from a different department. He may be superior in his own department but does not control the affairs of forest department. In these circumstances, the judgment which has been relied upon by the learned counsel for respondent No. 3 is totally out of context. Then the learned counsel relies upon Shyam Sunder Mathur v. State of Rajasthan, 1998(4) RCR (Criminal) 819 , wherein it was held that if an accused has been exonerated in a departmental inquiry, it is no ground to discharge him in a criminal case as the finding of disciplinary authority is irrelevant under section 43 of the Evidence Act. This authority is again not applicable though it has taken note of P.S. Rajya v. State of Bihar, 1996(3) RCR (Crl.) 261 , in which it was laid down by the Hon''ble Supreme Court that once an officer has been exonerated in a departmental inquiry, nothing remains to be proceeded against such an officer in criminal proceedings because the standard of proof required to establish the guilt in criminal case is far higher than the standard of proof required to establish guilt in departmental proceedings. The judgment of the Hon''ble Supreme Court has been given on the principle of `double jeopardy''. It was laid down by the Hon''ble Supreme Court in P.S. Rajya v. State of Bihar (supra) that in such a case the continuing of criminal proceedings is nothing but an abuse of the process of law. Though the judgment relied upon by the learned counsel for respondent No. 3 and the judgment of the Hon''ble Supreme Court may not be directly applicable to the facts in hand, yet the point for determination would be whether the sanction Annexure P16 which has been given by an officer who is not superior in rank to the competent authority of the petitioner is valid when the competent authority after taking note of entire data collected by the investigating agency had formulated an opinion not to grant the sanction for the prosecution against the petitioner. This court is also not in a position to appreciate that how the respondent No. 3, as mentioned in the order, is competent to remove the petitioner from service.

In this view of the matter, I allow this petition, quash the sanction Annexure P16 and declare that the petitioner shall not be prosecuted in F.I.R. No. 49 dated 27.5.1991 registered at Police Station Bassi Pathana. Directions are also given to the learned Special Judge to return the challan papers to the prosecuting agency as it has not been able to obtain proper sanction for the prosecution of the petitioner and as such the Special Court has no power to take cognizance into the matter.