Kamaljit Kaur vs State of Punjab

Paramjeet Singh, J.—Present petition has been filed u/s 482 Cr.P.C. for quashing of FIR No. 33 dated 20.5.2002, u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act (hereinafter referred to as ''the Act''), registered with Police Station Vigilance Bureau, Jalandhar, along with order dated 5.3.2009 (Annexure P-3) passed by learned Sessions Judge, Hoshiarpur, whereby learned trial Court has declined to accept the untraced report, despite the fact that sanction to prosecute the petitioner has been declined twice. Brief facts of the present case are that the petitioner is a Government doctor and is a public servant, Governor of Punjab is her appointing authority. She can be removed from her office save by and with the sanction of the Government. Petitioner has been accused in a offence alleged to have been committed by her while acting or purporting to act in discharge of her official duties. Ajaib Singh Lakha resident of village and Post Office Bhangala Tehsil Dasuya, District Hoshiarpur, lodged a complaint against the petitioner while she was posted as Senior Medical Officer in Civil Hospital, Mukerian, that petitioner has amassed the wealth more than her known sources of income. She has constructed kothi No. 26/W.T. Hajipur Road Dasuya, has purchased agricultural land in District Hoshiarpur and has acquired movable and immovable property by illegal means from her unknown sources of income. On that basis FIR No. 33 dated 20.5.2002 u/s 13(1)(d) read with Section 13(2) of the Act at Police Station Vigilance Bureau, Jalandhar, was registered against the petitioner. The check period from 1.1.1991 to 31.10.1999 of income of the suspect petitioner was taken into consideration. Initially, the authorities came to a conclusion that the income of the petitioner from her known sources is Rs. 30,79,142.05 whereas her expenditure is Rs. 36,45,198.05. In this way, it was alleged that petitioner has incurred more expenditure to the extent of Rs. 5,66,056/- than her known sources of income which is about 18.35% more than her income. It was alleged that the petitioner has acquired properties by misusing her official position, disproportionate to her known sources of income. Upon completion of the investigation, Vigilance Department sought sanction from the competent authority so as to enable it to prosecute the petitioner. By an order dated 12.12.2006, Principal Secretary to the Government of Punjab, Department of Health and Family Welfare, declined the sanction to prosecute the petitioner. Thereafter the matter was again investigated and sanction was again sought, which too was again declined on 24.5.2007. During the further investigation it has come out that the total income of the petitioner from her known sources was Rs. 33,16,585.05 whereas her expenditures were Rs. 36,53,552.06. In this manner, the excess income of the petitioner was Rs. 3,36,966/-. As per Government instructions, 10% concession on excess expenditure incurred during the check period is permitted. In this way, the petitioner''s income and expenditures are almost equal.

After completion of the investigation the department submitted the cancellation report, which has not been accepted by the Special Judge (Sessions Judge, Hoshiarpur). The Special Judge passed the order dated 5.3.2009 (Annexure P-3), which is under challenge. The relevant part of the order reads as under :-

Keeping in view the citation as referred to above and the provisions of law, I am of the view that this court is not competent to take cognizance of the offence and therefore, the challan is returned to the Vigilance Bureau with the liberty to produce the same as and when they get sanction for prosecution from the competent authorities.

Upon notice, the State filed reply by way of affidavit and submitted that the State had submitted untraced report as the income from the known sources of the petitioner is slightly less than the total expenditure incurred by her. After giving 10% concession, as per Government instructions, from the total expenditure incurred, the expenditures of the petitioner were within the known sources of her income.

The short questions, which arise for consideration in this petition are :-

(i) Whether the State has power of review in the matter of grant of sanction for the offence u/s 13(1)(d) read with Section 13(2) of the Act and the Special Court has power to decline the acceptance of untraced report despite the fact that sanction to prosecute the petitioner has been declined twice?

(ii) Whether the trial Court has power to direct the vigilance authorities to present challan as and when the sanction is obtained?

Learned counsel for the petitioner vehemently argued that the Court has no jurisdiction to give blanket power to prosecute the petitioner as and when sanction is accorded. Learned counsel for the petitioner further contended that the impugned order is erroneous and is not sustainable in the eyes of law. Learned counsel for the petitioner further argued that once the sanction has been declined, it cannot be granted subsequently and it can only be granted if there is fresh material available with the authorities. Learned counsel for the petitioner further contended that there is no provision in the Act for review of the sanction except when new evidence or new material is brought by the investigating agency. The learned counsel for the petitioner further contended that even the FIR is liable to be quashed once the authorities have calculated the amount of expenditure as well as the income from known sources and found no discrepancy. Petitioner and her husband both are doctors. The alleged unexplained income remains merely marginal or a paltry sum which any Government employee couple can save. Even the prosecution during further investigation has established that the pecuniary assets acquired by the petitioner are proportionately same as her known sources of income. The damocles'' sword cannot be allowed to be hanging on the head of the petitioner indefinitely with regard to the prosecution even after her retirement. Already there is a delay of a decade in granting sanction rather sanction has been twice declined on valid grounds. In such circumstances even the FIR is not sustainable and needs to be quashed.

Learned counsel for the petitioner to substantiate his contentions, has relied upon the judgment of this Court in the case of Mohammed Iqbal Bhatti Vs. State of Punjab, , the judgments of Hon''ble Supreme Court in the cases of State of Punjab and Another Vs. Mohammed Iqbal Bhatti, 17 Supreme Court Cases 92, State of Himachal Pradesh Vs. Nishant Sareen, Recent Apex Judgments (R.A.J.) 646 : (2010) 14 SCC 527, Chittaranjan Das Vs. State of Orissa, , Mahendra Lal Das Vs. State of Bihar and Others, Louis Peter Surin Vs. State of Jharkhand, Ashok Tshering Bhutia Vs. State of Sikkim,

The learned State counsel submitted that during further investigation, the Investigating Officer had found that the income of the petitioner from known sources and the expenditures are almost same by giving 10% concession as permitted by the Government instructions. The learned State counsel did not dispute the facts and the factum of cancellation report.

7A. I have considered the contentions of the learned counsel for the petitioner as well as the learned State counsel and perused the record.

While declining sanction, following order was passed :-

i) Whereas according to V.B. As per details mentioned by the Vigilance Bureau in the draft prosecution sanction, the income of Dr. Kamaljit Kaur from known sources of income has been assessed as Rs. 33,16,586,05 and expenditure has been assessed as Rs. 36,53,552.06 during the check period from 1.1.91 to 31.10.99. On the basis of income and expenditure statements, the Vigilance Bureau assessed the asset of Dr. Kamaljit Kaur excess by Rs. 3,36,966 than her income from known sources.

ii) Whereas in case the value of her sold car which appears to be genuine as the vehicle has been registered in the name of Dr. Kamaljit Kaur and subsequently transferred in the name of Sh. Suresh Kumar is taken into consideration, then the income of Dr. Kamaljit Kaur increases to Rs. 33,86,586/-.

iii) Whereas the cash transactions of the contribution made by her father-in-law also cannot be rejected outrightly as her father-in-law is a retired Govt. officer and has received retirement benefits worth Rs. 4.69 lack and pension worth Rs. 4.41 lack during this period. As per the photocopy of Pass bock produced by Dr. Kamaljit Kaur, the closing balance as on 30.7.99 is Rs. 67,651/- which'' shows that her father-in-law has constantly withdrawn money through his pass book and he has shown only those entries to be given as financial assistance to his son and daughter-in-law which were genuine and not the entire withdrawn amount.

iv) Whereas the value of the house assessed by the V.B. As Rs. 13.17 lack is also not conclusive and rebate at the rate @ 10% of the assessed value is always allowed by the V.B. which does not appear to have been given in this case. By allowing rebate @ 10% on the assessed value of construction of house, the expenditure is reduced by Rs. 1.31 lack and the total expenditure works out to Rs. 35,22,552/-.

v) For the reasons given in the foregoing paragraphs, the Governor of Punjab is pleased to decline the prosecution sanction against the lady Dr. Kamaljit Kaur, S.M.O. Civil Hospital, Mukerian, in FIR No. 33/2002.

The Hon''ble Apex Court in Nishant Sareen (supra) has considered the issue of sanction u/s 19 of the Act as well as u/s 197 of the Code of Criminal Procedure, in the said judgment, the judgment of Mohammed Iqbal Bhatti (supra) has also been considered. Relevant extract of judgment in Nishant Sareen (supra) is reproduced below :-

Recently, in the case of State of Punjab and Another Vs. Mohammed Iqbal Bhatti, this Court had an occasion to consider the question whether the State has any power of review in the matter of grant of sanction in terms of Section 197 of the Code. This Court observed as under:

Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the concerned authority is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidences must be considered by it. The sanctioning authority must apply its mind on such material facts and evidences collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidences may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. It is also well settled that the Superior Courts cannot direct the sanctioning authority either to grant sanction or not to do so. The source of power of an authority passing an order of sanction must also be considered.

This Court then noticed the opinion of the High Court which was recorded as follows :

Once the Government passes the order u/s 19 of the Act or u/s 197 of the Code of Criminal Procedure, declining the sanction to prosecute the concerned official, reviewing such an order on the basis of the same material, which already stood considered, would not be appropriate or permissible.

While affirming the above opinion of the High Court, this Court held in paragraphs 22 and 23 of the Report as under:

It was, therefore, not a case where fresh materials were placed before the sanctioning authority. No case, therefore, was made-out that the sanctioning authority had failed to take into consideration a relevant fact or took into consideration an irrelevant fact. If the clarification sought for by the Hon''ble Minister had been supplied, as has been contended before us, the same should have formed a ground for reconsideration of the order. It is stated before us that the Government sent nine letters for obtaining the clarifications which were not replied to.

The High Court in its judgment has clearly held, upon perusing the entire records, that no fresh material was produced. There is also nothing to show as to why reconsideration became necessary. On what premise such a procedure was adopted is not known. Application of mind is also absent to show the necessity for reconsideration or review of the earlier order on the basis of the materials placed before the sanctioning authority or otherwise.

It is true that-the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power u/s 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course.

Insofar as the present case is concerned, it is not even the case of the appellant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent order dated March 15,2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible."

Hon''ble Apex Court in the case of Chittaranjan Dass (supra) has held as under :-

Otherwise also, the facts of the case arc so telling that we are of the opinion that the prosecution of the appellant shall be an abuse of the process of the Court. According to the First Information Report, appellant possessed disproportionate assets worth Rs. 5.58 lakhs. However, according to the charge-sheet, the disproportionate assets were to the extent of Rs. 1.44 lakhs only. State Government while declining to grant sanction for prosecution observed that assets possessed by the appellant are not disproportionate to his known source of income.

We are further of the opinion that no disputed question being involved, the High Court instead of making observation as to "whether in present case sanction order is" necessary and whether that was refused by the State Government and what would be the consequence thereof to be decided by the trial court, ought to have decided the issues itself. The facts being not in dispute the High Court erred in not deciding these issues.

Hon''ble Apex Court in the case of Mahendra Lal Das (supra) has held as under :-

In this case the prosecution has miserably failed to explain the delay of more than 13 years by now, in granting the sanction for prosecution of the appellant-accused of possessing disproportionate wealth of about Rs. 50,600. The authorities of the respondent-State also appear to be not satisfied about the merits of the case and were convinced that despite granting of sanction the trial. would be a mere formality and exercise in futility.

In cases of corruption the amount involved is not material but speedy justice is the mandate of the Constitution being in the interests of the accused as well as that of the society. Cases relating to corruption are to be dealt with swiftly, promptly and without delay. As and when delay is found to have been caused during the investigation, inquiry or trial, the concerned appropriate authorities are under an obligation to find out and deal with the persons responsible for such delay. The delay can be attributed either to the connivance of the authorities with the accused or used as a lever to pressurise and harass the accused as is alleged to have been done to the appellant in this case. The appellant has submitted that due to registration of the case and pendency of the investigation he lost his chance of promotion to the post of Chief Engineer. It is common knowledge that promotions are withheld when proceedings with respect to allegations of corruption are pending against the incumbent. The appellant has further alleged that he has been deprived the love, affection and the society of his children who were residing in foreign country as on account of the pendency of the investigation he could not afford to leave the country.

Hon''ble Apex Court in the case of Ashok Tshering Bhutia (supra), has held as under :-

In view of the above, at the most a sum of Rs. 2,71,613.69 remained unexplained. The appellant entered into in service in 1972 and there is no break up so far as assets and expenditures etc. are concerned in the charge sheet though the check period covered both the Acts i.e. P.C. Acts, 1947 or 1988. Even if the said amount is spread over the period from 1987 to 1996, the alleged unexplained income remains merely a marginal/paltry sum which any government employee can save every year.

In view of the above, we are of the considered opinion that judgments and orders of the courts below cannot be sustained in the eyes of law and they are liable to be set aside. The appeal is allowed. The judgments and orders of the courts below dated 11.12.2002 passed by the High Court of Sikkim at Gangtok in Criminal Appeal No. 4 of 2002 and judgment and order dated 30.5.2002 passed by the Special Judge, Prevention of Corruption Act, Gangtok in Criminal Case No. 4 of 1997 are hereby set aside.

The perusal of the record shows that authorities have calculated the income and expenditure of the petitioner threadbare and submitted a detailed chart in the untraced report (Annexure P-5) dated 2.5.2008 submitted by the Deputy Superintendent of Police, Vigilance Bureau, Punjab, Hoshiarpur. The income and expenditure charts are reproduced as under :-

Income Chart

Expenditure Chart

The perusal of above chart indicates that income and expenditure of the petitioner are within the permissible limits. The Investigating agency while submitting cancellation report has come to a conclusion as under :-

During the check period, accused Lady Dr. Kamaljit Kaur has been found to have income of Rs. 3316585-25 and expenditure of Rs. 3653552-06. Hence, during the aforesaid period, the expenditure of the accused has been found to have been exceeded her in-come by Rs. 336966/-. As per the instructions of the Government, accused is entitled to 10 per cent concession regarding the excess expenditure incurred by her during the check period. In this way, during the check period, the income and expenditure of accuse Lady Dr. Kamaljit Kaur, has been found to be almost equal. Therefore, after preparing the cancellation report in the case, it has being sent to the Hon''ble Court.

From the account statements, showing income and expenditure, it is clear that expenditure of the petitioner is within the known sources of her income, if 10% exemption, as provided by the Government, is given. In these circumstances, the Court should have passed an order of acceptance of the untraced report as no fresh material is forthcoming and the authorities have already considered the material before coming to the conclusion about known sources of income. The Court is bound to look into the evidence available with the challan and thereafter pass the appropriate order. In this case, authorities themselves have come to the conclusion that expenditures are within the known sources of income of the petitioner. So the impugned order as well as the FIR are not sustainable in the eyes of law. In view of the discussion above, present petition is allowed. Impugned order dated 5.3.2009 (Annexure P-3) and the FIR No. 33 dated 20.5.2002 u/s 13(1)(d) read with Section 13(2) of the Act, registered at Police Station Vigilance Bureau, Jalandhar, with all subsequent proceedings, are quashed.