Khursheed Alam Khan vs State

The petitioner has successfully delayed the commencement of the trial against him of case under section 5(2) of the Prevention of Corruption

Act. read with section 161 RFC for over a period of seven years. The petitioner, a doctor, was alleged to have obtained illegal gratification by

misuse of his official position from one Abdul Gani Beg for recording his medico legal opinion of a case of his father Abdal Aziz Beig who had

received injuries in a scuffle and the bribe amount was paid in the month of April, 1980. After completion of the formalities a challan was produced

in the trial court where the petitioner filed a number of applications with the apparent object of protracting the litigation. Ultimately he filed an

application for dropping the proceedings against him as according to him his prosecution was without jurisdiction and the cognizance taken suffered

from he vice of illegality because according to him the sanction relied upon by the prosecution was invalid. It was contended that the Government

Order No.771 Horn/Vig/1981 dated 10.2.1981 purported to be the sanction granted and relied by the prosecution for prosecuting the accused

was invalid as the same had been obtained in suppression of an earlier sanction. The sanctioning authority had no power to add, alter or supersede

the sanction already granted. The trial court vide its judgment dated: 2441984 rejected the plea of the accusedpetitioner and held that the sanction

granted for prosecuting the accused was valid and according to law. Aggrieved by the order of the trial court, the petitioner has filed this revision in

this court which is pending for the last more than three years.

I have beard the learned counsel for the parties and have perused the record.

Mr. H.I Hussain the learned GA has raised a preliminary objection regarding the maintainability of the revision petition. He submits that as the

order impugned was not a final order, the revision petition was not a final order, the revision was not maintainable. I do not agree with the

contention of the learned GA because the petitioner in the instant case has challenged the jurisdiction of the court to proceed with the trial. It is now

settled that as and when the objection is taken to the jurisdiction of the court the decision on such a point goes to the very root of the case and

cannot be termed as an interlocutory order.

It has been contended on behalf of the petitioner that sanction for his prosecution was earlier issued vide Govt. order No. 502 of 1980 dated

1691980 but the sanction annexed with the challan was Govt. order No. 77 of 1981 dated 10281 and not Govt. order No. 502 referred to

hereinabove. According to the petitioner the sanction issued in the year 1980 could not be amended or altered by a subsequent sanction as was

allegedly done in the instant case. According to him sanction once granted could not be amended or altered in any manner at subsequent stage

even for a clerical error. Reliance has been placed upon the judgment of the Supreme Court reported in AIR 1958 SC 1018 and 1981 SLJ 416.

The trial court after sending for the entire record pertaining to the grant of sanction and discussing the case taw on the point came to the conclusion

that the Govt. order No. 77/81 which was relied upon by the prosecution was strictly in accordance with the resolution of the sanction granted by

the competent authority. There was neither any supersession nor any alteration by the competent authority in respect of the grant of sanction. The

trial court held that as a matter of fact Government order No. 77 of 1981 was the only valid order which was passed squarely on the resolution of

the sanctioning authority granting the sanction for prosecution of the accused for the offences indicated above and the aforesaid Government order

did not in any manner show that the sanction originally granted had been altered or superseded.

Section 6 of the Prevention of Corruption Act provides that no court shall take cognizance of an offence punishable under section 161 or 165 of

the RFC or under subsection (2) of section 5 of the said Act, alleged to have been committed by the public servant except with the previous

sanction of the Government or the competent authority referred therein. Section 6(2) provides that where for any reason any doubt arises whether

the previous sanction is required under section 6(1) should be given by the Government or any authority such sanction shall be given by the

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.

This court relying upon a judgment of the Supreme Court reported in AIR 1958 SC 1018 held in 1981 SLJ 416 that the scheme of the Act did

not authorise the appropriate authority to consider the matter over again and alter, amend, vary or set aside an order of sanction once made under

section 6 of the Act. It was held that the sanction embodied a rule of construction and the question whether or not it applied to the provisions of a

particular statute would depend on the subject matter, contest and the effect of the relevant provisions of the said statute. The object of making a

provision for prosecution after sanction is to help and save the public servant from harassment and vexatious prosecution against him and cannot be

stretched to mean of granting privileges upon him under the cloak of technicalities of law. Whereas the sanction once granted cannot be amended,

altered, modified or superseded, it does not mean that the prosecution of an accused person under the heinous crime of bribery should be dropped

on the hupotechnical pleas coached in the sweet pills of objection regarding the jurisdiction. The objection for sanction is only to see that the

authority giving the sanction, should be able to consider itself evidence before it comes to a conclusion that the prosecution in the circumstances be

sanctioned or forbidden. The sanction must show that the sanctioning authority had considered the evidence before it and after applying its mind

regarding all the circumstances of the case had sanctioned the prosecution. The Legislature had intended for making a provision of sanction in

respect of the offences under the Prevention of Corruption Act merely to afford a reasonable protection to the public servant in the discharge of

their official functions which was meant to be a safeguard for the innocent and not to be a shield for the guilty. If the order of sanction shows that all

relevant materials were placed before the authority sanctioning prosecution and that the authority considered such granting of sanction, even

without stating the reasons in the order of sanction, it shall be sufficient compliance of section 6 of the Act, because the object of this section is

nothing more but to ensure discourage of frivolous, doubtful and improper prosecution.

In the instant case challan was produced in the trial court on 1671981 and Government order No.77 of 1981 was passed on 1021981 which

clearly shows that the order passed on 1021981 which clearly shows that the sanction' of prosecuting the petitioner was granted before the case

was filed in court of law and that the said sanction was never altered, amended varied or set aside by the State. The reliance of the learned counsel

for the petitioner on 1981 SLJ 416 is misplaced because in that case during the pendancy of the trial the appropriate authority had issued a revised

order of sanction which was held to be illegal and in contravention of the provisions of law. Similarly the Supreme Court held in 1958 SC 1018

that the Section pertaining to sanction embodied a rule of construction which depend on the subject matter, contest and the effect of the relevant

provisions of the said Statute.

No case was filed in a court of law on the basis of the Govt. order No. 502 of 1980 dated 16980 which clearly shows that no prejudice

whatsoever or in any manner was caused to the petitioner rendering the trial without jurisdiction, I have also compared the two sanction order and

do not find any material difference in them. There were some typographical mistake in Govt. order No 502 of 1980, regarding the amount

demanded as bribe, paid as such and recovered from the possession of the petitioner regarding which the corrigendum was issued on 1691980. It

appears that the papers were sent to the Superintendent of Police Prosecution who vide his letter dated 621981 addressed to the secretary to

Govt. Home Department requested for the amendment in the sanction in the light of the points raised by him in the said letter. The sanctioning

authority thereafter prepared a draft and ultimately issued a Government Order No. 77 of 1981 before submitting a case in a court of law. It is not

clear as to how the petitioner came to know about the process of the preparation of the sanction against him which was going on between different

administrative wings of the State. The learned counsel for the petitioner has not pointed out any defect in the order of sanction dated 1021981. It

has also not been shown as to whether any prejudice has been caused to the petitioner on account of the aforesaid two Government Orders out of

which one was never produced in a court of law. The prosecution of the case cannot be allowed to be dragged on the false pleas raised by the

petitioner at various stages of the case.

There being no merit in the revision petition, the same is dismissed with a direction to the petitioner to appear before the trial court on 10787.

The trial court would expeditiously dispose of the case and try to conclude the trial with a period of six months as far as practicable.