P.N. Yogi vs State of Rajasthan and Others

B.J. Shethna, J.—The petitioner, who is a Junior Engineer has challenged in this petition the order Annex. 8 dated 9-5-94 according sanction to prosecute him for the offence punishable under the Prevention of Corruption Act. That order is stayed while issuing notice by this Court and same is continuing till today. Today, this matter has come up for hearing on admission.

Learned counsel Shri Shishodia for the petitioner firstly submitted that once the higher authority refused to accord the sanction to prosecute the petitioner then its subordinate authority cannot grant fresh sanction and that too without giving opportunity of hearing to the petitioner. He submitted that by an order dated 9-2-93 (Annexure-3), the Deputy Secretary of the State Govt. refused to accord sanction to prosecute the petitioner for the offence under the Corruption Act. Only thereafter, on 9-5-94 the Chief Engineer accorded the sanction to prosecute him for the offence punishable under the Prevention of Corruption Act. He submitted that the Chief Engineer is subordinate authority to the State Govt., therefore, the order of sanction was illegal. In support of his submission learned counsel Shri D. S. Shishodia has relied upon an unreported judgment of the Supreme Court in case of Navnitbhai R. Kapasiawala v. Bhagwandas Vaniram Trivedi reported in 1982 Unreported Judgment (Supreme Court) 829 (2). He has also relied upon the Division Bench judgment of Allahabad High Court in case of Vaijal Bahadur v. State of U.P. reported in 1989 (2) C L J 61.

I will first deal with the judgment of the Division Bench of Allahabad High Court which is only notes of cases. It appears that the same officer who earlier refused sanction after considering the entire material placed before him, subsequently granted sanction to prosecute the accused under the Prevention of Corruption Act. On facts of that case the Division Bench of Allahabad High Court held that it amounts to reviewing the order, therefore, the sanction accorded was held to be bad.

In case of Navnitbhai (supra) the Apex Court remanded the matter for two accused out of four by brief order, which is reproduced as under:--

Special Leave Petitions are dismissed in regard to Navnitbhai R. Kapasiawala and Moghabai P. Desai. The other two petitioners, Pradyumana J. Pathak and Bharat Ishvarlal Desai were not given any notice before the sanction was accorded. This is admitted by the respondents who have appeared before us. Special Leave is granted so far as these two petitioners are concerned. The Order of High Court sanctioning the prosecution of these two persons is set aside. The High Court is directed to consider afresh the question of sanctioning the prosecution of these two persons after giving notice to both of them. The appeals are disposed of accordingly.

In that case the matter was simply remanded to the High Court to consider afresh the question of sanctioning the prosecution of those persons after giving notice to both of them. From the order we could not gather the facts of that case. Be that as it may, the Apex Court has simply remanded the matter to the High Court, we have no idea what happened thereafter in High Court.

As against the aforesaid judgments of Allahabad High Court and unreported judgment of Supreme Court the other side has placed reliance upon the judgment of the Apex Court in case of State of Bihar and Another Vs. P.P. Sharma, IAS and Another, In that case, sanction was accorded by the competent authority after considering the entire material before it and the Apex court held that it cannot be said that there was any non application of mind on the part of the sanctioning authority.

Coming to the facts of this case, it appears that a serious allegation has been made against the petitioner for collecting wealth beyond his source of income. However, by order dated 9-2-1993 the Deputy Secretary of the State Govt. refused to accord sanction to prosecute the petitioner by simply stating that going through the material placed before him, prima facie no case is made out to accord sanction. Apart from the fact that the Deputy Secretary was not the appointing authority of the petitioner and had no business to either grant or refuse the sanction. The order passed by him is completely a non speaking order. It can be said from the material narrated in the sanction order at Annex. 8 dated 9-5-94 that the material against the petitioner was sufficient to accord sanction and without duly considering the same the Deputy Secretary simply in a mechanical manner refused to accord sanction.

The impugned order at Annex. 8 is passed by competent authority, because the Chief Engineer was the appointing authority. The Chief Engineer has fully applied his mind and reproduced the entire material which prima facie disclose a case against the petitioner for the offence under the Prevention of Corruption Act. Going through the sanction order at Annex. 8 it is clear that there was sufficient material for the Chief Engineer to accord sanction to prosecute the petitioner for the offence under the Prevention of Corruption Act.

The judgment of Allahabad High Court has no application on the facts of this case as the impugned order at Annex. 8 cannot be said to be an order reviewing the earlier order of refusing sanction. At the cost of repetition, I may state that earlier order was passed by the authority, who was not competent and had no jurisdiction to pass such order.

One more submission was made by learned counsel Shri Shishodia that once the Higher Authority refused to give sanction, its subordinate authority cannot pass any order of according sanction. This submission cannot be accepted for the simple reason that under the Act only competent authority can accord sanction and in this case admittedly Chief Engineer was competent authority. In this type of cases there is no question of higher, or subordinate authority. The only question is that the sanction can be accorded only by the competent authority and none else. Hence, this submission is also rejected.

To interfere with the order according sanction at this stage would not only be startling but also disastrous. If the trial Court is not allowed to proceed with the trial then it would amount to killing of still born child.

In view of the above discussion, this petition fails and is hereby dismissed.

Before parting, I must state that by virtue of interim order the trial Court not be commenced. The matter is an old one, therefore, the trial Court shall now proceed with the case and dispose of the trial as early as possible.