Puran Chand Bhagat vs Union Territory Of J&K And Others

Rajnesh Oswal, J

Vide order dated 09.10.2021 passed by the court of Special Judge Anti Corruption, Udhampur (hereinafter to be referred as the trial court), the petitioner has been charged for commission of offences under section 5(1) read with section 5(2) of the J&K Prevention of Corruption Act, 2006 (for short the Act) in a challan, titled, “Union Territory of J&K through Anti Corruption Bureau, Doda vs Puran Chand”.

The petitioner has assailed the order dated 09.10.2021 passed by the learned trial court on the grounds that there is no question of making any demand and accepting the amount in pursuance of the said demand, the petitioner on 20.05.2019 was not in his office at Udhampur as the petitioner was at official duty in Jammu which is more than 70 kms away from the Udhampur SFC Office, where the petitioner attended the office of General Manager (West) Jammu and also attended the office of the Divisional Manager (DM) Workshop SFC, Jammu regarding the repair of the official vehicle. In order to support this contention, the tour general approved by the General Manager has been placed on record. It is also stated that the prosecution sanction under section 6 of the Act is required to be granted by the authorized authority, who is competent to remove any public servant from his office at the time when the offence has been allegedly committed by the accused. In the instant case, the petitioner is an employee of the Jammu and Kashmir State Forest Corporation (SFC) and the same is a public sector undertaking and the sanction for prosecution of the petitioner was required to be obtained from the Managing Director of Jammu and Kashmir SFC and not from any other department but the prosecution sanction has been obtained by the General Administration Department vide order dated 14.09.2020. It is also stated that the impugned challan presented against the petitioner is liable to be quashed on the ground that the respondent No. 3 had himself not completed the codal formalities for release of the alleged 10% balance payment and there is no official residential quarter in the name of petitioner as alleged by the prosecution in the charge sheet and there is no link and connection with the so called residential quarter.

Ms. Monika Kohli, learned counsel for the petitioner has laid stress only on two issues i.e. the petitioner was not in Udhampur on 20.05.2019 as he was in Jammu in connection with his official duties and further that the sanction to prosecute the petitioner has not been issued by the competent authority.

Heard and perused the record.

The allegations as they emanate from the charge sheet are that on 21.05.2019, a complaint was made by the respondent No. 3 against the petitioner, who happened to be the Divisional Manager of State Forest Corporation (SFC) Udhampur for demanding bribe. It was stated that the respondent No. 3 was working as a contractor with SFC Division Udhampur for the last 20 years and he had been allotted extraction/transportation loading/unloading work by the said department in compartment No. 45/76 Dudu Range District Udhampur for the last two and half years. The balance payment of about 10% of the total amount was still outstanding to the respondent No. 3 against the work done by him in the said compartments and for the release of payment/preparation of documents, the petitioner demanded an amount of Rs. 48,000/- as bribe from him. The petitioner insisted respondent No. 3 to pay Rs. 30,000/- as advance and rest of the amount i.e. Rs. 18,000/- after release of the payment. It was stated in the complaint that the respondent No. 3 was going to pay Rs. 30,000/- as advance bribe money to the said officer on 21.05.2019 and rest of the amount i.e. Rs. 18,000/- has been agreed to be accepted by the said officer after release of the payment/preparation of the documents. On receipt of the said complaint, FIR bearing No. 05/2019 for commission of offence under sections 5(1)(d) read with 5(2) and section 4-A of the Act was registered in Police Station, Anti Corruption Bureau Doda (Camp Office, Jammu) against the petitioner and investigation was taken up. A trap team was constituted by the Senior Superintendent of Police, ACB Doda, to be headed by Sh. Kartar Singh Kotwal, Dy. S.P.(Track Laying Officer) including other officials. After completing pre trap proceedings, the team including the complainant and shadow witnesses proceeded towards the spot i.e. SFC, Udhampur. After reaching the SFC Division Officer, Udhampur, situated on MH Road, the trap members parked their vehicles about 100 meters short of SFC Office, Division Udhampur and respondent No. 3 with shadow witnesses proceeded towards the office of Divisional Manager, SFC located at the ground floor. Other trap members followed them by keeping contact with each other. The respondent No. 3 along with shadow witnesses went inside the office of the Divisional Manager, SFC Division Udhampur. After some time, the respondent No. 3 and shadow witnesses came outside and went towards the first floor of the said office. The respondent No. 3 went inside the room of the accused and the shadow witness remained standing outside the terrace near entry of the door leading to the room of the petitioner which was open. After some time, the shadow witness flashed signal to trap laying officer and other trap members including other witnesses. The accused demanded the bribe money and said „paise laye ho‟. Upon this, the respondent No. 3 gave an amount of Rs. 30,000/- that was accepted by the accused person for releasing of 10% balance payment of complainant and kept the money inside his bedroom. Later on, the bribe money was recovered by the trap team. The petitioner was also asked by the TLO as to where he has kept the money, who stated that he has kept the money in his bed room and then only the money was recovered from the file covers in a wooden rack. The petitioner was questioned and examined about the circumstances those compelled him for demand and acceptance of the bribe money from the respondent No. 3, however, he could not give any plausible explanation in support of his defence. After the completion of the investigation, sanction for prosecution of the petitioner was granted by the Government vide order dated 14.09.2020. Learned trial court after hearing both the parties framed the charge for commission offences under section 5(1)(d) read with 5(2) and section 4-I of the Act vide order dated 09.10.2021.

The first contention raised by the petitioner is that as per the statement allegedly made by the complainant i.e. respondent No. 3 that he visited the office of the petitioner on 20.05.2019, when the petitioner demanded money from him, the petitioner was not in his office at Udhampur but was in Jammu, that is duly substantiated by the tour general approved by the General Manager. The prosecution story is that a demand was made by the petitioner on 21.05.2019 and the money was accepted on the same date by the petitioner and subsequently the same was recovered from his bed room. The contention of the petitioner that initially on 20.05.2019 when the complainant has allegedly stated that the petitioner made the demand, the petitioner was at Jammu, cannot be considered at this stage, particularly when the demand, acceptance and recovery on 21.05.2019 has been prima facie established on the basis of the evidence collected by the Investigating Officer during the course of investigation. Otherwise also, the issue raised by the petitioner is a disputed question of fact and its relevance has to be considered only during the course of trial and after the prosecution leads its evidence therefore, the contention raised by the petitioner is rejected.

The second contention raised by the petitioner is that the sanction has given by incompetent authority. It is relevant to take note of section 6 of the Act, that reads as under:

“[6. Sanction necessary for prosecution [(1)] No Court shall take cognizance of an offence punishable under 4[the provisions of this Act], alleged to have been committed by a public servant except with the previous sanction

(a) in the case of a person who is employed in connection with the affairs of the State and is not removable from his office save by or with the sanction of the Government;

(b) in the case of any other person, of the authority competent to remove him from his office;

(c) in the case of person who is or has been a member of the Council of Ministers other than the Chief Minister, of the Governor on the advice of the Chief Minister;

(d) in the case of person who is or has been a Chief Minister, of the Governor;

(e) in the case of a person who is or has been a member of either House of the State Legislature, of the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be.

[(2)] Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (1) should be given by the Government or any other 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.]

[(3) Notwithstanding anything contained in the Code of Criminal Procedure, Samvat 198 – (a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of any error, omission or irregularities in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any enquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation: –For the purposes of this section –

(a)error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.]”

Thus, it is clear that no finding, sentence or order passed by a Special Judge can be reserved or altered by a court in an appeal, confirmation or revision on the ground of any error, omission or irregularity in the sanction unless in the opinion of that court a failure of justice in fact has been occasioned thereby. So far as the validity of the sanction is concerned, the same is required to be considered during the course of trial and also it is to be seen whether because of any error or omission in the sanction, any failure of justice has occasioned to the accused or not. In State of Bihar and others v. Raja Mangal Ram reported in AIR 2014 SC 1674, the High Court had quashed the criminal proceedings on the ground that the Law Department was not the competent authority to grant sanction for the prosecution and also because sanction was passed mechanically. The Hon‟ble Apex Court observed that even in such a case, it was necessary for the High Court to reach to the conclusion that a failure of justice has been occasioned and further that one of the grounds taken by the High Court for quashing the criminal proceedings that the sanction order in question was passed mechanically and without consideration of relevant facts, should have been considered only after evidence in the case has been led on the issue in question. The petitioner is well within his right to demonstrate before the trial court that failure of justice has occasioned to him because of error or irregularity, if any in the sanction.

The other contentions raised by the petitioner that the respondent No. 3 has himself not completed the codal formalities and there is nothing on record to demonstrate that there was residential quarter in the name of petitioner, cannot be considered at this stage being the disputed questions of facts and its relevance is to be seen only during the course of trial.

In view of all what has been discussed above, the present petition is devoid of merits, as such, the same is dismissed.