Rajendra Kumar Jain vs State of Rajasthan and Others

M.N. Bhandari, J—By this writ petition, a challenge is made to the order dated 03rd November, 2014 granting sanction for prosecution so as the order of suspension dated 05th November, 2014.

Learned counsel submits that after registration of case for offence under the Prevention of Corruption Act, 1988 (for short ''Act of 1988''), the investigation was conducted. The prosecution asked for sanction for prosecution. It was denied by the competent authority vide its order dated 18th June, 2014. After the aforesaid order, now the order has been passed to grant sanction for prosecution. The subsequent order is nothing but review of the first order without any change in the material. Whatever material was considered while passing the first order, was again considered while passing the impugned order. The aforesaid is not permissible in view of the judgment of Hon''ble Apex Court in the case of State of Himachal Pradesh Vs. Nishant Sareen, AIR 2011 SC 404 : (2011) 1 Crimes 47 : (2011) 1 JCC 36 : (2011) 1 RCR(Criminal) 193 : (2011) AIRSCW 3699 : (2010) 8 Supreme 496 . Accordingly, the impugned order may be set aside so as the order of suspension.

I have considered the submissions made by learned counsel and perused the record.

It is a case where in a trap organized by the Anti Corruption Bureau, a sum of Rs. 1,12,500/- was found in the pocket of the petitioner. When he was asked about the sources, it could not disclosed. The FIR was accordingly registered for offence under Sections 13(1)(e) and Section 13(2) of the Act of 1988. After the investigation, charge sheet was proposed and accordingly, department was asked to give sanction for prosecution.

According to the petitioner, it was refused by a detailed order at Annexure - 6. In my opinion, the Annexure - 6 is an internal noting of the department and not the order ever issued. The conclusions were tentatively drawn finding it to be not a fit case to grant sanction for prosecution but as per the Circular dated 06th April, 2002, it was referred to the Principal Secretary, Urban Development and Housing Department (for short ''UDH''). In pursuance to it, the matter travelled to the Principal Secretary, UDH where the authority was asked to reconsider the case in the light of the observation made therein, though the word ''review'' has been used therein but in absence of a final order denying sanction for prosecution, it cannot be taken a case of review. The authority then considered the case and finding no explanation about the amount found with the petitioner at the time of trap, sanction for prosecution was given. It would be gainful to quote the Section 13(1)(e) of the Act of 1988 for ready reference:

"13. Criminal misconduct by a public servant. -(1) A public servant is said to commit the offence of criminal misconduct,-

(a)............

(b)............

(c)............

(d).............

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."

As per the explanation given under the provision, one is at liberty to satisfactorily account pecuniary source or disproportionate property. The explanation aforesaid is to be given at the first instance and not with an afterthought. The petitioner failed to offer any explanation when asked by the ACB at the time of trap, as is coming out from the impugned order. It is by an afterthought and with lapse of period that source of amount was given in reference to the withdrawal of a sum of Rs. 2,25,000/- by the mother-in-law for treatment. The competent authority found that if that was the source, it could have been disclosed by the petitioner at the first instance when asked by the ACB. In view of the aforesaid reason, the impugned order has been passed.

The order has been challenged treating it to be a case of review whereas the case of review can be when final order is passed denying sanction for prosecution. The perusal of Annexure - 6 shows a noting on the file on the issue of sanction for prosecution but it was made subject to decision/direction by the Principal Secretary, UDH, thus cannot be said to be a concluded order. The concluded order has now been passed against the petitioner with the reasoning given therein, though earlier tentative decision was taken to deny sanction for prosecution by assigning reasons.

A reference of Section 19 of the Act of 1988 would also be relevant, thus is quoted hereunder:

"19. Previous sanction necessary for prosecution

(1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15 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 Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(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 the 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.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that 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, 1973,-

(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 the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been 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 inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or 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."

Section 19(3)(a) of the Act of 1988 makes it clear that any error, omission or irregularity in the sanction granted by the authority would not be a ground to challenge the order unless in the opinion of the Court, a failure of justice.

In the instant case, learned counsel for the petitioner could not show failure of justice. It is not that facts considered in the impugned order are irrelevant causing failure of justice.

In view of the above also, the challenge to the impugned order is not sustainable. Accordingly, the writ petition fails and is dismissed so as the stay application.