Jharkhand High Court
Shiv Muni Ram vs The State Of Jharkhand Through The ... on 8 August, 2014
Author: R.R. Prasad
Bench: R.R. Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 11 of 2014
Shiv Muni Ram .... ... Petitioner
Versus
The State of Jharkhand through the Secretary,
Road Construction Department,
Government of Jharkhand, Ranchi & Ors. .... ... Respondents
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CORAM: HON'BLE MR. JUSTICE R.R. PRASAD
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For the Petitioner : Mr. Sumeet Gadodia, Advocate
For the State : Mr. Jai Prakash, AAG
For the CBI : Mr. Mokhtar Khan, Advocate
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3/08.08.2014This writ application has been filed for quashing of the orders dated 18.4.2011 and 21.4.2011, as contained in Annexures-4 and 4/1 respectively, whereby and whereunder, respondent no. 3-the Secretary, Department of Law (Judicial), Government of Jharkhand, Ranchi, has accorded sanction for prosecution of the petitioner in R.C. Case No. 1(A) of 2010(R).
The case of the prosecution is that the Road Construction Department did award work to M/s Kalawati Constructions (P) Ltd. for special repair of Balumath-Harhargunj Panki Road at estimated cost of Rs. 1,32,83,679/-. As per the agreement, M/s Kalawati Constructions (P) Ltd. was supposed to procure the bitumen to be utilized in the execution of work from the Government oil company. M/s Kalawati Constructions (P) Ltd. submitted 13 invoices claiming to have procured bitumen from the Government company but out of it, 11 invoices were found to be forged. Still the then Executive Engineer, Road Construction Department certified the invoices fraudulently and allowed the contractor to draw money on the basis of forged bills and thereby it has been alleged that the engineers along with the contractor in connivance with each other committed offences of forgery, cheating and also the offence under Section 13(2) read with 13(1)(d) of Prevention of Corruption Act.
So far this petitioner is concerned, he being the Junior Engineer has been alleged to have dishonestly and fraudulently certified the fake invoices showing supply of bitumen without verifying the genuineness of the invoices.
The matter was taken up for investigation. After completion of investigation, the Investigating Officer submitted charge-sheet when order sanctioning for prosecution was accorded by the Secretary, Department of Law (Judicial), Government of Jharkhand, Ranchi vide its orders dated 18.4.2011 and 21.4.2011 which is under challenge.
Mr. Sumeet Gadodia, learned counsel appearing for the petitioner, submits that the petitioner at relevant point of time was posted as Junior Engineer, whose appointing/controlling authority was the Chief Engineer and thereby in terms of the provision, as contained in Section 19(1)(c) of the Prevention of Corruption Act, it was the Chief Engineer who could be competent to accord sanction for prosecution, but here in the instant case, sanction for prosecution has been accorded by the Secretary, Department of Law (Judicial), Government of Jharkhand, by virtue of the note appended to Rule 53 (1)(c) of the Rules of the Executive Business but that note had been amended which has not been taken into account and as such, the order sanctioning prosecution is bad.
Further, it was submitted that the respondent no. 3- Secretary, Department of Law (Judicial) while granting sanction for prosecution never seems to have considered the notings, which were there in the file, and thereby the respondent no. 3 can be said to have granted sanction without application of mind and thereby the order sanctioning prosecution is bad in view of the decision rendered in a case of State of Karnataka Vs. Ameerjan {(2007)11 S.C.C. 273}.
Further, it was submitted that the petitioner has greatly been prejudiced on account of sanction for prosecution being granted by the respondent no. 3, as had the matter relating to sanction for prosecution been brought to the appointing authority, he would have taken into account the fact that the petitioner being the Junior Engineer had no role to play in the matter of certification of any bill but this aspect of the matter has never been considered by the respondent no. 3 and thereby the petitioner's case has certainly been prejudiced on account of sanction being granted by the respondent no. 3.
In this regard, learned counsel has referred to the decisions rendered in the cases of State of Goa Vs. Babu Thomas {(2005) 8 SCC
130), Mansukhlal Vithal Das Chauhan Vs. State of Gujarat {(1997) 7 SCC 622}.
As against this, Mr. Mokhtar Khan, learned counsel appearing for the CBI, by referring to Section 19 (3)(4) of the Prevention of Corruption Act, submits that no finding, sentence or order passed by a Special Judge warrants to be reversed or altered on the ground that the sanction order issued under sub-section (1) of Section 19 suffers from any irregularity, error or omission unless in the opinion of that court, a failure of justice has in fact been occasioned thereby, which proposition has been laid down by the Hon'ble Supreme Court in number of cases and recently in a case of State of Bihar and others Vs. Rajmangal Ram (AIR 2014 SC 1674). Further, it was submitted that so far point relating to failure of justice is concerned, it needs to be addressed during trial and not at this stage, as only by adducing evidence that would be established or could be rebutted. The Hon'ble Supreme Court in the cases, referred to above, has been quite categorical in holding that this point is to be appreciated during trial when the parties lead their evidences.
Mr. Mokhtar Khan did point it out that in the case of State of Bihar and others Vs. Rajmangal Ram (supra), submission had been advanced on behalf of the accused that the sanction has never been granted by the parent department but by the Law Department. That plea was dispelled with by the Court keeping in view the provision contained in Section 19(3) (4) of Prevention of Corruption Act by holding that merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. Same is the situation here and, therefore, the order granting sanction never warrants to be interfered with by this Court.
The ground on which the impugned order has been sought to be quashed is that the petitioner being posted as Junior Engineer was under
the control of Road Construction Department and as such the Secretary, Department of Law (Judicial) being not an appointing authority is not competent to accord sanction for prosecution in terms of Section 19(1)(b) of the Prevention of Corruption Act. Here in the instant case, the Secretary, Department of Law (Judicial) has issued the order granting sanction in the name of the Governor which seems to have been issued in consonance with note appended to Rule 53 (1)(c) of the Rules of the Executive Business.
However, according to learned counsel for the petitioner, that note, reference of which has been given hereinabove, seems to have been substituted through a resolution dated 3rd July, 1993 by the following clause:
"All kinds of order regarding prosecution shall be issued by the Law (Judicial) Department after the orders have been obtained in accordance with Rule 32(a)(xix)."
Said amended clause, according to the petitioner, has not been taken into account by the Secretary, Department of Law (Judicial). Even if it has not been taken into account, that would be, at best, an error or irregularity which does not affect the validity of the proceeding in terms of the provision, as contained in Section 19(3)(4) of Prevention of Corruption Act, unless it results into a failure of justice.
At this stage, the provision of Section 19(3)(4) of Prevention of Corruption Act needs to be taken notice of which reads as follows:
19(3) - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) -
(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."
A combined reading of sub-sections (3) and (4) makes the position clear that notwithstanding anything contained in the Code, no finding, sentence and 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.
It be noted that explanation (a) to sub-section (4) does stipulate that error includes incompetency by the authority to grant sanction. Meaning thereby that even if the order granting sanction is assailable on the ground that the authority is incompetent to grant sanction, it cannot be interfered with by the court unless it is shown that the said defect/irregularity has resulted into failure of justice. The aforesaid proposition has been laid down by the Hon'ble Supreme Court in a case of State of Police Inspector vs. T. Venkatesh Murthy {(2004) 7 SCC 763} which view has been reiterated subsequently in a case of State of Madhya Pradesh vs. Virendra Kumar Tripathy {(2009) 15 SCC 533} and recently in a case of State of Bihar and others Vs. Rajmangal Ram (AIR 2014 SC 1674).
Further Their Lordships in a case of State of Bihar and others Vs. Rajmangal Ram (supra) has been pleased to observe that to determine the plea of prejudice, appropriate stage would be a trial when the parties would be leading evidences.
Under the circumstances, I do not find any merit in this writ application and hence, this writ application stands dismissed.
(R.R. Prasad, J.) AKT