Punjab-Haryana High Court
Tarsem Chand Jindal vs State Of Punjab on 10 September, 2012
Author: Sabina
Bench: Sabina
Criminal Misc. No.M-4982 of 2008 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Misc. No.M-4982 of 2008 (O&M)
Date of decision: 10.9.2012
Tarsem Chand Jindal
......Petitioner
Versus
State of Punjab
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Atul Lakhanpal, Sr. Advocate with
Mr.R.S.Chahal, Advocate,
for the petitioner.
Mr.P.S.Paul, DAG, Punjab.
****
SABINA, J.
Petitioner has preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 for setting aside the order dated 12.7.2006 (Annexure P-5) in a case bearing FIR No.100 dated 25.11.1998 under Sections 7 and 13 of the Prevention of Corruption Act, 1988 (for short 'the Act'), registered at Police Station Vigilance Bureau Patiala; order dated 13.9.2007 (Annexure P-7 and all the subsequent proceedings arising therefrom.
Learned senior counsel for the petitioner has submitted that the criminal proceedings against the petitioner in pursuance to the FIR in question were liable to be quashed as there was no valid Criminal Misc. No.M-4982 of 2008 (O&M) 2 sanction granted by the competent authority for prosecution of the petitioner. The competent authority had refused the sanction for prosecution of the petitioner on three occasions. Thereafter, the prosecution had submitted untraced report. Learned Special Judge, vide order dated 12.7.2006 (Annexure P-5), directed the prosecution to proceed further with the matter and submit a fresh report. Thereafter, the competent authority granted sanction for prosecution of the petitioner, although there was no fresh material available on record. Petitioner had been falsely involved in the case by the complainant as he had made a report against the complainant qua theft of electricity on 14.11.1998. In pursuance to the said report, complainant had deposited ` 4,021/- towards penalty on 18.11.1998. Thereafter, petitioner was falsely involved in this case on 25.11.998.
In support of his arguments, learned senior counsel for the petitioner, has placed reliance on State of H.P. vs. Nishant Sareen AIR 2011 Supreme Court 404, wherein, it was held as under:-
"12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been Criminal Misc. No.M-4982 of 2008 (O&M) 3 exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course.
13. Insofar as the present case is concerned, it is not even the case of the appellant that fresh materials were collected by the investigating agency and placed before the sanctioning authority for reconsideration and/or for Criminal Misc. No.M-4982 of 2008 (O&M) 4 review of the earlier order refusing to grant sanction. As a matter of fact, from the perusal of the subsequent order dated March 15, 2008 it is clear that on the same materials, the sanctioning authority has changed its opinion and ordered sanction to prosecute the respondent which, in our opinion, is clearly impermissible."
Learned senior counsel has further placed reliance on Mansukhloal Vithaldas Chauhan vs. State of Gujarat AIR 1997 Supreme Court 3400, wherein, it was held as under:-
19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuie satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in thesanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be had for Criminal Misc. No.M-4982 of 2008 (O&M) 5 the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
22. Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature.
Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words "shall" or "must". But this is not conclusive as "shall" and "must" have, sometimes, been interpreted as "may" . What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the Statute in which the 'duty" has been set out. Even if the "Duty" is not set out clearly and specially in the Statute, it may be implied as co-relative to a "Right".
23. In the performance of this Study, if the authority in whom the discretion is vested under the Statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the orders and issue a mandamus to that authority to exercise its own discretion."
Learned State counsel, on the other hand, has opposed the petition.
Criminal Misc. No.M-4982 of 2008 (O&M) 6
After hearing learned senior counsel for the petitioner as well as learned State counsel, I am of the opinion that the present petition deserves to be allowed.
In the present case, the FIR in question was registered against petitioner on 25.11.1998 under Sections 7 and 13 of the Act. A raid was organised and as per the prosecution case, petitioner was caught red handed while accepting ` 5,000/- as bribe. The bribe money was recovered from the pocket of the shirt of petitioner. When the matter was put up before the competent authority for grant of sanction, the following order was passed by the competent authority on 11.8.2001 (Annexure P-1):-
"After carefully going through the police file and challan papers of this case, I Baldev Singh Mann, Administrative Member, Punjab State Electricity Board being competent authority, I am not satisfied with the prima facie case made out against the said officer because of the following reasons:-
As per report of the consumer the officer has visited his site 12/13 days earlier and theft charges of ` 4,021/- were got deposited from the consumer on 18.11.1998. Had there been any bad intention of the officer, he should have made a deal at that time itself and there is not even a reference of asking money by the officer at that time.
After depositing of theft of charges by the Criminal Misc. No.M-4982 of 2008 (O&M) 7 consumer he hatched plan to involve the officer in bribe case. As per statement of the consumer, he visited the police station on 25.11.1998 and informed that S.D.O. had come to his house on 24.11.1998 for demanding ` 10,000/- for running of excess load at his mill and promised to give domestic connection within week. S.D.O. had agreed to bribe of ` 5,000/-. Police raid was arranged on 25.11.1998 which shows that it was all arranged pre hand. They were waiting only for the officer to come and join duty who was on leave on 23.11.1998 as per statement of the officer. Officer had brought back his father from Bathinda after his operation. It does not seem logical that officer after leaving his father straightway went to consumer house for checking his poultry farm and demanding bribe. Office record also indicates that officer was on leave on 23.11.1998, 24.11.1998 happened to be gazetted holiday due to martyrdom day of Guru Tegh Bahadur.
Now, therefore, I Baldev Singh Mann, Administrative Member, Punjab State Electricity Board being competent authority to dismiss/ remove from service the said Er.Tarsem Chand Jindal, A.E.E. Op.City Divn.Dhuri do Criminal Misc. No.M-4982 of 2008 (O&M) 8 hereby refuse the prosecution sanction against Er.Tarsem Chand Jindal moved against FIR No.100 dated 25.11.1998."
Thereafter, the matter was again put up before the competent authority for grant of sanction for prosecution of the accused and the same was again declined vide order dated 26.7.2002 (Annexure P-2). Another effort was made to seek sanction for the prosecution of petitioner but the competent authority declined to review the case on 31.1.2005 as there was no change of circumstances (Annexure P-4). Prosecution presented un-traced report and the Special Judge, vide order dated 12.7.2006 (Annexure P-5), held as under:-
"5. Suffice to say that there are statements of Tarinder Singh, Shamsher Singh, Jaswinder Pal Singh to the effect that tainted currency notes were recovered from the possession of Tarsem Chand and according to Tarinder Singh complainant, Tarsem Chand accepted this amount as illegal gratification. In view of the statements of these witnesses, it cannot be said that present case is 'untraced'. The competent authority refused sanction for prosecution vide letter dated 11.8.2001 and the report was submitted in the court only in September 2005 and no reason is coming forward why this report was upto submitted earlier.
Since this case cannot be treated as 'untraced', therefore, the report is returned to the Criminal Misc. No.M-4982 of 2008 (O&M) 9 investigating agency to proceed further with the matter and submit a fresh report. Papers be returned."
Thereafter, the matter was again put up before the competent authority and vide order dated 13.9.2007 (Annexure P-7), sanction for prosecution of the petitioner was granted.
Thus, in the present case on three occasions, the sanction for prosecution of the petitioner was declined by the competent authority. The competent authority, after examining the matter, had passed a detailed order dated 12.7.2006 (Annexure P-1). The competent authority had considered that about 12-13 days prior to the registration of FIR, petitioner had made a report against the complainant qua theft of electricity. Complainant had deposited ` 4,021/- towards penalty on 18.11.1998. In case the petitioner wanted to accept any bribe, he would have done so on the said date. After depositing the penalty amount, complainant lodged the FIR in question against the petitioner. Thereafter, again the sanction for prosecution was declined on two occasions. The prosecution submitted un-traced report but the Special Judge directed the prosecution to further proceed with the matter and in pursuance of the said order the competent authority granted sanction for prosecution of the petitioner, although there was no new material available on record to review the earlier decision given by the competent authority declining sanction for prosecution of the petitioner. It is apparent that the competent authority, while granting sanction for prosecution of the petitioner, has not acted independently and has passed the order in view of the direction given Criminal Misc. No.M-4982 of 2008 (O&M) 10 by the Special judge to further proceed with the matter.
In these circumstances, a great miscarriage of justice has occurred to the petitioner on account of passing of the impugned order dated 13.9.2007 (Annexure P-7), whereby sanction for prosecution of the petitioner has been granted without due application of mind.
Accordingly, this petition is allowed. The order passed by the Special Judge dated 12.7.2006 (Annexure P-5) and dated 13.9.2007 (Annexure P-7), passed in pursuance thereto, are quashed. Consequently, un-traced report submitted by the prosecution stands accepted.
(SABINA) JUDGE September 10, 2012 anita