Punjab-Haryana High Court
Dr. Jaswinder Kaur vs State Of Punjab And Another on 13 February, 2001
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, J.
1. In this petition under Section 482 Cr.P.C., the petitioner seeks quashing of FIR No. 25 dated 7.4.98 under Sections 7, 13(1)D read with Section 13(2), 88 of the Prevention of Corruption Act registered at Police Station Vigilance Bureau, Jalandhar Range, Jalandhar (Annexure P-l) and consequential proceedings pending in the Court of Special Judge.
2. The petitioner is a doctor. At present, she is posted as Medical Officer in ESI Hospital, Phagwara. She joined Government service on 20.7.82. According to the petitioner, her service record has remained unblemished. No adverse entry has been communicated to the petitioner. It is her case that she has been falsely implicated in the aforesaid case. According to the FIR, one Bal winder Kaur wife of Harkamal resident of village Jandiaji, Teh. and Distt. Nawanshahar (hereinafter referred to as the complainant) was in need of an abortion. She alongwith her husband went to government hospital, Phagwara on 9.3.98. There they contacted the petitioner who was posted as Medical Officer. The petitioner checked the complainant and agreed to undertake the abortion on payment of Rs. 2000/- as bribe. Ultimately, a deal was struck at Rs. 1700/-. Out of this, the complainant paid a sum of Rs. 900/- there and then. She agreed to pay the remaining amount in instalments. Even in the FIR, it is stated that after taking medicine, the complainant came back to her house. She, thereafter states, "On the next day I bleeded and abortion also occurred". She thereafter went to the petitioner for further medical check up. The complainant was told to bring the remaining Rs. 800/- so that she could be medically examined. On 4.4.98, the complainant paid a further sum of Rs. 400/- and she was checked. Certain medicines were also given to the complainant. She, however, expressed her inability to pay the remaining Rs. 400/-. Thereafter, whilst corning home, the complainant and her husband decided to make a complaint against the petitioner. Therefore, the complainant and her husband went to the Vigilance Bureau and arrangements were made for laying atrap forthe petitioner. The complainant had given four one hundred rupee notes to D.S.P. Sukhdev Singh, After treating the same with "phenolphthalein" powder, they were given to the complainant to be handed over to the petitioner in due course. Thereafter, the raiding party came to the hospital. The husband of the complainant acted as a shadow witness. He was to make a signal to the raiding party when the money had been paid by the complainant to the petitioner. The raid was conducted successfully and the FIR was registered. After investigation into the case, the Vigilance Bureau sent the papers to the competent authority for according sanction as required under Section 19 of the Prevention of Corruption Act, 1988, The entire material collected against the petitioner was sent (o the competent authority. The record consisted of checking memo pages 1-4, police file pages 1-84 and challan pages 1-140. After examining the entire matter, the competent authority declined to give sanction. Prior to passing the order declining the sanction, the petitioner was given an opportunity of hearing. This was necessitated as the petitioner had made a number of representations to the higher authorities stating therein that she had been falsely implicated. The petitioner was given an opportunity of hearing on 23.6.99. The letter dated 16.6.99 giving the petitioner opportunity for personal hearing is attached with the petitioner as Annexure P-2.
3. According to the petitioner, without there being any change in the circumstances, the whole matter seems to have been reconsidered and reviewed. Now by order Annexure P-4 dated 29.7.2000, sanction has been granted for prosecution of the petitioner. On 23.11.2000, this court issued notice of motion and stayed the further proceedings before the trial Court. At the same time, the counsel for the State was directed to make available to the Court the necessary official file. The file had been made available to the Court. Replies have also been filed,
4. In the reply filed on behalf of Mangal Singh, Under Secretary to Government of Punjab, Department of Health & Family Welfare, Punjab, it is submitted that initially, the Principal Secretary, Health refused to grant sanction for prosecution. It is further submitted that thereafter the case was reviewed and sanction for prosecution was granted. It is specifically mentioned that initially refusal to prosecute and later on permission to prosecute was given by the same Officer and not by a different Officer as contended by the petitioner. In the reply filed by Amrik Singh, Deputy Superintendent of Police, Vigilance Bureau, Jalandhar, it is stated that no comment can be offered on the submissions made by the petitioner. It is, however, stated that some clarification was sought by the Principal Secretary before granting sanction.
5. Mr. Kang appearing for the petitioner has submitted that once the competent authority had passed an order declining the grant of sanction, no further order could have been passed granting sanction. He submits that after passingthe order AnnexureP-3, the Principal Secretary has become functus-qfficio. Under the Prevention of Corruption Act, 1988, the competent authority has no power to review the earlier orders passed. He has further submitted that the order refusing sanction had been passed after hearing the pe-titioner. Thereafter, subsequent order granting sanction, in any event, could not have been passed without complying with the principle of natural justice. Having earlier granted an opportunity of hearing to the petitioner, if subsequently her position was to be adversely affected, she was entitled to be heard. Learned counsel has further submitted that in any event, there is no other material placed before the competent authority to come to the conclusion different from the earlier conclusion. He has further submitted that a perusal of the replies shows that admittedly, the competent authority had purported to review its earlier order. It is, therefore, submitted that the proceedings pending against the petitioner are abuse of the process of the Court. It is, therefore, submitted that the FIR and the consequential proceedings deserve to be quashed.
6. Mr. P.S. Sullar, on the other hand, has submitted that granting of sanction is a purely administrative act. There is no prohibition for review of the administrative orders passed by the competent authority. Learned counsel has submitted that after the competent authority had declined to grant the sanction, the Vigilance Bureau had sought the reasons for declining the sanction. While re-considering the matter for supply the reasons, the same Officer came to the conclusion that there was sufficient material on record to grant sanction. Hence, the subsequent orders-Annexure P-4 dated 29.7.2000 has been passed granting sanction.
7. Mr. Kang has relied on a number of judgments to show that the power of review must be specifically conferred under statute. Since no such power has been conferred under the Prevention of Corruption Act, the order of review is wholly without jurisdic-lion. Learned counsel has relied on a judgment of Supreme Court in the case of Hari Singh Mann v. Harbhajan Singh Bajwa and others, AIR 2001 SC 43. Thereafter the learned counsel has relied on a Division bench judgment in the case of Vijai Bahadur v. State of U.P. and others, 1989 Crl.L.J. No. 61 (All.) 29. Learned counsel has also relied on a Division Bench judgment of this Court in the case of Sadha Singh and others v. The State of Punjab and others, 1967 Current Law Journal 817 and a single Bench judgment of this Court in the case of Harmesh Kumar v. State of Punjab, 1999(2) RCR(Criminal) 351.
8. I have anxiously considered the submissions made by the learned counsel. I have also perused the file which has been made available to the Court. The relevant averments in the petition are to the effect that the Principal Secretary, Health and Family Welfare refused to grant sanction for prosecuting the accused-petitioner by order dated 14.2.2000 (Annexure P-3). This order was passed after hearing the petitioner. All the material available with the Vigilance Bureau was placed before the competent authority. The Police file consisted of 84 pages. The challan papers consisted of 140 pages. After considering the entire matter thoroughly, the competent authority had declined to grant the sanction. Thereafter, the case was reviewed and sanction for prosecution was given. A perusal of the file shows that the earlier sanctioning authority had disbelieved the story put forward by the Vigilance Bureau. Before disbelieving the story put forward by the Vigilance Bureau, the Joint Secretary in the Health Department had written a letter to the Vigilance Bureau on 1.10.99. In this letter, the Vigilance Bureau was asked to give proof of the fact that the petitioner had dealt with the case of the complainant. This was necessitated as the petitioner had clearly stated in her representation dated 26.6.1999 that she has been falsely implicated. She had stated that she was not even present in the O.P.D. at the relevant time as she was attending an official function in the compound of the hospital. The petitioner had also stated that she had not conducted the abortion. The Vigilance Bureau was unable to give proof of the fact that the complainant had been treated by the petitioner on 9.3.1998. They were also unable to give proof of the fact that the complainant had actually been prescribed any medicine by the petitioner. It was also accepted that the abortion of the complainant had occurred on 10.3.1998. Taking into consideration the entire record, the order refusing the sanction was passed on 14.2.2000. A persual of the official record shows that on 31.1.2000 the Health Department had come to the conclusion that the petitioner had been made a victim of a pre-meditated plan. This conclusion had been based on a very careful consideration of the entire record. The submissions made by the petitioner were accepted by the competent authority after applying its own mind.
9. Thereafter, the Vigilance Bureau had again written a letter on 18.5.2000 asking the Health Department to give the reasons for not granting the sanction. Instead of giving the reasons for refusal of the sanction which are very much in existence on the official file, the competent authority reviewed its earlier order, and granted sanction to prosecute.
10. I am of the considered opinion that the order granting sanction dated 29.7.2000 is not sustainable in the eye of law for a number of reasons. In similar circumstances, this Court, in the case of Kashmir Singh v. State of Punjab and others, vide CrL Misc. /Vo. 825-Mofi996 quashed the order of sanction as also the subsequent proceedings. In that case, it was found that the competent authority had declined to grant sanction to prose-cure the petitioner by order dated 24.3.1995. Thereafter, again sanction was granted. This Court held as follows :-
"There is nothing to show that he considered the earlier rejection order or that any fresh material was placed before him or that he found sufficient reasons for rejecting the earlier order declining the permission and for reviewing it. In these circumstances, I am of the view that the Special Secretary who accorded sanction under Annexure P-8, has not applied his mind at all to the matter in question before he accorded the sanction. Had he applied his mind, then we would find mention in his order about the earlier rejection and the reasons for his coming to a different conclusion. Therefore, I am of the view that the sanction (annexure P-8) to prosecute the petitioner is not valid."
This Court further observed as follows :-
"Secondly, in the circumstances of the case, where there is nothing to show that any fresh material was placed before the Special Secretary who accorded sanction under annexure P-8, he was neither justified nor entitled to review the earlier order declining the sanction and then accord sanction.
Section 19 of the Prevention of Corruption Act, 1988, prohibits a Court from taking cogni.zance of offences punishable under Sections 7, 10, 11, 13 and 15 except with the previous sanction of the concerned Government. Therefore, when Ihere is no valid sanction, the Court cannot take cognizance of the offence. Therefore, the FIR and the other consequemial proceedings including the sanction order have to be quashed. Even if the charge sheet has been filed, the position will be the same since the court cannot take cognizance of the offence without a valid previous sanction and the absence of a valid sanction goes to the root of the matter affecting the very jurisdiction of the Court to take cognizance of the offence. In the absence of a valid sanction, the Court is not only prevented from taking cognizance of the offence, but it cannot, also convict the accused and, therefore, no useful purpose will be served by allowing the FIR concerned and the consequential proceedings to continue. Hence this petition has to be allowed."
11. I am of the considered opinion that the case of the petitioner is covered by the aforesaid ratio. In the absence of some fresh material or some technical infirmity, or some clerical error, the competent authority had no power to review the earlier order on merits.
12. The provisions of Section 19 of the Prevention of Corruption Act have also been considered by this Court in the case of Harmesh Kumar v. State of Punjab (supra). In paragraph 6 of the j udgment, it is observed as follows :-
"6. After considering the rival contentions of the parties, I am of the considered opinion that no prosecution can be launched against the petitioner as the investigating agency has not procured the valid sanction from the competent authority and that order Annexure P-16 which has been passed by respondent No. 3 does not give him the power to grant valid sanction under Section 19 of the Prevention of Corruption Act. Section 19 of the Act has been incorporated in the Act with a laudable purpose to safeguard the interest of public servants so that these persons may not be harassed unnecessarily by unscrupulous litigants. The object of Section 19 is to secure the interest of a public servant from vexatious and frivolous litigation so that the sword of tension may not hang on his neck for years together. That is the reason the legislature in its wisdom has categorised the public servants into three categories and has ultimately vested these powers to the Central Government, State Government or (o the authority competent to remove a public servant from his office. The scheme of the Act as I understand is that after investigating the matter, the investigating agency has to place the entire evidence which has been collected during the course of investigation including the documents and the statements of the witnesses before the competent authority which is supposed to apply its mind in a quasi-judicious manner so as to arrive at an independent conclusion as to whether a public servant has prima facie committed the offence or not. Of course, the duty upon the competent authority is onerous as it is to formulate an opinion in an unbiased mind. But once it formulates an opinion acting in a quasi-judicious manner, then the investigating agency cannot set at naught the decision so taken by the competent authority. Even with the refusal of granting sanction by a competent authority, the successor authority cannot review the order once that power has been exercised/discharged by a competent authority at one point of time....."
13. In the case of Hari Singh Mann v. Harbhajan Singh Bajvva and others (supra), the Supreme Court was considering the ambit of the power of review to be exercised by the High Court. The Supreme Court observed as follows :-
"9. There is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.....
10. Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provisions becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error....."
14. A perusal of the above shows that power of review can be used for correcting a clerical or arithmetical error. It cannot be used to correct an erroneous view that may have been taken on the facts of a particular case. The Supreme Court held that even inherent power under Section 482 Cr.P.C. cannot be exercised by the High Court for reviewing its earlier orders. The power of review has to be specifically provided for in the enactment under which the power is exercised. Under the Prevention of Corruption Act, there are no residuary or inherent powers which are vested with the competent authority to review the orders time and again. Once the competent authority takes a conscious decision on the basis of the relevant material, and for relevant considerations, the same would not be open to review. Otherwise, the protection granted to the public servant under Section 19 would be rendered nugatory. This section has given the power to the competent authority to decide as to whether there is prima facie material to sanction the prosecution of the public servant. Once the investigating agency has submitted the entire material, it has no further role to play. It is for the competent authority to decide as to whether the sanction is to be given for the prosecution of the public servant. In the present case, while exercising this power, the competent authority had declined to give sanction on 14.2.2000. This order cannot be reviewed merely because the Vigilance Bureau had asked for reasons in support of the order. This fortuitous circumstances has been misused to provide an excuse for reviewing the order refusing sanction. I am of the considered opinion that the impugned order dated 29.7.2000, purporting to give sanction is colourable exercise of administrative power. It is an abuse of the process of law. This order does not even advert to the earlier order declining to give sanction. Yet the same officer reviews his earlier order, without any change in any of the circumstances. The decision is patently arbitrary. A Division Bench of the Allahabad High Court has also taken a similar view on the question as to whether or not the same Officer can review the earlier order. In the case of Vijai Bahadur v. State of U.P. and others (supra), it has been observed, "An order, judicial or administrative, may be permitted to be reviewed or recalled only if it was passed under misapprehension of fact. Otherwise it gives rise to misgiving and speculation which is not conducive to the sense of justice. Since the earlier order of sanction was passed after careful consideration of material on record the officer was precluded from recalling it or passing fresh order on some material because of erroneous impression."
15. Section 6 of the Prevention of Corruption Act, 1947 extends protection to a public servant against unwarranted harassment. It should, therefore, be construed in a manner which subserves the objective of its enactment."
16. These observations are squarely applicable to the facts and circumstances of the present case. The Officer could not have reviewed its earlier orders. As soon as the earlier orders refusing the sanction was signed on 14.2.2000, the competent authority be-came functus officio. Merely, because the Vigilance Bureau had asked for the reasons for the refusal of the sanction was not a ground to review the earlier order.
17. In view of the above, the petition is allowed. FIR No. 25 dated 7.4.98 under Sections 7, 13(1)D read with Section 13(2), 88 of the Prevention of Corruption Act registered at Police Station Vigilance Bureau, Jalandhar Range, Jalandhar (Annexure P-1) and consequential proceedings pending in the Court of Special Judge, Kapurthala are hereby quashed. No costs.
18. Petition allowed.