Rajasthan High Court - Jodhpur
Malam Singh vs State Of Raj. & Ors on 10 August, 2009
Author: Prakash Tatia
Bench: Prakash Tatia
1
S.B. Civil Writ Petition No.7794/2009
Malam Singh. vs. State of Rajasthan & ors.
S.B. Civil Writ Petition No.7794/2009
Malam Singh.
vs.
State of Rajasthan and others.
Date : 10.8.2009
HON'BLE MR. PRAKASH TATIA, J.
Mr.Manoj Bhandari, for the petitioner.
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Heard learned counsel for the petitioner.
The petitioner was initially appointed on 16.11.87 on daily wages as Cattle Guard in the forest department and became semi permanent on 1.4.90. Then he has been made permanent from 18.2.99 and brought into State service governed by Rajasthan Civil Service Rules and according to the petitioner, since he was appointed in forest department, therefore, his parent department is forest department. However, he has been sent on deputation as Gram Sewak Secretary under Panchayat Samiti, Pindwada. The petitioner is facing a case under the provisions of Prevention of Corruption Act for which FIR was lodged on 6.5.2008, copy of which is placed on record as Annex.9. The 2 S.B. Civil Writ Petition No.7794/2009 Malam Singh. vs. State of Rajasthan & ors.
petitioner was suspended vide order dated 29.5.2008. Then in the meeting of Zila Parishad dated 23.6.2009, the Zila Parishad recommended for prosecution of the petitioner and as per the petitioner, the Zila Parishad granted sanction for prosecution which is required for prosecuting the government servant in accordance with law. The petitioner then preferred SBCWP No.6926/2009 which was dismissed by this Court vide order dated 20.7.2009 on the ground that the order of suspension can be challenged in appeal and the decision taken by the Zila Parishad was not interfered on the ground that it is not the case of the petitioner that the said decision of Zila Parishad has been placed on record of criminal case pending in the criminal court who can try the offence and without which it cannot be gathered that the prosecution relied upon the decision of Zila Parishad and treating it as valid sanction order for prosecution of the petitioner. After dismissal of the writ petition vide order dated 20.7.2009, now the petitioner has preferred this writ petition with one more document which is dated 29.6.2009 which has been addressed to the Deputy Inspector General of Police, Anti Corruption Bureau, Jodhpur sent by the office of Zila Parishad, Sirohi conveying that Zila Parishad 3 S.B. Civil Writ Petition No.7794/2009 Malam Singh. vs. State of Rajasthan & ors.
has already sanctioned the prosecution of the petitioner.
According to learned counsel for the petitioner, the petitioner may be proceeded in the criminal case registered under the provisions of Prevention of Corruption Act on the basis of the prosecution sanctioned by Zila Parishad which is not the parent department of the petitioner and the petitioner was working on deputation only in that department.
Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court rendered in the case of RR Chari vs. State of Uttar Pradesh reported in AIR 1962 SC 1573 wherein the Hon'ble Apex Court considered in detail who can grant sanction for prosecution in under the provisions of Prevention of Corruption Act and examined the distinction between the sanction required under Section 197 CrPC and the sanction required under the provisions of Prevention of Corruption Act.
Learned counsel for the petitioner also relied upon the judgment of Delhi High Court rendered in the case of Gurbachan Singh vs. State reported in Air 1970 Delhi 102.
I considered the submissions of learned counsel for the petitioner and perused the facts 4 S.B. Civil Writ Petition No.7794/2009 Malam Singh. vs. State of Rajasthan & ors.
of the case.
There is no quarrel about the issue that a proper sanction is required to prosecute a public servant under the provisions of Prevention of Corruption Act and particularly in view of Section 6 of the said Act. It is also not in dispute in view of the authoritative pronouncement of the Hon'ble Apex Court in the case of RR Chari (supra) that as per Section 6, the sanctioning department can be the department wherein the employee is permanently employed and not the department where the employee is "employed for time being".
The issue at present cannot be that what will be the effect of decision of Panchayat Samiti, Pindwara (Annex.20) or the recommendation sent by the Zila Parishad, Sirohi to Anti Corruption Department vide communication dated 29.6.2009 because of the plain and simple reason that the authority who can proceed in the criminal case in accordance with law unless and until acts upon that order sanctioning prosecution, it is difficult to believe that the said authority will act upon an order sanctioning the prosecution without examining whether that sanction order has been passed by the competent authority. Be it as it may be, unless the alleged sanction order for prosecution is placed on record in the criminal 5 S.B. Civil Writ Petition No.7794/2009 Malam Singh. vs. State of Rajasthan & ors.
case so as to proceed in the criminal case, then only one can have grievance. Any order passed by any authority if is departmentally communicated to the other department itself cannot give cause to challenge that order. The petitioner is required to show that cause has accrued to him because of the reason of acting upon the decision taken by the department. It cannot be disputed that the sanction order for prosecution can be acted upon by the Court and not by the department. Even if the order sanctioning prosecution is placed on the record of the criminal case, then the petitioner may challenge that order in accordance with law and if it is wholly without jurisdiction then by way of appropriate remedy otherwise than approaching the Court where the case is pending, which depends upon facts of each case. The sanction order yet has not been submitted in the criminal court, therefore, there is no factual change in the situation from which was prevailing when this Court dismissed the earlier writ petition on 20.7.2009.
In view of the above reasons, I do not find any merit in this writ petition nor this Court is prepared to assume that the authority who is competent to sanction the prosecution or the 6 S.B. Civil Writ Petition No.7794/2009 Malam Singh. vs. State of Rajasthan & ors.
authority who can proceed in accordance with the sanction, will act without verifying the fact that the decision of prosecution is valid or has been passed by the competent authority.
Consequently, this writ petition is hereby dismissed.
(PRAKASH TATIA), J.
S.Phophaliya