Preet Dass Sinmar v. State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Date of Decision: 14.10.2015 Preet Dass Sinhmar --Petitioner.

Vs.

State of Haryana --Respondents.

CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK Present : Mr. Sunil K. Nehra, Advocate for the petitioner.

Mr. Kapil Aggarwal, Additional A.G. Haryana.

**** 1.To be referred to the Reporters or not? Yes 2.Whether the judgment should be reported in the Digest? RAMESHWAR SINGH MALIK J.

Petitioner seeks quashing of the impugned order dated 13.3.2004 (Annexure P-4) whereby learned Special Judge, Panipat, directed the prosecuting agency to submit the case file before the concerned sanctioning authority, to reconsider the grant of sanction against the petitioner, which had been earlier declined, dismissing the application moved by the prosecution seeking discharge. This petition was admitted and further proceedings pursuant to the impugned order Annexure P-4 were stayed by this Court, vide order dated 24.5.2004.

Briefly put, facts necessary for disposal of the present petition are that after having conducted a raid on the basis of complaint, FIR No. 287 dated 26.6.2000 under Section 7/13-49-48 of the Prevention of Corruption Act, 1988, ('PC Act' for short) was registered against the petitioner at Police Station City Panipat, vide Annexure P -1. Since the petitioner was admittedly a public servant, mandatory sanction for his prosecution was required, but the same was declined by the competent authority, i.e. Central Provident Commissioner, vide order dated 7.3.2003 (Annexure P-2), which is a self contained order.

When the requisite sanction was not granted by the competent authority, the investigating officer moved an application for discharge of the petitioner vide Annexure P-3. However, the application moved by the prosecuting agency seeking discharge of the petitioner, was declined by the learned Special Judge, vide impugned order dated 13.3.2004 Annexure P-4, thereby directing the prosecution to re-submit the case file before the concerned sanctioning authority, for reconsideration of the issue of grant of sanction. Hence this petition.

Learned counsel for the petitioner submits that the impugned order is not only suffering from patent illegality but the same is self contradictory as well as an order with jurisdiction. He further submits that neither there was any change in the circumstances nor there was any fresh material available against the petitioner, which might have necessitated passing of the impugned order. He submits that the learned Special Judge exceeded his

jurisdiction, while directing the prosecution to re-submit the case file before the concerned sanctioning authority for reconsideration of the issue of grant of sanction.

In support of his contentions, learned counsel for the petitioner places reliance on the following judgments:-

1. State of Punjab and another Vs. Mohammed Iqbal Bhatti, 2009 (17) SCC 92 (SC)

2. State of Himachal Pradesh Vs. Nishant Sareen, 2011 AIR (SC) 404 (SC)

3. Kamaljit Kaur Vs. State of Punjab, 2013 (1) RCR (criminal) 577 (P&H)

4. Mohan Singh and another Vs. State of Punjab and another, 2013 (2) RCR (criminal) 959 ( P&H)

5. Gursewak Singh Vs. State of Punjab, 2013 (1) Law Herald 350 ( P&H)

6. Ram Singh Dhall Vs. State of Punjab and another 2015

(3) RCR (criminal) 667 ( P&H)

7. Dr. Jaswant Singh Vs. State of Punjab and another, 2006 (4) RCR (criminal) 525 ( P&H) He prays for setting aside the impugned order by allowing the present petition.

On the other hand, learned counsel for the State submits that there was no patent illegality or perversity in the impugned order passed by the learned Special Judge and the same deserves to be upheld. The impugned order cannot be said to be an order without jurisdiction. He further submits that there was sufficient material

against the petitioner for grant of sanction. He also places reliance on the following judgments:-

1. Deepak Khinchi Vs. State of Rajasthan, 2012 (5) SCC 284 (SC)

2. Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, 1997 (7) SCC 622 (SC)

3. Ravi Kumar and another Vs. State, represented by the Deputy Superintendent of Police, 2012 (4) RCR (criminal) 286 (Madras High Court)

4. State of Kerala Vs. Sudhir, 2003 (2) RCR (criminal) 454 ( Kerala High Court) He prays for dismissal of the present petition. Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, instant one has been found to be a fit case for exercising the inherent jurisdiction of this Court under Section 482 Cr.P.C., so as to avoid any further abuse of process of law and also to secure ends of justice. To say so, reasons are more than one, which are being recorded hereinafter.

It is a matter of record that whatever material was available against the petitioner, that was duly considered by the competent authority, while passing the self contained order dated 7.3.2003 (Annexure P-2). Each and every relevant aspect of the matter had been examined, considered and appreciated in the correct

perspective by the competent authority, at the time of passing the order and finally, it was not found to be a fit case for granting sanction to prosecute the petitioner.

During the course of hearing, when a pointed question was put to the learned counsel for the State, as to whether there was any fresh material against the petitioner, so as to enable the learned trial court or the competent authority to re-consider the matter, he had no answer and rightly so, it being a matter of record. In fact, learned counsel for the State fairly stated that, as a matter of fact, there was no fresh material against the petitioner, nor it has been so said in the reply filed on behalf of the State.

Having said that, this Court feels no hesitation to conclude that learned trial court has exceeded its jurisdiction, while passing the impugned order and the same cannot be sustained. Had there been any fresh material against the petitioner, the same would have been pointed out by the State in its reply. However, a close perusal of the reply shows that any such allegation referring to any fresh material against the petitioner has been found conspicuously missing, which would also render the impugned order without jurisdiction. In fact, while considering the application for discharge of the accused, moved by the prosecuting agency because of non grant of sanction by the competent authority, learned trial court would have no jurisdiction to issue a direction to the prosecuting agency, to resubmit the case file before the concerned sanctioning authority for reconsideration of the matter for the purpose of grant of sanction. Learned trial courts are not supposed to act as a prosecuting agency.

Such jurisdiction lies within the exclusive domain of the concerned sanctioning authority, who in the present case, applied its mind, considered the material placed before it and did not find it to be a fit case for grant of sanction to prosecute the petitioner. In this view of the matter, it can be safely concluded that learned trial court has traveled beyond its jurisdiction, while passing the impugned order and the same cannot be sustained, for this reason also. Coming to the competence of the sanctioning authority for reconsideration of the matter, referring to fresh material, for the purpose of grant of sanction, it is held that the competent authority would be well within its powers to reconsider the matter.

However, it is equally true that scope of said reconsideration is very limited and can be done only on the basis of fresh material brought to its notice, which was not considered by the competent authority at an earlier point of time declining sanction for prosecution. The concerned sanctioning authority will have to make out a very strong case to justify its order, based on reconsideration of the matter, for granting sanction for prosecution on the basis of sufficient and fresh material against the accused and that too, by recording the cogent reasons in support of its order. It goes without saying that in the absence of any fresh material, concerned sanctioning authority would also have no jurisdiction to re-consider the matter for the purpose of granting sanction for prosecution.

The abovesaid view taken by this Court also finds support from the judgments relied upon by the learned counsel for the petitioner. After reproducing the provisions of Section 19 of the

Prevention of Corruption Act, 1988, relevant observations made by the Hon'ble Supreme Court in para 8 to 12 of its judgment in Nishant Sareen's case (supra), which can be gainfully followed in the present case, read as under:- "The object underlying Section 19 is to ensure that a public servant does not suffer harassment on false, frivolous, concocted or unsubstantiated allegations. The exercise of power under Section 19 is not an empty formality since the Government or for that matter the sanctioning authority is supposed to apply its mind to the entire material and evidence placed before it and on examination thereof reach conclusion fairly, objectively and consistent with public interest as to whether or not in the facts and circumstances sanction be accorded to prosecute the public servant. In Mansukhlal Vithaldas Chauhan v.

State of Gujarat, 1997 (4) RCR (criminal) 236 this Court observed, Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty'. Section 19 or for that matter Section 197 of Code of Criminal Procedure, 1973 (for short, `the Code') does not make any express provision regarding review or reconsideration of the matter by the sanctioning authority once such power has been exercised.

9. In Gopikant Choudhary v. State of Bihar and Ors. (2009) 9 SCC 53, initially the concerned Minister refused to accord sanction to prosecute the public servant therein and an order was passed to that effect. Subsequently, after retirement of the public servant, the matter was taken up by the Chief Minister and he granted sanction for prosecution of the concerned

public servant. The question that arose for consideration before this Court was the correctness of the order passed by the Chief Minister. This Court set aside the order of the Chief Minister granting sanction to prosecute the public servant, inter alia, on the ground that the Chief Minister did not have any occasion to reconsider the matter and pass fresh order sanctioning the prosecution.

10. In Romesh Lal Jain v. Naginder Singh Rana & Ors. (2006) 1 SCC 294 , it was held by this Court that an order granting or refusing sanction must be preceded by application of mind on the part of the appropriate authority. If the complainant or accused can demonstrate such an order granting or refusing sanction to be suffering from non- application of mind, the same may be called in question before the competent court of law.

11. Recently, in the case of State of Punjab and Anr. v. Mohammed Iqbal Bhatti, 2009 (3) RCR (criminal) 861 this Court had an occasion to consider the question whether the State has any power of review in the matter of grant of sanction in terms of Section 197 of the Code. This Court observed as under:

"7. Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the concerned

authority is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidences must be considered by it. The sanctioning authority must apply its mind on such material facts and evidences collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidences may be placed before the court in that behalf.

While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order. It is also well settled that the Superior Courts cannot direct the sanctioning authority either to grant sanction or not to do so. The source of power of an authority passing an order of sanction must also be considered."

This Court then noticed the opinion of the High Court which was recorded as follows :

"Once the Government passes the order under Section 19 of the Act or under Section 197 of the Code of Criminal Procedure, declining the sanction to prosecute the concerned official, reviewing such an order on the basis of the same material, which already stood considered, would not be appropriate or permissible."

While affirming the above opinion of the High Court, this Court held in paragraphs 22 and 23 of the Report as under

"22. It was, therefore, not a case where fresh materials were placed before the sanctioning authority. No case, therefore, was made out that the sanctioning authority had failed to take into consideration a relevant fact or took into consideration an irrelevant fact. If the clarification sought for by the Hon'ble Minister had been supplied, as has been contended before us, the same should have formed a ground for reconsideration of the order. It is stated before us that the Government sent nine letters for obtaining the clarifications which were not replied to."

"23.The High Court in its judgment has clearly held, upon perusing the entire records, that no fresh material was produced. There is also nothing to show as to why reconsideration became necessary. On what premise such a procedure was adopted is not known. Application of mind is also absent to show the necessity for reconsideration or review of the earlier order on the basis of the materials placed before the sanctioning authority or otherwise."

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 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."

Coming to the judgments relied upon by the learned counsel for the respondent-State, there is no dispute about the law laid down therein. However, on a careful perusal of the cited judgments, the same have not been found to be of any help to the respondent, being distinguishable on facts. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.

In view of what has been discussed hereinabove, it is held that while considering the application for discharge of the accused, on the basis of non grant of sanction by the competent authority, learned trial court would have no jurisdiction to issue direction to the prosecution, to re-submit the case file before the competent authority for reconsideration of the matter for the purpose of grant of sanction. Similarly, the concerned sanctioning authority would have no jurisdiction to reconsider the matter for grant of sanction in the absence of any fresh material.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that since the impugned order has been found to be an order without jurisdiction, the same cannot be sustained. Accordingly, impugned order dated 13.3.2004 (Annexure P-4) passed by the learned Special Judge, Panipat, is hereby ordered to be set aside. Consequences would follow. Resultantly, with the abovesaid observations made, instant petition stands allowed, however, with no order as to costs. (RAMESHWAR SINGH MALIK) JUDGE 14.10.2015 AK Sharma