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Judgment
Servesh Kumar Gupta, J.—Petitioner has come up before this Court challenging his prosecution for the offence under the Prevention of Corruption Act and seeking the direction in the nature of mandamus commanding the respondents not to proceed in pursuance of the order dated 21.8.2014. Vide this impugned order issued by the Principal Secretary Dr. S.S. Sandhu, holding the charge in the office of the Vigilance Department of the Government, he has satisfied himself completely, legally and cautiously that the petitioner Mr. Jokhu Ram Gupta should be prosecuted for the aforesaid offence.
Learned Counsel of the petitioner has submitted that as per the case of prosecution, the petitioner Mr. Jokhu Ram Gupta was trapped by the Vigilance Department on 7.8.2013 and was caught red-handed at the time of accepting the bribe of Rs. 25,000/-. The competent officer of the Vigilance Department investigated the matter and chargesheet was prepared for submission in the Court concerned. Before submission of the said chargesheet in the Court, a letter was sent on 1.10.2013 by the Superintendent of Police, Vigilance Department, Dehradun to the Principal Secretary, Pay Jal Department, Dehradun seeking permission to prosecute the petitioner for the said offence. This permission was necessary as contemplated under Section 7/13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
Finding no response form the Government, another letter was sent on 6.11.2013 by the Superintendent of Police, Vigilance Department, Dehradun to the Principal Secretary, Pay Jal Department of the Government for making available the aforesaid sanction to the office of the Vigilance Department enabling it to prosecute Mr. Gupta. Still, no response was received from the Government. So, another letter was sent by the Additional Secretary Mr. R.C. Lohani on 15.1.2014 to Mr. S. Raju, Principal Secretary, Pay Jal Department, Uttarakhand Government requesting him to make available the permission of the Government to prosecute Mr. Gupta. Still the letter remained unanswered. Now, further letter was sent by Dr. S.S. Sandhu, Principal Secretary (Vigilance Department) himself to his counterpart Mr. S. Raju of the Pay Jal Department requesting him to make available such permission of the Government to enable the department to proceed with the prosecution of Mr. Gupta.
This time, the letter was responded by the Principal Secretary Mr. S. Raju vide the Demi Official Letter No. 285/......dated 24.3.2014 (Annexure 6), whereby it was informed that the Government, after appropriate contemplation, has decided not to grant permission to prosecute Mr. Gupta and it was further stated in that letter that no such prosecution is to be proceeded with against Mr. Gupta.
It was contended by the learned Counsel for the petitioner that when this letter was received by the Vigilance Department, then the Principal Secretary of that Department himself could not grant the permission to prosecute Mr. Gupta. So, now the question arises whether Dr. S.S. Sandhu, Principal Secretary was the competent authority to grant such sanction against the petitioner.
Assuming for a moment that he was the competent officer for granting such permission, then what for the repeated letters dated 1.10.2013, 6.11.2013, 15.1.2014 and 18.3.2014 were sent to the Government right from the level of Superintendent of Police, Vigilance Department, Dehradun to that of the Principal Secretary of the selfsame department seeking such permission. Sending of such repeated letters not only by the Superintendent of Police, Vigilance Department, Dehradun, but also by the Additional Secretary and then by the Principal Secretary of the Vigilance Department of the Government himself, prima facie, shows that the Additional Secretary or the Principal Secretary (Dr. S.S. Sandhu) were not competent to grant such permission.
The Grievance of the petitioner is that he is now in the process of being prosecuted at the strength of such permission accorded by the Principal Secretary Dr. S.S. Sandhu. So, he has knocked the door of this Court.
In a case, wherein after denial of permission by one competent authority the same was accorded at some later point of time by another competent authority, then the Hon. Apex Court in that case, State of Himachal Pradesh Vs. Nishant Sareen, has held out as under:
"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 authorized 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 the 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." 9. In view of what has been stated above, this petition is admitted for hearing.
The prayer for ad interim relief is hereby accepted. The ongoing prosecution against the petitioner Mr. Jokhu Ram Gupta in the Special Trial No. 3/2014 under Section 7/13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 pending in the Court of Special Judge/Ist Additional Sessions Judge, Nainital shall remain stayed until further orders of this Court.
Call the response of the respondents.
List this matter on its turn.
Stay application (CLMA 1598/2015) and urgency application (IA 887/2015) stand disposed of.