Lachchuram and Others vs State of Rajasthan

M.N. Bhandari, J.—Since all the criminal misc. petitions are arising out of common FIR No. 66/2005 registered at Police Station - Anti Corruption Bureau, Jaipur (Chowki - Anti Corruption Bureau, Jhunjhunu) under sections 13(1) (c)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short ''the Act of 1988'') and sections 409 , 467 , 468 , 471 and 120B IPC, they were heard together and decided by this common order.

In the case of Lachchuram, prayer is made to set aside the order dated 17.6.2008, whereby, sanction for prosecution was granted against him so as the impugned FIR. In the cases of Vijay Singh Khatkad and Mool Chand Regar, prayer is made to quash the order dated 10.7.2008, whereby, sanction for prosecution was granted against them.

Learned counsel for petitioners submit that the sanction for prosecution against the petitioners has been granted without application of mind. The Anti Corruption Bureau has sent proforma for the order of sanction for prosecution while sending factual report. The order granting sanction for prosecution is verbatim the same thus, shows non-application of mind.

It is also submitted that before passing order for sanction for prosecution, the ACB called for the comments from the District Excise Office, Jhunjhunu. The comments were made favourable to the petitioners holding that no illegality was committed by the Central Excise Depot in releasing 185 bottles of liquor from the Store and, in fact, no financial loss was caused therein.

The arguments were also made on facts to show that petitioners had no role in giving 185 bottles of liquor to the representative of the contractor, namely Mahipal thus they were wrongly implicated in the case. The prayer is accordingly made to quash the order granting sanction for prosecution so as the impugned FIR.

Learned Additional Advocate General has opposed the petitions. It is submitted that a trap was organised on an information regarding release of bottles of liquor without permit. In the trap, it was found that 185 bottles of country made liquor were given to representative of the contractor without permit and gate pass.

In the preliminary enquiry, involvement of the petitioners was found thus FIR was registered. After investigation, when evidence came against the petitioners, sanction for prosecution was sought and has been granted. It was with the application of mind. The facts available on record show as to how the petitioners are involved in this case.

Section 19 of the Act of 1988 otherwise provides safeguard where any error, omission or irregularity in sanction for prosecution has occasioned but not resulted in failure of justice. In the instant case, no failure of justice exist because in the preliminary enquiry and subsequent investigation, role of the petitioners had come. The order of sanction for prosecution was passed accordingly thus it did not result in failure of justice to the petitioners.

The petitioners are those who are working in the office of the GSM and in their presence and with their active role, 185 bottles of country made liquor were given to the representative of the contractor without making entry in the record and even in absence of permit therefor. If the trap would not have been organised, the government could have been put to revenue loss of permit fee so as the GSM because 185 bottles of liquor would have remained un-accounted forever. Thus, neither on facts nor on legal grounds, a case is made out in favour of the petitioners.

I have considered rival submissions of the parties and perused the record.

It is stated that the sanction for prosecution has been granted in a mechanical manner and without application of mind. To support the argument, even facts of the case have been narrated.

At this stage, it would not be safe to record finding of fact, thus I am touching few facts for appreciation of the arguments. The material available on record shows that 185 bottles were released from the depot without gate pass and permit. It was the duty of the employees posted at the depot not to allow release of 185 bottles without gate pass and the permit. The petitioners were deputed on the depot and 185 bottles were released without permit and gate pass.

An argument has been raised that prior to release of the bottles, permit fee was deposited with the Excise Department. The argument aforesaid is nothing but to cover up the default of the petitioners. If the ACB would not have conducted trap, 185 bottles would have remained unaccounted forever. It is because of its release without permit and gate pass thus nothing came in record. In fact, when trap was organised at 11.55, it was found that without permit and gate pass, 185 bottles have been released and the person from whom the bottles were recovered, was carrying 50 slips for giving 3 bottles as gift to each to the employees of the GSM. To cover up their default, permit was shown to have been issued on computer lately at 4.55 PM on the same evening. It is without issuing four counterfoils required for issuance of the permit. If there was no possibility of revenue loss, then there was no need to issue permit suddenly by the officers of the Excise Department. Any further comment may cause prejudice to the petitioners. I do not find that a case is made out to drop the proceedings on the ground urged by learned counsel for petitioners. It is more so when petitioners would be having opportunity to raise all those issues at the time of framing of charges.

The issue as to whether sanction for prosecution has been granted without application of mind.

From the perusal of the documents on record, it comes out that the ACB had sent factual report along with the copy of draft. The order of sanction for prosecution is verbatim the same to the draft sent by the ACB and, on the aforesaid ground, it is submitted that there is a lack of application of mind.

Learned counsel for petitioners have referred judgment of the Hon''ble Supreme Court in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, . In the aforesaid case, it was held that independent application of mind to the facts of the case as also material and evidence collected during the course of investigation is required by the authority competent to sanction for prosecution. On the facts of that case supra, it was found that the order for grant of sanction for prosecution was without application of mind. It was, however, held that validity of the order of sanction would depend on the material placed before the sanctioning authority. All the relevant facts and material evidence has been considered by the sanctioning authority or not. In the said case, the High Court had issued direction to grant of sanction for prosecution which closed the opportunity for the competent authority to apply its mind, rather, he was compelled to sanction for prosecution.

The facts in the present case are altogether different because factual report sent to the department discloses as to how the petitioners are involved in the case and if the said factual report is considered, I do not find that case is made out to hold non-application of mind for grant of sanction. It cannot be presumed that as when a draft sent by the ACB is adopted, it would conclude in holding that there is non-application of mind by the competent authority.

Reference of section 19 of the Act of 1988 would also be relevant thus reproduced hereasunder-

"Section 19 - Previous sanction necessary for prosecution

_____________________________________________

(1) No court shall take cognizance of an offence punishable under sections 7 , 10 , 11 , 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation.--

For the purposes of this section,--

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."

Perusal of section 19(3) of the Act of 1988 reveals that proceedings cannot be dropped even if there exist error, omission or irregularity in the sanction for prosecution unless it is established that on account of such error, omission or irregularity there exit failure of justice. If grant of sanction by using the draft of the ACB is taken to be an error or irregularity, it cannot result in failure of justice unless it is shown that the order is without application of mind and if it would have been applied, resulted in denial of sanction.

The evidence collected during the course of investigation reveals as to how a case is made out and who are involved therein. The draft for sanction for prosecution deals with and narrate all those facts. It is not such a case where sanction for prosecution could have been denied on facts available on record. In the background aforesaid, even if there exist error, omission or irregularity on the part of the authority competent to grant sanction for prosecution, it is saved by section 19(3) of the Act of 1988.

It is true that as and when draft is adopted as it is, it can be pleaded to be a case of non-application for mind by the competent authority but it cannot be generalised in all the cases. In view of above, all the judgments cited by learned counsel for petitioners need not to be discussed at length. There are cases when adoption of the draft was held to be illegal because of non-application of mind but therein, counsel could not support there argument that it would not result failure of justice on the facts of the case.

In view of the aforesaid, I do not find that a case is made out to quash the impugned FIR or the order for sanction for prosecution. The criminal misc. petitions are dismissed accordingly.