Allowed

Pitamber Harwani v. State of Rajasthan and Anr.

Rajasthan HC19 Aug 2019CRLW/494/2016

Case brief

AI extract

What is this about?

Three writ petitions challenging prosecution sanction orders issued by the Inspector General, Registration & Stamps. The High Court held that the sanction was issued under compulsion of a court order without application of mind by the authority, citing the investigating agency's earlier negative reports. The sanction orders were quashed.

What did the court decide?

The prosecution sanction orders dated 02.07.2013 and 02.04.2014 were quashed. Stay applications were disposed of.

Pitamber Harwani Vs State of Rajasthan and Anr. — Writ and Judicial Review | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Writ Petition No. 494/2016

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Pitamber Harwani S/o Shri Mohan Lal Harwani, aged about 48 years, resident of 18/21, Tilok Nagar Colony, Ajmer, at present posted as Steno in the Office of Inspector General, Registration and Stamps, Rajasthan

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----Petitioner

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Versus

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State Of Rajasthan through Inspector General, Registration and Stamps, Rajasthan Ajmer (Raj.),

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Additional Superintendent of Police, Anti Corruption Bureau, Bhilwara.

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----Non-Petitioners

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Connected With

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S.B. Civil Writ Petition No. 11679/2014

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Vishnu Jaipal son of Shri Harji aged about 55 years, Resident of near Ganeshgarh Temple, Hari Nagar, Lohagal Road, Shastri Nagar, Ajmer, Raj. (Suspended Class IV Employee, Collectorate Stamps, Ajmer.

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----Petitioner

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Versus

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The Inspector General, Registration & Stamp

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Department, Rajasthan, Ajmer

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The Additional Superintendent of Police,

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Anti Corruption Bureau, Ajmer.

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Deputy Inspector General, Registration Cum

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Collector (Stamp), Ajmer

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----Respondents

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S.B. Criminal Writ Petition No. 94/2015

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Jeevan Ram Choudhary Son of Shri Hazari Ram, Aged about 50 years, Resident of Bawadiyo Ki Dhani Village Rawatkhera, Tehsil Riyabadi, District Nagore (Rajasthan)

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----Petitioner

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Versus

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State Of Rajasthan through Public Prosecutor.

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Director, Department of Treasure and Account

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(2 of 7)

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[CRLW-494/2016]

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Rajasthan, Jaipur, Room No.310, A Block Finance Building, Jaipur

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----Respondents

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For Petitioner(s) : Mr.H.V.Nandwana Mr.P.K.Singh & Mr.PRS Rajawat For Respondent(s) : Rajesh Maharshi, AAG with Mr.Manish Sharma

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HON'BLE MR. JUSTICE PANKAJ BHANDARI

ORDER

Date of order

19/08/2019

Petitioners have preferred these petitions aggrieved by the prosecution sanction order dated 02.07.2013 (SB Criminal Writ Petition No.494/2016 & SB Civil Writ Petition No.11679/2014) and prosecution sanction order dated 02.04.2014 (SB Criminal Writ Petition No.94/2015).

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It is contended by the counsel for the petitioners that a raid was conducted by the Anti Corruption Bureau team in Room No.106 of Office of I.G.Registration and Stamps, Rajasthan as there was information that amount was being collected by the employees for renewal of licences of stamp vendors, Rs.850/was recovered from Pitamber Harwani, Rs.1,150/- was recovered from Vishnu Lal Jaipal and Rs. 6,715/- was recovered from Jeevan Ram Choudhary, who all are petitioners in the present petitions. FIR was registered at Police Station CPS, ACB, Jaipur for offence under Sections 13 (1) (d) (e) (ii) of Prevention of Corruption Act, 1988. After completing the investigation the Investigating Agency i.e. ACB sought opinion from Deputy Director Prosecution-II, DOPII, who was of the opinion that ACB would not be able to prove the

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(3 of 7)

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[CRLW-494/2016]

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guilt and only a departmental inquiry should be initiated by the Department.

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It is contended that a departmental inquiry was initiated and the Inquiry Officer has concluded that mis-conduct is not made out, however final order has not been passed.

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It is contended that investigating agency i.e. ACB submitted final report before the designated Court that cogent and enough evidence is not available to establish the guilt of the accused. Final report was not accepted by the Court, it was observed by the Court that there is material to proceed against the petitioners, but as there is no prosecution sanction, Court cannot take cognizance. The matter was returned for consideration with regard to prosecution sanction.

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The Anti Corruption Bureau thereafter again submitted report that the charges are not found to be proved. It is contended that a letter was written by the ACB to the Inspector General, Registration & Stamps wherein in the last line of the factual report it was mentioned that in accordance with the Court wishes prosecution sanction be issued. It is contended that thereafter again Inquiry Officer submitted report that there is no material to hold the petitioners guilty for the charges on 13.01.2012. On 14.5.2013 a fresh letter was issued to the Inspector General, Registration and Stamps and in the last line it was mentioned that as per desire of the Court prosecution sanction be issued. A draft sanction for prosecution was supplied by the investigating agency i.e. ACB to the sanctioning authority. Prosecution sanction orders were issued by Inspector General, Registration & Stamps which are under challenge in these petitions.

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(4 of 7)

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[CRLW-494/2016]

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It is contended that Anti Corruption Bureau has twice come to the conclusion that the offence cannot be established, hence, has submitted negative final report, but it is only at the instance of the Court that the prosecution sanction has been issued. It is also contended that a draft prosecution sanction was sent to the sanctioning authority which was verbatim copied in the impugned sanction order. The sanctioning authority did not apply its mind. It is contended that the sanctioning authority mechanically and inobedience of mandamus issued by the Court has issued the prosecution sanction which cannot be considered to be valid.

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Counsel for the petitioners has placed reliance on Mansukhlal Vithaldas Chauhan vs. State of Gujarat (AIR 1997 (SC) 3400, Ganga Ram Vs. State of Rajasthan & Ors. (S.B.Civil Writ Petition No.9599/2009 decided by High Court on 13.12.2010, Manish Mathur Vs. State of Rajasthan & Anr. (2013 WLC (Raj.) UC 153, Shiv Dutt Charan Vs. State of Rajasthan (2015 SCC OnLine Raj.8128) and Subhash Bhatia Vs. State of Rajasthan (2011) 2 RLW (Raj.) 1015).

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Counsel appearing for the Anti-Corruption Bureau has opposed the petitions. It is contended that whether sanctioning authority applied its mind while issuing prosecution sanction is a matter of evidence and the same can be decided by the Court only after statement is recorded by the Court. 9. Counsel for the respondents has placed reliance on Rajendra Prasad Sharma vs. State of Rajasthan & Ors. (S.B.Criminal Writ Petition No.313/2015) decided by order dated 05.01.2016 and State of Tamil Nadu vs. Damodaran. 10. Counsel for the respondents has contended that a draft sanction order can be approved by the sanctioning authority after

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(5 of 7)

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[CRLW-494/2016]

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considering the material on record and prosecution sanction can be issued. Reliance has also been placed on Suresh Kumar

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Duggal vs. State (NCT of Delhi) C.B.I. (Criminal Appeal No.100/2003) decided by Delhi High Court on 10.07.2013.

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I have considered the contentions and have gone through the record of the case.

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As far as investigation of the case is concerned, reports submitted twice by the investigating agency i.e. ACB before the Court was that the offence against the petitioners cannot be established. It was only at the instance of the Court that prosecution sanction was issued by the sanctioning authority. A draft prosecution sanction was sent by the ACB to IG, Registration & Stamps with a clear message that prosecution sanction be issued as per the desire of the Court.

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Apex Court in Mansukhlal Vithaldas Chauhan (supra) held that validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint

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(6 of 7)

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[CRLW-494/2016]

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to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.

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In the present case in hand investigating agency was of the view that offence cannot be established against the petitioners, but it was only due to compulsion of the Court that they forwarded the draft sanction to the sanctioning authority with a clear note to the effect that Court desires that prosecution sanction order be issued. Thus, the discretion of the sanctioning authority "not to sanction" was taken away and sanctioning authority was compelled to act mechanically to sanction the prosecution.

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Rajasthan High Court in Manish Mathus Vs. State of Rajasthan & Anr. (supra), Ganga Ram Vs. State of Rajasthan (supra) and Subhash Bhatia & Ors. Vs. State of Rajasthan (supra) quashed the sanction order as there was non application of mind by the concerned authority.

¶61

From perusal of record it is revealed that no material was placed before the sanctioning authority and only on the basis of draft sanction order and in view of mandamus issued by the Court the sanctioning authority issued the prosecution sanction. 17. Apex Court in State of Tamil Nadu Vs. Damodaran (supra) that when the relevant material is placed before the sanctioning authority and sanctioning authority grants sanction after fully applying its mind, order of grant of prosecution sanction cannot be said to be bad in law. The judgments cited by the counsel for ACB on facts do not apply on the present case, rather judgment Mansukhlal Vithaldas Chauhan (supra) fully applies to the facts of the present case.

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(7 of 7)

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[CRLW-494/2016]

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I am of the view that the investigating agency moves the sanctioning authority for issuance of prosecution sanction only after it comes to the conclusion that offence is made out. Since on two occasions investigating agency had submitted before the Court that offence cannot be established against the petitioners, they moved for grant of prosecution sanction only because it was the wish of the Court. The prosecution sanction was thus, given by the investigating agency without application of mind due to mandamus issued by the Court. No material was considered by the sanctioning authority and draft prosecution sanction was verbatim copied in the sanction order.

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The prosecution sanction dated 02.07.2013 (SB Criminal Writ Petition No.494/2016 & SB Civil Writ Petition No.11679/2014) and prosecution sanction order dated 02.04.2014 (SB Criminal Writ Petition No.94/2015) are thus bad in law and are quashed. All the petitions are accordingly allowed. Stay applications also stand disposed.

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Copy of this order be placed in the connected files.

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(PANKAJ BHANDARI),J

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teekam/reserved order

Pitamber Harwani v. State of Rajasthan and Anr.

Case brief

What is this about?

What did the court decide?

Pitamber Harwani v. State of Rajasthan and Anr.

Case brief

What is this about?

What did the court decide?

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