Quashed

Babu Lal Vishnoi v. Raj. Co-Op Dairy Fed. Ltd. and Ors.

Rajasthan HC19 Oct 2022CW/2072/2018

Case brief

AI extract

What is this about?

This writ petition challenges the legality of a prosecution sanction granted to a petitioner suspended under the Prevention of Corruption Act. The Court held that the sanction order was a verbatim copy of the Anti Corruption Bureau's draft without independent application of mind by the competent authority, violating Section 19 of the Act and quashing the sanction order with liberty to reconsider.

What did the court decide?

The prosecution sanction vide letter dated 27.11.2017 issued by Managing Director, Uttari Rajasthan Sahakari Dugdh Utpadak Sangh Limited, Bikaner is declared illegal and quashed, subject to liberty fo

Babu Lal Vishnoi Vs Raj. Co-Op Dairy Fed. Ltd. and Ors. — Corruption | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 2072/2018

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Babu Lal Vishnoi S/o Shri Mana Ramji, B/c Vishnoi, R/o Village Post Bala, Tehsil Bilara, District Jodhpur, At Present Residing At 8/634-A, Mukta Prasad Nagar, Bikaner.

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----Petitioner

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Versus

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Rajasthan Cooperative Dairy Federation Limited, Through Its Managing Director, Saras Sankul, Jln Marg, Jaipur.

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Uttari Rajasthan Sahakari Dugdha Utpadak Sangh Limited, Through Its Managing Director, Nh-15, Sri Ganganagar Road, Bikaner.

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Sikar And Jhunjhunu Zila Dughda Utpadak Sahakari Sangh Limited, Palasana, Sikar, Through Its Managing Director.

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----Respondents

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For Petitioner(s)	: Mr. Sukhesh Bhati
For Respondent(s)	: Mr. Bheem Kant Vyas

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HON'BLE MR. JUSTICE KULDEEP MATHUR

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Order

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19/10/2022

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Brief facts of the case are that an FIR No.258/2016 was lodged against the petitioner on 23.09.2016 under Section 7, 13(1) (d), 13 (2) of the PC Act, 1988 by the Anti Corruption Bureau while he was working as Dairy Supervisor in Uttari Rajasthan Sahakari Dugdh Utpadak Sangh Limited, Bikaner (hereinafter referred to as ‘Utpadak Sangh Ltd., Bikaner’). As a consequence thereof, the petitioner was suspended by the Managing Director of the Utpadak Sangh Ltd., Bikaner vide order dated 03.10.2016. The Managing Director, Utpadak Sangh Ltd., Bikaner vide order dated 14.09.2017 received a draft sanction

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letter from Superintendent of Police, ACB, Jaipur requesting him to convey prosecution sanction against petitioner as required under Section 19 of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘PC Act, 1988’). The Managing Director upon receiving the request for according prosecution sanction against the petitioner, vide letter dated 12.10.2017, requested the Managing Director, Sikar/Jhunjhunu Zila Dugh Uttpadan Sahakari Sangh Limited Palsana (Sikar) to submit a factual report of the incident leading to filing of FIR No.258/2016. However, before a factual report could be submitted, the Managing Director, Utpadak Sangh Ltd., Bikaner vide communication dated 27.11.2017 conveyed the Anti Corruption Bureau Jaipur grant of prosecution sanction against petitioner in terms of the draft sent by the Bureau.

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Being aggrieved by the grant of prosecution sanction, vide letter/communication dated 27.11.2017, present writ petition has been preferred.

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Learned counsel for the petitioner submitted that as per Section 19 of PC Act, 1988 a prosecution sanction is to be mandatorily granted by application of mind by the competent authority, but in the instant matter, the Managing Director, Utpadak Sangh Ltd., Bikaner had acted solely on the basis of draft sanction letter sent by the Superintendent of Police, ACB, Jaipur on 14.09.2017. It was submitted that a bare perusal of the draft for prosecution sanction dated 14.09.2017 and letter granting prosecution sanction dated 27.11.2017 would reveal that sanction in the present case has been granted without adhering to the provisions of Section 19 of the PC Act, 1988. Learned counsel submitted that the failure on the part of Managing Director,

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(3 of 8)

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Utpadak Sangh Ltd., Bikaner to record reasons after independent application of mind to the facts of the case, vitiates the grant of prosecution sanction against the petitioner. For strengthening the aforesaid contentions, counsel placed reliance on the following judgments:-

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State of Karnataka Vs. Ameerjan reported in (2007) 11

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SCC 273 .

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Ganga Ram Vs. State of Rajasthan & Ors. (S.B. CWP No.1138/2018)

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Munish Kumar Sharma Vs. State of Rajasthan & Ors. (S.B. CWP No.7156/2007).

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Abdul Aziz Gauri Vs. State of Rajasthan & Ors. (D.B. SAW No.1231/2014).

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5. Manish Mathur Vs. State of Rajasthan & Anr. (S.B. CWP No.12684/2012).

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Counsel for the respondents opposed the submissions advanced by the petitioner counsel however, was not in a position to dispute the fact that the sanction order is verbatim reproduction of draft sanction proposed ACB/Investigating Officer.

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Section 19 of the Prevention of Corruption Act, 1988 reads as under:-

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“19. Previous sanction necessary for prosecution (1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013(1 ot 2014)-

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(4 of 8)

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(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;

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(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;

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(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)-

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(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;

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(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;

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(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.

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(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

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(5 of 8)

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could and should have been raised at any earlier stage in the proceedings. Explanation.-For the purposes of this section,-

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

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(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.”

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From the perusal of aforesaid it is clear that Section 19 ensures that a public servant does not suffer harassment on account of false and frivolous complaints made against him. Section 19 makes it incumbent upon the competent authority to record reasons by applying independent mind while granting sanction to prosecute a public servant.

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From the perusal of draft sent by ACB, Jaipur for prosecution sanction dated 14.09.2017 and letter dated 27.11.2017 granting prosecution sanction, it is apparent that both are ad verbatim. The letter dated 27.11.2017 does not disclose as to how the competent authority independently applied its mind on the record, on the basis of which prosecution sanction against the petitioner was granted.

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This Court in the case of Subhash Bhatia & Ors. Vs. State & Ors. (S.B. CWP No.590/2010) held as under:-

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"The authority competent to remove a public servant from service is clothed with the power to grant sanction for prosecution to such public servant by the Legislature with a definite intention as that authority being having administrative and disciplinary control on the person concerned is in a position to assess and weigh the accusation on basis of intimate knowledge of the work and conduct and also having day to day knowledge of overall administrative interest of the department.

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[CW-2072/2018]

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The sanction for prosecution represent a deliberate decision and that requires objective satisfaction of the competent authority about a prima facie case against the person facing accusation. The authority competent while granting sanction is also required to record reasons for launching prosecution and is further required to specify its need in public interest. This important duty can be discharged only on independent application of mind to all the relevant facts on basis of which prosecution is proposed.

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If any extraneous pressure is mounted on the authority competent then there shall be all chances of frivolous and malicious prosecution. To maintain the spirit of the provisions for the grant of sanction to prosecute a public servant, the authority competent is required to act independently, objectively and with an intention for not saving a culprit from prosecution but at the same time with a view to afford a reasonable protection to a public servant from unnecessary harassment and undue hardship through vexatious prosecution.

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Keeping in mind, the above mentioned intention of the Legislature, Hon'ble Supreme Court in State of Karnataka Vs. Ameerjan (supra) authoritatively held that the order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. For the same reason, this Court too in the case of Kishan Lal (supra) held that the statutory power given to the authority competent is required to be exercised by the authority concerned and not by any body else.”

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As already noticed herein above, in the present case the sanction granted and the draft to grant sanction are ad verbatim. In other words, the Managing Director Utpadak Sangh Limited, Bikaner without any application of mind accepted the request of ACB to grant prosecution sanction against the petitioner which is contrary to the requirement and object of Section 19 of the PC Act, 1988. Considering the identical circumstances, this Court in

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the case of Manish Mathur Vs. State of Rajasthan & Anr. (S.B. CWP No.12684/2012) held as under:-

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“As already stated, in the instant matter too the sanction granted and the draft to grant sanction are ad verbatim same. The Director, Mines and Geology appears to have adopted the draft ipse dixit. Section 19 of the Act of 1988 postulates absolute authority to grant sanction for prosecution to the competent authority, as such, the competent authority is required to apply its own mind by considering all relevant facts. The competent authority may avail assistance of other persons, but in no case, any other authority can initiate the process of consideration for grant of sanction and instruct the competent authority for granting sanction. In the case in hand, the consideration for grant of sanction, as a matter of fact, was initiated by the Anti Corruption Bureau by sending a draft for granting sanction for prosecution. The Anti Corruption Bureau could have communicated all relevant facts on the basis of which prosecution sanction could have been granted, but in no case, the Bureau could have instructed for grant of prosecution sanction under a proposed and drafted document. The prosecution sanction granted in the instant matter by the Director, Mines and Geology, Udaipur under the letter dated 18.10.2012 on face depicts non-application of mind and abdication of the powers by the Anti Corruption Bureau. The same, therefore, is illegal.”

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In view of discussion made herein above, the present writ petition deserve acceptance. The sanction granted for prosecution of petitioner vide letter dated 27.11.2017 issued by Managing Director, Uttari Rajasthan Sahakari Dugdh Utpadak Sangh Limited, Bikaner, is declared illegal and the same is, therefore, quashed. The competent authority, however, is given liberty to reconsider the entire matter in accordance with law for grant of sanction to

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(8 of 8)

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prosecute the petitioner under the provisions of the Prevention of Corruption Act, 1988.

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(KULDEEP MATHUR),J

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39-KshamaD/-

Babu Lal Vishnoi v. Raj. Co-Op Dairy Fed. Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

Babu Lal Vishnoi v. Raj. Co-Op Dairy Fed. Ltd. and Ors.

Case brief

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