Allowed

Madholal v. State of Rajasthan through Pp

Rajasthan HC5 Oct 2023CRLR/1197/2016

Case brief

AI extract

What is this about?

High Court allowed two criminal revision petitions, quashing the order framing charges against retired public servants without prior prosecution sanction under the Prevention of Corruption Act. The court remanded the matter for fresh consideration based on record materials and settled legal principles regarding sanction requirements and charge framing.

What did the court decide?

Order dated 27.05.2016 set aside; matter remanded to Trial Court for fresh consideration of charges with opportunity of hearing.

Madholal Vs State of Rajasthan through Pp — Corruption | Rajasthan HC (2023)

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[2023:RJ-JP:35191]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Revision Petition No. 1197/2016

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Madholal s/o. Shri Ramgopal, r/o. Nohta, District Tonk, the then Secretary, Gram Panchayat Natwada, District - Tonk, presently retired.

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----Petitioner

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Versus

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State Of Rajasthan Through P.P.

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----Respondent

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Connected With

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S.B. Criminal Revision Petition No. 1198/2016

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Puranmal Verma s/o. Shri Rekhchand Verma, r/o. Ward No.11, Town Newai, District Tonk, the then Girdawar, Circle Siras, Tehsil Newai, District - Tonk, presently retired.

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----Petitioner

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Versus

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State Of Rajasthan Through P.P.

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----Respondent

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For Petitioner(s) : Mr. Kapil Gupta with Mr. Dharmendra Kumar. For Respondent(s) : Mr. Riyasat Ali, P.P.

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order

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05/10/2023

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These two revision petitions were filed aggrieved from order dated 27.05.2016 in Sessions case No. 102/2015 (130/2013) arising out of FIR No. 301/2003 passed by Special Judge (PC Act Cases), Ajmer, whereby charge under Section 420, 467, 468, 477A and 120-B of IPC and Section 13(1)(d) read with Section 13(2) of PC Act was framed against the petitioners- Madholal and Puranmal Verma.

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Learned counsel appearing for the petitioner-Puranmal Verma submitted that the petitioner got retired and prosecution sanction was refused by the Competent Authority, but despite this, charge under Section 13 of the Prevention of Corruption Act was

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framed contrary to Section 19 of PC Act. He referred the order dated 24.03.2007 and 24.09.2007 and submitted that once prosecution sanction was refused with reasoned order even than after retirement charge-sheet cannot be filed.

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Learned counsel for the petitioner-Madholal also submitted that Zila Parishad, Tonk after considering the material forwarded by the ACB, also refused the sanction and did not granted prosecution sanction against the petitioner-Madholal. He specifically referred the report and order dated 09.07.2009 annexed herewith and submitted that despite refusal, learned Trial Court has proceeded to frame charge under Section 13 of PC Act in contravention of Section 19 of PC Act.

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He specifically referred the material on record particularly the evidence and also the conclusion drawn by the Investigating Officer submitted that from material on record even ingredient of offence under Sections 420, 467, 468 and 477A of IPC were not made out, but the learned Trial Court in mechanical manner not only joined all the charges and further frame a common charge in all the offences. He specifically submitted that the role of each of the accused was neither specified nor considered by the Trial Court at the time of framing of charge and just in cursory manner the charges were framed against the petitioners. He also referred the charge-sheet and submitted that as per charge-sheet, the ACB without any basis has recommended offence under Sections 13(1) (d) and 13(2) of PC Act against Madholal though prosecution sanction was refused in the matter. He also submitted that ACB did not recommended any charge under the PC Act against the petitioner-Puranmal Verma, but still he was charged.

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He specifically relied upon judgment of Hon'ble Supreme in case of State of Himachal Pradesh v. Nishant Sareen : 2010 (8) Supreme 496 and submitted that provision of Section 19 of PC Act and Section 197 of Cr.P.C. were inducted as a weapon to ensure discouragement of frivolous and vexatious prosecution and also to safeguard for the innocent. He also submitted that unless there is a sanction to prosecute a public servant, he cannot be prosecuted for any charge under the PC Act. He also relied upon judgment of a coordinate Bench of this Court in the case of Munish Kumar Sharma v. The State of Rajasthan & Ors.: SBCW No. 7156/2007 (Order dated 10.03.2010) and submitted that there has to be valid sanction for prosecution under the PC Act, but if same is lacking then no prosecution can be conducted under the PC Act, therefore, the petitioners are entitled to be discharged and they must not be forced to face a vexatious and frivolous litigation.

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Aforesaid contentions were opposed by learned Public Prosecutor.

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Heard learned counsel for the petitioners and learned Public Prosecutor. Perused the record. Also perused the judgment of Hon'ble Supreme Court and a coordinate Bench of this Court.

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Aggrieved from order of charge, the instant petitions were preferred by the petitioners-accused and in both the cases, prosecution sanction as mandated under Section 19 of the Prevention of Corruption Act were refused by the Competent Authority. During investigation, one of the fact was brought on record that the petitioner-Puranmal Verma and Madholal both were retired, but ACB has recommended charge-sheet under

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Sections 13(1)(d) and 13(2) of PC Act in addition to Sections 420, 467, 478, 477A and 120-B IPC against Madholal, but only under Sections 420, 467, 468, 477A and 120-B IPC against Puranmal Verma. The Trial Court has framed charges under Sections 13(1) (d) and 13(2) of PC Act and under Sections 420, 467, 468, 477A and 120-B of IPC against both the petitioners.

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Section 19 of PC Act mandates previous sanction before prosecution and Section 19(1) of PC Act provides that no Court shall take cognizance for an offence punishable under Section 7, 10, 11, 13 and 15 alleged to be committed by a public servant except with the previous sanction as provided therein. Herein this case, no previous sanction is available on record rather sanction in respect of both the petitioners were refused by the Competent Authority from whom the ACB sought the sanction against the petitioner. It appears that learned Trial Court without considering the provision of Section 19 of PC Act and settled proposition of law on the point, proceeded to frame charges. It is settled proposition of law that as and when issue of sanction is raised, same is required to be considered at earliest and if any issue is raised then same has to be decided, but in this case the Trial Court not only ignored its duty, but also framed the charges in mechanical manner, which can be seen from language and the content of the charge. It's non-application of mind by learned Presiding Officer. 10. Similarly charges under IPC such as Sections 420, 467, 468, 477A and 120-B of IPC were framed as a combined single charge, which is against provisions under Chapter-XIII of Cr.P.C. The scheme of charge mandates that for each offence a distinct charge is required to be framed, but in this case, it appears that the Trial

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Court has failed miserably in its duty of framing charge against the petitioners.

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Having considered the order and the framing of charge, I am of considered view that the Trial Court has not only ignored the principle of law at the stage of charge, but it has also overlooked the material available on record, which was forwarded by the prosecution. The Trial Court is duty bound to look into the material forwarded by the prosecution and if a particular offence is made out, only then it can frame charge under particular offence, but if same is not found then it cannot frame a charge.

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In case of State of Rajasthan v. Ashok Kumar Kashyap : (2021) 11 SCC 191 , Hon'ble Supreme Court laid down that at the stage of charge mini-trial is impermissible, but learned Trial Court is duty bound to consider the material on record placed before it. Herein this case, the Trial Court in casual manner framed the charges, therefore, I am considered view that the order of charge qua present petitioners, are liable to be set aside and the matter is required to be remanded for fresh consideration on the basis of material on record and settled legal proposition of law. 13. Consequently, the instant revision petitions, are hereby allowed and the order dated 27.05.2016, is hereby set aside and the matter is remanded back to the Trial Court for passing appropriate order on the basis of material available on record on the question of charge after providing opportunity of hearing to the parties concerned.

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(ASHOK KUMAR JAIN),J

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PKS/291-292

Madholal v. State of Rajasthan through Pp

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Madholal v. State of Rajasthan through Pp

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