CRIMINAL MISC. M NO.35838 OF 2011 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: DECEMBER 14, 2011 Jasbir Singh Sabharwal .....Petitioner VERSUS State of Haryana and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. M. A. Niazi, Advocate, for the petitioner. **** RANJIT SINGH, J. The petitioner has filed this petition for quashing the order dated 19.8.2011 passed by the Financial Commissioner and Principal Secretary, Government of Haryana, Public Health, Engineering Department, vide which he has accorded sanction to prosecute the petitioner for the offences under the Prevention of Corruption Act, 1947 (for short, “the Act”). The petitioner has challenged the sanction order on the ground that it is passed without application of mind and hence, be quashed and so also the proceedings held against him. A charge has been framed against the petitioner by the Additional Sessions Judge on various counts. CRIMINAL MISC. M NO.35838 OF 2011 :{ 2 }: The petitioner, who is working as an Executive Engineer in Public Health Department, claims that he has been falsely implicated in a frivolous FIR on 24.2.2011 under the Act by State Vigilance Bureau, Hisar. A complaint was made against him by Ashok Grewal, who was allotted a work, which he had completed but the petitioner was not releasing his payment even after six months of the completion of work. He accordingly filed a complaint before Inspector Phool Singh, complaining that he had met the petitioner several times but the petitioner was avoiding him and finally had demanded a sum of Rs.10,000/- as bribe for releasing this payment. The complainant claimed that he was not interested in paying this bribe and accordingly approached the Inspector for taking legal action. The trap was then laid and the petitioner was caught while accepting the bribe of Rs.10,000/- from complainant, Ashok Grewal. After investigation, a challan has been presented and charge framed against the petitioner after due grant of sanction for his prosecution. While the petitioner was in custody, his wife made various representations to Financial Commissioner, pleading that false and frivolous FIR had been registered against her husband but despite that sanction for the prosecution of the petitioner has been granted. This is not a case of absence of sanction. Here the competent authority has granted sanction for prosecution of the petitioner. Whether this Court would have any power to scrutinize the order granting sanction, thus, would be a question. In other words, whether the Court would have power to carry out judicial scrutiny of the order, granting sanction while exercising inherent jurisdiction under Section 482 Cr.P.C? The grant or refusal of sanction is an CRIMINAL MISC. M NO.35838 OF 2011 :{ 3 }: administrative function and is entirely a matter for the subjective satisfaction of the sanctioning authority. All that the sanctioning authority is required to do is to apply his mind to the facts of the case and decide if on such facts, there should be a prosecution. Such an order is not an order involving civil consequences and delinquent is not entitled to be heard. The first ground of attack to the order of sanction is based on the instructions contained in Haryana Vigilance Manual. The counsel for the petitioner submits that as per Chief Secretary, Haryana, Policy letter dated 13.4.1972, which is followed by letter dated 24.1.1990, prior permission of the Administrative Secretary is required before laying a trap on any Gazetted Officer. As per the counsel, this is a mandatory requirement as per Haryana Vigilance Manual but no such prior permission was taken. The counsel, thus, contends that the entire raid is rendered void abinitio. In support, the counsel has made reference to some earlier instances where sanction was denied in case of one Dr.Gulshan Arora on the similar grounds that prior permission of the Administrative Secretary was not obtained while laying trap. This aspect was required to be considered by the authority granting sanction. The petitioner must have pleaded so and if not it ought to have been pleaded before the competent authority. The sanction in this case has already been granted. Copies of the letters relied upon have been placed on record. In this communication issued by Secretary, Home, it is stated that directions to conduct raid on gazetted employees will be given by the Secretary, Government of Haryana. Plea is that no such permission was sought and hence, the entire process to lay a trap is CRIMINAL MISC. M NO.35838 OF 2011 :{ 4 }: void abinitio. First thing which is to be seen is if the power of Vigilance Department in laying a trap to catch an employee while accepting gratification is to be regulated by these instructions. The petitioner apparently is confused and is not able to appreciate a difference between raid on an employee or the right of the investigating agency to entertain a complaint against a public servant, be a gazetted employee, to lay a trap to catch him while accepting a bribe. Raiding an employee by Vigilance can not be mixed or confused with indefeasible right of the investigating agency to entertain complaint, register an FIR and then to act on the complaint to lay a trap. There may be a requirement of taking permission if a raid on a gazetted officer is to be conducted but these instructions relied upon can not be pressed to curtail the right of police or the investigating agency to investigate a genuine case where a demand is for a bribe and intention is to catch such a corrupt employee. Moreover, the wording of the instructions is making a clear distinction so far as the raid on gazetted employee and ICS, IAS, HCS Officer are concerned. In case of ICS, IAS and HCS Officer, word `approval' is used, which is not so as far as the gazetted employees are concerned. This apart, the attention of the counsel was invited to the provisions of Section 19(3) of the Act, which clearly provides that no finding, sentence or order passed by Special Judge shall be reversed or altered by a Court in appeal, confirmation or a revision on the ground of 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. The CRIMINAL MISC. M NO.35838 OF 2011 :{ 5 }: counsel was asked to make submission about the effect of Section 19(3) of the Act. The counsel, however, was unable to make any submission of substance in this regard. It is clearly mentioned in the Section that no `order passed by Special Judge', apart from finding and sentence, shall be reversed or altered on the ground of absence of or any error or omission or irregularity in the sanction required under sub-section (1). At best, the petitioner is alleging irregularity in the grant of sanction on the ground that the trap was laid without taking prior permission of the Administrative Secretary. This is so stated for the sake of discussion and it is not viewed by the Court to be an irregularity. How this will have effect on the sanction or on the allegation as made against the petitioner or the charge framed against him can really not be made out. As already observed, these instructions may not be applicable in the trap cases. Even if it is assumed that the trap was to be laid following the instructions in the Manual, it can at best be termed as an irregularity. This would not be a valid or legal ground to interfere in this case as per the clear position laid down in Section 19(3) of the Act. Otherwise also, I am of the considered view that the effect of such administrative instructions on the power of the police to investigate and to proceed against any public servant would remain inviolate and these administrative instructions can not have any binding effect to nullify the prosecution of a charge as serious as the illegal gratification is. The counsel for the petitioner then changed track to submit that the sanction has been granted in a mechanical manner without application of any mind. This is so urged on the ground that CRIMINAL MISC. M NO.35838 OF 2011 :{ 6 }: the specimen of the sanction order was attached by the Vigilance Bureau, which itself established that entire exercise of application of mind while according sanction for prosecution was a farcical. There is no law and none has been pointed out before me to the effect that the sanctioning authority is to draft the sanction himself. Thus, the order not drafted by the authority itself, can not be termed as illegal. The question may be that if there is a need of sanction in a case where allegation is of bribe? Certainly bribe is not accepted by an employee while performing public duty that sanction would be needed prosecuting him for this illegal act. Accepting bribe is not such an act which can be attributed to any discharge of official duties or function, for which there can really be a need of any sanction. Where an act complained of is such as committed while acting or purported to act in discharge of official duties but there is no reasonable connection between the act complained of and the official duties, then the prosecution may not be held bad on the ground that it suffers from want of sanction. In State of Orissa Vs. Mrutunjaya Panda, AIR 1998 Supreme Court 715, the Hon'ble Supreme Court had set-aside the order passed by the High Court, which has quashed the conviction of an accused under Section 161 IPC and Section 5(2) of the Act, on the ground that there was no valid sanction to prosecute him. There would be a need to reconcile the provisions of Section 19(1) of the Act and that of sub-section (3) of Section 19 thereof. Section 19(1) lays down that no Court shall take cognizance of any offence punishable under Sections 7,10,11,13 and 15 except with previous sanction of the competent authority. Section 19(3), at CRIMINAL MISC. M NO.35838 OF 2011 :{ 7 }: the same time adds a ridder that no finding, sentence or order passed by a special Judge 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. Further, 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. Even 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. Thus, no order of finding, sentence or order passed by Special Judge is to be reversed or altered etc. unless a failure of justice has in fact been occasioned. The issue of grant of sanction of a public servant has been inviting attention of various courts at different times, including that of the Apex Court. It is generally observed that requirement of sanction would only be in those cases where the act alleged is performed in discharge of official duties and not otherwise. Much before, it was observed by the Hon'ble Supreme Court that offences under Sections 161, 165 and 165A of the Penal Code and Section 5 of the Act, being cognizable offences, sanction under Section 196-A of Criminal Procedure Code is not necessary. It was also held that no sanction under Section 197 of Cr.P.C. was necessary for prosecution of an offence under Section 161 IPC, the reason being that the public servant in taking a bribe can not be said to be acting or purporting to CRIMINAL MISC. M NO.35838 OF 2011 :{ 8 }: act in discharge of his official duty. The sanction as contemplated under Section 6(1) of the Act and 197 Cr.P.C is meant for helping a public servant and preventing harassment and malicious prosecution against him. There is, however, no indication in either of these provisions that the right conferred is on the accused persons but it is a right, which is conferred on the appropriate authority. The discretion to sanction prosecution is vested solely in the sanctioning authority and is absolute. It is open to question whether such exercise can be questioned in a Court of law. No doubt, the Hon'ble Supreme Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, AIR 1997 Supreme Court 3400 has observed that the order passed by the sanctioning authority was mechanically passed but this observation was made on the ground that the order was found to have been passed in obedience of a mandamus issued by the High Court and so it was considered not valid. The principle of immunity protects all acts, which the public servant has to perform in exercise of functions of the Government. Where, however, a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit, then such acts should not be protected under the doctrine of state immunity. In other words, where the act performed under the colour of office is for the benefit of the officer or for his own pleasure, then the requirement of sanction normally could not come in. The action of the petitioner in accepting the bribe, which is the allegation made against him can not be ever linked to discharge of his official functions. However, there may not be a much need to go into this CRIMINAL MISC. M NO.35838 OF 2011 :{ 9 }: aspect any further as it is not a case where sanction is not forthcoming. The Financial Commissioner has already granted a sanction for prosecution of the petitioner and the submission that said sanction was granted on account of non-application of mind is only an argument of frustration advanced on behalf of the petitioner. Merely because the order of sanction was forwarded while sending the case, would not mean that the Financial Commissioner had not applied his mind while granting sanction. I do not see any justification to interfere in this case to quash the order granting sanction. The petition is accordingly dismissed. December 14 , 2011 ( RANJIT SINGH ) khurmi JUDGE