Crl. Misc. No.M-12061 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-12061 of 2010 Date of Decision: 21.12.2010 Amrik Singh ....Petitioner Versus The State of Punjab etc. ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. A.K. Walia, Advocate for the petitioner. Mr. Munish Kumar, A.A.G., Punjab for the respondent-State. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 Cr.P.C for quashing the impugned order dated 26.03.2010 passed by Judge, Special Court, Patiala directing the Investigating Agency to place the cancellation report before the State Authority for considering the question of prosecution sanction and for quashing of FIR No.26 dated 16.08.2006 under Sections 7, 8, 13(2), 88 of the Prevention of Corruption Act and under Sections 167, 477-A, 409 and 120-B IPC registered at Police Station Tripuri, Patiala and all consequential proceedings arising therefrom. It is contended that the petitioner was falsely implicated in the abovementioned case due to departmental rivalry. After registration of the case, the investigation of the case was taken up by the Deputy Crl. Misc. No.M-12061 of 2010 2 Superintendent of Police, Vigilance Bureau, Patiala as offences under the Prevention of Corruption Act, 1988 has been added. After investigation, the Vigilance Bureau submitted a cancellation report which was presented in the Court of Judge, Special Court, Patiala. However, the then Special Judge, Patiala referred back the cancellation report for reinvestigation. The matter was further investigated by the Vigilance Bureau, which again submitted the cancellation report as no new material could be collected during further investigation. The said cancellation report was again considered by the Judge, Special Court, Patiala, who vide its order dated 24.10.2008 (P-2) observed that the Court could not order reinvestigation for the third time in view of the law laid down by this Court in the case of Harinderpal Singh vs. State of Punjab reported as 2004(4) Criminal Court Cases 43 and observed that the case should be put up before the Competent Authority for considering the grant of prosecution sanction as the Court could not take cognizance of the offence without prosecution sanction. The Judge, Special Court directed the Vigilance Bureau to place the relevant record of the case before the Competent Authority for grant of sanction. The Director General of Police (Jails) Punjab refused to grant sanction in view of the cancellation report. Therefore, the Judge, Special Court once again directed the Vigilance Bureau to put up the matter before the “State Authority” to enable it to apply its mind independently as to whether the sanction for the prosecution of the petitioner was to be granted or not? Reply by way of affidavit has been filed by the respondent- State. It is not disputed that the Chief Director, Vigilance Bureau, Punjab, Chandigarh, vide his office letter No.19797-VB-S6 dated 01.06.2009, FS-2, Punjab directed that the cancellation report be submitted in the Court. It is also not disputed that the cancellation report was submitted twice and the re-investigation cannot be ordered for the third time. It is also not disputed Crl. Misc. No.M-12061 of 2010 3 that the sanction was refused by the appropriate authority. In para 6 of the petition, it is stated that the petitioner, who is Assistant Superintendent, Jail, is a Class-III employee and is governed by the Punjab Prisons State Service Class-III Executive Rules 1963 under which the Appointing/Punishing Authority of Assistant Superintendent Jail is the Director General of Police (Jails), Punjab. Thus, the Director General of Police (Jails), Punjab is the appropriate authority to grant or decline the said sanction. Keeping in mind that the cancellation report was submitted, the Director General of Police (Jails), Punjab considered the matter for the grant of prosecution sanction in the light of the Investigation report and declined to grant prosecution sanction. The said averment has not been disputed in the reply. The Judge, Special Court, Patiala, vide order dated 26.03.2010, returned the report to the Vigilance Bureau with a direction that the same be analysed by the “State Authority”. This Court, in the case of Jaswinder Kaur vs. State of Punjab reported as 2001(2) RCR(Criminal) 58 held that the appropriate authority cannot review its own order subsequently and grant sanction. Paras 11 and 16 of the said judgment read thus :- “11. I am of the considered opinion that the case of the petitioner is covered by the aforesaid ration. In the absence of some fresh material or some technical infirmity, or some clerical error, the competent authority had no power to review the earlier order on merits. 12, 13, 14, 15. xxx xxx xxx 16. These observations are squarely applicable to the facts and circumstances of the present case. The Officer could not have reviewed its earlier orders. As soon as the earlier orders refusing the sanction was signed on 14.2.2000, the competent authority became functus officio. Merely, because the Vigilance Bureau had asked for the reasons for the refusal of the sanction Crl. Misc. No.M-12061 of 2010 4 was not a ground to review the earlier order.” This view is further endorsed by the Division Bench of this Court rendered in the case titled as Mohammed Iqbal Bhatti vs. State of Punjab reported as 2006(2) RCR(Criminal) 430, wherein, the sanction was declined by the Vigilance Bureau in its first order. Subsequently, the second impugned order was passed in supersession of the previous order and sanction was granted. The Division Bench set aside the said order granting sanction after relying on various judicial pronouncements as is evident from paras 10 and 11 of the said judgment :- “10. Learned counsel has placed reliance upon a Division Bench judgment of Himachal Pradesh High Court rendered in re Omkar Sharma etc v. State of H.P. and others, 2003(2) RCR(Criminal) 512, wherein it has been held that sanction for prosecution of a public servant refused by the competent authority, such authority cannot review and revise the order on the same material and grant sanction for prosecution. The power to review is not an inherent power, it must be conferred by law either specifically or by necessary implications. Reliance has been placed upon the judgment rendered by the Hon’ble Supreme Court of India in re Ramanand Chaudhary v. State of Bihar, (2002)1 SCC 153: 1994 (2) RCR(Crl) 491(SC). The relevant para 36 is reproduced here as under :- “33. What follows from the aforesaid discussion is that appropriate authority who on consideration of all the material had refused to accord sanction to prosecute a public servant, has no power on re-consideration to review such an order and thereby according sanction to prosecute on the same material. It will be a totally different situation if any additional/fresh/new material is brought before the competent authority; that admittedly is not the situation in all the three cases nor is the case of any one of the respondents set out in their replies. Similarly, the long gap after completion of investigation Crl. Misc. No.M-12061 of 2010 5 and the grant of sanction is an additional ground to grant relief to the petitioners in all these three cases.” 11. Further reliance has been placed upon a Division Bench judgment of Hon’ble Allahabad High Court rendered in re Vijai Bahadur v. State of U.P. and others, 1989 Crl. L.J. NOC (all) 61, wherein it has been categorically held that once having refused after carefully considering the material on record, the same authority is precluded from recalling it or passing a fresh order on the same material because of erroneous impression. It has also been held that Section 6 of the Prevention of Corruption Act, 1947, extends protection to a public servant against unwarranted harassment. Therefore, it should be construed in a manner which subserves the objective of its enactment.” In the case, in hand, the reinvestigation was ordered twice. The Vigilance Authority presented the cancellation report for the second time. It is not disputed that the prosecution sanction was declined by the appropriate authority in the present case. The proper authority cannot review its own order. In view of the legal position explained, there is no provision for review of the order passed by the Competent Authority declining prosecution sanction. Moreover, no provision has been pointed out by the learned counsel for the respondent-State nor any such provision has been referred to by the Court of Special Judge, vide which, the matter was required to be referred to the State Authority or the higher authority. This Court in the case of Jaswinder Kaur (supra), in para 15 held as under :- “15. Section 6 of the Prevention of Corruption Act, 1947 extends protection to a public servant against unwarranted harassment. It should, therefore, be construed in a manner which subserves the objective of its enactment.” As already held above, the cancellation report was submitted Crl. Misc. No.M-12061 of 2010 6 twice. Re-investigation cannot be ordered for the third time. The competent authority declined the prosecution sanction in view of the Investigation report. As such, the question of sending it back for consideration by the State Authority, for which there is no provision, is nothing but harassment of public servant and not in keeping with the spirit of the judgment rendered in the case of Jaswinder Kaur (supra). In view of the above, the present petition is allowed. FIR No.26 dated 16.08.2006 under Sections 7, 8, 13(2), 88 of the Prevention of Corruption Act and under Sections 167, 477-A, 409 and 120-B IPC registered at Police Station Tripuri, Patiala and consequential proceedings pending in the Court of Special Judge, Patiala are hereby quashed. (NIRMALJIT KAUR) 21.12.2010 JUDGE gurpreet