1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIINAL APPLICATION NO.486/2010 Vinod Rajendra Singewar, Age : 49 years, Occu. Service, R/o Bapuji Niwas, Gurudwara Gate No.1, Nanded. ..Applicant. Versus The State of Maharashtra, through the Deputy Superintendent of Police, Anti- Corruption Bureau, Nanded. ...Respondent. Shri Ajay Deshpande, Advocate for appellants. Shri T.S. Lodhe, A.P.P. for respondent/State CORAM : A.V. NIRGUDE, J Date : 19th October, 2010. ORAL JUDGMENT:- 1 Heard. 2 This application seeks quashing of the proceeding arising out of charge sheet filed by the A.C.B. and which is now a special case No. 6/2009 pending before learned Special judge, Nanded, in exercise of inherent powers of this Court under Section 482 of the Code of Criminal Procedure. 3 The facts of this case are as under. The applicant is working as maintenance surveyor in land record department at Parbhani since 2004. In August 2006, the Anti Corruption Bureau led a trap on the allegations that the 2 applicant had demanded illegal gratification of Rs.1,200/- from the complainant and ultimately accepted the same through the other accused one Mohd. Ibrahim who was working as his peon. After investigation was completed, the A.C.B. forwarded proposal to the Dy. Director, Land Record, Aurangabad seeking sanction to prosecute the applicant with above mentioned Mohd. Ibrahim. The Dy. Director of Land Records being the authority competent to remove the applicant from his office, considered the case which was put before him by the A.C.B.. The learned Dy. Director of Land Record refused to accord sanction to prosecute and transmitted his reasons to the Government for doing so. In the mean time, even before the Dy. Director passed the order dated 05/02/2007, the Superintendent of Police, A.C.B. Sent a reminder to the Dy Director on 09/01/2007 to decide the question of sanction within prescribed time. The order dated 05/02/2007 was communicated to the A.C.B.. However, on three occasions in 2008 the Superintendent of Police, A.C.B. Persuaded the case for grant of sanction with the Government. In view of this persuasion, the Government asked the Director of Land Record who was superior officer to the Dy. Director, Land Record to consider the case personally and to send his views to the Government. Accordingly, on 05/02/2009 this officer sent his views to the Government and opined that the sanction should have been granted for prosecuting the applicant. Thereafter, on 17/06/2009 the Government expressed this view through a letter written by Desk Officer of the revenue department 3 addressed to the Director of Land Records that the Government was in favour of according sanction for prosecuting the applicant. 4 It must be noted that after the trap was laid in August, 2006, the applicant was not aware as to what was happening between the A.C.B. And the Dy. Director who was supposed to pass an order granting sanction for prosecution. On 18/08/2009 the A.C.B. Filed charge sheet and thereafter the applicant using provisions of Right to Information Act, got the above mentioned information regarding the orders and letters of the officials. 5 The application was admitted and rule was issued by this Court on 02/09/2010. 6. The question is whether the A.C.B. could lawfully seek a fresh order granting sanction from the concerned authorities and whether the concerned authority is able to issue a second order under Section19 of the Act? 7 Similar question arose before a single judge of the Punjab High Court in the case of. Dr Jasvinder Kaur Versus State of Punjab and another [I (2002) CCR 187 (P & H) = Page 1271. In that case, the petitioner / accused was seeking quashing of the F.I.R. registered against her under similar situation. This case was also a trap. After the investigation, the 4 Vigilance bureau sent the papers to the competent authority for according sanction as required under Section 19 of the Act. But the competent authority declined to give sanction. The petitioner / accused thereafter learnt that without there being any change in the circumstances, the case was reconsidered and reviewed and a fresh order granting sanction for prosecuting her, was passed. It was submitted on behalf of the petitioner / accused that once the competent authority had passed order declining grant of sanction, no further order could have been passed granting the same. On the other hand, the prosecution submitted that granting of sanction is purely an administrative act and so there could be no prohibition for reviewing the administrative order passed earlier. It was submitted by the petitioner / applicant that the power to review an order passed under Section 19 has not been conferred upon the competent authority by the statute and so the order passed subsequently granting sanction was wholly without jurisdiction. The learned judge placed reliance on an earlier judgment of Punjab High Court in the case of Kashmir singh Versus State of Punjab and others. Following observations from that judgment were quoted and I am also inclined to quote the same. “There is nothing to show that he considered the earlier rejection order or that any fresh material was placed before him or that he found sufficient reasons for rejecting the earlier order declining the permission and for reviewing it. In these 5 circumstances, I am of the view that the Special Secretary who accorded sanction under Annexure P-8, has not applied his mind at all to the matter in question before he accorded the sanction. Had he applied his mind, then we would find mention in his order about the earlier rejection and the reasons for his coming to a different conclusion. Therefore, I am of the view that the sanction (annexure P-8) to prosecute the petitioner is not valid.” “Secondly, in the circumstances of the case, where there is nothing to show that any fresh material was placed before the Special Secretary who accorded sanction under annexure P-8, he was neither justified nor entitled to review the earlier order declining the sanction and then accord sanction. Section 19 of the Prevention of Corruption Act, 1988, prohibits a Court from taking cognizance of offences punishable under Sections 7, 10, 11, 13 and 15 except with the previous sanction of the concerned Government. Therefore, when there is no valid sanction, the Court can not take cognizance of the offence. Therefore, the F.I.R. and the other consequential proceedings including the sanction order have to be quashed. Even if the charge sheet has been filed, the position will be the same since the court cannot take cognizance of the offence without a valid previous sanction and the absence of a valid sanction goes to the root of the matter affecting the very jurisdiction of the Court to take cognizance of the offence. In the 6 absence of a valid sanction, the Court is not only prevented from taking cognizance of the offence, but it cannot, also convict the accused and, therefore, no useful purpose will be served by allowing the F.I.R. concerned and the consequential proceedings to continue. Hence, this petition has to be allowed.” 8. The learned judge then held that the above mentioned ratio of the judgment in the case of Kashmir Singh would apply to the case and held that the order granting sanction subsequently was not sustainable in the eye of law. The learned judge also placed reliance on the judgment of the Supreme Court in the case of Hari Singh Mann Vs. Harbhajan Singh Bajvva and others reported in A.I.R. 2001 Supreme Court 43. In this judgment, the Supreme Court was considering the ambit of the power of review to be exercised by High Court and the Supreme Court observed as follows :- “9. There is no provision in the Code of Criminal Procedure authorizing the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power can not be exercised with the aid or under the cloak o Section 482 of the Code…. 10. Section 362 of the code mandates that no Court, when it has signed its judgment or final order deposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged 7 principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provisions becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error………” 9 On perusal of the above, it becomes clear that the power of review can be used only for correcting a clerical or arithmetical error. It cannot be used to correct erroneous view that may have taken on the facts of a particular case. Even inherent power under Section 482 Cr.P.C. cannot be used for review the earlier orders. 10 Placing reliance on the above observations of the Supreme Court, the learned single judge in the case of Dr. Jasvinder kaur further observed as under. “The power of review has to be specifically provided for in the enactment under which the power is exercised. Under the Prevention of Corruption Act, there are no residuary or inherent powers which are vested with the competent authority to review the orders time and again. Once the competent authority takes a conscious decision on the basis of the relevant material, and for relevant considerations, the same would not be open to review. Otherwise, the protection granted to the public servant under Section 19 would be rendered nugatory. This section has given the power to the competent authority to decide as to 8 whether there is prima facie material to sanction the prosecution of the public servant. Once the investigating agency has submitted the entire material, it has no further role to play. It is for the competent authority to decide as to whether the sanction is to be given for the prosecution of the public servant. In the present case, while exercising this power, the competent authority had declined to give sanction on 14/02/2000. This order cannot be reviewed merely because the Vigilance Bureau had asked for reasons in support of the order. This fortuitous circumstances has been misused to provide an excuse for reviewing the order refusing sanction. I am of the considered opinion that the impugned order dated 29/07/2000, purporting to give sanction is colourable exercise of administrative power. It is an abuse of the process of law. This order does snot even advert to the earlier order declining to give sanction. Yet the same officer reviews his earlier order, without any change in any of the circumstances. The decision is patently arbitrary.” 11 These observations indeed has laid down the law on the subject & squarely apply to the situation in hand. Despite giving opportunities to the State, no affidavit in reply has been filed. It seems, they do not want to justify subsequent order of sanction passed by the competent authority. 12 It must also be noted while deciding this case that if the A.C.B. had sent new or additional material against the applicant for seeking fresh sanction and if upon considering such material, order granting sanction for prosecution is passed, such order would not be unlawful, because review of its earlier order on the basis of the same material is prohibited. 13 In this case, the record shows that the A.C.B. did not submit any additional or new material against the applicant for 9 seeking fresh sanction. The facts of this case are quite similar to the facts of the case of Jasvinder Kaur (supra). The application should therefore succeed. ORDER The application is allowed. The proceeding of Special Case No. 06/2009 pending before the learned Special Judge, Nanded stands quashed. [A.V. NIRGUDE, J.] ts k/ok