CRM No. M-6950 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No. M-6950 of 2009 (O&M) Date of decision: 04.10.2011 Bal Kishan ....Petitioner Versus State of Haryana and another ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Sunil Panwar, Advocate, for the petitioner. Ms. Sushma Chopra, Addl. A.G., Haryana. Mr. Vijay Pal, Advocate, for respondent No.2. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) Petitioner has filed present petition for quashment of order dated 12.12.2008 passed by Special Judge, Gurgaon, whereby he has refused to accept the cancellation report submitted by the investigating agency and directed to put up the matter again before the competent authority for obtaining sanction under Section 19 of the Prevention of Corruption Act (hereinafter called 'the Act') as well as for quashment of sanction order dated 6.2.2009 whereby necessary sanction to prosecute the petitioner was accorded. It is admitted case of the parties that petitioner-Bal Kishan was posted as P.A. to A.D.C., Gurgaon, at the relevant time. It is the case of prosecution that Imran son of Abdul filed an application before the Vigilance bureau, Gurgaon, that the petitioner/accused has demanded CRM No. M-6950 of 2009 (O&M) -2- Rs.15,000/- for issuance of licence. A raid was conducted and the petitioner is alleged to have been trapped by the raiding party. After completion of the investigation, Vigilance Bureau moved an application before the competent authority to obtain sanction to prosecute the petitioner. The competent authority after appraising the material available on the record declined to grant sanction to prosecute the petitioner. Thereafter when the papers were submitted before the Special Judge, Gurgaon, learned Special Judge vide order dated 12.12.2008 refused to accept the cancellation report and returned the matter with the direction to put up before the competent authority for obtaining necessary sanction and thereafter the competent authority vide order dated 6.2.2009 accorded the sanction for prosecution of the accused/petitioner. I have heard learned counsel for the parties and have gone through the record. Admittedly, the petitioner was working as public servant i.e. Personal Assistant to Additional Deputy Commissioner, Gurgaon, in the year 2006 and as per the prosecution story he demanded Rs.15,000/- for issuance of licence to complainant-Imran. The Viglance Bureau raided and trapped the petitioner. The Vigilance Bureau moved an application before the competent authority for obtaining sanction which was declined by the competent authority vide order dated 12.11.2007. The cancellation report was sent to the Court, learned Court refused to accept the cancellation report and directed the investigating agency to seek sanction from the competent authority. The matter was again placed before the the competent authority for grant of sanction, which was CRM No. M-6950 of 2009 (O&M) -3- accorded vide order dated 6.2.2009. Sanction was refused by the competent authority vide order dated 12.11.2007 on three grounds, which can be summarized as under:- “a) that enquiry in the matter was conducted by Shri Satya Parkash, Additional Deputy Commissioner, Gurgaon, and he opined that it was simply a personal transaction for which the accused deserved severe warning and this should be entered in his service book; b) that the ACRs of the accused for the years 1996- 97 to 2003-04 were very good and outstanding and on enquiry from the Senior Officers under whom the accused has worked, it was found that he was a man of integrity; and c) that the accused alone had no authority to issue the stamp vendor licence.” Learned trial Court vide order dated 12.12.2008, while returning the file to obtain fresh sanction, has observed as under: - “So far the fact that the accused alone had no authority to issue stamp vendor licence is concerned, it is not the case of the prosecution that the accused demanded the money to get the licence issued and this act of the accused falls within the definition of misconduct as provided under Section 13 of the Prevention of Corruption Act which says tat a public servant is said to commit the offence of misconduct if he by corrupt or illegal means obtain for himself any pecuniary advantage. He alone may not have the authority to issue the licence but he presented tat he could get the licence issued and since he was PA to Additional Deputy Commissioner, the complainant believed his version. For the reasons recorded above, the request to cancel the case is declined. File be returned with a direction that the matter be again put up before the competent authority to obtain sanction in the light of observations made hereinabove.” Competent authority vide order dated 6.2.2009 accorded the sanction to prosecute the petitioner. Order dated 6.2.2009 reads as under: - “In refer your letter under reference on the subject cited CRM No. M-6950 of 2009 (O&M) -4- above, prosecution sanction is hereby accorded of Balkishan S/o Kedar Singh, the then PA to ADC, Gurgaon. The original file of the above said case received from your office vide letter under reference returned herewith for further necessary action please.” Division Bench of this Court in the case of Surat Ram Sharma Vs. State of Punjab & Anr., 2011 Crl. L. J. 3060 in paragraph No.7 has observed as under: - “In the present case, although there is no fresh material furnished to the Government but sanction was accorded vide order dated 6.7.2007 (P-4) by taking into account the whole investigation file. The aforesaid file although was presented to the sanctioning authority earlier but it does not seem to be considered while passing earlier order on 20.9.2006 (P-3). The view of Hon’ble the Supreme Court in the case of Mohammed Iqbal Bhatti (supra) has been considered by the learned Single Judge concluding that the scope of review is not confined only to a case where fresh material has been produced. The power can also be exercised when irrelevant consideration has been taken into account in the earlier order and relevant considerations have been ignored. We approve the aforesaid view. This is what has happened in this case. The question of alibi claimed by the petitioner is also not relevant because it would amount to adjudication which is not the scope for grant of sanction for prosecution. The overriding principle of failure of justice has also been discussed in detail. Moreover, the question of granting sanction is procedural in nature and does not involve any principles of substantive law and, therefore, error of procedure would always be subjected to overriding principles of failure of justice. With these added reasons we uphold the view taken by the learned Single Judge and find that the appeal is wholly without merit.” From the judgment of this Court in the case of Surat Ram Sharma (supra), it can safely be said that sanction once refused can only be reviewed when either fresh material is produced before the sanctioning authority or if sanctioning authority while refusing the sanction at the first instance did not take into consideration the material CRM No. M-6950 of 2009 (O&M) -5- placed before the competent authority or sanction was refused on irrelevant consideration. In the case in hand, prosecution has failed to prove that fresh material was placed before the sanctioning authority in the second round or sanctioning authority has failed to take into consideration entire material while refusing to accord sanction at the first instance. Had it been a case of fresh material or not taking into consideration all the material placed before the authority while refusing sanction at the first instance perhaps sanctioning authority would have been within its jurisdiction reviewing the earlier order. Perusal of the reviewing order granting sanction dated 6.2.2009 would reveal that it is a non-speaking order, therefore, order impugned cannot be sustained in the eye of law. Present petition is allowed. Orders impugned dated 12.12.2008 and 6.2.2009 are hereby quashed. (Alok Singh) Judge October 04, 2011 R.S.