1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 836 of 2009 Date of Decision: 2.9.2009 *** Jatinder Kumar Sharma .. Petitioner Vs. State (Central Bureau of Investigation) & Anr. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. S.P. S. Sidhu, Advocate for the petitioner. *** ARVIND KUMAR, J. The petitioner-complainant is aggrieved with the order dated 13.12.2008 passed by the learned Special Judge, CBI, Punjab, Patiala by virtue of which the closure report submitted by respondent No.1 in RC No.20 dated 31.8.2000, under Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act (for short, the Act), Police Station CBI/ACB Chandigarh, has been accepted for want of sanction for prosecution of respondent No.2, as required under Section 19 of the Act. Admittedly, respondent No.1 is a Government employee. Initially, the investigation in the matter was carried out by the CBI and the investigating agency came up with a closure report, but their said request was declined and matter was directed to be further investigated vide order dated 30.3.2002. The matter was accordingly investigated further and final report with similar request was again filed on 20.10.2007. The petitioner- complainant contested the closure report and ultimately the Special Judge declined the request of the investigating agency and directed to place the relevant record before the competent authority to enable it to apply its mind independently and then to arrive at conclusion as to whether sanction of the prosecution of accused was to be granted or not? Ultimately, the competent authority decided that the prosecution of respondent No.2 is not warranted and refused to accord sanction. Accordingly, in absence of requisite 2 sanction, the learned Special Judge, as noticed above, accepted the closure report submitted by the investigating agency. Hence this revision. I have heard learned counsel for the petitioner and have also gone through the paper-book file carefully. Section 19 is a part of Chapter 5 of the Act which deals with "Sanction For Prosecution and Other Miscellaneous Provisions" and sub- section (1) thereof bars taking of cognizance by the Court of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction. It is true that the accused may be saddled with the liability to be prosecuted in a Court of law, but what is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction. The true construction of provisions is that sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not. It is apt to first have a glance over the observations made by the Hon'ble Apex Court in the case of R.S. Nayak v. A.R. Antulay [(1984) 2 SCC 183] in Para 23: "...The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been 3 so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office." In Mansukhlal Vithaldas Chauhan v. State of Gujarat [(1997) 7 SCC 622], the Hon'ble Supreme Court further held that: "14. From a perusal of Section 6, it would appear that the Central or the State Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of each case and to decide whether that "public servant" is to be prosecuted or not. Since the section clearly prohibits the courts from taking cognizance of the offences specified therein, it envisages that the Central or the State Government or the "other authority" has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction." Adverting to the facts of the present case, as noted above, the competent authority has refused to accord sanction for the prosecution of the respondent on the basis of material placed before it. The existence of a valid sanction is a pre-requisite to the taking of cognizance of the enumerated offences alleged to have been committed by the public servant. 4 A trial without a sanction renders the proceedings ab initio invoid and thus, it cannot be said, in the light of legal position enumerated above, that the order passed by the learned Special Judge accepting the closure report, in absence of sanction required under the Act, suffers from any illegality or perversity. The revision petition being without any merit is dismissed in limine. (ARVIND KUMAR) JUDGE September 2,2009 Jiten