IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 160 of 2003. Judgement reserved on: 26.5.2008. Date of decision: 27.5.2008. State of H.P. …..….. Petitioner. Vs. Raghubir Singh …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. A.K. Bansal, Addl. Advocate General. For the Respondent : Ms. Vidushi Sharma, Advocate vice Mr. Sandeep Vashisth, Advocate. Kuldip Singh, Judge. This revision has been direction against the order dated 17.6.2003, passed by learned Special Judge, Sirmaur District at Nahan in Cr. Misc. Petition No. 48-Cr.M./4 of 2003, dismissing the application under Section 319 (1) of the Code of Criminal Procedure for impleading Sunil Kumar as co-accused in a case arising out of FIR No. 3/99, dated 3.6.1999, under Section 13(2) of the Prevention of Corruption Act, 1988 (for short, the Act) and under Section 374 IPC. 2. The prosecution case in brief is that Joginder Singh owner of truck No. HP-11-3539 made a complaint on 25.2.1999 that Whether the reporters of the local papers may be allowed to see the Judgment? …2… his driver Chamel Singh came to Paonta Sahib with cement loaded in the truck. At Nahan, respondent Raghubir Singh, who was posted as Incharge, Traffic Police had asked Chamel Singh to take sand in his truck to Shimla and when driver refused to oblige him, respondent Raghubir Singh kept the papers of the truck. The respondent- accused threatened the driver to involve him in a case, if he did not oblige him. On return, accused again asked the driver to take the sand in his truck to Shimla. The truck was sent to a Khud from where the sand was loaded. The accused gave a chit to the driver and directed him to unload the sand at Shimla. Sunil Kumar was interrogated by the Investigating Officer and at that time he confessed material allegations. It has been alleged that as per defence of accused, the sand was taken by PW 11 Chamel Singh on the instructions of Sunil Kumar. In this background, application under Section 319 Cr.P.C. was filed to implead Sunil Kumar as an accused in the case. 3. Heard and perused the record. PW 11 Chamel Singh has named Sunil Kumar and has stated that said official asked him to take the sand in his truck to Shimla for which the official had paid the price of the diesel and also promised to pay Rs.1,000/- more to the driver, which he had not paid later on. PW 1 Joginder Singh complainant has not stated the involvement of Sunil Kumar either in the complaint Ex. PW 1/A or in his statement. This factual matrix has been noticed by the learned Special Judge in the impugned order, which has not been denied by either side. …3… 4. The prosecution has come forward with the allegations that during investigation Sunil Kumar had admitted his involvement but why he was not impleaded as an accused earlier that has not been explained. The allegations of PW 11 are that Sunil Kumar had compelled him to take sand to Shimla without making proper payment, though he has stated that price of the diesel was paid. There is no allegation of PW 11 that by corrupt, illegal means and using his position as public servant Sunil Kumar took undue favour from the truck driver. PW 11 has not alleged that Sunil Kumar as public servant has misused his position when he asked him to carry sand to Shimla in his truck. 5. The allegations made by PW 11 Chamel Singh are not sufficient to summon Sunil Kumar as an accused in the case. At the most, the allegations made by PW 11 indicate that it was a private matter between Sunil Kumar and PW 11, which has nothing to do with the public employment of Sunil Kumar. It is admitted case of the prosecution that Sunil Kumar is a public servant. In absence of prosecution sanction under the Act to prosecute Sunil Kumar under the Act, he cannot be impleaded as an accused, under Section 319 of the Code of Criminal Procedure. The Hon’ble Apex Court in Dilawar Singh vs. Parvinder Singh @ Iqbal Singh & anr. AIR 2006 SC 389 has held that a Special Judge while trying an offence under the Prevention of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power under Section 319 Cr.P.C. if no sanction has been granted by the appropriate authority for prosecution of such a person as the …4… existence of a sanction is sine qua non for taking cognizance of the offence qua that person. It is not the prosecution case that for prosecuting Sunil Kumar under the Act prosecution sanction has already been taken. The learned Special Judge has rightly appreciated the material on record. No case for interference has been made out. 6. No other point was urged. 7. As a result of the above discussion, the revision fails and the same is accordingly dismissed. May 27, 2008. ( Kuldip Singh ) (Hem) Judge.