Criminal Revision No. 2532 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 2532 of 2009 (O&M) Date of Decision: December 14, 2009 Om Parkash Dahiya ...... Petitioner Versus State of Haryana ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Sanjiv Bansal , Advocate for the petitioner. Mr.Ajay Singh Ghangas, Addl.AG, Haryana. **** 1. Whether Reporters of local papers 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? Ajay Tewari, J. This is a petition under Section 401 Cr.P.C. for setting aside the order dated 18.09.2009 whereby the learned Special Judge has decided to frame charges against the accused holding that the Chairman, Haryana State Pollution Control Board is the competent person for removal of the accused-petitioner. Learned counsel for the petitioner has relied upon State of Karnataka through CBI v. .Nagarajswamy reported as (2005)8 SCC 370, State of Goa v. Babu Thomas reported as (2005)8 SCC 130 and State through CBI v. Ravinder Singh reported as 1995 Crl.L.J. 3428. His argument is that the documents placed by him on record clearly show that Criminal Revision No. 2532 of 2009 (O&M) 2 the appointing authority of the petitioner is the Government. He has further relied upon these judgments to forward his assertion that once an authority subordinate to that who is competent to remove the petitioner has granted the sanction the learned Special Judge could not even take cognizance. Learned Addl.AG has, however, relied upon State of M.P. v. Virendra Kumar Tripathi reported as 2009(3) RCR(Criminal) 599 wherein the Hon'ble Supreme Court has held as follows:- “.............. Further the High Court has failed to consider the effect of Section 19(3) of the Act. The said provision makes it clear that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court of appeal on the ground of absence of/or any error, omission or irregularity in sanction required under sub- section (1) of Section 19 unless in the opinion of the Court a failure of justice has in fact been occasioned thereby. In the instant case there was not even a whisper or pleading about any failure of justice. The stage when this failure is to be established yet to be reached since the case is at the stage of framing of charge whether or not failure has in fact been occasioned was to be determined once the trial commenced and evidence was lead................” In my opinion this judgment clearly covers the facts of the present case. However, even in the context of the exposition of law extracted above learned counsel for the petitioner has argued that the learned Special Judge has not only decided to frame charge against the petitioner, he has also finally held that the Chairman is competent to remove the petitioner. He relies upon this judgment to say that such final opinion could not have Criminal Revision No. 2532 of 2009 (O&M) 3 been given by the learned Special Judge. I find force in this argument. The Hon'ble Supreme Court in the above mentioned case has clearly established that the question of competence is a question of evidence. In this context a perusal of the authority State through CBI v. Ravinder Singh (supra) (cited by learned counsel for the petitioner) is also illustrative. There also on the basis of the evidence of the first witness the learned special Judge discharged the accused holding that the authority who had granted sanction in this case was not competent to remove him. In the present case also this position may emerge viz. during evidence the accused may be able to conclusively show that in fact, the Chairman who has granted the sanction for the present case is not the competent authority. In the circumstances this petition is disposed of with the clarification that the question regarding competence of the Chairman of the Haryana State Pollution Control Board to grant sanction against the petitioner would not be deemed to have been finally decided and shall be decided by the learned Special Judge after taking evidence . To that extent the order of the learned Special Judge conclusively holding the Chairman, Pollution Control Board as competent at this final stage is set aside. (AJAY TEWARI) JUDGE December 14, 2009 sunita