HABIBULLA KALYANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) "The petitioners in these two petitions are accused in SpeciaL Case No. 19 of 1984 of the Court of Special Judge Ahmedabad. Petitioner Habibulla Kalyani was serving as Class I Officer in the Sales Tax Department while petitioner Haribhai Patel was serving as Sales Tax Inspector. * * * * * * are reproduced below: * * * * vious sanction". x x x x x x

(2.) It is not disputed that so far as petitioner Habibulla is concerned he can be removed from service only by or with the sanction of the State Government. In vies of this. it cannot be disputed that sanction of the State Government is necessary to prosecute him for an offence punishable under the Prevention of Corruption Act as required by section 6(1)(b) of the said Act. Article 166 of the Constitution which deals with the conduct of business of the Government of a State is reproduced below for the sake of ready reference: 166 Conduct of business of the Government of a State:-

(3.) Now so far as petitioner Habibulla is concerned only the State Government could have accorded sanction and when it appears that there is no material to show that the Finance Minister on behalf of the State accorded sanction after applying his mind the sanction cannot be said to be legal and valid as required under sec. 6(1)(b) of the said Act and; therefore the Court of Special Judge could not have taken cognizance of the alleged offence so far as this petitioner is concerned. So far as the other petitioner Haribhai is concerned even the Commissioner of Sales Tax could have accorded sanction to prosecute him in view of sec. 6(1)(c) of the Act. The Additional Chief Secretary Finance Department. being a superior Officer could also have accorded sanction to prosecute this Haribhai. However even in the case of Haribhai the sanction is accorded by the Additional Chief Secretary not in his capacity as Additional Chief Secretary but has signed the sanction on behalf of the Governor of Gujarat in pursuance of the sanction purported to have been accorded by the Finance Minister. The sanction as against this petitioner also must be struck down because it purports to have been accorded by the Finance Minister without applying his mind. The Court of Special Judge could not have taken cognizance so far as this petitioner Haribhai is concerned.