HARLOCHAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) PRAYER in the present revision petition is for setting aside the order dated 14.7.2009 passed by the learned Special Judge, Ludhiana vide which the application moved by the petitioner for his discharge on the ground that the sanction for prosecution was declined initially but now thereafter the same has been granted in violation of the law laid down by the Hon'ble Supreme Court and the Hon'ble High Court, which is not sustainable.

(2.) COUNSEL for the petitioner contends that an FIR was registered against the petitioner and one Narinder Pal Singh at the instance of one Jarnail Singh son of Sh.Prem Singh under Sections 7, 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B IPC with the Vigilance Bureau, Phase-I, Punjab at Mohali. As per the allegations of the prosecution, during raid, four currency notes of Rs. 100/- each were recovered from the pocket of the shirt of co- accused Narinder Pal Singh and one currency note of Rs. 100/- was recovered from the inner pocket of the petitioner's coat. Counsel for the petitioner further contends that in the departmental enquiry initiated against the petitioner, he stands exonerated. On conclusion of the investigation conducted by the prosecution, challan dated 27.2.2001 was prepared. Vide letter dated 23.4.2001 (Annexure P-1), the prosecution sought sanction from the competent Authority i.e. the Deputy Commissioner, Ludhiana, to prosecute the petitioner and the coaccused Narinder Pal Singh. The competent Authority i.e. the Deputy Commissioner, Ludhiana, after minutely going through the allegations made against the petitioner as also the investigation conducted by the prosecution and the challan, declined to grant the sanction vide order dated 12.10.2001 (Annexure P-2). Subsequently, after a period of about 7 years, another communication dated 1.10.2008 (Annexure P-3) was addressed by the prosecuting Agency to the Deputy Commissioner, Ludhiana, being the competent Authority for seeking grant of sanction for trial against the petitioner. He submits that there was no reference to the earlier refusal of sanction by the competent Authority vide order dated 12.10.2001 (Annexure P-2). The Deputy Commissioner without referring to the earlier order dated 12.10.2001 vide which the sanction was refused for prosecuting the petitioner and without looking into the reasons which were assigned by the competent Authority at that time and there being no other fresh material or evidence on record to reconsider the earlier decision taken by the competent Authority, proceeded to grant sanction to prosecute the petitioner vide order dated 1.10.2008 (Annexure P-4). He contends that the request for grant of sanction for prosecution is dated 1.10.2008 and on the same day, the sanction has been granted by the competent Authority which shows the non Crl. application of mind. He relies upon a judgment of the Hon'ble Supreme Court in the case of State of Punjab and another v. Mohammed Iqbal Bhatti, 2009(4) R.A.J. 605 : 2009(3) RCR(Crl.) 861, to contend that when a sanction for prosecution of a government servant in a corruption case has been refused by the Government, the same cannot be reviewed and sanction granted to prosecute the government servant on the same material. He contends that nothing has come on record which would show that any fresh material was placed before the competent Authority so as to persuade the competent Authority to review the earlier order refusing to grant the sanction. He, on this basis, prays that the present petition may be allowed and the impugned order passed by the learned Special Judge, Ludhiana dated 14.7.2009 be set aside and the application moved by the petitioner for discharge be allowed. Counsel for the State has been unable to rebut the contentions which have been raised by the counsel for the petitioner. On the basis of the records, he states that as a matter of fact, no fresh material was placed before the competent Authority except for the material which was placed before the competent Authority at the initial stage when order dated 12.10.2001 refusing to grant sanction was passed. He also does not dispute the fact that the prosecuting Agency and the office of the competent Authority failed to bring it to the notice of the competent Authority i.e. the Deputy Commissioner, Ludhiana, the earlier order dated 12.10.2001 passed by the Deputy Commissioner, Ludhiana, declining grant of sanction to prosecute the petitioner.

(3.) HOWEVER , a communication was thereafter again made to the Deputy Commissioner, Ludhiana on 1.10.2008 (Annexure P-3) by the prosecuting Agency, thereby making a request for grant of sanction to prosecute the petitioner. A perusal thereof shows that there is no reference to the earlier refusal of grant of sanction by the competent Authority vide order dated 12.10.2001 (Annexure P-2). There is also no mention in the said communication as to if any new material had come to the knowledge of the prosecution so as to seek review of the earlier order dated 12.10.2001 passed by the competent Authority refusing the sanction. The same day when the request for grant of sanction to prosecute the petitioner was received by the competent Authority, order granting sanction to prosecute the petitioner was passed by the Deputy Commissioner, Ludhiana. A perusal of the order dated 1.10.2008 clearly indicates that the earlier refusal to grant sanction dated 12.10.2001 was not brought to the knowledge of the competent Authority. This order does not reflect as to if any new material was placed on the records before the competent Authority so as to persuade the competent Authority to take a decision for review of the earlier order dated 12.10.2001. The order itself suggests that the competent Authority was kept in dark about the non-grant of refusal of sanction by the competent Authority vide order dated 12.10.2001 by the prosecuting Agency and by the office concerned. This clearly shows the non-application of mind on the part of the competent Authority. Nothing can be said to be on the record which would justify the review of the earlier order dated 12.10.2001.