HARMESH KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) WHETHER Additional Secretary Vigilance, Punjab can grant sanction for prosecution in the name of Governor by acting as competent authority will be a material point for determination in the present petition under Section 482 of the Code of Criminal Procedure filed by Harmesh Kumar, Forest Guard, who has prayed that case F.I.R. No. 49 dated 27.5.1991 registered in Police Station Bassi Pathana under Section 7 read with Section 13(2) of the Prevention of Corruption Act and all subsequent proceedings thereon be quashed as the Government of Punjab after making inquiry has decided to withdraw the case after the required approval of the Chief Minister vide Annexure P-12 and the competent authority within the meaning of Section 19 of the Prevention of Corruption Act, 1988 has refused to grant sanction to respondent No. 2 to prosecute the petitioner vide Annexure P-14 and P-15 and the subsequent act of passing of undated sanction order by the Additional Secretary Vigilance, Annexure P-16, be quashed as the Additional Secretary Vigilance is neither the appointing nor removing authority within the meaning of Section 19 of the Prevention of Corruption Act and thus cannot review the order of refusal to grant sanction and subsequent undated sanction order has been passed without application mind.

(2.) A few facts can be noticed in the following manner :- F.I.R. No. 49 dated 27.5.1991 was registered at Police Station Bassi Pathana under Section 7 read with Section 13(2) of the Prevention of Corruption Act, 1988 against the petitioner. It was investigated and after thorough investigation was found by the department and by the competent authority that the case was false and it was ultimately decided that the petitioner shall not be prosecuted with regard to the allegations against him. It may be noticed here that the department made inquiries into the allegations on the application given by the wife of the petitioner in which she had pleaded that her husband was innocent. The department obtained the relevant reports from the concerned authorities and ultimately with the approval of the Hon'ble Chief Minister of the State it was decided that the F.I.R. be withdrawn and the case be sent as untraced in all aspects. The above orders are reflected in order Annexure P-12. The State Government vide Annexures P-14 and P-15 and on the basis of the inquiry conducted finally refused to grant the sanction under Section 19 of the Prevention of Corruption Act. The relevant observations of the Government as contained in Annexure P-14 are as follows :-

(3.) THE learned counsel appearing on behalf of the petitioner submits that as per the provisions of Section 19 of the Prevention of Corruption Act no court can take cognizance 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, - (a) .......... ........ ......; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. The counsel submitted that in this case the competent authority has finally declined to give the sanction under Section 19 to the prosecution agency/investigating agency and it cannot be said that the order of the competent authority was in any way mala fide. Rather it was passed on facts by the competent authority, who had invited the report of the Tehsildar etc. and thereafter it was fully satisfied that there was no justification for the prosecution of the petitioner and under these circumstances once the proper application of the mind had been done by the authority competent and once the action on the part of the competent authority has got the approval of the Hon'ble Chief Minister and the Governor, in these circumstances it is not open to respondent No. 3 to sit over the decision of the competent authority by invoking the power which, in fact, has never been vested in him by the law.