MOHD. YOUSUF BHAT Vs. STATE OF J&K

JUDGEMENT

(1.) Short controversy, involved in the present petition, revolves around competence of the sanctioning authority under Section 6, J&K Prevention of Corruption Act, Samvat 2006 (1949 AD) to review its decision and grant sanction to prosecution after it refuses to accord such sanction. The controversy arises in the following background:-

(2.) It appears that the case for grant of sanction to the prosecution of the petitioner was examined by the Law Department and "element of corruption or dishonesty" found missing by the Department. The competent authority, having regard, inter-alia, to the opinion of Law Department instead of prosecution, di reeled departmental enquiry in the matter. Under Secretary to Government, General Administration Department (Vig), accordingly, informed the Commissioner Vigilance that the competent authority on consideration of the matter had decided to order a departmental enquiry instead of according sanction to the prosecution of the petitioner and that a departmental enquiry was proposed to be held by Principal Secretary to Government, ARI, Trainings Department. Under Secretary to Government, General Administration Department (Vig), also forwarded a copy to the Inquiry Officer (Principal Secretary to Government, ARI, Trainings Department) for necessary action.

(3.) The Inquiry officer (Commissioner/Secretary to Government, ARI & Trainings Department) on 25th February 2009 vide; No.PS/CS(Rev)/08/02-l, asked petitioner and alleged co-conspirator - Shri Muzaffar Iqbal, to appear before the Inquiry Officer and show cause why action warranted under rules may not be taken against them for their omissions and commission as had surfaced in the investigation of case-FIR No. 41 /2003 P/S VOK. The Inquiry Officer concluded the inquiry and submitted the report to the competent authority. The matter was examined by the Law Department afresh on 14th February 2008 and the stand reiterated that the Departmental action was to be resorted to. The Law Department again examined the matter on 16.6.2009 and the Department after underscoring the findings returned by the Inquiry Officer that conduct of the petitioner and other alleged co-conspirator had not been upto mark, opined that the case was not fit for scrutiny by the Criminal Court. The competent authority nonetheless vide Government Order No. 44-GAD(Vig) of 2009 dated 07.09.2009, accorded sanction for prosecution of petitioner for commission of offence punishable under section 5(1)(d) read with 5(2) JK PC Act, 2006 Svt and section 120(B) RPC.